The Herald & Weekly Times Ltd & Anor v Popovic

[2004] HCATrans 74

[2004] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M301 of 2003

B e t w e e n -

THE HERALD & WEEKLY TIMES LTD

First Applicant

ANDREW BOLT

Second Applicant

and

JELENA POPOVIC

Respondent

Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 15 MARCH 2004, AT 9.31 AM

Copyright in the High Court of Australia

MR J.L. SHER, QC:    If your Honour pleases, I appear with my learned friend, MR L.W. MAHER, for the respondent to the application for special leave, who is the applicant today.  (instructed by Howie & Maher)

MR W.T. HOUGHTON, QC:   If your Honour pleases, I appear with my learned friend, MS G.L. SCHOFF, for Herald & Weekly Times, which is the respondent today.  (instructed by Corrs Chambers Westgarth)

HIS HONOUR:   Yes, Mr Sher, I have read the papers.

MR SHER:   Your Honour, the dates are important.  The article complained of, which four judges have found called for Ms Popovic’s dismissal as a magistrate, was published on 13 December 2000.  Even if we got on for hearing on an application for special leave in the ordinary course of events, it would be more than four years after the event, in all likelihood, your Honour, and, of course, if special leave were granted, that probably one could count on, perhaps with a date for a hearing of an appeal and a reserve judgment, perhaps even another year.  So, in a class of action where vindication of reputation is at the heart of the action, it will have been between four and five years before the matter is finally disposed of.

HIS HONOUR:   Given the issues that it is sought to agitate by leave, is the question of vindication of reputation still alive?

MR SHER:   It would be, your Honour, because to the community as a whole who have read about this initial article and the case and other articles, they do not have the sophisticated approach that a practised defamation lawyer or Judges of this Court would have to these sorts of issues.  All they would know is that the plaintiff claims she was defamed, had a court case, won at court, it is now under challenge yet again because it is said to be wrong.  One doubts whether there would be any sophisticated thinking about the nature of the issues.  What they would know is the Herald & Weekly Times say that the plaintiff should not have succeeded.

HIS HONOUR:   I understand what you say about the class of action – defamation.  The principal difficulty is that any order for expedition prefers this case over other cases.  To everybody who applies for leave their case is especially important.  I understand, therefore, what might be called the private issues that move the application for expedition.  Is there any public aspect?

MR SHER:   Yes, there is.

HIS HONOUR:   What is there?

MR SHER:   Your Honour will recall from the material that the affidavit of Ms Popovic, in particular, highlights the fact that she is a sitting magistrate, one of the deputy magistrates, of what is the busiest court in the State and is in daily contact with a vast array of people not confined to litigants.

HIS HONOUR:   I understand all that, of course, but what is the public aspect that follows ‑ ‑ ‑

MR SHER:   Well, they are dealing with, appearing before, discussing matters of importance with somebody who has been publicly said to have been, in effect, unfit for office and ought to be summarily dismissed.  From the viewpoint of the community dealing with Ms Popovic, it would be important that her position as a magistrate has been vindicated entirely by the proceedings that she instituted and thus far has been successful in.  So there is a public aspect in the standing and reputation and way in which a senior magistrate might be viewed by a vast array of members of the public.

There is a particular aspect of it, which probably does not appear from the papers, that your Honour may not be familiar with, but if I can assert it from the Bar table, subject to correction.  It was quite clear that Mr Bolt’s sources of information came from the prosecutors associated with the court and, indeed, some of them gave evidence in support of the Herald & Weekly Times.  There does seem to have been an undercurrent – indeed, submissions were made to the jury about this in the course of final addresses – of dissatisfaction with the Police Prosecutors Branch at the Magistrates Court in relation to Ms Popovic, who is perceived to be soft on crime.  That was really the thrust of the article. 

The article itself was, in effect, making the point that she was soft on crime and referred in the article to incidents which had been clearly reported to the journalist by police prosecutors.  It is not as though this was a case where the source of the journalist’s information was kept secret.

HIS HONOUR:   I have in mind what is said in paragraph 9 of the applicant’s summary of argument for leave, where it is said:

Prior to writing the article Mr Bolt obtained a copy of a complaint made by a police prosecutor concerning the respondent’s conduct of the hearing, which complaint contained extracts of a transcript of the hearing (“the complaint”).  Having read the account of the hearing in the complaint, Mr Bolt sought and obtained from the police a full transcript of the hearing.

MR SHER:   That is certainly beyond argument, but the evidence went beyond that, your Honour.  There was evidence of other police assistance being provided to Mr Bolt.  Indeed, the prosecutor on the occasion, and at

least one other, but I think there were more than that – police officers gave evidence.  In fact, I can recall cross‑examining one about the steps the police had taken during the course of the trial to seek to locate the drug traffickers that Ms Popovic was said to have hugged.  The police assisted the Herald & Weekly Times in that regard by circulating the whole police force with ‑ ‑ ‑

HIS HONOUR:   Yes.

MR SHER:   So it looks as though within the ranks of those appearing regularly before Ms Popovic, which would include police prosecutors, there was certainly an attitude.  It is something that really ought to be laid finally to rest as soon as possible, in our respectful submission.

They are the issues, your Honour.  We are conscious of the point your Honour made; it is a point that has been made before.  But if it was just merely a matter of private duty, I doubt that we would have been bold enough to make the application, but there is a genuine public element to the necessity to finally lay to rest the issues in this case.  Of course, if I can go to the other side of the coin, the special leave point focuses almost entirely on the decision in Lange, and resolving that question is obviously important as well.

HIS HONOUR:   You sound as though you support the grant.

MR SHER:   Today is today.  If the point is important, it ought to be dealt with.

HIS HONOUR:   Yes.  Yes, Mr Houghton.

MR HOUGHTON:   Your Honour, we do not oppose the application, but we do not support it.  The only thing we would put to the Court in respect ‑ ‑ ‑

HIS HONOUR:   What do you say about this public aspect of it?

MR HOUGHTON:   We say there is a great public interest aspect in this case because ‑ ‑ ‑

HIS HONOUR:   Yes.  “Public interest” is sometimes used as a synonym for what interests the public, and that is a very different concept.

MR HOUGHTON:   The public aspect, if I could be more specific, your Honour, concerns what newspapers and other media in this country can publish about judicial proceedings and be critical of judicial proceedings.  Whether that is caught, first of all, by the description “government and political matters” enunciated by the unanimous decision in Lange – that is the first public interest, or public aspect about it.

There is now considerable confusion in the country because of the four justices who have so far adjudicated.  The first one at trial said, yes, a critique of a judicial figure or judicial officer comes within the rubric “government and political matter” if, and only if, it calls for the dismissal of that judicial officer.  So, if you like, it was a narrowing of what might be thought to have been the conventional view.  On appeal two justices, the Acting Chief Justice and Justice Warren, the new Chief Justice, took the view that on no view could a critique of a judicial proceeding or a judicial officer fall within the rubric.  The third judge, who wrote the leading judgment, took a provisional view that a critique of a judicial officer did fall fair and square within the Lange doctrine, although that judge, Justice Gillard, took only a provisional view, so he dissented on that question.  So we have, if you like, three different views at trial level and intermediate appellate level as to what is a government and political matter.  The second public aspect of it is we wish to challenge the correctness of Lange, or we wish to ask this Court to reconsider the reasonable aspect of Lange.

Your Honour, in 1997 this Court unanimously held that, if you want to succeed on a Lange defence, you not only have to establish the usual qualified privilege elements, but you have to satisfy a superadded requirement, that is, reasonableness.  It is, your Honour, on that point the Justices took different views.  The Court of Appeal, for instance, reversed the trial judge, who had taken that issue off the jury, we having had a favourable response from the jury, and said the trial judge was wrong to take it away for the two reasons he did, but there is a third reason which he did not look at, on which he could have taken it away, and because of that our appeal failed.  So, on those two public aspects, namely, what is “government and political matters” so far as it affects the judiciary, and on the second question, should a media organisation or any publisher have to establish the superadded requirement of reasonableness, we say both those questions raise a significant public issue, which at the moment is in a state of confusion.

We also point, thirdly, your Honour, to the fact that Lange, of course, was a unanimous decision of this Court, but we would point to it being, if you like, an uneasy compromise amongst the then members of the Court as to the implied freedom of communication that can be gleaned from the Constitution. We see that as being an important issue also on our special leave application. So we merely point to those as being perhaps the public issues. We say nothing about the private issues that our learned friend has addressed.

HIS HONOUR:   Do you say anything in response to the proposition that a question of unfitness for public office having been agitated at trial, that question might be seen as remaining unresolved so long as the litigation persists?

MR HOUGHTON:   We concede that it could well be remaining unresolved.  I think that is as far as we can say.

HIS HONOUR:   Yes.  Mr Sher, I will give some reasons presently, but you may take an order for expedition, but it will be an order in terms that you be ready for inclusion in the June list.  I will not direct that you be included in the list of cases to be heard in Melbourne in June for this reason.  If, for example, there were applications by persons in custody that required to be heard before this one, they will be heard before this one.

MR SHER:   I understand, your Honour.

HIS HONOUR:   For that reason alone, the most I would be prepared to say is that both sides order their affairs on the basis that they are ready for inclusion in the list of cases to be heard in Melbourne in June.

MR SHER:   Can I enquire upon your Honour – and we have taken instructions on whether this might be a possibility – as to whether we could not be included in a list perhaps in Sydney in April or May?

HIS HONOUR:   How far away are you from the completion of the preparation?  The index, I believe, has been submitted but not settled.

MR SHER:   Everything has been agreed between the parties.  There were three inclusions that the parties jointly wanted.  The parties between themselves have agreed.  They are not contentious.  One is a legible copy of the article itself, which might be thought to be useful.  The other two documents ‑ ‑ ‑

HIS HONOUR:   “Essential” is the word that strikes me, yes.

MR SHER:   Yes.  Well, I do not know how the Court of Appeal managed with the copies they had, but they did.  The other two documents were each of the parties’ notices of contention, because each of us raise a question as to what would have happened if the decision of the Court of Appeal might have been different.

HIS HONOUR:   If leave were granted, each would ‑ ‑ ‑

MR SHER:   Yes.  Well, we would be saying ‑ ‑ ‑

HIS HONOUR:   Well, you would not want to put on a notice of contention.

MR SHER:   No, these are the notices of contention that were before the Court of Appeal.

HIS HONOUR:   I see, yes.

MR SHER:   Because each party wants to say something along the lines, “Well, we might have lost on this point or won inappropriately on this point, but if it had gone on to the next point we would have won anyway”.

HIS HONOUR:   Yes.

MR SHER:   Now, the parties have agreed amongst themselves they should be included, and I think that agreement has just been reached.  So it is just really a mechanical task now, your Honour, and I think that means a matter of a few days really.

HIS HONOUR:   I simply cannot say to you whether we can put you on in a Sydney list.  There are sometimes short lists heard in Sydney on the Tuesday immediately following the sittings.  Lists of two or three cases are sometimes heard on the Tuesday following sittings.  It may be that we could find room there.  I just do not know.

MR SHER:   Yes.

HIS HONOUR:   I made enquiries only of the Melbourne list.

MR SHER:   Yes.  Well, perhaps if your Honour, having foreshadowed what your Honour is disposed to do, could add to it the possibility that upon some notice at least the parties might be expected to make themselves available earlier in Sydney.  If, in fact, there proves to be an insuperable problem, then undoubtedly the Court would be sympathetic to such a problem.

HIS HONOUR:   If I say that the parties are to be ready for inclusion in a list of applications, wherever heard, by no later than 14 April – takes account of Easter – that would put you in a position where, if there were a vacancy – there is a motions day on 30 April, one on 28 May, there may be one on 4 May, there may be one on 2 June, and there will be one on 18 June.

The respondent to an application for special leave, who was the plaintiff in the proceedings which give rise to the litigation, applies for an order expediting the hearing of the application for special leave.  The application for special leave is made by the defendants in the proceeding below, who were the publisher and the author of an article published in the Herald Sun newspaper on 13 December 2000, which the plaintiff alleges defamed her.

The article dealt with the conduct of the plaintiff as a magistrate of the Magistrates Court of Victoria.  She contends – and the primary judge and the Court of Appeal are said to have found – that the article called for her removal from office.  The plaintiff obtained judgment at trial and the appeal against that judgment brought to the Court of Appeal of Victoria by the defendants largely failed.  The defendants seek special leave to appeal against the orders of the Court of Appeal.

The plaintiff seeks expedition of her application on three bases.  First, she contends that what she calls “the lingering uncertainty affecting the Court of Appeal’s decision” affects the performance of her work as a magistrate and as one of the deputy chief magistrates of the Magistrates Court of Victoria.  Second, she points to the nature of the action as an action for defamation by which she seeks vindication of her reputation.  Thirdly, she points to the worry and stress that the continuing uncertainty surrounding the litigation produces for her and for her family.

The last of the matters I have mentioned is a matter attending any litigation and is a matter which, in my opinion, must be put aside in considering the application for expedition.  It is necessary to approach that application, bearing in mind that, if this matter is given expedition, it is necessarily given preference over other cases waiting in the list.  Sound reason must be demonstrated before such an order should be made.

In this particular case, having regard particularly to the public considerations that attach to the final resolution of a dispute in which questions of unfitness for public office have been, and possibly may be thought continue to be, agitated by the existence of the litigation, I am of the opinion that an order should be made expediting the hearing of the application.

As explained to counsel, I am not minded to expedite the hearing to a specified date.  Counsel have indicated that, if it is possible to have the matter heard in a city other than Melbourne at a date before the next motions day in Melbourne, they would wish that that is done.  I am not in a position now to say whether a suitable vacancy can be made in other lists of motions to be heard by the Court.  It is likely, however, that failing earlier fixture, the matter may be included in the list of cases which would ordinarily be heard on the motions day on 18 June in Melbourne.

Accordingly, I will direct that the application for special leave be expedited and that the parties take all steps reasonably within their power to make the application ready for inclusion in a list of cases, wherever heard, on or after 14 April 2004.  I would be minded to make the costs of the application for expedition costs in the application for special leave.  I certify the attendance of counsel.

Do counsel wish to be heard about the form of those orders?

MR SHER:   No, your Honour.

MR HOUGHTON:   No, your Honour.

HIS HONOUR:   Very well.  There will be orders in those terms.

AT 9.54 AM THE MATTER WAS CONCLUDED