L.4Common Law Qualified Privilege
968 I will deal with the common law qualified privilege defence pleaded by Ms Wilkinson very briefly.
969 It was pressed because it was contended that the defamatory matter about Mr Lehrmann was only published to a limited and select number of persons who already possessed special knowledge about him and was not defamatory when published to persons without that special knowledge. It is then said to follow that each of the people that could have reasonably identified Mr Lehrmann had such specialised knowledge about him (or proximate relationship to him), such that Ms Wilkinson, having conducted a recorded interview with a person accusing him of rape, had an interest in communicating that interview to those persons through the Project programme, and those persons had an interest in receiving the Project programme such that each publication to those persons was a privileged occasion.
970 This novel argument founders on the reality that: (a) Ms Wilkinson had no special or particular interest in relation to the allegations above their general newsworthiness; and (b) the Project programme was published to the general television public (even though there was an indeterminate number of people who had the specialised knowledge that allowed them to identify Mr Lehrmann). But merely because some of the persons viewing had a particular interest in receiving the Project programme, this did not mean that publication to the others was incidental and there was no relevant and necessary community of interest between Ms Wilkinson and the recipients: see Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 (at [77]).
MDAMAGES AND OTHER RELIEF
M.1Introduction
971 In Roberts-Smith, Besanko J (at [2615]) identified some complex issues relating to damages in that case and then observed (at [2618]) that his Honour had:
assumed for a time in preparing these reasons that I would assess damages on the hypothetical basis that I was wrong and I had considered a number of matters associated with damages. I had proceeded on that assumption because it is generally desirable for the Court hearing the proceedings to resolve as many issues as is possible. However, on working through the issues, it has become apparent to me that largely because of the significant number of possible alternative outcomes if I am wrong and to a much lesser extent (but relevant nevertheless) the extreme difference between the decision I have reached and the assumptions I would need to make, that that would not be an appropriate or useful exercise. Neither of these matters are
