“I am satisfied, having regard to the seriousness of the imputations carried, the extent of the publication, the inherent probabilities, and the evidence of the actual impact of the publications, that the publication of each of the impugned publications has caused, or is likely to cause, serious harm to Deeming’s reputation,” Justice O’Callaghan said.

Last March, Deeming attended the Let Women Speak rally on the steps of Parliament House in Melbourne’s CBD, but it was one of multiple protest events taking place at the same time. Just as the women’s rally kicked off, a group of neo-Nazis in all-black clothing interrupted.

During the trial, Deeming’s counsel Sue Chrysanthou SC said that despite video evidence and pleas from the rally’s organisers and attendees, Pesutto tarred Deeming with “the Nazi brush”.

Deeming brought defamation proceedings against Pesutto in respect of a media release, an interview with radio station 3AW, an interview with the ABC, a press conference, and the expulsion motion and dossier used to expel Deeming from the party in the aftermath of the rally.

In respect of the first three, Justice O’Callaghan determined the ordinary reasonable reader would have understood Deeming was unfit to belong to the Victorian parliamentary Liberal Party because she had knowingly associated with neo-Nazis, particularly Let Women Speak organiser and United Kingdom activist Kellie-Jay Keen.

As for the press conference, Pesutto claimed he only asserted Deeming was “several steps removed” from actual neo-Nazis, but Justice O’Callaghan found this to be a “careless submission”.

“The ordinary reasonable viewer would have understood Pesutto to convey that the organisers of the rally … had known and established links with or shared platform and worked with Nazi or people who have Nazi sympathies and who promote white supremacist views and ethno-fascist views, to help them promote their odious agenda,” he said.

Justice O’Callaghan said the ordinary reasonable viewer would have understood Pesutto was linking Deeming to the organisers.

In awarding Deeming $300,000 for non-economic loss, Justice O’Callaghan found it was “quite apparent” that most of the “hate-filled social media and other communications” directed at her post-rally had followed media publications based on Pesutto’s comments.

Reputation not an issue for Deeming

Pesutto attempted to convince the court Deeming could not have suffered harm to her reputation because she already had a “bad reputation” due to giving “succour to hateful and/or extreme social or political views”. Reportedly, this was a reference to Deeming’s advocacy for spaces that would exist only for cisgender women.

Despite making this claim in court, Justice O’Callaghan said Pesutto was unable to provide a “skerrick of evidence to support it”.

“That is a shameful state of affairs, because the allegation … was self-evidently calculated to defeat Deeming’s case that she had, or was likely to have, suffered serious harm as a consequence of the impugned publications,” Justice O’Callaghan determined.

Moreover, the allegation “flies in the face of objective facts”, particularly because it was Pesutto who proposed Deeming be elected into the position of Party Whip in the Legislative Council last December.

While Deeming’s views on transgender rights and “women’s only spaces” may be controversial and polarising, Justice O’Callaghan said it was not the same thing as saying she had a “bad reputation”.

“The evidence established that she, like all politicians, has her detractors on the other ‘side’ of politics, some of whom … called her hateful. That may be a reflection of what nowadays passes for political debate, but it is not, as Pesutto’s counsel sought to contend, evidence of the fact that Deeming has hateful views,” Justice O’Callaghan said.

Since the publication of Pesutto’s statements, Deeming has been the subject of a “wave of abusive and hateful material”, including regularly being called “toxic”, a “creep”, and “Nazi scum”. Many other profanities were too offensive to be republished by Lawyers Weekly.

Defences and behaviour in evidence box fall short

Pesutto relied on four defences: public interest, honest opinion, qualified privilege, and contextual truth. Following analysis of the first two, the latter two fell away, so they did not need lengthy consideration.

While Justice O’Callaghan found Pesutto believed the publications were in the public interest and that he honestly believed he needed to address the issue to “retain credibility” with the public, this was not enough to sway the court on this first defence.

In the case of the media release, the 3AW and ABC interviews, and the press conference, Pesutto had “bandied” around words like “Nazi” and “Nazi sympathisers” when it was incumbent on him to be “careful not to convey a meaning that he did not intend”, the court found.

Justice O’Callaghan said the use of this “loose language” provided a greater opportunity for the ordinary reasonable reader to infer the adverse meaning, and Pesutto should have known as much.

Much like his belief in the public interest defence, the court said it was satisfied Pesutto held a genuine opinion that Deeming was not a fit and proper person to be a member of the Victorian Liberal Party.

However, the question of this defence, particularly in respect of the interviews, was never addressed by Pesutto. Due to this, the defence of honest opinion was not responsive to Deeming’s pleaded imputations – that were found to be carried – and it was bound to fail.

Justice O’Callaghan noted that Pesutto had an “inability or refusal” to give straightforward responses to “simple enough questions”, including his use of “lengthy and non-responsive answers”. Due to this, Justice O’Callaghan said Pesutto’s evidence was pushed out to four days.

Justice O’Callaghan added that in the context of Pesutto being a qualified solicitor, he should be “aware of his duties to the court”.

However, as “infuriatingly unresponsive as much as his evidence was”, Justice O’Callaghan was unable to conclude he gave dishonest evidence.

“Despite the unsatisfactory nature of many of his answers in cross-examination, I am satisfied that Pesutto subjectively, in fact, believed that publication of each of the five matters was in the public interest,” he said.

Aggravated damages not covered

The evidence of Deeming’s “hurt, distress, and embarrassment” as a result of Pesutto’s defamatory statements was extensive and supported by the evidence of her husband, friends, and colleagues, who had each come across negative comments on social media and in media reports.

Pesutto also accepted Deeming was “genuinely distressed and aggrieved” by the events post-rally, including by his own statements.

It was for these reasons that Justice O’Callaghan determined the damages must reflect the “real and severe hurt to her feelings”.

Deeming was awarded $300,000 in non-economic loss, much shorter than the maximum damages of $478,500 for non-economic loss.

As for aggravated damages, Justice O’Callaghan was not prepared to find Pesutto was dishonest in “any of the ways pressed during closing address”, despite much of his unresponsive evidence or his effort to make the case that Deeming had a bad reputation.

“For those reasons, I decline to make an award of aggravated damages,” Justice O’Callaghan said.

Another court hearing will be scheduled to determine costs.