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Media Fat Cat Kerry Stokes refuses to give evidence in his own court case. What was he scared of?

I was back in court on Tuesday (15/07/14) for the frivolous and vexatious contempt proceedings instituted against me by media mogul Kerry Stokes and his girlfriend and lawyer Justine Munsie. I will just touch on the hearing a bit as the judgement is reserved and I will write a full post when the judge hands the decision down. I also think it is worth focusing in the precedent Coleman v Power which gives a lot of protection to the average person from a political freedom of speech viewpoint.

The hearing in brief

Kerry Stokes spared no expense and had two barristers working for him, junior barrister Sandy Dawson who sat at the bar table and the other was Acting Justice William Henric Nicholas QC who sat on the bench. Both worked their hardest to represent Kerry Stokes.

It is quite scandalous that Stokes has even instituted the proceedings against me in the first place and shows how corrupt the Supreme Court of NSW is.

Some of the things Justice Nicholas did were:

1. Even though I had written to Kerry Stokes and Justine Munsie (the applicants) a number of times calling them as witnesses they did not show up and Justice Nicholas in effect said that was OK. I asked him to write in his judgement why it was OK for Stokes and Munsie to refuse to give evidence and he said he would not. 

Stokes’s barrister then wanted me to give evidence from the witness-box. The judge refused his request. I said I wanted to and the judge said OK. I then said that of course we’ll have to adjourn so Stokes and Munsie can come to court and we can all give evidence the same day. The judge refused and Sandy Dawson sat there like a stunned mullet.

The obvious reason why Stokes refused to give evidence is that the last time he did in 2007 the judge said that Stokes gave “deliberately false” evidence while under oath. Both Stokes and Munsie are suing me for calling them perjurers yet when given the opportunity to prove me wrong by giving evidence from the witness-box under oath both refused to do so.

2. Over 90% of two affidavits that I filed where struck out on the instructions of Stokes’s barrister Sandy Dawson. It was Dawson’s instructions because the judge clearly did not have enough time to read the affidavits in full so how could he make a true judgement.

3. Justice Nicholas threatened to have me removed from the court as I was telling him how blatantly biased he was. This was a clear threat by him for me to shut up or he would deny me natural justice and kick me out of court so I could not defend myself. I asked him to stand down from hearing the matter as this was clear bullying and bias. I pointed out that he had committed a crime as bullying is a criminal offence. He didn’t like what I said but had no comeback because I was right. (I got that tip from a regular reader. If a judge is trying to intimidate you let them know they are committing the crime of bullying and you will not tolerate it. In Victoria it is up to 10 years jail for bullying and it is also a crime in NSW which I told Nicholas)

4. The only affidavit that Stokes had was one from Richard Keegan who is one of his lawyers. I was not allowed to ask Keegan some basic questions such as what motivated Stokes to institute the proceedings against me and what is the benefit Stokes is hoping to gain from the proceedings. The biggest question is why Stokes decided to have the illegal private hearing with Justice Harrison in April in the first place. (Click here to read the transcript for Kerry Stokes’s private hearing on the 14th of April with Justice Harrison when I was not there)

There were plenty of other things which Harrison did which was in Stokes favour but that will do. To be fair and balanced Justice Nicholas did improve near the end and was a bit more impartial. I think this was due to the fact that the gravity hit home of how corrupt his judgement will need to be if he finds in Kerry Stokes favour.

Nicholas QC was previously a judge but is now on contract for want of a better description and hence his title “Acting” justice. (Click here to read more of his background)

Justice Nicholas

Justice Henric Nicholas

And from the University of Sydney Law School: “The Honourable William Henric Nicholas QC leading defamation barrister (father of our recent graduate Edward) who graduated from the Law School here in 1964 was sworn in on February 4, 2003 as a judge of the Supreme Court of New South Wales in the Equities Division.” (Click here to read more)

Since Stokes instituted proceedings against me I have become aware that most of what I write on this site is protected by the legal defence of qualified privilege. Qualified privilege protects not only me but a lot of bloggers and other people using social media. I have also been made aware of the 2004 High Court precedent Coleman v Power. These are not overly complex and are important to know for people using the internet for political communication. They are good to know even for something as simple as a Twitter account so you can express you political viewpoint.

Put very simply, I breached a suppression order that restricted my freedom of political communication. The suppression order was invalid on numerous grounds one of those being that it infringed in an unacceptable way on my political communication rights as implied in the Australian Constitution. (Click here to read the judgement of Justice Harrison on the 24th of April which outlines the background)

The freedom of political communication

“From the late 1970’s, decisions of the High Court and English courts have reflected the importance of freedom of communication generally and, more specifically, on political matters. However, it was not until 1992 that a majority of the High Court accepted that freedom of political communication is implied in the Australian Constitution. Even then, each judgment of the majority described the freedom differently and to this day differences remain. Nevertheless, some elements are agreed upon. First, the freedom finds its source in the system of governance established by the Constitution, although the precise description of that system and the requirements for its operation are not settled; neither is the scope of the freedom (this is considered below). Secondly, the freedom of political communication is freedom from legislative and executive restraint, not a positive right capable of enforcement; nor is it an absolute freedom. The freedom affects Australian legislation by rendering it invalid when it infringes the freedom in an unacceptable way.” (Click here to read more)

Apparently no judges in the Supreme Court of New South Wales have heard of qualified privilege or knew of the Coleman v Power precedent even though it is promoted on the Judicial Commission of NSW website. At least none that I have come across yet such as Harrison, Hall and Adams with the exception of Justice Nicholas but how well he understands them is still to be determined.

The key point with Justice Nicholas is he is a leading defamation barrister and would have a very good understanding of Coleman v Power which is identical to my situation. If Justice Nicholas follows the precedents as he should then that alone will see the contempt proceedings dismissed.

Judges always try to protect the other judges when they have been involved in corrupt conduct but it is becoming harder for them. A dodgy judgement will be a massive call by Nicholas because it will not only impact on me but all Australians as it will undermine everyone’s right to political free speech. As we all know the cover-up is always a lot bigger than the original crime or corruption so if Nicholas is smart he will not get involved in trying to cover-up the judicial favours that Kerry Stokes has been getting. But most corrupt judges aren’t smart and think they are above the law.

If Justice Nicholas does hand down a dodgy judgement he is not helping anyone and will only be digging a massive hole for himself which will destroy his own reputation as well as Chief Justice Tom Bathurst’s reputation given he is well aware of the happenings in my matters. Nicholas gave an estimated time of less than 2 months before he hands down his judgement so we will wait and see.

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13 replies »

  1. Shane…..Let’s hope Justice Nicholas is smart and does not try to cover up the judicial favours that Kerry Stokes has been enjoying. Nobody is above the law, even, as you say, most of the corrupt judiciary thinks they are. We will all come down on him like a tonne of bricks with the power of today’s social media if the contempt proceedings are not dismissed…good luck as usual Shane.

  2. Judges are SO like lawyers aren’t they Shane!? Can’t imagine why. Good luck. If you’re self-represented, the court will love you even less, but by and large they’re not a particularly smart bunch. Such shameless incestuous behaviour and so transparent. What an industry!

  3. Shane, I admire your tenacity. I have been battling the NSW Government and 1 department in particular since 2007, who have just stolen my intellectual property and marketed as their own. Like you struggling to get any recognition for what would have been an excellent initiative – in the end the beauracracy just wear you down. I read your column with hope each week that one day I too will beat them – good luck and keep us little people informed

  4. We all keep saying that no one is above the law ,but clearly there are a quite a large group of ‘Them ” that not only are above the law ,but they seem to think they have some god given right for it to be that way ,How long will this all go on until there comes a time when someone goes that’s it no more we must change this dreaded system .

    Like bring in the lie detectors that would change things ,because lying and deceit seems to go hand in hand with Politics and Judicial matters including Police and personally it just stinks that someone says follow the law ,but then takes it for granted that the law doesn’t always have to apply to them !

  5. Good luck with it Shane as it all sounded like a bit of a sick joke to me. I never knew Kerry Stokes was such a grub. Hope the judge lets you off and saddles him with the court costs too. Regards, Warren Olsen

  6. Whilst I was in Sydney on Tuesday morning, I decided to attend the Court in support of Shane Dowling. In my opinion, Shane’s performance in the Court Room was extremely entertaining and educational. As a member of the public, it certainly appeared that Justice William Henric Nicholas QC was not giving Shane a fair go, and seemed biased to the point of favouring Stokes Lawyer Sandy Dawson. It was a real eye opener for me to witness first hand, how unjust and procedurally unfair our court system can be. At times it seemed Justice Nicholas was attempting to assist Shane in concentrating on specifics to better explain his argument, but over all, there was that feeling of injustice or procedural unfairness in the air. Some of Shane’s evidence was not allowed to be produced which unfairly diluted his argument. I thought Shane’s request to call witnesses for cross examination was reasonable considering he showed up to the court in honour, but the Plaintiff was incredibly, no where to be seen. If the plaintiff fails to show for a case he initiated without any good reason, then how can his complaint be taken seriously by the Court? Thank you Shane. it was a pleasure meeting you. I look forward to a good read, so I may be educated about the horrific corruption and collusion that goes on in our seemingly dysfunctional Judicial system.

  7. I’m certain you will continue to “fight the fight” for all of us. Keep up the good work . Truth & justice will prevail if we all support your efforts.

  8. Lange v ABC: the High Court rethinks the “constitutionalisation” of defamation law

    Lange v Australian Broadcasting Corporation (“Political Free Speech case”) [1997] HCA 25; (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818 (8 July 1997)



    G O’L Reynolds with A S Bell for the plaintiff (instructed by Phillips Fox)

    J J Spigelman QC with M G Sexton and S J Gageler for the defendant (instructed by Judith Walker, Australian Broadcasting Corporation)


    G Griffith QC with S G E McLeish and G R Kennett intervening on behalf of the Attorney-General for the Commonwealth (instructed by the Australian Government Solicitor)

    P A Keane QC with R W Campbell intervening on behalf of the Attorney-General for the State of Queensland (instructed by the Crown Solicitor for Queensland)

    D Graham QC with B J Shaw QC and D G Collins intervening on behalf of the Attorney-General for the State of Victoria (instructed by the Victorian Government Solicitor)

    R J Meadows QC with P D Quinlan intervening on behalf of the Attorney-General for the State of Western Australia (instructed by the Crown Solicitor for Western Australia) and on behalf of the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory)

    B M Selway QC with J Gill intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)

    L S Katz SC with C J Birch intervening on behalf of the Attorney-General for the State of New South Wales (instructed by the Crown Solicitor for New South Wales)

    D F Jackson QC with M A Dreyfus intervening on behalf of John Fairfax Publications Pty Limited, David Syme & Co Limited, Illawarra Newspapers Holdings Pty Limited, Newcastle Newspapers Pty Limited, Fairfax Community Newspapers Pty Limited and West Australian Newspapers Limited (instructed by Freehill Hollingdale & Page)

    W H Nicholas QC intervening on behalf of Nationwide News Pty Ltd (instructed by Gallagher de Reszke)

    R A Finkelstein QC intervening on behalf of The Herald and Weekly Times Limited (instructed by Arthur Robinson & Hedderwicks)

    J T Gleeson intervening on behalf of the Seven Network Limited (instructed by Clayton Utz)

    Amici Curiae:

    D K Catterns QC with G J Williams amicus curiae on behalf of the Media, Entertainment and Arts Alliance (instructed by the Public Interest Advocacy Centre)

    D E Flint amicus curiae on behalf of the Australian Press Council

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