MIKIPEDIA LAW BLOG: HERALD & WEEKLY TIMES LTD & BOLT v POPOVIC [2003] VSCA 161 (21 NOVEMBER 2003)

Last Updated: 4 December 2003
SUPREME COURT OF VICTORIA COURT OF APPEAL No. 4631 of 2001

THE HERALD & WEEKLY TIMES LTD & ANDREW BOLT
	Appellants/ Cross -Respondents
v.
JELENA POPOVIC	Respondent/ Cross-Appellant

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JUDGES:	WINNEKE, A.C.J, GILLARD and WARREN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19-22 May 2003
DATE OF JUDGMENT:	21 November 2003
MEDIUM NEUTRAL CITATION:	[ 2003] VSCA 161

--- LIBEL - Trial by jury - Jury answered specific questions - Reservation of leave to move for judgment non obstante veredicto over objection of defendants - Power to do so.
EXTENDED DEFENCE OF QUALIFIED PRIVILEGE - Function of judge and jury - Criticism of judicial officer whether political or government matter - Reasonableness of publication - Not reasonable where article is altered.
FAIR COMMENT DEFENCE - Directions - Elements of proof.
JUSTIFICATION DEFENCE - Directions - Polly Peck defences pleaded - Whether Polly Peck defences were proper.
COURTS AND JUDGES - Role of judiciary - Separation of powers.
JURY - Reservation of leave to move for judgment non obstante veredicto.
RULE IN BROWNE v. DUNN - Whether applicable.
AGGRAVATED DAMAGES - Assessment.
EXEMPLARY DAMAGES - Assessment - Exemplary damages - Conduct post verdict.
PRACTICE AND PROCEDURE - Rules of Court - O.1.14, 47.02, 47.05, 49.01(1), 59.01.

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APPEARANCES:	Counsel	Solicitors
For the Appellants/Cross Respondents	Mr. A.C. Archibald, Q.C., Mr. W.T. Houghton, Q.C., And Ms. G.L. Schoff	Corrs Chambers Westgarth
For the Respondent/Cross Appellant	Mr. J.L. Sher, Q.C. and Mr. L.W. Maher	Howie & Maher

WINNEKE, A.C.J.:

I have had the considerable advantage of reading, in draft form, the judgment which Gillard, A.J.A. proposes to publish in this appeal. I agree with his Honour's conclusions and the orders which he proposes for the disposition of the appeal and the cross-appeal; and the application by the respondent to lead further evidence. I do so largely for the reasons which his Honour has given. However, I wish to add some comments of my own. In doing so, I gratefully adopt the extensive outline of facts and issues which are incorporated in his Honour's reasons.

The Defence of Extended Qualified Privilege

In 1997, the High Court in Lange v. Australian Broadcasting Commission[1] expanded the scope of the defence of common law qualified privilege by extending the protection to defamatory statements made to the public at large in the course of communications on "government or political matters". In doing so, a united Court "re-expressed the earlier discourse[2] concerning a `constitutional defence' " and "reformulated the applicable rule in terms of the requirements implicit in the Constitution that forbid inconsistent laws"[3]. In defining the defence, the Court attached a condition of "reasonableness of publication". The Court declared that this new expanded version of common law qualified privilege was in conformity with the freedom of communication on government and political matters which is to be implied from the text and structure of the Commonwealth Constitution.[4] The Court made it clear that the laws of defamation, both common law and statute, applying in the States of Australia should themselves be consistent with, and not restrictive of, the freedom of communication implied by the Constitution. In the course of its judgment, the Court said[5] that:

"The common law rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restrict the freedom required by the Constitution. Statutes which purport to define the law of defamation are construed, if possible, conformably with the Constitution. But if their provisions are intractably inconsistent with the Constitution, they must yield to the constitutional norm."

Further, the Court said that whether the defamation laws applicable in a particular State (both common law and statute) imposed unreasonable restraints on the freedom of communication concerning government and political matters would need to be worked out on a case by case basis. Nevertheless, it was acknowledged that the common law defence of qualified privilege would rarely be compatible with the implied constitutional freedom because, ordinarily, privileged occasions are occasions of limited publication; and publication to the "world at large" will usually defeat the privilege. However, the Court recognized that publication of defamatory matters to the general public was capable of causing irreparable damage to the person defamed; damage of a kind which would not normally occur on occasions of common law qualified privilege. It was for that reason that the Court imposed the requirement of "reasonableness of conduct in publishing" as an element of the extended defence in circumstances where that defence is "invoked to protect a publication that would otherwise have been held to have been made to too wide an audience"[6] . It was not in dispute that the case with which this Court is now concerned involved such a publication.

At the conclusion of the evidence in this trial, the judge ruled that the article of which the respondent complained was a discussion of "government or political matters" of the kind referred to in Lange (supra), but left to the jury - subject (as Gillard, A.J.A. has explained) to reservation of leave to the respondent to move non obstante - the question whether the appellants' conduct in publishing the article was "reasonable" in the circumstances.

The characterization of the offending publication as a discussion of "government or political matters" has become relevant on this appeal because, pursuant to the leave which the judge had reserved, he concluded that there was no evidence to support the jury's finding - in answer to the question left to them - that the appellants' conduct in publishing the article was reasonable in the circumstances. In their Notice of Appeal, the appellants have challenged the judge's conclusion in that respect; and, for her part, the respondent has filed a Notice of Contention in which she asserts, inter alia, that the judge was in error in concluding that the article amounted to a discussion of government or political matters so as to attract the extended qualified privilege referred to in Lange.

In his reasons, Gillard, A.J.A. expresses a "provisional view" that the trial judge was correct in ruling that the article was a discussion of political or government matters, and thus capable of attracting the freedom of communication protected by the Constitution. It was unnecessary for his Honour to express a final view about this matter because he had come firmly to the conclusion that, on any view of the matter, there was no basis for the jury's conclusion that the appellants' conduct in publishing the article was reasonable.

For my own part, I do not regard the impugned article as discussion of government or political matters within the meaning of the principle established in Lange v. Australian Broadcasting Commission (supra). The trial judge, in ruling that it did, appears to have founded his conclusion largely upon the basis that the article imputed that the respondent's conduct in managing the proceedings before her warranted her removal as a magistrate. In my view, criticism by a newspaper (even strong criticism) of a magistrate's performance in conducting or handling isolated proceedings in the Magistrates' Court - even to the point of inferring that he or she is unfit to hold office - is not a discussion of government or political matters of the type which is protected by the implied constitutional freedom.

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[7]:

"... 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." (footnotes omitted)

Thus it is that the structure and text of the Constitution necessarily protects the freedom of communication between the people of Australia concerning political or government matters which enables the people to exercise a free and informed choice as electors[8]. As McHugh, J. stated in Levy v. The State of Victoria and Ors.[9]:

"It is not open to doubt that the Constitution protects the freedom of `the people of the Commonwealth' (the members of the Australian community) to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution. By a necessary implication drawn from ss. 7, 24, 64 and supporting sections, the Constitution strikes down laws burdening freedom of communication on these matters. The implication is necessary because, without it, people of different backgrounds or with different perspectives or information could be legally prevented from exchanging views on matters relevant to choosing their representatives at federal elections and on matters relating to the performance of federal Ministers."

It is apparent from these descriptions of the freedom to communicate on political and government matters that the freedom, although not "absolute", cannot be given any narrow construction. In Lange[10], the High Court remarked that the common law rules of defamation concerning privileged communications failed to meet the requirements of the implied constitutional freedom of discussion about political and government matters, and stated that the common law of defamation -

"can and ought to be developed to take into account the varied conditions to which McHugh, J. referred [in Stephens v. West Australian Newspapers Ltd.][11] ."

Those "varied conditions" were referred to by McHugh, J. in the following terms:

"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 to be exercised are matters 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 ... 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 level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally."

It is apparent from the authorities to which I have referred that the 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[12]. 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. 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, C.J. pointed out (in a different context) in John Fairfax Pty. Ltd. v. Attorney-General (NSW)[13] - 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.

Reasonableness of Conduct

In extending the laws of qualified privilege to protect publication concerning governmental and political matters to mass audiences, the High Court in Lange imposed as a condition of the extended privilege that the publisher's conduct in publishing the "matters" be reasonable in the circumstances[14]. But it imported the element of reasonableness only when the extended category of qualified privilege is invoked to protect a publication which would otherwise be held to have been made to too wide an audience[15]. In this case, it has always been accepted that the element of reasonableness of conduct, the burden of proving which fell upon the appellants, applied.

I agree with Gillard, A.J.A. that, subject to the jury finding primary facts which bear upon it, the issue of "reasonableness of conduct" of the publishers should have been decided by the trial judge; not by the jury. At common law, it has been well accepted that the question whether the occasion is privileged is one for the judge to determine as a matter of law[16]. Quite apart from the fact that the court in Lange[17] appeared to contemplate that "reasonableness of conduct" was "an element for the judge to consider", it seems to me that the reasonableness of the publisher's conduct both defines and confines the scope of the privilege. For the judge to invite the jury to determine the issue of reasonableness carries with it the risk, as I see it, that the determination will be made in a contextual vacuum. This case provides a striking example. The appellants had taken a raft of defences, which included faithful and accurate report, and fair comment on a matter of public interest. There were issues between the parties as to the truth of the facts upon which the comment was based. The findings of the jury with respect to those facts became relevant to the question of "reasonableness of conduct" on the part of the appellants. In Austin v. Mirror Newspapers Ltd.[18], the Privy Council was asked to consider a case where the question of the publisher's reasonableness of conduct was in issue pursuant to s.22(1)(c) of the Defamation Act 1974 (N.S.W.). That, too, was a case where the defendant had relied upon a variety of defences, including qualified privilege and comment. Lord Griffiths, who delivered the judgment of their Lordships, said[19]:

"The media has enormous power both for good and ill, and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slip-shod journalism that would provide no defence of comment because the facts upon which the defence was based were not true. Where the defence of comment has failed because the jury has found the facts to be untrue, a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them."

Likewise, it seems to me that where defamatory comments are founded upon what is alleged to be - but is found not to be - a faithful and accurate report of judicial proceedings, a judge should scrutinize very carefully the circumstances surrounding the publication of those comments before concluding that it was reasonable to publish them.

There could be little doubt in this case, from the jury's answers to the questions left to them (in the light of the respective submissions made by counsel), that at least some of the facts upon which comments were based were found to be untrue. Furthermore, the jury found that the publication was not a faithful and accurate report of the proceedings before the respondent. By leaving the issue of "reasonableness" to the jury, the judge denied to himself the capacity to examine the conduct of the publishers, leading to the publication of false facts, and defamatory comment, whilst at the same time circumscribing the function of the jury by being unable to give directions on all matters relevant to the task which they had been allotted. In my view, this was a case where it would have been preferable for the judge to have reserved for himself the issue of extended qualified privilege until after he had received the jury's answers upon the other defences. Those answers would have concluded "primary facts" relevant to the issue of privilege.

No ground of appeal has raised the issue before this Court whether the judge was correct to have left the question of "reasonableness of conduct" to the jury. It appears to have been accepted by the parties at trial that the procedure adopted was appropriate. I agree with Gillard, A.J.A. that this Court should determine the matter on the basis of what occurred at the trial. However, I agree with his Honour that the evidence established beyond doubt that the conduct of the publishers - in failing to disclose the whole of the exchange between the respondent and the police prosecutor, thereby distorting the facts upon which defamatory comment was based - precluded a finding of reasonable conduct in the circumstances. It is the abridged publication of the exchange which lends colour to the meanings pleaded by the respondent; namely that she was engaged in presiding over a criminal prosecution of persons for arson; when in truth she was not. She was engaged in what is called a "contest mention" in which the relevant parties are drawn together to frankly exchange views in the hope and expectation that (inter alia) the future conduct of the matter might be shortened; and that ultimately the charges might bear some relationship to the criminality of the conduct of the alleged offending. There are, of course, limits to the extent to which publishers of a daily newspaper can devote space to items of news. However, in this case, it is difficult to avoid the conclusion that the author was publishing as much of the exchange as he thought was necessary to support the defamatory comments which he desired to make. If he had published the whole of the exchange, it would have destroyed the basis for the comment that the respondent was "bullying the prosecutor"; as well as making it clear that the respondent was not engaged in presiding over a prosecution for arson, which the jury must have found - on the directions given to them - was the meaning which the publication conveyed. But, at the same time, it would have undermined the entire thrust of the publisher's criticism of the respondent that she was bullying the prosecutor, pre-judging the issues, subverting the law, and acting improperly. On any view, the conduct of the journalist in this regard can only be described, at the very best, as slipshod. No independent evidence was led from the publisher. In my view, Gillard, A.J.A. is correct to conclude that the failure to properly reproduce the true context of the exchange between the respondent and the prosecutor leads to the conclusion that no reasonable jury, properly instructed, could have concluded that the conduct of the appellants in publishing the article was reasonable in the circumstances.

Justification

The appellants contended on this appeal that the trial judge misdirected the jury by telling them that they should answer Question 1 ("was the article defamatory of the plaintiff?") by reference only to the respondent's pleaded imputations. Such a direction, so it was contended, deprived their plea of justification, based on alternative imputations, of any efficacy.

There is no doubt that the judge directed the jury that they should consider their answer to the first question by reference to the respondent's pleaded imputations. Gillard, A.J.A. concludes that this was a misdirection; but that - because the appellants' trial counsel had been content to have the matter left to the jury in this way - no miscarriage had occurred.

Counsel for the respondent on the appeal pointed to the fact that trial counsel for the appellants had gone to the jury on the basis that Question 1 should be considered only by reference to the respondent's pleaded imputations. Counsel for the respondent pointed to the final address to the jury made by appellants' trial counsel in which he submitted that:

"to be satisfied about the answer to Question 1, you have got to come to a view about these meanings, the plaintiff's meanings, and ask yourselves would the average reasonable reader really have been conveyed these meanings. Let's look at them. They are all predicated on one factual matter; that is that Ms Popovic on 30 November was presiding over a criminal prosecution for arson. You have read the article. Do you think the average reasonable reader would think that? It is a matter for you. We say they wouldn't because we make it quite plain in the article, and we quote her, that she was not presiding over a criminal prosecution on that day. ... You have got to be satisfied for yourselves members of the jury, and really it is a matter for you what meanings are in fact conveyed by this article. The average reasonable reader reading it generally only once, but reading the whole of the article - before you can be satisfied about the answer to Question 1 you have got to be satisfied that, the plaintiff having the onus of proof on this, has satisfied you that those meanings, or substantially similar meanings, were in fact conveyed by this article."

Counsel for the respondent asked, rhetorically:

"How can it be a fundamental misdirection amounting to miscarriage when the judge directs the jury in accordance with the defendant's counsel's submissions to them?"

He submitted that it was the judge's obligation to leave the issues to the jury in the manner in which those issues had been defined by counsel. That had been done; and no exception had been taken to the directions. It was submitted that trial counsel for the appellants had been content that the matter be left to the jury in the way in which it was, because counsel's primary purpose was to get a "No" answer to Question 1. It was put that counsel was effectively using the appellants' own pleaded meanings - which he had never conceded to be defamatory - as particulars of their denial that the words meant what the respondent alleged them to mean.

For my own part, I think there is much substance in these submissions. The judge left the matter to the jury in the way in which the issues had been defined by both counsel. It can scarcely be described as a misdirection; but if it was, it was not one which caused any miscarriage of justice. I agree with the view expressed by Gillard, A.J.A. that it was a tactical choice carefully made by trial counsel for the appellants to submit to the jury that the plaintiff's imputations were not conveyed, and that therefore the article was not defamatory of the plaintiff. It enabled him to obtain directions from the trial judge which gave to his clients the "best of all worlds". The judge had given to the jury the alternative meanings contended for by the defendants and had told them that it was the defendants' contention that the article did not mean what the plaintiff says it means; and that unless they found that it meant what the plaintiff was contending, they would answer "No" to Question 1. On the other hand, the defendants' counsel still managed to secure a direction that, even if they answered Question 1 in the affirmative, they would still have to consider, when they got to Question 2 (justification), the "different meanings" contended for by the defendants; and that, before the defendants could succeed on the issue of justification, they (the jury) would have to be satisfied that the article "means what the defendants say it means or something substantially [similar]". The defendants, having got the directions that they wanted, had no basis for taking exception to the charge; and it is little wonder that no such exception was taken. That tactical choice having been made, I, too, agree with respondent's counsel that it is too late now to complain that the judge's directions were misdirections which caused the trial to miscarry.

Counsel for the respondent submitted that there was a further reason why no miscarriage flowed from his Honour's directions in respect of "justification". He submitted that the imputations pleaded by the appellants were so different from those pleaded by the plaintiff, that they were embarrassing and should have been struck out. The law in the State, derived from the decision of the High Court in Chakravarti v. Advertiser Newspapers Ltd.[20], was explained most recently in David Syme & Co. Ltd. & Anor. v. Hore-Lacy[21] where, in respect of the pleading by a defendant of imputations different from those of the plaintiff, a majority of this Court (Ormiston and Charles, JJ.A.) concluded:

"The position then remains that, at trial, neither the plaintiff nor the defendant should be permitted to raise (nor should the defendants be permitted to justify) a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff."[22]

In this case the defamatory sting which was given to each of the three meanings pleaded by the plaintiff depended upon her proving to the jury's satisfaction that the article conveyed the meaning that she was engaged in presiding over a criminal prosecution for arson. It was that fact which gave meaning to the imputations of bias, and inappropriate conduct. That was why defence counsel was at pains to point out that the plaintiff's meanings could not be proved. The meanings pleaded by the defendants deliberately steered clear of this aspect of the meanings pleaded by the plaintiff. That fact, in itself, renders the defendants' meanings substantially different from those pleaded by the plaintiff. One only has to compare the three meanings respectively pleaded by the plaintiff and the defendants to recognize how substantially different the meanings relied upon by the defendants are from those upon which the plaintiff relied. In my view, counsel for the respondent was correct in his submission that this aspect of the defendants' pleading was embarrassing; and that - if his Honour's directions in respect of justification were in error - that was another reason why no miscarriage had

occurred. Furthermore, I am in agreement with the conclusion reached by Gillard, A.J.A., after an extensive analysis of each of the imputations relied upon by the appellants, that the defence of justification based upon them would have failed in any event.

GILLARD, A.J.A.:

This is an appeal by unsuccessful defendants against a judgment entered by the learned trial judge in a defamation proceeding. After a six person jury answered a number of specific questions, his Honour in accordance with leave reserved, ruled on a defence and assessed damages.

The successful plaintiff claimed compensation for libel in an article written in the Herald-Sun newspaper by a journalist. She has 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.

Parties

The first defendant, Herald & Weekly Times Limited ("the proprietor"), is the proprietor and publisher of the Herald-Sun, a daily newspaper sold in the State of Victoria.

The second defendant, Andrew Bolt ("Mr Bolt"), is a journalist who at all relevant times was employed by the proprietor.

The respondent to the appeal, the plaintiff in the proceeding, is Ms Jelena Popovic (Ms Popovic"), who is and was at all relevant times a Senior Magistrate of the Magistrates' Court of Victoria, and a Deputy Chief Magistrate of the Court.

The Article

In the morning and afternoon editions of the Herald-Sun published on

13 December 2000 the appellants published of and concerning the respondent an article ("the article") under the heading -

"Andrew Bolt We pay our magistrates good money to UPHOLD the laws." A copy of the article is attached to these reasons.

Mr Bolt was the author of the article.

Ms Popovic alleged that the article in its ordinary and natural meaning defamed her.

On 27 February 2001, Ms Popovic instituted by writ a proceeding in this court against the proprietor and Mr Bolt seeking damages, including aggravated and exemplary damages. The defendants gave notice that they wanted trial by jury.

In her statement of claim, Ms Popovic pleaded three false innuendos, namely -

(a) 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: (i) prejudging the case; and
(ii) deciding on the appropriate penalty;
(b) 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;
(c) the plaintiff had so misconducted herself in a criminal prosecution for arson in the ways described in sub-paragraph (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.
The Issues at Trial

In their defence, the proprietor and Mr Bolt denied that the article was defamatory of Ms Popovic, and put damages in issue. 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. This is a Polly Peck defence. See Polly Peck Holdings v. Trelford.[23] The grounds of appeal allege that the learned trial judge misdirected the jury in respect to the law of justification and accordingly it is necessary to set out the imputations pleaded by the defendants. The defence alleged -

"9. Further, the defendants say that the article, in its natural and ordinary meaning, meant and was understood to mean that the plaintiff: (a) had prejudged the case then before her by indicating that if she were the presiding magistrate she would find the charges proven and then dismiss them without knowing the facts of the case; (b) had bullied the police prosecutor appearing in the case then before her by accusing him of repeatedly arguing with her and then warning him in circumstances when he was attempting to put the Crown case for proceeding with the prosecution; (c) conducted herself inappropriately as a judicial officer by indicating during the course of the hearing before her an antipathy towards the Indonesian Consulate (whose flag had allegedly been burned by the accused) by querying whether it was the Indonesian Consulate that was pushing the prosecution by commenting that it would be cheaper to buy a new flag and, on the other hand, showed sympathy for the accused whom she said were presumably young people some of whom she said had worked in a voluntary capacity in East Timor; and in those meanings the article is true in substance and in fact."

In addition, the defendants alleged the article was a fair report of a judicial proceeding and was accordingly published on an occasion of common law qualified privilege, the article constituted a faithful and accurate report of proceedings in the Magistrates' Court and accordingly no action was maintainable pursuant to s.4 of the Wrongs Act 1958 (Vic), that the article was fair comment upon a matter of public interest and finally, a qualified privilege defence, based upon the High Court decision in Lange v. Australian Broadcasting Corporation.[24]

In her reply, Ms Popovic put in issue those defences and alleged that the defendants were actuated by actual malice at the time the article was published. She gave particulars of malice which included references to other articles written by Mr Bolt and published by the proprietor.

Course of the Trial

The trial commenced on 10 April 2002 before a judge of the Trial Division of this court and a jury. Ms Popovic gave evidence as did a number of other witnesses on her behalf. The defendants called evidence. Mr Bolt gave evidence.

On 18 April 2002, after the defendants had closed their case, counsel for Ms Popovic submitted that none of the defences relied upon by the defendants had been made out and submitted that they should not be left to the jury. However, because the argument concerning the various defences would take some time, counsel submitted that it was appropriate that the judge should reserve the right to Ms Popovic to move for judgment non obstante veredicto. Defendants' counsel objected to that course, but his Honour ruled that he would reserve leave to the parties to move for judgment non obstante veredicto after the jury had provided answers to the questions submitted to them.

The defendants abandoned their defence of qualified privilege based upon a fair report of a judicial proceeding. The other defences were relied upon.

Counsel addressed the jury, and following his Honour's charge, the jury retired to consider a number of questions. The jury answered all questions except those relating to damages. No verdict was taken from the jury. The answers to the questions were neither a general or special verdict. See Russell v. VRC,[25] and McDonnell and East Ltd v. McGregor.[26] If the judge had not reserved leave to move for judgment non obstante veredicto, he was bound to give legal effect to the findings.[27]

Questions for the jury's determination were discussed and settled between counsel for the parties. Save for one aspect, there was no discussion with the learned trial judge as to the propriety or otherwise of the questions. Questions 7 and 8 dealt with damages. The judge ruled that they need not be answered if any of the defences succeeded. Defendants' counsel submitted that the damages should be assessed even if the jury found for the defendants. His Honour disagreed, reasoning that it would be unfair to Ms Popovic and difficult for the jury to fairly and properly assess damages having reached a conclusion that in effect she should fail. The defendants have not appealed his Honour's decision in this respect.

The questions asked of the jury and the answers (circled) were as follows -

"(1) WAS THE ARTICLE DEFAMATORY OF THE PLAINTIFF?

/ NO

(2) IF YES TO 1, WAS THE ARTICLE TRUE?

YES /

(3) IF YES TO 1, WAS THE ARTICLE A FAITHFUL AND ACCURATE REPORT OF THE PROCEEDINGS BEFORE THE MAGISTRATES' COURT AT MELBOURNE ON 30 NOVEMBER 2000?

YES /

(4) IF YES TO 1, WAS THE ARTICLE FAIR COMMENT ON A MATTER OF PUBLIC INTEREST?

YES /

(5) IF YES TO 1, WAS THE CONDUCT OF THE DEFENDANTS IN PUBLISHING THE ARTICLE REASONABLE IN THE CIRCUMSTANCES?

/ NO

(6) IF YES TO EITHER 4 OR 5, WERE THE DEFENDANTS ACTUATED BY MALICE IN PUBLISHING THE ARTICLE?

YES /

(7) IF YES TO 1, AND NO TO 2, 3, 4 AND 5, IN WHAT AMOUNT DO YOU ASSESS THE PLAINTIFF'S DAMAGES FOR:

(a) ALL DAMAGES OTHER THAN PUNITIVE DAMAGES

(b) PUNITIVE DAMAGES

(8) IF YES TO 1 AND TO EITHER 4 OR 5 AND ALSO YES TO 6, IN WHAT AMOUNT DO YOU ASSESS THE PLAINTIFF'S DAMAGES FOR:

(a) ALL DAMAGES OTHER THAN PUNITIVE DAMAGES

(b) PUNITIVE DAMAGES

$ "

Because of the answers to questions 1 to 6 the jury did not answer questions 7 and 8.

Upon delivering their answers to the questions, the jury were discharged. This occurred on 26 April 2002.

Mr Houghton Q.C., who appeared with Ms Schoff for the defendants, moved for judgment and Mr Sher Q.C., who appeared with Mr L. Maher, for Ms Popovic, opposed that course and submitted there should be judgment for Ms Popovic.

His Honour said that he wanted to make it clear "that the verdict of the jury in this case has not decided this case. There are questions of law still to be determined which will have the effect ultimately of deciding the case but as the matter currently stands the case has not been decided."

Mr Bolt was present when his Honour made those observations.

The parties returned to court on 3 May 2002 and after hearing submissions his Honour reserved. On 21 May 2002 he published his reasons, dismissing the defendants' motion for judgment and entering judgment for Ms Popovic for damages to be assessed.

On 23 May 2002, the hearing of the assessment of damages commenced. Ms Popovic gave and called further evidence. A number of documents were tendered in evidence concerning media reports of what Mr Bolt said on and after 26 April 2002 concerning the jury verdict. The defendants did not call further evidence.

On 6 June 2002, the learned judge delivered his reasons on damages. He held that Ms Popovic was entitled to aggravated damages as well as compensatory damages, and the heads of aggravation were reliance on and persistence in unjustifiable defences, refusal to apologise, Mr Bolt accusing Ms Popovic of lying in the proceeding, the attack on the plaintiff's credit, failure of the proprietor to exercise control over Mr Bolt, the failure to give the plaintiff an opportunity to respond and the conduct of Mr Bolt and the proprietor on and after 26 April making statements through the media concerning the case which were misleading. His Honour awarded the sum of $210,000 for compensatory and aggravated damages. In addition, he awarded exemplary damages in the sum of $25,000. The basis for the latter damages was the conduct of Mr Bolt and the proprietor on and after 26 April 2002. He rejected Ms Popovic's claim for exemplary damages based upon the defendants' pre-verdict conduct. His Honour awarded $11,500 damages in the nature of interest and entered judgment for $246,500.

Issues on Appeal

The defendants' notice of appeal raised seven general grounds which were divided up into sub-grounds.

Ms Popovic filed a notice of cross-appeal containing two grounds of appeal. Ms Popovic filed a notice of contentions.

The notices of appeal and contentions raised a substantial number of issues for consideration by the court.

They are -

(i) Did the learned judge have power to reserve leave to the parties to move for judgment non obstante veredicto over the objection of the appellants, and if he had the power did he err in the exercise of it? (ii) Did the defendants prove the Lange defence of qualified privilege (named after the High Court decision of Lange v. The ABC, supra) namely, that the article was a communication of information to the readers of the paper concerning political or government matters and their conduct in publishing the article was reasonable in all the circumstances?
(iii) Did the learned judge misdirect the jury on the fair comment defence?
(iv) Did the learned judge misdirect the jury on the justification defence?
(v) Whether the judge erred in failing to direct the jury with respect to an alleged breach of the rule in Browne v. Dunn (1893) 6 R67?
(vi) Whether the learned judge was wrong, having admitted the evidence of two witnesses as to the appropriateness of Ms Popovic's conduct in court on 30 November 2000, ruling against the admission of evidence of the prosecutor?
(vii) Did the learned judge err in awarding aggravated damages?
(viii) Did the learned judge err in awarding exemplary damages?
(ix) Did the learned judge err in not awarding exemplary damages in respect of the defendants' conduct prior to the verdict of the jury?

The learned judge left the question of the reasonableness of the publication in respect to the Lange qualified privilege defence, to the jury. The jury answered the question that the publication was reasonable in the circumstances. On the motions for judgment, his Honour ruled there were two instances of Mr Bolt's conduct which established that the publication was not reasonable and accordingly, it was not open to the jury to reach that finding. He therefore held that the defence did not apply. However, he did rule that the article communicated to the readers information of a political or government matter.

What happened at trial raises a threshold question as to the Lange qualified privilege defence.

The Lange qualified privilege defence and the role of judge and jury

In Lange v. ABC, supra, the plaintiff at all relevant times, the Prime Minister of New Zealand, was the subject of a television programme transmitted by the Australian Broadcasting Corporation ("the ABC") throughout Australia called "Four Corners". He alleged he was defamed in the programme. The Rt. Hon. Mr Lange commenced defamation proceedings against the ABC in the Supreme Court of New South Wales. The defendant, in paragraph 10 of its amended defence, claimed that it was entitled, pursuant to the freedom guaranteed by the Commonwealth Constitution, to publish material concerning government and political matters, and that in the circumstances the matter complained of was not actionable. This defence was based on the decision of Theophanous v. Herald & Weekly Times Ltd.[28] It also pleaded in paragraph 6 a common law qualified privilege defence, that it was entitled to disseminate material discussing political and government matters. Pursuant to s.40 of the Judiciary Act 1903, the action was removed into the High Court and a number of questions were stated for the consideration of the Full Court.

In two decisions, Theophanous v. Herald and Weekly Times Ltd[29] and Stephens v. West Australian Newspapers Ltd,[30] the High Court held that there was implied in the Commonwealth Constitution a freedom to publish material discussing government and political matters concerning members of parliament which related to their suitability and performance as members of parliament. The publication of any such matters would not be actionable under the law of defamation if the defendant established three facts, namely, that it was unaware of the falsity of the material published, it did not publish the material recklessly and that the publication was reasonable in the circumstances. In the latter case of Stephens, the Court held that the defence based on the Constitution was a good defence to a defamation action brought by a State member of parliament in respect to a publication which was critical of members of the Legislative Council of Western Australia.

The High Court in Lange, in a joint judgment, stated at p.556, that the cases of Theophanous and Stephens should be accepted as deciding that the common law rules of defamation must conform to the requirements of the Constitution, and that the Constitution implied a freedom to publish material discussing government and political matters to a wide audience. The Court went on to say that the "various judgments in Theophanous and Stephens should be further considered in order to settle both constitutional doctrine and the contemporary common law of Australia governing the defence of qualified privilege in actions of libel and slander."

The Court emphasised that the presence of the constitutional implication precluded an unqualified application of the English common law defence of qualified privilege which, as a general rule, was not available to the media where the publication was to a wide audience.

What the High Court did in Lange was to develop another category of the common law defence of qualified privilege, but in doing so extended the defence and added another element which had to be proven by the publisher. Unlike the Court in Theophanous and Stephens, the Court has not created a wholly new defence. It has extended the principles of the common law concerning the defence of qualified privilege and its application to publication by the media to a wide audience.

The Court stated that the common law of defamation ought to be developed to properly reflect the requirements of the Constitution. The result is "the expanded defence of qualified privilege".[31]

The principles of the common law defence of qualified privilege have been developed based on a broad general principle, namely, that the common convenience and welfare of society or the general interest of society demands that a particular communication be protected. What is privileged is the occasion of the publication. See Loveday v. Sun Newspapers Ltd.[32]

In Toogood v. Spyring,[33] Parke B said -

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander) and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If it is fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." (Emphasis added).

The burden of establishing a defence rests upon the publisher defendant.

The modern statement of the law concerning qualified privilege is that stated by Lord Atkinson in Adam v. Ward[34] where his Lordship said -

"A privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

The question whether the occasion of publication is privileged is a question of law to be decided by the judge. If there are any facts which are disputed and relevant to the question, the resolution is for the jury - see Hebditch v. MacIlwaine,[35] Adam v. Ward[36] and Loveday v. Sun Newspapers Ltd.[37]. The defence may be defeated by proof that the publisher was actuated by malice at the time of publication. That is a question of fact for the jury. The burden lies on the plaintiff to prove malice.

Normally a judge rules at the close of all evidence whether the defence has been established but sometimes this is not possible if the decision depends upon disputed facts to be determined by the jury.

Whilst it may be said that it is not difficult for a judge to determine whether there is a legal duty, where the question turns on the existence or non-existence of a social or moral duty, a judge is placed in a difficult position without any evidence on the topic. He or she has to determine the question in light of his or her own knowledge of the world. See Watt v. Longsdon.[38]

The privilege must exist at the time of the communication. See Lay v. Hamilton.[39] Belief that the occasion is privileged is irrelevant.

The categories of qualified privilege can never be catalogued. In London Association for Protection of Trade v. Greenlands Limited[40] Lord Buckmaster L.C. said -

"Indeed, the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact. New arrangements of business, even new habits of life, may create unexpected combinations of circumstances which, though they differ from well-known instances of privileged occasion, may nonetheless fall within the plain yet flexible language of the definition to which I have referred."

"The definition" referred to by his Lordship was to the oft cited judgment of Parke B. in Toogood v. Spyring.

Reference to the textbooks on defamation identifies categories which are familiar examples of a privileged occasion. For example, Gatley on Libel and Slander, 9^th ed at para 14.4, Duncan and Neill on Defamation, 2^nd ed at para 14.01, and The Law of Defamation by Michael Gillooly at pp.176 et seq.

The High Court in Lange has included a new category for media publication to a wide audience and has extended the defence by requiring proof of reasonable publication.

It has always been difficult for the media to successfully rely upon the common law defence of qualified privilege. The reasons for this are at least two-fold, namely, it has never been the duty of any part of the media to publish for profit untrue facts about a person to the public - see Smith's Newspapers Ltd v. Becker [41]; and secondly, because the media publishes to so many persons, it is nearly impossible to conclude that every publishee, or the great majority of them, had an interest in receiving the particular information - see Stephens v. WA Newspapers;[42] Lange at p.570; Morosi v. Mirror Newspapers;[43] Boston v. W.S. Bagshaw & Sons.[44]

However, the defence has been available in respect of a publication by the media to many people - see, for example, Adam v. Ward,[45] but this is rare.

In Lange, the High Court said at p.570 -

"Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public."

It was that restriction which played a part in the development of another category of qualified privilege occasions in Lange. The Court justified the extension on a number of grounds. First, the common law defence imposed an unreasonable restraint on freedom of communication concerning government and political matters; secondly, the system of government would be impaired if a wider freedom was not given to the public to give and receive information; thirdly, the varying conditions of society evoked a broadening of the defence[46]. The Court said[47] -

"Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege."

The Court 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".[48]

The court then considered the elements of the defence. The defence is available if the publication concerns government or political matters that affect the people of Australia.

As stated, the protection afforded to a publication on a common law privileged occasion may be lost if the occasion is improperly used, for example, the publication goes further than is necessary to give effect to the duty or interest in making and receiving the communication.

The Court said[49] -

"Because privileged occasions are ordinarily occasions of limited publication ... the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives a publication is unlikely to be appropriate when publication is to tens of thousands, or more, of readers, listeners or viewers."

The High Court held that if the occasion involved the dissemination of the information to a large audience, in order to provide protection to the person defamed, it was necessary to add a further element to the defence. The Court held that -

"reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience."[50] (Emphasis added)

It is noted that the second element of the defence only applies if the defence would fail because the publication was to "too wide an audience" - see Roberts v. Bass.[51]

In circumstances where the media publishes to the general public, in order to establish the defence the publisher has to prove -

(i) That the communication to the members of the Australian community was in respect of information concerning government or political matters that affect the people of Australia; (ii) that the publication was reasonable in all the circumstances of the case.

The defence will be defeated by proof of common law malice.[52] The Court explained the concept. It noted -

* The concept of malice covers those elements of malice not covered by the element of reasonableness.

* It signifies "a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose."

* Existence of ill will, improper motive, motive to cause political damage, "the vigour of the attack" or the "pungency of a defamatory statement" may not discharge the plaintiff's onus of proof.

The element of reasonable publication is based upon s.22 of the Defamation Act 1974 (N.S.W.). The High Court said that since damage to reputation would be greater where the publication was to many, "a requirement of reasonableness as contained in s.22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires."

Section 22 establishes a statutory defence of qualified privilege. It provides -

"22(1) Where, in respect of matter published to any person - (a) the recipient has an interest or apparent interest in having information on some subject; (b) the matter is published to the recipient in the course of giving to him information on that subject; and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,

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

(Emphasis added).

It is the publishing conduct which is relevant and it must be reasonable in the circumstances.

What is reasonable conduct in publication depends upon all the circumstances. The Court stated[53] that proof of reasonableness will fail "in all but exceptional cases ... unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication." The Court referred to other relevant matters on the question[54] -

"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." (Emphases added).

It was submitted by Mr Archibald, Q.C., who appeared with Mr Houghton, Q.C. and Ms Schoff on behalf of the defendants on the appeal, that the matters identified by the High Court were matters to be taken into account in determining the question whether the publication was reasonable in all the circumstances. He submitted they are not principles of law. They are to be taken into account with any other relevant circumstances in determining whether the making of the publication was reasonable.

Mr Sher submitted that although the matters first mentioned by the High Court were relevant matters to take into account, nevertheless the response matter was an essential element of the defence. In other words, the publisher must prove -

"That the defendant had sought a response from the person defamed and published the response made (if any) save and except where the seeking or publication of the response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond."

He submitted that if the publisher fails to seek a response and fails to show it was not practicable to do so or it was unnecessary to give the plaintiff an opportunity the defence fails; the conduct was not reasonable. The learned judge considered the matter in determining the question whether the publication was reasonable. He concluded that the publication was not reasonable in all the circumstances because, inter alia, no response was sought. It will be necessary to consider his decision later.

In my view, the matters identified by the High Court are not principles of law, are not essential elements in the proof of the defence, but nevertheless are matters of substance and relevant to the determination of reasonableness. The failure by the publisher to prove any one of them would, in my opinion, in most cases prove fatal. It is a relevant matter.

But the issue is whether the "making of a publication was reasonable ... in all the circumstances of the case". This will depend upon the particular circumstances. The matters identified by the High Court are relevant to the exercise. In some cases the failure to prove one of the matters would be fatal to the defence. However, the issue is whether the making of the publication was reasonable in the circumstances. Hence, a failure to prove one of the identified matters may not be fatal.

The point is made by Gleeson, C.J. and Gummow, J. in Rogers v. Nationwide News Pty Ltd[55] where their Honours said -

"The considerations that bear upon the reasonableness of the conduct of a publisher of information for the purposes of s.22(1)(c) of the Act vary with the circumstances of individual cases. Some considerations of common relevance were set out by Hunt, A.J.A. in Morgan v. John Fairfax and Sons Ltd (No. 2), but reasonableness is not a concept that can be subjected to inflexible categorisation."

It was submitted on behalf of the defendants that the Court was bound to consider all relevant circumstances of the case and those circumstances may include matters outside the matters identified by the High Court. In my opinion, that is correct but it would be open to the judge to conclude that one particular matter relevant to the question of reasonableness constitutes what I would call "a knock out blow". In other words, a judge may, in the circumstances, be satisfied that the publication was not reasonable because the publisher did not prove it had reasonable grounds for believing the defamatory publication was true. Or the evidence may show that the publisher did not take proper steps to verify the accuracy of the material and did not believe the imputation to be true. Further, it may be that the judge is of the view that the publisher should have sought a response in the circumstances but failed to do so. In my opinion, any one of those findings would be sufficient for a judge to rule that the publisher had not made out the defence. But of course each case will depend on its own facts.

The element of reasonableness of conduct prescribed by the High Court is based upon s.22 of the Defamation Act 1974 (N.S.W.). Cases which have discussed that section and the element of reasonableness of conduct provide examples which will assist a court in determining whether a defendant publisher has proven its case. But the findings made by the courts are conclusions of fact and not law. They will assist in determining the question. They will not decide the question.

In Evatt v. John Fairfax & Sons Limited,[56] Hunt, J. held that the publisher failed to establish that the publication was reasonable within the meaning of s.22(1)(c) by reason of the way a portion of a pamphlet was reproduced in the newspaper. The proprietor had published an article concerning violence towards judges of the Family Court. Next to the article was reproduced a photographic reproduction of a pamphlet published by an individual who disliked the Family Court. What was reproduced was extremely defamatory of the Chief Judge of the Family Court. One of the factual issues for the jury was whether the reasonable reader would infer that the proprietor of the newspaper was lending weight to the allegations made in the pamphlet by adopting them and republishing them. His Honour said, at p.12 et seq -

"This leaves only s.22(1)(c). It is here that the defendant must fail. The qualification upon which a finding of reasonable conduct on the part of the defendant must depend in the end, in my view, arises from the assumption that the matter complained of, notwithstanding its context, conveyed the very imputations which the pamphlet itself contained. That is the only situation in which the question of qualified privilege can arise in this case. The defendant must establish that its conduct in publishing the imputations concerning the plaintiff was reasonable in the circumstances: Wright v. ABC (1977) 1 N.S.W.L.R. 697 at 704-705; Barbaro v. Amalgamated Television Services Pty Ltd (1985) 1 N.S.W.L.R. 30 at 42-44."

His Honour went on to then say that there were any number of methods by which the proprietor could have reproduced the pamphlet without conveying to the reader the impression that the proprietor was lending its own weight to the allegations made. His Honour was considering the question in the context that the contents of the pamphlet were untrue. He gave examples such as the proprietor, by express disclaimer, making it clear that it was not lending its weight to the defamatory imputations. His Honour went on to hold that because the proprietor had not done so, its failure rendered its conduct unreasonable within the meaning of s.22(1)(c).

This case was an example where there was one particular aspect of the way the article was published which effectively negated the defence. It was irresponsible and careless. As a general rule, to distort the facts to enable a critical comment to be made would be fatal to the defence. It is hardly reasonable to change the facts to make a point.

Matters relevant to the issue of reasonableness will, of course, depend upon the particular circumstances of the defamatory material and the publication, and a number of cases have discussed relevant matters. Reference is made to Wright v. ABC,[57] Barabaro's case,[58] Austin v. Mirror Newspapers[59] and Morgan v. John Fairfax & Sons Ltd (No. 2).[60] In the latter case, Hunt, J. summarised some of the principles established by the cases concerning s.22(1)(c).

In Austin v. Mirror Newspapers Ltd,[61] the Privy Council said -

"In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be. But where a jury has rejected a defence of fair comment upon the ground that the facts upon which the comment is based are not substantially true the starting point of the enquiry must be the ascertainment of those facts which the jury have found to be untrue. A newspaper with a wide circulation that publishes defamatory comments on untrue facts would in the ordinary course of events have no light task to satisfy a judge that it was reasonable to do so. Those in public life must have broad backs and be prepared to accept harsh criticism but they are at least entitled to expect that care should be taken to check that the facts upon which such criticism is based are true." (Emphasis added).

See also the observations made by Reynolds, J.A. in Wright v. ABC.[62]

In my opinion, the High Court did not create a wholly new defence. The Court developed another category of the occasion of a publication which attracts the defence of qualified privilege. In this regard, the courts' development of the law must be compared with the majority reasons of the High Court in Theophanous v. Herald and Weekly Times Ltd, supra. In my opinion, Lange v. Australian Broadcasting Corporation now states the law in Australia in regard to qualified privilege in respect of communications of political or government matters by the media to the general public. It left intact the common law defence of qualified privilege. What it has done is to extend the categories - see Roberts v. Bass.[63]

In the present proceeding, counsel for the parties and the learned judge were of the opinion that the second element of the defence was a question of fact for the jury and hence that question was left to the jury. In my opinion, that was wrong. Whether or not the defence was established was a question for the judge.

The law in this area has always been that the question whether a qualified privilege defence was established is a question of law for the trial judge to determine - see Stace v. Griffith.[64] If any of the circumstances which are relevant to the determination of the question are in dispute, the disputed questions of fact must be decided by the jury.

The law was stated by Lord Esher, M.R., in Hebditch v. MacIlwaine.[65]

There is much English authority in support of those principles. See Adam v. Ward.[66] What Lord Esher said has been often cited, always with approval, and represents the law in this country. His Lordship said - [67]

"It is for the defendant to prove that the occasion was privileged. If the defendant does so, the burden of shewing actual malice is cast upon the plaintiff but, unless the defendant does so, the plaintiff is not called upon to prove actual malice. The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury, but, when the jury have found the facts, it is for the judge to say whether they constituted a privileged occasion."

See also Adam v. Ward,[68] Barbaro v. Amalgamated Television Services Pty Ltd,[69] and Pervan v. North Queensland Newspaper Co Ltd.[70]

In Guise v. Kouvelis.[71] Latham, C.J. stated[72] -

"It is for the judge to determine as a matter of law upon undisputed facts, or, if the facts are disputed, upon the facts as found by the jury, whether an occasion is privileged. If the judge determines this question in favour of the defendant, it is then for the plaintiff to prove malice in order to displace the privilege." See also, per Starke, J.[73] .

There is no doubt that the principles stated by Lord Esher, M.R. constitute the law in this country. See Law of Defamation by Michael Gillooly, p.218, and Australian Defamation Law and Practice by Messrs Tobin, Q.C. and Sexton at p.9083.

The disputed facts to be found by the jury are the primary facts. It is for the judge to draw any inferences from those facts as found. In Barbaro v. Amalgamated Television Services Pty Ltd,[74] Hunt, J. said -

"But it is important to keep firmly in mind that the qualification so stated (that any disputed questions of fact are to be decided by the jury) does not refer to the ultimate question to be determined by the trial judge or the essential elements of that question or what ultimately goes to establish the question of privilege. The questions which are appropriate for the jury to determine (and then only if there is a dispute concerning them and only if it is necessary for them to be determined to enable the trial judge to decide whether the occasion was privileged or not) are the primary facts - the actual happening of a particular event, what was said or done - but not the inferences or conclusions to be drawn from those primary facts. That is the position in relation to the common law."

In my opinion, the law concerning the functions of judge and jury where a qualified privilege defence is pleaded applies where the defence is a Lange qualified privilege one. That is, the question of whether the defence has been established is one for the judge. Any disputed primary facts relevant to the issue are for decision by the jury. I reach that conclusion for a number of reasons.

* The defence is a common law defence extending the qualified privilege category of privileged occasions to publication by the media to members of the Australian community concerning government or political matters.

* The High Court did not specifically address the question, nor did it state that the defence or part of it, was one of fact for the tribunal of fact. This must be compared with the former defence established in Theophanous v. Herald & Weekly Times Ltd, supra, where the majority stated[75] that whether a publisher had acted reasonably "must be a question of fact in every case".

* The Court did say it was a matter for the judge to consider. It said -

"Reasonableness of conduct is an element for the judge to consider only when the publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege."

Of course the trial judge, in drawing inferences from the facts, will be indulging in a fact finding exercise.

* The element of reasonableness is based upon s.22 of the Defamation Act 1974 (N.S.W.). By reason of s.23, whether the defence has been established is one for the judge and not the jury. One of the matters that the judge would have to consider is whether the conduct of the publisher was reasonable in the circumstances. See s.22(1)(c).

The House of Lords recently affirmed the principles concerning the function of the judge and jury where the defence of qualified privilege was pleaded. An attempt was made to introduce into the English law a new occasion of qualified privilege for political discussion, similar to the decision of the High Court. The Court of Appeal created a new category but the House of Lords disagreed. In Reynolds v. Times Newspapers Ltd[76] the House of Lords held that the English common law should not develop publications concerning political discussion and information as a new occasion of qualified privilege. See observations of Lord Nicholls of Birkenhead.[77] However, what the Lords did do was to provide a list of relevant matters which a court should take into account when deciding whether a defamatory publication was published on an occasion of qualified privilege by the media. The list was not exhaustive. His Lordship went on to say -

"Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. The balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up."[78]

Lord Steyn also discussed the function of the judge and jury and agreed with this approach.[79]

In my opinion, the cases in New South Wales concerning the question of the reasonableness of publication provide a guide to matters which are relevant to the question but one should be careful not to raise these relevant matters to principles of law. The defendant must prove that the publication was reasonable in the circumstances. That is the element of proof. That, in my view, is a question for the trial judge.

If there are any disputed facts which bear upon that question, then those disputed facts are to be resolved by the jury if the trial is by jury.

In my opinion, "a disputed fact" is not whether the publication was reasonable in the circumstances. That is a matter for the judge. By disputed facts I mean any facts which are relevant to that issue and which have been the subject of dispute between the parties. In a trial by jury, the resolution of those facts should be the subject of specific questions to the jury.

It follows that in my opinion the course adopted at trial was contrary to law. The question of the reasonableness of the publication was a question that the trial judge had to determine, together with the question whether the communication did concern political or government matters.

The jury decided that the publication was reasonable in all the circumstances. The parties addressed the jury on this question and the judge charged them on the law. Having reserved the question of whether the defence was open, after the jury had been discharged the learned judge considered the question himself. He ruled that the communication was a discussion of political or government matters. He concluded that no evidence existed upon which a jury could properly find that the actions of the defendants in publishing the article sued upon were reasonable. He accordingly held that the defence failed.

The learned trial judge and the parties at trial accepted without argument that the issue of reasonableness was a question of fact for the jury. The trial proceeded accordingly. The jury answered the question in favour of the defendants. No ground of appeal seeks to question what occurred at trial in this regard. Indeed, it was at the outset of this appeal that the court raised the question of whose function it was to determine the issue.

In my opinion, the appeal should be determined on the basis of what occurred at trial. The issues are whether the learned trial judge was correct in ruling that the publication was a discussion of political or government matters and, secondly, whether there was any evidence to go to the jury that the appellants' publication of the defamatory article was reasonable in the circumstances.

I now turn to the issues argued on the appeal.

A. Reservation to move for judgment

At the end of the evidence, counsel for Ms Popovic submitted that none of the defences should be left to the jury but observed that the issues would take some time to debate and applied to the judge to reserve leave to the parties to move for judgment non obstante veredicto. Counsel for the defendants objected to that course. His Honour considered the question, and concluded that he had the power to reserve the motion for judgment, notwithstanding that one of the parties did not consent to that course. He ruled accordingly and the matter proceeded.

The defendants submitted that his Honour had no power to do what he did absent consent of all parties, express or implied. Implied consent would occur when the other party did not object to the reservation. That was not the case here.

The judge presiding at a jury trial performs a number of important functions, one of which is to decide whether to leave a particular issue for determination by the jury. When a party applies to the trial judge to take an issue away from a jury or to direct a verdict in favour of a party, the trial judge is required to carry out a two step exercise. First, the judge must consider and determine the evidence most favourable to the party who carries the burden of proof. In the present case that meant the evidence most favourable to the defendants in respect of the defences, the burden of which rested on them.

Secondly, the trial judge must consider and determine the question - in respect to each defence, was there evidence upon which a reasonable jury, properly directed, could return a verdict for the defendants? See Williamson v. G.J. Coles and Co. Ltd.[80]

In Naxakis v. West General Hospital,[81] Gaudron, J.[82] stated the test as follows -

"It is well settled that where there is a jury, the case must be left to them `if there is evidence upon which they could reasonably find for the plaintiff', or, as was said by Hayne, J.A. in the Court of Appeal, the case can be taken away only if `there was no evidence on which the jury could properly conclude that the plaintiff had made out his case'. That does not mean that the case must be left to the jury if the evidence is `so negligible in character as to amount only to a scintilla'."

See also observations of McHugh, J.[83]

In considering the question, a judge may have one of a number of possible evidentiary scenarios. There may be no evidence concerning an element of the defence. In Shepherd v. Felt and Textiles of Australia Ltd.[84] Starke, J. said -

"Where on the uncontroverted facts the action or an issue must be determined in favour of one party, then, as a matter of law, that party is entitled to the verdict in the action or upon the issue. And it is necessarily wrong to leave any conclusion or inference in such circumstances as a question of fact to the jury."

Where it is a question of drawing an inference from the facts, the trial judge must proceed with caution; different minds may reach a different conclusion. In Holloway v. McFeeters[85] the High Court was divided in considering the sufficiency of evidence whether the deceased had been killed by the negligence of a driver of an unidentified vehicle. The judge may be confronted with some evidence, albeit a scintilla in favour of the party who has the burden of proof; but there is a preponderance of evidence which is contrary to that party's case. On an appeal, the Court of Appeal could set aside a verdict in favour of a party where the preponderance of evidence is to the contrary conclusion. But as McHugh, J. said in Naxakis v. West General Hospital, supra, the function of a trial judge is more circumscribed. He said[86] -

"When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which if uncontradicted would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed."

Whether a trial judge should take an issue away from the jury or enter judgment in favour of a party, is a difficult question. Errors are costly, appeals are expensive and re-trials, very costly. Caution is the rule. Gibbs, J. in Leslie Mirror Newspapers Ltd[87] makes the point -

"Indeed, even where the judge considers that as a matter of law the jury are bound to find that the report was a fair one, the prudent course, except in the clearest of cases, is to leave the question to the jury to obviate the risk of a new trial."

The observations of Latham, C.J. in Hocking v. Bell[88] and Dixon, J. in Shepherd v. Felton Textiles of Australia Ltd.[89] support the conclusion that if there is evidence on both sides the issue must be left to the jury and the verdict, if unreasonable, is subject to being set aside as perverse on appeal.

Each case must depend upon its own circumstances. However, a trial judge should proceed with care and caution and only in the clearest of clear cases should a judge take away an issue or direct a verdict in favour of a party. The reservation of the right to move for judgment notwithstanding a jury's verdict is an important procedure to enable justice to be done.

The learned trial judge was confronted at the end of all the evidence with a submission that the defences pleaded by the defendants should not be left to the jury. In addition, his Honour had to determine whether the first element of the Lange qualified privilege defence had been established and whether there was any evidence of malice to go to the jury. The judge was indeed confronted with at least four issues of substance. Their resolution would have taken some time, measured in days rather than hours, and the judge was faced with the dilemma of delaying the trial and in particular the jury, and being required to make a number of decisions expeditiously, some of which were difficult and complex.

The defendants relied upon the Full Court decision of Prestinenzi v. Steel Tank and Pipe Consolidated[90] which exhaustively considered the authorities concerning the power of a trial judge to reserve liberty to a party to move for judgment notwithstanding the jury's verdict. In that case, the plaintiff was injured in the course of his employment and sued his employer for damages. The trial was by judge and jury. The defendant alleged contributory negligence. The trial judge did not reserve leave to the parties to move for judgment notwithstanding the jury's verdict. The question was not raised. The jury found that the plaintiff was guilty of contributory negligence and reduced the damages.

His Honour refused to enter judgment in accordance with the jury's answers and permitted plaintiff's counsel to move for judgment for the amount of damages assessed by the jury, ignoring the finding of contributory negligence. His Honour heard submissions and ruled there was no evidence to support the jury's finding. He ignored it and entered judgment for the full amount of damages, less worker's compensation payments.

The Full Court carefully considered the authorities concerning the question and held that the trial judge, not having reserved leave to the plaintiff to move non obstante veredicto, was obliged to enter judgment in accordance with the jury's answers to the questions. Kaye and McGarvie, JJ. exhaustively considered the authorities and reached the conclusion that it was not open to the judge to do what he did. Young, C.J. agreed.

The case is different to the present case. In Prestinenzi, the trial judge did not reserve leave before verdict.

On the appeal, the Full Court considered whether or not the learned trial judge had power to enter a judgment contrary to the verdict of a jury. The court was not concerned with the question whether a trial judge could reserve prior to verdict the right of a party to move for judgment notwithstanding the jury's verdict, in the absence of consent express or implied by all parties. Kaye, J.[91] after an exhaustive consideration of the authorities, expressed his conclusion as follows -

"In my opinion the procedure of taking a jury's verdict and thereafter, without leave having been reserved, entertaining a motion for judgment contrary to it is not warranted by authority and is not a desirable one." (Emphasis added).

McGarvie, J. agreed with Kaye, J. stating it was not open to the learned trial judge to do what he did, and concluded -

"It was not open, because leave to move for judgment on that basis had not been reserved to the plaintiff before verdict."[92]

The issue in the Prestinenzi's case did not concern whether a trial judge can reserve leave to a party to move for judgment notwithstanding the verdict of the jury, if the other party opposes that course. However, the members of the Court did refer to the general rule that a trial judge was empowered to give judgment in disregard of a jury's verdict when the parties expressly or by implication consented to that course.[93] Their Honours' observations were plainly obiter but supported by authority.

It can be seen that the issue on this appeal is indeed a narrow one. Did the learned trial judge have power to reserve liberty to the plaintiff to move for judgment notwithstanding the verdict of the jury, in the face of opposition by the defendants? The learned trial judge reserved leave and hence complied with the principles stated in Prestinenzi's case. Having reserved leave he was entitled to consider the motion for judgment contrary to the jury's verdict. But was he wrong reserving leave over objection?

It is important to consider what in fact was the result of the appeal in Prestinenzi's case. What was the effect of the irregularity? The Full Court considered whether there was any evidence to support a finding of contributory negligence, and concluded there was no evidence. Accordingly, the Court agreed with the learned trial judge's decision on this point. The Full Court did not hold that the learned trial judge's ruling affected the validity of the trial, or resulted in any miscarriage of justice. Kaye, J. described the procedure as a matter of practice. His Honour[94] said -

"On the other hand opinions expressed by Dixon and Evatt, JJ. in Edmond Weil Incorporated v. Russell [1936] HCA 26; (1936) 56 C.L.R. 34, by Dixon and McTiernan, JJ. in McDonnell and East v. McGregor [1936] HCA 28; (1936) 56 C.L.R. 50 and by Dixon, J. in Thompson v. Amos (1949) 23 A.L.J. 98, and the absence of binding authority, provide compelling reasons for concluding that the better practice for the trial judge, where he is persuaded that there is no evidence on which the jury could find contributory negligence against the plaintiff, either to reserve leave to move non obstante veredicto, and then take the jury's verdict, or to direct the jury to answer the question in favour of the plaintiff. This would accord with the practice followed with exceptions in jury actions in this court since Humphrey v. Collier, supra, at least until recent times."

The question is, did the learned trial judge have power to reserve the right to move for judgment notwithstanding the jury's verdict, in the absence of consent by the defendants? Clearly, if the opposing parties had consented, there could be no doubt that what the learned trial judge did was in accordance with the law. When stated in that way, the question immediately arises, what is the rationale for the requirement of consent? Why does it depend upon consent? McGarvie, J. in Prestinenzi raised concerns of fairness and justice if the question is not raised before verdict.[95] Unless the judge and the opposing party are apprised of the contention prior to verdict, an injustice could be caused because of surprise. I agree. The question should be raised at the end of the evidence.

When the question is raised prior to addresses and the judge decides to reserve the question until after verdict, the court and the parties are apprised of the contentious issues.

One can only doubt the utility of the rule which depends upon the opposing party's attitude as to whether it consents or not. This is especially so when there may be a number of practical reasons for the judge reserving the right.

The principle that a court may not reserve liberty to any party to move for judgment non obstante veredicto, unless by consent of the parties, is based upon cases going back to the 18^th Century in England when the right to a re-trial after a jury's verdict was extremely limited.

Given that a breach of the rule does not affect the jurisdiction of the court to enter judgment notwithstanding the jury's verdict, one asks the question, what practical use does it have in this day and age? Why should the reservation depend upon all parties consenting? If the parties do not consent, the judge cannot reserve the right. The judge is confronted with a situation of interrupting the trial to enable the parties to make submissions and then taking time to determine the issues. The judge is aware of the dangers of adjourning the hearing because of the effect upon the memory of the members of the jury. He or she, as trial judge, is placed under considerable pressure to make a decision. If the trial judge decides to take away the issue from a jury there is no verdict by the jury. There is the prospect of an appeal and if wrong, a re-trial. If the trial judge decides not to take away the issue from the jury it would appear no other course would be open other than to appeal.

On the other hand, if the trial judge reserves leave he or she will leave the issues of fact to the jury to determine, and their answers may resolve the question; if they do not then after discharge the trial judge will have sufficient time to consider the matter without pressure and in light of the jury's answers.

The course of reserving leave has the following advantages-

* A jury's verdict on the issue.

* A jury answer to the question may resolve the issue of the sufficiency of the evidence without the necessity of making any determination.

* The judge does not have to interrupt the hearing to hear submissions and decide the question.

* The judge is not confronted with the pressure of making an error if he or she was to take the issue away from the jury.

* The trial judge has time after discharge of the jury to calmly and without undue pressure consider and determine the issues.

* If the judgment is appealed, the appeal court has the reasoned judgment of the trial judge who has the advantage of presiding at the trial, observing the witnesses, assessing their credence and reliability, time for consideration of the issues during the course of the trial, and observing the flow of the trial.

The authorities have not spoken with one voice on the rule.

The law in Australia concerning the right to reserve the issue was stated by Dixon and Evatt, JJ. in Edmond Weil Incorporated v. Russell.[96] What their Honours said was obiter dicta, and was based upon cases that went back to the year 1744.

In that case a commercial cause was heard before a judge of the Supreme Court of New South Wales and a jury. The jury was asked to answer a number of questions. The jury answered a question, was discharged and submissions were put that there was no evidence to support the jury's answer. The trial judge, Halse Rogers, J. said -

"I am of opinion that notwithstanding the findings of the jury on the questions, if I am satisfied that there was no evidence to support any particular finding I should still at this stage direct the jury to find a verdict. In other words I am of opinion that, where a judge sitting at nisi prius or in a commercial cause leaves any question to be determined by the jury, he still has control of the case to the extent that he can enter a non suit in a proper case, or direct a verdict, if on the consideration of the whole of the evidence and what has taken place during the trial he is of the opinion that in law such a course is necessary. I indicated this view during argument and though counsel for the defendant still maintained his claim it was agreed that there was no difference between my directing the jury to find a verdict and my entering a verdict after their discharge. ... " [97]

His Honour entered a judgment contrary to the jury's verdict. The defendant appealed to the Full Court, which considered whether there was evidence to support the jury's finding, concluded there was and that the judgment should be amended to give effect to the jury question. The plaintiff appealed to the High Court.

Starke, J. observed that no challenge was made in the High Court to the authority of the judge to do what he did and he said - "The critical question is whether there is any evidence to support it."[98]

However, Dixon and Evatt, JJ. considered the question. After noting what the trial judge had said as to his authority they observed that what he said was "too widely stated". They said at p.46 -

"Where questions are left to a jury, and, after answering them, the jury is discharged without giving a verdict, we should have thought that the parties ought to be taken tacitly to agree that the court shall enter that verdict which upon the answers the law requires and the jury are taken to authorise that verdict. When the judge proposes such a course it is incumbent upon the parties to express any dissent. But this does not seem to enable a judge at the trial, after findings had been made by the jury, to set them aside or ignore them and enter a verdict inconsistent with them. To authorise him to do this we should have thought the positive consent of the parties must have been obtained, either by an express reservation of power made with their assent, or in some other manner." (Emphases added).

One notes the language used.

The rule was based on the common law of the 18^th century. Their Honours said -

"The practice at common law was to reserve for the court in banc, not for the trial judge, the question whether a non-suit should have been entered or a verdict directed, and other like questions, the decision of which might override the actual verdict or finding of the jury. Before there was statutory authority enabling the court in banc to enter a nonsuit or verdict, such a reservation was based on the consent of the parties and of the jury. By long convention their consent was implied, if in open court a reservation was proposed or agreed to by the trial judge and no objection was made."[99]

Their Honours did not state what was the effect where a trial judge did not comply with that rule. Further, the language used by the learned judges suggests it was a practice that should be followed but if not, did not affect the judgment. This observation is supported by what their Honours said[100] -

"In the present case, however, the course taken by the learned judge ceased to be important by reason of what afterwards occurred in the Full Court. The defendant moved by way of appeal to set aside the verdict entered by the judge at or after the trial. It was of course, open to the plaintiff, upon a proper notice given in due time, to move to set aside the jury's finding. Although the plaintiff gave no such notice, the question was argued before the Full Court without objection whether the jury's answer could or could not be supported upon the evidence. The jurisdiction of the Full Court extends to entering any verdict to which a party is upon the evidence entitled as a matter of law."

Dixon and Evatt, JJ. held that there was no evidence to support the jury's verdict and the appeal was allowed. Their Honours' observations concerning reserving leave were obiter dicta. It was never an issue on appeal to the Full Court and High Court. Clearly what had occurred at trial did not invalidate the judgment given at trial.

The issue arose in the High Court in Phillips v. Ellinson Brothers Pty Ltd.[101] In that case the plaintiff sought damages for wrongful dismissal and it was heard before a judge and jury. The judge left six questions to the jury. The defendant's counsel was granted leave by the judge to move for judgment notwithstanding the jury's verdict. The jury in fact did not answer the specific questions but returned a general verdict for the plaintiff in the sum of £865. Both parties moved for judgment and after argument judgment was entered for the defendant with costs. The plaintiff appealed to the High Court. One of the issues was whether the judge had the power to do what he did.

Rich, J. traced the history[102] and noted[103] -

"The courts at Westminster, however, could not direct a verdict to be entered unless leave had been reserved at the trial, and the consent of the parties to this course was implied upon the reservation of this leave."

He went on to say -

"The usages and practices of the common law should still be observed unless they have been destroyed or modified by the judicature system and its rules."

He later said, after referring to the system after the judicature Acts in England and the State of Victoria -

"I think also that under the system created by the judicature Acts and rules it is a well-established practice that a jury's verdict may be disregarded by agreement, whereby leave is reserved to the unsuccessful party to move for judgment notwithstanding the jury's verdict. Such a reservation was `always in the nature of a convention between the judge, the jury and counsel'. `Leave reserved' has also been defined as meaning a compact between the parties that the case should go on. The Rules of the Supreme Court do not, in my opinion permit a judge at the trial to disregard a jury's finding except where there is such a convention or compact." (Authorities omitted)

Rich, J. held that since no leave was reserved to move for judgment in the event of a jury finding a general verdict for the plaintiff, the trial judge had no authority in law to disregard the verdict.

McTiernan, J. agreed with Rich, J. On the other hand, Starke and Williams, JJ. were of the opinion that the trial judge did have the power to order judgment to be entered contrary to the jury's verdict where there was no evidence to support the verdict. They held there was no such evidence and the appeal should be dismissed. Because the High Court was evenly divided, the appeal was dismissed. In other words, the practical effect of the appeal was that what Martin, J. the trial judge had done was correct. The authority does not address the question of agreement to the course proposed. There are observations to suggest that agreement is necessary.

Starke, J. at p.232 said that Order 35, Rule 32 and Order 40, Rule 5 of the Victorian Rules empowered the judge to enter the judgment which he did. He also made reference to the English case of Skeate v. Slaters Ltd[104] where the Court of Appeal in England held that a judge who entered judgment in a jury trial after he had discharged the jury who could not agree on the verdict was acting within power. The obvious common sense of the decision is manifest.

The trial judge in the present matter took the view that he had the power to reserve the right to move for judgment notwithstanding the jury's verdict over the objection of the defendants, by reason of what was said in Humphrey v. Collier.[105] Gavan Duffy, J. in that case, at p.408, said -

"In our courts it has been the practice of some judges, at any rate, to enter judgment without taking a verdict or to give leave to move after verdict for judgment when either course was thought desirable, irrespective of any consent, and I think such a practice is justified by the Supreme Court Act 1928 and the Supreme Court Rules, in the absence of any authority binding on us to the contrary should be followed." (Emphasis added).

Herring, C.J. agreed. See p.396.

In Prestinenzi v. Steel Tank and Pipe Consolidated, the Full Court noted that the observations made by Gavan Duffy, J. in that case were obiter and contrary to well-established principles stated on a number of occasions by the High Court.

I agree that what Gavan Duffy, J. said was obiter, but nevertheless it was a statement of this Court of the practice that was followed. The Court considered the High Court cases. Gavan Duffy J expressly referred to the fact that the power could be exercised without the consent of all parties. What Dixon and Evatt, JJ. said in Edmond Weil Incorporated v. Russell was also obiter and what was said by Dixon, J. in McDonnell and East Limited v. McGregor did not deal expressly with the question of consent to the course adopted. What Gavan Duffy, J. stated was after a detailed consideration of the authorities and represented the practice followed in the Court in 1946.

What does emerge from the cases and is of importance is that if a trial judge does reserve leave, without the consent of the opposing party, express or implied, and enters judgment contrary to the jury's verdict, the judgment is not invalid or subject to any irregularity, and upon appeal to the Court of Appeal, the court has the power to consider and determine the very question decided by the trial judge.[106]

The issue decided by the trial judge contrary to the answer by the jury, is the subject of an appeal by the defendants in this Court. Hence, the defendants were not prejudiced by what the trial judge did and have an opportunity in this court to attack the judge's decision. It follows that if the learned trial judge was wrong in considering the question because defendants' counsel did not consent to that course, the question can now be re-considered on this appeal and the defendants do not suffer any prejudice as a result. What the learned trial judge did has not caused any miscarriage of justice.

As the authorities establish, the power of a trial judge is subject to any rules of court. See Phillips v. Ellinson Brothers, supra, at p.229 per Rich, J. New rules of this Court were enacted in 1986. Do the rules authorise the course taken by the learned trial judge?

Litigation in this day and age is generally more complex and usually longer than trials in the past. If errors are made at first instance and corrected on appeal, resulting in a re-trial, considerable expense is incurred as a result. When, at the end of all evidence in a jury trial, the judge is requested to rule on the adequacy of evidence in relation to an issue, often the argument is complicated, involves sifting through disputed facts, especially if the trial has been prolonged, and often takes time. The judge is always aware of the problems with interrupting a jury trial, with the inconvenience to members of the jury, but more importantly the concern that if there are large gaps in the trial the ability of a jury to remember the facts is put in danger. Common sense often dictates to leave the disputed matters to the jury without ruling and give the parties an opportunity, after the jury has answered the questions, to fully develop their submissions. The court has the opportunity to carefully consider the matter. Decisions made "on the run" run the risk of error and the cost to the community and the litigants is substantial if there has to be a re-trial. Common sense demands that the conduct of cases should not be bogged down in rules appropriate to the conditions of the past but not appropriate to modern litigation.

In my opinion, the rules justified the course taken by the learned judge, namely, reserving without consent of the defendants.

Rule 49.01 provides -

"(1) The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial." (Emphasis added).

Rule 1.14 requires the court in exercising any power under the rules to ensure that "all questions in the proceeding are effectively, completely, promptly and economically determined" and "may give any direction or impose any term or condition it thinks fit".

Rule 1.14(2) empowers the court to exercise any power under the Rules of its own motion.

A like power is given to the court under Rule 34.01 which provides -

"At any stage of a proceeding the court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete prompt and economical determination."

The trial judge reserved the right to the parties to move for judgment notwithstanding the jury's answer to the questions. The reservation authorised him to consider the motion. This was in accordance with the authorities. He followed that course despite opposition from the defendants. Some of the authorities suggested there had to be consent. Other were to the contrary. The Rules, in my opinion, authorised him to reserve the question despite lack of consent.

In my opinion, what the learned trial judge did accords with the rules and represented a common sense and practical approach to the entry of judgment. As things turned out, the argument concerning the various defences took in excess of three days. His Honour reserved his judgment. It is better for the administration of justice that time and care is taken by judicial officers to reach a conclusion rather than making a hasty judgment under pressure which may result in error. In my opinion, what the learned trial judge did was in accordance with the Rules of Court. He clearly had the jurisdiction to enter judgment notwithstanding the jury verdict. The lack of consent by the appellants was not a vitiating factor and the rules justified the course he adopted. This conclusion accords with common sense which was apparent in Skeate v. Slaters Ltd[107] and which prompted Gavan Duffy, J.'s observations in Humphrey v. Collier.[108]

Once again, his Honour's finding was that there was no evidence to support the jury's verdict that the conduct of the defendants was reasonable. He held that the evidence was contrary to a finding that their conduct was reasonable. They had the burden of proof. His decision on this question is the subject of a ground of appeal. The defendants have the right to challenge his Honour's decision and establish that it was wrong and obtain relief accordingly. In those circumstances, events have overtaken what his Honour did and consistent with the decisions in Edmund Weil v. Russell and Prestinenzi v. Steel Tank and Pipe Consolidated, this Court has the power to consider the issue. The defendants suffer no prejudice if his Honour was incorrect in permitting counsel for Ms Popovic to move for judgment notwithstanding the verdict of the jury. It was put by defendants' counsel that they suffered prejudice because his Honour did not leave the question of damages to the jury. That decision did not flow from the reservation of leave to move non obstante veredicto. It came about as a result of a ruling by the judge that it would be inappropriate in the circumstances for the jury to determine damages if the jury decided that any of the defences had been made out. As the jury decided that the publication was reasonable in the circumstances, it did not proceed to assess the damages.

In my opinion, the ruling by the judge to take the issue of damages away from the jury did not flow from his ruling over objection that the parties have leave to move for judgment notwithstanding the verdict. It was a ruling that he made independently of that question and there is no ground of appeal attacking the ruling.

His Honour was of the view that it would be unfair to Ms Popovic and unduly complex for the jury to have to determine damages, having in effect found for the defendants. There have been cases in the past where juries have been requested to assess damages even though they have found for the defendant. See Duane v. Granott[109] and Austin v. Mirror Newspapers.[110] In the latter case, which was a Privy Council appeal from the Supreme Court of New South Wales, the judge, at trial, left questions to the jury which included questions relevant to the statutory qualified privilege defence under s.22 of the Defamation Act 1974 and also directed the jury to answer the question of damages. The jury did so. His Honour entered judgment in the end for the defendant. The Privy Council held that the plaintiff was entitled to succeed. The Judicial Committee entered judgment for the plaintiff in the sum found by the jury.

In the alternative, the defendants submitted that if there was power to grant leave over the objection of a party, the learned trial judge erred in the exercise of that discretion. It was submitted that the judge attached too much weight to the

avoidance of further delay and unnecessary expense. It was submitted those factors were irrelevant. It was submitted that those considerations did not outweigh the entitlement of the defendants to the benefit of the jury verdict. In fact, the judge did leave the questions to be answered by the jury. But he concluded there was no evidence to support the finding concerning the Lange defence. In my opinion, the questions of delay and expense were relevant matters to the exercise of the discretion. In my opinion, the submission has no merit.

It follows that this ground of appeal fails.

B. The Lange defence

Discussion occurred between counsel and the trial judge as to the questions to be left to the jury. It was agreed the question whether the publication was a communication on matters of a political or government nature was a question for the judge and whether the publication was reasonable was a question for the jury. The jury answered that the conduct of the appellants in publishing the article was reasonable in the circumstances. On the motions for judgment, his Honour ruled that the publication concerned a political and government matter. His Honour considered the question whether there was any evidence to go to the jury on the issue of reasonableness and concluded that on the uncontroverted facts Ms Popovic was entitled to a verdict on that issue.

The defendants' grounds of appeal assert that his Honour erred in holding there was no evidence upon which the jury could properly find that the conduct was reasonable. The grounds allege that his Honour made a number of errors in concluding that the defendants failed to prove the publication was reasonable in the circumstances. The alleged errors are -

* The defendants had to prove that they honestly believed the defamatory statements actually conveyed by the article. * The defendants had to prove they sought a response and by failing to do so, this was fatal to the defence. * That absent a finding as to which imputations were conveyed by the article it was not open to the judge to determine whether the publication was reasonable. * Absent finding as to which imputations were conveyed, it was not open to the judge to make any findings as to the state of belief of Mr Bolt. * That the judge was wrong in requiring the defendants to seek a response, and that the evidence established it was not practicable and was unnecessary. * The judge's finding that Mr Bolt did not care whether he conveyed the imputations or not was against the evidence and the weight of evidence. * The judge should have held that the necessary state of belief was in relation to the imputations Mr Bolt intended to convey. * That there was ample evidence that the defendants acted reasonably.

Ms Popovic's amended notice of cross-appeal contended that the learned trial judge erred in holding that the publication concerned political or government matters.

The rival contentions in this appeal raise the following issues for consideration and determination -

(i) Was the article concerning government or political matters? (ii) Was the making of the publication reasonable in all the circumstances?

If the defence was made out, it could be defeated by Ms Popovic proving actual malice; however, the jury negatived malice at the time of publication.

It is convenient to deal first with the second element of the defence. Was the making of the publication reasonable in all the circumstances? The jury's verdict was that the defendants' conduct was reasonable in the circumstances. The trial judge held that there was no evidence which would justify or sustain the verdict on that issue.

The trial judge's reasoning can be summarised -

* That in this case there were at least two issues upon which the facts were not in dispute which the defendants had to establish in their favour to succeed on the issues of reasonableness.

* The first issue related to the defendants' state of mind with respect to the publication of the article and the defamatory imputations conveyed.

* That as a general rule a defendant in order to show reasonable conduct, must prove he had reasonable grounds for believing that the defamatory imputation was true and did not believe it to be untrue.

* That this meant not only that Mr Bolt believed in the truth of each imputation which he intended to convey but also each imputation which he did not intend to convey but which was in fact conveyed. See Morgan v. John Fairfax & Sons Pty Ltd.[111]

* Mr Bolt gave evidence that it was not his opinion that the plaintiff should be dismissed from office and he did not believe that that is what the article meant.

* That Mr Bolt's state of mind was that he did not care whether the article conveyed that defamatory imputation or not.

* There was no evidence either that he believed the conveyed imputation to be true or that he did not believe it was false.

* The second matter was the question of Mr Bolt seeking a response from Ms Popovic.

* It was the necessary ingredient of reasonableness to seek a response; no response was sought.

* The jury was not entitled to find that there was any excuse for failing to seek a response.

* In conclusion, if the issue had to be determined before the case was left to the jury, the Lange qualified privilege would have been withdrawn as there was no evidence upon which a jury could find that the actions of the publishers were reasonable.

A number of attacks were made upon the trial judge's reasoning.

First of all, it was submitted that he erred in treating the two matters which he discussed as being necessary and decisive ingredients if the conduct of the publishers was to be regarded as reasonable. It was submitted reasonableness required consideration of all factors concerning the publication which took into account the steps taken by the defendants prior and up to the publication. Secondly, it was submitted that there was an abundance of evidence called by the defendants concerning the circumstances leading to publication which were open to the jury to consider and to conclude the publication was reasonable. Thirdly, reference was made to Cock v. Hughes,[112] a decision of McLure, J. in the Western Australian Supreme Court on an application to strike out a defence. Her Honour was of the opinion that it was not a necessary ingredient of the reasonableness that the person responsible for the publication should seek and publish any response. She stated -

"Whether it is a necessary ingredient will depend on all the circumstances of the case." [113]

In my opinion, it cannot be said that the matters referred to by the High Court in Lange,[114] namely, belief as to the imputation, verifying the accuracy or seeking a response are necessary or decisive ingredients of the proof by the defendant of reasonable conduct. The making of the publication must be reasonable and this, of course, depends upon all the circumstances of the case. The matters referred to by the High Court are clearly relevant to the determination. They are matters of substance. But having said that, in my opinion, there may be a particular matter which would be decisive in the circumstances. A particular matter may deliver a "knock out" blow to whether the publication was reasonable. Each case will depend upon its own circumstances.

It is necessary to emphasise that what the learned trial judge was considering and determining was whether there was any evidence upon which a reasonable jury could conclude that the making of the publication was reasonable in the circumstances.

The test which the trial judge relied upon and which in my opinion is appropriate, is that stated by Starke, J. in Shepherd v. Felt and Textiles of Australia Ltd.[115] I have reproduced it earlier in these reasons.[116]

In reaching the conclusion he did, his Honour relied upon what the New South Wales Court of Appeal held in Morgan v. John Fairfax & Sons Pty Ltd[117] concerning s.22 of the Defamation Act 1974 (N.S.W.). His Honour observed that the case gave some guidance on the question of reasonableness. In that case, Hunt, A.J.A. with whom Samuels J.A. agreed, summarised from a number of decided cases a number of propositions concerning the question of reasonableness for the purposes of s.22(1)(c).

Two observations need to be made. First, the Court of Appeal was dealing with s.22(1)(c) in the context where the plaintiff had to plead precisely the false innuendo imputation, which is the cause of action. If the article complained of contained a number of imputations, it was open to the plaintiff to plead those imputations and if he did, each constituted a separate cause of action. See Whelan v. John Fairfax & Sons Pty Ltd.[118] Accordingly, anything that is said by a judge in a New South Wales defamation case, must be considered in light of the fact that each imputation is a separate cause of action. In this State the cause of action is the publication of the defamatory words. Secondly, the propositions summarised by Hunt, A.J.A. are not propositions of law, but are propositions based upon decisions of a factual nature decided in the courts of New South Wales. They do not bind juries if the question was left to a jury. They may bind trial judges.

But in the present appeal, we are dealing with a different question. It is not whether the learned trial judge should decide the question himself guided by what has been said in the Court of Appeal in New South Wales, but whether there was any evidence to go to the jury on the issue and whether the evidence could only lead to a verdict for Ms Popovic.

The learned trial judge referred to what Hunt, A.J.A. said in Morgan v. John Fairfax & Sons Pty. Ltd.[119] The trial judge said -

"In Morgan v. John Fairfax & Sons Pty. Ltd. Hunt, A.J.A. (with whom Samuels and Mahony, JJ.A. agreed) distilled a number of propositions on the question of reasonableness for the purposes of 22(1)(c) Defamation Act 1974 (N.S.W.) from a number of decided cases. After emphasising that it is in respect of the defamatory imputation actually conveyed that the defendants' act of publication must be reasonable his Honour said - `(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish: (a) that ... he believed in the truth of each imputation which he did intend to convey; and (b) that his conduct was never the less reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed'."[120] (Emphasis added).

His Honour then considered the state of mind of Mr Bolt at the time of publication and confined the question to the third imputation relied upon by Ms Popovic, namely, that the article conveyed to the reasonable reader that she had so misconducted herself that her removal from office was warranted.

Whether or not the imputation relied upon by Ms Popovic in the article that she ought to be dismissed from office would be established was a matter for the jury. In my opinion, on a fair reading of the article, the issue was contentious and one for the tribunal of fact. It was not possible to say whether the jury would find that imputation or not. But that was not the question. The trial judge had to rule whether there was any evidence which would justify and sustain a verdict in the defendants' favour. In considering that question he had to consider it in the context of the jury finding that imputation. But it was not confined to that imputation.

His Honour referred to Mr Bolt's answers to interrogatories in which he stated that at the time of publication he did not believe that the plaintiff had so misconducted herself that her removal from office was warranted and did not believe that on another occasion when she had misconducted herself when she hugged two drug traffickers that her removal from office was warranted. In giving evidence, Mr Bolt maintained that it was not his opinion that Ms Popovic should be dismissed from office and further, he did not believe that that was what the article meant. He was asked whether he may have inadvertently conveyed that imputation and he said, no, he did not believe he did. The following question and answer were -

"Q: No, and if you'd done it, you really ought to apologise and retract shouldn't you? A: I'm not so sure about that in the sense of this. If people gain the impression from what I've written that they thought that she should be sacked, then that's their point of view, they're entitled to it. And I won't apologise for them having that point of view."

His Honour concluded that the uncontroverted evidence of Mr Bolt's state of mind was that he did not care whether the article contained the defamatory imputation or not and that was the only reasonable inference open from the oral evidence. His Honour said that it followed that there was no evidence either that he believed the imputation to be true or that he did not believe it was false. As his Honour observed in relation to the first matter Mr Bolt said he did not, and secondly, he said he did not know and he did not care.

His Honour then said -

"Further, if the concept of reasonableness in the extended qualified privilege imports the law applicable to the statutory defence under s.22 ... as expounded by Hunt, A.J.A. in Morgan then if Mr Bolt did not intend to convey the defamatory imputation (he said he didn't) in the circumstances there is no evidence upon which a jury could find that it was reasonable for him to publish it."

What Hunt, A.J.A. said in Morgan's case, is not a proposition of law. It would not have been proper to inform the jury of what the Court of Appeal in New South Wales had said in relation to s.22(1)(c). The question was one for the jury. Was the making of the publication reasonable in the circumstances? That was the jury question. The jury heard and observed Mr Bolt give evidence, the relevant interrogatories and answers were tendered in evidence, counsel made submissions to the jury concerning the question and the judge directed them on the question of whether it would be reasonable in the circumstances if there was a lack of belief. The issue was complicated because in my opinion it was not clear that the article conveyed that her removal from office was warranted, that was a question left to the jury and in the end the jury decided the issue of reasonableness in light of the findings the jury made with respect to the defamatory sting in the article.

In addressing the state of mind of the defendants, the trial judge concentrated on the third of the imputations relied upon by Ms Popovic. The jury were not asked to answer a question as to which of the imputations relied upon by the parties had been conveyed by the article. Indeed, to do so would have been contrary to the law in this State.[121] The cause of action at common law requires proof of the defamatory words. Unlike the provision in New South Wales, the cause of action is not constituted by each pleaded imputation. In determining whether there was any evidence to go to the jury on the issue, the trial judge had to consider the question in the context of any of the possible imputations conveyed by the article. There was evidence directed to Mr Bolt's belief in relation to the article. He gave evidence that he believed the article to be truthful and that it expressed his honest beliefs. Further, he gave evidence that it was not his intention to suggest that Ms Popovic ought to be dismissed or removed from office; he did not believe that any such imputation was conveyed by the article. In addition, Mr Bolt gave other evidence relevant to the imputations pleaded by Ms Popovic.

In my opinion, the learned trial judge was wrong in concluding that there was no evidence upon which the jury could properly find for the defendants because of Mr Bolt's belief with respect to whether Ms Popovic should be removed from office.

The jury had to decide what defamatory imputations were contained in the words complained of. The jury had to decide whether or not the article imputed that Ms Popovic's conduct warranted her removal from office. The jury had to decide what was Mr Bolt's state of mind in relation to the issue of removal from office, and whether his conduct in the circumstances was reasonable. The jury would decide whether his state of mind had to go as far as believing in every imputation that was conveyed by the article or whether his state of mind would have been reasonable if he honestly believed what he understood was conveyed by the article. They were all questions for the jury. There was evidence to go to the jury on the issue.

In respect to the second matter relied upon by the trial judge, his Honour set out the evidence given by Mr Bolt concerning this question -

"Mr Houghton: You have told us about the researches and enquiries you made before you wrote your article, did you take any step to contact Deputy Chief Magistrate Popovic before you wrote - before you published your article? Mr Bolt: No. Mr Houghton: Can you tell us why not? Mr Bolt: Two reasons basically. One a magistrate's decision in open court must stand for itself, must speak for itself, and I quoted that - her comments at length. Secondly, there is a view by, as I understand, held by many judges and magistrates in all the time I have known, that you don't ask them to account for what they just did in court. You don't go behind the scenes and say `Hey why did you do that?' and I actually happen to believe that that is not proper, I agree with that point of view. I would have thought it was improper to do that."

The evidence established that the defendants did not seek any response from Ms Popovic.

His Honour held that it was a necessary ingredient of the element of reasonableness that the person referred to in an article should be given an opportunity to consider the material and respond if he or she wishes unless it was not practicable or was unnecessary. His Honour held that the defendants had not proven it was impracticable or unnecessary to seek a response. He said there was no evidence that it was not practicable to seek a response. I interpolate to note there was Mr Bolt's evidence of concern about approaching a judicial officer. His Honour said that Mr Bolt's article was not a bare report of a court proceeding but was an opinion piece and he concluded -

"The jury would not be entitled, on the basis of such an answer or upon any other part of Mr Bolt's evidence to form the view that it was, in this case, for some unexplained reason, unnecessary to give Ms Popovic the opportunity to respond which the law requires."

His Honour stated that the burden of proof rested upon the defendants and in his opinion they had produced no evidence upon which a jury could determine the questions in their favour.

The question is, on the uncontroverted facts must the issue be determined in favour of Ms Popovic? The issue is whether the publication was reasonable in all the circumstances? The failure to seek a response is a relevant factor of substance. Mr Bolt gave an explanation. It could not be said the seeking of the response was unnecessary. But was it impracticable?

In my opinion, his Honour was wrong. Mr Bolt's evidence provided an explanation for not seeking a response. It went to the question of practicability and was a matter for the jury's consideration on the issue of whether the defendants' conduct was reasonable in the circumstances. There was evidence to go to the jury on the question.

If the learned judge had been sitting alone, his conclusions on the issues of belief and failure to seek a response, in my view, could not be faulted. The observations of Hunt, A.J.A. in Morgan's case would be persuasive. It would have been open to him to have drawn the conclusions which he did. But the test was whether there was evidence to go to the jury on the particular issues.

Although I have concluded that his Honour was wrong in finding that the state of Mr Bolt's mind at the time of publication and the failure to seek a response were fatal to the defendants' Lange defence, nevertheless counsel did canvass other issues before the learned trial judge on this question. A respondent to an appeal is entitled to support the decision upon any ground which would have been open to him[122] provided it does not depend upon an issue of fact not litigated at trial and is not unfair to the appellant. The issue of reasonableness was raised by the grounds of appeal and the subject of detailed submissions. The arguments ranged over the evidence at trial.

In my opinion there was evidence which established that the making of the publication was not reasonable in all the circumstances. It would indeed be a very rare case that a publisher could distort the facts which were central to the article and upon which the defamatory imputations were based, and then be found to be acting reasonably in making the publication. That is what happened in this case. Mr Bolt did not publish in full the exchange between Ms Popovic and the prosecutor with the result that what was conveyed in the article was misleading, contrary to what in fact occurred and was the basis upon which Mr Bolt made the strong criticism of Ms Popovic. It is necessary to set out the exchange in full, the omitted portion being italicised.

Mr Bolt inserted a number of words of his own before he set out a portion of the transcript. He said -

"Having already decided - before hearing any evidence - she would not punish demonstrators for destroying Indonesian property, Ms Popovic turned on the prosecutor." (Emphasis added).

The latter words set the scene.

The exchange according to the transcript was as follows:

"Popovic:	You have to wonder sometimes whether these matters are brought for any legitimate purpose.
Prosecutor:	Your Worship, we have a situation where we have a victim. It is their property and they have laid the complaint and we are obliged to investigate and prosecute.
Popovic:	I reckon it would be much cheaper to buy them a new flag.
Prosecutor:	Your Worship...
Popovic:	One, two, three, four, five people to court over it.
Prosecutor:	Your Worship, the situation is (that) it is their property, they have the right to...
Popovic:	Mr Mohammed, you repeatedly argue with me.
Prosecutor:	Your Worship...
Popovic:	I'm warning you now, I don't wish to enter an argument with you. I don't care whether you prosecute this matter or not. All I'm endeavouring to do is to raise some issues for you to consider.
Prosecutor:	I apologise, your Worship. I'm just explaining why we're proceeding with this prosecution, and that is, there is a victim.
Popovic:	You've told me there's a victim, there's a victim. I'm saying, have a look at why you're prosecuting this, have a look at whether there might be some other way of dealing with it. I'm not going to interfere with your prosecutorial discretion. I'm, simply saying that there are sometimes - one can approach a matter in a different way, that's all I'm saying. I'm not arguing with you, I'm not telling you that you have got to withdraw the charges; I'm not doing anything of the sort. I'm simply asking that maybe a fresh look be taken with respect to this type of matter. It's the type of matter where it can get out of hand very easily without there being any real necessity to do so. That's all I'm saying. Saying you do what you are professionally and morally obliged to do. I'm not saying that you shouldn't prosecute this matter, I'm simply saying have a look at may be some other way of dealing with it.
Prosecutor:	As your Worship pleases. I'm just putting forward the prosecution point of view.
Popovic:	They're the orders that I'll make. Nothing else required?"

Mr Bolt then wrote and published -

"How outrageous to so bully a prosecutor for simply arguing the law must be upheld against demonstrators who destroy the property of others."

Mr Bolt only published a portion of the exchange between Ms Popovic and the prosecutor, and it is arguable that his observation about the bullying of the prosecutor was supported by what he published. But when the whole exchange is revealed, the context shows beyond doubt in my opinion, that there is no basis for the observation made by Mr Bolt. He has distorted what in fact occurred, with the result that he was able to make a critical comment. If the whole transcript had been published, it would have been clear to the reasonable reader that there was no basis whatsoever for the comment.

By distorting the facts, Mr Bolt has conveyed to the reader a false impression. As a result of the false impression, Mr Bolt was able to make a critical comment concerning Ms Popovic which arguably was supported by the distorted facts. But the true position was that the exchange between Ms Popovic and the prosecutor did not justify or even arguably support the critical comment made.

According to the evidence, Mr Bolt received a faxed copy of a report of what had occurred at the hearing on 30 November, and attached to it was a version typed by the police of the discussion between Ms Popovic and the prosecutor which had been recorded. The exhibit now before the court is faded and difficult to read. However, Mr Bolt read the report and the transcript and highlighted parts of the latter document. According to Mr Bolt, he took the view that there had been an error in the transcript where it read - "MAGISTRATE: I am warning you, now, I don't wish to enter an argument with you." Without seeking clarification and without asking to hear the recording, Mr Bolt formed the view that there should have been a full stop after the word "now". He said he was correcting an error and described it as an "ungrammatical error". He went on to say that he thought the punctuation mark was missing. It was then put to him that it was an example of "selective quoting changing the meaning of what was said, do you agree?" and he replied, "Certainly not". He was also asked the question, "And do you agree now that you changed the meaning of what was said?" to which he replied, "Absolutely not". He was then asked this question - "So without reference back to Mr Mohammad or anyone in the prosecution section and certainly no reference to the magistrate who said it or to the official court reporting people you entered a full stop after the word `Now'?" Mr Bolt replied - "Yes, I think I was right to do. I would have liked to have had the whole sense because I think it would have been even more damning to include it. I did not." His denials cannot stand in light of the full transcript of the exchange. No reasonable jury could have accepted his oral evidence.

In my opinion no jury could, in light of the distortion of the facts, come to the conclusion that the making of the publication was reasonable in the circumstances. The facts were not in dispute. It is noted that two of the three imputations relied upon by Ms Popovic were based upon the comment made by Mr Bolt concerning bullying a prosecutor for simply arguing the law. Mr Bolt's conduct in the circumstances was at worst dishonest and misleading and at best, grossly careless. It reflects upon him as a journalist.

The inaccuracy in the reproduction of the exchange between prosecutor and Ms Popovic leads to the conclusion that no reasonable jury could have concluded on that evidence that the making of the publication was reasonable in the circumstances.

The learned trial judge was bound in the circumstances to have taken the question away from the jury and in reserving the motion for judgment notwithstanding the verdict of the jury, was correct in concluding that the finding was not supported by the evidence.

It follows that it is unnecessary to consider whether the appellants proved the first element of the Lange defence. However, as the parties made submissions on the issue, I will briefly state my provisional views.

The learned trial judge held that the article was published on matters of a political or government nature. His reasoning can be briefly summarised. His Honour carefully analysed the three High Court cases dealing with the constitutionally implied freedom of communication in respect of political and government matters. They are Nationwide News Pty Ltd v. Wills,[123] Theophanus v. The Herald and Weekly Times Ltd[124] and Stephens v. Western Australian Newspapers Ltd.[125] His Honour noted what Deane and Toohey JJ. said in the Wills case[126] where their Honours emphasised that the repositories of government power under the Constitution hold them as representatives of the people, pursuant to a relationship which is a continuing one, and that it proceeds on the assumption that the people of the Commonwealth as a whole are entitled to communicate amongst themselves information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf. Their Honours described[127] the subject matter of the implied freedom as -

"Information, opinions and ideas about all aspects of the government of the Commonwealth, including the qualifications, conduct and performance of those entrusted (or who seek to be entrusted) in the exercise of any part of the legislative, executive or judicial powers of government which are ultimately derived from the people themselves." (Emphasis added).

His Honour noted that the Theophanus case was a defamation case and observed that the High Court established a new defence of qualified privilege and defined the elements of same. He also noted that Deane, J. again stated that the holders of high office, including judges, are amongst those whose conduct was subject to the implied freedom.

His Honour then discussed the Lange case. Whilst accepting that the Lange case established another variation of the defence of qualified privilege which supplanted the defence established in Theophanus, his Honour went on to state that the observations made in Theophanus were not totally irrelevant. Having observed that the defence had been extended in Lange, his Honour stated that the Court confirmed that the extended defence was equally applicable to the discussion of government or political matters at a State or Territory level.

His Honour then posed this question -

"Thus, the question which must be asked is whether it is necessary for the effective operation of the system of representative and responsible government that there be freedom to discuss the sort of matters discussed in the article sued upon even if such discussion is otherwise defamatory of a particular magistrate. Is there a clear nexus between the discussion in the article and the concepts of representative government?"

His Honour stated that any discussion involving the activities of the legislative and executive arms of government is concerned with the political process whereas discussion of judicial officers and courts is not. Neither Parliament nor the Executive has any role to play in disciplining or giving advice to a judge or a magistrate in respect of conduct falling short of what would warrant removal. His Honour referred to what the New South Wales Court of Appeal discussed in John Fairfax Publications Pty Ltd v. Attorney-General (NSW).[128] Spigelman, C.J. said -

"That protection, as Lange made clear, is an implication to be derived from the text and structure of the Constitution in so far as it makes provision for representative government. The conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based."[129]

The Chief Justice then went on to state that in his view any links between freedom of communication and the judiciary are all together too tenuous.

The learned trial judge stated that in his opinion,

"There needs to be some nexus between the discussion and the concept of representative government as it operates in this country for the extended privilege to be applicable."

His Honour concluded that if the article was in fact a discussion which contemplated or advocated the removal of a judicial officer then it could be properly characterised as being a discussion of a government or political matter and hence attracted the extended qualified privilege defence. He considered the article and concluded that the article did advocate the removal of the plaintiff from office as a magistrate and hence it was properly characterised "as the discussion of government or political matters in as much as it is only the executive government, in the person of the Attorney-General, who can initiate the procedure under the relevant statutory provision which could result in the plaintiff's removal from office as a magistrate."

Counsel for Ms Popovic submitted that his Honour was wrong, and counsel for the defendants submitted that he was correct.

What is covered by "political or government matters" will depend on the circumstances of each case. The article must answer the description of communicating to the publishees matters of a political or government nature. It would be impossible and indeed unwise to attempt to define what is included and what is not included. It is necessary to consider the article, the subject matter of the article, and the defamatory sting. Having done that it is necessary to consider and determine whether the article answers the question - is it disseminating information on political or government matters?

Mr Sher identified a number of observations made by the High Court indicating the type of matters which fell within the description of political or government matters and the type of individuals who may be the subject of the discussion. He emphasised that nowhere in the Lange decision was a reference made to communication of matters concerning judicial officers.

He identified the following topics -

* A system of representative government involving members of the House of Representatives and Senate being chosen by the people (p.559).

* Functioning of government (p.560).

* Policies of political parties and candidates for election (p.560).

* Voting in a referendum (p.561).

* Conduct of executive branch of government (p.561).

* Conduct of the executive branch, including ministers and public service (p.561).

* Conduct of statutory authorities and public utilities obliged to report to the Legislature or to a Minister (p.561).

* Discussion by electors of political matters (p.568).

* Functions and powers vested in public representatives and officials by the legal and bureaucratic apparatus funded by public moneys (p.570).

* Performance of public representatives and officials invested with functions and powers of concern to the community (p.570).

* Information concerning matters relating to the exercise of public functions and powers vested in public representatives and officials (p.570).

* Discussion of government or politics at State, Territory and local government level (p.571).

Whilst the list gives a description of the types of matters that could be considered political or government, on no view could it be said it is exhaustive. If a narrow approach is taken to the question what are government or political matters, it would seriously rob the defence of content which is founded on the implied constitutional right of free speech in this area. The High Court in Lange emphasised that the Court was broadening the common law rules of qualified privilege.[130] The High Court quoted with approval what McHugh, J. said in the Stephens case, supra.[131] His Honour provided a broad definition of the types of matters that members of the community have a real and legitimate interest to know about and stated that a narrow view should not be taken of these matters. It is instructive to quote in full what McHugh, J. said in Stephens -

"In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally." (Emphases added).

As the High Court said[132] in Lange -

"However the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh, J. referred. The common rules of qualified privilege will then properly reflect the requirements of sections 7, 24, 64, 128 and related sections of the Constitution."

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 considered the article and formed the opinion that the article did discuss the behaviour of Ms Popovic whilst sitting as a magistrate in the court, and did contemplate or advocate her removal which is a matter at the initiation of the Attorney-General making application to the Supreme Court under s.11 of the Magistrates' Court Act 1989. Under that Act, a magistrate is appointed by the Governor-in-Council.[133] A magistrate ceases to hold office when he or she attains the age of 70 years.[134] The Governor-in-Council may suspend a magistrate from office but is only able to do so if the Supreme Court has on the application of the Attorney-General determined that there are one or other grounds established. Once that step is taken the Attorney-General must, as soon as practicable, apply to this court for determination as to whether there is proper cause existing for the removal of the magistrate from office and if this court so determines the Governor-in-Council may remove the magistrate from office. It is clear that the Attorney-General is the only person who can apply to this Court to seek a determination that a magistrate be suspended and it is only the Attorney-General who can apply to this Court for a determination that proper cause exists for the removal of the magistrate. No doubt the Attorney-General would be the moving party before the Governor-in-Council. 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[135] per Mason, C.J., Toohey and Gaudron JJ,[136] and per Deane, J. and the judgment of Deane and Toohey, JJ. in the Wills case.[137]

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.

The article sued upon concerns the topic of the behaviour of two magistrates and is a critical appraisal of their conduct in court. It would be open to some members of the community to draw the conclusion that the article raises their fitness for office, that it advocates they should be removed from office or alternatively that their conduct should be investigated by the responsible Minister. In my opinion, the article is referring to government matters. The defamatory sting and also the imputations raised by the defendants concern the very issue of the way Ms Popovic behaved in court and arguably there is a suggestion that Ms Popovic may not be fit for office. The article is concerned about the performance in public of a person appointed by the government to perform on its behalf the judicial function in this State, namely, interpreting, applying and upholding the law. These functions directly affect members of the community and it is in the public interest to know of the behaviour in court of the judicial officers.

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.

C. Fair Comment Defence - Direction to Jury

Ground 3 of the amended notice of appeal alleges that the learned trial judge misdirected the jury by re-directing them that in order to make out the defence of fair comment Mr Bolt had to prove that he had an honest belief in the comment he actually conveyed rather than the comment he intended to convey.

The defendants had the burden of proving the defence. After the jury had retired, Ms Popovic's counsel took exception to the charge in relation to fair comment. After some debate, the judge re-directed the jury. He said to the jury the following -

"Although it is true to say that for a defence of fair comment to succeed the defendant has to prove to you, that is establish on the balance of probabilities that he had an honest belief in the comment. He has to convey to you, prove to you that he had an honest belief in the comment he actually conveyed - not some comment he might have thought he conveyed. It is the comment that he actually conveyed as you define it, as you determine it to be. It is for you to determine what is the comment but you must look at his honest belief in the comment he actually conveyed. It is not sufficient for him to say I had an honest belief in the comment that I wanted to convey. It is what he actually conveyed."

His Honour then went on to consider the evidence relevant to this issue. In particular, evidence of what Mr Bolt had deposed to in answers to interrogatories. Mr Bolt was asked interrogatories about whether he believed that Ms Popovic's removal from office was warranted. He said, no. In evidence at trial, he stated that he did not believe that his article conveyed that she should be removed from office. His Honour then went on to say this -

"He said `no' again, so he had no belief in those matters which are all the matters that the plaintiff says this article meant. That is evidence that you can use - indeed it is evidence on this issue of fair comment - because what the defendant must establish is that he had an honest belief in the comment he actually conveyed, so you are looking at the plaintiff's meanings. If you accept the plaintiff's meanings then he has been asked about his belief in any comment which is inherent in those meanings and he said he did not have any such belief, did not believe it. That is an important matter that you've got to - when you are considering this defence if you get to the - if you get to the defence of fair comment."

It was submitted on behalf of the defendants that the learned trial judge misdirected the jury when he directed that the defendants had to prove that the subjective belief of Mr Bolt was that he honestly believed the opinion he actually conveyed. It was submitted that it was not an element of the defence. What a publisher must establish is that objectively an honest person could hold the opinion conveyed. If the defence is made out, the plaintiff can defeat the defence by establishing malice.

The first question to consider is what are the elements of the defence of fair comment?

The defence of fair comment has in the past been somewhat complex because of the differing views as to what constitutes the essential elements of the defence. However, in my opinion, over the last 25 years, the elements of the defence have been settled. In Duncan and Neill on Defamation,[138] the elements are stated as follows -

"(a) The comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can consist of or include inferences of fact, must be recognisable as comments; (d) the comment must satisfy the following objective test: could any fair minded man honestly express that opinion on the proved facts".

As the learned authors go on to observe, even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

The defence does not require proof by the publisher that he honestly held the opinion conveyed in the article. There is some authority that the publisher must prove an honesty of belief as to what is conveyed in the article. See the Supreme Court of Canada decision of Cherneskey v. Armadale Publishers Ltd.[139] The learned authors of Duncan and Neill are of the opinion that the balance of authority in England was in favour of an objective test.

As long ago as 1887, Lord Esher M.R. in Merivale v. Carson[140] said -

"The question which the jury must consider is this - would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?"

See the same observations by Denning, L.J. in Adams v. Sunday Pictorial Newspapers (1920) Ltd.[141] The modern authorities support that conclusion. In Pervan v. North Queensland Newspaper Co. Ltd.[142] the High Court[143] disagreed with the Canadian decision. The House of Lords refused to follow Cherneskey in Telnikoff Matusevitch.[144] The High Court said in Pervan -

"It is sufficient if the publication is objectively fair and the plaintiff does not prove that the defendant publisher was actuated by malice."[145]

See also observations to the same effect in Branson v. Bower.[146] Lord Nicholls in Cheng v. Tse Wai Chun Paul[147] delivered the leading judgment of the Court of Final Appeal in Hong Kong. His Lordship considered the elements of the common law defence of fair comment. In his opinion the elements of proof are those set out in Duncan and Neill on Defamation quoted above. His Lordship[148] summarised the elements of the defence:

"First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today. Second, the comment must be recognisable as comment, as distinct from an imputation of fact. ... Third, the comment must be based on facts which are true or protected by privilege ... If the facts on which the comment purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available. Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded. Finally, the comment must be one which could have been made by an honest person however prejudiced he might be, and however exaggerated or obstinate his views."

I respectfully agree.

Counsel for Ms Popovic submitted that the Full Court in Falcke v. The Herald and Weekly Times Limited[149] had stated the law which involved the publisher proving that he honestly believed what was conveyed as comment in the article. However, in my opinion the law is that stated by the High Court in Pervan v. North Queensland Newspaper Co. Ltd., supra. The publisher does not have to prove that at the time of publication he honestly believed the comment which was conveyed in the article. His subjective state of mind is relevant to the question of malice if raised by the plaintiff. It follows the learned trial judge was wrong in re-directing the jury that it was an essential element of the defendants' proof that Mr Bolt honestly believed the comment that was actually conveyed. His Honour compounded the error by referring to Mr Bolt's answers to interrogatories on the topic.

Although the jury were misdirected, the question still arises as to whether the defence of fair comment should have been left to the jury. Counsel for Ms Popovic submitted to the judge that the defence was not open and should not be left to the jury and his Honour reserved that question. Because the jury negatived the defence, it was unnecessary for his Honour to rule.

Nevertheless, it is open to the successful party on appeal to rely upon any ground to support the decision. The question is - should the trial judge have left the defence to the jury? I have discussed the test to apply.

As Lord Nicholls said, it is necessary for the publisher to identify the facts upon which the comment is made, that is, that the reader should be in a position to judge for himself how far the comment was well-founded and, secondly, the comment must be based on facts which are true or protected by privilege. If the facts are not true or the facts are not published on a privileged occasion, the defence fails.

The observations by Edmund Davies, L.J. in London Artists Ltd v. Littler[150] accurately summarise the law and are apposite to the present proceeding. His Lordship said - [151]

"Secondly, comment must be disentangled from fact, for fair comment is available as a defence only in relation to facts which are either (a) true, or (b) if untrue, were published on a privileged occasion. ... Leaving aside privilege, which does not now arise for consideration, if the alleged facts relied upon as the basis for comment turn out to be untrue, a plea of fair comment avails the defendant nothing, even though they expressed his honest view. As was pointed out in Lefroy v. Burnside (No. 2) (1879) 4 L.R.Ir. 556, 565, the very nature of a plea `Assumes the matter of fact commented upon to be somehow or other ascertained. It does not mean that a man may invent fact, and comment on the facts so invented, in what would be a fair and bona fide manner on the supposition the facts were true.' A man may be led to invent quite honestly and without realising that he is doing so, by mistake, through ignorance or prejudice, or (as probably occurred in the present case) under the stress of emotion. But whatever the source of error the defence `does not extend to cover misstatements of fact, however bona fide'." (Emphasis added).

The guillotine effect of untrue facts was succinctly stated by Lord Porter in Kemsley v. Foot[152] where his Lordship said -

"In a case where the facts are fully set out in the alleged libel, each fact must be justified and if a defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence."

In my opinion, the same observation applies where some but not all of the facts are set out in the article.

Mr Bolt did not set out all the facts in the article upon which he based his comment that Ms Popovic acted outrageously in bullying a prosecutor for simply arguing the law. As set out above, the article falls short of what in fact did occur in the exchange between the prosecutor and Ms Popovic and it follows, in my opinion, that the facts upon which the comment is based are not truly stated or proven.

The defence fails and the learned trial judge would have been duty bound to have taken the defence away from the jury. There has not been a miscarriage by reason of the misdirection. The defendants did not prove the defence.[153] The ground fails.

D. Justification - Judge's Direction to Jury

The defendants pleaded and relied upon the defence of justification. The law presumes that the defamatory words complained of are false and the plaintiff does not have to prove that the defamatory words were untrue. The defence is concerned with meeting the sting of the defamation, that is, the defamatory meanings as found by the jury. It follows that the publisher must not only prove the truth of the words complained of in their literal meaning but also the truth of the defamatory sting. The defence must meet the sting of the matter complained of. In Howden v. Truth and Sportsman Ltd.[154] Dixon, J.[155] said -

"The defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. Every material part of the imputations upon the plaintiff contained in the words complained of must be true; otherwise the justification fails as an answer to the action."

In this proceeding, Ms Popovic pleaded three imputations. The defendants did not seek to justify those imputations. Instead, they pleaded three meanings and contended that in those meanings the article was true in substance and in fact. This is known as the Polly Peck defence.[156]

It follows that the defence of justification succeeds or fails on the imputations pleaded by the defendants. The jury in considering and determining the defence would have to consider and determine four questions. First, what are the meanings of the words complained of? Secondly, are the words defamatory of and concerning the plaintiff? Thirdly, are the defamatory meanings the same or substantially the same as the meanings pleaded by the defendant publisher? Fourthly, if yes to question 3, are the defamatory imputations true in substance and in fact?

It is only if the tribunal of fact comes to the conclusion that the defamatory meanings or some of them are the same or substantially the same as those pleaded by the defendant publisher that the issue of justification arises.

The jury would have already considered the first two questions when considering whether the words were defamatory of and concerning the plaintiff being the first question for their consideration. A trial judge should remind them that the issue of justification only arises after they have considered and determined the first three questions that I have set out above. The defence is not available unless the jury determines that the words contain the imputations relied upon by the defendant publisher and that they are defamatory.

Where there are a number of defamatory imputations pleaded by the defendant, the defendant publisher must establish the truth of all of the imputations in order to establish the defence. The defence fails if not all defamatory imputations are justified. There is no defence of partial justification at common law. However, it is possible, where there are distinct charges which are pleaded by the plaintiff to plead justification in respect of one charge only. See Sutherland v. Stopes.[157] But it is not a defence. It is relevant to the question of damages. Further, where there are a number of distinct defamatory imputations found in the words complained of, a publisher's proof of the truth of some of the imputations would be relevant to the question of damages,[158] Plato Films v. Speidel[159] and Wilson v. Mutual Store.[160] But the defendants did not seek to prove one charge or raise the issue as going to damages. The Polly Peck defence is justification of all the pleaded imputations. Fail one and the defence fails.

The defendants in their grounds of appeal have contended that the learned trial judge misdirected the jury by -

(a) directing the jury they had to find that one or more of Ms Popovic's imputations were conveyed by the article in order to answer yes to the question "was the article defamatory of the respondent?"; (b) that he misdirected the jury by directing them that the defendants were alleging that three quite different meanings were conveyed by the article;
(c) that he misdirected the jury by directing them that if they got to the second question (being "was the article true?") they would have already found that the article meant what Ms Popovic said it meant or substantially what she said it meant.

The trial becomes complicated because of the Polly Peck defence of justification. Accordingly, it is necessary to carefully charge the jury on a step by step basis so that the jury fully understands the issues and properly considers and determines them.

The first question in a defamation trial is, are the words defamatory of and concerning the plaintiff? The answer to this question depends upon the jury considering two issues.

In Readers Digest Services Pty Ltd v. Lamb,[161] Brennan, J. stated the law as follows -

"Where no true innuendo is pleaded and the published words clearly relate to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne's reasonable men (Capital and Counties Bank v. Henty) or Lord Atkin's right-thinking members of society generally (Sim v. Stretch) or Lord Reid's ordinary men not avid for scandal (Lewis v. Daily Telegraph Ltd.) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation."

What the words mean and whether they are defamatory of the plaintiff are questions of fact for the jury. The practice which is now invariably followed in defamation cases is for a plaintiff to plead the imputations relied upon. In the course of the trial, counsel and the judge will have carefully considered the imputations relied upon, there may be amendments, and the jury will be told in counsels' addresses and the judge's charge as to how the case on the alleged imputations is being put by the parties. By the time the jury retires to consider their verdict, the jury will have a very good understanding of how the case is being put in respect to the defamatory stings. Nevertheless, the questions are for the jury and they are not strictly bound by the way each party puts their case on the defamatory imputations. See Barclay v. Cox.[162] See also Lucas-Box v. News Group Newspapers[163] and Chakravarti v. Advertiser Newspapers Ltd.[164] As Barclay v. Cox makes clear, where the plaintiff's case is based upon false innuendos, each innuendo does not give rise to a separate cause of action, so that the issue before the jury is whether the words of the alleged libel in their ordinary and natural meaning were defamatory of the plaintiff. In the course of the trial the parties will put their submissions to the jury as to meanings and the defamatory imputations, and in the end the jury decide what the words mean and whether they are defamatory of the plaintiff. It follows that the jury may accept the contentions of the defendants as to the meanings of the words. The jury will then decide whether those meanings are defamatory. In a Polly Peck defence case, it would be open to the jury to conclude that the article is defamatory of and concerning the plaintiff in the meanings put forward by the publisher or the plaintiff or a combination of both.

At trial the judge, with the concurrence of the parties, provided a document which set out the rival alleged defamatory imputations. As long as the judge instructed the jury that it was a question for them to determine what the words meant, and whether they were defamatory in the meanings found by them, that the rival contentions were put to assist them in their endeavours, and that they were not bound by the precise terminology of the imputations put by the parties, there should be no difficulty with the course adopted. The judge would inform the jury that they may conclude that the defamatory imputations are a combination of the rival contentions.

The learned trial judge directed the jury that in considering and answering question one, they had to confine their consideration to the imputation pleaded by the plaintiff. In my opinion, this was wrong. The jury determines what the words complained of mean, and whether they are defamatory of the plaintiff. However, no complaint was made of the direction by the parties.

Where there is a Polly Peck defence pleaded, unless the jury find that the defamatory words were the same or similar to the defamatory imputations pleaded by the defendant, the defence is not available. The publisher, by pleading its own imputations, is keeping all its eggs in one basket. Unless the jury find the imputations as pleaded then the defence is not available. Further, the defence fails unless the jury find that each defamatory imputation relied upon by the publisher is true in substance and in fact.

The jury in the present case found that the defence of justification was not proven. It may have reached that conclusion on one of a number of bases. In this case, the judge did indeed focus the jury's attention first of all on the imputations relied upon by the plaintiff.

Criticism was made of the way the judge directed the jury on the defence of justification. After introducing the defence and directing them that the burden was on the defendants, he said -

"In this case the defendants have said effectively two things. They have said firstly that the article does not mean what the plaintiff says it means, and that is why you have got two sheets of paper about the question of meaning. If you've got to question 2 you will have already found that the article meant what the plaintiff says it means or substantially what the plaintiff says it means, because if you don't make that finding you will have answered question 1, no. Do you follow that? Let's go through that again. If you find the article is defamatory you will have done so because you will have found that the plaintiff's imputations, as we call them, what she says is what comes out of the article, what the article means, those three things which I read to you yesterday on the piece of paper that you have got, - you will have found that they are made out, that they are established, that you accept that that is what the article means, that it means one or more or all of them or something substantially the same as those and not more defamatory than those. You will have already found that, that is the answer to question 1. So when you get to question 2 you have got to take into account that here the defendants say the article means something else. Their meanings are different to the meanings pleaded by the plaintiff. The essential difference in most of them seems to be, but this is a matter for you ultimately, the plaintiff says that the defendants in the article said she was presiding over a criminal prosecution. [His Honour then stated what the defendants said it meant and that there were factual differences between the parties.] Now what the defendant [sic] has done is that it has sought to prove the truth of the meanings which it asserts. So to succeed on this claim of truth, firstly, you would have to be satisfied that the article means what the defendants say it means, or something substantially as to what the defendants say it means, then you would have to find that in those meanings, it was true. What does being true mean? What it means is that all statements of fact in the article are substantially true and all statements of opinion are substantially correct." (Emphasis added).

The judge then further directed the jury and emphasised that the defence only arises if they accepted the defendants' case on the meaning of the words.

In my opinion, the judge misdirected the jury because he said that the jury would only get to question 2 if they had already found that the article meant what the plaintiff said it meant. This is not correct. It would have effectively drained the defendants' defence of justification of its content. The jury had to decide what the words meant and whether they were defamatory in the meanings found by them. They may have been assisted by the rival contentions of the parties. However, the seeds for the misdirection had already been sown by the judge's direction in respect of question 1. The judge's directions would have misled the jury as to the issues for their determination.

The jury would only consider question 2 if they found the defamatory imputations as pleaded by the defendants. But they could have answered question 1 in favour of the plaintiff relying upon some or all of the defendants' imputations.

In my opinion, the jury was misdirected on the law, and how it should approach the defence, and the misdirections would have confused the jury as to the issues which they had to decide. His Honour's observation that having found in favour of the plaintiff on question 1 on her imputations would have resulted in the jury misunderstanding the true issues to be decided in respect of question 2.

Mr Sher submitted that it was now too late to complain about the misdirections. First, defendants' counsel at no stage during the course of the whole trial raised or discussed the question of whether their pleaded imputations were defamatory. Mr Sher referred to Mr Houghton's opening, cross-examination and closing address. Mr Sher is correct. Secondly, no objection was taken to the judge's charge in respect of the alleged misdirections.

In my opinion, it is clear, that a tactical decision was made by the defendants' counsel to submit to the jury that the plaintiff's imputations were not defamatory, say nothing about the defendants' imputations being defamatory and to argue that the defendants' imputations were true in substance and in fact. Hence, it is not surprising that no objection was taken to the form of the charge. If objection had been taken, the matter could have been clarified so that the jury fully appreciated the issues they had to consider.

The principles guiding an appeal court whether to order a re-trial because of a misdirection of law where counsel has not sought a re-direction have been discussed in many cases. There is a useful summary by Kaye, J. in Midalco Pty. Ltd. v. Rabenalt.[165] A helpful practical test is that stated by Barwick, C.J. in General Motors-Holden's Pty. Ltd. v. Moularis.[166] The Chief Justice said -

"Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case and the interests of justice to relax the requirement."

As his Honour made clear, in the end it is a matter of justice between the parties.

The defendants at trial adopted a tactic, namely, not to suggest that any of their pleaded imputations were defamatory, although that must follow from the nature of the plea, and they did not seek to correct what the learned trial judge had said. It could have very easily been corrected. Indeed, on a fair reading of what his Honour said, his Honour did place emphasis on the fact that the jury would only consider the second question if they were satisfied that the defendants' imputations were established. On the other hand the misdirections most likely would have confused the jury and I think there was a substantial risk the jury misunderstood their task. However, it is unnecessary to decide the question because in my opinion the learned trial judge should have taken the defence away from the jury.

Ms Popovic's counsel submitted that there was no case to go to the jury on the Polly Peck defence.

The defence takes its name from the case of Polly Peck (Holdings) Plc v. Trelford.[167] However, its progenitor was the decision of Lucas-Box v. Newsgroup Newspapers Ltd.[168] In the latter case, the Court of Appeal ruled that a defendant publisher, who sought to plead justification to meanings different but similar to those relied on by the plaintiff, was bound to plead those meanings.

The Polly Peck defence is well established law in England. It has been followed in Australia. However, two members of the High Court in Chakravarti v. Advertiser Newspapers Ltd,[169] Brennan, C.J. and McHugh, J. were of the view that the defence contravenes fundamental principles of common law pleadings and in general raises a false issue which can only embarrass a fair trial and inferred the defence was bad law.

The other members of the High Court did not accept the criticism and Gaudron and Gummow, JJ. discussed the Polly Peck-type defence in terms suggesting that the defence was available in Australia. Recently, Levine, J. in Whelan v. John Fairfax Publications Pty Ltd,[170] carefully considered the Australian cases concerning the defence and was of the opinion that it was a proper defence in Australia. I respectfully agree. I think it does have its place in the law of defamation in this State in order to do justice to both the plaintiff and the publisher to ensure the issues between the parties were clearly defined. But on the assumption that a plaintiff carefully pleads the defamatory imputations conveyed by the words complained of, in my opinion a Polly Peck defence would be a rare animal and not often available. It is a defence which is available provided certain conditions are satisfied, and it is essential that the court ensures that if it is pleaded, it is a permissible Polly Peck defence, otherwise there is a real risk that it will raise a false issue which will embarrass and complicate the fair trial of an action.

Unfortunately, there is a trend in this State that defence counsel feel that unless they have pleaded a Polly Peck defence, they have not done their job. Sometimes the plea is a plea of a separate and distinct defamatory imputation not relied upon by the plaintiff or is an attempt at a partial justification. Both instances are not permissible defence pleas of a Polly Peck type. Nevertheless, a plaintiff's legal practitioner may through ignorance, a misunderstanding of the language, carelessness, or seeking to confine the plaintiff's case within narrow limits or for some other reason, plead false imputations which are inadequate or in some way do not properly or fully convey the true defamatory meaning of the words complained of. Common sense and justice demands that the defendant be permitted to plead the true imputation conveyed by the words complained of and in that meaning prove that they are true and correct. Also fairness and justice require that the defendant publisher apprise the plaintiff of the defamatory imputations sought to be justified pursuant to a defence of justification. A defence expressed, "The said words are true in substance and in fact" is a plea of justification in any sense the jury may find. This would cover the natural meaning, an extended meaning or a different meaning because of context. The plaintiff is left to speculate. The particulars of justification may clarify the basis and width of the defence. Under the modern practice the plaintiff pleads the imputations. It is necessary to do justice that the defendant plead the imputations, if they are different, which he intends to justify. Of course the imputations must be confined to the words actually complained of by the plaintiff subject to context.

Before considering the changes brought about by the two English cases, it is appropriate to briefly summarise the principles of pleading justification in a libel case.

The starting point, is the very important principle, that the plaintiff pleads the case he wishes to seek compensation for, which constitutes his cause of action. He establishes the ground rules for the litigation. The article may convey a number of defamatory imputations. A plaintiff is entitled to sue in respect of one only provided the imputation is separate and distinct from the other imputation in the publication. It is not open to the publisher to plead that the ignored defamatory imputation is conveyed by the article and that it is true. That has never been the law and is not the law. See Cruise v. Express Newspapers Plc.[171]

The following propositions are well-established and apply to pleading a defence of justification:

(i) The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting. The general rule is that the publisher must prove every injurious imputation which the jury may find in the words complained of. See Digby v. Financial News Limited.[172]
(ii) The defence is that the words complained of were true in substance and in fact. This means that the publisher must prove the sting or stings of the libel are true. The publisher need not prove an irrelevant comment or any slight inaccuracy in the article is true. Errors or mistakes of no real substance do not defeat the defence provided they make "no substantial difference to the quality of the alleged libel or in the justification pleaded for it". See Alexander v. The North Eastern Railway Company[173] and Sutherland v. Stopes.[174] Every fact stated must be proven as true, unless immaterial or trivial and which in no way alters the defamatory sting of the article.
(iii) A publisher may justify part only of the words complained of provided the part sought to be justified contains a distinct and separate imputation. What is important is that the particular defamatory imputation is severable from the other defamatory imputation and conveys a distinct and separate imputation. See Biddulp v. Chamberlyne[175] and Davis v. Billing.[176] The plaintiff must not be left in any doubt as to what the defendant seeks to justify. But importantly this partial justification is not a defence to the cause of action, which is the publication of defamatory words. However, it is relevant to the question of damages, and if proven, results in a reduction in damages.

The modern practice of requiring a plaintiff to plead the defamatory imputations where the plaintiff relies upon the natural and ordinary meaning of the words, has required the plaintiff to plead the particulars of the defamatory imputations relied upon. This modern practice emerged in the 1960s in England where the confusion between the popular innuendo and the legal innuendo was put to rest. See Lewis v. Daily Telegraph Ltd.[177] The practice is well established in this State that a plaintiff is required to plead the defamatory imputations he relies upon unless the words could only mean one particular defamatory imputation. For example, to allege that a person has murdered another person.

Although the law in this State is that a jury is not strictly bound by the imputations pleaded by the plaintiff, nevertheless in practice at trial it is expected that the plaintiff's case will be presented in accordance with the particulars. The particulars fulfil the usual purposes, namely, to delineate the issues and to avoid surprise. But it is still a matter for the jury as to the meaning of the words and the defamatory imputations. See Barclay v. Cox,[178] Lucas-Box v. News Group,[179] and Chakravati v. Advertiser Newspapers Ltd.[180] In my view, the rule is in accordance with the law stretching back over some hundreds of years, and does not involve any unfairness to a defendant at trial. By the time the matter is left to the jury for its consideration, the parties, their counsel and the judge have all looked over the words and have given thought and consideration to what the words mean and what defamatory imputations are conveyed by the words. Nobody can be in any doubt as to how the case is being put by both parties at the time when the jury are requested to retire to consider their verdict. Of course if the plaintiff seeks a substantial change to the pleaded meanings in the course of the trial, amendment may be necessary and it may be refused if causing prejudice to the publisher.

However, the words expressing the defamatory imputation relied upon by the plaintiff may not accord with what the jury may find as the defamatory imputation. It follows, in my opinion, it is just and fair that the defendant should be in a position to be able to plead his version of the defamatory imputations and plead justification in those meanings. Fairness also demands that the plaintiff knows how the case is put. Of course, it is not open to the publisher to plead a separate and distinct allegation which is not relied upon by the plaintiff.

In Lucas-Box v. News Group Newspapers Ltd,[181] the plaintiff brought actions against the defendants alleging that two different articles were defamatory of her in their ordinary and natural meaning of the words. It was held that the ordinary rules of pleading applied to defamation proceedings as to all other proceedings, and required parties to define the issues between them.

In Lucas-Box, a number of principles of law were stated. First, the cause of action is the publication of words defamatory of and concerning the plaintiff. The plaintiff may plead an article which contains a number of defamatory stings. The defamatory stings are not the cause of action. The cause of action is the publication of defamatory words.

Secondly, by 1986, it had become the settled practice for a plaintiff "where the meaning of the words complained of is not clear and explicit, to plead the meanings which he says the words bear. This enables the defendant to know what case he has to meet and to prepare his defence accordingly." Per Ackner, L.J. at 151. As his Lordship pointed out, the practice is of considerable benefit to the court since it provides to the trial judge the meanings relied upon by the plaintiff.

Thirdly, when a defendant pleads justification he pleads that the defamatory words are true in substance and in fact in any meaning found by the jury. The defendant publisher is required to give particulars of the facts relied upon to support that defence. The particulars give some indication of the defendant's case. However, the particulars may not clearly define what the defendant will contend at trial, the words mean and in what sense will be justified.

Fourthly, "that where an action in defamation is tried with a jury, it is for the jury to decide what meaning or meanings the words in fact bear. They are not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words." op cit at 152. It follows that the publisher relying upon a defence of justification does not wish to be seen to be tying himself at the pleading stage as to what defamatory meaning might be found by the jury. Accordingly, the usual plea of justification is general in its terms and is only confined by the particulars given of the facts relied upon.

The approach taken by the defendant publisher has the potential to be unfair to a plaintiff who does not know precisely what case is being put against him pursuant to the plea of justification. Justice and fairness demands that the defendant states the imputations which the defendant seeks to prove as true prior to trial.

In order to resolve this potential for unfairness, Ackner. L.J. said, at p.151 -

"It is axiomatic that the function of pleadings is to define the issues between the parties, so that both the plaintiff and the defendant know what is the other side's case and thus everyone, counsel, judge and jury, are able to focus upon the real nature of the dispute. Although to some it may seem a startling observation, we can see no reason why libel litigation should be immune from ordinary pleading rules."

Hence, the requirement that the defendant publisher plead the particular imputations which he proposes to prove at trial as being true in substance and in fact is to define the issues and also to apprise the court and the plaintiff of the issues raised by the defendant. Such a requirement is no more than a more precise and specific pleading of the defence of justification. It does not cut across the rules stated above concerning partial justification or seek to raise a defamatory imputation which is separate and distinct from what the plaintiff has put in his case. The defence is no more than a requirement that the defendant publisher specifies in accordance with the objects of particulars, the particular defamatory imputations which it is proposed will be justified at trial. Of course, the pleaded imputations must meet the case pleaded by the plaintiff and confined to it. What brought the matter to a head in the Lucas-Box case was the modern practice requiring the plaintiff to state his defamatory imputations. As the facts demonstrate in Lucas-Box, the requirement that the defendant plead his imputations was to enable the plaintiff to know what case was being put pursuant to the plea of justification.

Polly Peck v. Trelford[182] followed the decision in Lucas-Box and extended the right of the publisher to plead justification not only in respect of the imputations which were likely to be found by the jury, but also permitted the publisher where the facts justified it, to plead a common sting in the article even in relation to matters not specifically relied upon by the plaintiff. The decision did not, however, change the well-established law that if there were separate and distinct defamatory allegations and the plaintiff selected only one of them for complaint, the publisher was not entitled to assert the truth of any other defamatory imputation by way of justification. At p.1020, O'Connor. L.J. discussed some well-established principles concerning defamation proceedings. First, he noted that where a plaintiff chooses to complain of part of the whole publication the jury is entitled to read the whole publication. The second principle concerned two distinct libels. If the plaintiff complains of one, the defendant cannot justify the other. The third principle was that the jury decides what the natural and ordinary meaning of the words complained of is. The fourth principle was stated by his Lordship, that the proceeding is concerned with essential issues and that public policy and the interests of the parties require that the trial be confined to those issues. After exhaustively considering the cases, O'Connor, L.J. summarised his conclusions at p.1032. His Lordship said -

"In cases where the plaintiff selects words from the publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that within that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea. ... It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain. Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not entitled to regard it as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication. What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment. In all cases it is the duty of the court to see that the defendant, in particularising a plea of justification or fair comment, does not act oppressively. Whether the particularisation of the plea is oppressive depends not only on the facts of each case, but also on the attitude of the plaintiff. I say this because a plaintiff can limit the extent and cost of inquiry at trial by making timely admissions of fact." (Emphases added).

The criticism made by Brennan, C.J. and McHugh, J. in Chakravarti's case,[183] concerned the statement by O'Connor, L.J. about the common sting. Their Honours said after quoting what Cooke, J. said in the New Zealand case of Templeton v. Jones -

"This passage highlights what we regard as a fundamental defect in the reasoning in Polly Peck. Cooke J rejected the notion that the defendant can take severable parts of the publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable part. That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when it plainly was not. Yet that is the sort of finding that must result from applying the central proposition of Polly Peck. That proposition is that: `The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting'."

It can be seen that the criticism is directed at the common sting rule. As O'Connor, L.J. said, whether or not the defamatory statements are separate and distinct from each other is a question of fact and degree in each case. I would with respect query whether the example given by Brennan, C.J. and McHugh, J. is a classic example of the common sting. In my opinion, it is arguable that the two allegations are separate and distinct, do not contain a common sting and it would not be open to a defendant to plead a common sting if the plaintiff only relied upon one of the defamatory imputations.

An example of the common sting-type defence is found in Khashoggi v. I.P.C. Magazines[184] where a plaintiff who was well-known for her considerable sexual enthusiasm took a proceeding against a magazine which alleged that she had had an affair with a friend of her husband. She complained about that passage in the article but did not make any other allegation concerning the rest of the article which was to the effect that she was promiscuous and had had many extramarital affairs. The question before the Court of Appeal was whether she was entitled to an injunction. The publishers stated that they proposed to allege a common sting in the article, namely, that she was a promiscuous woman who had many extramarital affairs and that they would prove the truth of that. The plaintiff did not get her injunction.

That was a case where the focus of the article concerned the promiscuous conduct of the plaintiff and arguably established a common sting.

Whether or not the words complained of when considered in context, contained a defamatory common sting is a question of fact and degree and will depend upon the circumstances of the particular publication. However, the right of the defendant to plead a common sting must not be used to negate a well-established principle that where the words complained of contain a separate and distinct defamatory imputation which is not pleaded by the plaintiff, the defendant is not entitled to plead that imputation and seek to justify it.

In my opinion, the Polly Peck defence is appropriate where first the plaintiff does not plead the proper imputations arising from the words complained of and forming the basis of the plaintiff's case, and secondly, where there is a common sting which is not separate and distinct from the way the plaintiff has pleaded his case. Justice and fairness to both parties require a Polly Peck defence where a defendant proposes to plead justification in relation to meanings which are conveyed by the words complained of forming the basis of the plaintiff's case. But the defence is not available as a partial justification, and is not available where there is a separate and distinct defamatory imputation not relied upon by the plaintiff which is not inextricably bound up with the way the plaintiff has pleaded the imputations. The court must be vigilant to ensure that what is pleaded as a Polly Peck defence is a proper and permissible one.

The question is, was there any evidence to go to the jury on the defence of justification?

The first question to consider is what do the words mean and are they defamatory of the plaintiff in that meaning? It is vital that the members of the jury when considering the questions focus only on the article and put out of their mind the evidence. In considering the defence, does the article convey any of the imputations pleaded by the defendants?

In considering the meaning and defamatory character of the words complained of, it is necessary to consider what meaning the average normal reader would attribute to the article and the words. In construing words in a defamation proceeding, the jury does not use legal rules of interpretation but adopts an approach which recognises that the law is concerned with the effect of the words used on ordinary people and account must be taken of the fact that the layman's capacity for implying matters is much greater than the lawyers.[185] Importantly in the present matter, the average reasonable reader is not a lawyer.

By pleading a Polly Peck defence, the defendants are contending that the words mean what they plead and that they are defamatory in that meaning. Whilst the defendants were reluctant to concede that the words were defamatory, subject to any reservation, the pleading of a defence of justification of their meanings is a concession that the words are defamatory in those meanings.

In considering and determining whether the defence has been established, the defendants must be confined to proving the meanings as pleaded or a variation which does not alter the substance of the defamatory sting. It is in that meaning that the defendants contend that the words are true in substance and in fact. To permit a tribunal of fact to consider a defence of justification on meanings found by the tribunal substantially different from the pleaded meanings, without amendment, would result in the jury determining a false issue, but more importantly one that had not been raised.

In Viscount De L'Isle v. Times Newspapers,[186] Mustill, L.J. said[187] -

"The essence of the decision in the Lucas-Box case (and here it may have broken new ground) is that the justification must be pleaded so as to inform the plaintiff and the court precisely what meaning the defendant will seek to justify."

There are two questions to consider. First, is the pleaded imputation a permissible Polly Peck defence? Secondly, do the words in their natural and ordinary meaning convey the defamatory imputation pleaded by the defendants? This question contains two issues, namely, do the words mean what the defendants plead, and if so, are the words defamatory in that sense? If the answer to that question is yes, the second question is - have the defendants established that the defamatory sting is true in substance and in fact? The first question does not admit of evidence; the second question depends upon the evidence.

It is appropriate to consider each imputation relied upon by the defendants. The first is in these terms -

"(a) The plaintiff had pre-judged a case then before her by indicating that if she was the presiding magistrate she would find the charges proven and then dismiss them without knowing the facts of the case."

(Emphasis added).

The learned trial judge in considering whether the issue should be left to the jury, considers whether the words complained of are capable of bearing the defamatory meaning pleaded by the defendants. In performing that function, the judge will bear in mind the principles stated above, taking into account that the average reader is not naive, tends to read between the lines, is more ready to find an implication than a lawyer and to indulge in an amount of loose thinking. See Lewis v. Daily Telegraph.[188] The trial judge should approach the task, stepping into the shoes of the average reader, and not subject the article to a strict legal interpretation.

The pleaded imputation contains the defamatory sting that Ms Popovic had pre-judged a case by stating that if she was the presiding magistrate she would find the charges proven and dismiss them without knowing all the facts. The imputation is based upon a verbatim statement made by Ms Popovic and reproduced in the article. However, in my opinion, the imputation omits a number of important factual matters appearing in that portion of the statement made by Ms Popovic. First, she stated that she had read some of the material concerning the case; secondly, that if the charges were proven; and thirdly, that if the defendants had no prior convictions, it was her view that the worst thing that would happen would be that she would dismiss the charges. This is not a Polly Peck defence. It creates a false issue.

The pleaded imputation is not capable of bearing the meaning based upon what Ms Popovic said, and accordingly it would not have been open to the judge to leave the imputation to the jury. It is a selective piece of pleading. It omits some very important facts which are clearly stated in the article and which are vital to any suggestion that Ms Popovic had pre-judged the case.

But if I am wrong, there is no evidence to go to the jury that the defamatory sting was true in substance and in fact. The evidence before the Court would not justify and sustain a verdict in favour of the defendants in respect to this imputation.

As the article indicates, and the evidence establishes beyond doubt, Ms Popovic was not hearing the cases but was presiding over a contest mention. A contest mention is a preliminary hearing by a senior magistrate of any matters that are likely to occupy a half day or more in the Magistrates' Court. A contest mention hearing is designed to crystallise the issues, narrow the issues if possible, ascertain the likely plea, and if appropriate to give some indication of a likely sentence, although the indication should not be specific. Importantly, a magistrate who conducts a contest mention is disqualified from hearing the subsequent contest, unless the parties consent.

The pleaded imputation contains an expression of opinion that Ms Popovic, if she was the presiding magistrate, had already pre-judged the case without knowing the facts. The evidence showed that she had some background knowledge of the charges, that she stated in accordance with the guidelines that if she had been the presiding magistrate, if she had found the charges proven and if the defendants had no prior conviction the worst thing that would happen would be that she would dismiss the charges. In appropriate cases it is open to a magistrate to dismiss charges even though they have been proven.

In my opinion, the evidence was all one way. It was part of her function as the presiding magistrate at a contest hearing to give some indication of the likely outcome of the case. The imputation that she pre-judged the case when she did not know the facts of the case cannot be established. Ms Popovic performed the task that she was duty bound to do. In my opinion, the learned trial judge would have been bound to have taken away this imputation.

The second imputation is in these terms -

"(b) The plaintiff had bullied the police prosecutor appearing in the case then before her by accusing him of repeatedly arguing with her and then warning him in circumstances when he was attempting to put the Crown case for proceeding with the prosecution."

This imputation is based upon the statement made by Mr Bolt in the article after setting out the exchange between Ms Popovic and the police prosecutor -

"How outrageous to so bully a prosecutor for simply arguing the law must be upheld against demonstrators who destroy the property of others."

That observation is an expression of opinion based upon part of the transcript which was published. Although it is expressed as a comment or statement of opinion, the defence of justification is still available but the publisher must prove the truth of the comment.[189]

Mr Bolt did not publish the whole of the exchange. I have set it out above. The exchange as published distorts the true position. When the true position is revealed, it is clear that there is no evidence to support the truth of the comment made that she was bullying the prosecutor for simply arguing that the law must be upheld. As the transcript reveals, she was warning him about the fact that she did not wish to enter into an argument. She indicated she did not care whether he prosecuted the matter or not. What she did state was she was endeavouring to raise some issues for him to consider. The Contest Mention Guidelines make it clear, that what Ms Popovic was doing was in accordance with the usual practice. Given the true context, there is no basis for coming to the conclusion that Ms Popovic was bullying the prosecutor. In my opinion, no reasonable jury could have reached the conclusion that the imputation as pleaded was true in substance and in fact. There was simply no evidence to prove the truth of the imputation that Ms Popovic was bullying the prosecutor for simply arguing the law must be upheld. The learned trial judge would have been bound to take the plea away from the jury. The evidence would not have justified and sustained a verdict in the defendants' favour on this imputation.

The final imputation is in these terms -

"(c) The plaintiff conducted herself inappropriately as a judicial officer by indicating during the course of a hearing before her an antipathy towards the Indonesian Consulate (whose flag had allegedly been burned by the accused) by querying whether it was the Indonesian Consulate who was pushing the prosecution and by commenting that it would be cheaper to buy a new flag and, on the other hand showing sympathy for the accused whom she said were presumably young people, some of whom she had said worked in a voluntary capacity in East Timor."

It is noted this imputation whilst asserting the plaintiff was acting inappropriately, seeks to confine the facts upon which the defamation sting is based. The learned trial judge had to decide whether the words were capable of meaning what the defendants pleaded, whether the words were capable of being defamatory in that meaning and whether there was any evidence which would justify and sustain a finding of justification. But before considering these questions, the learned trial judge was bound to determine whether the plea was permissible. Where a publication contains distinct and separate allegations of a defamatory nature, the person defamed may sue on one only. The plaintiff establishes the ground rules. It is not open to the publisher to select a different part of a defamatory publication and plead justification.

Of course if a plaintiff claims damages in respect of several distinct defamatory meanings, it is open to a defendant to seek to justify any one of the meanings. See Howden v. Truth and Sportsman Ltd (No. 2).[190] But that is not a Polly Peck defence. The plea is part of the plaintiff's case. It is not a defence of justification. But if established it is relevant to damages.

The decision in Polly Peck, supra, permits a defendant to plead different meanings from those pleaded by the plaintiff and plead justification in respect to those meanings. But they are meanings allied to the imputation relied on by the plaintiff. The principles were stated by O'Connor, L.J. in Polly Peck.[191] I have set them out above.[192]

As his Lordship noted, the defence is also available where there is a common sting.

The article refers to a number of examples of the conduct of Ms Popovic. They are separate and distinct and are referred to, to lead to the comment that Ms Popovic has not behaved appropriately as a magistrate and to suggest that she may be unfit for office. The common sting is her alleged inappropriate conduct leading to the suggestion that she was not fit for office. Ms Popovic in her pleading has, in her first two pleaded imputations, raised the conduct concerning the persons charged with burning the flag. However, her third imputation takes up the general proposition that she has misconducted herself in a number of ways, including hugging two drug traffickers she let go free and that her removal from office was warranted.

The clear thrust of the defendants' third imputation is that Ms Popovic has acted inappropriately. However, in order to justify that opinion, the defendants have selectively pleaded only portions of the article. In my opinion, that is not permitted. The article refers to two separate incidents which the plaintiff relies upon as the common sting, and it is not open to the defendants in accordance with the principles stated in Polly Peck to justify the common sting by selectively narrowing the plea to some but not all examples of alleged misconduct found in the article. They are different incidents. If the defendants wish to justify the common sting, namely, that she had behaved inappropriately, they were bound to plead and prove the truth of all examples in the article which were described to support that conclusion. In my opinion, the learned trial judge would have ruled that the third imputation was not permissible and should not be considered by the jury.

If I am wrong in that conclusion, nevertheless the uncontradicted evidence established the conclusion that Ms Popovic had not conducted herself inappropriately. The imputation did not define the "hearing" conducted by Ms Popovic. The article did not clearly convey to the reasonable reader the type of hearing that Ms Popovic was conducting. On one view of the article, Ms Popovic was presiding over a hearing of charges of arson against protestors. This is made clear by the paragraph commencing "On November 30 she presided over a hearing" and the following paragraph which commences "Even before a word of evidence was heard". Further, after referring to what Ms Popovic had said, Mr Bolt wrote -

"Having already decided - before hearing any evidence - she would not punish demonstrators for destroying Indonesian property, Ms Popovic turned on the prosecutor."

On the other hand there is a reference to the nature of the proceeding by Ms Popovic in a reproduced portion of the transcript in the article where she said -

"if I was the presiding magistrate and found the charges proven is to have them dismissed."

The evidence established the following and it was not contradicted -

* That the hearing was not a hearing of the charges but a contest mention hearing.

* That at a contest mention hearing the prosecutor outlines the case, any discussion concerning prior convictions, attitude of the victim and/or informant, an indication of sentence if appropriate and a narrowing of the issues.

* The transcript of the exchange between Ms Popovic and the prosecutor showed that there were things said which placed the observation about buying a new flag in context.

* That Ms Popovic would not have heard the cases against the accused unless all parties, including the informant, consented to that course.

* Evidence of a lawyer and a magistrate as to the nature of a contest mention, how they were conducted and what would be expected at such a hearing which showed Ms Popovic conducted herself properly and appropriately.

In my opinion, on that evidence, the judge would have been bound to conclude that the totality of the evidence would not justify and sustain a verdict in favour of the defendants in relation to the third imputation. The judge would have taken the third imputation away from the jury.

In my opinion, the three defamatory imputations put forward by the defendants would not have been left to the jury. Accordingly, the defence of justification relied upon by the defendants would have failed. Even though it is a Polly Peck defence, the rules are the same. The defendants must prove the article was true in substance and in fact. That is the defamatory stings pleaded by them. This they failed to do. A failure to prove any of the pleaded imputations would mean the defence of justification fails.

E. Browne v. Dunn Ruling

The rule in Browne v. Dunn comes from a House of Lords decision of the same name reported in (1893) 6 R67. If the facts in Browne v. Dunn are considered, it can be seen that the rule is in a narrow compass. However, over the years, counsel put to a trial judge that there has been a failure to comply with the rule which often, in my view, is misunderstood. It is more often than not prayed in aid when a plaintiff or a plaintiff's witness gives evidence on a certain point, is cross-examined but not on a discrete topic which is then the subject of evidence called by the defendant or a defendant's witness. In those circumstances, usually plaintiff's counsel is given a choice of remedies ranging from re-calling the plaintiff or the plaintiff's witness, or permitting a strong comment to the tribunal of fact that the evidence given by the defendant or his witness should not be accepted.

In Browne v. Dunn, the rule was stated in a context where two witnesses were called by a defendant in a libel case and gave evidence that the document signed by them was a genuine document and not a sham as was alleged by the plaintiff. Neither witness was cross-examined. The evidence was crucial to the main issue in the case. Two of their Lordships discussed what had occurred. Lord Halsbury summarised the principles as follows[193] -

"To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."

The rule was stated in a context where the witness was not cross-examined. However, as Lord Herschel, L.C. said in the same case[194] -

"Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakenly given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted." (Emphases added).

The effect of failure to cross-examine a witness on a particular topic is somewhat controversial. In some cases it may be said that the failure to cross-examine is an implied admission by the cross-examining party that he accepts the version given.

The defendants make two complaints in their grounds of appeal. First, it is alleged that the learned trial judge erred in failing to give the jury a Browne v. Dunn direction with respect to the failure by Mr Sher to put to a witness Collins that he was lying when he said that he had witnessed Ms Popovic hug two drug traffickers in circumstances where counsel put that submission to the jury in final address. It was contended by Ms Popovic's counsel that the evidence of Collins was inadmissible. His Honour ruled that the evidence was admissible. Ms Popovic, in her notice of contention, alleges the learned trial judge was wrong. The article criticises the behaviour of Ms Popovic and raises the question of her continued employment. One of the assertions in the article was -

"Now for Ms Popovic, the Deputy Chief Magistrate who once hugged two drug traffickers she let walk free."

I agree that the evidence was not admissible in relation to the plea of justification by the defendants. But in my view it was a matter that was relevant to the pleaded defence of fair comment. Ms Popovic was cross-examined in relation to the hugging incident. Objection was taken to the evidence. It was ruled as admissible. The evidence was admitted on the ground that it went to the truth of facts upon which the defendant alleged a fair comment could be founded.

The rule in Browne v. Dunn is one of fairness to the witness and also to the case put by a party.[195] Mr Collins, a member of the police force, gave evidence on behalf of the defendants to the effect that he had seen Ms Popovic hug two drug traffickers. He was cross-examined as to his memory of the events, what he could recall and what he told a journalist. The evidence revealed he was unable to provide a date, place or name in relation to the incident. He was extensively cross-examined about his inability to provide any details. He stated he had some memory that the case concerned a person called Tran and that he had spoken to Mr Bolt some time in the year 2000. He also admitted that he had spoken to the lawyers acting for the defendants on possibly ten occasions. The name Tran was circulated to the police force during the trial. He claimed he had some recollection of the name. He was cross-examined extensively concerning his diaries and other records kept by the police. He was asked to describe the hug. In my opinion, the cross-examination reveals that it would have conveyed to Mr Collins the disbelief of the cross-examiner.

The defendants' counsel objected to counsel for Ms Popovic suggesting to the jury that Mr Collins had not told the truth.

In my opinion, it is clear that this was a matter very much in issue, and the thrust of the cross-examination was that the policeman was wrong in his evidence. Mr Sher spent some time with the jury going over the versions of the evidence given by Mr Bolt and Mr Collins concerning this alleged hugging incident. In particular, what Mr Collins had told Mr Bolt. Mr Sher then posed the question - "Do we really know Mr Collins?" He then went on to say -

"There is some evidence I am going to take you to shortly which demonstrates that there is reason to suppose Mr Collins hasn't told you the truth. I will take you to it."

He spent some time going over the evidence, what had happened, and raising a query about Mr Collin's veracity. In my view, nothing that Mr Sher did was unfair to Mr Collins or the defendants and it was clearly open to him to make those submissions to the jury. The very tenor of his extensive examination of both Mr Bolt and Mr Collins could not have left anybody in doubt that it was not accepted that Ms Popovic hugged the two drug traffickers and that Mr Collins was wrong.

Counsel for the defendants submitted to the trial judge that he should give a direction to the jury that Mr Sher should have put directly to Mr Collins that he was not telling the truth about the incident and that the course adopted was unfair.

In the end it was a matter for the trial judge. The trial judge was of the view that the rule in Browne v. Dunn was not infringed. The learned trial judge has had much experience with jury trials. He was in the best position to make the determination whether fairness demanded that some direction be given to the jury. He presided at the trial, heard the witnesses and had the opportunity to make a careful assessment of what was fair and what was unfair. In my opinion, the evidence discloses that Mr Collins was extensively cross-examined over the alleged incident and the observations he made. In my view, he could not have been in any doubt that notice was given distinctly and unmistakably that his version was being impeached. He was given every opportunity of giving his explanation of the incident. In my opinion, the judge was correct in not directing the jury on the point.

It follows that this ground fails.

A similar complaint is made of what Mr Sher put to the jury concerning Mr Bolt telling a lie that the complaint made by Senior Sergeant Jeff Birrell concerning Ms Popovic was yet to be endorsed by the DPP. The same submissions were put by defendants' counsel and in my opinion, it was a matter for the learned trial judge. He was of the view that it was unnecessary to direct the jury on the issue. According to the article the recommendations had not yet been endorsed by the officer's superiors. The evidence clearly established that seven days prior to the article, a senior officer had concluded that no further action be taken. Mr Bolt was cross-examined extensively in relation to the statement in his article and in particular that he did not follow up the matter and determine the outcome. It was clearly put to him that his explanation was wrong. Again, it is a matter of what was fair in the circumstances. The judge was in the best position to make that decision. I am not satisfied that the judge erred in refusing to direct the jury on the matter. In my opinion, this ground also fails.

F. Wrongful Admission of Evidence

The gravamen of the complaint concerning the article is the critical observations made by Mr Bolt of Ms Popovic's handling of the matter heard by her on 30 November 2000. Ms Popovic's counsel called a solicitor, Mr Robert Galbally, and a magistrate, Mr Power, to give evidence of what occurs at a contest mention. The evidence was called as being relevant to the defence of fair comment. The defendants complain that when an attempt was made to give similar evidence through a Police Prosecutor, Sergeant Mohammed, during the defendants' case, the judge ruled against the admission of his evidence.

The ground of appeal is expressed as follows -

"The learned trial judge was wrong to admit the evidence of Mr Galbally and Mr Power both called on behalf of the respondent as to the appropriateness of the respondent's conduct on 30 November 2000 in circumstances when he would not allow the witness Sergeant Mohammed to give evidence concerning the matter on behalf of the appellants."

The ground of appeal raises a false issue. The witnesses were called in the plaintiff's case and his Honour had to rule on the admissibility after Ms Popovic was cross-examined as to her behaviour at a contest mention hearing. The judge was not to know at that stage whether Sergeant Mohammed was to give evidence or not. The submission of the defendants is that the evidence of Sergeant Mohammed would have countered the evidence of Messrs Galbally and Power.

The 1994 Guidelines for Contest Mentions for the Victorian Magistrates' Court were admitted into evidence. Ms Popovic was cross-examined with a view to demonstrating that her behaviour was such that Mr Bolt's criticism was fair. Whether Ms Popovic had conducted herself properly was an issue that was raised in cross-examination. How a magistrate should conduct herself in a contest mention was a matter that the jury would not know, and it was appropriate that expert evidence be given as to what took place at a normal contest mention hearing.

The ground of appeal seems to raise a "tit for tat" requirement for the calling of evidence. The ground does not contest the learned judge's ruling on whether the evidence was admissible or not but rather that it should not have been permitted if the judge was not going to permit Sergeant Mohammed to give evidence on the same topic. As I have stated, the learned judge was not to know when he made the ruling. The submissions in support of this ground, however, highlight what is the defendants' real complaint. That is, that the evidence of Sergeant Mohammed should have been admitted to counter the evidence of Messrs Galbally and Power.

In my view, the evidence of Messrs Galbally and Power was admissible. It went to the question of the nature of a contest mention hearing and what was expected of the presiding magistrate. During the evidence of Sergeant Mohammed, who in fact was the police prosecutor referred to in the article, he gave evidence that he obtained the tapes of the recordings of what had occurred in court to enable his superiors to hear what had happened. He then gratuitously observed that "Something wasn't right with the way that thing - the matter was conducted". He was then asked, "Why?" At that point Mr Sher objected on the ground that his opinion could hardly carry any weight. It was then put by Mr Houghton that his views were relevant as to the fact that things were not right as going to why he made a complaint which was referred to in the article. Mr Houghton said, "Why was it that he took these steps?" It was put on that narrow basis as being admissible. His Honour ruled against it. In my opinion, the ruling was clearly correct. He was not referring to the topic discussed in evidence by Messrs Galbally and Power.

This ground has no substance and fails. His thoughts whether something was not right was not to the point, and were irrelevant. His reasons for why he took the steps concerning the complaint which appears to be the basis upon which the question was put also were irrelevant.

G. Damages

Ground 7 in the amended notice of appeal is concerned with both aggravated and exemplary damages. A number of grounds are set out in ground 7. It is necessary to consider the two heads of damages separately. The learned trial judge assessed compensatory damages, including aggravated damages, in the sum of $210,000 and awarded exemplary damages in the sum of $25,000.

1. Aggravated Damages

The grounds set out in ground 7(a) and (b) have been abandoned. The learned trial judge took into account a number of matters which he held aggravated the damages.

In a libel case, general damages are presumed to be the natural or probable consequence of the defamatory publication. The damages need not be proven by direct evidence but in most cases evidence is called in relation to general damages. The damages will be recovered where the words are defamatory of the plaintiff thereby impairing his or her reputation. There are any number of factors which can be taken into account in determining damages. The two main objects of damages in a libel case are, first as a vindication of the reputation in the minds of those who know the plaintiff or know of her and secondly, for self-hurt, that is, the distress, upset and indignation.[196] There are many factors relevant to the issue and a convenient summary is found in Cassell and Co. Ltd. v. Broome.[197] The list is not exhaustive. These damages are compensatory. However, the court may augment compensatory damages by awarding aggravated damages.

Compensatory damages for aggravation to the plaintiff's feelings can be awarded in defamation cases. They are not exemplary or punitive damages and are awarded as compensatory damages. They are not awarded as punishment; they are awarded to compensate the plaintiff for the increased injury to his or her feelings brought about by the conduct of the publisher.

There are two well-established principles that apply where a claim is made for aggravated damages. The first is the oft-cited dictum of Lord Esher M.R. in Praed v. Graham[198] where his Lordship said -

"The jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial."

Secondly, the conduct of the publisher must meet the description of what the High Court said in Triggell v. Pheeney[199] concerning aggravation.

" ... as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable." (Emphases added).

The misconduct justifying aggravated damages may be because of lack of bona fides or it was improper or it was unjustifiable. The damages usually are confined to the distress element in the award.

I respectfully adopt the statement of the law by Brennan, J. in Carson v. John Fairfax & Sons Ltd[200] where his Honour said -

"Damages may be aggravated ... by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendants from the time of publication until verdict (including conduct of the trial, ... ) is relevant. In Broome v. Cassell and Co. Lord Reid, speaking of the bracket with which any sum could be regarded as not unreasonable compensation said: `It has long been recognised that in determining what sum within that bracket should be awarded, the jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high handed, malicious insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation'."

The amount awarded for aggravated damages is not a discrete head of damages. The tribunal determining the compensatory damages includes the amount for aggravated damages in the sum awarded.[201]

The cases provide examples of the conduct of the publisher which has attracted an award of aggravated damages. Typical examples are the conduct of the publisher at the time of publication, including any evidence of malice, the extent and mode of the publication, and the conduct of the publisher during the litigation. Other examples are failure to apologise and retract and the pleading and persistence in unjustifiable defences. The conduct of counsel at trial may be another example.

The learned judge awarded as part of the compensatory damages, an amount for aggravated damages. He awarded $210,000 for compensatory damages including aggravated damages. Accordingly, it is not possible for this court to make an assessment of the likely sum in the $210,000 which was attributable to aggravated damages.

His Honour considered a number of matters and concluded that they justified an award of aggravated damages against the defendants. His Honour considered the principles applicable to an award of aggravated damages, and there is no suggestion that his Honour misdirected himself as a matter of law. The matters that he took into account were -

* Pleading and persisting in the defences of justification and the statutory defence of fair and accurate reporting of court proceedings.

* Mr Bolt's refusal to retract and apologise if he had inadvertently libelled Ms Popovic.

* The evidence of Mr Bolt that he did not believe her evidence concerning an adjournment application and thereby accused her of lying on oath in the proceeding.

* The attack made during the trial on the plaintiff's credibility.

* The proprietor's failure to exercise any effective editorial control over Mr Bolt.

* The defendants' failure to give Ms Popovic any opportunity to respond to the attack upon her before the article was published.

His Honour clearly considered these matters, and applying the principles discussed in the cases to which he referred, he concluded that Ms Popovic was entitled to aggravated compensatory damages. He observed that if the defendants' conduct had stopped there, the amount would have been small but he observed that the post verdict conduct of the defendants increased the amount of aggravated damages. The judge concluded that the matters listed above constituted misconduct within the meaning of the authorities and awarded damages accordingly.

An appeal court where damages have been awarded by a judge sitting alone will not interfere unless it is established that the trial judge misapprehended the facts, took into account irrelevant matters or misdirected himself on the law. The learned trial judge came to the conclusion that the matters referred to constituted misconduct which aggravated the hurt to Ms Popovic and which was improper, unjustifiable or lacking in bona fides.

The defendants' counsel on appeal sought to go through each head relied upon by the learned trial judge and to submit that the finding made by his Honour was wrong. His Honour had the distinct advantage of seeing and hearing the witnesses, observing the ebb and flow of the trial and the effect upon Ms Popovic, and time to reflect on the issues raised concerning damages. He had to make an evaluation of the conduct and whether it satisfied the test stated by the High Court. In those circumstances, the defendants assume a very heavy burden to persuade this court that the heads relied upon were not examples of misconduct which aggravated the hurt.

It was submitted that although Ms Popovic gave evidence that she was distressed by some matters raised in the trial she did not give evidence in relation to all matters relied upon by his Honour. For example, the proprietor's failure to effectively control Mr Bolt's activities. In my opinion, a matter may be so obvious that it is unnecessary to give evidence as to the effect upon the feelings of the plaintiff because any reasonable person in the position of the plaintiff would be affected by the misconduct. In my opinion, the fact that Ms Popovic did not give specific evidence in relation to that matter does not disentitle the judge to award aggravated damages for the failure to exercise control over the publication by the proprietor.

Ground 7 in the amended notice of appeal, listed some eight grounds attacking the award of aggravated damages.

Ground 7(g) alleged that the learned trial judge erred in awarding any amount for aggravated damages. This ground is in very general terms. I reject the ground. In my opinion, there was evidence which entitled the learned trial judge to award an amount for aggravated damages.

Ground 7(c) alleges that the judge erred in holding that the publishers' persistence with the defences of justification and a faithful and accurate report of a court proceeding supported an award of aggravated damages.

The defence of justification was a Polly Peck defence. It was not a partial justification. It was not a defence with respect to a discrete defamatory sting. It sought to justify three different meanings to that put by Ms Popovic. For reasons stated the defence should not have been left to the jury. It had no substance.

A proper investigation of the facts would have revealed very early in the litigation that there were many factual inaccuracies in the article. They were that the recommendations by the police are yet to be endorsed by their superiors, that on 30 November she was presiding over a hearing involving five protestors, that even before a word of evidence was heard Ms Popovic made clear her sympathies, and a reference to the total transcript of what took place between Ms Popovic and the prosecutor revealed that the facts were distorted in the article. Further, the assertion that Ms Popovic once hugged two drug traffickers was not investigated and the evidence at trial clearly indicated there was a real dispute as to what took place. In my opinion, the judge was clearly justified in concluding that the defence had no merit, and was persisted in without justification.

The statutory defence of a faithful and accurate report of a court proceeding once reference was made to the full transcript showed that that defence had no merit at all either. In my opinion, there is no doubt that the conduct in pleading and persisting with these two defences was improper and unjustifiable, and the persistence during the trial to rely upon those defences showed a lack of bona fides by the publishers.

Ground 7(d) asserts that the judge erred in holding that Mr Bolt's refusal to retract and apologise to Ms Popovic supported an award of aggravated damages. The ground seeks to attack findings of fact made by the learned trial judge. He presided at the trial, and he was in an excellent position to determine the facts. The cases clearly establish that a failure to apologise and express regret, depending on the circumstances, can constitute improper or unjustifiable conduct. The judge carefully considered the circumstances and was of the view that in the circumstances Mr Bolt's refusal to retract and apologise if he had inadvertently libelled her was a basis for aggravated damages. When one carefully analyses Mr Bolt's conduct, and in particular that the article communicated to the reasonable reader two and maybe four incorrect factual matters of some considerable importance, should have led Mr Bolt well before the end of the case to come to the conclusion that some of the important facts were wrong and that there was no basis for his very strong comments concerning Ms Popovic's behaviour. If there ever was a case for an apology and a retraction prior to verdict, this was it. In my view, the judge was clearly correct in taking it into account.

It was submitted that the judge was wrong in taking into account the evidence of Mr Bolt concerning the adjournment and the suggestion she was lying. His Honour carefully considered these matters, he was in a very good position to determine what effect it had upon the trial and upon Ms Popovic, and in my view the defendants have not established that he erred in his finding and conclusions. It was submitted that the judge erred in not setting out his reasons as to the attacks upon Ms Popovic's credit. Again, he was presiding at the trial and clearly attacks were made upon her credit from time to time. He was in an excellent position to make assessment as to what effect those attacks had upon the conduct of the trial and the effect upon Ms Popovic. He was of the opinion that the conduct was unjustifiable. I am not persuaded that he erred.

Ground 7(h) asserts that the amount awarded for compensatory damages was manifestly excessive by reason of the component wrongly allowed for aggravated damages. I view that as an attack upon the overall amount of damages. The court is not in a position to say what part of the damages is attributable to aggravated damages.

It was then submitted that the proprietor's failure to have effective editorial control over Mr Bolt cannot go to aggravate the hurt. The question arose as to whether it was a reckless publication. In my opinion, the failure to investigate a reckless publication or a failure to exercise editorial control may in the circumstances constitute unjustifiable conduct and may aggravate the damages, especially when no evidence was called by the proprietor as to the steps taken to consider a journalist's article. Further, it was submitted that there was no evidence that if Ms Popovic had been asked to respond she would have done so. Again, that is a matter which in the circumstances of the case may or may not constitute unjustifiable conduct. In my opinion, the defendants have failed to show that his Honour erred in taking that into account.

It is clear that his Honour allowed a larger sum for aggravated damages because of the post verdict conduct of the defendants and in particular Mr Bolt. This issue is also relevant to the award of exemplary damages. It is necessary to set out in some detail what occurred and his Honour's reasons.

The learned trial judge allowed aggravated damages because of the conduct of the defendants following the jury verdict. Ground 7(e) is in these terms -

"The learned trial judge erred in holding that statements made by the second appellant (Mr Bolt) following the jury verdict should and would be taken into account in his assessment of aggravated and exemplary damages."

It is necessary to deal with each head of damages separately.

After the jury had delivered its verdict and was discharged, the judge discussed what was to occur thereafter. Counsel for both parties moved for judgment. Counsel for Ms Popovic argued that there should be judgment for her notwithstanding the jury's verdict on the Lange defence. Present in court at the time were Mr Bolt and Mr Chris McLeod, the Editorial Development Manager of the proprietor. His Honour said that there could be no doubt that the jury's verdict in the case was not the end of the case and that the motions for judgment would have to be considered and determined at a later date. His Honour said as to the provisional effect of the jury's verdict -

"I should make it clear that the verdict of the jury in this case has not decided this case. There are questions of law still to be determined which will have the effect ultimately of deciding the case but as the matter currently stands the case has not been decided."

The jury's verdict was taken on 26 April 2002. After court had adjourned on that date, Mr Bolt was interviewed by various members of the media and an article appeared in the Herald Sun the following day. His Honour summarised the evidence of what was said by Mr Bolt in various forms of the media as follows -

"The evidence tendered by Mr Sher may be fairly characterised as a claim by Mr Bolt and the Herald Sun that they had been successful in this proceeding, notwithstanding an acknowledgment that the case was not finished. Among other comments quoted in the media, Mr Bolt said: `The plaintiff is still going to challenge the jury's verdict on this so it is not over but it is a victory for free speech. I would like to thank the jury for standing up for it. I would like to thank the Herald Sun for having the courage to run my material. I would like to thank the Herald Sun for defending my rights to say what I do. I would like to thank my legal team and my wife'. And again: `You can defame someone, you can bring their reputation into challenge, if you do it accurately and with the right motives. My aim here was to raise genuine questions and express my genuine opinion about a matter of public interest involving a powerful public official.' The Herald Sun's article is headed `Verdict Backs Article'. It quoted Mr Bolt as claiming a victory for free speech and asserting that the plaintiff is going to `challenge' the jury's verdict. He thanked a number of people for supporting him as if the litigation had been concluded. Mr Bolt's comment in the Herald Sun article were a disingenuous attempt to put a `favourable spin' from their point of view, upon this litigation before it was concluded. Saying that the plaintiff was ` ... going to challenge the jury's verdict ... ` is lubricous. It is misleading. The plaintiff had always argued that all of the defendants' defences were bad as a matter of law or failed due to insufficiency of evidence. To suggest that she had to `challenge' the jury's verdict was to misrepresent the true position. To use the word `victory' whether in relation to free speech or otherwise, was also, in the circumstances, a misrepresentation of the true position. In asserting that `you can defame someone ... if you do it accurately and with the right motives' Mr Bolt misrepresented the answers to the questions which the jury actually gave. Those answers meant that Mr Bolt's article was defamatory, false, not fair comment on a matter of public interest and not a faithful and accurate report of what occurred in Ms Popovic's court on 30 November 2000. His article about Ms Popovic was not accurate, whatever might have been his motives."

His Honour also then referred to the evidence given by Ms Popovic that she heard Mr Bolt's comments on the radio and television and that she was outraged and upset. She also deposed to seeing the Herald Sun article the following morning and the effect upon her.

His Honour concluded that the conduct of the defendants aggravated the hurt and distress of the plaintiff and that this aggravated the damages. As His Honour said -

"The defendants chose to make tendentious public statements concerning this case before it was finished, in the face of a clear warning given to them after the jury returned its verdict."

The question is whether the conduct of the proprietor and Mr Bolt was improper in the circumstances and in my opinion there was ample evidence for his Honour to conclude that the conduct by the defendants was improper and was unjustifiable in the circumstances.

His Honour's findings were matters of fact, and in my opinion were amply supported by evidence and were correct.

It was submitted by counsel for the defendants that Mr Bolt had prefaced his remarks with words to the effect that he emphasised that the plaintiff was still going to challenge the jury's verdict on this and further that he acknowledged that the case was not over. The article in the Herald Sun states that Ms Popovic had mounted a legal challenge to the verdict and that the final outcome was in the hands of the judge who had to rule on a point of law. It also stated that Mr Bolt acknowledged the case was not over yet but thanked the jury for standing up for free speech. The article is a long article. It is prominently headed - "Verdict Backs Article". It also summarises the claims made by Ms Popovic and Mr Bolt is reported as saying -

"Mr Bolt has said that as a person in a very powerful position, scrutiny of the courts was a cross Ms Popovic had to bear, although he denied he had ever called for her resignation. Last night Mr Bolt maintained this defence."

In considering this question, it is necessary to consider the article as a whole. Whilst it does state that the trial judge had to rule on the point of law, the thrust of the case was that the defendants had been successful and that the jury's verdict backed the article. In my opinion, the reasonable reader could be left in no doubt as to the thrust of the article, namely, that the defendants had been successful and in so doing and in so misrepresenting the correct position, the article clearly aggravated the hurt to Ms Popovic who gave evidence to that effect. The statements made by Mr Bolt on 26 April show that Mr Bolt was claiming a victory for free speech. His aim was "to raise genuine questions, express my genuine opinion about a matter of public interest involving a powerful public official". The reports surrounding the statements make it clear that the judge discharged the jury and adjourned the matter for later consideration. Mr Bolt varied his observations. He went on to say, as reported on ABC News -

"I mean I expressed an honest opinion regarding an important matter involving a powerful public official. I'm glad the jury has said that I have a right to do that."

Whether or not the behaviour of Mr Bolt and the proprietor was misconduct justifying aggravated damages was a question of fact for the learned trial judge. In my opinion, there was ample evidence to support his conclusion and in my view it has not been demonstrated that he erred in allowing aggravated damages for this conduct.

The fact that the misconduct occurred after the verdict does not preclude the award of aggravated damages.

2. Exemplary Damages

The learned trial judge awarded an amount of $25,000 for exemplary damages because of the statements of Mr Bolt after the verdict on 26 and 27 April and the article which appeared in the Herald Sun on 27 April. Exemplary damages are awarded in a defamation case to punish the defendant for outrageous conduct during the commission of the tort or thereafter. General damages including aggravated damages in a defamation claim are compensation for the wrong done to the plaintiff. Exemplary damages are punishment. Their purpose is to punish the defendant for his outrageous conduct concerning the plaintiff. The principles concerning exemplary damages in a libel case were discussed by the High Court in Uren v. John Fairfax and Sons Pty. Ltd.[202] Windeyer, J.[203] summarised the law. He said -

"What we should welcome in the decision in Rookes v. Barnard is its emphasis that exemplary damages must always be based upon something more substantial than a jury's mere disapproval of the conduct of a defendant." "The decision makes clear too ... that all matters that may aggravate compensatory damages do not of themselves justify the addition or inclusion of a further purely punitive element." "It is however not enough ... to justify an award of exemplary damages that the tort should be of a kind for which such damages are permissible. The wrong must be one of a kind for which exemplary damages might be given." " ... There must be evidence of some positive misconduct to justify a verdict for exemplary damages. There must be evidence on which the jury could find that there was, at least, a `conscious wrong doing in a contumelious disregard of another's rights'." "Whatever words be used there must be evidence to support them."

The High Court in Lamb v. Cotogno quoted with approval the definition of exemplary damages contained in Mayne and McGregor on Damages[204] -

"Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights."

In Caltex v. XL Petroleum (N.S.W.) Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd,[205] Brennan, J.[206] summarised the law as follows -

"As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment and the two categories. In Merest v. Harvey substantial exemplary damages were awarded for trespass of a high handed kind which occasioned minimal damage, Gibbs, C.J. saying: `I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?' The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v. Cassell and Co. `to teach a wrong doer that tort does not pay'." Quoted with approval by the High Court in Lamb v. Cotogono.[207]

The principles have recently been summarised by the High Court in Gray v. Motor Accident Commission.[208] The court emphasised that exemplary damages are rarely awarded, that an award is concerned to punish the wrong doer and deter others from like conduct and the principal focus is upon the wrong doer and not upon the party who was wronged. The court emphasised that the remedy is exceptional in the sense that it arises chiefly if not exclusively in cases of conscious wrong doing in contumelious disregard of the plaintiff's rights.

The evidence must show some positive conduct which merits punishment to justify an award of exemplary damages.

The grounds of appeal raise three questions for determination.

(i) Could exemplary damages be awarded for conduct occurring after the commission of the tort and post the jury's verdict? (ii) Did the learned trial judge err in making findings that the defendants had claimed they had been successful in the trial and that the heading of the article was misleading?
(iii) Did the learned trial judge err in awarding exemplary damages for the post verdict conduct?

Exemplary damages were awarded for the defendants' conduct after the jury had delivered its verdict. The defendants' conduct was confined to the period 26 and 27 April 2002. This was well after the commission of the tort. It is usually the reprehensible conduct surrounding the commission of the tort which attracts an award of exemplary damages. For example, in Lamb v. Cotogno, supra, a driver of a motor vehicle deliberately caused injuries to the plaintiff.

The rule stated by Lord Esher, M.R. in Praed v. Graham, supra, that the jury in assessing damages is entitled to look at the whole conduct of the defendant applies also to an assessment of exemplary damages. No reason has been advanced to restrict it to compensatory damages. On the contrary, the cases support the proposition that it applies in respect to the assessment of all damages. See Broome v. Cassell & Co.[209] and David Syme v. Mather.[210]

The High Court in the Herald and Weekly Times Ltd. v. McGregor[211] held that recklessness could amount to conduct meriting an award of exemplary damages. The majority held that a defendant could be liable for exemplary damages by reason of filing an unjustified plea of justification.[212] The dissenting judges made it quite clear that exemplary damages could be awarded in relation to conduct post the commission of the defamatory publication.

In my opinion, an award of exemplary damages is not confined to the conduct surrounding the commission of the tort and exemplary damages may be awarded for reprehensible conduct by the defendant subsequent to the publication.

The post verdict conduct complained of comprised statements made by Mr Bolt to the media which were subsequently broadcast by the media, and an article which appeared in the Herald-Sun on 27 April 2002. The facts are not in dispute. This is an appeal from a judge sitting alone. Accordingly, the court is in the same position as the learned trial judge to evaluate the evidence and draw inferences from it. See Warren v. Coombes [213]

There is no suggestion that the learned trial judge misdirected himself on the law. He referred to the authorities. His Honour found that Mr Bolt misrepresented the true situation when speaking to the media, and that the article including the headline in the Herald-Sun "were a disingenuous attempt to put a favourable spin from their point of view, upon this litigation before it was concluded". The statements made were misleading, in that it is said Ms Popovic was to challenge the jury's verdict. His Honour was of the view that that misrepresented the true position. Further, in asserting as Mr Bolt did, "You can defame someone ... if you do it accurately and with the right motives", Mr Bolt misrepresented the answers to the questions which the jury actually gave.

It was submitted on behalf of the defendants that the findings made by the learned trial judge were not supported by the evidence and were not open to him.

What Mr Bolt said on the afternoon of 26 April 2002 was broadcast and transmitted by the ABC Television, ABC Radio, and commercial Radio Station 3AW. What Mr Bolt said varied from media outlet to media outlet.

He was quoted on ABC Television news as follows -

"This is a victory for free speech. My aim here was to raise genuine questions, express my genuine opinion about a matter of public interest involving a powerful public official."

On ABC Radio News he is quoted as saying -

"This is a victory for free speech and I want to thank the jury for standing up for free speech. I mean, I expressed an honest opinion regarding an important matter involving a powerful public official and I am glad the jury has said I have a right to do that."

On 27 April 2002, on the ABC AM Saturday Programme, Mr Bolt was quoted saying -

"The plaintiff is still going to challenge the jury's verdict on this so it is not over but it is a victory for free speech. I would like to thank the jury for standing up for it. I would like to thank the Herald-Sun for having the courage to run my material. I would like to thank the Herald-Sun for defending my rights to say what I do. I would like to thank my legal team and my wife."

Later in the programme he said -

"You can defame someone, you can bring their reputation into challenge, if you do it accurately and with the right motives. My aim here was to raise genuine questions and express my genuine opinion about a matter of public interest involving a powerful public official."

Radio Station 3AW quoted Mr Bolt, saying -

"My aim here was to raise genuine questions expressed by genuine opinion about a matter of public interest involving a powerful public official."

The comments made by Mr Bolt were all made on the afternoon after the jury's verdict had been given. The comments were part of a broadcast which clearly told viewers and listeners that the case had not finished.

The article which appeared in the Herald-Sun on 27 April 2002 had the following headline printed in bold type -

"VERDICT BACKS ARTICLE"

The article commenced with the following statement -

"HERALD Sun columnist Andrew Bolt last night welcomed a favourable jury verdict in a defamation case as a victory for free speech. A six-member jury yesterday found in favour of the Herald Sun and Mr Bolt in the libel case brought by Deputy Chief Magistrate Jelena Popovic in the Supreme Court. Late yesterday the jury found the Herald Sun had acted reasonably in publishing on December 13 2000 an Andrew Bolt opinion article critical of Ms Popovic's conduct in a court case. Ms Popovic has mounted a legal challenge to the jury's verdict, and the final outcome of the case is in the hands of Justice Bernard Bongiorno who has to rule on a point of law to uphold the jury's finding. Mr Bolt last night acknowledged the case was not over yet, but thanked the jury for standing up for free speech. `I must emphasise that the plaintiff is still going to challenge the jury's verdict on this, but it is a victory for free speech', Mr Bolt said."

The article continued quoting Mr Bolt thanking everybody for supporting him and summarised the jury's verdict. It again emphasised that the trial judge was to rule on the challenge next week.

In my opinion, on a fair reading of the article and also on a proper and fair appraisal of what Mr Bolt said, the learned trial judge was correct in concluding that the proprietor and Mr Bolt misrepresented the true position. Their remarks were misleading. Whilst it is accepted that the article stated that the proceeding had not been finalised, in my view the article was not a fair and accurate report of the proceeding, and had a real tendency to mislead the reader into thinking that the defendants had been successful in the proceeding. Indeed, Mr Bolt's statements had the hallmark of a victory speech when it could not be said that the defendants were successful in the proceeding.

In my opinion, the learned trial judge was correct in characterising what had been said by the defendants as misleading when they said that they had been successful in the proceeding. On no view, in my opinion, could the headline "Verdict backs article" be considered a fair and accurate report of the outcome of the proceeding. The ground attacking the findings made by the judge fails.

That brings me to the final question, namely, was the learned trial judge wrong in awarding exemplary damages for the post verdict conduct? Was the post verdict conduct of the defendants a contumelious disregard of the rights of Ms Popovic? Were their actions contemptuous or humiliating and showing a lack of concern for the rights of Ms Popovic?

What Mr Bolt said, which was repeated through the medium of radio and television, was accompanied by information which would leave the listener and viewer with the clear impression that the case had not been finalised, although the listener and viewer may have concluded that Mr Bolt was claiming victory. The article, although misleading in its headline and the first few paragraphs, nevertheless stated that the proceeding had not ended and that there were questions that had to be decided by the trial judge. The bias demonstrated by both defendants in their reporting of the outcome to that date was manifest and represented an over-optimistic view of what had occurred. However, it is not difficult to understand that the defendants thought because the jury had found that their conduct in publication was reasonable that they had a good chance of success in the trial. The judge warned everybody in court that the proceeding had not finished. However, in my view, the defendants' statements were the product of over exuberance and a belief that they would succeed. In my opinion, the conduct did not amount to a contumelious disregard of the rights of the plaintiff, Ms Popovic, and further, mature reflection by a viewer, listener and reader of what was said or written would have led them to the conclusion that the case had not been finalised. Although the defendants' conduct is to be regretted, I do not think that it amounts to such reprehensible conduct which warrants an award of exemplary damages.

In my opinion, the learned trial judge should not have awarded exemplary damages for the post verdict conduct of the defendants and in my opinion his award should be set aside.

Cross-Appeal

Ms Popovic has cross-appealed in respect to exemplary damages. She sought exemplary damages in respect of the defendants' conduct prior to verdict. The learned trial judge refused to award exemplary damages. It is alleged that the learned trial judge erred in failing to award exemplary damages other than for the post jury verdict conduct of the defendants. At trial counsel for Ms Popovic submitted that the article misrepresented the nature of the hearing before Ms Popovic on 30 November 2000 being a contested hearing of the charges. In fact the evidence revealed that she was dealing with a procedural matter. It was argued that in so doing the defendants acted in contumelious disregard of her rights. His Honour held that that was not a basis for exemplary damages. He said that the false presentation was the very substance of the libel of which the defendants had been found guilty. He said that had they not misrepresented what the plaintiff was doing there would be no libel. He concluded that a claim for exemplary damages on that basis could not be made out. Mr Sher also submitted that the proprietor's failure to call any evidence about any procedures or protocols which it might have had in place to ensure that its journalists acted reasonably showed that they failed to act reasonably in the circumstances. He emphasised that the Australian Press Council principles were contravened by the failure to have in place such procedures or protocols. His Honour found that that was no basis for an award of exemplary damages.

I do not read what his Honour said as being a denial that such circumstances could not amount to reprehensible conduct justifying an award of exemplary damages. In my opinion, the learned trial judge was saying that those matters did not justify an award for exemplary damages.

I construe that what the learned trial judge did was to make a finding that both these matters, singly or cumulatively, did not form a basis for exemplary damages. As the authorities clearly establish, exemplary damages should be the exception rather than the rule, and should only be awarded if the publisher's conduct is of a reprehensible kind and the amount awarded by way of compensatory damages is insufficient to adequately bring home to the defendant the outrageous conduct involved. Mr Sher not only relied upon the fact that there were a number of matters misrepresented in the article and that there was no evidence as to the protocols put in place by the proprietor to ensure journalists acted properly, but also relied upon the contents of the article itself. He drew attention to the allegations of bullying and the demands for her instant dismissal from office. He submitted they were grave allegations, extremely hurtful and paid no regard to the plaintiff's feelings, reputation or history of public service. He also relied upon the fact that Mr Bolt knew nothing of the plaintiff's background, made no enquiries and apparently did not care. It was submitted all this showed a contumelious disregard for the plaintiff's rights. Mr Sher emphasised that the proprietor had admitted circulation of approximately 565,000 persons and a readership of in excess of one million. The revenue from sales was put as being in excess of $171M per year. He submitted that a substantial order for exemplary damages was necessary to send a clear message to the defendants that their conduct was unacceptable.

Some of the matters relied upon by Mr Sher were taken into account in aggravating the general damages. In addition, other matters relied upon by Mr Sher would have been taken into account in determining the amount for general damages. As stated above, the authorities establish that the remedy is exceptional and in most cases can only be justified if there is conscious wrong doing in contumelious disregard of the plaintiff's rights.

In the end it is a value judgment; should the defendants be punished for their conduct, was that conduct humiliating, malicious, vindictive, grossly careless and demonstrating a contemptuous attitude to the rights of Ms Popovic?

The learned trial judge had the advantage of observing the case as it progressed, seeing and hearing the witnesses and making an assessment of the conduct of the parties in the context of all the facts. In the end he had to make a judgment as to whether or not the conduct amounted to a contumelious disregard of Ms Popovic's rights and whether an award of exemplary damages was appropriate in the circumstances to bring home to the wrong-doer that its alleged reprehensible behaviour was not acceptable. In the end it was a matter for the judge who had to make a value judgment and whilst some may have different views, it could not be said that his Honour erred in reaching the conclusion that the circumstances did not warrant an award of exemplary damages. I am not persuaded that his Honour was wrong, and indeed, in my opinion, on the material relied upon by counsel for Ms Popovic, the judge was correct in concluding that the matters relied upon singularly or cumulatively did not justify an award punishing the defendants.

Accordingly, the cross-appeal of Ms Popovic fails and should be dismissed.

Plaintiff's Application to Lead Fresh Evidence

By summons, filed 9 May 2003, Ms Popovic made application to introduce fresh evidence. In support of the application was an affidavit sworn by her on 6 May 2003. She stated that the proprietor and Mr Bolt published an article in the Herald Sun newspaper on 28 October 2002. The article criticises Ms Popovic. She states that she was concerned and upset by statements made in the article concerning her. She concluded from reading it that it was a further unjustified attack upon her as a magistrate. She observed that the italicised word "wonderful" appeared to be a sarcastic, sneering or contemptuous use of the word. She was of the view that the article was repeating the defamatory sting of the earlier article, namely, that she was not fit to be a magistrate, and she was very hurt by the article. Further, it is suggested that this article again misrepresented the outcome of the trial. As Ms Popovic has failed in her cross-appeal, there is no matter before the court which can be the subject of this additional evidence. If the court had reached the view that there had to be a re-assessment of the damages, the application may have been relevant to that exercise. However, the court is not re-assessing any damages. If in fact the defendants have defamed Ms Popovic, she has her rights, which she can pursue. The application to call further evidence should be dismissed.

Conclusion

The defendants have succeeded on their appeal in respect of the award of exemplary damages but failed in respect of their other grounds. The award of exemplary damages must be set aside, otherwise the judgment should be affirmed. The cross-appeal and the summons filed by the plaintiff seeking leave to adduce fresh evidence should be dismissed.

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WARREN, A.J.A.:

I have had the benefit of reading the reasons for judgment of Gillard, A.J.A. in draft form and, subject to two matters upon which I wish to make my own remarks, I agree with those reasons.

The two subjects to which I address my remarks are the moving by the plaintiff below for judgment non obstante veredicto and the application of the defence of qualified privilege in relation to members of the judiciary and judicial officers.

Reservation to move for judgment

The starting point in this area are the applicable rules of court.[214] Order 1.14 addresses the exercise of power under the rules:

"1.14 Exercise of power (1) In exercising any power under these Rules the Court - (a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined; (b) may give any direction or impose any term or condition it thinks fit. (2) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person who has a sufficient interest."

Order 47.02 is concerned with mode of trial, in particular, the rule addresses trial by jury:

"47.02 Mode of trial (1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that he desires to have the proceeding so tried, and the proper jury fees are paid. (2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders. (3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury. (4) Trial with a jury shall be with a jury of six."

Order 47.04 deals with management and disposition of separate questions in a proceeding:

"47.04 Separate trial of question The Court may order that - (a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated; (b) different questions be tried at different times or places or by different modes of trial."

Order 49.01(1) deals further with trial management and disposition:

"49.01 Order of evidence and addresses (1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial."

Finally, for present purposes, Order 59.01 is concerned with the granting of relief in a proceeding:

"59.01 General relief The Court may, at any stage of a proceeding, on the application of any party, give such judgment or make such order as the case requires notwithstanding that the judgment or order had not been sought in the originating process or other document of the party in the proceeding."

These rules set the procedural parameters for the conduct of trials, together with the remaining rules. Furthermore, in modern times the demands and exigencies of litigation in superior courts have established an expectation, if not an imperative, that trial judges will utilise the rules of court to facilitate the proper and expeditious management of trials. The rules referred to are significant in the consideration of the authorities in the present case. The submissions for the appellants were based on the concepts of constitutional right and judicial power. In essence, it was submitted that once a trial before a judge and jury commences there is a constitutional right enjoyed by the litigants to have their proceeding determined by the jury verdict and that there is no power in the trial judge to interfere, by way of setting aside or substituting, that verdict. Conversely, it was submitted for the respondent that the rules of court enable a trial judge to manage a trial, including substituting a different outcome to the verdict delivered by a jury, and which approach the trial judge below adopted.

I turn then to consider the authorities. In Edmond Weil Incorporated v Russell[215] the appellant brought an action against the respondent to recover moneys. The trial proceeded before a jury. A question was submitted by the trial judge to the jury concerning the entitlement of the respondent to charge the appellant for certain goods. The jury answered "Yes" and, by consent, the jury was discharged and it was agreed that the trial judge would enter the verdict. The trial judge held that there was no evidence to support the finding of the jury and directed that a verdict should be entered for the appellant in a specified sum. On appeal to the Full Court of the Supreme Court of New South Wales, the court held that there was evidence to support the finding of the jury and reduced the amount awarded to the appellant who then appealed to the High Court. On the latter appeal the respondent did not challenge the authority of the trial judge to enter a verdict for the appellant, notwithstanding the finding of the jury, if there was no evidence to support that finding. Starke J articulated the critical question as: whether there was any evidence to support that finding? Starke J considered the evidence and held that there was no evidence fit to be submitted to the jury on the transaction. As a result, Starke J considered that the appeal should be allowed and that the verdict entered by the trial judge be restored. His Honour did not consider the power of the trial judge to act as he did.

In a joint judgment, Dixon and Evatt JJ., observed that the trial judge was of the opinion that where a judge leaves any question to a jury the judge has control such that the judge can direct a verdict if of the opinion that, in law, it is necessary. Dixon and Evatt JJ. considered the view of the trial judge to be too wide and held first, that where a jury is discharged after answering questions the parties ought be taken tacitly to agree that the court will enter that verdict upon the answers and the jury are taken to authorise that verdict.[216] Their Honours considered, secondly, that when a judge proposes that course the parties must express any dissent.[217] Thirdly, they considered that in order for a judge to have authority to set aside findings of a jury and enter a verdict inconsistent with those findings the positive consent of the parties must have been obtained.[218]

Dixon and Evatt JJ. observed that the course taken by the trial judge ceased to have importance on the appeal to the Full Court. Their Honours did not agree with the conclusion of the Full Court below on the basis of analysis of the evidence. Hence, the views of Dixon and Evatt JJ. as to the power of a judge to enter a verdict contrary to the findings of a jury were obiter. In any event, Dixon and Evatt JJ. held that the appeal should be allowed but, due to an error in calculations, a verdict be entered for the appellant in a different sum, in effect, ordering that the verdict entered by the trial judge stand.

Five years later, the High Court revisited the topic of the power of the trial judge to enter a judgment inconsistent with verdict in Phillips v Ellinson Bros. Pty Ltd.[219] There the plaintiff claimed under a contract of employment whereby he alleged he was to be remunerated by a fixed share in the profits of the employer company. The plaintiff sued for a liquidated sum pursuant to the contract or alternatively, on a quantum meruit. The claim was tried before a jury in the Supreme Court of Victoria. The case for the employer company was that the plaintiff fulfilled part of the employment contract but then absented himself and did not attend his employment. The trial judge asked six specific questions of the jury, including a fifth question: "5.(a) Did the plaintiff and the defendant impliedly agree that this contract was to be determined? (b) If so, when did this happen?" The employer was granted leave by the judge to move, if necessary, if the jury answered the fifth question in the plaintiff's favour, that no judgment be entered in accordance with the verdict. The jury entered a general verdict for a liquidated sum without answering the specific questions. Both parties moved for judgment and eventually judgment was entered for the defendant. The plaintiff appealed.

Rich J. referred to Order 36, Rule 32 of the 1938 Rules and held that a judge did not have power to set aside the verdict of the jury and that the only course open to the judge was to enter judgment. He cited Driver v. The War Service Homes Commissioner [No. 1][220] and held,[221] citing Baird v. Magripils,[222] that it appeared that only an appellate court may give the appropriate judgment notwithstanding the jury's verdict. Rich J held[223] that the Rules of the Supreme Court of Victoria, as they then stood, did not permit a trial judge to disregard the finding of a jury except where there was consent. His Honour held:[224]

"The only rule of the Rules of the Supreme Court which appears to be relevant is rule 32 of Order XXXVI., which provides that a judge shall at or after trial give judgment for any party; or leave any party to move for judgment. If this rule could be construed as giving power to a judge to give any judgment he thought proper without regard to the jury's verdict the right of a party to have issues of fact tried by a jury would be valueless. A judge could then say: `I disagree with the jury's conclusion on the facts', and substitute his own view of the facts for that of the jury. It is well-settled law that where there is evidence to support a verdict this verdict cannot be disregarded, even if the trial judge were strongly against the conclusion at which the jury arrived. Rule 32 is a procedural rule and, in my opinion, does not authorize a judge to substitute his own conclusions on the facts for those of a jury and give judgment accordingly. One of the objects of this rule was to obviate the necessity of moving for judgment. A trial judge cannot ignore the verdict of the jury unless there has been a reservation of leave whereby the unsuccessful party can move for judgment, notwithstanding the jury's verdict."

Rich, J. continued[225] and adopted the approach in Power v. Dublin United Tramways Co.[226] to the effect that if a judge leaves questions to a jury in order to avoid the expense of a new trial in the event of an appeal, the judge is bound to accept the jury's findings. Rich, J. held that this was the position unless leave was reserved to the unsuccessful party. McTiernan, J.[227] in separate reasons followed Edmond Weil Inc. v. Russell[228] and agreed with Rich, J. that the judgment for the defendant should be set aside and judgment entered for the plaintiff.

Starke and Williams, JJ. adopted the opposite position. Starke, J. did not consider the matter of the power of the trial judge to enter a judgment contrary to the jury's verdict, rather, he determined[229] it was open to the trial judge to act as he did because the plaintiffs made no case to go to the jury based on legal principles. Williams, J. considered all of the rules and the authorities[230] and ultimately concluded that a judge cannot give judgment for the defendant where the jury has found for the plaintiff. However, his Honour observed that when the application was made by counsel for the defendant to reserve leave that no judgment be entered if the jury made a finding for the plaintiff under a particular question, there was no objection by counsel for the plaintiff.[231] Thus, Williams, J. concluded[232] that there was implied consent of the parties to the reserving of leave, citing Edmond Weil. Ultimately, the court in Phillips v Ellinson being equally divided, the decision below was affirmed.

Later, in Thompson v Amos[233] the High Court was concerned with an action for libel where the trial judge did not take a verdict but discharged the jury and gave judgment for the defendants. Latham, C.J., with whom Webb, J. agreed, dismissed the appeal on legal issues concerned with privilege as did Dixon, J. However, by way of obiter, Dixon, J.[234] canvassed the subject of the power of a trial judge to enter judgment for a defendant on the ground that there was no case to go to the jury without directing the jury to find for the defendant and obtaining such a verdict. The report of the judgment noted:[235]

"It might appear to be a formality, and, his Honour believed, could seldom or ever be more than a formality. But there was a constitutional principle behind it, because a jury had the power, although it would perhaps be considered perverse on their part to exercise it, to disregard the judge's direction and refuse to find for the defendant at that or, indeed, at any subsequent stage. For, ultimately, as well in civil trials as in criminal trials, the juries were responsible for the verdicts which they gave. The question had been considered in the High Court during the argument of several cases, but, curiously enough, there was not any direct or explicit decision of the Court."

Thus far, consideration of the authorities relied upon by the appellants in support of their assertion of a constitutional right to maintain the verdict of the jury reveals that the authorities do not state in unequivocal terms such a right. At most there appears to be obiter, albeit very powerful and persuasive obiter, that a trial judge should maintain the verdict of a jury. Underlying the authorities where preservation of the jury verdict is contemplated there is an assumption that when a question is put to a jury and answered the question was properly put to the jury in the first place.[236] After analysis of the authorities there is little guidance to the modern trial judge as to the correct approach beyond that provided in the Rules of Court, save two authorities at appellate level in this State where divergent approaches were taken. I turn now to those two authorities.

In Prestinenzi v. Steel Tank and Pipe Consolidated Pty Ltd[237] the plaintiff brought a personal injuries claim seeking damages against the defendant. The trial proceeded before a jury. The trial judge required the jury to answer four questions: first, as to whether any negligence of the defendant caused the plaintiff's injuries and the jury answered "yes"; secondly, the amount of damages assessed and the jury answered by way of a specified sum; thirdly, was there contributory negligence by the plaintiff and answered "yes"; fourthly, the assessment of the extent of contributory negligence and answered in the amount of 25 per cent. After the jury answered the questions the jury was discharged.

The plaintiff moved for judgment for the total amount of the jury's verdict notwithstanding the answers to the third and fourth questions. The trial judge reserved his decision and later entered judgment for the plaintiff disregarding the jury's finding as to contributory negligence.

The defendant appealed, partly on the ground that the trial judge should not have acted as he did because he had not given leave to move non obstante veredicto but had entered judgment non obstante. Kaye, J. considered that the soundness of the decision of the trial judge turned upon:

" ... what powers a judge presiding over a jury trial could have exercised at common law and whether, by the introduction of the judicature system, a judge became endowed with any additional or different powers."[238]

Kaye, J. observed[239] that, at common law, judgment on a jury's findings of fact in favour of the party who had secured a verdict was directed on motion by the court in banc. His Honour noted the types of circumstances where a decision arose for the trial judge as to whether the plaintiff ought be non-suited e.g. where there was insufficient evidence to support the jury's findings. However, Kaye, J. stated[240] that a defendant was not entitled to move the court in banc for judgment notwithstanding the jury's verdict without leave reserved by the trial judge for that purpose, citing Minchin v. Clement.[241] Kaye, J. held:[242]

"If leave were not reserved to him the remedy for a defendant against a jury's verdict without any or any sufficient evidence in support of it was to seek an order for a new trial. He could not move for judgment contrary to the jury's verdict because of the plaintiff's right at common law to have the jury determine the facts upon which his claim depended. By reserving to the unsuccessful party leave to move for judgment notwithstanding the jury's verdict, it was implied that the other party had consented to waive his right and to disregard the jury's finding of fact."

Kaye, J. described[243] the change in judicial power effected by the Judicature Act 1873 and the conflicting views in the authorities[244] thereafter as to the power of a trial judge to enter judgment contrary to the jury's verdict.

Kaye, J. emphasised[245] that the English Rules specifically empowered a trial judge to direct judgment "as he shall think right".[246] His Honour stated that under the English Rules, therefore, a judge was empowered to direct judgment to be entered as the judge thinks fit and which may be contrary to the verdict of the jury. Kaye, J. observed[247] that, by contrast, the Victorian Rules of Court did not enable a trial judge to direct judgment as the judge thinks fit:

"In this connection it is significant that, unlike O.36, r.39 of the English Rules 1892, the Victorian rule did not enable a trial judge to direct judgment to be entered `as he shall think right'. Moreover, a requirement that the trial judge should direct judgment in accordance with the jury's verdict was inherent in O.40, r.4 of the Victorian Rules which provided - `Where at or after trial by a Judge either with or without a jury the Judge has directed that any judgment be entered, any party may apply to set aside such judgment, and to enter any other judgment, upon the ground that upon the finding as entered the judgment so directed is wrong'."

Kaye, J. reviewed the Australian and Victorian authorities,[248] in particular at the outset, the High Court judgment in Edmond Weil Inc. v. Russell[249] and the Victorian Full Court judgment in Humphrey v. Collier.[250]

Kaye, J. then said:[251]

"From the foregoing review, I am unable to conclude that there is authority recognizing power in a trial judge of this Court, without having reserved leave, to direct judgment for a defendant contrary to the jury's verdict by way of answer to a specific question on the ground that there is no evidence to support it. The relevant rules from which a trial judge derives power to give judgment are 0. 36, r. 32 and 0. 40, r. 5. I have noted that, unlike its English counterpart, 0. 36, r. 32 does not enable the trial judge to direct judgment to be entered as he thinks right: by 0. 40, r.5 he is required upon a motion for judgment to draw all inferences of fact not inconsistent with the jury's finding. It is implicit in the latter rule that the judgment entered must give effect to the jury's finding. In this connection it is significant that by 0. 58, r. 1 power is vested in the Full Court to set aside a verdict, and it will do so if there was no evidence upon which the jury could have properly so found. Circumstances enabling the trial Judge to give judgment in disregard of the jury's verdict exist when the parties expressly or by implication consent to him doing so. Such consent is implied from the trial Judge reserving to a party liberty to move for judgment non obstante veredicto. Changes in Victoria brought about by the Judicature legislation and the Rules thereunder did not affect the right of the parties to have the jury's verdict once they have been empanelled, save that the plaintiff lost his right to a direction for the entry of non suit. By the Victorian Statute and Rules, although he was required to give judgment, the trial Judge did not acquire any increased power in relation to the jury's verdict."

On that basis, therefore, Kaye, J. concluded[252] in Prestinenzi that where a trial judge considers that there is no evidence on which the jury could find contributory negligence against the plaintiff, the better practice is for the judge to do one of two things: "Either to reserve leave to move non obstante veredicto and then take the jury's verdict, or to direct the jury to answer the question in favour of the plaintiff."

McGarvie, J. in Prestinenzi adopted a similar approach to Kaye, J. His Honour held that it was not open to the trial judge in that case to order the entry of a judgment that was inconsistent with the jury's findings because leave to move for judgment on that basis had not been reserved to the plaintiff before verdict.[253]

McGarvie, J. said:[254]

"In this Court, after a trial judge has accepted a general or special verdict, or the jury has answered questions submitted to it and been discharged, there is no power in the judge to give judgment inconsistent with the verdict or findings of the jury. No power remains to give judgment directly instead of directing and obtaining a verdict and giving judgment, because the jury has finally given its verdict or finally authorized only the entry of a verdict consistent with its findings: Edmond Weil Incorporated v. Russell, supra, at pp. 45-7; McDonnell and East Ltd. v. McGregor [1936] HCA 28; (1936), 56 C.L.R. 50, at pp. 56-7. An English rule providing that the trial judge shall "direct judgment to be entered as he shall think right" has been held to give the judge power to direct entry of a judgment which is inconsistent with the verdict of a jury: Skeate v. Slaters Ltd., [1914] 2 K.B. 429, at pp. 438-9. In Victoria, 0.36, r.32 providing that the judge shall "give judgment for any party" does not confer such a power: Phillips v. Ellinson Bros. Pty. Ltd., supra, at p. 230. The trial Judge may, however, by the consent of the parties, disregard the jury's verdict or findings and give a contrary judgment: Edmond Weil Incorporated v. Russell, supra, at p 46; Phillips v. Ellinson Bros. Pty. Ltd., supra, at pp. 229 and 239. By a practice which corresponds with that at common law, if the trial judge before verdict and without dissent, hears an application by the defendant for leave to move for judgment notwithstanding verdict, or himself raises and considers the grant of such leave, the parties are treated as impliedly consenting to that course and are bound if the leave is given: Edmond Weil Incorporated v. Russell, supra, at p. 46; Phillips v. Ellinson Bros. Pty. Ltd., supra, at pp. 229-32."

McGarvie, J. observed[255] that the common case when leave was reserved to a defendant to move for judgment notwithstanding verdict occurred when, upon application by the defendant, at the close of the evidence, the trial judge considered that the plaintiff has not made out a case on the evidence, or doubted it, but desired to give the plaintiff the opportunity of a verdict and arguing on appeal that a case was made out. The purpose, it was observed, of reserving such leave is to give the plaintiffs the benefit of a verdict, if necessary, on any subsequent appeal: "Then if the plaintiff succeeds on appeal no new trial is necessary."[256] McGarvie, J. considered the same principle applied where a defendant failed on the evidence to satisfy an onus that party carried.[257]

Young, C.J. expressed a similar view to that of Kaye and McGarvie, JJ. in Prestinenzi and held that without consent there is no power to order the entry of a judgment inconsistent with the findings of the jury.[258]

Fourteen years after Prestinenzi, on its face, a different approach was taken by the appeal division of this court in Altmann v. Dunning.[259] At first instance in a personal injuries case the trial commenced before a judge and jury. The trial judge on application by the plaintiff, opposed by the defendants, ordered that the jury be discharged without verdict and that the trial proceed by judge alone. However, the plaintiff's application for discharge without verdict was preceded by an application by the defendants that liability be determined first and then for damages to be assessed by the jury. This application by the defendants was refused. The trial judge acceded to the plaintiff's application. The trial judge continued to hear argument and acted upon the basis of the evidence given both before the judge and before the jury. The trial judge proceeded to determine liability and assessed damages in favour of the plaintiff. On appeal, the appellant/defendant submitted, inter alia, that the trial judge did not have power to discharge the jury without verdict nor to continue to hear and decide the matter sitting as a judge alone. Hedigan, J., with whom Fullagar and Marks, JJ. agreed, observed[260] that part of the submission for the appellant was that the trial judge lacked power under Order 47.02(3) or at common law to discharge the jury once it was empanelled, save by consent of the parties or evident necessity. There were other arguments that are not relevant for present purposes.

Order 47.02 was in the same form as present. Hedigan, J. after specifically reciting the provision explored the broad history of the right to a jury in the context of the Supreme Court Rules from time to time.[261] His Honour then observed:[262]

"In England and in Victoria, the Rules of Court created subsequent to the respective Judicature Acts established procedural requirements, the failure to follow which automatically produced a trial by judge alone. Even the Common Law Procedure Act 1854 of the U.K. modified any assumed right to a jury by making it unavailable in actions on an account. Therefore it may be more correct to say that the parties to a civil proceeding have long had a right to jury, as modified by Rules of Court. The first rules concerning modes of trial in Victoria are to be found in the Second Schedule to the 1883 Judicature Act (47 Vict. 761). The following year, there were established the Rules of the Supreme Court in civil proceedings, the genesis of the rules of this court which prevailed, with modifications, until their substantial re-formulation in 1986. An examination of the rules, including their amendments in 1906 and 1930, is not necessary for the present purpose. Like the English Rules, which doubtless were their model, their form was such, and so remained, that the normal mode of trial was a trial by a judge without a jury. However, a right was conferred on the parties to obtain a jury if certain procedures were followed in certain circumstances. The observations of Lopes L.J. in Jenkins v. Bushby [1891] 1 Ch. 484 with respect to the English Rules are apposite to the Victorian Rules: It appears to me that the Rules from 2-7 of Order XXXVI form a code of regulations as to the mode of trial. The effect of them is this. They make a trial by a judge without a jury the normal mode of trial. They do not take away the right of trial by jury where it existed before or give it where it did not previously exist. That appears to me to be the general effect of those rules. They do, however, make this change, that where it is desired the trial should be by a judge with a jury, this mode of trial must be asked for. That is a great and important change, because previous to the Judicature Act all Common Law actions were tried with a jury and they could not be tried by a judge without a jury unless the parties consented."

Hedigan, J. referred to Order 36, Rule 5 of the previous rules[263] and observed[264] that the rule was construed in Victoria as "empowering the judge to discharge an empanelled jury". Hedigan, J. followed Wilson v. Burridge[265] where Sholl, J. specifically rejected the proposition that Order 36 Rule 5 did not empower a trial judge to order a trial by judge alone after the trial had begun with a jury. As Hedigan, J. observed, Sholl, J. in Wilson v. Burridge said[266] that:

" ... the general over-riding jurisdiction which is given by O.XXXVI, Rule 5, is given in the interests of power and efficient administration of justice and it ought not to be held that a beneficial power of that kind is limited to a period terminating at the moment when the jury is sworn or some moment thereabouts."

In Altmann v. Dunning Hedigan, J.[267] considered the application of Order 47 in the historical context of Order 36, Rule 5. His Honour rejected a submission that Order 47.02(3) pointed to the confinement of the power to discharge a jury to the period prior to commencement of the trial. Hedigan, J. held:[268]

"However, as I have indicated, the history of the dispensing power, previously found in O. 36 r. 5, tends against this construction. Since 1883 it has been the position that the primary mode of a trial is trial by a judge or judges without a jury, although, if certain other rules are complied with, and in specific circumstances, a jury might be obtained. In those circumstances, and having regard to the former O. 36 read as a whole, it is my view that the construction to be preferred is that the 1986 Rules conferred upon the court, or a judge of it, a power to dispense with, or discharge, a jury if such circumstances occurred which led to the formation of an opinion that the necessary inquiry could not be made conveniently with a jury. It would, in my judgment, be appropriate to conclude that the judges, who formulated the rules, and the Parliament, which sanctioned them as an act of the Parliament, intended the powers conferred to be wider and less circumscribed than the former rules in O. 36, and that the power and discretion to direct a trial without a jury be unfettered. I have already referred to the position in this State that the power conferred on a court or a judge under O. 36 r. 5 carried with it the power to discharge an empanelled jury, and dispense with it in aid of the power. It would be an absurd construction to conclude that there was power in the court to direct a trial without a jury prior to the commencement of the trial, when a court would not be as nearly well armed with the knowledge of the scientific sphere of debate or the full range of the accounts or the complexities of the documents as it would when those matters were developed at trial, but not during the trial itself. It may well be, and indeed it is the position, that the former rule in terms of its application has been narrowly construed, but in my judgment it encapsulated the power. The power to discharge was, therefore, already established in Victoria. But whatever the precise meaning of all of the rules that preceded the 1986 Rules, the form of r. 47.02(3) creates the power and invests the judge with discretion to direct a trial without a jury if he forms the opinion that in all the circumstances it should not be tried before a jury. Rule 47.02(1) establishes the right to a jury if the procedural requirements are followed. Clearly, however, the manner of expression of r. 47.02(3) was designed to excise and dispense with the old rules, with all their alterations, increments and complications, by investing the court with the broadest possible and unfettered discretion to direct trial without a jury if it formed the opinion that it should not be tried with a jury. In so doing, it enlarged both the power and the discretion. The breadth of language of O. 47.02(3), coupled with the self-evident departure from the intricacies and elaborations of both the English Rules and the former Victorian Rules, reinforces the construction that the intended power and discretion is wide enough to dispense with a jury both before trial and during trial after discharge."

Next Hedigan, J. turned to Rule 1.14.[269] Hedigan, J. considered that Order 1.14 is relevant to the matter of the existence of power generally. He held:

"The intention of O. 1.14 is clearly that the court shall be under the obligation to take such steps as may be necessary to ensure that all questions in the proceeding are effectively, completely, promptly and economically decided. This rule, directory as it is, promotes a construction of O. 47 consonant with the existence of the power to discharge a jury at any time, if to do so might, for instance, speed up the trial, might save costs, might avoid the risk of inconsistent answers to questions in a jury trial or which, in cases of complexity, might heighten the risk that the questions in issue might not be effectively and completely answered. For these reasons I reject the first submission made on behalf of the plaintiff that there was no power in the trial judge to dispense with and discharge the jury."

In Altmann v. Dunning, Fullagar, J. substantially agreed with Hedigan, J.[270] but added some remarks. Fullagar, J. held that it was open to the trial judge to find, as he did, that the jury should be discharged because of the complexity of the case and in the interests of justice. Fullagar, J. then held[271] that the trial judge had power to discharge the jury. His Honour considered that whether the judge had power of his own motion to order discharge and trial by judge alone depended upon the proper construction of Rule 47.02, especially paragraph (3) of the rule. Fullagar, J. said[272]:

"But the principal reason why I would not limit the power conferred to one which must be exercised before the commencement of any part of the trial that is directed is that no such limitation is contained in the words by which the power is conferred. Further, no necessity exists for the implication of the suggested restriction that the power to direct a trial without a jury may be exercised only up until the trial may be said to have commenced. I am reminded of the words of Dixon C.J. and the full High Court in a slightly different field of interpretation, where their Honours said: The simplest approach, however, to the problem is simply to read the paragraph and to apply it without making implications or imposing limitations which are not found in the express words. See R. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. [1964] HCA 15; (1964) 113 C.L.R. 207 at 225."

Since Altmann v. Dunning, there is further authority of the appeal division of this court that a rule concerning the conduct of proceedings " ... is remedial and is designed to give the court procedural flexibility ... ".[273] Similar views have been expressed in other jurisdictions.[274]

The approach of Hedigan, J., although in different circumstances in Altmann v. Dunning from the present case, is pertinent because of the applicable Rules of Court, in particular, Rules 47.02 and 1.14. I adopt the approach of Hedigan, J. and, also, that of Fullagar, J. in Altmann v. Dunning, namely, to ascertain if there is a restriction on the power expressed in the subject rules. There being no such restriction I would not impose it. In this case the trial judge acted as he was entitled to do under those very rules. Furthermore, as Campbell has described, the more efficient administration of justice is critical[275]:

"The rule-making powers delegated to the courts are powers usually as wide as their inherent powers and in determining their ambit, the judges are not likely to deny themselves powers of a kind which they formerly exercised. Judicial interpretations of the ambit of statutory rule-making powers are also likely to be affected by the judges' perceptions about the extent to which the integrity and autonomy of judicial institutions depends on the capability of judges to control the manner in which their official business is transacted. To read a parliamentary grant of power to make rules with respect to the practice and procedure of a court in a restrictive way will obviously limit the court's capacity to regulate the manner in which litigation before it is conducted, and at the same time increase its dependence on the parliamentary branch of government for the introduction of changes considered desirable in the interests of better and more efficient administration of justice."

As observed already, it was argued for the appellants that they had a constitutional and fundamental right to have the jury determine all matters. The right, it was argued, emanated from the proper application of principles of constitutional law as ventilated in the authorities commencing with Edmond Weil following through to and including Prestinenzi. This analysis fails at the simplest test. If the trial judge in the present case lacked power to receive the verdict and thereafter determine the applicable legal issues as he did, save with the consent of both parties, necessarily the role of a trial judge would be rendered ineffectual. Such circumstance would, in my view, contradict entirely the pragmatic purpose underlying the Rules of Court as amended in 1986. It is plain that when Rules 1.14, 47.02, 47.04 and 59.01 are considered, the learned trial judge exercised a procedural power as he was entitled to do.

Prestinenzi was determined under the 1957 rules.[276] Dunning v. Altmann was determined under the current modern rules.[277] The history of the Rules of Court in Victoria involved ongoing repeal and consolidation.[278] The 1986 rules were enabled in part by the enactment of the Supreme Court (Rules of Procedure) Act 1986. Those rules drew upon developments in other common law jurisdictions.[279]

Rule 1.14 when introduced in the 1986 Rules was entirely new. So too was Rule 59.01 to a large extent.[280] The 1986 Rules provided a new procedural regime. In so far as those rules effected substantive rights they were authorised by the enactment of the Supreme Court (Rules of Procedure) Act 1986. In the second reading speech to the Bill, the Attorney-General said:

"The Rules introduce many new provisions designed to streamline the processes of the Court and to simplify procedures and terminology. These changes will benefit the Court, litigants and legal practitioners alike. Most of the new Rules can be made under the existing heads of rule-making power in the Supreme Court Act 1958. Other aspects of the Rules are clearly dependent on statutory amendment; for example, removal of the distinction between a judge exercising jurisdiction in open court and chambers. In addition, some parts of the Rules arguably changed the substantive law, for example, the rules which deal with preliminary discovery and discovery from a person who is not a party to proceedings. It is of particular importance to remove any doubt that this third, and very important, category of rule is within the rule-making power of the judges."[281]

It seems that the modern rules were intended to be remedial and facilitative. For the reasons stated by Gillard, A.J.A., the trial judge desirably should not have permitted the question of reasonableness to go to the jury in the event. In that respect at the very outset, the views stated in Edmond Weil, Phillips, Thompson and Prestinenzi do not arise because in this case the question of reasonableness ought not have been asked of the jury in the first place. However, there must be much sympathy towards the position of the trial judge. The submissions upon the defence of qualified privilege took some days and the consideration of the authorities was difficult. A jury, already held over for a long trial, would have been kept even longer. The parties were entitled to expect, and indeed received, prompt but considered reasons. These factors inevitably meant that the judge resorted to the modern procedural powers contained in the rules and applied them in a proper manner. In my view, no error lies in the substitution by the trial judge of the jury's verdict on reasonableness in the circumstances of the proceeding.

Defence of qualified privilege

I turn to the next matter, the defence of qualified privilege. The learned trial judge, after considering the development of the defence of qualified privilege through Stephens v. West Australian Newspapers Limited,[282] Theophanous v. Herald & Weekly Times Limited[283] and Lange v. Australian Broadcasting Corporation[284] postulated the question to be asked as follows[285]:

" ... whether it is necessary for the effective operation of the system of representative and responsible government that there be freedom to discuss the sort of matters discussed in the article sued upon even if that discussion was otherwise defamatory of a particular magistrate. Is there a clear nexus between the discussion in the article and the concepts of representative government?"

In Lange the High Court observed[286] that the law of defamation can "burden the freedom of communication" concerning government or political matters. The court also observed that it is conducive to the public good that the reputation of persons in government and political life be protected from false and defamatory statements.[287] But the court also observed the need to broaden the common law to meet modern social conditions. Hence, in Lange[288] the following statement of principle by McHugh, J. in Stephens[289] that heralded the need for change was adopted:

"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."

The High Court in Lange[290] adopted the statement of McHugh, J. in Stephens and stated the principle thus:

"Because the Constitution requires `the people' to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government, the common law rules concerning privileged communications, as understood before the decision in Theophanous, had reached the point where they failed to meet that requirement. However, the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh J referred. The common law rules of qualified privilege will then properly reflect the requirements of ss.7, 24, 64, 128 and related sections of the Constitution. Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. 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."

Close reading of the statement of McHugh, J. in Stephens reveals recognition of the dependence of individual freedom on the manner of exercise of functions and powers by public representatives and officials in government or administration. Although McHugh, J. referred to the exercise of functions and powers "in any part of the country", the statement appears confined to a governmental context. Such context appears then to have been embraced by the High Court in Lange, particularly when the court stated[291]: "The common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh, J. referred [in Stephens]".

Throughout the judgments in Theophanous and Stephens, and in Lange itself, the court was concerned with a claim of defamation by a politician. Hence, the drawing upon the implied constitutional freedom of communication and the right of the community to have information about the exercise of functions and powers by public representatives and officials was the rationale for the burdening of the common law. But at the heart of the statement of principle in Stephens and its adoption in Lange was the concept of "government".

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.

The expression "separation of powers" is sometimes mentioned in discussions as if token citing of the concept satisfies an ephemeral, legal formula. Whilst the articulation of the concept can be traced through Aristotle and Locke[292], the modern expounder of the concept seems to have been Montesquieu.[293] Prior to Montesquieu the emphasis of political and constitutional theory was upon the role of the legislature and the executive. However, it was Montesquieu who expounded the classical trinity encompassed in the separation of the three powers.[294] In 1607 Coke identified the separation of the role of the judiciary from the Crown.[295] But it is the judicial power that is, of itself, quintessentially different from the other powers. As Wynes observed[296]:

"Apart from differences in function, the judicial power differs from the other powers of government in that like those powers, it does not generally begin to operate at the instance of the vehicles - courts and judges - by or through which (or whom) it is exercised, and further, it is exercised not by a single functionary body, as Parliament or the Executive, but by a number of bodies or persons."

Although these remarks were directed at the Constitution and the differences between Chapters I - III, the observation is nonetheless valid for present purposes. Inevitably, the High Court has devoted much consideration to the concept of the separation of powers[297] and the issue of judicial power.[298] The present case is one concerned with the separation of powers and the role of the judiciary in a State context. There is no binding separation of judicial power under the constitutions of the States[299] including Victoria.[300] Yet the qualified privilege declared in Lange is implied from the Constitution. Thus, the doctrine of separation of powers is relevant here to the State context.[301]

At the heart of the concept of the separation of powers with respect to the judiciary there seem to be two essential elements. First, it does not function of itself (in the manner described by Wynes); secondly, it is based upon the fundamental tenets of impartiality and independence. The legislature and the executive function of themselves. They do not operate impartially and independently in that they operate politically. So much is expected of the legislature and the executive. The judiciary is expected to operate impartially and independently and to not act politically (although there may be political consequences of judicial decisions). Of course, as the learned trial judge in the present case observed, the judiciary is appointed by the executive. Nonetheless, that of itself does not put the judiciary on a level with the legislature and the executive; it is a means to the establishment of the judiciary. As Coke told the King in 1607:

" ... The King in his own person cannot ajudge any case, either criminal or treason, felony, etc., or betwixt party and party, concerning his inheritance, chattels, or goods, etc., but this ought to be determined and ajudged in some court of justice according to the law and custom of England."[302]

It is this fundamental demarcation that differentiates the judiciary from the legislature and the executive. With this in mind I turn to the statement of principle in Lange. As I discern the statement there is no expression, directly or indirectly, that indicates an intention to extend the privilege to the judiciary. Some members of the High Court before Lange indicated in obiter a view that the implied constitutional freedom might extend to the judiciary.[303] The judgment in Lange emphatically declared the principle of extended qualified privilege and its context. Indeed, throughout the judgment in Lange the court repeatedly refers to government, the legislature and the executive in a political, that is, electoral and parliamentary sense. The judgment does not appear to contemplate application of the privilege to the judiciary.

Speaking extra-judicially, McHugh, J. has considered the tensions between the executive and the judiciary[304] and observed[305]:

"Although the core natures of legislative, executive and judicial power are clear and their ordinary applications distinct, they intersect at the margins."

McHugh, J. continued[306]:

"Under the separation of powers doctrine, the principal function of the judiciary is to uphold the rule of law. It is a corollary of that doctrine that the judiciary cannot be deterred from exercising that function by criticisms of the executive branch, even if the Executive's criticisms have the support of the general public. The judiciary has to apply the law, not public opinion."

These views appear to support the approach I adopt and lead on to a sound policy reason for treating the judiciary differently from the legislature and the executive. As Saunders observed, the separation of judicial power protects judicial independence and shields the courts from undue influence by the legislature and the executive.[307] It also encourages public confidence in the judicial process.[308] The significance of public confidence in the judiciary is vital.[309] This of itself is a separate and special basis for exempting the judiciary from the province of "government" and "politics" as applied in Lange. For my part, I would be most hesitant to view the defence of qualified privilege as extended to applying to the judiciary. On the basis of political theory and constitutional principle I would reject its inclusion.

For these reasons I diverge from the approach of the learned trial judge on the subject. However, whether the privilege extends to the judiciary is only the first step. The second step is reasonableness in the conduct of the appellants. For the reasons stated by Gillard, A.J.A. the conduct of the appellants was not reasonable and in that respect I consider that the appeal should fail.

Save for these remarks, I agree with the disposition of the appeal, the cross-appeal and the application by the respondent to lead further evidence as proposed by Gillard, A.J.A. in his reasons.

[1] [1997] HCA 25; (1997) 189 C.L.R. 520.

[2] In Theophanous v. Herald & Weekly Times Ltd. [1994] HCA 46; (1994) 182 C.L.R. 104 at 138.

[3] Australian Broadcasting Commission v. Lenah Game Meats Pty. Ltd. (2001) 208 C.L.R. 199 at 280, per Kirby, J.

[4] Although the principles expounded in Lange, concerning freedom of discussion of government and political matters, derived from the federal Constitution, it has been accepted that it applies equally to political and governmental matters enabling people to express free and informed choice as electors at a State election, cf. Roberts & Anor. v. Bass [2002] HCA 57; (2002) 77 A.L.J.R. 292 at 323 per Kirby, J.; see also Lange at 571.

[5] Supra at 566.

[6] Supra at 573. There are, of course, occasions where the common law defence of privilege will extend to "widespread" publications; see, for example, Adam v. Ward [1917] A.C. 309.

[7] Lange, at 561.

[8] Lange, supra, at 560.

[9] (1997) 189 C.L.R. 579 at 662.

[10] Supra at 571.

[11] [1994] HCA 45; (1994) 182 C.L.R. 211 at 264.

[12] Cf. Nationwide News Pty. Ltd. v. International Financing and Investment Pty. Ltd. [1999] W.A.S.C.A. 95; Reynolds v. Nationwide News Pty. Ltd. & Ors. [2001] W.A.S.C. 116 at [30], per Hasluck, J.

[13] [2000] NSWCA 198; (2000) 181 A.L.R. 694 at 709.

[14] Lange, supra, at 573.

[15] Lange, supra, at 573; Roberts & Anor. v. Bass, supra, at [161] per Kirby, J.

[16] cf. Calwell v. Ipec Australia Ltd. [1975] HCA 47; (1975) 135 C.L.R. 321 at 329; Minter v. Priest [1930] A.C. 558 at 572; Austin v. Mirror Newspapers Ltd. [1984] 2 N.S.W.L.R. 383 at 387.

[17] Supra, at 573.

[18] [1986] 1 A.C. 299 at 317.

[19] At 317.

[20] (1998) 193 C.L.R. 519.

[21] [2000] VSCA 24; [2000] 1 V.R. 667.

[22] Per Ormiston, J.A. at 676; per Charles, J.A. at 689.

[23] [1986] Q.B. 1000; see also David Syme & Co Ltd v. Hore-Lacy (2002) 1 V.R. 667.

[24] [1997] HCA 25; (1997) 189 C.L.R. 520.

[25] [1948] VicLawRp 24; (1948) V.L.R. 118 at 131.

[26] [1936] HCA 28; (1936) 56 C.L.R. 50 at 55-6.

[27] op cit at 55.

[28] [1994] HCA 46; (1994) 182 C.L.R. 104.

[29] Supra.

[30] [1994] HCA 45; (1994) 182 C.L.R. 211.

[31] see p.575.

[32] [1938] HCA 28; (1938) 59 C.L.R. 503 at 511.

[33] (1834) 1 C.M. and R. 181 at 193[1834] EngR 363; , 149 E.R. 1044 at 1049-50.

[34] [1917] A.C. 309 at 334.

[35] [1894] 2 Q.B. 54 at 58.

[36] Supra, at 318.

[37] Supra, at 509.

[38] [1930] 1 K.B. 130 at 144.

[39] (1935) 153 L.T. 384-HL.

[40] [1916] 2 A.C. 15 at 23.

[41] [1932] HCA 39; (1932) 47 C.L.R. 279 at 291 and 304.

[42] [1994] HCA 45; (1994) 182 C.L.R. 211 at 245-6.

[43] (1977) 2 N.S.W.L.R. 749 at 790.

[44] [1966] 1 W.L.R. 1126 at 1132.

[45] Supra.

[46] see pp.570-571.

[47] at p.571.

[48] see p.571.

[49] at p.572.

[50] At 573.

[51] [2002] HCA 57; (2002) 77 A.L.J.R. 292 at 304-305 and 323.

[52] See Lange at 574.

[53] at p.573.

[54] at p.574.

[55] [2003] H.C.A. 52 at para 30.

[56] Unreported, Supreme Court of N.S.W., delivered 20 June 1985.

[57] [1977] 1 N.S.W.L.R. 697 at 712.

[58] Supra at 42 et seq.

[59] [1986] A.C. 299 at 313 et seq.

[60] (1991) 23 N.S.W.L.R. 374 at 387-8.

[61] Supra, at p.313.

[62] Supra at 712.

[63] [2002] HCA 57; (2002) 77 A.L.J.R. 292.

[64] [1869] EngR 12; (1869) L.R. 2 P.C. 420 at 428.

[65] [1894] 2 Q.B. 54.

[66] Supra, at 318.

[67] At 58.

[68] [1917] A.C. 309 at 318.

[69] Supra at 38-9.

[70] [1993] HCA 64; (1993) 178 C.L.R. 309 at 347-8.

[71] [1947] HCA 13; (1947) 74 C.L.R. 102.

[72] At 109.

[73] At 113.

[74] Supra at 39.

[75] At 138.

[76] [2001] 2 A.C. 127.

[77] At 204.

[78] At 205.

[79] See 215-6.

[80] [1985] VicRp 6; [1985] V.R. 59 at 63.

[81] [1999] HCA 22; (1999) 197 C.L.R. 269.

[82] At 274.

[83] At 282.

[84] [1931] HCA 21; (1931) 45 C.L.R. 359 at 373.

[85] [1956] HCA 25; (1956) 94 C.L.R. 470.

[86] At 282.

[87] [1971] HCA 66; (1971) 125 C.L.R. 332 at 341.

[88] [1945] HCA 16; (1945) 71 C.L.R. 430 at 442.

[89] Supra, at 379.

[90] [1981] VicRp 42; [1981] V.R. 421.

[91] At 437.

[92] At 439.

[93] See Kaye, J. at 436.

[94] At 437.

[95] See his Honour's observations at 441.

[96] [1936] HCA 26; (1936) 56 C.L.R. 34 at 45-7.

[97] supra at 35.

[98] At 37.

[99] At 46.

[100] At 47.

[101] [1941] HCA 35; (1941) 65 C.L.R. 221.

[102] At 228-9.

[103] At 228.

[104] [1914] 2 K.B. 429.

[105] [1946] VicLawRp 60; [1946] V.L.R. 391 at 406 and 408.

[106] See Rule 64.22(2) of the Rules of Court and s.14(1) Supreme Court Act 1986.

[107] [1914] 2 K.B. 429.

[108] Supra, at 408.

[109] [1982] VicRp 76; [1982] V.R. 767.

[110] [1986] 1 A.C. 299.

[111] (1991) 21 N.S.W.L.R. 374 at 387.

[112] [2002] W.A.S.C. 263.

[113] See para 42.

[114] At 574.

[115] [1931] HCA 21; (1931) 45 C.L.R. 359 at 373.

[116] See para [130].

[117] (1991) 23 N.S.W.L.R. 374.

[118] (1988) 12 N.S.W.L.R. 148 at 152.

[119] Supra.

[120] Supra, at 387.

[121] See Barclay v. Cox [1968] VicRp 87; [1968] V.R. 664.

[122] See Preston Ice and Cool Stores Pty Ltd v. Hawkins [1955] VicLawRp 17; [1955] V.L.R. 89 at 92; Owners of the Ship "Shin Kobe Maru" v. Empire Shipping Co. Inc. (1994) 68 A.L.J.R. 311 at 313.

[123] [1992] HCA 46; (1992) 177 C.L.R. 1.

[124] [1994] HCA 46; (1994) 182 C.L.R. 104.

[125] [1994] HCA 45; (1994) 182 C.L.R. 211.

[126] At 72.

[127] At 74.

[128] At [2000] NSWCA 198; (2001) 181 A.L.R. 694.

[129] At 709.

[130] At 570.

[131] At 264.

[132] At 571.

[133] See s.7.

[134] See s.12.

[135] At 123 and 124.

[136] At 179, 180 and 182.

[137] At 73-4.

[138] 2^nd ed. at paragraph 1202.

[139] (1978) 90 D.L.R. (3d) 321.

[140] (1887) 20 Q.B.D. 275 at 280.

[141] [1951] 1 K.B. 354 at 359-60.

[142] [1993] HCA 64; (1993) 178 C.L.R. 309.

[143] At 329.

[144] [1992] UKHL 2; [1992] 2 A.C. 343.

[145] At 329.

[146] [2001] EWHC 460; [2002] Q.B. 737 at 741-2.

[147] [2000] HKCFA 35; [2000] 3 H.K.L.R.D. 418.

[148] At 4.

[149] [1925] VicLawRp 8; [1925] V.L.R. 56.

[150] [1968] EWCA Civ 3; [1969] 2 Q.B. 375.

[151] At 395.

[152] [1952] A.C. 345 at 357-8.

[153] See Rule 64.23(2).

[154] [1937] HCA 74; (1937) 58 C.L.R. 416.

[155] At 420.

[156] See Polly Peck Holdings v. Trelford [1986] Q.B. 1000; Lucas-Box v. News Group [1986] 1 W.L.R. 147; and David Syme & Co Ltd v. Hore-Lacey (2001) 1 V.R. 667.

[157] [1925] A.C. 47 at 78.

[158] See Clarke v. Taylor [1836] EngR 624; (1836) 2 Bing. N.C. 654 at 664.

[159] [1961] A.C. 1090 at 1141.

[160] (1899) 25 V.L.R. 262 at 268.

[161] [1982] HCA 4; (1982) 150 C.L.R. 500 at 505.

[162] See Barclay v. Cox [1968] VicRp 87; (1968) V.R. 664.

[163] [1986] 1 W.L.R. 147 at 152.

[164] (1998) 193 C.L.R. 519 at 534 and 546.

[165] [1989] VicRp 45; [1989] V.R. 461 at 470 et seq.

[166] [1964] HCA 39; (1964) 111 C.L.R. 234 at 242.

[167] [1986] Q.B. 1000.

[168] [1986] 1 W.L.R. 147.

[169] (1998) 193 C.L.R. 519.

[170] [2002] NSWSC 1028; (2002) 56 N.S.W.L.R. 89.

[171] [1998] EWCA Civ 1269; [1999] Q.B. 931.

[172] [1907] 1 K.B. 502 at 507.

[173] (1865) 6 B and S 340; [1865] EngR 378; 122 E.R. 1221.

[174] [1925] A.C. 47 at 79.

[175] [1851] EngR 598; (1851) 17 Q.B. 351; 117 E.R. 1314.

[176] (1891) 8 T.L.R. 58.

[177] [1964] A.C. 234.

[178] [1968] VicRp 87; (1968) V.R. 664.

[179] Supra, at 152.

[180] Supra, at 534 and 546.

[181] [1986] 1 W.L.R. 147.

[182] [1986] Q.B. 1000.

[183] Supra, at p.529.

[184] [1986] 1 W.L.R. 1412.

[185] See Rubber Improvement Ltd v. Daily Telegraph [1964] A.C. 234 at 277.

[186] [1987] All E.R. 499.

[187] At 507.

[188] [1964] A.C. 234.

[189] See Howden v. Truth and Sportsman (1937) 58 C.L.R. 415 at 428-9.

[190] (1938) 38 S.R. (N.S.W.) 287.

[191] Supra, at 1032.

[192] See para 318.

[193] At 76.

[194] At 71.

[195] See White v. Flower and Hart [1998] FCA 806; (1998) 156 A.L.R. 169 at 217-221.

[196] See McCarley v. Associated Newspapers [1965] 2 Q.B. 86 at 105; and Andrews v. John Fairfax [1980] 2 N.S.W.L.R. 225 at 234.

[197] [1972] UKHL 3; [1972] A.C. 1027 at 1070-1.

[198] (1889) 24 Q.B.D. 53 at 55.

[199] [1951] HCA 23; (1951) 82 C.L.R. 497 at 514.

[200] [1993] HCA 31; (1993) 178 C.L.R. 44 at 71.

[201] See Carsons case, supra, at 72.

[202] [1966] HCA 40; (1966) 117 C.L.R. 118.

[203] At 153.

[204] 12^th ed, (1961) 196.

[205] [1985] HCA 12; (1985) 155 C.L.R. 448.

[206] At 471.

[207] [1987] HCA 47; (1987) 164 C.L.R. 1 at 9.

[208] [1996] HCA 49; (1998) 186 C.L.R. 1.

[209] [1972] UKHL 3; [1972] A.C. 1027 at 1071-2.

[210] [1977] VicRp 58; [1977] V.R. 516 at 523-4.

[211] [1928] HCA 36; (1928) 41 C.L.R. 254.

[212] At 262-3.

[213] [1979] HCA 9; (1979) 142 C.L.R. 531.

[214] Supreme Court (General Civil Procedure) Rules 1996, Chapter I.

[215] [1936] HCA 26; (1936) 56 C.L.R. 34.

[216] Ibid at 46.

[217] Ibid.

[218] Ibid.

[219] [1941] HCA 35; (1941) 65 C.L.R. 221.

[220] [1924] VicLawRp 87; (1924) V.L.R. 515, 530, 533.

[221] At 229.

[222] [1925] HCA 49; (1925) 37 C.L.R. 321, 334.

[223] At 229.

[224] At 230.

[225] At 231.

[226] (1926) I.R. 302, 323.

[227] At 239.

[228] Ibid.

[229] At 236.

[230] At 248-249.

[231] At 254.

[232] Ibid.

[233] (1949) 23 A.L.J. 98.

[234] At 104.

[235] Ibid.

[236] Edmond Weil Inc. v. Russell, 46; Phillips v. Ellinson, 230-231.

[237] [1981] VicRp 42; [1981] V.R. 421.

[238] At 425.

[239] Ibid.

[240] At 426.

[241] (1818) 1 B. & Ald. 252; 106 F.R. 93.

[242] At 426.

[243] Ibid.

[244] Perkins v. Dangerfield (1879) 51 L.T. (M.S.) 535; Peters v. Perry and Co. (1894) 10 T.L.R. 366; Skeate v. Slaters Limited [1914] 2 K.B. 429.

[245] At 428.

[246] See Rules of the Supreme Court 1892, Order 36, Rule 39.

[247] At 429.

[248] At 430ff.

[249] [1936] HCA 26; (1936) 56 C.L.R. 34; his Honour also considered McDonnell & East Limited v McGregor [1936] HCA 28; (1936) 56 C.L.R. 50; Phillips v. Ellinson Bros. Pty Ltd [1941] HCA 35; (1941) 65 C.L.R. 221.

[250] [1946] VicLawRp 60; [1946] V.L.R. 391.

[251] At 436.

[252] At 437.

[253] At 439.

[254] At 440.

[255] At 441.

[256] Per McGarvie, J. at 441.

[257] Ibid.

[258] At 422-423.

[259] [1995] VicRp 41; [1995] 2 V.R. 1.

[260] At 13.

[261] At 14-16.

[262] At 15.

[263] The Rule provided:

"Notwithstanding anything contained in Rule 2, the court or a judge may direct the trial without a jury of any cause, matter or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot in their or his opinion conveniently be made with a jury unless the parties consented".

Hedigan, J. noted that O. 36.r.5 remained in the same form from 1906 to 1986.

[264] At 15.

[265] [1955] VicLawRp 70; [1955] V.L.R. 433.

[266] At 435.

[267] At 16.

[268] At 16.

[269] At 17.

[270] At 2.

[271] At 3.

[272] Ibid.

[273] Pezzimenti v. Seamer [1995] VicRp 42; [1995] 2 V.R. 32, 38 per Brooking, J., also at 41-42 per Tadgell, J. and at 43 per Teague, J.

[274] See Peck v. Email Limited (1987) 8 N.S.W.L.R. 430; Taylor v. Anderton [1995] 2 All E.R. 420; Smit v. Chan [2001] Q.S.C. 493.

[275] Campbell, E., Rules of Court - A Study of Rule-Making Powers and Procedures, 1985, Law Book Company Limited, Sydney, p.3.

[276] The General Rules of Procedure in Civil Proceedings 1957 (as amended).

[277] The General Rules of Procedure in Civil Proceedings 1986.

[278] See Williams, N.J., Williams Practice of the Supreme Court of Victoria in its Civil Jurisdiction (2^nd ed.), Vol. 1, p.1087 [C.1]; also, Deputy Commissioner of Taxation v. Carpenter [1959] VicRp 68; [1959] V.R. 470, 472; Altmann v. Dunning at 16 per Hedigan, J.

[279] Including England, the Federal Court of Australia and the Supreme Courts of New South Wales, British Columbia and Ontario; see Williams, N.J., Supreme Court Civil Procedure Victoria, para. [1.09].

[280] Although some aspects of former Rules 3.2 and 20.3 were adapted into the new Rule 59.01.

[281] Legislative Council 23 April 1986, Hansard, p.645.

[282] [1994] HCA 45; (1994) 182 C.L.R. 211.

[283] [1994] HCA 46; (1994) 182 C.L.R. 104.

[284] [1997] HCA 25; (1997) 189 C.L.R. 520.

[285] Popovic v. Herald & Weekly Times Limited and Anor. [2002] VSC 174 [29].

[286] At 568.

[287] Ibid.

[288] Cited with approval in Lange v. Australian Broadcasting Corporation [1997] HCA 25; [1997] 189 C.L.R. 520, 570-571.

[289] Stephens v. West Australian Newspapers Limited [1994] HCA 45; (1994) 182 C.L.R. 211, 264.

[290] At 571.

[291] In Lange, at 571.

[292] See generally Vile, M.J.C., Constitutionalism and the Separation of Powers, 1967, Clarendon Press, Oxford, pp.16, 21ff., 51.

[293] Gwyn, W.B., The Meaning of the Separation of Powers, 1965, Tulane University New Orleans, Ch. V, pp68ff; Ch. VII, pp.100ff; also, Saunders, C., "The Separation of Powers" in The Australian Federal Judicial System, B. Opeskin and F. Wheeler (eds.), (2000) M.U.P., p.4; Vile, M.J.C., ibid, Ch. IV.

[294] See Winterton, G., "The Separation of Judicial Power as an Implied Bill of Rights", in Liddell, G. Future Directions in Australian Constitutional Law, 1994, Sydney, Federation Press, p.185-6.

[295] Gwyn, W.B., ibid, p.6.

[296] Wynes, W.A., Legislative, Executive and Judicial Powers in Australia, (5^th edition), 1976, Sydney, p.410.

[297] See for example the analysis in Sawer, G. "Judicial Power Under the Constitution", in Else-Mitchell, R. (ed.), Essays on the Australian Constitution, (2^nd edition), 1961, Sydney, Law Book Co., Ch. III, p.72ff; also, Zines, L., The High Court and the Constitution, (4^th edition), 1993, Sydney, Butterworths, Ch. 9 pp.154ff; also, Saunders, ibid, p.3ff.

[298] A convenient overview appears in Saunders, C., ibid, p.3ff.

[299] See Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 C.L.R. 51, 65, 78, 93, 109.

[300] City of Collingwood v State of Victoria & Anor [No.2] [1994] VicRp 46; [1994] 1 VR 652.

[301] See Lange at 571.

[302] Gwyn, ibid, at p.6; see also Blackstone, W., Commentaries on the Laws of England, Oxford, 1768 pp.146-147.

[303] Nationwide News Ltd. v. Wills [1992] HCA 46; (1992) 177 C.L.R. 1, 74 per Deane and Toohey, JJ.; Theophanous v. Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 C.L.R. 104, 179-82 per Deane, J.; Cunliffe v. Commonwealth [1994] HCA 44; (1994) 182 C.L.R. 272, 298 per Mason, C.J.

[304] McHugh, M., "Tensions between the Executive and the Judiciary", (2002) 76 A.L.J. 567.

[305] Ibid, p.569.

[306] Ibid, at p.579.

[307] op. cit. at p.33.

[308] Ibid.

[309] Mason, Sir Anthony, "The Appointment and Removal of Judges", H. Cunningham (ed.), Fragile Bastion; Judicial Independence in the Nineties, Judicial Commission of New South Wales, Sydney, p.7; also, Parker, K., "The Independence of the Judiciary", in B. Opeskin & F. Wheeler (eds.), The Australian Federal Judicial System, (2000) M.U.P., Melbourne, p.69.

http://www.austlii.edu.au/au/cases/vic/VSCA/2003/161.html

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HERALD & WEEKLY TIMES LTD & BOLT v POPOVIC [2003] VSCA 161 (21 NOVEMBER 2003)

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