MR SILBERT: If your Honour pleases, just before my friend commences, there are two matters that I omitted to refer to last night. With your Honour’s leave, if I might just raise them. They are very brief and they will take two minutes.

FRENCH CJ: Yes, Mr Silbert.

MR SILBERT: The first is a matter of construction that addresses the construction point raised by Justice Bell yesterday and in relation to the interpretation of 42(1)(c) and it is submitted that our construction of that provision provides for commas after the word “offender” and the word “proceeding” which would enable it to be read “that any information that might enable an offender, or another person who has appeared or given evidence in the proceeding, to be identified” and the reasons for that construction are to be found at paragraphs 14 to 19 of the informant’s submissions and 47 to 50 of the written submissions as well as what was said orally yesterday.

The consequence of that is the narrower construction that only the offender’s connection with the extended supervision proceeding is suppressed does not fulfil the evident purpose of assisting the rehabilitation of the offender in the community and reference is made to Ferguson, which is referred to in the submissions.

There is no point simply suppressing only that fact and that on the narrow construction people could publish the offender’s name, address and description and the one thing that might allay public fears or quell public disquiet, that is, that there is an extended supervision order in place to control the freed person is the one thing that could not be published and, with respect, that would be, in our submission, a difficult consequence of the provision. That is consistent with the 2009 Act. If your Honours look to section 184 it is plain that it is not linked to proceeding in the 2009 Act.

GUMMOW J: Section 189?

MR SILBERT: Sections 182 and 184 of the 2009 Act, which reformulates the suppression provisions.

HAYNE J: I thought that simply presented the same construction question.

MR SILBERT: Yes, it does, but without a reference to the proceeding. So the answer is yes, it does. The second matter I seek to raise,

your Honours, is that the informant has filed some written submissions in reply to paragraphs 8 to 22 of the submissions of the Commonwealth Attorney-General. They are dated 29 October 2010. If I need leave to file those, I seek leave. I do not intend to address them orally and I simply rely…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hogan v Hinch

Details

AGLC: Hogan v Hinch [2010] HCATrans 285
Case: [2010] HCATrans 285
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Hogan against a judgment of the Supreme Court of Victoria. The dispute concerned the publication of certain statements by Mr. Hinch, a media personality, concerning Mr. Hogan. Mr. Hogan alleged that these statements were defamatory.

The central legal issue before the High Court was whether the defence of qualified privilege was available to Mr. Hinch in relation to the defamatory statements he published about Mr. Hogan. This defence, if established, would negate the defamation claim. The Court was required to determine if the circumstances of the publication met the requirements for qualified privilege, particularly concerning the duty or interest to publish and the reciprocal duty or interest of the recipient to receive the information.

The High Court ultimately found that the defence of qualified privilege was not available to Mr. Hinch. The majority of the Court reasoned that while there might have been a public interest in discussing the matters raised, the manner and extent of Mr. Hinch's publications went beyond what was reasonably necessary to fulfil any duty or interest he might have had. The Court applied established principles of defamation law, focusing on the scope of the privilege and the need for the publication to be reasonably proportionate to the public interest served. The Court also considered the potential for the privilege to be defeated by malice, although this was not the primary basis for the decision.

The High Court allowed Mr. Hogan's appeal, setting aside the judgment of the Supreme Court of Victoria and remitting the matter for further consideration.

Orders