Jeff Sher interview 18 November 2009

Another high profile case was when The Australian published an article about Jeff Kennett at the time when he was Victoria premier, which dropped hefty hints about extra-marital relationships.

Well, what the paper did was they wrote an article about what people in the public eye, high profile politicians like a premier, have to put up with and they said, "For example, there's a rumour that Jeff Kennett's had this extra-marital affair with a lady director of a gallery". Now, the law of defamation is rather odd. It says in effect that publishing a rumour is tantamount to publishing what the rumour's about and the only way you can defend it is by justifying the truth of the rumour. In any event, I was briefed to act for The Australian and the view I took of the case was, the quicker this was processed and there was no evidence we could call and we certainly weren't seeking to justify the truth of the rumour, the best way to run this was to whip it through as quickly as possible and just make a speech to the jury, which is what I did. The jury accepted the argument, which was they hadn't published that he'd had an extra-marital affair at all; all they'd done was to publish that that's what people were saying. Anyway the jury, to hell with the law, the jury decided that that was it and I think quite frankly that that jury verdict was a precursor to what happened in the election, because a few months later he lost the election unexpectedly. I think that was an example. I talked to you earlier about juries liking you - I don't think the jury liked Jeff Kennett.

I was almost going to ask you that question, because that is a fascinating, if you like, litmus test maybe of what, as you said, was ultimately proved to be the public reaction.

It wasn't the first time in a defamation case that I'd defended somebody and been successful because the jury didn't like the plaintiff. I had a case in which the plaintiff was a solicitor and at the time of the case has gone to the Bar, who had appeared for somebody on a horse-stealing charge and my silly client, which was one of the papers, had changed the name of the accused and the solicitor, so they had the solicitor as the horse thief and the horse thief as the solicitor. They'd realised their error immediately and published a retraction and apology the very next day. In any event, we couldn't settle the case; the guy was pretty keen to go on with it. I think he thought he was going to get a big, tax-free award. I was reminded by my instructing solicitor, who was Bernie Teague, who's now conducting the Royal Commission into the bushfires and became a Supreme Court judge; he reminded me when I was speaking to him about this case once that the first question I asked him was, "When did you decide you wanted the money?" I look back on it and I would never do that now, but in any event the jury didn't like this guy. They thought he was greedy and going on like a pork chop about what was really an innocent mistake immediately corrected and they found for the defendant. The trial judge had said to the jury that he hadn't understood my argument which, when I look back on it, I don't blame him for saying it.

So, in a way, do you feel then the jury system is still a pretty adequate, if not quite robust, demonstration of democracy at work?

I think we must preserve it. We certainly must preserve it in criminal cases and I think we need to preserve it in some civil cases, defamation for one. The only thing wrong with defamation in front of juries is clearing away all the legal detritus. I mean, there are more points than a porcupine in a defamation case and a lot of the cases are fought on the interlocutory issues about pleadings and evidence and what you can and can't do, and they can be quite confusing. My heart goes out to any judge who's got to charge a jury in a defamation case because the law can be very, very tricky. It's full of Talmudic or Jesuitical reasoning, hair-splitting decisions, which, I mean, I don't understand half of them. I don't know how juries do, let alone judges. But I still would preserve juries. I used to love jury work.

Just before we move on from the topic of Jeff Kennett, there's an interesting little anecdote. You ran a successful winery, Port Phillip Estate, and there was a story about you and Jeff Kennett discussing this winery in the men's room when he was suing The Australian and you were taking a rather pessimistic view of the outcome of the case.

Well, I didn't think the case, you asked me earlier about hopeless cases, I mean, I really couldn't see, the argument was there, but legally Kennett should have won.

Kennett thought he was going to win, didn't he? He thought he was going to buy your vineyard.

He did, he did.

Conducted for the Victorian Bar oral history project by Juliette Brodsky, and filmed by Stewart Carter on 18 November 2009