Defamation and other misadventures
Thursday, April 22, 2004
Justinian in Bail, David Levine, Defamatorium, Deja Vu, John Marsden, Paul de Jersey, Theodora

So sexy, said the actress of the Chief Justice ... Daphnis dunks women in hot water ... Another (male) judge frocks-up ... Inside Madge's mouth ... Stephen Archer defamed ... David Levine strangles more English ... Justice Dean Mildren "the idiot" ... From Justinian's archive, April 22, 2004 

WHAT can one make of Kate Fitzpatrick’s romp under the title of Name Dropping, An Incomplete Memoir (HarperCollins, RRP $32.95)?

She outs herself as a lawyers’ groupie, which is a pretty grim state of affairs.

In London she dallied with a famous silk, in Sydney turned down an offer of marriage from Frosty Tom, lived with Charles Waterstreet (to her great cost) has a “lifelong platonic friendship” with Michael McHugh (“he respected my intelligence”), and was a “projects officer” for Peter Collins “QC”.

The book, she says, has been thoroughly legalled and adds that she has been taught the defamation law by her “dear friends”, some of the best QCs in the game.

As well she might. After all, who can forget Kate’s own fabulous defamation action against The Telegraph in 1983 after the newspaper declared the actress was at a Raw Prawn Logies’ function, when she was in fact sick in bed at home?

Famous QCs had inspected her on the sick bed. The jury awarded her damages of $10,000.

However, it is her description of Smiler Gleeson that is most challenging: “The sexiest man I’ve ever met.”

*   *   *

Queensland’s Daphnis de Jersey is rightly famous for the deftness of his touch.

Female lawyers gathered last month for a Women in Justice knees-up where first hand they saw just how deft the Chief Justice could be.

He told the beaming delegates that the Supreme Court of Qld had the highest proportion of women judges of any superior court in Australia, save for the Family Court.

Just as everyone was feeling lovely and cosy inside came this curious finishing flourish which Daphnis attributed to Eleanor Roosevelt, “a formidable role model”:

“Women are like teabags,” he declared. “Put them in hot water and they get stronger.”

Teabags, indeed! Inward moans filled the air. 

*   *   *

Dutney J, in dragWhile on the judiciary in the Sunshine jurisdiction, I thought I should share with you a snap of Justice Peter Dutney [RIP] relaxing at a Bar ‘N Grill function in Rockhampton.

I’m sure you will agree that His Honour hasn’t got bad pins for an old scrubber. 

*   *   *

John (“Madge”) Marsden [RIP], has been been in thr habit of issuing detailed bulletins about his health. The most recent instalment  was issued by email to “partners, family and Glenn Holloway”.

The details of Madge’s cancer treatment are far too long and grammatically challenging to provide in full. Vignettes will have to suffice.

As he puts it, “The reasons for the blood stem cell transplant is (sic) because”: the bone marrow itself is diseased and with solid tumours transplantation is necessary.

The process is described in loving detail:

“My own blood stem cells are collected from either peripheral blood or bone marrow. These stem cells are cryo-preserved and stored. At a later date, that is 12th May 2004, after treatment with high dose chemotherapy and/or radiotherapy my own blood stem cells are thawed and returned to myself.”

The idea of being infused with his own cells is something that enthrals Madge.

However, no one could say the side effects are pleasant. For instance, after the treatment the former President of the NSW Law Society cannot have children, yet he handles the tough news quite philosophically, saying that it’s “a waste of time anyway”.

Happily, “the ability and desire to participate in sexual activity is only affected for a short time during and after your (sic) transplant. That is good - I wonder for how long, they don’t tell you but I hope it’s not for bloody long.”

Then there is Mucositis (sore mouth):

“I won’t be able to have a toothbrush I will have excess saliva and they will have to give me morphine. What really worries me about that is that Mum had that, and I used to go into the hospital and see Mum’s mouth looking so terrible I had a friend who saw me in Bangkok with one cold sore and he did not like it. So what will he say with a mouthful?”

Maybe that’s enough information for now about Madge’s mouth. 

*   *   *

Trouble at court. A deputy register of the NSW Supreme Court has filed for unfair dismissal after she was sacked allegedly for infiltrating a hidden camera into the registrars’ room.

The footage was then given to Channel Seven’s Today Tonight for an exposé on how the courts allow the banks to treat defaulting mortgagors with undue harshness.

Yolande Dubow is the former deputy registrar at the heart of the storm. Previously she was the researcher for the President of the Court of Appeal.

If she did indeed plant the camera by all accounts she performed a selfless civic service in bringing rotten practices to light.

After all, the High Court found in the Lenah Game Meats case that it was all right for the ABC to broadcast footage from a hidden camera revealing the slaughtering and processing of brush tailed possums. Why not the slaughtering of mortgagors broadcast on Channel Seven? 

*   *   *

Archer: defamed over allegation that he failed to pay taxAt the NSW Dizzo on Monday (April 19) a jury smiled kindly on multiple bankrupt, serious tax malingerer and deticketed barrister Stephen Archer.

The chumpy, red wine connoisseur is suing The Newcastle Herald for publishing that he transferred his wealth to Mrs Archer in 1988 in a separation agreement and so claims to be dependant on her while at the same time living in the lap of luxury.

Interestingly, the article, published on February 28, 2003 claimed that Archer spends $14,000 a year on wine, yet has to ask his wife to shell out for a train ticket.

The pleaded imputations are:

(a) That in 1988 the plaintiff made a separation agreement to transfer his assets to his wife for the fraudulent purpose of avoiding his obligations to pay income tax.

(b) That the plaintiff is a dishonest person because in 1988 he made a separation agreement with his wife to transfer his assets to her for the purpose of avoiding his obligations to pay income tax.

Any suggestion that Archer dodged his obligations to pay tax is most offensive.

The jury of four agreed and found both imputations arose and were defamatory.

Judge J.C. Gibson commented: “I was a little surprised at the jury’s verdict – but not much.” 

*   *   *

It is not only defamation juries that can behave strangely. Judges too are not immune from concocting their own brand of tortured reasoning.

Levine: longwindedTake Justice David Levine, who still hears libel cases even though he is no longer the NSW Supreme Court defamation list judge. Slices from two of his latest judgments illustrate the point.

In Dr William McBride v John Fairfax Group Pty Ltd and Norman Swan the judge was determining an application to dismiss the case for want of prosecution:

“I do not, however, think it appropriate to determine whether or not now Dr McBrides action be dismissed in the context where nothing was done for an extended period of time, but not without explanation as far as the plaintiff was concerned, and nothing was done by the defendants at all save for deciding not to file their defence, by applying to that vacuum, as it were, an approach that the overriding purpose has somehow been offended and therefore the plaintiff should be deprived of an opportunity to pursue his remedy.”

I could not have put it better myself. Needless to say, the defendants were done in the eye.

Then days later in John Harvey v John Fairfax Publications Pty Ltd, Levine was dealing with an application by the plaintiff to add fresh imputations after the Court of Appeal ordered a new trial confined to one imputation. There’s nothing like a 138 word sentence to capture the essence of the thought:

“I am of the view that the plaintiff is disentitled to the relief he seeks by reason of the first leg of the Anshun argument advanced for the defendant not being excluded by authority, that is, in such a circumstance as the present, the fact that there is no separate proceedings in which the status of the latter is considered in relation to the former, does not preclude the application of the same principles; secondly, if that be incorrect, and on the second basis advanced for the defendant, that on an abuse of process basis cognate with the principle in Anshun, the plaintiff should fail, as the plaintiff should fail by reason of the peculiar nature of the existing order on foot of the Court superior to me, that there be a new trial limited to imputation (a).”

Two fine entries for the “Run That Past Me Again” awards. 

*   *   *

Justice Mildren: "idiot" “Who is the idiot who did that?” Justice Dean Mildren demanded to know in the Supreme Court of the Northern Territory.

Before him was serial burglar Tryston Ellis, 18, who had pleaded guilty to 46 charges of unlawful entry, stealing and aggravated burglary.

What had completely got up His Honour’s nostrils was the fact that some “idiot” had given Ellis bail on seven previous occasions, only to have the self-confessed “low life” return to his criminal ways.

Mildren J was “absolutely staggered” by this grant of bail. “No wonder the people of Darwin are tired of their houses being broken into. The victims must be saying, ‘the system has failed me’.”

“He is back before this court with 40-odd offences and everyone’s been dancing around saying he has to go to the drug court. What absolute rubbish. This court should have been dealing with him, not the drug court.”

You couldn’t get it much clearer than that.

Next day things were a bit sombre at the Supreme Court as it dawned that Deano himself had contributed his fair share towards the failure of the system.

HH conceded that he was the “idiot” who granted bail for Ellis on the most recent occasion. He had just forgotten and that if he’d known the extent of the re-offending it would never have happened.

His apologies to the public and to the victims could not have been more heartfelt as he sent the wretch down for 12 years.

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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