John Fairfax Publications Pty Ltd v O'Shane - [2005] NSWCA 164

No judgment structure available for this case.

Reported Decision:
(2005) Aust Torts Reports 81-789

Court of Appeal

CITATION:
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164

HEARING DATE(S):
8 and 9 September 2004

JUDGMENT DATE:

17 May 2005

JUDGMENT OF:
Giles JA at 1; Ipp JA at 104; Young CJ in Eq at 141

DECISION:
Appeal is allowed in part, damages to be reassessed.

CATCHWORDS:
TORT- Defamation- Whether matter fact or comment- Whether material supporting comment. TORT- Defamation- Qualified privilege- Whether "Lange defence" available when judicial officer allegedly defamed.

LEGISLATION CITED:
Defamation Act 1974, ss 9, 11, 22, 24, 29, 30, 31, 32, 33, 34, 35, 46A

CASES CITED:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 78 ALJR 346
Carleton v Australian Broadcasting Corporation (2002) Aust Tort Rep 81-685; 172 FLR 398
Christie v Robertson (1889) 10 LR(NSW)(L) 157
Clarke v Norton [1910] VLR 494
Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1
Conservation Council of SA Inc v Chapman (2003) 87 SASR 62
Cunliffe v Commonwealth (1994) 182 CLR 272
Dawes v News Ltd [1935] SASR 312
Digby v Financial News Ltd [1907] 1 KB 502
D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 79 ALJR 755
Evening News, Re The (1880) 1 LR (NSW)(L) 211
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Harrigan v Jones (2001) Aust Tort Rep 81-621
Herald & Weekly Times v Popovic (2003) 9 VR 1
Horrocks v Lowe [1975] AC 135
Hoser v The Queen [2003] VSCA 194
Hunt v Star Newspaper Co Ltd [1908] 2 KB 309
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694
Kemsley v Foot [1952] AC 345
Kimber v The Press Association Ltd [1893] 1 QB 65
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Mann v O'Neill (1997) 191 CLR 204
McGinty v Western Australia (1996) 186 CLR 140
McRae v South Australian Telecasters Ltd (1976) 14 SASR 162
Mitchell v Sprout [2002] 1 NZLR 766
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Mowlds v Fergusson (1939) 40 SR (NSW) 311
Nagle v Chulov [2001] NSWSC 9
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
O'Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347
Peek v Channel Seven Adelaide Pty Ltd [2004] SASC 425
Pervan v The North Queensland Newspaper Company Limited (1993) 178 CLR 309
Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 150
Petritsis v v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
R v Dunbabin; Ex parte Williams (1935) 53 CLR 434
R V Fletcher; Ex parte Kisch (1935) 52 CLR 248
R v Nicholls (1911) 12 CLR 280
Re A Special Reference from the Bahama Islands [1893] AC 138
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Roux v Australian Broadcasting Commission [1992] 2 VLR 577
Sims v Wran [1984] 1 NSWLR 317
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104

PARTIES:
John Fairfax Publications Pty Limited (A)
Patricia June O'Shane (R)

FILE NUMBER(S):
CA 40208/04

COUNSEL:
B Walker SC and R Glasson (A)
B R McClintock SC and R Weaver (R)

SOLICITORS:
Freehills (A)
Aitken McLachlan Thorpe (R)

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
20527/00

LOWER COURT JUDICIAL OFFICER:
Smart AJ

CA 40280/04
SC 20527/00

GILES JA
IPP JA
YOUNG CJ in EQ
Tuesday 17 May 2005

JOHN FAIRFAX PUBLICATIONS PTY LTD v PATRICIA JUNE O'SHANE

Judgment

1 GILES JA: The appellant publishes a major newspaper. The respondent is a magistrate of the Local Court.

2 On 16 December 1999 the appellant published an article, written by Ms Janet Albrechtsen, in the following terms; the paragraphs have been numbered for later reference -

“EXTREME VIEWS FROM THE BENCH

1. The decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O'Shane suggests that it may be time to reflect, more generally, on some of the controversy surrounding O'Shane

2. As a magistrate, O'Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from the raised platform of the judicial bench, she ignites a highly charged debate within the legal and wider community.

3. Her latest decision, in which she lashed out at police culture and police harassment of youth, again raises the question of whether the justice system is best served by O'Shane's rancorous attitudes towards certain sections of society.

4. Two weeks ago she dismissed charges against Michael Kanaan who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict.

5. Yesterday the DPP, Nicholas Cowdery, QC, ordered that Kanaan be tried on the basis of an ex-officio indictment. The question of the defendant's guilt or innocence will now be determined in a new trial.

6. Putting aside the question of the defendant's guilt or innocence, what is so surprising about O'Shane's decision is that she launched a vitriolic attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot-out. She angrily described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'.

7. O'Shane has been angry many times. In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language, believing that the offensive language arrests were a habitual form of police harassment of Aborigines.

8. Two years later, in Lismore, she dismissed a charge against a man who called police 'f---ing poofters'. The then Premier, Nick Greiner, was appalled at the decision and the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act

9. And few could forget the consequences of her anger when directed at the now infamous 'Berlei bra' billboard in 1993. In that case she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras.

10 The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption, 'You'll always feel good in a Berlei'. The four women had added the words: 'Even if you're mutilated'.

11. In a highly emotional speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers

12. In an interview with Margaret Throsby for the Independent Monthly shortly after the Berlei bra decision, O'Shane commented: 'I was very angry … acquitting the women simply wasn't enough.'.

13. It may not have been enough for O’Shane, but many within the legal fraternity felt she had gone too far. O’Shane is a magistrate whose decisions impact directly and on a daily basis upon individuals and society as a whole. It is not at all clear that her decisions do anything other than undermine the judicial system as a whole.

14. O’Shane defended herself to Throsby on the grounds that, as a magistrate, she applies a litmus test of ‘human values’ to bring about the right result. The flaws in this argument are twofold. First, she appears to see herself as the sole arbiter of ‘human values’. As any first-year law student would know, equity is as long as the Lord Chancellor’s foot.

15. The second problem is that some of her decisions amount to serious misapplications of her ‘human values’ test. Few would disagree with the proposition that women have the right to protect their bodies from violation. Yet it was by no means clear that the Berlei bra billboard incited violence towards women or violated women’s bodies.

16. Similarly, few would argue with the proposition that genuine police harassment is unacceptable. But the facts of the Kanaan case do not suggest a clear-cut case of harassment. In fact, many would suggest that the Kanaan case was precisely the sort of scenario when police have not merely the right, but the obligation, to pursue suspicious assailants absconding from them.

17. While O’Shane attracts some vocal supporters, their arguments are invariably disingenuous. Some years ago following the Berlei bra fracas, a prominent supporter of O’Shane admired her for having the courage of her convictions. Yet in the same breath, Professor Mark Findlay, then director of the Institute of Criminology in NSW, revealed a rich, and no doubt unintended, irony when he criticised other members of the judiciary for reflecting ‘extreme views of their own’.

18. This is a common failing among O’Shane and her supporters. They support the injection of convictions into the courts by activist judges provided they are in line with their own. They were the first to chastise Justice Derek Bollen who made comments in a rape in marriage case which some suggested gave the impression that he condoned ‘rougher than usual handling’ by husbands to persuade wives to have sex. He was similarly castigated for telling a jury that a wife who had killed her husband had not been 'sufficiently battered’ to claim self-defence.

19. Yet O'Shane and her staunch supporters should remember that a society which accepts a Pat O'Shane should also accept a Derek Bollen."

3 The respondent brought proceedings claiming damages for defamation.

4 A jury determined that the article carried the imputations, defamatory of her, that -

(a) the respondent, when acting as a magistrate, is biased;

(b) the respondent is biased against police;

(c) the respondent, when acting as a magistrate, allowed an attitude of anger and bitterness to affect her judgment;

(d) the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them;

(e) the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed the charges were a habitual form of police harassment;

(f) the respondent, as a magistrate, is incompetent;

(g) the respondent, as a magistrate, undermines the judicial system; and

5 Smart AJ then undertook a trial of appellant’s defences of comment and qualified privilege and the assessment of damages. His Honour found against the defences and assessed damages of $220,000.

6 This is an appeal from his Honour’s decision. For the reasons which follow, in my opinion the appeal should be allowed in part, with the need for damages to be reassessed.

Background

7 The article was published on 16 December 1999. It followed the respondent’s discharge at committal proceedings of two allied charges, of shooting a firearm at a person with intent to murder and maliciously discharging a loaded firearm with intent to do grievous bodily harm, brought against Michael Kanaan, and what she said on that occasion. The discharge was ordered on 29 November 1999. On 15 November 1999 the Director of Public Prosecutions proceeded by way of ex officio indictment. The Kanaan discharge was referred to in paras 1, 3 to 6 and 16 of the article.

8 There had been published on 30 November 1999 articles dealing with the Kanaan discharge and critical of the respondent, in the Sydney Morning Herald and the Daily Telegraph.

9 The article was published on the “Opinions” page of the Sydney Morning Herald. It was one of two articles under the heading, “Pat O’Shane is a magistrate who makes headlines: here are two opposing views on the latest controversy”. An article favourable to the respondent was published on the same page . On page 1 of the same newspaper was an article about the police finalising a complaint to the Judicial Commission against the respondent, with a cross-reference at the end to the article on the “Opinions” page.

10 The judge described the material on which Ms Albrechtsen drew in relation to the Kanaan discharge. He found that there were “defects” in the reporting of the proceedings, in that the respondent dismissed the charges not only on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict, but also because of the absence of satisfactory identification evidence, the absence of evidence that the wounds sustained by a victim were caused by shots fired by Kanaan, and the absence of evidence establishing that Kanaan had the requisite intent. His Honour said that the effect of the omissions was not to reveal the extent and strength of the reasons on which the respondent relied.

11 The article referred to three earlier magisterial matters, the 1989 Brewarrina dismissals (para 7), the 1991 Lismore dismissal (par 8) and the 1993 Berlei bra dismissals (paras 9 to 13, 15 and 17).

12 The judge found that court records did not support that the respondent dismissed 116 charges against Aborigines sitting at Brewarrina Local Court. He said it seemed that Ms Albrechtsen was relying on an article by Mr Adrian McGregor published in the Sydney Morning Herald on 20 March 1993. He said, “The plaintiff seemed to accept when speaking to Mr McGregor that she dismissed 116 charges. That statement is not contradicted or corrected and possibly reflects the true position”. I take this to be a finding that the article was sufficiently accurate in this respect.

13 The judge said that it was not suggested that the facts as to the Lismore dismissal were inaccurately stated. Mr McGregor’s article had contained a passage similar in substance to para 8 of the article.

14 The judge again described the material on which Ms Albrechtsen drew in relation to the Berlei bra dismissals. He found that there were “defects” in the reporting of the proceedings, in that it was not stated that the offences had been found proved but dismissed under s 556A of the Crimes Act 1900 because of the previous good character of the defendants, and it was not stated that the Director of Public Prosecutions had withdrawn his appeal and the appeal had been dismissed by the District Court. His Honour said that these matters “tended to point to the plaintiff having reached a decision which was correct legally despite the plaintiff’s anger and the influence of extraneous considerations”, and that the omissions made the report incomplete and therefore inaccurate.

The defence of comment

15 In the balance between freedom of speech and protection of the individual’s reputation, the defence of comment gives controlled priority to the former by enabling free expression of opinions on matters of public interest. In Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 328 Mason CJ and Brennan, Deane, Dawson, Toohey and Gaudron JJ gave to a statutory defence of comment -

Slim v Daily Telegraph Ltd

16 At common law the defendant has a defence of fair comment if the words complained of are comment as distinct from a statement of fact, there is a basis for the comment contained or referred to in the published matter, and the opinion is expressed on a matter of public interest: see for example Gatley on Libel and Slander, 10th ed, 2004, para 12.2. There must be the basis for the comment in or referred to in the published matter, but it can be extreme and strongly expressed. Once the basis for the comment has been identified, the question is whether a fair-minded person, even if holding a strong, obstinate or prejudiced view, could have made it. Hence the importance of a proper basis for the comment.

17 Comment is dealt with in Division 7 of Part 3 of the Defamation Act 1974 (“the Act”). The Division begins with s 29 -

“ 9 General

(a) is modified as appears in this Division, and

18 By s 11, the provision of a defence by Part 3 does not “of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act”.

19 Sections 32, 33 and 34 of the Act respectively provide for defences of comment where the comment was that of the defendant; where the comment is that of a servant or agent of the defendant; and where the comment is not and did not purport to be the comment of the defendant or of any servant or agent of the defendant. Section 35 provides -

“ 35 Effect of defence

20 In each of these cases the defence is subject to ss 30 and 31, which read -

“ 30 Proper material

(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(a) the comment is based on proper material for comment, or

31 Public interest

21 The Act takes up the common law as to the distinction between comment and statement of fact and what is a matter of public interest, although as will be seen the comment is to be found in the imputation rather than the words of the published matter. It makes specific provision as to fairness of the comment by a regime for the comment being based on proper material for comment, but what material is proper material for comment is left to the common law.

22 The appellant conceded at the trial that any comment related to a matter of public interest. Any comment was that of Ms Albrechtsen. The judge held that it was not and did not purport to be the comment of a servant or agent of the appellant, and accordingly that the relevant defence of comment was that in s 35 of the Act. There was no appeal in this respect.

23 The questions at the trial were whether the imputations were comments or statements of fact and, if they were comments, whether they were within the regime of proper material for comment. The judge held that the defence was not made out because imputations (a), (b), (c), (d) and (e) were not comment and imputations (f), (g) and (h), although comment, were not based on proper material for comment within s 30(3)(b) of the Act.

24 The appellant submitted that the judge erred in these respects, including that he failed to consider whether imputations (f), (g) and (h) were reasonably based on what was to some extent proper material for comment.

(a) Comments or statements of fact

25 The common law position is explained in Gatley, para 12.6 -

12.6 The Distinction

26 The quotation at the end of this passage is from the judgment of Cussen J in Clarke v Norton [1910] VLR 494 at 499, and his Honour’s statement has long commanded acceptance. The learned editors also cite in a footnote to this passage from Mitchell v Sprout [2002] 1 NZLR 766 at [19], “The defence applies where the words appear to a reasonable reader to be conclusionary”.

27 There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.

28 To illustrate the distinction, the bald statement “X murdered his father” is likely to be regarded as a statement of fact. The same words may be regarded as comment if facts are set out from which can come the inference that X murdered his father, the statement that X murdered his father being the author’s conclusion from the facts. That X murdered his father is likely to be regarded as comment if facts are set out from which can come the inference that X murdered his father and the words are, “In my opinion, therefore, X murdered his father”. When the words are less words of fact and more words of evaluation, for example “X is a disgrace to humankind”, they are still likely to be regarded as a statement of fact if made as a bald statement, but more readily to be regarded as comment if made after and as a conclusion from a statement such as that that X murdered his father.

29 These are but illustrations, and the characterisation in each case depends on more than the mere words. In any given case, the question is whether the words would be regarded by the ordinary reasonable reader as comment or statement of fact, and the defendant must satisfy the tribunal of fact that they would be regarded as comment. All the circumstances are to be taken into account, and it must be remembered that the ordinary reasonable reader does not parse and pore over the published matter as the lawyers are inclined to do at trial (cf Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 40, speaking of the more ephemeral television broadcast).

30 As can be seen from the illustrations, it will be important to the response of the ordinary reasonable reader whether what is said to be comment is supported by facts presented or indicated in the published matter. In Kemsley v Foot [1952] AC 345 at 356-7 Lord Porter endorsed Odgers on Libel and Slander, 6th ed, 1929 at 166 -

“Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that ‘such conduct is disgraceful,’ this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.”

31 It is said in Gatley para 12.7 -

“So if the defendant alleges that a person has been guilty of disgraceful or incompetent conduct, or has been actuated by corrupt or dishonourable motives and does not state what those disgraceful or incompetent acts are, or assign any grounds from which such motives can reasonably be inferred, his allegations are allegations of fact and not comments. The underlying reason of this policy is said to be that to:

‘state accurately what a man has done, and then to say that such conduct is dishonourable or disgraceful, is comment which may do no harm, as everyone can judge for himself whether the opinion expressed is well-founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging for himself of the character of the conduct condemned, nothing but a false picture being presented for judgment.’

Christie v Robertson

32 It has often been said that in order that the words be comment, the reader should have the opportunity to judge for himself whether the opinion is well founded. It is necessary to look behind these words. Giving the opportunity by presenting or indicating facts may assist in characterising the words as comment, but not because the reader can judge for himself whether the opinion is well-founded; rather because the reader can see that the author is expressing an opinion based on the facts. Saying that the reader has the opportunity expresses the result, not a necessary purpose, and does not exclude the words being comment in other circumstances.

33 In Kemsley v Foot it was held sufficient for characterisation as comment that “a substratum of fact” was stated or indicated, see at 356. The defamatory words were “lower than Kemsley”; Lord Kemsley was not otherwise referred to, but the subject-matter was Lord Beaverbrook’s newspapers and a substratum of fact was found in Lord Kemsley being the active proprietor of and responsible for the Kemsley newspapers. That facts should be presented or indicated in the published matter, without which the words will be regarded as a statement of fact, has been accepted in this Court in, for example, Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531-2; O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 at 361; and Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 182. It was said in the first of these cases that the facts may be “presented to, or in fact present to”, the mind of the reader, and in the last that the facts may be “brought to the attention of or known to” the reader. Notoriety or the public nature of the subject-matter may mean little presentation or indication of facts.

34 This is illustrated by Pervan v North Queensland Newspaper Co Ltd. Allegations had been published that the plaintiff, a councillor and chairman of the council’s works committee, had misapplied the council’s cyclone relief funds. The defendant then published in its public notices a notice calling ratepayers’ meeting, beginning “Councillors feathering their own nests? Funds being misappropriated? This is doing irrepairable [sic] damage to the image of our shire”. The questions were said to be comment, in that the author of the notice -

“ … mindful of the allegations and the subsequent newspaper debate, was seeking to raise for consideration in the public arena the correctness of the allegations. In other words, by the two questions he was asking: ‘Are the two allegations true?’ And by the next sentence the author was saying: ‘The making of these unresolved allegations is causing irreparable damage to the image of the Shire’.” (at 318, 333)

35 What is said to be comment must nonetheless appear as comment distinguishable from the facts; see Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-20 -

Andrews v Chapman

…

Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment.”

36 These principles must be adapted to the defence of comment under the Act being directed to the imputation rather than the words of the published matter, as was established in New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340. Under s 9 of the Act, the plaintiff has a cause of action in respect of the imputation made by the publication of the matter. The imputation is a pleader’s construct from that matter, as found by the jury. The question being whether the imputation would be regarded by the ordinary reasonable reader as comment or statement of fact, rather than the words of the published matter, what regard is had to the published matter?

37 Priestley JA, with whom Sheppard AJA agreed, summarised the position at 345 -

“(a) whether or not an imputation pleaded by a plaintiff as a cause of action is an expression of opinion, or conclusion or a statement of fact or some mixture of any two or all three of these will sometimes be impossible to decide simply from the terms of the imputation itself;

(b) in the kind of case referred to in (a), where the jury finds the alleged imputation was made by the published matter complained of and was defamatory of the plaintiff and the defendant is relying on the defence of comment, then it will be for the defendant to show, amongst the other requirements of that defence, that the defamatory imputation was a comment and not a statement of fact;

38 His Honour said at 346 that -

“ … the defence of comment must be pleaded as an answer to the cause of action consisting of the imputation the plaintiff relies on and [that] in considering whether the imputation made by the matter was made as a comment or a statement of fact, the matter from which the imputation is derived may be taken into account.”

39 Meagher JA observed at 349 that the tribunal of fact “may, in evaluating the defence of comment, have some regard to the publication out of which the imputation arose”.

40 That the defence of comment is directed to the imputation does not mean that, in characterising the imputation, there is no reference to the published matter carrying the imputation. Nor in my view does New South Wales Aboriginal Land Council v Perkins mean that there is reference to the published matter only if it is thought that the imputation is not clearly of one character or the other. Clarity without context is a mirage, and when the imputation is found in the published matter its character must take colour from that matter. To put aside the published matter would be artificial, and as pointed out by Levine J in Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 at [21] it is not required “as a matter of construction [of the Act] let alone as a matter of common sense and reality”; see also Harrigan v Jones (2001) Aust Tort Rep 81-621 at [78].

41 Smart AJ considered that imputations (a), (b), (c), (d) and (e) were statements of fact largely because the article did not set out sufficient material from which the reader could see that they were opinions based on facts rather than assertions of fact. For example, his Honour said as to imputations (a) and (b) concerning bias that the article did not set out or refer to sufficient material to show that the respondent was biased and biased against the police, and as to imputation (e) concerning dismissal of offensive language charges that the assertion that the respondent did so in breach of her duty “is unsupported and, in the context, a statement of fact” (at [144]).

42 The appellant submitted that, for a complex of reasons, the judge should have held that the ordinary reasonable reader would have understood these imputations as expressions of opinion. In summary, it was said that the circumstances of publication of the article and the language used of degree, emotion and judgment all pointed to opinion rather than fact. The article was published on the “Opinions” page of the Sydney Morning Herald, with the favourable article earlier mentioned. Words such as “angry”, ‘vitriolic”, and “lashed out” were used, and the imputations contained words such as “bias” and “anger” all said to be judgmental and themselves suggestive of opinion. Again to take imputation (e) as an example, it was said that breach of duty was a judgmental concept. It was submitted that there were sufficient facts referred to in the article to permit the reasonable reader to regard imputations (a), (b), (d) and (e) as comment, and that imputation (c) may have been exaggerated but was still by way of opinion.

43 The judge’s approach was, with respect, unduly narrow. Facts enabling the reader to judge whether the imputations were well founded were important in the characterisation, but not to the exclusion of the reader’s regard to where the article appeared, its presentation as one of two opposing views, its often judgmental language and its subject-matter questioning the respondent’s magisterial conduct. It is of importance, in my view, that the article appeared on the “Opinions” page in the manner earlier described. It was akin to the editorial to which Cox J referred in Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 at 157, saying of its words that -

“ … the courts should not be slow to identify one of these mixed or ambiguous expressions as being a statement of fact where it appears in a newspaper editorial, the very place where the reader will expect to find expressions of opinion rather than statements of fact … “.

44 Further, assistance is found in the judgment of Mahoney JA in Petritsis v Hellenic Herald Pty Ltd. The imputations were that the plaintiff was unfit to be and remain a priest, his presence in the priesthood was a sham, and his conduct was deserving of his removal from the priesthood. His Honour dissented in the result, but I do not think the reasons of Reynolds and Samuels JJA controverted his observations at 196 -

Smith's Newspapers Ltd. v. Becker

45 Imputation (a) was that the respondent, when acting as a magistrate is biased. Considered alone, it was most naturally a statement of fact, the possession of an attitude of mind. But that was not necessarily so, and all the circumstances must be taken into account. The jury determined that the article carried the imputation, and that is a given, but an express or near-express assertion of bias is not to be found in the article, and the imputation itself must have been derived as a form of conclusion from the published matter. If Ms Albrechtsen had said in (say) para 13 of the article that the respondent was biased, in my view the response of the reasonable reader would have been that she was expressing a conclusion from the earlier statements of fact concerning dismissal of the Kanaan charges and the attack on the police, the Brewarrina dismissals, the Lismore dismissal and the Berlei bra dismissals; and that response would be assisted by the publication of the article as an opinion piece presenting one of two opposing views upon the respondent’s magisterial conduct. I respectfully differ from Smart AJ, and consider that the imputation had the character of comment.

46 Imputation (b) was that the respondent was biased against police. What I have said as to imputation (a) applies, with appropriate modification, to this imputation.

47 Imputation (c) was that the respondent, when acting as a magistrate, allowed an attitude of anger and bitterness to affect her judgment. Again, considered alone this was most naturally a statement of fact, that the respondent acted in the manner described. It is in the same position as the imputations previously mentioned. The article asserted that the respondent was often angry as a magistrate, referred to her anger a number of times, and linked the Brewarrina dismissals, the Lismore dismissal and the Berlei bra dismissals with her anger. The imputation was a conclusion presented by the author of the article, and was comment.

48 The more lengthy imputation (d) was essentially that the respondent breached her duty as a magistrate by dismissing the Berlei bra charges when she should have found the defendants guilty. As I understand the imputation, it was not of neglectful breach of duty but of knowing breach of duty. For similar reasons to those earlier expressed, I consider that it was comment.

49 The also more lengthy imputation (e) was to the same effect but as to the Brewarrina dismissals. Again I consider that it was comment.

(b) Proper material for comment

50 At common law the basis for the comment must be true. “If the defendant makes a misstatement of any of the facts upon which he comments, he at once negatives the possibility of his comment being fair” (Digby v Financial News Ltd [1907] 1 KB 502 at 508 per Collins MR). Omission can also make stated facts untrue, as is said in Gatley, para 12.17 -

“Again, the defence of fair comment will fail if the defendant omits from the statement of facts on which the comment purports to be based some important fact which (had it been mentioned) would falsify or alter the complexion of the facts that are stated. For example, if A states that B was convicted by a jury of a serious crime and comments adversely on the fact, but omits to state that the conviction was quashed by the Court of Appeal, his words cannot be defended as fair comment. Comment on facts inaccurately reported cannot be fair comment.”

51 Under the Act, therefore, and subject to s 30(3)(b), a comment will not be based on proper material for comment if the material on which it is based is inaccurate, including because it is incomplete. In Sims v Wran [1984] 1 NSWLR 317 Hunt J said at 322 -

“Material is proper material for comment in accordance with the common law; this particular element of the defence is not codified: s 30(1). At common law, and thus under Div 7, a statement may be defended as comment only if the material upon which that comment is based was stated expressly or impliedly in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another, was made known to the person to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based upon that material …

Kemsley v Foot

52 Smart AJ held that imputations (f), (g) and (h), although comment, were not based on proper material for comment because -

Kanaan

151. These inaccuracies and defects bear upon the comments that the plaintiff was incompetent and that she undermined the judicial system in that if the position had been correctly stated the ordinary reasonable reader may not have concluded that the plaintiff was incompetent or, as a magistrate, undermined the judicial system. While more doubtful I think that such inaccuracies and defects also bear upon the comment that the plaintiff was unfit for her office as a magistrate because she allows her extreme views to affect her judgment and that if the position had been correctly stated the ordinary reasonable reader may not have agreed with the comment.

152. It follows that in my opinion the comment contained in imputations (f), (g) and (h) was not based on proper material for comment.”

53 The judge had found at [89] that the statements in para 2 of the article that the respondent was “often angry” at what she perceived as injustices in our society, and that she “unleash[ed] her anger from the raised platform of the judicial bench”, were not accurate. His Honour accepted that the respondent was sometimes angry and on occasions unleashed her anger from the bench, the occasions being the Berlei bra and Kanaan cases. He said at [110] that the statement in para 7 of the article that the respondent had “been angry many times” overstated the position and was not supported by the materials, and at [137] he said that “[n]either the article nor any of the other materials establish that she has often been angry on the Bench”. As to the statement in para 3 of the article, that the respondent had “rancorous attitudes towards certain sections of society”, the judge said at [101] that while some criticisms of certain sections of society might involve rancorous attitudes, the respondent’s criticisms did not.

54 I have earlier noted the defects to which the judge referred in relation to the Kanaan discharge and the Berlei bra dismissals. His reference to unsubstantiated comment in the imputation as to the two occasions the respondent had knowingly wrongly dismissed charges must have been to imputations (d) and (e), as to which he said at [141] -

“There is no factual material to support the suggestion that she dismissed the charges knowing that she should not have done so. Nor is there any material to support the suggestion that she knew she should have awarded costs ands damages against the ladies.”

55 The appellant did not take issue with the inaccuracies and defects, save that it submitted that the difference between “sometimes” and “often” in relation to anger did not make inaccurate a statement that the respondent had often been angry or angry many times, so that the statements were substantially true. I do not agree. There is a significant difference, especially as a statement about the conduct of a judicial officer.

56 The appellant submitted that when his Honour concluded, in his [151], that if the position had been correctly stated the ordinary reasonable reader “may not have” agreed with the comments, he did not apply the correct test. It was said that the test was not whether the ordinary reasonable reader would have agreed with the comments, but rather whether that reader might reasonably regard the opinion as one that no fair-minded person could have formed or expressed (referring to Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398); or at the least that “may not” left it open that the ordinary reasonable reader would have considered that the opinion was one which a fair-minded person could have formed or expressed, and so was not a concluded finding.

57 In my opinion, the submission misapprehended the judge’s reasoning. He was not testing whether the ordinary reasonable reader could or would have agreed with the comment. He was testing whether the inaccuracies and defects were material to the opinions expressed in the imputations, and so whether the opinions were based on proper material for comment. The words “bear upon” were in context an expression of sufficient materiality to deprive the comments of a basis in proper material for comment. I agree with his conclusion that, because of the inaccuracies and defects, the opinions were not based on proper material for comment.

58 Since I have differed from the judge as to imputations (a), (b), (c), (d) and (e), it is necessary to ask whether each was based on proper material for comment. The inaccurate and defective matters were all of significance to the comments concerning bias, allowing anger and bitterness to affect judgment, and knowing breach of duty. In my opinion, they were not.

59 The judge did not address whether imputations (f), (g) and (h) represented opinions which might reasonably be based on such of the material as was proper material for comment, within s 30(3)(b) of the Act. He had earlier cited s 30(3)(b). It was faintly suggested that no submissions as to s 30(3)(b) had been put to his Honour, but that was left in doubt and it was not said that the appellant could not now rely on it.

60 The function of s 30(3)(b) is to make a comment “defensible notwithstanding failure to some extent to prove the truth of the statements on which the comment is based”: Report of the Law Reform Commission on Defamation, LRC11 (1971), para 190. It is necessary notionally to identify such of the material on which the comments in the imputations were based which was free from the inaccuracies and defects, and to determine whether the comments represented opinions which might reasonably be based on the material so identified.

61 The appellant submitted, as to imputations (f), (g) and (h), that the comments in the imputations represented opinions which might reasonably be based on -

“ … the anger, the lashing out at police culture, the DPP ex officio indictment, the Brewarrina dismissal of 116 offensive language charges because of the belief that such charges were an habitual form of police harassment, the dismissal of the Lismore offensive language charges, the discussion of the ‘human values litmus test’ and its ‘serious misapplication’, the criticism of Professor Findlay of members of the judiciary expressing extreme views.”

62 The submission was not amplified, and did not specifically address imputations (b), (b), (c), (d) and (e) if found to be comment. The respondent submitted that after excision of the material tainted by the inaccuracies and defects no basis for reasonably held opinions was left as to any of the imputations.

63 The following relevant material on which the comments in the imputation were based was true -

(i) the respondent was sometimes angry at what she perceived as injustices in our society and on occasions unleashed her anger from the bench (para 2);

(ii) the respondent was angry on the occasion of the Brewarrina dismissals, the Lismore dismissal and the Berlei bra dismissals (para 7 and the following paragraphs);

(iii) the respondent launched an attack on what she perceived as police harassment of Kanaan and the other men, and described the action of the police officers as stupid, reckless and foolhardy (para 6);

(iv) the Director of Public Prosecutions filed an ex officio indictment against Kanaan (para 5);

(v) in 1989 at Brewarrina the respondent dismissed 116 charges against Aborigines in one day (para 7);

(vi) the respondent believed that the offensive language arrests in (v) were a form of habitual police harassment of Aborigines (para 7);

(vii) in 1991 in Lismore the respondent dismissed a charge against a man who called police “f – ing poofters”, there was an appeal and she was ordered to rehear the case, and on the rehearing she found the charge proved but dismissed it under the then s 556A (para 8);

(viii) in dismissing the Berlei bra charges in 1993 the respondent said that the real perpetrators of the crime were those responsible for the advertisement and refused to award damages or costs to the advertisers; she told Ms Throsby that she was very angry and acquitting the women was not enough (paras 11, 12);

64 Did the comments in the imputations represent opinions which might reasonably be based on this material? The question is necessarily hypothetical, and the appellant has what is sometimes called the persuasive burden. The conjunction in “might reasonably” has some internal tension; the test is objective, although “might” allows latitude to the hypothetical opinion-holder. The test of opinions which might reasonably be based on the material differs from that of honesty at common law; in Sims v Wran at 325 Hunt J said:

“The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing his defence. That greater burden was no doubt intended by the legislature to offset the advantage which the statutory variant gives to the defendant by permitting the continued availability of the defence of comment notwithstanding the defendant's failure to establish the truth or the existence of the whole of the material upon which his comment was based.

65 I am not persuaded that the material provided a reasonable basis for the opinion in imputation (a). Anger, error in decision-making, beliefs as to police harassment and inappropriate action and advertising suitability did not reasonably mean bias in acting as a magistrate, nor did showing or expression of the emotion and beliefs. Imputation (b) focussed the bias as a bias against the police, not expressly as bias when acting as a magistrate, but again I am not persuaded that the material provided a reasonable basis for that opinion.

66 At the heart of imputation (c) was that the respondent allowed her subjective attitudes to affect her judgment. In my view, an opinion to that effect might reasonably have been based on the dismissals of at least the charges other than the Kanaan charges, in the light of the respondent’s anger expressed by her statements as to police harassment and inappropriate action and advertising suitability and her approach of human values; taking them together, the hypothetical opinion-holder might reasonably have concluded that there was anger and bitterness influencing the respondent’s decision-making.

67 The more lengthy imputation (d) involved the opinion that the respondent knew that she should have found the women guilty and awarded costs and damages against them. I do not think that the imputation was an opinion which might reasonably have been based on the material; the step from the expressed attitudes to knowing breach of duty was greater than the material could reasonably bear. So also for imputation (e) as to the Brewarrina dismissals.

68 Imputation (f), that the respondent, as a magistrate, is incompetent, was an opinion which might reasonably have been held, because that description might reasonably have been given to a judicial officer who allowed the attitudes earlier identified to affect the judicial officer’s decision-making. Similarly as to imputation (g) and (h); the hypothetical opinion-holder might reasonably have come to the view that the respondent departed from the objectivity and impartiality necessary for a judicial officer.

69 In my opinion, therefore, the defence of comment was made out as to imputations (c) and (f), (g) and (h).

The qualified privilege defences

70 The appellant relied at the trial on the extended qualified privilege at common law as recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (“the Lange privilege”), and on the statutory qualified privilege under s 22 of the Act. It contended that the Lange privilege extended to the conduct of State and Federal judicial officers generally, and not just so far as there was discussion of government and political matters. It also submitted that the reasoning in Lange v Australian Broadcasting Corporation supported an analogous privilege as to discussion of the conduct of judicial officers which should be recognised and found to afford a defence.

71 Smart AJ held that the Lange privilege was available so far as the article was a discussion of government or political matters, but declined to recognise either a wider or an analogous privilege as to discussion of the conduct of judicial officers. He found against the Lange privilege and the statutory qualified privilege defences because the appellant had not established that publishing the matter was reasonable in the circumstances.

72 The appellant contended on appeal that the judge erred in -

(a) failing to recognise the analogous privilege and hold that there was defence of qualified privilege at common law for discussion of the conduct of judicial officers;

(b) holding that the Lange privilege did not extend to the conduct of judicial officers generally; and

73 Reasonableness of publication is necessary for both the Lange privilege and the statutory qualified privilege. The analogous privilege for which the appellant contended on appeal did not, according to its contention, require reasonableness of publication. It is convenient to consider (b) and (c) before (a).

(a) The Lange privilege and statutory qualified privilege

74 At common law a defamatory statement received qualified privilege which the person publishing it had an interest or duty to make it. The need for reciprocity of duty and interest meant that the privilege could rarely be established for a publication in the mass media. In exceptional circumstances there could be an interest or duty to publish to the world at large, see the discussion by McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 261-3, but his Honour observed at 264 that “[p]rotection of reputation has generally been preferred to the right of the public to know”.

75 Lange v Australian Broadcasting Corporation recognised this, but it was said at 570-1 -

Wason v Walter

Stephens

‘"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.’”

76 The Court said that, because the Constitution requires that ‘the people’ 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 of defamation should be developed to take account of the varied conditions to which McHugh J referred in Stephens v West Australian Newspapers Ltd and properly reflect the constitutional requirements (at 571). There was declared an extended common law qualified privilege, founded on the interest of each member of the Australian community “in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia” and the correlative duty to disseminate the material (at 571-2). Recognition of the extended category of privilege ensured conformity with the requirements of the Constitution (at 572).

77 The Court said that, because the damage which could be done was very great, a requirement of reasonableness as contained in s 22 of the Act was “reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires” (at 573), and 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. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a 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.” (at 573)

78 The Court declined to state additional elements of want of knowledge of falsity and absence of recklessness, saying (at 574) -

“Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct. The protection of those reputations will be further enhanced by the requirement that the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness.”

79 The Court said (at 574) -

“Whether the making of a publication was reasonable must depend upon all the circumstances of the case. 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.”

80 The appellant’s submissions included that reasonableness “is not or ought not be an element in the Lange defence of qualified privilege”. In the light of these passages, the submission can not be accepted.

81 The statutory defence is provided under s 22 of the Act, subs (1) of which reads -

(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 the recipient information on that subject, and

there is a defence of qualified privilege for that publication.”

82 The statutory requirement of reasonableness in s 22(1)(c) was explained in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388. Materially to the want of reasonableness found by the judge, the explanation included -

“(4) The defendant must also establish:

(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;

(b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;

(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and

83 The appellant’s submissions included that this explanation had been superseded by what the High Court said of reasonableness in Lange v Australian Broadcasting Corporation. I do not agree. The High Court was not giving a detailed explanation, and in the later case of Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [30] Gleeson CJ and Gummow J cited Morgan v John Fairfax & Sons Ltd (No 2) as setting out “some considerations of common relevance”. The explanation should not, however, be treated as a statutory prescription; as their Honours went on to say in the same paragraph, “reasonableness is not a concept that can be subjected to inflexible categorisation”.

84 Whether the Lange privilege extends to discussion of the conduct of judicial officers generally, as distinct from so far as there might be government action for removal of the judicial officer from office, has since been considered or referred to in a number of cases: see Popovic v The Herald and Weekly Times Ltd [2002] VSC 174 (Bongiorno J); The Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 (CA); Carleton v Australian Broadcasting Corporation; Conservation Council of South Australia Inc v Chapman (2003) 87 SASR 62; Hoser v The Queen [2003] VSCA 194.

85 If Smart AJ was correct in holding that the appellant did not act reasonably in making the publication, however, the Lange privilege would fail even if it extended to the conduct of judicial officers generally. Thus it is appropriate to go to reasonableness, both in relation to the Lange privilege and in relation to the statutory qualified privilege.

86 The judge set out a number of reasons advanced by the appellant in support of reasonableness. They included, in conformity with Morgan v John Fairfax & Sons Ltd (No 2), that Ms Albrechtsen’s conclusions, whether statements of fact or opinion, followed logically, fairly and reasonably from the information obtained. He accepted that the publication was reasonable in a number of the respects put forward, but not in that respect. His critical findings were -

“201. The plaintiff contended that the imputations did not follow logically from the information which the defendant had obtained. I agree. Ms Albrechsten generalised as to the plaintiff's impartiality, approach, fidelity to the law, attitude to the police, views as to the wrongful treatment of women and, taking extraneous considerations into account, from four incidents over about 13 years and the comments she had made to various journalists. This was an insufficient base for the contents of the article.

…

206. Some of the defamatory generalisations in the article seem to spring, not only from the four cases to which Ms Albrechsten refers, but from the newspaper articles reporting what the plaintiff has said on other occasions to which no reference is made in the article, or to which inadequate reference is made.

Lange

Defamation Act

87 The appellant submitted that reasonableness was to be judged in all the circumstances, and that the deficiency found by the judge, even if correct, did not make publication of the matter unreasonable. It submitted that the judge misdirected himself in his [206] because reasonableness was to be determined not just from what was in the article, but from all the material in Ms Albrechtsen’s possession, and that it was not a question of logic but of reasonableness and the material in her possession justified the generalised statements made in the article.

88 I do not think that the judge confined himself to information contained or referred to in the article. In his [201] he referred to “the information which the defendant had obtained”, and amongst other things to “the comments [the respondent] had made to various journalists”; he had in mind, for example, Ms Albrechtsen’s reliance on Mr McGregor’s article. Read with this, what he said in his [206] as to no or inadequate reference in the article was recognition of a source for the generalisations, and not confinement to sources to which reference or adequate reference was made.

89 The judge was not substituting logic for reasonableness. The word “logically” plainly enough took up the composite phrase “logically, fairly and reasonably” in Morgan v John Fairfax & Sons Ltd (No 2), which the judge had earlier cited. He meant that the generalisation offended that element of reasonableness. It was well open to the judge to consider that the material in Ms Albrechtsen’s possession did not justify the generalised statements. The four judicial activities spanned the years 1989, 1991, 1993 and 1999. The imputations, which Ms Albrechtsen said she intended, were serious reflections upon a magistrate. They were not imputations of occasional failings, but of constancy and permanency of bias, incompetence and fitness. They needed a sound foundation, and the judge was well entitled to hold that it was not found in the material on which Ms Albrechtsen drew.

90 The judge has not been shown to have been incorrect in rejecting the reliance on the privileges.

(b) An analogous privilege?

91 The privilege for which the appellant contended was fairly remotely analogous to the Lange privilege. It was also an extended common law privilege, outflanking the traditional need for reciprocity of duty and interest between publisher and recipient and resting upon an interest or duty to publish matter to the general public. But it was frankly accepted that it was not justified by constitutional considerations of freedom of communication concerning government and political matters.

92 The appellant submitted that the administration of justice was vital to the ordered protection of persons and property, and that it was of legitimate interest to the general public to receive information on the discharge of the judicial function; and that there was a correlative duty to disseminate information and opinions on that subject. The well recognised public policy favouring the conduct of judicial proceedings in open court, and the protection given to fair reports of judicial proceedings, attested to the importance of public knowledge of judicial activity. Although not founded on the freedom of communication which the Constitution required, affording qualified privilege to discussion of the conduct of judicial officers was for “the common convenience and welfare of society” in like manner to affording the Lange privilege. And the defence was limited not by reasonableness, but by the law of contempt, since non-contemptuous discussion was not considered punishable.

93 So the argument ran; accepting it would be a major development in the law. The appellant submitted that the development was appropriate because the Lange privilege had been declared to take into account the varied conditions to which McHugh J referred in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, in the passage in the citation from Lange v Australian Broadcasting Corporation at 570-1 earlier set out, and in those varied conditions it was for the common convenience and welfare of society that the exercise of the judicial function should be open to discussion free of constraint short of that imposed by the law of contempt.

94 Had interest in the general public in receiving information on the discharge of the functions of those exercising functions and powers affecting members of the community been sufficient for extension of qualified privilege, the High Court would not have tied the Lange privilege to constitutional provisions relating to representative government. John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 was concerned with the validity of a provision that certain proceedings be heard in camera with restrictions on publication. One submission was that the conduct of the judiciary was a legitimate matter of public interest, with reference to the passage from the judgment of McHugh J in Stephens v West Australian Newspapers Ltd which was taken up in Lange v Australian Broadcasting Corporation at 570-1. Spigelman CJ, with whom Priestley JA relevantly agreed, said at [83] -

“[83] This passage, both as originally delivered and as approved in Lange, is concerned with the scope of qualified privilege for the purposes of the law of defamation. The inclusion of courts and judges in the scope of the subject matter with respect to which the public as a whole can be identified to have an interest, for purposes of applying the traditional rules of reciprocity in the context of qualified privilege for a defamatory statement, is not coextensive with the constitutional protection of freedom of communication. That protection, as Lange made clear, is an implication to be derived from the text and structure of the Constitution insofar as it makes provision for representative government. 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.”

95 The Chief Justice did not accept that the conduct of courts was within the scope of the duty and interest identified in Lange v Australian Broadcasting Corporation, and his observations are against the varied conditions to which McHugh J referred going to legitimacy of public interest in the conduct of courts. Nor did they. McHugh J spoke of the exercise of functions and powers vested in public representatives and officials. While there can be found reference to the “judicial branch of government” (D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 at [31]-[33]; (2005) 79 ALJR 755 at 761), judicial officers occupy a place in the exercise of functions and powers affecting members of the community unlike the position of those public representatives and officials. Judicial officers are not elected representatives, and are not subject to the control of parliament or the executive in the exercise of their functions, short of removal from office by parliamentary act in extreme circumstances. This independence of the judiciary exists for sound reasons, was historically hard won, and serves a vital constitutional and social purpose in the impartial dispensation of justice.

96 Apparently as a substitute for the constitutional provisions relating to representative government, the appellant submitted that discussion of the conduct of judicial officers was for the benefit of the community because it provided a form of “accountability”, apart from removal in the limited circumstances when that might come about. It was said that there was an “accountability mechanism [in] what do people think and say about what judges do, both during hearings and in their reasons at the end of a hearing”.

97 What was meant by accountability was, with respect, rather unclear. It is of the first importance that judicial officers decides cases brought before them according to law, uninfluenced by ephemeral public opinion and giving decisions which may be unpopular but which are necessary for the protection of legally recognised individual rights. The appellate system exists to ensure, within human frailty, that error is corrected. Interest in what judges do, during hearings and in their reasons, is commendable, but it is not an accountability mechanism, because what people think and say about the conduct of judicial officers does not and should not mould judicial decision-making. The accountability argument would, if embraced, open to like qualified privilege many persons and institutions which might be said to be accountable through what people thought and said about them. Whatever its validity in other respects, it has no validity with respect to judicial officers.

98 In a form of reverse engineering, the appellant put a submission to the effect that defamatory comments about judicial officers were not uncommon, they were nowadays generally tolerated if falling short of contempt, and therefore judicial officers should be unable to sue for defamation short of contemptuous defamation. That tolerance is generally shown is not a reason to create a defence whereby judicial officers are less able to sue for defamation than other members of the community, including politicians who have the benefit of reasonableness under the Lange privilege. Judicial officers have reputations, like all persons, to protect and vindicate if they wish. Further, a limitation by the law of contempt would be erroneous. The law of defamation protects an individual’s reputation. The law of contempt serves the different purpose of protecting the judicial institution (see for example R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 442).

99 I am not persuaded that there is a need or occasion for the law to develop in the manner suggested. The defences of publication of a fair protected report under s 24 of the Act and of comment are available to the mass media, and within their bounds the desirable interest in what judicial officers do can appropriately be satisfied. Licence for ill-based publications detrimental to confidence in judicial institutions would be against the interests of the community.

(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 the recipient 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.”

223 Section 22 of the Act as presently in force contains a sub-section (2A) which fleshes out what a court may take into account in determining whether the publisher’s conduct is reasonable. However subsection (2A) was only inserted in 2002 and therefore was not a part of the law as it stood when the article in question was published in December 1999. The Court can thus pass by the content of sub-section (2A) insofar as it contains matters not already proper for consideration.

224 In his book, “The Third Man: Reform of the Australasian Defamation Defences” (Federation Press, Sydney 2004) at p 142, Professor Gillooly remarks that “ … Due mainly to the requirement of reasonableness in [subsection] (1)(c), it is only in extraordinary circumstances that a media defendant can successfully rely on s 22." He reinforces that view by reference to the comment of Levine J in Nagle v Chulov [2001] NSWSC 9 at [53] that “ … the defence under s 22 … rarely, if ever succeeds for a media defendant”.

225 The guidelines as to what is reasonable or as Gleeson CJ and Gummow J put it in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 339, “[t]he considerations that bear upon the reasonableness” are set out in the judgment of Hunt AJA with whom Samuels JA agreed in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-8.

226 Of course, as those learned judges put it in Rogers at 339, “ … reasonableness is not a concept that can be subjected to inflexible categorisation.” In the present trial both parties accepted these guidelines with the proviso that they were merely guidelines to make a judgment on the facts and not legislation.

227 However, on appeal, Mr Walker said that the guidelines had been superseded by what the High Court said in Lange at 574. I believe that the reference to Morgan in Rogers refutes this submission.

228 It is only necessary to quote from the fourth of these guidelines in Morgan at p 388:

(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right (where appropriate) by making proper inquiries and checking on the accuracy of his sources;

(b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;

(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and

(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.”

229 Mr Walker says that the judge did not find that the publication was reasonable because he considered that: (1) what was illogical could not be reasonable; and (2) it was necessary for all the research material relied on to be set out in the article.

230 As to the first alleged error, it is true that in [201] the judge found that the imputations did not follow logically from the information Ms Albrechtsen had obtained. He said:

“ .. Ms Albrechtsen generalised as to the plaintiff’s impartiality, approach, fidelity to the law, attitude to the police, views as to the wrongful treatment of women and, taking extraneous considerations into account from four incidents over about 13 years and the comments she [ie the plaintiff] had made to various journalists. This was an insufficient base for the contents of the article.”

231 Mr Walker says that illogicality is not a badge of bad faith. One can be fair and honest and reasonable without being logical. This is, of course, true. However, it must be remembered that one of the indicia of reasonableness listed by Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 388 was that the writer had exercised reasonable care in preparation to ensure her conclusions were right and that such conclusions followed logically, fairly and reasonably from the information which she obtained.

232 Mr McClintock says that “logically” was used as shorthand for Hunt AJA’s composite phrase “logically, fairly and reasonably”. I would agree with this submission.

233 As a back up submission, he put that the judge really meant “did not follow reasonably" rather than “logically”. I cannot say that this submission appeals to me. The construction is, however, possible, but I do not need to explore it.

234 I do not consider that the reference to logicality destroys the judge’s overall finding on reasonableness.

235 The second challenge effectively is that the judge confused the requirements of the defence of fair comment with reasonableness under section 22 of the Act.

236 This submission focuses on [206] of the judgment:

“Some of the defamatory generalisations in the article seem to spring, not only from the four cases to which Ms Albrechtsen refers, but from the newspaper articles reporting what the plaintiff said on other occasions to which no reference is made in the article, or to which inadequate reference is made.”

237 Mr McClintock supported [206], at least his own reading of it, but Mr Walker said the judge here fell into dire error. Considerations of this kind are just out of place when considering reasonableness under s 22 of the Act.

238 Mr McClintock reminded us that there was a close relationship to the defence of fair report or fair comment and qualified privilege the former having grown out of the latter.

239 Mr McClintock submitted that what his Honour was really saying in [206] was that it can be unreasonable to ignore relevant material of which you are aware or exclude material or not mention material of which you are aware in a s 22 defence. He put that the judge was not saying “I can’t have any regard to what wasn’t said”, but rather, “I can have regard to what wasn’t said and it was unreasonable in a number of instances.”

240 He was challenged on this “spin” on the judge’s language because [206] appeared to be saying that his Honour’s concern was that Ms Albrechtsen’s comments were made on the basis of material not set out in the article, not that he had regard to what she didn’t say.

241 Mr McClintock’s riposte was that when one looked at [205] one could see that his honour was concerned with the writer’s state of mind and with what she believed. This really did not take the matter very far.

242 Mr McClintock conceded that when considering reasonableness in the publication one must look at things that aren’t mentioned in the article in the possession of the journalist as well as information which is not in the possession of the journalist but reasonably should have been.

243 Although the judge took a charitable view (perhaps too charitable a view) of the care in preparation, he rightly held in the passage from [201] that I have set out, that the conclusions did not “logically” flow from the information: that is they did not fairly and reasonably flow from that information for the same reasons.

244 Mr Walker, however, says he gains comfort from the findings of the learned trial judge on this issue.

245 The trial judge found that it was reasonable for Ms Albrechtsen to have relied solely on the various articles in newspapers in relation to the dismissal of charges at Brewarrina, the rulings at Lismore and the Berlei Bra case. He thought the same of the Kanaan case, though he considered it would have been preferable if Ms Albrechtsen had actually read the judgment in that case.

246 He also found that Ms Albrechtsen honestly believed in the truth of the imputations and what she had put forward as facts in her article.

247 However, the judge was faced with a question of fact. He paid heed to the guidelines from the Morgan case. He was concerned that four cases had been chosen over a thirteen year period to justify comments against the respondent and that material in the journalist’s possession which might have allowed the reader to evaluate the comments more accurately was withheld.

248 It is, as Mr McClintock submits, extremely difficult to find that the requirement of reasonableness has been made out in this case or that the judge did not find a fact reasonably open to him.

249 If follows that this defence was also rightly rejected by the learned trial judge.

250 3. Whether the Lange principle extends to publications about judicial officers. I thus come to the proposition that the principle in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 should be extended to apply to media discussion of judicial officers.

251 I should note here that, in one sense, writing about the "Lange principle” is a misnomer. Strictly speaking, Lange merely (re)defined the scope of (and probably extended) the common law defence of qualified privilege particularly with reference to the media when matters of government were the subject matter of the publication. However, for clarity, I will continue with the term “Lange principle”.

252 I should also note that in the oral submissions counsel would refer to "pure Lange”, “Lange extended” and, though these words were not actually used what might be called the “vibes of Lange”. It is not necessary to burden these reasons with such adjectives.

253 In Lange at 571 the High Court said after discussing relevant authorities:

"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 … . "

254 The appellant submits that the common law ought now recognise that there is a defence of qualified privilege for discussion of the conduct of State and Federal judicial officers generally. It is acknowledged that this submission does not rely on Lange other than by way of analogy. Accordingly it is put that the comments of Spigelman CJ in John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 707 and following, do not stand in the way of this extended common law defence. I will return to that matter later.

255 The appellant says that the submissions it makes are not creating any new type of privilege: it is seeking to extend the ambit of an existing privilege. Further, it does not seek to extend the principle in Lange, but rather to rely upon the mode of reasoning illustrated in Lange in relation to another of the three arms of government.

256 Mr Walker put that there are three accountability mechanisms applicable to judicial officers in Australia. The first is what people think and say about what judges do. The second is the possible action of the Governor after an address by both Houses of Parliament. The third is the electoral disapproval voiced by voters of the Executive's poor choice of a judge or poor decision not to have a judge removed. During argument Ipp JA suggested a fourth mechanism, the appellate system, but Mr Walker disowned that on the basis that it was really an internal correction method. Of these, the first so-called accountability mechanism, is the one of which the appellant says it is the champion.

257 When initially enunciated, this proposition did not go unchallenged by the members of the Court. The Court put to Mr Walker that the very idea of an independent judiciary is that it does take unpopular decisions and is not beholden to the whim, fancy and pressures brought about by public opinion however public opinion may be influenced or created by journalists or otherwise. Whilst there might be sympathy towards the basic proposition that the media should be free to criticise judges, the idea that there should be a privilege against that so that free rein is given, may amount to an attack on the very foundation of an independent judiciary.

258 Mr Walker was asked whether social circumstances or attitudes have changed so much that the common law needs to be changed. Mr Walker's riposte was "No, the common law needs to be understood in a way which happens to extend to a case like this. I announced my argument as being unprecedented, it doesn't mean that I am actually seeking to overthrow any authority.” He further claimed that Lange was what had brought about the change, it being "the appreciation, recognised as being the culmination of a relatively recent phenomenon by the High Court in Lange."

259 Although he conceded that there are some limitations, generally Mr Walker put that an article which is published in good faith concerning the judiciary attracts the same sort of qualified privilege as an article about any other form of government.

260 Mr Walker put:

Lange

261 Mr Walker puts that a statement about a judicial officer, "Do your job. This judge should not remain on the bench" is "precisely the kind of speech upon which everybody in society has a deemed or actual interest reciprocally with the duty, which we get by analogy from Lange. What greater interest do we all have in the doing of the judicial arm of government, than that it should be done independently and free from bias?"

262 Mr Walker put that it is “the relation between the governed and the governor that drives the reciprocal interest and duty which was spoken of in Lange and which also drives the relation between courts and their public.” Mr Walker submitted that the same philosophy that was applied in Lange by analogy should apply to comments about judges and magistrates.

263 Mr Walker also strongly argued that limits of press criticism of the judiciary have already been set by the law. Leaving aside the requirement of good faith, the law is that statements made in contempt of court or those which scandalize a court are punishable; see eg R v Dunbabin; Ex Parte Williams (1935) 53 CLR 434. Until that point is reached, the media should not be restrained in commenting on the working of judges, magistrates and the legal system.

264 In this connection it is to be noted from the authorities to which Mr Walker referred us that defaming a court may well be a contempt: R v Fletcher; Ex Parte Kisch (1935) 52 CLR 248, but that not every disrespectful statement made to or about a court constitutes contempt: only those which are calculated to obstruct or interfere with the course of justice or due administration of the law: R v Nicholls (1911) 12 CLR 280. See also Re A Special Reference from the Bahama Islands [1893] AC 138.

265 It should next be noted that, as Mr Walker made plain, the decision on this submission does not depend on Lange or on upholding or distinguishing Lange because the argument is by analogy only with Lange.

266 Perhaps the most significant of the decisions which have discussed the present point is that of the Victorian Court of Appeal in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. In the Popovic case the plaintiff was the Deputy Chief Magistrate of Victoria. The article published by the respondent complained that she should be removed from office because she had bullied the Police Prosecutor and hugged two drug traffickers she let walk free. The jury found the article defamatory, but that the conduct of the defendants in publishing it was reasonable in the circumstances and that the defendants were not actuated by malice.

267 Winneke ACJ said at p 11 [10] that whilst there may be a case where discussion of a judicial officer will impact directly or indirectly on the Executive Government, "… 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 … ."

268 Gillard AJA said at p 53 [251]:

,

Stephens v West Australian Newspapers Ltd

269 Warren AJA, as her Honour then was, said at p 104 [504] with respect to 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. 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."

270 At p 105 [507] Warren AJA mentioned other reasons for treating the judiciary differently from the legislature and Executive and said:

" … 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."

271 The cases before Lange referred to by her Honour were Nationwide News Ltd v Wills (1992) 177 CLR 1 at 74 per Deane and Toohey JJ; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 179-182 per Deane J and Cunliffe v The Commonwealth (1994) 182 CLR 272 at 298 per Mason CJ.

272 In Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398 at 425; (2002) Aust Torts Rep 81-685 at [162], Higgins J expressed the view, obiter, that the conduct of judicial officers in the performance of their judicial duties "may well qualify" the Lange type qualified privilege. However, the only authority mentioned by his Honour for this obiter comment was Mann v O'Neill (1997) 191 CLR 204 which, with respect, has little to do with the matter.

273 As mentioned earlier, in John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 709 Spigelman CJ with whom Priestley JA agreed on this point as well as generally, said at [83], with respect to the argument that conduct of the judiciary fell within Lange-like principles:

Lange

274 The learned Chief Justice noted that if one took this submission to its logical extreme there would be virtually no subject that was not of a "governmental or political character".

275 At p 210 [87] the Chief Justice noted that at least where the publication concerned the accountability to the electorate and the responsibility of members of the executive, the constitutional flavour of Lange is focussed on the Federal sphere, not the State sphere.

276 Doyle CJ in Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at 70 [11] agreed with this limitation to Federal matters. His Honour also said at [15] “… the fact that the publication refers to the Federal Court and to court orders is not of itself enough to attract the constitutional protection … ".

277 In the same case, Besanko J said at p 128 [295], a passage with which Doyle CJ agreed:

“ … I do not think that comments about the courts and the orders they make is a government or political matter. The publication is to an extent about freedom of speech. As important as that topic is in our community, it seems to me it is not a government or political matter unless it is raised in the context of conduct by the executive or legislative branch of government … .”

278 In Peek v Channel Seven Adelaide Pty Ltd [2004] SASC 425, Gray J had to deal with the Lange principle in the context of publicity about a lawyer’s involvement with a former magistrate.

279 Gray J quoted from Winneke ACJ in Popovic [9] (p 10) at p 27 of the transcript judgment:

“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.”

280 His Honour went on to say that there were conceivably some situations where discussion about a judicial officer could be a government or political matter, but he could not see how an opinion piece about how a particular judicial officer has handled particular court proceedings could so qualify.

281 I might complete this survey of relevant authorities by noting that in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 331 Callinan J reiterated the point that the Fathers of the Constitution deliberately refrained from including in our constitution a comparable provision to the First Amendment to the United States constitution. This was not a new point, see eg Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106 especially per McHugh J at 228-9. For balance I need to note also Callinan J’s statement, with which Kirby J vigorously disagreed; see page 280. However, it gives me the flavour of the Lange defence having got to the stage of “this far and no further.”

282 Accordingly, what authority there is on Mr Walker’s proposition tells against it.

283 Mr Walker challenges this conclusion. He puts that Chapman is a case which really has no relation to the present case. He says that, whilst at first blush, this Court could be forgiven for thinking that the cases to which I have otherwise referred suggested that anything short of a call for a joint address by both Houses of parliament to dismiss a judge fell outside Lange, that would not be a proper reading of that material.

284 The sense of Lange, Mr Walker submits, is the freedom to publish information about public representatives and officials and, in this connection, judges fall within the class designated “public officials”.

285 He submits that this leads to the adoption of a rule that a publication about a judicial officer should be classed as unreasonable and hence actionable only if it amounted to a contempt. This would be in accordance with policy that it is not in the public interest that judges be able to sue for defamation for their personal benefit when the quality of their wisdom or fairness is impeached. He notes that even as long ago as 1880, Martin CJ in Re The Evening News (1880) 1 LR (NSW) (L) 211 at 238 noted that there was a public interest in the court itself dealing with contempt and intellectually shuddered at the thought that “Judges are to bring actions for libels published on them individually.”

286 He developed this by saying that qualified privilege is actually aimed at protecting social characteristics deemed important by the law’s approach to the way in which society is structured. Lange recognised that representative parliaments meant that individuals should be deprived of what would otherwise be a right to personal damages for defamation in the public interest. Likewise, precisely the same social interests which inform the law of scandalising contempt of court transfer holus-bolus to what ought to be the common law of qualified privilege in relation to judicial performance.

287 Although there is, as always with Mr Walker’s submissions, some very sound wisdom, it seems to me that the analysis of the trend of authority which I have noted above is to be preferred.

288 Mr McClintock presented, in his oral submissions, what he termed “six difficulties” with the extension sought by the appellant. The first of these difficulties involved defining what exactly was the extension sought, or otherwise put “what is it that is the subject matter of the communication that it is said this defence is to extend to”.

289 The second difficulty was, as Mr McClintock stated in his oral submissions, that the defence was unnecessary. He explained that generally newspapers have four defences available. “They can rely upon truth, they can rely upon reasonableness, they can rely upon expressions of opinion if their facts are accurate and they can rely upon the fact that they accurately reported matters. In circumstances such as that there is simply no room or simply no need for the extension my friend seeks.”

290 Mr McClintock recognised that his arguments were based upon the reasoning in Popovic who submitted that “the rejection of the application to judicial officers there, we would say, by parity of reasoning applies to the extension sought here”.

291 Further Mr McClintock referred to the “striking degree of ignorance” in the reporting by newspapers of court cases and judgments and said that he feared to allow the extension of the principle in Lange in the way sought by the appellant “would be a licence for irresponsible journalism”. This came under what he termed his third difficulty or reason for being adverse to the extension sought by the appellant by reason of it being “positively detrimental to our social system”.

292 The fourth difficulty raised by Mr McClintock was as he put it, that “the consequence of what my friend has said would be that the law would be more protective of the reputations of politicians than it would be of judges or those holding judicial office”. He submitted that “incongruity shows how unlikely it would be that the Court would imply a defence in those circumstances”.

293 The fifth difficulty raised by Mr McClintock refers to the fact that “there is simply no connection between contempt in the sense of scandalising the court and defamation. They serve completely different interests and the interest in defamation is the protection of the reputation of the people in question. The interest served in contempt cases of all sorts – except those involving breaches of orders and so on - is the protection of the sanctity of the judicial system so that the public faith in it is maintained against unjustifiable attacks”.

294 The final difficulty expressed by Mr McClintock with the proposition voiced by Mr Walker is a claim that he is “in fact re-inventing the wheel but he is inventing it without a spoke that was put in that wheel when it was invented in the middle of the nineteenth century”.

295 Both in the appellant’s reply and in the oral submissions presented to the Court, Mr McClintock sought to distinguish the circumstances of the publication in Popovic to those in this case. Whilst in Popovic, evidence had been given by the journalist that he did not intend to convey the imputation and did not believe it to be true, Mr McClintock distinguishes the present scenario in which Ms Albrechtsen “gave uncontested evidence to the effect that she intended to convey each of the imputations and honestly believed in them” (para 12 of the appellant’s reply). He argued that to determine the issue of reasonableness in this case in the same way as Popovic would therefore be wrong.

296 The learned trial judge said of the submissions that were made to him on the present point [194]:

John Fairfax Publications

297 He then went on to consider concepts of reasonableness.

298 I do not need to deal in detail with all that Mr McClintock has put. I am persuaded, however, by the general thrust of his submissions against following the philosophy so elegantly put to the Court by Mr Walker.

299 I should, however, deal with one particular matter and that is the submissions made by Mr Walker on the relation to defamation of judicial officers and the offences of contempt of court or scandalising the court on the one hand, and Mr McClintock’s fifth difficulty summarised above.

300 There is a very fine line to be walked in this type of case. Justice must be done in the courts openly. The fact that the door of the courtroom is left open, is nowadays mostly symbolic of this policy. Practically speaking the way in which the ordinary citizen will be informed of what is happening in the courts is by press reports.

301 This means that considerable latitude should be given to reports of and about what is happening in courts and tribunals.

302 However, if the reports are too negative too often, the effect will be not that the public is informed, but that they will (probably unjustifiably) lose confidence in the legal system. Once public confidence goes, disputes will again be decided by the “Might is Right” philosophy and thus decided by reference to the party with the greater economic power or the best fighter behind the hotel.

303 Thus, Mr Walker’s dichotomy with comment on the legal system on the one hand and scandalising the court on the other, seems to me to be, with respect, a classic case of the logical fallacy of excluding the middle. The middle in this case being comment which injures the reputation of a court or judicial officer which does not gain protection by the "ordinary" defences to defamation, yet is not so serious as to amount to scandalising the court.

304 Despite the attractive way in which Mr Walker presented the argument, I consider that the recent trend of authority indicates that Lange is probably the high water mark. I can see no reason for extending the scope of the Lange principle by analogy to the High Court's reasoning or otherwise.

305 Indeed, over all, the submissions put up by Mr Walker on this aspect of the case did not impress me. Whilst I would be one of the first to agree that the law must develop to meet the changing needs of society, a development, not squarely based on authority, which advances the interests of one section of society must be approached with great caution.

306 To some slight extent I feel as if I had not done justice to Mr Walker's argument in my summary discussion of it. However, the basis for the argument is very slender on the authorities, the argument depends a lot on philosophy and it is one that either one accepts or rejects.

307 I have rejected the philosophy because in accordance with what was said in argument and in particular what Spigelman CJ said in the John Fairfax Publications case, there is a vast difference between the sort of matter that was discussed in the current article and the material that was considered by the High Court in Lange.

308 Before leaving this point, I should mention that there was some discussion as to the place of reasonableness where the Lange principle or the supposed "Lange extended" operates. It is not necessary to deal with this point in view of what I have recently said, but I should note that in my view, reasonableness applies in much the same way as it applies to a defence of qualified privilege under s 22 of the Act. I would adopt what Dr Kenyon says in “Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice” (2004) 28 (2) MULR 406 at 418-9 that overall, reasonableness in Lange tracks reasonableness under s 22 of the Act.

309 4. Miscellaneous Matters on Liability. The only matter remaining for discussion before I pass to questions of quantum is the matter raised in the eighth ground of appeal, that is, that the respondent’s alleged failure to take up the defendant's offer to reply was not a failure by the plaintiff to mitigate her damage.

310 The evidence showed that the appellant had offered the respondent the opportunity to reply to the article by way of a "suitable item on the Opinion page or an appropriate letter to the Editor.” This offer was not taken up by the respondent.

311 The appellant argued before the trial judge that this conduct constituted a failure to mitigate her damage, a submission which the trial judge rejected without giving any reasons.

312 The appellant submits that in this the judge erred and cited Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 603, per Byrne J.

313 However, all that Byrne J said in that case was that the submission that the refusal to take up an offer of a reply might result in a failure to mitigate damages was not utterly futile despite two South Australian cases (Dawes v News Ltd [1935] SASR 312 at 319-320 and McRae v South Australian Telecasters Ltd (1976) 14 SASR 162 at 167) pointing in the other direction.

314 Even if one were to follow Byrne J’s view, the matter is clearly one of fact to be evaluated in the factual context of each case. There is nothing indicated in the submissions that this matter was a material factor here, especially in view of the appellant's continued affirmation of the need to let the public know the threat the respondent posed to society without apology.

315 Accordingly, this ground fails.

316 5. Quantum of Damages. In the light of this Court’s views on the defence of comment succeeding with respect to various imputations, it will be necessary for there to be a reassessment of damages.

317 Just how this assessment should be performed could be a matter of debate and I agree that in the first instance we should receive written submissions on this matter.

318 I should note that some matters of principle as to the assessment of damages such as the significance of s 46A of the Act and the evaluation of what the High Court said about that section in Rogers v Nationwide News (2003) 216 CLR 327 have already been the subject of detailed submissions and, if this court were to be asked to reassess damages, I would not wish to hear or read a repeat of those submissions.

319 6. Costs. In the light of our decision, it is not possible to deal with the proper order that should be made as to costs both below and on appeal. Counsel may care to include submissions on this matter as to costs if they wish this court to reassess damages or if they agree that the reassessment should be made elsewhere or a new trial ordered.

320 I agree with Giles JA that the parties should provide written submissions as to their preferences in this regard. Of course, if they agree on procedure, and/or on quantum and/or on the proper order for costs, a simple note to that effect will suffice.

321 7. The Result of the Appeal. Accordingly, I would propose the following orders:

1. Appeal allowed in part.

2. Set aside the orders of Smart AJ.

3. Verdict for the appellant/defendant in respect of imputations (c), (f), (g) and (h).

4. Verdict for the respondent/plaintiff in respect of imputations (a), (b), (d) and (e).

5. Reserve further consideration of the questions as to quantum of damages and costs.

6. Direct the parties to file within 14 days their respective written submissions stating which of the courses referred to by Giles JA in paragraphs [101]-[102] they propose and their reasons for it.

Citations

John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164

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CITATION:	John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
HEARING DATE(S):	8 and 9 September 2004
JUDGMENT DATE:	17 May 2005
JUDGMENT OF:	Giles JA at 1; Ipp JA at 104; Young CJ in Eq at 141
DECISION:	Appeal is allowed in part, damages to be reassessed.

CATCHWORDS:	TORT- Defamation- Whether matter fact or comment- Whether material supporting comment. TORT- Defamation- Qualified privilege- Whether "Lange defence" available when judicial officer allegedly defamed.
LEGISLATION CITED:	Defamation Act 1974, ss 9, 11, 22, 24, 29, 30, 31, 32, 33, 34, 35, 46A
CASES CITED:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 78 ALJR 346 Carleton v Australian Broadcasting Corporation (2002) Aust Tort Rep 81-685; 172 FLR 398 Christie v Robertson (1889) 10 LR(NSW)(L) 157 Clarke v Norton [1910] VLR 494 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 Cunliffe v Commonwealth (1994) 182 CLR 272 Dawes v News Ltd [1935] SASR 312 Digby v Financial News Ltd [1907] 1 KB 502 D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 79 ALJR 755 Evening News, Re The (1880) 1 LR (NSW)(L) 211 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 Harrigan v Jones (2001) Aust Tort Rep 81-621 Herald & Weekly Times v Popovic (2003) 9 VR 1 Horrocks v Lowe [1975] AC 135 Hoser v The Queen [2003] VSCA 194 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 Kemsley v Foot [1952] AC 345 Kimber v The Press Association Ltd [1893] 1 QB 65 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Mann v O'Neill (1997) 191 CLR 204 McGinty v Western Australia (1996) 186 CLR 140 McRae v South Australian Telecasters Ltd (1976) 14 SASR 162 Mitchell v Sprout [2002] 1 NZLR 766 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Mowlds v Fergusson (1939) 40 SR (NSW) 311 Nagle v Chulov [2001] NSWSC 9 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 O'Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 Peek v Channel Seven Adelaide Pty Ltd [2004] SASC 425 Pervan v The North Queensland Newspaper Company Limited (1993) 178 CLR 309 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 150 Petritsis v v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 R V Fletcher; Ex parte Kisch (1935) 52 CLR 248 R v Nicholls (1911) 12 CLR 280 Re A Special Reference from the Bahama Islands [1893] AC 138 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Roux v Australian Broadcasting Commission [1992] 2 VLR 577 Sims v Wran [1984] 1 NSWLR 317 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
PARTIES:	John Fairfax Publications Pty Limited (A) Patricia June O'Shane (R)
FILE NUMBER(S):	CA 40208/04
COUNSEL:	B Walker SC and R Glasson (A) B R McClintock SC and R Weaver (R)
SOLICITORS:	Freehills (A) Aitken McLachlan Thorpe (R)

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20527/00
LOWER COURT JUDICIAL OFFICER:	Smart AJ