[The following note appeared in an amended, and improved, form in the Gazette of Law and Journalism where it was to be read with a comprehensive case note.  It has now been slightly expanded.]

More than 30 years ago, the ABC said something rude about the late Frank Costigan in the famous Painters’ and Dockers’ Royal Commission.  Frank and his team sued.  We thought that was a bit rough for a crowd bent on destroying reputations – the raison d’etre of Royal Commissions – but I can well recall the late Neil McPhee QC looking at me hard as he told the court that the only way I could win the case was by pleading truth, and that if I did so, that court-room could not hold the damages.

I thought of that when I heard that Joe Hockey had sued over a remark about his being for sale.  If that had a nasty meaning – if a court found that it meant that our Treasurer was corrupt – what courtroom could hold the damages?

Politicians, especially federal politicians, are on the nose here at the moment.  By that I mean that ordinary people do not think well of them – they have a bad reputation.  A person suing for libel claims that a publication has caused others to think less of them.  If the person complaining is a politician, they therefore start behind scratch, because the chances are most people think poorly of them anyway, and are not going to think more of them because a judge decides to give them the equivalent of three years’ salary for a high school teacher.  In fact, that process will very likely cause a lot of people to think even less of politicians generally, and this lucky dipper in particular.

That was one sort of risk facing Joe Hockey when he sued Fairfax for libel.  Another risk was that he could lose.  Another risk was that he might not win well enough –or that he might win too well.  A partner and mate of mine had his life ruined by a series of train wrecks in libel litigation – his problem was that he won too well.  Twice.

The carefully reasoned judgment of Justice White, which runs to more than 100 pages, raises red light appeal points on legal issues of imputations (especially ‘corrupt’), state of mind (malice), reasonableness and damages.  The elaborate judgment might fairly be said to represent millennial evidence of the remark of Professor Milsom that ‘the law is enmeshed in detail to an extent unthinkable when it had to be encapsulated in a jury decision.’  There are, however, practical issues, and our law is determined in practice.

First, why is not a stoush like this between a politician and newspapers heard by a jury?  Why not have ‘the ordinary reader’ decide the big issues, rather than have a superior court judge try to guess how they think?  Justice White said there was a difference between undesirable or inappropriate conduct and corrupt conduct, and that the ordinary reader would have concluded that one article meant that the Treasurer ‘was engaged in a non-corrupt form of fundraising which used the allure of his office.’  Perhaps, but that is a definitive jury issue, and the Twiggy Forrest ‘binding contracts with China’ fiasco shows that our superior court judges may have a lot of trouble in seeing what is blindingly obvious to anyone else.  The Federal Court does not have juries, and it hears common law issues by accident.  It was not set up to hear libel actions.  If this case gets to the High Court, it may have been considered by eight or more federal judges only one of whom has ever directed a jury in a libel action.  And why should not a jury be able to say to a politician, as one did in Victoria to a Premier – you have handed it out, Mate: now you can take some back.

Secondly, the reasonableness test is being applied by judges in a way that will likely see the end of the political speech defence, and encourage the view that truth is the only substantive defence in a real libel action.  Our judges mostly do not know what is involved in running a business, and they have displayed neither understanding nor sympathy for the workings of the press.

Thirdly, the costs of this kind of exercise, even without appeals, dwarf the damages.  That is perhaps one thing for a federal minister with a big Sydney house suing a national publisher, but small publishers can be put out of business – bankrupted – by the cost of WINNING a case such as this – even without appeals.  And all for a tweet.  I no longer believe that the term ‘chilling effect’ is pointless special pleading on the part of the press.  I have come to the view that the law of defamation as it is now practised is really threatening the vital role of the Fourth Estate in our national life.

Finally, is there not something unreal or grubby even about awarding $200,000 to a politician against the press who got their highly critical story just right but who got tripped up on a poster and a tweet?  It is very unsettling to reflect on the maximum compensation that the State allows for the victim of a multiple rape.

Two leading Australian newspapers wrote long and considered pieces saying that our Treasurer was involved in party political financial dealings in a way that did not become him.  It is a sordid fact of political life that politicians solicit partisan political donations by the allure of their office.  The Treasurer sued for libel on those articles and lost.  The court found against him on most of his imputations and allegations of malice.  It made a finding of malice against just one person involved in the publications.  That finding described behaviour (a ‘personal animus’) of the same moral order as the leering, jeering, and sneering indulged in by our politicians every day in the tawdry motley of their parliamentary lives.

Does the ordinary Australian think better of Joe Hockey now than if he had just grinned and borne it?  Does the ordinary Australian think that our politicians and newspapers just deserve each other – and that you can toss in the lawyers with that unlovely lot as well?  Or would Joe Hockey have been better off to have followed the advice of an English Law Lord who described a novel libel claim by a public figure as ‘just another case of the toll levied on distinction for the delectation of vulgarity.’?

People who know about this form of litigation say that you do not sue for libel unless four conditions are satisfied.

• There is an obvious error of fact.
• You having nothing to fear from having your affairs turned over in public.
• You have the financial and emotional strength to go the distance against professional gladiators backed by the big end of town.
• And you have a reasonable assurance of getting a result that makes all that risk and pain worthwhile.

You can tell those who do not pass these stress tests.  They take home buckets less than the lawyers – if anything.  You can assess for yourself how this case stands up on those criteria, and what it says about the judgment of this Treasurer in making this trip to the roulette table.  The agony – the Passion, perhaps – of Joseph Benedict Hockey may have just begun – appeal, or no.