Thread by @ExposingNV

🧵Moira Deeming v John Pesutto

Part 2 of Day 3 of Closing Submissions and Final Day of Hearing!

#DeemingvPesutto

Link to Part 1:

https://x.com/ExposingNV/status/1849227203361534166

"Silence all stand!"

I always get such a shock when that announcement comes on

Dr Collins KC is continuing his submissions on the Public Interest defence

Collins going through prior case law re: how to interpret the public interest test. HH has to put himself in position of Pesutto, satisfy himself whether JP subjectively believed the publication in public interest & then cld a reasonable person in that position hold that belief

Collins says there was a high degree of public interest that existed irrespective of the merits of the decision. Was it in the public interest to know the basis of JP's decision so it could be objectively analysed and critiqued?

However fair or unfair the Motion and Dossier, it was in public interest to have the documents in the public domain Collins says

Collins now discussing another of Pesutto's defences - Honest Opinion

The difficult question in this case is whether Pesutto's publications are an expression of opinion or a statement of fact

Question turns on whether ordinary reasonable recipient would understand that a statement of fact was being made or an opinion was being put forward

Common law recognises there is always a degree of intermingling btw fact and opinion in the same publication. This is reflected in the Defamation Act.

Approach to the defence: whether publication taken as a whole is expression of opinion.

Collins says reader would understand Pesutto's publications to be expressions of opinion. Take the Media Release for example - it's a statement by leader of Opposition. Leaders of Oppositions don't usually make news, they state positions

Collins now going through the language of the Media Release. It uses quite emotive language. "Odious actions", "I condemn them" etc. This is unmistakably. expression of opinion.

Media Release also cites some facts - Pesutto states his opinion based on those facts

Pesutto is saying this is an abomination, these are the facts, I've come to view Deeming's position is untenable, my opinion is associating w/ those ppl is affront to my values etc.

To succeed in this defence, Pesutto's opinion needs to be based on "proper material". The criteria for "proper material" is set out in s31(5)

Collins now going through the other publications. He says it is clear 3AW interview is very clearly an expression of Pesutto's opinion.

Likewise, ABC interview is very clear. Pesutto stated his reason for moving the motion right at the beginning. He uses words like "I took this step", "MY values" etc.

Press Release - same thing. "Odious", "I am here to say", "totally unacceptable", "I took these steps" etc. Pesutto expressing his opinion based on facts he states.

Expulsion Motion & Dossier - Collins says the purpose of the Motion was to put the expulsion to a VOTE. It's very clearly an opinion.

The onus is not on Pesutto to prove that his opinion was reasonable. The onus is on Deeming to prove his opinion was not reasonably held at the time of publication

Pesutto now discussing the "proper material" element of the defence.

Sorry COLLINS now discussing the proper material element. The facts upon which Pesutto's opinion are based need to be substantially true. Pesutto's opinion is that Deeming not fit proper person to be member of the Liberal Parliamentary Party under his leadership.

Question is: what are the facts upon which Pesutto's opinion is based? Is that opinion based on facts that are substantially true?

Facts upon which the Media Release is based: (1) there was a rally attended by neo-Nazis (2) Deeming was a member of the Vic Libs Parliamentary Party at the time (3) Deeming was involved in organising the rally & attended & participated at the rally

Based on the fact that Deeming organised and attended the Rally - for Pesutto, that was sufficient to support his opinion she wasn't fit proper to be in his party

Other facts: (4) Other organisers were publicly associated w/ far right & neo-Nazi (5) By Deeming's involvement in organising & attending the rally, Deeming had associated herself w/ ppl who's views were abhorrent to Pesutto & values of Lib Party

Collins says there can be no doubt that views of Keen etc were abhorrent to values of Pesutto. He also found the Jones Tweet to be highly offensive, a "odious", "awful" and "consistent w/ what neo-Nazis displayed on steps of Parliament" is what Pesutto described the tweet as

Collins hasn't taken his Honour through the material, but in the written submissions are details of the material which Collins says proves the truth of the fact that KJK etc were publicly associated w/ far right & neo-Nazis. Copy of the Closing Subs will end up on the Court File

Collins: "The ground of defeasance pleaded by my learned friend is, with respect, embarrassing".

These are set out in Deeming's Reply: fedcourt.gov.au/__data/assets/…

Collins now addressing another of Pesutto's defences: Lange qualified privilege

This defence is a more challenging defence for a respondent compared to the Public Interest defence in s 29A of the Act

Collins says he cannot conceive of a universe where the s 29A defence fails and the Lange defence succeeds.

Last of Pesutto's defences: Contextual Truth

The defence of contextual truth applies where a publication complained of carries several defamatory imputations, and the defendant can show that one or more of the imputations were substantially true, and considering the (cont)

substantial truth of those imputations, the further imputations complained of did not result in further harm being caused to the plaintiff’s reputation

Exercise is to weigh the substantial truth of the contextual imputations against the falsity of the other imputations. Problem here is that Deeming has 67 imputations.

Because Deeming has pleaded so many 67 impuatations w/ very degrees of seriousness. One cannot meaningfully conduct the balancing exercise when there are 67 imputations, Collins says. We don't know which of those 67 imputations your Honour might find to be conveyed.

The underpinning of the defence is that one doesn't get damages for publication of something that is true. Publication of a truthful defamatory publication simply brings a person's reputation to its true status

Collins now addressing damages

Collins says it's impossible to give HH any assistance without knowing what HH will find re: the defamatory meaning of the publications. Damages will depend on what the defamatory meaning is of each publication (ie how serious the defamatory meaning is)

Collins says there are a lot of factors that go towards mitigation of damages. Fact that Deeming caused some damaging statements to be put into the public domain, fact that Pesutto publicly stated he never called Deeming a Nazi

Deeming is also seeking aggravated damages. Collins says the matters Deeming relies on that go to aggravation have nothing to do w/ the effect of the publications.

"What on earth does the fact that [Deeming didn't have a support person present at the meeting] go to damages arising from the publications made after the meeting"?

Collins describes this part of Deeming's Statement of Claim as "embarrassing"

"What does reneging of the compromise agreement have to do w/ the publications?" Collins says. He fires off a whole list of problems with Deeming's claim for aggravated damages

Dr Collins has now concluded his Closing Submissions. Sue Chrysanthou SC (SC) now rises to commence her Reply.

SC: "My learned friend said about 67 times that we have 67 imputations. That's just not true"

SC says the imputations pleaded in Deeming's SOC capture the "sting". Pesutto used a very broad term in his publications - "public association". It has a very broad meaning. She has captured the different interpretations of those words in various degrees of seriousness

"To say over and over again that we want HH to find 67 imputations is not correct. We have done our best w/ the sometimes garbled words of Mr Pesutto, the lose language he's used, the ambiguous language deliberately chosen and deliberately used that language to (cont)

confuse and mislead. If we were to select one of the meanings of 'association' and HH disagreed with that, we'd be [without a case]. That's what happened to Mr. Dutton [and 2 other examples]".

SC says difficulty for Peter Dutton was that his lawyers tried to define the meaning of 'apologist' and Mr Bazzi had misused the word in a 3 line tweet. That's a very different case to here she says. Here there are lengthy publications, making serious of various (cont)

charges against Deeming, and Keen and Jones. It's not for HH to find one meaning of the publications. That's not the single meaning rule. The single meaning rule is what the ordinary reasonable reader would understand the meaning to be. There is not one single meaning.

SC sites the Geoffrey Rush defamation appeal case, which makes good this point. SC says different 'charges' can be made in the same publication. Eg. in Rush, there were multiple defamatory imputations w/ different levels of severity, from 'pervert' to 'sexual predator'

SC says that in the Statement of Claim, they're not asking HH to find 67 imputations. There are multiple imputations of different levels of severity b/c of the different charges made in different parts of the same document.

SC refers to the Media Release. The Media Release says that Pesutto is expelling Deeming b/c her views are abhorrent to his values, the values of Lib Party & wider community. "Not just his values, but EVERYONE'S values. What are those views? Well, the only views the (cont)

reader is told about is far right views and neo-Nazi views".

"There's no other way to read this Media Release"

SC now addressing republication. The content of the republications has nothing to do w/ the defamatory meaning of the publications. The Media Release was sent out to 670 ppl. The entire document was reposted on Twitter by 3 major journalists, as well as media companies

SC says 300,000 views of the Media Release alone.

"I don't need republication to prove serious harm"

"Grapevine effect is not a specific republication, it's parts or all of defamatory allegations being spoken about, being passed on, being discussed. Social media is (cont)

the modern day grapevine - it spreads like a virus. Exponentially. You might not find ppl reading the Media Release, but you'll find ppl talking about it. That's the grapevine effect".

SC mentions the "spread" - the spread is not a republication plea. It's about CAUSATION. Mentions an article that says wasn't surprising Nazis turned up at the Rally. Fact the article was written was b/c Pesutto issued the Media Release. Doesn't matter that the Media (cont)

Release wasn't republished in full in the article. Article wouldn't even have been written if it weren't for Pesutto's publications.

Articles are all about the allegations Pesutto was making about Deeming, SC says. Mentions article which described "Deeming as Bernie Finn 2.0". SC says reason that article was even written was b/c of Pesutto's allegations

SC addressing Collins submissions that everything in Expulsion Motion and Dossier is correct. Fact that SOME bits are true, not all. Implicit in the Dossier is that KJK is proud to associate w/ white supremacists and knows that ppl she associates w/ are (cont)

white supremacists or neo-Nazis. SC says that is not true and has not been proven. SC sites more examples of content in the Dossier that is not true/has not been proven in evidence.

SC says the defamatory imputations pleaded in Deeming's Statement of Claim are proven. The Dossier is used as the basis to expel Deeming. Dossier accuses KJK of being a neo-Nazi activist. SC says the imputation is that Deeming is associating w/ a neo-Nazi activist.

SC making some technical legal arguments about permissible variants to pleaded imputations in a Statement of Claim. If you don't plead an imputation, but the Judge finds another imputation, as long as that imputation is a permissible variant of (cont)

the imputation pleaded, then that doesn't defeat a plaintiff's claim

SC now addressing Dr Collins' submissions re: serious harm. Serious harm is not determined by the seriousness of the imputations contrary to Collins' submissions, the test is in s 10A of the Act - whether the publication caused or is likely to cause serious harm

SC mentions the mass media publication of Pesutto's Press Conference - it was broadcast on Sky. SC says don't need to show the whole publication was republished, but if there were deragory parts of the Press Conference published in the media, then that's (cont)

relevant to serious harm. It's not as hard as my learned friend said, SC argues. She says it's not necessary to trace through all the MSM publications to see what parts of Pesutto's publications were republished

Re: contextual truth. Dr Collins said KJK's conduct was in the public domain. SC says the examples Collins referred to yesterday weren't in the Dossier, weren' found by Pintos Lopez after hours of searching, some of that material was found (cont)

for the first time this year by the lawyers, SC says. Your Honour should proceed on the basis that the only material in the public domain was the material in the Dossier which Pintos Lopez found after hrs of research

SC now addressing the criticisms from Dr Collins of her case theory regarding the "pretext" of the expulsion (that the real reason for Deeming's expulsion was "her views on sex based rights"). SC points out that Dr Collins made a significant admission earlier, by arguing (cont)

Deeming's associations with "anti-trans activists" like KJK were proper material for the basis of Pesutto's defences. SC says but the publications sued on don't mention anything to do w/ "anti-trans", the only refer to neo-Nazis. Nor does the Defence mention anything (cont)

about associations w/ anti-trans activists. "What's that got to do with anything?", SC says.

"Mr. Pesutto has instructed his lawyers to stand in court & make derogatory statements about KJK that have nothing to do [with this case]".

SC says none of those statements are relevant to any of the defences.

"There's nothing in the publications about Mrs Keen being anti-trans"

SC says that she put to Pesutto during cross examination that the expulsion of Deeming was really to do w/ her "advocacy on sex based rights. The notion I didn't put [the pre-text theory] to him should be withdrawn".

SC addressing Pesutto's public interest defence. During cross examination she put to Pesutto that he was acting in his own interests and he admitted this in cross examination. SC says Collins' submissions on public interest are misstatements of the law

SC addressing allegation she should've called Angie Jones and Kellie Jay Keen as witnesses as their evidence goes to Contextual Truth defence. She says there's nothing Jones or KJK could've given evidence about that would've been relevant to Pesutto's Contextual Truth defence

SC also addressing Pesutto's honest opinion defence. She says Collins' statement of the law (that you can intermingle fact and opinion) is wrong. "If you intermingle fact and opinion, you lose"

That concludes SC's Reply

Now dealing w/ some administrative matters. Justice O'Callaghan has asked for a Chronology of the Rally to help with writing his judgment.

Judge notes that some of the material in the submissions doesn't seem to lead anywhere. For him to work out "what does lead somewhere and what doesn't" is a task he will be aided by having a factual narrative.

Judge wants the chronology to be limited to the core facts/core matters, to "avoid tendentiousness".

"I am up to Exhibit 563 just from the respondents". Judge says if he wants to deliver a judgment this year he needs an aide to find his way through all the material

And that's a WRAP!

Court adjourned. Justice O'Callaghan has reserved his judgment. Hopefully we still get judgment this year.