The publisher of the Australian Financial Review and columnist Joe Aston have been ordered to pay legal costs for venture capitalist Dr Elaine Stead, estimated by Nine to amount to more than $1m.
The former managing director of venture capital firm Blue Sky was awarded aggravated damages of $280,000 last month after Stead won the case brought after the Rear Window columnist called her a “feminist cretin”.
Stead’s legal team has been ordered to present a “lump sum costs order” by Wednesday, federal court justice Michael Lee said.
Nine Entertainment, which now owns the former Fairfax masthead, told the court last month that more than $2m has been spent on legal costs by both parties.
Justice Lee has ordered Nine to pay the costs from the date the publisher rejected Stead’s compromise offer in April, which was $190,000 and the removal of the offending articles and payment of costs. Stead’s further offer of $140,00 plus costs plus an apology and removal of the articles complained of was also rejected.
“The problem always came back to the colourful, but less than adroit way the articles were originally put together,” Lee said on Monday. “The lack of proper material being evident in the publications meant the risks associated with making out the honest opinion defence were always high.”
In one column Aston referred to Stead as “the Brick Tamland of Queensland’s fledgling Venture Capital scene and tireless Tweeter of fridge magnet banalities”, leading to the judgment that the columns conveyed four defamatory imputations, including that Stead was a “cretin” and “rashly destroyed the capital of business ventures with which she was associated”.
Lee said the publisher was too optimistic about its prospects of defending the defamation suit, and referred to Charles Dickens’ character Mr Micawber who insisted “something will turn up”.
“Fairfax and Mr Aston proceeded Micawber-like, in the hope something might turn up to prove truth or allow substantial truth to be proved, notwithstanding the deficiencies in setting out some of the facts relied upon,” he said.
Lee accepted that Aston had “genuine and cogent grounds for his concerns as to what had occurred” and Stead’s “apparent unwillingness to face up to the true reasons as to why Blue Sky failed”.
“No doubt in those circumstances the prospect of Stead v Fairfax Media Publications consenting to a judgment in her favour for a significant sum was perhaps galling,” Lee said.
However, Fairfax and Aston did not provide enough evidence for a truth defence and relied on an honest opinion defence which failed because it wasn’t based on fact.
“Moreover, as to honest opinion, and putting the matter very generally, the issue was not Mr Aston being critical, or even highly critical in expressing his opinions, but rather the real problem… of proving that those opinions were properly based on facts stated in what was written.”