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[2024] FCA 951
Federal Court of Australia
2024-08-22
Collins AM, Wheelahan J, O'Callaghan J
Original judgment source is linked above.
O'CALLAGHAN J 1 This is an application by Mr Pesutto, the respondent in this proceeding, under s 47A(4)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act) for an order pursuant to s 47A(1) that a witness he intends to call at the upcoming hearing of this proceeding be permitted to give testimony by audio-visual link (or AVL), in circumstances where the applicant, Mrs Deeming, has said through her lawyers that the witness, Dr Matt Bach, is required to attend for cross-examination. 2 The application was opposed. 3 Mrs Deeming is a member of the Victorian Parliament in the Legislative Council, and a former member of the Victorian Parliamentary Liberal Party (the party). In this proceeding, she alleges that Mr Pesutto, the leader of the party, published a media release and said things in media interviews that were defamatory of her. The media release was published following a meeting held on 19 March 2023 between the leadership team of the party and Mrs Deeming regarding the events at a rally that occurred on 18 March 2023. Dr Bach, who at that time was the Deputy Leader of the Liberal Party in the Legislative Council, attended that meeting. 4 At the hearing of the application, Dr M J Collins AM KC appeared with Ms H Jager and Mr D Dexter of counsel for Mr Pesutto. Ms S Chrysanthou SC appeared for Mrs Deeming. 5 Mr Pesutto relied on an affidavit of Mr Peter Llewellyn Bartlett sworn on 16 August 2024. Mr Bartlett is a partner of MinterEllison, solicitors for Mr Pesutto. 6 Ms Deeming relied on an affidavit of Mr Petar Strkalj affirmed on 18 August 2024. Mr Strkalj is a solicitor employed by Giles George, solicitors for Mrs Deeming. He deposed to searches that he had carried out about the availability of flights from China to Melbourne at or around the time Dr Bach is expected to testify. But there was, in the end, no issue about such matters. 7 The trial of this proceeding (and two other related proceedings, since resolved) were set down for hearing by Wheelahan J in February this year to commence on 16 September 2024, on an estimate of three weeks. The proceeding was subsequently reallocated to my docket. 8 Section 47A(1) of the Act provides that "[t]he Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means". 9 Section 47A(4)(a) provides that "[t]he power conferred on the Court or a Judge by subsection (1) may be exercised: (a) on the application of a party to the proceedings …" 10 Section 47C provides: Video Link (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) … in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: (a) the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission; by way of the video link; (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; (c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link; (d) such other conditions (if any) as are imposed by the Court or the Judge. (2) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to: (a) the form of the video link; and (b) the equipment, or class of equipment, used to establish the link; and (c) the layout of cameras; and (d) the standard of transmission; and (e) the speed of transmission; and (f) the quality of communication. Audio link (3) The Court or a Judge must not exercise the power conferred by subsection 47A(1) … in relation to an audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to the audio link: (a) the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person ) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission; by way of the audio link; (b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; (c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link; (d) such other conditions (if any) as are imposed by the Court or the Judge. (4) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to: (a) the form of the audio link; and (b) the equipment, or class of equipment, used to establish the audio link; and (c) the standard of transmission; and (d) the speed of transmission; and (e) the quality of communication. … 11 There are no prescribed rules of the type contemplated by ss 47C(1), (2) and (4), including in relation to the standard and speed of transmission and the quality of communication of the video and audio links referred to in those sub-sections. It follows that the discretion to grant an order that a witness appear via AVL under s 47A(1) is enlivened if the court is satisfied that the conditions in ss 47C(1)(a) and (b) and 47C(3)(a) and (b) are met in relation to the audio and visual links. 12 The discretionary considerations to be taken into account are to be found in the cases. 13 Each case turns on its facts, and various factors will usually need to be weighed in the balance, with none being exhaustive or prescriptive. See eg Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 604-605 [10] (Gordon J). 14 In that case, Gordon J noted (at 604-605 [10]-[11]) that courts have taken a number of matters into account in exercising the discretion under s 47A(1) of the Act or its equivalents in other jurisdictions, including relevantly: the employment commitments of an overseas witness; whether the credibility of the witness is in issue; the importance of the witness' evidence to the case; whether the use of video link may frustrate or delay the management of documents in cross examination; and the costs involved in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence. 15 It is also well established that it is necessary for a party who is asking the court to exercise the discretion to make an order under s 47A(4)(a) to make out their case for making it, particularly if it is opposed by the other party, where the evidence is contested, the witness is to be cross-examined and questions of credit, credibility and reliability are involved. See, by way of example only, Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 at [50] (Wigney J). 16 As to the requirements specified in s 47C, Mr Bartlett deposed that Dr Bach could give evidence via AVL from the London office of MinterEllison, which he said would guarantee a stable internet connection; an IP address; compatibility with Microsoft Teams; private and secure conference rooms; audio-visual equipment suitable for cross-examination including television, webcam, backup speakerphone and uninterruptible power supply; and a religious text upon which an oath may be sworn. He also deposed that a MinterEllison solicitor in London could attend and ensure the logistical and technical requirements are satisfied, including access to an information technology contact within the firm that can provide further assistance if required. That evidence was not disputed. 17 Mr Bartlett gave the following evidence, upon information provided to him by Mr Dean Levitan, a solicitor at MinterEllison assisting him in this matter: Based on my understanding of the witnesses that are likely to be cross-examined in these proceedings, the likely order of the trial, and Dr Bach's availability (as set out below), I anticipate that Dr Bach will give evidence in the third week of the hearing, being the week commencing 30 September 2024. On 9 August 2024, Mr Levitan enquired with Dr Bach regarding his capacity to travel to Australia for the purpose of giving evidence in this proceeding from mid-September - early October 2024. I am informed by Mr Levitan that Dr Bach informed Mr Levitan that: (a) Dr Bach is employed as Assistant Headmaster and Head of the Lower School at Brighton College, England, where he is responsible for the pastoral care of 100 pupils - 55 of whom will be entirely new to the school when the school year commences on 28 August 2024; (b) He is a father to two children, aged 2 and 6 respectively, and shares caring responsibility with his wife who works part-time. In order to ensure their children will be taken care of, Dr Bach's wife would need to take time off from work should Dr Bach be required to attend Court in Australia in person; (c) Dr Bach's absence from the school will generate significant administrative and managerial difficulties for his employer given Dr Bach's responsibilities and role in assisting children settle into the school year, which is a significant transition period; (d) He teaches classes every day, and this year will teach two year 12 classes, one year 11 class, and one year 9 class, and that his absence for the purpose of this proceeding would have a significant deleterious impact upon approximately 80 students' learning; (e) He is scheduled to undertake a work trip to China to engage with Chinese families considering sending their children to Brighton College between 13-23 September 2024; and (f) Being required to attend in-person will cause significant inconvenience to Dr Bach, his employer, and his family. 18 None of the factual matters concerning Dr Bach to which Mr Bartlett deposed was challenged. 19 Mr Bartlett also identified the expenses that would be incurred by requiring Dr Bach's travel to and stay in Melbourne, such as airfares and hotel accommodation. 20 Mr Pesutto has caused to be filed in the proceeding two affidavits from Dr Bach, which he intends to rely on at trial. In his first affidavit, he deposes to his relationship and dealings with Mrs Deeming; how he became aware of the events of 18 March 2023 and his preliminary opinions on those matters; the events of 19 March 2023, including the meeting between the then leadership team and Mrs Deeming; and events and meetings between 20 March and 12 May 2023. 21 In his second affidavit, Dr Bach responds extensively to Mrs Deeming's account (in her affidavit) of the 19 March meeting, and to comments attributed to him by Mrs Deeming during a 27 March 2023 meeting. 22 At the hearing of this application, Dr Collins handed up a seven page aide-memoire, entitled "Points of difference in evidence of 19 March 2023 meeting", which sets out in tabular, summary form the points of difference between the evidence that Mrs Deeming proposes to give at trial and the evidence proposed to be given by Dr Bach and the other members of the leadership team. It was marked as "Exhibit MFIR1", and is attached to these reasons as Annexure A. 23 In his oral submissions, Dr Collins said that on the assumption that he overcame the technological hurdles in section 47C (about which there was no real issue): then it's a question of the interest[s] of justice, which is quintessentially an exercise of discretion, balancing the factors on each side. These seem to us to be the … key points going both ways in this matter. The first is that Dr Bach is not a party; he is a witness, which is a matter which sits on our side of the ledger. There is a dispute between us as to the extent to which his evidence is central and the extent to which he is likely to be confronted in cross-examination with questions that will require a credit assessment. We don't shy away from the fact that his credit may well be in issue, nor do we shy away from the fact that his evidence is relevant to the issues in the proceeding. But I do want to take your Honour to the pleadings and the affidavits to seek to persuade your Honour that our learned friends have over-egged the pudding, that it's - [Dr Bach's] evidence, while relevant, can't be said to be central, and certainly not likely to be dispositive. One of the things said against us is, well, in those circumstances, why call him at all. And I will explain to you why we - why Mr Pesutto wishes to call him. The final matter which we would submit likely is the dispositive matter on the evidence is that requiring Dr Bach to come to Victoria to give evidence will be disruptive not only to him and to his employment arrangements but to third parties … 24 Dr Collins continued, submitting that "the most significant matter on our side of the ledger is that": unlike most cases, this is a case where your Honour has uncontested evidence of quite significant disruption to third parties, who, of course, have got nothing to do with and no interest in this litigation, being the students whose learning will be further disrupted by Dr Bach's absence if he has to travel from London to Australia. 25 Ms Chrysanthou made the following points in response. 26 First, she submitted that Dr Bach voluntarily gave his first affidavit in May this year, at a time when he was already working at the school in England. So, it was submitted, he knew then that there was a likelihood that he would have to attend the trial in September and that he would be inconvenienced in doing so. 27 Secondly, Ms Chrysanthou submitted that despite knowing that it was likely he would have to attend the trial in Melbourne in September, it appeared that Dr Bach had not made any attempt to make arrangements to give testimony in Australia, and that the evidence indicated that Mr Pesutto's solicitors had not spoken to Dr Bach about attending in person until 9 August 2024. On that basis, she contended that an available inference was that both Dr Bach and Mr Pesutto's solicitors had assumed that he would never have to attend in person and presumed that he would be permitted to give evidence via AVL because he resides overseas. In Ms Chrysanthou's submission, that was relevant to the point about the inconvenience that would result to Dr Bach's pupils and his family because: [h]ad Dr Bach told his employer in May that he was going to have to come to Melbourne to give evidence in September, then Dr Bach's employer might have sent some other person to China for 10 days to convince Chinese families to send their children to the school in England. And then both Dr Bach's family and his students would have only been inconvenienced by the five-day trip to Melbourne, as opposed to what he's now faced with, which is his 10-day marketing trip for the school to China, perhaps in addition to another four or five days coming to Melbourne from there. 28 Thirdly, Ms Chrysanthou submitted that where: (a) a witness can come to Australia; (b) the inconvenience does not appear to be that significant; and (c) the cost is not such as to cause a significant increase in the expenditure, having regard to the cost of the trial as a whole, "the only thing that is left is, he happens to live overseas, and that plainly isn't a proper basis on its own to make the order". 29 Fourthly, Ms Chrysanthou submitted that the meeting on 19 March "is a key event in the case", including because: [t]he interactions between Mrs Deeming and the respondent, what was said, what Mr Pesutto heard, any admissions that my client is said to have made, is a key issue in the contextual truth defence. But [it] is also a key issue for honest opinion in section 29A, which as my learned friend rightly said, turn[s] on the state of mind of his client. State of mind can be determined by your Honour having regard to the information that Mr Pesutto had prior to publication. That's one way to determine his true state of mind. And on any view - and I thank my learned friends for preparing this helpful table - there's said to have been a lot of information exchanged at this meeting on 19 March which is key to whether what Mr Pesutto then went on to publish that day and on subsequent days ... And in order to make good his honest opinion defences and his reasonableness for the purposes of section 29A, your Honour will need to make findings about what information Mr Pesutto had. Now, the fact that we have five affidavits on the respondent's side which give a similar account of what happened at that meeting is something that will make the cross-examination of each of these witnesses even more important. 30 Fifthly, Ms Chrysanthou said that it is obvious from the fact that the entirety of Dr Bach's second affidavit is dedicated to disagreeing with Ms Deeming's account of the 19 March meeting, "credit will be a significant issue". 31 In my view, this is not an appropriate case to allow Dr Bach to give evidence by AVL. 32 It is readily apparent from the aide-memoire document that there is, on the face of it, a real and fundamental dispute involving issues of credit, credibility and reliability between Mrs Deeming, on the one hand, and the five members of the leadership team, on the other hand, in particular about what happened at the 19 March meeting. It is neither productive nor appropriate in an application such as this to explore the nature and extent of that dispute, beyond that identified by Mr Pesutto's counsel in the aide-memoire. 33 As Buchanan J said in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 171 [78]: I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom … [T]here is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross- examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a crossexaminer of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. 34 Although those observations were made 15 years ago, they remain as relevant now as they were then, and they have been adopted with approval on many occasions since. See Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 603-604 [8] (Gordon J); Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [45]-[46] (Perram J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 531 at 536-537 [16]-[17] (Besanko J); Southernwood v Brambles Ltd (No 2) [2022] FCA 973 at [29]ff (Murphy J); Joy v UGL Operations and Maintenance Pty Ltd (No 3) [2024] FCA 279 at [64]-[66] (Feutrill J). And they apply with greater force when the credit, credibility and reliability of an important witness is sought to be challenged. 35 In those circumstances, and given that oral evidence at a trial is generally to be given directly to, and in the presence of the court, it is necessary for Mr Pesutto, in asking the court to exercise the discretion to make an order under s 47A(4)(a), to point to convincing reasons why the cross-examination of Dr Bach should be permitted to occur other than in person. 36 I accept that Dr Bach's absence for a further period of five days (further to the China trip, that is) will likely cause some disruption to his pupils at the school and will inconvenience his wife and small children. But in the scheme of things, I do not give those matters significant weight - including because Dr Bach must have known in May when he swore his first affidavit that there was a likelihood that he would have to attend the trial in September in person, that certain inconvenience would be caused to his students and family as a result, and that he would need to make arrangements accordingly. 37 The additional costs involved in having Dr Bach attend in person, though not trifling, are, as Dr Collins said, "not sheep stations" in the context of a three-week trial, where both sides are represented by senior and junior counsel and well-resourced solicitors who specialise in defamation law. 38 It follows that Mr Pesutto's application is to be dismissed, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.
Annexure A Deeming v Pesutto Points of difference in evidence of 19 March 2023 meeting Point of difference Deeming's evidence Respondent's evidence Tone of meeting [87]: Deeming felt the Leadership Team ambushed, attacked and bullied her at the meeting. Southwick [37(h)]: The Leadership Team gave Deeming a lot of opportunities for a different outcome. Reply [88(c)]: Deeming recalls the meeting felt like a pile on. Crozier [35]: The discussion was open and supportive, and Deeming was invited to speak and respond throughout. The Leadership Team did not ambush or attack Deeming or set up an us vs. her scenario - Crozier was sitting next to Deeming. Reply [90(c)]: Deeming felt she was 'ambushed and attacked' and it was an 'us versus her scenario'. Pintos-Lopez [38]: The tone of the meeting was professional and measured. Pesutto was courteous to Deeming. Bach Reply [6], [9]: The Leadership Team did not attack Deeming or her views at any point during the meeting. Bach considered that Pesutto, Southwick and Crozier were particularly soft and gentle with Moira. They dealt with her with 'kid gloves'. They did not interrogate her. Whether the Leadership Team attacked Deeming's advocacy for sex-based rights [60]-[61], [63], Reply [88(a)]: the Leadership Team attacked Deeming for her advocacy of sex-based rights and child safeguarding, which Pesutto called 'fringe' issues. Southwick [37(a)-(c)]: Pesutto opened the meeting by saying this has nothing to do with the cause Deeming is advocating, but who turned up at the rally and who Deeming associated with in organising and speaking at the rally. Southwick Reply [8]-[11], [21]: The focus was not on advocacy for sex-based rights. The focus of the meeting was to denounce the actions of the neo-Nazis at the rally and the words and images used by Keen and Jones that contained reference to Nazi symbols or rhetoric. Pesutto [83]: Pesutto said at the meeting words to the effect of we're trying to win the next election, we want to focus on issues as a team and focus on the budget and cost of living, things like the rally are distracting us and taking us off message, and we need you to be part of the team. Pesutto Reply [9(b)], [10(c)]: Deeming's account focuses on alleged child safe-guards and sex-based rights, whereas the focus of Pesutto's concern and how he sought to frame the discussion was the use of Nazi symbols and analogy. Pesutto strongly disagrees that Deeming was attacked at all during the meeting, or that she was attacked for her advocacy of sex-based rights and child safeguarding. Pintos-Lopez [35]: Pesutto spoke first and expressed his concern and disappointment at Deeming's attendance at the Rally. Crozier Reply [8]: No one attacked Deeming for her views about sex-based rights. What the Leadership Team was asking of her had nothing to do with her views on sex-based rights. Bach Reply [3]-[6]: Bach does not recall Pesutto describing sex-based rights as a 'fringe' issue. The concern of the meeting was never about Deeming personally or her own views. 'Independent MP' comment [60], Reply [88(a)]: Pesutto said if Deeming wanted to advocate for these issues, he and the Leadership Team were of the view that she would be better suited to be an Independent rather than a Liberal Party MP, given Pesutto was trying to 'modernise' the Liberal Party in Victoria. Southwick Reply [10]: Southwick does not recall Pesutto saying if Deeming wanted to advocate for 'fringe' issues, he and the Leadership Team were of the view that she would be better suited to being an Independent rather than a Liberal MP. Reply [88(h)]: Pesutto started the meeting by saying he thought Deeming would be better suited to be an Independent rather than a Liberal Party MP. Crozier Reply [6]: This is not how the meeting started, nor was it a central focus of the meeting. After Deeming had remained defiant and refused to do what the Leadership Team was asking to do to protect the Party, someone from the Leadership Team asked her if she thought she would be better off as an Independent given she wanted to advocate for these issues. Pesutto Reply [10(a)]: Pesutto recalls suggesting to Mrs Deeming at one stage that she may be better suited to being an independent MP, and it is unlikely he used the term 'fringe' to describe her views on sex-based rights and transgender issues. 'Third strike' comment [64] One of the Leadership Team said the rally was Deeming's 'third strike' (strike 1 being her maiden speech and strike 2 being her International Women's Day speech). Pesutto Reply [10(d)]: Pesutto does not believe he or anyone used the phrase 'third strike', and he does not recall any mention of Deeming's International Women's Day Speech. Bach Reply [7]: Bach does not recall anyone using the language of 'third strike', but there may have been talk during the meeting about Deeming's previous conduct in the context of the counselling she had received about respectful engagement with issues. 'Attitude problem' comment [65] Pesutto said that Deeming's response showed that she had an 'attitude problem'. Crozier Reply [9]: Crozier does not recall anyone saying Deeming had an attitude problem. Deeming downplaying her involvement in the rally and equivocating about whether the men were Nazis Reply [89(b)]: Deeming denies trying to downplay her level of involvement in the rally, although may have said she was not an organiser. Deeming does not recall equivocating about whether the men in black who performed the Nazi salute were in fact really Nazis. Southwick [37(b)]: Deeming attempted to downplay her involvement in the rally. Deeming equivocated about whether the men in black who performed the Nazi salute were in fact really Nazis. Whether Deeming was shown material [69]-[72]: Pintos-Lopez read out from his laptop that Keen was a 'known supporter of Nazism'. Deeming asked to see what was on the laptop screen but they refused to show her the evidence. Crozier said 'it's all over the Internet' and Pesutto said 'it took Rod ten minutes to find this information'. They pressed Deeming to denounce Keen as a Nazi, which Deeming refused to do without seeing evidence. Southwick [37(d)]: Pintos-Lopez ran through the Dossier and the Jones Tweet. He showed Deeming the material in the Dossier. [76]: Bach or Pintos-Lopez read out the Jones Tweet. Southwick Reply [13]: Pintos-Lopez did not turn his laptop away and Deeming was shown various images. Reply [85]: Deeming does not recall being shown anything in the meeting. When she asked to see what was on the screen, Pintos-Lopez tilted the laptop further away from her. Deeming asked to see the evidence and Crozier said 'it's all over the Internet'. Deeming points to handwritten notes of this exchange made a day or so after the meeting (pages 2-5 of Exhibit MD-1). Crozier [33]: Deeming was shown the material and information that had been collated that would ultimately appear in the Dossier. Reply [86]: Deeming recalls the Leadership Team discussing the Jones Tweet, but not the Nazi Barbie Doll or Pridestapo images. Crozier Reply [11]: Crozier said 'it's all over the internet' because it did not seem credible that Deeming was not aware of Keen's public associations and notoriety. Pintos-Lopez did not turn the laptop away from Deeming and refuse to show her the material. Crozier's recollection is Pintos-Lopez had print outs of the social media posts. Reply [89(d)]: Pintos-Lopez read out the content from his laptop but did not show it to Deeming. Deeming denies that she was given a proper opportunity to comment or respond. Pesutto [86]: Pesutto showed Deeming the research his office had conducted. Pesutto specifically recalls Deeming being shown the Nazi Barbie Doll image, the Pridestapo image and the Jones Tweet. Pesutto Reply [10(f)-(g)]: Pesutto thinks it is unlikely he would have used the phrase 'known supporter of Nazism'. Pesutto does not consider that Pintos-Lopez turned a laptop away from Deeming or that anyone refused to show her any of the material. Pesutto recalls saying words to the effect that, it didn't take long to find this information, and Dan Andrews' team or the government would have found it in no greater amount of time. Bach [27(d)]: Deeming was shown the barbie doll image, the Pridestapo image and the Jones tweet. Bach Reply [10]: Pesutto did not use the phrase 'known supporter of Nazism'. He was much more careful and nuanced in his language throughout the meeting. Bach Reply [11]: Bach does not recall Deeming asking to see Pintos-Lopez's laptop or Pintos-Lopez turning his laptop away from Deeming. Bach was sitting right next to Pintos-Lopez - he believes he would remember if he had done that. Pintos-Lopez [36]: At Pesutto's request, Pintos-Lopez set out the materials that he had discovered from his research, including describing and showing the social media posts by Keen using the Nazi Barbie doll and the Reichsadler LGBTQI+ flag. Pintos-Lopez Reply [4]-[6]: Pintos-Lopez sat across the table from Deeming with Pesutto to his immediate right. He read to Deeming a list of the relevant material and while doing so showed Deeming social media images by turning his laptop around and holding it up towards her. Deeming did not ask to see Pintos-Lopez's laptop and Pintos-Lopez did not purposefully turn his laptop away from Deeming at any point during the meeting. Deeming's response to material (Nazi Barbie Doll, Pridestapo image, Jones Tweet) [70]-[71]: Having not been shown the material, Deeming expressed doubt that the material was true. Southwick [37(e)]: Deeming said the Jones Tweet 'wasn't meant to be serious'. Reply [86], [88(e)]: Deeming does not recall the Leadership Team describing the Nazi Barbie Doll image or Pridestapo image to her. Instead, the Leadership Team was suggesting Keen was a Nazi and had association with Nazis, and were reading text in support (rather than talking about images). Deeming does not recall saying any of the content was a joke or laughing it off, but rather that she became suspicious as to the accuracy of the claims and expressed doubt as to whether they were true. Deeming said it is possible she said they were a 'misunderstanding' because even though none of what they were saying made logical sense to her, they were demanding that she respond. Southwick [37(f)]: When shown the Nazi Barbie doll and Pridestapo images, Deeming said words to the effect of 'I guess that's not a great look' or 'that could look bad'. Reply [89(f)]: Deeming does not think she would have said 'I guess that's not a great look' or 'that could look bad' because she was not shown the images and does not recall the images being raised at all. Pesutto [87]: Deeming said in substance that's a joke, you are misunderstanding, and laughed off the images. Reply [89(e)]: Deeming says it is possible she said she was confident Jones did not mean the Jones Tweet in the way the Leadership Team was interpreting it. Pesutto Reply [10(h)]: Deeming did not say words to the effect that these were not real posts or Keen had not done what had been reported, but responded to the effect that the Leadership Team was misinterpreting it, taking it out of context, and/or not recognising that it was just a joke. Reply [91(c)]: Deeming does not recall describing the tweets as 'jokes' and was not refusing to distance herself from them, but rather refusing to denounce them as evidence of Nazism without seeing them or properly understanding them. Pesutto Reply [10(k)]: Deeming said words to the effect that the Jones Tweet had been taken out of context, and that it was one tweet in a thread. Bach [29]: Deeming tried to justify the tweets by Keen and Jones as jokes. Bach Reply [11]-[12], [18]: Deeming did not dispute the accuracy or veracity of what was being put to her, but rather the meaning or interpretation of what was being put to her. Pintos-Lopez Reply [7]: At no point did Deeming comment on the veracity of the material that was read or shown to her. Crozier Reply [12]: Crozier does not think Deeming said words to the effect that she doubted the material she was shown was true. Deeming's response to video after the rally Reply [89(g)]: Deeming does not recall this exchange. Southwick [37(g)]: Deeming said she had said something in the champagne video that showed she disagreed with the other participants' views about the Nazis, in response to which Southwick said she made a joke about the Nazis rather than clearly denouncing them. Leadership Team's request to Deeming to issue statement and Deeming's response to request [72]-[73], Reply [88(i)]: the Leadership Team kept pressing Deeming to denounce Keen as a Nazi but she refused to do so without seeing evidence. Deeming said the Nazis had nothing to do with the rally, and they could see for themselves from Keen's or Fernando's livestream footage. Southwick [37(h)-(i)]: The Leadership Team told Deeming that MPs make mistakes and all she needed to do was put out a statement distancing herself from the Nazis who turned up at the rally and the organisers. In response, Deeming said she blamed the police and refused to put out a press release. Reply [88(g)]: Deeming offered to call out and condemn the Nazis, and disputes that she said words to the effect that she stood by Jones and Keen, rather than that she would not denounce them as Nazis without proof. Southwick Reply [11], [21]: The Leadership Team sought to help Deeming to understand that it was incumbent upon her to denounce the neo-Nazis that arrived at the Rally, and the images used by Keen and Jones that contained reference to Nazis symbols or rhetoric. The Leadership Team did not ask her to make a statement denouncing the Rally or LWS more broadly, or Keen or Jones personally or in a broad sense. Reply [89(h)-(i)], [90(b)-(c)], [91(c)], [92(c)-(d)]: The Leadership Team was focused on getting Deeming to denounce the organisers of the Rally as Nazis but Deeming refused to do so without evidence. Crozier [35]: The Leadership Team requested Deeming issue a statement condemning presence of neo-Nazis on the steps of Parliament. Crozier Reply [8], [10]: The Leadership Team asked Deeming to put out a clear statement condemning the Nazi presence at the Rally. Pesutto [89]: The Leadership Team was asking Deeming to call out and distance herself from Keen and Jones and their use of Nazi analogies in the Nazi Barbie Doll image, the Pridestapo image and the Jones Tweet. Deeming said words to the effect that she was prepared to call out the Nazi presence at the Rally, but she stood by Jones and Keen, and was not going to say anything condemning them or expressing any disapproval of what they had done. Bach [29]-[30]: The Leadership Team tried to impress upon Deeming that she would have to back away from these people and put some distance between them and the Party. At one stage Deeming offered to make a statement saying something like "I am not a Nazi", to which someone responded to the effect we know you are not, but you cannot be associated with these people. You need to demonstrate a clear break. Bach Reply [13], [17]: No one ever said that Deeming had to denounce Keen as a Nazi. The Leadership Team wanted Deeming to put some distance between the Party and Keen, and in particular Keen's social media posts that adopted Nazi imagery. Deeming offered to condemn Nazism and transphobia but didn't seem to understand that the Leadership Team's concern was also with the particular posts by Keen and Jones. Pintos-Lopez [37], [39]: Pesutto explained to Deeming that she needed to publicly distance herself from the organisers of the Rally. Deming said she would not distance herself from Keen and Jones. Deeming's claim that she had already denounced the Nazis [74], [79]: Deeming reminded the Leadership Team she had already denounced the men on social media and had arranged for Keen to put it on the public record that the neo-Nazis had nothing to do with the rally and that the organisers rejected them. Southwick Reply [15]-[16]: Does not recall Deeming saying this and would have remembered if she did, as he did not believe that had occurred and if it had, it would have resolved most of the Leadership Team's concerns. Crozier Reply [14], [16]: Crozier does not recall Deeming saying those things. Bach's criticism of Deeming in the meeting [76]-[77]: Bach criticised Deeming's video after the rally with Deves, Jones and Keen as 'drinking champagne with Nazi bigots'. The Leadership Team continued to argue with Deeming about how Deves, Jones and Keen were Nazis and bigots. Southwick [37(j)]: Bach said to Deeming words to the effect, you have just lied to us. Pesutto [88]: Bach expressed the view that what Deeming was saying was simply not credible. Bach [28]: Deeming said she was not aware of Keen's or Jones's background or associations before the Rally. In response, Bach said something to the effect of that cannot be right - you have relationships with them, you took them into the precinct, you shared a stage with them, you can't not have known about their backgrounds. Bach Reply [6]: Bach spoke in a more direct and forthright tone with Deeming than the others did, particularly towards the end of the meeting when it was becoming clear that Moira simply didn't understand the problem the Leadership Team had with her conduct. Bach Reply [10]: In response to Deeming saying she had never heard or seen any such allegations against Jones or Keen, Bach said words to the effect of, I just don't believe you - you walked them through Parliament House and you organised an event with them. Bach Reply [14], [16]: Bach categorically denies that he called Keen or Jones 'Nazis' or 'Nazi bigots'. Bach does not believe he called Jones a 'bigot'. Crozier Reply [15]: Crozier does not recall who, but members of the Leadership Team repeatedly said words to the effect of, you're out there sipping champagne with these women who have done these viral posts, how can you support that? Bach's 'can't be rehabilitated' comment [80]: Bach said to Deeming, 'because you have even challenged us on this issue, it shows that you can't be rehabilitated'. Bach Reply [19]: Bach said something to the effect that Deeming cannot be rehabilitated but this was in the broader context of a discussion about the numerous times that Crozier had tried to counsel Deeming in relation to issues that the Leadership Team knew were important to her while also expecting her to be a team player. Conclusion of meeting [82]-[83]: The Leadership Team left the room for a private discussion. 30 minutes later, they returned and Pesutto said because Deeming refused to condemn the women or the rally, they had decided to move a motion to expel her, or she 'can make it easier on us all' by resigning. Southwick [37(k)-(m)]: In the private meeting, the Leadership Team unanimously agreed that they would move a motion to expel Deeming. They returned to the meeting with Deeming and Pesutto told Deeming of this decision. Reply [88(h)]: Deeming recalls Pesutto ended the meeting by proposing to expel her or she could make it easier for them by resigning, and Deeming refused to resign. Crozier [39]: When they returned to the room with Deeming, someone said to Deeming they were concerned about her behaviour and were considering their options. Crozier Reply [17]: Crozier agrees Deeming was given the option to resign, but that in the absence of the requested condemnation, there would be a motion to expel her from the Parliamentary Liberal Party. Pesutto [90], [92]-[93]: At some point during the meeting Pesutto gave Deeming the three options of leaving the Liberal Party and becoming an Independent MP, apologising for attending the rally and distancing herself from the speakers and other organisers, or they would move a motion to expel her. The Leadership Team later went into a separate meeting and when they returned, Pesutto said they would bring a motion to expel her. Bach [36]: When they returned to the room with Deeming, Pesutto told her the Leadership Team had decided they were going to move a motion to expel her from the Party. Bach Reply [20]: At some stage Pesutto suggested an alternative option would be for Deeming to resign. Pintos-Lopez [41]: Pesutto told Deeming that because she would not make a public statement condemning the neo-Nazis and distancing herself from Keen and Jones that the Leadership Team would move that she be expelled from the Party.
Deeming
Pesutto
(2009) 181 FCR 152
(2015) 231 FCR 531
(2012) 288 ALR 601