228 The strike out application was heard by Dixon J (as he then was), and it went on appeal, with the result that his Honour's order striking out the qualified privilege plea was varied to permit repleading.
229 The ultimate decision stands for the proposition, as the headnote in the Commonwealth Law Report says, that the newspaper's challenges to sue were no more than an invitation to take proceedings which would follow the normal course of defamation proceedings, and their inclusion in the article did not prevent the defendant from setting up, as a plea of qualified privilege, that the article was published by way of defence to attacks publicly made upon the defendant and those whose interests the defendant was entitled to protect.
230 In his judgment at first instance, Dixon J described the qualified privilege in the following terms (at 233):
When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion.
231 Justice Dixon (at 233–234) also explained the basis for the privilege, as follows:
The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.
232 Thus, the privilege enables those attacked to inform those whose judgment of them may be affected by the attack of their response to it in order that they may vindicate themselves.
233 The High Court did not disturb Dixon J's statements of the relevant principle. Latham CJ and Williams J said at 242–3:
Statements which are made in self-defence are privileged when they are made in reply to attacks upon the character or conduct of the defendant, or in protection of an employer against attacks on the employer, or in protection of the proprietary interests of a defendant or his employer against attacks upon such interests. When a person has been attacked seriously and abusively, the terms of his reply are not measured in very
