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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.
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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 - - -
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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.
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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.
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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.
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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. Your Honour, we have provided to your Honour and to my learned friends a written opening.
HIS HONOUR: Yes.
15 MR McCLINTOCK: But I propose to say a number of things – or raise a number of matters by way of an oral opening to set the scene for the evidence which is to follow.
HIS HONOUR: All right. Well, I have received your written outline of opening, 20 for which I am grateful. But I did have my associate tell the parties at the time that I wasn’t intending by that to inhibit your oral opening. Again, I will ensure that a copy of the written outline of opening is placed on the file.
MR McCLINTOCK: Certainly, your Honour. 25 HIS HONOUR: So that it’s publically available.
MR McCLINTOCK: Certainly, your Honour. Your Honour, I’m grateful to that and, as I said, I do propose to - - - 30 HIS HONOUR: Keep going.
MR McCLINTOCK: I’m sorry. I apologise.
35 HIS HONOUR: I just want to say this or raise this with both of you: it doesn’t seem to me that there has been any order so far, strictly speaking, that these three actions be heard together. Which is – I think is the common understanding?
MR McCLINTOCK: Yes. 40 HIS HONOUR: But, further still, that the evidence in each be received in relation to the other. So there will be a single opening, in other words – which is why I’m raising this now – and the evidence – there will be one set of evidence.
45 MR McCLINTOCK: Yes, your Honour.
HIS HONOUR: All right.
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MR McCLINTOCK: If your Honour wishes to formalise that, obviously - - -
HIS HONOUR: I will make a formal direction to that effect - - -
5 MR McCLINTOCK: Thank you, your Honour.
HIS HONOUR: - - - that these three actions be heard together and that evidence in one be received in relation to each other.
10 MR McCLINTOCK: Thank you, your Honour.
DR COLLINS: Thank you, your Honour.
HIS HONOUR: Yes. And so I will understand you to open on that same basis? 15 MR McCLINTOCK: Thank you, your Honour. And I – indeed, I’m grateful for that, your Honour. Because I will be coming to deal with each of the defendants in the course of the one opening. Your Honour, by way of opening on behalf of my client, Mr Hockey, Federal Treasurer, may I say this: Australians expect, your 20 Honour, their elected representatives to have broad shoulders and the ability to respond to criticism. Even harsh criticism on occasions. Obviously, when a man or woman enters public life, they expose themselves to that kind of criticism, whether it comes from political opponents, from the media or members of the public. In the rough and tumble of political debate and public life, harsh things are going to be said 25 about our politicians. Even false things. My client accepts that. As he says in his affidavit, he has copped criticism on the chin before over his entire political career. That is to be expected.
There are, however, your Honour, some things that no politician could allow to pass 30 unanswered and unchallenged. An example from the 1990s is the action brought by the present prime minister and the then Treasurer, Mr Costello, against Random House. That involved an allegation of sexual impropriety inter alia against their wives – something that no man could allow to go unanswered. This case is the same. Not in the terms of the allegations made against Mr Hockey, but in terms of the 35 compelling necessity to vindicate his name and his reputation against a totally false allegation of corruption, which the evidence will establish was made maliciously by the respondents.
The type of corruption which the respondents so clearly allege was influence 40 peddling – that is – and they put this in terms at one point – selling the high office of Treasurer of Australia. The respondents couldn’t have made – could not have made – the allegation more clearly or more widely. My client was accused of corruption, your Honour, on the placard which was exposed for sale. Your Honour will see:
45 Exclusive: Treasurer for sale. Herald investigation. Monday, 5 May 2014.
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I will come back to that. That was on display outside every news agent in New South Wales, the Australian Capital Territory and Victoria – probably. We’re not quite clear about Victoria. Two and a half thousand of those placards – “Treasurer for sale” – were distributed, and at a guess – and it is a guess or an estimate, because 5 The Herald keeps no figures in relation to this – perhaps each of those posters was seen by a hundred people. Some of them will have been seen by very many more. For example, in the newsagent in Martin Place Station, perhaps tens of thousands of people go past that every day.
10 I might also say that the evidence from one of the respondent’s witnesses is that that headline – that the placard is designed to be seen by people driving past in cars and from across the road. The material also appeared, your Honour, on the front page of the Sydney Morning Herald, The Age and The Canberra Times. It was on the internet on The Age and Canberra Times websites, on the papers’ iPad apps and it 15 was disseminated, at least by The Age, via Twitter. Approximately, on our calculations – and we can be precise about this – 279,000 people saw the Twitter material, which was in roughly the same form and only the same form as the placard. The difference was that it said:
20 Treasurer Hockey For Sale.
That is, putting in my client’s surname. Your Honour – “Treasurer for sale – could there be a more serious allegation made against the Treasurer of Australia? It was just such an allegation, your Honour, that caused the resignation of the former 25 premier of New South Wales – of this state – Mr O’Farrell. That’s how serious it is. No man could continue to hold elected office if that was true. To publish of a federal minister that he’s a corrupt politician, that he sold his office – “Treasurer for sale” – and put himself on the auction block – something, again, said in terms – or to be fair, put his ear on the auction block, is not only an extraordinarily serious allegation – to 30 quote from one of the authorities about another politician whose name your Honour will become familiar with:
It attacks the very foundation of his position. It attacks his probity as a citizen, his suitability for public office and imputes criminal misconduct – bribery. 35 No politician could allow so serious an allegation to go unchallenged, and that’s what brings my client before your Honour. The allegation is, to quote the first paragraph of The Herald article, your Honour, to:
40 ...offering privileged access in return for tens of thousands of dollars in donations to the Liberal Party.
The allegations that the defendants made – which are encapsulated in the imputations that we’ve pleaded and which are included in that bundle that I’ve handed up to your 45 Honour – were false. And we will be asking your Honour to find that the respondents knew they were false. At the heart of these articles over which Mr Hockey sues, your Honour, is what in fact is a massive beat up. Your Honour will
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see it involved the North Sydney Forum, a business name owned by the Liberal Party. Members pay to join and the money which they pay is owned by the Liberal Party and used for its purposes. The North Sydney Forum has meetings, some of which – but by no means all – the Treasurer attended – attends. Attendance is not 5 limited to members.
Other people can come along, as I might say, the defendant – the respondents knew. No doubt Mr Hockey talks about issues of economic policy and listens to what people present say. But isn’t that what politicians are supposed to do in a 10 democracy? What’s wrong with it? Isn’t it part of the – isn’t it part of what it is expected of people in Mr Hockey’s position – that they listen and describe their policies and so on? How what the North Sydney Forum does differs, for example, from ordinary membership of a political party – which, in some ways it was – is very difficult to discern. There, in return for payment of the membership fee, members 15 have the right – probably – to attend monthly meetings – monthly party meetings.
If the local member is a member of the governing party or a minister, you get access to him and can raise any matter of concern, and no doubt party members do. What is the difference between that and the North Sydney Forum? Equally, your Honour, 20 take another example – the National Press Club, of which one of the journalists, Mr Kenny, is a director. For payment of membership fees, members get access in exactly the same way to politicians – in exactly the same way as through the North Sydney Forum. They come along, have lunch, talk to people. As I said – as I said, your Honour, what’s wrong with that? No doubt, the respondents will tell us. 25 Why did these newspapers publish these scurrilous and false allegations of corruption about my client? It’s hard to credit, but at the end of the case your Honour will be satisfied that it was an act of petty spite on the part of Messrs Goodsir, the editor of The Herald, Mr Holden, the editor of The Age, and Mr Kenny. 30 Why? Because, in The Sydney Morning Herald on 21 March 2014, Mr Kenny published or wrote or made an egregiously false and defamatory statement about Mr Hockey. And, because it was egregiously false, he was forced – or The Herald and The Age was forced to apologise for it. I should briefly point to your Honour the article in question. I am just looking for a convenient place to find it – that is, the 21 35 March article. It is attached to my client’s affidavit, which, of course, I should – will shortly be reading, your Honour.
That’s probably the most convenient place to find it, if your Honour doesn’t mind. If I could ask your Honour to go to page 17 of Mr Hockey’s main affidavit, your 40 Honour. This is where the story really starts, your Honour, in a sense. Your Honour will see on page 17 an article headed Libs Forced To Repay More Tainted Cash From AWH. If your Honour goes two pages over to page 19, your Honour will see:
Hockey Pays Back $22,000 To Linked Obeid Company 45 Other than the headline, it’s the same article, your Honour. But it, of course, went online some time on the night of 20 March. Can I just pause there. And if your
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Honour goes to the first paragraph of the article, may I introduce your Honour to the name Obeid. Your Honour will see – I’m assuming, your Honour, that the name Obeid is spread even as far as South Australia, and that your Honour will have some awareness. But the name Obeid has been bandied around the newspapers of this 5 state for probably five years as a result of a series of ICAC hearings, which have made serious findings of corruption against Mr Obeid, a former minister in the New South Wales Labor Government – the Carr Government, in fact.
It is not going too far – and I don’t think there will be any dispute about this – that 10 the name or the word Obeid in New South Wales is synonymous with corruption. That’s where the first sentence of this article takes at least part of its force. Mr Kenny – and we know it was Mr Kenny because he accepts responsibility for the opening paragraphs of this article, Mr Nicholls was responsible for the rest but not for the opening paragraphs. It says: 15 Treasurer Joe Hockey has repaid another $22,000 of funds he received from the Obeid-linked Australian Water Holdings company since 2009.
The – your Honour, what’s the problem with that? Well, it’s untrue. Mr Hockey had 20 not received the money and Mr Hockey had not repaid it. On that statement there, it’s open to the allegation that the – that it’s an accusation of taking a bribe in court. That’s the force of the words Obeid. If your Honour looks at the photograph, you will see:
25 Think again. Joe Hockey has repaid $33,000.
Similar passages appear in The Age article. But the point, your Honour, is the – while it was true that the North Sydney Forum had repaid that money, it was simply false to say that Mr Hockey had received it and repaid it. And there is a world of 30 difference between the two concepts. Something that the – something that The Age – that the editors of these newspapers and Mr Kenny apparently fail to see. Your Honour, Mr Goodsir of the Herald and Mr Holden of the Age and Mr Kenny resented and deeply resented being caught out in that false statement and being forced to apologise. That was what motivated, on our case, the publication that 35 happened on 5 May and is set out in the statement of claim.
There may have been another motive, your Honour, going on. But I will wait to see how the evidence develops before I take that further. Could I then turn after – turn after those preliminary remarks to say a little bit about my client and then the North 40 Sydney Forum. My client was born and grew up in North Sydney. And for most of his life, your Honour, he has played a significant role in that community. Obviously, he is a very well-known person in his electorate which, of course, is North Sydney. He went to school there. He has made many significant contributions to the community both as a politician – he was elected in – the member for North Sydney 45 in March 1996 in the election that brought the Howard Government to power.
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He became a minister in that government in, perhaps, record – in very short time. A couple of years, your Honour – a matter of years. He was Minister for Financial Services and Regulation and Minister for Human Services, Minister for Employment and Workplace Relations, Minister of Assisting the Prime Minister for the Public 5 Service and then, in opposition, Shadow Minister for Health and Ageing and, ultimately, Shadow Minister for Finance and Shadow Treasurer. That’s set out in his affidavit, your Honour. He became Treasurer of this country on 18 September 2013, obviously, after the election of the current Federal Government.
10 Could I turn – and he has – and this is our case – a spotless reputation for integrity. No one has ever suggested that he has been for sale for. If I turn to the North Sydney Forum, your Honour, what actually is it? In one sense it isn’t anything. It’s a business name owned by the New South Wales branch or division of the Liberal Party. It was established when the Liberal Party was in opposition in 2009 – much of 15 this material, I might say, comes from the materials the respondents have put on. It charges membership fees – and I will be tendering the internet – the website of the – of the body which is in evidence somewhere your Honour – or will be in evidence. Entitles members to attend a number of functions throughout the year where they can meet other members. It’s a small business forum, in effect. And hear speakers, 20 including State and Federal politicians. Not just my client.
For example, the current State Minister for Transport, Ms Berejiklian has spoken. Senator Sinodinos has spoken. The – it is not limited to members. For example, members can bring along guests who have no connection with the body at all. 25 Membership fees are political donations to the Liberal Party and they are disclosed as such. It’s important to note because of one thing that will become clear in the course of going through the articles, that the North Sydney Forum comes under the aegis of the Federal Election Funding Regime. Not the State. And it makes its disclosure to the Australian – the Liberal Party, in respect of the North Sydney Forum, makes its 30 disclosures to the Australian Electoral Commission. Not, perfectly appropriately, to the State – the New South Wales Election Funding Authority, as it is called.
The members of the NSF are – well, I don’t need to trouble your Honour with that. The operation – the membership fees are political donations and, as I say, are 35 disclosed. Its operation is no different to many, many similar organisations operated on both sides of politics. Your Honour, I have dealt with the 21 March article in terms of what it said – it terms of the actual allegation. But your Honour will see – the evidence will establish, your Honour, from Mr Hockey’s affidavit that he, Mr Hockey, read the article in the early hours of 21 March and then asked Ms Daley, his 40 press secretary, to contact the publishers to have it corrected.
Ms Daley telephoned Mr Kenny, the author of the article, and alerted him to the error. He agreed to amend and did virtually immediately – well, he says he sat in the dark thinking about it – the online version of the 21 March article. Also – and this is 45 one of the annexures to Mr Hockey’s affidavit – he issued a statement about the factual errors in the article via Ms Daley. Mr Hockey, himself, telephoned Mr Goodsir, the editor of the Herald, and requested an apology. When he did not
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receive a call back from Mr Goodsir, he telephoned Mr Hywood, the CEO of Fairfax Media, to request an apology. Something significant happened, which Mr Hockey deals with in his affidavit, in the second conversation he had with Mr Hywood after an agreement or a tentative agreement to publish an apology had been reached, Mr 5 Hywood said to him this:
Be thankful that you’re getting what you are. You want to hope that if an issue like this gets to court, you’re not another Craig Thomson.
10 That was a studied insult, one might think, your Honour. Mr Thomson, of course, being the Labor member who has ultimately been dealt with by the courts for paying for prostitutes in – I was going to say other forms of high living, other forms of low living – on the union – on the Health Services Union credit card. Ultimately, an apology was published, your Honour. That’s exhibit JBH5. In this connection, your 15 Honour, I might say that there is, of course, no truth plea in relation to any of the imputations pleaded in this case. I will come – I will be opening the defences, as the phrase goes, and telling your Honour what the respondents actually do say. But there’s no suggestion that anything here they said about my client was actually true.
20 Now, at this point, your Honour, one would have thought – one would have hoped with reasonable newspapers or reasonable journalists, that the matter would have been over. The statement made was wrong. They apologised and my client would have been perfectly happy to let things go. But it’s perfectly clear that the editors of The Age and the Sydney Morning Herald and Mr Kenny were furious about what 25 had happened and furious about what they had been forced to do. They exchanged a series of sort of text messages and email messages in relation to this matter which, your Honour – and I apologise for the language I’m going to use – but at 6.35 am on 21 March 2014, Mr Goodsir says:
30 I got called at 2.15 am by Hockey presser.
“Presser”, of course, is politician and journalist slang for press secretary or press spokesman.
35 Continuing;
They have a fucking hide –
Says Mr Goodsir. One wonders why when they had – when they had accused my 40 client of receiving money from the notoriously corrupt Eddie Obeid that that could be an appropriate response. Mr Holden at The Age – and this is very significant, your Honour – decides immediately that the correct response is to go on the attack and put the boot into Mr Hockey. At 6.38 am, he says:
45 The simplest inter alia –
There’s other things in this text:
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The simplest response is to dig into NSF. Beyond that, fuck him. The story was accurate at the time of writing –
No, it wasn’t, Mr Holden: 5 And there’s a million defences to any defamation claim.
Well, I will be interested to know what Mr Holden tells us were the defences to an egregiously false statement. At 8.48 am on that day, Mr Forbes, who was the news 10 director of The Age says:
Yes. It’s effectively his fundraising body –
Well, it wasn’t: 15 Accurate –
No, it wasn’t:
20 But critical story the way to go. Not apology.
Mr Kenny, the journalist, at 8.49 am:
Agree. Sorry about late text. His minder rang at 1 am and then several times 25 after that.
Holden – Mr Holden says at 8.50 am:
No probs at all. Amazing they freeze us out and then think they have the 30 relationship that allows them to call in the middle of the night.
The words “amazing they freeze us out” refers to a suspicion or a belief on the part of the Herald that they weren’t being given the access that they thought they were entitled to. Mr Goodsir, at about the same time, says – well, I don’t think I need to 35 trouble your Honour with that. There’s a – there’s various reactions. Mr Kenny says that my client’s reaction or my client’s interpretation of the 21 March article is completely perverse and Mr Nicholls, who actually wrote the main – final main article and was also one on the by-line of the 21 March article says:
40 I can’t believe what an overreaction this is. He is really splitting hairs. It’s a bit glass-jawed.
And then at 6.45 pm, also on the 21 st , apparently, Mr Goodsir, the editor of the Herald tells Mr Nicholls, who is the State political editor, to drop all other work and 45 be full-time on a digging into the – to NSF, the North Sydney – NFS, the North Sydney Forum. And he sends an email to Mr Holden and Mr Forbes and to Ms Whelan, who was one of the senior editors of the Herald. This is about Mr Nicholls:
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He is very excited about this. We want to know everything about the NSF. Everyone who had anything remotely involved in this slush fund.
And then Mr Kenny, again, later that night voices his discontent with the apology in 5 an email at 11.35 pm:
Well, he ought to be very happy with that seeing that – as it is a lot more of a concession than he deserved.
10 Now, your Honour, it is clear from these communications – and this will be our case – that Mr Kenny, Mr Holden and Mr Goodsir formed an intention on 21 March 2014 to exact revenge on Mr Hockey for what they perceived to be a perverse and unreasonable response to the 21 March article. It is surprising, to put it mildly, that the editor of the Herald instructs the – well, viewed the story as so important that he 15 would instruct the State political editor to drop all other work for the purposes of digging into the North Sydney Forum.
Your Honour, the spiteful and vindictive references to my client continued after 21 March. On 24 March, Mr Goodsir gave a direction to Mr Nicholls about the story 20 concerning the applicant:
Just to reiterate your brief –
And I’m quoting, of course: 25 Good luck and go hard.
In other words, put the boot into Mr Hockey. On 27 March, after receiving a summary of Mr Nicholls research so far – and pausing there, your Honour, may I say 30 this: that it seems to be the case that Mr Nicholls carried out the research that led to his article, published on 5 May, pretty much between 21 March and 27 March. There was a bit done, perhaps, a little later but, essentially, it was all done. Nothing was published until 5 May. One week before Mr Hockey was due to deliver his first budget. Why, we ask – and I will ask the responsible journalists. It’s not the sort of 35 story that required – well, it could have been published at any time given the nature of the story.
I will make it explicit. We think that The Herald and The Age waited deliberately till just before the budget to cause the maximum harm to my client. But they can tell us 40 if there’s another motivation. It does seem very puzzling though, given the fact that the story could have been written any time from late March through April, that it waited until – that they waited until May. At the time – there are two other points I should make. After Mr Nicholls provides his summary on 27 March, Mr Goodsir replies: 45 Fucking brilliant. Given what Andrew –
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Your Honour, I’m obviously not suggesting there’s anything wrong in the profanity and the swearing, at least when it says – is in relation to emphasis like that. But there’s something much more serious coming in relation to this – these words of Mr Goodsir: 5 Given what Andrew and I endured last week with Hockey, I want to have this nailed to the cross in more ways than one. I have long dreamed –
well, actually, only since last Friday – 10 of a headline that screams “Sloppy Joe”. I think we’re not far off, but perhaps more serious than that.
Mr Goodsir is planning an attack and encouraging his journalists to engage in the 15 attack to – well, to come up with material that would support a headline that:
...screams “Sloppy Joe”. I think we’re not far off, but perhaps more serious than that.
20 One will bear in mind that the ultimate headline that Mr Goodsir himself wrote was Treasurer For Sale, but it was obviously a bit more serious than “Sloppy Joe”. On 19 April, Mr Goodsir – when nothing apparently had happened between late March and then, Mr Goodsir sends an email or a text to Mr Nicholls saying:
25 I will be back on 28 Monday and want to be in a spot to launch our dirt on Hockey team.
It was a calculated plan to get my client in revenge for what the – for the apology published on 22 March. Your Honour, as I’ve said, it’s apparent from the evidence – 30 or will be apparent from the evidence from the respondents – that Mr Nicholls was in a position to write the story in late March. The article wasn’t time sensitive and, as I’ve said, it is curious why publication was delayed until early May. As I said, the only logical explanation is the proximity to the budget. The development of the story is this: Mr Nicholls wrote the story in pretty much its final form by late April or 35 early May. Significantly, obviously, Mr Nicholls was not responsible for the headline.
The evidence will show that Mr Kenny – Mr Kenny, who had a part in the article – suggested some headlines considerably more innocuous than what was chosen, but 40 Mr Goodsir came up with the actual headline used, which, of course, was replicated on placard. Now, the parts of the story that were written by then were – that Mr Nicholls did – were pretty much all but the last five or six paragraphs.
HIS HONOUR: So just make this clear. You’re saying that the story was 45 completed all but for the last five or six paragraphs by when?
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MR McCLINTOCK: I can probably give your Honour a precise date, although I don’t have that in my mind right now. It was either late May – late April or early May. At that point, Mr Nicholls actually expresses views about the – or makes statements. For example, the first sentence in the – the first sentence in the matter 5 complained of – the first matter complained of, your Honour, was – the first sentence written by him, I should say, says:
Treasurer Joe Hockey is offering privileged access to a select group, including business people and industry lobbyists, in return for tens of thousands of 10 dollars in donations to the Liberal Party via a secretive fundraising body whose activities are not fully disclosed to election funding authorities.
That paragraph deserves some parsing out, which I will give it a little bit later when I come to take your Honour actually through the matters complained of. But that’s 15 what Mr Nicholls had written. At that point, he does two things. He sends a series of questions to the Liberal Party and a series of questions to my client, and - - -
HIS HONOUR: That was on 2 May, if my memory is correct.
20 MR McCLINTOCK: That was on 2 May.
HIS HONOUR: Yes.
MR McCLINTOCK: That is correct, your Honour. But he had written the articles 25 beforehand, as is clear from his affidavit. And he had written the statement in the first paragraph, which he bears responsibility. At that point, Mr Kenny becomes involved. Mr Kenny was told by Mr Goodsir, or the people to whom he answered inside Fairfax, to write, in effect, an opinion piece to go with this article. What happened is, on 3 May – the actual timing, your Honour – I do have a chronology 30 prepared, your Honour, which I will hand up to your Honour. I might even do it now, if it’s available. I had a chronology prepared over the weekend, your Honour, which, I thought, might assist.
HIS HONOUR: Yes. 35 MR McCLINTOCK: I will hand it up when it comes to me, your Honour. But, Mr Nicholls, the author of the main article, sent Mr Kenny the draft article at 11.22 am on 3 May. Mr Kenny had been asked to write the comment piece the day before. Now, what happens is Mr Kenny produces a comment piece, but it’s not to the liking 40 of the powers that be inside The Herald, so Mr Kenny is sent off to do it again. And, having done it again, he comes up with the opening – with the opening sentence of his material which says – after the headline, Treasurer For Sale – the words – he starts off by saying – I will use the annexure A, your Honour – he starts off by saying – annexure B, I’m sorry – Mr Kenny says – and this is how it would have been seen 45 by the read, but I will come back to this – The Price Tag On Joe Hockey:
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Nobody is suggesting Joe Hockey is corrupt, but it is increasingly clear that the Treasurer is party to a process that is corrupting Australia’s democratic integrity.
5 He writes that. Now, the obvious inference that one would draw from those facts – and I will clarify in cross-examination – is that Mr Kenny’s original version wasn’t strong enough for Mr Goodsir, who wanted Mr Kenny to put the boot in even harder. Now, Mr Kenny formulated – I’m sorry – Mr Nicholls formulated the questions and, I think, actually sent them also to Mr Kenny. The questions themselves gave – 10 perhaps, not surprisingly – no opportunity to my client to answer the allegation that he was for sale. Why? Because Mr Goodsir hadn’t written it by then. Equally, there are a number of other serious allegations that in the print article that were not put to Mr Hockey. The actual questions put to Mr Hockey were: “Who were the current members of the North Sydney Forum”; “What role did you have in setting it up, why 15 was it set up, what is the extent of your involvement in the administration of the forum” - - -
HIS HONOUR: What’s the best place for me to see these questions?
20 MR McCLINTOCK: That appears at page 592 in the exhibits to Mr Nicholls’ affidavit, your Honour. It’s exhibit SRN45.
HIS HONOUR: Page 542?
25 MR McCLINTOCK: 592, your Honour.
HIS HONOUR: 592.
MR McCLINTOCK: 592. 30 HIS HONOUR: Yes.
MR McCLINTOCK: Does your Honour see that? That’s an email from Sean Nicholls, the journalist, to Gemma Daley, who I’ve described already as Mr 35 Hockey’s press spokesman. And your Honour will see that the questions are set out there: “Who were the current members”; “What role did you have in setting it up, why was it set up, what is the extent of your involvement in the administration”; “How many VIP briefings meetings did you grant forum members in the last 12 months, where were they held, who attended, and what was discussed”; “How many 40 of these have occurred since you became treasurer”; “How many other meetings did you grant forum members in the last 12 months”; “Where were they held, who attended, and what was discussed”; (8) “How many of these occurred since you became treasurer”; “What discussions have you had with forum member, the Financial Services Council, regarding the future of financial advice legislation”; 45 “Who else as present”; “what discussions have you had with forum president John Hart regarding the review of the Fair Work Act”; “Who else was present”; (11) “How many forum-relating meetings have you attended with Nick Di Girolamo”;
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(12) “How many forum-relating meetings have you attended with Eddie Obeid Junior” – Eddie Obeid Junior is the son, your Honour, of Mr Eddie Obeid, and himself has figured in a number of the ICAC inquiries; “How many forum-related meetings have you attended with Arthur Sinodinos”. 5 Now, when this came to publication, for reasons best known to the Herald, they omitted every even-numbered question and questions 12 and 13, your Honour, from what they put in the article. But, as often is the case, the significance is what is omitted. There was no request for a response to, “Are you selling yourself”, or, “Are 10 you selling the high office of Treasurer of Australia”, “Are you putting your ear on the auction block”, “Are you giving privileged access”, “Are you giving exclusive access” – all allegations they made. None of that is put to Mr Hockey. The response, of course – my client’s response or Ms Daly’s response, I should say – was to say, “You should ask the North Sydney Forum these questions, and Mr Hockey’s diary is 15 confidential”. An absolutely accurate statement, and one can, for reasons that would be blindingly obvious to anyone except perhaps the Sydney Morning Herald, but one would have thought it would be obvious why the treasurer’s diary would be as sensitive matter.
20 But, in any event, my client wasn’t given anything approaching an opportunity to answer these serious allegations. Now, the questions were in fact really quite mundane. At this point, Mr Goodsir comes in and, along with Mr Cubby, they devise the actual headlines and sub-headlines. Mr Goodsir – and this is unusual, not unheard of but unusual, for an editor to be devising the headlines to an article – 25 comes up with the words, “Treasurer for sale”. And while he did not himself put it on the placard, he knew obviously that it was highly likely to go up there. And that was picked up, of course, by The Age.
The Canberra Times, I might say – again, I will come back to this bit. The editor of 30 the Canberra Times, Mr Uhlmann, didn’t like the headline – one suspects there’s an obvious reason why – and didn’t run with it. In any event, your Honour, on 5 May last year, this article was published. It came, as my client will say – and says in his affidavit – as a complete surprise and shock to him. He was angry, and disappointed, and in disbelief. He bought a copy of the newspaper – The Herald – from the 35 newsagency in Manuka, where he was – he was in Canberra at the time. And people raised it with him.
He saw televisions – and he will talk about a number of other reactions that he had. He saw television stations displaying the front pages of The Herald and The Age in 40 the morning news bulletins, and he heard a radio broadcast discussing the stories. And saying – it’s in Mr Hockey’s affidavit – quite clearly, this is selling a senior politician in return for money. He spoke to his wife about this. Then – again, significantly – the overwhelming reaction of people who saw this material, in the various forms it came to them, was to believe that my client was being accused of 45 corruption.
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The reactions of people is in one sense, perhaps surprisingly, not determinative of what the meaning conveyed to the ordinary reasonable reader was, but it’s hard in a sense to ignore it, because, take for example the former prime minister, Malcolm Fraser – former Liberal prime minister, Malcolm Fraser – sent a tweet on the 5 morning of 5 May when the article came out saying – and I quote from it: “Using ministerial office for fundraising – corrupt”. Mr Fraser himself clearly drew the imputations upon which we rely from the material he saw.
As I said, that’s not relevant in relation to what meanings actually convey, which is 10 an objective test of what would be conveyed to the mind of the ordinary reasonable reader, in this case. But it is highly relevant in relation to actual damage to reputation. If people actually drew the conclusion that my client was corrupt – and they did – drew the conclusion – because one has to distinguish here between what the reader perceives the newspaper to be saying or alleging on the one hand, the 15 allegations they make, which is what the imputations are, and whether anyone believed it.
The second question is irrelevant to whether my client has been defamed. There’s a famous speech of Lord Reid called Morgan v Odhams Press that says that. But many 20 thousands – hundreds of thousands, perhaps – of people thought that The Herald, and The Age, and the Canberra Times were asserting that my client was corrupt, and that is highly relevant to damage to his reputation. There are authorities dealing with that, your Honour. I won’t take your Honour to them now.
25 At that point, my client instructed his solicitors to send letters of demand, and he received quite dismissive responses from Mr Coleman, the in-house lawyer. I might take your Honour briefly to that. That’s annexure JBH15 to Mr Hockey’s affidavit, your Honour. And it’s page 71 of Mr Hockey’s affidavit, your Honour. Page 71 is Mr Hockey’s solicitor’s letter of demand requiring apology to Mr Hywood, and page 30 74 is sent on the same day – 5 May – saying he will give a considered response. And then there’s further correspondence on page 75, and then on page 78 is Mr Coleman’s final response, which is – your Honour will see:
In light of the above – 35 this is the last paragraph on page 79 –
Fairfax Media does not believe the apology you have demanded is warranted. However, if Mr Hockey was to respond to the articles in an article suitable for 40 publication, the various publications would be interested in publishing it.
I might say the articles in question still appear online and on the internet. And despite the facts that – the fact that these respondents do not contend that what they said about my client is true. A week later on 8 – on 13 May, I apologise, on 13 May 45 2014, my client delivered his first budget as the Treasurer of Australia.
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Could I then come back, your Honour, to the matters complained of themselves to make a number of points. First, your Honour, is the placard. The authorities establish that placards and posters, such as this, have to be viewed in isolation. That is, they are not qualified by whatever might appear in the article which they are 5 intended to persuade people who look at them to read. The – that’s established and I don’t believe there will be any dispute about that. There’s an obvious and clear reason for it, your Honour, which is as Mr Cubby – the journalist who actually prepared the placard says – they are intended to be read, as I said earlier, by people passing in cars and from across the road. And those people may very well – 10 probably won’t – actually read the article. It is – they are intended to be read – they are intended by the newspaper to be read in isolation and, as I said, the authorities establish that they – that they are – that they are standalones.
The same applies in relation to the Twitter feeds. Which, in this case, said: 15 Treasurer Hockey for sale.
When one looks at this, in our – the submission we will put to your Honour at the end – and this is our case: is that that is a clear allegation of corruption. There is no 20 innocent explanation of those words:
Treasurer for sale.
It is given force by the word “exclusive” and by the words “Herald investigation”. In 25 other words, the reader would see this as saying, “We, the Herald, have carried out an investigation and we have discovered that the Treasurer of Australia is for sale”. There it is. As I said to your Honour, there is no innocent construction possible for those words. And the imputations, your Honour, are – that we rely upon in relation to that – to the poster are, first – this is set out in our sheet – the applicant accepted 30 bribes paid to influence the decisions he made as Treasurer of the Commonwealth of Australia. Alternative, (b), the applicant was prepared to accept bribes paid to influence the decisions he made as Treasurer of the Commonwealth of Australia, (c), the plaintiff corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia and, in the alternative, the applicant is corrupt in that 35 he was prepared to accept payments to influence his decisions as Treasurer of the Commonwealth of Australia.
Our submission is that they’re conveyed and clearly conveyed by those words:
40 Treasurer for Sale.
And the – on that point, your Honour, your Honour will see that the imputations fall into two halves with an alternate – (a) and (c) are the prime ones with (b) and (d) as alternatives. Could I then turn – pause there, your Honour, to talk about what 45 defence the newspapers plead to that first publication. They deny it is capable of being defamatory. They deny it was defamatory. That is, they deny that it conveyed the imputations that we have pleaded on behalf of Mr Hockey. But once it gets –
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well, for the reasons that I’ve already expressed, your Honour, our submission is that they are clearly conveyed.
When it comes to affirmative defences though, on this point there really are none. 5 The reason why there are none is because there’s no other information in the placard other than those eight words:
Exclusive: Treasurer for sale. Herald investigation.
10 Six words. I’m sorry. Six words. Other than the name of the newspaper. And I will expand upon this more when we come to – when we come to the – to the newspaper articles themselves. But here, if your Honour – if I could take your Honour to the defence, what this – what the defendants – what the respondents have done is plead entirely the wrong issue or entirely false issue. When one comes to determine 15 section 30 – a section 30 defence, your Honour, and that section 30 is set out at paragraph 63 of our written opening – on this point, your Honour, perhaps I should just mention – although your Honour will be aware of this already, your Honour will be applying, in the first instance, the law of New South Wales as a result of section 79 and, perhaps, section 80 of the Judiciary Act and because the law of New South 20 Wales would then apply the law of Victoria and the ACT to the publications there, the law of those States, it does not matter, your Honour, because the legislation is uniform in each of those three places. But it’s obviously appropriate I mention – that I draw to your Honour’s attention the source of your Honour’s power – or the place where your Honour finds the law as to what your Honour applies as the law here. 25 HIS HONOUR: So it’s sufficient to refer just to section 30 of the New South Wales Act?
MR McCLINTOCK: Yes, your Honour. Your Honour. It’s verbatim the same as 30 the relevant Victorian legislation and as the – and as the relevant ACT legislation which is – I’ve forgotten the name of the ACT legislation. It’s not the – it’s not the Defamation Act. It’s part of the – I think it’s part of the – their torts law - - -
HIS HONOUR: The Civil Law (Wrongs) Act 2002 . 35 MR McCLINTOCK: That’s it. That’s it, your Honour. That is correct. Just to make things difficult for everyone. Section 30, your Honour, is – your Honour will see – because it may take a place in this case – your Honour will see that it starts off:
40 There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient” ) if the defendant proves that: (a), the recipient has an interest or apparent interest in having information on some subject, (b), the matter is published to the recipient in the course of giving to the recipient information on that subject and, (c), the conduct of the defendant 45 in publishing that matter is reasonable in the circumstances.
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Your Honour, well, I’m not making a formal concession now – not yet – there’s not going to be any issue about 1(a) and 1(b). The battle ground here is (c):
The conduct of the defendant in publishing that matter is reasonable in the 5 circumstances.
For that reason, I don’t need to trouble – for the reason I have just given, I don’t need to trouble your Honour with 2. Then in 3 there’s a list of matters that can be taken into account but they’re not – it’s not limited to those matters and they’re not – there 10 are other ones – the authorities establish that there are others:
In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a), the extent to which the 15 matter published is of public interest and, (b), the extent to which the matter published relates to the performance of the public functions or activities of the person and, (c), the seriousness of any defamatory imputation carried by the matter published and, (d), the extent to which the matter published distinguishes between suspicions, allegations and proven facts and, (e), 20 whether it was in the public interest in the circumstances for the matter to be published expeditiously –
Not in issue here:
25 (F) the nature of the business environment in which the defendant operates, (g), the sources of the information in the matter published and the integrity of those sources and, (h), whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, (i), any 30 other steps taken to verify the information in the matter published and, (j), any other circumstances that the court considers relevant.
(4):
35 For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
For what it’s worth, your Honour, that subsection was inserted to quell a debate that 40 had been going on for some time. Which was one might think that if one has to prove one is reasonable, one has to negate – one has to deal with malice on the part of the respondent. But the early authorities took the view that because it was defined as a defence of qualified privilege and at a common law malice – expressed malice defeated qualified privilege, that it was a matter for the plaintiff to prove. This 45 doesn’t deal with the burden of proof except in the sense that it says that – it says that if the plaintiff proves the publication was actuated by malice, one would have to say that it would be a very strange case where a plaintiff proved malice but where the
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defendant had established its conduct was reasonable. In fact, it’s impossible to imagine such a case.
Paragraph 5 for completeness, your Honour: 5 However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
That provision is the successor to a series of provisions that first appeared in New 10 South Wales in 1912 to overcome the decision of the Privy Council in Macintosh v Dunn. Now, that’s section 30, your Honour. To tie it back to the defence in relation to – to tie it back to the defence in relation to this matter – in relation to the first matter – in relation to the first matter complained of – the placard – if your Honour looks at my learned friend’s defence, your Honour will see that, in paragraph 12 on 15 page 2, he comes to deal with that publication, and it’s the particulars that are telling. Our proposition, your Honour, ultimately, is that this defence is so hopeless that it cannot have been pleaded in good faith and warrants an award of aggravated damages. Just so your Honour understands what is being said, it really comes from (c): 20 The respondent’s conduct was reasonable in that the first matter complained of and the second matter complained of related to and referred to the matters set out in (a) and (b) above, each of which was believed by the respondent to be a matter of legitimate and significant interest to members of the Australian 25 community.
Two:
The purpose of the first matter complained of was to inform the recipients of 30 the investigation conducted by the respondent –
I’m not sure what that means –
into the matters, the subject of the second matter complained of, by directing 35 the recipients to the second matter complained of and to encourage recipients to read the second matter complained of.
So be it. So what:
40 Such purpose was a reasonable purpose in light of the matters pleaded and particularised herein in relation to the second matter complained of.
It seems that that’s – I’m not ignoring the next two subparagraphs. It seems that that’s their case on reasonableness. They had a reasonable purpose. That’s not what 45 the section says. It doesn’t matter how reasonable your purpose was, your conduct in publishing, as the section says – section 30(1)(c) – conduct of the defendant publishing that matter is reasonable in the circumstances. Then it says:
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Publication of the first matter complained of was reasonable and appropriate to achieve that purpose, including by reference to the nature of the business environment which the respondent operates in.
5 Whatever that means. Five:
Having regard to these matters, it was, and the respondent believed it was, in the public interest for the first matter complained of to be published.
10 What the respondents do not say there is that – is give any particular that says, “Our conduct in publishing this material was reasonable for the following reasons. They say their purpose was reasonable, but not their conduct. And it’s the conduct in publishing. Going further, your Honour, the authorities establish – and clearly establish – I’m talking about the Court of Appeal, your Honour, in New South 15 Wales, in a case called Evatt v Nationwide News, establish that a defence such as this – section 30 defence – can only succeed if the respondent – or sorry, cannot succeed – I will put it in the opposite way – cannot succeed if the respondent did not intend to convey the defamatory imputation.
20 The reason why that is the case is that the test is what imputation would be conveyed to the ordinary, reasonable reader. And if the tribunal of fact determines that the imputation was as a matter of fact conveyed to an ordinary, reasonable reader, it must be reasonably foreseeable that the imputation would be conveyed. Therefore, a lack of intention to convey that imputation is fatal to the defence. There are two 25 relevant decisions, your Honour. One of them is – and, in some ways, is probably the best place to find the principles set out – I will give your Honour a reference to it – is a decision of Hogan J in the Supreme Court. It’s reported in – it’s [2008] 68 New South Wales Law Reports at page 150, and - - -
30 HIS HONOUR: What’s the name of the case?
MR McCLINTOCK: The name of the case, your Honour, is Obeid v John Fairfax Publications Pty Limited. It was before Mr Obeid fell on the hard times that The Herald so enthusiastically mentions in the articles it has published. The paragraphs 35 in question – I won’t take your Honour to it in detail now – but the paragraphs in question appear on page 168 to 169, and they are paragraphs 70 to 76. It’s not going too far to say that his Honour there rejected the defence of this defence – it was under the preceding legislation, but it’s in no way different – rejected this defence because he accepted that the journalist did not intend to convey an imputation of corruption 40 about Mr Obeid. Now, the evidence of Mr Goodsir is that he did not intend to convey the imputations that Mr Obeid was corrupt by those words.
HIS HONOUR: Mr Hockey.
45 MR McCLINTOCK: I’m sorry. I apologise, your Honour. Mr Hockey. I don’t think I will be forgiven for that slip, your Honour, nor should I be. Each, in fact, of those involved in these publications say they didn’t intend to suggest that Mr Hockey
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was corrupt by what they said. I will be asking some questions about it. How that can be said when, given what appears on the front page of The Herald and given what appears here – is very difficult to see. But, your Honour, that’s fatal here. First, they’ve pleaded the wrong defence. The purpose is irrelevant. It’s what they 5 did. And they – and soon as that is found to convey the imputations that my client pleads, it’s fatal to the defence. Your Honour, that’s what I wanted to say about - - -
HIS HONOUR: Can I just - - -
10 MR McCLINTOCK: Certainly.
HIS HONOUR: - - - pause there and just come back to a matter of trial management. What are the current estimates for the length of this trial?
15 MR McCLINTOCK: It has been set down for two weeks, your Honour. I don’t believe it will go two weeks. I’m concerned about one thing. My learned friend has indicated that he proposes to cross-examine Mr Hockey for a day. Bearing - - -
HIS HONOUR: All I need to know at the moment is the answer to the question. 20 What’s the current estimate?
MR McCLINTOCK: I think we will finish early next week. Monday or Tuesday.
DR COLLINS: It’s very much a matter for my learned friend. He has said he wants 25 to cross-examine seven witnesses for the respondents and hasn’t given us an indication about how long he expects with each of them, but I’ve taken his word. It sounds right.
HIS HONOUR: And are each of the applicant’s witnesses to attend and be cross- 30 examined?
DR COLLINS: No. Only two, your Honour.
HIS HONOUR: And they are? 35 DR COLLINS: Mr Hockey, we’ve given an estimate of about a day.
HIS HONOUR: Yes.
40 DR COLLINS: And Ms Daley, who is Mr Hockey’s press secretary, we’ve given an estimate of one to two hours.
HIS HONOUR: All right. My usual sitting times are a bit different from the norm.
45 MR McCLINTOCK: Good.
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HIS HONOUR: I usually start at 10 o’clock, take a break at about 11.30 for 10 minutes, go through to 1 o’clock, resume at 2.15, go through to 4.30.
MR McCLINTOCK: That suits us very well, your Honour. And does your Honour 5 propose to take a break this – the - - -
HIS HONOUR: Well, that’s why I’m raising it now. Even though we started at 10.15 this morning, I realise that is being announced to you right now, so I will give either of you an opportunity to protest if you wish. 10 MR McCLINTOCK: No, your Honour. No protest from us.
DR COLLINS: We’re content with that as well, your Honour.
15 HIS HONOUR: All right. Well, those are the hours we will sit from now on.
MR McCLINTOCK: Thank you, your Honour.
HIS HONOUR: The big difference, I think, perhaps, from usual practice, being that 20 we will start at 10, go through to 1 and then go through to 4.30.
MR McCLINTOCK: This doesn’t matter. It’s actually my preferred way of doing it, your Honour. Very much so, actually.
25 HIS HONOUR: All right. Well, we will take a break now and resume at quarter to. Adjourn the court.
ADJOURNED [11.34 am] 30
RESUMED [11.45 am]
35 HIS HONOUR: Yes, Mr McClintock.
MR McCLINTOCK: Thank you, your Honour. While I’m dealing with the law, it might be worthwhile if I said a little bit more about the section 30 defence. Perhaps, even if I step back and said this, your Honour. In short form, the issues for your 40 Honour’s decision are, first, what did the publication mean – and that’s encapsulated in the question, “Did it convey to the mind of the ordinary reasonable reader the imputations that we plead or imputations that are no substantially different from such imputations?” – the second issue is were the imputations in question defamatory – and I don’t imagine there would be any debate that these imputations, if conveyed, 45 were defamatory.
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They obviously are, your Honour, if I may say so. What that concept, of course, means, as your Honour will be aware, is that they must have had the capacity to harm my client – my client’s reputation in the eyes of ordinary members – as is sometimes said – right thinking members of our community – but ordinary members. Once it is 5 established that something defamatory was published about my client – that is, the imputations were conveyed and they were defamatory or some of them ..... it is – the law then presumes that harm to my client’s reputation will follow. And my client doesn’t have to prove harm, but, of course, in the course of this case we are going to do so by proving that people who read the materials did take the defamatory 10 imputations from them or at least took the overwhelming imputation of corruption.
Equally, my client will prove his reaction as is set out in the affidavit, and I will ask him to supplement that in the witness box, because it’s a little bloodless said merely on the page in black and white, rather than to see it in the witness box and the actual 15 human being. However, once we’ve established that the matter complained of conveyed the imputations and they were defamatory, the onus of proof, in effect, shifts to the respondents to establish one of the defences – one of the many defences that the law of defamation gives to media organisations or gives to anyone. The only defence pleaded here is section 30 of the inform defamation legislation, and the only 20 issue that arises is reasonableness in publishing.
I should probably give your Honour references to – in addition to what I said about the fact that the authorities establish that it cannot be reasonable to publish an imputation which you did not intend to convey – that was the Obeid case to which I 25 have referred your Honour, which comes from the New South Wales – which is basically a New South Wales Court of Appeal decision, and which is Evatt v Nationwide News, but I won’t give your Honour a reference to that. I should say that the respondents have also pleaded common law qualified privilege, but that will flounder, as media publications always do, on the inability to prove the relevant duty 30 to publish an interest on the part of all people in question.
The authorities establish that, while there are certain circumstances where a mass media publication can – or a large publication, I should say, can be the subject of qualified privilege – relevantly, it’s only the course of an election, and which, of 35 course, this was not. The only exception to that is what occurs in Lange – the Lange case, your Honour, which I should take your Honour to briefly now, because Lange is seen as a modification of the common law qualified privilege defence. It’s 189 Commonwealth Law Reports at page 520. It’s one judgment of the – there was one judgment – one joint judgment of all seven of their Honours who then sat on the – 40 upon the High Court.
I could summarise it by saying that the judgment works by saying that the common law must conform to the constitutional imperative of freedom of political speech – as it is sometimes, perhaps, misleadingly described – and that, therefore, it is necessary 45 to modify the common law defence of qualified privilege so that – for political speech of this kind – so that publications which are reasonable are protected. Their Honours said specifically in the case that the then section 22 of the New South Wales
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Act – which is the predecessor to section 30 of the uniform legislation – complied with the constitutional imperative because it had the element of reasonableness in it, but the common law of the other states had to be modified to that extent.
5 That has now occurred as a result of section 30, explicitly modified by – in all states to inject the element of reasonableness in there. And in one sense it might be said that Lange has been superseded, but that’s not really true, because it’s the High Court’s guidance on reasonableness that is relevant. Could I take your Honour, having summarised it in that way, to page 574 of the joint judgment, where their 10 Honours dealt with what was reasonable. It’s the last paragraph, beginning on page 574, where their Honours said:
Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But as a general - - - 15 HIS HONOUR: Well, Mr McClintock, can I interrupt.
MR McCLINTOCK: Sure.
20 HIS HONOUR: (a) I have read this passage in preparation for this trial, (b) I can probably read it to myself quicker than you can read it aloud.
MR McCLINTOCK: Certainly, your Honour. I won’t - - -
25 HIS HONOUR: (c) if there’s any point you want to make by way of emphasis, then by all means make it, but - - -
MR McCLINTOCK: Your Honour, it’s only the category of items that the court will look at in determining whether it’s reasonable. I won’t read it to your Honour. 30 That takes me into one other point I wish to make, which may come up and may come up relatively early, which is this: the objective truth and falsity of the publication or the matter complained of is irrelevant from – to a qualified privilege defence, whether it be a qualified privilege defence at common law or a qualified privilege defence under section 30. There’s strong authority at first instance in New 35 South Wales of that point of view. There’s strong authority in England in the Court of Appeal for that point of view at common law.
My learned, Dr Collins, in his two publications agrees with it and says it says there that objective truth or falsity is irrelevant to the defence of qualified privilege. When 40 one thinks about it, it’s very easy to see why that is the case and has to be the case. The reason is, your Honour, this: that the defence of qualified privilege – whether it be common law or statutory – proceeds upon the basis that a defence of truth has either not been pleaded or has failed, and the premise is at least the possibility of falsity, and because the defence looks not at the – looks at not the objective facts as a 45 truth defence would under section 25, or perhaps 26 of the Act, but looks at what the defendant did to verify the facts, it becomes clear that the defence has nothing to do with objective truth or falsity.
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The authorities for that proposition, your Honour, are set out in our written opening, Makem v John Fairfax and the authorities that follow on from that. The Court of Appeal, your Honour, in England is – I will just get the reference to it, your Honour – it’s a decision – it’s called GKR Karate UK v Yorkshire Post Newspapers. It’s 5 reported in the Weekly Law Reports but I don’t have the reference to that, your Honour. It is – I can’t get – I’m sorry – it’s (2000) EWCA Civil at 420, and the particular passages, your Honour, appear on page – paragraphs 20 through to 24, and the reason why I ..... case was that their Lordships were dealing with the situation where the trial judge had ordered that the qualified privilege defence be severed and 10 determined prior to all the other issues, and the plaintiff resisted that, saying that the objective truth or falsity of – or falsity, in this case – that case, would be relevant. And the court – the Court of Appeal rejected that.
Now, the reason why that comes up – that becomes relevant, your Honour, when I 15 come to the second matter complained of. That is the articles in the Herald. Because, as set out there – set out – and I will – when I come to it is – in the defence is a long category of statements that are said in the articles are said to be true. I have to say there’s something very surprising about the proposition. Because if it is relevant that the statements – if the objective truth of the statements is relevant, the 20 objective falsity of the statements that are not true would equally be relevant and the consequence would be that section – a section 30 defence could never succeed, one would have thought.
There are two answers that we give. The first answer is as I have indicated. The 25 objective facts are irrelevant to this defence. The second answer is that the facts stated and the matters complained of – and particularly in the imputations, which is the only relevant test – are false. Could I say this, your Honour, there’s a – does your Honour – your Honour will know the phrase “the Curate’s egg”? Your Honour will recall the cartoon in Punch - - - 30 HIS HONOUR: Some things extend across to South Australia.
MR McCLINTOCK: I hope I - - -
35 HIS HONOUR: We might still be using Mr Todd’s telegraph line, but some things we have heard of.
MR McCLINTOCK: Your Honour will recall the Curate’s egg comes from a cartoon in Punch in 1895. 40 HIS HONOUR: Yes.
MR McCLINTOCK: Where the Bishop says to the Curate:
45 Mr Jones, I fear your egg is bad.
And the Curate says:
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No, my Lord. Parts of it are excellent.
Your Honour, parts of the articles might be true – although it’s a bit hard to see which ones – but it’s still a pretty rotten egg, if I could put it like that, your Honour. 5 HIS HONOUR: Yes.
MR McCLINTOCK: Your Honour, that’s what I wanted to say about the defences and that probably deals with everything I needed to say – or perhaps I will briefly 10 take your Honour – before I come to the articles – to the particular paragraphs. If your Honour goes to page 7 of the defence in the Fairfax proceedings, your Honour will see that there’s a set of facts set out – supposed facts set out there. They’re the ones that we say – it’s roman X on page 7. And, your Honour, you will – there’s a catalogue of them there, your Honour. They are – once the imputations are found 15 conveyed, they are, in my submission, wholly irrelevant and I will be objecting to any cross-examination about them if my learned friend ..... that.
I mean, the odd thing, your Honour, is that my learned friend has indicated he wants to cross-examine Mr Hockey for a day to prove – apparently, to prove a defence that 20 relies critically upon his client’s state of mind and what his client did and that we find puzzling and objectionable. Could I then come, your Honour, to the second publication? Which is the – and if I could do it, your Honour, I will refer to the - - -
HIS HONOUR: By “second publication”, you’re referring to The Age or to the 25 second matter complained of?
MR McCLINTOCK: The second matter complained of, your Honour.
HIS HONOUR: Yes. 30 MR McCLINTOCK: The second matter complained off in the Fairfax proceedings. That is – that’s behind – that’s behind tab 2 in your Honour’s – in the folder that your Honour has been handed, I believe.
35 HIS HONOUR: Yes.
MR McCLINTOCK: At least I hope that is the case. Your Honour, if your Honour has it, your Honour will see that first it occupies the entirety of the front page of the Herald below the name of the newspaper after references to a soccer game and a 40 distinctly unfunny television series. Your Honour will see the words, “Sydney Morning Herald”, and “Independent. Always”. Then we see these words:
Exclusive: Joe Hockey’s Secretive Fundraising Body.
45 Just pausing there, your Honour, our submission ultimately will be that this has been very carefully crafted to point the reader in a particular direction before they even get
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to the body of Mr Nicholls’ article. Then comes the headline in extremely large print:
Treasurer for Sale. 5 I won’t repeat what I’ve said about that in connection with the placard:
North Sydney Forum charges up to $22,000 for access to Treasurer. VIP members remain secret. Disclosing fee only as party donation. Forum took 10 30,000 in donations from Obeid-linked company.
Now, already there, your Honour, one has concepts such as secretive, access, again secret. And then the reference to 30,000 in donations from Obeid-linked company. It’s – I will be interested to hear what my learned friend has to say to support the fact 15 that the company in question, Australian Water Holdings was Obeid-linked. Certainly, there’s no suggestion that at the time the donations were paid that anyone on behalf of my client had any idea that there was any connection with Mr Obeid whatever. But the point about those words, your Honour, is of course they are intended to introduce and, therefore, bias the reader as to what comes – what follows. 20 And ..... must have that effect.
When the reader is told, “Treasurer for sale”, everything that follows afterwards will be read in the light of those words and will be governed by it. Before I come to the actual body of Mr Nicholls’ article, there is of course then the repetition in the gothic 25 print of the name Sydney Morning Herald and a reference to – and a quote from what, in fact, is the editorial. And it’s worth focusing on that, again, on the front page, obviously, of this paper:
This practice of politicians effectively selling access is a disquieting 30 development in our political culture. It’s time for the North Sydney Forum to come clean about who are Mr Hockey’s financial backers and what they get for their largesse. It is too simplistic for Mr Hockey to claim he is somehow at arm’s length from the activities of the forum.
35 And then the rest is the editorial. Clearly, what is being put there is that there’s a quid pro quo. The allegation of access in return for the largesse and so on. There’s also the statement – the false statement – that my client is selling access qualified by the word “effectively” that I suspect the journalist who wrote this, a Ms Davies, thought might dilute the effect of what she was saying. Then dropping down right 40 below that there’s an arrow and then the headline, The Price Tag on Joe Hockey. Again, a suggestion that my client is for sale. It refers then to the piece by Mr Kenny that appears, of course, on page 6.
To go to the – to go then to the body of the article, one sees that the very first 45 paragraph, after the by-line of Mr Nicholls, is:
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Treasurer Joe Hockey is offering privileged access to a select group including business people and industry lobbyists in return for tens of thousands of dollars in donations to the Liberal Party via a secretive fundraising body whose activities are not fully disclosed to election funding authorities. 5 In that mishmash and farrago of truths and half-truths and outright lies, it’s worth noting the – most of which I have dealt with already – it is worth noting the last three or four lines:
10 Secretive fundraising body whose activities are not fully disclosed to election funding authorities.
The clear suggestion there, obviously, from the use of the word “secretive” and “non- disclosure” is that there’s something to hide. Clearly. When one thinks about it – 15 not that the ordinary reasonable reader – not that the person reading this would, why would – why would the North Sydney Forum disclose its activities to election funding authorities? That’s not the function that the North Sydney – that’s not the function of election funding authority. Equally, there’s another really stupid mistake by Mr Nicholls there and a mistake that he knew – in fact, it’s probably more than a 20 mistake, your Honour. It’s probably deliberately false. Because he knew by then that, as I said earlier in this opening, that the North Sydney Forum was governed by the Federal Law.
“Election funding authorities” is a clear reference to the State Election Funding 25 Authority, which had nothing to do with the North Sydney Forum. There was no obligation on it to report. So there’s two errors there. First, activities are not fully disclosed. Why would they disclose the activities anyway? And, second, it’s not the body to which the North Sydney Forum reported. Mr Nicholls knew that. Why? Because on 27 or 28 March, he spoke to Mr Orrell – who was the chairman of the 30 North Sydney Forum – who told him specifically that it was the – that it was the – that it was governed by the Federal body.
In the questions that Mr Nicholls sent to the Liberal Party, he asked a similar question and got, in effect, the same answer. That is, the North Sydney Forum is 35 governed by the Federal Law and reports to the Australian Electoral Commission. By the time he sent those questions – as I have said, he had already written the article and he had put this material in there despite the fact of what Mr Orrell had told him in late-March and despite the fact that he had – despite – and he also left in there the material that appears on page 7, in the second column on page 7: 40 However, the Forum does not lodge its own disclosures to the New South Wales Election Funding Authority. One wouldn’t expect it to.
He then goes on, I accept, to set out what the – in the next column, what had been – 45 what had been – the – I’m sorry, in the last column on the page about the Australian electoral disclosures to the AEC. But, your Honour, I’m dealing, of course, with Mr Nicholls’ state of mind and what he knew at the same time as I’m dealing with what
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was conveyed by this material. But then it continues, the – then – the Herald can hardly help itself at this point, it has to get in a reference to ICAC:
The Independent Commission Against Corruption is probing Liberal 5 fundraising bodies such as the Millennium Forum and questioning their influence on political favours in New South Wales.
So the link to corruption is, again, made on the part of my client and this body is then made. Then it says: 10 Mr Hockey offers access to one of the country’s highest political offices in return for annual payments.
That’s not true, your Honour, and I’m going to be putting to Mr Nicholls that he 15 knew it was not true. But, in any event, it’s a clear allegation of influence peddling and corruption. It then continues with the reference to meetings often in private boardrooms. Perhaps I’m wrong, but I would have thought boardrooms are always private but Mr Nicholls can, perhaps, tell us something about why – about those that are not. Then there’s other references and then, of course, as I said, the reference 20 “price tag” on Joe Hockey.
Your Honour, it’s at that point it is quite clear that this is making serious allegations of misconduct against my client. There are continuing references throughout to Australian Water Holdings, to Mr Obeid, and so on. And in my submission, your 25 Honour will ultimately be comfortably satisfied that that article – obviously I’m not asking your Honour to look at it in isolation, because it has to be viewed in the context of the article by Mr Kenny and so on.
If I could then take your Honour to – having set the scene, I hope – what Mr Kenny 30 has to say, which appears on page 6. The headline of course is, again, “The price tag on Joe Hockey”. This is of course Mr Kenny’s second attempt at this article, having been sent back to do it again, presumably by Mr Goodsir. And as I pointed out to your Honour, your Honour will notice the start:
35 Nobody is suggesting Joe Hockey is corrupt –
perhaps that means, “Nobody is suggesting – so far”. Then:
But – 40 that’s a pretty big but too –
it is increasingly clear the Treasurer is party to a process that is corrupting Australia’s democratic integrity. 45
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So he’s not corrupt, but he is corrupt. That’s what it’s saying. And then, to make it absolutely clear, it gives a specific example of American political corruption, and then we get – and this is significant:
5 A week from now, the Treasurer will rise to despatch box in Canberra and deliver a federal budget; his first, and undoubtedly one of the most significant in many years. It will ask Australians to take a leap of faith, to take him on trust; trust that he’s acting purely in the national interests that the harsh medicine prescribed for pensioners and families is the correct formula for the 10 economy, that the big end of town will match their sacrifice –
and so on –
That trust must come under scrutiny – 15 what does that mean? That means, we would suggest, your Honour, that it’s something that would detract from the trust that the Australian people should have – or do have – in Mr Hockey, because:
20 …in light of the revelation that Hockey’s centrality to the government has become a commodity, a product to sell, in the ruthless search for more campaign funds.
That’s a lie, and I will put that to Mr Kenny. 25 Through such vehicles as the North Sydney Forum, the most senior public officers have been quietly privatised to be sold on as political access.
If that’s not an allegation of corruption, your Honour, I find it hard to see what is. 30 Ultimately, I’m going to be asking your Honour to disbelieve Mr Kenny and Mr Nicholls when they say they didn’t intend to convey these imputations. What else could a journalist – that is, someone who works with words as his daily commodity, the commodity that he sells – mean by:
35 Mr Hockey’s centrality to the government has become a commodity, a product to sell.
What else could be meant by the words:
40 Senior public officers –
that is, treasurer –
quietly privatised to be sold on as political access, done in a way that is 45 deliberately opaque, under the radar, and disguised as something else, rather than solicit donations from companies looking to curry favour or buy influence.
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So that’s what we’re talking about – an alternative to soliciting money from companies trying to buy influence. If that’s not corrupt, again, I wonder what is in Mr Kenny’s view. Again, I will ask him. Again, I will ask your Honour to disbelieve him if he says that’s anything other than allegation of corruption. 5 The forum, rather than soliciting donations from companies looking to curry favour or buy influence, the forum charges exorbitant annual membership fees, well in excess of the disclosure requirements under electoral donation laws.
10 I don’t want to make too much of it, your Honour, but the words “well in excess of the disclosure requirements” seem to suggest something wrong. The fact is the donations in question were disclosed by the Liberal Party to the Australian Electoral Commission. What’s wrong with that?
15 Have no illusion. This is an entity created expressly to further the Liberal Party’s interests.
Well, just pausing there. Is that a crime? Is there anything wrong with that? No. If it had said: 20 Have no illusion. This is an entity created expressly to further the Labor Party’s interests –
what would be wrong with that? Nothing. 25 to wit, the re-election of Joe Hockey.
That also itself is not true. The money does not go to Mr Hockey, and it does not go to the North Sydney Federal Electorate Committee, which is the relevant governing 30 body of the Liberal Party. It goes to the Liberal Party. It probably – even though – well, I won’t say where it goes, your Honour. There probably won’t be any evidence about it. There are some references in that Mr Nicholls was told to go expend it on marginal seats by, I think, Mr Orrell, but I can’t recall precisely where it came from and Mr Hockey’s seat is very far from marginal. It then goes on to say: 35 Hockey is not the personal recipient of any funds, but –
again, a pretty big but –
40 it is hard to draw a total distinction between the forum’s interests and his own, given the former is dedicated to the re-election of the latter.
You know, again, your Honour, if it makes any sense, it’s another way of emphasising the corruptness of this deal. 45 It is one of the number of vehicles on both sides of politics for years –
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then there are references. Then Mr Kenny says:
Such vehicles are within the rules, but should they be?
5 That obviously would be discounted by the clear allegations of corruption that go before. Then it says:
By marketing Hockey’s pivotal role in economic decision-making, the North Sydney Forum may be said that it is offering something that it is not really its to 10 sell: gold-card entry to one of our highest public offices.
Let’s just look at that, your Honour:
By marketing Hockey’s pivotal role in economic decision-making – 15 that’s an allegation that the North Sydney Forum facilitates corrupt decisions by Mr Hockey in his capacity as treasurer. There’s no other meaning that can be given to the words “marketing” – that’s selling, or putting on the market – my client’s “pivotal role” – he is the treasurer – in decision-making; “it’s offering something 20 that’s not really its to sell”; “gold-card entry to one of our public offices”.
So this has gone further than Mr Hockey sitting around chatting to a couple of people. These people – presumably “the companies looking to curry favour or buy influence”, at the bottom of the first column – are now actually inside Mr Hockey’s 25 office as treasurer. This is serious, your Honour. This is seriously defamatory. It’s a serious attack on my client. No public office-holder, as I said at the very start of my opening, could let this pass, your Honour. It’s an allegation of corruption and it’s made with no basis whatever. Then it goes on to say:
30 What these well-connected companies and industry groups, such as the Financial Services Council and the National Australia Bank, have returned on their investment remains unclear.
There’s an unexpressed premise in there. That, of course, is that those two 35 companies have received something. I might say that Mr Nicholls had contacted the NAB, who had confirmed that they were members of the North Sydney Forum; they didn’t have anything to hide in doing that. It doesn’t seem that Mr Nicholls, at least, ever asked anyone from the NAB, “What did you get for your .....? What was the quid pro quo for .....?” Because that’s what this is. Nothing like that. 40 I should also say, your Honour, that the only research that Mr Kenny did – other than had his background knowledge – seems to have been asking Mr Nicholls for his article. So in one sense, the quality of what Mr Kenny says stands on all fours with the quality of what Mr Nicholls did. But then it says: 45
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But it’s a legitimate question, given the financial services industry stands to gain from policy decisions favourable to them, such as the government’s commitment to rolling back consumer protection in financial laws.
5 There’s the quid bono, who benefits from this – the Financial Services Council, then:
Politicians are fond of invoking the fair go as the quintessential Australian ethic, but it is hard to discern that fair go for voters when special access is being sold to the rich and powerful, and the money used to run party political 10 campaigns.
There’s nothing special about the access that’s obtained through the North Sydney Forum, nothing special at all. As I said, it’s just like an ordinary party meeting, and it’s just like the National Press Club, and Mr Hockey will tell your Honour that he 15 will speak to anyone. That’s what politicians do.
Your Honour will see – and the only other parts I need to point out to your Honour are – the graphics. Your Honour will look at how they’re set out on the page. There’s a picture of Mr Hockey, and then at the top of it, under the heading North 20 Sydney Forum, your Honour will see – and it says – “North Sydney Forum website”. A substantial part of Mr Nicholls’ information came from the website of the North Sydney Forum. That’s the secretive body. It’s so secretive that it goes and publishes its material on the website, and that of course is a graphic. And then your Honour will see what it says: 25 By joining the North Sydney Forum, you will have the opportunity to participate in a regular program of events, including boardroom lunches with Joe Hockey, focused on key policy areas that are nominated by forum members.
30 Now, that’s the secret that The Herald has found out by looking up a publicly available document in relation to a forum that’s open to anyone, in effect, and is not restricted to members who can actually come along – guests can come. Then we get, “Who’s who”, and if it weren’t so obvious what The Herald were doing, it would be actually very funny, your Honour. We get John Hart, chairman of the North Sydney 35 Forum, and a chief executive of Restaurant and Catering Australia, a member of the Prime Minister’s Business Advisory Council. Then we get Mr Orrell, deputy chairman, to whom Mr Nicholls spoke. We get Mr Carrozzi, founder of the North Sydney Forum, national managing partner of PricewaterhouseCoopers, chairman of the Italian Chamber of Commerce and Industry. 40 Then we get two significant people: Mr Di Girolamo. He had been in the news because he was the CEO or chairman of – I don’t know, of Australian Water Holdings, and he was the one who gave Mr O’Farrell the $3000 bottle of Grange that brought Mr O’Farrell undone. So the mere mention of him is suggestive of 45 corruption. He had probably been, as the evidence seems to show that Mr Nicholls had found out, to a couple of meetings.
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Then we get Eddie Obeid junior. Now, I don’t know why Mr Eddie Obeid junior is there, except to give a specious glow of corruption to what these people were saying about my client, because Mr Eddie Obeid had nothing to do with the North Sydney Forum. His father was a Labor politician, he had never been to a meeting, and Mr 5 Nicholls had been told that on several occasions that Mr Obeid had never been to a North Sydney Forum Meeting. But The Herald can’t stop itself:
Son of corrupt former Labor powerbroker –
10 yea, even under the third generation ye shall be corrupt –
…powerbroker Eddie Obeid and former employee of Australian Water Holdings. ICAC has heard claims the Obeid family owns a one-third share of AWH, which is denied by the family. 15 So for no apparent reason other than to smear my client with some form of insane guilt by association, they shove Mr Eddie Obeid junior and his photograph – not a terribly flattering one, one has to say, your Honour – in there. Just diverting slightly from the pictures, your Honour – the graphics – if your Honour goes down to the 20 questions for Joe Hockey, one will see 11:
How many forum-related meetings have you attended with Eddie Obeid junior?
And the response is set up after the next question, but of course, by then Mr Nicholls 25 had been told – twice, I think – that Mr Eddie Obeid junior had not been to any forum meetings. But your Honour can see the anxiety of these journalists – so-called – to do this, because your Honour will recall what Mr Goodsir had said in one of the emails in question that he sent in the early parts of the story, about what he said when he raised the possibility that there might be a meeting with Mr Eddie Obeid junior. 30 That’s in the material that I mentioned to your Honour earlier.
Then going back, we get Mr Brogden:
Former New South Wales Liberal leader; chief executive of Financial Services 35 Council; a member of the North Sydney Forum. FSC has been vocal in support of its controversial changes to the Future of Financial Advice Act.
But aren’t these exactly the kind of people whom one would hope that the Treasurer of Australia is dealing with and listening to? Don’t they have a legitimate point to 40 put? The suggestion, ultimately, of course, is that my client wasn’t really listening. His office was being bought. That is, that he was being bribed. Then we get Mr Sinodinos – Senator Sinodinos:
Former assistant Treasurer who stood down after appearing as a witness at the 45 ICAC inquiry into AWH; New South Wales Liberal party president; National Australia Bank executive before entering the Senate in 2011.
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Is it to be suggested that Mr Hockey shouldn’t have been talking to his assistant Treasurer? What’s Mr Sinodinos doing there? And one then gets tucked away at the bottom of the graphic:
5 How it works –
which is significant, again, because I accept it runs counter to the allegations of bribery, although whether anyone read it is a different matter:
10 1. Membership fees paid to North Sydney Forum as part of the North Sydney federal electorate conference.
2. New South Wales Liberal Party lodges a consolidated disclosure, including fees, to the election funding authority. 15 3. New South Wales Liberal Party distributes fees to other campaigns –
and so on. Your Honour, that’s all I want to say about that article. I don’t need to say anything further about the defence’s. The imputations, in my submission, your 20 Honour will be comfortably satisfied were conveyed.
Your Honour, I don’t need to go in detail, your Honour, to the remainder of the materials, because overall they’re similar, but I should take your Honour to describe what they actually are. Behind tab 3 your Honour will find what in fact is pretty 25 much the same material as – it’s this material, your Honour.
HIS HONOUR: Yes.
MR McCLINTOCK: It’s a printout of the material made available on the iPad or 30 tablet app, is probably more accurate to say, your Honour. I don’t know whether your Honour understands how these work, but I will assume that your Honour doesn’t. But you can download an app for your iPad. Your Honour, I only recently learnt some of these things. I’m not in any sense suggesting lack of knowledge on your part. I do not know. I downloaded to my iPad an app – in my case, for a 35 different paper, which I use – and as your Honour can see, that’s what you see when you go to that.
HIS HONOUR: Yes.
40 MR McCLINTOCK: It is still the second matter complained of, your Honour, because relevantly it is the same as the print version. I don’t need to deal with it separately, your Honour. The next – behind tab 4, your Honour, is the internet publication, and your Honour will see that the way that works is it gives what is the first page so to speak of The Herald website. And your Honour will see, “Hockey’s 45 secretive fundraising lobby”, and then if your Honour clicks on that link, the material appears towards the back of that bundle. Interestingly enough, your Honour, in that material, there are variations. Significantly, Mr Kenny’s material does not appear
.NSD489/2014 9.3.15 P-39 ©Commonwealth of Australia MR McCLINTOCK
there, nor does the reference to the editorial. There may be links, but they’re not actually set out as part of this link, and so we have not pleaded that material in relation to Mr Kenny. That’s the internet publication in relation to The Herald and that is the second matter – the third matter complained of. Sorry. Turn this to its 5 home. Then we get the mobile at – that is what comes up on the equivalent app on one’s telephone, and your Honour will see, again, it contains the core of what – The Herald Article, but only Mr Nicholls’ material and nothing else, your Honour. Relevantly speaking, other than omitting a substantial part of the graphics, the reference to the editorial and the Kenny article, again, it’s the same, your Honour – 10 relevantly the same.
That is in fact another of the third matter complained of, your Honour. We then come, your Honour, to The Age publication and, again, there are variations but they’re not significant – they’re probably not significant. Your Honour will see that 15 above the headline is, in this case:
Exclusive: Party Donations Linked To Hockey’s Secret Forum.
As opposed to: 20 Exclusive: Joe Hockey’s Secretive Fundraising Body.
The words “Treasurer for sale” are, of course, the same. Then the sub-headlines are different from the ones that appear in The Herald. Here it’s: 25 Business Lobbyists Pay For Privileged Access. Forum Chaired By Hospitality Industry Lobbyist. Australian Water Holdings Made Donations.
Then there’s a reference at the bottom – the other material is relevantly the same, 30 your Honour. And if your Honour goes to page 4, your Honour will then see the remainder of Mr Nicholls’ article, set out under het heading Treasurer For Sale, Donations Link, Business, Lobbyists Pay To Get Up Close, and there is a similar graphic and then, on the right-hand side on page - - -
35 HIS HONOUR: Sorry. I just didn’t read that last bit that you - - -
MR McCLINTOCK: I beg your pardon, your Honour?
HIS HONOUR: I just didn’t catch or I haven’t picked up on the page. Where is the 40 – I see. It’s a bit across the page. Yes.
MR McCLINTOCK: Yes. It is, your Honour.
HIS HONOUR: Yes. 45 MR McCLINTOCK: Yes. Your Honour will see – I don’t need to deal with what is Mr Nicholls’ article separately. It is, relevantly speaking, as I said, the same as what
.NSD489/2014 9.3.15 P-40 ©Commonwealth of Australia MR McCLINTOCK
appeared in the print version of The Herald. Likewise, the graphics are the same. But we then get above Mr Kenny’s article a new headline – two of them, in fact:
Cash For Conversation: Is Hockey’s Ear On The Auction Block? 5 Which makes explicit the sale aspect of this, we would say, your Honour. I might also say that Mr Kenny himself, as I said earlier, came up with some headlines – proposed headlines. One of them was:
10 Cash For Conversation.
It seems as though Mr Holden has picked up that suggestion by Mr Kenny as a headline and used it as a sub-headline, after adopting Mr Goodsir’s words, “Treasurer For Sale”. Your Honour, the second – equally, part of The Age first 15 matter complained of, but behind the next tab, is the iPad material. So, again, I don’t need to deal with that separately, except to point out that Mr Kenny does not appear as part of – Mr Kenny’s material does not – yes – Mr Kenny’s material appears at the – on the last two pages of that material, as would have been seen on an iPad or other form of tablet. Next, your Honour, is the – and this is the second matter complained 20 of for The Age – this is the internet publication.
Again, I don’t need to deal with it separately. The differences, such as they are, can be isolated in closing address, your Honour – in closing written submissions. The next material behind tab 9 is the – is the mobile app, as it would have appeared, and 25 then the – and what one gets by – if your Honour drops down to the bottom of that page, your Honour will see:
Joe Hockey’s Budget Day Party.
30 And, over the page – over the next page:
Treasurer For Sale: Joe Hockey Offers Privileged Access.
And the reference to Sean Nicholls’ article: 35 Treasurer ..... Hockey Offers Privileged Access to ..... Business Leaders.
And then the article itself is set out on the last three pages – last four pages of this written material. In this case, your Honour, neither the questions to Mr Hockey and 40 the Liberal Party are set out, nor is the Kenny article set out there. We then come, your Honour, to the Tweets. And your Honour will be aware that the way this works is you receive on your mobile device, iPad, tablet, phone – whatever – a message that says what appears there:
45 Treasurer Hockey For Sale.
TheAge.com.au federal politics, obviously:
.NSD489/2014 9.3.15 P-41 ©Commonwealth of Australia MR McCLINTOCK
Treasurer Hockey For Sale.
That’s what the reader saw. It is analogous – or the recipient saw. It is analogous to the placard and must fail for the same reasons that the placard must fail, and it then 5 says:
View summary.
As I said, your Honour, we’re in a position to isolate because The Age has belatedly 10 – like, last Friday – supplied us with a number of people who actually did the clicking and, therefore, viewed the material in extenso, and it leaves about 200 and – how many – 279,000 people who received the Tweet but did not click – did not go further and read the material in question. And so, again, clearly in the same position for those 279,000 people as the – as the – I apologise, your Honour – as the placard. 15 Your Honour, the remaining behind tab 11 – behind tab 11 is what readers, who got the Tweet, actually got if they clicked upon the link on the Tweet itself, and your Honour will see:
Treasurer For Sale: Joe Hockey Offers Privileged Access. Joe Hockey is – 20 I’m sorry. That actually is another Tweet, your Honour. I apologise. And then the next one, your Honour, is – the next one, which your Honour will see is behind tab C, is the Tweet:
25 Treasurer For Sale: Joe Hockey Offers Privileged Access.
And then behind that appears what the reader would get – those few who actually clicked on it – and read the – they would have got that material that appears behind the – behind that first page. Once again, your Honour, there’s Mr Kenny’s material 30 and the questions to Mr Hockey and the Liberal Party to not appear there.
Your Honour, I then come to the Canberra Times and its publication on – also on 5 May. It’s very different from – in some ways, from what occurs in – what occurred in the Herald. Your Honour will see that the headline – and as I said, Mr Uhlmann 35 gives evidence in his affidavit about why this is the case:
Paying their way: How a select group buys access to the Treasurer.
He obviously thought that was a safer bet than: 40 Treasurer for sale.
The text of the article is, relevantly speaking, the same. And then there’s a jump your Honour will see continue at page 4. And there’s then the graphic, again, with 45 Mr Eddie Obeid Junior. Immediately under the graphic is Mr Kenny’s article again with the same opening. And the continuation of the – of Mr Nicholls’ article under the heading, “Paying Their Way: How a Select Group Buys Access”, and so on.
.NSD489/2014 9.3.15 P-42 ©Commonwealth of Australia MR McCLINTOCK
Your Honour, then the – then we have the Canberra Times tablet app publication. Again, I don’t need to trouble your Honour separately with that. “Treasurer for Sale: Joe Hockey offers privileged access”. Next to, “Coldest Morning of the Year”. Something ..... lived in Canberra would no doubt appreciate. And, again, the – it’s 5 the material – the same material is set out there and, indeed, Mr Kenny’s article is also set out. Your Honour will notice, however, one significant difference between the printed issue and this edition. The headline is, “Treasurer for Sale”. Mr Uhlmann says in his affidavit that he rejected that headline for the print edition. Somehow, it has worked its way into the iPad addition. Mr Uhlmann doesn’t explain 10 or, indeed, refer to that fact in his affidavit. I will be interested to hear what he – how he says it happened.
So our suspicion is, your Honour, that he didn’t like it because he recognised immediately that it suggested corruption and, nevertheless, let it go through in 15 relation to the iPad. And, indeed, online too, your Honour, as can be seen from the next and final publication, your Honour, which is the – which is, in effect, the first page of the relevant Canberra Times website, the fetching picture of the big sheep at Goulburn next to – and then below that to the left, “Hockey’s secretive fundraising lobby”. And then if your Honour goes over, your Honour will see again the 20 headline, “Treasurer for Sale: Joe Hockey offers privileged access”. Once again, no questions and no Kenny article appear in there.
Your Honour, those are the articles. I won’t take your Honour through the individual imputations. They are set out in the schedule. The print ones could, of course, go 25 further than the placards and rely upon concepts such as selling privileged – corruptly selling privileged access to himself to a select group, including business people and business lobbyists in return for donations to the Liberal Party, knowing ..... Liberal fundraising forum within which he was associated to accept money from the corrupt Obeid family and so on. I don’t need to deal with those separately at this 30 stage, your Honour. They are set out in the schedule.
Your Honour, in my submission, at the end of the case, your Honour will be satisfied the pled imputations are conveyed and that the – that no defence exceeds – the defence in relation to the placard is beyond hopeless, the defence in relation to the 35 remainder of the publications is merely hopeless. Your Honour, that’s what I wanted to say in my opening. I will now turn to a couple of housekeeping matters to get them out of the way and then I will call my client.
HIS HONOUR: Yes. 40 MR McCLINTOCK: Your Honour, I formally tender the matters complained of.
HIS HONOUR: All right. Thank you. Now, you had no objection to that - - -
45 DR COLLINS: No objection, your Honour.
.NSD489/2014 9.3.15 P-43 ©Commonwealth of Australia DR COLLINS
HIS HONOUR: - - - Dr Collins? Well, I will number these individually. Exhibit A1, Sydney Morning Herald placard – I take it you don’t have any objection to me including the date 5 May in that, Dr Collins?
5 DR COLLINS: No, your Honour
HIS HONOUR: I intend to include the date in relation to each of these. Sydney Morning Herald placard for 5 May 2014, being annexure A, referred to in paragraph 3 of the statement of claim in NSD489/2014. 10
EXHIBIT #A1 SYDNEY MORNING HERALD PLACARD DATED 05/05/14
15 HIS HONOUR: Exhibit A2, Sydney Morning Herald published on 5 May 2014 and containing the articles referred to in paragraph 5 of the statement of claim in NSD489/2014.
20 EXHIBIT #A2 SYDNEY MORNING HERALD ARTICLES REFERRED TO IN PARAGRAPH 5 DATED 05/05/14
HIS HONOUR: Exhibit A3, copy of the article published on Sydney Morning 25 Herald iPad, 5 May 2014, and comprising part of the articles referred to in paragraph 5 of the statement of claim in NSD489/2014.
EXHIBIT #A3 COPY OF THE ARTICLE PUBLISHED ON SYDNEY 30 MORNING HERALD IPAD AND COMPRISING PART OF THE ARTICLES REFERRED TO IN PARAGRAPH 5 DATED 05/05/14
HIS HONOUR: Exhibit A4, copy of article published in the Sydney Morning 35 Herald, 5 May 2014, online (smh.com.au) being the article referred to in paragraph 7 of the statement of claim in NSD489/2014.
EXHIBIT #A4 COPY OF ARTICLE PUBLISHED IN THE SYDNEY 40 MORNING HERALD ONLINE BEING THE ARTICLE REFERRED TO IN PARAGRAPH 7 DATED 05/05/14
HIS HONOUR: Exhibit A5, copy of the Sydney Morning Herald for 5 May 2014 45 mobile publication (m.smh.com.au) being part of the article referred to in paragraph 7 of the statement of claim in NSD489/2014.
.NSD489/2014 9.3.15 P-44 ©Commonwealth of Australia DR COLLINS
EXHIBIT #A5 COPY OF THE SYDNEY MORNING HERALD MOBILE PUBLICATION BEING PART OF THE ARTICLE REFERRED TO IN PARAGRAPH 7 DATED 05/05/14
5 HIS HONOUR: Exhibit A6, The Age, published 5 May 2014, containing the article referred to in paragraph 3A of the statement of claim in action NSD491/2014.
10 EXHIBIT #A6 THE AGE CONTAINING THE ARTICLE REFERRED TO IN PARAGRAPH 3A DATED 05/05/14
HIS HONOUR: Exhibit A7, copy article published in The Age iPad, 5 May 2014, 15 and comprising the article referred to in paragraph 3B of the statement of claim in NSD491/2014.
EXHIBIT #A7 COPY ARTICLE PUBLISHED IN THE AGE IPAD AND 20 COMPRISING THE ARTICLE REFERRED TO IN PARAGRAPH 3B DATED 05/05/14
HIS HONOUR: Exhibit A8, copy of the article published in The Age online on 5 25 May 2014 (theage.com.au) and being the article referred to in paragraph 5B of the statement of claim in NSD491/2014.
EXHIBIT #A8 COPY OF THE ARTICLE PUBLISHED IN THE AGE 30 ONLINE AND BEING THE ARTICLE REFERRED TO IN PARAGRAPH 5B DATED 05/05/14
HIS HONOUR: Exhibit A9, copy of the article published on The Age mobile 35 (m.theage.com.au) and being the article referred to in paragraph 5B of the statement of claim in NSD 491 of 2014. Exhibit A9, copy of the article published on The Age Mobile (m.theage.com.au), and being the article referred to in paragraph 5(b) of the statement of claim in NSD 491 of 2014.
40 EXHIBIT #A9 COPY OF THE ARTICLE PUBLISHED ON THE AGE MOBILE (M.THEAGE.COM.AU) AND BEING THE ARTICLE REFERRED TO IN PARAGRAPH 5(B) OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014 45
.NSD489/2014 9.3.15 P-45 ©Commonwealth of Australia DR COLLINS
HIS HONOUR: Exhibit A10, The Age Twitter published 5 May 2014 and being a copy of the tweet referred to in paragraph 7 of the statement of claim in NSD 491 of 2014.
5 EXHIBIT #A10 THE AGE TWITTER PUBLISHED 05/05/2014 AND BEING A COPY OF THE TWEET REFERRED TO IN PARAGRAPH 7 OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014
10 HIS HONOUR: Exhibit A11, The Age tweet published 5 May 2014 and being the article – or perhaps I should say, being the tweet – referred to in paragraph 9 of the statement of claim in NSD 491 of 2014.
15 EXHIBIT #A11 THE AGE TWEET PUBLISHED 05/05/2014 AND BEING THE TWEET REFERRED TO IN PARAGRAPH 9 OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014
20 HIS HONOUR: Exhibit A12, The Age tweet published 5 May 2014, referred to in paragraph 12 of the statement of claim in NSD 491 of 2014.
25 EXHIBIT #A12 THE AGE TWEET PUBLISHED 05/05/2014, REFERRED TO IN PARAGRAPH 12 OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014
HIS HONOUR: Exhibit A13, the Canberra Times has published 5 May 2014, and 30 referred to in paragraph 3(a) of the statement of claim in NSD 492 of 2014.
EXHIBIT #A13 CANBERRA TIMES PUBLICATION 05/05/2014 REFERRED TO IN PARAGRAPH 3(A) OF THE STATEMENT OF CLAIM IN NSD 492 35 OF 2014
HIS HONOUR: Exhibit A14, copy of the article published on the Canberra Times iPad app 5 May 2014, and being the article referred to in paragraph 3(b) of the 40 statement of claim in action 492 of 2014.
EXHIBIT #A14 COPY OF THE ARTICLE PUBLISHED ON THE CANBERRA TIMES IPAD APP 05/05/2014 BEING THE ARTICLE 45 REFERRED TO IN PARAGRAPH 3(B) OF THE STATEMENT OF CLAIM IN ACTION 492 OF 2014
.NSD489/2014 9.3.15 P-46 ©Commonwealth of Australia DR COLLINS
HIS HONOUR: Exhibit A15, copy of the article published in the Canberra Times online (canberratimes.com.au), published 5 May 2014, and being a copy of the article referred to in paragraph 5 of the statement of claim in NSD 492 of 2014.
5 EXHIBIT #A15 COPY OF THE ARTICLE PUBLISHED IN THE CANBERRA TIMES ONLINE (CANBERRATIMES.COM.AU) PUBLISHED 5 MAY 2014 BEING A COPY OF THE ARTICLE REFERRED TO IN PARAGRAPH 5 OF THE STATEMENT OF CLAIM IN NSD 492 OF 2014 10
HIS HONOUR: Yes, Mr McClintock.
MR McCLINTOCK: Yes, your Honour. I also tender a photograph taken showing 15 the poster as it would have been in situ, at least one place, just as an example of how the poster would have been seen, your Honour.
DR COLLINS: No objection, your Honour.
20 HIS HONOUR: Exhibit A16, photograph of exhibit A1 in situ. And I take it we can incorporate there “on 5 May 2014”?
MR McCLINTOCK: 5 May 2014.
25 HIS HONOUR: And I will incorporate that, then, on 5 May 2014.
EXHIBIT #A16 PHOTOGRAPH OF EXHIBIT A1 IN SITU ON 05/05/2014
30 MR McCLINTOCK: I then tender, your Honour, a bundle of materials which contain the interrogatories and interrogatory answers from the various defendants. It deals with a range of matters. I’ve got one copy for your Honour and one copy for the tender copy. 35 HIS HONOUR: Thank you.
MR McCLINTOCK: I can explain, if your Honour wishes, but I think it’s probably best to address it in closing written submissions. 40 HIS HONOUR: Yes.
MR McCLINTOCK: The first item there your Honour will see is a letter from my learned friend’s instructing solicitors, which contains an admission about the number 45 of people who, via the tweet, came to actually read and download the material.
HIS HONOUR: Yes.
.NSD489/2014 9.3.15 P-47 ©Commonwealth of Australia MR McCLINTOCK
MR McCLINTOCK: And it’s by that process that we come to the 279-odd thousand who saw the tweet, so to speak, in isolation.
HIS HONOUR: All right. 5 MR McCLINTOCK: The rest deals with the readership, the amount circulated, and so on. But it’s probably - - -
HIS HONOUR: Was it one set of interrogatories in each matter? 10 MR McCLINTOCK: Yes, your Honour. It’s probably better, your Honour. Well, they are separate defendants and the information in fact is actually maintained separately, even though they are all ultimately Fairfax companies.
15 HIS HONOUR: Yes.
MR McCLINTOCK: It’s probably better, your Honour, to leave it as it stands, to tender it, and then not take your Honour to it in detail right now, but to deal with it in closing address. 20 HIS HONOUR: All right.
MR McCLINTOCK: It deals with things like, for example, the lack of an apology, a formal letter ..... which is relevant, of course, to the quantification of loss and so on. 25 DR COLLINS: We were handed this just before your Honour came on the Bench this morning. I assume it’s accurate and we will verify that we agree with the content of it. If there are any issues, I’m sure that’s a matter that can be resolved between my learned friend and myself. 30 HIS HONOUR: I will receive it now, and you can raise it if you wish, Dr Collins. If you don’t raise it I will assume there’s no difficulty with it.
DR COLLINS: If your Honour pleases. 35 MR McCLINTOCK: ..... interrogatories, your Honour.
HIS HONOUR: Exhibit A17 – I think I can probably describe it as applicant’s interrogatories and respondent’s answers in action NSD 489 of 2014. 40
EXHIBIT #A17 APPLICANT’S INTERROGATORIES AND RESPONDENT’S ANSWERS IN ACTION NSD 489 OF 2014
45 MR McCLINTOCK: It’s really all – it’s three.
.NSD489/2014 9.3.15 P-48 ©Commonwealth of Australia MR McCLINTOCK
HIS HONOUR: Well, I will do those separately.
MR McCLINTOCK: I’m sorry, your Honour.
5 HIS HONOUR: Exhibit A18, applicant’s interrogatories and respondent’s answers in action NSD 491 of 2014.
EXHIBIT #A18 APPLICANT’S INTERROGATORIES AND 10 RESPONDENT’S ANSWERS IN ACTION NSD 491 OF 2014
HIS HONOUR: Exhibit A19, applicant’s interrogatories and respondent’s response in action 492 of 2014. 15
EXHIBIT #A19 APPLICANT’S INTERROGATORIES AND RESPONDENT’S RESPONSE IN ACTION 492 OF 2014
20 HIS HONOUR: Exhibit A20, letter from – I hope I have the pronunciation correctly – Banki?
MR McCLINTOCK: Banki Haddock Fiora. 25 HIS HONOUR: Banki Haddock Fiora to Johnson Winter & Slattery of 7 March 2015.
30 EXHIBIT #A20 LETTER FROM BANKI HADDOCK FIORA TO JOHNSON WINTER & SLATTERY OF 07/03/2015
HIS HONOUR: Yes. 35 MR McCLINTOCK: And finally, your Honour, before lunch, I call upon a notice to produce directed towards The Age. It calls for – and I understand there’s production – one copy of any document recording and/or evidencing any request for legal advice of Peter Bartlett, and one copy of any document recording or evidencing any legal 40 advice as provided by Mr Bartlett in response to the request, as referred to in affidavit 28 of the affidavit of Mark Fuller, affirmed 28 November 2014 in the proceedings. I call upon that, and I understand there’s production.
DR COLLINS: I’m in a position to respond to the call, your Honour. We have two 45 envelopes. The first contains documents produced in answer to the notice to produce as to which there’s no objection of our learned friend’s inspection. The second is a sealed envelope containing a privileged document – or documents over which
.NSD489/2014 9.3.15 P-49 ©Commonwealth of Australia DR COLLINS
privileged is claimed pursuant to section 119 of the Evidence Act. That is documents that came into existence for the purpose of this proceeding as opposed to a waiver of privilege in the documents which we handed to our learned friends, which concerns advice given prepublication. 5 HIS HONOUR: So you’re producing them to the court?
DR COLLINS: Producing them to the court. There is an objection to inspection of the documents in the sealed envelope headed Privilege. There’s no objection to 10 inspection of the documents in the other envelope.
HIS HONOUR: All right. I will record that the court – sorry – that Dr Collins has produced in answer to the applicant’s notice to produce in the matter concerning The Age, two envelopes. One with the notion Documents to be Produced Pursuant to 15 Notice to Produce, 3 March 2015.
Noting that there’s no objection to inspection in respect of those documents.
DR COLLINS: Yes. 20 HIS HONOUR: And a second sealed envelope with the notion Notice to Produce, 3 March 2015, Privilege.
Noting that there is an objection to inspection in relation to the documents contained 25 in that envelope.
MR McCLINTOCK: Your Honour, I seek access in relation to the first envelope - - -
30 HIS HONOUR: All right.
MR McCLINTOCK: - - - and on my learned friend’s assurance that the documents in the second one involve matters to do with the proceedings rather than the underlying facts prior to the 5 May article in The Age. I won’t take that any further 35 but I seek access to the first one.
HIS HONOUR: All right. Well, that access is granted in relation to the envelope marked Documents to be Produced Pursuant to Notice to Produce, 3 March 2015. And refused in respect of the envelope entitled Notice to Produce, 3 March 2015, 40 privilege. And you can tend to that over the break, Mr McClintock.
MR McCLINTOCK: Could we take away from the – could we take it back to my chambers just to read the materials, your Honour?
45 HIS HONOUR: On your usual undertaking to preserve the documents in tact and return them, I will grant that leave.
.NSD489/2014 9.3.15 P-50 ©Commonwealth of Australia MR McCLINTOCK
MR McCLINTOCK: Thank you, your Honour. Thank you very much.
HIS HONOUR: Now, Mr McClintock, we’ve gone past 1 o’clock.
5 MR McCLINTOCK: We have.
HIS HONOUR: Have you completed your - - -
MR McCLINTOCK: I have, your Honour. 10 HIS HONOUR: The documents? So you will be calling Mr Hockey next?
MR McCLINTOCK: Yes, I will.
15 HIS HONOUR: Can I just mention to you this: you did say during the opening that you contemplated leading some oral evidence from Mr Hockey. The normal procedure, as you’re probably aware with affidavits, is that that comprises the evidence-in-chief and that oral evidence isn’t led in addition. Sometimes that can work unfairly in that someone is introduced into the witness box and almost 20 immediately subjected to cross-examination. So I usually allow short oral evidence- in-chief. But, beyond that, no unless there’s some topic which you say for some reason – for good reason, leave should be granted in respect of.
MR McCLINTOCK: Your Honour, the – I don’t propose to be very long. But the – 25 defamation cases uniquely involve – well, it’s not “uniquely”, but they do involve the character and the reaction of the person who brings the proceedings. Everything Mr Hockey wants to say in one sense is set out in his affidavit. But, as I said in opening, it’s bloodless and it doesn’t reveal the real man. And I wanted to ask, in two areas – which I think I mentioned one of them – one is – one is how we came to learn, in 30 general terms – about how he came to learn about the publications and the reactions and what it – how he felt about that and, second, very briefly to deal with the – a matter that is – does go to aggravation of damages which is his knowledge of the falsity of the imputations.
35 HIS HONOUR: All right.
MR McCLINTOCK: They were the two matters that I propose to deal with orally. And I would seek your Honour’s leave to do that.
40 HIS HONOUR: Well, correct me if I’m wrong but both of those topics are dealt with in his affidavit.
MR McCLINTOCK: Yes, your Honour. But it - - -
45 HIS HONOUR: So my expectation then – I will grant the leave perhaps more for the reason I’ve mentioned to you before than the one you’ve mentioned. But my expectation is that that evidence-in-chief will be very short.
.NSD489/2014 9.3.15 P-51 ©Commonwealth of Australia MR McCLINTOCK
MR McCLINTOCK: It will be, your Honour.
HIS HONOUR: Otherwise we defeat the purposes of - - -
5 MR McCLINTOCK: Certainly.
HIS HONOUR: - - - having affidavits. So I’m contemplating nothing more than five, at the most 10 minutes.
10 MR McCLINTOCK: That’s all it will be, your Honour.
HIS HONOUR: All right. We will resume at 2.15. Adjourn the court.
15 ADJOURNED [1.04 pm]
RESUMED [2.14 pm]
20 MR McCLINTOCK: Your Honour, may I return to custody ..... call for documents produced on notice to produce immediately prior to the luncheon adjournment.
HIS HONOUR: Thank you. 25 MR McCLINTOCK: Secondly, could I hand up to your Honour a – the originals of the two affidavits sworn by Mr Hockey in these proceedings, your Honour.
HIS HONOUR: Yes. 30 MR McCLINTOCK: I understand your Honour asked for the originals. Does that mean that your Honour already has working copies?
HIS HONOUR: I have working copies of them. Again, my practice is slightly 35 different from what I think might happen here in New South Wales in that I actually receive them as an exhibit. So we have the original going - - -
MR McCLINTOCK: I see.
40 HIS HONOUR: - - - in as the evidence.
MR McCLINTOCK: In that case - - -
HIS HONOUR: Which is why it’s necessary for you to have the originals in the 45 court.
MR McCLINTOCK: In that case, should I formally tender them in accordance - - -
.NSD489/2014 9.3.15 P-52 ©Commonwealth of Australia MR McCLINTOCK
HIS HONOUR: You can – the normal thing is you will have Mr Hockey – or have the witness sworn, have the witness identify the affidavit and then tender it.
MR McCLINTOCK: In that case, your Honour, I might take the originals back for 5 that purpose. The normal – and your Honour mentioned this, the normal practice here would be to formally read them - - -
HIS HONOUR: Yes.
10 MR McCLINTOCK: - - - or take them as read. In the course of doing that, I was going to say that there have been objections exchanged between the parties as to the affidavits.
HIS HONOUR: Yes. 15 MR McCLINTOCK: But that Mr Dawson, Dr Collins’ junior and Ms Chrysanthou, my junior, have got together last week - - -
HIS HONOUR: Yes. 20 MR McCLINTOCK: - - - and have agreed all of the – have agreed all of the objections - - -
HIS HONOUR: Yes. 25 MR McCLINTOCK: - - - and there are two – two – there are two paragraphs in Mr Hockey’s affidavits to which that agreement is relevant. They are paragraphs 50 and 64 which, it is agreed, will be read pursuant to section 136 of the Evidence Act as relevant only to hurt to feelings. 30 HIS HONOUR: Yes.
MR McCLINTOCK: To Mr Hockey’s hurt to feelings.
35 HIS HONOUR: Well, you can make those notations at the time you present the witness or tender the affidavit, as the case may be. Again, my usual practice is to receive the affidavits and then hear at the end what use can be properly made of them. But I’m pleased that you’ve sorted out those questions in advance. So we will just note those usages and - - - 40 MR McCLINTOCK: Certainly, your Honour.
HIS HONOUR: - - - we will also note those parts of the affidavits which are not being read or, as I might say, not been received. 45 MR McCLINTOCK: I call the applicant, Joseph Benedict Hockey.
.NSD489/2014 9.3.15 P-53 ©Commonwealth of Australia MR McCLINTOCK
MR McCLINTOCK: Mr Hockey, would you tell us your full name – when you’re seated?---Joseph Benedict Hockey. 10 And you are, of course, the Treasurer of the Commonwealth of Australia?---I am. And you have sworn two affidavits in these proceedings and I will have them shown to you and I will ask you to identify them, respectively, as an affidavit sworn by – that is the first one, the more bulky one, an affidavit sworn by you on 25 September 15 2014. If you have any doubt about the dates, you can see it from – on the front page. Below the title, as you will see, it says Affidavit of Joseph Benedict Hockey, date and – do you see that there?---Yes. Is that the affidavit sworn on that date by you?---It is. 20 The second affidavit, the shorter one, is – you will see – was – there’s the date, 30 January 2015?---30 January 2015. Correct. That’s an affidavit also sworn by you?---It is. 25 I tender those documents, your Honour. HIS HONOUR: All right. Thank you. 30 MR McCLINTOCK: And noting that paragraphs 50 and 64 are relied upon only as hurt to feelings. HIS HONOUR: Exhibit A21, affidavit of Joseph Benedict Hockey sworn 25 September 2014. 35 EXHIBIT #A21 AFFIDAVIT OF JOSEPH BENEDICT HOCKEY DATED 25/09/14 40 HIS HONOUR: Exhibit A22, affidavit of Joseph Benedict Hockey sworn 30 January 2015. 45 EXHIBIT #A22 AFFIDAVIT OF JOSEPH BENEDICT HOCKEY DATED 30/01/15 .NSD489/2014 9.3.15 P-54 J.B. HOCKEY XN ©Commonwealth of Australia MR MCCLINTOCK MR McCLINTOCK: Your Honour, I will have Mr Hockey given a copy – an unmarked copy of - - - HIS HONOUR: Well, we will give him the original. 5 MR McCLINTOCK: And with the leave that I referred to before lunch, your Honour - - - HIS HONOUR: Yes. 10 MR McCLINTOCK: - - - I will ask Mr Hockey these questions: Mr Hockey, how did you first learn of the publications made by the respondents in these proceedings on 5 May 2014?---From – my best recollection, Gemma Daley, my press secretary, rang me in the early – very early hours of the morning after – just after midnight. 15 All right?---And alerted me to them. All right. Did you read them then?---I read online versions and then I went down to the Manuka Newsagency, as I do, and - - - 20 What time – approximately what time was that, Mr Hockey?---Around 6 am. Right. And did you – what happened when you got to the Manuka Newsagency – just for completeness, Manuka is a suburb of - - -?---I’m sorry. Canberra. Suburb – 25 and I live just near there, your Honour. And I saw the front pages, I was just – was stunned. And Matt, the newsagent said, “What’s all this about?”. And I just – I think I just shook my head. And I’ve got a routine, I went across to the bakery for one of their very ordinary cups of coffee and sat there and looked around and the papers are everywhere. 30 How – I take it you saw the headline Treasurer for Sale?---Of course, I did. How did you feel when you saw that?---Devastated. Absolutely devastated. 35 What did you think that headline was saying about, Mr Hockey?---That I’m corrupt. Is there any truth in that statement?---No. Empathetically no. Did any members of your family mention the – what had been published about you 40 to you?---Well, I was obviously most concerned for my wife and my children and, also, for my father. Well, did one of your children say anything to you about the – about these publications, Mr Hockey?---Yes. A few days later, my daughter asked me whether 45 someone was trying to buy me. .NSD489/2014 9.3.15 P-55 J.B. HOCKEY XN ©Commonwealth of Australia MR MCCLINTOCK All right. How did that make you feel?---Well, Mr McClintock, the only thing you walk out of politics with is your reputation and if in the eyes of your own family, as I was in the phone call with my father, there was a doubt – a brief doubt – then what have you got? 5 Tell us about the conversation with your father?---Well, he is very frail. He came as a refugee migrant to Australia. He previously lost everything in his life and his family is his life and I was most concerned for him and my mother and he broke down in tears when I rang him. 10 Finally, Mr Hockey – and I will see if I can do this in short form, your Honour – you are aware of the imputations that have been pleaded in your case, aren’t you? I can have you shown them – a list of them if you wish?---Yes. 15 But you are aware of them, aren’t you?---I am. Are those imputations upon which you’re suing the respondents in these proceedings true or are they false?---The imputation being that - - - 20 I will have them – I will have – just go – just go, if you would, to paragraph 58 of your first affidavit and you will see them set out there. I see you’ve answered my question in paragraph 59, Mr Hockey. I won’t – in – and I won’t, in those - - -?---That’s right. 25 - - - circumstances, take it any further. I – I - - -?---Each of the above imputations is false. Yes. Thank you. That’s all I wish to ask Mr Hockey, your Honour. 30 HIS HONOUR: Thank you. Dr Collins. 35 DR COLLINS: If your Honour pleases. Mr Hockey, do you agree with this statement that a high degree of transparency in donations to political parties and candidates is desirable in order to reduce the potential for undue influence in the political system?---Well, you’re asking me for an opinion about an unsourced 40 comment, Dr Collins. I’m asking you whether you agree with that proposition, Treasurer?---My view is that there must be integrity in the political system. 45 Yes. And an aspect of integrity is transparency in donations to political parties and candidates. Do you agree with that?---Well, the laws lay down a proper process, Dr Collins. .NSD489/2014 9.3.15 P-56 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes. Do I take it from that, Treasurer, that you support the laws which govern the disclosure of private donations to political parties?---Of course. Thank you. In fact, as you understand it, that’s a matter of bipartisan agreement in 5 this country, isn’t it, that it’s desirable that there be disclosure of significant donations to political parties?---Well, in principle, yes. There’s a difference between the main parties, isn’t there, as to the level at which the threshold ought to be set?---There – well, yes and no. 10 Yes. Well, you understand, don’t you, that there was a debate when the Coalition was in government under Prime Minister Howard, as to whether the federal threshold should be raised? 15 MR McCLINTOCK: I object to this, your Honour, on the grounds of relevance. HIS HONOUR: Well - - - MR McCLINTOCK: It may be prefatory to something else, but it’s very hard to see 20 how it can be a relevant to any matter in issue. HIS HONOUR: Yes. Well, that was what I was about to say, that I’m proceeding at the moment that this is prefatory to something else, and so I overrule the objection. 25 DR COLLINS: Well, let me deal with it squarely if I could, your Honour. One of the matters which is central to the decision your Honour will have to make is whether the conduct of the respondents in publishing the matters complained of was reasonable. Reasonableness is a flexible concept. Two of the principal matters going to reasonableness – and this is express in section 30, subsection (3) - - - 30 HIS HONOUR: Dr Collins, I’ve overruled the objection. DR COLLINS: If your Honour pleases. 35 HIS HONOUR: We might have to come to this debate later on, but why don’t we come to it when we have to. DR COLLINS: If your Honour pleases. Treasurer, do you accept that the public has a legitimate interest in knowing who donates to political parties?---Yes. That’s 40 why the laws were framed the way they are. Yes. And do you accept that the policy underlying that interest is that, with disclosure, the public obtains the ability to scrutinise the identities of those who are donating sums of money to political parties?---Well, that’s why they’re disclosed. 45 Yes. You accept my proposition?---That’s why they are disclosed, Dr Collins. .NSD489/2014 9.3.15 P-57 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Thank you. You’ve often made statements in public life, haven’t you, about the importance of transparency and accountability?---Well, I’m always a great believer in accountability and transparency. 5 Yes. I wonder if I – your Honour, we’ve prepared a bundle of documents for the cross-examination of the applicant’s witnesses, in accordance with your Honour’s direction last week that we produce a working copy of anything that goes beyond the documents attached to witness statements. It might be convenient if I hand to your Honour, and to the witness, and to our learned friends, the bundle of documents to 10 which we may make reference in the course of cross-examination. HIS HONOUR: Yes. DR COLLINS: Could I ask you, Treasurer, if you look in the folder, you should see 15 numbers at the bottom right-hand corner of each page, and I want to direct you, if I could, to page 10A. Do you recognise that as a transcript of an interview you gave on 13 April 2010?---Well, Dr Collins, I do many interviews every day. If you’re asking me to certify that this is mine, I - - - 20 No, no. I just - - -?---I can only take you on your word. I - - - Thank you for that. If you go to page 10B, I just want to see whether you adopt this statement. Do you see in the words attributed to you, towards the top of the page, the fourth paragraph: 25 I would say the Australian people need to have total transparency to government. MR McCLINTOCK: Your Honour, I object to this. My learned friend picks, 30 completely out of context, one sentence, which follows a paragraph where Mr Hockey is saying: I tell you what, here’s another example of Kevin Rudd making promises and not delivering. We’re happy to test Kevin Rudd on his promises and on his non- 35 delivery. Then he goes on to criticise Mr Rudd for failing to deliver more beds in nursing homes and so on, and then there’s a reference to pink batts, and school halls, and health. And then Mr Hockey is quoted as saying: 40 I would say that the Australian people need to have total transparency with government. They need Kevin Rudd to come clean. It’s tied to a very specific matter, yet my learned friend tries to pull it out of context 45 and, I assume, give it some general application. Firstly, it’s unfair to the witness because it takes it out of context. Second, Mr Hockey is entitled to read the entirety .NSD489/2014 9.3.15 P-58 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS of the supposed interview to see whether he agrees with it, and thirdly and finally, your Honour, what is the relevance of it? HIS HONOUR: Just remind me, the question to which you took objection was, “Do 5 you agree that’s what you said?” or, “Do you agree that the statement attributable to you is one that you said?” MR McCLINTOCK: It was asking whether he – I took it to mean, and I may be wrong - - - 10 HIS HONOUR: Just remind me what the question was. MR McCLINTOCK: I thought it was, “Do you agree that the Australian people need to have total transparency in government?” I thought it had gone beyond, “Did 15 you say”. I may have objected one question too early. HIS HONOUR: It’s possible. MR McCLINTOCK: But I thought it was - - - 20 HIS HONOUR: I think, anyway – Dr Collins. DR COLLINS: Treasurer, you don’t dispute that you - - - 25 HIS HONOUR: I’m dealing with an objection here - - - DR COLLINS: I’m sorry, your Honour. HIS HONOUR: - - - Dr Collins. I haven’t ruled on it. 30 DR COLLINS: No. The basis for the relevance is as I sought to outline a moment ago, your Honour. One of the matters your Honour will have to decide is the extent to which the matters complained of relate to a matter of public interest, and the extent to which they relate to the public performance of the functions of this 35 applicant. MR McCLINTOCK: ..... concede public interest. HIS HONOUR: Mr McClintock, I’m hearing from Dr Collins at the moment. 40 DR COLLINS: I’m surprised my friend didn’t concede it, but, your Honour, reasonableness is a flexible characteristic. It’s one thing to have an intuitive understanding as to why these matters are of public interest and relate to the public forms of functions, but your Honour is entitled to hear evidence as to why we say 45 that’s so central. .NSD489/2014 9.3.15 P-59 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: All that might be true. All that might be true, but the point that Mr McClintock has made about the context seems to have some force. You’ve put this in front of Mr Hockey. He has had hardly any chance to read through the entire document. It seems to be evident from the passage commencing, “Joe Hockey”, at 5 point 2 on the page that the context is a very different one from that with which we’re presently dealing. DR COLLINS: Yes. But I’m asking a general question - - - 10 HIS HONOUR: There are requirements for fairness here. DR COLLINS: Yes. I’m asking a general question about the importance of transparency and accountability of government. I can do it without reference to the transcript, if that assists. 15 HIS HONOUR: I would have thought you could, and although Mr Hockey didn’t answer your questions before directly, you didn’t press the questions in the form you put them before, but I would have thought he answered them sufficiently to indicate that yes, he did agree with that, that those are desirable elements of our democracy. 20 DR COLLINS: I understood him to be saying that as well, yes. Is that right, Treasurer?---Sorry? You agree with the proposition that transparency and accountability are fundamental 25 to the health of the Australian polity?---Yes, I do. Thank you. Now, Treasurer, you’ve been critical from time to time in the past of the extent to which your political opponents are reliant on political donations and, in particular, union donations?---Sorry, is that question? That is, yes? 30 Yes?---Yes. And, in fact, it’s a matter you referred to in your End of the Age of Entitlement speech in April 2012. Does that ring a bell?---Yes, the speech does ring a bell. I 35 haven’t got it in front of me, but - - - Well, you do, as a matter of fact?---Well, you do. You do?---Yes, we do. Excellent. Would you like to identify in particular where I 40 said that? Yes?---It’s a fine speech, Dr Collins. Very fine speech, Treasurer. If you go to page 18 – page 8 of the speech, 18 in the 45 folder – and it’s really the third last paragraph on the page to which I could direct your attention, Treasurer. But if you need time to refresh your memory about the context, just say so?---It seems as though they’re my words. .NSD489/2014 9.3.15 P-60 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes, and you adhere to them?---Yes, I do. And the point which you - - -?---I agree with my own words, if that’s what you mean, yes. 5 Yes. You’ve drawn a link, haven’t you, there, between donations to socialist governments on the one hand and an influence on the policies introduced by socialist governments?---Well, the unions only donate to one side of politics, and they are actually affiliated members of the Labor Party, Dr Collins, so they’re actually 10 members of the party. Yes, but I just ask you to attend to my question. You’ve drawn a connection, haven’t you, between the donation of funds from unions on the one hand and an influence on policy on the other?---Yes. Well, that may well be the case. 15 Yes. Well, that’s your view, isn’t it, that union funds have influenced the policies of socialist governments?---Well, yes. Thank you. Your Honour, I tender the speech. 20 MR McCLINTOCK: I object. HIS HONOUR: For what purpose, Dr Collins, are you tendering it? 25 DR COLLINS: We’re going to put submissions to your Honour in closing about the centrality of the topic of public interest explored in these articles to the health of the Australian polity, and this is the Treasurer’s own words, drawing a connection between the making of donations on the one hand - - - 30 HIS HONOUR: Will you be relying on any aspect of this article over and above - - - DR COLLINS: No, just the paragraph. 35 HIS HONOUR: - - - that which you’ve asked Mr Hockey questions? DR COLLINS: No, just the paragraph to which I took the witness. HIS HONOUR: Well, in that event, don’t you have his answers, and those answers 40 speak for themselves? DR COLLINS: Well, I didn’t read the paragraph onto the transcript, your Honour. I invited the Treasurer to read that paragraph and asked him whether he adhered to the content. 45 HIS HONOUR: Yes. .NSD489/2014 9.3.15 P-61 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Unless I put it in the content is not there. HIS HONOUR: Yes. All right. Exhibit A23, transcript of speech entitled The End of the Age of Entitlement, delivered by Mr Hockey on 17 April 2012. 5 EXHIBIT #A23 TRANSCRIPT OF SPEECH ENTITLED THE END OF THE AGE OF ENTITLEMENT DELIVERED BY MR HOCKEY ON 17/04/2012 10 MR McCLINTOCK: Can I take it, your Honour, that is limited to the paragraph my learned friend took Mr Hockey to and any others he takes him to, so I don’t have to worry about this document, except insofar as – I have not read it myself, your Honour, so I don’t know what is in it and he has only just been given it. 15 HIS HONOUR: Yes. Well, I’ve admitted the whole speech, but we might ask Dr Collins in due course - - - DR COLLINS: That’s the only paragraph. 20 HIS HONOUR: - - - at a convenient time, to identify whether there are any other aspects of it upon which he relies. DR COLLINS: No. That’s the only paragraph. I can assure my friend now. 25 HIS HONOUR: Yes. DR COLLINS: Now, Mr Hockey - - - 30 HIS HONOUR: Now, just pause. Unless you have another copy of that bundle, each time you tender one of these, my associate is going to need to have access to the book to mark the exhibit. DR COLLINS: I’ve got one more, your Honour. 35 HIS HONOUR: Thank you. And I take it, Mr McClintock, that you won’t be troubled if my associate marks the copy that has just been provided rather than the one that Mr Hockey has just looked at? 40 MR McCLINTOCK: Not at all, your Honour. HIS HONOUR: All right. Thank you. DR COLLINS: Mr Hockey, you’ve criticised in the past the practice of privileged 45 access being provided by political parties to politicians as well, haven’t you?---Well, I may have, Dr Collins, if you would like to - - - .NSD489/2014 9.3.15 P-62 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes?---I’ve been in politics 19 years. I’m - - - Yes. You - - -?------sure I’ve said a lot of things. 5 You were critical of former Prime Minister Rudd, weren’t you, in 2013, when it was suggested that privileged access was being provided to him?---I can’t recall that specific example. All right. Let me take you to a document and see if this jogs your memory. In the 10 folder before you, could go to page 27. Do you recognise that as a printout of part of your Twitter feed?---Maybe. And at the top of the page we see your image, “@JoeHockey” – that’s your Twitter tag, I take it?---Well, I would think so. There are fake Twitter accounts for Joe 15 Hockey, but I’m assuming this is not a fake account. What’s your Twitter tag?---From memory, it seems to be @JoeHockey, but I can’t – it might be @JoeHockeyMP, I haven’t particularly looked at my tag of late. 20 Do you write your own tweets, Treasurer?---From time to time, most of them. Do you see this one: Access to Rudd at a price – 25 then ellipsis – fact. 30 Does that jog your memory of a tweet - - -?---No. - - - you sent on 16 July 2013?---No, it doesn’t. No. Would you turn the page, please, to page 28. Do you see there an article in the 35 Sydney Morning Herald: Access to Rudd at a price – does that assist with your recollection?---I don’t specifically remember it, but – if I 40 may say. You don’t doubt that you sent that tweet, do you?---Well, again, I don’t necessarily control all my Twitter account tweets - - - 45 Yes?------but sometimes they’re done with approval, at other times others ask if they can post something up. .NSD489/2014 9.3.15 P-63 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I see. Who are the others?---In my office. I see. Now, you see the article Access to Rudd at a Price on page 28, which begins with the paragraph: 5 The Labor Party’s advertising agency has been offering exclusive interviews with Prime Minister Kevin Rudd in exchange for free pro-Labor advertising and editorial. 10 MR McCLINTOCK: Your Honour, I object to this cross-examination on the grounds of relevance. HIS HONOUR: Well, the question hasn’t been completed yet, Mr McClintock - - - 15 MR McCLINTOCK: Fair enough, your Honour. HIS HONOUR: - - - so let’s hear the question and then you can make your objection. 20 DR COLLINS: Treasurer, you would regard that as an undesirable practice? MR McCLINTOCK: I object to the question. HIS HONOUR: And the basis, Mr McClintock? 25 MR McCLINTOCK: Your Honour, relevance. How does it matter to anything whether Mr Hockey agrees with Mr Rudd’s engaging in an undesirable practice? HIS HONOUR: All right. 30 MR McCLINTOCK: Bearing in mind that, apart from that, it seems to me – and it seems to us, at least – completely different from what was being alleged by The Herald and The Age and the Canberra Times against Mr Hockey, but that’s my objection. 35 HIS HONOUR: All right. I overrule that objection. DR COLLINS: Do you need me to repeat the question, Treasurer?---Yes, please repeat the question. 40 Yes. The question was, whether having read the first paragraph of that article on page 28 of the cross-examination bundle, you agree that that would be an undesirable practice, that is, the offering of exclusive interviews to a prime minister in exchange for positive advertising and editorial?---Well, that would appear to be, but I haven’t 45 had a chance to read the whole article. .NSD489/2014 9.3.15 P-64 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Well, take your time if you need to, Treasurer, but the question I’m seeking to get you to attend to is whether you accept that it’s undesirable for political parties to provide access to politicians at a price of the kind set out in that article?---The opening sentence is: 5 The Labor Party’s advertising agency has been offering exclusive interviews with Prime Minister Kevin Rudd in exchange for free pro-Labor advertising and editorial on youth websites. 10 Yes?---Well, that would appear odd for a number of reasons. Firstly, they’ve been pretending they’re exclusive interviews, when clearly they’re not if they’re offering them to many people. Secondly, it’s an exchange for free pro-Labor advertising and editorial, which is buying editorial on youth websites. 15 Yes?---Well, that seems rather odd behaviour. Undesirable?---Well, it would appear undesirable, but - - - Because it’s connecting - - -?------I see that the Prime Minister denied it was 20 happening. Yes. Undesirable, though, Treasurer, because it connects the question of access with the question of influence or the provision of something in return?---Well, the suggestion - - - 25 MR McCLINTOCK: I object to that. There’s nothing about influence in that paragraph there. HIS HONOUR: I overrule that objection, Mr McClintock. You can put your 30 question again, Dr Collins. DR COLLINS: Undesirable, Treasurer, because it connects the question of privileged access on the one hand with the question of influence or something in return on the other?---Well, that’s your interpretation, Dr Collins. I mean, if they’re 35 pretending to have editorial, it’s meant to be independent editorial, so it’s a very slow way of getting ..... way. Yes, but would you please attend to my question. The reason you see it as being undesirable is because of the connection between access on the one hand and what is 40 given in return on the other?---Well, I accept that. Thank you. Were you in court when Mr McClintock opened your case this morning, Treasurer?---Yes, I was. 45 The whole – did you agree with his statement that: .NSD489/2014 9.3.15 P-65 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS In the rough and tumble of political life, harsh things will be said, even false things, about our elected representatives. ?---Yes, I do. 5 Robust language is part and parcel of life in a robust democracy?---Yes, it is. There are, in this country, constant heated debates about both policy and personality?---Correct. 10 And do you accept this, that you give as good as you get when it comes to criticism of your political opponents?---Yes. You have, in the past, accused political opponents, such as the current opposition 15 leader, of lying?---I may have, yes. Yes. Being incapable of telling the truth?---Being – I’m sorry? Incapable of telling the truth?---That may be the case. 20 Yes. You don’t mean that to be literally true in relation to the present opposition leader, I take it?---Which opposition leader did I say that about? Mr Shorten, I’m sorry. I asked about Mr Shorten?---Well - - - 25 MR McCLINTOCK: Your Honour, I object to that question. Unless my learned friend takes Mr Hockey to the actual document, he can’t possibly answer that question, being, “You didn’t intend it literally”. And, for example, if it was said in Parliament, there are other considerations involved there. 30 HIS HONOUR: Yes. DR COLLINS: I will go to a document, your Honour. I put to the witness that he has from time to time accused Mr Shorten of lying. He agreed with that proposition. 35 I said, “Have you said in the past that he’s incapable of telling the truth”, and he agreed with that proposition. And I asked him whether that statement was literally true and my friend objected. HIS HONOUR: Were you inquiring about a statement he has made in Parliament or 40 outside Parliament? DR COLLINS: No. Outside Parliament. HIS HONOUR: Perhaps you ought to make that plain so that Mr Hockey proceeds 45 on that understanding - - - DR COLLINS: No. I accept. Of course we can’t - - - .NSD489/2014 9.3.15 P-66 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS THE WITNESS: I may have said that. HIS HONOUR: - - - and we all ought to be proceeding on that understanding. 5 THE WITNESS: I may have said that. Yes. DR COLLINS: Outside Parliament, Treasurer?---I may have said that. Yes. Well, have a look at page 29 in the folder, would you. Do you recognise that as 10 a Tweet that you composed?---It may be. Well, is it yes or no, Treasurer? MR McCLINTOCK: Well, I object to that. 15 THE WITNESS: Well, I – Dr Collins, I have literally hundreds, if not thousands, of Tweets, and I haven’t looked at this particular one, but I’m happy to assist the court and accept that it is mine, but asking me to swear that it’s absolutely mine – I can’t swear absolutely, but I will give you the benefit. 20 DR COLLINS: Thank you. It’s a photo of you with Neil Mitchell, a Melbourne radio announcer, and someone else, apparently in a radio studio?---Yes. Yes. And the text begins: 25 With Bill Shorten - - - ?---The Photo is accurate. 30 Thank you. The Tweet begins: With Bill Shorten and Neil Mitchell on 3AW after Labor’s costings lies were exposed. This Government can’t tell the truth. 35 ?---Yes. That may well be the case. Yes?---And it’s true. That the Government can’t tell the truth?---No. That they were telling costings lies 40 about us. I see. So - - -?---As was evidence when Mr Rudd did his press conference. Thank you. I tender that Tweet, your Honour. 45 MR McCLINTOCK: I object, your Honour. .NSD489/2014 9.3.15 P-67 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: On the basis of? MR McCLINTOCK: Again, relevance, your Honour. 5 HIS HONOUR: All right. Exhibit R24, Joe Hockey Tweet, 29 August 2013. And my associate has pointed this out to me – I think I made the last exhibit as A23. I should have made that as R23. So I will correct that. 10 EXHIBIT #R23 JOE HOCKEY TWEET DATED 29/08/2013 HIS HONOUR: Yes, Dr Collins. 15 DR COLLINS: Treasurer, I take it from your last answer you don’t resile from the content of the Tweet to which I took you?---No. Thank you. Can I ask you the same question about page 30. Do you recognise that as a Tweet you sent on 9 August 2013?---Again, I say – I’m assuming they are mine. 20 Yes. So this one says: So at what point will – 25 is that a fact checking organisation: ...check Kevin Rudd on his GST lies? Vegemite GST? Really shrill and hysterical. 30 Is that another example of a circumstance where you considered the former Prime Minister to have lied?---Well, yes, because he was claiming we were introducing – we were introducing new GSTs. Yes. Thank you?---Extending the GST on to Vegemite and a range of other things, 35 so - - - You don’t resile from the content of that Tweet?---Well, it’s completely wrong, obviously. 40 And you don’t resile from its contents?---No. Thank you. I tender that Tweet. HIS HONOUR: Exhibit R25, Joe Hockey Tweet of 9 August 2013. 45 EXHIBIT #R25 JOE HOCKEY TWEET DATED 09/08/2013 .NSD489/2014 9.3.15 P-68 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Treasurer, the next page – page 31 – this one is a Tweet of 6 August, again, about lies I relation to the GST. This time, nothing worse than a hypocrite! 5 You recollect sending that one?---I may have. Yes. And you don’t resile from its contents?---Well, I can’t recall the ALP ..... GST, but - - - 10 You considered - - -?---If you’re looking to go through every word that I’ve ever uttered, Dr Collins, we could be here a while. Not every word, Treasurer. I assure you. But I’m seeking to have you tell his Honour whether you resile from the statement on that document calling Mr Rudd 15 “nothing worse than a hypocrite”?---Well, I can’t recall what the ALP ..... so I can’t give you an answer. I see. But you consider it part of the rough and tumble of political life to call your opponents hypocrites?---As they do me. 20 As they do you. Yes. Thank you, Treasurer. I tender that Tweet. MR McCLINTOCK: ..... objection to these documents, your Honour ..... objecting every time, and it is an objection on the ground of relevance, but which, of course, 25 can be sorted out later. HIS HONOUR: Exhibit R26, Joe Hockey Tweet of 6 August 2013. 30 EXHIBIT #R26 JOE HOCKEY TWEET DATED 06/08/2013 DR COLLINS: Treasurer, page 32, do you recognise that one?---It may – I say again, it may well be mine. 35 It was your view that Mr Rudd, as at 6 August 2013, kept repeating the old lies and was sad?---Well, he did. Just if you would answer my question, please, Treasurer. That was the view you 40 held – that he had kept repeating the old lies and was sad?---Well, I – Dr Collins, I don’t have the background information to each treatment that you’re asking me to verify, so, I mean, quite frankly, if you want to – if you want to provide me with all the background information and what was around at the time of the Tweet, I’m happy to provide a verification process. 45 .NSD489/2014 9.3.15 P-69 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS So is this your answer, Treasurer: that you don’t recollect, as at 6 August, whether you considered that Mr Rudd was repeatedly telling lies?---Again, I haven’t got the political fact check in front of me. 5 Yes?---And I don’t know the circumstance upon which he just repeated the statement, so if it assists the court, your Honour, I’m happy to accept these are mine, but I’m being asked to verify things that I have no background information on. I am mindful that I am under oath in a court. 10 HIS HONOUR: Right. Well, there’s a distinction. Some of Dr Collins’ questions might have asked as to your current view about these things, and it’s understandable that you would say, “Well, I would need to know more about it and to refresh my memory about these things before I gave that answer”. Dr Collins last question, although, I think, was directed to your state of mind at the time. So, having pointed 15 out that distinction to you, I will it to him to follow that up with you. DR COLLINS: Yes. The question was: you don’t doubt that as at 6 August 2013 your view was that Mr Rudd was repeating the same old lies and that it was sad?---He may have been, Dr Collins. 20 Yes. I’m asking about your state of mind, Treasurer?---My state of mind on 6 August 2013 would have been influenced by what Mr Rudd had said, what political fact PolitiFact found and the circumstances upon which it was said. 25 And you accept that you either wrote this Tweet or it was sent under your authority?---Well, it appears to be so. Yes. Thank you. I tender the Tweet. 30 HIS HONOUR: Noting Mr McClintock’s objection, exhibit R27, Joe Hockey Tweet of 6 August 2013. EXHIBIT #R27 JOE HOCKEY TWEET DATED 06/08/2013 35 DR COLLINS: Could I ask you to turn to the next page, please, Treasurer. Now, this appears to be a Tweet from 27 November 2012, at a time when Julia Gillard was the Prime Minister. Do you recognise that is a Tweet you sent at that time: 40 PM thinks she is really clever refusing to answer questions in Parliament. What a disgrace? ?---Again, same principle applies. 45 Yes. Well, do you accept that as at 27 November 2012 you held the view that Julia Gillard’s behaviour in Parliament was a disgrace?---Well, it wasn’t just that though. .NSD489/2014 9.3.15 P-70 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS You considered it disgraceful on other levels, did you?---I was very disappointed. You believed the Prime Minister at the time to be a disgrace?---Well, her answers in Parliament were, from time to time. Yes. 5 Yes. And in other areas you believed her to be a disgrace?---Well, you’re asking me to express an opinion about Julia Gillard. I would rather not, now that she’s no longer in Parliament. 10 Well, I would ask you to respond to the question, please, Treasurer. Did you - - -?---Well, again, I just emphasise it depended on the circumstances. Yes. 15 HIS HONOUR: Well, Dr Collins, does it really matter what his thoughts were? Aren’t you concerned about what he has expressed? DR COLLINS: Yes. I’m concerned about what’s expressed and the appropriateness of what’s expressed, and the question of whether you went to the 20 latter point. HIS HONOUR: Mr Hockey might have all sorts of private thoughts about the former Prime Minister, but they’re immaterial, really, here, isn’t it? 25 DR COLLINS: Well, it’s about the robustness of the political debate in this country. HIS HONOUR: And hence that’s why I put to you: isn’t it about the expression of his thoughts with which we’re more concerned? 30 DR COLLINS: Yes. I won’t press it. The next page, please, Treasurer. At page 34, do you see there a Tweet, 10 September 2012: 35 Labor preventing disclosure of Greens’ policies costed by Treasury debate in- house now. Hypocrites on transparency. What are they hiding? You remember that one, do you?---I do remember it. 40 Yes?---It was highly controversial because the Greens used the Treasury to do some costing on various policies. The Labor Government said that it should always be disclosed and then the Greens and the Labor Party used the numbers in the house to prevent a debate on the issue. 45 Yes. And you held the view that that was hypocritical?---Yes, I did. Yes?---Because they set up the policy. .NSD489/2014 9.3.15 P-71 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS And hypocritical on transparency because, as you understood it, the Greens in their public statements had said that transparency was a fundamental value?---Well, no. From recollection, it was the Greens were using the Treasury to do costings and normally that’s allowed for – and correct me if I’m wrong, normally that is used for a 5 Government and if it’s undertaken by another political party, then it should properly be disclosed. Which, in effect, confirmed that the Greens were in a coalition of sorts with the Labor Government. Yes. So you held the view that it was appropriate to accused them of being 10 hypocrites on transparency - - -?---Yes. - - - in those circumstances?---Yes. Yes. I tender the tweet. 15 HIS HONOUR: Subject to Mr McClintock’s objection, exhibit R28 Joe Hockey tweet of 10 September 2012. 20 EXHIBIT #R28 JOE HOCKEY TWEET DATED 10/09/12 DR COLLINS: Thank you, your Honour. And the last one, Treasurer, on page 35, do you recognise that as a tweet you sent or authorised on 21 August 2012?---Well, 25 again, I’m assuming it is mine. Yes: Labor’s insultingly stupid and flawed attacks on Tony Abbott are a disgrace. 30 They are sexist and wrong in fact. More desperate Labor lies. ?---Mmm. And, again, you see it as part and parcel of political debate to use that kind of 35 language publically?---Well, it has been used. Yes. You think it appropriate to use words like “disgrace” to describe your political opponents? 40 MR McCLINTOCK: Well, I object to that. That’s not a ..... characterisation of what’s said in the tweet. DR COLLINS: Consider it - - - 45 HIS HONOUR: Yes. Dr Collins. DR COLLINS: Yes. I will reframe it, your Honour. .NSD489/2014 9.3.15 P-72 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: Question withdrawn. DR COLLINS: You consider it appropriate language, Treasurer, I assume to accused – to brand an attack on a politician on your side as being insulting stupid, 5 flawed, a disgrace, sexist, wrong in fact and consisting of desperate lies?---Well, that is part of the debate that you could have if people are making very serious allegations against someone. Yes. And that language is appropriate to your mind?---When used in the right 10 context - - - Yes. Thank you?------in the right environment. I tender the tweet. 15 HIS HONOUR: Subject to – or overruling, perhaps I should say, to Mr McClintock’s objection, exhibit R29 Joe Hockey tweet of 21 August 2012. 20 EXHIBIT #R29 JOE HOCKEY TWEET DATED 21/08/12 DR COLLINS: Treasurer, could I ask you about an interview you gave to Sarah Ferguson on the ABC’s 7.30 program just after delivering the budget on 13 May last 25 year. You recollect going to the 7.30 studio?---I do. And do you recollect the first question that was put to you: Is it liberating for a politician to decide election promises don’t matter? 30 ?---Well, if you say that’s what she asked then I accept that. Yes. You understood there to be an implication in that question immediately, didn’t you? Namely that you weren’t a man of your word. You weren’t to be taken on 35 trust. MR McCLINTOCK: Your Honour, I object to this. This has got nothing to do with anything. 40 HIS HONOUR: Yes. Dr Collins? DR COLLINS: It’s the same point, your Honour. I’m seeking to establish the robustness with which political debate is carried on in this country. And there is a point to it, which I will come momentarily. 45 HIS HONOUR: I will allow the question. But I must say this one seems to me to be getting away from it a bit. So you better come to the point pretty quickly. .NSD489/2014 9.3.15 P-73 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Yes. I will come to the point - - - HIS HONOUR: Yes. 5 DR COLLINS: - - - if your Honour would just allow me for a moment. You accept there was an implication – a very negative implication in that question, don’t you, Treasurer?---Well, there was an independent assessment of that interview and they found that she was heavily biased. I chose not to comment on it and out of - - - 10 Yes. You understand I’m not asking - - -?------respect for the independence of the ABC and I would like to be able to keep that - - - I’m not asking about the - - -?------rather than passing political comment on the interview itself. 15 Yes. You understand, Treasurer, I’m not asking you about the independent review. I’m asking about your view. You understood there to be a very negative implication in that question?---From memory, yes. 20 Yes. And the implication was that you or the Government had been elected on the basis of having made promises that were now being broken? MR McCLINTOCK: I object to that question for the same reason, your Honour - - - 25 HIS HONOUR: I overrule that objection. Perhaps – repeat your question, Dr Collins. DR COLLINS: Yes. The implication in the question, Treasurer, I’m suggesting to you is that the – you and the present Government had been elected on the basis of 30 election promises that you didn’t consider yourselves bound by?---So – what are you suggesting, Dr Collins? I’m trying to interpret what you’re suggesting here. Just focus on the question - - - 35 HIS HONOUR: Right. Dr Collins, I’m unclear as to whether you’re asking about what he understood at the time or whether – what he understands now in the cold light of day being able to appraise that question. DR COLLINS: Well, both. Treasurer, when the question was put to you in the 7.30 40 studio, you appreciated immediately, didn’t you, that it carried a very negative implication?---Sure. And the implication was that you and the Government had been elected on the basis of promises that you didn’t intend to keep?---It – it wasn’t an implication. It was 45 explicit. .NSD489/2014 9.3.15 P-74 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes. It was quite explicit. What was being said, I suggest to you, is that you had been elected on the basis of having lied to the Australian people. MR McCLINTOCK: I object to that. 5 HIS HONOUR: Same basis, Mr McClintock? I overrule that objection. THE WITNESS: I objected to the question. I answered the question, Dr Collins. 10 DR COLLINS: Yes. But you understood it to be a very serious implication that you and the current Government had lied to the Australian people?---Every question I get has serious implications. Yes. But what about this question, Treasurer, you understood, didn’t you, that the 15 implication in Sarah Ferguson’s question was that you and the Government had lied to the Australian people?---Well, where is my response? No. I’m just putting the question to you, Treasurer?---Well, you’re asking me to go back to my train of thought at that time. 20 Yes?---I would like to refresh my mind with the interview - - - MR McCLINTOCK: I object - - - 25 THE WITNESS: - - - that you’re referring me to a year ago. MR McCLINTOCK: I object to this on the grounds of fairness, your Honour. He has been asked about a question without being shown a transcript of it. It’s – this is not some form of memory test. 30 HIS HONOUR: Yes. MR McCLINTOCK: And I fear that something else is going here, which is an attempt to embarrass my client politically. 35 HIS HONOUR: All right. Well, Dr Collins, this is a series of questions about Mr Hockey’s understanding of a question asked of him – this is a journalist? DR COLLINS: Yes. 40 HIS HONOUR: Admittedly, at an acute political time - - - DR COLLINS: Yes. 45 HIS HONOUR: - - - about a series of questions about what he understood was the effect of the journalist’s questions. .NSD489/2014 9.3.15 P-75 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Yes. HIS HONOUR: Tell me, what is the relevance of this? 5 DR COLLINS: I’m about to come to it, your Honour. Let me deal with it squarely. The Treasurer was recently asked what he felt about that interview and his response was: My feeling don’t really matter. 10 And I’m going to whether this is just part and parcel of the robust nature of political debate in this country. HIS HONOUR: Well, I uphold Mr McClintock’s objection in relation to that. If – 15 as I understand that, that’s an argument relating to – sorry – your reliance on that response relates to this particular interview by this particular journalist. On that basis, I uphold the objection. DR COLLINS: If your Honour pleases. Now, Treasurer, I would like to ask you 20 some questions about the North Sydney Forum, if I could. The Forum was conceived of in about April 2009?---That may be the case. It was your idea, wasn’t it, in conjunction with the president of the North Sydney Federal Electorate Conference?---At the time, Dr Collins, there was no Chamber of 25 Commerce in North Sydney and I was very keen to set up a Chamber of Commence and I discussed it with Robert Orrell, who was a small business man, and said that there was a need to set up a chamber of sorts, a business networking group in the local area. 30 Yes. Now, Mr Orrell – O-r-r-e-l-l – he was already the president of the Federal Electorate Conference in your electorate?---He may have been at the time. Yes. And he had been your campaign director at the time of your first election to the Federal Parliament?---From memory, yes. 35 Yes. And he - - -?---In 1996. Yes. And he became the deputy chair of the body that is known as the North Sydney Forum?---Well, he may have been. But I can’t verify that. 40 I see. In its original conception, the idea was that the North Sydney Forum would be a form of Chamber of Commerce for your – for businesses in your electorate?---That’s the way I saw it. Yes. 45 And, to your mind, has it remained true to that mission?---It certainly brings diverse business people together and people can come along – business people come – come along and network with each other. .NSD489/2014 9.3.15 P-76 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS But it wasn’t a Chamber of Commerce in the ordinary sense, was it, Treasurer, because the intention was always that membership fees would become donations to the Liberal Party?---Well, that was a decision of Mr Orrell. 5 I see. Well, you were kept informed of the establishment of the North Sydney Forum, I take it?---I knew it was being established. Yes, I did. And you knew that that was the model that it was going to follow?---Well, I left that to Mr Orrell and the others because I didn’t have time to micromanage the 10 establishment of it. Yes. I just want to suggest to you that the entire purpose of the Forum was to capitalise upon your personal franchise and fundraising ability?---Well, you would need to ask the people that set it up. 15 Yes. Well, are you saying you didn’t have that understanding?---I would have worked with my conference to establish it. But there were many other forms of fundraising around at the time. 20 Yes. You saw the submission that went to the Liberal Party Finance Committee for the proposed forum, didn’t you?---I don’t recall having seen that. I see. Was this part of the original conception, Treasurer, that memberships of the forum would only be available to individuals and corporations that were based in 25 your electorate?---Well, that was, I remember, part of the intention of setting up a Chamber. But I know it was very hard to establish an organisation that was limited solely to the local area. Because, naturally enough there were people that lived in my electorate that lived across – that worked across the harbour and wanted to be part of the process. 30 Yes. But members had to have some connection to your electorate in order to become members of the forum, is that the - - -?---Not – not particularly. I see. Wasn’t there thought given to the fact that you might get approaches for the 35 Forum from people outside the electorate and they should be funnelled through to a different body called the Millennium Forum?---I have no idea. I see. Can I ask you please, Treasurer, to look at page 36 in the folder. 40 MR McCLINTOCK: There’s two page 36s. DR COLLINS: Is there? THE WITNESS: Sorry. Which page 36 is that? 45 .NSD489/2014 9.3.15 P-77 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Sorry, Treasurer. Do you see a document dated 14 April 2009: Proposed Joe Hockey Forum Submission to Finance Committee?---Sorry. What’s the number at the bottom right-hand corner? 5 36. But I think my friend is telling me there might be two pages with that number on there?---I have only one page 36. It has - - - There might be something - - - 10 HIS HONOUR: Keep turning over, Mr Hockey?---Sorry? Keep turning over and I think you will come to it?---Sorry. DR COLLINS: If you look for the date 14 - - - 15 THE WITNESS: 41, 42, 40 - - - DR COLLINS: If you look for the date 14 April 2009 towards the top left of the page?---I’m sorry. I haven’t got it, Dr Collins. I’ve only got one page - - - 20 HIS HONOUR: Can you find page 38 and then turn back two pages?---Sorry. I don’t have - - - Right. I will ask the - - -?---I only have a meet Bill Shorten for $3300. 25 Right. I will ask the orderly to show - - -?---And page 37 is two lines. Just pause. Just pause. I will ask the orderly to take the folder and show it to Dr Collins and he will identify the page - - - 30 DR COLLINS: Thank you, your Honour HIS HONOUR: - - - he is interested in. 35 DR COLLINS: Yes ..... something has gone wrong with the collation of the folder at that point. Your Honour, we’re going to replace the confused page with the correct pages with my friend’s consent. Thank you. THE WITNESS: You’re not replacing anything that I certified, are you? 40 DR COLLINS: No. Certainly not, Treasurer. I hadn’t stooped to that yet. Now, do you see in front of you now, Treasurer, a document headed – it has got 14 April 2009: Proposed Joe Hockey Forum Submission to Finance Committee?---Yes, I do. 45 Just take your time to read that, and the question is going to be whether you’ve seen that document before, but take as long as you need?---Right. .NSD489/2014 9.3.15 P-78 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Have you seen that document before?---No. No?---Not that I can recall. 5 Yes. Thank you. I wonder if that document could be marked for identification. HIS HONOUR: Exhibit MFI30 – MFIR30, I should say, document with the title Liberal Party of Australia, New South Wales Division, North Sydney Federal Electorate Conference. 10 MFI #R30 DOCUMENT WITH THE TITLE LIBERAL PARTY OF AUSTRALIA, NEW SOUTH WALES DIVISION, NORTH SYDNEY FEDERAL ELECTORATE CONFERENCE 15 DR COLLINS: Thank you?---That’s in relation to the Joe Hockey Forum. Yes?---Which is not the North Sydney Forum. 20 That’s the body that became the North Sydney Forum, isn’t it, Treasurer?---Not that I’m aware of. I see. You see at the bottom of the page – page 36: 25 We’ve appointed an inaugural honorary chairman, Mr Carrozzi, managing partner of PWC. ?---I can see that, yes. 30 Well, Mr Carrozzi became the inaugural honorary chairman of the North Sydney Forum, didn’t he?---He may have. So is your evidence to his Honour you - - -?---From memory. I mean, again, off 35 memory. Yes. You don’t doubt it, do you?---Well, Dr Collins, I haven’t been intimately involved in the operations of the North Sydney Forum. 40 I see?---It has been run by a group of people, including – I don’t know if all of them are in the Liberal Party, but some of them, and they keep me very much at arm’s length from its activities. Yes. Is your evidence you’re not involved in many of the activities of the 45 forum?---No, I didn’t say that. I said I wasn’t involved in all of its operations as you may be suggesting. .NSD489/2014 9.3.15 P-79 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I see?---I would attend functions from time to time, but I was not involved in the committee, or I was not on the committee. Yes. You were kept informed with monthly reports in the early days of the 5 establishment of the North Sydney Forum, weren’t you?---Again, I can’t certify that that’s the case. I see. Just have a look at page 39, would you, in the folder. Can you recognise that, it’s a memorandum from a Mr Mallard, M-a-l-l-a-r-d, to Mr Orrell, re monthly report 10 North Sydney Forum, date 26 May 2009, and then you’re noted as one of the recipients in the line cc?---That’s right. It doesn’t necessarily mean that I’ve read it, but I accept I’m cc’d. Yes. Well, I will just ask you to look at the first – do you see the bold heading: 15 1. Business registration and GST. Do you see that?---Mmm. 20 And then it says: The business name North Sydney Forum is now registered with ownership to the Liberal Party of Australia, New South Wales division, incorporated. 25 You knew that that had occurred at the time, didn’t you?---Dr Collins, I only sought an assurance that everything was kosher with the Liberal Party, that they were fully involved. Yes, I see?---Again, I state I was not micro-managing this issue, quite obviously. 30 Your understanding was always that that would be the structure?---I didn’t get into the details of the structure, no. I see?---That was between my federal electorate conference, those people 35 establishing it, and the Liberal Party. Yes. Now, would you have a look at item 3, design agency, you see in the second half of that paragraph there will be a photo shoot with Joe Hockey and Joseph Carrozzi. You were involved to that extent in the early stages?---Yes. They took my 40 photo. Yes. And that’s because the North Sydney Forum was going to be a fundraising body for your electorate?---It’s because the North Sydney Forum is in North Sydney. 45 Yes. And I’m putting to you it’s because the purpose of it was to raise funds to assist in the financing of your re-election? .NSD489/2014 9.3.15 P-80 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS MR McCLINTOCK: Well, I object to that question. Firstly, it’s imprecise and it’s not clear what my learned friend is exactly asking. Is he asking that, to the knowledge of my client, at the time in 2009? Is he asking about someone else’s intention, such as, for example, the author of this document, Shane Mallard? The 5 question, in my submission, should be clarified and made clear. In any event, it is, in my submission, irrelevant. It may well be covered by your Honour’s previous rulings, but I find it hard to see, in my submission, how it goes to any matter in issue. HIS HONOUR: All right. 10 DR COLLINS: I think it’s to the Treasurer’s understanding of the body which is the subject of the matters that is sued over. HIS HONOUR: I think the question to which objection was taken was a question 15 from you directed to someone’s purpose. DR COLLINS: To the purpose of a body. HIS HONOUR: And if I understood it correctly, it was not Mr Hockey’s purpose 20 but someone else’s. DR COLLINS: I see. I didn’t intend that. Perhaps I will reframe it. Treasurer, you’ve always understood, haven’t you, from April/May of 2009, that the North Sydney Forum was a body established to raise funds to support your re- 25 election?---No. I see. What did you understand as the purpose to it?---It was, as I said, a business networking forum. It did raise money for the Liberal Party, and, specifically, I always believed that my federal electorate conference – which is a separate entity – 30 is responsible for helping to raise money for my re-election. Yes. I see?---They are separate bodies, Dr Collins. Yes. Would you just go to page 43 in the folder, would you, please. Do you see 35 that’s a membership application form for the North Sydney Forum?---Yes. Yes. You’ve seen that before, I take it?---I can’t recall having seen this specific form, no. But - - - 40 Yes. Well, you see – yes, sorry. Go on. I didn’t mean to cut you off?---No, you’re right, you did. I did? Do you see on the right-hand side of the page there’s the logo North Sydney Forum, and then immediately below that, the words: 45 Businesses and community leaders supporting Joe Hockey MP. .NSD489/2014 9.3.15 P-81 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS ?---Mmm. That was your understanding, wasn’t it, of the purpose of this forum? 5 MR McCLINTOCK: I object. If that’s being put as suggesting in some way that it contradicts the previous answer, it does not and it cannot. That’s an unfair question. What the previous question was, was about raising funds. This is about supporting Joe Hockey, which is an entirely different concept. I’m not saying my learned friend can’t ask about this, but I understood this question to be intended to contradict the 10 previous answer, and it cannot do so. I object to it. HIS HONOUR: Dr Collins. DR COLLINS: I press the question, your Honour, and perhaps I can deal with it by 15 asking the Treasurer to look at the first paragraph - - - HIS HONOUR: Well, I’ve put question withdrawn, so I’m not ruling on that. DR COLLINS: Yes. Sorry, your Honour. 20 HIS HONOUR: And you ask your question now. DR COLLINS: Yes. I will just ask you, Treasurer, please, to look at the left-hand column. Do you see the text that begins: 25 I am honoured to be the chairman. Do you see that?---Under the signature of John Hart? 30 Yes. Yes: I am honoured to be the chairman of the North Sydney Forum. It has been established to develop a membership-based network of businesses and community leaders with a common purpose to exchange ideas and provide 35 resources for Joe Hockey. Do you see that?---Yes, I do. Yes. The resources that are being referred to there, you understand that to be the 40 donations of the Liberal Party, don’t you?---No. I see. Just turn over the page, would you. You see there the second page of the application form with the membership fees, $5500, $11,000, $22,000, and at the foot of the page: 45 .NSD489/2014 9.3.15 P-82 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Political donation statement – you will receive a receipt for your membership and this receipt will include guidance in respect to political donation requirements. 5 Do you see that?---Yes, I do. Yes. Well, you understand, reading that, don’t you, that members were paying funds that were going towards you re-election effort? 10 MR McCLINTOCK: I object to that. That is not a fair characterisation of this document. HIS HONOUR: Dr Collins, I think, in answer to your very first question, Mr Hockey said that he couldn’t recall having seen this document before? 15 DR COLLINS: Yes, yes. I’m asking – I’m now putting – putting - - - HIS HONOUR: You seem to be cross-examining him by asking questions about his understanding. 20 DR COLLINS: Yes. HIS HONOUR: So that’s his understanding as he sits here in the witness box looking at it now. 25 DR COLLINS: Yes. HIS HONOUR: What’s the relevance of that? 30 DR COLLINS: Well, we’re seeking to – well, it’s going to credit now, frankly, your Honour. The matter before your Honour – the matter which we’re exploring is the nature, purpose, and connection between the Treasurer and this body, the North Sydney Forum. 35 HIS HONOUR: All right. Can you remind me, what was the question to which Mr McClintock took an objection? DR COLLINS: Yes. The question was, my having taken you, Treasurer, to those passages in the membership application form, I’m asking whether that accords with 40 your recollection that the purpose of the North Sydney Forum was to raise funds to assist in your re-election?---I say again, the original purpose was to establish a business networking forum. And the Liberal Party was running it, and in turn, if they obviously were interested in making it a fundraising vehicle as well, that’s up to them. 45 Do you see on page 44, the second box: .NSD489/2014 9.3.15 P-83 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Sorry, I’m unable to join the North Sydney Forum, but please accept my donation to assist Joe Hockey. That was the purpose of the body, wasn’t it? 5 MR McCLINTOCK: I object to that. THE WITNESS: Well, you would need to ask the forum, Doctor. You’ve got the wrong - - - 10 DR COLLINS: I see. You don’t know, is it? HIS HONOUR: Just pause, Mr Hockey. When there’s an objection, I need to - - - 15 THE WITNESS: Sorry. I’m sorry. I’m sorry. HIS HONOUR: - - - deal with the objection. Yes, Mr McClintock. MR McCLINTOCK: Your Honour, I withdraw the objection. 20 HIS HONOUR: Yes. All right. Now you go on, Mr Hockey?---Thanks, your Honour. I think you have the wrong witness in the box here, Dr Collins. DR COLLINS: I see?---I think you need to ask someone that was involved in this. 25 I see. The evidence you’re giving to his Honour is you didn’t understand that the North Sydney Forum had been established to raise funds to assist in your re- election?---No. I say, again, it was established by the Liberal Party. As I understand it, subsequently, the money raised by the North Sydney Forum went to the main 30 Liberal Party. As I understand it, none of the money raised by the North Sydney Forum came to my re-election. I see. Thank you?---Now, I want to emphasise that this is a matter for those people involved – not something that I’ve been directly involved with. 35 Yes. Thank you. Could I ask you – perhaps I will have that marked for identification as well, your Honour. HIS HONOUR: Exhibit MFI R31, North Sydney Forum membership application 40 form. EXHIBIT #MFIR31 NORTH SYDNEY FORUM MEMBERSHIP APPLICATION FORM 45 DR COLLINS: Thank you. .NSD489/2014 9.3.15 P-84 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Treasurer, could I ask you to look at page 47 in the folder, please. Have you seen a letter of that kind before?---I can’t recall having seen that. The photo at the top – do you recognise that as a photo you posed for at the photo 5 session referred to in the document I took you to before?---Well, Dr Collins, I can’t remember every photo session I’ve had, so if it ..... you’re doing better than me. Yes. Thank you?---But I am smiling. 10 Yes. Now, you had appointed Mr Carrozzi, hadn’t you, to be the honorary chairman of the forum?---I didn’t appoint Mr Carrozzi. You suggested him, did you?---Well, I can’t recall actually. 15 Yes. Is the first paragraph of that letter – does that accord with your understanding of its purpose? The forum has been established to build a membership based network of businesses and community leaders, with a common purpose to exchange ideas and provide input to the Shadow Treasurer, The Honourable Joe Hockey?---Well, they’re the words of Mr Carrozzi. 20 Yes. Do you agree that that was the purpose, as you understood it?---There was – it was an opportunity to exchange ideas and certainly provide input. Yes. The idea - - -?---Shadow Treasurer. Yes. 25 Yes. Entirely appropriate for you to take soundings from as many people as possible for them to provide input to you that could have an impact upon areas of policy that you were developing?---Through many different forums, Dr Collins. 30 Yes. But this one of those forums, wasn’t it?---Well, yes. Yes. And do you agree with what Mr Carrozzi says in the next paragraph – you see on the third line: 35 The North Sydney Forums provides us with a unique opportunity to participate in and to inform critical debate. ?---Well, that’s marketing speak and Mr Carrozzi would have to speak - - - 40 HIS HONOUR: Well, sorry. All you’re being asked at the moment is do you see that’s said. So I imagine the answer is “yes”. What’s your next question, Dr Collins? DR COLLINS: Do you agree that this was a unique opportunity?---A unique 45 opportunity? Yes?---No. .NSD489/2014 9.3.15 P-85 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I see. And then do you see the next sentence: In addition, the North Sydney Forum seeks to build the much needed financial resources to support Joe Hockey and the Liberal team? 5 MR McCLINTOCK: Your Honour, I object to this. My learned is being – my learned friend is cross-examining Mr Hockey on a document he says he hasn’t – can’t recall seeing before, which is not his document, which will not go into evidence, which does not bear any relation to any matter in issue. And I object to it 10 for those reasons. DR COLLINS: Will go into evidence, with respect, your Honour. I will ask for it to be asked for identification and a mechanism has been put in place for having it tendered. And the relevance of it, again – I’m putting to the ..... Treasurer four or 15 five documents all making this point about the purpose of the forum being to raise funds to support Joe Hockey and the Liberal team. HIS HONOUR: Yes. I overrule the objection. 20 DR COLLINS: Do you accept – did you agree with that sentence, Treasurer: In addition, the North Sydney Forum seeks to build the much needed financial resources to support Joe Hockey and the Liberal team? 25 ?---That’s a matter for the forum. Yes. Well, does that accord with your understanding of its purpose?---I don’t know about financial resources to support me. 30 I see. Well, you accept, don’t you, that the North Sydney Forum raised many tens of thousands – perhaps hundreds of thousands of dollars – in the period since it came into existence in April 2009?---May have. May have, Dr Collins. You would need to ask them. 35 Are you not kept informed of the fundraising efforts of the North Sydney Forum?---No. I can’t recall having being told what the balance sheet is or - - - I see?---I can’t recall. But - - - 40 Yes. Thank you. Your Honour, I wonder if that letter could be marked for identification. HIS HONOUR: Exhibit MFIR32, letter from Mr Carrozzi of 5 June 2009. 45 EXHIBIT #MFIR32 LETTER FROM MR CARROZZI DATED 05/06/2013 .NSD489/2014 9.3.15 P-86 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Now, Mr Hockey, could I ask you to go to the next page, please. 47 – I hope it’s A – the home page of the North Sydney Forum website. You see that? You’ve seen that before?---I can’t specifically recall it, but, again, I haven’t been perusing the website of the North Sydney Forum. 5 You see about halfway down the page there’s your smiling face again: Honourable Joe Hockey MP, Member for North Sydney. 10 And then there are some words attributed to you. Did you compose those words and give them to the North Sydney - - -?---I can’t recall having composed those words. I see. Well, can I ask you about the sentiment. It says: 15 One of the challenges in the life of elected representatives is keeping in contact with business and community leaders. You would agree with that?---Yes. I do. 20 And then you say: That is the task I have set for the North Sydney Forum. You see that?---Yes. I do. 25 That’s what you had done, Treasurer, I would suggest to you. You had set a task for the North Sydney Forum?---Well, that’s what it says, but I can’t say that I actually wrote that. I have many people write many things in my name. 30 I see. But you accept - - - HIS HONOUR: But whether you wrote those words or not, did you set the task described there for the North Sydney Forum?---Is to – in keeping in contact with business and community leaders? I asked the North Sydney Forum to keep me in 35 contact with business and community leaders. Yes. DR COLLINS: Yes, by delivering you: ...a program of relevant and in touch policy dialogue. 40 ?---I can’t say I asked that. I see. Well, didn’t you also set a task of: 45 ...developing a sustainable financial base for us going into the next crucial Federal election. .NSD489/2014 9.3.15 P-87 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS ?---I can’t recall saying that either. I see. Now, do you see on the right-hand side of that page another photo of you, this time with a microphone?---Yes. 5 It’s not smiling. “Joining the North Sydney Forum” – do you see here it says: By joining the North Sydney Forum you will become part of a well-resourced business and community network. It’s vitally important to Joe’s ongoing 10 success and the development of effective Coalition policy. Do you agree that that’s an accurate statement of the purpose of - - -?---I didn’t write. I’m asking whether you agree that that’s an accurate statement?---“A well-resourced 15 business community network”. Well, do I agree with it? I can’t verify that it’s right or not. But, you see, what’s being represented here on a webpage with your face on it is that it’s vitally important to your ongoing success and the development of effective 20 Coalition policy; you agree that that was a purpose of the North Sydney Forum?---No. No. The North Sydney Forum, again, was a business-community networking environment where people discuss ideas. I see. So whoever has written that has got it wrong, have they, when they say that 25 this: ...is vitally important to Joe’s ongoing success and the development of effective Coalition policy. 30 ?---Well, if my ongoing success was relying entirely on the North Sydney Forum, then it wouldn’t necessarily have worked. Could you just answer my question. Whoever wrote that has got it wrong, in your mind, have they?---Well, yes. To say “it’s vitally important to Joe’s ongoing 35 success”. Is the next sentence also wrong: The exchange of ideas and policy input is needed to help build the financial 40 resources to support Joe going into the future. ?---Well, again, that’s – that’s – they’re their words. I don’t see - - - And they’ve got them wrong in your mind?---“The exchange of ideas and policy is 45 needed” – it always is. “To build the financial resources” – and I can’t say that’s right at all – “to support Joe going into the future” – I can’t say that’s right either. .NSD489/2014 9.3.15 P-88 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I see. So whoever wrote that, to your mind, got it wrong?---Well, they overplayed it. Massively overplayed it. I see. You understood what the membership structure was for the North Sydney 5 Forum, didn’t you, Treasurer?---No. I see. Your Honour, I should have marked for identification the website at pages 47A and 47B. 10 HIS HONOUR: Exhibit MFI R33 – what is it – downloaded page from the North Sydney website; is that how it’s properly described? DR COLLINS: Yes, your Honour. The homepage, I think is the - - - 15 THE WITNESS: North Sydney Forum. HIS HONOUR: Downloaded homepage from North Sydney website. Yes. North Sydney Forum website, I should say. 20 EXHIBIT #MFIR33 DOWNLOADED HOMEPAGE FROM NORTH SYDNEY FORUM WEBSITW 25 DR COLLINS: Yes. That’s right. HIS HONOUR: Yes. DR COLLINS: Treasurer, could I ask you to go back to page 43, please. Do you 30 see at the foot of the page there’s a list of membership levels and benefits for the North Sydney Forum, full members, corporate and business members and private patrons?---Yes, I can. You were aware, weren’t you, that there were those levels of membership?---I was 35 aware there were different levels of membership. How much it was and what they got, I wasn’t aware. Yes. You understood that the more people paid, the more they had a right to participate in the activities of the Forum?---No, I wasn’t familiar with that. 40 I see. But do you see here a full member, who pays $5500 per year, including GST, gets in the first row five boardroom events. Are you aware of that?---No, I wasn’t. All right?---Including one guest who was not a member of the Forum. 45 .NSD489/2014 9.3.15 P-89 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes. And a private patron who pays $22,000 a year, including GST, had an entitlement to, do you see in the second row, 10 boardroom events including one guest?---Dr Collins, I said I wasn’t familiar with it. 5 But you attended, Treasurer, many events of the North Sydney Forum in the course of a year, didn’t you?---I attended a number of events. Yes. Boardroom events, for example?---Or cocktails. Yes. 10 Yes. Boardroom events, cocktails, private dinners?---I can’t recall any private details. I don’t know what you mean by “private dinners” either. Well, dinners in private homes, for example?---I can’t – I can’t recall attending any dinner in a private home. 15 You don’t recollect a dinner with members of the North Sydney Forum at Mr Carrozzi’s house?---No. You don’t recollect - - -?---I don’t recall – I honestly don’t recall. Perhaps you can 20 refresh my mind. Yes. I’m just asking at the moment whether you have a recollection. Do you recollect a cocktail function at David Murray’s house?---Yes, I do. 25 And that was a North Sydney Forum function at which members were present?---Yes, it was. And one of the benefits of membership of the forum was an invitation, for example, on that occasion to a private cocktail function at Mr Murray’s house?---There were 30 people from – who were friends of Mr Murray’s there as well. Yes. But they were – it was a benefit extended to North Sydney Forum members, as you understood it, correct?---Well, there were – I remember the banner of North Sydney Forum there. Yes. 35 Yes. You attended a launch function for the Forum, didn’t you, on 2 July 2009 at which Nick Greiner was present?---Yes. Yes. That was at the Cruise Bar and Lounge at Circular Quay?---Yes. 40 Yes. Could I ask you to go to page 48 in the folder, please. Do you recognise that as the invitation for the launch party?---Look, it may be. Yes. You see the last line: 45 Business and community leaders supporting Joe Hockey MP. .NSD489/2014 9.3.15 P-90 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS You accept, don’t you, that that was the way in which the forum was being marketed to potential members?---Yes. It may be. Yes. But do I take it from your evidence that that’s not right?---No. 5 No?---I said it may be. No, no. I’m asking whether the sentiment is right. As you understood it, was the North Sydney Forum business and community leaders supporting you?---Well, 10 again, that’s the same question you asked me about 15 minutes ago. Yes?---As I said, it was a business networking function set up by the Liberal Party - - - 15 Yes?------with a goal to raise money for the Liberty Party. Yes. So whoever wrote - - -?---And how it was marketed and what its purpose was in the marketing is up to them. I didn’t write the marketing plan. Nor did I write the invitations. 20 Yes. I’m just trying to pin you on this question if I could, whoever wrote those words: Business and community leaders supporting Joe Hockey MP. 25 To your mind, didn’t get it right?---Well - - - MR McCLINTOCK: I object to that. 30 HIS HONOUR: Yes. Mr McClintock? MR McCLINTOCK: Your Honour, it’s simply not an appropriate way of cross- examining to say – to put it like that. It – and, besides, the words “supporting Joe Hockey” are susceptible to a whole range of interpretations. None of which – and 35 my learned friend is not being specific as to what interpretation it actually is. There’s a huge different – range of meanings. HIS HONOUR: All right. I overrule that objection. 40 DR COLLINS: Treasurer, whoever wrote those words: Business and community leaders supporting Joe Hockey MP. To your mind, they got it wrong?---No. That is a marketing line. So they might be 45 encouraging people to come along to support Joe Hockey. .NSD489/2014 9.3.15 P-91 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes. Yes. Now, do you recollect, Treasurer – I should tender the invitation, your Honour - - - MR McCLINTOCK: I object to the tender. 5 DR COLLINS: - - - and mark it for identification, your Honour. HIS HONOUR: Overruling Mr McClintock’s objection. Exhibit R33 - - - 10 MR McCLINTOCK: 34, your Honour. DR COLLINS: 34, your Honour. HIS HONOUR: 34. Sorry. Exhibit R34, invitation to launch of the North Sydney 15 Forum. EXHIBIT #R34 INVITATION TO LAUNCH OF THE NORTH SYDNEY FORUM 20 DR COLLINS: Mr Hockey, could I ask you to go to page 49?---Mmm. Do you have a recollection of a North Sydney Forum boardroom dinner attended by 25 Malcolm Turnbull, then the leader of the opposition, on 31 August 2009?---To be honest – and please don’t tell Malcolm Turnbull this, I don’t recall this particular event. I see. Do you have a recollection, Treasurer, in the first six months or so of the 30 operation of the Forum having Mr Turnbull attend two events – Mr Turnbull attending two events with you?---Honestly, I can’t particularly recall those events. And to your - - -?---They may well have happened. But I’m just saying I just can’t - - - 35 I see. Do you see this one is an event – against venue, it’s listed Bennelong Room at the Royal Sydney Yacht Squadron in Kirribilli. Does that jog your memory?---No. No. Okay. Thank you. Your Honour, could that be marked for identification? 40 HIS HONOUR: Exhibit MFI R35. DR COLLINS: Treasurer - - - 45 HIS HONOUR: How do I describe this? .NSD489/2014 9.3.15 P-92 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: It’s a running sheet, your Honour, for a North Sydney Forum boardroom dinner with Joe Hockey MP and Malcolm Turnbull MP on Monday - - - HIS HONOUR: All right. Well, I will just call it running sheet for North Sydney 5 Forum boardroom dinner, 31 August 2009. MFI #R35 RUNNING SHEET FOR NORTH SYDNEY FORUM BOARDROOM DINNER DATED 31/08/09 10 DR COLLINS: If your Honour pleases. Treasurer, do you recollect a North Sydney Forum function at Sean’s Table at Sean’s Kitchen in the Star City Hotel and Apartment Complex?---Again, I can’t recall the specific event. 15 Yes?---That might seem odd. But I attend these every night and every day. Yes. Thank you. Your Honour, could I have that marked for identification? 20 HIS HONOUR: This is page 50 you’re asking - - - DR COLLINS: Yes. Page 50. HIS HONOUR: Exhibit MFI R36, running sheet for meeting of North Sydney 25 Forum, 23 September 2009. MFI #R36 RUNNING SHEET FOR MEETING OF NORTH SYDNEY FORUM DATED 23/09/09 30 DR COLLINS: Yes. Treasurer, do you recollect a North Sydney Forum function at the Grand Ballroom of the Sofitel Sydney Wentworth on 29 September - - -?---Yes, I do. 35 That was a - - -?---I remember Vince Sorrenti. Yes. Vince Sorrenti was the master of ceremonies?---Mmm. 40 The entertainment was Enormous Horns? You will need to “yes” or “no” for the transcript, Mr Hockey?---Sorry. Yes. It was a good night. You should have been there. Yes. Well, maybe. And it was drinks, canapés and then a dinner at the Sofitel 45 Sydney Wentworth?---Mmm. .NSD489/2014 9.3.15 P-93 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS And that was a North Sydney Forum function, wasn’t it?---I’m not actually sure it’s North Sydney Forum. I think that might have been my FEC. I see?---In fact, I don’t think it was North Sydney Forum from memory. 5 Yes. I see?---It doesn’t say North Sydney Forum, does it? I don’t think so. No?---No. 10 It has got the - - -?---So I actually don’t think it was North Sydney. That’s the difference, Dr Collins, between the North Sydney Liberal Party and the North Sydney Forum. I see. Just explain to his Honour that difference?---Sorry? 15 Just explain that difference, would you?---Well, the North Sydney FEC – which is the Federal Electorate Conference – is a division of the Liberal Party that has Liberal Party members, Liberal Party office holders and that’s the primary body responsible for preselecting me as their candidate and then supporting me in my election in North 20 Sydney. And they’re the ones that raise the money. Usually, we have one major event every three years to raise money for my re-election. Yes?---The North Sydney Forum was established separately by a number of individuals. I’m assuming not all of them or very few of them, maybe, are actually 25 in the Liberal Party. Yes?---I know Bob Orrell is. But that’s about it. And – but it’s – it reports, as I understand it, directly to the Liberty Party head office. 30 I see. Now, do you see on that invitation it has got an RSVP at the bottom and there’s address RSVP at JoeHockey.com?---Yes. Does that help you identify the body to which the invitation relates? 35 MR McCLINTOCK: Could I just ask – is page 52 part of the same document? Because it ..... if this document is not about the North Sydney Forum, I object to questions about it. HIS HONOUR: Well - - - 40 DR COLLINS: It’s a document produced on subpoena. HIS HONOUR: I overrule the objection. You’ve asked a simple question, which is: does the RSVP address help him answer your previous questions as to who was 45 making the invitation to this function?---Well, the invitation would have gone from North Sydney FEC – and it’s quite clear from the form the page over where it said - - - .NSD489/2014 9.3.15 P-94 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Well, no. Can you - - -?---Sorry, your Honour. You’re just being asked about the RSVP - - -?---Right. 5 - - - address on page 51?---RSVP at JoeHockey.com. JoeHockey.com is my URL. DR COLLINS: Yes. That tells you it’s the North Sydney FEC rather than the North Sydney Forum. Is that your evidence?---I would think so. Yes. Yes. 10 Yes? You’re confident about that?---Yes, yes. Yes. So we shouldn’t see that address appearing on North Sydney Forum documents? MR McCLINTOCK: Well, I object to that. 15 HIS HONOUR: I overrule that objection. DR COLLINS: Do you need me to repeat the question?---I’m sorry. Yes. Yes. 20 We shouldn’t be seeing that address, RSVP at JoeHockey.com, on North Sydney Forum documents?---No. You shouldn’t. It was widely used by people. But no. Because the two bodies are quite separate. The North Sydney FEC on the one hand - - -?---Yes. 25 - - - and the North Sydney Forum on the other?---They’re meant to be. Yes. Absolutely. Do I take it, Mr Hockey, you’ve seen that invitation before and the booking form that 30 you – on page 52?---Sorry? And the RSVP? Look, I can’t recall having seen these. Yes?---Again, this was run by the Liberal Party. I didn’t specifically – I don’t recall having specifically put together any of that and that says that all cheques payable to North Sydney FEC, which is the actual Liberal Party rather than the North Sydney 35 Forum. Yes. Thank you. Well, your Honour, unless there’s an objection, I tender pages 51 and 52. 40 MR McCLINTOCK: I object, your Honour, on the grounds of relevance. They – this is plainly, when one looks at 52, an FEC document. And that’s the – it has nothing to do with anything. HIS HONOUR: I overrule that objection. Exhibit R37 - - - 45 DR COLLINS: Yes. Thank you, your Honour. .NSD489/2014 9.3.15 P-95 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: - - - invitation to a function on 29 September 2009 with attached booking form. 5 EXHIBIT #R37 INVITATION TO A FUNCTION WITH ATTACHED BOOKING FORM DATED 29/09/09 DR COLLINS: Now, Treasurer, could I ask you to go to page 54 in the folder, 10 please?---Mmm. You see towards the foot of the page, that has got the North Sydney Forum logo on it?---Mmm. 15 At the top of the page Joe Hockey MP and it’s a bit faded but it looks like a martini glass?---Mmm. Cocktails, Friday 6 November 6.30 to 8.30 - - -?---Mmm. 20 - - - at the home of - - - HIS HONOUR: Mr Hockey, you’re saying “mmm” - - -?---Sorry. Sorry, your Honour. 25 - - - for our transcript purposes, we need a “yes” or a “no”?---Sorry, your Honour. DR COLLINS: You recollect a cocktail event, don’t you, on about that date at the home of David and Stephanie Murray?---Yes, I do. 30 That was a North Sydney Forum event, do you agree?---Yes. Well, it may have been a joint event. I can’t recall. Yes. You said that, don’t you, because you’ve recognised that the email address on that invitation is the RSVP at JoeHockey.com that I just asked you about?---No, I 35 don’t. Because the Murrays are friends of mine and they agreed to do it separately with me and I remember North Sydney FEC was involved. I see?---So it might have been a joint function. 40 Yes. Mr Murray is the – or was in 2009 – the chair of the Future Fund Board of Guardians, wasn’t he?---Yes. Yes. And I just want to suggest to you, Mr Hockey, that this is a North Sydney Forum event at which the address RSVP at JoeHockey.com is being used and what 45 I’m putting to you is that there is not a sharp division between those two bodies of the kind you suggested in your previous answer?---Well, I don’t accept what you’re – what you’re suggesting. .NSD489/2014 9.3.15 P-96 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Thank you, Treasurer. I tender that invitation. MR McCLINTOCK: I object. 5 HIS HONOUR: I overrule that objection. Exhibit R38, cocktail invitation for 6 November – have we got a year there? DR COLLINS: 2009. 10 HIS HONOUR: 6 November 2009. From Joe Hockey MP. Yes. EXHIBIT #R38 COCKTAIL INVITATION FROM JOE HOCKEY MP DATED 06/11/09 15 DR COLLINS: Treasurer, on page 55 you should see another invitation with the North Sydney Forum on the right-hand side – the end of year cocktail reception with Mr Turnbull and yourself at the Parkview Room at Doltone House in Darling Island 20 Wharf. Do you have a recollection of that event?---Well, I recollect going there. It may have been the case that that was ..... yes. As you understood it, this was one of the benefits to members of the North Sydney Forum – was the right to come to an end of year cocktail reception?---Well, there 25 may have been. And that was your understanding. You were there because you were the attraction?---So was Mr Turnbull. 30 Yes. The two of you together?---Well, the North Sydney Forum was meant to be raising money for marginal seats. I’m sorry. The North Sydney Forum was intended to raise money for marginal seats?---Well, in addition to what – as I said, you’re making it out to be a political 35 event. It was – the North Sydney Forum was always intended to be both, as I’ve said previously, primarily from my perspective, a business networking function and, yes, there would be members that turn up because it was part of the Liberal Party. Yes. I see. And can I ask you to – have you seen that invitation before – have you 40 seen that before, Treasurer?---I can’t recall. And you see over the page the RSVP form for the North Sydney Forum. Have you seen that form before?---I can’t recall. 45 Your Honour, unless there’s an objection, I tender those two pages. .NSD489/2014 9.3.15 P-97 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: Exhibit R39, invitation to end of year cocktail reception with attached – what is it – RSVP form. 5 EXHIBIT #R39 INVITATION TO END OF YEAR COCKTAIL RECEPTION WITH ATTACHED RSVP FORM DR COLLINS: Treasurer, I asked you before about whether you had a recollection 10 of attending a private dinner for the North Sydney Forum at the home of Mr Carrozzi. I think you said you couldn’t recollect. If you look at page 57, does that assist you? MR McCLINTOCK: I don’t think it will. 15 HIS HONOUR: Mr McClintock, as you know, that would be inappropriate. Those kinds of remarks are inappropriate. MR McCLINTOCK: I withdraw, your Honour. I apologise. 20 HIS HONOUR: Carry on, Dr Collins. MR McCLINTOCK: Does that assist you?---I can’t remember the specific event, Dr Collins. 25 I see. Do you see it says: Mr Carrozzi, Honorary Chairman, has pleasure in inviting to a private dinner at home with the Honourable Joe Hockey MP, Shadow Treasurer. 30 Does that assist – was there a function at your home or Mr Carrozzi’s home or you can’t remember?---I can’t remember the specific function. I see. Does the address assist you at the foot of the page? I won’t read it out. But 35 Clifton Gardens?---I know he lives in Clifton Gardens. Mr Carrozzi?---Yes. Yes. So, looking at that, you would understand it to be an invitation to a private 40 dinner for the North Sydney Forum at Mr Carrozzi’s home on 9 December 2009?---Well, that’s what it looks like. Yes. And do you see at the very foot of the page on the left-hand side: 45 Donation optional, to assist Joe Hockey campaign. You see that?---Yes. I do see that. .NSD489/2014 9.3.15 P-98 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I would suggest to you again this – this is indicative of the connection between the North Sydney Forum, on the one hand, and your campaign – your personal campaign on the other?---Well, I didn’t write the invite. I’m not sure about the circumstances. 5 Yes, because I’m offering you an opportunity to reconsider the evidence you’ve given to his Honour about the extent of the connection between the North Sydney Forum on the one hand and the re-election of yourself on the other?---Dr Collins, you have to ask the North Sydney Forum these questions. 10 Thank you?---I wasn’t intimately involved in the activities of the North Sydney Forum. Yes. Thank you. Do I take it from that, Treasurer, that you weren’t contacted about the dates on which events were going to be held – the agenda of events and so 15 on?---Well, usually what would happen is that they would come in – invites would come in with all the other invites that I get. Times would try to be scheduled for a North Sydney Forum event. Sometimes I couldn’t turn up. On other occasions, others filled in for me. Other occasions, I wasn’t invited. 20 I suggest to you there was liaison between your office and the North Sydney Forum office on the other hand, to set out the dates for the proposed agenda of events for the Forum?---That may well be the case, but I wasn’t micromanaging that. Thank you. Your Honour, I tender the invitation at page 57. 25 MR McCLINTOCK: I object. HIS HONOUR: Overruling that objection. Exhibit R40, invitation to private dinner on 16 December 2009. 30 EXHIBIT #40 INVITATION TO PRIVATE DINNER ON 16 DECEMBER 2009 35 DR COLLINS: Treasurer, I want to ask you some questions now about the events of the North Sydney Forum in the period after you came to government in September 2015. You attended a number of North Sydney Forum events – just if you would attend to my question rather than looking at the folder – you’ve attended a number of 40 events, haven’t you, since you came to government in September 2013, of the North Sydney Forum?---Yes. I have. And that included boardroom lunches?---Yes. 45 Yes. And private dinners?---I can’t recall any private dinner. .NSD489/2014 9.3.15 P-99 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Perhaps I will be more precise. Dinners in private dining rooms at restaurants such as Aria here in Sydney?---Well, maybe. Perhaps. Yes. That’s not a memory test. Could I ask you to look at page 58 in the folder. That’s 5 from Mary– is it Umbrazunas – have I pronounced that correctly?---Yes. She was, I think, one of the bridesmaids at your wedding, if I’ve got that right?---Yes. 10 Yes. For the transcript, it’s U-m-b-r-a-z-u-n-a-s. And she was engaged in the office of the North Sydney Forum, wasn’t she?---I assume so. Yes. She’s employed by them. Yes. Well, you say you assume so. You know that, don’t you?---I haven’t seen an 15 employment contract. I see. You understand that she works there?---Yes. Yes. And this, do you see, is a subject line: 20 NSF Boardroom Lunch, 15 November 2013. And then a bit further down: 25 In the private dining room at Prime Restaurant at the GPO in Sydney. Do you have a recollection of attending that event?---Yes. Now, these kinds of boardroom lunches are get togethers which you attend with a 30 number of members of the North Sydney Forum?---Well, there’s also people who are not members of North Sydney Forum. Yes. But they come as the guests of members, don’t they?---I don’t know. 35 I see. And the purpose of the lunch is to have a discussion, around the table in an informal sitting over lunch, about matters that members wish to raise with you?---Yes. People do. Yes?---Normally I say a few opening words and then go around the table. 40 Yes. So you say a few opening words, perhaps, about an area of policy that’s controversial or current at the time?---Mmm. You need to say “yes” or “no” .....?---Sorry, sorry, sorry. Yes. 45 .NSD489/2014 9.3.15 P-100 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS And members present at the boardroom lunch or whatever event it might be will no doubt give you their view on those topics?---Well, they give me lots of views, but, yes. 5 Yes. Well, that’s one of the means by which you obtain information that inputs into the development of policy?---Well, in order to formulate policy, you have many different sources, but you don’t make up policy on the run as a result of one conversation. 10 No. But it’s – you said to his Honour before that you consider it important to act as a sounding board for as many views as you can muster?---For as many places as I can muster. Yes. And the North Sydney Forum is an important vehicle for that?---It’s one of 15 many. An important vehicle because it includes regular events at which people get together with you in a relatively informal and intimate setting?---It’s one of many forums. 20 Yes. At which members get together with you an informal and intimate setting?---It’s not terribly informal, usually. I see. Intimate setting?---Well, intimate, I would assume to be one other person. It’s hardly intimate. 25 Well, let me qualify it. The private dining room at the Prime Restaurant is a relatively small room?---There would usually be – at those sort of dinners or lunches – I can’t remember specific dinners – but lunches – there would be about 20 people. 30 Yes?---Maybe – maybe more. Yes. Sure. And various occasions, up to 30 or 40. It might be more, might be less. Just depends on the particular event?---No. I can’t recall this. 35 Yes. And members at a dinner of 20 people – whatever it might be – at the Prime dining room, will no doubt talk to you about matters of relevance to their particular business or industry or whatever it might be?---Sorry. Is that a – that’s a question? Yes?---They may. They might express a general political opinion. They might talk 40 about something totally unrelated to what they do. Yes. And that’s – I don’t mean this pejoratively – but ..... for a politician to get a sounding like that .....?---Well, I get it at the local rotary club. I get it in many different forums. 45 But you also get it at the North Sydney Forum, though?---Yes. .NSD489/2014 9.3.15 P-101 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes. Thank you. Your Honour, I tender that email. HIS HONOUR: Exhibit R41, Email from Marie Umbrazunas of 23 October 2013 relating to lunch at the Prime Restaurant on 15 November 2013. 5 EXHIBIT #R41 EMAIL FROM MARIE UMBRAZUNAS OF 23 OCTOBER 2013 RELATING TO LUNCH AT THE PRIME RESTAURANT ON 15/11/2013 10 DR COLLINS: Treasurer, on page 59 do you recognise that as a page from your – is that an office diary or a personal diary?---Yes. 15 Which is it, sorry, an office diary or a personal diary?---I only have one diary. I see. And you see there a reference to the lunch I’ve just asked you about at Prime Restaurant between – is that 12.00 and 2 pm on 15 November?---Yes. 20 Yes. I tender the diary, your Honour. HIS HONOUR: Exhibit R42, extract from – no, sorry. I will revise that, diary page of Mr Hockey for 15 November 2013. 25 EXHIBIT #R42 DIARY PAGE OF MR HOCKEY FOR 15/11/2013 DR COLLINS: And Treasurer, at the end of last year, do you recollect the North 30 Sydney Forum’s end of year drinks at Doltone House in Hyde Park?---In Hyde Park? Have a look at page 61. Yes, it says Doltone House, Hyde Park?---Sorry. Elizabeth Street. Yes, I do remember that. 35 Yes. And that’s another North Sydney Forum event that you attended on 17 December 2013?---Yes. Yes. And that was another one, as you understood it, of the benefits that North Sydney Forum members obtained by reason of being members?---Well, I can’t verify 40 that, particularly given it says $100 non-NSF members per person. Yes. Well, you see on page 61: NSF members no charge, non-members $100 per person. 45 .NSD489/2014 9.3.15 P-102 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS It follows, doesn’t it, that there was a benefit to being a member of the North Sydney Forum, in that you got a free invitation to the end of year drinks with you?---Well, you can assume that, yes. 5 Yes. Thank you?---Assuming that it’s a benefit to him, though. Yes, your Honour. I tender the email at page 60 and the invitation at page 61. HIS HONOUR: Exhibit R43, email from Marie Umbrazunas of 13 November 2013 10 regarding NSF end of year invitation. EXHIBIT #R43 EMAIL FROM MARIE UMBRAZUNAS OF 13/11/2013 REGARDING NSF END OF YEAR INVITATION 15 DR COLLINS: Mr Hockey, would you look at page 62. Do you see that it’s an RSVP form for the event I was just asking you about?---Well, I don’t know if it is related to that event. 20 Well, you can see it’s a North Sydney Forum RSVP form for some event?---Yes. Yes. And do you see on the left-hand side the header of the page is: 25 Joe Hockey MP, RSVP to RSVP at northsydneyforum.com.au. Again, I want to just suggest to you that this is what the North Sydney Forum was, it was your fundraising .....?---Well, no. People have used my name in all sorts of different circumstances. I mean, every member of Parliament, when they ask me to 30 go and attend a fundraiser or a community event in their electorate, uses my name - - - I see. But this is - - -?------and the purpose of the event and where the money goes is not something that I control. 35 Mr Hockey, this is your name at the top of the document, alongside North Sydney Forum?---Well, it is my name, but again, it says: If you wish to make a cheque payable to the Liberal Party of Australia New 40 South Wales division – which is not the North Sydney FEC. No, it’s the North Sydney Forum?---Well, that’s not Joe Hockey. 45 I see?---Does that say Joe Hockey, Dr Collins? .NSD489/2014 9.3.15 P-103 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS It says Joe Hockey MP at the top of the page?---It doesn’t say a cheque to Joe Hockey. HIS HONOUR: Just pause, Mr Hockey. You ask a question, Dr Collins, as 5 opposed to simply engaging in that argument. DR COLLINS: Yes, yes. Thank you, your Honour. You see, Mr Hockey, about halfway down the page where it says: 10 Payment details – please return to North Sydney Forum. Do you see that?---Yes. Yes. So this was some sort of fundraiser for the North Sydney Forum? 15 MR McCLINTOCK: Your Honour, I object to that put in those terms. First, this document is not Mr Hockey’s document. Certainly, it has got his name on it, but the fact is that a prominent politician on every side of Parliament will often have people putting his name on documents which he has nothing personally to do with. Second, 20 your Honour, I have difficulty understanding what is going on here. In the articles upon which my client sues, one thing that they got right was to say that the North Sydney Forum pays the money it received by way of these donations and membership fees to the Liberal Party, which then distributes it to marginal seats. That, for example, appears in the graphic on the second page, and, for example: 25 3. New South Wales Liberal Party distribute fees to other campaigns. The evidence from my learned friend’s witnesses says – and I will ask my learned junior to turn up one of the affidavits – that the North Sydney Forum money is 30 Liberal Party money, and is accounted for as Liberal Party money, and there are donations to the Liberal Party, and is distributed by the Liberal Party to marginal seats. May I also say, your Honour, that I haven’t taken up the objection yet about this material being used to support the supposed objective truth of the statements in the articles, which of course, given the authorities I referred to in opening, is 35 something completely irrelevant to this inquiry before your Honour. What does this issue go to? It doesn’t go, obviously, to anything in the state of mind of the respondents, because that is the only relevant issue on this point – on the section 30 defence. It can’t go to anything to do with hurt to my client’s feelings. 40 Nothing he says has been put about that. There is no relevance of this, your Honour. I’ve refrained from objecting, but your Honour, this material has nothing to do with the inquiry. I notice a little bit further on in this volume that - - - DR COLLINS: My friend shouldn’t be - - - 45 .NSD489/2014 9.3.15 P-104 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: Let him complete the objection. Sorry. Are you going to some other document which Dr Collins hasn’t come to yet? Well, that doesn’t seem to me to be appropriate, Mr McClintock. 5 MR McCLINTOCK: I won’t, your Honour. But your Honour, the fact that this document – the fact that there was, say, a fundraiser, on 17 December 2013, at Doltone House in Hyde Park, at which my client went, has no relevance to any matter. And, as I say, I can’t – your Honour, I wish to make absolutely clear what our position about this is. The authorities establish – and establish clearly – that the 10 only relevant inquiry is what the respondents did, and as a result of what they did, what was in their minds. It’s purely subjective. It has nothing to do with objective facts that they were unaware of at the time in question. This material, for example – this has all been obviously produced on subpoena. It 15 has nothing to do with anything that the respondents had at the time. Nothing. And in those circumstances, where it’s plainly being used for an illegitimate purpose, that is, to support – it seems – some objective fact statement in the matter complained of, I object to it for that reason. Second, your Honour, and going further, it seems to actually contradict – or my learned friend seems to be trying to contradict – the 20 statements made in the matter complained of and relied upon by his own witnesses, which is that this is Liberal Party money, so to speak, distributed by the Liberal Party, and distributed to marginal seats – that is, seats other than my client’s seat. It is, in my submission, irrelevant and contradicts the case that he is actually making. 25 HIS HONOUR: Thank you. Dr Collins, there are at least four separate strands of objection in that. DR COLLINS: Yes, at least. 30 HIS HONOUR: We probably will have to come and have this debate about whether you can adduce evidence which goes to the objective truth of some or all of the statements that were published, in due course at some stage. I don’t think it’s an appropriate time to have that while Mr Hockey is in the witness box, but if either of you want to persuade me to the contrary, then I will be open - - - 35 DR COLLINS: Well, no. For our part we respectfully agree. The matter is squarely raised on the pleading as to which a no strike-out application is being brought. A subpoena was issued to the North Sydney Forum as a result of it, yes. If your Honour pleases. 40 HIS HONOUR: I’m actually flagging to you that I’m on your side, so - - - DR COLLINS: Yes. No. I - - - 45 HIS HONOUR: At the moment, so - - - DR COLLINS: I’m pushing against an open door. I understand. .NSD489/2014 9.3.15 P-105 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: You can’t do better than that. You could only possibly get worse. I’m speaking to Dr Collins at the moment. I do wish to hear from you, though, in relation to the question which relates to the – well, I’ve labelled it a form question. You’re asking Mr Hockey at the moment about what a document means of which he 5 wasn’t the author. I’m not sure at the moment whether he has acknowledged even that he has seen this document before. DR COLLINS: Can I test it. Can I withdraw the question and put it differently. 10 HIS HONOUR: So, whole debate over. Question withdrawn. DR COLLINS: Yes. Well, I had forgotten - - - MR McCLINTOCK: Could I just say one thing? 15 HIS HONOUR: No. The question has been withdrawn. Move on to the next question and deal with that. MR McCLINTOCK: Your Honour, I just wish to say something about the objective 20 true or falsity point. HIS HONOUR: No. You’re not listening to me, Mr McClintock. MR McCLINTOCK: Sorry. But I - - - 25 HIS HONOUR: The question has been withdrawn. We will move on, and if the occasion arises - - - MR McCLINTOCK: I’m - - - 30 HIS HONOUR: - - - then we will come to that. MR McCLINTOCK: Sorry, your Honour. It’s important that I say something. Your Honour invited persuasion to deal with the issue now. 35 HIS HONOUR: And I will hear from you at the appropriate time is what I’m trying to get you to understand, Mr McClintock. I would like this cross-examination to continue. If it becomes necessary to hear from you on that, then I will hear from you on it, but at the moment, the question is being withdrawn. We can move on. 40 MR McCLINTOCK: I only wish to say this, your Honour: provided that my position is protected, I don’t wish to object to the questions, and I don’t wish to keep objecting. All I want to do is record, having heard what your Honour says about deferring the debate to later – ensure that my position is protected so that I do not 45 have to, every time there is an objection, every time there’s a question that deals with that issue – to raise ..... so that the cross-examination can proceed unimpeded. .NSD489/2014 9.3.15 P-106 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: All right. MR McCLINTOCK: Having said that, I don’t need to say anything further. 5 HIS HONOUR: In that case, we will proceed, and on the basis that we’re all alert to the fact that there will be an issue to be decided in this trial as to whether or not evidence which is adduced from any witness, for that matter, can be used to establish the objective truth of a published matter. But we will have that as part of the final submissions once the evidence has been received. 10 DR COLLINS: If your Honour pleases. Mr Hockey, do I take you didn’t authorise the use of your name on this form?---I don’t recall having seen this form. I don’t recall having provided my authorisation 15 for my name to be used on the form. And do I take it you wouldn’t authorise the use of your name in a header on a form for the North Sydney Forum given the evidence you’ve given to his Honour?---Dr Collins, people use my name in many different forums. I don’t – I 20 don’t authorise every single usage of my name. Yes. But I’m not asking that, Mr Hockey. I’m asking whether you would authorise the use of your name on an invitation for the North Sydney Forum of this kind?---Well, it depends on the event and the circumstances. For example, it was 25 end-of-year drinks with the Honourable Joe Hockey MP. That’s perfectly reasonable. That happens at every single event. In relation to a particular form, why would you RSVP to me if it’s run by the North Sydney Forum? It’s not – sorry. HIS HONOUR: Can I ask you this - - -?---Your Honour, yes. 30 - - - because it may be that you’ve expressed yourself more loosely there than you intended?---Sure. You said something about people can use your name or your image as they choose, 35 but I imagine you do have some concern about that. You don’t want people using your name and image as they choose for whatever purpose at all?---No, of course not, your Honour. But there might be some purposes in respect of which you’ve either given a general 40 authorisation or in respect of which there may be an implicit general authorisation even though it’s not referred to you on each specific occasion?---That’s exactly right, your Honour. It’s not always referred to me when my name is used on a particular document or for a particular purpose. It just doesn’t – doesn’t happen that way. 45 Right. So there would be some things, for example, associated with your FEC where the FEC wouldn’t have to come to you to ask, “Can we use Joe Hockey’s name or - - - “?---No. .NSD489/2014 9.3.15 P-107 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS “ - - - Joe Hockey’s photo?”?---No. It would be treated as though it’s implicitly authorised?---Correct. 5 DR COLLINS: Thank you, your Honour. And, Mr Hockey, in respect of the North Sydney Forum, you attended a session at which a photo was taken with your consent, to be used in relation to North Sydney Forum materials, didn’t you?---Back in – from what you have advised me, back in 10 2009, but photos are taken of me many different occasions and used for many different purposes. I’ve shown you now a number of invitations to North Sydney Forum events on which your photograph has been used. You don’t object to that use of your 15 photograph, I take it, on North Sydney Forum material?---Well, no. It’s – again, I’m the member for North Sydney, and it’s the North Sydney Forum. On page 63, Mr Hockey, is that another extract from your diary, this time for 17 December 2013? 20 HIS HONOUR: Sorry. Just before you go on, were you intending to do anything with that document at page sixty - - - DR COLLINS: No. No, your Honour. 25 HIS HONOUR: No. You’re not. Yes. Thank you. Sorry. Perhaps, in fairness, ask Mr Hockey the question again. DR COLLINS: Yes. 30 On page 63, Mr Hockey, is that another page from your diary for 17 December 2013?---It does look like it is, yes. And the entry between 6 and 8 pm is for the cocktail function I asked you about at 35 Doltone House, opposite Hyde Park?---Yes. Sorry. Yes. That indicates you were present, I take it, or is an indication to you that you were present?---Well, it’s an indication that it’s in my diary. Whether I have some – sometimes I do have events occur that cause me not to be able to attend, as you 40 would understand. Something arises from time to time. So I can’t actually verify in particular that I was there. You don’t have a recollection of this particular event?---I do. I – I actually do have a recollection of the event, yes. 45 I see. You were there?---I was there. I recall being there, yes. .NSD489/2014 9.3.15 P-108 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I tender the page from Mr Hockey’s diary. HIS HONOUR: Exhibit R44. 5 EXHIBIT #R44 PAGE FROM MR HOCKEY’S DIARY DATED 17/12/2013 DR COLLINS: Your Honour, I’m sorry. I should have tendered the invitation on 10 page 61. Your Honour asked me about the RSVP page. I don’t do anything with that. MR McCLINTOCK: That’s 43. 15 DR COLLINS: I don’t think I tendered 61. HIS HONOUR: Just let me complete my description of this exhibit. Exhibit R44: Mr Hockey’s diary entry for 17 December 2013. And going back to page 61, what were you asking there? 20 DR COLLINS: Yes. I’m sorry. I think my learned friend is right that we - - - MR McCLINTOCK: It’s R43. 25 DR COLLINS: - - - tendered 60 and 61 together as R40. Yes. MR McCLINTOCK: R43 is that ..... second page. HIS HONOUR: Yes. Thank you. 30 DR COLLINS: My apologies. Mr Hockey, on page 64 - - - 35 HIS HONOUR: I’m sorry. Well, I’ve noted, for exhibit R43 at page 60, two pages. DR COLLINS: Yes. That’s so. HIS HONOUR: That’s what it should be? 40 DR COLLINS: Yes. HIS HONOUR: So pages 60 and 61. 45 DR COLLINS: Yes. HIS HONOUR: Thank you. .NSD489/2014 9.3.15 P-109 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS DR COLLINS: Page 64, Mr Hockey. You see this is an email concerning a North Sydney Forum boardroom lunch on 7 March 2014 in the private dining room at ARIA. Did you attend such an event?---Well, the best of my recollection – I – I probably did, but, again, I don’t remember the specific – I do remember the specific 5 event. Yes, I did. I do remember. I take it you would have authorised, if you didn’t, in fact, authorise, the use of your photo?---Again, I didn’t explicitly authorise the use of my photo. 10 What about the tagline – I know it’s a bit hard to read – next to your photo? “Business and community leaders supporting Joe Hockey MP”?---I didn’t draft the letter. I didn’t explicitly endorse that being said - - - Do you agree - - -?------that I can recall. 15 Do you agree that that’s an accurate description of the North Sydney Forum? “Business and community leaders supporting Joe Hockey MP”?---Well, that’s a matter for the forum, Dr Collins, as I’ve said previously. 20 Do you agree? Mr Hockey, the question was do you agree?---Well, they support the Liberal Party, and they engage in a discussion about business with each other. I mean, it’s – that’s a marketing line, again – I say again – from the North Sydney Forum. 25 You don’t agree with it? Is that the substance of your answer? Instead of “Joe Hockey MP” - - -?---Well, not all of the people that attend support me, I can tell you. Just wait for the question, Mr Hockey. Instead of “Joe Hockey MP,” it should say “Liberal Party”?---Well, that would be more accurate, but it is – it is also a forum for 30 the exchange of ideas, as I’ve said previously. Yes. Thank you. Now, this lunch – in the second paragraph of that email, Mr Hockey, it says: 35 The lunch will be proudly supported by Restaurant and Catering. Do you understand that to be a reference to the body of which Mr Hart is the chairman?---Yes. I do. 40 That’s the Restaurant and Catering Association of Australia, a lobby group?---I think that’s what it’s called. Something like that, yes. And Mr Hart was the replacement chairman of the North Sydney Forum after Mr Carrozzi stood down?---Yes. 45 And that change occurred shortly prior to the 2013 election?---I can’t recall when it was. .NSD489/2014 9.3.15 P-110 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Did you nominate him to replace Mr Carrozzi?---No. Were you asked to approve his appointment?---I can’t recall that I was. 5 Your Honour, I tender that email. HIS HONOUR: Exhibit R45, email from Marie Umbrazunas of 19 February 2014 regarding NSF boardroom lunch for Friday, 7 March 2014. 10 EXHIBIT #R45 EMAIL FROM MARIE UMBRAZUNAS REGARDING NSF BOARDROOM LUNCH FOR FRIDAY, 07/03/2014 DATED 19/02/2014 15 DR COLLINS: And, Mr Hockey, on page 65, is that the corresponding entry in your diary for 7 March 2014?---It appears to be so. So I might tender that diary extract. 20 HIS HONOUR: Exhibit R46, copy of Mr Hockey’s diary entry for 7 March 2014. EXHIBIT #R46 COPY OF MR HOCKEY’S DIARY ENTRY DATED 07/03/2014 25 HIS HONOUR: Again, Mr Hockey, can I ask this: that diary entry would be prospective in nature rather than retrospective, recording what you were scheduled to attend, rather than recording an actual attendance?---Yes, your Honour. Sometimes, 30 if I don’t get there, sometimes my diary never catches up, but we use other records. Yes. DR COLLINS: Thank you, your Honour. 35 Then, Mr Hockey, on page - - - THE WITNESS: But I do recall, your Honour. As I said, I recall the event. So - - - 40 DR COLLINS: Page 66, Mr Hockey: do you recollect this one? A North Sydney Forum boardroom lunch on 23 April 2014 held in the offices of Visa?---Yes. I do recall. Yes. You attended that one?---Yes. I did. 45 Yes. And Visa was a member of the North Sydney Forum, as you understood it?---I don’t know. .NSD489/2014 9.3.15 P-111 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS I see. Yes. I tender that email. HIS HONOUR: Exhibit R47, email from Mary Umbrazunas of 23 March 2014 regarding boardroom lunch on 23 April 2014. 5 EXHIBIT #R47 EMAIL FROM MARY UMBRAZUNAS DATED 23/03/2014 10 DR COLLINS: Mr Hockey, do you have a recollection of how many people were present on that occasion?---Quite a few, I recall. It was another occasion at which there was a free-flowing discussion, was there, about matters of relevance to your portfolio?---It was – there was broad discussion 15 about the government, from what I can recall, and from what I recall there was a lot of people there. Maybe 30 or 40. Yes. And the topics - - -?---From all different walks. All different business, and so on. 20 Yes. Yes. And, again, some were members of the North Sydney Forum, and some weren’t?---I – honestly, if I was told that they were members or not, I can’t recall. I mean, because I attended – I didn’t go around and interrogate each person as to whether they were a member or not. There were other people that came to events 25 that I knew weren’t members. Yes. So you know the identities of some of the members of the forum, but not necessarily all of them?---I couldn’t tell you. I mean, there were some regular attendees at various things. Mostly small business people, but I can’t recall – I 30 couldn’t tell you whether they were members or paid per event, or whatever the case might be. Thank you. And, Mr Hockey, on page 68, is that the next event of the North Sydney Forum? A business forum event on 21 May 2014. 35 MR McCLINTOCK: I object to this. This is distinct, your Honour. This follows the publication of the matter complained of, and can have no conceivable relevance on any view. 40 HIS HONOUR: Well, the - - - MR McCLINTOCK: 21 – the matter complained of was published on 5 May. This is more than two weeks later. 45 HIS HONOUR: Yes. MR McCLINTOCK: It cannot have anything to do with the matter. .NSD489/2014 9.3.15 P-112 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: I was just trying to recall the precise terms of the question, because the email preceded - - - DR COLLINS: That’s right, your Honour. 5 HIS HONOUR: - - - the publication on 5 May. So, perhaps, Dr Collins, just remind me of the precise form of your question. DR COLLINS: Yes. It may not have been as precise as it should have been, your 10 Honour. And perhaps I can address it by reference to the 30 April date that appears on the email. HIS HONOUR: Well, you withdraw the question and - - - 15 DR COLLINS: Withdraw the question. HIS HONOUR: - - - start again. DR COLLINS: Yes. Thank you. 20 There was a - - - THE WITNESS: Sorry, your Honour. Can I ask a question? Am I allowed to ask - - - 25 HIS HONOUR: Well - - -?---Sorry. Go ahead. We will see once we find out what the question is?---Well, in parliament, when something is withdrawn, it’s still on the Hansard, so, in court, when something 30 is withdrawn, does that mean that it’s struck from - - - No. It’s still there on the transcript?---All right. It’s just the question is not pressed?---Okay. Thanks. 35 It’s my way of indicating that I’m not ruling on that objection - - -?---Right. - - - because the question is not being pressed?---Okay. 40 DR COLLINS: But, Mr Hockey, as you understood it, events for the North Sydney Forum were obviously arranged some time in advance of the actual event?---Yes. Yes. And the entry will have been put in your diary, you would assume, some time prior to the event?---Yes. 45 Usually?---I can’t go somewhere if I don’t know where I am going. .NSD489/2014 9.3.15 P-113 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Yes. And this event, on the face of this document, was in place at least by 30 April, and it was scheduled to be held on 21 May at KPMG Australia?---Sorry. Which event are we - - - 5 68?---68? Sorry. When are you suggesting it was - - - Do you see the date at the top? Sent: Wednesday 30 April 2014. Subject: North Sydney Business Forum Event, 21 May?---Well, that was to the chairman in the North Sydney Forum. 10 Yes. But - - -?---Not to my office. No. No. But I’m just asking whether - - -?---I can’t speak for my office about when they received those things. 15 I see. Yes. Well, I tender the email. MR McCLINTOCK: In view of that answer, I object. 20 HIS HONOUR: Yes. Well, on what basis are you tendering it, Dr Collins? DR COLLINS: Your Honour, on its face it’s evidence of a North Sydney Forum event having been organised on 30 April. If my friend presses the objection to it being tendered, it can be marked for identification and we will deal with it with the 25 balance of the documents that are in the same category. HIS HONOUR: Yes. Well, all it is at the moment is an email to the chairman, so I will mark it for identification. Exhibit MFIR48, email from Marie Umbrazunas of 30 April 2014 to the chairman – or perhaps I should say addressed to chairman – at 30 North Sydney Forum. MFI #R48 EMAIL FROM MARIE UMBRAZUNAS OF 30/04/2014 ADDRESSED TO CHAIRMAN AT NORTH SYDNEY FORUM 35 DR COLLINS: Mr Hockey, on page 69, do you see that’s a page from your diary of 21 May?---It appears to be so, yes. 40 Yes. Your Honour, I tender that page. MR McCLINTOCK: I object, on the basis that I - - - HIS HONOUR: And what is its relevance, Dr Collins? 45 DR COLLINS: Sorry? .NSD489/2014 9.3.15 P-114 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS HIS HONOUR: What is its relevance? DR COLLINS: Your Honour, it shows an event being held within a matter of a couple of weeks of the matters complained of. The authorities are, in our respectful 5 submission, clear that one can look at events prior to publication and very shortly after publication for the purpose of informing the matters going to the question of reasonableness, and we will take your Honour to the authorities in our closing submission. 10 HIS HONOUR: Well, on that basis I will receive it. Exhibit R49 – when I say on that basis, it’s on that assurance - - - DR COLLINS: Yes, yes. Yes. 15 HIS HONOUR: - - - is what I mean, Dr Collins. Exhibit R49, copy of Mr Hockey’s diary entry for 21 May 2014. EXHIBIT #R49 COPY OF MR HOCKEY’S DIARY ENTRY FOR 21/05/2014 20 DR COLLINS: Now, Mr Hockey, you were aware for some time prior to delivery of your first budget on 13 May last year that the North Sydney Forum had put together a budget day program to be held on that day?---I recall it. 25 Yes?---I recall the suggestion, yes. Yes. You recollect, don’t you, an event on the date of the budget, culminating in a dinner in the Great Hall, at which North Sydney Forum members were 30 present?---No, I don’t recall that event. At which – I will see if I can jog your memory – the Minister for Small Business, Bruce Billson, spoke?---I didn’t attend. 35 You were aware, weren’t you, that the North Sydney Forum had arranged such an event?---I was aware that they were planning to do an event, as has happened every year with every budget and – well, in the case of the Liberal Party – has happened for years. 40 Were you consulted in relation to the persons who would speak at the budget event?---No. I don’t recall being consulted. Did you provide a pre-budget briefing on that day?---No. I don’t think so. I don’t recall it. 45 Do you recollect being asked to provide a pre-budget briefing to North Sydney Forum members earlier in the day, on the 13 th ?---No. I don’t recall it. .NSD489/2014 9.3.15 P-115 J.B. HOCKEY XXN ©Commonwealth of Australia DR COLLINS Okay. Thank you. Could I ask you to look at page 70 in the folder, please. Have you seen that document before?---I can’t recall it. Do you see it has, again, got your face at the top of the page. I can’t tell if you’re 5 smiling or not: North Sydney Forum business and community leaders supporting Joe Hockey MP budget day program 2014. 10 You don’t have a recollection of ever seeing that document?---No. No. Thank you?---I can’t read half of it, Dr Collins. No. It’s a bit faint, I agree, Treasurer. Can you see in the middle of the page the 15 details: Date: 13 May. Place: Parliament House. Host: John Hart, North Sydney Forum – 20 and then the cost at $3000 for members, $4000 for non-members, 2500 early bird rate. Were you aware of those details?---No. I can’t say I was. Thank you. Could that be marked for identification, please, your Honour? 25 HIS HONOUR: Exhibit MFIR50, flyer regarding North Sydney Forum budget day program 2014. MFI #R50 FLYER REGARDING NORTH SYDNEY FORUM BUDGET DAY 30 PROGRAM 2014 DR COLLINS: Your Honour, I’m about to move to a different topic. Would that be a convenient time? 35 HIS HONOUR: We will resume at 10 o’clock tomorrow morning. Adjourn the court. 40 MATTER ADJOURNED at 4.27 pm UNTIL TUESDAY, 10 MARCH 2015 .NSD489/2014 9.3.15 P-116 ©Commonwealth of Australia DR COLLINS Index of Witness Events JOSEPH BENEDICT HOCKEY, SWORN P-54 EXAMINATION-IN-CHIEF BY MR MCCLINTOCK P-54 CROSS-EXAMINATION BY DR COLLINS P-56 THE WITNESS WITHDREW P-116 Index of Exhibits and MFIs EXHIBIT #A1 SYDNEY MORNING HERALD PLACARD DATED P-44 05/05/14 EXHIBIT #A2 SYDNEY MORNING HERALD ARTICLES P-44 REFERRED TO IN PARAGRAPH 5 DATED 05/05/14 EXHIBIT #A3 COPY OF THE ARTICLE PUBLISHED ON P-44 SYDNEY MORNING HERALD IPAD AND COMPRISING PART OF THE ARTICLES REFERRED TO IN PARAGRAPH 5 DATED 05/05/14 EXHIBIT #A4 COPY OF ARTICLE PUBLISHED IN THE SYDNEY P-44 MORNING HERALD ONLINE BEING THE ARTICLE REFERRED TO IN PARAGRAPH 7 DATED 05/05/14 EXHIBIT #A5 COPY OF THE SYDNEY MORNING HERALD P-45 MOBILE PUBLICATION BEING PART OF THE ARTICLE REFERRED TO IN PARAGRAPH 7 DATED 05/05/14 EXHIBIT #A6 THE AGE CONTAINING THE ARTICLE P-45 REFERRED TO IN PARAGRAPH 3A DATED 05/05/14 EXHIBIT #A7 COPY ARTICLE PUBLISHED IN THE AGE IPAD P-45 AND COMPRISING THE ARTICLE REFERRED TO IN PARAGRAPH 3B DATED 05/05/14 EXHIBIT #A8 COPY OF THE ARTICLE PUBLISHED IN THE AGE P-45 ONLINE AND BEING THE ARTICLE REFERRED TO IN PARAGRAPH 5B DATED 05/05/14 EXHIBIT #A9 COPY OF THE ARTICLE PUBLISHED ON THE P-45 AGE MOBILE (M.THEAGE.COM.AU) AND BEING THE ARTICLE REFERRED TO IN PARAGRAPH 5(B) OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014 .NSD489/2014 9.3.15 P-117 ©Commonwealth of Australia EXHIBIT #A10 THE AGE TWITTER PUBLISHED 05/05/2014 AND P-46 BEING A COPY OF THE TWEET REFERRED TO IN PARAGRAPH 7 OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014 EXHIBIT #A11 THE AGE TWEET PUBLISHED 05/05/2014 AND P-46 BEING THE TWEET REFERRED TO IN PARAGRAPH 9 OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014 EXHIBIT #A12 THE AGE TWEET PUBLISHED 05/05/2014, P-46 REFERRED TO IN PARAGRAPH 12 OF THE STATEMENT OF CLAIM IN NSD 491 OF 2014 EXHIBIT #A13 CANBERRA TIMES PUBLICATION 05/05/2014 P-46 REFERRED TO IN PARAGRAPH 3(A) OF THE STATEMENT OF CLAIM IN NSD 492 OF 2014 EXHIBIT #A14 COPY OF THE ARTICLE PUBLISHED ON THE P-46 CANBERRA TIMES IPAD APP 05/05/2014 BEING THE ARTICLE REFERRED TO IN PARAGRAPH 3(B) OF THE STATEMENT OF CLAIM IN ACTION 492 OF 2014 EXHIBIT #A15 COPY OF THE ARTICLE PUBLISHED IN THE P-47 CANBERRA TIMES ONLINE (CANBERRATIMES.COM.AU) PUBLISHED 5 MAY 2014 BEING A COPY OF THE ARTICLE REFERRED TO IN PARAGRAPH 5 OF THE STATEMENT OF CLAIM IN NSD 492 OF 2014 EXHIBIT #A16 PHOTOGRAPH OF EXHIBIT A1 IN SITU ON P-47 05/05/2014 EXHIBIT #A17 APPLICANT’S INTERROGATORIES AND P-48 RESPONDENT’S ANSWERS IN ACTION NSD 489 OF 2014 EXHIBIT #A18 APPLICANT’S INTERROGATORIES AND P-49 RESPONDENT’S ANSWERS IN ACTION NSD 491 OF 2014 EXHIBIT #A19 APPLICANT’S INTERROGATORIES AND P-49 RESPONDENT’S RESPONSE IN ACTION 492 OF 2014 EXHIBIT #A20 LETTER FROM BANKI HADDOCK FIORA TO P-49 JOHNSON WINTER & SLATTERY OF 07/03/2015 EXHIBIT #A21 AFFIDAVIT OF JOSEPH BENEDICT HOCKEY P-54 DATED 25/09/14 EXHIBIT #A22 AFFIDAVIT OF JOSEPH BENEDICT HOCKEY P-54 DATED 30/01/15 .NSD489/2014 9.3.15 P-118 ©Commonwealth of Australia EXHIBIT #A23 TRANSCRIPT OF SPEECH ENTITLED THE END P-62 OF THE AGE OF ENTITLEMENT DELIVERED BY MR HOCKEY ON 17/04/2012 EXHIBIT #R23 JOE HOCKEY TWEET DATED 29/08/2013 P-68 EXHIBIT #R25 JOE HOCKEY TWEET DATED 09/08/2013 P-68 EXHIBIT #R26 JOE HOCKEY TWEET DATED 06/08/2013 P-69 EXHIBIT #R27 JOE HOCKEY TWEET DATED 06/08/2013 P-70 EXHIBIT #R28 JOE HOCKEY TWEET DATED 10/09/12 P-72 EXHIBIT #R29 JOE HOCKEY TWEET DATED 21/08/12 P-73 MFI #R30 DOCUMENT WITH THE TITLE LIBERAL PARTY OF P-79 AUSTRALIA, NEW SOUTH WALES DIVISION, NORTH SYDNEY FEDERAL ELECTORATE CONFERENCE EXHIBIT #MFIR31 NORTH SYDNEY FORUM MEMBERSHIP P-84 APPLICATION FORM EXHIBIT #MFIR32 LETTER FROM MR CARROZZI DATED P-86 05/06/2013 EXHIBIT #MFIR33 DOWNLOADED HOMEPAGE FROM NORTH P-89 SYDNEY FORUM WEBSITW EXHIBIT #R34 INVITATION TO LAUNCH OF THE NORTH P-92 SYDNEY FORUM MFI #R35 RUNNING SHEET FOR NORTH SYDNEY FORUM P-93 BOARDROOM DINNER DATED 31/08/09 MFI #R36 RUNNING SHEET FOR MEETING OF NORTH P-93 SYDNEY FORUM DATED 23/09/09 EXHIBIT #R37 INVITATION TO A FUNCTION WITH P-96 ATTACHED BOOKING FORM DATED 29/09/09 EXHIBIT #R38 COCKTAIL INVITATION FROM JOE HOCKEY P-97 MP DATED 06/11/09 EXHIBIT #R39 INVITATION TO END OF YEAR COCKTAIL P-98 RECEPTION WITH ATTACHED RSVP FORM EXHIBIT #40 INVITATION TO PRIVATE DINNER ON 16 P-99 DECEMBER 2009 .NSD489/2014 9.3.15 P-119 ©Commonwealth of Australia EXHIBIT #R41 EMAIL FROM MARIE UMBRAZUNAS OF 23 P-102 OCTOBER 2013 RELATING TO LUNCH AT THE PRIME RESTAURANT ON 15/11/2013 EXHIBIT #R42 DIARY PAGE OF MR HOCKEY FOR 15/11/2013 P-102 EXHIBIT #R43 EMAIL FROM MARIE UMBRAZUNAS OF P-103 13/11/2013 REGARDING NSF END OF YEAR INVITATION EXHIBIT #R44 PAGE FROM MR HOCKEY’S DIARY DATED P-109 17/12/2013 EXHIBIT #R45 EMAIL FROM MARIE UMBRAZUNAS P-111 REGARDING NSF BOARDROOM LUNCH FOR FRIDAY, 07/03/2014 DATED 19/02/2014 EXHIBIT #R46 COPY OF MR HOCKEY’S DIARY ENTRY DATED P-111 07/03/2014 EXHIBIT #R47 EMAIL FROM MARY UMBRAZUNAS DATED P-112 23/03/2014 MFI #R48 EMAIL FROM MARIE UMBRAZUNAS OF 30/04/2014 P-114 ADDRESSED TO CHAIRMAN AT NORTH SYDNEY FORUM EXHIBIT #R49 COPY OF MR HOCKEY’S DIARY ENTRY FOR P-115 21/05/2014 MFI #R50 FLYER REGARDING NORTH SYDNEY FORUM P-116 BUDGET DAY PROGRAM 2014 .NSD489/2014 9.3.15 P-120 ©Commonwealth of Australia