MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friends, MR B.L. SONNET and MR P.D. HERZFELD, on behalf of the informant. (instructed by Solicitor for Public Prosecutions)

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR G. SLATER, for the defendant. (instructed by HWL Ebsworth Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth: If the Court pleases, I appear with MR A.M. DINELLI for the Attorney‑General of the Commonwealth intervening under section 78B of the Judiciary Act. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, Solicitor‑General for the State of Western Australia): May it please the Court, I appear with my learned friends, MR R.M. MITCHELL, SC and MR A.J. SEFTON, on behalf of the Attorney‑General for Western Australia. I am also instructed to appear with my learned friend, MR S.A. McDONALD, on behalf of the Attorney‑General for South Australia. (instructed by State Solicitor’s Office (WA) and Crown Solicitor for South Australia)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.K. KIRK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland: May it please the Court, I appear with my learned friend, MR G.J.D. del VILLAR, for the Attorney‑General for Queensland intervening. (instructed by Crown Law (Qld))

MR W. BABECK: Your Honours, my name is Wolfgang Babeck.
I am a solicitor admitted in New South Wales, in England and Wales and in Germany. I hold a doctorate in constitutional law. I am seeking leave to make submissions as amicus curiae on behalf of the Australian German Lawyers Association. Federal German courts, including the Constitutional Court of Germany, have in the past rendered deliberations under German law on a number of aspects related to this case. I have summarised these findings in a submission and I assume it will be of interest to the Court to read those. If your Honour wishes, I can now also briefly elaborate on the viewpoint of German courts. (instructed by Dibbs Barker)

FRENCH CJ: Thank you. No, I do not think that will be necessary.

MR BABECK: If not, I am happy to hand up our written submissions and rely on those only.

KIEFEL J: The German Constitutional Court and the German Constitution recognises the particular rights of personality which are…

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 284
Case: [2010] HCATrans 284
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