Peek v Channel Seven Adelaide Pty Ltd

[2004] SASC 425

SUPREME COURT OF SOUTH AUSTRALIA

(Miscellaneous Appeal: Civil)

PEEK v CHANNEL SEVEN ADELAIDE PTY LTD

Judgment of The Honourable Justice Gray

17 December 2004

DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION - RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION

Defamation proceedings issued by legal practitioner, against the defendant, a television company - plaintiff alleged comments in a television program publicly broadcast were defamatory - plea of qualified privilege.

Appeal against decision of Master declining to strike out plea of qualified privilege - defendant sought to plead qualified privilege on the basis that the broadcast constituted discussion of government and political matters and was an exercise of the implied freedom of political communication as protected by the Commonwealth Constitution - discussion of implied freedom of political communication - discussion of "government and political matters" - discussion of test articulated by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 - discussion of judicial power and implied freedom of political communication - consideration of whether defence of qualified privilege ought to be struck out.

Held - defence of qualified privilege should not be struck out - arguable defence of qualified privilege pleaded - appeal dismissed.

Supreme Court Rules 1987 (SA), r 53, referred to.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 ; Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445; General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125; Rogers v Legal Services Commission (SA) (1995) 64 SASR 572; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australia Newspaper Ltd (1994) 182 CLR 104; The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; Wilson v Minister for Aboriginal & Torres Straight Islander Affairs (1996) 189 CLR 1; Law Society v Nicholson [2004] SASC 2 at [21]; R v Murphy (1985) 4 NSWLR 42; R v Fingleton (2003) 140 A Crim R 216, considered.

PEEK v CHANNEL SEVEN ADELAIDE PTY LTD
[2004] SASC 425

Miscellaneous Appeal: Civil

GRAY J:

1. This is an appeal against a decision of a Master refusing an application to strike out an amended defence.

2. The question raised by the appeal concerns the constitutional protection of freedom of speech and the reach of the extended defence of qualified privilege to a claim in defamation.  Discussion of government and political matters forms the touchstone of the test for extended defence of qualified privilege as outlined in Lange v Australian Broadcasting Corporation.[1]  However, as the meaning of government and political matters remains ill defined, the scope application of the defence of qualified privilege is to be developed on a case-by-case basis.

   [1] (1997) 189 CLR 520

   Background

3. The appellant and plaintiff, David Peek, a barrister, instituted proceedings against the defendant and respondent, Channel Seven Adelaide Pty Ltd, claiming damages for defamation.  The claim concerned an item broadcast by the defendant on its Today Tonight “current affairs” program on 10 June 2002.  The item concerned the sale of assets of the convicted former magistrate, Peter Liddy.  The item discussed proceedings in the District Court brought by some of Mr Liddy’s former victims and the lifting of a Mareva injunction granted by a District Court Judge in favour of those victims.  The text of the item is reproduced later in these reasons.

4. It was said that the broadcast item suggested that Mr Liddy’s lawyers had procured a valuation of Mr Liddy’s house and contents at a gross undervalue and had used this misleading valuation to persuade a District Court Judge to discharge the Mareva injunction.  It was then asserted that this was done to facilitate the sale of the property and the application of the proceeds to the payment of Mr Liddy’s legal fees, leaving Mr Liddy’s victims with nothing to recover by way of compensation.

5. The plaintiff represented Mr Liddy as senior counsel in criminal proceedings in the Supreme Court, including the Court of Criminal Appeal, between 21 August 2001 and 4 June 2002.  He did not appear in the District Court proceedings referred to in the broadcast item.

6. In the plaintiff’s statement of claim the following particulars were set out relating to the Today Tonight broadcast on 10 June 2002:

   The said words and pictures were defamatory of the plaintiff in that in their natural and ordinary meaning they meant and were understood to mean that Mr Liddy’s lawyers (including the plaintiff):

   -     procured and presented to the District Court a valuation of Mr Liddy’s that was false or misleading or manifestly inadequate;

   -     in the alternative, negligently procured and presented to the District Court a valuation of Mr Liddy’s property that was false and misleading or manifestly inadequate;

   -     conspired with lawyers acting for some of the victims of his offending to vary the injunction so that Mr Liddy’s property could be sold to pay his lawyers’ fees;

   -     conspired with or knowingly assisted Mr Liddy to deprive the victims of his offending of their compensation by disposing of his assets at gross undervalue for a sum sufficient to pay the lawyers’ fees but so as to leave nothing over for the victims;

   -     conspired with or knowingly assisted Mr Liddy in a vindictive scheme to deny the victims of his offending their due compensation;

   -     acted unscrupulously and unethically in their own interests and to the detriment of Mr Liddy’s victims to procure payment of their fees;

   -     acted unscrupulously and unethically in their own interests to procure payment of the fees that were exorbitant;

   -    conspired with or knowingly assisted Mr Liddy to connive with a person of ill-repute, one Terry Stephens, to put his assets beyond the reach of the victims of his offending.

   It was said that the publication of the Today Tonight broadcast injured the plaintiff’s credit, character and reputation and brought the plaintiff into “public scandal, odium and contempt”.

7. On 16 September 2002 the defendant filed an original defence.  An amended defence was filed on 8 May 2003 as permitted by the Rules.[2]  Such amendments are subject to disallowance.[3]

   [2] This is provided for in Supreme Court Rules 1987, Rule 53.01 which provides:

   [3] This is provided for in Supreme Court Rules 1987 Rule 53.06 which provides:

8. In both defences the defendant denied that the broadcast item was capable of being defamatory of the plaintiff:

   The said broadcast or the said words and pictures:

   .       did not depict the Plaintiff;

   .       did not name the Plaintiff;

   .       did not otherwise refer to or identify the Plaintiff.

   The Defendant denies that the said words and pictures in their natural and ordinary meaning:

   .       were defamatory of the Plaintiff;

   .bore or were understood to bear or were capable of bearing any of the meanings set out in paragraph 6 of the Statement of Claim.

9. In its original defence, the defendant relied on a defence of qualified privilege and pleaded that the broadcast item constituted political discussion.  The amended defence introduced the defence of fair comment and also advanced the defence of extended qualified privilege.  It was pleaded that the broadcast item constituted discussion of government and political matters.  The facts pleaded by the defendant in the original defence were relied upon to support the amended defence. 

10. The hearing of the present appeal was adjourned to allow the defendant to provide further particulars in relation to the amended defence.  A further amended defence was filed containing voluminous further particulars.  These particulars are not referred to their entirety in these reasons but are accepted as part of the defendant’s amended defence.  The following extract of the further amended defence relevantly provides:

    Further or in the alternative, the broadcast was published on an occasion of qualified privilege in that the broadcast constituted the discussion of government and political matters and the Defendant’s conduct in publishing the broadcast was reasonable in the circumstances:

    …

    -the criminal charges against Liddy and the conduct of those charges within the South Australian judicial system had been the subject of widespread publicity and of significant public interest and debate;

    -the proceedings had also generated considerable publicity and attracted substantial public interest and debate;

    -the attitude adopted and role played by Liddy in the defence of the criminal charges and the proceedings warranted report and comment within the context of the ongoing public debate;

    -the District Court in the proceedings had determined that an injunction preventing the disposal of Liddy’s assets was justified;

    -given that the injunction was subsequently varied on the application of Liddy, the circumstances surrounding the variation of that injunction were worthy of investigation and scrutiny;

    -the investigation of those circumstances disclosed a number of matters of concern with the processes followed and the consequences of the variation which necessitated public communication of those investigations and concerns;

    -publication of those matters by the Defendant by means of the broadcast of its Today Tonight current affairs program was an appropriate and practicable mode of communication of those public issues;

    -the matters which were the subject of the broadcast related to events in which the Hon. Peter Lewis MP (‘Lewis’) was involved:

    -      at the time of the broadcast, Lewis:

    …

    .      was the speaker of the Legislative Assembly in the South Australian Parliament;

    …

    .      was the subject of Civil Proceedings instituted by Stephens regarding certain business dealings between Stephens and Lewis involving (inter alia) Liddy’s assets;

    …

    -the involvement of Lewis in matters broadcast by the Defendant was raised and debated in Parliament and was the subject of widespread publicity at various times before and subsequent to the broadcast by the Defendant;

    -Lewis has publicly criticised the functioning of the State’s Court system and Judiciary, both generally and in particular in relation to the civil proceedings brought against Liddy and has proposed that the State Government of South Australia establish a Royal Commission into these matters;

    …

    -in the circumstances the broadcast related to matters which were relevant to the public of South Australia and, in particular, electors in that State;

    …

11. By application dated 3 June 2003 the plaintiff sought a disallowance of the amended defence or striking out of the amendments with the consequence that the original defence would stand as the defence of the defendant.  One question before the Master was whether the defence of qualified privilege, on the grounds that the item constituted discussion on government and political matters, should be permitted to stand.

    Master’s Decision

12. On 2 October 2003 the Master delivered reasons for his decision to refuse the plaintiff’s application to strike out the respondent’s amended defence. 

13. At the hearing of the application it was agreed that in order for the application to be granted, the plaintiff had to establish that the defences referred to in the amended defence were devoid of merit.[4]  As acknowledged by the Master, the power to strike out a pleading must be exercised sparingly and only in clear cases.[5]  Further, the decision to strike out must be determined with reference to the pleading itself - a trial of the merits of the particular defence ought not to be embarked upon.

    [4] Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 185

    [5] See Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445; General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125; Rogers v Legal Services Commission (SA)  (1995) 64 SASR 572

14. The Master rejected the submission of counsel for the plaintiff that the Lange defence of extended qualified privilege was not an arguable defence:

    As I understand [counsel for the defendant’s] argument, the Lange defence was different from the ordinary defence of qualified privilege such that it was permissible for the defendant to rely upon the facts as pleaded in paragraphs 8.6 to 8.89 to support the contention that the broadcast consisted of the discussion of government and political matters and to support the contention that the broadcast was reasonable.  Although [counsel] did not specifically submit that the decision in Rogers v Allen should be distinguished, I understand that to be the essence of his submission.  Such a submission requires me to consider whether or not there must be a material link between the particulars relied upon and the conduct of the plaintiff.  This is in the context where the application before me was argued on the assumption that if the broadcast or any part of it defamed the plaintiff, such defamation occurred accidentally.

    In my view, it is at least arguable that the decision in Rogers v Allen does not apply where the Lange defence is relied upon.  Because the particulars are said to support the contention that the broadcast consisted of discussions of governmental and political matters and that it was reasonable, it would be inappropriate to disallow paragraph 9 of the amended defence.  For these reasons the application by the plaintiff to disallow paragraph 9 should be refused.

    As earlier observed, the application to strike out the amended defence was rejected.

    Chronology of Publications

15. In order to appreciate the context within which the Today Tonight item was broadcast, it is necessary to have regard to other related publications published prior to the item in question.

16. On 21 February 2002 Mr Secker, a Member of Parliament, made the following comments in the House of Representatives:

    It was reported in January that one Terry Norman Stephens had purchased a mansion at Kapunda owned by disgraced paedophile magistrate Peter Liddy.  Stephens spent six years in jail for armed robbery in New South Wales and has been jailed for fraud. …

    Comments were also made about Peter Lewis, Speaker of the House of Assembly, and his association with Terry Stephens and his business interests:

    The report indicates that, in January 2002, Arrowlea entered into an agreement for the sale and purchase of shares in a company called Goldus Pty Ltd.  Parties to the agreement were Ivan Peter Lewis, Goldus Pty Ltd, Arrowlea Pty Ltd, Terrance Norman Stephens and Mount Gleam Pty Ltd.  …

    The report of the administrator of Arrowlea raises serious issues, such as: why was Stephens-Arrowlea prepared to pay Lewis and his company more than $1million for assets which were of questionable value? Was there some other benefit which Lewis promised to provide Stephens?  Why did Mike Rann enter into a deal with a person as desperate as Peter Lewis? … Whatever the answers may be, the process I have outlined, and that conducted by Mr Lewis with a convicted criminal, should remove him from the candidature for the position of Speaker.  He is an embarrassment to the parliament of South Australia and an embarrassment to all of his parliamentary colleagues.

17. On 22 February The Advertiser published an article titled “Liberals attack Lewis in Parliament over $1.2 million deal”.  The article described the comments made by Mr Secker in parliament as follows:

    Independent MP Peter Lewis has been linked to an aborted $1.2 million business deal with convicted bank robber and defrauder Terry Stephens. 

    Federal Parliament was told last night Mr Lewis had agreed to a deal which would have seen a company backed by Mr Stephens undertake transactions which would have led to Mr Lewis and a company he controlled benefiting by $1.2 million.

18. On 6 March 2002 The Advertiser published an article titled “Court told Lewis ‘took papers from Liddy house’ ”.  The article reported that Mr Lewis had been accused of taking documents from the former mansion of Mr Liddy.  Mr Stephens, the new owner of the mansion, made the allegations.

19. On 4 April 2002 The Advertiser published an article titled “Peter Lewis target of police inquiry”, reporting that:

    Mr Stephens and Arrowlea were investigated by the Australian Securities and Investments Commission after The Advertiser reported Stephens had bought the Kapunda mansion belonging to disgraced magistrate Peter Liddy for $500,000.

20. On 5 April 2002, The Advertiser reported that Mr Stephens had been subject to a police investigation as part of an inquiry into the business activities of Mr Lewis.  It was reported that:

    Mr Stephens said the removal of a large number of antique revolvers – which he said he had valued at up to $2 million – from Shenandoah, the mansion formerly owned by disgraced magistrate Peter Liddy, was one of the matters he was quizzed about by the detectives.

21. On 6 April 2002 The Advertiser ran a story entitled “Peter Lewis and the antique guns” where it was alleged that Mr Lewis approached the minister of police to issue permits for unregistered antique firearms said to be worth tens of millions of dollars, belonging to Mr Stephens.  It was said that:

    The weapons, which included up to 200 Colt revolvers and other side-arms, were bought by Mr Stephens as part of the sale of Shenandoah, the former mansion of disgraced magistrate Peter Liddy.

    The whereabouts of the weapons are now unknown because they were removed from the Kapunda mansion the night before administrators took control of the property in late January.

22. On 9 April 2002 The Advertiser reported that Mr Lewis claimed that he did not have the 200 antique weapons missing from what was formerly Peter Liddy’s mansion.  It was said that Mr Lewis stated that he had been assisting Terry Stephens obtain permits to enable the guns to be sold.  It was reported that the dealings between Mr Lewis and Mr Stephens were the subject of a police investigation.

23. On 22 May 2002, The Advertiser published an article titled “Libs urged law suit, says Lewis”.  It was reported that:

    Mr Stephens is suing Mr Lewis over a failed business transaction and over the disappearance of 200 guns from Shenandoah, a mansion once owned by former magistrate Peter Liddy.

24. On 10 June 2002 the publication the subject of the present proceedings, entitled “Peter Liddy’s Mansion”, was broadcast by Channel Seven’s current affairs program Today Tonight.  The item included interviews with Andrew Martin, a man who was allegedly abused by Mr Liddy.  Mr Martin was seeking compensation through civil proceedings. He claimed he was precluded from the criminal prosecution process due to the date of the alleged offending.  Comments from Mr Stephens were also included.  The transcript of the segment is reproduced as follows:

    Presenter:… Also tonight, where has all the money gone?  The paedophile judge leaves his victims with almost nothing and a [sic] now a new victim speaks out. We’ll have those stories and more coming up tonight right after the news.

    Hello, welcome to the program.  Tonight, extraordinary picture of hoons doing 300 kilometers [sic] an hour on our roads beating speed cameras.

    But first tonight, another twist in the tale of Adelaide’s disgraced magistrate paedophile, and more surprises about his treasured gun collection.

    While Peter Liddy’s victims are still trying to come to terms with his effect on their lives, more questions have been raised about why Peter Liddy would agree to sell his home to someone like ex-con man Terry Stevens [sic] in the first place.

    As Rowan Wenn reports, now another victim of the once trusted magistrate has come forward asking where has all the money gone?

    Martin:       He thought of me as a piece of rubbish, as far as I’m concerned.

    Stevens [sic]:  I’m saying it’s time to pay my penance for the [sic] what I have done wrong in my life, and the only way I can do that is to help the people that have been hurt.

    Reporter:You know a story runs deep when the more you find out, the less you realise you actually know.

    Stevens [sic]:  People like you live in a dream world.  You think everything is rosy.  You go home to a beautiful wife, and in future hopefully kids, umm like the average family do.  They don’t know what a real world is.

    Reporter:Through out the Terry Stevens [sic] saga, many questions remain unanswered, but one stands out.  Why would former magistrate Peter Liddy agree to sell his mansion, guns and all to a convicted criminal?  Now for the first time, Today Tonight can reveal details of that deal which saw Stevens [sic] get the house while Peter Liddy’s victims seem set to get nothing.

    Martin:Put a price on your youth, put a price on that, ‘cause these people do take away your youth.

    Reporter:This is the first time Andrew Martin has spoken publicly about the terrible secret he kept for more than two decades until one Saturday morning when the police came to his home.

    Martin:They knock on the door and a couple of under cover gentlemen from the Child Exploitation Unit, aah, approached me asking if I was, um Andrew Martin who went by PB.  And I went: “Yes, Panda Bear.”

    Reporter: Panda Bear was the nickname paedophile Peter Liddy gave the 9-year-old when he was a member of the Seacliff Surf Lifesaving Club.

    Martin: I often wondered that, but probably cuddly, cute, cuddly, … I put it down to… .

    Reporter:When you slept over at Peter Liddy’s house, what sort of things would happen?

    Martin:It was all done in games, and er um strip Kelly pool type games would go on, and er, I remember it got to the stage where a part of my training he focused on, ‘cause I was a good sprinter and that, and he focused on that and part of my training he would, you know, he would get me to do pushups .. nude?

    Reporter:     You’re joking?

    Martin       No, no.

    Reporter:After talking to the police, Andrew was determined to have his day in court, but as it turned out he would never be a part of Liddy’s criminal trial.  Because, incredibly under South Australian law, no one can be charged with child molestation if the crime occurred before 1982, by which time Liddy had moved on to other victims.

    Martin:Once you hit a like a certain age, it was like: “See you later”.  He had to go scalp someone young again.

    Reporter:The only way Andrew could pursue him was through the Civil Court, and this is where Liddy’s mansion Shenandoah and those guns became so important as a potential source of compensation.

    Martin:I don’t want much, you know, just enough to keep my head above water, ‘cause I’ve lost so much.

    Reporter:To ensure the house was not sold before their case was heard the victims were granted this injunction [scene depicting injunction, with “In the District Court of South Australia” and “Peter Michael Liddy” highlighted] in the District Court.  But then last year, to the victim’s distress, the court agreed to the sale so Liddy could pay his lawyers.  But what was really baffling the buyer was convicted criminal Terry Stevens [sic].

    Stevens [sic]:  If I’m paying $500,000 for a property and its got the best part of 10 to 20 million dollars worth of collectables inside it, I’d say that was a pretty good return.

    Reporter:So what was Liddy’s role in effectively denying his victims any chance of damages?  Well, if you believe what he recently wrote from prison to one of his supporters, he was apparently against the sale. 

    Voice Over quoting letter:

    “The creeps who put me in here blocked the sale of my house for six months but then withdrew their objections when Stevens [sic] offered to buy it.”

    Voice Over:But how can that be right when it was Liddy’s own lawyers who beat the injunction and worked hard to set up the deal?

    Voice Over quoting letter:

    “Could you please confirm in writing the offer made by your client of $500,000 on a walk-in, walk-out basis in relation to the property at Kapunda?”

    Reporter:And as the victims feared, the lawyers pocketed almost all of it.  Leaving them little to gain from court action.  So should the house and contents have sold for significantly more?  Well, this is the contents valuation prepared by a valuer and then presented to the court by Liddy’s lawyers.  With the house put at $350 000, it estimates all of Liddy’s other possessions were worth at best, just $150,000. 

    Martin       I couldn’t believe what I was seeing.

    Reporter:     Cause you’ve seen the collections, hadn’t you?

    Martin       Yeah.

    ReporterAnd it seems even Peter Liddy agrees.  This is the Australian Shooters Journal from July 1989.  Inside there’s an article about Peter Liddy’s extensive antique collection.  It’s four pages long and we know it’s accurate because it was actually written by Peter Liddy under the fake name of Adam Dixon.  In the article Liddy brags about owning literally dozens of guns, some dating back to the 1700s as well as holsters, swords, powder horns and historic documents including one signed by George Washington.  So what was it all worth?  Well according to Liddy, … .

    Voice Over depicting journal:

    “The guns are not for sale, but if they were the sale price would have set an Australian record for antique guns.” 

    Voice Over: But amazingly none of this appears in the valuation.

    Voice over quoting valuation:

    “I have not made any specific allowance for the collection of books nor any of the guns, holsters or powder horns.”

    Voice Over A fact that absolutely stunned Andrew Martin, because he says Liddy had so many guns, he’d even let the 9-year-old sleep with one. 

    Reporter:     Were there always guns around?

    Martin:Definitely, always guns.  I used to, I remember a er, like a German pistol like a, like a Ruger type, aah, used to go up the handle, like an [sic] nine shot maybe.  I used to sleep with that under my pillow.  And “Andrew, you hear a noise, you shoot.  We’ll ask questions later.”

    Reporter:     The valuer also admitted to not having checked the entire house.

    Voice over quoting valuation:

    I do not pretend that this is a comprehensive list of items in the residence.  I have not gone through all the cupboards, nor have I appraised each item minutely to establish authenticity.

    Voice Over: But despite all that, the valuation was accepted by lawyers on both sides.

    Martin:       I am angry with the judiciary system.

    Reporter:And for the victims there was even more bad news last week, according to Liddy’s lawyers his very generous superannuation pay-out has also disappeared on legal fees.  [Speaking to Martin] You never got you [sic] day in court to tell Liddy how what he did to you affected you.  What would you say to him?

    Martin:I don’t think I would have to say much.  He’ll know by looking at me, the befores and the afters.  He’ll know what he has done to me.

1. On 22 July 2002 Channel 7’s current affairs program Today Tonight broadcast a further segment entitled “Peter Liddy Guns and Money Saga”.  The segment was introduced as follows:

   We’ve spent the last four months investigating the intrigue surrounding the sale of antique guns and collectables of disgraced Magistrate, Peter Liddy, including his Kapunda mansion, Shanandoah [sic].

   And so many things just don’t make sense: how a court could allow guns and ammunition to be sold to a convicted bank robber; how valuable relics disappeared or were sold for a song; and how Liddy’s victims may be left to recover almost nothing from his fortune.

   The controversy has also impacted on Adelaide’s political world, and we can reveal exclusively that Peter Lewis, the Speaker of Parliament, is calling for a royal commission into the whole saga, saying if he doesn’t get it he’ll resign, possibly sending South Australians back to the polls.

   It’s a story which also touches on the administration of justice in this state, and, as Rohan Wenn reports, we all deserve to know what really happened.

   The Today Tonight item broadcast on 22 July 2002 included parts of an interview with Peter Lewis and also comments from an alleged victim, Andrew Martin.  The segment included a discussion of the District Court Judge’s decision in relation to the sale of the antique guns previously kept at Shenandoah.  Transcript of the program included the following exchange:

   Reporter:There’s no doubt the court knew of the guns, as they were mentioned in the valuation prepared by this man, Eric van Kruyssen.  And we know Terry Stephens eventually ended up with the guns because he showed them to South Australian Speaker, Peter Lewis.

   Lewis:When I discovered that they had sold – that is the court system had sold this man [Terry Stephens] firearms and other weapons, that he wasn’t entitled to have in law because he was a convicted felon, an armed robber, I was astonished and amazed.

   Reporter:But that was exactly what the court did, even though Stephens’ criminal past meant he could never get a licence for those guns.

   Martin:       Well, what’s that say for our system?

   Reporter:And that’s not the only problem with the system.  Today Tonight has spent weeks and thousands trying to get court records of the sale from the District Court.  Initially we were told they were all suppressed.  So we applied to the court, and it’s been passed around between five different judges, but up until late this afternoon no one had agreed to even listen to our request.

   Lewis:The allegations have to be cleared up.  The evidence has to be clearly examined.

   Reporter:We’ve obtained the confidential phone records of one of the lawyers originally involved in brokering the deal.  It’s obvious that, late last year, a lot of people were working hard to find a way to sell Shenandoah [sic], even if that meant Liddy’s victims, like Andrew Martin who was suing for compensation, may end up with nothing.

   Martin:       I was told it had to be sold for Mr Liddy’s legal fees, and they came first.

2. On 24 July 2002 The Advertiser reported that the Solicitor General for South Australia and possibly the police planned to examine evidence relating to the sale of assets from Mr Liddy’s mansion.  On the same day, The Advertiser editorial column criticised Mr Lewis’ call for a royal commission into the issue, describing it as “an exhaustive – and very expensive – exercise into what would be futility”.  The same issue of the newspaper included an article titled “Numbers game”, discussing the impact of Mr Lewis’ threatened resignation on Parliament in South Australia.

   Issues on Appeal

3. In the present proceedings, the plaintiff appeals from the order of the Master refusing to strike out the plea of qualified privilege from the amended defence.  It was submitted that the Master erred in finding that the defendant had an arguable defence of qualified privilege in accordance with the Lange principle.  The plaintiff asserted that the topic under discussion was not a government or political matter.

4. Counsel for the defendant submitted that the form of qualified privilege that attaches to broadcasts concerning government or political matters is enlivened by a topic of discussion and is therefore distinguishable from the form of qualified privilege which is enlivened by the conduct of an individual. 

5. It was said that once a government or political matter had been identified as the subject of the broadcast, the significance of the identity of the plaintiff is limited to a consideration of whether or not the defendant’s conduct in identifying the plaintiff was reasonable in all the circumstances or motivated by malice.  It was said that these were matters to be determined at trial.

6. Counsel for the defendant further submitted that the plea of qualified privilege in the amended defence concerned matters of judicial administration and which had become the subject of political debate.  It was said that it was at least arguable that the broadcast concerned a government and political matter.

   Consideration of Issues on Appeal

   Constitutional Basis of the Defence of Extended Qualified Privilege

7. It has been established that there is no constitutionally recognised right to freedom of expression in Australia.[6]  However, there is an implied Constitutional guarantee of freedom of communication at least in relation to governmental and political discussion.[7] This implied freedom stems from sections 7 and 24 of the Commonwealth Constitution which outline and entrench the system of responsible and representative government. 

   [6] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

   [7] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corp (1997) 189 CLR 520

8. The concept of representative government is enshrined in the Constitution.  From this concept, an implication of freedom of communication arises.  It has been established that the implied freedom of political communication is necessary to effectuate the free election of representatives at periodic elections and makes up an indispensable incident of the system of representative government which the Constitution creates.  In Theophanous v The Herald and Weekly Times Ltd & Anor Deane J observed:[8]

   Essentially, the freedom of political communication and discussion which is an implication of the Constitution's incorporation of the doctrine of representative government constitutes a limitation or confinement of Commonwealth and State laws and powers. Of itself, such a limitation or confinement of laws and powers gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a "right" in the strict sense.

   [8] (1994) 182 CLR 104 at 168 per Deane J

9. The implied freedom acts to limit the passage of laws that would prohibit free discussion of political and government matters as such discussion is seen as an essential component to the system of representative government.  As Deane J further commented in Theophanous:[9]

   In a democracy such as Australia, ordinary political communications and discussions commonly involve the making of statements which injure or are likely to injure the reputation of others. State defamation laws which provide that the making of such statements to another person is wrongful and which render the maker liable in damages unless one of the available defences can be established by admissible evidence to the satisfaction of a court seriously and directly curtail a particular class or type of communication or discussion which is a necessary ingredient of effective political communication and discussion. Such a curtailment of the freedom of political communication and discussion is consistent with the implication only to the extent to which it can, according to the standards of our society, be justified in the public interest either for the reason that it is conducive to the overall availability of the effective means of political communication and discussion in a democratic society or it does not go beyond what is necessary either for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society.

   As earlier observed, the implied freedom is limited in scope and does not extend to a freedom of expression generally.[10]  The implied freedom only extends to communication directly connected to the concept of representative government.  Its scope has been described as limited to “political discussion”, “political discourse” and “government matters”. [11]

   [9] (1994) 182 CLR 104 at 178

   [10] Theophanous v The Herald Weekly Times Ltd & Anor (1994) 182 CLR 104 per Mason CJ, Toohey, Gaudron JJ

   [11] Theophanous v The Herald Weekly Times Ltd & Anor (1994) 182 CLR 104 per Mason CJ, Toohey, Gaudron JJ

10. Importantly, for the purposes of the present proceedings, the implied freedom of communication gives rise to a new defence, a form of qualified privilege, which protects key elements of free speech in a democracy and has serious implications for common law concepts of defamation law.  In order to ascertain the scope and application of the defence of qualified privilege, it is necessary to determine the scope of the implied freedom of communication.  The scope of the freedom has been discussed extensively by the High Court in Nationwide News v Wills[12] and Australian Capital Television Pty Ltd v The Commonwealth[13] , Theophanous v The Herald Weekly Times Ltd & Anor[14] and later in Lange v Australian Broadcasting Corporation.[15]

    [12] (1992) 177 CLR 1

    [13] (1992) 177 CLR 106

    [14] (1994) 182 CLR 104

    [15] (1997) 189 CLR 520

    Scope of Implied Freedom of Communication

11. In Theophanous Mason CJ, Toohey and Gaudron JJ observed that the purpose of the freedom is to “ensure the efficacious working of representative democracy”.  It was said that although it is limited to discussion of government matters, it is not limited to a fixed range of debates or topics.

12. Mason CJ, Toohey and Gaudron JJ commented that the implied freedom of communication places restrictions of legislative and executive power and shapes and controls the common law.  Laws restricting the freedom of communication, either legislative or common law, must not curtail the scope of the implied constitutional freedom of communication on political matters.[16]  Defamation laws that seek to protect individuals’ reputations must be read subject to the implied constitutional freedom.[17]

    [16] (1994) 182 CLR 104 at 130

    [17] (1994) 182 CLR 104 at 133

13. Their Honours qualified these remarks by observing that the implied freedom of communication does not result in absolute immunity for those who defame others in the course of discussion of government or political matters.  It was said that the freedom does not provide protection for knowingly false defamatory statements or defamatory statements made with malice.

14. It is for the defendant in a defamation action to establish that the publication falls within the constitutional protection.  Whether the publisher has acted reasonably is a question of fact to be determined in every case.  It will also depend upon the standards and the expectations of the community and the allegations involved.  Their Honours concluded:[18]

    Common law qualified privilege must now be viewed in the light of the implied constitutional freedom.  That does not necessitate a review of its essential feature, namely, publication on an occasion of qualified privilege, or of the common law requirement that publication be without malice.  It does, however, require some consideration of the notion of reciprocal interest and duty.  The public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters.  It is an interest which exists at all times; it is not confined to situations where it is publicly anticipated that a federal election will be called.  It follows that the discussion of political matters is an occasion of qualified privilege.  Even understood in this light, the common law defence does not conform to the constitutional freedom.  As already explained, the freedom requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained.

    [18] (1994) 182 CLR 104 at 140

15. In Stephens v West Australia Newspaper Ltd[19], a decision delivered at the same time as Theophanus, the High Court further commented on the defence of extended qualified privilege.  McHugh J made the following observations which have been widely referred to in subsequent decisions both of the High Court and other jurisdictions:[20]

    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. If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public. In Jenoure v Delmege , Lord Macnaghten said that "[t]o protect those who are not able to protect themselves is a duty which everyone owes to society".

    Accordingly, it is now appropriate for the common law to declare that it is for "the common convenience and welfare" of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. The scientist who discovers that lack of governmental action is threatening the environment, the "whistleblower" who observes the bureaucratic or ministerial "cover up", and the investigative journalist who finds that grants of public money have been distributed contrary to the public interest are examples of persons who have special knowledge of matters affecting the exercise of public functions or powers or the performance of duties by public representatives or officials. If such persons, acting honestly, inform the general public of what they know about such matters, their publications will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect.

    [19] (1993) 182 CLR 211

    [20] (1993) 182 CLR 211 at 264-265

    The Lange Defence

16. The scope and content of the implied freedom of political communication was further discussed by the High Court in 1997 in Lange v Australian Broadcasting Corporation.[21]   The principal questions before the High Court were whether the Court should reconsider the two decisions which established that there is implied in the Constitution a defence to the publication of defamatory matter relating to government and political matters.[22]  When considering this question, the Court reviewed previous High Court authorities concerning the implied constitutional freedom.  The Court considered that Theophanous and Stephens ought to be accepted as deciding that “in Australia the common law rules of defamation must conform to the requirements of the Constitution”.[23]

    [21] (1997) 189 CLR 520

    [22] (1997) 189 CLR 520 at 550

    [23] (1997) 189 CLR 520 at 556

17. In relation to the existence of the implied freedom of political communication, the Court examined the sections of the Constitution giving rise to the doctrine of representative government, which in turn give rise to the implied freedom:[24]

    Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively. At federation, representative government was understood to mean a system of government where the people in free elections elected their representatives to the legislative chamber which occupies the most powerful position in the political system. As Birch points out, "it is the manner of choice of members of the legislative assembly, rather than their characteristics or their behaviour, which is generally taken to be the criterion of a representative form of government." However, to have a full understanding of the concept of representative government, Birch also states that:

    "we need to add that the chamber must occupy a powerful position in the political system and that the elections to it must be free, with all that this implies in the way of freedom of speech and political organization."

    Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation. While the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to federation, that the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch. Furthermore, because the choice given by ss 7 and 24 must be a true choice with "an opportunity to gain an appreciation of the available alternatives", as Dawson J pointed out in Australian Capital Television Pty Ltd v The Commonwealth, legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.

    That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are "a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a 'right' in the strict sense". In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said:

    "The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control."

    [24] (1997) 189 CLR 520 at 559-560

1. In Lange, the High Court recognised the common law of defamation to be moulded to reflect the implied constitutional freedom of political communication.  Their Honours explained that a person who is defamed should be entitled to a legal remedy against those responsible for publishing the defamatory material, either at common law or pursuant to statute.  However, it was observed that the right to such a remedy cannot be admitted if its exercise would infringe upon “the freedom to discuss governmental and political matters which the Constitution impliedly requires”.[25]  Their Honours considered the relationship between the implied freedom and the common law and observed:[26]

   The factors which affect the development of the common law equally affect the scope of the freedom which is constitutionally required. "[T]he common convenience and welfare of society" is the criterion of the protection given to communications by the common law of qualified privilege. Similarly, the content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics.

   Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives. The common law and the requirements of the Constitution cannot be at odds. The common law of libel and slander could not be developed inconsistently with the Constitution, for the common law's protection of personal reputation must admit as an exception that qualified freedom to discuss government and politics which is required by the Constitution.

   In any particular case, the question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question has a different significance from the answer to the constitutional law question. The answer to the common law question prima facie defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of those Territories whose residents are entitled to exercise the federal franchise. That is because the requirement of freedom of communication operates as a restriction on legislative power. Statutory regimes cannot trespass upon the constitutionally required freedom.

   [25] (1997) 189 CLR 520 at 562

   [26] (1997) 189 CLR 520 at 565-566

2. In Lange, the High Court considered the limits the constitutional freedom placed upon the development of the common law of defamation:[27] 

   The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech. It is not to be supposed that the protection of reputation is a purpose that is incompatible with the requirement of freedom of communication imposed by the Constitution. The protection of the reputations of those who take part in the government and political life of this country from false and defamatory statements is conducive to the public good. The constitutionally prescribed system of government does not require - to the contrary, it would be adversely affected by - an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics. The question then is whether the common law of defamation, as it has traditionally been understood, and the statute law regulating the publication of defamatory matter are reasonably appropriate and adapted to the protection of reputation having regard to the requirement of freedom of communication about government and political matters required by the Constitution.

   …

   The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.

   Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.

   [27] (1997) 189 CLR 520 at 568- 572

3. Thus, it can be said that the High Court in Lange articulated a defence of qualified privilege on the grounds that the alleged defamatory material published constituted discussion of political and government matters.  However, the Court drew attention to the limits of this defence:[28]

   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. In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, "actuated by malice" is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.

   …As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff's onus of proof of this issue.

   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.

   Scope and Application of the Lange Defence

   [28] (1997) 189 CLR 520 at 574

4. In 2003 the South Australian Court of Appeal considered the scope of the Lange defence of qualified privilege in the context of a defamation claim made by Mr and Mrs Chapman against the Conservation Council for publications related to the construction of a bridge to Hindmarsh Island.[29]

   [29] Conservation Council of SA Inc v Chapman (2003) 87 SASR 62

5. Doyle CJ observed that in order to attract the constitutional protection, the particular publication must be shown to be concerned with government and political matters.  His Honour agreed with Besanko J who found that the fact that a publication referred to the Federal Court and court orders was not itself enough to attract the constitutional protection.  Doyle CJ observed[30]

   [T]he question of whether the constitutional protection is attracted to a publication is not to be approached in a narrow way.  The question is one of substance.  Nor should it be assumed that a particular publication can be characterised in only one way.  On the other hand, as I indicated when referring to a defamatory statement about a person involved in the design of the bridge, it is not enough to attract the constitutional protection that the publication relates to the event or matter, debate over which attracts the constitutional protection.  In my opinion it is not sufficient that the publication can be said to make a contribution to the “ongoing public comment and debate”.  To say that is to do no more than link the publication to the dispute.  It is a separate question whether or not the publication itself attracts the constitutional protection.

   In the end, I agree with Besanko J that the publication does not attract the constitutional protection.  In my opinion the article, having regard to its contents, does not deal with “government and political matters”.  Nor, placed in the wider context, does it make a contribution to the dissemination of information about those matters.  The publication is made in the course of a public controversy that raises those matters, but that in itself is not enough.  The publication is properly characterised as a publication about use by the Chapmans, and developers generally, of legal proceedings to silence or subdue opponents of proposed developments.  As such, it does not attract the constitutional protection.

   [30] (2003) 87 SASR 62 at 70-71

6. Doyle CJ and Besanko J held that the defence of qualified privilege was not available in Chapman and dismissed the appeal.  I took a different approach to the consideration of the Lange defence of qualified privilege:[31]

   In Lange the High Court reaffirmed that not only Federal legislation but also State and Territory legislation and the common law must conform to the freedom of political communication. This freedom was described as an indispensable incident of the system of government created within a federal constitution. The court concluded that the Australian Constitution protected the freedom of communication between people concerning political and government matters which enabled the people to exercise a free and informed choice as electors. The court further reaffirmed that laws that provided and limited civil rights of action must conform to the constitutionally protected freedom of political communication. The court considered the impact on defamation law of the freedom of communication protected by the Constitution.

   The court declared that the common law of defamation had to recognise 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.  One effect of this declaration was to develop what has been described as an extended form of qualified privilege. The declaration was in wide terms. Guidance was not provided on the precise meaning of “government and political matters affecting the people of Australia”. However nothing in the decision suggests that the protection depends on whether the plaintiff is a politician or other type of public figure. The unequivocal nature of the court’s reasoning with respect to the ambit of the protection would suggest that the Lange defence is not limited to a “public figure style” defence as under United States law.

   As earlier observed there had been extensive ongoing public debate about the Hindmarsh Island Bridge particularly during 1994 and 1995. The debate addressed matters of a political and governmental nature. Publication 6, 7 and 11 directly contributed to the ongoing public comment and debate.  The members of the Australian community had an interest in disseminating and receiving information opinions and arguments concerning those government and political matters.  The question of freedom of speech was of prime importance to the ongoing debate.  The freedom of the conservationists to speak out freely had become a matter of importance.  They were matters that affected the people of Australia.  The judge was in error in failing to consider that the Lange defence was potentially available with respect to publications 6 and 7.

   Although the judge did comment on the question of reasonableness, he did no more than express his bare conclusion. In concluding that express malice had been established the judge appeared to give no consideration to the different test for malice articulated by the court in Lange.

   [31] (2003) 87 SASR 62 at 98 - 99

7. More recently, the Victorian Court of Appeal in The Herald & Weekly Times Ltd v Popovic[32] considered the scope of the defence of qualified privilege as articulated by the High Court in Lange.  Popovic concerned an appeal by unsuccessful defendants against a judgment entered by a trial judge in a defamation proceeding.  At trial, the plaintiff claimed compensation for defamation in an article by a journalist in the Herald-Sun newspaper.  She cross-appealed in respect of the failure to award exemplary damages in respect of the defendants’ pre-verdict conduct, and a ruling by the judge concerning extended qualified privilege.

   [32] [2003] VSCA 161

8. The first defendant, Herald & Weekly Times Ltd, was the proprietor and publisher of the Herald-Sun, a daily newspaper sold in the State of Victoria.  The second defendant, Andrew Bolt, was a journalist employed by the proprietor.  The respondent to the appeal, the plaintiff in the proceeding, was a Senior Magistrate of the Magistrates' Court of Victoria, and a Deputy Chief Magistrate of the Court. In her statement of claim, Ms Popovic pleaded three false innuendos in the article:[33]

   [33] [2003] VSCA 161 at [31]

   -In the course of presiding over a criminal prosecution for arson of five persons who had allegedly invaded the Indonesian Consulate and burned its flag before hearing any evidence, the plaintiff had subverted the law by:

   §prejudging the case; and

   §deciding on the appropriate penalty;

   -in the course of presiding over a criminal prosecution for arson the plaintiff had behaved outrageously by bullying the police prosecutor for simply arguing the law;

   -the plaintiff had so misconducted herself in a criminal prosecution for arson in the ways described in subparagraph (a) and (b) above and on at least one other occasion (when she hugged two drug traffickers she let go free) that her removal from office as a magistrate was warranted.

9. In their defence, the proprietor and Mr Bolt denied that the article was defamatory of Ms Popovic. In addition, the defendants pleaded that the article in its natural and ordinary meaning contained particular meanings, and asserted that in those meanings the article was true in substance and in fact, and pleaded the defence of extended qualified privilege.

10. The trial judge in Popovic determined that the article in question constituted discussion of political and government matters, however left the question of whether the publication was reasonable in the circumstances to the jury, who returned an affirmative response.  The judge subsequently concluded that there was no evidence to support the jury’s finding.

11. Before the Court of Appeal, the defendants challenged the trial judge’s conclusion that the jury’s finding was not supported by the evidence and, in notice of contention, the plaintiff challenged the trial judge’s categorisation of the article as a discussion of government or political matters so as to attract the extended qualified privilege referred to in Lange. Winneke ACJ, Gillard and Warren AJA considered the application of the Lange defence in the context of criticism of judicial officers. 

12. Winneke ACJ agreed with the submissions of the defendants and found that the article in question did not fall within the category of discussion of government or political matters, as established in Lange.  His Honour observed:[34]

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

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

    …

    Each case will depend upon its own circumstances, and the limits of the freedom will be worked out on a case by case basis. However, as I have already said, I do not consider that a criticism of the performance of a magistrate in the management of an isolated proceeding in his or her court is a discussion of political or government matters in the sense that such discussion is necessary for the effective operation of representative and responsible government. Quite apart from the fact that — as Spigelman CJ pointed out (in a different context) in John Fairfax Pty Ltd v Attorney-General (NSW) — the conduct of courts “is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based”, the conduct of individual judicial officers is carried out independently of the legislative and executive branches of government, and is not to be described, in my view, as an exercise of power at a government or administrative level. It can be conceded that judicial officers are “public figures” appointed, or recommended for appointment, by the executive branch of government. It can also be conceded that the executive branch of government has a strong interest in the due administration of justice. However those concessions, at least to my mind, do not carry with them the implication that a discussion about the discharge by a judicial officer of his or her function in a particular case is a discussion concerning political or government matters in the relevant sense. It is true that, when discharging their functions, judicial officers are performing a public role; one which is to be performed in the “public gaze” and, thus, open to public scrutiny and comment. It is also true that the discharge of functions by judicial officers in particular cases will attract comment by the media; some of it strongly critical of the judicial officer’s handling and disposition of the case. However, that is not to say that such comment assumes the status of a communication concerning political or government matters which are relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects. Such comment and criticism could, in my view, have no impact or influence upon the choice of their representatives by the people of Australia.

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

    [34] [2003] VSCA 161 at [7] – [10]

1. Winneke ACJ’s observations in Popovic support the proposition that in certain circumstances, comments relating to the conduct of the Courts or their officers may constitute discussion of “government and political matters” giving rise to the defence of extended qualified privilege.[35]

   [35] [2003] VSCA 161 at [14]

2. Gillard AJA took a different approach from Winneke ACJ when considering the correctness of the trial judge’s categorisation of the article the subject of the dispute in Popovic.  Gillard AJA agreed with the finding of the trial judge that the article constituted discussion of political and governmental matters.  His Honour observed:[36]

   [36] [2003] VSCA 161 at [246] – [253]

   The learned trial judge decided that the article was dealing with political and government matters. At the outset, it is my opinion that the article does not refer to a political matter; the question is whether the article is disseminating information concerning a government matter? … His Honour was of the view that it was that connection between the magistrate’s office and the government which led to the conclusion that any discussion advocating the removal of a magistrate was a government or political matter. Counsel for the defendants submitted that whilst his Honour’s conclusion is correct, the scope and nature of matters which are included within the description are broader than his Honour recognised. Reference was made to the passage of McHugh J in Stephens, and observations made in the Theophanus case per Mason CJ, Toohey and Gaudron JJ,and per Deane J and the judgment of Deane and Toohey JJ in the Wills case.

   In my respectful opinion, his Honour’s decision was correct but I do not think the government matter content is confined to comments which advocate the removal of a judicial officer.

   A judicial officer is independent of government. Judicial officers are performing a public service. They are not public servants but they are servants of the public. The government of the day, elected by the people, has the responsibility of making and enforcing the law and establishing a judicial system to interpret and apply the law. A judicial officer, although independent of government, is performing the very important public service of construing and applying the law, enforcing it and above all, ensuring that the rule of law is upheld. It is the obligation of the government to provide and fund the judicial system. The judicial officer performs the task entrusted to him or her by the government.

   The English Oxford Dictionary defines the word “government” as, inter alia, “the form or kind of polity, the governing power in a state, the body of persons charged with the duty of government”. The judicial arm of government is independent of the Legislature and the Executive but the fact is, the judicial system is established and funded by the government of the day. The Court of Petty Sessions was created in the Colony of Victoria in 1852. The present Magistrates' Court owes its existence to the Magistrates' Court Act 1989. Section 4(1) provides —

   There shall be a court to be known as the Magistrates' Court of Victoria.

   The administration of justice in this State is a vital and essential ingredient in the system of government. The government in this State since the establishment of the Colony of Victoria has recognised this and established and maintained the various courts in the judicial system. The magistrates are appointed by the government of the day, and they are paid out of the public purse. The way they behave in court, their fitness for office and their conduct as magistrates are all matters which in my view every member of the Victorian community has a real and legitimate interest in knowing about.

   In my opinion, a discussion of the conduct of a judicial officer and the way the officer behaves in court is a government matter. Paraphrasing what McHugh J said in Stephens, the quality of life and freedom of the ordinary individuals in this State are dependent on the exercise of functions and powers vested in the public representatives by a vast legal apparatus funded by public moneys. How they perform are matters that are of a real and legitimate interest to every member of the community.

   …

   It is my provisional view that the discussion in the article provided information to members of the public which concerned government matters within the meaning of the Lange defence.

3. Although Warren AJA generally agreed with the reasons and conclusions of Gillard AJA in the appeal, Her Honour took a different view concerning the breach of the defence of extended qualified privilege.  Warren AJA considered that the defence did not extend to embrace the judiciary.[37]  In particular Her Honour observed:[38]

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

   In this respect Her Honour was at odds with the trial judge,[39] Gillard AJA and Winneke ACJ.  As earlier observed, Winneke ACJ considered that although the defence of extended qualified privilege had no application in the case then under appeal, His Honour contemplated that there may be circumstances where the defence of extended qualified privilege could arise in the context of a discussion of the roles of the judiciary.[40]

   [37] Herald & Weekly Times Ltd v Popovic [2003] VSCA 161 at [495] – [508]

   [38] [2003] VSCA 161 at [500]

   [39] Popovic v Herald and Weekly Times Ltd [2002] VSC 174 at [35] – [41] and [44]

   [40] [2003] VSCA 161 at [10]

   Judicial Power and ‘Government and Political Matters’

4. Judicial power forms part of the system of responsible government enshrined in the Constitution. The judicial power of the Commonwealth rests in the High Court, as provided for and protected by Chapter 3 of the Constitution.  In Wilson v Minister for Aboriginal & Torres Straight Islander Affairs[41] the High Court considered Chapter 3 of the Constitution and the place of judicial power within the constitutionally protected structure of representative government.  The High Court emphasised the independence of the judicial arm of government as a fundamental principle of representative democracy.  Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ observed:[42]

   Chapter III provides for the appointment of judges to constitute Courts vested with the judicial power of the Commonwealth. The judges who constitute those Courts are the members of the judicial branch of government. The functions of the judicial branch are constitutionally separated from the functions of the Legislature and the Executive — the political branches of government: "The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes — legislative, executive and judicial". In each branch of government, its proper powers are vested: ss 1, 61 and 71 . The Constitution reflects the broad principle that, subject to the Westminster system of responsible government , the powers in each category — whose character is determined according to traditional British conceptions — are vested in and are to be exercised by separate organs of government. The functions of government are not separated because the powers of one branch could not be exercised effectively by the repository of the powers of another branch. To the contrary, the separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed .

   Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, "a great cleavage". The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation. This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion. The result is promulgated in public and implemented by binding orders. The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government.

   The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges. In R v Davison, Kitto J identified the conceptual basis of the Constitution's division of the functions of government:

   "It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed. As an assertion of the two propositions that government is in its nature divisible into law-making, executive action and judicial decision, and that it is necessary for the protection of the individual liberty of the citizen that these three functions should be to some extent dispersed rather than concentrated in one set of hands, the doctrine of the separation of powers as developed in political philosophy was based upon observation of the experience of democratic states, and particularly upon observation of the development and working of the system of government which had grown up in England."

   [41] Wilson v Minister for Aboriginal & Torres Straight Islander Affairs (1996) 189 CLR 1

   [42] (1996) 189 CLR 1at 10-12

5. Gaudron J said:[43]

   Section 71 of the Constitution establishes a judicature for the exercise of the judicial power of the Commonwealth, consisting of this Court, federal courts created by the Parliament, and such other courts as the Parliament invests with federal jurisdiction. The section has long been construed as a complete and exhaustive statement with respect to the exercise of the judicial power of the Commonwealth. Thus, no part of that power may be exercised by a person or body that is not a court as mentioned in s 71 and no power may be conferred by the Parliament on the courts referred to in that section that is not judicial power or incidental to the exercise of judicial power. So much follows from the words of the section when construed having regard to the nature of judicial power and its crucial significance in a federal system.

   ….

   Within our constitutional framework, the purpose of judicial power is to give binding decisions as to legal rights and obligations in settlement of controversies between individuals, between individuals and the polities which constitute the federation and, also, between those polities. Because of the need to adjudicate disputes involving the polities constituting the federation — polities which are "independent governments existing in the one area and exercising powers in different fields of action carefully defined by law" — judicial power occupies a special position in a federal system of government. It will later be necessary to refer to that matter in greater detail. For the moment, it is sufficient to note that the effective resolution of controversies which call for the exercise of the judicial power of the Commonwealth depends on public confidence in the courts in which that power is vested. And public confidence depends on two things. It depends on the courts acting in accordance with the judicial process. More precisely, it depends on their acting openly, impartially and in accordance with fair and proper procedures for the purpose of determining the matter in issue by ascertaining the facts and the law and applying the law as it is to the facts as they are. And, just as importantly, it depends on the reputation of the courts acting in accordance with that process.

   So critical is the judicial process to the exercise of judicial power that it forms part of the definition of that power. Thus, judicial power is not simply a power to settle justiciable controversies, but a power which must be and must be seen to be exercised in accordance with the judicial process.

   …

   As earlier indicated, impartiality and the appearance of impartiality are defining features of judicial power.

6. The concept of judicial power as part of the system of responsible government extends to government at a State level.  At the State level, judicial power is invested in State Courts, at the highest the Supreme Court.  Just as the High Court constitutes an indispensable, constitutionally protected “arm” of Commonwealth Government, so too do the Courts of State jurisdiction.

7. The work of the District Court of South Australia is part of the administration of justice and constitutes part of the system of government existing within the State.  This is demonstrated by the appointment of its judicial members by the Governor in Executive Council and the removal of its members only on the address of both Houses of Parliament.

8. In Stephens, the High Court observed that the implied freedom of communication derived from sections 7, 24 and 128 of the Constitution extends not only to communications about the exercise of public functions and powers vested in public representation of the Commonwealth but to communications about political affairs at the State level.  It was noted by Mason CJ, Toohey and Gaudron JJ that the freedom of communication as to political matters extended to all political discussion, including discussion of political and government matters at the State level.[44]  This was affirmed in Lange where the High Court noted:[45]

   [T]he discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.

   [44] (1993) 182 CLR 211 at 232

   [45] (1996) 189 CLR 520 at 571-572

9. These observations have been applied more recently by the Victorian Supreme Court in Popovic where Gillard AJA observed:[46]

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

   [46] [2003] VSCA 161 at [77]

10. As a result, the understanding of government and political matters as articulated by the High Court in Lange with reference to the defence of qualified privilege may, in certain circumstances, extend to matters relating to the activities or officers of State Courts. 

11. The role of counsel, as officers of the Court, constitutes an integral part of the proper administration of justice.  It is imperative that counsel maintain high professional standards in order to maintain public trust and confidence in the legal profession.[47]  When counsel act in breach of their office, public confidence in the administration of justice is at risk of being seriously undermined.

    [47] Law Society v Nicholson [2004] SASC 2 at [21]

12. It is of the utmost importance that public confidence in the legal profession be maintained.  Legal practitioners play an integral part in the administration of justice.  The obligations which accompany their position are commensurate with the responsibility involved.  The duties of legal practitioners include the duty to uphold the law, the duty to the court, the duty to their clients and the more general duty to members of the public.  The court and the public demand high standards from practitioners.  This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.

13. Critical to the proper function of the judicial arm of government is the maintaining of public confidence in the independence of the judiciary and in the proper administration of justice by the court undertaken by officers of the court.  The judiciary forms part of the third branch of government at both Commonwealth and State levels.  Circumstances may arise in which comments pertaining to the fitness of an officer of the judicial arm of government will fall within discussion of government or political matters as described in the Lange defence of qualified privilege.

14. Matters that may refect adversely on the quality of the administration of justice are matters of proper public debate on which the community is entitled to be fully informed.  The defence of extended qualified privilege may have application to a defamation claim in the context of comments concerning the conduct of an officer of the Court.

    Application of the Lange Defence to the Present Case

15. In the present case, the imputations alleged are referred to earlier.  They include the alleged imputation that the plaintiff as senior counsel representing Mr Liddy, during criminal proceedings, deliberately misled the court by seeking to remove a restriction on the use of funds so that those funds would be applied for his own personal benefit.  The further imputation alleged is that in doing so the plaintiff engaged in unscrupulous and unethical conduct in breach of his obligations as an officer of the court.  It is said that the imputations go so far as to include an assertion that the plaintiff engaged in a conspiracy with Mr Liddy to put his assets beyond the reach of those entitled to them.  The alleged conduct reflects on the administration of justice and if established has a tendency to affect the confidence the public place in the legal process.  Allegations that an officer of the court has misled the court and acted in his or her own interests at the expense of the interests of victims of crime are a matter of proper public interest and concern.

16. Coincidentally, the allegations also implicated Mr Lewis, the Speaker of the House of Assembly, by virtue of his involvement in the matter.  Counsel for the defendant suggested that the broadcast was relevant to the electors in South Australia in assessing the appropriateness of the conduct of Mr Lewis and his suitability for the office of Speaker of the House of Assembly. 

17. It is arguable that the broadcast item goes to the heart of the public’s confidence in the proper administration of justice.  Its contents question the ability of the judiciary to attend to the fundamental obligation to exercise judicial power free from abuse of process.  It is arguable that the broadcast item further touches upon the obligation of candour placed upon lawyers as officers of the court which is paramount to ensuring public confidence in the judicial system.  It is arguable that the broadcast item constitutes discussion of government and political matters.

18. The broad test for determining whether a pleading should be struck out is whether the pleading is so hopeless that it has to fail.  In the present case, the defendant’s plea of extended qualified privilege is not in that category.  The plea necessitates a consideration of a developing area of law and its ultimate scope will be determined on a case by case basis.  This is illustrated by the comments of Winneke ACJ in Popovic:[48]

    [T]he question whether a defamatory publication is published on an occasion of "extended" qualified privilege (on account of it being a discussion of political or government matters) will depend very much upon the nature of the published matter in question. It has been noted in some West Australian authorities that little guidance is to be derived from the High Court decision in Lange.  But, as I have stated, the nature of the protection which is given does not readily admit of discrete guidance. Each case will depend upon its own circumstances, and the limits of the freedom will be worked out on a case by case basis.

    [48] [2003] VSCA 116 at [9]

    Conclusion

1. The defendant’s amended defence should not be struck out.  An arguable defence of extended qualified privilege has been pleaded.  The appeal is dismissed.

   
   

53.01    (1)     A party may amend any document, other than an order, filed by such party in a proceeding once without leave of the court at any time up to 14 days after discovery of documents has been made by all parties pursuant to Rule 58A, or at any time by consent of all other parties, or, subject to Rule 67.01 (6), with the leave of the Court.

53.06    Where a party has amended a document without leave, the opposing party may within fourteen days of service of the amended document or of notice of the making of the amendment, apply to the Court, to disallow the amendment or any part thereof.