by Sarah Kingsley
THE CASE
Ms Deeming alleged that Mr Pesutto had defamed her on five occasions, causing injury to her and her reputation, by referring to her as a Nazi sympathiser. Mr Pesutto denied this.
Defamation is when a person publishes material that injures another person’s reputation. Defamation law gives a person whose reputation has been wrongfully attacked the right to take legal action. It is a civil, not a criminal matter.
Section 10A of the Victorian Defamation Act required Mrs Deeming to prove that “the publication of each defamatory matter caused, or is likely to cause, serious harm to her reputation”. It was necessary for Mrs Deeming to prove, on the balance of probabilities, that the comments made by Mr Pesutto did carry the defamatory imputations she alleged. That is a question of fact. The rule is: “the fundamental question: what is the meaning that the words convey to the ordinary man”.
THE FACTS
The case opened by going through the facts in detail, starting with events before the Let Women Speak Rally in March 2023. A “mountain of evidence” was produced by the parties, amounting to some 1,000 pages. They included over 40 affidavits [sworn statements] and 800 exhibits. The affidavits, submissions, exhibits and other publicly accessible documents can be accessed on the judgement website. Each party called a number of witnesses.
MS DEEMING’S CASE
The allegation was that Mr Pesutto had defamed Ms Deeming on five occasions, by making comments that suggested that she was a neo-Nazi, associated with neo-Nazis, was therefore unfit to be in Parliament or be a member of the Liberal Party [my summary].
On 19 March 2023, Mr Pesutto published a media release, including to journalists. He also caused it to be uploaded to his own website and the website of the Victorian Liberal Party. It included this comment, among others:
“This afternoon I met with Moira Deeming MP who attended yesterday’s rally. I discussed her involvement in organising, promoting and participating in a rally with speakers and other organisers who themselves have been publicly associated with far right-wing extremist groups including neo-Nazi activists.”
Mrs Deeming alleged Mr Pesutto published [created, caused to be produced] a 3AW interview on 20 March 2023 and that the 3AW interview was defamatory of her. It included suggestions, according to her [my summary], that she had so conducted herself as to warrant being expelled from the Liberal Parliamentary Party by associating with Nazi activists and that she was a Nazi sympathiser.
Mr Pesutto admitted that he published an ABC interview on 20 March 2023, which contained similar imputations, according to Ms D, to the media release of 19 March.
These comments were repeated in a press conference Mr Pesutto held on 20 March. The various interviews were repeated in other media [“republication”].
These events were followed by the party meeting and expulsion motion, and the leaking of the expulsion motion to the press. Ms Deeming alleged that this contained material defamatory of her.
MR PESUTTO’S DEFENCE:
Mr Pesutto denied that the publications sued upon caused, or were likely to cause, serious harm to Mrs Deeming’s reputation.
There are also defences to a charge of defamation. In this case, the defences raised were:
Public interest
ie, that Mr Pesutto believed that his comments were in the public interest. For this to succeed, he had to prove that he believed, however subjectively, that they were, and also that this belief was reasonable. The judge found that Mr Pesutto did subjectively believe that he was acting in the public interest, but that his belief was not reasonable.
Honest opinion
The judge found against this defence.
Contextual truth
The judge found against this defence.
Mitigation
The judge found that there were no valid reasons to mitigate [reduce] the damages.
WAS MRS DEEMING’S REPUTATION SERIOUSLY HARMED?
The judge considered evidence of Ms Deeming’s reputation before and after the events and concluded that serious harm had been suffered by her.
During the course of the judge’s detailed consideration of this, he made a number of derogatory comments about Mr Pesutto’s evidence.
“I have no hesitation in saying that Mr Pesutto’s evidence at paragraph 45 of his first affidavit is untrue. Having said, on oath, that “in the circles in which I moved including the more mainstream parts of the community I was trying to attract to support the Party (in my view, the vast majority), Mrs Deeming had a bad reputation, particularly for giving succour to hateful and/or extreme social or political views”, when pressed about the allegation, he was unable to provide a skerrick of evidence to support it. That is a shameful state of affairs, because the allegation – which went as far as saying that he “[knew] of no other person with such a bad reputation who has been allowed into the Party” – was self-evidently calculated to defeat Mrs Deeming’s case that she had, or was likely to have, suffered serious harm as a consequence of the impugned publications.
558 The allegation that Mr Pesutto made that Mrs Deeming had a bad reputation also flies in the face of objective facts, including most obviously the fact that it was Mr Pesutto himself who proposed that Mrs Deeming be elected to the position of Party Whip in the Legislative Council in December 2023”.
“562 …it is clear that Mr Pesutto was unable to point to anything to make good his sworn assertion that “it was apparent to me that Mrs Deeming’s views on social and political issues (most notably, abortion and transgender related issues) were notorious, controversial and regarded as hateful by some, and she had a mixed reputation in the Parliament”.
563 In my view, paragraph 44 of his 27 May affidavit is also untrue.”
“as I explained above, Mr Pesutto’s evidence about what he called Mrs Deeming’s bad reputation was gratuitously offensive, because, when asked to justify the slur, he could not.”
VERDICT
The judge concluded that each of Ms Deeming’s claims was proved; that Mr Pesutto’s comments did carry the meanings that Ms Deeming alleged, and he rejected the defences offered by Mr Pesutto.
DAMAGES
[Compensation for injury caused to Ms Deeming]
When it came to assessing what damages, if any, should be awarded, the judge considered: the seriousness of the defamation; evidence of Ms Deeming’s reputation; damage to her reputation; the extent of the publication of the defamation; the extent of republication of the defamation, and whether there were any factors that might mitigate [ie reduce] the amount of damages.
Having taken all these into account, the judge awarded Ms Deeming $300,000 in damages that Mr Pesutto must pay her. This does not include amounts she had spent on the trial [‘costs’]. He indicated that he will make an order about them later. Since Ms Deeming won her case, it seems likely, although not inevitable, that she will also be awarded costs, ie, the court will order Mr Pesutto to also reimburse Ms Deeming for the costs of bringing the case.
COMMENTS ON THE CASE
From a legal point of view, there was nothing especially unusual or complicated about the case. Its extraordinary features are all to do with the surrounding politics.
To start with, it was extraordinary that a party leader would risk so much – ultimately, probably, his position and career – just to get rid of an MP he disliked. The entire debacle smacks of his having lost his head when he saw an opportunity presented by the Let Women Speak rally in March 2023.
From the word ‘go’, the allegations against Ms Deeming were flimsy at best. Is it really so unacceptable for an MP to attend and briefly speak at a women’s rights rally – especially when the MP is a woman? MPs who are farmers routinely attend famers’ demonstrations, for instance.
One of the most surreal aspects to the whole women’s-rights-campaigners-Nazi-sympathisers story is that no-one sensible, with any knowledge of history, would ever imagine for a moment that Nazis were supporters of women’s rights. It was apparent to everyone that the small group of neo-Nazis who attended the rally were not there to support LWS or at their invitation. It is far more likely that they were there to confront a group of Victorian Socialists, who had also decided to gatecrash the event. It was also evident that if the police had done their job, these men would never have got anywhere near the LWS group.
The media, encouraged by the lead shown by both the then Premier Daniel Andrews and Mr Pesutto, piled on the ‘Nazi sympathiser’ bandwagon. Mr Pesutto made a number of ill-advised appearances on radio and TV in which he expanded on the slur, while setting in motion the machinery to expel Ms Deeming from the party and ideally from the Parliament.
Again, it is almost incredible that a party leader should have mounted such a campaign on such wafer-thin grounds. He proposed to evict a democratically-elected MP on the grounds that they had attended a rally which was gatecrashed by hooligans. Politicians have stood their ground when far more serious, solidly fact-based grounds have been on the table.
Pesutto’s actions demonstrated a tin ear for the electorate’s wishes as well. The LNP has been facing mounting criticism for years about its failure to attract, select or advance women members, culminating in the massive failure of the State Party at the 2022 elections, when the teal wave of disenchanted ex-liberal women swept into office. Working to sack a recently-elected young woman was never going to play well with the female 51% of voters.
The machinations to evict Deeming were cack-handed. There were secret recordings of meetings. The party was split between supporting the leader and opposing his moves. And Ms Deeming at one stage offered to settle the case for damages of $99,000, a third of the eventual damages, which Mr Pesutto refused.
Mr Pesutto’s repeated comments predictably evoked a storm of aggression on social media, in which Ms Deeming was subjected to every insult under the sun and she and her family exposed to threats. These were frequently linked by the posters to Mr Pesutto’s statements. The extent and vile nature of these tirades and the role Mr Pesutto’s actions and statement played in evoking this, were a significant factor in the calculation of $300,000 as an amount which was suitable to compensate Ms Deeming for what she suffered as a result of Mr Pesutto’s actions.
During the hearing, Mr Pesutto repeatedly denied imputing that Ms Deeming was linked to Nazis. The judge dismissed these denials entirely, and went so far as to criticise Mr Pesutto’s giving of evidence, which was rambling and often failed to address the issues, even characterising some of his statements as “untrue” – in other words, Pesutto lied on oath.
The end result of more than 18 months of grappling with a problem of which he was the sole progenitor, was that Ms Deeming continued to sit in Parliament as an Independent; the party was still split over the course of action; the party has spent probably $2 million on the case, and is now up for $300,000 in damages to Ms Deeming plus, probably, her costs; she has been totally vindicated and it will be difficult for the party to not re-admit her, and Mr Pesutto put up a very poor showing in the trial, and in the judgement was castigated as a liar by a Federal Court judge.