It Came from OuterSpace Lawyer
JUDGE JUDITH GIBSON makes Offer of Amends
UPDATE 22 December 2015
- 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:
Some points on this:
- Nowhere in Myriam Robin's Crikey article does it say that I was bankrupt (which I am not nor have I ever been).
- 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.
- 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.
- Further, on 3 December 2014, I tweeted about my comments and corrections, which Myriam kindly retweeted
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:
- 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:
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.
- 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 ) 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.