DEFAMATION UPDATE No. 2 - 10 January
2005 (No.
1 is HERE)
Report of the Supreme Court Hearing - 7 December
2004 and more...
Supreme
Court of Tasmania - No. 435 of 2003
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"I'm throwing
you a lifeline", said the Judge
A Tasmanian tale of how a politician, a newspaper and a
journalist, with teams of lawyers in Launceston and Sydney
get thrown a lifeline by the judge, when a litigant in person
starts to win. |
It doesn't appear in the written judgment (an Appeal
from the Master) but; "I'm throwing you a lifeline",
is what the judge said in Court to Mr.
Graeme Jones senior partner of Douglas
& Collins after finding difficulty understanding
the logic of his argument to amend the defences, as shown
at paragraph 13 of the judgment of Justice Blow, Supreme
Court of Tasmania, 7 December 2004 at, http://www.austlii.edu.au/au/cases/tas/supreme_ct/2004/147.html
Per paragraph 14 of the judgment the lifeline
consist of; |
| "If the plaintiff informed them of those
extrinsic facts at a time when he contemplated,
or ought reasonably to have contemplated, extremely
adverse publicity relating to his website, which
eventuated in the form of the publications complained
of, I think it could be argued t hat the Scelfo
principle is applicable and a self-identification
defence available." |
|
Thus it is suggested that, prior to my publication of
my website at the address of Discover-Tasmania.com
and prior to any publication in response to it, that maybe
I contemplated, or ought reasonably to have contemplated
someone would be dimwitted enough to wrongly publish the
defamatory allegations of liar, cheat and a fraud because
of a hyphen appearing in the address of the Discover Tasmania
website (the hyphen in the Discover-Tasmania.com.au
website was the subject of a World Intellectual Property
Organisation (WIPO) vindication at, http://arbiter.wipo.int/domains/decisions/html/2003/dau2003-0001.html).
As the existing or proposed defence pleadings on the day
of the hearing did not (and still doesn't) contain the allegation
that... I contemplated, or ought reasonably to have contemplated
anything, and the defendants did not even argue such a scenario,
the lifeline was a hypothetical creation of
His Honour, notwithstanding the fact that it is also totally
untrue.
Further, I am unable to to foresee (as is any ordinary person
who has done nothing wrong or negligent to start with) what
others may wrongly do. Thus if it is proved wrong to make
the accusation of liar, cheat and a fraud because of the
hyphen in Discover- Tasmania.com, the hypothetical lifeline
of the His Honour, if indeed it is even adopted by the defence,
would seem doomed to failure.
The lifeline thrown by the His Honour to the
defendant's highly paid teams of lawyers, exposes the difficulty
a litigant in person can experience. Oh well, this issue
will just have to go to trial and find out who is right......
I wonder if the trial judge will throw me a lifeline
if ... I ... happen to be gurgling underwater?
Meanwhile the defence continues its whining about the time
to get to trial and costs like a broken down record, and
what an interesting event the trial is shaping up to be. |
| Why the trial is shaping up to be an
interesting event |
FABRICATION OF PROPOSED EVIDENCE
Affidavit evidence dated 29 November 2004 has been filed
in the court as to the fabrication
of proposed evidence. As to that matter His Honour said
at paragraph 15: |
| "If the conversation did not take place,
and if it is the product of malicious fabrication,
it does not follow that any of the defendants or
their solicitors knew the truth, or any part of
the truth, in relation to the alleged conversation,
its non-existence, or its contents." |
|
Considering that the proposed fabricated evidence had
the potential to destroy the plaintiff's case if it wasn't
fabricated, it is perhaps surprising or maybe not surprising
that Mr.
Graeme Jones senior partner of Douglas
& Collins (albeit, after being threatened with a
police complaint) now says that the evidence is irrelevant
whilst declining to elaborate on its fabrication.
Considering that it is a material fact that the proposed
fabricated evidence is an good example of what a competent
newspaper (and its reporter), being a member of the Australian
Press Council and claiming to adhere to the APC
principles should actually do before it publishes the
identity of a person as a liar, cheat and fraud, a subpoena
will be issued to Heather Long who is the author of the
Examiner identifying
article and the alleged author of the proposed
fabricated evidence, to give evidence at the trial as
to what obligations herself and her employer (at the time)
the Examiner
Newspaper, had in these circumstances. |
THE INVOLVEMENT OF THE MERCURY
NEWSPAPER
A component of the current defences filed in Court that
appears to be highly relied upon by the defendants, reads
as follows at a particular (b): |
| That on about Friday 22 November 2002 the plaintiff
spoke to Ms. Susan Bailey, a journalist employed
by the Mercury newspaper, and identified himself
as the designer and author of the website www.Discover-Tasmania.com |
|
| The plaintiff will be filing affidavit evidence from several
persons to substantiate what is written in the plaintiff's
reply dated 9 November 2004 and filed in the Court which
reads as follows: |
The plaintiff admits the allegations
of fact in particular (b) of the defence.
The plaintiff further says: |
|
(i)
|
That in the early evening of Friday
22 November 2002, Ms. Susan Bailey a journalist
employed by the Mercury newspaper, made threats
to the plaintiff's daughter and the plaintiff that
she was going to publish the plaintiff's daughter's
name in the following Saturday 23 November 2002
edition of the Mercury newspaper as a name and address
for the website unless the identity of the website's
designer and author was forthcoming. |
|
(ii)
|
Despite the plaintiff stating to
Ms. Bailey that his daughter had nothing to do with
the website Ms. Bailey persevered with the threat
to the plaintiff. |
|
(iii)
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By reason of the said threats,
the plaintiff identified himself to Ms. Bailey as
the designer and author of the website. |
|
(iv)
|
The plaintiff identified himself
under duress and did not willingly consent to the
identification. |
|
(v)
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By reason of the threats and duress,
the plaintiff made further unwilling
conversation with Ms. Bailey. |
|
THE INVOLVEMENT OF TOURISM
TASMANIA
Another component of the current defences filed in Court,
reads as follows at a particular (q): |
| At a meeting at the Hobart Coffee Shop on
4 December 2002 between the plaintiff and Mr. Robert
Hogan, General Manager, Communications and Information
Technology at Tourism Tasmania, the plaintiff said
that one of his objectives was that his site at
discover-tasmania.com would undermine the brand
values that Tourism Tasmania was promoting to the
world. He said he was not willing to part with the
disputed domain name because it provided a means
to inform people of the forestry practices in Tasmania
and he saw it as a right to do so; and that he was
investigating using a suite of "Discover Tasmania"
sites to generate business income by linking to
his commercial site. The plaintiff also expressed
anti-government views and anger at the tourism industry
for what he said was a subservient approach to government
policy on forestry. |
|
| The plaintiff will be filing affidavit evidence from several
persons to substantiate what is written in the plaintiff's
reply dated 9 November 2004 and filed in the Court which
reads as follows: |
| As to sub-paragraph (q), the plaintiff
further says: |
|
(i)
|
The meeting took place at the time
and place as stated. |
|
(ii)
|
The meeting was understood by
the plaintiff and Mr. Robert Hogan, General Manager
of Communications
& Information Technology at Tourism
Tasmania to be confidential and without
prejudice. |
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(iii)
|
A purpose of Mr. Hogan at the meeting
was to offer to purchase the plaintiff's domain
names by way of offering the plaintiff money and
employment. After asking the plaintiff how much
money it would take, Mr. Hogan offered the plaintiff
his own little IT section at Tourism Tasmania where
he would be in charge of such things as securing
domain names. |
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(iv)
|
The plaintiff declined the offers
made by Mr. Hogan who then informed the plaintiff
that the plaintiff would be surprised as to how
many people the Tasmanian government gets to work
for it by such offers of money and employment in
return for favour. |
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(v)
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In disregard of the abovementioned
confidentiality and without prejudice agreement,
Mr. Hogan, produced as evidence in the abovementioned
WIPO complaint DAU2003-0001, minutes of the meeting
that:
* were false in fact; or
* were misleading or deceptive by omission; and
* containing opinion erroneously construed to suite
the complainants claims; and
* were personally insulting. |
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