Thread by @ExposingNV

🧵Moira Deeming v John Pesutto

Day 3 of Closing Submissions and Final Day of the Hearing!

#DeemingvPesutto

Yesterday Dr Collins KC made some compelling arguments re: the republication of Pesutto's Media Release in MSM. After Collins' closing submissions, Sue Chrysanthou SC (SC) will give her Reply. Will be interesting to hear how she rebuts this argument.

After a 5 minute delay, Court is now in session again!

Dr Collins KC continues his Closing Submissions

Collins is dealing w/ some matters arising from yesterday regarding the defamatory meanings of the Media Release. Collins quoting transcript from earlier case management hearing before a different judge - that judge expressed concerns about the number of imputations (cont)

Deeming pleaded in her Statement of Claim.

Judge needs to look at impression conveyed by a publication & determine the sole/single meaning.

Collins: "You have to identify the meaning you rely on. Closest Mrs Deeming has ever come to do that was on Tuesday when my learned friend made the submission that the Media Release carries the imputation that Deeming, by reason of having associated w/ ppl who have (cont)

abhorrent views inconsistent w/ values of wider community and the Liberal Party isn't fit to be a member of Parliament".

Dr Collins now addressing the serious harm argument made yesterday. Yesterday Collins made the point that no journalist interpreted the Media Release as accusing Deeming of being a Nazi. It would be a v unusual case where a judge found that a publication carried some (cont)

natural and ordinary meaning but in the actual world no-one actually did. If HH thought there was a link to be made btw Mrs Deeming & the neo-Nazis, then what is that connection? Yesterday HH suggested that the true meaning of the Media Release was that Deeming had (cont)

involvement in organising a neo-Nazi rally. Collins says that's problematic for Deeming as none of the 23 imputations pleaded in her Statement of Claim makes any reference to organising a neo-Nazi rally

Collins says however, if any ordinary person came to that interpretation, they could only do so if they ignore lines 5-7 of the Media Release.

Judge says to Collins, so the hypothesis you are articulating is that: it should give a judge pause to wonder whether some view they were contemplating could be what the ordinary reasonable reader thought even though no-one actually thought that

Collins says the role of the judge is to ask this question when reading the publications: what is the single right true meaning carried by this publication?

A publication can have a range of possible meanings but judge has to find the right true single meaning

LOL Collins mentions he doesn't like some of the new amendments to the Defamation Act, such as serious harm test.

SC chimes in: "These amendments are a waste of everyone's time and money"

HAHA

Collins now returning to his principal submissions

He addresses the Expulsion Motion and Dossier. He says the parties aren't too far apart re: defamatory meaning of the Motion and Dossier

These are the defamatory meanings that Deeming says arise from the Dossier

And these are Pesutto's:

Collins says if HH accepts his submissions in respect of defamatory meaning, then Deeming has no cause of action in respect of 4 of the publications, leaving only the Expulsion Motion and Dossier. In that scenario, it cannot be said that Deeming has suffered serious harm

Serious harm is one of the elements Deeming needs to prove to succeed in her case

If HH accepts Collins' submissions in respect of some of the defamatory meanings but not all, then the analysis becomes far more complicated. HH will need to look at the publications, work out whether the defamatory meaning & then look at the extent to which that meaning (cont)

was republished in MSM

Collins now addressing credit

He says he won't be making submissions that she was a dishonest witness. But he will submit that she was an unreliable witness.

Collins says if the pretext theory argued by SC yesterday, that requires HH to find that Pesutto engaged in grave dishonesty. Collins says that is an extremely serious allegation & not one HH should make lightly. A very cautious approach shld be taken.

Collins now addressing the recording of the 19 March meeting

Judge: "Recording demonstrates beyond a shadow of a doubt, the recollection of every person at that meeting, was wrong. Human experience means that's not a remarkable proposition"

Collins says he doesn't seek any credit finding re: Deeming's recollection of that meeting. Collins says SC wants HH to find that everyone in the leadership present at that meeting lied. That's an extraordinarily grave finding to be made, and wasn't put to the witnesses

Collins now addressing the late production of the recording by Pesutto. Collins says Pesutto learnt of the existence of the recording 9 months or so after the meeting. Pesutto was surprised the meeting had been recorded & didn't think it was his evidence to disclose.

Collins accepts that fact Pesutto didn't mention the recording in his affidavit - it would be open to HH to be critical of that. But what does [concealment of the recording] go to? Collins says the recording supports Pesutto's honest opinion defence, as what he told (cont)

Deeming at the meeting is the same thing he said in the Media Release.

Collins: Having made the decision [to move the motion], the question is then whether it was faithfully reported to the public & did it represent Pesutto's honest opinion & did he honestly believe it was in the public interest to communicate the decision to the public?

Collins now addressing credit of Deeming in more detail. He says Deeming's evidence was often characterised as difficulty understanding difference btw what occurred vs how she felt about what had occurred

Collins: HH has to be cautious treating Deeming as a reliable historian when she had a tendency to confuse, understandable given her grievance, what had happened

Collins making very clear he's not calling Deeming a liar. He says she's just not a reliable historian. Eg. she initially denied she knew Keen had connections w/ Proud Boys but then when shown evidence to the contrary she accepted she was wrong

Collins says there is overwhelming material linking Deeming w/ the neo-Nazis before Pesutto's Media Release

Collins accepts Deeming suffered significant distress

Collins: "Deeming's evidence was to the effect that the Expulsion Motion & Dossier was full of falsehoods. She went to meeting on 21 March& refuted everything in it. But during cross examination, she accepted the accuracy of every part of the Expulsion Motion & Dossier (cont)

"She DID help organise the Rally, Mrs Keen had appeared in video w/ Soldiers of Christ, she had used Barbie Doll in a Nazi uniform, she had appeared in a video w/ Jean Paul Gariepy..."

Judge now asking about interpretation of words: "publicly associated". Collins says when one looks at the Dossier, it's obvious. Mr Pesutto is saying "Look at the material that's available on the internet".

Judge asks about Pesutto rushing to publish the Media Release & not taking the advice of Pintos Lopez to "slow down". Collins said Pesutto honestly believed he needed to move fast. Role of leader is to listen to advice but doesn't mean they always have to follow it

Collins is critical of the evidence of Mr Kim Wells and Mrs Renee Heath.

Heath gave HH a false denial about surreptitiously sharing her meeting notes w/ Deeming. True position was she'd emailed to her personal email then emailed to Deeming's personal email.

Collins says Kim Wells was animus towards Mr Pesutto in the way he behaved in the witness box. No-one else gave evidence remotely consistent w/ the evidence Wells gave. Collins suggests Wells may be partly responsible why this matter even ended up in court

Collins now addressing the witnesses who testified to Deeming's reputation. Deeming's reputation wasn't harmed within the circles within which she moved. In fact it was enhanced. There's almost no causal link btw the publications & the evidence of Deeming's witnesses

Collins now addressing Mr Campey, the expert witness. He was an honest witness and accepted the errors in his reprotd. "But his errors were so extensive his expert reports are of limited value to the court".

Re: Pesutto's credit. Collins says Pesutto was at all times a curteous and honest witness, willing to make concessions when appropriate. Whilst he was criticised for making speeches, a central issue in this case is his statement of mind. He gave evidence that he (cont)

honestly believed the publications were in the public interest and that required him to explain his thinking

Judge raises issue w/ Pesutto's evidence about Moira Deeming's "bad reputation". Pesutto wasn't able to provide any particulars.

Collins says there is a range of evidence in the public domain about Deeming's negative reputation. She's referred to as extremist etc. He (cont)

mentions Dan Andrews describing her as "hateful"

Judge: "I find it bewildering that ppl who say 'children should be safe in school' are branded as extremists".

Collins: "It's the way it's said. The way these views are being expressed is the denial of essential identity & dignity of a class of ppl in our community - trans ppl"

Collins says 'so-called sex based rights'. The whole debate which goes on in this area concerns the dignity and humanity of trans ppl.

Judge: "That's one side. What about the safety and dignity of girls in change rooms which I understand is Mrs Deeming's view"

Collins: "That's not what happened at the Rally. Mrs Keen stood up and said "i am going to go provoke the boys'". He gives examples of what Keen did at the Rally.
"This is why the media uniformly describes Keen as anti-trans activist, a hate monger, why ppl (cont)

say 'Posie Parker you can't hide, you've got Nazis on your side'. These are not respectful discussions about sex based rights. This is the vilification of trans ppl"

Judge: Mrs Deeming's speech was nothing of the sort"

Collins: "So what. This case is not about (cont)

Deeming's views, it's the views of the ppl she associates with". He says that is the reason why Pesutto moved the motion he did.

Collins: "What happened at the Rally was vile. The cocern was Deeming had associated the party with the VILE things that had (cont)

happened at the Rally. 'Disasociate yourself. Protest us, protect the party'.

Collins now deals with Jones v Dunkel submission re: Deeming's failure to call Angie Jones and Kellie Jay Keen as witnesses. Collins says they would've been expected to give evidence. Deeming is still in contact w/ them.

Collins mentions that Jones and Keen were regularly tweeting about the trial.

"Some of the things that were tweeted throughout this trial, including the things tweeted about Pesutto's legal team are appalling."

Collins now covering Serious Harm

There are 7 matters which make the exercise [of attributing Pesutto's publications to the harm Deeming suffered] very difficult. First is general polarising view of Deeming. Ppl held entrenched views about Deeming before these publications

Deeming was considered hateful by some, Collins says.

2nd matter is the earlier publications by 3rd parties. Collins says to say 'there's just the odd tweet here or there' is not right. Collins has examples of material n public domain linking Keen w/ Nazis, linking the Rally w/ hate and links Deeming w/ all those matters

Before Pesutto's publications, ppl were saying the following on Twitter about Deeming: "standing w/ Nazis", "associating w/ Nazis" etc. There were also calls for Pesutto to take action against Deeming.

"This is a real problem for Deeming"

This is not a case where HH can infer that the fact Pesutto said things that were then republished, that every time a person equated Deeming w/ Nazis, that they did so b/c of Pesutto's publications. Ppl were saying these things before Pesutto's publications

Collins says Mrs Deeming had already been tarred w/ the Nazi brush the days before Pesutto said anything. If ppl continued to say them after Pesutto's publications, why would your Honour infer that it was b/c of anything Mr Pesutto said?

The 3rd problem for Deeming is the republication point Collins previously addressed HH about. "It's not good enough to say 'look at all these media reports that republish part of the Media Release' and attribute that to Pesutto"

4th problem for Deeming is the material she herself has put in the public domain. The Dossier is not alleged to accuse Deeming of being a Nazi. But it was alleged in the Concerns Notice she sent to Pesutto. Deeming leaked the Concerns Notice to MSM w/ intention it be published

5th problem: absence of any actual evidence of harm.

6th problem: Pesutto's mitigatory publications. Pesutto said publicly several times he wasn't accusing Deeming of being a Nazi

Another flaw is Deeming wants HH to treat all of the publications as though one 'campaign' which has caused her serious harm. The legal test for serious harm requires HH to be satisfied that EACH publication IN ITSELF causes serious harm

You can't aggregate the publications Collins says.

Way to approach a serious harm inquiry is look at whether the PUBLICATION of the material causes serious harm. Did the plaintiff suffer serious harm as a result of readers reading the material complained of?

Collins also notes that Deeming accepted during cross examination that she'd be publicly vilified before Pesutto's publications

More is required than the existence of a defamatory publication and damage to reputation. Need a causal link. Collins says that has not been done here

Collins says the Expulsion Motion and Dossier is the only publication where serious harm is relevant. That's because it's the only publication which carries the defamatory imputations claimed by Deeming. Collins says however, the Dossier didn't add anything to (cont)

what was already in the public domain, and it alone didn't cause any serious harm.

Collins now addressing Pesutto's defences.

First defence is the Public Interest defence (s 29A of Defamation Act)

Collins says 29A is predicated on the basis of the information published being false. Otherwise you'd rely on the truth defence. To say 'there's no public interest in misinformation' is not correct Collins said. This defence protects misinformation

Collins says Pesutto reasonably believed that the publication of the matter was in the public interest. It's true the nature of this defence originates from principle of responsible journalism.

This defence is not just available to journalists though. This defence has a very broad reach. S 29A(3) sets out factors to take into account in deciding whether the defence is established. However, HH is NOT REQUIRED to take these into account. What is (cont)

required is to take into account all the circumstances of the case.

There are 3 elements of the defence:

1st: does the publication concern a matter of public interest.

2nd is a Subjective inquiry: did Pesutto in fact believe the pubs were in the public interest

3rd: Objective assessment based on all circs of case whether that belief was reasonable

Question for the Court: Whether Pesutto reasonably believed in all the circs of the case whether the publication of each publication was in the public interest? That's quite separate from the DECISION to move motion to expel Deeming, Collins says.

Pesutto said in evidence that purpose of Media Release was to inform the public why he was taking such a significant step of moving motion to expel a recent member of parliament b/c he believed the public had a right to know of such a significant decision

Pesutto also gave evidence that he needed to move quickly to publish the Media Release b/c he believed colleagues would leak the decision. He also believed needed to address public concern to retain credibility

Pesutto said he believed public would be watching to see how he'd respond to the presence of Nazis. Said if he didn't react the public would critisise him for failing to act. Also worried Dan Andrews would link Deeming and the Nazis to the Liberal Party

Collins says Pesutto remained "steadfast" under cross examination about his reasons for telling the public about why he was moving the motion to expel Deeming

Collins: "Mr Pesutto said over and over again why he believed it was in the public interest to publish each of those publications"

Members of the Liberal Party leadership team supported Pesutto's decision to communicate this to the public. "That is the job of the leader", "Would've been a political own goal to wait & not deal w/ the matter promptly"

Collins says this supports fact (cont)

Pesutto's belief was objectively reasonable. HH should have regard to the beliefs of Pesutto's leadership team in assessing whether Pesutto's subjective belief was objectively reasonable

Collins says HH should reject the pretext case theory put forward by Deeming's counsel

Collins now addressing "public association" & what "public association" means. Pesutto's evidence was that it meant = anyone conducting a cursory internet search would find these info & his concern was any link btw that sort of conduct & the Lib Party was politically toxic

Collins now addressing Pesutto mispeaking on the 3AW interview. Pesutto accidently attributed videos by Gariapy to Mrs Keen (he misread the info sheet in front of him). Collins said that error doesn't mean Pesutto didn't consider the extent of Keen's associations (cont)

wasn't in the public interest. Collins says it didn't negate Pesutto's reasonable belief that this was in the public interest

Pesutto is the leader of the Opposition. He's a busy man. He's entitled to rely on work product prepared for him. Errors in information given to him doesn't negate his subjective belief that doing this was in the public interest, Collins says

Judge raises fact that KJK sought to disassociate herself in the video with Jean Paul Gariapy. Does that negate reasonableness of Pesutto's belief?

Collins says no. In the real world, ppl googling KJK would find this information "in a heart beat". Members of the public (cont)

wld see immediately that Mrs Keen was "fast & lose" w/ the ppl she did videos with. "Rightly or wrongly, fairly or unfairly, there's a vast amount of material in public domain linking her w/ Neo Nazis. That's why ppl come to her rallies and shout (cont)

'Posie Parker you can't hide you've got Nazis on your side'. And that association is politically toxic".

Collins says this is the consideration for the s 29A Public Interest defence. However, for contextual truth defence, the legal inquiry is different re: the words 'publicly associated'

In terms of the content in the Dossier, Collins says Pesutto relied on and trusted Pintos Lopez to put the Dossier together.

The cropped Pink News article (where only 1 page out of 3 was included), Pintos Lopez included it as example of ppl Keen associates with. It was (cont)

not included as evidence that Keen agrees with neo-Nazi activists, it was simply showing the types of ppl Keen shares a platform with. Collins says didn't need 2nd & 3rd pages of the Pink News article.

All of this is a false issue because the decision to crop the article was not Mr Pesutto's. Nor has it been put to Pesutto that it was unreasonable for him to rely on others to put the Dossier together. Inclusion of 1 page instead of 3 doesn't negate Pesutto's (cont)

reasonable belief that publication of the Dossier was in the public interest, says Collins

Adjourned till 2.15pm!

Will start a new thread after lunch