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OIO INC. ON BEHALF OF BRENT GRAY
MS A. COGHLAN, Deputy President
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY 28 MAY 2007
MS R. SION appeared on behalf of the Complainant.
(TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS)
(RELEASED UNREVISED BY MR M. MACNAMARA, DEPUTY PRESIDENT, IN MS COGHLAN'S ABSENCE)
MS SION: If the Tribunal pleases I appear on behalf of the complainant in this matter.
DEPUTY PRESIDENT: And, sorry, your name is?
MS SION: Renee Sion.
DEPUTY PRESIDENT: Thank you. And is there any appearance for the respondent? Do you want to go outside and call or have you done that already?
CLERK: I'll do that.
DEPUTY PRESIDENT: Yes.
CLERK: No appearance.
DEPUTY PRESIDENT: No appearance.
MS SION: Perhaps if the Tribunal would be assisted by some information we have in relation to why the respondents aren't present today. This matter was filed in September 2005, a year and a half ago. Since that time there have been a number of directions hearings, orders made by the Tribunal and mediations and other orders made, none of which have been complied with by the respondents. The respondents have made it clear they wish to take no part in this proceeding and they have accordingly taken no part whatsoever. They have not entered a defence to the particulars of complaint, they have not appeared - - -
DEPUTY PRESIDENT: Why do you keep saying "they"? I've got one respondent called Dyson Devine.
MS SION: Sorry, there are two respondents, Dyson Devine and Vivian Legge.
DEPUTY PRESIDENT: Why in all the orders then that are made is there no reference to that?
MS SION: There should be. It was approximately a year ago or so where all the proceedings were consolidated. Initially there were approximately - - -
DEPUTY PRESIDENT: I'm just having a look through this file.
MS SION: I'm instructed that Vice President Judge Harbison's order of 19 March 2007 to Proceeding No. 132 of 2005 consolidates all the other proceedings that have been referred to and she's made a note of that on the second page of her order.
DEPUTY PRESIDENT: Well, maybe it's just a matter of form but it might - - -
MS SION: It maybe a matter of form that she hasn't actually listed the two respondents' names, but the respondents are relevantly Dyson Devine and Vivian Legge. Would it assist the Tribunal if I took the Tribunal through the way in which the proceedings were initially filed?
DEPUTY PRESIDENT: I'll just go back and look at what was referred. See, the referral for this one was only against Dyson Devine.
MS SION: There were initially six files that were consolidated.
DEPUTY PRESIDENT: OK, yes, right. Well, we've got - I'm going back to the very first document. There's a statement of claim, the complainants Ordo Templi Orientis on behalf of Brent Gray and the respondent in this one is named as Dyson Devine.
MS SION: That was the very first complaint.
DEPUTY PRESIDENT: That's the complaint. Then that's - - -
MS SION: That was one of - - -
DEPUTY PRESIDENT: That is, what, A13205.
MS SION: Yes.
DEPUTY PRESIDENT: It has been referred to VCAT.
MS SION: That's correct. At the same time that that complaint was filed there were nine other ones that were also filed.
DEPUTY PRESIDENT: Yes.
MS SION: From that point in time initially the nine files were being run and separate matters heard together and it was approximately a year ago that they were consolidated into two groups, one group had six proceedings in it and the other had the other three. That was by order made on
28 November 2005 by Vice President Judge Davis.
DEPUTY PRESIDENT: Just a minute.
MS SION: Would it assist the Tribunal if I handed up a copy of the order made on 28 November 05?
DEPUTY PRESIDENT: Just one minute, I'm getting to it. Yes, I've got to that.
MS SION: You've got the 28 November 05 order?
DEPUTY PRESIDENT: M'mm.
MS SION: After the matters were consolidated into two separate groups, I believe it was before the Tribunal on
6 February 2006 before yourself at which time orders were made, whilst it was anticipated that the two consolidated matters would be heard together, one was set down for a hearing and the other was set down for an administrative mention, which meant that the two matters stopped going in a combined fashion and were dealt with separately from that point onwards.
I'm instructed there were some administrative issues in the Tribunal collating the different documents for the consolidation and that's why when it was before the Tribunal on 6 February 2006 the consolidation appeared not to have happened as it was intended to. The matters were somewhat separate in that one of the consolidated proceedings was against Dr Reina Michaelson and the CSAPP and that one was run actively. There was particulars of defence filed in the proceeding and it was run as the Tribunal had expected, whereas these consolidated proceedings were run without any involvement from the respondents whatsoever and hence was listed for an administrative mention.
So, accordingly, the first lot of consolidated proceedings were listed for a hearing in November 2006 and that matter resolved, and it is this matter, which is the consolidation of six of them, which is before the Tribunal today.
DEPUTY PRESIDENT: I've got one file. And has the other party been notified of this hearing?
MS SION: Yes, absolutely.
DEPUTY PRESIDENT: Well, I've got - can I just say I've only - what address for service do you have for them?
MS SION: They live together, Vivian Legge and Dyson Devine, and the address for service that we have is 775 Upper Coldstream, Tindale, New South Wales, 2460.
DEPUTY PRESIDENT: We've got 775 Upper Coldstream Road.
MS SION: I'm instructed that it should be Upper Coldstream Road. This form simply didn't have "Road" written on it. We submit that there's no issue as to whether or not the respondents have been served with all the material and are quite aware of this proceeding. The respondents are responsible for a website which is the issue in dispute in these proceedings and that website has a copy of every single document filed in these proceedings and a statement that they're aware that this matter is listed for hearing today in the Tribunal.
DEPUTY PRESIDENT: Have you got a printout?
MS SION: Yes, I do, I'll hand that up now. The copy that I've handed up to the Tribunal now is folded over onto the page where it says that they will not be at the hearing today and tomorrow. You'll notice it also has a President of Her Honour Judge Harbison who was the judge of the directions hearing which set the matter down for trial. She has been personally attacked by this website and by the respondents and that's possibly the reason why she's not hearing the matter today.
DEPUTY PRESIDENT: All right. So what application have you got to make?
MS SION: This is an application against both of their respondents under the Racial and Religious Tolerance Act 2001, specifically under s.8(1) of that Act. The application is in respect of the website. The Tribunal will note under the particulars of complaint that there are two attachments to that documents. They are essentially what were contained on the website back when the proceedings were issued in September 05. That website has simply been added to and added to over the past year and a half and the Tribunal has before it the home page of the website as of today's date. There are on that website at least 50 different links to other pages that continue the racial vilification, the subject of our complaint.
In broad terms, the OTO became aware of these internet postings in around about the end of 2004. They generally accuse the OTO of being a satanic cult which frequently partakes in blood rituals, including the sacrifice of animals and small children after which the blood and organs are consumed by OTO members. It's further claimed that children attempting to escape these rituals are killed.
Dr Reina Michaelson is the author of this material and, as indicated to the Tribunal, proceedings were issued against her separately. Those proceedings were settled in November 2006 and those terms of settlement were made public and I propose to hand up a copy of those terms of settlement to the Tribunal.
Essentially Dr Michaelson acknowledges that she is the author of that material. She acknowledges that she hasn't produced any proof that the OTO members are or have been involved in the practises written about. She also - the issue was the fact that she wasn't actually responsible for the CSAPP website and undertook to ensure that the CSAPP created and made public an official website that did not contain any links to this sort of material. I'll allow the Tribunal a minute or two to review that.
Thank you. Those proceedings are now concluded and it is these ones that we are pursuing. We have encountered significant difficulty by the fact that the respondents simply refuse to proceed. We submit today that the hearing should proceed on the basis of the written material already before the Tribunal, namely, the particulars of complaint, dated 30 September 2005, and the witness statements of Stephen King, the CEO of the OTO, Brent Gray, a member of the OTO and David Bottrell, a member of the OTO. Stephen King, the CEO of the OTO is in court today. Mr Gray and Mr Bottrell are not, neither of them are in the state or the country.
When the matter was before Judge Harbison in March 2007 my instructing solicitor indicated that we would be seeking default judgment against the respondents for the complete lack of interest or compliance with the Tribunal's orders. It was Judge Harbison who suggested that the matter be listed for hearing, rather than my instructing solicitor making application for default judgment so that an award of damages could be sought upon determination of the matter, rather than just an award for injunctive relief. Accordingly, we appear before the Tribunal today seeking injunctive relief as set out in the particulars to complaint of 30 September 05, we seek a damages award and we seek costs.
It may be appropriate to allow the Tribunal some time to read through the particulars of complaint and witness statements. They're not overly voluminous, however, they do accurately set out the position of the applicants - of the complainants and we suggest it would be a wise point for the Tribunal to familiarise itself with that information and then raise any queries on - - -
DEPUTY PRESIDENT: All right. There were particulars of complaint that were filed in September.
MS SION: Correct.
DEPUTY PRESIDENT: What else do I have to look at?
MS SION: Pardon?
DEPUTY PRESIDENT: What else do I have to look at?
MS SION: Three witness statements.
DEPUTY PRESIDENT: Where are they?
MS SION: They should be on the Tribunal's file. Sorry. One is the witness statement of Stephen King dated 30 March 2007.
DEPUTY PRESIDENT: Yes.
MS SION: A witness statement of Brent Gray dated 30 March 07.
DEPUTY PRESIDENT: Yes.
MS SION: And a witness statement of David Bottrell, also dated 30 March 07.
DEPUTY PRESIDENT: Just a minute. That's going to take me hours to read all that.
MS SION: Sorry, one moment. I'm instructed that the witness statement of Stephen King is 13 pages and sets out quite comprehensively the claim against the respondents. The reason the other witness statements are so long is because we have the attachments of the offending words attached to those witness statements, but everything is set out in the witness statement of Stephen King and he is here in court in the event that the Tribunal would us to seek further information on any of the matters raised.
I should add that my instructing solicitors was instructed that given the likely non-appearance of the respondents at the hearing today that the best way to proceed was to make sure that the witness statements were comprehensive so that the matter could be decided on the basis of the written material. There is some information, for example, the structure of the OTO and it's classification as a religion, matters like that are included in the witness statements in the event that they were to be challenged, however, there is no challenge to any of these matters. The main - the sole complaint is that of racial vilification pursuant to s.8 of the Act.
DEPUTY PRESIDENT: What vilification?
MS SION: Sorry, religious vilification by essentially referring to members of the OTO as essentially murderers/paedophiles, among other things. The allegations as they stood - so the material as it stood in September 05 claimed that the OTO is not a religion but rather it's a child pornography and paedophile ring operating in Australia. There was indications that the members of the OTO are paedophiles and producers of child pornography, that they practise trauma based mind control, sexual abuse and satanic rituals for the purpose of preventing or discouraging children reporting child abuse by members of OTO to the authorities, that the OTO is a satanic cult which practises blood rituals where animals and small children are sacrificed and their blood and organs consumed, etcetera, etcetera. This is set out in our particulars of complaint when we refer to the words "in a natural and ordinary meaning".
These words have caused much distress to the members of the OTO. There are approximately 60 members in Australia and these websites and the various links on them have members names, members details and continue to be added to daily. This application is one to have this material removed and to ensure that it is not put back up onto the website.
The website is based out of the United States, it's a United States server which hosts the website, however, the respondents are the people responsible for putting this information on the internet. They reside in New South Wales and the Act specifically allows for them to be required to refrain from this sort of behaviour, despite the fact they do not live in Victoria.
To illustrate to the Tribunal the extreme nature of the material in the big bundle that we've handed up to the Tribunal, my instructing solicitor Kathryn Proust from Phillips Fox, her name has been published on the website as "Kathryn, the paedophile cult's solicitor," with her direct telephone number, her direct email address and a scanned copy of her signature. The partner from Phillips Fox responsible for this matter, Helen O'Brien, has had the same actions taken for her. Most counsel who have appeared in this matter through the various directions hearings or given advice have had their names published on the website and anyone, including Judge Harbison, who's had any involvement with this matter at all has been the subject of attack, and we appeal to the Tribunal to have these respondents stopped from continuing to publish this material and to ensure this material is removed.
Would it assist the Tribunal to have the matter stood down so that - - -
DEPUTY PRESIDENT: Yes. What orders are you seeking?
MS SION: We seek orders that, and I refer to p.6 of the particulars of complaint, there's five orders set in that, however, I seek to vary Order 8. Order 8 is an order that, "The respondents not make, publish or distribute in Victoria, including on the internet, whether in writing or orally and whether directly or indirectly, including by the internet or by inserting any hyperlink on the internet, any statements, information, suggestions or implications to the same or similar effect as those set out in Paragraphs 11 and 18 of these particulars of complaint." I should say Paragraphs 11 and 18 are what we have set out as the natural and ordinary meanings of the material on the respondents' website. I seek to order - sorry, I seek to amend Order 8 to include the word "remove". The Tribunal will note that that order says that, "The respondents not make, publish or distribute," we also need that material removed and it was an error that that was not included.
DEPUTY PRESIDENT: So where does "remove" go in?
MS SION: An order that, "The respondents remove from" - - -
DEPUTY PRESIDENT: "And refrain from making."
MS SION: Correct. That's right, "To remove" - - -
DEPUTY PRESIDENT: Well - - -
MS SION: Sorry, one moment. An order that "The respondents remove and refrain from making, publishing or distributing in Victoria," etcetera.
DEPUTY PRESIDENT: Yes.
MS SION: Order B is an order that the respondents publish a statement - - -
DEPUTY PRESIDENT: Well, how could I do that?
MS SION: Well, I do see there's some issues with the way that has been drafted but perhaps the Tribunal could order that a copy of the decision in this matter be posted on their website for a - - -
DEPUTY PRESIDENT: I'm only going to do an order - - -
MS SION: Pardon?
DEPUTY PRESIDENT: - - - (indistinct) reasons. I would only do an order - - -
MS SION: Perhaps - - -
DEPUTY PRESIDENT: I'm not going to - yes, I mean - - -
MS SION: My instructing solicitor suggests some sort of note that says, "There was material on this website, it has been removed after a hearing in the" - - -
DEPUTY PRESIDENT: Yes, but that becomes much more problematic about future action and our control over that and what I can and can't do. I'd be happy to contemplate A but I would see considerable difficulties with making orders under B in terms of what I can control in the future.
MS SION: Sorry, one moment.
DEPUTY PRESIDENT: You see - - -
MS SION: We did anticipate some sort of acknowledgment or apology to be published on the website that acknowledges that there was material that lacked any substance and has been directed to be removed from the website. We appreciate the difficulties in ensuring that is complied with, in fact even Order A will be difficult and I'm sure we will have issues - - -
DEPUTY PRESIDENT: Yes, but that's sort of far more concrete, right, and with that removing and it's a far more concrete sort of order, yes. So A, I don't have a particular problem with, the B and C I might - they I see would present difficulties. Now, how are you proposing to - when you get to D, what do you contemplate for that?
MS SION: This is, I suppose, the million dollar question, the calculation of damages.
DEPUTY PRESIDENT: What material do you rely on for that in here, because if you haven't all I would be doing would be reserving that.
MS SION: That might be the best way to proceed. The only material we have at this point is the witness statements and they don't overly - - -
DEPUTY PRESIDENT: If they haven't set it out and particularised it all and all the rest of it you can appreciate the difficulties I would have.
MS SION: That's right and particularly because this sort of damages award is unprecedented under this Act.
DEPUTY PRESIDENT: Yes.
MS SION: I would suppose that defamation principles could be used in order to come to an ideal payout.
DEPUTY PRESIDENT: That might be but if it hasn't all been articulated and set out and put there the - I can't - I wouldn't be able to do it.
MS SION: Perhaps it could be heard at another date, the damages question, based on written submissions put forward on behalf of the complainants.
DEPUTY PRESIDENT: And then costs.
MS SION: Costs, my instructing solicitor has a printout of all the costs incurred by Phillips Fox in the action, however, it might be best to have an order for costs to be assessed by the Tribunal on the basis - - -
DEPUTY PRESIDENT: Well, I'm happy to make an order for costs which is - that's if I've got an amount and the rest of it that's much easier to make the actual order, rather than have it as, you know, on a scale and to be assessed as, you know.
MS SION: My instructing solicitor has a printout here of all the costs incurred but it's not according to the scale.
DEPUTY PRESIDENT: Very well, well, you will need to - if you spend the time - well, I'll have to go and read all of this stuff and it's going to take me some time. I've got a meeting at two.
MS SION: My instructing solicitor and myself could spend some time today preparing a - - -
DEPUTY PRESIDENT: Yes, you'll have to prepare a bill of - you know, something that is more concrete. You'd be better off - we'd be better off in terms of how we proceed to actually have an amount ordered.
MS SION: Yes.
DEPUTY PRESIDENT: So why don't you come back at about three, 3.15 and we'll see how we're going, all right?
MS SION: Thank you.
DEPUTY PRESIDENT: You can be excused till then. You're welcome to use the room.
MS SION: Thank you.
UPON RESUMING AT 3.16 P.M.:
MS SION: If the Tribunal pleases, my instructing solicitor has prepared a schedule of costs incurred during this proceeding. I'll hand that up to the Tribunal.
DEPUTY PRESIDENT: All right, now, I've looked at the files. My understanding is that there are six files under consideration, is that correct?
MS SION: Yes, it is.
DEPUTY PRESIDENT: A132 and 137 are applications on behalf of a Mr Brent Gray and the one against - allegations about a Mr Dyson Devine and the other about a Ms Legge, is that right?
MS SION: There should also be one of them by David Bottrell.
DEPUTY PRESIDENT: No, I'm referring to A132 and 137. A132 is Ordo Templi Orientis complained on behalf of Brent
Gray - - -
MS SION: Against Devine, that's correct.
DEPUTY PRESIDENT: Yes, and A137, the same, of Ms Legge.
MS SION: Correct.
DEPUTY PRESIDENT: A139 and A133 concern Mr Bottrell, complaints against Mr Devine, and A133 a complaint of victimisation against Mr Devine.
MS SION: Yes, that's correct.
DEPUTY PRESIDENT: Then the third group, A135 and A134, again Mr Bottrell, alleging complaints against Ms Legge and, secondly, a complaint of victimisation about
MS SION: Yes, that's right.
DEPUTY PRESIDENT: So they're the six matters that I'm dealing with, is that right?
MS SION: Yes, it is.
DEPUTY PRESIDENT: Now, what material is it that you're relying on to establish the complaints?
MS SION: The particulars of complaint (indistinct) in respect of all six of those matters.
DEPUTY PRESIDENT: Yes.
MS SION: And the three witness statements.
DEPUTY PRESIDENT: Now, none of the witness statements I've got - they're only witness statements, they're unsigned and unsworn, so what are you going to do about that?
MS SION: I'll just confer with my instructing solicitor about that. We can have Mr King swear his witness statement immediately.
DEPUTY PRESIDENT: He's not even one of the complainants.
MS SION: Sorry, pardon?
DEPUTY PRESIDENT: He's not even one of the complainants.
MS SION: No, he's not. In terms of the other two, it was, I expect, overlooked that they were not signed.
DEPUTY PRESIDENT: Yes, and they're only witness statements, they're not in affidavit form?
MS SION: No, they're not.
DEPUTY PRESIDENT: Well, what am I supposed to do?
MS SION: There was orders for witness statements, not affidavits.
DEPUTY PRESIDENT: Yes, that's right, but this has
been - - -
MS SION: However, that - - -
DEPUTY PRESIDENT: You've asked, as I understand it, this matter's not to be run as a default proceeding.
MS SION: No, I appreciate the Tribunal's difficulty and they certainly would have been more useful if they were signed.
DEPUTY PRESIDENT: Well, in the form of affidavit in the circumstances of how this has been heard and they're not.
MS SION: Perhaps Mr King can sign - - -
DEPUTY PRESIDENT: Well, is he here?
MS SION: Yes, he is.
DEPUTY PRESIDENT: Well, he can get in the witness box and give evidence but he's not one of the complainants.
MS SION: No. Although he could attach the witness statements to his own witness statement. Is that drawing too far a bow?
DEPUTY PRESIDENT: Well, I'm not running your case. I'll stand it down while you get some instructions but you see the difficulty I've got. If you're wanting me to make findings rather than just, you know, orders by default, it's rather different.
MS SION: Certainly.
DEPUTY PRESIDENT: So I can't tell you how to run your case but since it's stood down this morning I've had a look at all the material. They are witness statements, I appreciate they're of course not going to be cross-examined because the respondents haven't turned up, but how do you expect me to have regard to unsigned, draft witness statements?
MS SION: Is it possible for Mr King to sign these witness statements as he is the CEO of the OTO?
DEPUTY PRESIDENT: I have no difficulty with Mr King signing and adopting his statement. Are you suggesting that he's going to sign Mr Gray's and the other gentleman's?
MS SION: If we can contact Mr Bottrell and Mr Gray perhaps we can have Mr King sign them on their behalf.
DEPUTY PRESIDENT: I've never heard of that happening before, so I'll stand it down while you get some directions but you really - I can't tell you how to run your case.
MS SION: Thank you for the opportunity to discuss this with my instructing solicitor. If the Tribunal pleases, I'll first hand up a signed copy of Stephen King's witness statement and negate the issue with regards to his witness statement. So far as the other statements are concerned, that of David Bottrell and Brent Gray, in the complainants' submission VCAT is not bound by the rules of evidence pursuant to s.98(1)(b) of the VCAT Act and pursuant to sub-s.1(c) can inform itself as it sees fit.
These witness statements were prepared on the basis that each of these witnesses would give evidence on oath and be cross-examined, what, during the course of this hearing. It's purely as a result of the respondents' failure to attend today that that hasn't been the case and the witness statements were prepared along that basis.
We say that VCAT is not bound by the rules of evidence, can inform itself by reason of these witness statements because they are relevant to the issues at hand and, furthermore, they are not unfair to the respondents. The respondents have published - - -
DEPUTY PRESIDENT: All right, who took the instructions for them? Is the solicitor here?
MS SION: Yes, they did, Ms Proust took instructions.
DEPUTY PRESIDENT: All right, well, maybe we'll do it a different way. Mr King, would you step into the witness box, please.
<STEPHEN JOACHIM KING, sworn and examined:
MS SION: Would the Tribunal like Mr King to give evidence in the form of his statement or just simply affirm the matters in his statement?
DEPUTY PRESIDENT: Yes, take him to the statement, all right, and ask him in the usual way. Take him to it in the usual way.
MS SION: Mr King - first I'll hand up to the witness a copy of his witness statement.
DEPUTY PRESIDENT: I've given him a copy of the one that's here.
MS SION: Mr King, you have a copy of the witness statement in front of you?---Yes.
Have you seen this document before?---Yes, I have.
Can you tell the Tribunal what the document is, please?---That is my witness statement in regards this case.
Mr King, is it a true and accurate statement prepared by you for the purposes of this hearing?---Yes, it is.
When did you sign this witness statement, Mr King?---I signed it today.
I'd like to officially tender a copy of the witness statement.
#EXHIBIT A - Witness statement of Stephen King dated 28/05/07.
DEPUTY PRESIDENT: All right, you can be excused, Mr King?
MS SION: Thank you, Mr King?---Thank you.
DEPUTY PRESIDENT: Just one other matter. Yes, just while we're there, what's this - do you live interstate, do you?---I live in Sydney.
Just that they've been claims for witness fees in this for six hours and travel and accommodation fees in this for this witness, when if we'd known he could have just signed it
on affidavit. (To witness) You can be excused, Mr King.
<(THE WITNESS WITHDREW)
MS SION: The OTO was keen to have somebody appear at this proceeding, rather than simply have the solicitors and barristers attend. This matter has been a very emotional one for all the members of the OTO and they were quite keen to have representation here representing the OTO.
DEPUTY PRESIDENT: Yes.
MS SION: We have calculated the six hours fees and it's the lowest rate in the scale.
DEPUTY PRESIDENT: All right. Now, would you call the witness who took the instructions from - - -
MS SION: Certainly.
DEPUTY PRESIDENT: - - - Mr Bottrell and Mr Gray, please.
MS SION: Certainly. Call Ms Kathryn Proust to the stand.
<KATHRYN PATRICIA PROUST, sworn and examined:
MS SION: Ms Proust, can you tell the Tribunal where you work, please?---I'm a solicitor at DLA Phillips Fox, 140 William Street, Melbourne.
When did you first have contact with any of the complainants in this case?---I believe it was early 2005.
Can you tell the Tribunal what happened?---The OTO approached us for some assistance on a matter that had been referred from the Equal Opportunity Commission relating to religious vilification.
Who did you speak to from the OTO?---I first spoke to David Bottrell.
Do you recall his position within the OTO?---I think he's the national head of the OTO, that's my belief.
If I could hand up to the witness a copy of Brent Gray and David Bottrell's witness statements, please.
DEPUTY PRESIDENT: Why hasn't Mr Gray come?
MS SION: Mr Gray resides in Melbourne but he, as part of his employment, travels around the country. He's involved with an A-list celebrity band and travels with them on tour throughout the country and he's not in Victoria at the moment.
DEPUTY PRESIDENT: I just find it astounding when you've got a case that you want the Tribunal to hear and you haven't got your witnesses present at the hearing to give their own evidence. I mean, it puts me in a very difficult position about making any - any assessment of any damages when today's the day.
MS SION: However, we so submit that we're prepared to come back on another occasion to - - -
DEPUTY PRESIDENT: Well, I know you might be but today's the day. What did you think would have happened if I hadn't allowed that?
MS SION: That we would have perhaps run into some difficulty on making some oral submissions.
DEPUTY PRESIDENT: Yes, but I don't know that I, in the circumstances, whether I should let you do that.
MS SION: It has been - - -
DEPUTY PRESIDENT: I'm just astounded.
MS SION: It has been a little difficult to know how to proceed in this matter with the lack of compliance by the respondents and to ensure that we do cover all bases.
DEPUTY PRESIDENT: Who was it who asked for this just to go through and have a hearing on it rather than just having an order by default?
MS SION: It was Judge Harbison who suggested that to my instructing solicitor.
VOICE: I actually requested default judgment and
Judge Harbison - - -
DEPUTY PRESIDENT: Yes, well, are you still pursuing it? Do you still want anything but a default judgment?
MS SION: If I could answer that on behalf of the complainants, unless the Tribunal is not prepared to make orders on the merits in circumstances where Mr Bottrell and Mr Gray are not present, we would like to have judgment on the merits because it does provide the complainants with a stronger basis to ensure that the decision is not overturned because it's not simply a procedural issue that they haven't - that the respondents haven't met.
DEPUTY PRESIDENT: Well, if you want that then I'm - we've set the day aside for this, you were coming her for default but you're not in a position to provide me with matters about any damages and things, you know, you've got to make a decision about how you really do want this to proceed.
MS SION: We would like to proceed with a full hearing on the basis that an award be given - an order be given that the material, as we've discussed previously, be removed from the website and that they not be - refrain from posting further material on the website, an order for costs in a specified amount and an order for damages to be assessed at a later date.
DEPUTY PRESIDENT: Well, that then is going to involve us in further hearing, further paperwork and all the rest of it in circumstances where in fact you were not prepared today to fully set out what the damages should be and how they should be assessed.
MS SION: We do submit that we can provide the Tribunal with written submissions in relation to the damages Award. It is obviously a difficult issue to know how those damages should be calculated, whether to link it with similar legislation handled by this Tribunal or to look at defamation principles generally used in the County and Supreme Courts.
DEPUTY PRESIDENT: Well, yes, I'm very reluctant to try and go down that track in circumstances where they've come here today, when they should have been ready to run the case and been in a position to argue all of that and they're not. So I'd be happy to proceed today on the basis of looking at proceeding and concluding the matter in circumstances where I look at orders under the first category and costs, but I'm reluctant to go down the path of looking at damages if that can't be dealt with today. So what do you want me to do?
MS SION: Could I ask a question from the Tribunal, in terms of dealing with - - -
DEPUTY PRESIDENT: Look, the reason that I've sort of been - had to stand it down and go through all of these files and read all of that is probably not your fault but it certainly wasn't clear when I was handed a file - I was only handed the one file, not realising that in fact there were really six files involved. Sorry, what did you want to say?
MS SION: Certainly. What did I want to say? In terms of a damages award does the Tribunal have views as to how we should be guided in terms of our submissions in that regard?
DEPUTY PRESIDENT: Well, what have you got in your material that would assist me?
MS SION: Well, it is somewhat unprecedented in pursuing a matter under this Act in the first place. We've done some research on other defamation matters in which people have been called paedophiles, murderers and other such defamatory remarks but, as you'd be aware, the award of damages in other courts is very varied and can reach anywhere up to 250,000, which is the new cap on damages. I think to provide the Tribunal with meaningful information on that would probably require some considerable work in terms of written submissions. In the event that the Tribunal is minded - - -
DEPUTY PRESIDENT: Yes, you might consider it mightn't be worth it, I don't know.
MS SION: In the event the Tribunal is minded to make a nominal award of damages perhaps that might be a path that we can take.
DEPUTY PRESIDENT: Well, where's my power?
MS SION: Pardon?
DEPUTY PRESIDENT: Where's my power.
MS SION: Your par?
DEPUTY PRESIDENT: Power to do that.
MS SION: You've got the power under the VCAT Act to make an award of damages - - -
DEPUTY PRESIDENT: It isn't under the VCAT Act.
MS SION: - - - and also under the - - -
DEPUTY PRESIDENT: It isn't under the VCAT Act.
MS SION: Sorry, under the Racial - s.136(ii) of the Equal Opportunity Act 1995 was introduced into the Racial and Religious Tolerance context by s.23 of the Racial and Religious Tolerance Act 2001. It empowers the Tribunal to make an order that, "The respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant of loss, damage or injury suffered in consequence of the contravention." It's clear from that power the Tribunal has the power to award damages but precisely how they are to be quantified is unclear.
We understand that this is only the second case brought under the Racial and Religious Tolerance Act at VCAT and that the first case, which we refer to as the "Catch the Fire case" did not cover the issue of damages. There is little case though on this topic, however, analysis of the defamation principles could be provided to the Tribunal if the Tribunal requires that.
DEPUTY PRESIDENT: Anyway, just put that to one side for a minute.
MS SION: OK.
DEPUTY PRESIDENT: Now, would you take your witness through the statement of Mr Gray.
MS SION: Yes. (To witness) Ms Proust, can you please identify the two documents in front of you?---I have a witness statement of Brent Gray dated 30 March 2007 and a witness statement of David Bottrell dated 30 March 2007.
Who are the authors of these documents?---David Bottrell is the author of one and Brent Gray is the author of another. Brent Gray is a member of the OTO and David Bottrell is the national member, I believe, national head of the OTO.
What involvement, if any, did you have in preparing those statements?---I had extensive consultations via telephone with both Brent Gray and David Bottrell and then taking David's separately, he is currently located in Turkey and so there have been extensive emails, document drafting and telephone conferences. I've also met him in person in mid-2005. Brent Gray travels around Australia and the world on tour and I've also had a number of telephone conversations and email correspondence with him in preparing these documents.
How and when were these documents finalised?---These documents are a derivative of another set of witness statements in a different proceeding and these were prepared in late March 2007, both of them.
On what authority were they filed with the Tribunal?---I was provided with email instructions that they were acceptable to the complainants and they desired for them to be filed with the Tribunal.
Do you have a copy of that email at the Tribunal today?---No, I don't.
Are you aware of any objection that the respondents might have to these documents being on the court file?---None whatsoever. They're almost identical copies of these witness statements in Proceeding A131, which have already been filed, and David Bottrell and Brent Gray gave oral evidence in relation to those in those matters.
DEPUTY PRESIDENT: When did they do that?---November 2006.
What did they give - what was that at?---Where?
Yes?---That was a proceeding against Reina Michaelson and the Sexual Child Abuse Prevention Program that was initiated by the Ordo Templi Orientis with David Bottrell and Brent Gray. It was heard before Senior Member Davis. It was heard for about a week and the matter settled out of court.
Have they tendered statements?---They were tendered.
Did they tender statements?---Yes, that's - yes, that's my belief.
Do you have a copy of their statements tendered in that proceeding?---No, I don't, not with the exhibit markings on them but I do have copies of the witness statements which were filed with the Tribunal or will have a copy of them in there.
MS SION: How do they differ from these ones?---They're slightly shorter to assist the Tribunal but they would be in substance very similar. I might also say that the focus of these witness statements relate purely to the "Gaiaguys" website, whereas on the other witness statements they related to Reina Michaelson's website which was the CSAPP net website and so a couple of the references had been changed, but by and large they're very similar.
Would you have any objection to the Tribunal reviewing the statements in the other proceeding?---No, I wouldn't.
DEPUTY PRESIDENT: Sorry, have you got copies of those statements? Now, A131?---It was from memory A131, 140 and there may have been a 138.
Sorry, both of these, Mr Gray and Mr Bottrell both gave evidence them?---That's correct.
Were they cross-examined?---I think Mr King might be in a better position to answer that, he was at the hearing that they (indistinct).
MR KING: David was cross-examined.
MR KING: And Brent was - he was (indistinct).
WITNESS: Reina Michaelson was represented by Adam Paskoski of Khor & Burr who was playing a very active part in the Tribunal was not letting anyone go uncross-examined, so my assumption would be he was cross-examined.
MS SION: Thank you. If I could hand up to the witness these two statements. Mr Proust, if you could identify the two statements I've just handed up to you. One of them is unstapled?---I have one witness statement of Brent Gray dated 20 September 2006 between the Ordo Templi Orientis, David Bottrell and Brent Gray v. CSAPP Inc and Dr Reina Michaelson. The second document I have is a witness statement of Stephen King, I think I - - -
MR KING: I beg your pardon.
MS SION: It looks like we don't have the other one, so I'll just take you to the Brent Gray one?---The Brent Gray one is actually in identical form to the Brent Gray statement dated 30 March 2007. They were - - -
DEPUTY PRESIDENT: Identical to this but just a different header is it?---A different header, that's correct, and obviously a reference to the particulars of complaint in this current proceeding as opposed to the Michaelson and CSAPP proceeding.
MS SION: Are you able to say whether Mr Gray and Mr Bottrell would have any objection to their statements being used interchangeably to assist in this proceeding?---No, I think that any objection would be unlikely. I'm very confident in their witness statements there were minimal changes made between the two proceedings. It was intended that the first set of witness statements go in as part of both of the proceedings but we had to change the header and decided to change a couple of other minor points as well.
And, finally, to assist the Tribunal, it might be appropriate
if you could explain why Mr Gray and Mr Bottrell are not present today?---My understanding is that Mr Gray is currently in Perth, due to arrive back in Melbourne late tonight or early tomorrow and David Bottrell is in Turkey with his family on secondment for work for a couple of years and we thought it was a bit much to ask him to attend again before the Tribunal having regard to the fact the proceeding would go uncontested.
Is there anything further you want to add to any of that? Thank you. I've got no further questions for Ms Proust.
DEPUTY PRESIDENT: All right. Thank you, Ms Proust, you can sit down.
<(THE WITNESS WITHDREW)
DEPUTY PRESIDENT: All right, now in terms of the complaints, and in a sense they're all sort of the same, it refers to the website referring to the OTO as various things, can you show me in any of the statements where that is, where that's set out, where the material is?
MS SION: Sorry, (indistinct).
DEPUTY PRESIDENT: Well, the complaints refer to offending material on the site, now can you point me to what that is.
MS SION: To the offending material on the site?
DEPUTY PRESIDENT: Yes, where is it? Yes, in the witness statements, presumably the witness statements refer to it. So where is it in the witness statements?
MS SION: In Bottrell's statement on p.8.
DEPUTY PRESIDENT: Yes.
MS SION: There's the heading "The offending websites", and the following page is "The effect of the offending words".
DEPUTY PRESIDENT: Well, where are the offending words set out?
MS SION: They are set out in the Act. Well, the true and ordinary meaning of the words is set out in the particulars of complaint. The words in itself haven't been reproduced in the witness statements because they are so voluminous in the annexed - in the material that's annexed to the statement.
DEPUTY PRESIDENT: All right, now I've got that, so point me to where it is. I'm looking at Mr Bottrell's statement.
MS SION: The way the witness statements have been drafted is that Paragraph 44, for example, of Bottrell's statement, he refers to the words as referring to Paragraph 8 and 15 in the particulars of complaint. If we look at Paragraphs 8 and 15 of the particulars of complaint the words are not set out because it's not a case where there's simply one article that has one statement against the OTO, it's a whole - a whole website against the OTO and the website as it was in September 05 is therefore annexed and the "first words" refer to the website as a whole.
DEPUTY PRESIDENT: You've lost me.
MS SION: Sorry. The offending words are not set out anywhere in the witness statements or in the particulars of claim. The most (indistinct) way to explain it is that the particulars of claim refers to the words in Paragraphs 8 and 15. They've defined them the "first words" and the "second words", and that's on p.2 and p.4 of the particulars of complaint. Paragraph 8 says, "On or before 8 December 2004 Devine and Legge published the words annexed hereto and marked A on the website" and they are referred to as the "first words".
DEPUTY PRESIDENT: And what words are in Exhibit A?
MS SION: Those words refer as a whole to what's annexed - marked A, annexed to the particulars of claim and there's 23 pages here.
DEPUTY PRESIDENT: Well, where in (indistinct) 23 pages of the offending words?
MS SION: I will take the Tribunal through that. On page - if we start on p.4 it says, midway through the page, 21 February 2005, "Equal opportunity in Victoria, Australia, for cults who torture and kill children." A few lines down from that it's in brackets saying - and there's a few inverted commas, "Sacrifice a child. Have no pity. Kill and torture. I will give you their flesh to eat," and it says from the Ordo Templi Orientis, Book of the Law written by Prophet of Thelema, Aleister Crowley. Then it says, "This tax exempt religious organisation who the Victoria Police refuse to investigate has approached the Equal Opportunity Commission of Victoria because of the way "Gaiaguys", your web authors, coverage of their activities adversely affects or has the potential to adversely affect the interests of the OTO. Please read about how the criminally corrupt free Masonic Victorian Civil and Administrative Appeals Tribunal conspires to protect Satanist paedophiles."
That continues and I'll move down to the next most relevant part where the OTO is specifically mentioned. On p.10 there's a box half way down the page and it says, "Below is the openly stated philosophy of this protected paedophile group which is operating in Victoria, Australia. And, sorry - the below symbol was originally downloaded by "Gaiaguys" from the Ordo Templi Orientis website. Now that website has been remodelled and this symbol seems to be no longer there. Similarly, the library seems to have disappeared, however, you can still follow the links to find Crowley's Book of the Law from which the below quote was taken." And the quote is, "Man has the right to eat what he will, to drink what he will, man has the right to kill those who would thwart these rights, the slaves shall serve."
Moving onto the next reference, on p.12 it says, "In 2003," I am reading from halfway down the page, "a former Young Australian of the Year, Dr Reina Michaelson bravely exposed on this website an untouchable paedophile, pornography and ritual abuse network operating in Australia involving high government officials, leading politicians, television executives, top TV presenters and police. This child sex abuse extends to ritual torture, murder and more." This is referring to the practises of the OTO even though they are not formally named in that particular paragraph.
Moving down, p.13, moving onto s.(b), I'm instructed, p.13, s.B which continues directly behind s.B.
DEPUTY PRESIDENT: Where's s.B? What's s.B?
MS SION: It's Attachment B to the particulars of complaint, so after p.23 of Annexure A begins Annexure B. The introduction to B, I should say, on the first page of p.1 of Annexure B, the introduction reads, "A brave and committed young woman exposes on this website an untouchable paedophile and a satanic network operating in Australia involving high government officials, leading politicians, television executives, top TV presenters and the police."
Moving down to p.13 we have what's entitled "Mixed experiences" and it says, among other things, "Mick was introduced to the satanic cult as a very young child by an extended relative. He informed me of many experiences he was subjected to as a child in this cult. Everything I have been told by Mick the cult appears to be the Ordo Templi Orientis operating in Australia. Mick now suffers from MPG/DID but has survived his experiences remarkably well considering the traumas he has been through. As a child Mick was forced to attend blood rituals where animals and small children were sacrificed and their blood and organs consumed. Mick was required to clean up the blood after these rituals. The children and babies were street children or were taken from orphanages so that they could not be traced and no-one would know or care if they went missing. The rituals are spoken in Latin and are clearly satanic. The rituals took place at various locations, including Goldtown.
Mick and other children would be driven to the rituals in the boots of cars. The members of the cult were extremely powerful members of society. There were numerous politicians, mainly from the conservative party. These people would often speak of important events before they would actually occur. Mick was also sexually abused by Gerald Oanasis, the famous television personality and professional partner of Ernie Old. Mick was one of the many children who were used to host parties of the cult's members. At these parties the children acted as waiters and were naked. Many of the adults, but not all, would wear masks at these parties. After the food was served the adults would have sex with the children. The children who tried to escape were killed, often in front of the other children in order to control the children through fear. Once Mick and another child had tried to escape but were caught. The other child was murdered by having her head smashed open with a rock. Her body was then dumped in a nearby mine shaft. Mick was spared the same fate as he was told he was the chosen one selected to carry on the traditions of the group. Mick was forced to participate in the production of child pornography, including movies as well as still photographs. This involved sexual activity with other children as well as adults. He would get paid a small amount for his sexual services while the relative who brought him to the events would get paid a large amount of money. As he got older Mick was no longer used for sexual purposes by the group but was required to recruit new, younger children. When he was old enough, in his 20s, Mick was able to escape the group but they continued to contact him with threats."
The next paragraphs begins, "Bob Sisterly's religion," it's apparently also relevant, it says, "During my association with Bob Sisterly I got to know him in some ways quite well. One day he informed me of his religious beliefs. These were the opposite of mine as I am a Christian. I was also informed by one of the colleagues in the media industry that Bob's religion is weird s--t. At the time I had not heard of the Illuminate and it is only now that I realise that Bob Sisterly is an active and dedicated member of the Australian Illuminati. The symbolism used in Network X commercial material is totally consistent with that of the Illuminati Ordo Templi Orientis such as the key colours blue and gold and key imagery involving flames."
DEPUTY PRESIDENT: Who's allegedly the author of this then?
MS SION: The author of this is Dr Reina Michaelson.
DEPUTY PRESIDENT: Right, so this document starts when?
MS SION: Annexure B.
DEPUTY PRESIDENT: Page 1.
MS SION: Page 1.
DEPUTY PRESIDENT: Right, so 1 to 28 is authored by
Ms Michaelson, is that right?
MS SION: Correct, yes. There's also a number of links to these websites, for example, on the first page of Annexure A, p.1 of 23 of Annexure A, there's a link which says, "Read the explosive expose." And now of course we have handed up to the Tribunal the website as it stands today and you could spend a good few hours trying to read all the material on the website and be directed to the various links.
DEPUTY PRESIDENT: So where's the link on - I'm looking at p.1 of 23. Is it Annexure A?
MS SION: You click on that and it takes you to Annexure B.
DEPUTY PRESIDENT: Click on what?
MS SION: You click on "Read the explosive expose". That's the hyperlink, I think it's called in internet terms, and that takes you straight to Annexure B.
DEPUTY PRESIDENT: Yes.
MS SION: That's the extent of the offending words in the first - in those two annexures. We can take the Tribunal through the website as it currently stands if that's required. It's simply more of the same. The whole website appears to be dedicated to vilifying the OTO
and - - -
DEPUTY PRESIDENT: Take me to - there's complaints of victimisation, so where's the material in support of that?
MS SION: The claims of victimisation are against the OTO as a religion and the members who are part of that religion, so we would say that all of the offending material victimises the OTO.
DEPUTY PRESIDENT: I don't think that's the complaint of victimisation. A133 is a complaint of victimisation by Mr Devine himself - Mr Bottrell himself, so I want to know where it is in the material - - -
MS SION: Where he himself - - -
DEPUTY PRESIDENT: Yes, and then again his,
Mr Bottrell's, complaint of victimisation by Ms Legge is his own claim, so where's the material in support of that?
MS SION: I'm instructed that the way that the Act is set up is that the complaint has been brought by the OTO and that the victimisation is against the OTO.
DEPUTY PRESIDENT: No, that's not the complaint. If you read the complaint of victimisation - let us look at this one now. One's A133, this is Mr Bottrell whose complaint of victimisation - Mr Bottrell believes that Devine's statements contained in the site constitutes victimisation as defined by the Act and may subject him to detriment because he has made a complaint against the respondent. Where's his particular - where's he referred to then and he says he's - "Since the lodgement of the complaint the respondent has posted on the website claims which mention the complainant by name and claim or infer that he engages in criminal actions." So where's that?
MS SION: OK, I'll just get instructions.
DEPUTY PRESIDENT: The complaint says it refers to him by name and claim or infer that he engages in criminal actions.
MS SION: Firstly, I should say that the particulars of complaint were filed, prepared and filed with the Tribunal before his name was actually posted onto the website and that's why the particulars of complaint don't refer to that. The proceeding was brought - - -
DEPUTY PRESIDENT: The particulars of complaint were
filed - - -
MS SION: September 05.
DEPUTY PRESIDENT: Yes, well, this was a complaint of 21 March 2005.
MS SION: Yes. Since then there's been more material added to the website and, for example, some of the attached - - -
DEPUTY PRESIDENT: Ms Sion, this is a complaint that's been to the commission and it's been referred to VCAT, right, you can't add things that happen later. I'm asking you this complaint of victimisation was filed with the commission on 21 March 2005 alleging that Mr Bottrell had been victimised by Mr Devine in that the respondent had posted on the website "Gaiaguys" claims which mention the complainant by name and claim or infer that he engages in criminal actions. All I'm asking is point to where that is for me, please.
MS SION: If I could just ask, are you reading from his affidavit?
DEPUTY PRESIDENT: No.
MS SION: His statement.
DEPUTY PRESIDENT: I'm reading from his statement of complaint.
MS SION: Sorry, we've just lost that particular document.
DEPUTY PRESIDENT: Statement of complaint in Matter A133 2005.
MS SION: Do you mean the particulars of complaint for the consolidated proceedings for all of them?
DEPUTY PRESIDENT: No, I'm - well, I'm looking at the original statement of complaint, the - - -
MS SION: I'm instructed there wasn't an initial statement of complaint for just that matter alone.
DEPUTY PRESIDENT: A133. A133 is his victimisation complaint and I'm asking where's the material that supports the complaint or are you not pursuing the victimisation complaints?
MS SION: OK, I'm instructed that that document was used for the purpose of the Equal Opportunity Commission. When the matter was referred to VCAT back in 2005 we were directed to put in particulars of complaint for the six proceedings as one consolidated proceeding. Accordingly, we don't have a copy even of that document in our files and we were told not to rely on it and to put everything that we relied on on the particulars of complaint, hence the claim by Bottrell is brought simply on his behalf by the OTO.
DEPUTY PRESIDENT: You've really lost me. I'm looking at - is there anything in your particulars of complaint where you are complaining of victimisation or do I put all of that to one side?
MS SION: No. I'm instructed that we can put that aside, we are simply talking about religious vilification and that the only - - -
DEPUTY PRESIDENT: Right.
MS SION: - - - the only material that is before the Tribunal is - - -
DEPUTY PRESIDENT: I will take out from here - I will make an order then that you want to withdraw the victimisation complaints, is that right, so - - -
MS SION: No, if I - sorry, if I could clarify that with you - I'm sorry if I'm sounding confused on this. The only material that should be before the Tribunal at this point in time is the particulars of complaint filed on 30 September 2005 - - -
DEPUTY PRESIDENT: Right.
MS SION: - - - and the three witness statements, that's it.
DEPUTY PRESIDENT: All right.
MS SION: The other documents do not form part of this proceeding whatsoever.
DEPUTY PRESIDENT: All right, so A132 represented those six files.
MS SION: Correct.
DEPUTY PRESIDENT: So, if you are not pursuing A133, the victimisation complaint of Mr Bottrell against
Mr Devine, I will make an order then - - -
MS SION: I don't think that order even needs to be made since that wasn't pursued in this court.
DEPUTY PRESIDENT: Well, the only thing that you've got - I don't understand, you see there was an order made that A132 was the proceeding that included all six, they were all consolidated.
MS SION: That's right, and that document - - -
DEPUTY PRESIDENT: Can you just tell me - - -
MS SION: The particulars of complaint is the document setting out the complaint for all six of those proceedings.
DEPUTY PRESIDENT: All right. Well, I think I then should strike out your other ones for the avoidance of doubt if you're not pursuing your victimisation ones.
MS SION: I think that's already been done in that all the matters - - -
DEPUTY PRESIDENT: When? It hasn't bee done.
MS SION: They were all consolidated into the one proceeding
by - - -
DEPUTY PRESIDENT: Yes, so I am left with the six of them. They're in the one proceeding, they're all being heard together.
MS SION: That's right.
DEPUTY PRESIDENT: You've got particulars of complaint listing all six.
MS SION: That's right.
DEPUTY PRESIDENT: A133 is a complaint of victimisation by
Mr Bottrell, is that to proceed or not?
MS SION: I might just ask my instructing solicitor to explain how this (indistinct) worked.
VOICE: My understanding is that when the matter was referred from the Equal Opportunity Commission there were six complaints. Upon referral to VCAT they were randomly allocated separate numbers and there was nine in total in fact with the CSAPP and Michaelson ones. Then we received a notice for a directions hearing in relation to these six before us today and we were required to attend at the Tribunal. There was no indication from the Tribunal as to whether any of those complaint numbers related to particular - - -
DEPUTY PRESIDENT: But they do. We have nine files opened.
VOICE: We only received notification of the file numbers - - -
DEPUTY PRESIDENT: Yes.
VOICE: - - - and the fact that it had been upon referral from the Equal Opportunity Commission that we were required to attend before the Tribunal for fresh particulars of complaint to be filed which was later done, but - yes, on behalf of all of them but no victimisation and that was dropped quite some time ago.
DEPUTY PRESIDENT: All right, well - - -
VOICE: And we did try - we had Peter Vickery QC try to attempt to put them altogether into one because essentially we only wanted to run one hearing and we were
instructed - - -
DEPUTY PRESIDENT: All I'm asking then are you pursuing the victimisation complaint as set out in the original complaint or not? My difficulty is I've got jurisdiction with matters that have been referred to VCAT. At the moment I essentially have six files still alive, two of those files are complaints of victimisation. If your clients don't want to pursue it I'll make an order then to striking those out.
VOICE: Those matters have not been pursued in the consolidated particulars of complaint.
DEPUTY PRESIDENT: Fine, for the avoidance of doubt then I will - do you want them withdrawn or do you want them - - -
VOICE: We'll have them withdrawn, so that brings it down to four, is that your understanding?
DEPUTY PRESIDENT: Yes, OK, I'll get rid of A133 and A134. So A133 and A13 - I'll just make those orders now then. So the complainant - there'll be a separate order in each one. The complainant - you don't need leave in this jurisdiction, do you, so the complaint of victimisation is withdrawn. OK, so you can see why I'm asking the questions because I get the - there have been six files, essentially two respondents, Mr Gray has only brought complaints in relation to what's in that material you've already drawn my attention to, however, Mr Bottrell separately made complaints of victimisation and if you're not relying on that there's no evidence of those - of what I was asking about, you can't point me to any instances where that happened and whatever it is, I'm happy to make the orders then we're just withdrawing those, all right. So that brings us back to the other four.
Now, let me collect my thoughts and see where we are. So when he's referring in his things to the "second words" he's referring to Dr Michaelson's.
MS SION: That's right. Both the "first words" and the "second words" are authored by Dr Michaelson. The second one is simply accessible through the - - -
DEPUTY PRESIDENT: Through the website.
MS SION: Correct.
DEPUTY PRESIDENT: All right. And what are you saying, are you saying that they're still there, Ms Proust, on the website? Are they still accessible? What about
the - - -
MS PROUST: I accessed the "Gaiaguys" website on a regular basis for the purpose of this proceeding. The offending words in both categories, it's more accurate to say the second set of words is still intact on the website, however, the first set of words is quite a long list of incoherent ramblings, if I may, which is updated up to three times a day with further information. So in its identical form it's not present today, however, in it's extended and furthered form it is certainly present and the copy of the document that we handed up to you earlier today is just a small sample of their works. That's just the home page. Everything that has an underline on it you can click on for a further listing of 65 pages or so.
DEPUTY PRESIDENT: Yes, right.
MS SION: And I should add that one of those links takes us to the page where it says "Index of documents in the VCAT proceeding" and it has each of the respondents - sorry, each of the complainants' witness statements online and accessible.
DEPUTY PRESIDENT: So where's that in the - where's that?
MS SION: On p.2 of 71 there is an updated - - -
DEPUTY PRESIDENT: No, I've got 65 pages.
MS SION: We must have printed them at different times of day. Number 65, we'll just grab the right reference. On p.2 of 65 it says "Updated. Please click here for our index to our main items about "Gaiaguys" versus the Ordo Templi Orientis Freemasons." When you click onto that - - -
DEPUTY PRESIDENT: Yes, where is it on the page?
MS SION: The second paragraph.
DEPUTY PRESIDENT: Page 2.
MS SION: There's a little sort of highlighted star around "updated" at the top.
DEPUTY PRESIDENT: "Please click on here for our index to our main items about so and so," is that it?
MS SION: Yes, that's right.
DEPUTY PRESIDENT: Yes, OK.
MS SION: And that's when you get the index of documents in this proceeding, which includes - - -
DEPUTY PRESIDENT: And have you got a copy of the attachment or the link or the material?
MS SION: Yes, I'll hand that up now. As I say, there's a copy of each of the three witness statements that we rely on in this proceeding. There's also an expert report there. That was the expert report that we obtained. It hasn't been filed with the Tribunal because there was no issues - there was no issue as to whether or not the OTO was a religion. We obtained the report because in the - in anticipation that there might be some issue but there hadn't been. In any event, it is also on this website and we're unaware as to how they actually got a copy of that report.
I should also point out what my instructing solicitors says which is that in the document you've got of 65 pages, as she's mentioned that every single underlined part is another link and it's just horrendous how much material has been published and, as you can imagine, has caused the complainants significant amount of distress and it is updated, as I said, up to three times daily. As soon as any action in this proceeding occurs it is uploaded almost immediately afterwards and hence why they really need to put a stop to it.
There's also cartoons that are derogatory towards the OTO of them advocating torture and child sacrifice and gratification of sexual proclivities. Throughout the whole document there's cartoons at different places. There's lots of material that we could hand up, all the different cartoons, all the different links, all the different attachments. We haven't printed out all of them obviously. There is a cartoon here, if the Tribunal would like to have a look at it. It's simply more of the same of what the Tribunal has already been provided with.
Are there any other further issues?
DEPUTY PRESIDENT: Yes. The terms of settlement, what standing have they got?
MS SION: No standing in this proceeding other than to assist the Tribunal.
DEPUTY PRESIDENT: So they're public.
MS SION: Yes, they are. They're the last line of the terms of settlement so they are public.
DEPUTY PRESIDENT: Yes, OK. All right. Now, really then the only issue then is the question of damages, if I'm satisfied of the - yes, I think maybe the better thing to do at the moment is just leave that with me because I think I'll have to give some consideration to how I might proceed on that depending on what my findings are.
With the costs, we would normally not award costs on scale, do you, in this jurisdiction? We'd be looking more at the Scale A costs. I'll just make that comment. Just depending on what I then think about the issue about damages, we'll let you know if there's anything more the Tribunal needs to know.
MS SION: That would be appreciated. We are in the Tribunal's hands in relation to damages and we are prepared to undertake to (indistinct) and provide submissions based on the Tribunal's comments. I understand that will require us returning on another date, however, if it could be done by written submissions we would be cooperative in that respect.
DEPUTY PRESIDENT: All right. We'll certainly send out the orders withdrawing A133 and 134 just to finalise those two files and you'll hear in due course.
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