1. Introduction
Significance of Malice
The concept of 'malice' occupies a pivotal position within Australian defamation law. While not an element of the cause of action itself, malice becomes critically relevant when a defendant seeks to rely upon certain defences, most notably qualified privilege (both statutory and common law) and honest opinion (or its common law precursor, fair comment). Proof that a defamatory publication was actuated by malice—essentially, made with an improper motive or state of mind—can negate these defences, stripping the defendant of legal protection that might otherwise be available (Roberts v Bass (2002) 212 CLR 1 at [62]-[65] per Gaudron, McHugh and Gummow JJ).
Purpose and Scope
This section provides guidance on the definition, role, proof, and procedural handling of malice in defamation proceedings. It focuses on the application of malice under the Defamation Act 2005 (WA) ('the Act') and the relevant common law principles preserved by the Act. The aim is to offer practical assistance, grounded in established jurisprudence, particularly from the High Court of Australia and relevant appellate courts, with specific reference to Western Australian provisions and case law where feasible.
Structure Overview
This analysis will proceed by:
Defining malice as understood in Australian common law, which informs its application under the Act.
Explaining the specific role of malice in defeating the statutory defences of qualified privilege (s 30) and honest opinion (s 31) under the WA Act, as well as analogous common law defences.
Detailing the requirements for pleading and proving malice, including the burden and standard of proof, and the types of evidence typically relied upon.
Illustrating the principles through analysis of key case law examples where malice was successfully or unsuccessfully argued.
Providing practical guidance, including considerations for assessing evidence and directing juries on the issue of malice.
Context: Balancing Interests
Defamation law operates at the intersection of competing fundamental values: the right of an individual to protection of their reputation and the right to freedom of expression, particularly concerning matters of public interest (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568). The defences available in defamation, and the concept of malice which qualifies some of those defences, represent mechanisms by which the law attempts to strike a balance between these competing interests. Malice serves as a threshold, ensuring that defences designed to protect legitimate communication are not abused for improper ends.
2. Defining Malice in Australian Defamation Law
Common Law Foundation
The Defamation Act 2005 (WA), consistent with uniform defamation legislation across Australia, does not provide a statutory definition of 'malice.' Section 6(2) of the Act expressly states that the Act does not affect the operation of the general law in relation to the tort of defamation except to the extent the Act provides otherwise. Consequently, the meaning of malice, particularly where it is relevant to defeating statutory defences like qualified privilege under section 30(4), is derived from established common law principles. The general law continues to apply to determine whether a publication was actuated by malice when such a finding may defeat a defence.
Core Concepts: Improper Purpose
At its core, malice in defamation law signifies the misuse of an occasion or defence for an improper purpose. Where a defence like qualified privilege exists, it is granted by law to serve a particular public or private interest (e.g., the performance of a duty, the protection of a common interest). Malice arises when the defendant uses that occasion not for its intended purpose, but for some ulterior or foreign motive (Roberts v Bass (2002) 212 CLR 1 at [75]-[76] per Gaudron, McHugh and Gummow JJ).
The seminal articulation of this principle comes from Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149, who stated that qualified privilege is lost if the defendant "misused the occasion for some purpose other than that for which the privilege is accorded by the law." The privilege attaches to the occasion, but it can be defeated if the defendant abuses that occasion. Examples of such improper purposes include publishing out of personal spite, ill will, vindictiveness, or a desire to injure the plaintiff that is unconnected to the duty or interest protected by the privilege (Horrocks v Lowe [1975] AC 135 at 149).
The legal definition of malice thus focuses sharply on the defendant's subjective dominant purpose at the time of publication. This makes it distinct from objective assessments of reasonableness or negligence, although such factors can be relevant evidence from which the subjective purpose might be inferred (Roberts v Bass (2002) 212 CLR 1 at [75]-[76]). This subjective focus is critical: proving, for instance, that a defendant's conduct was objectively unreasonable for the purposes of establishing statutory qualified privilege under section 30(1)(c) of the WA Act is a different exercise from proving the subjective improper purpose required for malice under section 30(4).
The 'Dominant Purpose' Test
Crucially, for malice to be established, the plaintiff must prove that the improper purpose was the dominant or actuating motive for the publication (Roberts v Bass (2002) 212 CLR 1 at [76]). As the High Court affirmed, malice requires proof that the improper motive was the substantial or driving reason for the publication. The mere co-existence of some ill will or secondary improper motive alongside a genuine and dominant proper purpose (i.e., fulfilling the duty or protecting the interest relevant to the privilege) is generally insufficient to establish malice (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-51). The improper purpose must be the primary driver.
Knowledge of Falsity and Reckless Indifference
A defendant's state of mind regarding the truth or falsity of the defamatory matter is highly relevant to determining their purpose.
Knowledge of Falsity: Publishing defamatory matter knowing it to be false is generally regarded as almost conclusive evidence of malice (Horrocks v Lowe [1975] AC 135 at 150). If a defendant knowingly publishes falsehoods, it is difficult to conceive that they are acting for a purpose protected by the law; such conduct inherently points to an improper motive.
Reckless Indifference: Publishing defamatory matter with reckless indifference as to its truth or falsity—that is, publishing without caring whether it is true or false—is treated by the law as equivalent to knowledge of falsity (Horrocks v Lowe [1975] AC 135 at 150). Such recklessness demonstrates a lack of honest belief and is strong evidence from which malice (an improper dominant purpose) can be inferred.
While knowledge of falsity or recklessness are often described as forms of malice, it is perhaps more accurate to understand them as powerful evidence from which the core element of malice—the improper dominant purpose—can be inferred. As discussed in Roberts v Bass (2002) 212 CLR 1 at [78], the absence of a positive, honest belief in the truth of the statement is a significant factor pointing towards potential malice, but it is the underlying improper purpose, often evidenced by such recklessness or knowledge, that constitutes malice itself. This suggests a potential two-stage analysis for the fact-finder: first, assessing the defendant's state of knowledge or belief (e.g., knew it was false, was reckless, honestly believed it true), and second, inferring whether this state of mind, combined with other evidence, reveals a dominant purpose foreign to the privilege.
Distinguishing Malice from Other Conduct
It is essential to distinguish malice from other states of mind or conduct that do not necessarily defeat a defence:
Carelessness or Negligence: Malice is not established by mere carelessness, negligence, impulsiveness, irrationality, prejudice, drawing conclusions from insufficient evidence, or failing to verify facts, unless such conduct is so gross as to warrant an inference of reckless indifference to the truth (Horrocks v Lowe [1975] AC 135 at 150). As established in Horrocks v Lowe, honest belief, even if formed carelessly or based on prejudice, can negate malice if the occasion was used for its proper purpose.
Strong Language: The use of strong, vehement, or exaggerated language does not, in itself, constitute malice (Horrocks v Lowe [1975] AC 135 at 151). Particularly in contexts such as political debate or a response to an attack, a degree of latitude is allowed. However, language that is utterly disproportionate to the facts or the occasion can be evidence from which an inference of malice might be drawn (Adam v Ward [1917] AC 309 at 339 per Lord Atkinson).
Honest Belief: A genuine, positive belief in the truth of the defamatory statement is generally inconsistent with malice, even if that belief is mistaken, prejudiced, or unreasonable, provided the dominant purpose of the publication was proper to the occasion (Horrocks v Lowe [1975] AC 135 at 150). However, the High Court in Roberts v Bass indicated that the absence of an honest belief, while not malice per se, is significant evidence pointing towards it ((2002) 212 CLR 1 at [78]).
Political Motive: In the context of political communication, particularly during election campaigns, an intention to cause political damage to an opponent does not, by itself, constitute an improper motive amounting to malice (Roberts v Bass (2002) 212 CLR 1 at [104]-[105]). This principle reflects the constitutional protection afforded to political communication following Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
3. The Role of Malice in Defeating Defences
General Principle
The rationale for malice defeating defences like qualified privilege and honest opinion lies in the purpose of these defences. They are designed to protect communications made in good faith for legitimate societal or individual purposes (e.g., fulfilling a duty, sharing information on matters of common interest, expressing genuine opinions on public matters). Proof of malice demonstrates that the defendant has abused the protection afforded by the defence, using the occasion or the expression of opinion as a pretext for pursuing an improper objective, such as venting personal spite or knowingly spreading falsehoods (Roberts v Bass (2002) 212 CLR 1 at [62]-[65]).
Statutory Qualified Privilege (s 30 Defamation Act 2005 (WA))
Section 30 of the Act provides a statutory defence of qualified privilege. To establish this defence, the defendant must prove:
The recipient had an interest or apparent interest (defined in s 30(2)) in having information on some subject (s 30(1)(a)).
The matter was published to the recipient in the course of giving information on that subject (s 30(1)(b)).
The conduct of the defendant in publishing the matter was reasonable in the circumstances (s 30(1)(c)). Section 30(3) lists non-exhaustive factors a court may consider in assessing reasonableness, such as the seriousness of the imputation, steps taken to verify, whether the plaintiff's side was sought, and the public interest nature of the matter (Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354).
However, section 30(4) explicitly states: "For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice."
The requirement of 'reasonable conduct' in s 30(1)(c) and the 'malice' defeater in s 30(4) are distinct concepts. A defendant's conduct might be found unreasonable based on the objective factors in s 30(3) (e.g., failing to verify information adequately) without necessarily rising to the level of subjective malice (Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [33]). Conversely, while less likely, it is theoretically possible for conduct to appear reasonable on its face but still be driven by a dominant improper motive (malice). In practice, however, factors strongly indicating malice, such as knowledge of falsity or reckless indifference, would almost certainly render the publishing conduct unreasonable under s 30(1)(c).
This structure creates a potential two-stage inquiry for statutory qualified privilege. The defendant must first satisfy the court that their conduct was objectively reasonable. Even if they succeed, the plaintiff has a second opportunity to defeat the defence by proving subjective malice. This contrasts with traditional common law qualified privilege, which primarily required the defendant to establish the privileged occasion (duty/interest reciprocity), immediately shifting the onus to the plaintiff to prove malice without a separate 'reasonableness' hurdle for the defendant (Roberts v Bass (2002) 212 CLR 1). Consequently, the statutory defence under section 30 may, in some circumstances, offer less robust protection to publishers than its common law counterpart, a point noted by the High Court in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79.
Honest Opinion (s 31 Defamation Act 2005 (WA))
Section 31 provides a defence for the publication of honest opinion. The core elements require the defendant to prove:
The matter was an expression of opinion rather than a statement of fact (s 31(1)(a)).
The opinion related to a matter of public interest (s 31(1)(b)).
The opinion was based on proper material, meaning material that is substantially true, or published on an occasion of absolute or qualified privilege, or protected by other specified defences (ss 31(5), 31(6)) (Fairfax Media Publications Pty Ltd v Voller (2021) 271 CLR 34).
The defence applies to opinions expressed by the defendant personally (s 31(1)), an employee or agent (s 31(2)), or a third-party commentator whose opinion the defendant publishes (s 31(3)).
The defence under section 31 is defeated if the plaintiff proves the specific state of mind set out in section 31(4). This subsection provides that the defence fails if the plaintiff proves that:
(For the defendant's own opinion under s 31(1)): "the opinion was not honestly held by the defendant at the time the defamatory matter was published" (s 31(4)(a)).
(For an employee/agent's opinion under s 31(2)): "the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published" (s 31(4)(b)).
(For a commentator's opinion under s 31(3)): "the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published" (s 31(4)(c)).
While section 31(4) uses the phrase "not honestly held" rather than "actuated by malice," the concepts are functionally very similar in this context (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] per Gleeson CJ). Proving that an opinion was not genuinely held by the person expressing it effectively establishes an improper purpose—the defence is intended to protect genuine expressions of opinion, not statements dishonestly presented as opinion. The focus is squarely on the subjective belief (or lack thereof) of the relevant opinion holder at the time of publication.
The distinct terminology used in the Act—"actuated by malice" for qualified privilege (s 30(4)) versus "opinion was not honestly held" for honest opinion (s 31(4))—is noteworthy. While both require proof of an improper subjective state, this linguistic variation might influence how arguments are framed. For section 30, arguments might encompass a broader range of improper motives potentially extraneous to the truth of the statement itself. For section 31, the argument is more tightly focused on whether the opinion expressed was genuinely believed by the relevant person.
Common Law Defences
Section 24 of the Act preserves defences available under the general law, except to the extent the Act provides otherwise. Malice remains relevant to defeating key common law defences:
Common Law Qualified Privilege: This defence arises in situations involving a reciprocity of duty and interest between publisher and recipient, or where a statement is made in reply to an attack (Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044). It is defeated if the plaintiff proves the publication was actuated by malice, understood as an improper or foreign purpose, applying the principles from Horrocks and Roberts (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366).
Common Law Fair Comment: This defence protects expressions of opinion on matters of public interest based on true facts (Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743). It is defeated by proof of malice, typically established by showing the comment did not represent the defendant's genuine opinion or was motivated by an improper purpose (London Artists Ltd v Littler [1969] 2 QB 375 at 392-393). While largely superseded by the statutory defence in s 31, the common law defence remains available (Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 192).
4. Proving Malice
Burden and Standard of Proof
The legal burden of proving that a publication was actuated by malice rests squarely and solely on the plaintiff (Horrocks v Lowe [1975] AC 135 at 149-150). Once the defendant establishes the factual basis for a defence capable of being defeated by malice (e.g., the existence of a privileged occasion or the elements of honest opinion), the onus shifts to the plaintiff to prove, on the balance of probabilities, that the defendant acted with the requisite malice (Roberts v Bass (2002) 212 CLR 1 at [76]). The evidence adduced by the plaintiff must be "credible, substantial evidence and not a surmise or a minimal amount of evidence" sufficient to support a positive finding of malice (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51).
Pleading Requirements
A plaintiff who intends to allege malice to defeat a defence must plead it specifically. It is not sufficient merely to deny the defence in the statement of claim or rely on an implied joinder of issue. Malice must be raised affirmatively in a Reply to the defendant's Defence (Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 203).
Furthermore, the pleading must contain full particulars of the facts, matters, and circumstances relied upon by the plaintiff to establish the allegation of malice (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336). General allegations or boilerplate assertions of malice are insufficient and liable to be struck out. In Western Australia, Order 20, rule 13(1) of the Rules of the Supreme Court 1971 (WA) requires that particulars be given of any pleading alleging a condition of mind, such as malice. Order 20, rule 8 also requires specific pleading of matters which might otherwise take the opposing party by surprise.
The requirement for detailed particulars is not merely procedural; it serves a crucial function in defining the scope of the factual dispute regarding the defendant's state of mind. It compels the plaintiff to articulate the specific basis for the malice allegation at an early stage, enabling the defendant to understand the case they must meet and preventing trial by ambush (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336). The plaintiff will generally be confined at trial to proving malice based on the particulars pleaded.
Evidence of Malice
Since malice pertains to the defendant's subjective state of mind or dominant purpose, direct evidence is often unavailable. Consequently, malice must usually be inferred from circumstantial evidence (Roberts v Bass (2002) 212 CLR 1 at [79]). This evidence can be broadly categorised as intrinsic (arising from the publication itself) and extrinsic (arising from circumstances outside the publication).
Intrinsic Evidence:
Language: The tone and terms of the publication. Language that is excessive, vitriolic, sensationalised, or clearly disproportionate to the facts or the occasion may suggest an improper motive (Horrocks v Lowe [1975] AC 135 at 151). However, caution is required, as strong or prejudiced language alone does not equate to malice, especially in certain contexts (Adam v Ward [1917] AC 309 at 339-340).
Mode and Extent of Publication: Publishing the defamatory matter more widely than the privileged occasion warrants can indicate malice (Roberts v Bass (2002) 212 CLR 1 at [104]). For example, broadcasting allegations to the public when the duty/interest relationship only exists with a specific individual.
Inclusion of Irrelevant Matter: Including defamatory statements that are clearly irrelevant to the purpose of the privileged occasion may suggest the occasion is being used as a cloak for malice (Adam v Ward [1917] AC 309 at 334).
Lack of Factual Basis: A complete absence of any foundation for the defamatory statement within the publication itself might support an inference of recklessness or improper motive (Webb v Bloch (1928) 41 CLR 331 at 363-364).
Internal Evidence of Falsity: The publication itself might contain information known to the defendant that contradicts the defamatory imputation (Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461).
Extrinsic Evidence:
Defendant's Knowledge or Belief: Evidence that the defendant knew the statement was false, or had no positive belief in its truth, or was recklessly indifferent (Horrocks v Lowe [1975] AC 135 at 150).
Defendant's Conduct: Evidence of prior hostility, arguments, disputes, threats, or expressions of ill will between the defendant and the plaintiff can indicate an underlying improper motive (Thomas v Mowbray [1935] 2 KB 113 at 120).
Sources and Verification: Evidence that the defendant relied on sources known to be unreliable, deliberately avoided obvious sources of information, or failed to make reasonable inquiries or attempts to verify the defamatory allegations, particularly when serious and easily checkable, can point to reckless indifference (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51-52 per Brennan J).
Response to Contradiction/Apology: Evidence that the defendant refused to listen to or publish an explanation or contradiction offered by the plaintiff, or unreasonably refused to apologise or retract the statement after its falsity was demonstrated, can be relevant (Wakley v Cooke (1849) 4 Ex 511 at 515-516; 154 ER 1315 at 1317).
Repetition: Unjustified repetition of the defamatory statement, especially after its falsity has been pointed out, may indicate malice (Clark v Molyneux (1877) 3 QBD 237 at 247).
Evidence of Plan or Conspiracy: Evidence showing the publication was part of a deliberate plan or conspiracy to injure the plaintiff (Angel v H H Bushell & Co Ltd (1968) 1 QB 813 at 831-832).
Attempts to Mislead or Conceal: Evidence that the defendant attempted to mislead the court or conceal relevant facts about their state of mind or sources (Gouldsmith v Carruthers (1798) 1 Camp 121; 170 ER 906).
Inferring Malice
The task for the court or jury is to consider the whole of the evidence—both intrinsic and extrinsic—and determine whether, on the balance of probabilities, it supports an inference that the defendant's dominant purpose in publishing the defamatory matter was improper and foreign to the occasion or defence relied upon (Roberts v Bass (2002) 212 CLR 1 at [75]-[79]). The inference drawn must be a reasonable and definite one based on the evidence, not mere speculation or conjecture (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51-52).
The inherent difficulty in proving a subjective state of mind means that establishing malice can be challenging for plaintiffs (Horrocks v Lowe [1975] AC 135 at 149-151). The reliance on circumstantial evidence and inference makes the assessment highly fact-sensitive and potentially less predictable than proving objective elements.
5. Case Law Illustrations (Worked Examples)
Examining specific cases helps illustrate how the principles of malice are applied in practice.
Malice Established
Roberts v Bass (2002) 212 CLR 1 (Regarding Appellant Roberts):
Facts: During a South Australian election campaign, Mr Roberts authorised the publication of three documents targeting the incumbent, Mr Bass. These included a mocking postcard implying a taxpayer-funded holiday, a pamphlet containing a forged Ansett Frequent Flyer statement suggesting misuse of travel entitlements, and a 'how-to-vote' card with various untrue allegations concerning Mr Bass's policies and activities (e.g., junkets, secret hospital deals, gun rights stance).
Finding on Malice (Roberts): Although the High Court majority ultimately allowed Roberts' appeal based on the application of Lange privilege principles, the lower courts and dissenting/concurring judgments in the High Court provide insight into evidence supporting malice. The trial judge found Roberts' dominant purpose went beyond mere political damage to intending to lower Bass's reputation generally, and that he published allegations recklessly, without caring if they were true (Roberts v Bass (2002) 212 CLR 1 at [39]-[42] per Gleeson CJ). The use of a forged document was particularly indicative of an improper motive. Gleeson CJ and Hayne J in the High Court found Roberts acted with malice due to recklessness regarding truth or falsity ((2002) 212 CLR 1 at [216]-[219] per Hayne J). Callinan J also found recklessness ((2002) 212 CLR 1 at [248]).
Relevance: This case demonstrates how actions like forgery and the dissemination of serious allegations known to be untrue or made with reckless indifference can constitute strong evidence of malice, potentially overcoming the latitude given to political speech. It underscores the fact-intensive nature of the inquiry into the publisher's dominant motive.
Smith v Stevens [2022] WASC 116 (Western Australia):
Facts: A director (Stevens) of a WA Aboriginal Corporation emailed a document containing defamatory allegations (mismanagement, dishonesty, breach of duty) about two fellow directors (Smith, Camille) to the other board members.
Finding of Malice: The WA Supreme Court found that although the communication occurred on an occasion of qualified privilege (directors sharing a common interest in corporate governance), the defence under both common law and s 30 of the Act was defeated because Stevens was actuated by malice (Smith v Stevens [2022] WASC 116 at [328]-[334]). Key evidence supporting this finding included: (1) Stevens' own admission that he prepared the document partly out of a desire to retaliate against perceived attacks from Camille; (2) Stevens' failure to make sufficient inquiries to verify many of the serious allegations, indicating recklessness as to their truth; and (3) Stevens' poor attendance at board meetings, which undermined his claim to be acting solely out of genuine concern for the Corporation's governance.
Relevance: This WA authority provides a clear example of how extrinsic evidence (admission of retaliatory motive, poor attendance) combined with intrinsic factors (unverified serious allegations) can establish a dominant improper purpose (malice), thereby defeating qualified privilege even where a legitimate common interest exists between publisher and recipient.
Malice Not Established / Defence Upheld
Roberts v Bass (2002) 212 CLR 1 (Regarding Appellant Case):
Facts: The second appellant, Mr Case, distributed the 'Orange Pamphlet' (the how-to-vote card containing untrue statements about Bass) at a polling booth for several hours on election day. The pamphlet had been prepared and authorised by Mr Roberts.
Finding on Malice (Case): The High Court majority held that malice had not been established against Mr Case (Roberts v Bass (2002) 212 CLR 1 at [80]-[82]). Although the material was defamatory and published on a privileged occasion (political communication), the evidence did not demonstrate that Case himself possessed an improper motive. He was merely distributing material prepared by Roberts, and there was insufficient evidence to show he shared Roberts' recklessness or improper purpose, or that he acted for any dominant purpose other than participating in the election campaign.
Relevance: This illustrates the important principle that malice must generally be proven against each individual joint publisher (unless vicarious liability applies) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). The malice of the author (Roberts) was not automatically imputed to the distributor (Case). It also reinforces that a motive to participate in political campaigning, even if aimed at damaging an opponent, is not, in itself, malice.
Aktas v Westpac Banking Corporation (2010) 241 CLR 79:
Facts: A bank mistakenly applied a court order to the wrong account, leading it to dishonour cheques drawn on that account with the notation "Refer to drawer," which was held to be defamatory.
Finding on Malice: The court held that the bank's communication ("Refer to drawer") was made on an occasion of qualified privilege (a communication made in the conduct of its affairs where its interest was concerned). Crucially, the court found that the bank's mistake in applying the order did not, by itself, constitute malice or destroy the privilege. The plaintiff needed to prove actual malice—an improper motive beyond the error—on the part of the bank, which was not established on the facts.
Relevance: This case reinforces that negligence or error, even if leading to a defamatory publication on a privileged occasion, does not automatically equate to malice. Malice requires proof of a specific, subjective improper state of mind, such as knowledge of falsity, reckless indifference, or an intention to injure, separate from the mere fact of the mistake (Horrocks v Lowe [1975] AC 135 at 149).
Comparing these cases underscores that findings of malice turn heavily on the specific evidence available regarding the defendant's state of mind and dominant motive at the time of publication. General ill will or the publication of defamatory material on a privileged occasion is insufficient; the plaintiff must adduce specific evidence, whether intrinsic or extrinsic, pointing clearly to an improper purpose that actuated that particular defendant's publication.
6. Practical Guidance (WA Focus)
Assessing Evidence of Malice
Judicial officers and practitioners assessing potential malice should consider:
Cumulative Effect: Evaluate the combined weight of all evidence suggesting malice. Individual pieces might be weak, but together they may paint a compelling picture of improper motive (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51).
Context: The context of the publication is crucial. Greater latitude may be afforded to political speech or statements made in reply to attack compared to unsolicited private communications (Roberts v Bass (2002) 212 CLR 1 at [104]-[105]).
Failure to Apologise/Retract: While relevant extrinsic evidence, a refusal to apologise or retract should be assessed cautiously, considering the reasons given (if any) and the overall circumstances. It is not determinative of malice (Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 515-516).
Verification Efforts: Close attention should be paid to the nature of the allegations, the defendant's sources, and the steps taken (or not taken) to verify the information, particularly in relation to the factors listed for reasonableness under s 30(3) of the WA Act. A cavalier approach to truth-checking serious allegations can support an inference of reckless indifference (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51-52 per Brennan J).
Pleading and Particulars
Practitioners must ensure malice is pleaded in a Reply with full and precise particulars, complying with Order 20, rules 8 and 13 of the Rules of the Supreme Court 1971 (WA). Failure to do so risks the pleading being struck out or the plaintiff being unable to lead evidence on malice at trial. Defendants should scrutinise the particulars provided and consider seeking further and better particulars if they are inadequate (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336).
Guidance on Judicial Directions to Juries on Malice (WA Context)
Given that section 21 of the Defamation Act 2005 (WA) permits parties to elect for trial by jury on liability issues (including malice), clear and accurate judicial directions are paramount in Western Australia. Section 22 outlines the respective roles of the judicial officer and jury.
Threshold Question for Judge: The trial judge must first determine if there is any evidence adduced by the plaintiff that is reasonably capable of supporting a finding of malice. If there is no such evidence, the issue of malice should be withdrawn from the jury, and the defence (if otherwise established) will succeed (Adam v Ward [1917] AC 309 at 348 per Lord Sumner).
Content of Jury Directions: Where there is sufficient evidence, the judge's directions on malice should cover the following points:
Identify the specific defence(s) raised (e.g., statutory qualified privilege under s 30, honest opinion under s 31) to which malice is relevant.
Explain that if the jury finds the elements of the defence established by the defendant, the defence succeeds unless the plaintiff proves malice (or lack of honest belief for s 31) (Horrocks v Lowe [1975] AC 135 at 149).
Clearly state that the burden of proving malice rests solely on the plaintiff (Horrocks v Lowe [1975] AC 135 at 149).
Explain the standard of proof: the plaintiff must prove malice on the balance of probabilities (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171).
Define malice: the use of the occasion for a dominant purpose or motive foreign to the purpose for which the law grants the protection (e.g., spite, ill will, intention to injure unrelated to the duty/interest) (Roberts v Bass (2002) 212 CLR 1 at [75]-[76]).
Explain the relevance of the defendant's state of mind regarding truth: publishing knowing the matter is false, or with reckless indifference to its truth or falsity (not caring if it is true or false), is strong evidence from which malice may be inferred (Horrocks v Lowe [1975] AC 135 at 150).
Distinguish malice from conduct that does not constitute malice: mere carelessness, error, negligence, impulsiveness, prejudice, irrationality, or strong language, unless these factors demonstrate reckless indifference or an improper dominant purpose (Horrocks v Lowe [1975] AC 135 at 150-151).
For the s 31 honest opinion defence, direct the jury specifically on the test in s 31(4): whether the plaintiff has proved, on the balance of probabilities, that the opinion was not honestly held by the relevant person (defendant, employee/agent, or commentator, as applicable) (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] per Gleeson CJ).
Instruct the jury to consider all the relevant evidence, both intrinsic (e.g., language of the publication) and extrinsic (e.g., defendant's conduct, knowledge, inquiries), in deciding whether malice has been proven (Roberts v Bass (2002) 212 CLR 1 at [78]-[79]).
If there are multiple defendants, direct the jury that malice must be considered and proven individually against each defendant against whom it is alleged (unless vicarious liability is applicable) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). Reference should be made to the specific WA Act sections (ss 21, 22, 30(4), 31(4)).
The availability of jury trials for liability in WA places a significant onus on judges to ensure these complex concepts are conveyed accurately and understandably to lay jurors (Abram v Channon [1934] WAR 90 at 92-93). The nuances differentiating malice from carelessness, recklessness as evidence versus malice itself, and the specific test for honest opinion require careful formulation.
Furthermore, the principle that malice must be proven individually against joint publishers carries significant practical weight in multi-defendant cases common in media litigation (e.g., involving author, editor, and publishing company) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). Pleadings, evidence, and jury directions must meticulously differentiate between defendants, as a finding of malice against one does not automatically defeat the defence for others who lacked the requisite improper state of mind (absent vicarious liability).
Summary Disposal
While malice is typically a question of fact best determined at trial after hearing all the evidence (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51), a defendant faced with a Reply pleading malice may consider a strike out application if the particulars pleaded are manifestly insufficient to support a finding of malice. However, courts are generally cautious about determining issues involving state of mind summarily (Spencer v Commonwealth of Australia (2010) 241 CLR 118).
7. Conclusion
Malice remains a crucial, albeit complex, concept in Western Australian defamation law. Defined by common law principles focusing on the defendant's dominant improper purpose at the time of publication, it serves as a vital control mechanism, ensuring that defences designed to protect freedom of expression and facilitate necessary communications are not abused. Proof of malice, which rests entirely with the plaintiff, can defeat the significant defences of statutory qualified privilege (s 30) and honest opinion (s 31), as well as their common law counterparts.
Establishing malice requires more than demonstrating error, carelessness, or strong language; it necessitates credible, substantial evidence, often circumstantial, pointing to a subjective state of mind involving knowledge of falsity, reckless indifference to the truth, or a dominant motive foreign to the purpose of the defence, such as personal spite or vindictiveness. The case law, including decisions like Horrocks v Lowe, Roberts v Bass, and the WA case Smith v Stevens, provides essential guidance on the types of conduct and evidence from which malice may be inferred.
For judges and practitioners in Western Australia, a thorough understanding of the common law definition of malice, its specific application under sections 30(4) and 31(4) of the Defamation Act 2005 (WA), the strict pleading requirements, the burden and standard of proof, and the nuances of directing juries on this issue is indispensable for the proper conduct and determination of defamation proceedings. Ultimately, the careful application of the principles surrounding malice helps maintain the delicate balance between protecting individual reputation and safeguarding freedom of speech within the state.