Hindmarsh Island Bridge Defamation case

Mark Parnell

Solicitor

Environmental Defenders Office (SA) Inc.

On January 21 2002, Justice Horton Williams of the South Australian Supreme Court handed down his decision in the matter of Chapman v Conservation Council of SA & Others[1]. This defamation action was one of many brought by marina developers Tom and Wendy Chapman and their son Andrew against a large number of defendants including conservation groups, academics, politicians, media operators, printers and individuals who have spoken out against the controversial Hindmarsh Island Bridge. These defamation actions have earned the developers some $850,000 with at least one action still outstanding[2].

The bridge (now constructed) is the same development that led to the controversial Royal Commission into Ngarrindjeri spiritual beliefs, in particular the so-called "secret womens' business". The Chapmans have also been involved in unsuccessful litigation against former Commonwealth Aboriginal Affairs Minister, Robert Tickner and others over a temporary Commonwealth ban on construction of the bridge. In short, the Hindmarsh Island Bridge is arguably now the most litigated structure in Australia. One judge described it as a "troubled bridge over waters"[3].

In the most recent defamation decision, the Court held that the Conservation Council and three of its volunteer office bearers had defamed Tom and Wendy Chapman. The Court ordered damages of $130,000 plus interest. Damages were ordered in respect of three publications with a further eight publications found not to be defamatory of the Chapmans principally because they were not about them as such. Andrew Chapman was held not to have been defamed.

Whilst an appeal has been lodged with the Full Supreme Court, the case still has wide-ranging implications for conservationists engaged in public debate over environmental issues. In particular, the case is indicative of a narrow legal viewpoint which sees rights of freedom of expression on public interest matters as strictly contained within set boundaries. Also, the case shows how the informal and flexible organisational arrangements often favoured by conservation campaigners can be interpreted as a virtual conspiracy against law and order.

Defamatory words

Before outlining some of the legal issues involved, it is worth outlining the publications found to be defamatory and the imputations drawn by Williams J.

The three defamatory articles were all published in 1994 and 1995 in the Conservation Council's quarterly journal, 'Environment South Australia'. This journal has a relatively small readership comprising mainly members and supporters of conservation groups. The journal is also distributed to libraries, schools, Members of Parliament and other interested persons.

Publication No. 6

“The legal mechanisms used to silence community groups from expressing valid concerns on the Hindmarsh Bridge issue have profound implications for free speech in Australia.

We were silenced by two different mechanisms. Binalong Pty Ltd and Marine Services Co Pty Ltd acted against the Conservation Council under Section 45D of the Trade Practices Act 1974.

We believe that this legal process is being used simply to silence us ...

The mechanism being used here is one called a ‘SLAP suit’ commonly used in the United States to silence environmental groups, consumer groups and legitimate viewpoints being put from the community ...”[4]

Publication no.7

“The people of Goolwa have been intimidated by this action and have been prevented from speaking freely on issues of concern. Whilst the Chapmans seek compensation, who compensates ordinary residents of Goolwa who have suffered greatly under the boot of Binalong?”[5]

Context for Publication no. 6 & 7

The context for both these statements was that for a period of three weeks in April 1994, the Conservation Council and certain named office bearers were the subject of interim injunctions granted by the Federal Court.[6] The injunctions (under s.45D of the Trade Practices Act 1974 Cth) were imposed shortly after a public rally on the steps of Parliament House in Adelaide. At the conclusion of the rally, an ‘open letter’ from the President of the Conservation Council was hand delivered to the head quarters of the Westpac Banking Corporation, the principal financier of the Chapman developments. The letter stated that it would not be in the interests of the Bank “to be seen to be instrumental in this mistaken development”[7]

The terms of the Federal Court injunction are summarised by Williams J as follows:

“The interim order dated 29 March 1994 restrained the respondents from hindering the provision of services to the applicants (namely the construction of the Hindmarsh Island bridge and a water main and water supply via that main). The interim order also contained an injunction against hindering or preventing or attempting to hinder or prevent the provision by Westpac and Partnership Pacific of banking and financial services to the applicants.”[8]

As well as criticising the issuing of injunctions against conservationists, the Conservation Council journal also complained about the conduct of the Chapmans themselves in relation to surreptitious observation and filming of people attending anti-bridge meetings. Some 35 individuals identified by the Chapmans as a “person who has been involved in attempts to stop the bridge work"[9] were sent lawyers letters. According to Williams J. "The letter placed the recipient upon notice of the consequences of such conduct in terms of liability".[10] According to the defendants, the letters constituted "harassment" and "intimidation"[11] of protesters and provided a factual basis for the statements made in the publications.[12]

Defamatory imputations of Publications 6 & 7

Williams J. found the following imputations to arise from the publications cited above:

Publication No 6

That Wendy Chapman was party to the commencement of Court proceedings and the issue of legal letters for the

purpose of (i) suppressing freedom of speech, (ii) stifling debate and (iii) stopping the Conservation Council

from engaging in legitimate expression of opinion in public regarding the Bridge issue.[13]

Publication No 7

That with respect to the right of freedom of speech upon the Bridge issue, Tom and Wendy Chapman are

oppressing the ordinary citizens of Goolwa.[14]

According to Williams J., these publications "impute motive and conduct which the ordinary person would treat as dishonourable".[15]

Publication No.11

“Consultation with the relevant Aboriginal groups throughout the planning process was token. Wendy Chapman has admitted in Federal Court that Binalong never consulted directly with any of the organisations listed as a condition for building the bridge.”[16]

Context for publication no.11

Aboriginal concerns over the construction of the bridge largely over-took environmental concerns in the media as the anti-bridge campaign gained momentum in the early 1990s. The adequacy of consultation with relevant Aboriginal groups and individuals was clearly an issue. Following an investigation of the importance of the site to Ngarrindjeri people, Federal Minister, Robert Tickner, issued declarations pursuant to the Aboriginal and the Torres Strait Islanders Heritage Protection Act to prevent construction of the bridge for 25 years.[17]

The reference to the admission of Wendy Chapman in an earlier Federal Court hearing was however noted by the Court as relating to other aspects of the Hindmarsh Island development, but not the bridge itself.

Defamatory imputations of publication no.11

The Court's finding of defamatory imputation was as follows:

“That during the planning process for the bridge the developers (Tom and Wendy Chapman) consulted with the aboriginal (sic) people in a less than meaningful way and with respect to the bridge building they failed to consult aboriginals (sic) when they had an obligation to do so.”[18]

Williams J. also concluded that "Publication No. 11 attributes to developers a cavalier attitude (at the least) in the discharge of their professional responsibilities."[19]

The line between what is defamatory and what is not can be quite blurry. Williams J. implied that had the defendants simply said that consultation with Aboriginal people had been "insufficient"[20] or "not comprehensive"[21], without reference to any specific standard of consultation, it would not have been defamatory.[22] Williams J. also noted that "If the Conservation Council had criticised the procedures [for Aboriginal consultation] adopted in connection with the building of stage 1 of the marina project it would have been on firmer ground."[23]

In other words, the problem for the Conservation Council was linking lack of mandatory Aboriginal consultation to the planning of the bridge, when according to Williams J., the real lack of consultation was with the planning of the Marina that was to be serviced by the bridge. In short, the Court determined that the defamatory criticism was misdirected and thereby became indefensible because it was not true and, as shall be seen, because malice defeated other defences.

Free speech and Fair comment

The Defendants denied the defamatory imputations, however they also relied heavily on the defence of "fair comment upon a matter of public interest", the defence of qualified privilege for communications between people with a mutual interest and duty, and the so-called "Lange Defence"[24] of qualified privilege for discussion of "government and political matters". It was argued that even if it was found that the statements complained of were false and had the effect of harming the plaintiffs' reputations, they ought to be protected by these defences.

Ultimately, the Court rejected the defendants' arguments. In short, the Court found that these defences did not apply because the defendants were motivated by malice. Malice was found because the Defendants were engaged in a "campaign" to stop the bridge, had ‘targeted’ the Chapmans, had ill will towards them throughout the campaign, and that harm to the Chapmans was an inevitable or likely result of the campaign.[25]

Significantly, Williams J. did not confine his examination of the motivation of the defendants to the time of the three actionable publications, but he was prepared to range across all prior and even subsequent activities and statements of the defendants in order to discern their motivation in relation to the three specific and limited actionable publications. In this regard he was assisted by very thorough plaintiffs who had carefully documented the anti-bridge campaign over many years.[26]

SLAPP Suits - Impugning motive

The bulk of the $130,000 damages order related to publications 6 and 7 which may conveniently be summarised as the "SLAPP accusations". The difficulty for the defendants was that in absence of any express statement from the Chapmans (i.e. that they were trying to silence their critics), any such accusation will be nearly always impossible to prove. It is not enough that the practical effect of legal action was that the opponents of the bridge felt intimidated and as a result felt they should ‘shut up’. What is necessary is to prove (on the balance of probabilities) that it was the intention of the plaintiffs to use their secondary boycott proceedings for an ulterior purpose of silencing people .

In this case, the Judge accepted that the plaintiffs' intention in bringing what the defendants described as SLAPP suits (under s.45D of the Trade Practices Act) was proper. He accepted that the injunctions were narrowly directed to the specific actions complained of and that any "chilling effect" on campaigners or the general community was not intended.

Limits to "legitimate" campaign tactics

The aspect of the judgment of most concern to those involved in community activism, is the Court's apparent distinction between "legitimate" campaign tactics and those which will not be afforded legal protection. In the category of the former are writing letters to or meeting politicians and also non-coercive communications to stakeholders such as banks.

On the other hand, any form of direct action (including non-violent picketing) or attempts to coerce changes of policy or behaviour may not be protected. As in the present case these types of campaign tactics may be used to impute "malice" on the part of those involved, even in relation to later unrelated statements. On Williams J.'s reasoning, many routine campaign activities, such as encouraging the boycott of certain products or services on environmental grounds would be evidence of malice. On this interpretation, the use of "consumer power" to achieve social change is discouraged. The rights or wrongs of the issue in dispute are irrelevant. Even if the boycott is not actionable per se, it can be used in subsequent defamation action to defeat the defence of " comment" or "qualified privilege". The irony in this situation is that subsequent amendments to the Trade Practices Act included an "environmental defence" that would almost certainly have defeated the s.45D injunctions. Nevertheless, even though Williams J was prepared to consider subsequent behaviour as relevant to the question of malice[27], he was still prepared to impute malice from the defendants' threatened breaches of these now repealed laws.[28]

Williams J.'s views on the legitimacy of various campaign tactics would be at odds with those of a great many conservation groups and campaigners. Williams J. seems to afford a level of sanctity to political decisions, regardless of their merit.

"the reality is that in practice a bridge was necessary in order to satisfy the various commercial and governmental requirements"[29]

Given that many of the problems facing the environment are the direct result of "commercial and government requirements", this approach invites conservation groups to accept a version of "reality" which many will be unable to accept.

"However, Mr Owen (and others with him) chose to oppose a decision of an elected government; this decision was effectively beyond recall (in the absence of intervention by the Federal Government) unless the parties entitled to the benefit of the commercial agreements could be persuaded to give way. A significant feature of the anti bridge campaign was therefore the attempt to coerce. Such a campaign is necessarily different from a normal political lobby."[30]...

"My criticism of Mr. Owen is that he does not seem to know where to “draw the line” in the promotion of his cause." [31]…

The difficult aspect of these passages for conservationists is that Williams J. is setting a threshold for campaign activity that is extremely low. In the judgment, Williams J. refers to a "normal political lobby" and a "proper lobbying situation".[32] Presumably, once these "legitimate" avenues have been exhausted, the prudent, responsible campaigner simply gives up, or as in the present case, loses the protection of the law.

Improper advantage

One of the hallmarks of a "public interest" environmental dispute is that the motivation of those challenging what they see as inappropriate development is the protection of the environment and NOT personal gain. Williams J. refers to this motivation[33], but curiously resorts to the language of more traditional commercial disputes in characterising the campaign as one actuated by malice:

"However, the case for the plaintiffs (which I find to have been proved) is that the campaign involved a preparedness (by Mr. Owen and some other protagonists) to seek improper advantage in any way possible (short of physical violence) and to “target” the developers as part of this scheme. The course of conduct (and particularly the “underground activity” of the Kumarangk Coalition) coupled with Mr. Owen’s acknowledgment in his evidence that he would resort to civil disobedience is relied upon as circumstantial evidence which I find to be compelling. Upon the plaintiffs’ case Mr. Owen’s preparedness to seek improper advantage when coupled with other evidence (see Part 8 of these reasons) makes it easier to discern malice as now relevant.[34] [author's emphasis]

Curiously, nowhere in the judgment is there any suggestion that any of the defendants or any of the other people associated with the anti-bridge campaign stood to gain any financial advantage by their possible success. In fact, for many, the campaign represented an enormous drain on their time, financial and personal resources.

Underground campaigns

In reaching his conclusions as to malice on the part of the defendants, Justice Williams drew on the fact that much of the campaign against the Hindmarsh Island Bridge was conducted in the name of an unincorporated body known as the Kumarangk Coalition.

“Upon the whole of the evidence I conclude that Kumarangk Coalition was a device which was put in place (inter alia) to facilitate the harassment of the Hindmarsh Island marina developers and bridge builders and to frustrate any attempt to enforce the law in the event that the acts of harassment might involve an allegation of tortious or criminal action. I infer that the device must have been intended to lessen the likelihood that those involved in anti-bridge protests could be dealt with for aiding and abetting the breach of any injunction and thus provide them with some measure of comfort.” [35]

Williams J. also had before him evidence of the large number of people and organisations who had been sued by the Chapmans. He also had evidence of the effect on recipients of Chapman legal letters and writs. Williams J. also commented adversely on the tendency of the defendant witnesses to avoid naming others associated with the Hindmarsh Island Bridge campaign. His honour interpreted the motivation of those involved in the Kumarangk Coalition as one bent on disregard for the law and seeking to avoid natural consequences of the campaign. In this regard, Williams J.'s reasoning is entirely, if regrettably, consistent with his comments on the limits of legitimate protest.

Despite these conclusions, it is unlikely that the judgment will result in less "underground campaigns". In fact, the opposite is likely to be the case. If the Court's findings are not over-turned on appeal, then a more likely scenario is for more campaigns in the future to be structured around impecunious or asset-protected spokespeople supported by an amorphous unincorporated group with no membership lists, no assets and no records. Whilst such a group should be effective in dealing with defamation threats (by ignoring them), it is also likely to result in less disciplined and publicly credible campaigns and that could be to the ultimate detriment of the conservation movement and the general community.

Law Reform

The topic of defamation law reform has been continuously on the agenda for the last 20 or 30 years. Calls for reform are made whenever a high profile case reaches the newspapers or electronic media.[36]

The Environmental Defenders Office in South Australia has prepared a discussion paper calling for the introduction of a "Protection of Public Participation Act" for South Australia. Based on similar legislation in North America, the proposed Act would ensure that those engaged in non-violent public participation are protected from threats or suits that infringe their right of free speech. Copies of the paper are available on request from the EDO. edosa@edo.org.au ph: (08) 8410 3833 or fax: (08) 410 3855, or can be viewed on-line at the Conservation Council of SA