Was this the most unsuccessful Australian defamation action ever?

Justice Gillard is my favourite judgment writer. What a shame the legal system is about to lose him to retirement. When the moment is ripe, he gives the cattle who wander without insight onto the slaughterhouse floor the most splendid judicial whallopings. Justice Gillard is a senior judge, and there is a serious point to be made by this post which is otherwise well-suited to public holiday reading. There is an extraordinary terror in the law of calling anyone a fraud (which means nothing more in the law than ‘dishonest’), and of finding anyone to have deliberately lied. Doubtless this is preferable to a world in which lives might be ruined by the dishing up of gossip as fact, but scandalous lies are routinely tolerated, even expected, and virtually no one is ever prosecuted for perjury, rendering the oath meaningless. It is a splendid thing when a lawyer has sufficient command of the legal process to call it as he sees it when the need arises, and Justice Gillard is one of those lawyers.

Remember the whalloping his Honour gave the Law Institute in a professional discipline prosecution, where he said that its decisions were so manifestly unreasonable as to comfortably satisfy the Wednesbury unreasonableness test, to wit that no reasonable decision maker could ever have made them? It was nothing compared with the defamation case of Li v Herald & Weekly Times [2007] VSC 109 about the Hun‘s “Medibonk” expose of the Collins St Chinese herbalist who provided massages with happy endings and then wrote out receipts with service codes for less exciting services which private health insurers would pay for. That’s ‘happy endings’, by the way, in the sense of ‘Ms Li removed the bath mat sized towel, put a pair of latex gloves on her hands and applied creams and oils to his testicles and penis. His penis became erect and Ms Li masturbated him to ejaculation.’

The question which nags at me is whether this defamation suit is the least successful of modern times. After all, the conclusion to this expensive attempt to clear her name was a judicial finding of fact that Ms Li was dodgy, a liar, a cheat, a fraud, a provider of brothel services, a woman with no credibility for whom the solemn promise to tell the truth she took at trial meant nothing. Ms Li was warned by the Court about perjury and Justice Gillard repeatedly made findings of deliberate lying on oath. The threat of extended imprisonment for perjury must loom large should her appeals fail.

I suppose we had better limit the question to Australian cases, since it would be hard to top Oscar Wilde’s story if only for the reason that the perch which Ms Li appears to have fallen off was not so lovely as that occupied by Wilde immediately before the Marquess of Queensberry left a card inside an opaque envelope at their mutual Club inscribed simply ‘For Oscar Wilde, Posing Somdomite [sic.]’. For Wilde was earning royalties of the 2003 equivalent of US$7,000 a week, and spent more than half a million dollars in the seven and a half years before his imprisonment. The Marquess would later describe it as ‘a booby trap’. Oscar fell into the trap urged on by his lover, Lord Alfred Douglas, the Marquess’s son. He privately prosecuted the crime of criminal defamation, foundered on the defence of justification (in part because of his too-witty-by-half answer to the question ‘Did you ever kiss him?’, namely ‘Oh no, never in my life. He was a peculiarly plain boy,’), was convicted of having gay sex and sent to prison for 2 years’ hard labour, never saw his children again, fled to France, and died not 3 years later, aged just 46. Then, in death, Wilde suffered the ignominy of Douglas giving sworn but florid evidence to a court (after he himself had got out of jail for suggesting that Churchill was part of a Jewish conspiracy) that Wilde had been ‘the greatest force for evil that has appeared in Europe during the last three hundred and fifty years.’ But then again, Wilde was having his legal fees paid for him, making the trap all the easier to fall into, whereas presumably Ms Li was not.

Lucky a notorious conman and Sean Connery lookalike who died prematurely of natural causes before he could give evidence — read the articles which are appended to the judgment — and who had been purporting to assist Ms Li deal with the problem posed by the Hun’s multiple profiles of her tried to blackmail a “senior barrister” said to have used Ms Li’s services, or this case might not have met the strict relevance criteria for this blog.

Watching the case as an education in cross-examination was favoured by readers in the March 2007 Bar Readers Course, including me, and to my delight I have been briefed in 3 defamation cases recently. So I had a professional obligation to read this latest outline of the law on the defence of truth (or “justification”) in defamation law. Having done so, I hereby share with you the best bits of the whalloping Justice Gillard meted out in the course of finding that Ms Li was a Collins St brothel owner who provided sexual services and billed for remedial massages, using codes she knew would enable her patients to claim her fees on their private health insurers. It is said that Ms Li has appealed, and Justice Gillard’s comments should be read in light of the proposition that Ms Li considers them to be infected by appellable error. Here they are:

‘238 Making all due allowances for Ms Li, she is one of those witnesses who falls into the category of a witness who should not be believed unless the evidence concerns non-contentious matters, is corroborated by some other credible evidence or is admitted by the defendants. I am satisfied that the affirmation she made meant nothing to her. It was observed that she had previously sworn answers to interrogatories and an affidavit, which were tendered in evidence during the trial. However, when she came to give evidence in Court she made an affirmation. On three occasions, it was necessary for the Court to remind her that she had made an affirmation to tell the truth and that if she did not tell the truth, she could be prosecuted for perjury. She was warned on the third day of evidence early in her cross-examination, once in the following day, and also on the fifth day. The Court warned her because, in my opinion, she was making up the evidence as she was speaking. It was very apparent to the Court that she was lying in respect to the particular matters which were the subject of cross-examination….

239 In addition to the observation made that Ms Li on occasions was making up the evidence as she went, she indulged in prevarication, evasiveness and obfuscation during cross-examination. She changed her version of events on a number of occasions. I came to the conclusion that Ms Li was not motivated by any sense of duty to tell the truth, but by a desire and willingness to tell what she thought would assist her case, even if untrue, and contest the defendants’ case. …

240 I now propose to briefly identify parts of Ms Li’s evidence which, in my view, were untruthful. In considering these examples, it must be borne in mind that the real area of dispute was raised by the defence of justification. The factual issues between the parties were that the defendants contended she provided sexual services to men in the form of relief massage for money, that she had conducted an illegal brothel at her premises, and that she had on a number of occasions supplied false receipts for alleged services and the supply of herbal products, to enable her clients to obtain refunds by fraud from their private medical insurers. These in general terms were the factual issues. I formed the opinion that Ms Li gave false evidence in respect to the following topics of evidence: [25 bullet points follow].’

A bit further on, his Honour said:

‘258 … I reject Ms Li’s evidence that Mr Moor attended on 22 April 2003, that he received a form of acupuncture on any occasion and that her receipt was not false. Her evidence was false. She blatantly lied as to the attendance on 22 April 2003 and the treatment given to Mr Moor.’

In working up to his grand conclusion in Ms Li’s case to clear her name (“Ms Li is a person who has no credibility”), Justice Gillard made findings of fact (at [286] and following) that Ms Li had been:

  • a cheat;
  • a liar;
  • a dishonest person;
  • dodgy;
  • a fraud; and
  • a brothel service provider.

His Honour continued:

‘she lied in respect to a number of important matters. Her lies were false denials. She lied in relation to what occurred when Bill attended at her business premises, she lied with respect to the provision of receipts for other services, she lied in respect to the presence of the three women at her premises providing services, and she lied with respect to the appointments book dealing with the provision of services by the three women. She lied in circumstances which lead to the conclusion that she knew that if she told the truth it would implicate her in the provision of sexual activities at her business premises and the provision of receipts which would enable her client to perpetrate a fraud on their private health insurers. I am satisfied that she deliberately told the lies, that they related to material issues in this proceeding, and that the lies were told to cover up the truth which Ms Li knew would prejudice her case.

297 In my opinion, Ms Li lied to this Court in relation to a number of matters. She lied in her evidence as to the reason why the three women were engaged in performing services at her premises, she lied in her evidence concerning the services provided to both Messrs Moor and Millar, and she lied in her evidence concerning the receipts and her attempts to explain the falsity. She deliberately lied as to the sexual service she provided to the witness Bill.

298 There is a substantial difference between the rejection of a witness’s evidence and a finding that the witness lied. The mere rejection of evidence does not logically lead to the conclusion that the person has lied. It is a finding that should not lightly be made.

299 Where a litigant deliberately gives false evidence in relation to an important issue in a proceeding, it is cogent evidence of an admission by that litigant that the truth would not assist the cause and indeed would damage it. I am satisfied that the lies told by Ms Li in court were deliberate, that they do relate to the material issues in the proceeding and that the reason she lied was that if she told the truth, her case would fail. …

300 I am satisfied that Ms Li lied in respect to a number of material issues and she lied because she knew that if she told the truth it would be established, first, that she was conducting an illegal brothel, secondly, that she was providing sexual services for money, thirdly, that she was a prostitute in the sense of charging for sexual services, and fourthly, that she had signed and issued false receipts to enable her patients to make an application for a refund from a private medical insurer. I am satisfied the false denials provide cogent evidence supporting the defence of justification that Ms Li was providing sexual services for clients and issuing them with false receipts to enable them to recover a refund from their private insurers.’

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