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highlyeccentricAfter a week of not turning on, my laptop turns on again. Most suspicious.
I come by these quotes by the usual nerd route, looking up the full judgment online. Several of the best have already been publicised in the media, and I note the verdict has also given us the great social boon of Making Bettina Arndt and her weird little friends look more foolish than usual. We are in, one hopes, a glorious season for Australian defamation law.
I'm not quite sure what to call the current zeitgeist for the Seven News Network, but the unfortunate Benjamin Cohen is suing them for defamation, after they publicised and gave credence to utterly unfounded (and antisemitic) rumours he was the Bondi stabbing perpetrator.
Onwards to Lee J's judicial humour:
Listed by paragraph number.
(As leading catchword, ie metadata, to the judgment): "DEFAMATION – the Lehrmann imbroglio"
2: "It is a singular case ... given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles."
10: "To remark that Mr Lehrmann was a poor witness is an exercise in understatement."
17: (Describing Lehrmann) "From a young age, Mr Lehrmann had a preternatural interest in politics."
55: (Defining indirect identification in defamation law) "it was said of one member of the New South Wales Bar – now deceased – that it was remarkable how often his clients seemed to be importuned by strangers in the street commenting upon defamatory publications."
124: (Concerning contemporaneous evidence) "hours of audio, video and closed-circuit television (CCTV) footage has been adduced into evidence. I have reviewed this contemporaneous material and, for my manifold sins, have listened or watched all the audio-visual records in evidence. I have trudged unyieldingly through this material..."
151: (A delightful citation of Beech-Jones J) "“Seven Random Points About Judging”, National Judicial Orientation Program, 17 March 2024" (I hope his Honour had his speaking notes scribbled on an aeroplane napkin)
155: (On whether or not Lehrman found Higgins attractive) "suggesting the attraction he felt for Ms Higgins was “just like [the attraction] I can find [in] anybody else in this [court]room, irrespective of gender” (T351.8–11) was as disconcerting as it was unconvincing."
158: "Mr Lehrmann must have known that the relevant CCTV footage (Ex R42 / Ex 17A) would be examined by some with the intensity that others analyse the Zapruder film. Hence, even if one was willing to give false evidence, it was odd to dissemble as to these matters."
168: (Re Auerbach's reliability) "His resentment was palpable upon viewing the wanton and vaguely disturbing destruction of what appeared to be a perfectly serviceable set of golf clubs."
169: (Also re Auerbach) "He laid the allegations on thick against a variety of persons – somewhat like the paint in an early work of his namesake, Frank."
226: (Regretting his own procedural choices) "It sometimes seems in this case that no good deed goes unpunished."
267: (Concerning Higgin's manager's evidence) "Ms Wilkinson makes the submission it is open to the Court to form the view that Ms Brown is not being dishonest about her insight as to what she had learned about the incident, but “rather she completely lacks ordinary human insight into such matters” perhaps because she lacked training and what was peculiarly called “general human experience”."
268: "Without any intended disrespect or (I hope) stereotyping, Ms Brown struck me as an archetype of a successful professional administrator of a certain age and disposition."
312: (this isn't humour it's just incredibly true and I remember thinking as much at the time) "Ms Wilkinson was a fourth estate éminence grise with 40 years’ experience – she gave evidence she was appointed a Member of the Order of Australia in 2016 for, among other things, services to broadcast and print journalism. If she had of thought matters through as an experienced journalist, and less as a champion for Ms Higgins, she ought to have known the speech was fraught with danger and recognised that lauding a complainant on the eve of a rape trial in the terms she did would be apt to undermine the due administration of justice."
370: (describing an alleged earlier incident which he declines to make a finding on) " a clumsy and unwelcome attempt at osculation outside the Kingo".
376: "Ms Higgins’ hapless date was referred to initially as “Bumble guy”, but as noted above (at [256]), later was given the dignity of being described by his Christian name, “Nick”."
383: "Nick, alas, was left chatting to a man in a blue shirt (Ex R42 / Ex 17A (at 20:51:38)). After being forsaken like a shag on a rock for an extended period and despite then making successful attempts to interact with some of the group on the larger table, Nick understandably left The Dock, no doubt ruing swiping right."
384: "Declaiming on the topics of who was building submarines and where they were being built was not quite the repartee one would usually expect to hear over a convivial drink on a Friday night between twenty-year-olds out for a good time – even if (with respect) one would not expect the badinage of the Algonquin Round Table."
412: "One does not “pash” passively."
432: "Put bluntly, he was a 23-year-old male cheating on his girlfriend, having just “hooked up” with a woman he found sexually attractive. Human experience suggests what he then wanted to happen is not exactly shrouded in mystery."
433: "like most young men, he must have known that excessive alcohol consumption leads to impaired judgment, and lowered inhibitions."
462: "his forensic difficulty with his representations concerning the Scottish libation"
466: "As I have already noted, put in stark terms, it is fanciful a somewhat lubricated male staffer accompanied by a woman he found attractive, who he had just been “pashing” in a nightclub despite having a girlfriend, would then be interested, after coming to a private place very late, to just say “cheerio”, and then soberly proceed to note up briefs for a Question Time that was not to occur for one and a half weeks, a fortiori when the staffer had already resigned; had no outstanding tasks; was not ordinarily involved in work concerning the Defence portfolio (T1424.39–42); and hitherto had demonstrated no outward signs of being a workaholic."
516: "After all, Mr Lehrmann said he was going to show Ms Higgins whisky – not Qing Dynasty ceramics."
597: (A new-to-me version of Clapham Man) "the ordinary person on the Belconnen omnibus" (Google evidence suggests this is probably a new-to-everyone version)
667: "As I said during the hearing, it is the only alleged cover-up of which I am aware where those said to be responsible for the covering up were almost insisting the complainant to go to the police."
738: "For over 450 years, agents of the Executive have had to confront the realities of Parliamentary privilege; a privilege which is of fundamental importance to our system of government. Agent Cleaves is one in a very long line."
942: (Wilkinson's loyalty to Higgins) "This was the case from soup to nuts."
1072: (Lehrman's poor character - elsewhere Lee J considered a hypothetical wherein Lehrman believed Higgins to be consenting, and called hypothetical-Lehrman "a cad") "behaving like a blackguard to his girlfriend".
1091: Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.
I do not, I hasten to add, agree with all of Lee's reasoning - some of the findings of his findings re Higgins seem to me to be against my understanding of everyday experience (although I, cynically, do think the person on the Belconnen omnibus would be more likely to agree with his Honour).
The findings about the unreasonable conduct of Network Ten are scathing, and will no doubt be filed in proceedings where Linda Reynolds is suing Higgins in WA. So the moveable feast of Defo Day will come around again in no time.
I come by these quotes by the usual nerd route, looking up the full judgment online. Several of the best have already been publicised in the media, and I note the verdict has also given us the great social boon of Making Bettina Arndt and her weird little friends look more foolish than usual. We are in, one hopes, a glorious season for Australian defamation law.
I'm not quite sure what to call the current zeitgeist for the Seven News Network, but the unfortunate Benjamin Cohen is suing them for defamation, after they publicised and gave credence to utterly unfounded (and antisemitic) rumours he was the Bondi stabbing perpetrator.
Onwards to Lee J's judicial humour:
Listed by paragraph number.
(As leading catchword, ie metadata, to the judgment): "DEFAMATION – the Lehrmann imbroglio"
2: "It is a singular case ... given its unexpected detours and the collateral damage it has occasioned, it might be more fitting to describe it as an omnishambles."
10: "To remark that Mr Lehrmann was a poor witness is an exercise in understatement."
17: (Describing Lehrmann) "From a young age, Mr Lehrmann had a preternatural interest in politics."
55: (Defining indirect identification in defamation law) "it was said of one member of the New South Wales Bar – now deceased – that it was remarkable how often his clients seemed to be importuned by strangers in the street commenting upon defamatory publications."
124: (Concerning contemporaneous evidence) "hours of audio, video and closed-circuit television (CCTV) footage has been adduced into evidence. I have reviewed this contemporaneous material and, for my manifold sins, have listened or watched all the audio-visual records in evidence. I have trudged unyieldingly through this material..."
151: (A delightful citation of Beech-Jones J) "“Seven Random Points About Judging”, National Judicial Orientation Program, 17 March 2024" (I hope his Honour had his speaking notes scribbled on an aeroplane napkin)
155: (On whether or not Lehrman found Higgins attractive) "suggesting the attraction he felt for Ms Higgins was “just like [the attraction] I can find [in] anybody else in this [court]room, irrespective of gender” (T351.8–11) was as disconcerting as it was unconvincing."
158: "Mr Lehrmann must have known that the relevant CCTV footage (Ex R42 / Ex 17A) would be examined by some with the intensity that others analyse the Zapruder film. Hence, even if one was willing to give false evidence, it was odd to dissemble as to these matters."
168: (Re Auerbach's reliability) "His resentment was palpable upon viewing the wanton and vaguely disturbing destruction of what appeared to be a perfectly serviceable set of golf clubs."
169: (Also re Auerbach) "He laid the allegations on thick against a variety of persons – somewhat like the paint in an early work of his namesake, Frank."
226: (Regretting his own procedural choices) "It sometimes seems in this case that no good deed goes unpunished."
267: (Concerning Higgin's manager's evidence) "Ms Wilkinson makes the submission it is open to the Court to form the view that Ms Brown is not being dishonest about her insight as to what she had learned about the incident, but “rather she completely lacks ordinary human insight into such matters” perhaps because she lacked training and what was peculiarly called “general human experience”."
268: "Without any intended disrespect or (I hope) stereotyping, Ms Brown struck me as an archetype of a successful professional administrator of a certain age and disposition."
312: (this isn't humour it's just incredibly true and I remember thinking as much at the time) "Ms Wilkinson was a fourth estate éminence grise with 40 years’ experience – she gave evidence she was appointed a Member of the Order of Australia in 2016 for, among other things, services to broadcast and print journalism. If she had of thought matters through as an experienced journalist, and less as a champion for Ms Higgins, she ought to have known the speech was fraught with danger and recognised that lauding a complainant on the eve of a rape trial in the terms she did would be apt to undermine the due administration of justice."
370: (describing an alleged earlier incident which he declines to make a finding on) " a clumsy and unwelcome attempt at osculation outside the Kingo".
376: "Ms Higgins’ hapless date was referred to initially as “Bumble guy”, but as noted above (at [256]), later was given the dignity of being described by his Christian name, “Nick”."
383: "Nick, alas, was left chatting to a man in a blue shirt (Ex R42 / Ex 17A (at 20:51:38)). After being forsaken like a shag on a rock for an extended period and despite then making successful attempts to interact with some of the group on the larger table, Nick understandably left The Dock, no doubt ruing swiping right."
384: "Declaiming on the topics of who was building submarines and where they were being built was not quite the repartee one would usually expect to hear over a convivial drink on a Friday night between twenty-year-olds out for a good time – even if (with respect) one would not expect the badinage of the Algonquin Round Table."
412: "One does not “pash” passively."
432: "Put bluntly, he was a 23-year-old male cheating on his girlfriend, having just “hooked up” with a woman he found sexually attractive. Human experience suggests what he then wanted to happen is not exactly shrouded in mystery."
433: "like most young men, he must have known that excessive alcohol consumption leads to impaired judgment, and lowered inhibitions."
462: "his forensic difficulty with his representations concerning the Scottish libation"
466: "As I have already noted, put in stark terms, it is fanciful a somewhat lubricated male staffer accompanied by a woman he found attractive, who he had just been “pashing” in a nightclub despite having a girlfriend, would then be interested, after coming to a private place very late, to just say “cheerio”, and then soberly proceed to note up briefs for a Question Time that was not to occur for one and a half weeks, a fortiori when the staffer had already resigned; had no outstanding tasks; was not ordinarily involved in work concerning the Defence portfolio (T1424.39–42); and hitherto had demonstrated no outward signs of being a workaholic."
516: "After all, Mr Lehrmann said he was going to show Ms Higgins whisky – not Qing Dynasty ceramics."
597: (A new-to-me version of Clapham Man) "the ordinary person on the Belconnen omnibus" (Google evidence suggests this is probably a new-to-everyone version)
667: "As I said during the hearing, it is the only alleged cover-up of which I am aware where those said to be responsible for the covering up were almost insisting the complainant to go to the police."
738: "For over 450 years, agents of the Executive have had to confront the realities of Parliamentary privilege; a privilege which is of fundamental importance to our system of government. Agent Cleaves is one in a very long line."
942: (Wilkinson's loyalty to Higgins) "This was the case from soup to nuts."
1072: (Lehrman's poor character - elsewhere Lee J considered a hypothetical wherein Lehrman believed Higgins to be consenting, and called hypothetical-Lehrman "a cad") "behaving like a blackguard to his girlfriend".
1091: Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.
I do not, I hasten to add, agree with all of Lee's reasoning - some of the findings of his findings re Higgins seem to me to be against my understanding of everyday experience (although I, cynically, do think the person on the Belconnen omnibus would be more likely to agree with his Honour).
The findings about the unreasonable conduct of Network Ten are scathing, and will no doubt be filed in proceedings where Linda Reynolds is suing Higgins in WA. So the moveable feast of Defo Day will come around again in no time.