If you have ever wondered whether you can defame someone in response to earlier defamatory comments made about you in a public forum – the answer is a lesser-known species of common law qualified privilege known as “reply to attack”. It is not in the States' and Territories' Uniform Defamation Laws, but remains available at common law as a complete defence, in the right circumstances, to a defamation claim.
This article discusses the basic principles of the reply to attack defence, and illustrates, through a recent case successfully invoking it, how those principles operate (Gould v Jordan (No 2)  FCA 1289; Clayton Utz represented the respondent).
When you can reply to an attack: the principles
In short, if your character or conduct is attacked, you are entitled to respond to that attack. While responding to that attack, any defamatory statements you make will be privileged – and you will not be liable for them. However, to be privileged, those defamatory statements must be bona fide and relevant to the accusations made against you. Your response cannot exceed the purpose for which the privilege exists. This is because the defence is an exceptional case where the common law recognises a defendant may have an interest or duty to publish defamatory statements to the general public.
To establish an occasion of privilege as a reply to an attack:
- there must be an "attack": something calling into question the respondent's integrity, good faith or reputation;
- the attack need not have been made by the aggrieved person:
- attacks ostensibly in another's name but authorised by the aggrieved person, or attacks in which the aggrieved person was complicit, may suffice; and
- the privilege will protect statements defamatory of an aggrieved person who is not the attacker if those statements were a reasonable part of the defence to the attack;
- the reply need not be made by the person attacked;
- the reply must objectively be "commensurate with", "relevant to" and "sufficiently connected with" the attack, and must genuinely be for the purposes of vindication – mere retaliation, which is not an answer or explanation, is not protected by the privilege;
- timing is relevant, as a significant time lapse between the attack and reply may tell against the genuineness of a claim to privilege, and may lead to the reply being characterised as a retaliation.
Being a form of qualified privilege, the defence will fail if the aggrieved person proves malice by the respondent: that is that in making the comments, the publisher was motivated by some kind of improper or ulterior purpose not connected to the privilege.
The principles in action: Gould v Jordan (No 2)  FCA 1289
Mr Gould brought defamation proceedings against Mr Jordan for an answer Mr Jordan gave to a journalist's question at the conclusion of an address to the National Press Club in July 2017. The journalist referred to "people calling the Tax Office names" and asked if Mr Jordan could "clear up" whether Mr Paul Hogan paid a settlement to the tax office. Mr Jordan's response to the journalist incorporated a reference to a specific court case – the "Hua Wang Bank case". This was a reference to Federal Court litigation which ultimately went to the High Court (Bywater Investments Ltd v Commissioner of Taxation  HCA 45, or the HWB Litigation). Mr Jordan said:
“[the case] 'involved one promoter with over $350 million dollars we've collected. They formed this Samoan bank and did all these transactions to hide profits. And you have the principal of the scheme appearing before the House of Reps…saying how difficult and awful and (sic) the Tax Office. You had his barrister appearing on one of the major radio stations in Sydney saying we are like the Gestapo, the whole lot should be sacked and sent out and the Federal Court says that it was the most disgraceful behaviour they'd ever seen, they referred the matter for money-laundering, insider trading and tax evasion of the worst kind…confirmed by the Full Federal Court, confirmed by the High Court…so they are actually going to have the gall to appear before an inquiry to say how bad we are in terms of the way we handle disputes. The other side is the court found that it was the most disgraceful behaviour they’ve ever seen involving money-laundering, tax fraud and insider trading of Australian shares. So you know, sometimes there’s two sides to a story and I can't always tell the other side." (matter complained of).”
Mr Gould sued Mr Jordan for defamation, arguing that Mr Jordan's remarks conveyed to the ordinary reasonable listener that he had engaged in the worst kind of money laundering, insider trading and tax fraud. Mr Gould argued that his character and reputation was gravely injured by the matter complained of.
The Court ordered that certain questions in Mr Gould's litigation be heard and determined first. One of those questions was whether Mr Jordan could establish the defence of qualified privilege (reply to attack), which would be a complete defence to Mr Gould's claim. The answer was yes.
Mr Jordan successfully argued that the following statements constituted attacks on the ATO:
- statements made by Mr Gould in 2014 before the House of Representatives Standing Committee on Tax and Revenue (Standing Committee Attack); and
- two statements made by Mr Gould's counsel in part of the HWB Litigation (one in an online edition of the Sydney Morning Herald in 2013 in which Mr Gould's counsel likened the ATO to a "Gestapo Unit", and another in an interview with Alan Jones which was broadcast on the Alan Jones Breakfast show in 2014 (Media Attacks)),
(and collectively, the attacks).
Did Mr Gould make or authorise the attacks?
Mr Gould was obviously responsible for the Standing Committee Attack, as he made the comments. Whether he was also responsible for the Media Attacks (made by his barrister) was less clear. Ultimately, the Court decided that did not matter, because of the principle in Loveday v Sun Newspapers. As referenced earlier, that principle is that if A attacks B and, to defend themselves, B reasonably publishes matter defamatory of C who was not a party to the attack, B's privilege will still protect them against C. In those circumstances, it is unnecessary for B to show that C authorised or was complicit in the attacks made by A.
Mr Jordan as responder to the attacks
The attacks amounted to significant criticism of the operations of the ATO and some of its officers, but did not name Mr Jordan personally. However, a reply to an attack need not be made by the person attacked. The Court held Mr Jordan had a right and interest to respond to the attacks as the senior taxation officer with responsibility for the administration of taxation legislation, who also had an interest in maintaining public confidence in that system.
The time between the attack and the reply
A significant issue was the period of time between the attacks and the matter complained of. The Standing Committee Attack occurred in August 2014, and the Media Attacks in October 2013 and June 2014. Mr Jordan published the matter complained of in July 2017, so some years had passed between the attacks and the response. Generally, the longer the time since an attack, the more likely a response will be treated as a retaliation, and the defence unsuccessful. However, the Court considered that it was objectively understandable that Mr Jordan did not respond until after the HWB Litigation was finalised, it being a matter of ordinary prudence to await the conclusion of litigation before commenting publicly about it. As the HWB Litigation did not conclude until November 2016, it was reasonable for Mr Jordan to wait until his address at the National Press Club to respond to the attacks.
Was the response a “reply” to the attacks?
Mr Gould submitted that the matter complained of was not a reply to the attacks, because the subject matter of the attacks and the response were different, Mr Jordan did not name Mr Gould or his barrister, and the matter complained of occurred as 'happenstance' as it was an answer to a question rather than a constructed reply. The Court rejected Mr Gould's submission, on the basis that:
- a response may be sufficiently connected to an attack so as to be subject to qualified privilege if it is sufficiently connected with either the content of the attack, the credibility of the attack, or the credibility of the attack; and
- a reply did not need to take any particular form.
Consequently, his Honour had no difficulty in characterising Mr Jordan's response as a reply to an attack.
Was the response commensurate with the attacks?
The Court described Mr Jordan's description of Mr Gould's conduct as found in the HWB Litigation as robust. However, as the criticisms to which he was responding were at least as robust, if not more so, Mr Jordan's response was commensurate with the attacks. His Honour's conclusion was not hindered by the fact that the audiences which respectively heard the attacks and the response (which was, by inference, large, as the National Press Club address was also broadcast on ABC Radio and television) were not the same. That was due to the liberal view of what amounts to an "interest" in the recipients of a response to an attack.
Finally, the Court determined that Mr Gould's plea of malice was not made out. The Court reasoned that if Mr Jordan had been actuated by malice, he would likely have responded much earlier and been much more expansive in his comments. Instead, he had acted with some restraint.