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William Collins
1 April, 2010  
Phil Cleary unsuccessfully deconstructs himself

William Collins is back from a stint at the Clarence Darrow Institute for the Furtherance of Robust and Respectful Advocacy at Podunk, New York … In a special bumper dispatch he gets to grips with Melbourne’s dazzling Dyson Hore-Lacy defo case … Sizeable all-up award of $709,380 plus indemnity costs … Ouch


A fortnight ago, it was Yarraside’s turn to be the venue for a libel stoush between high profile and most resolute combatants.

The trial of Hore-Lacy v Cleary and Allen & Unwin Pty Ltd before Justice Geoffrey Nettle and a jury of six women was the long-delayed sequel to a grisly marital killing in the suburbs in 2003.

The plaintiff had been represented in the first two years of the action (commenced in October 2005) by the leader of the Melbourne defamation bar, J.L. Sher QC, leading L.W. Maher.

imageSher retired in early 2008.

When, later that year the case came before the Court of Appeal a second time Sher’s place was taken by the versatile J.W.K. Burnside QC (pic).

The defendants were represented by W.T. Houghton QC and D.P. Gilbertson.

Houghton had lined up for the defendants against Sher and Maher in the last stupendous defamation jury stoush in Melbourne: Popovic v Bolt and The Herald & Weekly Times Ltd.

The plaintiff, Dyson Hore-Lacy SC (b. 1941), a well known advocate here and elsewhere is also an identity in the world of that local brand of pig-skin bread and circuses entertainment known as Australian Rules football.

Over many years he has been an occasional radio commentator.

In the days when barristers were forbidden to “tout”, he would occasionally broadcast under that most delicious nom de wireless, Mr Horse-Racy.

As president of the Fitzroy Football Club (est. 1883), Hore-Lacy fought a very public battle in the 1990s to keep the inner north team in Yarraside when the controllers of the Australian Football League were pursuing the early phase of their colonisation of those vast tracts of Terra Australis in which the Antipodean code was very much Incognita.

imageAlas, as Hore-Lacy (pic) narrates in his racy account, Fitzroy (Lion Publications, c.2000), the mighty Gorillas – as the Roy-Boys were known in the period 1938-1957, were merged with Brisbane.

When your correspondent was in short pants, Fitzroy fielded the last of the exponents of the place kick, Tony Ongarello.

The senior team may have been most unsportingly ripped from its Brunswick Street womb, but the Fitzroy Football Club lives on and life member Hore-Lacy was its president until 2009.

The first defendant, Phil Cleary (b. 1952) has had a life-long active connection with Yarraside’s inner northern suburbs.

He played more than 200 games in the then Victorian Football Association team, Coburg, and coached it to more than one VFA flag.

By 1992, national prominence had, barnacle-like, adhered to Cleary.

As is recounted in his book, Cleary Independent (HarperCollins, 1998), independent candidate Cleary made history by winning the House of Representatives seat of Wills in a Melbourne Cup field (22 runners) at the 1992 by-election caused by the retirement of that man of the masses, Robert James Lee Hawke.

In November 1992, the High Court declared that Cleary’s election was void because, as a state school teacher on leave without pay, Cleary held an office of profit under the crown thus disqualifying him from candidature: Sykes v Cleary.

Cleary’s popularity in Wills was, however, confirmed when, again as an independent, he won the seat in the 1993 general election. A majority of the electors of Wills then returned the seat to the Labor Party in 1996.

On August 26, 1987, an appalling tragedy had befallen Cleary and his family. A violent sociopath called Peter Keogh, who had been living with Cleary’s sister, Vicki, stabbed and killed her.

Keogh was charged with Vicki Cleary’s murder, but was convicted only of manslaughter having relied upon the then defence of provocation.

Cleary became an active campaigner for the modification of the provocation defence and was instrumental in the enactment of the Crimes (Homicide) Act 2005, which abolished the defence in Victoria.

Cleary told the horrific story of his sister’s killing in his second book, Just Another Little Murder (Allen & Unwin, 2002).

“Dyson Hore-Lacy … hardly features, he’s a bit player”

On July 21, 2003, James Ramage, a Melbourne businessman, strangled his estranged wife, Julie Ramage, at the former matrimonial home in Balwyn, a very classy patch in Yarraside’s inner eastern quadrant.

imageMr and Mrs Ramage (pic), who had been married for more than 20 years, had separated six weeks before Ramage strangled his wife.

After disposing of her body in a shallow grave in the Kinglake National Park, Ramage drove back to Melbourne.

Just after 8pm, he made a fateful telephone call to a friend.

He and his wife had become friends of Dyson Hore-Lacy and his wife through the primary school, which the children of the two families attended.

Ramage telephoned Hore-Lacy and said that he needed to see him. He pressed pressed the barrister who agreed to meet him at the nearby Harp Hotel in East Kew.

It is the meeting at the Harp that is the foundation for the central theme of Cleary’s third book published in September 2005, Getting Away With Murder: The True Story of Julie Ramage’s Death (Allen & Unwin).

When Ramage arrived at the Harp, he announced to Hore-Lacy, “I’ve killed Julie.” As Hore-Lacy told the judge and jury on Monday, 15 March:

“I just couldn’t believe what he said. And I just said, ‘How badly is she hurt?’ And he said he’d killed her.”

Ramage pleaded with Hore-Lacy to help him, but the silk made it clear that his ties of friendship with both the Ramages and their shared friends prevented him acting.

Instead, Hore-Lacy arranged for a solicitor to attend the Harp and three hours or thereabouts later Ramage left the hotel and surrendered himself to the Boroondara Police Station.

In a record of interview Ramage told the police that his wife had said to him at their Balwyn house she was seeing someone else, that having sex with her husband repulsed her, and …

“That’s where I lost it … I stood up and I hit her … And then – then I just wanted it to stop and that’s when I strangled her and – and – you don’t know how much I wish I could change that.”

As Justice Kaye observed in 2008, in refusing Cleary and Allen & Unwin leave to amend their defence in a third unsuccessful attempt to set up a comment defence, the theme of Cleary’s book was that, as a consequence of attending the Harp Ramage had given the police a fabricated account of events, which opened up a provocation defence.

At his trial in October 2004 before Justice Osborn and a jury (in his book, Cleary branded that jury as “very suburban” [p.122] and “Philistines” [p.146]), Ramage was acquitted of murder and convicted of manslaughter.

The judge sent him to prison for 11 years with a minimum of eight.

Hore-Lacy alleged that he was defamed by Cleary’s book as a whole and, more specifically, in the following three passages:

“If Julie had belittled Ramage at lunch then surely he’d have told his son during the dinner at Columbo’s. It might even have been the time to say he’d killed Julie. Was it because it was a fabrication that Ramage didn’t tell his son Julie had ridiculed him and the renovations? At the time of the dinner Ramage could hardly have known that such a story might form the basis of a provocation defence. Surely he only learnt about the mysterious laws of provocation when he met Hore-Lacy and [solicitor Stephen] Pica? [p.57].

...

“If [Ramage’s counsel, Phil] Dunn [QC] thought the claim that Ramage had three hours to fabricate a case against his wife was crap, then his opening address was nothing short of bullshit. [p.204].

...

“The more he read, the worse Justice Osborn’s [sentencing remarks] sounded. Ramage, he said, had ‘contacted a friend and handed himself in to police’. No mention that the friend was a top QC or that his name was Dyson Hore-Lacy. Three weeks of evidence and not a single mention of Hore-Lacy’s name in any transcript. No mention by the judge that Ramage had spent the evening in the Harp Hotel with a lawyer. After Mazin Yasso killed his wife he was found in a park smoking his last cigarette. A poor, part-time cleaner, Yasso had no lawyer to help him manufacture a provocation defence. So much for the claim that everyone is equal before the law!” [p.217].

Hore-Lacy’s case was that the book defamed him by conveying the grave charge that he had manufactured a defence of provocation for James Ramage thereby perverting the course of justice – a career-terminating criminal offence which, upon conviction, would send the guilty malefactor to the slammer for up to 25 years.

As Ashley JA, for the unanimous Court of Appeal, noted in mid-2009 affirming Kaye J’s decision, if the central meanings were established, the characterisation of Hore-Lacy’s participation in the manufacturing of the false defence as a perversion or prevention of the course of justice, a serious breach of barristers’ ethics and an act of professional misconduct, would follow as night follows day.

imageCleary (pic) did not expressly refer to the characterisation of Hore-Lacy’s conduct although he mentioned the concept of perverting the course of justice when referring to another murder case [p.53].

The book’s theme is complete with the author’s assertion that Ramage had set about quickly masterminding an elaborate cover-up [pp.31-33] of his wife’s death.

In the defamation trial, Hore-Lacy gave unchallenged evidence that he had not helped Ramage manufacture any defence, and that he was outraged by Cleary’s assertion in the book that he had.

What’s not in a text?

Part of the fame of the late philosopher of textual deconstruction, Jacques Derrida, is the aphorism: “il n’y pas hors-texte”.

For Mr Cleary, Hore-Lacy’s case was one of nothing inside the text.

Cleary (the only witness called by the defendants) was adamant that he had not defamed Hore-Lacy who was only, he said, “a bit player” in the Ramage case.

To use a postmodern word, which Cleary used post-verdict, his position was that, deconstructed, his book meant that the false provocation defence was Ramage’s work: “just knowing that there is a defence of provocation is enough. You don’t need to go into the great details of it.”

Similarly, when Cleary described the laws of provocation as “mysterious” [p.47] they were, “Not mysterious to me”.

When he stated that at the Harp Hotel Ramage had “rehearsed” the defence [p.56], he was saying that Ramage had “rehearsed it in his mind”.

Cleary acknowledged that he knew that Hore-Lacy would be extremely upset if he had suggested in his book that he had helped a person fabricate a defence: “That’s why I never said it in the book.”

Thus, Hore-Lacy had misread the text.

Since it was inconceivable to Cleary (and by inference, Allen & Unwin) that he had defamed Hore-Lacy, he stood by his words; there could be no suggestion of him retracting and apologising.

Cleary’s conviction that his book had been misinterpreted provided some insight concerning his deconstructing way with words.

He told Houghton: “I’m not motivated by anger”.

In addressing the jury, Burnside invited them to consider the book’s opening sentence: “You have to experience murder to truly understand the anger it generates.”

Cleary and his publisher made no attempt to justify the plaintiff’s imputations. The only defence was that the book did not defame Hore-Lacy.

In the witness box on Wednesday, March 17, Cleary stated that, from first to last, it was his view that Hore-Lacy had not played any role in manufacturing a defence for Ramage.

Why then mention Hore-Lacy at all, said Burnside in addressing the jury?

Cleary and his publisher did make three attempts to set up a comment defence.

The first failed before Kellam J.

The second, delivered pursuant to leave given by Kellam J, survived a strike-out application made to Williams J in late 2006 (when the trial was about to commence), but was struck out by a unanimous Court of Appeal as not maintainable as a matter of law.

There were at least three basic problems with the third version of the proposed comment defence – the first two were stressed by the Court of Appeal in its second decision, and it seems clear enough that the jury acted on the third in its assessment of damages:

* First, the proposed comment was no comment at all because it was presented to readers as fact;

* Next, Cleary’s assertions in his book that there was no mention of Hore-Lacy’s name in the police record of interview or in any transcript of Ramage’s trial were incontestably untrue;

* Finally, the substance of the alleged comment pleaded Hore-Lacy’s meanings back to him, that is to say, the comment relied upon by Cleary was that Hore-Lacy had, in truth, helped Ramage concoct a phony provocation defence.

Part of Hore-Lacy’s detailed case for aggravated and exemplary damages was that the defendants had been prepared to accuse him of a grave crime when, from first to last, Cleary did not believe it, and was unwavering in his assertion that the book did not make that accusation.

Burnside: “But does that mean that you are more willing to put forward speculative allegations in a court document, than in a book? Is that right?

Cleary: Speculative allegations in a court document?

Burnside: Yes. You are more willing to do that, than to put speculative allegations in a paperback book?

Cleary: Well – well this was a defamation case that had to be defended. I – I presume that you use whatever – whatever the legal avenues are available to you. But I’m – I’m not conceding MrBurnside, that there’s something wrong with – with raising the spectre of what the events of the Harp Hotel. I think that’s perfectly reasonable, isn’t it?”

Having read the book and considered the contending cases in a trial which lasted six days, the jury of six women clearly thought otherwise.

They awarded Hore-Lacy $600,000 compensatory damages (including aggravated damages) and $30,000 punitive damages to which Justice Nettle added $79,380 damages by way of interest – a grand total of $709,380.

If that was not pain enough for the defendants to endure, his Honour awarded Hore-Lacy indemnity costs from June 6, 2006 on which day the defendants had rejected the plaintiff’s (Calderbank) offer to settle the action by accepting $50,000 and a retraction and apology.

Will the real court of public opinion please stand up?

In commenting on his web site on the jury’s verdict, Cleary appeared to resort to some postmodern irony when he remarked:

“To see my well documented deconstruction of the law of provocation interpreted this way was galling … Just what the court of public opinion thinks is yet to be established.”

The literary establishment’s (Scribe and Penguin) adverse reaction was reported upon by the books editor of The Age, Jason Steger, immediately following the jury’s thumbs down.

Susan Hines, Allen & Unwin’s publishing director, told Steger that her company sent to the lawyers all its books that involved the real world and real people.

‘’I don’t know what we can do more than we already do. We had legal advice on that book.’’

One possibility for Allen & Unwin might have been to pay close attention to the Court of Appeal’s unanimous decisions in 2007 and 2009, specially the latter judgment which appears to suggest that no jury, properly instructed, could find that the book was not defamatory.

It’s possible, I suppose, that the jury really does represent the court of public opinion among those non-literary establishment folks who have read the book.

Steger’s later weekend column noted that plenty of people were puzzled about why Allen & Unwin did not settle with Hore-Lacy over Cleary’s comments.

Puzzling it certainly was. But, as the Court of Appeal had made plain for all to see, the book’s defamatory attack on Hore-Lacy was not a comment.

Once made, it was only defensible if true.

The defendants had not pleaded truth. And, as Cleary swore that from first to last he never believed that Hore-Lacy had been a party to Ramage’s alleged concoction of his successful provocation defence, it followed that the defendants had no defence.

If the reality was that the case was an assessment, the egregiousness of the defamatory attack on the plaintiff was bound from the outset to attract a whopping verdict all the more so if, as the jury verdict unequivocally bespeaks, the defendants’ deliberate post-publication conduct made the plaintiff’s harm even worse.

Allen & Unwin’s post-verdict position appeared to have stiffened by week’s end.

Steger reported that Susan Hines had stated that Allen & Unwin had fought the case as a matter of the principle of free speech, and “we lost the case on semantics”.

Pondering how this remarkable saga has unfolded over more than four years, your correspondent found himself imagining that Hore-Lacy probably regards it as most apposite that the motto of the Brunswick Street Oval footy club that once hosted the mighty Gorillas is: Palman qui meruit ferat.

William Collins reporting