In a judgment handed down on 30 June 2015 ( FCA 652), the Federal Treasurer, Joe Hockey, has been awarded damages totalling $200,000 over a poster and two tweets which accused him of “corruptly soliciting and accepting payments to influence his decisions as Treasurer of the Commonwealth of Australia”.
Federal Court Justice Richard White rejected Hockey’s case in respect of a number of articles in print and online, finding none of Hockey’s pleaded imputations of bribery and corruption were conveyed.
However, he found a Sydney Morning Herald poster consisting almost solely of the words “Treasurer for sale” and two similarly worded Age tweets authored by theHerald’s editor in chief, Darren Goodsir, were published maliciously.
His Honour declined to award aggravated damages, stating:
“On my findings, the refusal of the SMH and The Age to provide apologies was justified in relation to most of the publications…”
Hockey commenced defamation proceedings against three Fairfax companies – Fairfax Media Publications, The Age Company and The Federal Capital Press of Australia – over a suite of articles, a poster and two tweets published in The Sydney Morning Herald, The Age and The Canberra Times on May 5, 2014.
The articles claimed Hockey was providing “privileged access” to a “select group” in return for donations to the Liberal Party via a “secretive” fundraising body, the North Sydney Forum, whose activities were not disclosed fully to election funding authorities.
Apart from the print version of The Canberra Times, each publication featured the words “Treasurer for sale” or “Treasurer Hockey for sale” prominently.
Hockey pleaded the following imputations for the publications:
(a) He accepted bribes paid to influence his decisions as Treasurer of the Commonwealth of Australia.
(b) He was prepared to accept bribes paid to influence his decisions as Treasurer of the Commonwealth of Australia.
(c) He corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia.
(d) He is corrupt in that he was prepared to accept payments to influence his decisions as Treasurer of the Commonwealth of Australia.
(e) He corruptly sells privileged access to himself to a select group which included business people and business lobbyists in return for donations to the Liberal Party.
(f) He knowingly permitted a Liberal Party fundraising forum with which he was associated to accept money from the corrupt Obeid family.
Fairfax’s initial line of defence was that the imputations didn’t arise.
They also pleaded statutory qualified privilege (section 30), Lange qualified privilege (freedom of political discussion) and common law (Reynolds) qualified privilege in defence.
Justice White, an Adelaide-based Federal Court judge, heard the matter sitting alone in Sydney in March this year.
His 127-page judgment is methodical, exhaustive and particular.
It starts with the SMH articles – a front page story by state political editor, Sean Nicholls, headed Treasurer for sale: Joe Hockey offers privileged access continued on pages six and seven and a comment/analysis by the paper’s chief political correspondent Mark Kenny headed The price tag on Joe Hockey.
Justice White (pic) noted the articles featured seven questions Fairfax had directed to the NSW Liberal Party as well as the Party’s response and 12 questions it had forwarded to Hockey, and his response.
The main article appeared in The Age under the same “Treasurer for sale” headline and in The Canberra Timesunder the headline “Paying their way: how a select group buys access to the Treasurer”.
The SMH poster featured the words “EXCLUSIVE TREASURER FOR SALE HERALD INVESTIGATION”.
Justice White found none of the imputations pleaded for the articles would have been conveyed to the ordinary reasonable reader.
“None of the three articles conveys in any way that Mr Hockey had accepted personally the payments in question.”
He made some interesting observations in relation to the primary imputation pleaded by Hockey (e) – that he “corruptly sells privileged access to himself to a select group which includes business people and business lobbyists in return for donations to the Liberal Party”.
He observed that “ordinary reasonable readers are likely to regard a Minister, especially a Minister holding the high office of Treasurer, making access to him or her conditional on a donation to the Minister’s political party as both improper and a form of corrupt conduct”
However, taking the whole of the main articles into account Justice White concluded the reader:
“Would have understood the articles to be conveying that Mr Hockey was engaged in a non-corrupt form of fundraising which used the allure of his office … a practice which the SMH regarded as undesirable and inappropriate.”
He described Kenny’s article as “confirming” that understanding by raising an issue of principle with regard to the transparency of political donations.
“The SMH was reporting on a method by which access to Mr Hockey in his important role as Treasurer could be obtained by the payment of significant sums, but not that Mr Hockey himself, or his judgment or discretion, could be bought.
This was so despite the ‘strong and eye-catching’ headline ‘Treasurer for Sale’.”
The SMH poster and two Agetweets were a different matter.
Justice White determined that they were discrete publications, conveying assertions of fact.
“There was nothing in the poster to indicate that what was ‘for sale’ was a form of access to Mr Hockey in the context of a means of commonly accepted political fundraising …
The ordinary reasonable reader would have understood there to be an assertion that Mr Hockey was taking, or willing to take, payments which were influencing his decisions as Treasurer of the Commonwealth.”
His Honour made similar observations of the Age tweets, the first of which featured the “bare” statement, “Treasurer for sale” and a hyperlink, and the second which featured a summary in the following terms:
“Treasurer for Sale: Joe Hockey offers privileged access. Treasurer Joe Hockey is granting privileged access to a select group of business leaders in return for political donations totalling hundreds of thousands of dollars each year.”
He found both tweets conveyed imputations (c )/(d).
“A reader would have understood the summary to be indicating that Mr Hockey was providing access of a privileged kind in consideration for substantial political donations and, further, that the privileged access was available only to a select group of business leaders… In my opinion, ordinary reasonable readers would have regarded that as corrupt conduct.”
Hockey’s claim in relation to a third tweet which included Nicholls’ article as it appeared online, failed.
The question for Justice White was one of reasonableness on the part of the publisher.
He found the poster and tweets were unreasonable in their suggestion and alternative wording may have been appropriate. i.e. a poster which read “Hockey: donations and access. Herald investigation”.
While His Honour accepted Nicholls’ evidence as to the legitimate public interest in the story about the source, extent and influence of political donations, he also found “inadequacies” in the journalists’ steps to give Hockey an opportunity to respond.
“The most obvious shortcoming in the questions put by Mr Nicholls to Mr Hockey is that none of the questions raised the question of payment, sale by Mr Hockey of his time, sale by Mr Hockey of access to him in return for political donations or knowledge by Mr Hockey of the payments made by individual NSF members.”
Had he been required to do so, Justice White would have failed the section 30 qualified privilege defence.
Likewise the common law (Lange) qualified privilege defence, for the same reasons.
Justice White found that publication of the poster and tweets were predominantly motivated by an improper purpose – “personal animus towards Mr Hockey”, held by the Herald’s editor in chief, Darren Goodsir (pic).
“There is a good deal of contemporaneous evidence which indicates that he was intent on ‘getting back’ at Mr Hockey.”
He cited Goodsir being woken at 2.15am in relation to Hockey’s complaint about a previous article, having to publish a correction and an apology and his instruction to staff to “drop everything and start digging into the NSF”.
He found Goodsir “sought a headline which would be hurtful of, or damaging to, Mr Hockey”, but did not attribute malice to either The Canberra Times or The Age publications.
Describing Hockey as “a person of integrity” and the SMH poster and Age tweets as “a serious defamation”, Justice White estimated the appropriate damages at $200,000 in total – $120,000 for the poster and $80,000 for the two tweets.
“The awards cannot compensate Mr Hockey for all the hurt which he has experienced, because much of it results from publications which I have found not to be defamatory.”
His Honour is still to hear the parties on the question of an injunction, and costs.
For the applicant: Bruce McClintock SC and Sue Chrysanthou instructed by Mark OBrien and Paul Svilans of Johnson Winter & Slattery.
For the respondents: Dr Matt 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 post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.