Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161

Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161 - VSCA 2003 case summary — Zoe

[26]

It is apparent from the authorities to which I have referred that the question whether a defamatory publication is published on an occasion of "extended" qualified privilege (on account of it being a discussion of political or government matters) will depend very much upon the nature of the published matter in question. It has been noted in some West Australian authorities that little guidance is to be derived from the High Court decision in Lange[12]. But, as I have stated, the nature of the protection which is given does not readily admit of discrete guidance. Each case will depend upon its own circumstances, and the limits of the freedom will be worked out on a case by case basis. However, as I have already said, I do not consider that a criticism of the performance of a magistrate in the management of an isolated proceeding in his or her court is a discussion of political or government matters in the sense that such discussion is necessary for the effective operation of representative and responsible government. Quite apart from the fact that - as Spigelman, C.J. pointed out (in a different context) in John Fairfax Pty. Ltd. v. Attorney-General (NSW)[13] - the conduct of courts "is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based", the conduct of individual judicial officers is carried out independently of the legislative and executive branches of government, and is not to be described, in my view, as an exercise of power at a government or administrative level. It can be conceded that judicial officers are "public figures" appointed, or recommended for appointment, by the executive branch of government. It can also be conceded that the executive branch of government has a strong interest in the due administration of justice. However those concessions, at least to my mind, do not carry with them the implication that a discussion about the discharge by a judicial officer of his or her function in a particular case is a discussion concerning political or government matters in the relevant sense. It is true that, when discharging their functions, judicial officers are performing a public role; one which is to be performed in the "public gaze" and, thus, open to public scrutiny and comment. It is also true that the discharge of functions by judicial officers in particular cases will attract comment by the media; some of it strongly critical of the judicial officer's handling and disposition of the case. However, that is not to say that such comment assumes the status of a communication concerning political or government matters which are relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects. Such comment and criticism could, in my view, have no impact or influence upon the choice of their representatives by the people of Australia.

[33]

No ground of appeal has raised the issue before this Court whether the judge was correct to have left the question of "reasonableness of conduct" to the jury. It appears to have been accepted by the parties at trial that the procedure adopted was appropriate. I agree with Gillard, A.J.A. that this Court should determine the matter on the basis of what occurred at the trial. However, I agree with his Honour that the evidence established beyond doubt that the conduct of the publishers - in failing to disclose the whole of the exchange between the respondent and the police prosecutor, thereby distorting the facts upon which defamatory comment was based - precluded a finding of reasonable conduct in the circumstances. It is the abridged publication of the exchange which lends colour to the meanings pleaded by the respondent; namely that she was engaged in presiding over a criminal prosecution of persons for arson; when in truth she was not. She was engaged in what is called a "contest mention" in which the relevant parties are drawn together to frankly exchange views in the hope and expectation that (inter alia) the future conduct of the matter might be shortened; and that ultimately the charges might bear some relationship to the criminality of the conduct of the alleged offending. There are, of course, limits to the extent to which publishers of a daily newspaper can devote space to items of news. However, in this case, it is difficult to avoid the conclusion that the author was publishing as much of the exchange as he thought was necessary to support the defamatory comments which he desired to make. If he had published the whole of the exchange, it would have destroyed the basis for the comment that the respondent was "bullying the prosecutor"; as well as making it clear that the respondent was not engaged in presiding over a prosecution for arson, which the jury must have found - on the directions given to them - was the meaning which the publication conveyed. But, at the same time, it would have undermined the entire thrust of the publisher's criticism of the respondent that she was bullying the prosecutor, pre-judging the issues, subverting the law, and acting improperly. On any view, the conduct of the journalist in this regard can only be described, at the very best, as slipshod. No independent evidence was led from the publisher. In my view, Gillard, A.J.A. is correct to conclude that the failure to properly reproduce the true context of the exchange between the respondent and the prosecutor leads to the conclusion that no reasonable jury, properly instructed, could have concluded that the conduct of the appellants in publishing the article was reasonable in the circumstances.

[367]

The learned trial judge decided that the article was dealing with political and government matters. At the outset, it is my opinion that the article does not refer to a political matter; the question is whether the article is disseminating information concerning a government matter? His Honour considered the article and formed the opinion that the article did discuss the behaviour of Ms Popovic whilst sitting as a magistrate in the court, and did contemplate or advocate her removal which is a matter at the initiation of the Attorney-General making application to the Supreme Court under s.11 of the Magistrates' Court Act 1989. Under that Act, a magistrate is appointed by the Governor-in-Council.[133] A magistrate ceases to hold office when he or she attains the age of 70 years.[134] The Governor-in-Council may suspend a magistrate from office but is only able to do so if the Supreme Court has on the application of the Attorney-General determined that there are one or other grounds established. Once that step is taken the Attorney-General must, as soon as practicable, apply to this court for determination as to whether there is proper cause existing for the removal of the magistrate from office and if this court so determines the Governor-in-Council may remove the magistrate from office. It is clear that the Attorney-General is the only person who can apply to this Court to seek a determination that a magistrate be suspended and it is only the Attorney-General who can apply to this Court for a determination that proper cause exists for the removal of the magistrate. No doubt the Attorney-General would be the moving party before the Governor-in-Council. His Honour was of the view that it was that connection between the magistrate's office and the government which led to the conclusion that any discussion advocating the removal of a magistrate was a government or political matter. Counsel for the defendants submitted that whilst his Honour's conclusion is correct, the scope and nature of matters which are included within the description are broader than his Honour recognised. Reference was made to the passage of McHugh, J. in Stephens, and observations made in the Theophanus case[135] per Mason, C.J., Toohey and Gaudron JJ,[136] and per Deane, J. and the judgment of Deane and Toohey, JJ. in the Wills case.[137]

[423]

"In this case the defendants have said effectively two things. They have said firstly that the article does not mean what the plaintiff says it means, and that is why you have got two sheets of paper about the question of meaning. If you've got to question 2 you will have already found that the article meant what the plaintiff says it means or substantially what the plaintiff says it means, because if you don't make that finding you will have answered question 1, no. Do you follow that? Let's go through that again. If you find the article is defamatory you will have done so because you will have found that the plaintiff's imputations, as we call them, what she says is what comes out of the article, what the article means, those three things which I read to you yesterday on the piece of paper that you have got, - you will have found that they are made out, that they are established, that you accept that that is what the article means, that it means one or more or all of them or something substantially the same as those and not more defamatory than those. You will have already found that, that is the answer to question 1. So when you get to question 2 you have got to take into account that here the defendants say the article means something else. Their meanings are different to the meanings pleaded by the plaintiff. The essential difference in most of them seems to be, but this is a matter for you ultimately, the plaintiff says that the defendants in the article said she was presiding over a criminal prosecution. [His Honour then stated what the defendants said it meant and that there were factual differences between the parties.] Now what the defendant [sic] has done is that it has sought to prove the truth of the meanings which it asserts. So to succeed on this claim of truth, firstly, you would have to be satisfied that the article means what the defendants say it means, or something substantially as to what the defendants say it means, then you would have to find that in those meanings, it was true. What does being true mean? What it means is that all statements of fact in the article are substantially true and all statements of opinion are substantially correct." (Emphasis added).

[456]

"In cases where the plaintiff selects words from the publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that within that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea. ... It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain. Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not entitled to regard it as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication. What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment. In all cases it is the duty of the court to see that the defendant, in particularising a plea of justification or fair comment, does not act oppressively. Whether the particularisation of the plea is oppressive depends not only on the facts of each case, but also on the attitude of the plaintiff. I say this because a plaintiff can limit the extent and cost of inquiry at trial by making timely admissions of fact." (Emphases added).

[572]

"The evidence tendered by Mr Sher may be fairly characterised as a claim by Mr Bolt and the Herald Sun that they had been successful in this proceeding, notwithstanding an acknowledgment that the case was not finished. Among other comments quoted in the media, Mr Bolt said: `The plaintiff is still going to challenge the jury's verdict on this so it is not over but it is a victory for free speech. I would like to thank the jury for standing up for it. I would like to thank the Herald Sun for having the courage to run my material. I would like to thank the Herald Sun for defending my rights to say what I do. I would like to thank my legal team and my wife'. And again: `You can defame someone, you can bring their reputation into challenge, if you do it accurately and with the right motives. My aim here was to raise genuine questions and express my genuine opinion about a matter of public interest involving a powerful public official.' The Herald Sun's article is headed `Verdict Backs Article'. It quoted Mr Bolt as claiming a victory for free speech and asserting that the plaintiff is going to `challenge' the jury's verdict. He thanked a number of people for supporting him as if the litigation had been concluded. Mr Bolt's comment in the Herald Sun article were a disingenuous attempt to put a `favourable spin' from their point of view, upon this litigation before it was concluded. Saying that the plaintiff was ` ... going to challenge the jury's verdict ... ` is lubricous. It is misleading. The plaintiff had always argued that all of the defendants' defences were bad as a matter of law or failed due to insufficiency of evidence. To suggest that she had to `challenge' the jury's verdict was to misrepresent the true position. To use the word `victory' whether in relation to free speech or otherwise, was also, in the circumstances, a misrepresentation of the true position. In asserting that `you can defame someone ... if you do it accurately and with the right motives' Mr Bolt misrepresented the answers to the questions which the jury actually gave. Those answers meant that Mr Bolt's article was defamatory, false, not fair comment on a matter of public interest and not a faithful and accurate report of what occurred in Ms Popovic's court on 30 November 2000. His article about Ms Popovic was not accurate, whatever might have been his motives."

[671]

"In England and in Victoria, the Rules of Court created subsequent to the respective Judicature Acts established procedural requirements, the failure to follow which automatically produced a trial by judge alone. Even the Common Law Procedure Act 1854 of the U.K. modified any assumed right to a jury by making it unavailable in actions on an account. Therefore it may be more correct to say that the parties to a civil proceeding have long had a right to jury, as modified by Rules of Court. The first rules concerning modes of trial in Victoria are to be found in the Second Schedule to the 1883 Judicature Act (47 Vict. 761). The following year, there were established the Rules of the Supreme Court in civil proceedings, the genesis of the rules of this court which prevailed, with modifications, until their substantial re-formulation in 1986. An examination of the rules, including their amendments in 1906 and 1930, is not necessary for the present purpose. Like the English Rules, which doubtless were their model, their form was such, and so remained, that the normal mode of trial was a trial by a judge without a jury. However, a right was conferred on the parties to obtain a jury if certain procedures were followed in certain circumstances. The observations of Lopes L.J. in Jenkins v. Bushby [1891] 1 Ch. 484 with respect to the English Rules are apposite to the Victorian Rules: It appears to me that the Rules from 2-7 of Order XXXVI form a code of regulations as to the mode of trial. The effect of them is this. They make a trial by a judge without a jury the normal mode of trial. They do not take away the right of trial by jury where it existed before or give it where it did not previously exist. That appears to me to be the general effect of those rules. They do, however, make this change, that where it is desired the trial should be by a judge with a jury, this mode of trial must be asked for. That is a great and important change, because previous to the Judicature Act all Common Law actions were tried with a jury and they could not be tried by a judge without a jury unless the parties consented."

[675]

"However, as I have indicated, the history of the dispensing power, previously found in O. 36 r. 5, tends against this construction. Since 1883 it has been the position that the primary mode of a trial is trial by a judge or judges without a jury, although, if certain other rules are complied with, and in specific circumstances, a jury might be obtained. In those circumstances, and having regard to the former O. 36 read as a whole, it is my view that the construction to be preferred is that the 1986 Rules conferred upon the court, or a judge of it, a power to dispense with, or discharge, a jury if such circumstances occurred which led to the formation of an opinion that the necessary inquiry could not be made conveniently with a jury. It would, in my judgment, be appropriate to conclude that the judges, who formulated the rules, and the Parliament, which sanctioned them as an act of the Parliament, intended the powers conferred to be wider and less circumscribed than the former rules in O. 36, and that the power and discretion to direct a trial without a jury be unfettered. I have already referred to the position in this State that the power conferred on a court or a judge under O. 36 r. 5 carried with it the power to discharge an empanelled jury, and dispense with it in aid of the power. It would be an absurd construction to conclude that there was power in the court to direct a trial without a jury prior to the commencement of the trial, when a court would not be as nearly well armed with the knowledge of the scientific sphere of debate or the full range of the accounts or the complexities of the documents as it would when those matters were developed at trial, but not during the trial itself. It may well be, and indeed it is the position, that the former rule in terms of its application has been narrowly construed, but in my judgment it encapsulated the power. The power to discharge was, therefore, already established in Victoria. But whatever the precise meaning of all of the rules that preceded the 1986 Rules, the form of r. 47.02(3) creates the power and invests the judge with discretion to direct a trial without a jury if he forms the opinion that in all the circumstances it should not be tried before a jury. Rule 47.02(1) establishes the right to a jury if the procedural requirements are followed. Clearly, however, the manner of expression of r. 47.02(3) was designed to excise and dispense with the old rules, with all their alterations, increments and complications, by investing the court with the broadest possible and unfettered discretion to direct trial without a jury if it formed the opinion that it should not be tried with a jury. In so doing, it enlarged both the power and the discretion. The breadth of language of O. 47.02(3), coupled with the self-evident departure from the intricacies and elaborations of both the English Rules and the former Victorian Rules, reinforces the construction that the intended power and discretion is wide enough to dispense with a jury both before trial and during trial after discharge."

[693]

"Because the Constitution requires `the people' to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government, the common law rules concerning privileged communications, as understood before the decision in Theophanous, had reached the point where they failed to meet that requirement. However, the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh J referred. The common law rules of qualified privilege will then properly reflect the requirements of ss.7, 24, 64, 128 and related sections of the Constitution. Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government. Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments."

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