Elaine Stead awarded $280,000 over defamatory AFR columns

The Financial Review sought to rely on the defence of honest opinion in the case.

In a judgment on Wednesday, Justice Lee rejected this defence on the basis that “critical aspects of the facts” contained, or referred to, in the columns “have not been shown to be true in substance”. He said there is no need for opinion-writers to be “mealy-mouthed”, but their opinion “needs to be properly based on facts”.

A spokesman for the Financial Review said the newspaper was disappointed by the decision, which the court has granted leave to appeal.

“The Financial Review is proud of Mr Aston’s work, and we will continue to report on important corporate governance issues without fear or favour,” the spokesman said.

“The damages awarded of $280,000 are low compared to many other judgments in this area of law. They are dwarfed by both sides’ legal fees which exceed $2 million.”

Justice Lee said Aston is a “talented and oftentimes highly entertaining wordsmith” who is “no respecter of persons” and his work is “no doubt often amusing” to his readers.

“But a writer targeting and addressing the perceived folly or sins of others walks a fine line,” Justice Lee said. “It is a line which reflects the tension between two important rights which the law of defamation seeks to balance: the right to freedom of expression and the right to reputation.”

Dr Stead argued in the case that Aston singled her out in the columns and, in doing so, he did not merely cross the line, he pole vaulted it.

Justice Lee said Dr Stead was “serially mocked” in Aston’s columns as “as being, in effect, a gaping moron”. This included multiple references to Dr Stead as “Brick Tamland”, the fictional weatherman from the film Anchorman, in columns in 2018.

The judge quoted part of Anchorman, in which Tamland introduces himself by saying: “People seem to like me because I am polite and I’m rarely late. I like to eat ice-cream and I really enjoy a nice pair of slacks. Years later, a doctor will tell me that I have an IQ of 48 and am what some people call ‘mentally retarded’.”

Justice Lee said Dr Stead was singled out for focus by Aston, who “engaged in a sustained campaign of offensive mockery which amounted, in my view, to a form of bullying”.

This “targeted campaign” was “unjustified and improper”, Justice Lee said, and meant the conduct of the Financial Review and Aston was “sufficiently oppressive to warrant some compensatory sum to be awarded for aggravated damages”.

Justice Lee awarded Dr Stead $280,000 in damages, including aggravated damages, with interest to be determined at a later date.

“Dr Stead was a target Mr Aston determined to ‘go after’ because he perceived she was not taking responsibility for her alleged failures at Blue Sky and because of her insouciance, as he saw it, to the losses suffered by investors,” Justice Lee said.

“The consequence of Dr Stead being targeted was that she did suffer a type of ‘slow death’ as a consequence.”

The case will return to court on February 3.

The Australian Financial Review is published by Nine, which also publishes this website.