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Popovic v Herald and Weekly Times Ltd

Popovic v Herald and Weekly Times Ltd

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Case Copied 21 May 2002 46 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 4631 of 2001

Jelena Popovic	Plaintiff
v
Herald and Weekly Times Ltd and Andrew Bolt	Defendants

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	10-12 April, 15-19 April, 22-24 April, 26 April, 3, 6 & 7 May 2002
DATE OF JUDGMENT:	21 May 2002
CASE MAY BE CITED AS:	Popovic v Herald and Weekly Times
MEDIUM NEUTRAL CITATION:	[2002] VSC 174	First Revision 3 June 2002

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Torts – Defamation - Lange qualified privilege – discussion of government and political matters - application to conduct of a magistrate in court – reasonableness – plaintiff’s right of reply - Practice and procedure – jury trial – verdict non obstante veredicto - mode of assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Sher QC with Mr. L. Maher	Howie & Maher
For the Defendants	Mr. W. Houghton QC with Ms. G. Schoff	Corrs Chambers Westgarth

HIS HONOUR:

The Trial and the Verdict

The plaintiff in this proceeding is a deputy chief magistrate of the Magistrates’ Court of Victoria. She sues the defendants as the publisher and author respectively of an article which appeared in the Herald Sun newspaper on 13 December 2000, alleging that the article was defamatory of her both personally and in her office as a magistrate. The defendants, who were jointly represented, denied the article was libellous. In the alternative they sought to justify it. They also claimed that it was a fair report of a judicial proceeding and was thus published on an occasion of qualified privilege at common law and/or was a faithful and accurate report of judicial proceedings entitling them to the absolute protection of s. 4 Wrongs Act 1958. Finally they alleged that the article was fair comment upon a matter of public interest and/or was published reasonably in the course of discussing government and political matters; the extended qualified privilege, commonly referred to as Lange qualified privilege.

By way of reply the plaintiff denied the affirmative allegations made by the defendants in their defence and raised the issue of malice as defeating the defence of fair comment and the defences of qualified privilege.

The trial of the action commenced on 10 April 2002 and proceeded until the defendants closed their case on 18 April 2002. At that point Mr J Sher Q.C. for the plaintiff submitted that none of the pleaded defences could be properly left to the jury on the ground of insufficiency of evidence in respect of each of them. He also submitted that the defence of justification should fail as a matter of law in that the defendants should be prevented from seeking to justify their pleaded imputations having regard to the principle in David Syme & Co Ltd v Hore-Lacy[1] and that the Lange qualified privilege defence should fail as a matter of law because the article sued upon was not published on an occasion of qualified…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] VSC 174
Decision Date: 21 May 2002

CaseChat Overview and Summary

In Popovic v Herald and Weekly Times Ltd, the plaintiff sought redress for defamation allegedly published by the defendant. The dispute arose from an article published in a newspaper that was critical of the plaintiff's conduct while acting as a magistrate. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court involved determining whether the defendant’s publication was protected by the defence of qualified privilege, particularly in the context of discussing government and political matters, and whether the plaintiff's right of reply had been adequately addressed. Additionally, the court needed to consider the procedural aspects of the case, including the appropriate mode for assessing damages.

The court examined the defence of qualified privilege, which applies where there is a duty to communicate and an interest or duty on the part of the recipient to receive the information. The court found that the publication was indeed discussing a matter of public interest, specifically the conduct of a magistrate in court. However, the court had to determine whether the publication was reasonable under the circumstances. The court concluded that the defendant had acted reasonably in publishing the information given the context and the public interest involved. Furthermore, the court considered the plaintiff's right of reply and found that the opportunity provided was adequate.

The court also addressed the procedural matters, specifically the mode of assessing damages. The plaintiff had argued for a full trial by jury, but the court determined that a verdict non obstante veredicto was appropriate given the circumstances of the case. The court ordered that the damages should be assessed in a manner that did not require a full trial by jury, considering the nature of the evidence and the arguments presented.

The final orders of the court included a determination that the defendant’s publication was protected by the qualified privilege and that the plaintiff's right of reply was adequately provided. The court assessed the damages in accordance with the verdict non obstante veredicto, providing a detailed rationale for the amount awarded.

Orders