Case study: Andrew Bolt and defamation

Andrew Bolt is a columnist for Melbourne newspaper the Herald Sun. Bolt is known for his forceful writing style, his strong conservative views and his outspokenness on political and social issues.

In 2002, Bolt and his employer faced legal action from Victorian magistrate Jelena Popovic, who alleged that Bolt had defamed her in a December 2000 column. The gist of Bolt’s article, headlined “We pay our magistrates good money to uphold the laws”, was that many of Victoria’s judges and magistrates, including Popovic, distributed light sentences and were generally soft on criminals. Of Popovic, Bolt specifically claimed that:

“[She] once hugged two drug traffickers she let walk free… On November 30, she presided over a hearing involving five protesters who had allegedly invaded the Indonesian consulate and burned its flag. Having already decided – before hearing any evidence – she would not punish demonstrators for destroying Indonesian property, Ms Popovic turned on the prosecutor.

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 am warning you now.”

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

Popovic took exception to these claims, particularly the allegation that she had “hugged two drug traffickers” and pre-judged the case of the Indonesian flag without hearing any evidence. She sought an apology and a retraction from Bolt and the Herald Sun, but both refused to provide this. As a result, she launched a defamation action against Bolt and his employer in the Victorian Supreme Court.

The jury initially found that although Andrew Bolt had defamed Popovic, the article was reasonable under qualified privilege because it was commenting on a public official. Outside the court, Bolt was interviewed by television reporters where he hailed the verdict as a “victory for free speech”, describing his column as “accurate and with the right motives”.

The matter was not yet concluded, however. The trial judge, Justice Bongiorno, overturned the jury’s verdict, finding that qualified privilege did not exist as a defence when commenting on judges or magistrates. The Constitution’s implied freedom of speech about politics and government did not extend to attacks on the judiciary.

Bongiorno ruled that the article suggested that Popovic was unfit for the office she occupied and behaved inappropriately for a magistrate. He also found that Bolt did not act reasonably because he failed to seek a response from Popovic before writing the article. Bolt’s testimony also suggested that he did not care whether or not the article was defamatory.

In June 2002 Bongiorno awarded Popovic $246,500 damages plus costs, which were estimated to be more than $400,000. This failed to silence Bolt, however, who four months later wrote of a group of protestors:

“It [has] taken three months of these protests for police to do anything serious… But when they finally did act and charged these five [protesters]… guess what? That’s right, all had their charges dismissed by the magistrate, Jelena Popovic. Hmmm. Maybe I should not have said that. After all, the last time I named this wonderful magistrate and described her Christ-like tolerance of some other law-breaking protesters, a judge made us hand her $250,000. Why not! Sure, the jury in fact had decided the magistrate should get nix, nil, nothing because my criticism of her was reasonable. But, as her barrister argued, the jurors must have been ‘nuts’ to agree with A. Bolt.”

In November 2003, Bolt and the Herald Sun had the ruling reviewed by the Court of Appeal. The appellate judges reduced the damages payout to $221,500 but otherwise upheld Bongiorno’s ruling. “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”, said Justice Gillard in the appeal judgement.

An attempt by Andrew Bolt and his employers to have the matter heard by the High Court failed in 2004 when they were refused special leave to appeal.