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Mr Hockey Also Told the Court

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Mr Hockey Also Told the Court AUSCRIPT AUSTRALASIA PTY LIMITED ABN 72 110 028 825 Level 22, 179 Turbot Street, Brisbane QLD 4000 PO Box 13038 George St Post Shop, Brisbane QLD 4003 T: 1800 AUSCRIPT (1800 287 274) F: 1300 739 037 E: [email protected] W: www.auscript.com.au TRANSCRIPT OF PROCEEDINGS O/N H-502470 FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY WHITE J No. NSD 489 of 2014 THE HONOURABLE JOSEPH BENEDICT HOCKEY and FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720 No. NSD 491 of 2014 THE HONOURABLE JOSEPH BENEDICT HOCKEY and THE AGE COMPANY PTY LIMITED ACN 004 262 702 No. NSD 492 of 2014 THE HONOURABLE JOSEPH BENEDICT HOCKEY and THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED ACN 008 394 063 SYDNEY 10.16 AM, MONDAY, 9 MARCH 2015 MR B. McCLINTOCK SC appears with MS S. CHYSANTHOU for the applicant DR M. COLLINS appears with MR A.T.S. DAWSON for the respondents Copyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval from the Federal Court of Australia. .NSD489/2014 9.3.15 P-1 ©Commonwealth of Australia MR B. McCLINTOCK SC: May it please the court, I appear with my learned friend, MS CHRYSANTHOU, for the applicant and my name is McClintock. HIS HONOUR: Mr McClintock. 5 DR M. COLLINS QC: If your Honour pleases, I appear with my learned friend, MR DAWSON, for the respondents in each of the proceedings. HIS HONOUR: Dr Collins. Yes. Mr McClintock. 10 MR McCLINTOCK: Your Honour, before I open, there are one or two housekeeping matters that I need to take care of. Could I hand up to your Honour – and there are some I will deal with after the opening, as well. 15 HIS HONOUR: Yes. MR McCLINTOCK: I understand, for example, your Honour has asked for the originals of the affidavits and I will hand those up after - - - 20 HIS HONOUR: Well, it’s when they’re being, as you would say, read that’s when we will need the originals. MR McCLINTOCK: Certainly, your Honour. Certainly. Your Honour, I will hand up a bundle of the matters complained of, which I will tender. And this is the bundle 25 for tender. I think your Honour already has a working copy. HIS HONOUR: Yes. Thank you. MR McCLINTOCK: Your Honour will see that it contains the originals of the 30 newspapers or at least some of them. HIS HONOUR: Right. Now, you’ve seen this, Dr Collins? DR COLLINS: I ..... 35 MR McCLINTOCK: They’ve certainly seen a copy ..... not that because - - - HIS HONOUR: Do you wish to see it before - - - 40 DR COLLINS: I’m content with my learned friend’s assurance that it contains a complete set of the - - - HIS HONOUR: Yes. All right. Thank you. So what are you proposing in due course with this, Mr McClintock? That each of these be marked - - - 45 MR McCLINTOCK: It’s - - - .NSD489/2014 9.3.15 P-2 ©Commonwealth of Australia MR McCLINTOCK HIS HONOUR: - - - and received as an exhibit or are these just in the nature of working copies of what I have? MR McCLINTOCK: Those – that is the copy – those are the copies for tender, your 5 Honour. HIS HONOUR: Right. MR McCLINTOCK: I’m – it’s probably, I accept, more convenient to mark them 10 individually. Although, it may be – your Honour may think it – as easy to mark it as – whichever way your Honour prefers with the – with each individual matter inside the – behind the folders marked with a subsequent letter like - - - HIS HONOUR: Yes. At the moment - - - 15 MR McCLINTOCK: - - - A1, A2. HIS HONOUR: - - - I’m – I think I’m inclined to mark them individually and I can do that now, if you wish? 20 MR McCLINTOCK: Yes. I think that would be preferable, your Honour. HIS HONOUR: Dr Collins, no comment about that? 25 DR COLLINS: No objection. HIS HONOUR: Perhaps before we do that, Mr McClintock, because I would like to relate this to the pleading. There does seem to be a bit of a glitch in your statement of claim. 30 MR McCLINTOCK: I’m disappointed to hear that, your Honour. But as I’m standing here, your Honour, I’m wondering whether it might be better to mark them either at the – in the course of my opening or at the end of it. Because I was going to go to the individual publications to show them to your Honour and explain them. 35 Because they do require explanation. Some of them are not – it needs – they need to be related to exactly what they are. HIS HONOUR: All right. 40 MR McCLINTOCK: For example, the mobile app publications if I can call them that. That might be a better way of doing it. HIS HONOUR: All right. Well, it might be just as convenient to do it at the end of the opening. I’m content with that. But having raised a glitch in your statement of 45 claim – and I’m looking at the statement of claim in action 489 of 2014 – the action against Fairfax Media Publications. .NSD489/2014 9.3.15 P-3 ©Commonwealth of Australia MR McCLINTOCK MR McCLINTOCK: Yes, your Honour. HIS HONOUR: We have a series of annexures. No issue with annexure A. But in paragraph 6 in the particulars, there’s a reference to annexure B which, I think, 5 should be to annexure C. MR McCLINTOCK: Your Honour was referring to paragraph 6? HIS HONOUR: Yes. In – under the heading Particulars. 10 MR McCLINTOCK: Yes. Yes, your Honour. HIS HONOUR: In the fourth line down, you’ve got annexure B. I think that should be annexure C, shouldn’t it? 15 MR McCLINTOCK: That should be annexure C, your Honour. HIS HONOUR: Yes. 20 MR McCLINTOCK: That is correct, your Honour. Annexure A is, of course, the poster. Annexure B is the print version of the Sydney Morning Herald article. Annexure C is – while it’s largely similar, it is, in effect, the internet publication. HIS HONOUR: All right. Well, if you turn over to paragraph 7 where you do refer 25 to annexure C - - - MR McCLINTOCK: Yes. HIS HONOUR: - - - I queried to myself whether that’s – is the correct annexure 30 which you have there. MR McCLINTOCK: Yes, your Honour. It is, in fact – annexure C is, in fact, the ..... of. 35 HIS HONOUR: All right. MR McCLINTOCK: Sorry. I’m slightly confused myself. The mistake, your Honour, is this: in the heading Particulars, the reference – on page 5 of the statement of claim, the reference to annexure B should be to – should be to annexure C. 40 HIS HONOUR: Yes. I’ve made that correction. MR McCLINTOCK: And, in paragraph 7, the reference there should be to annexure D. 45 HIS HONOUR: Yes. .NSD489/2014 9.3.15 P-4 ©Commonwealth of Australia MR McCLINTOCK MR McCLINTOCK: Rather than annexure C. HIS HONOUR: And then if you turn over to paragraph 8, under the heading Particulars, is it on page 8? 5 MR McCLINTOCK: Yes, your Honour. HIS HONOUR: Do you see you’ve got, in the fourth line, a reference to annexure C again and I think that should be annexure E. 10 DR COLLINS: E. MR McCLINTOCK: That should be annexure E, your Honour. And I think that’s – they’re the only corrections, your Honour. 15 HIS HONOUR: All right. Well, probably, strictly speaking, you should be seeking leave to amend the statement of claim in that respect. Dr Collins, I take it there’s no objection to that? 20 DR COLLINS: Not opposed. No. HIS HONOUR: Yes. Well, I will grant that leave. MR McCLINTOCK: Thank you, your Honour. 25 HIS HONOUR: And, Mr McClintock, dispense with the requirement for there to be filed any amended version of the - - - MR McCLINTOCK: As your Honour pleases. Although, if it’s necessary, 30 obviously, we can bring one in. HIS HONOUR: Yes. All right. MR McCLINTOCK: Your Honour, I will also hand up to your Honour – because it 35 will become – I will be referring to, in the course of opening, a set of the imputations derived – in fact, I will hand up to your Honour two sets of the imputations. I think my learned friends already have copies of these. But that bundle includes each of the imputations for each of the publications, your Honour. It may be easier just to simply refer to that as opposed to - - - 40 HIS HONOUR: Well, this just is a compilation of the imputations pleaded in the respect of statements of claim? MR McCLINTOCK: Yes, your Honour. Yes. 45 HIS HONOUR: All right. .NSD489/2014 9.3.15 P-5 ©Commonwealth of Australia MR McCLINTOCK MR McCLINTOCK: Your Honour will see that the first – the first four or five pages deal with the Sydney Morning Herald. The first four pages – first three pages, I’m sorry. Then there’s The Age and there’s quite a few Age publications, your Honour, for reasons that will become apparent in the course of opening. And then 5 there’s the Canberra Times, which is the last two pages of the – of that bundle. HIS HONOUR: Yes. And you’ve provided two copies. So I will ensure that one copy goes on the file. 10 MR McCLINTOCK: Thank you, your Honour.
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