Crazy brave or simply offensive? The trial of Joe Aston
After torching half the village, many have been waiting for the impertinent Joe Aston to get what they see as his comeuppance.
Joe Aston took the oath and settled into the witness box. He looked sharp. LA sharp. And then he set the tone.
“You say you’re a columnist, what kind of columnist are you?” Sydney barrister Sue Chrysanthou SC asked him.
“An unpopular one,” he replied, all canty and spry.
Now, bear in mind that Chrysanthou isn’t on Aston’s side in this defamation trial; she represents his opponent. But even she couldn’t help herself. She laughed. “Come now, Mr Aston,” she said. “You’re very popular, aren’t you?”
Aston demurred. He wasn’t the right person to answer that question, he said. He has no idea how many clicks he gets on his Rear Window column in The Australian Financial Review. That information is available to columnists who work in the office, but he doesn’t work in the office. He works from Soho House in Los Angeles. Sometimes from Soho house in London or perhaps New York. The only reason he’s in Sydney this week is to defend himself in this case.
The details are this: Aston and his employer, Nine newspapers, are being sued by a venture capitalist, Elaine Stead, formerly a director of Blue Sky Investments, over two of Aston’s columns and a tweet published last year.
There is no question that Aston was incredibly rude to Stead, describing her as a stupid feminist cretin who had behaved like a pyromaniac with other people’s money. He says that’s his honestly held opinion. But opinions are — well, plenty of people might want to tell you they are like synonyms of Joe Aston: everyone’s got one. The question is, does he have the right to publish his?
It is now for Federal Court Justice Michael Lee to decide.
There have been seven days of hearings. Under COVID-19 protocols, all have been live-streamed and — to the surprise of the court — hundreds of people have been clicking through to watch.
Why so much interest? It may be that we’re all a little low in mudita. It may also be the fact many people have been waiting and hoping and willing and wanting the impertinent Aston to get what they see as his comeuppance.
Since taking the helm of Rear Window in 2012, Aston has scorched half the village of 700 people that is the City of Sydney, and most of Melbourne, too. Kristina Keneally, for example, he once described as the “Kim Kardashian of state politics”. Peter FitzSimons he described as “author of bestsellers The Complete Idiot’s Guide to Gallipoli and D-Day for Dummies”.
Lest you think he goes only for the left, well, no. Here is how he once described the experience of driving back from Canberra with his old boss, Joe Hockey: “We’d stop twice at McDonald’s (Goulburn AND Sutton Forest) and asphyxiate on his cigar smoke while being tormented by his Nickelback albums.”
There also has been this take-down of Eddie McGuire: “Within hours of comparing a black woman to an ape, Roseanne was sacked. Three years after comparing Adam Goodes to King Kong and two years since joking about drowning Caroline Wilson, Melbourne’s chief boofhead Eddie McGuire remains. Shameful.”
McGuire confronted Aston about this tweet at Derby Day a few years back, wanting to know why it was OK to kick him around without mentioning the medal he had received on Australia Day or his charity works. Aston countered that Goodes was Australian of the Year, “so that kind of trumps you, mate”. He then put Eddie in his column again.
That was crazy-brave.
Australia has always had suffocating defamation laws but several recent decisions, attached as they have been to monster payouts, have frightened many columnists. Add this to the pious culture of modern Australia. It has become harder to tell an offensive joke, or express an unfashionable opinion, and do not even try to draw a cartoon. Much criticism is also now considered out of bounds.
The art of writing a column has suffered as a result. It is without doubt more boring than it used to be, especially at Nine’s former Fairfax papers. I mean, don’t you just wish somebody would write another essay about climate change?
Aston stands on the shoulders of writers of yore. Mungo MacCallum, for example, who left the stage on Thursday. One of his best lines was unquestionably caustic. It concerned the time he heard that John Kerr had sacked Gough Whitlam. He frankly didn’t believe it, but then he looked out the window and saw something more improbable: Laurie Oakes running.
And so, if you are one of those people who thinks you just can’t say things like that in this country any more, you may well find yourself on Aston’s side in this trial.
He is a charismatic individual. And very amusing. Until it’s your turn, or the turn of those you respect and admire. Then it’s more like ouch. Actually it can be vile. And it can go on for days, weeks, months, until even the readers are wondering: come on, Joe. What has this person ever done to you? Why humiliate someone so?
Stead and Blue Sky were the subject of more than 40 vitriolic pieces over one extremely difficult year. Stead has said she couldn’t work, such was her mental anguish. And so, in the end, she sued.
If she was expecting contrition, she’d be disappointed. Aston’s approach in court has been very Joe: if I go down, I go down fighting.
Asked point blank — not once but several times — whether he really meant to say that Stead was stupid — not that she sounded stupid, or acted stupid, but that she was actually stupid — he said yes.
Justice Lee inquired: “Do you accept that’s a very offensive thing to say about someone?”
“Yes,” he said.
Now, you may think that’s a lay-down misere for Stead, but not all criticism or even abuse is necessarily defamatory, not even in NSW. The question for the court is whether the “ordinary” person would tend to form a significantly lower opinion of someone because they have been subject to that criticism.
On this point, Aston was always going to run into trouble.
The word stupid has weight in the finance world. Stead was managing other people’s money. It’s important to be smart — meaning on the ball and in the know — when you’re in that position. The word stupid arguably has special weight for women, too: stupid woman. What’s she even doing here?
But the fact it’s defamatory to call somebody a stupid pyromaniac feminist cretin doesn’t automatically mean that Aston will lose. Section 31, Defamation Act NSW provides a defence: honest opinion. To succeed with that defence, Aston will need to show that his opinion was exactly that: an opinion, meaning it can’t be about a fact.
If that sounds confusing, well, consider it this way: you might want to say that a well-known politician is a hopeless drunk, but you’re asserting facts there, and if you can’t prove it — you won’t be able to, of course — you are doomed.
Aston also must show that his opinion is based on “proper material”, which is generally taken to mean material that is “substantially true”.
Can Stead fairly be described as stupid? She has PhD in science. She now works for MH Carnegie & Co, founded by Mark Carnegie, who regards her highly.
In defending his position, Aston told the court: “Stupid is as stupid does … Someone who repeatedly does stupid things is by definition stupid.”
He referred to several of Stead’s failed investments, for example in doomed bespoke shoe company Shoes of Prey.
But Stead was not alone in investing in Shoes of Prey. Mike Cannon-Brookes, a founder of Atlassian — described by Aston as “beneath his baseball cap, Australia’s most incessant poseur” — also put in some money, at least in the early rounds.
Aston referred also to what he described as the “banality” of Stead’s social media posts, while Blue Sky was melting down. For example, on Instagram, she said “I need a hug.”
And here was where Chrysanthou pounced, handing up images from Aston’s own personal Instagram: selfies in the elevator; slurping on a chocolate thick shake from the Burger Project, and so forth.
Pictures of Aston’s feet also came up on his ’gram rather a lot.
“Not bare feet, I would hope?” said Aston. But yes, he has posted pictures of those, too.
The point is that we all make banal posts. As Chrysanthou said: to “label a person cretinously stupid … because of their social media posts is ridiculous”. She reminded Aston that Stead had also won prizes. He seemed unimpressed.
“Her unitholders can’t pay their mortgages with the statues she receives from her peers,” he replied.
Indeed, the only time he expressed regret was when some text messages between Aston and one of his confidential sources were revealed to the court.
Told that Stead had just posted about her mother having a brain tumour, he replied: “A scan would show Elaine has no brain.”
Chrysanthou told the court that this might suggest malice.
An additional problem is that Aston did not seek comment from Stead because he “didn’t consider that any answers I got from her would be very useful”.
His blithe performance did not seem to do him any harm in the court of public opinion. Towards the end of his time in the witness box I received an email from an interested observer: “Does Joe have someone special in his life? Asking for several female friends.”
His fate rests, however, with the judge.
By chance, Justice Lee understands a little about journalists, having spent some time on the racing pages, as a Fairfax copyboy.
Like Aston, he also takes seriously English felicity. And he doesn’t mind a joke. In a speech to mark his appointment to the Federal Court, for example, he told a story about a forebear, James, transported after being caught stealing a bottle of rum
“James obviously had a practical streak,” he said, because the records show “he was also convicted of stealing a corkscrew”.
There’s another story he tells, about a gorgeous actress — no, not that one — from the TV series Suits coming to visit his chambers.
“At one point she asked me a question: ‘What is the biggest difference between life of the lawyers in Suits and life as a barrister?’ ”
He replied: “On balance, it seems to me the life of a barrister in NSW is a tad more glamorous and exciting.”
But it’s clear that some things aren’t funny to even those with the right bones.
Justice Lee was not, he said in court, amused by the phrase “venture capital pyromaniac”.
“I must say, I don’t think there was anything witty about it,” he said. “Setting fire to other people’s money is a provocative phrase … used deliberately to draw attention to the article.”
It is to Nine’s credit that it has been willing to defend the case, knowing as it surely does that Australia has no bill of rights, and regretfully nothing like the free speech guarantee in the first amendment to the US constitution.
Why push on, in such circumstances? Well, Aston is known to be a melophile, with a special weakness for the Beatles. Here at The Weekend Australian, we plump for Bob Dylan, who perhaps has the relevant line: when you ain’t got nothing, you got nothing to lose.
