Case Law, Australia: Sandra De Poi v Advertiser News Weekend Publishing Company Pty Ltd, MP’s ex loses “dishonest electoral practice” defamation action – Yvonne Kux

13 03 2015

gazetteSandra De Poi, the former partner of South Australia Labor MP Leon Bignell and a WorkCover board member, has lost her defamation action against the publisher of The Sunday Mail.

In her judgment in the case of De Poi v Advertiser-News ([2015] SADC 21) South Australia District Court Judge Julie McIntyre found the paper had proved the truth of an imputation that De Poi had “knowingly engaged in and placed herself at the centre of dishonest electoral practices”.

“It is my view that the plaintiff, notwithstanding her denials, was aware of the capacity of this strategy to mislead voters.”

Background

Sandra de PoiSandra De Poi (pic) who runs the injury management and occupational rehabilitation provider De Poi Consulting, brought defamation proceedings against Advertiser News over a story published in The Sunday Mail on March 28, 2010 titled “Bignell partner’s $10 million bonanza”.

It featured a photograph of De Poi at her then partner’s election booth in Mawson wearing a blue T-shirt with the words “Put Your Family First” and handing out how-to-vote cards that placed the Family First candidate first and giving the second preference to the ALP candidate.

The official ticket for the Family First Party gave second preferences to the Liberal Party.

The March 28 story followed several previous stories published in many media on March 21, 22, 23 and 24, all concerning the ALP’s so-called “Family First strategy”.

De Poi claimed it conveyed four imputations:

(1) She obtained substantial financial benefit through her close ALP connections and thereby demonstrated that she lacks integrity.

(2) She knowingly engaged in and placed herself at the centre of dishonest electoral practices.

(3) She was one of the main instigators of dishonest electoral practices, which conduct is consistent with her past history of a preparedness to place herself in conflict of interest in her professional relationships with a view to financial benefit.

(4) There are reasonable grounds to suspect her of having breached the code of conduct of the Australian Institute of Company Directors by having placed herself at the centre of dishonest electoral practices.

The Sunday Mail pleaded truth, contextual truth and Lange qualified privilege in defence.

Evidence

In reviewing the evidence given by witnesses for the plaintiff and the defendant, Judge McIntyre noted:

“In many respects there was not a lot of dispute concerning the objective facts. The main areas of divergence between the parties concerned the interpretation of the facts.”

Her Honour also noted that the plaintiff conceded under cross-examination that her role as a member of the WorkCover Board was a “legitimate matter of public interest” and had previously been reported during allegations of conflict of interest in 2008, which were found to be without substance.

It was uncontroversial that De Poi’s ex-husband David Gray was Bignell’s 2010 campaign manager and attended the Mawson electorate polling booth (Hackham West) on the same day De Poi was photographed.

Both De Poi and Gray denied having spoken to any journalists that day.

The Sunday Mail journalist in question, Sarah Garvis, gave evidence that she called a photographer out after noticing De Poi wearing a blue T-shirt with the words “Put Your Family First” and handing out how-to-vote cards.

She insisted she identified herself before De Poi responded with a “no comment”.

Photographer Patrick Gorbunovs corroborated Garvis’ version of events. The Mailjournalist who wrote the matter complained of, state political editor Brad Crouch, said he knew it would be “a big news story”.

Sallie Bennie, a Family First supporter, gave evidence that when she approached two male volunteers wearing the same “Family First” T-shirts and asked them who they represented, they told her “Labor” and said (laughing) “it’s legal”.

Judgment

Judge McIntyre rejected De Poi’s assertion that she had no specific knowledge of the ALP’s policies or those of the Family First Party at the time of the 2010 election, finding her evidence as a whole “demonstrated a sophisticated understanding of and interest in political matters”.

In contrast, she found evidence given by the journalists “cogent and compelling”.

Her Honour determined that Crouch had conducted reasonable research for his follow up story on De Poi, noting he conceded two assertions he made – that De Poi worked as campaign manager for leadership aspirant Jay Weatherill and was involved in the fundraising for faction heavyweight Patrick Conlon – were incorrect.

She found imputations (1) and (3) were not conveyed because they were “strained and extravagant”, but found imputations (2) and (3) conveyed and defamatory.

“I consider that the article conveys the imputation that the plaintiff knowingly wore the T-shirt and handed out the how-to-vote cards.

Indeed this is an accurate portrayal of what occurred according to the plaintiff’s evidence. She engaged in the practice consciously, albeit without prior planning.”

Further, she found:

“The article implies throughout that the ALP Family First strategy was misleading and dishonest. For example it describes the strategy as ‘Labor’s how-to-vote dodgy document scandal’ and ‘an apparent ruse’. Elsewhere it refers to ‘the tactic of seemingly impersonating other parties’.

Truth

Judge McIntyre concluded:

“The scheme was a deliberate strategy implemented by the ALP to gain second preferences from Family First voters in a seat where Family First had given its second preference to the Liberal party.

She was also satisfied De Poi’s involvement was conscious.

“Whilst I accept that she did not pre-plan her involvement, she considered the issue and discussed her concerns with Mr Gray before engaging in the activity…

I find that the plaintiff knew that she was participating in the scheme and that the scheme itself was dishonest when objectively considered.”

De Poi’s case was dismissed.

On 4 March 2015, the defendant was granted an order for indemnity costs.

This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.


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