ABC Doubles Down on Butler’s Rancid Remarks

This is Alex Wood and Calum Thwaits. TMR doesn’t know either of them from a bar of soap. However, they should be jointly nominated for Australian of the year for their services to our country’s freedom of speech.

Mr Wood

Mr Wood was the one who posted the following comment on Facebook after he was kicked out of a QUT computer lab solely because of his race:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?

The idea that such an intelligent and insightful comment could breach any federal laws is ludicrous. So far, the Federal Court of Australia agrees.

Mr Thwaits

Mr Thwaits was then alleged to have responded to Mr Wood’s post with:

ITT n******

The Facebook account used to make this post was not Mr Thwaits’ primary account: it was a different account set up bearing his name. Mr Thwaits denied making the comment in question or having any involvement with the account it was made from. Long after proceedings had been commenced by Ms Prior (on 20 October 2015), her legal team still didn’t have any evidence whatsoever linking Mr Thwaits to the Facebook account in question:

The lawyer for a student at the centre of a national race discrimination controversy will ask a court to shut down the last legal avenue to test his sworn evidence that an online impersonator made a racist slur in his name.

Calum Thwaites was named in a $250,000 lawsuit by former Queensland University of Technology staffer Cindy Prior, who accused him of posting the comment “ITT n******” on Facebook after she asked white students to leave an Indigenous-only computer room in 2013.

The federal circuit court last month ruled Thwaites, who denied making the comment, had no case to answer in the absence of any evidence linking him to the post from a Facebook account bearing his name.

However, a court order that Facebook give details of that account and others allegedly linked to Thwaites still stands.

On Friday the court is due to hear an application by Thwaites’s barrister, Tony Morris, to have the subpoena struck out, amid legal argument over costs.

Morris told Guardian Australia it was “theoretically possible” that Prior’s lawyers, in the event of discovering material from Facebook that they alleged linked Thwaites to the account, could use it to revive a claim against him.

But Thwaites was happy to have the Facebook account details known as they would vindicate him.

Yes, that’s right: Prior and her legal team commenced proceedings against Mr Thwaits without a single shred of evidence (flimsy or otherwise) in support – a blatant abuse of process in TMR’s view.

Fighting for freedom of speech

Mr Thwaits and Mr Wood could have rolled over – just like some of their fellow QUT students and many people before them – and given Cynthia Prior some grub money to go away. Apparently, $5,000 was the going rate to ease Ms Prior’s pain. But these two men didn’t roll over because they are people of principle. Instead, they chose to stand up to this bully and whoever was encouraging and funding her.

So far, Thwaits and Wood have succeeded. I say ‘so far’ because we still have to wait and see if the Federal Court will allow Prior’s appeal (out of time).

In the meantime, Thwaits and and Wood can savor a taste of victory – with Prior being rightfully ordered to pay the defendants’ legal costs associated with her pathetic case:

An Indigenous woman has been ordered to pay the legal costs of three QUT students after a failed racial vilification case.

Cynthia Prior unsuccessfully tried to sue three young men under section 18C of the Racial Discrimination Act over Facebook posts they allegedly made in 2013.

One of the students also sought costs from Ms Prior’s solicitor, arguing she should not have helped bring a “hopeless case” to court, but that claim was rejected.

The dollar figure Ms Prior must pay is yet to be determined, but one of the men’s barristers, Tony Morris QC, estimated it would exceed $100,000.

[TMR: all for something which went nowhere near trial. Imagine what the cost would have been if it did].

The court also set aside a subpoena ordering Facebook to reveal the author the “ITT n******” post.

Ms Prior will return to court next week to appeal against the striking out of her claim against the three students.

While the costs order could still be reversed on appeal (if it is allowed to be brought out of time and then actually succeeds after that), it still sends a strong message: our justice system is not a toy to be used by social justice warriors. It also strongly suggests that our federal lawmakers should stop encouraging hopeless cases of this ilk and persisting with:

  • ill-conceived laws such as section 18C of the Racial Discrimination Act 1975; and
  • useless quangos such as the Human Rights Commission.

But wait, there’s more

Adding to the rich complexity of this matter has been the side issue of federal MP Terri Butler’s awful comments made on the ABC’s Q&A on 21 November 2016:

Thwaites is seeking damages of up to $150,000, accusing Butler of causing harm by falsely implying that he is a ­racist bigot and perjurer who deceived the Federal Circuit Court.

It comes after Butler suggested on the television program that Thwaites had used the word “n….rs” in a Facebook post in late May 2013 despite the federal court dismissing any charges against Thwaites earlier this month.

“This is the situation. And we never found out because it was not determined,” she said on Q&A. “I’m saying this is what the allegations were and the matters were not determined.”

When told that Thwaites had repeatedly ­denied it was his Facebook post, Butler said: “He would say that, wouldn’t he?”

Butler’s comments are a truly disgusting smear on Mr Thwaits and make a complete mockery of the separation of powers underpinning our rule of law. Of course, politicians like Butler probably have no idea why we have such separation of powers to begin with and simply see court decisions as things to be publicly bashed at their leisure if they don’t go their way – the facts be damned.

Suffice to say, Butler is about to find out the hard way that:

  • this matter was indeed ‘determined’: summarily by a judge of the Federal Court of Australia; and
  • judges do not ‘determine’ things of this nature summarily unless the applicant’s allegations have no reasonable prospect of success (something even the Guardian was able to absorb).

The plain facts are that:

  • the comment in question was not made on Mr Thwaits’ primary Facebook account; and
  • there was no evidence to suggest that the account actually used to make the comment in question was set up, controlled or influenced by Thwaits. Indeed, the only evidence available suggested the contrary.

But don’t take TMR’s word for it: let’s go to straight to the Federal Court’s decision for the best available explanation:

4. Ms Prior also alleges that the seventh respondent Callum Thwaites, posted an entry to the “QUT Stalker Space” Facebook page in the following terms:

ITT n******

17. Mr Thwaites contends that he has simply no case to answer. It is alleged that he posted the words “ITT Niggers” to the QUT Stalker Space Facebook page. He denies that he posted those words, or indeed, any words at all. In circumstances where Ms Prior has filed all the evidence in chief upon which she intends to rely at the trial of these proceedings and Mr Thwaites contends that she produces no evidence at all that establishes that he published the relevant post, he says her claim against him should be dismissed without the necessity for a trial.

72. The argument put by Mr Thwaites is different to those put by Mr Wood and Mr Powell. Mr Thwaites denies that he posted the comment attributed to him. In that sense, his primary reason for seeking a dismissal of the proceedings against him relies solely upon his claim that he did not post the Facebook message that he is alleged to have posted.

73. In his affidavit filed on 11 February, 2016 Mr Thwaites deposes that he did not post the message. He descends into particularity in his evidence. He provides evidence that demonstrates, on a prima facie basis, that he did not post and could not have posted the relevant message.

[TMR: the chances that Terri Butler has read this crucial part of the judgment: zilch. How do Butler’s ‘he would say that’ and ‘not determined’ remarks look now?].

74. As senior counsel for Mr Thwaites concedes the fact that he deposes that he did not post the message attributed to him would not suffice to entitle him to summary dismissal of Ms Prior’s claim if there were any evidence to the contrary – however slight or tenuous, just so long as it was not demonstrably implausible or unreliable. However, as he points out, there is none.

75. Ms Prior’s case rests solely on the fact that the name of Mr Thwaites is associated with the relevant message as its author and the inferences that might be drawn from that. But that fact that his name appears upon the post is not evidence of his authorship. Senior counsel for Mr Thwaites submits that in legal cognisance, the message posted in the name of Mr Thwaites is an unproved document, conceptually no different from a typescript letter with a typescript “signature”, or a document created by cutting letters from newspaper headlines and pasting them on a blank page. Until there is proof regarding the document’s true authorship, its contents have no probative value; and, for that very reason, one cannot prove the document’s authorship solely from the document itself. To put matters in a slightly different way: the issue is whether or not Mr Thwaites was responsible for the contents of the document. Until that is proved, the document is merely unsourced documentary hearsay, placed on the computer screen through the agency of Facebook. If it is proved that Mr Thwaites was responsible, then the document can be tendered against him. But the document, itself, cannot afford such proof, since its admissibility as an admission against interest depends on its authorship first being proved from another source.

76. I accept those submissions.

78. There is no evidence that would put in contest the factual assertions made by Mr Thwaites.

Allow me to repeat: Mr Thwaits provided evidence that demonstrated, on a prima facie basis, that he did not post and could not have posted the relevant message. Mr Prior provided no evidence whatsoever to challenge this.

Our ABC

Now we come to the ABC. With the above facts in mind, how do you think ‘our’ ABC reported this matter in its latest report? Here’s a taste:

Ms Prior, a university administrative officer, took legal action against Alex Wood, Jackson Powell and Calum Thwaites after claiming the men vilified her after she asked one of them to leave a computer lab reserved for Indigenous students.

The offending Facebook posts included comments such as “QUT fighting segregation with segregation?” and “ITT n******”, although the alleged author of the latter post disputed he wrote it.

[TMR: allow me to repeat: Mr Thwaits didn’t just dispute making the comment. He provided evidence that demonstrated, on a prima facie basis, that he did not post and could not have posted the relevant message].

The court also set aside a subpoena ordering Facebook to reveal the author the “ITT n******” post.

[TMR: seriously: how pathetically loaded and misleading is this comment?].

Ms Prior will return to court next week to appeal against the striking out of her claim against the three students.

[TMR: the ABC’s hero lives to fight another day!].

There was no excuse for Butler and the ABC failing to have properly read the Federal Court’s decision in this matter (a document of public record) before shamelessly smearing Mr Thwaits and the Federal Court.

This was not some matter which the Federal Court arbitrarily refused to hear: Ms Prior simply didn’t have any evidence against Mr Thwaits and her case had no reasonable prospect of success. Of course, concepts such as evidence and being innocent until proven guilty have never been viewed as roadblocks when it comes to the left’s agenda. We can only hope that they are duly punished in this case.

Finally, rather than Prior and her lawyers commencing proceedings against Mr Thwaits (and then using those proceedings as an expensive and abusive fishing expedition to try and find evidence), they could and should have sought an order for pre-action discovery from Facebook. Given the nature of the comment in question, there was every possibility that Facebook would have agreed to a such an order by consent. This would have allowed the comment’s true author to be identified without a big part of the needless circus we have witnessed.

 

 

 

 

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4 thoughts on “ABC Doubles Down on Butler’s Rancid Remarks”

  1. No Adam. The losers are the entire population of Australia, regardless of race or gender. That legislators elected to represent that population give succor to the cultural Marxism that is successfully tribalising the nation is to the detriment of all of us. This legislation, and in fact the entirety of identity politics is to this country as a malignant tumor is to the human body. That someone is so thin skinned that comment, rude or not, is sufficient grounds to tie up the legal system to the tune of enormous amounts is ludicrous.

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