Kyle Sandilands’ conduct may not be “nice” but “if you buy Kyle, you get Kyle”, the federal court has heard in a high-profile legal fight the sacked shock jock describes as “pretty ugly”.
Sandilands’ barrister, Scott Robertson SC, has told the court the allegations about Sandilands’ conduct may “be regarded as serious misconduct for the purposes of employment law”, but they are not “serious misconduct for the purposes of this particular contract”.
“If you buy Kyle, you get Kyle,” Robertson said. “The kind of conduct in which he engaged was conduct that was desired - contractually desired, that’s the word in the contract - and indeed was monetised.”
ARN has alleged Sandilands repeatedly berated Kiis FM executives, the radio station’s censors, critics of the Kyle and Jackie O Show and the Melbourne audience in expletive-laden rants which amount to serious misconduct.
“And whilst I don’t like this conduct – me sitting here as a citizen, I look at [it] and say, this is not nice conduct, it’s not the kind of conduct that I think someone should engage in – [but] it does not amount to conduct of a kind that entitled the respondents [ARN] to terminate this contract.”
The former Kiis FM breakfast host described his legal fight against ARN Media for $85m as “pretty ugly” as he arrived at the federal court in Sydney in a Rolls-Royce in front of a large media pack.
Robertson said everything that was said on- and off-air on the Kyle and Jackie O Show was recorded “big brother” style, and his client was highly likely to admit to poor conduct.
“There was, as it were, a big brother that was recording not just the material that would go to air immediately, or after a 32-second delay, but off-air communications between my client and Ms Henderson,” Robertson said.
Henderson, who did not attend the joint hearing, does not want to be in the same court room as Sandilands as he has caused her “significant psychological harm”, her barrister Vanja Bulut said.
Medical experts would be called to say Henderson suffered psychological injury with physical manifestations as a result of Sandilands’ bullying, the court heard.
While neither Sandilands nor Henderson want their cases heard together, Tom Blackburn SC, for ARN Media, said there were “very powerful reasons” to hold one case. They are each separately suing ARN Media for more than $80m, while ARN Media is suing both personalities for loss of revenue.
He said it would be “awkward” but the matters should be held together because the background and contextual matters were largely identical in each case.
Sign up for the Breaking News Australia emailARN Media alleges Sandilands breached his contract by repeatedly berating colleagues and the audience on air.
Blackburn said his client’s case would attempt to prove Sandilands’ conduct caused “serious and imminent risk to the health and safety” of Henderson.
Justice Angus Stewart said it was likely the cases would have to be heard together but he would keep an open mind until he had seen all the pleadings. He set a date for the 10-day trial in October.
“They may still be heard separately, but as I explained a minute ago, it seems to me likely that they’re going to have to be heard together,” Stewart said.
“So I’ve decided that both proceedings should be put on a common timetable on all the issues at this stage.”
Robertson is opposed to a joint hearing because it may delay his client’s case, which would deny him procedural fairness.
He argued that the longer Sandilands is off-air, the more it disadvantages him because the audience may move on to another show.
He described ARN’s defence document released on Thursday as a “kitchen sink defence” which includes additional allegations against Sandilands.
“This is not a case that’s just about money,” Robertson said. “Mr Sandilands wants to get back before the microphone … This is not the opera singer who doesn’t want to sing. This is the broadcaster and performer who wants to get behind the microphone ASAP.”
As he left court, Sandilands addressed the crowd of press and fans.
“Just don’t believe the bullshit that you hear and read, just wait to see what comes out in court,” he said.
