Jeff Sher interview 18 November 2009

One more case I might talk about, Jelena Popovic, the deputy chief magistrate here in Victoria, there was a case where the Herald Sun columnist, Andrew Bolt, wrote a column that was considered defamatory of Jelena Popovic.

There was no doubt it was defamatory. He in effect said she ought to be sacked and he really got stuck into her and another magistrate who didn't sue. But Jelena went through hell in that case. I mean, here was a lawyer, magistrate, and her husband was a barrister (after the successful outcome in that case, they threw a party entitled "Back from the brink"), they thought they'd go broke if they lost the case. It was a tough case, hard-fought. But, yeah, an interesting case. A lot of points came up in that case, a lot of points.

What were the knottier points that you had to contend with there?

Well, I didn't really think in the final analysis there were points that were really knotty, except that we moved for judgment notwithstanding the jury's verdict in this case, because I think the jury got one of the answers wrong. I mean, it was a ridiculous answer. In any event, we persuaded the trial judge to find for the plaintiff, which he did. That went on appeal and we held it on appeal. They applied for special leave to the High Court and were refused, so we hung on to it. I mean, one of the appeal judges who's a mate of mine, Bill Gillard, just capriciously took away the $20,000 exemplary damages that had been awarded for Andrew Bolt claiming victory on the stairs of the court after he'd been warned by the judge the case wasn't over yet and don't say anything about it, and up gets Andrew Bolt and claims he's had a big win and he got potted $20,000 by the trial judge for contempt of court for disobeying his instruction. Well, Billy Gillard decided to take that away from the plaintiff. Nothing much you could do about that. There were a lot of points in the case, but it's like everything: in the final analysis it turned on the facts and how well the plaintiff went in the witness box. I thought Bolt would do badly as a witness. I was cross-examining him at one stage and I don't know why I asked him this (it was a pretty stupid question when you look back at it) but I said, "Well, do you feel sorry about all what's happened here, Mr Bolt?" He said, "Yeah, I do. I'm sorry for myself. I'm sorry for my wife. I'm sorry for….." He was naming all the people he was sorry for and the glaring omission was the plaintiff. Then all of a sudden I think he realised just how bad his answer was sounding and he said, "Oh yes, and I'm sorry for Miss Popovic as well, but then again if she's going to be in the public eye, she's got to….." and he gave her a bit of a serve from the witness box.

Do you think the outcome of the case led him to in any way modify his approach, shall we say, with his column towards law and justice issues?

Don't know. I don't read the Sun. My wife loves him, I might add. She thinks he's terrific. Look, the reason he went down, the reason they lost the case, is because when you make a comment or express an opinion on a matter of public interest, you have got to base it upon truly stated facts. You can't invent facts and then make a comment: that's what he'd done. He had the transcript of the hearing that he used as the basis for his argument and notwithstanding that it was there in front of him in black and white, he misquoted it and he left bits out and journalists are a bit notorious for doing that. Anyway, he got caught. That's why they lost.

What do you make of the fact that nowadays (and it's only later since this all happened, that we now have things like Facebook and Twitter) - what would a defamation specialist like yourself make of what's happening there and lots of people, famous and otherwise, making defamatory remarks about other people and, as you say, offering opinions as facts?

The law's clear and I was in a test case in the High Court on this issue. I acted for Joe Gutnick who was taken absolutely apart by Dow Jones in their magazine, I forget the name of it now. I had a very smart junior, Michael Wheelahan, who's now a silk, and Michael and I worked out tactics. We decided to sue on behalf of Joe Gutnick only in respect of the publication on the internet in Victoria and only in respect of the allegations that related to behaviour in Victoria, so we made it into a solely Victorian case. Dow Jones brought what's-his-name, the television barrister ...

Geoffrey Robertson?

Yeah, Geoffrey Robertson. The great Geoffrey turned up and the court, you couldn't get into the court; at one stage I had to persuade the court orderly to let me into the court.

Was there lots of pirouetting (by Geoffrey) around the courtroom?

Oh, a bit. I mean, he was a highly entertaining opponent and very fruity and flamboyant. In any event, the case turned on the law and we had a very good judge to decide, a fellow called Jack Hedigan who I've mentioned earlier, he was a very good barrister, a very good judge. We established through all the authorities that publication takes place when, whatever medium you use, when the audience hears, sees, or listens to it. Their argument was that publication had taken place when it was uploaded onto the internet and if that was the case the law that was applicable was American law because it had been uploaded in America. That would have been fatal to Joe. He couldn't have gone on with the case. Anyway, it ended up in the High Court where they said, "Yeah, that's right. Publication takes place when it is received, when the people read it." So anyone publishing on Twitter or Facebook, when they publish it, if it's defamatory, the law that's going to be applied is where that entry is read on the internet. So be careful, because the Internet goes worldwide and you could be sued anywhere.

What about people, though, hiding under a cloak of anonymity?

Well, the publisher is responsible and if the service provider publishes an article written by you or me or anyone, the service provider is probably liable. There might be legislation in relation to this. I haven't looked at it for a long time, but if you are defamed you can sue anyone that is responsible for the publication. So if you print a book, the person who writes the book, the person who publishes the book, the person who prints the book, and the person who distributes the book, are all liable.

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