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| 'Victory' has an exciting new meaning after Hockey's Fairfax defamation win | 'Victory' has an exciting new meaning after Hockey's Fairfax defamation win |
| (35 minutes later) | |
| This is not a good outcome for Joe Hockey. According to the federal court on Tuesday, the articles in Fairfax’s three largest metropolitan newspapers and websites that he so vehemently insisted defamed him, did no such thing. | |
| It was the associated promotional aspects – posters and tweets – that resulted in the award of $200,000 to assist the treasurer salve his hurt feelings. | It was the associated promotional aspects – posters and tweets – that resulted in the award of $200,000 to assist the treasurer salve his hurt feelings. |
| Related: Joe Hockey's defamation crown sits a little askew | Related: Joe Hockey's defamation crown sits a little askew |
| The Sydney Morning Herald described it as a “partial” victory. From Hockey’s point of view it’s not even as good as that, when you consider he asked the federal court for more than $1m in damages. He’s certainly not been “overly vindicated”. | |
| When it comes to the costs of the case it’s probably a lot worse for the “successful” plaintiff. Since he lost the substantive part of the litigation about the defamatory meaning of the articles, and since most of the time at the trial was spent on that issue, Fairfax would be entitled to ask for a differential costs order. | When it comes to the costs of the case it’s probably a lot worse for the “successful” plaintiff. Since he lost the substantive part of the litigation about the defamatory meaning of the articles, and since most of the time at the trial was spent on that issue, Fairfax would be entitled to ask for a differential costs order. |
| Hockey’s and Fairfax’s legal costs would be of the order approaching $1m each. Sydney media lawyer Graham Hryce points out that the court has a discretion to award costs to a losing party where that party has succeeded on key issues. | Hockey’s and Fairfax’s legal costs would be of the order approaching $1m each. Sydney media lawyer Graham Hryce points out that the court has a discretion to award costs to a losing party where that party has succeeded on key issues. |
| Three-quarters of Hockey’s case failed and if there was a differential costs order in favour of those parts that Fairfax successfully defended, Hockey can say goodbye to his $200,000. It will be gobbled up in costs, plus more. | Three-quarters of Hockey’s case failed and if there was a differential costs order in favour of those parts that Fairfax successfully defended, Hockey can say goodbye to his $200,000. It will be gobbled up in costs, plus more. |
| The treasurer may yet rue the day that he ever embarked on this misadventure. The hideous prospect of an expensive appeal that will tie him up in a squabble over imputations and damages is the last thing anyone wants – let alone a senior politician. To think that this would be a clean win, in and out of court with a bag full of money, shows the treasurer’s misjudgment. | |
| Essentially it was important journalism that was under attack in this case: an article published across the Fairfax platforms by the Sydney Morning Herald’s state political correspondent, Sean Nicholls, on an aspect of the murky relationships between politicians and the people and organisations funding their political parties. He wrote: | |
| Treasurer Joe Hockey is offering privileged access to a select group including business people and industry lobbyists in return for tens of thousands of dollars to the Liberal Party via a secretive fund-raising body whose activities are not fully disclosed to election funding authorities. | Treasurer Joe Hockey is offering privileged access to a select group including business people and industry lobbyists in return for tens of thousands of dollars to the Liberal Party via a secretive fund-raising body whose activities are not fully disclosed to election funding authorities. |
| The problematic headline, “Treasurer for sale” was devised by the paper’s editor-in-chief, Darren Goodsir. | The problematic headline, “Treasurer for sale” was devised by the paper’s editor-in-chief, Darren Goodsir. |
| Hockey pleaded a range of meanings: that he accepted bribes, that he corruptly solicited payments to influence his decisions and that he corruptly sells privileged access to a select group. | Hockey pleaded a range of meanings: that he accepted bribes, that he corruptly solicited payments to influence his decisions and that he corruptly sells privileged access to a select group. |
| Justice Richard White, who sat without a jury, wrote a careful and thorough judgment in which he found none of those meanings arose in the articles. | |
| The articles were not saying that Hockey personally accepted payments. It was the mechanism that allowed access to one of the country’s most senior politicians, in exchange for money to the Liberal Party, that was the focus of the journalism. | The articles were not saying that Hockey personally accepted payments. It was the mechanism that allowed access to one of the country’s most senior politicians, in exchange for money to the Liberal Party, that was the focus of the journalism. |
| Fairfax counsel Dr Matt Collins QC landed the killer blow by persuading the judge that none of the meanings contended by Hockey could be found in the stories. As the judge put it: | Fairfax counsel Dr Matt Collins QC landed the killer blow by persuading the judge that none of the meanings contended by Hockey could be found in the stories. As the judge put it: |
| 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. | 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. |
| Bruce McClintock SC, for Hockey, had said during the trial, that once the imputation of corruption had been found, “the case is over”. It was never found in the articles, and it wasn’t over. It’s still not over. | |
| Well-researched stories that show the workings of our democratic process are all too rare. Fairfax recognised this one had to be defended to the hilt. If newspapers cannot delve rigorously and accurately into who is funding politicians and their political parties, then we live in a democracy in name only. | Well-researched stories that show the workings of our democratic process are all too rare. Fairfax recognised this one had to be defended to the hilt. If newspapers cannot delve rigorously and accurately into who is funding politicians and their political parties, then we live in a democracy in name only. |
| The defences at law available to media organisations in defamation are not generous. That’s why plaintiffs invariably walk away with something. | |
| The publisher regarded the Hockey case, on appeal, as a ready-made opportunity to clarify and if possible, expand the high court’s 1997 judgment in Lange v Australian Broadcasting Corporation. In that case, the court developed an implied constitutional freedom of communication about government and politics, known as the Lange principle (after David Lange, a former prime minister of New Zealand who sued the ABC in Australia). | The publisher regarded the Hockey case, on appeal, as a ready-made opportunity to clarify and if possible, expand the high court’s 1997 judgment in Lange v Australian Broadcasting Corporation. In that case, the court developed an implied constitutional freedom of communication about government and politics, known as the Lange principle (after David Lange, a former prime minister of New Zealand who sued the ABC in Australia). |
| Unfortunately, the Lange defence has never really worked for the media. It is corralled by hoops of fire through which journalists have got to jump, unscathed. | |
| So here, if Hockey’s imputations had not been knocked out, the journalism would not have passed the reasonableness test because, among other things, the questions put to the treasurer to secure his response were found not to be adequate or timely. | |
| It’s these tricky and overly precious requirements that usually send the journalist down in flames. | |
| Related: Hockey v Fairfax: another strong headwind buffeting responsible journalism | Richard Ackland | Related: Hockey v Fairfax: another strong headwind buffeting responsible journalism | Richard Ackland |
| Because the Age’s tweets and the SMH poster (Treasurer For Sale) were published without the careful context of the full article, they were not defensible. Further, the judge found they were published with “malice”. | |
| The text messages and emails Darren Goodsir sent to other editors and staff about Hockey, and his demands for an apology over an earlier article, allowed the judge to find that the poster and tweets were predominately motivated by “personal animus towards Mr Hockey”. | The text messages and emails Darren Goodsir sent to other editors and staff about Hockey, and his demands for an apology over an earlier article, allowed the judge to find that the poster and tweets were predominately motivated by “personal animus towards Mr Hockey”. |
| “There is a good deal of contemporaneous evidence which indicates that he was intent at ‘getting back’ at Mr Hockey.” | “There is a good deal of contemporaneous evidence which indicates that he was intent at ‘getting back’ at Mr Hockey.” |
| News Corp papers this morning were crowing about the treasurer’s magnificent victory. An outcome in which the plaintiff loses three-quarters of his case and now faces the prospect of coming out behind on the money, brings an exciting new meaning to the word “victory”. | News Corp papers this morning were crowing about the treasurer’s magnificent victory. An outcome in which the plaintiff loses three-quarters of his case and now faces the prospect of coming out behind on the money, brings an exciting new meaning to the word “victory”. |