By Terence Mills
The Benalla Ensign, not exactly my idea of a national purveyor of influence but still a worthy little local newspaper for its region, attended a function in April 2016 for the opening of a new wing of the Cooinda Retirement Village in Benalla.
Also in attendance were Cathy McGowan who had taken the federal seat of Indi from previous incumbent Sophie Mirabella, and Liberal Aged Care Minister Ken Wyatt. Mirabella was still pretty upset at having lost the seat in 2013 and, being a Liberal, she considered that she had a God given right to hold that seat for as long as it suited her.
During the formalities at Cooinda it was alleged that Mirabella had pushed McGowan out of the way so that she wouldn’t be photographed with the hapless Wyatt. In fact, it seems that Mirabella had pushed Wyatt out of the way so that he wouldn’t be photographed with McGowan. Even so, the Benalla Ensign reported that it was Mirabella who pushed McGowan. Subsequently and belatedly the Benalla Ensign published an apology to Mirabella:
“In our April 20 edition our article ‘‘Awkward encounter’’ referred to Mrs Sophie Mirabella pushing Ms Cathy McGowan out of the way in order to obstruct a photo being taken.
We take this opportunity to clarify that this reference was a mistake.
There was no physical contact that occurred at the time and Ms McGowan was not pushed.
We apologise to Mrs Mirabella for the mistake and for any hurt or embarrassment this may have caused.”
That you may think would be the end of this rather trivial encounter, but our Sophie is no shrinking violet and is not one to let sleeping dogs lie, so she decided to sue the Benalla Ensign in defamation. The basic idea of defamation law is simple. It is an attempt to balance the private right to protect one’s reputation with the public right to freedom of speech. Defamation law allows people to sue those who say or publish false and malicious comments. Anything that injures a person’s reputation or standing in the community can be defamatory and it is for the complainant to establish that the publication of the alleged defamation caused economic loss or other damage. We saw this principle in operation recently with the action taken by Rebel Wilson against Bauer Media where Wilson was awarded a record payout of $4.5 million and costs in excess of one million dollars for defamatory and malicious articles published by Bauer about Wilson.
Sophie had not had a good run with the local electorate having publicly stated to a live television audience that the voters (of Indi) had ‘cost’ themselves a multi-million upgrade to the Wangaratta Hospital by not re-electing her.
“I had a commitment for a $10 million allocation to the Wangaratta hospital that if elected I was going to announce a week after the election.”
“That is $10m that Wangaratta hasn’t had because Cathy (McGowan) got elected.”
This it seems is the way that the Liberals do business. The decision on whether to provide proper hospital services is not based on need but on whether the Liberal candidate in your area gets up: the voters of Indi thought they lived in a democracy and they voted for the person best equipped to represent them in Canberra. But that, sadly, is not the way to get health funding into your community under a Liberal government.
So, Sophie was off to court to sue the newspaper over what had been acknowledged as a mistake by the newspaper and for which they had belatedly apologised. McGowan told the court that she had not been pushed, but maintained that she had witnessed Mirabella pushing Aged Care Minister Ken Wyatt to prevent him appearing in a photo with her and, in McGowan’s estimation, the substance of the newspaper story was true just the details of who pushed whom were in doubt. Mr Wyatt told the trial Mrs Mirabella “moved around in front of me, put her hands on my chest and asked that I don’t [allow the photo] because it would legitimise an alliance to the Liberal party”.
Never one to miss an opportunity to utilise the veiled insult, our Sophie was reported as saying:
“I’m not a sensitive, delicate wallflower,” she said through tears. “I’ve put up with a lot of stuff that hasn’t been true being published … but this, this was the last straw”.
“This was accusing me of pushing an older woman, an older woman … who’s old enough to be an elderly citizen, a grandmother,” said the 49-year-old Mirabella of her adversary, the 63-year-old McGowan.
So, the jury sat through five days of evidence and arguments in the Wangaratta County Court trial, taking just 45 minutes to find that Ms Mirabella had, on the balance of probabilities, been defamed. Damages will now be assessed by the judge and will be made known next week. A judge in assessing any damages will take into account the economic loss suffered by the plaintiff and can be mitigated recognising that the newspaper has made an apology to the plaintiff. So, it could be a pyrrhic victory for Sophie who, since leaving office was appointed to the board of the Australian Submarines Corporation Ltd by the Liberal party and in more recent times has been hired by mining magnate Gina Rinehart as a lobbyist, for her mining interests, in Canberra. So the damages could be just nominal as her economic loss is probably not significant and she is now probably making more money than she could have in her political career. We shall see.
Generally speaking it is not considered good form for politicians to sue other people or institutions for defamation or insults largely because our democratic arrangements and wherever the Westminster system of government adheres, grants politicians open slather to lie, mislead, defame, insult and ridicule within the confines of the parliament under the shroud of parliamentary privilege with absolute protection from legal redress or from being sued. For a politician then to seek to sue when they are defamed or insulted tends to tip the balance of what is fair and reasonable very much in their favour.