Channel 7’s Kerry Stokes loses gag order protection in defamation & criminal proceedings against Blogger

We had a win against Seven West Media Chairman Kerry Stokes in the NSW Supreme Court on Thursday. But things have certainly heated up as I am now also facing criminal charges instituted by Kerry Stokes for contempt of court. Justice Harrison handed down his judgement on Thursday and there is no longer a suppression order on the defamation and criminal proceedings. Nor should there have ever been a suppression order on the matters as there was never any evidence to justify it.

What started as a defamation proceeding by Kerry Stokes against me is now also a criminal proceeding. Mr Stokes wants the court to find me in contempt of court for breaching the suppression order. Yes, the short-term suppression order that Kerry Stokes managed to get by deliberately misleading the court.

This is one of the most important stories on this site because it is old media (Stokes, Channel 7 and his WA Paper) versus new media (Me and this Website (Blog)) and it is important not only to the future of this site but other sites as well. Stokes is trying a new tactic to close down a critic which others will follow if it succeeds.

Background

The proceedings against me relate to a post that I published in February this year. But 3 previous posts in relation to Kerry Stokes, 2 in 2012 and 1 in 2013 need to be mentioned as they put numerous issues into context.

In 2011 Kerry Stokes threatened me with defamation via his lawyer Justine Munsie for a post I published on the 23 May 2011 titled “Kerry Stokes, Seven Group Chairman and Australia’s number one perjurer, has been charged with contempt of court”. (Click here to read the post)

The threatening letter from Munsie came on the 26th May 2011 and I published a post the same day titled Kerry Stokes threatens legal action against blogger” (Click her to read the post)

On the 17th March 2013 I published a post titled Kerry Stokes, Australia’s number one perjurer, also becomes the number one bribe taker if new media laws passed” (Click here to read the postand I never heard anything from Stokes or his lawyers.

This year on the 23rd of February 2014 I wrote a post titled “Kerry Stokes, Channel 7 and lawyer Justine Munsie caught lying in the Schapelle Corby matter (Click here to read the post)

Unknown to me on Monday the 14th April Kerry Stokes’s lawyer were in the Supreme Court of NSW arguing they needed a suppression order on defamation proceedings they were about to institute against me. Justice Harrison who was the Duty judge issued the suppression order even though there was no evidence to justify it.

Just before 5pm on Tuesday the 15th April I received a call from Richard Keegan (Addison Lawyers) who said that defamation proceedings had been instituted against me (Stokes and his lawyer Munsie), he had emailed me the documents, that a suppression order had been put on the matter and I had to be in court on Thursday (17th April) to argue the suppression order issue.

I had in effect been told by Richard Keegan that the reason the suppression order had been issued was because I had disobeyed an instruction by Kerry Stokes in 2011 not to publish his lawyer’s letter. There was no judgement by Justice Harrison to say different. So I published another post titled Kerry Stokes has suppression order put on defamation proceedings against KCA publisher” (Click here to read the post)

In court on Thursday the 17th April

Justice Harrison had put a short-term suppression order on the matter on Monday (14th) which expired at 4pm Thursday (17th) until full arguments could be heard. I asked Justice Harrison why he put the suppression order on the matter and he clearly implied that he had been mislead by Stokes lawyers. Justice Harrison said he did not know there was history between us in relation to the 2011 threat by Stokes and Munsie and that he was the duty judge and didn’t have time to get a full understanding of the matter. Justice Harrison said he was protecting me and my reputation, which I replied I did not need. His reasoning for the suppression order sounded plausible when I was in court, but on further reflection and reading his judgement it is not plausible. He clearly should never have put the suppression order on it the first place.

We were meant to be arguing the Notice of Motion (the suppression order) that Stokes and his lawyer Munsie had asked for on the Monday and filed on Tuesday.

At the hearing Stokes’s barrister, Sandy Dawson, suggested that I should be charged for contempt of court for the post that I had published the day before. Justice Harrison did not seem interested and Mr Dawson spoke about documents they had prepared for instituting contempt proceedings themselves. We had a break for lunch and when we came back Mr Dawson handed up completed forms and wanted me charged for contempt and have it set down for hearing ASAP and by the Duty Judge if possible as that would be the quickest way.

I objected to the lot and said they should go and file it the normal way. Justice Harrison set the contempt proceedings down for directions before the Duty judge on the 16th May. They also wanted suppression orders on the application for contempt which were more far-reaching than the original suppression orders as they now wanted protection for their lawyers and barrister Sandy Dawson. So Kerry Stokes wanted to charge me with a criminal offence but wanted it hidden from the world.

Then we were back to the argument about the suppression order which I thought was their original application. The judgement handed down on Thursday makes only mention of the suppression orders in the application for contempt so somehow the original application for suppression orders disappeared. The key suppression orders they were seeking were:

4. Subject to order 7, the defendant be restrained, until further order, from publishing

d. any matter concerning these proceedings;

e. any matter of and concerning the plaintiffs, or their legal representatives (being the firm Addisons, Martin O’Connor, Richard Keegan and Sandy Dawson) which is calculated to expose any of them to hatred, ridicule and contempt.

5. Subject to order 7, a suppression order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground set out in s 8(1)(a), prohibiting the disclosure, by publication or otherwise, of:

a. the existence of these proceedings;

They actually named the lawyers they wanted protected. What did they want protection from? So I did not write about them and their dodgy conduct and breaches of their ethics codes, that being the Solicitors Rules and Barrister Rules. If they break those rules they can be disbarred as a lawyer and barrister.

Justice Harrison reserved his judgement until Thursday the 24th when he said he would hand down his judgement. I had to give an undertaking to the court that I would not publish anything about the matter until Justice Harrison handed down his judgement.

Kerry Stokes arguments as to why they should be allowed the suppression order

Justice Harrison sets it out in basic terms in section 33 of his judgement:

“It is the plaintiffs’ contention in the present case that Mr Dowling has threatened to publish and to continue to publish material that is allegedly defamatory of them with the intended or calculated purpose, or in a way likely to have the result, that they will be so intimidated by such threats that they will discontinue these proceedings or otherwise be forced unfairly to reconsider their original decision to commence them in the first place.”

There are two key pieces of evidence that Stokes needed to prove that. One is the threat to “publish and to continue to publish material that is allegedly defamatory of them”. That is a lie by them and they failed to produce evidence to support it.

The second piece of evidence they could have supplied if they wanted to but deliberately did not. That is evidence of the harm that would be done if I had published the material they claimed I had threatened to. All they had to do was to get Kerry Stokes and Justine Munsie to write an affidavit saying that if I continued to publish defamatory material about them they would withdraw the proceedings. But Stokes and Munsie refused to do that. Why? Because it is not believable at all.

As it says in the judgement:

35 Although Ms Munsie swore an affidavit in support of the original application for interlocutory relief, she did not do so in support of the current application. Mr Stokes has not provided an affidavit in either case.

36 Doing the best I can, there does not appear to me to be any flavour of a threat or intimidation in the material to which Mr Keegan has deposed. Whereas the question of the existence or identification of conduct that is capable of amounting to a threatened interference with the administration of justice must be answered by reference to objective factors, I note in passing that Mr Keegan does not purport to identify such a threat or refer to any such fear or perception on the part of the plaintiffs or either of them.

37 Nor am I able to identify any such threat in the terms of Mr Dowling’s recent website article. …..

47 ……On the evidence before me, I reject entirely any suggestion or submission that Mr Stokes has been, or that a reasonable person in his position would be, intimidated by Mr Dowling.

All Stokes did was have the barrister Sandy Dawson dribbling on from the bar table with no evidence to support his garbage. This is in clear breach of the Solicitor and Barrister rules and highly defamatory of me.

Contempt of Court documents filed in court on Thursday 17th April

Affidavit – Richard Keegan (Addison Lawyers) (Click here to readApparently Stokes is so rich he doesn’t have to bother with writing his own affidavits, he gets his lawyers to do it.

Statement of Charge – (Click here to read)

Notice of Motion – (Click here to read) As they were filed in court there are no court stamps on the documents.

The initial court documents for the defamation proceedings: Affidavit of Justine Munsie (Click here to readNotice of Motion (Click here to readStatement of Claim (Click here to readExhibits (Click here to read) And the initial suppression order by Justice Harrison – Court Orders: (Click here to read

I filed and served an affidavit on Wednesday the 23rd of April in reply to the Application for Contempt which addresses in more detail the above and puts it into context. (Click here to read the affidavit)

Judgement Thursday the 24th April

Judgement was handed down at 10am and Kerry Stokes lawyer Richard Keegan showed up on Mr Stokes behalf. The judgement finds in my favour by not allowing them the suppression orders they were seeking. I am not happy with everything in the judgement but I will dissect it further in a later post when I have read it a few times.

You can read Justice Harrison’s decision on the Supreme Court of NSW website (Click here to read) or I have uploaded a copy (Click here to read) and make up your own mind.

There is a lot more to the story and other issues that I can and will raise in posts in the near future. This battle against Kerry Stokes is important on many fronts and will be fought as it needs to be. We’re back in court on the 16th of May for a directions hearing.

First published on Kangaroo Court of Australia – 26-4-14 – Court orders were issued to conceal the corruption

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