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Court in the Act
11 November, 2003  
Hatred, Ridicule & Contempt

“Madge” Marsden rides to the rescue of leader of the Zimbabwe opposition … Brisbane barrister’s imputations burned to a crisp … Gadens’ former senior partner sues The Sun-Herald


Madge rescues Zimbabwe’s hope for freedom

It’s such a nice change from the tedium of our own small stage when we’re propelled into the vortex of international affairs.

The NSW Supreme Court defamation action against SBS TV by Morgan Tsvangirai (right), the Zimbabwean Opposition leader, will take us right into the thick of the gruesome politics of the darkest corner of the Dark Continent.
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Tsvangirai is suing because Jana Wendt, the former hostess of the SBS show Dateline, told viewers that he has been “plotting to kill President Mugabe”.

The Dateline story by steel-eyed Mark Davis relied on information from a former Israeli intelligence officer, Ari Ben-Menashe, now the head of an international spin shop, Dickens & Madson, which is employed by the Mugabe regime.

Anyway, the case has had a couple of interlocutory rounds in the Supreme Court and a trial is pending.

The Slovenian Broadcasting Service asked for security for costs. Morgan’s solicitor here, the Camperdown based R.L. Whyburn & Associates, hammered out a deal with SBS to the effect that the plaintiff would come up with $120,000 worth of security by the end of September, otherwise there would most likely be consent for the action to be struck out.

When the deadline loomed there was a flurry of anticipation. We now discover that the hero of Campbelltown, “Madge” Marsden, has come up with Morgan’s security and the case is to proceed.

imageMadge (right) recently settled his own mammoth defamation action against Channel Seven just after orders were issued by the Court of Appeal for a retrial on damages.

Madge, or “Gelignite Jack” as he is also fondly known, has become a champion of those whose reputations have been sullied by the media.

It seems, too, that the famous urban terrorist Meredith “Keys” Littlemore will not be running the plaintiff’s case. Rod Weaver has come on board for Mr Tsvangarai.

Peter Bartlett of Minter’s Melbourne profit centre is handling it for the Slovenian broadcaster.

Imputations up in flames

Brisbane barrister Paul Favell and his missus Diana have had an awful setback in that tricky hall of jurisprudence, the Supreme Court of Brisbane.

The Sunday Mail applied to Helman J to strike out the entire slate of 46 defamatory imputations pleaded by the distraught plaintiffs.

The action arose from an article in the Mail published on January 19, 2003, which the judge recited in full. The relevant portions read:

“A multimillion dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.

Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-story block of units.

Barrister Paul Favell, his lawyer wife Diana and his three teenage children will return home from holiday in Rome to fine the Griffith St home gutted

It is understood neighbours had planned a meeting to protest against the impending unit development

Police said investigations into the cause of the fire were continuing.

Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.

‘All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry,’ he said”

From that the Favells pleaded that the article imputed they were guilty of arson or there was a reasonable suspicion they were guilty of arson.

Helman found for the publisher, saying that those meanings could not be gleaned from the article. He struck out the whole lot in one bang citing the famous case of Farquarhar v Bottom as his authority.

Newspaper gets a smack

Back in Sydney a Supreme Court jury accepted most of former Gadens partner Robert Kelly’s imputations arising from a small item last February in The Sun-Herald.

The paper reported a stunt by a bondage aficionado to promote the Gay and Lesbian Mardi Gras, but unfortunately got the identities muddled.

imageThere was a picture of a chap without a shirt strapped to a piano in Hyde Park. The caption read: “TORT, Rob Kelly accepts a brief on bondage.”

The jury was shown the article which said:

” it’s lawyer Rob Kelly in Hyde Park practising his piano-top bondage display as part of this year’s street performance at the Gay and Lesbian Mardi Gras. Kelly, the Queensland Performing Arts Trust chairman, is a senior partner with law firm Gadens. Truly.”

The solicitor Rob Kelly is a happily married fellow with triplet daughters, not a bondage specialist with an interest in, shall we say, alternative lifestyles.

Interestingly, the jury found that the imputation that the plaintiff is a homosexual arose from the item, but it was not defamatory. Nor was it defamatory to say the plaintiff was an “exhibitionist”.

While the judges might disagree on whether it is defamatory to call someone a homosexual, here we have a jury in NSW who thinks there’s nothing much wrong with that.

This was despite the strenuous urgings of Kelly’s mouthpiece, Bruce McClintock, who told the jurors:

” there are many derogatory words for homosexuals … there are laws discriminating against homosexuals. Those laws exist because people think less of people who are homosexuals.”

Imputations of hypocrisy and lying fared better.