Way back in 2001 when Julian Burnside agreed to act pro bono for Crikey in defending the legal blitz against us by shock jock Steve Price, it was the top silk’s first defamation case.

In the end it was Nic Pullen, then a partner at Holding Redlich and now with TressCox, along with barrister David Gilbertson who did most of the grunt work during the one-month ordeal but Burnside was vital in securing the settlement.

While Burnside’s stature as one of Australia’s finest barristers was important, it was also handy that his chambers were on the same floor as Will Houghton, the silk acting for Price and funded by 3AW’s then-owner Southern Cross Broadcasting.

The reasons for pointing all of this out is that the same group of barristers again came together in the long-running defamation action that on Monday saw a jury award barrister Dyson Hore-Lacy $630,000 in damages to be paid by publisher Allen & Unwin for Phil Cleary’s book Getting Away With Murder.

(The Herald Sun and The Age gave it a big run yesterday.)

The wig-wearing configuration was different this time because Gilbertson acted as junior to Houghton, who was running the defence of Cleary, and it was Burnside who acted for Hore-Lacy.

I dropped into the Victorian Supreme court on Monday to hear the impressive Justice Nettle spend an hour summing up the argument from both sides for the jury and walked out of there thinking that Camp Cleary was probably going down.

One of the ironies in this situation is that Hore-Lacy originally asked for $50,000 and an apology, which is precisely what Price got out of Crikey. In the defamation game you need to know when to fold.

While Houghton’s shock jock client accepted this deal in early 2002, when the boot was on the other foot a settlement on identical terms was rejected by Allen & Unwin, although this was believed to be before Houghton was retained.

In the end Burnside asked the all-female jury for at least $500,000, so getting $630,000 was clearly a huge result and the total bill for Allen & Unwin will be well into seven figures given the length of the dispute and the expensive counsel involved.

While Burnside’s three-hour cross-examination of Cleary didn’t produce a knockout blow, there was an email Cleary sent to the publisher on November 25, 2005, in an attempt to get a contract, which, as a selling point, claimed the book would “engulf several high-profile people”.

In cross-examination, before being reminded of the email, when asked what high-profile people were involved in the case, Cleary named Dyson Hore-Lacy  first. Then, after a bit of thinking, he named Rob Moodie but that was it.

All of this goes to the nature of the defence that was run.

The fair comment defence was rejected by the Court of Appeal because it sought to allege directly that Hore-Lacy had helped manufacture a false defence for wife killer James Ramage. That hit two problems.  First, the defendants had not pleaded justification, yet wanted to allege by fair comment that he had done the thing that constituted the libel.  Second, what they wanted to plead was not a “comment” but an assertion of fact.

During the trial, the fair comment defence would have run into a third problem: Cleary said that he never believed that Hore-Lacy had helped manufacture the defence. Burnside was clearly able to convince the jury that the book, Allen & Unwin’s website and interviews Cleary did with various media outlets suggested otherwise.

While Cleary has a long track record of campaigning for women who are victims of domestic violence and murder, such as his sister, Burnside argued that Hore-Lacy had grounds to be aggrieved in that he was friends with the murdered Julie Ramage and then was accused of helping manufacture a provocation defence for her killer.

That said, it is interesting but not legally relevant that Julie’s sister, Jane Ashton, has sided with Cleary and came out swinging on Jon Faine’s program yesterday.