Warning: This is one of those stories where you dress up a
must-run correction with a bunch of other things which hopefully make
for an interesting package of information.

A liaison officer for the Victorian Supreme Court has been in touch to
point out that Justice Bernard Bongiorno was never formally listed to
hear the defamation battle between Dyson Hore-Lacy QC and Phil Cleary,
which I wrote about (item 15) last Thursday.

“His Honour is sitting in the Criminal Division of the Court for the
whole of the Court’s third term (until September). To suggest that Justice

Bongiorno disqualified himself from hearing the case in point is false and mischievous,”
Elizabeth Cruickshank wrote in an email.

Apologies for getting the wires crossed on this one. It seems that
Justice Bongiorno was widely expected to hear the case given that he is
the leading defamation judge on the Victorian Supreme Court and also
dealt with some of the earlier skirmishes in his role as manager of the
major torts list.

The parties were all geared up for a six day trial starting tomorrow when
the court was told last Wednesday that the case was being delayed until
31 October because there were problems finding “a Judge to hear the case in view of the parties involved”.

This was interpreted as Bongiorno conflicting himself out of the
matter but I now accept this is wrong and apologise to the judge.
Normally you are allocated a judge when you get a trial date but this
matter was clearly on the reserve list and then the potential judge got
jammed or conflicted out.

While on the matter of making legal clarifications, it should also be stressed that Hore-Lacy is alleging that Cleary’s book, Getting Away WithMurder,
contained the imputation that he was party to the manufacturing of a
“provocation defence” in the 2005 murder trial of James Ramage. Cleary’s legal team is strenuously denying this
interpretation.

We also should point out former NRMA chairman Nick Whitlam was not
“charged” by ASIC in 2003. The corporate plod’s ultimately unsuccessful
action against him should be
known as “proceedings” as there were no charges involved, civil or
criminal. And speaking of Whitlam, his stunning Supreme Court victory
over the NRMA last week is really worth reading in full.

While NRMA is talking about appealing, Eddie McGuire’s cost
cutters at Channel Nine won’t be enjoying the prospect of facing a
potential hit of up to $1 million in a defamation action by a litigious
individual who is now being funded by a $1 billion-plus mutual.

However, the situation does raise interesting questions over how the
case is run. Whitlam has already interviewed four QCs for the job and
each has observed his case over the Sunday cover story by John Lyons is very strong.
He would like to go with former MediaWatch
host Stuart
Littlemore QC but the ball is apparently in NRMA’s court as they will
get to choose the legal counsel who runs the case. Given that Whitlam
and NRMA now don’t get on and the mutual does advertise with PBL, the
motivations and incentives at work will be fascinating to watch,
especially as that John Lyons is such a protected favourite of PBL CEO
John Alexander.

Peter Fray

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