The puzzle of Joe Hockey versus Fairfax continues to intrigue.
IA was in the Federal Court on 10 March 2015 to watch Hockey deny black was white and make a complete goose of himself.
But Justice White awarded $200,000 to Joseph for very specific reasons. Firstly, $120,000 for damage to the big fella’s reputation among those motorists who whizzed past a newsagent and saw a Sydney Morning Herald poster saying 'Treasurer for Sale' and, secondly, $80,000 for those unfortunate enough to be misled by an SMH tweet repeating the allegation.
Drivers and Twitter readers, White J opined, could easily have been misled that the Treasurer really was for sale and that, therefore, government could be bought.
But the same headline in print over the SMH copy was not defamatory because, in context, a reader would see the headline, read the story and realise the allegation was not true.
Hockey is not for sale, he just listens more closely to individuals and organisations prepared to contribute to the cause of St Joe. Nothing wrong with that ...
Because White has found nothing in the copy was defamatory to Hockey, the SMH allegations can be repeated – over and over again – that Hockey’s North Sydney Forum was up to its neck in selling access to the Treasurer for cash.
And now the SMH will extract its revenge. If Hockey thought the editor in chief Darren Goodsir had evinced some malice toward him with the 'Treasurer for Sale' headline, then he better get used to spelling Malice with a capital M.
On the afternoon of Thursday 2 July, the SMH ran a piece on its website headed:
Joe Hockey's defamation victory may yet turn to disaster
The article was not written by an SMH employee but was a reprint of an article first published on 1 July in The Gazette of Law and Journalism and written by Melbourne lawyer Geoffrey Gibson. The article was originally published under the heading Weighing Hockey, but Fairfax opted to use its own ominous headline.
Gibson speculates a grim fate for Hockey for letting his thin skin get the better of him.
Leaving aside Hockey's poor performance in the witness box, and the fact that Justice White did not accept Hockey's evidence that the access provided by the North Sydney Forum was the same as the access available to the person in the street, the real difficulty confronting the treasurer is the possibility of an adverse costs order being made against him.
Gibson, who probably knows these things, reckons Hockey’s costs are around $1 million. That is, after the $200,000 award, Joe and Mrs Joe are $800,000 net down the tube. But Gibson also reckons there is a chance Hockey might be up for part, if not all, of Fairfax’s costs of a further $1m. The logic is: while Hockey managed to convince the court the tweets and posters were, when seen in isolation, defamatory, Hockey failed to convince the court the substance of the SMH stories were untrue:
Ergo, Hockey lost on his substantive complaint.
The court, however, has a very wide discretion in awarding costs and, in circumstances where an unsuccessful party has succeeded on key issues, it may refuse to award the successful litigant costs in respect of those issues.'
Even more disturbing for the treasurer, in such circumstances, the court may order the successful party to pay the losing party's costs relating to those issues.
Justice White said:
If things go pear-shaped for Joe – and, let's face it, pretty much everything does – that could possibly mean a $1.8m total loss. That’s a lot of nights in a Mrs Joe’s Canberra renter.
Fairfax probably has pretty good defamation insurance, so its financial downside will be limited to an increase in premiums. Hockey, on the other hand, took action as an individual, so it’s unlikely he carried litigation insurance.
Of course, it is entirely possible the Hockey bank balance will not suffer even if costs are awarded against him because he has, well, resources he can draw on. It is the Liberal way.
The puzzle continues to be: why did Joe do it? He must have known the Fairfax allegations that cashed-up NSF members gained privileged access to his ear were true.
In court, he presented as an arrogant bully; maybe he was just so full of himself he thought the court might be cowed by his righteous outrage.
Or maybe it was part of a Team thing to see just how far they can go to frighten the media.
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