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What is defamation?
The law of defamation acts to protect the reputation of individuals and corporations.
It assumes all people are of good character unless proved otherwise.
Statements made that have caused or are likely to cause serious harm to a person’s reputation are actionable, but it must be proved that the harm to reputation is not slight, but ‘serious’.
Defamation can occur via written material, pictures, social media posts, spoken words or other kinds of communication. The material must be made available to a third person (someone other than the person it defames) who is capable of understanding its defamatory significance. If this occurs, the material is considered ‘published’.
The plaintiff must prove the material published contained at least one defamatory imputation.
The law also provides a number of defences which the defendant may seek to rely upon to resist a defamation claim.
Defamation cases are civil cases, meaning if someone is successfully sued for defamation they typically have to pay the plaintiff damages.
This case is one of several high-profile defamation cases in Australia recently.
Former Attorney-General Christian Porter discontinued his high-stakes defamation claim against the ABC in May last year.
The Ben Roberts-Smith defamation trial is ongoing in the Federal Court.
It is testing whether the once universally lauded former soldier committed or enabled war crimes during his service in Afghanistan.
Roberts-Smith has strenuously denied he was involved in any wrongdoing or unlawful killings, as alleged by Nine, the owner of the Sydney Morning Herald and The Age. The media outlets are pressing the truth of their allegations.
Justice Lee wants to see Palmer and McGowan give evidence in person to assess the ‘hurt to feelings’
WA Premier Mark McGowan and Clive Palmer will be in court to give their evidence in person.
Mr Palmer will attend today, while Mr McGowan and WA Attorney-General John Quigley will not be attending until February 26.
Justice Michael Lee.Credit:
Justice Michael Lee wrote of his reasoning behind the belief that evidence given by video link would not best facilitate the ‘just’ resolution of the case.
“I will be best assisted by assessing the evidence as to hurt to feelings by closely observing the claimants giving that evidence, not only orally but also in close physical proximity,” he wrote.
“The second is the likely central importance of cross-examination to the determination of the facts-in-issue in this case.”
Justice Lee said there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge.
“There is a solemnity about the giving of evidence, and the formalities reinforce it,” he said.
Justice Lee wrote that increasingly he had felt a “nagging disquiet” that he may be missing something in assessing the evidence given by witnesses by reference to tone of voice or non-verbal signals.
“As time has gone on, it has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess,” he wrote.
‘Hatred, ridicule and contempt’: Clive Palmer to give evidence
Good morning and welcome to our live coverage of the first day of the defamation case between West Australian Premier Mark McGowan and mining magnate Clive Palmer.
Mr Palmer is suing Mr McGowan over public comments he says brought him “hatred, ridicule and contempt” in 2020, including the Premier’s claim that he was an “enemy of the state” because of his legal challenge to border closures.
In return, Mr McGowan is alleging his reputation was damaged by advertisements the businessman and former federal politician paid for, claiming the Premier “abused the parliamentary system” and lied to the people of WA.
Mr McGowan and WA Attorney-General John Quigley are expected to face grilling about texts they exchanged shortly after Mr Palmer’s application to enter WA in May 2020 was rejected, sparking the billionaire’s High Court challenge.
At the Federal Court in Sydney today Mr Palmer will open with his defamation case and give evidence first.
This is expected to take four days, whereupon the court will adjourn for eight days.
Mr McGowan and Mr Quigley will be in Perth at parliamentary sitting days on February 15-17, and 22-24, but Justice Michael Lee has compelled them to fly to Sydney to give evidence from February 26.
After a weekend of cross-examination by Mr Palmer’s lawyers, they are expected to be on a plane returning to Perth on February 28 to complete seven days’ quarantine before the next parliamentary sitting.
Mr McGowan has previously said he will not seek an exemption from quarantine.
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