"Stephens", of course, refers to Stephens v West Australian Newspapers Ltd (1993) 182 CLR 211.
269 Warren AJA, as her Honour then was, said at p 104 [504] with respect to Lange:
" … As I discern the statement there is no expression, directly or indirectly, that indicates an intention to extend the privilege to the judiciary. Some members of the High Court before Lange indicated in obiter a view that the implied constitutional freedom might extend to the judiciary. The judgment in Lange emphatically declared the principle of extended qualified privilege and its context. Indeed, throughout the judgment in Lange, the court repeatedly refers to government, the legislature and the executive in a political, that is electoral and parliamentary sense. The judgment does not appear to contemplate application of the privilege to the judiciary."
270 At p 105 [507] Warren AJA mentioned other reasons for treating the judiciary differently from the legislature and Executive and said:
" … For my part, I would be most hesitant to view the defence of qualified privilege as extended to applying to the judiciary. On the basis of political theory and constitutional principle I would reject its inclusion."
271 The cases before Lange referred to by her Honour were Nationwide News Ltd v Wills (1992) 177 CLR 1 at 74 per Deane and Toohey JJ; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 179-182 per Deane J and Cunliffe v The Commonwealth (1994) 182 CLR 272 at 298 per Mason CJ.
272 In Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398 at 425; (2002) Aust Torts Rep 81-685 at [162], Higgins J expressed the view, obiter, that the conduct of judicial officers in the performance of their judicial duties "may well qualify" the Lange type qualified privilege. However, the only authority mentioned by his Honour for this obiter comment was Mann v O'Neill (1997) 191 CLR 204 which, with respect, has little to do with the matter.
273 As mentioned earlier, in John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 709 Spigelman CJ with whom Priestley JA agreed on this point as well as generally, said at [83], with respect to the argument that conduct of the judiciary fell within Lange-like principles:
" … The inclusion of courts and judges in the scope of the subject matter with respect to which the public as a whole can be identified to have an interest, for the purposes of applying the traditional rules of reciprocity in the context of qualified privilege for a defamatory statement, is not coextensive with the constitutional protection of freedom of communication. That protection, as Lange made clear, is an implication to be derived from the text and structure of the Constitution in so far as it makes provision for representative government. 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."
274 The learned Chief Justice noted that if one took this submission to its logical extreme there would be virtually no subject that was not of a "governmental or political character".
275 At p 210 [87] the Chief Justice noted that at least where the publication concerned the accountability to the electorate and the responsibility of members of the executive, the constitutional flavour of Lange is focussed on the Federal sphere, not the State sphere.
276 Doyle CJ in Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at 70 [11] agreed with this limitation to Federal matters. His Honour also said at [15] "… the fact that the publication refers to the Federal Court and to court orders is not of itself enough to attract the constitutional protection … ".
277 In the same case, Besanko J said at p 128 [295], a passage with which Doyle CJ agreed:
" … I do not think that comments about the courts and the orders they make is a government or political matter. The publication is to an extent about freedom of speech. As important as that topic is in our community, it seems to me it is not a government or political matter unless it is raised in the context of conduct by the executive or legislative branch of government … ."
278 In Peek v Channel Seven Adelaide Pty Ltd [2004] SASC 425, Gray J had to deal with the Lange principle in the context of publicity about a lawyer's involvement with a former magistrate.
279 Gray J quoted from Winneke ACJ in Popovic [9] (p 10) at p 27 of the transcript judgment:
"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."
280 His Honour went on to say that there were conceivably some situations where discussion about a judicial officer could be a government or political matter, but he could not see how an opinion piece about how a particular judicial officer has handled particular court proceedings could so qualify.
281 I might complete this survey of relevant authorities by noting that in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 331 Callinan J reiterated the point that the Fathers of the Constitution deliberately refrained from including in our constitution a comparable provision to the First Amendment to the United States constitution. This was not a new point, see eg Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106 especially per McHugh J at 228-9. For balance I need to note also Callinan J's statement, with which Kirby J vigorously disagreed; see page 280. However, it gives me the flavour of the Lange defence having got to the stage of "this far and no further."
282 Accordingly, what authority there is on Mr Walker's proposition tells against it.
283 Mr Walker challenges this conclusion. He puts that Chapman is a case which really has no relation to the present case. He says that, whilst at first blush, this Court could be forgiven for thinking that the cases to which I have otherwise referred suggested that anything short of a call for a joint address by both Houses of parliament to dismiss a judge fell outside Lange, that would not be a proper reading of that material.
284 The sense of Lange, Mr Walker submits, is the freedom to publish information about public representatives and officials and, in this connection, judges fall within the class designated "public officials".
285 He submits that this leads to the adoption of a rule that a publication about a judicial officer should be classed as unreasonable and hence actionable only if it amounted to a contempt. This would be in accordance with policy that it is not in the public interest that judges be able to sue for defamation for their personal benefit when the quality of their wisdom or fairness is impeached. He notes that even as long ago as 1880, Martin CJ in Re The Evening News (1880) 1 LR (NSW) (L) 211 at 238 noted that there was a public interest in the court itself dealing with contempt and intellectually shuddered at the thought that "Judges are to bring actions for libels published on them individually."
286 He developed this by saying that qualified privilege is actually aimed at protecting social characteristics deemed important by the law's approach to the way in which society is structured. Lange recognised that representative parliaments meant that individuals should be deprived of what would otherwise be a right to personal damages for defamation in the public interest. Likewise, precisely the same social interests which inform the law of scandalising contempt of court transfer holus-bolus to what ought to be the common law of qualified privilege in relation to judicial performance.
287 Although there is, as always with Mr Walker's submissions, some very sound wisdom, it seems to me that the analysis of the trend of authority which I have noted above is to be preferred.
288 Mr McClintock presented, in his oral submissions, what he termed "six difficulties" with the extension sought by the appellant. The first of these difficulties involved defining what exactly was the extension sought, or otherwise put "what is it that is the subject matter of the communication that it is said this defence is to extend to".
289 The second difficulty was, as Mr McClintock stated in his oral submissions, that the defence was unnecessary. He explained that generally newspapers have four defences available. "They can rely upon truth, they can rely upon reasonableness, they can rely upon expressions of opinion if their facts are accurate and they can rely upon the fact that they accurately reported matters. In circumstances such as that there is simply no room or simply no need for the extension my friend seeks."
290 Mr McClintock recognised that his arguments were based upon the reasoning in Popovic who submitted that "the rejection of the application to judicial officers there, we would say, by parity of reasoning applies to the extension sought here".
291 Further Mr McClintock referred to the "striking degree of ignorance" in the reporting by newspapers of court cases and judgments and said that he feared to allow the extension of the principle in Lange in the way sought by the appellant "would be a licence for irresponsible journalism". This came under what he termed his third difficulty or reason for being adverse to the extension sought by the appellant by reason of it being "positively detrimental to our social system".
292 The fourth difficulty raised by Mr McClintock was as he put it, that "the consequence of what my friend has said would be that the law would be more protective of the reputations of politicians than it would be of judges or those holding judicial office". He submitted that "incongruity shows how unlikely it would be that the Court would imply a defence in those circumstances".
293 The fifth difficulty raised by Mr McClintock refers to the fact that "there is simply no connection between contempt in the sense of scandalising the court and defamation. They serve completely different interests and the interest in defamation is the protection of the reputation of the people in question. The interest served in contempt cases of all sorts - except those involving breaches of orders and so on - is the protection of the sanctity of the judicial system so that the public faith in it is maintained against unjustifiable attacks".
294 The final difficulty expressed by Mr McClintock with the proposition voiced by Mr Walker is a claim that he is "in fact re-inventing the wheel but he is inventing it without a spoke that was put in that wheel when it was invented in the middle of the nineteenth century".
295 Both in the appellant's reply and in the oral submissions presented to the Court, Mr McClintock sought to distinguish the circumstances of the publication in Popovic to those in this case. Whilst in Popovic, evidence had been given by the journalist that he did not intend to convey the imputation and did not believe it to be true, Mr McClintock distinguishes the present scenario in which Ms Albrechtsen "gave uncontested evidence to the effect that she intended to convey each of the imputations and honestly believed in them" (para 12 of the appellant's reply). He argued that to determine the issue of reasonableness in this case in the same way as Popovic would therefore be wrong.
296 The learned trial judge said of the submissions that were made to him on the present point [194]:
"These submissions cast the net of what constitutes government and political matters widely and so widely that they are not consistent with the observations of Spigelman CJ in John Fairfax Publications … ."
297 He then went on to consider concepts of reasonableness.
298 I do not need to deal in detail with all that Mr McClintock has put. I am persuaded, however, by the general thrust of his submissions against following the philosophy so elegantly put to the Court by Mr Walker.
299 I should, however, deal with one particular matter and that is the submissions made by Mr Walker on the relation to defamation of judicial officers and the offences of contempt of court or scandalising the court on the one hand, and Mr McClintock's fifth difficulty summarised above.
300 There is a very fine line to be walked in this type of case. Justice must be done in the courts openly. The fact that the door of the courtroom is left open, is nowadays mostly symbolic of this policy. Practically speaking the way in which the ordinary citizen will be informed of what is happening in the courts is by press reports.
301 This means that considerable latitude should be given to reports of and about what is happening in courts and tribunals.
302 However, if the reports are too negative too often, the effect will be not that the public is informed, but that they will (probably unjustifiably) lose confidence in the legal system. Once public confidence goes, disputes will again be decided by the "Might is Right" philosophy and thus decided by reference to the party with the greater economic power or the best fighter behind the hotel.
303 Thus, Mr Walker's dichotomy with comment on the legal system on the one hand and scandalising the court on the other, seems to me to be, with respect, a classic case of the logical fallacy of excluding the middle. The middle in this case being comment which injures the reputation of a court or judicial officer which does not gain protection by the "ordinary" defences to defamation, yet is not so serious as to amount to scandalising the court.
304 Despite the attractive way in which Mr Walker presented the argument, I consider that the recent trend of authority indicates that Lange is probably the high water mark. I can see no reason for extending the scope of the Lange principle by analogy to the High Court's reasoning or otherwise.
305 Indeed, over all, the submissions put up by Mr Walker on this aspect of the case did not impress me. Whilst I would be one of the first to agree that the law must develop to meet the changing needs of society, a development, not squarely based on authority, which advances the interests of one section of society must be approached with great caution.
306 To some slight extent I feel as if I had not done justice to Mr Walker's argument in my summary discussion of it. However, the basis for the argument is very slender on the authorities, the argument depends a lot on philosophy and it is one that either one accepts or rejects.
307 I have rejected the philosophy because in accordance with what was said in argument and in particular what Spigelman CJ said in the John Fairfax Publications case, there is a vast difference between the sort of matter that was discussed in the current article and the material that was considered by the High Court in Lange.
308 Before leaving this point, I should mention that there was some discussion as to the place of reasonableness where the Lange principle or the supposed "Lange extended" operates. It is not necessary to deal with this point in view of what I have recently said, but I should note that in my view, reasonableness applies in much the same way as it applies to a defence of qualified privilege under s 22 of the Act. I would adopt what Dr Kenyon says in "Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice" (2004) 28 (2) MULR 406 at 418-9 that overall, reasonableness in Lange tracks reasonableness under s 22 of the Act.
309 4. Miscellaneous Matters on Liability. The only matter remaining for discussion before I pass to questions of quantum is the matter raised in the eighth ground of appeal, that is, that the respondent's alleged failure to take up the defendant's offer to reply was not a failure by the plaintiff to mitigate her damage.
310 The evidence showed that the appellant had offered the respondent the opportunity to reply to the article by way of a "suitable item on the Opinion page or an appropriate letter to the Editor." This offer was not taken up by the respondent.
311 The appellant argued before the trial judge that this conduct constituted a failure to mitigate her damage, a submission which the trial judge rejected without giving any reasons.
312 The appellant submits that in this the judge erred and cited Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 603, per Byrne J.
313 However, all that Byrne J said in that case was that the submission that the refusal to take up an offer of a reply might result in a failure to mitigate damages was not utterly futile despite two South Australian cases (Dawes v News Ltd [1935] SASR 312 at 319-320 and McRae v South Australian Telecasters Ltd (1976) 14 SASR 162 at 167) pointing in the other direction.
314 Even if one were to follow Byrne J's view, the matter is clearly one of fact to be evaluated in the factual context of each case. There is nothing indicated in the submissions that this matter was a material factor here, especially in view of the appellant's continued affirmation of the need to let the public know the threat the respondent posed to society without apology.
315 Accordingly, this ground fails.
316 5. Quantum of Damages. In the light of this Court's views on the defence of comment succeeding with respect to various imputations, it will be necessary for there to be a reassessment of damages.
317 Just how this assessment should be performed could be a matter of debate and I agree that in the first instance we should receive written submissions on this matter.
318 I should note that some matters of principle as to the assessment of damages such as the significance of s 46A of the Act and the evaluation of what the High Court said about that section in Rogers v Nationwide News (2003) 216 CLR 327 have already been the subject of detailed submissions and, if this court were to be asked to reassess damages, I would not wish to hear or read a repeat of those submissions.
319 6. Costs. In the light of our decision, it is not possible to deal with the proper order that should be made as to costs both below and on appeal. Counsel may care to include submissions on this matter as to costs if they wish this court to reassess damages or if they agree that the reassessment should be made elsewhere or a new trial ordered.
320 I agree with Giles JA that the parties should provide written submissions as to their preferences in this regard. Of course, if they agree on procedure, and/or on quantum and/or on the proper order for costs, a simple note to that effect will suffice.
321 7. The Result of the Appeal. Accordingly, I would propose the following orders: