Defamation … Shock verdict for plaintiff in Gayle v Fairfax … Justice Lucy McCallum reverses herself on “reasonableness” … Defendants say the trial was conducted unfairly … All rise – journalists told they have no priority for courtroom seats … School children being ushered by the “Rule of Law Institute” have rights too 

The verdict was accompanied by unattractive whoops of pleasure by Gayle’s people in the court. 

The jury took less than two hours, including lunch, to find the truth defence failed with all three imputations:

Justice Lucy McCallum had ruled inadmissible Gayle’s sleazy, self-basting social media posts. 

Matt Collins QC, for the defendants, pointed to the conflicting evidence from Gayle and his main witness, Dwayne Smith. 

He said that Gayle had falsely claimed that the team masseuse, Leanne Russell, was not in the change room at the relevant time, yet this was contradicted by the evidence of Smith as well as Ms Russell. 

Bruce McClintock for Gayle made a savage attack on Russell, who suffers from anorexia, telling the jury she is “mentally fragile … plainly neurotic… bitter … vengeful”. 

In fact, it is unfathomable that Russell would come forward to make a false allegation against Gayle, in the wake of the creepy Mel McLaughlin “don’t blush baby” incident, knowing she would be likely to endure an attack on her character. 

We’ll never know how the jury found that the articles in The Sydney Morning Herald, The Age and The Canberra Times were published with malice. 

Despite perfectly adequate and responsible checking by journalist Chloe Saltau once again it is apparent that the standard of reasonableness turns out to be a requirement of perfection. 

McCallum also reversed herself on her earlier decision in Daniels v State of NSW in which she held that the element of reasonableness for the defence of qualified privilege should be decided by the jury. 

In Gayle, she decided it should be decided by the trial judge. Here are the defendants’ submissions on qualified privilege. 

This is not a happy time for responsible journalism. Qualified privilege is hopelessly unworkable as a defence and the requirement of “substantial truth” has to be a truth so perfect that it blinds everyone in a courtroom. 

Fairfax’s solicitor, Minter Ellison partner Peter Bartlett, said outside court he was “shocked” and “disappointed”.

“I think there are grounds of appeal and we’ll be looking at that very carefully. It will cost the company a lot of money unless we can reverse it on appeal.”

A Fairfax spokesperson said the company was “concerned with the conduct of the trial to the extent that on Friday it sought an order that the jury be discharged and a new trial ordered”.

“The judge accepted that the jury had been misled in a way that prejudiced Fairfax, but declined to discharge the jury. 

Fairfax believes that it did not get a fair trial. It is seriously considering its appeal rights.”

In further unhappiness for the media during the Chris Gayle trial the media was advised by the judge that it would have to take its turn standing while reporting the proceedings. 

In a note to the judge a media reptile complained that school students had crowded into the court taking up seats that otherwise might have been occupied by working journalists. 

On occasions the court was so packed that reptiles had to stand, which made note-taking with pen, paper and computer quite difficult. 

The request to the judge was that the court should, in the interests of open justice, “make room for journalists” – after all they were working, while students who were taking a day away from algebra classes were not. 

Justice McCallum slapped down the media request, claiming it was a misconception to understand the principle of open justice “as a right of the press to report”. 

“It is rather an institutional feature of our system of justice to the extent that is is appropriate to analyse such principles in terms of rights, the right is that of the parties to have their cause determined in a forum that is open to be scrutinised by any member of the public who wishes to attend court.” 

It turns out that the school students were on an excursion organised by the Rule of Law Institute, which the judge described as “an independent not-for-profit body formed for the object of upholding the rule of law”. 

“To have excluded them for the benefit of journalists would have provided a sorry lesson on the failure of the rule of law.” 

A Justinian readers well know the Rule of Law Institute is not an independent body at all. It was set up by Robin Speed from the tax law shop Speed & Stracey and has a very selective pro-business view of the rule of law. 

The institute has lobbied against ASIC taking on wayward company directors and against ICAC’s work in relation to corruption findings, but no-one can remember it stepping-up on rule of law issues such as recent attacks on the judiciary from politicians such as Messrs Dutton, Hunt, Sukkar and Tudge. 

The Sydney Morning Herald said that the ROLI “patrols the corridors of power for legislation that may threaten the interests of business”.  

More correctly it should be named the Rule of Corporate Lawyers Institute. 

Some of the partners of Speed & Stracey are behind another outfit, the Family Office Institute Australia, an astroturf lobbing outfit with no members which, among other things, successfully lobbied for the country’s largest privately owned companies, with revenues of more than $100 million, to be exempt from an ATO proposal for the disclose of their tax payments as a measure to avoid “aggressive avoidance practices”.  

Robin Speed most recently distinguished himself by leading a campaign against the council of the Law Society of NSW’s support for same-sex marriage. 

He variously demanded the resignation of the president of the society, Pauline Wright, threatened legal action and then gathered numbers of an extraordinary general meeting. 

The society’s policy on SSM has been maintained but a special “working group” under Speed’s chairmanship will advise the society on religious freedom, freedom of speech, etc.  

Heaven held the school kiddies if they are being fed the ROLI’s version of the rule of law. 

To top it off McCallum, in rejecting the journalists’ request for seating, pointed to s.6 of the Court Security Act – which says journalists have access to an area outside the court for the purpose of making a media report as long as they are not “obstructing or otherwise impeding access to the building”.  

On occasions it’s understandable if those media organisations who try and do a responsible job come to believe there is no god.