On 16 March 2015, the Federal Court of Australia heard final addresses in the defamation action brought by the federal treasurer, Joe Hockey, against Fairfax Media. They illuminated more than just legal arguments – they have revealed the very different styles of counsel involved.
Hockey’s barrister Bruce McClintock SC has more than once been reprimanded by Justice Richard White for his legal flourishes and personal slights.
In the morning, McClintock (pic) was pulled up when he criticised an argument by referring to Fairfax barrister Dr Matt Collins QC as “no competent practitioner”.
White told McClintock his comment was: “A very low and unnecessarily pejorative way of putting it.”
McClintock calmed down enough to get his point across – that the truth or falsity of the objective facts was irrelevant to the section 30 qualified privilege defence.
It was a point he argued again during his final address, by citing passages from Collins on Defamation andDefamation Law and the Internet, two defamation law textbooks authored by his adversary.
Hockey is suing over a May 2014 story that investigated the North Sydney Forum, a Liberal Party fundraising organisation in his North Sydney electorate.
The story detailed how the NSF offers attendance at lunches and VIP events with the treasurer to people who pay membership fees of up to $22,000.
Justice White rejected several tenders by Fairfax going to Hockey’s credit – including the names of the members of the North Sydney Forum and excerpts from the forum’s website.
He did, however allow in a bundle of “reader reactions” to the stories, which McClintock seemed pleased about:
“They strongly support the damage to my client’s reputation”, he told Justice White.
Both counsel devoted much of their time to the same threshold issue. Do the articles and poster convey what Hockey says they do – that he’s corrupt?
Collins opened his submissions by stating that while Fairfax was not seeking an adverse finding of credit against Hockey, his evidence was clearly “unsatisfactory”.
He urged Justice White to treat Hockey’s evidence with caution, saying the treasurer “had the demeanour of a politician under cross-examination rather than someone who was a witness attempting to assist the court.”
Collins said Hockey’s evidence about not investigating what had been said about him on the North Sydney Forum website was “staggering”, given that he described it as “gravely misleading.”
Collins addressed the imputations at some length, arguing that they were “over-exaggerated” and pitched so high they couldn’t arise.
He urged Justice White to “look for the approximate centrepoint of a range of possible meanings”.
Based on the “suite of articles” it would not be perverse if he found an imputation that alleged, “there are grounds for investigating the connection between political donations and political influence” was conveyed.
“There’s a gulf between an allegation of guilt and grounds to investigate”.
Fairfax’s counsel rejected outright any suggestion of corruption or bribery and pressed the argument that the whole thrust of the stories was to ask whether the privileged access afforded some people to the treasurer was desirable for our democracy.
He said the article drew a clear distinction between a “corrupt process and a corrupt individual”.
“This is not a denial case, it’s a disclaimer case,” he said, referring to the first line of political correspondent Mark Kenny’s opinion piece:
“No one is suggesting the Treasurer is corrupt, but …”
On the question of Lange qualified privilege, Collins submitted here was “something special about freedom of political discussion”, but agreed that the issue of reasonableness superseded the Lange defence.
He reminded the judge that reasonableness was not perfection, and that the source of the information about the North Sydney Forum had in fact been the treasurer’s own office.
He said Hockey’s case on malice was “manifestly hopeless” because there was no evidence of the “predominant” motive required by law.
He urged Justice White to consider the case as a “single substantive event”, notwithstanding that three different proceedings had been commenced, with three possible damages awards resulting.
McClintock responded by asserting that the balance between protection of reputation and freedom of speech in defamation law “comes down squarely on my client’s side”.
There was no other possible interpretation of the words on the poster and on the front page, which said “Treasurer for sale”, he argued.
Nor could the practice of politicians selling access be anything other than corrupt, as evidenced in the following line:
“Mr Hockey offers access to one of the country’s highest offices in return for annual payments.”
McClintock submitted that defamation was a matter of impression, and the “overwhelming impression” was that his client is corrupt.
“Every one of the imputations is conveyed by Nicholls and Kenny.”
The reasonableness provisions of section 30 proved most complicated, as McClintock attempted to explain the nexus (irrelevant) between the truth or falsity of the allegations and the defence.
He submitted that if corruption was conveyed and Fairfax didn’t intend to convey it, the statutory qualified privilege defence failed.
“If the articles say my client is corrupt, it follows their conduct was unreasonable,” he argued.
When Justice White pointed out such a situation didn’t “leave much scope for a defence of qualified privilege”, McClintock was quick to reply: “That may be why it’s rarely successful.”
McClintock continued to pursue this line of argument, saying, “Once the imputations are there, the case is over.”
On the subject of malice, Hockey’s counsel sheeted the blame home to The Sydney Morning Herald’s editor in chief, Darren Goodsir, who has spent almost every day in court.
He described Goodsir’s evidence as “laughable” and submitted it was clear from his texts and emails that: “This article was conceived in malice as payback.”
Whatever Justice White decides, the case is expected to be appealed.
For the applicant: Bruce McClintock SC and Sue Chrysanthou instructed by Mark O’Brien and Paul Svilans of Johnson Winter & Slattery.
For the respondents: Dr Matthew Collins QC and Sandy Dawson instructed By Leanne Norman and Phillip Beattie of Banki Haddock Fiora and Gail Hambly and Richard Coleman (Fairfax Media).
This report originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.