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Herald & Weekly Times Ltd v Popovic

Herald & Weekly Times Ltd v Popovic

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Case Copied 21 November 2003 68 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 4631 of 2001

THE HERALD & WEEKLY TIMES LTD & ANDREW BOLT
THE HERALD & WEEKLY TIMES LTD & ANDREW BOLT	Appellants/ Cross -Respondents
v.
JELENA POPOVIC	Respondent/ Cross-Appellant

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JUDGES:	WINNEKE, A.C.J, GILLARD and WARREN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19-22 May 2003
DATE OF JUDGMENT:	21 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 161

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LIBEL – Trial by jury – Jury answered specific questions – Reservation of leave to move for judgment non obstante veredicto over objection of defendants – Power to do so.
EXTENDED DEFENCE OF QUALIFIED PRIVILEGE – Function of judge and jury – Criticism of judicial officer whether political or government matter – Reasonableness of publication – Not reasonable where article is altered.
FAIR COMMENT DEFENCE – Directions – Elements of proof.
JUSTIFICATION DEFENCE – Directions – Polly Peck defences pleaded – Whether Polly Peck defences were proper.
COURTS AND JUDGES – Role of judiciary – Separation of powers.
JURY – Reservation of leave to move for judgment non obstante veredicto.
RULE IN BROWNE v. DUNN – Whether applicable.
AGGRAVATED DAMAGES – Assessment.
EXEMPLARY DAMAGES – Assessment – Exemplary damages – Conduct post verdict.
PRACTICE AND PROCEDURE – Rules of Court – O.1.14, 47.02, 47.05, 49.01(1), 59.01.

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APPEARANCES:	Counsel	Solicitors
For the Appellants/Cross Respondents	Mr. A.C. Archibald, Q.C., Mr. W.T. Houghton, Q.C., And Ms. G.L. Schoff	Corrs Chambers Westgarth
For the Respondent/Cross Appellant	Mr. J.L. Sher, Q.C. and Mr. L.W. Maher	Howie & Maher

WINNEKE, A.C.J.:

I have had the considerable advantage of reading, in draft form, the judgment which Gillard, A.J.A. proposes to publish in this appeal. I agree with his Honour’s conclusions and the orders which he proposes for the disposition of the appeal and the cross-appeal; and the application by the respondent to lead further evidence. I do so largely for the reasons which his Honour has given. However, I wish to add some comments of my own. In doing so, I gratefully adopt the extensive outline of facts and issues which are incorporated in his Honour’s reasons.

The Defence of Extended Qualified Privilege

In 1997, the High Court in Lange v. Australian Broadcasting Commission[1] expanded the scope of the defence of common law qualified privilege by extending the protection to defamatory statements made to the public at large in the course of communications on “government or political matters”. In doing so, a united Court “re-expressed the earlier discourse[2] concerning a ‘constitutional defence’ “ and “reformulated the applicable rule in terms of the requirements implicit in the Constitution that forbid inconsistent laws”[3]. In defining the defence, the Court attached a condition of “reasonableness of publication”. The Court declared that this new expanded version of common law qualified privilege was in conformity with the freedom of communication on government and political matters which is to be implied from the text and structure of the Commonwealth Constitution.[4] The Court made it clear that the laws of defamation, both common law and statute, applying in the States of Australia should…

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.

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Details

Case: [2003] VSCA 161
Decision Date: 21 November 2003

CaseChat Overview and Summary

The parties in this case are Herald & Weekly Times Ltd and Popovic, with the dispute centred around allegations of libel in an article published by the defendant. The case was heard in the Supreme Court of Victoria. The plaintiffs, Popovic, sought damages for an article published by the Herald & Weekly Times Ltd, claiming it contained defamatory statements about them. The defendants argued that the statements were either justified, fair comment, or made under qualified privilege.

The legal issues the court was required to decide included whether the defendants had the right to reserve leave to move for a judgment notwithstanding the verdict, the applicability of the rule in Browne v Dunn, the elements of proof for fair comment and justification defences, and the assessment of aggravated and exemplary damages. Additionally, the court had to determine whether the Polly Peck defences were proper and if the publication was reasonable under the extended defence of qualified privilege.

The court held that the defendants had the power to reserve leave to move for a judgment notwithstanding the verdict, despite the defendants' objections. The court found that the article was not reasonable under the extended defence of qualified privilege as it was altered to include defamatory content. Regarding the fair comment defence, the court directed that the plaintiffs must prove that the article was based on facts and that the comment was honestly held. The Polly Peck defences were deemed appropriate and the court found that the publication was not reasonable due to the alteration of the article. The court also assessed the damages, awarding aggravated damages for the defamatory publication and exemplary damages due to the defendants' conduct post-verdict. The final orders included the awarding of damages to the plaintiffs and costs to be paid by the defendants.

The court's decision highlighted the importance of the role of the judiciary in maintaining the separation of powers, while also addressing the function of the jury and the judge in libel cases. The court's reasoning and outcome emphasised the need for careful consideration of the elements of proof for defences in defamation cases, and the assessment of damages in light of the defendants' conduct.

Orders