Joe Hockey to take stand in defamation case against Fairfax Media

Mr Hockey is suing Fairfax Media for defamation, claiming a series of articles published in The Sydney Morning Herald, The Age and The Canberra Times conveyed a series of defamatory meanings, including that he "accepted bribes paid to influence the decisions he made as Treasurer".

Fairfax Media is defending the case, saying it was in the public interest to publish details about the North Sydney Forum, which allegedly offered access to Mr Hockey in exchange for donations of thousands of dollars.

Mr Hockey has engaged media law heavyweights including Bruce McClintock, SC, who recently represented Gina Rinehart in a Federal Court case brought against her by her children, and solicitor Mark O'Brien, who has acted for Fairfax Media in numerous defamation cases.

On Tuesday, before Justice Peter Jacobson entered the courtroom, Mr McClintock told Fairfax Media's barrister, Sandy Dawson: "If the imputations are conveyed you are f-----."

Mr Dawson replied, "I assume you have given the treasurer the same advice with a 'not' in the first part of that sentence."

Once Justice Jacobson was on the bench, both parties argued about the documents each side should provide to each other before the judge-alone trial, set down for March next year.

Mr McClintock said Mr Hockey would go into the witness box during the two-week hearing. However, he succeeded in ensuring Mr Hockey did not have to answer certain questions put to him by Fairfax Media ahead of the trial.

The court heard that in writing the articles, Herald journalist Sean Nicholls sent Mr Hockey's press secretary a list of 13 questions about: Mr Hockey's involvement in the North Sydney Forum; the identity of members of the forum; and the level and nature of access to Mr Hockey obtained by being a member of the forum or by giving money to the forum.

Mr Hockey's press secretary gave a brief response that did not address the specific questions.

Mr McClintock said if Mr Hockey had known what was in the article published by Fairfax Media under the headline "Treasurer for Sale", he would have instructed his press secretary to give a different response to the questions.

The court heard whisperings of a conspiracy theory that Fairfax Media, Nicholls, fellow journalist Mark Kenny and Herald editor-in-chief Darren Goodsir had not since handed over to Mr Hockey's lawyers all documents and information they had to hand before the articles were published.

Mr McClintock said that despite affidavits from Nicholls and Goodsir, he wanted more sworn evidence that Fairfax Media had had no more information before the stories went to print.

The fact that Goodsir had not provided a statement in his evidence explicitly saying there was no further information meant, Mr McClintock said, that "we really see that in some ways as he has not [provided all information]".

Mr Dawson refuted any suggestion of a conspiracy or that any information had been withheld and said to suggest otherwise was absurd.

"It is absurd that we need to go through the process of discovery to confirm all of this," Mr Dawson said. "It is a lie to suggest something is lurking out there that we have not been upfront about."

Mr McClintock also said Goodsir, who came up with the "Treasurer for Sale" headline, had championed the articles as a form of "payback" after the Herald was forced to apologise to Mr Hockey for a previous article.

In that article, the Herald said Mr Hockey repaid money to Australian Water Holdings, a company that has been the subject of an investigation by the Independent Commission Against Corruption. In fact it was the North Sydney Forum that repaid the money.

Mr Hockey's lawyers claim text messages sent between Goodsir and the editor in chief of the Age, Andrew Holden, show Fairfax Media's "predominant motive in making the publications was to harm" the Treasurer.

An affidavit written by Mr Hockey's solicitor, Paul Svilans, on December 5, details how on March 22, the Herald issued an apology to Mr Hockey for an article that said the Treasurer had repaid $22,000 to the North Sydney Forum.

In a series of text messages, Goodsir told Holden he was angry at being contacted at 1am by Mr Hockey's staff.

"They have a f---ing hide," he said. "I feel pissed off they called me so early."

Holden replied, "The simplest approach is to dig into NSF… in that story you can run Hockey's claim he knew nothing… beyond that, f--- him".

"Amazing they freeze us out and then think they have the relationship that allows them to call in the middle of the night."

Mr Hockey's lawyers claim Fairfax Media then "set out to publish an article that attacked" Mr Hockey.

Mr Goodsir said, "are we not better to have a red hot go at the issue next week, and really go for it… after the day we've had, I ain't going to run this – but am more than keen to develop a North Sydney Forum plan for next week."

On the 27^th of March Goodsir wrote, "F---ing Brilliant… given what Andrew and I endured last week with Hockey, I want to have this nailed to the cross in more ways than one… keep digging Sean… I have long dreamed (well, only since last Friday), of a headline that screams: Sloppy Joe! I think we are not far off, but perhaps even more serious than that."

Fairfax Media says it had no intention of implying that Mr Hockey was prepared to accept bribes. The court heard that Goodsir did not equate the headline "Treasurer for Sale" with corruption.

Mr Hockey claims that, as a result of the articles published on May 5, he has been "greatly injured, shunned and avoided and his reputation has been and will be brought into disrepute, odium, ridicule and contempt".

But Fairfax Media denies the articles and the headlines, including "Treasurer for Sale", are capable of defaming Mr Hockey in the way that he claims.

Further, it says the Australian public has a legitimate and significant interest in the implications of senior government ministers using the authority of their position to assist in fund-raising for a political party.

Fairfax Media says it has a defence of qualified privilege at common law and under NSW defamation law and defamation legislation in each state and territory.

It says the articles raised important questions about whether membership of such forums delivered privileged access to senior members of government not available to ordinary people and whether that is fair or desirable.

Mr Hockey said Fairfax Media's "over-sensational, extravagant and unfair presentation" of the articles indicated an "intent to injure" him. He is claiming damages, including aggravated damages, interest and costs, although the amount of damages is not specified.

Fairfax Media denies he is entitled to the relief claimed or any relief at all. It says the articles were based upon information obtained responsibly and fairly, including information from the North Sydney Forum website, forum chairman John Hart, deputy chairman Robert Orrell, former chairman Joseph Carrozzi, members of the forum and officials of the North Sydney Federal Electorate Conference, all of whom were "sources of integrity or apparent integrity".

The journalists also obtained information from the NSW Election Funding Authority, ICAC hearings, the Australian Electoral Commission and senior Liberal Party figures, and they took steps to verify the information.