Where’s Joe? AFR’s Aston a no-show at Elaine Stead defamation trial

Joe Aston was nowhere to be seen at his defamation trial against Elaine Stead and the judge wanted to know why.

Journalist Joe Aston leaving Federal court after giving evidence at his defamation trial against Elaine Stead. Picture: Jane Dempster.

Justice Michael Lee had an important question when the defamation trial against The Australian Financial Review’s columnist Joe Aston resumed in the Federal Court on Wednesday: where was 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 [meaning 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.”

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. 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 is relying on an “honest opinion” defence — namely that Aston honestly believed that Dr Stead is stupid and a bad venture capitalist.

Mr Dawson suggested that 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, along with a clutch of public relations operatives and journalists keen to watch Aston in the dock.

Aston had written in his articles about Dr Stead was a “prodigious destroyer of capital‘’ and had invested in “peanut startups’’. But Dr Stead’s lawyer’s 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 this year- after Aston had written his articles - stating 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."

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.

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

“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 ,” Aston quipped.

Among 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.

The case is adjourned until 9:30am on Thursday.