Having a Sea Change
after surviving 4-years
Andrew Bolt + NewsCorp litigation

Corrections & Apologies RECEIVED... but not from Judge Gibson

 





UPDATE  31 March 2016


NSW State Legal Conference (without leadership of Judge Judith Gibson) has now kindly made the following Correction and Apology:


Dear Conference Attendee,

On 30 March 2015, you attended the "Defamation" session of the NSW State Legal Conference held at the Masonic Centre. At that time, we provided you with a paper by Judge JC Gibson headed "From McLibel to e-Libel: Recent issues and recurrent problems in defamation law". As you received that seminar paper at the Conference, we are writing to you to correct a particular aspect.

The seminar paper stated that Mr Barrow as plaintiff in litigation with Mr Andrew Bolt 
was "now bankrupt': We accept that that statement was both wrong and defamatory of Mr Barrow. Mr Barrow is not and has never been bankrupt. Mr Barrow has informed us that no bankruptcy proceedings have ever been issued against him nor does he expect that any will be, and we accept that.

We unequivocally withdraw the suggestion that Mr Barrow is or was bankrupt. We 
apologise unreservedly to Mr Barrow and his family for the error and regret any hurt or distress it has caused.



Yvonne Kux (editor) and Richard Ackland (owner) of the Gazette of Law and Journalism have also kindly made the following Correction and Apology to their subscribers:





JUDGE GIBSON – by contrast – has made quite a POOR Correction (without approval); NO Apology; and has DECLINED to attend a Mediation to make this all right.


This is disappointing in the light of comments Judge Gibson has written in her Honour's own judgments concerning Mediation:


Hunt v Radio 2SM Pty Ltd (No. 4) [2010] NSWDC 67 at [66]

One order I do propose to make is that the parties should go to mediation. Indeed that is a matter that, in my view, ought to be compulsory in every case where a defence of offer of amends is pleaded.


and


Rothe v Scott [2015] NSWDC 105

9.  The sole remaining defence is that of Offer of Amends (s 18 Defamation Act 2005 (NSW)). In those circumstances, this is an ideal matter for referral to mediation before an assistant registrar of the District Court, and steps have been taken for the mediation to take place on 16 June 2015.

10.  This court’s free mediation service is an essential part of defamation case management in the Sydney registry. As defamation is complex, and defamation insurance rare, litigants in defamation proceedings find the conduct of the case stressful as well as expensive. The opportunity for early resolution of proceedings, with the assistance and guidance of these registrars, aids not only the parties, but also the profession and the court. I take this opportunity to acknowledge the invaluable contribution the registrars make to the conduct of defamation proceedings in accordance with the precepts of ss 56 – 62 Civil Procedure Act 2005 (NSW).



Perhaps Judge Gibson's comments as to the benefits of Mediation are not meant to apply to her Honour herself.


 


 

Judge Judith Gibson DECLINES Melbourne MEDIATION

 







Whilst I do not say that Judge Gibson knowingly made a false defamatory statement about me at the time her Honour delivered a conference paper on 30 March 2015, a false defamatory statement was indeed carelessly made by Judge Gibson at that time....


UPDATE  10 February 2016


On 18 January 2016, I wrote an Open Letter PDF to Judge Gibson and 6 other parties infected with her Honour's defamatory conference paper.


I also invited Judge Gibson to attend and conclude a mediation on or before 10 February 2016 to makes things all right.


I was optimistic that Judge Gibson and I could find sensible non-litigious amends through mediation – in a reasonable way, comprehensively covering all of the publications, republications and the grapevine effect which have flowed from her Honour's conference paper.


Today is 10 February 2016.  No mediation happened.


I did, however, receive a letter today from Dr Ricky Lee (OuterSpace Lawyer) representing Judge Gibson.


Regarding Mediation the letter says:


Your use of the term "mediation" is a misnomer. In effect, you have demanded a lengthy private meeting with our client, without her legal representatives or a mediator present, at an undisclosed location, without identifying what you want to discuss. This is both inappropriate and disturbing.

ACTUAL QUOTE from JUDGE GIBSON LETTER sent to ME

 


ME: Wow.


My invitation for a mediation in Melbourne should not be construed as anything other than my intention as, well, a mediation in the usual way where parties come together in person with their legal representatives and/or a support person to try and resolve the issues in a non-litigious way with the assistance of a professional mediator.


I have said this, among other things, in a new OPEN LETTER (10 February 2016) PDF.


What other things?  Well, Judge Gibson now seems to say that I actually consented to her Honour making a false statement that I was bankrupt.


Again, Wow.


I must say clearly: I did not and do not consent to Judge Gibson's false statement that I was bankrupt.


Read all about it: OPEN LETTER (10 February 2016) PDF

 


 

MELBOURNE MEDIATION


On 19 January 2016, I sent the following email to relevant parties, including to Judge Gibson's legal representative Dr Ricky Lee:

 

Dear Ricky,


Further to my Concerns Notice of 18 January 2016, I propose that Judge Gibson come to Melbourne to attend a Mediation in person on some day between Saturday 6 February 2016 and Wednesday 10 February 2016.


With good preparation and good faith it may be that a Mediation can run and be concluded within half a day.


I also reiterate that if Judge Gibson attends this Mediation in person then I would be pleased to enliven the timing cover of a reasonable offer of amends defence, that has now expired under the 28 day rule pursuant to section 14 of the Defamation Act 2005 (Vic) – with such an extension in timing to make amends to run right up until the conclusion of the Mediation.


In my view, there are good prospects that a Mediation will comprehensively cover all publications and republications for which Judge Gibson is a joint-tortfeasor -- which will also release all other relevant parties from exposures in these matters.


Further, even if the Mediation is not successful, this an opportunity that can only improve what has to date been an unsatisfactory offer of amends by Judge Gibson.


I look forward to Judge Gibson's response to this proposal.


Kind Regards,

David C. Barrow

 


 

JUDGE JUDITH GIBSON  invited to Melbourne Mediation



 


 

UPDATE  18 January 2016


I wrote a Further Open Letter PDF to Judge Gibson – which includes notice to 6 other parties infected with her Honour's defamatory conference paper.


I propose that Judge Gibson come to Melbourne and we prepare for, attend and conclude a mediation on or before Wednesday 10 February 2016.


I am optimistic that Judge Gibson and I could find sensible non-litigious amends through mediation – in a reasonable way, comprehensively covering all of the publications, republications and the grapevine effect which have flowed from her Honour's conference paper.


And I remain firmly of the view that the whole situation remains one where Judge Gibson and I still have the potential to be a showcase of how non-litigious amends can be achieved in Australia.


 

It Came from OuterSpace Lawyer


JUDGE JUDITH GIBSON  makes Offer of Amends




UPDATE  22 December 2015


Key Points

  • Written Response on behalf of Judge Gibson to my Open Letter
  • Judge Gibson accepts her Honour made a false statement that I am bankrupt
  • I'm disappointed that instead of joining me to find a non-litigious amends, Judge Gibson focuses on defending against liability
  • Judge Gibson offers no apology and rejects my suggestion for a mediation 



As set out previously (below), in a March 2015 NSW State Legal Conference paper, NSW District Court Judge Judith Gibson made false and careless statements about me that I was bankrupt (when I am not now, nor have I ever been bankrupt).


This was then published and republished to the world at large on the Internet.


On 16 December 2015, I wrote an Open Letter to Judge Gibson (pictured) and asked her Honour to join with me in a non-litigious way to make this all right.



Judge Judith Gibson (albeit from peculiar angle)

 


I have now received a Written Response from Judge Gibson's lawyer Dr Ricky Lee sole-director and managing partner of Globalex Legal.


Dr Ricky Lee (pictured) is perhaps best know as an OuterSpace Lawyer with no apparent defamation law experience.

 



Dr Ricky Lee, OuterSpace Lawyer

 


I'm not sure how closely a person facing defamation allegations usually instructs their solicitor, however Judge Gibson has the experience to instruct her Honour's solicitor pretty well indeed.


For Judge Gibson is a defamation expert – appointed as a NSW District Court Judge in 2001 (presently the defamation list judge; a case management role that was resumed after an apparent kerfuffle in 2010), having come to the bench after a career as a top defamation barrister


Judge Gibson is also the continuing LexisNexis bulletin author (since 1993) of the well-regarded Australian Defamation Law and Practice updater – and an active conference presenter.  Consider just some of her Honour's media law papers:

  • ​"It came from CyberSpace: Defamation Law and the Internet" [PDF 339kb] NSW State Legal Conference (28 August 2014)
  • "Should Judges use Social Media[PDF 337kb] (31 May 2013)
  • "Social media issues for investigators" [PDF 167kb] Australian Institute of Professional Investigators (11 November 2015)
  • ​​"Ridiculousness: Ridicule and defamatory meaning in the age of the internet" [PDF 347kb] College of Law (27 August 2014)

 



In the Written Response on behalf of Judge Gibson, her Honour quite frankly accepts:


  • I was not bankrupt at the time of her Honour's conference paper titled "From McLibel to eLibel: Recent Issues and Recurrent Problems in Defamation Law" presented at the NSW State Legal Conference in March 2015, and that I am not presently bankrupt

A good start – but it's disappointing that instead of joining me to find a non-litigious amends, Judge Gibson focuses on asserting lawyerly-technicalities to try and defend against the plain fact that her Honour has made a false statement that I am bankrupt.


Judge Gibson also offers no apology and rejects mediation.



Let us consider the defences her Honour asserts:


Firstly, "qualified privilege" on the basis that the publication was presented by her Honour at the NSW State Legal Conference, published on the website of the NSW District Court and referred to on Twitter, to an audience of persons said to have a legitimate interest in receiving information on recent issues and recurrent problems in defamation law.


Well, Judge Gibson may struggle to make out such a defence given the defamatory statement was published and republished to the whole wide world at large through the Internet.  Not all of those recipients may have an interest in receiving the information.  If Judge Gibson became a defamation defendant this would just have to be determined by a judge at trial.


For the "qualified privilege" defence, Judge Gibson also asserts that her Honour genuinely believed at the time of each publication that I was bankrupt, based upon statements her Honour says were attributed to me in an article on the Crikey website written by Myriam Robin to the effect that I "would have to declare bankruptcy" and make a fresh start, "able to earn a living albeit with a number of restrictions and a blighted credit history".


This seems to refer to the article titled "Bolt defamation litigant loses case, will declare bankruptcy" attributed to media reporter Myriam Robin, published 3 December 2014 on the Crikey website:


http://www.crikey.com.au/2014/12/03/bolt-defamation-litigant-loses-case-will-declare-bankruptcy/


Some points on this:

  1. Nowhere in Myriam Robin's Crikey article does it say that I was bankrupt (which I am not nor have I ever been).
  2. There is no indication that Judge Gibson took any proper steps to determine if I was bankrupt, such as checking the National Personal Insolvency Index or an online search of Federal Circuit Court bankruptcy proceedings – or contacting me directly.
  3. On 3 December 2014 (same day article published), I emailed Myriam to notify her that I had posted some comments and corrections on my website concerning her Crikey article.  Myriam then caused a link to be published to this response at the end of her article (which is still there today) and wrote to me on 4 December 2014 as follows:

    Hi David, I've added a link to your response to the bottom of the article. Sorry it's taken me so long to do so I've been flat out since yesterday and haven't had a proper chance until now. Sorry about any errors in the piece they weren't intentional. But I'm not a lawyer and find it hard sometimes when just going off a verdict transcript. Best of luck, and thanks for keeping me informed. Myriam


    Among other things, my response posted on my website emphasised that I only faced bankruptcy IF my appeals to the 2 December 2014 decision of the trial judge Justice Terry Forrest were unsuccessful.


    As I have written (below), those appeals were on foot all the way up until settlement with Andrew Bolt and the Herald Sun – and acted as an effective bankruptcy shield.


    Inexplicably, Judge Gibson was also aware of my appeal application to the Court of Appeal during this time, writing about this in the LexisNexis Australian Defamation Law and Practice publication around May 2015 – and still not correcting her Honour's conference paper.


    I have an archive copy of my response to Myriam's Crikey article, however I took it offline when my defamation case settlement with Andrew Bolt and the Herald Sun in December 2015.  This was well after Judge Gibson first published the false statement that I was bankrupt in March 2015.


  4. Further, on 3 December 2014, I tweeted about my comments and corrections, which Myriam kindly retweeted
  5.        

 


Secondly, Judge Gibson asserts a defence that it is "astonishing" and "unlikely" that any harm can be attributed to her Honour's paper falsely stating that I am bankrupt.


Well, what I find astonishing is that a NSW District Court Judge, highly experienced in defamation law, would make such a false and careless statement that I am bankrupt, apparently only relying on a media report published on 3 December 2014 on the Crikey website – and then misreading that report – and also either misreading or failing to read my response that was clearly and kindly added by Myriam Robin in a link at the bottom of the Crikey article.



Thirdly, Judge Gibson foreshadows a final defence that if I should reject her Honour's current offer of amends then her Honour considers this offer to be so reasonable that it will constitute a full defence to any defamation proceeding pursuant to s 18 of the Defamation Act 2005 (Vic).


Well, it's fair to say that the 'jury is out' on just how reasonable Judge Gibson's current offer of amends really is.


Let's consider this further.




Judge Gibson makes the following Offer of Amends:


  1. Removing the false words "(and now bankrupt)" about me from the online version of her Honour's article posted on the NSW District Court website, and appending the following statement to the online version of the article as close as practicable to where the removed words appeared:
  2. CORRECTION: In an earlier version of this article, I said that David Barrow was bankrupt. Mr Barrow had been quoted publicly as stating that he would have to declare bankruptcy as a result of the costs orders made against him in his unsuccessful proceedings against Andrew Bolt and the Herald & Weekly Times Pty Ltd. I accept that Mr Barrow has not in fact been made bankrupt.


    Well, as I have written (above and below), I did not say I would have to declare bankruptcy – while my appeals were on foot (which they were all the way up until settlement with Andrew Bolt and the Herald Sun).


    The correction proposed by Judge Gibson will likely not adequately and reasonably reach many of those who received her Honour's paper – such as those who attended the March 2015 presentation at the NSW State Legal Conference.


  3. Making the following statement on Twitter, together with a hyperlink to the online version of her Honour's article posted on the NSW District Court website:

CORRECTION: Contrary to what I wrote in my NSW State Conference paper presented on 30 March 2015, David Barrow was and is not a bankrupt.


This is heading in the right direction (albeit that there could be clearer wording that I was not and am not a bankrupt).  But frankly, I'd welcome a preliminary tweet with this content immediately.  Further steps of a reasonable amends can then follow later, such as amendments to Judge Gibson's conference paper.


And it is not clear from which Twitter account(s) the proposed correction is to be tweeted, when links to the conference paper were previously published on both the NSW District Court (@NSWDstCt) and Judge Gibson's personal (@Alesia148) Twitter account, among other Twitter accounts. 




As I have written above, I am quite disappointed that Judge Gibson has offered no apology and has rejected my suggestion for a mediation.


And this rejection is surprising, given her Honour's view in the Hunt v Radio 2SM (at para [66]) defamation proceeding that in every case where a defence of an offer of amends is pleaded that mediation ought to be compulsory.


Perhaps Judge Gibson had in mind that although judges are members of the community, they are a special case?


Most inexplicable of all is that Judge Gibson quite frankly accepts her conference paper is incorrect – and yet her Honour has not taken the simple steps to immediately remove that paper from publication on the NSW District Court website until such time as an appropriate correction can hopefully be agreed. 


Anyway, pursuant to the Defamation Act 2005 (Vic), Judge Gibson still has until mid-January 2016 to revise any offer of amends – so I hope to update you on this in the new year.


And the situation remains one where we still have the potential to be a showcase of how non-litigious amends can be achieved in Australia.



 

PREVIOUS POST

 

 

I have a tricky situation with...


NSW District Court  JUDGE JUDITH GIBSON



Let me explain by way of my Open Letter PDF to her Honour dated 16 December 2015.  I sent this Letter via registered mail and also in an email to her Honour's associate in chambers.


With the Court's 2015 sitting term ending soon, and not resuming until February 2016, I considered it prudent to also send a link to the Letter via Judge Gibson's personal @Alesia148 Twitter account:






Here is my Open Letter PDF:


 

16 December 2015

 

ATTENTION:

The Hon JUDGE JUDITH GIBSON

NSW District Court

 

Dear Judge Gibson,

 

We have an opportunity to show the Australian community how non-litigious amends can be achieved between us.

 

I understand that your Honour is an expert in defamation law.

 

This made it even more surprising when your Honour published a false statement about me in your conference paper titled:

 

"From McLibel to eLibel: Recent issues and recurrent problems in defamation law"

 

In that paper, which your Honour delivered to the March 2015 NSW State Legal Conference, your Honour wrote falsely that I was bankrupt.  

 

The paper was then published and republished numerous times, including on the NSW District Court website and via a link from your own personal @Alesia148 Twitter account.

 

Judge Gibson, I must say clearly: I am not now, nor have I ever been bankrupt.  Nor have bankruptcy proceedings ever been issued against me; nor do I expect that any will be.

 

Further, I am a CPA Accountant.  Understandably, it is a requirement of my membership of CPA Australia that I must not be bankrupt.

 

As your Honour knows, it is a simple matter to consult the publicly available National Personal Insolvency Index to confirm whether someone is indeed bankrupt before falsely publishing this to the world.

 

One can also do a simple search of the online Federal Circuit Court proceedings to confirm if a bankruptcy "sequestration order" has been made – as well as just contact me directly.

 

I note it is your Honour's view in the Hunt v Radio 2SM defamation proceeding that in every case where a defence of an offer of amends is pleaded that mediation ought to be compulsory.

 

I agree this is a good idea, and I invite your Honour to fly down to Melbourne so that we may have a mediation to search for agreement as to how your Honour is going to make this all right.

 

I would value a better understanding of the view your Honour seemed to express in the paper "From McLibel to eLibel: Recent issues and recurrent problems in defamation law" that the Courts are not a place for citizens to represent ourselves.  Your Honour wrote of a "do it yourself approach" and the "Wikipedia solution" with some disdain it seemed to me of citizens looking up material on the Internet to educate ourselves and perhaps even challenge professionals, such as lawyers, whom claim to have "the relevant qualifications and expertise" (as your Honour put it).

 

Given that your Honour has caused a false statement that I am 'now bankrupt' to be published to the world at large, and your Honour's standing as a defamation expert, I believe the outcome of our situation should be made public.  And as I opened to you in this letter, we have the potential to be a showcase of how non-litigious amends can be achieved.

 

I look forward to your Honour's response.

 

Yours sincerely,

David C. Barrow

 

 


 

Judge Gibson's personal @Alesia148 Twitter account


This account is a brave foray of an active judge into the public social media space, putting into practice ideas from her Honour's paper titled "Should judges use social media?" (31 May 2013).


Judge Gibson uses her Honour's real world name "jcgibson" and the primary fascination of the account is defamation and media law, which is understandable given her Honour is the defamation list judge in the NSW District Court.


In a recent SMH lunchtime interview with Michaela Whitbourn, Judge Gibson was reported as first becoming interested in defamation law around age 9 after reading of Liberace's successful defamation battle with the UK Daily Mirror over a column which implied the colourful entertainer (pictured) was gay (he actually was, but the paper was unable to prove it to be true at the time).  These days saying someone is gay in a modern society like Australia wouldn't be defamatory at all.  Times change even if 100s of years of the underlying defamation law principles tend to endure.





The @Alesia148 Twitter account has a picture of Judge Gibson (albeit that it's captured from a peculiar angle):





The naming of the @Alesia148 Twitter account is puzzling – however a clue may be found in her Honour's own tweets:

 

 


PROJECT ALESIA was an ill-fated NewsCorp aggregated digital news platform for its titles and those of rival publishers.  It was nicknamed after Julius Caesar's victorious siege of Gallic forces in 52 BC, and supposed to be Rupert Murdoch's attack against Google News.  Alas, Project Alesia was suddenly dumped in October 2010 after 12 months development, reported to have cost in the region of £20 million.  ALESIA now appears to live on (if only in name) with Judge Gibson's @Alesia148 Twitter account.


Judge Gibson makes some further references to the NewsCorp Project Alesia here, here, here and here.


Other topics of tweeting interest for Judge Gibson are the News International phone hacking scandal, Amazon's Judith Gibson Page, the UK Daniel Morgan axe murder, retweeting RT @TurnbullMalcolm and RT @KRuddMP on the cruel and offensive comments of Alan Jones about Julia Gillard's departed father, a lot of praise for the @MsLods law + tech news round-up, and a study on whether male and female judges might think differently, among other musings.


This tweet by Judge Gibson is also hard to top for sheer exoticness:


 

Also this is an interesting tweet by Judge Gibson:


 

This tweet may even have been taken by Judge Gibson in person at a French cafe during the previous Summer non-court sitting period in support of the Charlie Hebdo satirical magazine:


 

A further tweet by Judge Gibson which appears to be squarely in support of Charlie Hebdo:


 


 

Does Judge Gibson have a Defence to the defamation?

  1. Pursuant to s 18 of the Defamation Act 2005 (Vic), Judge Gibson will have a full defence if a reasonable offer of amends is made within time (which I believe is by 13 January 2016 – so I hope to update you on this in the new year).

  2. Judge Gibson may also have a defence of what is known in defamation law as "qualified privilege".  Her Honour (if a defendant) would need to persuade a trial judge that the false publication that I am bankrupt was made on an occasion where there was some duty by her Honour to share the information and some interest in all of the recipients receiving that information – although Judge Gibson may struggle to make out that defence given the defamation was published to the whole wide world at large through the Internet rather than just the NSW State Legal Conference.

  3. Members of Parliament and judges have "absolute privilege" which is a complete defence to a defamation claim whatever may have been said, however this only operates on the occasion of parliamentary or court proceedings.  Judge Gibson's false statement that I was bankrupt was first made at a legal conference and then at other times of publication and republications – all of which are outside of any court proceedings.  As such, there is no "absolute privilege" defence open to her Honour.


Anyway, regardless of all the legal complexities of defamation law, I feel that Judge Gibson should make an effort to make this all right – to correct the error, offer a genuine apology and find a way to contact the recipients of the false statement to communicate all of this.


And in joining with me to find a non-litigious solution – I hope that her Honour will be more mindful that citizens may have legitimate reasons to represent ourselves in our own legal matters.




David Barrow Email