Defamatorium ... The libel scene back then ... Marsden to the rescue ... All fires are suspicious, until they're not ... Jury breakthrough on the defamatory meaning of "homosexual" ... From Justinian's Archive, November 11, 2003
Marsden's media warpath
It's such an invigorating change from the tedium of our own small stage when we're propelled into the vortex of international affairs.
The NSW Supreme Court defamation action against SBS TV by Morgan Tsvangirai, the Zimbabwean Opposition leader, will take us right into the thick of the gruesome politics of the Dark Continent.
Tsvangirai is suing because Jana Wendt, the former hostess of the SBS show Dateline, told viewers that he has been "plotting to kill President Mugabe".
The Dateline story by steel-eyed Mark Davis (nowadays a lawyer) relied on information from a former Israeli intelligence officer, Ari Ben-Menashe, currently the head of an international spin shop, Dickens & Madson, which is employed by the Mugabe regime.
[More recently Ben-Menashe has been spin doctoring for the Myanmar generals.]
Anyway, the case has had a couple of interlocutory rounds in the Supreme Court with SBS asking for security for costs.
Morgan's solicitor here, the Camperdown based R.L. Whyburn & Associates, hammered out a deal with the broadcaster to the effect that the plaintiff would come up with $120,000 worth of security by the end of September, otherwise there would most likely be consent for the action to be struck out.
When the deadline loomed there was a flurry of anticipation. We now discover that the hero of Campbelltown, John Marsden, has come up with Morgan's security and the case is to proceed.
MarsBar recently settled his own mammoth defamation action against Channel Seven just after orders were issued by the Court of Appeal for a retrial on damages.
He is now a champion of those whose reputations have been sullied by the media.
It seems, too, that the famous urban terrorist Meredith "Keys" Littlemore will not be running the plaintiff's case. Rod Weaver has come on board for Mr Tsvangarai.
Peter Bartlett from Minters is handling it for the multi-culturally inclined broadcaster.
Imputations up in flames
Favell: defamation expert
Brisbane barrister Paul Favell and his missus Diana have had an awful setback in that tricky cauldron of jurisprudence, the Supreme Court of Queensland.
The Sunday Mail, applied to Helman J to strike out the entire slate of 46 defamatory imputations pleaded by the distraught plaintiffs.
The action arose from an article in the Mail published on January 19, 2003, which the judge recited in full. The relevant portions read:
"A multimillion dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.
Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-story block of units.
Barrister Paul Favell, his lawyer wife Diana and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted ...
It is understood neighbours had planned a meeting to protest against the impending unit development ...
Police said investigations into the cause of the fire were continuing.
Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.
'All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry,' he said ..."
From that the Favells pleaded that the article imputed they were guilty of arson or there was a reasonable suspicion they were guilty of arson.
Helman found for the newspaper, saying that those meanings could not be gleaned from the article. He struck out the whole lot in one bang citing the famous case of Farquhar v Bottom as his authority.
Newspaper gets a smack
McClintock: barrow pusher
Back in Sydney a Supreme Court jury accepted most of former Gadens partner Robert Kelly's imputations arising from a small item last February in The Sun-Herald.
The paper reported a stunt by a bondage aficionado to promote the Gay and Lesbian Mardi Gras, but unfortunately got the identities muddled.
There was a picture of a chap without a shirt strapped to a piano in Hyde Park. The caption read: "TORT, Rob Kelly accepts a brief on bondage."
The jury was shown the article which said:
"... it's lawyer Rob Kelly in Hyde Park practising his piano-top bondage display as part of this year's street performance at the Gay and Lesbian Mardi Gras. Kelly, the Queensland Performing Arts Trust chairman, is a senior partner with law firm Gadens. Truly."
Oh no. The Gadens' Rob Kelly is not a bondage specialist with an interest in alternative lifestyles.
The jury found that the imputation that the plaintiff is a homosexual arose from the item, but it was not defamatory. Nor was it defamatory to say the plaintiff was an "exhibitionist".
While some judges might disagree on whether it is defamatory to call someone a homosexual, here we have a jury in NSW who thinks there's nothing wrong with that.
This was despite the strenuous urgings of Kelly's mouthpiece, Bruce McClintock, who told the jurors:
"... there are many derogatory words for homosexuals ... there are laws discriminating against homosexuals. Those laws exist because people think less of people who are homosexuals."
Imputations of hypocrisy and lying fared better.