Herald & Weekly Times Ltd v Popovic

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 themselves be consistent with, and not restrictive of, the freedom of communication implied by the Constitution. In the course of its judgment, the Court said[5] that:

“The common law rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restrict the freedom required by the Constitution. Statutes which purport to define the law of defamation are construed, if possible, conformably with the Constitution. But if their provisions are intractably inconsistent with the Constitution, they must yield to the constitutional norm.”

Further, the Court said that whether the defamation laws applicable in a particular State (both common law and statute) imposed unreasonable restraints on the freedom of communication concerning government and political matters would need to be worked out on a case by case basis. Nevertheless, it was acknowledged that the common law defence of qualified privilege would rarely be compatible with the implied constitutional freedom because, ordinarily, privileged occasions are occasions of limited publication; and publication to the “world at large” will usually defeat the privilege. However, the Court recognized that publication of defamatory matters to the general public was capable of causing irreparable damage to the person defamed; damage of a kind which would not normally occur on occasions of common law qualified privilege. It was for that reason that the Court imposed the requirement of “reasonableness of conduct in publishing” as an element of the extended defence in circumstances where that defence is “invoked to protect a publication that would otherwise have been held to have been made to too wide an audience”[6] . It was not in dispute that the case with which this Court is now concerned involved such a publication.

[1](1997) 189 C.L.R. 520.

[2]In Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104 at 138.

[3]Australian Broadcasting Commission v. Lenah Game Meats Pty. Ltd. (2001) 208 C.L.R. 199 at 280, per Kirby, J.

[4]Although the principles expounded in Lange, concerning freedom of discussion of government and political matters, derived from the federal Constitution, it has been accepted that it applies equally to political and governmental matters enabling people to express free and informed choice as electors at a State election, cf. Roberts & Anor. v. Bass (2002) 77 A.L.J.R. 292 at 323 per Kirby, J.; see also Lange at 571.

[5]Supra at 566.

[6]Supra at 573. There are, of course, occasions where the common law defence of privilege will extend to “widespread” publications; see, for example, Adam v. Ward [1917] A.C. 309.

At the conclusion of the evidence in this trial, the judge ruled that the article of which the respondent complained was a discussion of “government or political matters” of the kind referred to in Lange (supra), but left to the jury – subject (as Gillard, A.J.A. has explained) to reservation of leave to the respondent to move non obstante – the question whether the appellants’ conduct in publishing the article was “reasonable” in the circumstances.

The characterization of the offending publication as a discussion of “government or political matters” has become relevant on this appeal because, pursuant to the leave which the judge had reserved, he concluded that there was no evidence to support the jury’s finding – in answer to the question left to them – that the appellants’ conduct in publishing the article was reasonable in the circumstances. In their Notice of Appeal, the appellants have challenged the judge’s conclusion in that respect; and, for her part, the respondent has filed a Notice of Contention in which she asserts, inter alia, that the judge was in error in concluding that the article amounted to a discussion of government or political matters so as to attract the extended qualified privilege referred to in Lange.

In his reasons, Gillard, A.J.A. expresses a “provisional view” that the trial judge was correct in ruling that the article was a discussion of political or government matters, and thus capable of attracting the freedom of communication protected by the Constitution. It was unnecessary for his Honour to express a final view about this matter because he had come firmly to the conclusion that, on any view of the matter, there was no basis for the jury’s conclusion that the appellants’ conduct in publishing the article was reasonable.

For my own part, I do not regard the impugned article as discussion of government or political matters within the meaning of the principle established in Lange v. Australian Broadcasting Commission (supra). The trial judge, in ruling that it did, appears to have founded his conclusion largely upon the basis that the article imputed that the respondent’s conduct in managing the proceedings before her warranted her removal as a magistrate. In my view, criticism by a newspaper (even strong criticism) of a magistrate’s performance in conducting or handling isolated proceedings in the Magistrates’ Court – even to the point of inferring that he or she is unfit to hold office – is not a discussion of government or political matters of the type which is protected by the implied constitutional freedom.

It is, of course, not possible to construct a formula for more narrowly defining the limits of what is, and what is not, the type of discussion which will attract the freedom which the Constitution protects. The concept is cast, designedly, at such an abstract level as to preclude that. Nevertheless, as the Court said[7]:

“… the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.” (footnotes omitted)

Thus it is that the structure and text of the Constitution necessarily protects the freedom of communication between the people of Australia concerning political or government matters which enables the people to exercise a free and informed choice as electors[8]. As McHugh, J. stated in Levy v. The State of Victoria and Ors.[9]:
“It is not open to doubt that the Constitution protects the freedom of ‘the people of the Commonwealth’ (the members of the Australian community) to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution. By a necessary implication drawn from ss. 7, 24, 64 and supporting sections, the Constitution strikes down laws burdening freedom of communication on these matters. The implication is necessary because, without it, people of different backgrounds or with different perspectives or information could be legally prevented from exchanging views on matters relevant to choosing their representatives at federal elections and on matters relating to the performance of federal Ministers.”

[7]Lange, at 561.

[8]Lange, supra, at 560.

[9](1997) 189 C.L.R. 579 at 662.

It is apparent from these descriptions of the freedom to communicate on political and government matters that the freedom, although not “absolute”, cannot be given any narrow construction. In Lange[10], the High Court remarked that the common law rules of defamation concerning privileged communications failed to meet the requirements of the implied constitutional freedom of discussion about political and government matters, and stated that the common law of defamation –

“can and ought to be developed to take into account the varied conditions to which McHugh, J. referred [in Stephens v. West Australian Newspapers Ltd.][11] .”

Those “varied conditions” were referred to by McHugh, J. in the following terms:
“In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not to be exercised are matters of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows … that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.”

[10]Supra at 571.

[11](1994) 182 C.L.R. 211 at 264.

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.
[12]Cf. Nationwide News Pty. Ltd. v. International Financing and Investment Pty. Ltd. [1999] W.A.S.C.A. 95; Reynolds v. Nationwide News Pty. Ltd. & Ors. [2001] W.A.S.C. 116 at [30], per Hasluck, J.
[13](2000) 181 A.L.R. 694 at 709.

That does not mean that there can never be a discussion about a judicial officer which will, or might, be relevant to the system of representative and responsible government. It is not difficult to conceive of circumstances where discussion of the character and/or conduct (whether in or out of court) of a judicial officer is capable of amounting to a discussion on government or political matters in the relevant sense. This would particularly be so where the discussion impacts directly or indirectly on the executive government itself; whether in the exercise of its powers to appoint the officer, or in exercising or failing to exercise its powers to initiate the officer’s removal. Such a discussion may well bear the characteristics of one which is capable of informing and shaping the views of the electors about the performance of their elected representatives. However, that is not the type of discussion which is involved in this case. There seems to me to be a discrete difference between the type of discussion to which I have referred and an opinion piece about the manner in which a judicial officer has handled individual curial proceedings. To express a view, no matter how critical, about the manner in which a judicial officer has discharged his or her functions – admittedly independently of government – in a particular case seems to me to fall short of discussion about government and political matters facilitating the system of representative and responsible government. The fact that it can be inferred from the published article that the author thinks that the respondent should be removed from office does not, in my view, make the discussion any more or less relevant to that system of government.

Reasonableness of Conduct

In extending the laws of qualified privilege to protect publication concerning governmental and political matters to mass audiences, the High Court in Lange imposed as a condition of the extended privilege that the publisher’s conduct in publishing the “matters” be reasonable in the circumstances[14]. But it imported the element of reasonableness only when the extended category of qualified privilege is invoked to protect a publication which would otherwise be held to have been made to too wide an audience[15]. In this case, it has always been accepted that the element of reasonableness of conduct, the burden of proving which fell upon the appellants, applied.
[14]Lange, supra, at 573.
[15]Lange, supra, at 573; Roberts & Anor. v. Bass, supra, at [161] per Kirby, J.

I agree with Gillard, A.J.A. that, subject to the jury finding primary facts which bear upon it, the issue of “reasonableness of conduct” of the publishers should have been decided by the trial judge; not by the jury. At common law, it has been well accepted that the question whether the occasion is privileged is one for the judge to determine as a matter of law[16]. Quite apart from the fact that the court in Lange[17] appeared to contemplate that “reasonableness of conduct” was “an element for the judge to consider”, it seems to me that the reasonableness of the publisher’s conduct both defines and confines the scope of the privilege. For the judge to invite the jury to determine the issue of reasonableness carries with it the risk, as I see it, that the determination will be made in a contextual vacuum. This case provides a striking example. The appellants had taken a raft of defences, which included faithful and accurate report, and fair comment on a matter of public interest. There were issues between the parties as to the truth of the facts upon which the comment was based. The findings of the jury with respect to those facts became relevant to the question of “reasonableness of conduct” on the part of the appellants. In Austin v. Mirror Newspapers Ltd.[18], the Privy Council was asked to consider a case where the question of the publisher’s reasonableness of conduct was in issue pursuant to s.22(1)(c) of the Defamation Act 1974 (N.S.W.). That, too, was a case where the defendant had relied upon a variety of defences, including qualified privilege and comment. Lord Griffiths, who delivered the judgment of their Lordships, said[19]:

“The media has enormous power both for good and ill, and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slip-shod journalism that would provide no defence of comment because the facts upon which the defence was based were not true. Where the defence of comment has failed because the jury has found the facts to be untrue, a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them.”

Likewise, it seems to me that where defamatory comments are founded upon what is alleged to be – but is found not to be – a faithful and accurate report of judicial proceedings, a judge should scrutinize very carefully the circumstances surrounding the publication of those comments before concluding that it was reasonable to publish them.

[16]cf. Calwell v. Ipec Australia Ltd. (1975) 135 C.L.R. 321 at 329; Minter v. Priest [1930] A.C. 558 at 572; Austin v. Mirror Newspapers Ltd. [1984] 2 N.S.W.L.R. 383 at 387.

[17]Supra, at 573.

[18][1986] 1 A.C. 299 at 317.

[19]At 317.

There could be little doubt in this case, from the jury’s answers to the questions left to them (in the light of the respective submissions made by counsel), that at least some of the facts upon which comments were based were found to be untrue. Furthermore, the jury found that the publication was not a faithful and accurate report of the proceedings before the respondent. By leaving the issue of “reasonableness” to the jury, the judge denied to himself the capacity to examine the conduct of the publishers, leading to the publication of false facts, and defamatory comment, whilst at the same time circumscribing the function of the jury by being unable to give directions on all matters relevant to the task which they had been allotted. In my view, this was a case where it would have been preferable for the judge to have reserved for himself the issue of extended qualified privilege until after he had received the jury’s answers upon the other defences. Those answers would have concluded “primary facts” relevant to the issue of privilege.

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.

Justification

The appellants contended on this appeal that the trial judge misdirected the jury by telling them that they should answer Question 1 (“was the article defamatory of the plaintiff?”) by reference only to the respondent’s pleaded imputations. Such a direction, so it was contended, deprived their plea of justification, based on alternative imputations, of any efficacy.

There is no doubt that the judge directed the jury that they should consider their answer to the first question by reference to the respondent’s pleaded imputations. Gillard, A.J.A. concludes that this was a misdirection; but that – because the appellants’ trial counsel had been content to have the matter left to the jury in this way – no miscarriage had occurred.

Counsel for the respondent on the appeal pointed to the fact that trial counsel for the appellants had gone to the jury on the basis that Question 1 should be considered only by reference to the respondent’s pleaded imputations. Counsel for the respondent pointed to the final address to the jury made by appellants’ trial counsel in which he submitted that:

“to be satisfied about the answer to Question 1, you have got to come to a view about these meanings, the plaintiff’s meanings, and ask yourselves would the average reasonable reader really have been conveyed these meanings. Let’s look at them. They are all predicated on one factual matter; that is that Ms Popovic on 30 November was presiding over a criminal prosecution for arson. You have read the article. Do you think the average reasonable reader would think that? It is a matter for you. We say they wouldn’t because we make it quite plain in the article, and we quote her, that she was not presiding over a criminal prosecution on that day. …
You have got to be satisfied for yourselves members of the jury, and really it is a matter for you what meanings are in fact conveyed by this article. The average reasonable reader reading it generally only once, but reading the whole of the article – before you can be satisfied about the answer to Question 1 you have got to be satisfied that, the plaintiff having the onus of proof on this, has satisfied you that those meanings, or substantially similar meanings, were in fact conveyed by this article.”

Counsel for the respondent asked, rhetorically:

“How can it be a fundamental misdirection amounting to miscarriage when the judge directs the jury in accordance with the defendant’s counsel’s submissions to them?”

He submitted that it was the judge’s obligation to leave the issues to the jury in the manner in which those issues had been defined by counsel. That had been done; and no exception had been taken to the directions. It was submitted that trial counsel for the appellants had been content that the matter be left to the jury in the way in which it was, because counsel’s primary purpose was to get a “No” answer to Question 1. It was put that counsel was effectively using the appellants’ own pleaded meanings – which he had never conceded to be defamatory – as particulars of their denial that the words meant what the respondent alleged them to mean.

For my own part, I think there is much substance in these submissions. The judge left the matter to the jury in the way in which the issues had been defined by both counsel. It can scarcely be described as a misdirection; but if it was, it was not one which caused any miscarriage of justice. I agree with the view expressed by Gillard, A.J.A. that it was a tactical choice carefully made by trial counsel for the appellants to submit to the jury that the plaintiff’s imputations were not conveyed, and that therefore the article was not defamatory of the plaintiff. It enabled him to obtain directions from the trial judge which gave to his clients the “best of all worlds”. The judge had given to the jury the alternative meanings contended for by the defendants and had told them that it was the defendants’ contention that the article did not mean what the plaintiff says it means; and that unless they found that it meant what the plaintiff was contending, they would answer “No” to Question 1. On the other hand, the defendants’ counsel still managed to secure a direction that, even if they answered Question 1 in the affirmative, they would still have to consider, when they got to Question 2 (justification), the “different meanings” contended for by the defendants; and that, before the defendants could succeed on the issue of justification, they (the jury) would have to be satisfied that the article “means what the defendants say it means or something substantially [similar]”. The defendants, having got the directions that they wanted, had no basis for taking exception to the charge; and it is little wonder that no such exception was taken. That tactical choice having been made, I, too, agree with respondent’s counsel that it is too late now to complain that the judge’s directions were misdirections which caused the trial to miscarry.

Counsel for the respondent submitted that there was a further reason why no miscarriage flowed from his Honour’s directions in respect of “justification”. He submitted that the imputations pleaded by the appellants were so different from those pleaded by the plaintiff, that they were embarrassing and should have been struck out. The law in the State, derived from the decision of the High Court in Chakravarti v. Advertiser Newspapers Ltd.[20], was explained most recently in David Syme & Co. Ltd. & Anor. v. Hore-Lacy[21] where, in respect of the pleading by a defendant of imputations different from those of the plaintiff, a majority of this Court (Ormiston and Charles, JJ.A.) concluded:

“The position then remains that, at trial, neither the plaintiff nor the defendant should be permitted to raise (nor should the defendants be permitted to justify) a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff.”[22]

[20](1998) 193 C.L.R. 519.

[21][2000] 1 V.R. 667.

[22]Per Ormiston, J.A. at 676; per Charles, J.A. at 689.

In this case the defamatory sting which was given to each of the three meanings pleaded by the plaintiff depended upon her proving to the jury’s satisfaction that the article conveyed the meaning that she was engaged in presiding over a criminal prosecution for arson. It was that fact which gave meaning to the imputations of bias, and inappropriate conduct. That was why defence counsel was at pains to point out that the plaintiff’s meanings could not be proved. The meanings pleaded by the defendants deliberately steered clear of this aspect of the meanings pleaded by the plaintiff. That fact, in itself, renders the defendants’ meanings substantially different from those pleaded by the plaintiff. One only has to compare the three meanings respectively pleaded by the plaintiff and the defendants to recognize how substantially different the meanings relied upon by the defendants are from those upon which the plaintiff relied. In my view, counsel for the respondent was correct in his submission that this aspect of the defendants’ pleading was embarrassing; and that – if his Honour’s directions in respect of justification were in error – that was another reason why no miscarriage had

occurred. Furthermore, I am in agreement with the conclusion reached by Gillard, A.J.A., after an extensive analysis of each of the imputations relied upon by the appellants, that the defence of justification based upon them would have failed in any event.

GILLARD, A.J.A.:

This is an appeal by unsuccessful defendants against a judgment entered by the learned trial judge in a defamation proceeding. After a six person jury answered a number of specific questions, his Honour in accordance with leave reserved, ruled on a defence and assessed damages.

The successful plaintiff claimed compensation for libel in an article written in the Herald-Sun newspaper by a journalist. She has cross-appealed in respect of the failure to award exemplary damages in respect of the defendants’ pre-verdict conduct, and a ruling by the judge concerning extended qualified privilege.

Parties

The first defendant, Herald & Weekly Times Limited (“the proprietor”), is the proprietor and publisher of the Herald-Sun, a daily newspaper sold in the State of Victoria.

The second defendant, Andrew Bolt (“Mr Bolt”), is a journalist who at all relevant times was employed by the proprietor.

The respondent to the appeal, the plaintiff in the proceeding, is Ms Jelena Popovic (Ms Popovic”), who is and was at all relevant times a Senior Magistrate of the Magistrates' Court of Victoria, and a Deputy Chief Magistrate of the Court.

The Article

In the morning and afternoon editions of the Herald-Sun published on

13 December 2000 the appellants published of and concerning the respondent an article (“the article”) under the heading –
“Andrew Bolt
We pay our magistrates good money to UPHOLD the laws.”

A copy of the article is attached to these reasons.

Mr Bolt was the author of the article.

Ms Popovic alleged that the article in its ordinary and natural meaning defamed her.

On 27 February 2001, Ms Popovic instituted by writ a proceeding in this court against the proprietor and Mr Bolt seeking damages, including aggravated and exemplary damages. The defendants gave notice that they wanted trial by jury.

In her statement of claim, Ms Popovic pleaded three false innuendos, namely –

(a)In the course of presiding over a criminal prosecution for arson of five persons who had allegedly invaded the Indonesian Consulate and burned its flag before hearing any evidence, the plaintiff had subverted the law by:
(i) prejudging the case; and
(ii) deciding on the appropriate penalty;
(b)in the course of presiding over a criminal prosecution for arson the plaintiff had behaved outrageously by bullying the police prosecutor for simply arguing the law;
(c)the plaintiff had so misconducted herself in a criminal prosecution for arson in the ways described in sub-paragraph (a) and (b) above and on at least one other occasion (when she hugged two drug traffickers she let go free) that her removal from office as a magistrate was warranted.

The Issues at Trial

In their defence, the proprietor and Mr Bolt denied that the article was defamatory of Ms Popovic, and put damages in issue. In addition, the defendants pleaded that the article in its natural and ordinary meaning contained particular meanings, and asserted that in those meanings the article was true in substance and in fact. This is a Polly Peck defence. See Polly Peck Holdings v. Trelford.[23] The grounds of appeal allege that the learned trial judge misdirected the jury in respect to the law of justification and accordingly it is necessary to set out the imputations pleaded by the defendants. The defence alleged –
[23][1986] Q.B. 1000; see also David Syme & Co Ltd v. Hore-Lacy (2002) 1 V.R. 667.

“9. Further, the defendants say that the article, in its natural and ordinary meaning, meant and was understood to mean that the plaintiff:
(a)had prejudged the case then before her by indicating that if she were the presiding magistrate she would find the charges proven and then dismiss them without knowing the facts of the case;
(b)had bullied the police prosecutor appearing in the case then before her by accusing him of repeatedly arguing with her and then warning him in circumstances when he was attempting to put the Crown case for proceeding with the prosecution;
(c)conducted herself inappropriately as a judicial officer by indicating during the course of the hearing before her an antipathy towards the Indonesian Consulate (whose flag had allegedly been burned by the accused) by querying whether it was the Indonesian Consulate that was pushing the prosecution by commenting that it would be cheaper to buy a new flag and, on the other hand, showed sympathy for the accused whom she said were presumably young people some of whom she said had worked in a voluntary capacity in East Timor;

and in those meanings the article is true in substance and in fact.”

In addition, the defendants alleged the article was a fair report of a judicial proceeding and was accordingly published on an occasion of common law qualified privilege, the article constituted a faithful and accurate report of proceedings in the Magistrates' Court and accordingly no action was maintainable pursuant to s.4 of the Wrongs Act 1958 (Vic), that the article was fair comment upon a matter of public interest and finally, a qualified privilege defence, based upon the High Court decision in Lange v. Australian Broadcasting Corporation.[24]
[24](1997) 189 C.L.R. 520.

In her reply, Ms Popovic put in issue those defences and alleged that the defendants were actuated by actual malice at the time the article was published. She gave particulars of malice which included references to other articles written by Mr Bolt and published by the proprietor.

Course of the Trial

The trial commenced on 10 April 2002 before a judge of the Trial Division of this court and a jury. Ms Popovic gave evidence as did a number of other witnesses on her behalf. The defendants called evidence. Mr Bolt gave evidence.

On 18 April 2002, after the defendants had closed their case, counsel for Ms Popovic submitted that none of the defences relied upon by the defendants had been made out and submitted that they should not be left to the jury. However, because the argument concerning the various defences would take some time, counsel submitted that it was appropriate that the judge should reserve the right to Ms Popovic to move for judgment non obstante veredicto. Defendants’ counsel objected to that course, but his Honour ruled that he would reserve leave to the parties to move for judgment non obstante veredicto after the jury had provided answers to the questions submitted to them.

The defendants abandoned their defence of qualified privilege based upon a fair report of a judicial proceeding. The other defences were relied upon.

Counsel addressed the jury, and following his Honour’s charge, the jury retired to consider a number of questions. The jury answered all questions except those relating to damages. No verdict was taken from the jury. The answers to the questions were neither a general or special verdict. See Russell v. VRC,[25] and McDonnell and East Ltd v. McGregor.[26] If the judge had not reserved leave to move for judgment non obstante veredicto, he was bound to give legal effect to the findings.[27]
[25](1948) V.L.R. 118 at 131.
[26](1936) 56 C.L.R. 50 at 55-6.
[27]op cit at 55.

Questions for the jury’s determination were discussed and settled between counsel for the parties. Save for one aspect, there was no discussion with the learned trial judge as to the propriety or otherwise of the questions. Questions 7 and 8 dealt with damages. The judge ruled that they need not be answered if any of the defences succeeded. Defendants’ counsel submitted that the damages should be assessed even if the jury found for the defendants. His Honour disagreed, reasoning that it would be unfair to Ms Popovic and difficult for the jury to fairly and properly assess damages having reached a conclusion that in effect she should fail. The defendants have not appealed his Honour’s decision in this respect.

The questions asked of the jury and the answers (circled) were as follows –

“(1)WAS THE ARTICLE DEFAMATORY OF THE PLAINTIFF?

YES

/ NO

(2)IF YES TO 1, WAS THE ARTICLE TRUE?

NO

YES /

(3)IF YES TO 1, WAS THE ARTICLE A FAITHFUL AND ACCURATE REPORT OF THE PROCEEDINGS BEFORE THE MAGISTRATES’ COURT AT MELBOURNE ON 30 NOVEMBER 2000?

NO

YES /

(4)IF YES TO 1, WAS THE ARTICLE FAIR COMMENT ON A MATTER OF PUBLIC INTEREST?

NO

No

YES /

(5)IF YES TO 1, WAS THE CONDUCT OF THE DEFENDANTS IN PUBLISHING THE ARTICLE REASONABLE IN THE CIRCUMSTANCES?

YES

/ NO

(6)IF YES TO EITHER 4 OR 5, WERE THE DEFENDANTS ACTUATED BY MALICE IN PUBLISHING THE ARTICLE?

NO

YES /

(7)IF YES TO 1, AND NO TO 2, 3, 4 AND 5, IN WHAT AMOUNT DO YOU ASSESS THE PLAINTIFF’S DAMAGES FOR:
(a)ALL DAMAGES OTHER THAN PUNITIVE DAMAGES
$

(b)PUNITIVE DAMAGES
$

(8)IF YES TO 1 AND TO EITHER 4 OR 5 AND ALSO YES TO 6, IN WHAT AMOUNT DO YOU ASSESS THE PLAINTIFF’S DAMAGES FOR:
(a)ALL DAMAGES OTHER THAN PUNITIVE DAMAGES
$

(b)PUNITIVE DAMAGES
$“

Because of the answers to questions 1 to 6 the jury did not answer questions 7 and 8.

Upon delivering their answers to the questions, the jury were discharged. This occurred on 26 April 2002.

Mr Houghton Q.C., who appeared with Ms Schoff for the defendants, moved for judgment and Mr Sher Q.C., who appeared with Mr L. Maher, for Ms Popovic, opposed that course and submitted there should be judgment for Ms Popovic.

His Honour said that he wanted to make it clear “that the verdict of the jury in this case has not decided this case. There are questions of law still to be determined which will have the effect ultimately of deciding the case but as the matter currently stands the case has not been decided.”

Mr Bolt was present when his Honour made those observations.

The parties returned to court on 3 May 2002 and after hearing submissions his Honour reserved. On 21 May 2002 he published his reasons, dismissing the defendants’ motion for judgment and entering judgment for Ms Popovic for damages to be assessed.

On 23 May 2002, the hearing of the assessment of damages commenced. Ms Popovic gave and called further evidence. A number of documents were tendered in evidence concerning media reports of what Mr Bolt said on and after 26 April 2002 concerning the jury verdict. The defendants did not call further evidence.

On 6 June 2002, the learned judge delivered his reasons on damages. He held that Ms Popovic was entitled to aggravated damages as well as compensatory damages, and the heads of aggravation were reliance on and persistence in unjustifiable defences, refusal to apologise, Mr Bolt accusing Ms Popovic of lying in the proceeding, the attack on the plaintiff’s credit, failure of the proprietor to exercise control over Mr Bolt, the failure to give the plaintiff an opportunity to respond and the conduct of Mr Bolt and the proprietor on and after 26 April making statements through the media concerning the case which were misleading. His Honour awarded the sum of $210,000 for compensatory and aggravated damages. In addition, he awarded exemplary damages in the sum of $25,000. The basis for the latter damages was the conduct of Mr Bolt and the proprietor on and after 26 April 2002. He rejected Ms Popovic’s claim for exemplary damages based upon the defendants’ pre‑verdict conduct. His Honour awarded $11,500 damages in the nature of interest and entered judgment for $246,500.

Issues on Appeal

The defendants’ notice of appeal raised seven general grounds which were divided up into sub-grounds.

Ms Popovic filed a notice of cross-appeal containing two grounds of appeal. Ms Popovic filed a notice of contentions.

The notices of appeal and contentions raised a substantial number of issues for consideration by the court.

They are –

(i)Did the learned judge have power to reserve leave to the parties to move for judgment non obstante veredicto over the objection of the appellants, and if he had the power did he err in the exercise of it?
(ii)Did the defendants prove the Lange defence of qualified privilege (named after the High Court decision of Lange v. The ABC, supra) namely, that the article was a communication of information to the readers of the paper concerning political or government matters and their conduct in publishing the article was reasonable in all the circumstances?
(iii)Did the learned judge misdirect the jury on the fair comment defence?
(iv)Did the learned judge misdirect the jury on the justification defence?
(v)Whether the judge erred in failing to direct the jury with respect to an alleged breach of the rule in Browne v. Dunn (1893) 6 R67?
(vi)Whether the learned judge was wrong, having admitted the evidence of two witnesses as to the appropriateness of Ms Popovic’s conduct in court on 30 November 2000, ruling against the admission of evidence of the prosecutor?
(vii)Did the learned judge err in awarding aggravated damages?
(viii)Did the learned judge err in awarding exemplary damages?
(ix)Did the learned judge err in not awarding exemplary damages in respect of the defendants’ conduct prior to the verdict of the jury?

The learned judge left the question of the reasonableness of the publication in respect to the Lange qualified privilege defence, to the jury. The jury answered the question that the publication was reasonable in the circumstances. On the motions for judgment, his Honour ruled there were two instances of Mr Bolt’s conduct which established that the publication was not reasonable and accordingly, it was not open to the jury to reach that finding. He therefore held that the defence did not apply. However, he did rule that the article communicated to the readers information of a political or government matter.

What happened at trial raises a threshold question as to the Lange qualified privilege defence.

The Lange qualified privilege defence and the role of judge and jury

In Lange v. ABC, supra, the plaintiff at all relevant times, the Prime Minister of New Zealand, was the subject of a television programme transmitted by the Australian Broadcasting Corporation (“the ABC”) throughout Australia called “Four Corners”. He alleged he was defamed in the programme. The Rt. Hon. Mr Lange commenced defamation proceedings against the ABC in the Supreme Court of New South Wales. The defendant, in paragraph 10 of its amended defence, claimed that it was entitled, pursuant to the freedom guaranteed by the Commonwealth Constitution, to publish material concerning government and political matters, and that in the circumstances the matter complained of was not actionable. This defence was based on the decision of Theophanous v. Herald & Weekly Times Ltd.[28] It also pleaded in paragraph 6 a common law qualified privilege defence, that it was entitled to disseminate material discussing political and government matters. Pursuant to s.40 of the Judiciary Act 1903, the action was removed into the High Court and a number of questions were stated for the consideration of the Full Court.
[28](1994) 182 C.L.R. 104.

In two decisions, Theophanous v. Herald and Weekly Times Ltd[29] and Stephens v. West Australian Newspapers Ltd,[30] the High Court held that there was implied in the Commonwealth Constitution a freedom to publish material discussing government and political matters concerning members of parliament which related to their suitability and performance as members of parliament. The publication of any such matters would not be actionable under the law of defamation if the defendant established three facts, namely, that it was unaware of the falsity of the material published, it did not publish the material recklessly and that the publication was reasonable in the circumstances. In the latter case of Stephens, the Court held that the defence based on the Constitution was a good defence to a defamation action brought by a State member of parliament in respect to a publication which was critical of members of the Legislative Council of Western Australia.
[29]Supra.
[30](1994) 182 C.L.R. 211.

The High Court in Lange, in a joint judgment, stated at p.556, that the cases of Theophanous and Stephens should be accepted as deciding that the common law rules of defamation must conform to the requirements of the Constitution, and that the Constitution implied a freedom to publish material discussing government and political matters to a wide audience. The Court went on to say that the “various judgments in Theophanous and Stephens should be further considered in order to settle both constitutional doctrine and the contemporary common law of Australia governing the defence of qualified privilege in actions of libel and slander.”

The Court emphasised that the presence of the constitutional implication precluded an unqualified application of the English common law defence of qualified privilege which, as a general rule, was not available to the media where the publication was to a wide audience.

What the High Court did in Lange was to develop another category of the common law defence of qualified privilege, but in doing so extended the defence and added another element which had to be proven by the publisher. Unlike the Court in Theophanous and Stephens, the Court has not created a wholly new defence. It has extended the principles of the common law concerning the defence of qualified privilege and its application to publication by the media to a wide audience.

The Court stated that the common law of defamation ought to be developed to properly reflect the requirements of the Constitution. The result is “the expanded defence of qualified privilege”.[31]
[31]see p.575.

The principles of the common law defence of qualified privilege have been developed based on a broad general principle, namely, that the common convenience and welfare of society or the general interest of society demands that a particular communication be protected. What is privileged is the occasion of the publication. See Loveday v. Sun Newspapers Ltd.[32]
[32](1938) 59 C.L.R. 503 at 511.

In Toogood v. Spyring,[33] Parke B said –

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander) and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If it is fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”
(Emphasis added).

[33](1834) 1 C.M. and R. 181 at 193, 149 E.R. 1044 at 1049-50.

The burden of establishing a defence rests upon the publisher defendant.

The modern statement of the law concerning qualified privilege is that stated by Lord Atkinson in Adam v. Ward[34] where his Lordship said –

“A privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

[34][1917] A.C. 309 at 334.

The question whether the occasion of publication is privileged is a question of law to be decided by the judge. If there are any facts which are disputed and relevant to the question, the resolution is for the jury – see Hebditch v. MacIlwaine,[35] Adam v. Ward[36] and Loveday v. Sun Newspapers Ltd.[37]. The defence may be defeated by proof that the publisher was actuated by malice at the time of publication. That is a question of fact for the jury. The burden lies on the plaintiff to prove malice.
[35][1894] 2 Q.B. 54 at 58.
[36]Supra, at 318.
[37]Supra, at 509.

Normally a judge rules at the close of all evidence whether the defence has been established but sometimes this is not possible if the decision depends upon disputed facts to be determined by the jury.

Whilst it may be said that it is not difficult for a judge to determine whether there is a legal duty, where the question turns on the existence or non‑existence of a social or moral duty, a judge is placed in a difficult position without any evidence on the topic. He or she has to determine the question in light of his or her own knowledge of the world. See Watt v. Longsdon.[38]
[38][1930] 1 K.B. 130 at 144.

The privilege must exist at the time of the communication. See Lay v. Hamilton.[39]Belief that the occasion is privileged is irrelevant.
[39](1935) 153 L.T. 384-HL.

The categories of qualified privilege can never be catalogued. In London Association for Protection of Trade v. Greenlands Limited[40] Lord Buckmaster L.C. said –

“Indeed, the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact. New arrangements of business, even new habits of life, may create unexpected combinations of circumstances which, though they differ from well-known instances of privileged occasion, may nonetheless fall within the plain yet flexible language of the definition to which I have referred.”

[40][1916] 2 A.C. 15 at 23.

“The definition” referred to by his Lordship was to the oft cited judgment of Parke B. in Toogood v. Spyring.

Reference to the textbooks on defamation identifies categories which are familiar examples of a privileged occasion. For example, Gatley on Libel and Slander, 9^th ed at para 14.4, Duncan and Neill on Defamation, 2^nd ed at para 14.01, and The Law of Defamation by Michael Gillooly at pp.176 et seq.

The High Court in Lange has included a new category for media publication to a wide audience and has extended the defence by requiring proof of reasonable publication.

It has always been difficult for the media to successfully rely upon the common law defence of qualified privilege. The reasons for this are at least two-fold, namely, it has never been the duty of any part of the media to publish for profit untrue facts about a person to the public – see Smith’s Newspapers Ltd v. Becker [41]; and secondly, because the media publishes to so many persons, it is nearly impossible to conclude that every publishee, or the great majority of them, had an interest in receiving the particular information - see Stephens v. WA Newspapers;[42] Lange at p.570; Morosi v. Mirror Newspapers;[43] Boston v. W.S. Bagshaw & Sons.[44]
[41](1932) 47 C.L.R. 279 at 291 and 304.
[42](1994) 182 C.L.R. 211 at 245-6.
[43](1977) 2 N.S.W.L.R. 749 at 790.
[44][1966] 1 W.L.R. 1126 at 1132.

However, the defence has been available in respect of a publication by the media to many people – see, for example, Adam v. Ward,[45] but this is rare.
[45]Supra.

In Lange, the High Court said at p.570 –

“Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public.”

It was that restriction which played a part in the development of another category of qualified privilege occasions in Lange. The Court justified the extension on a number of grounds. First, the common law defence imposed an unreasonable restraint on freedom of communication concerning government and political matters; secondly, the system of government would be impaired if a wider freedom was not given to the public to give and receive information; thirdly, the varying conditions of society evoked a broadening of the defence[46]. The Court said[47] –

“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.”

[46]see pp.570-571.

[47]at p.571.

The Court held that the extended category of qualified privilege also applied to discussion of government or politics at State, Territory or local government level “whether or not it bears on matters at the federal level”.[48]
[48]see p.571.

The court then considered the elements of the defence. The defence is available if the publication concerns government or political matters that affect the people of Australia.

As stated, the protection afforded to a publication on a common law privileged occasion may be lost if the occasion is improperly used, for example, the publication goes further than is necessary to give effect to the duty or interest in making and receiving the communication.

The Court said[49] –

“Because privileged occasions are ordinarily occasions of limited publication … the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives a publication is unlikely to be appropriate when publication is to tens of thousands, or more, of readers, listeners or viewers.”

[49]at p.572.

The High Court held that if the occasion involved the dissemination of the information to a large audience, in order to provide protection to the person defamed, it was necessary to add a further element to the defence. The Court held that -

“reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience.” [50]
(Emphasis added)

[50]At 573.

It is noted that the second element of the defence only applies if the defence would fail because the publication was to “too wide an audience” – see Roberts v. Bass.[51]
[51](2002) 77 A.L.J.R. 292 at 304-305 and 323.

In circumstances where the media publishes to the general public, in order to establish the defence the publisher has to prove –

(i)That the communication to the members of the Australian community was in respect of information concerning government or political matters that affect the people of Australia;
(ii)that the publication was reasonable in all the circumstances of the case.

The defence will be defeated by proof of common law malice.[52] The Court explained the concept. It noted –

· The concept of malice covers those elements of malice not covered by the element of reasonableness.
· It signifies “a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.”

· Existence of ill will, improper motive, motive to cause political damage, “the vigour of the attack” or the “pungency of a defamatory statement” may not discharge the plaintiff’s onus of proof.

[52]See Lange at 574.

The element of reasonable publication is based upon s.22 of the Defamation Act 1974 (N.S.W.). The High Court said that since damage to reputation would be greater where the publication was to many, “a requirement of reasonableness as contained in s.22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.”

Section 22 establishes a statutory defence of qualified privilege. It provides –

“22(1) Where, in respect of matter published to any person –
(a)the recipient has an interest or apparent interest in having information on some subject;
(b)the matter is published to the recipient in the course of giving to him information on that subject; and
(c)the conduct of the publisher in publishing that matter is reasonable in the circumstances,

there is a defence of qualified privilege for that publication.”
(Emphasis added).

It is the publishing conduct which is relevant and it must be reasonable in the circumstances.

What is reasonable conduct in publication depends upon all the circumstances. The Court stated[53] that proof of reasonableness will fail “in all but exceptional cases … unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.” The Court referred to other relevant matters on the question[54] -

“But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”
(Emphases added).

[53]at p.573.

[54]at p.574.

It was submitted by Mr Archibald, Q.C., who appeared with Mr Houghton, Q.C. and Ms Schoff on behalf of the defendants on the appeal, that the matters identified by the High Court were matters to be taken into account in determining the question whether the publication was reasonable in all the circumstances. He submitted they are not principles of law. They are to be taken into account with any other relevant circumstances in determining whether the making of the publication was reasonable.

Mr Sher submitted that although the matters first mentioned by the High Court were relevant matters to take into account, nevertheless the response matter was an essential element of the defence. In other words, the publisher must prove -

“That the defendant had sought a response from the person defamed and published the response made (if any) save and except where the seeking or publication of the response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.”

He submitted that if the publisher fails to seek a response and fails to show it was not practicable to do so or it was unnecessary to give the plaintiff an opportunity the defence fails; the conduct was not reasonable. The learned judge considered the matter in determining the question whether the publication was reasonable. He concluded that the publication was not reasonable in all the circumstances because, inter alia, no response was sought. It will be necessary to consider his decision later.

In my view, the matters identified by the High Court are not principles of law, are not essential elements in the proof of the defence, but nevertheless are matters of substance and relevant to the determination of reasonableness. The failure by the publisher to prove any one of them would, in my opinion, in most cases prove fatal. It is a relevant matter.

But the issue is whether the “making of a publication was reasonable … in all the circumstances of the case”. This will depend upon the particular circumstances. The matters identified by the High Court are relevant to the exercise. In some cases the failure to prove one of the matters would be fatal to the defence. However, the issue is whether the making of the publication was reasonable in the circumstances. Hence, a failure to prove one of the identified matters may not be fatal.

The point is made by Gleeson, C.J. and Gummow, J. in Rogers v. Nationwide News Pty Ltd[55] where their Honours said –

“The considerations that bear upon the reasonableness of the conduct of a publisher of information for the purposes of s.22(1)(c) of the Act vary with the circumstances of individual cases. Some considerations of common relevance were set out by Hunt, A.J.A. in Morgan v. John Fairfax and Sons Ltd (No. 2), but reasonableness is not a concept that can be subjected to inflexible categorisation.”

[55][2003] H.C.A. 52 at para 30.

It was submitted on behalf of the defendants that the Court was bound to consider all relevant circumstances of the case and those circumstances may include matters outside the matters identified by the High Court. In my opinion, that is correct but it would be open to the judge to conclude that one particular matter relevant to the question of reasonableness constitutes what I would call “a knock out blow”. In other words, a judge may, in the circumstances, be satisfied that the publication was not reasonable because the publisher did not prove it had reasonable grounds for believing the defamatory publication was true. Or the evidence may show that the publisher did not take proper steps to verify the accuracy of the material and did not believe the imputation to be true. Further, it may be that the judge is of the view that the publisher should have sought a response in the circumstances but failed to do so. In my opinion, any one of those findings would be sufficient for a judge to rule that the publisher had not made out the defence. But of course each case will depend on its own facts.

The element of reasonableness of conduct prescribed by the High Court is based upon s.22 of the Defamation Act 1974 (N.S.W.). Cases which have discussed that section and the element of reasonableness of conduct provide examples which will assist a court in determining whether a defendant publisher has proven its case. But the findings made by the courts are conclusions of fact and not law. They will assist in determining the question. They will not decide the question.

In Evatt v. John Fairfax & Sons Limited,[56] Hunt, J. held that the publisher failed to establish that the publication was reasonable within the meaning of s.22(1)(c) by reason of the way a portion of a pamphlet was reproduced in the newspaper. The proprietor had published an article concerning violence towards judges of the Family Court. Next to the article was reproduced a photographic reproduction of a pamphlet published by an individual who disliked the Family Court. What was reproduced was extremely defamatory of the Chief Judge of the Family Court. One of the factual issues for the jury was whether the reasonable reader would infer that the proprietor of the newspaper was lending weight to the allegations made in the pamphlet by adopting them and republishing them. His Honour said, at p.12 et seq –

“This leaves only s.22(1)(c). It is here that the defendant must fail. The qualification upon which a finding of reasonable conduct on the part of the defendant must depend in the end, in my view, arises from the assumption that the matter complained of, notwithstanding its context, conveyed the very imputations which the pamphlet itself contained. That is the only situation in which the question of qualified privilege can arise in this case. The defendant must establish that its conduct in publishing the imputations concerning the plaintiff was reasonable in the circumstances: Wright v. ABC (1977) 1 N.S.W.L.R. 697 at 704-705; Barbaro v. Amalgamated Television Services Pty Ltd (1985) 1 N.S.W.L.R. 30 at 42-44.”

[56]Unreported, Supreme Court of N.S.W., delivered 20 June 1985.

His Honour went on to then say that there were any number of methods by which the proprietor could have reproduced the pamphlet without conveying to the reader the impression that the proprietor was lending its own weight to the allegations made. His Honour was considering the question in the context that the contents of the pamphlet were untrue. He gave examples such as the proprietor, by express disclaimer, making it clear that it was not lending its weight to the defamatory imputations. His Honour went on to hold that because the proprietor had not done so, its failure rendered its conduct unreasonable within the meaning of s.22(1)(c).

This case was an example where there was one particular aspect of the way the article was published which effectively negated the defence. It was irresponsible and careless. As a general rule, to distort the facts to enable a critical comment to be made would be fatal to the defence. It is hardly reasonable to change the facts to make a point.

Matters relevant to the issue of reasonableness will, of course, depend upon the particular circumstances of the defamatory material and the publication, and a number of cases have discussed relevant matters. Reference is made to Wright v. ABC,[57] Barabaro’s case,[58] Austin v. Mirror Newspapers[59] and Morgan v. John Fairfax & Sons Ltd (No. 2).[60] In the latter case, Hunt, J. summarised some of the principles established by the cases concerning s.22(1)(c).
[57][1977] 1 N.S.W.L.R. 697 at 712.
[58]Supra at 42 et seq.
[59][1986] A.C. 299 at 313 et seq.
[60](1991) 23 N.S.W.L.R. 374 at 387-8.

In Austin v. Mirror Newspapers Ltd,[61] the Privy Council said –

“In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be. But where a jury has rejected a defence of fair comment upon the ground that the facts upon which the comment is based are not substantially true the starting point of the enquiry must be the ascertainment of those facts which the jury have found to be untrue. A newspaper with a wide circulation that publishes defamatory comments on untrue facts would in the ordinary course of events have no light task to satisfy a judge that it was reasonable to do so. Those in public life must have broad backs and be prepared to accept harsh criticism but they are at least entitled to expect that care should be taken to check that the facts upon which such criticism is based are true.”
(Emphasis added).

[61]Supra, at p.313.

See also the observations made by Reynolds, J.A. in Wright v. ABC.[62]
[62]Supra at 712.

In my opinion, the High Court did not create a wholly new defence. The Court developed another category of the occasion of a publication which attracts the defence of qualified privilege. In this regard, the courts’ development of the law must be compared with the majority reasons of the High Court in Theophanous v. Herald and Weekly Times Ltd, supra. In my opinion, Lange v. Australian Broadcasting Corporation now states the law in Australia in regard to qualified privilege in respect of communications of political or government matters by the media to the general public. It left intact the common law defence of qualified privilege. What it has done is to extend the categories – see Roberts v. Bass.[63]
[63](2002) 77 A.L.J.R. 292.

In the present proceeding, counsel for the parties and the learned judge were of the opinion that the second element of the defence was a question of fact for the jury and hence that question was left to the jury. In my opinion, that was wrong. Whether or not the defence was established was a question for the judge.

The law in this area has always been that the question whether a qualified privilege defence was established is a question of law for the trial judge to determine – see Stace v. Griffith.[64] If any of the circumstances which are relevant to the determination of the question are in dispute, the disputed questions of fact must be decided by the jury.
[64](1869) L.R. 2 P.C. 420 at 428.

The law was stated by Lord Esher, M.R., in Hebditch v. MacIlwaine.[65]
[65][1894] 2 Q.B. 54.

There is much English authority in support of those principles. See Adam v. Ward.[66] What Lord Esher said has been often cited, always with approval, and represents the law in this country. His Lordship said - [67]

“It is for the defendant to prove that the occasion was privileged. If the defendant does so, the burden of shewing actual malice is cast upon the plaintiff but, unless the defendant does so, the plaintiff is not called upon to prove actual malice. The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury, but, when the jury have found the facts, it is for the judge to say whether they constituted a privileged occasion.”

[66]Supra, at 318.

[67]At 58.

See also Adam v. Ward,[68] Barbaro v. Amalgamated Television Services Pty Ltd,[69] and Pervan v. North Queensland Newspaper Co Ltd.[70]
[68][1917] A.C. 309 at 318.
[69]Supra at 38-9.
[70](1993) 178 C.L.R. 309 at 347-8.

In Guise v. Kouvelis.[71] Latham, C.J. stated[72] -

“It is for the judge to determine as a matter of law upon undisputed facts, or, if the facts are disputed, upon the facts as found by the jury, whether an occasion is privileged. If the judge determines this question in favour of the defendant, it is then for the plaintiff to prove malice in order to displace the privilege.”
See also, per Starke, J.[73] .

[71](1947) 74 C.L.R. 102.

[72]At 109.

[73]At 113.

There is no doubt that the principles stated by Lord Esher, M.R. constitute the law in this country. See Law of Defamation by Michael Gillooly, p.218, and Australian Defamation Law and Practice by Messrs Tobin, Q.C. and Sexton at p.9083.

The disputed facts to be found by the jury are the primary facts. It is for the judge to draw any inferences from those facts as found. In Barbaro v. Amalgamated Television Services Pty Ltd,[74] Hunt, J. said –

“But it is important to keep firmly in mind that the qualification so stated (that any disputed questions of fact are to be decided by the jury) does not refer to the ultimate question to be determined by the trial judge or the essential elements of that question or what ultimately goes to establish the question of privilege. The questions which are appropriate for the jury to determine (and then only if there is a dispute concerning them and only if it is necessary for them to be determined to enable the trial judge to decide whether the occasion was privileged or not) are the primary facts – the actual happening of a particular event, what was said or done – but not the inferences or conclusions to be drawn from those primary facts. That is the position in relation to the common law.”

[74]Supra at 39.

In my opinion, the law concerning the functions of judge and jury where a qualified privilege defence is pleaded applies where the defence is a Lange qualified privilege one. That is, the question of whether the defence has been established is one for the judge. Any disputed primary facts relevant to the issue are for decision by the jury. I reach that conclusion for a number of reasons.

·     The defence is a common law defence extending the qualified privilege category of privileged occasions to publication by the media to members of the Australian community concerning government or political matters.
·     The High Court did not specifically address the question, nor did it state that the defence or part of it, was one of fact for the tribunal of fact. This must be compared with the former defence established in Theophanous v. Herald & Weekly Times Ltd, supra, where the majority stated[75] that whether a publisher had acted reasonably “must be a question of fact in every case”.
·     The Court did say it was a matter for the judge to consider. It said -
“Reasonableness of conduct is an element for the judge to consider only when the publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.”

[75]At 138.

Of course the trial judge, in drawing inferences from the facts, will be indulging in a fact finding exercise.

· The element of reasonableness is based upon s.22 of the Defamation Act 1974 (N.S.W.). By reason of s.23, whether the defence has been established is one for the judge and not the jury. One of the matters that the judge would have to consider is whether the conduct of the publisher was reasonable in the circumstances. See s.22(1)(c).

The House of Lords recently affirmed the principles concerning the function of the judge and jury where the defence of qualified privilege was pleaded. An attempt was made to introduce into the English law a new occasion of qualified privilege for political discussion, similar to the decision of the High Court. The Court of Appeal created a new category but the House of Lords disagreed. In Reynolds v. Times Newspapers Ltd[76] the House of Lords held that the English common law should not develop publications concerning political discussion and information as a new occasion of qualified privilege. See observations of Lord Nicholls of Birkenhead.[77] However, what the Lords did do was to provide a list of relevant matters which a court should take into account when deciding whether a defamatory publication was published on an occasion of qualified privilege by the media. The list was not exhaustive. His Lordship went on to say –

“Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. The balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.”[78]

[76][2001] 2 A.C. 127.

[77]At 204.

[78]At 205.

Lord Steyn also discussed the function of the judge and jury and agreed with this approach.[79]
[79]See 215-6.

In my opinion, the cases in New South Wales concerning the question of the reasonableness of publication provide a guide to matters which are relevant to the question but one should be careful not to raise these relevant matters to principles of law. The defendant must prove that the publication was reasonable in the circumstances. That is the element of proof. That, in my view, is a question for the trial judge.

If there are any disputed facts which bear upon that question, then those disputed facts are to be resolved by the jury if the trial is by jury.

In my opinion, “a disputed fact” is not whether the publication was reasonable in the circumstances. That is a matter for the judge. By disputed facts I mean any facts which are relevant to that issue and which have been the subject of dispute between the parties. In a trial by jury, the resolution of those facts should be the subject of specific questions to the jury.

[275]Campbell, E., Rules of Court – A Study of Rule‑Making Powers and Procedures, 1985, Law Book Company Limited, Sydney, p.3.

As observed already, it was argued for the appellants that they had a constitutional and fundamental right to have the jury determine all matters. The right, it was argued, emanated from the proper application of principles of constitutional law as ventilated in the authorities commencing with Edmond Weil following through to and including Prestinenzi. This analysis fails at the simplest test. If the trial judge in the present case lacked power to receive the verdict and thereafter determine the applicable legal issues as he did, save with the consent of both parties, necessarily the role of a trial judge would be rendered ineffectual. Such circumstance would, in my view, contradict entirely the pragmatic purpose underlying the Rules of Court as amended in 1986. It is plain that when Rules 1.14, 47.02, 47.04 and 59.01 are considered, the learned trial judge exercised a procedural power as he was entitled to do.

Prestinenzi was determined under the 1957 rules.[276] Dunning v. Altmann was determined under the current modern rules.[277] The history of the Rules of Court in Victoria involved ongoing repeal and consolidation.[278] The 1986 rules were enabled in part by the enactment of the Supreme Court (Rules of Procedure) Act 1986. Those rules drew upon developments in other common law jurisdictions.[279]
[276]The General Rules of Procedure in Civil Proceedings 1957 (as amended).
[277]The General Rules of Procedure in Civil Proceedings 1986.
[278]See Williams, N.J., Williams Practice of the Supreme Court of Victoria in its Civil Jurisdiction (2^nd ed.), Vol. 1, p.1087 [C.1]; also, Deputy Commissioner of Taxation v. Carpenter [1959] V.R. 470, 472; Altmann v. Dunning at 16 per Hedigan, J.
[279]Including England, the Federal Court of Australia and the Supreme Courts of New South Wales, British Columbia and Ontario; see Williams, N.J., Supreme Court Civil Procedure Victoria, para. [1.09].

Rule 1.14 when introduced in the 1986 Rules was entirely new. So too was Rule 59.01 to a large extent.[280] The 1986 Rules provided a new procedural regime. In so far as those rules effected substantive rights they were authorised by the enactment of the Supreme Court (Rules of Procedure) Act 1986. In the second reading speech to the Bill, the Attorney‑General said:

“The Rules introduce many new provisions designed to streamline the processes of the Court and to simplify procedures and terminology. These changes will benefit the Court, litigants and legal practitioners alike.
Most of the new Rules can be made under the existing heads of rule‑making power in the Supreme Court Act 1958. Other aspects of the Rules are clearly dependent on statutory amendment; for example, removal of the distinction between a judge exercising jurisdiction in open court and chambers. In addition, some parts of the Rules arguably changed the substantive law, for example, the rules which deal with preliminary discovery and discovery from a person who is not a party to proceedings. It is of particular importance to remove any doubt that this third, and very important, category of rule is within the rule-making power of the judges.”[281]

[280]Although some aspects of former Rules 3.2 and 20.3 were adapted into the new Rule 59.01.

[281]Legislative Council 23 April 1986, Hansard, p.645.

It seems that the modern rules were intended to be remedial and facilitative. For the reasons stated by Gillard, A.J.A., the trial judge desirably should not have permitted the question of reasonableness to go to the jury in the event. In that respect at the very outset, the views stated in Edmond Weil, Phillips, Thompson and Prestinenzi do not arise because in this case the question of reasonableness ought not have been asked of the jury in the first place. However, there must be much sympathy towards the position of the trial judge. The submissions upon the defence of qualified privilege took some days and the consideration of the authorities was difficult. A jury, already held over for a long trial, would have been kept even longer. The parties were entitled to expect, and indeed received, prompt but considered reasons. These factors inevitably meant that the judge resorted to the modern procedural powers contained in the rules and applied them in a proper manner. In my view, no error lies in the substitution by the trial judge of the jury’s verdict on reasonableness in the circumstances of the proceeding.

Defence of qualified privilege

I turn to the next matter, the defence of qualified privilege. The learned trial judge, after considering the development of the defence of qualified privilege through Stephens v. West Australian Newspapers Limited,[282] Theophanous v. Herald & Weekly Times Limited[283] and Lange v. Australian Broadcasting Corporation[284] postulated the question to be asked as follows[285]:

“ … whether it is necessary for the effective operation of the system of representative and responsible government that there be freedom to discuss the sort of matters discussed in the article sued upon even if that discussion was otherwise defamatory of a particular magistrate.
Is there a clear nexus between the discussion in the article and the concepts of representative government?”

[282](1994) 182 C.L.R. 211.

[283](1994) 182 C.L.R. 104.

[284](1997) 189 C.L.R. 520.

[285]Popovic v. Herald & Weekly Times Limited and Anor. [2002] VSC 174 [29].

In Lange the High Court observed[286] that the law of defamation can “burden the freedom of communication” concerning government or political matters. The court also observed that it is conducive to the public good that the reputation of persons in government and political life be protected from false and defamatory statements.[287] But the court also observed the need to broaden the common law to meet modern social conditions. Hence, in Lange[288] the following statement of principle by McHugh, J. in Stephens[289] that heralded the need for change was adopted:

“In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.”

[286]At 568.

[287]Ibid.

[288]Cited with approval in Lange v. Australian Broadcasting Corporation [1997] 189 C.L.R. 520, 570-571.

[289]Stephens v. West Australian Newspapers Limited (1994) 182 C.L.R. 211, 264.

The High Court in Lange[290] adopted the statement of McHugh, J. in Stephens and stated the principle thus:

“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.”

[290]At 571.

Close reading of the statement of McHugh, J. in Stephens reveals recognition of the dependence of individual freedom on the manner of exercise of functions and powers by public representatives and officials in government or administration. Although McHugh, J. referred to the exercise of functions and powers “in any part of the country”, the statement appears confined to a governmental context. Such context appears then to have been embraced by the High Court in Lange, particularly when the court stated[291]: “The common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh, J. referred [in Stephens]”.
[291]In Lange, at 571.

Throughout the judgments in Theophanous and Stephens, and in Lange itself, the court was concerned with a claim of defamation by a politician. Hence, the drawing upon the implied constitutional freedom of communication and the right of the community to have information about the exercise of functions and powers by public representatives and officials was the rationale for the burdening of the common law. But at the heart of the statement of principle in Stephens and its adoption in Lange was the concept of “government”.

It is trite to speak of the separation of powers as being the three arms of government: the legislature, the executive and the judiciary. Nevertheless, scrutiny of the statement in principle in Stephens and its adoption in Lange discloses that the doctrine, although expansive and wide ranging, is confined strictly to matters of government and politics. The principle is not extended to embrace the judiciary. Careful consideration of the judgment in Lange discloses repeated use of the expressions “government” and “politics” and always in a legislative or executive context, never in a judicial one.

The expression “separation of powers” is sometimes mentioned in discussions as if token citing of the concept satisfies an ephemeral, legal formula. Whilst the articulation of the concept can be traced through Aristotle and Locke[292], the modern expounder of the concept seems to have been Montesquieu.[293] Prior to Montesquieu the emphasis of political and constitutional theory was upon the role of the legislature and the executive. However, it was Montesquieu who expounded the classical trinity encompassed in the separation of the three powers.[294] In 1607 Coke identified the separation of the role of the judiciary from the Crown.[295] But it is the judicial power that is, of itself, quintessentially different from the other powers. As Wynes observed[296]:

“Apart from differences in function, the judicial power differs from the other powers of government in that like those powers, it does not generally begin to operate at the instance of the vehicles – courts and judges – by or through which (or whom) it is exercised, and further, it is exercised not by a single functionary body, as Parliament or the Executive, but by a number of bodies or persons.”

[292]See generally Vile, M.J.C., Constitutionalism and the Separation of Powers, 1967, Clarendon Press, Oxford, pp.16, 21ff., 51.

[293]Gwyn, W.B., The Meaning of the Separation of Powers, 1965, Tulane University New Orleans, Ch. V, pp68ff; Ch. VII, pp.100ff; also, Saunders, C., “The Separation of Powers” in The Australian Federal Judicial System, B. Opeskin and F. Wheeler (eds.), (2000) M.U.P., p.4; Vile, M.J.C., ibid, Ch. IV.

[294]See Winterton, G., “The Separation of Judicial Power as an Implied Bill of Rights”, in Liddell, G. Future Directions in Australian Constitutional Law, 1994, Sydney, Federation Press, p.185-6.

[295]Gwyn, W.B., ibid, p.6.

[296]Wynes, W.A., Legislative, Executive and Judicial Powers in Australia, (5^th edition), 1976, Sydney, p.410.

Although these remarks were directed at the Constitution and the differences between Chapters I – III, the observation is nonetheless valid for present purposes. Inevitably, the High Court has devoted much consideration to the concept of the separation of powers[297] and the issue of judicial power.[298] The present case is one concerned with the separation of powers and the role of the judiciary in a State context. There is no binding separation of judicial power under the constitutions of the States[299] including Victoria.[300] Yet the qualified privilege declared in Lange is implied from the Constitution. Thus, the doctrine of separation of powers is relevant here to the State context.[301]
[297]See for example the analysis in Sawer, G. “Judicial Power Under the Constitution”, in Else‑Mitchell, R. (ed.), Essays on the Australian Constitution, (2^nd edition), 1961, Sydney, Law Book Co., Ch. III, p.72ff; also, Zines, L., The High Court and the Constitution, (4^th edition), 1993, Sydney, Butterworths, Ch. 9 pp.154ff; also, Saunders, ibid, p.3ff.
[298]A convenient overview appears in Saunders, C., ibid, p.3ff.
[299]See Kable v Director of Public Prosecutions (NSW) (1996) 189 C.L.R. 51, 65, 78, 93, 109.
[300]City of Collingwood v State of Victoria & Anor [No.2] [1994] 1 VR 652.
[301]See Lange at 571.

At the heart of the concept of the separation of powers with respect to the judiciary there seem to be two essential elements. First, it does not function of itself (in the manner described by Wynes); secondly, it is based upon the fundamental tenets of impartiality and independence. The legislature and the executive function of themselves. They do not operate impartially and independently in that they operate politically. So much is expected of the legislature and the executive. The judiciary is expected to operate impartially and independently and to not act politically (although there may be political consequences of judicial decisions). Of course, as the learned trial judge in the present case observed, the judiciary is appointed by the executive. Nonetheless, that of itself does not put the judiciary on a level with the legislature and the executive; it is a means to the establishment of the judiciary. As Coke told the King in 1607:

“ … The King in his own person cannot ajudge any case, either criminal or treason, felony, etc., or betwixt party and party, concerning his inheritance, chattels, or goods, etc., but this ought to be determined and ajudged in some court of justice according to the law and custom of England.” [302]

[302]Gwyn, ibid, at p.6; see also Blackstone, W., Commentaries on the Laws of England, Oxford, 1768 pp.146-147.

It is this fundamental demarcation that differentiates the judiciary from the legislature and the executive. With this in mind I turn to the statement of principle in 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.[303] 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.
[303]Nationwide News Ltd. v. Wills (1992) 177 C.L.R. 1, 74 per Deane and Toohey, JJ.; Theophanous v. Herald and Weekly Times Ltd (1994) 182 C.L.R. 104, 179-82 per Deane, J.; Cunliffe v. Commonwealth (1994) 182 C.L.R. 272, 298 per Mason, C.J.

Speaking extra‑judicially, McHugh, J. has considered the tensions between the executive and the judiciary[304] and observed[305]:

“Although the core natures of legislative, executive and judicial power are clear and their ordinary applications distinct, they intersect at the margins.”

[304]McHugh, M., “Tensions between the Executive and the Judiciary”, (2002) 76 A.L.J. 567.

[305]Ibid, p.569.

McHugh, J. continued[306]:

“Under the separation of powers doctrine, the principal function of the judiciary is to uphold the rule of law. It is a corollary of that doctrine that the judiciary cannot be deterred from exercising that function by criticisms of the executive branch, even if the Executive’s criticisms have the support of the general public. The judiciary has to apply the law, not public opinion.”

[306]Ibid, at p.579.

These views appear to support the approach I adopt and lead on to a sound policy reason for treating the judiciary differently from the legislature and the executive. As Saunders observed, the separation of judicial power protects judicial independence and shields the courts from undue influence by the legislature and the executive.[307] It also encourages public confidence in the judicial process.[308] The significance of public confidence in the judiciary is vital.[309] This of itself is a separate and special basis for exempting the judiciary from the province of “government” and “politics” as applied in Lange. 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.
[307]op. cit. at p.33.
[308]Ibid.
[309]Mason, Sir Anthony, “The Appointment and Removal of Judges”, H. Cunningham (ed.), Fragile Bastion; Judicial Independence in the Nineties, Judicial Commission of New South Wales, Sydney, p.7; also, Parker, K., “The Independence of the Judiciary”, in B. Opeskin & F. Wheeler (eds.), The Australian Federal Judicial System, (2000) M.U.P., Melbourne, p.69.

For these reasons I diverge from the approach of the learned trial judge on the subject. However, whether the privilege extends to the judiciary is only the first step. The second step is reasonableness in the conduct of the appellants. For the reasons stated by Gillard, A.J.A. the conduct of the appellants was not reasonable and in that respect I consider that the appeal should fail.

Save for these remarks, I agree with the disposition of the appeal, the cross‑appeal and the application by the respondent to lead further evidence as proposed by Gillard, A.J.A. in his reasons.

[2003] VSCA 161

21 November 2003