Barrister casts light on case of missing witness Joe Aston

Justice Michael Lee had questions for the Australian Financial Review’s Joe Aston, but he was nowhere to be seen yesterday.

Joe Aston. Picture: Christian Gilles

“Where is the witness?”

Where indeed? The Australian Financial Review’s Joe Aston had not been excused from his defamation hearing in Sydney’s Federal Court on Tuesday afternoon. Justice Michael Lee was expecting him back in the witness box on Wednesday morning.

“I want to ask questions,” Justice Lee said.

But Aston was nowhere to be seen. His barrister, Sandy Dawson SC, had told him not to come.

Meaning we can’t really say: “Aston, we have a problem.”

It wasn’t his fault. His presence was missed, however.

Aston, a self-described gossip columnist, and his employer, Nine Newspapers, are being sued by venture capitalist Elaine Stead over two articles and a tweet, in which Aston called her, among other things, a cretin, and a pyromaniac when it came to other people’s money. He says he has an honestly held opinion, which he’s entitled to express.

Dr Stead, who is formerly a director of the failed Blue Sky investment vehicle, says her mental health and professional reputation have been harmed.

Aston has come from his new home in Los Angeles to defend his position, and this week he has brought to court the vim and verve he brings to journalism.

His failure to appear wasn’t deliberate. He knows that he’s Nine’s best weapon in court. So, when Justice Lee inquired “Where’s the witness?” it was for a sheepish Mr Dawson to reply: “I’m sorry … I thought Your Honour had excused him.”

“No, I didn’t,” Justice Lee said.

Mr Dawson immediately offered to summon Aston, or bring him to court via Microsoft Teams.

“Don’t worry about it, that’s fine. That’s fine,” Justice Lee said. “I just wanted to ask one or two questions, but it doesn’t matter. It’s fine. It’s fine.” He then revealed that Aston’s absence wasn’t the only problem on Wednesday morning. There also had been a contempt of the court.

Apparently one of Statler and Waldorf-style characters who have been gathering on the court live-stream every day to watch proceedings had taken it on themselves to make screenshots of images from the court and post them to social media.

That is an offence under the Federal Court of Australia Act 1976. Nobody is allowed to broadcast from the court without the judge’s permission.

Justice Lee therefore has asked anyone who has made recording or taken a screenshot to please destroy those tapes and images, and to refrain from publishing them. Virtual court isn’t something anyone wants to lose.

The rest of the day was taken up with argy-bargy between Mr Dawson and Dr Stead’s barrister, Sue Chrysanthou SC, over which bits of evidence might be included in final submissions.

For example, Blue Sky invested in Australian biotech company Hatchtech, which reportedly has secured what any parent of a child under 10 might regard as the barnet Holy Grail: a one-time nit treatment. The court heard that Aston’s colleague, Carrie LaFrenz, had written an article this year about the success of the product. Dr Stead’s team wanted to include that article.

But Justice Lee complained: “I wouldn’t know Carrie LaFrenz if she popped up in my porridge.”

Blue Sky also invested in online homewares store Temple & Webster, which had a shocker of an IPO, with many early investors quickly under water.

But then came COVID-19, during which everyone in Australia apparently went on a home comforts splurge. Temple & Webster’s revenue reportedly is up 90 per cent in the first six months of 2020. Its share price is up more than 200 per cent, even taking account recent falls.

You can see where this is going: Dr Stead’s legal team is trying to prove these investments were her ideas, and they weren’t stupid. Ergo, she’s not stupid, and Aston therefore can’t have honestly formed the opinion that she is stupid.

Just as court was due to rise, Mr Dawson announced that he had received a “message from an understandably concerned Mr Aston who doesn’t want Your Honour to assume any disrespect” that he’d missed court.

The good-natured Justice Lee waved his concerns away. “No, no, I work on the default position that it’s your fault, Mr Dawson,” he said. Mr Dawson sighed, saying the judge could in that case join colleagues, wife, children and “a long list of other people who think that”.

The hearing continues.