Two years ago a notorious developer made it clear to Penny Figgis, Vice-President of the Australian Conservation Foundation that his method of dealing with his environmental opponents was to call them liars and to sue them for defamation. Regrettably in Australia such a method has worked against public interest debate and is becoming widespread because the defamation and other media laws operate in a complex and hugely expensive way which can seriously inhibit public interest discussion if people do not understand the laws well.

The mere mention of defamation sends most people rushing for cover, often leading to fearful over-reaction before competent legal advice educates them about how the defamation laws actually work. It is often a surprise to people that many publications which attack, criticise and satirise, do not meet the legal test of being defamatory, ie. significantly lowering the reputation of a person in the minds of the ordinary reader, listener or viewer of the publication. It is also poorly understood that our laws allow defamation where there is a defence of truth, comment, protected report or qualified privilege.

Before turning to what we as lawyers, journalists and people committed to free speech should try to do about this, let me paint what I see as the depressing picture, by examples, of just how pervasive the use of defamation and other legal threat against public interest debate has become. And please note that, as these examples reveal, even discussing them involves a risk of defamation. Remember, we are talking here about debating matters of public interest, not just people seeking to protect their individual private interest.

To underscore the dimension of the problem, let’s start with the once ‘Big Australian’. In 1994 BHP blasted the ABC over a number of broadcasts about the Ok Tedi catastrophe and the litigation started by Slater and Gordon for the villagers affected (letter 10 June 1994). BHP charged of the broadcasts that:

Then followed a 13 page attack on the broadcasts with the final warning:

It is significant that far from the broadcasters and critics having a case to answer for their well sourced and well argued criticism, BHP was so exposed over Ok Tedi that the Chairman-elect himself, Jerry Ellis was ultimately forced to appear in a series of TV ads to try and cover BHP’s position.

More recent examples arose from the film "Jabiluka". Not unexpectedly, ERA responded to the theatric release of the film with a blast against filmmaker David Bradbury from its solicitors, Corrs Chambers Westgarth :

Then when SBS proposed to broadcast a version of the "Jabiluka" film, Corrs legal bombardments were rained down upon SBS and Minter Ellison, the Melbourne law office retained by SBS to assist. An injunction was threatened and the ERA lawyers sent Minters ERA’s own film about mining in Kakadu so Minters could see how wrong the Bradbury film was! SBS proceeded to screen the Bradbury film. I didn’t detect it doing ‘enormous harm and damage’ to ERA which at last report had won the debate with government.

It is significant that in neither of these cases did any legal action follow the publications, which of course indicates that the pre-publication thinking and legal review that went into them ensured they were lawful and that the companies would be unlikely to take legal action. However you cannot always avoid consequences, as can be seen from the case of Comalco v. ABC (1986) 68 ALR 259 concerning a Granada program run on Four Corners about the Weipa bauxite mine and its impact on Aboriginal people. Despite the ABC and Granada having applied careful legal scrutiny to the program, it was held that indefensible defamatory imputations were conveyed by the program and the Federal Court simply applied the traditional rules of private tort in a public debate context. The ABC suffered a damages award of $100 000 plus costs.

And where ordinary people rather than major publishers are involved, the story is usually a matter of real concern. Here in Victoria, a local group, the Bannockburn Yellow Gum Action Group was formed to protect a grassy woodland. But the Barwon Region Water Authority decided to cut down dozens of trees in the woodland and turn the area into a sewerage farm. Barwon Water’s Chairman is Frank De Stefano. The angry residents published a witty bumper sticker with the laboured pun 'Barwon Water - Frankly Foul' to vent their outrage at Barwon Water and at Frank, who could have had a laugh at the pun with his mates in the pub. Or Frank could have used his access to the airwaves and the press to let people know he was not amused and respond to his critics. Instead Frank went to Court for defamation pleading that the joke carried imputations that:-

(a) Frank De Stefano was a foul person.

(b) Frank De Stefano was a person smeared with the sewage that the authority of which he was Chairman treated.

(c) Frank De Stefano was a person who smelt like sewage.

(d) Frank De Stefano was a person unfit to hold the position of Chairman of Barwon Water.

The case then became enmeshed in the cost and complexity of the law and in the course of a mediation procedure, the three defendants who accepted responsibility for the stickers decided to give in and not only apologise for saying Frank was unfit to be the Chairman but also to pay $10 000 for Frank’s costs. (Even then, one of those defendants denies actual responsibility for the stickers but joined the settlement to avoid the costs and risks of further legal process.)

Frankly, what’s foul about this case in my view is the way the legal system lets this happen. I cannot see the ‘unfitness to be Chairman’ imputation remotely arising about Frank and in my view it is simply ludicrous to suggest that the other imputations would arise in the minds of ordinary readers. In addition, the joke was surely defensible as comment or honest opinion, in the context of well known facts that the writers thought the decision stank. But cost, fear and uncertainty ultimately drove what I believe was an unjust settlement. The wider tragedy of this case is that it split the community as people ran for cover from the feared expense of the law and, as described to me, friend deserted friend.

In NSW, in another case involving excrement, this time from chickens, the friends are holding together with the help of legal assistance from the public interest law service, Environmental Defender’s Office (NSW). The Galston Area Residents Association responded to Hornsby Council’s advertisement requesting objections to a chicken farmer’s development application by lodging an objection letter with the Council. The developer, John Cordina and Summertime Chickens, has sued two individual members and also the group for defamation for the statements attacking the operation in the letter of objection to the Council and in the minutes of its meetings circulated to members.

The residents’ lawyers have advised, with the endorsement of Counsel, that there is no liability in defamation because of the well known defence to a defamation that these were occasions of qualified privilege with a reciprocal duty and interest between the parties concerning the information. The matter is being defended before the Court. The risk of costs remains a chilling factor for the residents as later examples will attest.

Again in NSW, Greek newspaper publisher Media Press Pty Ltd was seeking development approval from Marrickville Council to extend its permitted use of premises adjacent to residential housing. The local residents called a meeting to discuss their protest over the risk to the amenity of their neighbourhood and the potential impact from noise and traffic. Media Press sued for defamation over the statements in the brochure calling the meeting, the writ claiming damages of $750 000 together with aggravated and exemplary damages.

One person sued was a housewife in whose house the meeting was held, Helen Christoforidis. While she was a strenuous opponent of the development proposal, she had told the developer and its solicitor before the action was launched that she had played no role in the production or distribution of the brochure. She was sued nevertheless. After four months of stress on her whole family during which she was encouraged by some family members ‘to apologise anyway so they don’t take your house’, this case was discontinued against her with the developer paying her $700 costs. Had this level of fear not been assuaged by proper legal advice, obtained with the financial assistance of a pro bono source and given at reduced legal fees, she may, like the Yellow Gum group, have unnecessarily caved in to the developer.

In Queensland, it will come as no surprise that Keith Williams of Hinchinbrook fame has been reported as saying on the subject of his defamation actions:-

(i) "I am working with my legal advisors right now with the view of taking civil action against all of these people, be they just plain greenies or obstructionists or scientists or pseudo-scientists …All those people who have written letters to the department which I consider have caused me damage, such letters as contain blatant untruths, distortion of the facts and unsupportable or supposedly scientific evidence, I consider that they are liable for damages and I intend to launch civil action against them.'(Courier Mail 1.12. 94)

(ii) "Another summons has been issued today against Mr Len Martin who is in the Brisbane University who is one of those who wrote letters to Senator Faulkner and I'm presently going through all 30 persons who wrote to the Minister and sorting out which of these letters are considered to be damaging and I'm proposing to take legal action against all people where I

feel I have a case against them." (ABC Radio 4QN 3.3.95).

(iii) "I have had a writ out against Senator Kernot for about 12 months. There are others too, but I might save them up as Christmas presents." (Courier Mail 24.8.96).

(I should note that some of the Galston residents were served with their defamation writs on Christmas Eve.)

This litany of cases from all over Australia has been dramatically increased by the defamation actions flowing from the Hindmarsh Island Bridge dispute; marina developers, the Chapmans, have brought the following cases against opponents of the bridge acting not in their private interest but in what they perceived to be the public interest:

vs Dean Whittaker (a Uniting Church deacon student)

vs Margaret Allen (Green Left Weekly) &

Neale Draper (the anthropologist instrumental in placing a ban on bridge

construction - the suit related to an interview with him in GLW)

vs John Coulter (former Australian Democrats Senator for SA)

vs Conservation Council of SA Inc

Friends of Goolwa Kumarangk Inc (the local residents group)

Kumarangk Coalition (a loose group of people opposing the bridge)

Gregory and Chris Lundstrom (alleged printers of the leaflet which was the

basis of case)

vs Conservation Council of SA Inc, Margaret Bolster, David Shearman

Richard Owen

(The three individuals were office bearers of the Conservation Council)

The Draper case resulted in a huge verdict against Draper for $110 000 which is under appeal.

There have also been a number of actions against mainstream media organisations:

vs ACP Publishing (The Bulletin)

vs Nationwide News (The Australian)

vs Network Ten Ltd

vs Federal Capital Press (Canberra Times)

vs The Australian Broadcasting Corporation

Disappointingly for the individual defendants, some of these big publishers have settled, including it is believed paying damages, which significantly increases the pressure on the individual defendants.

The solicitor for the Chapmans has also succeeded in having Demon Internet close down the web site for the bridge opponents and three service providers, Internode, UNSW and Gateway remove material from Internet access.

For the community involved, this has resulted in what they describe as "a climate of fear… a self imposed silence…torn between their principles, the needs of their stressed families and the prospects for their bank accounts".

And it's not just developers; governments have used the defamation laws against public interest debate. John Sinclair, the great campaigner who saved Fraser Island and became Australian of the Year was driven out of Queensland and virtually bankrupted by the defamation actions brought against him with the financial support of the Bjelke Petersen government.

This practice of government financing of defamation actions was roundly condemned by the Fitzgerald Commission of Inquiry (1989, p.143) whose views were endorsed by the Senate Legal and Constitutional References Committee Report into Payment of Minister’s Legal Costs (February 1997).

Although thankfully rare, this practice still occurs. The Northern Territory CLP Government financed defamation actions by one of its Ministers against a political opponent, Neil Bell, the Labor Member for MacDonnell arising from Bell discussing on the ABC allegations he had just raised in Parliament as to the travel activities of the Minister. The action was commenced first against Bell and then some time later against the ABC. In 1998 after four years of interlocutory action, the Northern Territory Government, through the solicitors for the Minister, offered to settle the matter with the ABC on a walk-away basis with no apology and no contribution to costs, despite the fact that the case had eaten up costs considered to be in excess of $100,000. However, the NT discriminated between the defendants and did not offer the same terms to Bell, its now retired political opponent.

As an aside, it is disturbing to note that, without insisting that the same terms be offered to Bell, the ABC, regarding itself as in a different position from Bell, went ahead and settled on a basis offered to it alone; it clearly abandoned Bell to a hopeless negotiating position against a fully funded government, leaving him no option but to agree to a settlement which involved giving an apology and making a payment of $40,000 by way of damages and costs. This decision by the ABC was unprecedented and in my view sets a deeply regrettable precedent. It certainly left Bell feeling punished by his political opponents' use of the defamation laws.

There is one positive development in the governmental use of defamation laws, Ballina Shire Council v Ringland (1994) 33 NSWLR 680, Gleeson CJ, Kirby P and Mahoney JA.). Yet again, it’s a sewerage case! Bill Ringland was the President of the Clean Seas Coalition on the north coast of NSW. In April 1993 he issued a press release in which he alleged "sewage is and will continue to be pumped out surreptitiously at night and during storms" into the ocean by the Council at Lennox Head. This was repeated in a local newspaper, which subsequently retracted the statement, saying that its investigations had revealed the allegation to be untrue, mainly because the sewage was not raw but was "treated effluent’ which the Council says is not sewage and because the newspaper accepted this was not covert behaviour.

The Council sued Mr Ringland for defamation alleging imputations that the Council was conducting its activities of sewage disposal secretly and unlawfully, that it was setting out to deceive residents, that it was falsifying published environmental material, and that it had mislead environmental authorities.

The NSW Court of Appeal (by majority Gleeson CJ and Kirby P.) followed the House of Lords in Derbyshire County Council v Times [1993]AC 534 and decided that a local council whose members are popularly elected cannot bring an action for defamation in response to comments made about the performance of its functions.

This is part of what I call the ‘ratbag principle’ of free speech; our society must allow the ratbags at each extreme, and everyone between, to vent their opinions however unreasonable, or the middle ground will never be challenged to move.

But unfortunately it wasn’t all positive with this case, because the Council sued not only for defamation but also for the economic tort of injurious falsehood, to which the Court refused to apply this reasoning and to which I return below. (And it is also important to note that this decision does not prevent individual elected councillors, officers or politicians suing for defamatory comments made about them personally.)

While this paper is mainly about defamation, I must draw attention to some other legal principles that are swung into action against public debate and where the law stands on them.

First the good news for those concerned about free speech; good, that is, from the point of view of legal principle if not the interim impact of the legal threat.

One Alan Gray wrote Forest-Friendly Building Timbers and Earth Garden Books published it only to receive a lawyer’s letter:-

We act for the National Association of Forest Industries. Our client has provided us with a copy of the above publication which was published by you.

The publication contains many statements which are false, misleading or deceptive in contravention of sections 52, 53 and 55 of the Trade Practices Act... ( then followed a list of the "inflammatory... blatantly wrong.... misrepresentation of fact ... false impression" etc. statements) .

Our client has suffered or is likely to suffer considerable damage as a result of this misleading publication. We require that copies of the book be immediately withdrawn from sale and we seek from you an undertaking that for your part you will cease further publication, distribution, advertising and promotion of the book.

If we do not receive this undertaking from you by the close of business on Thursday 1 April 1999, we will seek appropriate injunctive relief from the Federal Court.

The letter worked and BBC Hardware, a stockist of and advertiser in the book, withdrew it from sale. It’s a pity BBC didn’t get better legal advice; it’s more of a pity the NAFI lawyer did not include all relevant sections of the Trade Practices Act in the letter. This is because the Trade Practices Act cannot apply; s. 65A exempts book publishers and distributors as ‘information providers’ from any liability for misleading and deceptive conduct under the cited sections of the Act. (At least the date for reply to the letter was appropriate; April Fools Day!)

One might also ask what ‘considerable damage’ NAFI as an industry association and lobbyist, which does not trade, might suffer as a result of such a debate?

Following the revelation of this case to Alan Fels, Chair of the ACCC on Terry Lane’s ‘In the National Interest’ program on Radio National, the ACCC is now looking into this incorrect use of the Act to stop public debate. Perhaps the ACCC might include the ABC in this scrutiny over its Legal Department’s request to Gordon & Gotch to withdraw from publication or amend the book Your Rights by civil liberties advocate John Bennett for misleading and incorrect information. The ABC says it did not threaten legal action but Bennett says G&G took it as a legal threat. One thing is certain, a mere claim to misleading and deceptive conduct under the Trade Practices Act is not an available legal weapon against publications.

Now for the bad news, and its back to our friend, sewerage. Remember, the Ballina Council also sued the aging Bill Ringland not only for the tort of defamation but for the separate tort of injurious falsehood, alleging his press release was published falsely and maliciously, and that as a consequence the Council had suffered financial harm. The Council spent rate payers’ funds seeking to recover the huge damages of approximately $800 -$1,200, being the cost of arranging a council meeting it said was called for the purpose of considering what should be done about Ringland's press release.

(Old Bill can be forgiven, with all this, for filing a cross-claim against the Council, alleging that the Council's proceedings against him for defamation and the tort constituted an abuse of legal process, an improper use of the right to go to Court. I return to this later.)

In complete contrast to its ruling about defamation, the Court of Appeal decided that it is possible for a Council to bring a claim for injurious falsehood. To confuse matters entirely, the Court observed that:

To my mind the clear ‘ratbag principle’ set out above as to why Councils should not be allowed to sue for the tort of defamation, applies with undiminished vigour to this tort as well; I can see no relevant distinction but the judges did.

Just to keep the lawyers busy, the Court of Appeal sent the matter back for trial on the falsehood claim and Bill’s abuse of process cross claim. Despite perceiving that any damages which the Council might recover would be, to use its understatement of the year, "very modest"; Gleeson CJ expressed the hope that "serious consideration will be given to the utility of these proceedings" (at 694). However sanity did not prevail and the Council pressed on resulting in seven days of trial Court time being consumed (calculate at least $12-$13 000 per day legal costs with silk and a second barrister plus solicitors on each side).

In the ensuing trial, key issues the subject of detailed evidence, argument and judicial examination were whether "sewage" means treated "effluent" or not, thus determining whether old Bill spoke falsely, and whether "surreptitious" means "secretive" so as to give rise to malice on the part of old Bill! None of this needed to be decided however because the judge found the cost of the meeting was not caused by the statement even if it was false and malicious (which was virtually what the Court of Appeal had said without seven days of silk!).

But Bill Ringland did not prove his abuse of process claim (as we will see below) so the horrendous issue of the probable $85 000 costs of the trial, and probably half as much again for the initial Court of Appeal case, was stood over for yet more argument.

The Americans have coined an acronym for the use of the defamation and other laws against public debate; SLAPP , Strategic Litigation Against Public Participation - hence ‘Slapp writ or slap ‘em with a writ’. But even the use of this language in Australia is risky because it is may be interpreted to mean that people are wrongly using the law for the improper purpose of shutting their critics up rather than the purpose of protecting reputation. And the mere fact that people feel threatened and worried and decide to shut up, will not establish the purpose of the person suing.

Essentially, the risk is that criticism of people suing in defamation or for other remedies will be understood by the public as an allegation that they are intentionally abusing the legal process.

The lawyer for the Hindmarsh Bridge Chapmans, has made it very clear both in his interview on Earthbeat on Radio National and to the Sydney Morning Herald (2/3/99), that he and his clients will take action against anyone using the expression of them. He claims Williams J has made a finding to that effect in their case against the ABC in the SA Supreme Court.

This was precisely the claim following comments by a lawyer from the NSW Environmental Defender’s Office on this phenomenon on ABC Radio in the context of its defence of the Galston residents against the chicken farm defamation proceedings discussed above. Those comments resulted in Court proceedings (Summertime Holdings v. EDO, unreported) related to a further defamation claim by the chicken farm developer, this time against the EDO and the lawyer themselves for what was said on the radio as part of the public debate. The defamation allegation as discussed in the case was that the way in which the lawyer criticised "developers...using the law to fight back against people who are simply raising issues and concerns about development in their area and it’s a very concerning trend" constituted, with other language, an imputation that the developer was engaged in an unjustifiable abuse of legal process.

The EDO had carried on detailed negotiations to settle this new defamation claim by an apology, but had withdrawn at the last minute before signing and exchanging the negotiated Deed of settlement, when its Board decided instead to defend the claim. Justice Young of the NSW Supreme Court found an agreement to apologise had been reached; while he declined to order specific performance of such an apology agreement, he instead awarded the developer $10 000 damages and costs against the EDO for breach of contract. In the course of the judgment, he questioned the nature and purpose of the EDO and said:-

This shows that the judiciary can also be very critical about public debate by lawyers on the subject, despite the fact that, under the well established Bread Manufacturer’s Case principles, it is certainly not contempt of court to engage in discussion of current proceedings which does not prejudge those proceedings and where any involvement of a jury is well in the future as was the case here.

The reason why it’s risky to use language that your opponent may construe as imputing abuse of process for suing in defamation is that it is not easy to establish an abuse of process. Bill Ringland found this when he countered the Council defamation and injurious falsehood case (above) with his claim for abuse of process against them. The judge said:-

The trial judge found against Ringland; he had not met the legal test of abuse of process even though the effect of the service of the writ had been his decision to be silent.

But judges do sometimes find an abuse of process. In White Industries v. Flower & Hart (1998) 156 ALR 169, Justice Alan Goldberg of the Federal Court found that a prominent Brisbane law firm, acting with the advice of Ian Callinan QC, now a judge of the High Court, had unreasonably initiated proceedings where they believed there were no prospects of success to achieve a purpose of delay which was not the purpose for which that process was available. This was held to be an abuse of process. While this was not in a defamation context, it does show that where there is no basis for the defamation claim or any prospect of success and it can be shown to have been commenced for other tactical reasons such as the likelihood that the opponents will refrain from further comment, this will be an abuse of process.

What should happen in response to this expanding use of defamation and other laws against public interest debate? Some lawyers and judges will say, do nothing; the legal principles have struck the right balance between free speech and the right to reputation.

I strenuously disagree and I believe the above examples reveal a widespread problem that is crying out for reform. I want first to look at the crying need for better understanding of the laws. Then I look at the defences to defamation and ask whether there is hope for legislative or judicial reform there. Then I want to examine some possible procedural and substantive changes including to the rules on damages and mediation, and finally look to the legal profession itself.

Running through the above examples is a thread of ignorance and fear of the defamation laws. This means that the first remedy to the problem is the inevitable call for greater public awareness and understanding of how the laws actually apply. I opened with the observation that publications which attack, criticise and satirise, do not necessarily meet the legal test of being defamatory.

Also, as lawyers and journalists well know, but others usually don’t, our laws make it legally acceptable to defame in the interests of free speech and the operation of a democratic society if the defamation is:

· true and relates to a matter public importance;

· a fair report of what is said in Parliament or in a Court;

· the honest opinion of the person making the statement;

· protected by qualified privilege.

The best place to start learning how to speak with safety is to get a copy of the ABC All-Media Law Handbook from your ABC Shop. Now in its 3rd Edition and ninth printing, this booklet will explain in the simplest terms the scope for free speech under the media laws. Media organisations and lawyers would be well advised to distribute this widely among journalists, clients and public interest groups because it may deflect many cases from the wrongful resort to the law. (Please note that there is no personal interest in this plug as all profits for this book belong to the ABC!)

More importantly, better public understanding will lead to better legal advice and a much reduced climate of fear. It will result in better thought, before people publish, about how to do so safely and it will help reduce panic at the receipt of that lawyer’s letter.

Even though there are valuable defences to defamation, they are often technical and precise and there has long been a debate about the need to improve them. It used to be an occupational hazard of becoming an Attorney-General in an Australian jurisdiction that you promised reform of the defamation laws to promote freer speech by, inter alia, fixing up the defences. But whether it is the example over many years of politicians achieving substantial verdicts in their own defamation actions, as we saw in the recent Abbott and Costello show or whether boredom or complexity have stymied it all, the fact is that there has been no substantive improvement by legislators for all the hundreds of pages of reports and proposals and the thousands of hours that went into them.

Instead, free speech proponents have looked to the judges to fix up the law where the legislators have not. For a while, the decisions of the High Court in Theophanous (1994) 124 ALR 1 and Stephens (1994) ALR 80, excited enthusiasm that Australia might develop a healthy public interest defence along US lines, the so-called Sullivan v. New York Times defence permitting defamatory publications about people in public office in the absence of malice, this latter test having to be proved by the person suing. The High Court has however in Lange (1997) 145ALR 96 retreated from this and reformulated any public interest test for Australia within the normal law of qualified privilege.

The principle in the Lange Case after years of legal argument and hopeful anticipation, really comes down to virtually no change in the law and the introduction of a concept which really does not provide much help at all to people seeking free debate on public issues. The High Court said that the concept of freedom of speech and communication implied in the Australian Constitution requires, not a separate defamation defence for public debate but rather, that the common law categories of qualified privilege include the dissemination and receiving of information about government and political matters that effect the people of Australia.

However the publication must be ‘reasonable’ and ‘not actuated by malice’. The reasonableness test set out by the High Court is very strict, namely that conduct will not be reasonable unless the publisher had reasonable grounds for believing the defamation was true, took all reasonable steps to verify the accuracy of the material, did not believe the defamation was untrue and sought a response from the person defamed and published any such response.

I venture to suggest that in virtually no case of an ordinary presentation of published material, will these preconditions be able to be satisfied. Certainly, it would have been of no benefit in the Lange case because the program in that case, being roundly critical of the private sector funding of the New Zealand Labor Party wouldn't have had a hope of getting to air if responses were necessarily sought on every occasion from all parties.

We have also seen a narrowing of the protected report defence. The High Court in the recent case Chakravarti v. Advertiser Newspapers Ltd. (1998) 154 ALR 294 nailed the Adelaide Advertiser for reporting proceedings of the SA State Bank Royal Commission. In a nut-shell, the Court said that the meanings which came out of the press report of the proceedings were different from the meanings which came out of the Royal Commission transcript. To the uninitiated in defamation law, this may sound very silly but it must be remembered that in this area of the law, the so-called ‘imputation’ is king. Cases are fought not as much on the actual words themselves as on the meanings or imputations which are conveyed by those words. It was this distinction which was the downfall of the Advertiser in the Chakravarti Case.

For the public interest campaigner, it means that where you are using parliamentary or court material, you must stick to the material precisely and not depart from it. This of course includes not being selective of the material. The fairness of the report requires that all aspects of it be covered so that for example if the report includes a denial of certain facts you cannot simply quote the facts set out in the parliamentary discussion.

Another crucial limitation of the defence of protected report is that the protection does not permit the person who made the statement in Parliament or Court themselves to repeat that statement outside in the public arena. Arguably it ought to be possible for a Parliamentarian to simply say, ‘As I have just said in Parliament…’. However, the defence does not technically work this way.

The case of Finch v Bell in the Northern Territory, discussed earlier, was brought after Bell repeated and discussed on the ABC information just tabled in the Legislative Assembly. Similarly, John Della Bosca, the NSW Labor Party Secretary is suing Franca Arena for saying outside Parliament: ‘I stand by the comments that I made over this matter, and I believe that there has been a massive cover up to protect certain paedophiles …’. Della Bosca says he was identifiable as a relevant person attacked by the allegations and that Arena had no parliamentary protection for repeating these matters outside Parliament. The Bell Case was settled so the Court did not rule on the point. In the Arena Case it is possible that the Court would say this was a protected report but authority tends to be against Arena.

These examples hold out little hope for judicial law making to expand the defences but as lawyers we should always be pressing the boundaries in public interest debate, whether by encouraging well financed public and commercial publishers to challenge the limitations in cases or by openly debating the judges in legal forums.

Unlike most areas of law, you don’t have to prove your damage in defamation; it is assumed. While for natural persons there may be some explanation for this since private reputation and hurt feelings are hard to quantify, for corporations, I think this aspect of the law should be changed. It is acknowledged that corporations cannot have hurt feelings but the rule should go much further and require actual proof of financial loss to the capital or trading value of a firm, or at the very least, a real likelihood of such financial loss.

I observed above that I could not see how an industry association and lobby group corporation like NAFI could say it suffered real financial loss from the forest debate. In the Comalco Case noted above, I think it very unlikely that the company felt any actual financial loss from the Four Corners program; nor did ERA suffer financially form Bradbury’s film, any more than it may have incurred expense from deciding to respond to the widespread public debate against the Jabiluka mine, the legitimacy of which even ERA would not have remotely questioned.

The only recent reform in this area has been to take damages in NSW away from the jury and leave it to the judge but even this requires further change to the law of damages to require the judge to call for evidence of proven or likely actual loss in the case of claims by corporations.

This would have a significant effect in reducing developer claims although as noted above, corporate executives and directors may still argue they have been personally identified in an attack on their company.

It usually takes at least two years for a defamation action to come to trial in NSW and the procedural steps do not include any immediate opportunity for the parties to be brought together to see if there is a basis for a speedy resolution. The resulting cost then becomes a weapon in the hands of well funded litigants which, as observed in the examples, can be a powerful factor in forcing unfair settlements.

I think we need a defamation list in all jurisdictions as applies in the NSW Supreme Court but this should involve judges or court officers in early and direct case management to the point of either party being able to call an immediate pre-pleading conference, preferably as soon as possible after publication, under a court employed mediator, probably a registrar. Before wildly exaggerated letters of demand become set into unsustainable imputations in court documents with parties locked into battle positions, there needs to be an opportunity for common sense to prevail in an across the table conference led by an impartial mediator. (At the very least this presents the opportunity for clear errors of fact to be revealed and corrected).

I confess to being unaware how defamation law works in non-adversarial legal systems in Europe but some education on this may be of benefit for Australian lawyers.

I think defamation lawyers need to pay particular attention to NSW Chief Justice Jim Spigelman’s inaugural admonition to the profession last year that lawyers are officers of the law and the courts as much as the servants of their clients. It is all too easy to dash off a letter of demand for a corporate client using the familiar threatening language repeated above without fully considering whether the client’s claim, particularly a corporate client, is meritorious. Lawyers need to remember that many people receiving even a lawyer’s letter think it has the sanction of the court and that they have ‘been sued’.

Lawyers must put the brakes on their clients in many public debate cases which it would be unjust to pursue even when that would clearly fall short of the stringent test of abuse of process. It is my experience that when the first flush of anger passes, most corporate executives see the wisdom of not wasting time in the defamation courts; its usually more profitable to get on with the job.

There are procedures to have claims struck out where defamatory imputations clearly do not arise but these are expensive and not quick, and judges tend to err on the side of letting the imputation stand (which is of course another thing that should change). In my view the imputations in the Frank De Stefano Case should never have been pleaded by the lawyers for the plaintiff.

Time is also a factor in even more straightforward examples of cases which should never have been brought. In my view, the Media Press case was one; it took four months for Media Press to discontinue against Mrs Christoforidis.

Legal aid is not available for defamation matters. I hope this paper establishes that this needs to be reconsidered by legal aid providers where there is an important public interest issue at stake. But since shrinking government budgets make this less likely, there needs to be far more pro bono work accepted by lawyers for defendants sued for defamation in public debate case, even those which also involve the private interest as in many developer cases.

The NSW Public Interest Law Clearing House (PILCH), a public interest body set up to enlist private lawyers into providing pro bono representation, recently declined to refer to one of its panel lawyers the co-defendant in the Media Press Case who was alleged to have published the meeting notice. Thankfully a willing lawyer at Phillips Fox was found to act pro bono, at least initially, which leads me to believe there is scope for more of this. PILCH must change its policy on this and encourage pro bono work in such cases; in other States and Territories, the organised profession must follow suit.

And even if traditional legal aid funding is shrinking, the legal profession and governments must enhance the work of NGO legal centres like the now national EDO network, the NSW Public Interest Advocacy Centre (PIAC), and community legal centres in NSW. Despite their excellent record, services like these still come in for type of comment made of the EDO NSW in the Summertime Chickens Case where Justice Peter Young said:

If it was ‘by the bye’, why did the judge make these comments? I read them as gratuitous disparagement by the judge of the EDO NSW, a body partly funded by the NSW Solicitors Trust Account Fund (STAF), the NSW Legal Aid Commission and the federal legal aid budget.

Had the judge during the hearing of the case, clearly indicated this level of concern about the nature and activities of the EDO, then, putting the relevance issue aside, he could have been given much more detailed evidence about the EDO network. He could have been told the NSW EDO was a community legal centre supported by the Chief Judge of the Land and Environment Court, the A-G of NSW and the acting Minister for the Environment as well as by the Legal Aid Commission and leading members of the profession in its 1996 application for funding to the STAF; he could also have been told that the national network of EDO’s in all States and Territories received a small level of funding following the federal Access to Justice Report.

If this sounds like a plug for an organisation of which I am Chair, it unashamedly is. The point, in this context, is that in a crushingly expensive legal system which is operating adversely to the public interest in this area, we need legal service providers readily available at no or reduced cost and NGO legal services are a cost effective solution.

(This paper expands on material forming part of my paper to the 1998 ‘Defending the Defenders Conference’ held by the NSW EDO and also uses material from the papers at that conference by Greg Ogle of the Kumarangk Legal Defence Fund, Margaret Thorsburne of the Friends of Hinchinbrook and Katherine Wells of the NSW EDO. The proceedings of the conference are available from the EDO www.edo.org.au and Ogle’s paper is in the March edition of IMPACT published by EDO NSW. I should also like to acknowledge Terry Lane for inviting me to discuss defamation issues on his program last year, which resulted in this address being arranged.)