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Reviews of judgments

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Cite as: (2004) 78(3) LIJ, p. 68

High Court judgments

Cite as: (2004) 78(3) LIJ, p. 68

By Thomas Hurley

Constitutional law – aliens.

  • Shaw v MIMA [2003] HCA 72 (9 December 2003).

The applicant was a British subject when he entered Australia in 1974 aged two. Following a criminal history, the respondent purported to cancel his visa under s501(2) of the Migration Act in July 2001. A case was stated as to whether the applicant was an “alien” for the purposes of the Constitution s51(xix). The majority of the High Court concluded that all persons who entered Australia after the commencement of the Citizenship Act on 26 January 1949 and who were not born out of Australia of Australian parents and who had not become Australian citizens remained within the scope of the “aliens” power within the Constitution s51(xix): Gleeson CJ, Gummow, Hayne JJ [32]; sim Heydon J; contra McHugh; Kirby JJ; Callinan J. Questions answered accordingly.

Criminal law – murder – statutory murder – whether point may be raised on appeal.

  • Arulthilakan v Q [2003] HCA 74 (10 December 2003).

The majority of the High Court concluded the directions to the jury concerning the charges of murder and “statutory murder” arising out of an armed robbery within s12A of the Criminal Law Consolidation Act 1935 (SA) did not involve any error of law or miscarriage of justice. The Court also determined a point not raised below concerning causation and concluded again there had been no miscarriage: Gleeson CJ, Gummow, Hayne JJ, Callinan, Heydon JJ; contra Kirby J.

High Court – whether order of Justice refusing leave to issue process interlocutory order.

  • In Re Luck [2003] HCA 70 (4 December 2003).

A Full Court (McHugh, Gummow, Heydon JJ) concluded an order refusing a vexatious litigant leave to commence proceedings was an interlocutory order [9]. It concluded an appeal without leave was incompetent.

Migration – refugees – social group – homosexual Bangladeshi men.

  • Appellant S395/2002 v MIMA [2003] HCA 71 (9 December 2003).

The appellants were males who feared persecution on return to Bangladesh because they were homosexuals. The RRT found their fear was not well-founded because they could conduct themselves “in a discreet manner”. Their appeal to the single justice of the Federal Court and the Full Court of that Court failed. The appeal to the High Court succeeded by majority: McHugh, Kirby JJ; Gummow with Hayne JJ; contra Gleeson CJ; Callinan, Heydon JJ. Appeal allowed.

Negligence – action in ACT Supreme Court against Commonwealth – applicable limitation law.

  • Blunden v C of A [2003] HCA 73 (10 December 2002).

In May 1998 the appellant, who had been a seaman on HMAS Melbourne when it collided on the high seas in February 1964 with HMAS Voyager, sued the Commonwealth for damages for personal injury. The question of which limitation law applied to the claim was removed to the High Court under s40(2) of the Judiciary Act. The High Court concluded the proceeding was subject to the Limitation Act 1985 (ACT): Gleeson CJ, Gummow, Hayne, Heydon JJ jointly; sim Kirby J; Callinan J.

Statutes – transitional provision – specific and general saving provisions.

  • Dossett v TKJ Nominees Pty Ltd [2003] HCA 69 (4 December 2003).

The appellant’s application for leave to commence common law proceedings for personal injuries under the Workers’ Compensation and Rehabilitation Act 1981 (WA) had been filed when the provisions were replaced by the more restrictive conditions introduced by the Workers’ Compensation and Rehabilitation Amendment Act 1999 (WA). The transitional provisions in this Act did not specifically refer to a person in the circumstances of the appellant. The District Court held the amended provisions applied to the appellant’s application. His appeal to the Supreme Court of WA was dismissed. His appeal to the High Court was allowed: McHugh; Gummow, Hayne, Heydon JJ; Kirby J. The Court considered the distinction between legislation being “amended” and “repealed” and when the repeal and substitution of legislation could constitute a “repeal” for s37(1) of the Acts Interpretation Act 1984 (WA).

Trade practices – exclusionary provisions – whether arrangement that one publisher would circulate new newspaper in area of other publisher unless it withdrew its newspaper in first publisher’s area – liability of accessories – Trade Practices Act 1974 (Cth) ss14, 45(2), 46(1) and 75.

  • Rural Press Ltd v ACCC [2003] HCA 75 (11 December 2003).

The High Court considered the construction of provisions of the Trade Practices Act 1974 (Cth) concerning agreements to restrict competition. It also considered how the motive for an “arrangement” was to be proved and the involvement required of officers of trading corporations for them to be “involved in” a contravention of the Act.

THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website

Federal Court judgments

Cite as: (2004) 78(3) LIJ, p. 68

By Thomas Hurley

Constitutional law – judicial power – “matter”.

  • C of A v Lyon [2003] FCAFC 284 (12 December 2003).

A Full Court concluded an application by the Commonwealth to prevent in the public interest disclosure in committal proceedings of matters relating to witness protection raised a “matter” over which the Federal Court had jurisdiction under s39B(1A)(a) of the Judiciary Act.

Constitutional law – constitutional writ – when decision unreasonable.

  • SHJB v MIMIA [2003] FCAFC 303 (17 December 2003).

A Full Court concluded the question of whether a decision was unreasonable in the Wednesbury sense was not to be approached by the English overlay of “relative reasonable satisfaction” because it involved human rights. The Court concluded Australian authority revealed that the question of whether the reasons for decision were so opaque or obviously unreasonable was a question of degree [33].

Corporations – power of AAT.

  • ASIC v Donald [2003] FCAFC 418 (23 December 2003).

A Full Court concluded the AAT had power, in reviewing a decision by ASIC, to accept an undertaking (s93AA Corporations Law) to order that ASIC accept a written undertaking even though the AAT itself had no power to accept one.

Corporations law – extension of period to lodge notice of charge extended after “critical day” in s266(8) Corporations Act.

  • Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 (21 November 2003).

A Full Court concluded it had power to extend the period to lodge notice of a charge under s266(4) of the Corporations Act after the “critical day” in s266(8).

Courts – representative proceedings – determination of final membership.

  • King v AG Australia Holdings Ltd [2003] FCA 1420 (5 December 2003).

Moore J considered how the final membership of a class in a class action was to be determined under Part IVA of the Federal Court of Australia Act 1976 (Cth) where the proceeding had settled.

Customs – anti-dumping.

  • Expo-Trade v Minister for Customs [2003] FCA 1421 (5 December 2003).

Moore J dismissed an application to review a recommendation of the CEO of Customs in relation to anti-dumping where there was no domestic market for ammonium nitrate in the source countries of Estonia or Russia.

Environment – whether decision to acquire land in SA for nuclear waste dump unlawful.

  • SA v Hon Slipper MP [2003] FCA 1414 (8 December 2003).

Selway J dismissed proceedings contending that the acquisition of land by the Commonwealth under the Lands Acquisition Act 1989 (Cth) for a nuclear waste dump had been achieved contrary to the AD(JR) Act.

Federal Court – constitutional writs – whether order dismissing application interlocutory order.

  • NAHQ v MIMIA [2003] FCAFC 297 (17 December 2003).

A Full Court observed an order dismissing an application for an order nisi for a constitutional writ was interlocutory and leave to appeal was required.

Federal Court – appeal from Federal Magistrates Court – change in law before appeal – whether Full Court should determine appeal.

  • VAAW v MIMIA [2003] FCAFC 259 (21 November 2003).

A Full Court concluded that it should determine the appeal for itself from a decision of the Federal Magistrates Court, notwithstanding the law had altered after the date of that decision, where it was clear what the result on any remitter would be.

Federal Court – service outside jurisdiction.

  • Costa Varaca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 (19 December 2003).

A Full Court considered whether the requirements for service of protest out of the jurisdiction under FCR O.8 r2(2) had been satisfied.

Human rights – freedom of speech for commonwealth officers.

  • Bennett v President HREOC [2003] FCA 1433 (10 December 2003).

Finn J concluded reg 7(13) under the Public Service Act 1922 (Cth) requiring commonwealth public servants not to disclose information about public business or things of which they had official knowledge could infringe the implied freedom of political communication and was not appropriate or adapted to serving a purpose that did not unreasonably impair the freedom. Consideration of the duty of loyalty of public servants and their obligations of secrecy and the permissible public comment and disclosure of official information.

Migration – “best recollection” of reason.

  • Dagli v MIMIA [2003] FCAFC 298 (19 December 2003).

A Full Court concluded the appeal should be allowed where the appellant would have succeeded in his application but for the fact that the respondent gave reasons required to be given at the time the decision subject of the litigation was made in the middle of the proceedings seeking to review. The Court observed that reasons produced long after a decision must be treated with caution [67]. It considered the breach of natural justice identified by the primary judge was not answered by the subsequently provided reasons.

Migration – confidential information not disclosed by RRT.

  • NAVK v MIMIA [2003] FCAFC 1389 (28 November 2003).

Emmett J considered when the refusal by the RRT to inform an applicant for a protection visa of confidential documents under s438(3) of the Migration Act on the advice of the Department of Immigration, and after deciding not to exercise power under s427 of that Act to obtain answers from the Department to certain questions, constituted a denial of procedural fairness.

Migration – “gazetted agency”.

  • Evans v MIMIA [2003] FCAFC 276 (1 December 2003).

A Full Court divided as to when the Acts Interpretation Act 1901 (Cth) will operate to save a gazette notice which failed to “specify” law enforcement agencies as required by the Migration Act.

Migration – jurisdictional error – actual bias.

  • MIMIA v SGJV [2003] FCAFC 290 (16 December 2003).

A Full Court concluded that the primary judge had erred in finding the decision of the RRT was affected by actual bias arising from the circumstances in which the visa applicant had been interviewed. However, the Full Court concluded the decision of the RRT amounted to a denial of natural justice because the respondent had been led to believe there was no need to call a witness to counter the effect of the interview.

Migration – jurisdictional error – failure to consider relevant facts at all.

  • Applicant M190 of 2002 v MIMIA [2003] FCAFC 1362 (28 November 2003).

The RRT rejected the application by the applicant, finding he had copied the application of another. Finkelstein J found jurisdictional error made out because the RRT had not considered facts which suggested the applicant could not have copied the form but that the other person had copied his form.

Migration – notification of decisions.

  • Vean of 2002 v MIMIA [2003] FCAFC 311 (22 December 2003).

A Full Court considered whether a notice had been validly given to a person under s494D(1) of the Migration Act where it was addressed care of the authorised recipient at the address of the authorised recipient. The Court concluded such a document was addressed to the authorised recipient, not the intended person.

Migration – procedural unfairness – confrontational approach by RRT.

  • MIMIA v WAFJ [2004] FCAFC 5 (15 January 2004).

A Full Court concluded the federal magistrate had not erred in finding a transcript of a hearing by the RRT revealed procedural unfairness where the RRT member adopted a confrontational approach involving sarcasm and rudeness.

Migration – procedural fairness – whether documents of delegate sent to RRT.

  • NABC v MIMIA [2003] FCAFC 317 (24 December 2003).

A Full Court concluded procedural unfairness could be established where an applicant acted on the assumption that all documents from the primary decision-maker had been sent to the RRT.

Migration – revival of visa by order of AAT.

  • Lesi v MIMIA [2003] FCAFC 285 (11 December 2003).

The appellant was deported from Australia under s200 of the Migration Act in October 2000. At that time a certificate preventing him seeking review by the AAT was thought to be effective. It was proved invalid in unrelated proceedings. The partner of the appellant returned to Australia and commenced proceedings in the AAT which in April 2002 set aside the deportation order. A request by the appellant for permission to return to Australia on the basis that his earlier visa had been revived was rejected. This decision was upheld by the primary judge. On appeal, a Full Court concluded that in the unique circumstances the visa of the appellant had been revived and he should be entitled to return to Australia.

Migration – school visa – visa refused because course a “regression” – application of policy.

  • Ou Yang v MIMIA [2003] FCAFC 258 (24 November 2003).

A Full Court concluded the subject decision should be set aside because it represented either the inflexible application of an unwritten policy or failure to take into account a relevant matter.

Migration – spouse visa – “domestic violence”.

  • Cakmak v MIMIA [2003] FCAFC 257 (21 November 2003).

A Full Court concluded the concept of “domestic violence” in the Migration (1994) Regulations did not extend to psychological violence absent physical violence.

Migration – visa cancellation for criminal conduct – natural justice.

  • M238 of 2002 v Ruddock [2003] FCAFC 260 (21 November 2003).

A Full Court concluded the appellant had not been denied natural justice in the decision to cancel his visa under s501 of the Migration Act but considered examples of when this might occur.

Motor vehicles – approval of importation after the event.

  • Minister for Transport and Regional Services v Maara [2003] FCAFC 29 (18 December 2003).

A Full Court concluded the AAT had not erred in considering whether to approve under the Customs Act 1901 (Cth) importation of the respondent’s motorcycle into Australia after it had in fact been landed.

Native title – extinguishment.

  • Daniel v WA [2003] FCA 1425 (5 December 2003).

RD Nicholson J considered whether reservation of land for cemeteries, water supply, nature reserves and wildlife sanctuaries and jetties extinguished native title.

Native title – procedure.

  • Anderson v WA [2003] FCA 1423 (4 December 2003).

French J considered how an application was to be amended to substitute applicants where there was disagreement between applicants concerning the proposed amendments.

Native title – standing of traditional custodians.

  • De Rose v SA [2003] FCAFC 286 (16 December 2003).

A Full Court considered when custodians of traditional land had abandoned or lost their connection with the land so as to be prevented from bringing a claim under the Native Title Act 1993 (Cth).

Trade marks – “Crazy John’s” infringed by “Crazy Ron’s”.

  • Mobile World Communications Pty Ltd v Q & Q Global Enterprise [2003] FCA 1404 (4 December 2003).

Allsop J concluded a trade mark “Crazy John’s”, registered in respect of telephones, was infringed by the trade mark “Crazy Ron’s”.

Trade practices – misleading conduct – corrective advertising.

  • Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 (16 December 2003).

A Full Court considered the role of corrective advertising in relation to advertisements for private health insurance said to be misleading or deceptive.

THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website

Supreme Court judgements.

Cite as: (2004) 78(3) LIJ, p. 70

By Greg Reinhardt

Court of Appeal rules on several defamation questions

  • Herald & Weekly Times Ltd and Bolt v Popovic [2003] VSCA 161 (unreported, 21 November 2003, No 4631/2001, Winneke ACJ, Gillard and Warren AJJA).

This appeal dealt with several matters of interest in the law of defamation. The principal judgment was delivered by Gillard AJA, although the Court was unanimous that the appeal should be substantially dismissed (the appellant’s appeal in relation to an award of exemplary damages to the plaintiff/ respondent was allowed).

The original trial had taken place before a judge and jury. After the close of the defendants’ case, counsel for the plaintiff submitted that none of the defences relied on by the defendants had been made out. The argument on this submission would have taken some days. The judge ruled that certain questions should be out to the jury and that leave be given to the plaintiff to move for judgment non obstante veridicto (notwithstanding the jury’s verdict).

The jury delivered answers the effect of which was to establish a case for judgment for the plaintiff other than in respect of a defence based on the principles laid down by the High Court in Lange v Australian Broadcasting Commission (1997) 189 CLR 520. In Lange’s case, the High Court, drawing on what had been said earlier in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 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”. The High Court made it clear, however, that the defence was available only where the conduct of the defendant in publishing the article was reasonable in all the circumstances.

The jury in Popovic had answered “yes” to the question whether the conduct of the defendants in publishing the article was reasonable in all the circumstances.

The defendants applied for judgment. The plaintiff applied for judgment non obstante veridicto. After lengthy argument, Bongiorno J gave judgment for the plaintiff. His Honour was not satisfied that the defendants had acted reasonably. He awarded the plaintiff compensatory damages, aggravated damages and exemplary damages (the latter were awarded on the basis of the defendants’ conduct concerning the jury’s verdict).

The plaintiff was and is a Deputy Chief Magistrate of the Magistrates’ Court of Victoria. The article complained of referred to a hearing in which the plaintiff, in the course of an exchange with the prosecutor to a charge of arson (the burning of an Indonesian flag), asked the prosecutor to consider whether prosecution of the matter was the best way to proceed. Part only of the exchange between the plaintiff and the prosecutor was reproduced in an article written by the second defendant and published in the Herald Sun. Reference was not made in the article to the fact that the hearing was not a final hearing of the charge but a preliminary hearing (a contest mention). [The full text of the article is annexed to the Court of Appeal’s reasons for decision.]

The alleged defamation

The plaintiff pleaded three false innuendos, namely:


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


prejudging the case; and


deciding on the appropriate penalty;


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


the plaintiff had so misconducted herself in a criminal prosecution for arson in the ways described in sub-paras (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 defendants’ version of the article

The defendants, by their defence, denied that the article was defamatory and set up a Polly Peck defence (a defence based on the decision of the English Court of Appeal in Polly Peck Holdings PLC v Trelford [1986] QB 1000 – see also David Syme & Co Ltd v Hore-Lacy [2002] 1 VR 667). They alleged their own imputations and said that these were true in substance and in fact. They alleged as follows:

“9. Further, the defendants say that the article, in its natural and ordinary meaning, meant and was understood to mean that the plaintiff:


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;


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;


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”.

Assuming the article to be defamatory of the plaintiff, was a Lange defence available to the defendants?

Discussion of government or political matters?
Bongiorno J had held that the article was a discussion of “government or political matters”. Winneke ACJ, while accepting that there may be occasions where a discussion about a judicial officer might be relevant to the system of representative and responsible government, did “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”. [9] Gillard AJA was of the view that the administration of justice was a vital element in the system of government. [250] Warren AJA did not support the extension of Lange to the judiciary. She said: “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”. [507]

Had the defendants acted reasonably?

The primary facts bearing on the issue of reasonableness of conduct ought to have been determined by the jury; however, the issue of reasonableness of conduct ought to have been determined by the trial judge. Neither party had objected to the course taken by the trial judge and the matter was not one the subject of the appeal. In any event, the Court was of the view that the failure to reproduce the true context of the exchange between the prosecutor and the plaintiff was such as to preclude the argument that the publication was reasonable in the circumstances.

Gillard AJA said (at [88]): “What is reasonable conduct in publication depends upon all the circumstances. The [High Court] stated [Lange, above, at page 573] 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 [at page 574]:

“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”. (emphasis added)

No response had been sought from the plaintiff here. While the second defendant’s state of mind at the time of publication and the failure to seek a response were not fatal to the defendants’ Lange defence (contrary to the view of the trial judge), the Court of Appeal was entitled to take account of any evidence established at the trial to support the view that the publication was unreasonable. [220] Gillard AJA said:

“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”. [221]

His Honour then set out the transcript of the proceeding and said that, in his view, the second defendant had distorted the facts. It followed that the defendants had not acted reasonably in relation to the publication. They could not rely on the Lange defence.

Defence of fair comment

The trial judge had left the defence of fair comment to the jury which had found that the article was not fair comment on a matter of public interest.

The appellants argued on appeal that the judge had misdirected the jury on the defence. He had directed the jury that the defendants had to prove that the subjective belief of Mr Bolt was that he honestly believed the opinion he actually conveyed.

Gillard AJA referred with approval to what Lord Nicholls had said in Cheng v Tse Wai Chun Paul [2000] 3 HKLRD 418 at 4:

“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”.

The jury had been misdirected in relation to the defence. However, the defence ought not to have been left to the jury at all. It was necessary in the article to set out all the facts and to justify them if comment on those facts was to be permitted. Gillard AJA said:

“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. The ground fails”. [272]-[273] (endnote omitted)


The defendants had not sought to justify the imputations pleaded by the plaintiff. Rather, in accordance with Polly Peck (above), they had relied on their own imputations and alleged that they were true in substance and in fact.

The totality of the evidence could not justify or sustain a verdict for the defendants in relation to any of the imputations relied on by the defendants. They should not have been left to the jury. Gillard AJA said:

“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”. [355]

Reservation of leave to move for judgment non obstante veridicto

The Court of Appeal was satisfied, having regard to the way in which the trial had proceeded and the need to deal with lengthy submissions in relation to the defendants’ defences, that it had been appropriate under the Rules to reserve leave to the plaintiff to apply for judgment non obstante veridicto. The judgment of Warren AJA, in particular, on this matter deserves close reading.

Exemplary damages

Bongiorno J had awarded $25,000 by way of exemplary damages based on comments made by the second defendant and published by the first defendant after the jury had given its answers but before delivery of his Honour’s judgment.

Gillard AJA said:

“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”. [442]

It followed that the award of exemplary damages should be set aside.

[It is understood that the appellants are to seek special leave to appeal to the High Court.]

PROFESSOR GREG REINHARDT is executive director of the Australian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website


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