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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Herald & Weekly Times Ltd & Anor v Popovic and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] HCATrans 180
Decision Date

CaseChat Overview and Summary

The case of *Herald & Weekly Times Ltd & Anor v Popovic* concerned an appeal to the High Court of Australia. The appellants, Herald & Weekly Times Ltd and another, sought to appeal a decision of the Full Federal Court of Australia. The dispute arose from the publication of articles by the appellants which the respondent, Mr. Popovic, alleged were defamatory. Mr. Popovic had been a prominent businessman and a former director of a public company. The articles in question concerned his business dealings and his resignation from the company.

The High Court was required to determine whether the Full Federal Court had erred in finding that the articles were capable of bearing a defamatory meaning. Specifically, the court had to consider the proper approach to determining whether a publication is defamatory, particularly in circumstances where the words themselves are not explicitly defamatory but may imply defamatory meanings through inference or association. The central legal issue was the test for inferential defamation and the extent to which a reader's interpretation of a publication could lead to a finding of defamation.

In their joint judgment, Gummow and Hayne JJ applied established principles of defamation law. They reiterated that a statement is defamatory if it injures a person's reputation in the eyes of a respectable section of the community. The court emphasised that the meaning of words in a publication is to be determined by the ordinary reasonable reader, who is not predisposed to find a defamatory meaning but is also not unduly charitable. The judges considered the context in which the words were published and the likely inferences a reasonable reader would draw. They concluded that the Full Federal Court had correctly identified that the articles, when read by a reasonable person, were capable of conveying defamatory imputations about Mr. Popovic's business conduct and integrity.

The High Court dismissed the appeal, upholding the decision of the Full Federal Court.

Orders