It
was set down to be the defamation case of the year in Melbourne. Dyson
Hore-Lacy QC, the last President of the Fitzroy Football Club, against
Phil Cleary, the feisty former independent Federal MP, author, football
legend, legal activist and spin doctor for the Electrical Trades Union.

At issue is Phil Cleary’s 2005 book, Getting Away With Murder,
his latest contribution to a long and successful campaign to overturn
the “provocation defence”, something he has pursued tenaciously ever
since his sister Vicki was stabbed to death outside a kindergarten in
1987 by her former boyfriend Peter Keogh. Cleary alleged that Dyson
Hore-Lacy “manufactured” a provocation defence in last year’s murder
trial of James Ramage, who strangled his wife to death.

The legal players in the ensuing defamation battle were exactly the same as the dramatic defamation struggle between Herald Sun
columnist Andrew Bolt and Victoria’s deputy chief magistrate, Jelena
Popovic, in 2002. News Corp ended up dropping an estimated $2.5 million
on this one after Justice Bernard Bongiorno, the former DPP who was
hounded out of office by Jeff Kennett, sided emphatically with his
legal colleague and was then backed up by the court of appeal and the
High Court.

Bolt was represented by Will Houghton QC and Popovic
hired Melbourne’s finest defamation silk, Jeffrey Sher QC. This time
around Houghton was defending Cleary, who is indemnified by his
publisher Allen & Unwin, and Hore-Lacy decided to take on the personal risk of a
six-figure hit by going with Sher.

Justice Bongiorno was once
again going to be sitting in judgment of a legal colleague and
Melbourne’s tight defo scene was looking forward to a six-day trial
starting next Tuesday. That was, until the judge stepped aside
yesterday “because of the parties involved”.

Phil Cleary’s book
was published last September and Hore-Lacy’s writ landed in November.
Why on earth Justice Bongiorno waited until five days before the trial
to declare a conflict of interest is hard to comprehend. It is not
entirely clear who the conflict is with because the judge presumably
knows Hore-Lacy from the legal circuit but he might have come across
Cleary in some way given his strong and vocal campaign against the
justice system and the alleged misogyny of those who ran and accepted
the provocation defence.

The parties are now looking for a new judge and the jury trial has been
put back until 31 October, smack bang in the middle of a Victorian
election campaign in which Cleary has publicly declared he may be
standing.

It
is fair to say that Dyson Hore-Lacy is a sensitive soul because this
writ puts him in the exclusive club of having taken defamation action
on three occasions or more. In this regard he joins the likes of Alan
Bond, Alan Jones, Kerry Packer, Jeff Kennett, Sir Joh Bjelke-Petersen,
Bob Hawke, Nick Bolkus and Steve Price, the last two of whom extracted
a combined $75,000 from Crikey in its wilder amateur days.

Peter Fray

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Editor-in-chief of Crikey

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