Herald & Weekly Times Ltd & Anor v Popovic

[2004] HCATrans 180

[2004] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M301 of 2003

B e t w e e n -

THE HERALD & WEEKLY TIMES LTD

First Applicant

ANDREW BOLT

Second Applicant

and

JELENA POPOVIC

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 9.34 AM

Copyright in the High Court of Australia

MR A.C. ARCHIBALD, QC:   May it please the Court, I appear with my learned friend, MR W.T. HOUGHTON, QC, for the applicants.  (instructed by Corrs Chambers Westgarth)

MR J.L. SHER, QC:   May it please the Court, I appear with my learned friend, MR L.W. MAHER, for the respondent.  (instructed by Howie & Maher)

GUMMOW J:   Yes, Mr Archibald.

MR ARCHIBALD:   In Roberts v Bass Justice Callinan rightly, in our submission, said that it would take years of uncertainty and diverse opinion for the Court to reach a settled view of the elements of the Lange defence and the way in which it is to be applied.  In our contention the present case well exemplifies those problems, and in particular the way in which the problems arise at first instance in the intermediate courts of appeal for on the issue as to whether discussion of fitness for office of members of the judiciary or the magistracy constituted discussion of government or political matters, the members of the court reached dramatically different conclusions.

The trial judge concluded on a narrow basis that such discussion did fall within the ambit of government/political matter.  Justice Gillard, sitting in the Court of Appeal, the same affirmative conclusion, but on a broader basis, although provisional.  The present Chief Justice of that court included on a very broad basis that such discussion did not constitute discussion of a government/political matter.  Indeed, her Honour concluded in substance that the judiciary were exempt as a matter of political theory and constitutional principle, and her Honour considered Montesquieu and Aristotle and so on.

GUMMOW J:   We have read that.

MR ARCHIBALD:   Yes.  And Cook.  And the President similarly reached the negative view although on a narrower base.  So within the confines of this litigation, there is considerable diversity.  Since the decision was given by the court, Mr Justice Smart in the Supreme Court of New South Wales in O’Shane had adopted the same view as the trial judge in this matter, reaching what I will call the affirmative but narrow conclusion, and in a later decision of the Court of Appeal of the Supreme Court of Victoria in Hoser, a copy of which we could provide to the Court if it was desired, the court concluded that there was a real question as to whether such discussion fell within the ambit of government and political matters.  So that even in the Court of Appeal in the Supreme Court of Victoria the matter seems to be approached on the footing that the issue is not settled.

GUMMOW J:   You say on 226 there are four special leave points.

MR ARCHIBALD:   Yes.  I do not know that we would present in the forefront the fourth question as to the practical issue as to whether reasonableness is a matter for the judge or the jury.

GUMMOW J:   You probably will.

MR ARCHIBALD:   Well, only because it was not a ground before the court by either of the parties, either the appellant or the cross-appellant.  It was a matter raised by the court, and although the court reached a view, which we submit is wrong and is of major practical importance, particularly for first instance courts, it did not dictate directly the outcome of the appeal.

HAYNE J:   Are you addressing whether it is a matter for the judge or the jury, or are you ‑ ‑ ‑

MR ARCHIBALD:   Yes.

HAYNE J:   The fourth point was the decision on reasonableness.

MR ARCHIBALD:   Sorry, in various places they are dealt with in different orders.  Now, I was speaking of the issue as to whether the question of reasonableness should be addressed, or dealt with, by the judge or by the jury.

HAYNE J:   The point said against you that the knockout blow is the decision on reasonableness.

MR ARCHIBALD:   Yes, not a knockout blow, in our submission, or erroneously perceived as a knockout blow, but certainly not, and the way in which it was dealt with by the court does reflect manifest injustice.  What had happened, of course, was that the defendants had secured a favourable verdict on reasonableness at trial.  The trial judge then took that verdict away from the defendants by reason of the circumstance that his Honour identified elements of reasonableness which, in his Honour’s view, precluded the jury reaching that conclusion.

In the Court of Appeal both of those elements were said to be erroneous on the part of the trial judge.  What was then done was for the Court of Appeal to identify a matter, even if open on the issues before the court, not agitated by the parties.  What Justice Gillard did in his Honour’s reasons was to fasten upon the ingredients of the publication, and upon the publication only in our contention, and ignored the elements of conduct which reflected whether or not the defendants had, in fact, acted in a reasonable fashion in the circumstances.

HAYNE J:   Now, where do I find that?

MR ARCHIBALD:   What his Honour did at paragraph 228, at page 123, was to expression the conclusion that:

no jury could, in light of the distortion of the facts, come to the conclusion that the making of the publication was reasonable in the circumstances.  The facts were not in dispute.

From the antecedent paragraphs, paragraphs 221 and following, the Court can see that what his Honour did was fasten upon the incompleteness of the publication in the article of the transcript of what occurred in the court.  So his Honour fastened upon the question whether the portion of the transcript published was an accurate reflex of what had, in fact, occurred.  That is what led his Honour to say at paragraph 228 that, “The facts were not in dispute”.  Of course, it was not in dispute that the article did not contain a complete transcription of what occurred, of what was recorded to have occurred, before the magistrate.  But that was the only fact that was not in dispute.

Whether the circumstances that led to the publication of the incomplete transcript were circumstances which reflected reasonableness or unreasonableness, were hotly in dispute under the subject of extensive evidence and extensive cross‑examination.  His Honour treated the fact of incompleteness – what his Honour called “distortion” – as the end of the inquiry.  In our submission, it was the beginning of the inquiry, for there can be distortion that is attributable to reasonable conduct, or distortion that is attributable to unreasonable conduct.  An example of the former might be some printer’s error.  An example of the latter might be, in an extreme case, deliberateness.  But his Honour fastened upon the fact of distortion and went no further.

Now, in relation to the question of the circumstances in which the distortion came about, the respondent to this application in the submissions puts the matter on the footing that there was deliberateness; deliberateness of distortion.  One sees that at paragraph 32, page 244 of the application book.    That is really what would need to be established in order that one could say that distortion had attributes of selectivity in order that the conduct might be seen as unreasonable.

Now, the question of deliberateness, or selectivity, squarely raises this question of the state of mind of the defendants in the publication; how it was that the incompleteness of publication of the transcript came about; what the circumstances were.  Lange commands consideration of all of the circumstances.

On the question of state of mind, why it was and how it was that the defendants came to publish the material in the form in which they did, there was explicit evidence which Justice Gillard himself concluded was fit to go to the jury.  One sees that clearly, in our contention, from paragraph 210 of his Honour’s reasons at page 118 of the application book.  At line 2 his Honour said:

There was evidence directed to Mr Bolt’s belief in relation to the article.  He gave evidence that he believed the article to be truthful and that it expressed his honest beliefs.

We would interpolate, ie, not selective and not deliberately distorting the circumstances.  Paragraph 211 his Honour said:

In my opinion, the learned trial judge was wrong in concluding that there was no evidence upon which the jury could properly find for the defendants –

and in paragraph 212, line 13 –

The jury had to decide whether or not the article imputed that Ms Popovic’s conduct warranted her removal from office.  The jury had to decide what was Mr Bolt’s’ state of mind in relation to the issue of removal from office, and whether his conduct in the circumstances was reasonable.  The jury would decide whether his state of mind had to go as far as believing in every imputation that was conveyed by the article or whether his state of mind would have reasonable if he honestly believed what he understood was conveyed by the article.  They were all questions for the jury.  There was evidence to go to the jury on the issue.

Those circumstances are really the like circumstances as are central to his Honour’s proposition about distortion and whether the distortion can be seen to be reasonable in the circumstances.

So that we submit that what his Honour said in the series of paragraphs concluding at 228, is really contradicted by what his Honour said on the topic of the state of mind, which the learned trial judge had fastened upon at 210 to 212.  Further, in our submission, a conclusion of the kind that Justice Gillard reached, and which is avowedly advanced by the respondent about deliberateness, must be inconsistent with the jury’s conclusion on malice for the topic of malice was put to the jury.  The jury made a finding favourable to the defendants on that, and that answer given by the jury was not challenged in the Court of Appeal, nor here.

So that what one has is an analysis of Justice Gillard, supported by the other members of the Court of Appeal, predicated on what is effectively deliberate conduct, endorsed by the respondent’s contentions as being a case of deliberateness, yet deliberateness being necessarily equivalent to malice, or reflecting necessary ingredients of malice, is inconsistent with an unchallenged answer given by the jury.

GUMMOW J:   Thank you, Mr Archibald.  If you could just look at these other grounds, looking at page 226.  We need to be clear about this.

MR ARCHIBALD:   Yes.

GUMMOW J:   Just look at point 2, if you would.  That seems to me to be an application for leave to reopen Lange.

MR ARCHIBALD:   Yes, it is.

GUMMOW J:   Grounds 1 and 3 appear to be in a somewhat different character.  They are questions of elucidation rather than reopening.

MR ARCHIBALD:   Yes.

GUMMOW J:   Do you agree with that classification?

MR ARCHIBALD:   Well, yes – and question 3 is the judge or jury point, which really ‑ ‑ ‑

GUMMOW J:   That is right, yes.

MR ARCHIBALD:    ‑ ‑ ‑ is not directly addressed at all by Lange but is raised by the ‑ ‑ ‑

GUMMOW J:   And will differ from State to State.

MR ARCHIBALD:   Yes, likely so.

GUMMOW J:   In New South Wales, for example, they no longer have the Fox’s Libel Act.  It has been ‑ ‑ ‑

MR ARCHIBALD:   Yes, so 4 is the manifest injustice point I have just been addressing.

GUMMOW J:   Yes, that is right.  Now, let us focus on 2 for a minute.  What would you put in the place of this extinguished Lange?

MR ARCHIBALD:   Nothing.  In other words, we say that the ground rule ‑ ‑ ‑

GUMMOW J:   You are left then with a contracted form of qualified privilege, are you not?

MR ARCHIBALD:   What one has is such a form, malice remains, and one then has in the sphere of government and political matter, a test which is ‑ ‑ ‑

GUMMOW J:   Yes, but I am thinking about reciprocity of interest, which was broadened in Lange, to your advantage.

MR ARCHIBALD:   Yes, and that element remains ‑ ‑ ‑

GUMMOW J:   You want the benefit but not the burden?

MR ARCHIBALD:   Well, the whole thesis of ‑ ‑ ‑

GUMMOW J:   Your client’s point of view.

MR ARCHIBALD:   Well, of the reasoning of the Court in Lange, in our submission, is to unburden discussion on government and political matters and the – what we submit is an illogical addition, superaddition, of the reasonableness in reading Acts as a fetter, certainly in practice.  This case demonstrates it.  O’Shane demonstrates it, and some of the other litigation in the State courts does.

GUMMOW J:   All I am asking you to bear in mind is that you may – if you take the lid off you may end up with a constitutionalised situation, which is even less favourable to you.

MR ARCHIBALD:   What we seek to do is ‑ ‑ ‑

GUMMOW J:   Some other proposition that would be put against, and so forth.

MR ARCHIBALD:   We recognise there are a variety of propositions that can be put yes, your Honour.

GUMMOW J:   Yes, all right.

HAYNE J:   Where do we find which ground reflects special leave question 2 – ground 3, page 224?

MR ARCHIBALD:   Page 224 yes, your Honour, so that of the grounds, ground 2 is special leave ground 1.

GUMMOW J:   Let us just be clear about this.  Looking through the draft notice of appeal, which grounds in the draft notice of appeal – do not worry about the sign – which grounds in your notice of appeal reflect special leave question 2, at 226 – the one we have just been talking about.

MR ARCHIBALD:   Ground 3.

HAYNE J:   That presupposes that Lange, I would have thought, is alive and well.  If you are going to ‑ ‑ ‑

GUMMOW J:   It seems to me it does not – the notice of appeal does not really face up to it, which is why I have been asking these questions.

HAYNE J:   If you are promoting an attack on Lange it would be nice to know (a) what the attack is, and (b) the full breadth of it.

GUMMOW J:   And (c) what is to be substituted.

MR ARCHIBALD:   We say Lange ‑ ‑ ‑

GUMMOW J:   …..have Theophanous back.  It might have something else.

MR ARCHIBALD:   We say, and we sought to articulate in ground 3, that Lange remains as is without the requirement of reasonableness.

GUMMOW J:   Well, that is reopening it.

MR ARCHIBALD:   Yes.  We do not shirk that at all, that it is reopening it in that respect.

GUMMOW J:   You need leave for that, you see.

MR ARCHIBALD:   Yes.

GUMMOW J:   But the notice does not ask for that.

MR ARCHIBALD:   Well, ore tenus we would seek leave to reopen.  Others are elucidation, we accept.  So that grounds 1 to 5 reflect the special

leave grounds – ground 5 reflecting special leave ground 3, and the other grounds being in the character that we have identified.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mr Archibald.  Yes, Mr Sher.

MR SHER:   If the Court pleases.  Your Honours’ questions have highlighted that what the applicants seek to do is to remove the protection that the reasonableness requirement gives to persons who are in the public eye, and which were discussed and justified in Lange by the unanimous decision of this Court.  If I can just take your Honours to Lange for a moment, at page 568. What they are proposing really is that New York Times v Sullivan where ‑ ‑ ‑

GUMMOW J:   Expressly rejected.

MR SHER:   Exactly.  And they propose nothing in its place.  But the justification for the reasonable requirements articulated by the High Court at page 568 in the paragraph commencing at about point 6 with the words:

The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech.  It is not to be supposed ‑ ‑ ‑

GUMMOW J:   We know this almost by heart, Mr Sher.

MR SHER:   I am not surprised to hear that.  I will press on.  Can I just deal with something which has emerged this morning which suggests, with respect, my learned friend’s argument has confused two discrete factual issues.

GUMMOW J:   Yes, we were going to ask you about that.

MR SHER:   Can I take your Honours to page 117 of the application book, and to paragraph 210.  Here Justice Gillard is dealing with a different issue than the distortion of the transcript.  He says:

In addressing the state of mind of the defendants, the trial judge concentrated on the third of the imputations relied upon by Ms Popovic.

And over the page my learned friend read ‑ ‑ ‑

HAYNE J:   That third imputation was?  Remind me.

MR SHER:   Removal from office.

HAYNE J:   Yes.

MR SHER:   Now, the paragraph my learned friend read on the following page was this:

There was evidence directed to Mr Bolt’s belief in relation to the article.  He gave evidence that he believed the article to be truthful and that it expressed his honest beliefs.  Further, he gave evidence that it was not his intention to suggest that Ms Popovic ought to be dismissed or removed from office; he did not believe that any such imputation was conveyed by the article.  In addition, Mr Bolt gave other evidence relevant to the imputations pleaded by Ms Popovic.

Now, it is in relation to that issue and that evidence that his Honour went on to make the comments, to which your Honours have been referred.

Now, the next issue was a different one.  It involved the distortion – and we say unequivocally the deliberate distortion of the transcript.  Can I take your Honours to page 120, paragraph 221.  His Honour said this:

In my opinion there was evidence which established that the making of the publication was not reasonable in all the circumstances.

Here his Honour moves on to this different fact:

It would indeed be a very rare case that a publisher could distort the facts which were central to the article and upon which the defamatory imputations were based, and then be found to be acting reasonably in making the publication.  That is what happened in this case.  Mr Bolt did not publish in full the exchange between Ms Popovic and the prosecutor with the result that what was conveyed in the article was misleading, contrary to what in fact occurred and was the basis upon which Mr Bolt made the strong criticism of Ms Popovic.  It is necessary to set out the exchange in full, the omitted portion being italicised.

Now, can I take your Honours just to the next page just to look at it, because you can see just the effect ‑ ‑ ‑

GUMMOW J:   Perhaps it commences at paragraph 220 actually, Mr Sher, the one immediately before 221.

MR SHER:   Yes.

GUMMOW J:   That perhaps explains what he was getting to at 221, the stage he was reaching.

MR SHER:   Yes.  But if we go on to look at the actual transcript, what was published, your Honours, if we go down the page to line 25, stopped after “now”.  Within the article Mr Bolt put a full stop, and left out after, “I’m warning you now”:

I don’t wish to enter an argument with you.  I don’t care whether you prosecute this matter or not.  All I’m endeavouring to do is to raise some issues for you to consider.

The prosecutor then apologised and explained his position, and she said:

You’ve told me there’s a victim, there’s a victim.  I’m saying, have a look at why you’re prosecuting this, have a look at whether there might be some other way of dealing with it.  I’m not going to interfere with your prosecutorial discretion.  I’m, simply saying that there are sometimes – one can approach a matter in a different way –

and if you read on you will see that what she was doing was actually, in effect, saying to the prosecutor, “Have a rethink about prosecuting a group of young people for arson over a five dollar flag.”  She made it quite clear she was not interfering with his prosecutorial discretion.  What Mr Bolt said about the part of the article that he published was:

“How outrageous to so bully a prosecutor for simply arguing the law must be upheld against demonstrators who destroy the property of others.”

Well, that is not what he was doing anyway.  But it was based upon the distortion, the deliberate distortion of the transcript.  That is made clear in the next paragraph, because in the middle of it, your Honours will see the sentence:

But when the whole exchange is revealed, the context shows beyond doubt in my opinion, that there is no basis for the observation made by Mr Bolt.  He has distorted what in fact occurred, with the result that he was able to make a critical comment.  If the whole transcript had been published, it would have been clear to the reasonable reader that there was no basis whatsoever for the comment.

By distorting the facts, Mr Bolt has conveyed to the reader a false impression –

et cetera.  That was the issue on which his Honour focused in saying, “Well, it just can’t be reasonable to distort the transcript, distort the facts and make critical comments which are central to two of the three imputations of which complaint was made.”  That is a discrete issue from the one that my learned friend earlier referred to, and that was the basis upon which his Honour said, “Well, this was a killer point.  It doesn’t matter what else you say and do.  This can’t be a reasonable publication.”

GUMMOW J:   Now, the distortion being referred to in paragraph 228, “distortion of the facts” – the first line in paragraph 228, is the distortion he is talking about at 226 that you were just reading to us.

MR SHER:   Yes.  And that is what we refer to in our written submissions.  It was a deliberate distortion.  It could not have been otherwise.  Nobody other than Mr Bolt was responsible for what appeared in the article that he wrote.  So in our respectful submission, your Honours, there is nothing in this particular point.

Now, we rely on our written submissions.  I do not want to take up much time because I think our written submissions, with respect, clearly state our position.  The only possible point that has been raised here that could affect the outcome of the litigation, that is to require either a retrial or something along those lines, is the point that my learned friend has frankly admitted, involves a reconsideration of Lange.  Unless that is done, the alleged difference between judges in Victoria concerning the operation of Lange has no effect on the outcome of this case because the applicant lost on the reasonableness point.  It would not matter what the result was in relation to Lange.

So what they are really inviting the Court to do is indulge in what we would respectfully submit is an academic exercise, which will not alter the outcome of this litigation.  In our respectful submission, it is a manifest injustice to this plaintiff in this case to make her, as it were, the subject matter of an interesting exercise of academic interest, and no practical importance to the case.  What my learned friend did not refer to is the views expressed by the Court of Appeal in New South Wales by Justice Spigelman in his judgment in the Fairfax Case, which are entirely consistent with the views expressed, particularly by the President of our Court of Appeal, Justice Winneke.

Now, with respect, Justice Winneke’s judgment is clearly correct, and he has made clear that the question of what is a political or government matter insofar as it affects the judiciary, is a matter that has to be determined on the facts of each individual case.  It may be.  It may not.  That, with respect, is clearly correct and that is a view, with respect, that people are likely to act upon hereafter.

Now, subject to that, your Honours, unless there is some particular matter upon which your Honours wish to hear me, that is all I wish to say.  If the Court pleases.

GUMMOW J:   Yes, Mr Archibald.  You want judgment entered in your client’s favour?

MR ARCHIBALD:   Yes.  If we were to succeed on the issue concerned with the reasonableness ingredient of the Lange defence, those matters would not need to be revisited.  If we succeed on the government and political matter point then our defence would be made out.  But certainly one possibility is that the matter needs to go back to be addressed on the facts as to reasonableness.

What we do have unusually, however, which is really the justification for the relief we sought, is the existence of a jury verdict of reasonableness addressing all of the matters, and we really say that should stand.  If that stands, and we succeed on the government and political matter then we should have judgment in our favour without any revisiting of the facts.

May we briefly address some of the matters raised by our learned friend.  As to what Justice Spigelman said in the Fairfax Case, there are some Delphic features of his Honour’s reasons for those who seek to support the conclusion that this subject matter of discussion falls within the amplitude of government and political matter, pray it in aid, for example, the trial judge in this matter.  Those who seek to reach a contrary conclusion also on occasion appear to pray it in aid, but what the true understanding of his Honour’s reasons in that regard is is something that would need to be addressed in the course of argument were leave to be granted.

In relation to what my friend said about distortion, we accept, of course, that what Justice Gillard said at paragraphs 210 to 212 was addressing a different point, but the ingredients of the evidence which were there being addressed, and which his Honour accepted, were fit to go to the jury, are the same subject matter as is necessarily entailed in the proposition in relation to distortion.  Nothing my friend said in the course of his submissions to the Court dealt at all with the inconsistency on that point of Justice Gillard’s conclusion and the finding of the jury in relation to malice.

Had those matters that his Honour addressed been agitated before the Court of Appeal, the Court would have been taken to a substantial body of evidence throwing light upon whether in fact there was a distortion by reason of the incompleteness of publication.  There was evidence given by the police prosecutor as to how he understood what was occurring, and how

it occurred, and why he said what he did.  He said he feared that he was exposed to contempt.  He did not want to go to gaol for contempt.  There was evidence from the plaintiff herself, where she accepted that a person sitting in the back of court might have concluded that she was having a go at the prosecution.  There was evidence from Mr Bolt about the inquiries he made, the assessment of the material, the research he did and so on and so forth.  So there was a wide body of material which, if all the circumstances are to be considered, needed to be addressed and were not.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 10.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.21 AM:

GUMMOW J:   If special leave to appeal were to be granted, the applicants would seek to reopen the decision of the Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 so as to contend that the extension of privilege made in that case should stand, but without the requirement that the conduct be reasonable. There are insufficient prospects of succeeding in an application to reformulate the law in that way. That being so, an appeal to this Court would succeed only if the applicants demonstrated that the decision of the primary judge that it was open to the jury to conclude the applicant’s conduct was reasonable should be overturned. Because there are insufficient prospects of success of the applicant succeeding on that point an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.

The applicants contend that the conclusions reached in the Court of Appeal of Victoria about the application of Lange to communications concerning the judicial arm of government were wrong.  Whether that is so is a question about which we here express no opinion.  The dismissal of the application for special leave is, therefore, not to be understood as endorsing conclusions reached in the courts below about this or other aspects to the question whether or how Lange was to be applied in this case.

It is the conclusion reached about the question of reasonableness which is determinative of the present application.  Special leave to appeal, therefore, is refused and refused with costs.

The Court will adjourn to reconstitute.

AT 10.23 AM THE MATTER WAS CONCLUDED