The Australian treasurer, Joe Hockey, has won a defamation case against one of the country’s largest media outlets over a newsstand poster and tweets the treasurer argued implied he was corrupt and “for sale” to political donors.
Justice Richard White found the poster and tweets, published by Fairfax Media on 5 May 2014, had defamed Hockey, and were published with malice – an intention to harm the treasurer’s reputation.
He awarded the treasurer $120,000 for a Sydney Morning Herald newsstand poster, headed “Treasurer for sale”, and $80,000 for two tweets – reading “Treasurer Hockey for sale” – sent by the Age.
However, he dismissed the remaining claims relating to the articles themselves.
The Fairfax stories detailed how a fundraising body, the North Sydney Forum, offered a place at lunches and events with Hockey in exchange for membership fees of up to $22,000.
Money paid to the forum was passed on to the Liberal party as donations.
In his judgment, White said some ordinary reasonable readers who saw only the newsstand poster, without reading the story, were likely to have understood “that the SMH contained an article concerning corrupt conduct by Mr Hockey”.
“The words ‘for sale’ implied that that conduct involved the receipt by him of payment of an improper kind, or a willingness on Mr Hockey’s part to receive such payments,” White said.
“In context, 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.”
He understood the need to promote stories, but said: “There were readily available alternative formats of the poster by which the SMH could have promoted its articles. A poster which read ‘Hockey: donations and access. Herald investigation’ may, for example, have been appropriate.
“Similarly, the 140 character limit on tweets would still have permitted alternative forms of eye catching promotion of the articles,” he said.
White said the articles themselves did not suggest payments to the forum were being in exchange for influence on decisions, or that Hockey pocketed any of the funds.
“On the contrary, ordinary reasonable readers would have understood that the printed articles were referring to payments which were in the nature of political donations to the Liberal Party, albeit paid as membership fees to the [North Sydney Forum],” he wrote.
White also found “inadequacies” in the steps taken by Fairfax reporters to obtain responses from Hockey to the claims in the stories, which he said accentuated the “unreasonableness” of the tweets and poster.
He said Fairfax had failed to make the case its defamatory claims were justified in the public interest, but even if they had, such a defence would have been extinguished by the malicious intent of Darren Goodsir, the editor-in-chief of the Sydney Morning Herald.
Goodsir had been motivated by “animus towards Mr Hockey”, White said, arising from being called in the middle of the night in March 2014 by one of the treasurer’s staffers, and Hockey’s demand that an earlier story be corrected and apology be published.
“In my opinion, the so called ‘apology’ had a begrudging quality about it. It is consistent with Mr Goodsir being resentful of having been required to provide it,” White said.
“There is a good deal of contemporaneous evidence which indicates that he was intent on ‘getting back’ at Mr Hockey.”
A Fairfax spokesman said the company acknowledged the judgment, but noted: “Mr Hockey’s claims were only upheld in respect to the publication of the SMH poster and two tweets by the Age because they lacked the context of the full articles … no claims were upheld with regard to the Canberra Times.”
“The articles were found to be well researched and accurate,” he said.
“All of Mr Hockey’s other claims were dismissed,” he said. “Fairfax is giving full consideration to the Court’s 120-page judgment before determining its position regarding appeal.”
During a six-day federal court hearing in March, Hockey testified he was “absolutely devastated” by the stories, which his lawyers said implied he was accepting bribes to influence his decisions as treasurer, and that he corruptly sold privileged access. The treasurer claimed his frail father had broken down reading the coverage, and that his daughter has asked whether someone was trying to buy him.
His barrister, Bruce McClintock SC, had asked the court to award “aggravated damages”, claiming Hockey had been subjected to “almost a full day” of cross-examination on matters that were “manifestly irrelevant”.
He said the article had been published maliciously, pointing to texts from Goodsir in the lead-up to publication that read: “Given what Andrew [Holden, editor of the Age] and I endured last week with Hockey, I want to have this nailed to the cross in more ways than one”.
Fairfax had argued there was “not a scintilla” of a suggestion in the reports that Hockey was corrupt or had personally kept the money from donors to the North Sydney Forum, and that no “ordinary, reasonable reader” would conclude from the stories the treasurer was corrupt.
Its barrister, Matthew Collins, QC, had argued the stories did not suggest the fundraising activity was illegal, but had instead asked whether it was “desirable for Australian democracy”.
Jason Bosland, from the Centre for Media and Communication Law at the University of Melbourne, said the outcome was largely in keeping with past judgments in defamation cases.
“But it does reflect a broader problem with defamation law, and that is essentially allowing politicians to sue on matters which are relevant to the public interest,” he said. “That’s where we see a chilling effect.”
A hearing on orders, costs and injunctions was set for Thursday 9 July.
