Joe Aston defends defamation charges brought by Elaine Stead

‘I want to ask questions,’ said Justice Lee but Joe Aston had failed to return to the witness box for his defamation case.

Columnist Joe Aston and venture capitalist Elaine Stead. Picture: Jane Dempster/Britta Campion

Justice Michael Lee had one question on when the defamation trial against the Australian Financial Review’s columnist Joe Aston resumed in the Federal Court on Wednesday: where’s Joe?

After eight hours of cross-examination across Monday and Tuesday, and a brief re-examination from his lawyer Sandy Dawson SC, Mr Aston was nowhere to be seen on the sixth day of proceedings.

“Where’s the witness?” Justice Lee asked.

Mr Dawson looked surprised, lightly shrugging his shoulders.

“I want to ask questions,” Justice Lee pressed on after gaining no response from Mr Dawson. “He wasn’t excused.”

Mr Dawson replied: “I’m sorry your honour, I thought your honour had excused him”.

“No I didn’t. I said (Mr Aston) was excused for today (Tuesday).”

Mr Dawson apologised, saying it was his “mistake” for Mr Aston’s non-appearance and said he could summon him.

“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.”

Elaine Stead leaving the Federal court with her lawyer Sue Chrysanthou on Tuesday. Picture: Jane Dempster/The Australian.

Former Blue Sky director Elaine Stead alleges that the Nine-Fairfax columnist defamed her in two Rear Window columns he published in February and October last year as well as in a tweet. Mr Aston’s columns stated Dr Stead “deliberately destroyed the capital of business ventures with which she was associated” and “wantonly lost millions of dollars entrusted to her” as well as referring to her as “stupid” and a “feminist cretin.”

Mr Dawson dropped the truth defence to the defamation allegations in October and are relying on an “honest opinion” defence — namely that Mr Aston honestly believes that Dr Stead is stupid and a bad venture capitalist.

Mr Dawson suggested that Mr Aston could answer Justice Lee’s questions via Microsoft teams - the online meeting streaming software that has allowed almost 200 people to view the defamation proceedings.

“It’s fine,” Justice Lee repeated. “But I hadn’t excused him. I excused him and asked him to come back at 10:15am (on Wednesday) if you read the transcript.”

Mr Dawson replied: “Yes, your honour is right. It’s my mistake.”

Speaking of Microsoft Teams, Justice Lee started day six with a warning after a viewer recorded a screenshot of the proceedings, which he said could constitute contempt of court.

“It definitely appears to be ordinarily there would some communication with my associate or some inquiry with the court or some going through the court platform, which would make it clear that members of the public who attend the hearing via these methods do so on the condition that they are permitted to observe and listen to the hearing but under no circumstances are permitted to participate in the hearing and be prohibited from making recordings or photographic record of the hearing.

“And also the court’s noted on a number of occasions that a failure to observe these conditions may constitute a contempt of court and be punishable as such.”

Among those who dialled into the virtual courtroom included Dean Paatsch from Ownership Matters, whose organisation had penned reports on governance at Blue Sky, had dialled in, along with a clutch of public relations operatives and journalists keen to watch Mr Aston in the dock.

Evidence delivered on Tuesday included Dr Stead’s lawyer Sue Chrysanthou SC going through a laundry list of Mr Aston’s social media accounts including “pictures of food” “selfies”, images Mr Aston posted about his feet and posts “about how hungover” he was.

Mr Aston had earlier defended labelling Dr Stead “stupid” because of her “banal “ use of social media while Blue Sky was in crisis, including when it was suspended from trading due to fraud allegations.

“Have you ever posted anything banal on Instagram, Mr Aston?” Ms Chrysanthou inquired, listing off his many social media posts.

“Yes, certainly not while my company was in a trading halt ,” Mr Aston quipped.

Among Mr Aston’s other social media posts were a recipe for chocolate-covered Arnott’s Jatz crackers, which prompted Justice Lee to interject, seeking more information.

Ms Chrysanthou tried to explain that apparently you could combine Jatz crackers with chocolate, “and it’s delicious”.

“No, I did not say that,” Aston retorted. “I suggested that was a crime against food.”

“That should be an agreed fact,” said the judge quietly, prompting Mr Dawson to solemnly bow his head.

How today’s hearing unfolded

David Ross 11.50am: Court adjourned

The hearing has now wrapped up for the day and the court has been adjourned until 9.30am on Thursday for the seventh day of hearings.

This comes after a morning of arguments over which documents should be tendered and considered by the court and a no-show by AFR columnist Joe Aston.

David Ross 11.37am: ‘Understandably concerned’

The court has heard from Aston’s lawyers that “an understandably concerned Mr Aston” had been in contact after it emerged that he had failed to appear on the sixth day of hearings.

However, Justice Lee said it was not an issue and he would raise the questions he hoped to ask Aston on Wednesday in submissions.

David Ross 11.31am: ‘If she popped up in my porridge’

Lawyers for Elaine Stead have attempted to include an article from Aston’s colleague Carrie LaFrenz, which highlighted the success of one of Blue Sky’s more successful investments Hatchtech.

LaFrenz had written an exclusive article in April, saying that Hatchtech had got the nod from the US Food and Drug Administration for its one-off head lice treatment product.

But Justice Lee believed there was an easier way than tendering LaFrenz’s scoop as official evidence.

“I wouldn’t know Carrie LaFrenz if she popped up in my porridge,” he said.

“In my view there is a simple way of proving that if you want it (to include the point in the article).

“I’ve wasted now 15 minutes of court time with something that I could imagine would be solved by someone doing a website search on the US Food and Drug Administration.”

David Ross 11.25am: Hatch job on HatchTech?

The fate of biotech HatchTech is being debated by the parties. Counsel for Dr Stead is discussing an article from the AFR about the success of biotech HatchTech’ s head lice treatment product.

Troubled venture capital fund Blue Sky was an investor in HatchTech.

The biotech achieved a milestone in August 2020 after its head lice treatment product was approved by the US Food and Drug Administration.

This comes amid the debate over accusations from Aston that Dr Stead was a poor investor.

David Ross 10.50am: Point of dispute

The court has heard both sides in the defamation case putting forward the material that should be considered in reaching a judgement.

One area of dispute is an attempt by Aston’s lawyers to submit documents showing the failure of venture capital funds which Dr Stead oversaw during her time at Blue Sky.

The funds were wound up after Dr Stead left Blue Sky.

Jared Lynch 10.37am: ‘Where’s the witness?’

Justice Michael Lee has one question on when the defamation trial against the Australian Financial Review’s columnist Joe Aston resumed in the Federal Court on Wednesday: where’s Joe?

After eight hours of cross-examination across Monday and Tuesday, and a brief re-examination from his lawyer Sandy Dawson SC, Aston was nowhere to be seen on the sixth day of proceedings.

“Where’s the witness?” Justice Lee asked.

Mr Dawson looked surprised, lightly shrugging his shoulders.

“I want to ask questions,” Justice Lee pressed on after gaining no response from Mr Dawson. “He wasn’t excused.”

Mr Dawson replied: “I’m sorry your honour, I thought your honour had excused him”.

“No I didn’t. I said (Aston) was excused for today (Tuesday).”

Mr Dawson apologised, saying it was his “mistake” for Aston’s non-appearance and said he could summon him.

“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.”

David Ross 10.21am: Aston not in court

Joe Aston is not in the court amid confusion between his legal team and the judge.

Aston’s lawyer Sandy Dawson said his client was under the impression that he was not required on Wednesday to attend.

However, the judge said Aston had not been excused and had been asked to come back on Wednesday.

David Ross 10.10am: Hearing resumes

The sixth day of a high-profile defamation hearing pitting Australian Financial Review columnist Joe Aston against businesswoman Elaine Stead will shortly kick off.

Aston is set to again take to the stand, continuing the questioning from Tuesday that saw his interactions with others regarding Dr Stead subjected to legal scrutiny.

Lawyers for the columnist are arguing his views on Dr Stead, describing her as a “stupid cretin” who set fire to other people’s money, were honest opinion, after abandoning a truth defence in October.

Jared Lynch 10.00am: ‘Faceless men’ behind Aston’s view, court told on Tuesday

“Banal” social media posts were the “primary catalysts” for The Australian Financial Review articles in which columnist Joe Aston called former Blue Sky director Elaine Stead “stupid” and a “cretin”.

So it was no surprise when Dr Stead’s lawyer, Sue Chrysanthou SC — considering that had been a benchmark of the stupidity claims during her client’s defamation case against Aston – turned the tables on the journalist.

“Have you ever posted anything banal on Instagram, Mr Aston?” Ms Chrysanthou inquired, listing off “pictures of food” “selfies” images Aston posted about his feet and posts “about how hungover” he was. Read more.