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17 September, 2009  
Goings On ...

Do or Dye … Cocky Telegraph goes down in big-ticket defo case

imageYesterday the curtain was came down on the hottest show in town – Michael Blomfield’s defamation action against The Daily Smellograph, conducted before a jury in Justice (Hormones) Harrison’s court on the 11th floor of the NSW Supremes.

The star attraction was Peter Gray SC’s careful unstitching of the defence’s main “truth” witness – the Grace Kelly look-alike, Vivienne Dye (pic).

Seasoned court observers knew pretty quickly the Smello was on a hiding to nothing as this Grace, with icy defiance, insisted black was white.

She started by saying that telling untruths didn’t make her an unreliable witness.

What was so surprising was that the defence allowed it to run as long as it did before pulling the plug on a case that should have been cited as Dye v Blomfield.

In an application to HREOC, Dye accused Blomfield, her former boss at the Commonwealth Bank, of sexual harassment and other unpleasantness – allegations that the Tele splashed over its steamy pages and website.

It turned out to be a story published with as much care as the due diligence conducted on the paper’s main witness.

Blomfield pleaded nine principal defamatory imputations, including that he bullied Ms Dye to such an extent that she lost her job, that he abused his position as a supervisor, that he molested her, etc.

Dye has had a lot of bad luck at the CBA, because she also claims that another boss, Angus Patterson, sexually harassed her.

Dye also has six actions of her own on foot: two workers comp claims, two defo actions (one against Fairfax and one against the CBA), a Federal Court case against the bank and the HREOC proceedings.

Her evidence-in-chief in Blomfield seemed flawless and Telegraph lawyer Jane Summerhayes expressed outside the court that other defendants would have problems.

Oh dear – never a good idea to be too cocky.

Half the defamation bar in Sydney trooped along to court 11E to see Peter Gray’s stealthy, but lethal, performance.

Stuart Littlemore popped in with his client Tania Zaetta to give her a peek at what being in the box looks like and possibly to see for himself an effective low-keyed cross-examination.

Zaetta’s case against The Telegraph commences next week, two weeks after the defendant withdrew its only defence of qualified privilege.

She had pleaded, among other things, that The Tele said she behaved like a “slut”.

Ms Dye denied to the jury and Justice Harrison that she spoke to anyone from the paper before it published the front page splash in April 2008.

Her evidence was contradicted by Nationwide News, which said it obtained information from her, before going to press.

Dye told the court that her statement to the Human Rights Commission was forwarded to the newspaper by her workers comp lawyer, Peter Rochfort. Allegedly, he told her that the Tele was “hot-to-trot” with the story.

If this is so, it’s an interesting instance of the extra-legal leverage that lawyers increasingly employ in the hope of advantaging their client’s cause.

In any event, it is understood that Rochfort is not impressed at his former client’s attempt to lumber him with responsibility for the publication of the defamatory yarn.

Referring to the appearance of her complaint against Blomfield in the newspaper Dye told the court that she was “still not happy that [The Tele] did it – neither was my family”.

This is where the by-now well-ventilated emails with the paper’s then editor David (Penbo) Penberthy come into play.

Far from appearing unhappy, as she had insisted, her emails to the editor reveal a degree of glee about the unfolding drama. Gray said it showed she treated the Blomfield matter as an “enormous game”.

She told Penbo that Blake Dawson’s Robert Todd “seemed quite titillated” by the prospect that she and the editor were having lunch.

Todd told her: “He’s after a story you know” and Dye responded, “So am I”.

imageIn another missive she mugged-up for Penberthy a few lines of potential cross-examination of Blomfield in the forthcoming workers comp case:

“Ms Dye claims that you then indicated that you were telling her a secret by putting your index finger up to your mouth in a motion of silence, before pulling your shirt out of your trousers and lowering your belt enough to expose a large and unusual tattoo. Can you please show the commissioner your backside Mr Blomfield?”

One of the issues was that Ms Dye wore a furry g-string to a Commonwealth Bank Christmas party in December 2006. She also worn a low cut dress that revealed a significant amount of her bosom (seen here). This rather struck at the image she sought to project to the court.

After publication of the story by Nationwide News she emailed Penberthy to say:

“Oh you’re a sweetie.

This week, CBA has produced a statement claiming that I wore a ‘fur-highlighted gstring’ showing above my jeans to a Christmas party in 2006.

I took it upon myself to research the matter, and came up with the following samples [attached].

Do you think I should order some online and get my barrister to fling them at the judge?????”

Penbo was moved:

“Far out. That one on the right looks more like a barrister’s wig.”

Dye came back with …

“hahaha … perhaps someone saw pussy fur poking out the top???”

She also requested Penberthy to arrange to get copies of snaps that News took of her in New York, where she was recovering from the implosion of her job at the CBA.

“I need to be able to demonstrate that I dress normally.”

It’s a reminder of the danger that lurks when editors start exchanging saucy emails with witnesses. Inevitably it’s all going to wind up on public display.

imageIt was no accident that on the evening these emails and attachments of furry g-strings were tendered that settlement negotiations commenced.

By then Gray (pic) had done a pretty good job of showing that the thrust of the allegations against Blomfield had as many holes as a Swiss cheese.

The truth defence was withdrawn four days into the cross-examination of Dye.

One of the quiet forces behind the scenes for the plaintiff was Matthew Richardson, junior to Gray. While his father Graham has been in the headlines recently, Matthew remains the self-effacing and effective researcher and preparer of consummate written submissions.

Peter Keel led the Clayton Utz team that acted for Blomfield. The settlement was “most satisfactory” from the plaintiff’s point of view.

See Gazette of Law & Journalism coverage.