903 I recently had cause in Russell (No 3) (at [272]–[307]), in considering the new defence of "public interest" in s 29A of the Defamation Act, to survey at length the genealogy of the qualified privilege defence and the concept of "reasonableness" at statute and common law. I will not repeat that analysis here, and it suffices to make some initial general observations and then deal only with a legal issue that separated the parties, being the proper construction of s 30.
904 It seems to me there is a danger in overcomplicating the relevant task.
905 It was long established under s 22 of the Defamation Act 1974 (NSW) that a publisher was required to demonstrate its conduct in publishing each imputation that was conveyed was reasonable in the circumstances. It followed that the more serious the meaning conveyed, the more onerous was the obligation cast upon the publisher to ensure that its conduct in relation to conveying the meaning was reasonable. If the publisher intended to convey the meaning found to have been conveyed, the publisher was required to establish that it had an actual or attributed belief in the truth of the imputation (save those exceptions where belief in the truth of what was published was not required at common law–such as where a publisher was under a duty to pass on, without endorsement, a defamatory report made by some other person or analogous circumstances: see Echo Publications Pty Limited v Tucker (No 3) [2007] NSWCA 320 (at [20] per Hodgson JA, with whom Mason P and McColl JA agreed)).
906 Finally, the publisher was required to establish that before publication it exercised sufficient care to ensure that proper enquiries were made; checks were made on the accuracy of sources; the conclusions drawn followed logically; fairly and reasonably from the information obtained; the manner and extent of publication did not exceed what was reasonable; and that each imputation conveyed was relevant to the subject matter about which information was being conveyed. Obviously enough, the steps required to be taken to establish that the publisher had acted reasonably was a contextual enquiry depending upon the nature of what was conveyed.
907 The relevant evaluative assessment occurred in circumstances where the defence fell to be considered if other defences (such as substantial truth or comment) had not been established in relation to the imputations conveyed and there would be cases where, despite all appropriate reasonable steps being taken by the publisher, the journalist got the facts wrong:
