Another matter has been added to the list of Sydney special
leave applications being heard by the High Court on Friday, 28 May.
This is Herald and Weekly Times and Andrew Bolt v Jelena Popovic. The
short particulars of the long battle between one of Australia’s most
offensive right wing commentator and Victoria’s deputy chief magistrate
are as follows:


THE HERALD & WEEKLY TIMES LTD & ANOR v POPOVIC (M301/03)


Court appealed from: Court of Appeal, Victoria

Date of judgment: 21 November 2003

The
first applicant (HWT) is the proprietor and publisher of the
Herald-Sun, a Victorian daily newspaper. The second applicant (Bolt) is
a journalist employed by HWT. The respondent (Popovic) is a Deputy
Chief Magistrate in Victoria. On 13 December 2000 HWT published an
article by Bolt entitled “We pay our magistrates good money to UPHOLD
the laws”, which was critical of the performance and conduct of Popovic
in some proceedings. Popovic sued the applicants seeking damages
including aggravated and exemplary damages. She alleged that the
article defamed her both personally and in her office as a magistrate
and pleaded 3 false innuendos. The applicants pleaded a number of
defences, including qualified privilege based upon the High Court
decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange).

At
the jury trial, after the closing of the defence case, it was submitted
for Popovic that none of the defences had been made out and should not
be left to the jury; but that because the arguments concerning those
defences would take some time, the trial judge should reserve the right
for Popovic to move for judgment non obstante veredicto. Over the applicants’ objections Bongiorno J ruled that he would reserve leave to the parties generally to move for judgment non obstante veredicto
after the jury had provided answers to certain questions. An agreed set
of questions went to the jury raising the issues remaining on the
pleadings. The jury found that Popovic was defamed by the article, that
the article was not true, that it was not a faithful and accurate
report of judicial proceedings and that it was not fair comment on a
matter of public interest. However the jury considered it was
reasonable for the applicants to have published the article in terms of
the Lange extended qualified privilege and that they had so published without malice. After the jury’s verdict both parties moved for judgment. Bongiorno J then had to consider whether the Lange
defence had been made out. He held that the publication did constitute
discussion of a government and political matter as enunciated by Lange,
but only on the narrow ground that it called for the dismissal of a
magistrate. He then considered the issue of reasonableness of the
applicants’ conduct in publishing the article. His Honour concluded
that, had the issue been argued before the case was put to the jury,
the issue of the Lange qualified privilege would have been
withdrawn from the jury’s consideration, on the ground that no evidence
existed upon which a jury could properly find that the applicants’
actions were reasonable. He accordingly entered judgment for Popovic
and subsequently assessed damages.

The applicants appealed
and Popovic cross-appealed. Gillard AJA expressed the provisional view
that a discussion of the conduct of a judicial officer and the way that
officer behaved in court is a government matter. Winneke ACJ &
Warren AJA held that it is not a government or political matter.
Gillard AJA held (Winneke ACJ & Warren AJA agreeing) that, in
failing to publish the whole of the transcript of the hearing before
Popovic the subject of the article, the applicants had so distorted the
facts that no reasonable jury could have found that the publication was
reasonable. Consequently the applicants could not rely on the Lange defence.

The questions of law said to justify the grant of special leave include:

  • Is
    a publication concerning the conduct and performance of a judicial
    officer a discussion of a “government and political matter” for the
    purpose of the extended defence of qualified privilege enunciated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
  • Should reasonableness of conduct be an ingredient of the defence of qualified privilege as extended by Lange
  • Is any requirement of reasonableness of conduct, for the purposes of the defence of qualified privilege as extended by Lange to be determined by the trial judge or the jury