The Financial Review and Aston are seeking to rely on the defence of honest opinion.
On the final day of the trial on Friday, Sandy Dawson, SC, appearing for the Financial Review and Aston, submitted the word cretin was “harsh” but an opinion.
Justice Lee replied it was “a cruel and unnecessary thing to say”.
“He’s entitled to that view,” Mr Dawson said.
“I know you say that,” Justice Lee said. But he said it appeared to convey “a very particular meaning … and that’s why it’s such an offensive term”.
Justice Lee said Aston was “entitled to [express] very trenchant criticism” but he could not help thinking the parties wouldn’t be in court if he had “chosen his words with less vitriol”.
However, he said earlier on Friday that defamation law struck a balance between protection of reputation and freedom of speech, and people were allowed in some circumstances to say even cruel things.
Dr Stead’s barrister, Sue Chrysanthou, SC, submitted the columns should attract damages “at the top of the range”. Damages for non-economic loss in defamation cases are capped at $421,000.
She said the total figure should be “well above that” because aggravated damages should also be awarded.
Mr Dawson said Aston set out his opinion in both columns and “considered Dr Stead to be self-interested and a cretin” in the context of a post by her on her private Instagram account which referred to crowdfunding $5000 for a venture mission to Mongolia.
Ms Chrysanthou has suggested the crowdfunding suggestion was a joke, but Mr Dawson said it was a “curious omission” that no evidence was given by Dr Stead about whether it was intended as a joke. Ms Chrysanthou replied it was “never put to” Dr Stead by him that she raised money for the trip.
Mr Dawson said Aston found Dr Stead’s post “mind-boggling” when she had been “earning a significant salary” and had made what he considered to be “stupid” investments in two companies.
Justice Lee said lawyers on both sides conducted the case with “conspicuous fairness”. He will deliver his decision at a later date.
The Financial Review is owned by Nine Entertainment Company, which also owns this masthead.
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Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.