A former managing director of a venture capital firm has been awarded damages of $280,000 by the federal court after it found she was defamed by the Australian Financial Review and columnist Joe Aston.
Sydney’s federal court on Wednesday awarded damages and aggravated damages to Dr Elaine Stead for the “high degree of subjective hurt to feelings aggravated by the campaign that had been and was being maintained against her”. The amount awarded to Stead is a fraction of the legal fees for both sides, which according to the publisher are in excess of $2m.
“[Aston] did single her out for focus and engaged in a sustained campaign of offensive mockery which amounted, in my view, to a form of bullying, federal court justice Michael Lee said.
Aston and the Australian Financial Review were sued by Stead, then of Blue Sky Alternative Investments, for defamation over Rear Window columns published in February and October 2019.
Aston, who is based in Los Angeles, described Stead as a “feminist cretin” and said that she “set fire to people’s money”.
Lee said it was unjustified to call Stead brainless and a cretin and she had been targeted by someone who was more powerful than her because he had what Aston himself referred to as “column inches”.
Lee said Stead’s suffering and hurt was significant and she had been subjected to a “slow death” by the columnist.
“What occurred at Blue Sky was a legitimate (indeed, one might think important) matter of public interest – particularly for a newspaper like the AFR,” Lee said.
“However, given the offensive way that Mr Aston expressed himself, it appears Dr Stead felt she had no choice but to resort to the blunt instrument of defamation litigation, which, despite the best efforts of the court, was unable to be resolved consensually.
“This does not mean there is a need for opinion or leader writers to be mealy-mouthed in denouncing hypocrisy, cant, farce or misfeasance, but unless one is prepared to prove the truth of what is said (or invoke some other recognisable defence), the opinion needs to be properly based on facts stated in what is written or be otherwise evident.”
In one column Aston referred to Stead as “the Brick Tamland of Queensland’s fledgling Venture Capital scene and tireless Tweeter of fridge magnet banalities”.
In his judgment Lee explained that Tamland was a fictional weather man played by Steve Carell in the Anchorman films.
Lee: “All one needs to know about the offensiveness of the comparison can be gleaned from reproducing a quotation from the script of Anchorman when the character is introduced to the audience: ‘I’m Brick Tamland. People seem to like me because I am polite and I’m rarely late. I like to eat ice cream and I really enjoy a nice pair of slacks. Years later, a doctor will tell me that I have an I.Q. of 48 and am what some people call mentally retarded.’”
Lee ruled last year that the columns conveyed four defamatory imputations, including that Stead was a “cretin” and “rashly destroyed the capital of business ventures with which she was associated”.
Aston’s barrister, Sandy Dawson, told the court the word cretin was “harsh” but was Aston’s opinion.
Aston wrote that Stead was a “venture capital pyromaniac”, and in a private message to a source Aston said: “Elaine’s scan would show she doesn’t have a brain.” He defended the comment as a “poor joke” and a “private conversation”.
Lee accepted Stead’s evidence that she was having suicidal thoughts and “couldn’t see a way to get out from under the harassment and the bullying and the mocking and the humiliation”.
The newspaper and Aston sought to rely on the defence of honest opinion in relation to the columns, but it was rejected.
Stead said she hoped Wednesday’s judgment brought to an end more than two years of “personal embarrassment, anxiety and distress”.
“I am grateful that the judicial process has helped me to repair the damage to my professional reputation and right the personal harm that the articles have caused me, although I will never be able to completely undo all the damage done,” she said.
The newspaper said it was disappointed by the court’s decision and was proud of Aston’s work.
“Justice Lee found that there was a strong public interest in the Financial Review and Joe Aston reporting on the Blue Sky collapse and the conduct of its executives,” the AFR said. “They are the subject of three ongoing class actions.
“Justice Lee accepted that Mr Aston honestly held the opinions in his column and was an ‘impressive’ witness. The Financial Review is proud of Mr Aston’s work, and we will continue to report on important corporate governance issues without fear or favour.
“Dr Stead sued on eight imputations. Justice Lee threw out four and recast three imputations to lower levels of seriousness.
“Expensive and disproportionate defamation cases like this have a chilling effect on freedom of speech. The proposed reforms to the Defamation Act should go some way toward correcting the imbalance.”
The states agreed last year to changes to the defamation laws in a bid to protect public interest journalism and curb escalating damages payouts, but the changes have not yet been legislated.