918 This approach accords with the fact that the predecessor to the s 30 defence, namely s 22 of the predecessor Act, was clearly intended to widen the scope of qualified privilege: see Austin v Mirror Newspapers (at 359 per Lord Griffiths on behalf of the Privy Council). The Privy Council (at 354C, 363G), consistent with a defence of confession and avoidance, identified that the starting point of the assessment of reasonableness under s 22(1)(c) is the facts on which the attack (that is, the defamatory meaning or allegation as opposed to the matter) was based, which the jury has found were not true.
IIConclusion on Construction Issue
919 Although I am grateful for the well-considered and scholarly submissions on this point, I think they overcomplicate the issue.
920 As support for the construction advocated, both respondents called in aid the judgment of Hodgson JA (with whom Basten JA and McClellan CJ at CL agreed) in Griffith v Australian Broadcasting Corporation [2010] NSWCA 257. In that judgment, his Honour observed as follows (at [117]–[121]) in relation to s 22 of the predecessor Act:
[117] …What has to be shown to be reasonable under s 22(1)(c) of the Act is the conduct of the publisher in publishing that matter, in its character as making the imputation complained of; not, in my opinion, the matter in all of its aspects.
[118] This view is supported by the following passage from Morgan at 383:
Those opposing arguments require further discussion of the nature of the requirement imposed by s 22, that the conduct of the defendant in publishing the "matter" was reasonable in the circumstances.
The extent of this requirement was first considered by this Court in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697. Moffitt P (with whom Glass JA agreed) said (at 705):
"… s 22(1)(c) requires that particular attention is paid as to [the] reasonableness of the conduct in relation to [the] publication of this particular matter, ie that which carries the defamatory imputation."
He then gave an example which underlines the issue as being whether the defendant acted reasonably in publishing the particular imputation concerning the plaintiff. The defendant, his Honour made it clear, must establish that the particular imputation against the plaintiff was reasonable. Reynolds JA (with whom Glass JA also agreed) said (at 712):
"… Section 22(1)(c) calls for the consideration of a wide range of matters. Some are to be found in the published
