The Gunns 20

The Gunns 20 in Hobart

In mid 2004 I had lunch with Bob Brown to discuss some legal issues, and I gave him a copy of my book "Slapping on the Writs" about the use of strategic litigation to silence community groups.

On 13th December 2004 I was on my way up to Brisbane with my family for my niece's wedding. Our first night's stay was to be at Dubbo. I was just starting to unwind after a long drive, when I turned on my phone. It lit up with missed calls.

Then it rang: it was Bob Brown's adviser Marg Blakers. Had I heard the news? Australia’s biggest woodchipper and Tasmania’s largest company, Gunns Ltd, had just issued a writ out of the Supreme Court of Victoria against 20 (mostly Tasmanian) environmentalists, including Senator Bob Brown and the Wilderness Society. The writ claimed damages of more than $6 million for “corporate vilification” and “conspiracy to injure by unlawful means”.

I did some media interviews that night, and I'm sure I annoyed my family on that trip with long calls about strategy to various people whenever we were in mobile phone range.

My friend Dr Suresh Pathy, an anaesthetist, rang me when we were somewhere near Armidale. He was the secretary of Doctors for Native Forests - a Victorian group, and the twentieth Defendant: "They've got the wrong party!" he said. "We don't operate in Tasmania. The 19th Defendant is supposed to have said something on our behalf, but we don't know him. He's not part of our group, and he wasn't speaking for us."

In Tasmania, there is another group called "Doctors for Forests" which operates in Tasmania - there are no formal links between the two groups.

On 15th December 2004, two days after the writ was served, Gunns announced that it intended to build a large pulp mill in the Tamar valley. The reason for the issue of the writ now became obvious: it was intended to distract and silence opponents to its project.

The "Gunns 2o" as Bob Brown called the defendants, stood together in Hobart with tape over their mouths to symbolize the attempt to silence them. Many knew they stood to lose their homes from this litigation, and were in deep distress.

In due course I was briefed, along with Noel Russell, to act for Doctors for Native Forests. Vanessa Bleyer was our instructing solicitor.

The writ was extremely lengthy (227 pages). In the "Statement of Claim" which set out its allegations in detail, Gunns took exception, amongst other things, to conservationists’ correspondence with the Japanese buyers of Gunns’ woodchips in which they were asked to “review and cease … sourcing of native woodchips from Tasmania”. There was a complaint that representations were made to the Banksia environmental awards to oppose Gunns being included as a finalist. There were many complaints about public statements by opponents to logging.

All these actions of engaged citizens participating in the decisions that affected them were labelled conspiracy - it was a neat trick, redefining democracy as "conspiracy".

The statement of claim was bizarre, and included completely novel causes of action.

We wrote to EMA Legal, the solicitors for Gunns, and told them they had sued the wrong party.

Eventually a lengthy reply came, denying any mistake, and demanding damages and referring to a private email Suresh Pathy had sent to members of the group.

We asked them to pay half our costs to date, and gave them 7 days to think about it.

The first question to ask yourself about a statement of claim is: "Can I understand it? Do I know what the allegations are?"

It did not take long, looking at this convoluted and confused document, to realize that we had no hope of mastering what the case was against our client - Doctors for Native Forests - and we did not think any other defendant would be in any better position.

A team of counsel assembled to defend the writ. Most other counsel in the case were at first reluctant to take the step of applying to have the Statement of Claim struck out. In a long meeting in the chambers of Mark Dreyfus, Noel and I finally prevailed, and it was agreed by (most) other counsel to join us in the application to strike out the pleading.

The hearing was listed for 4th July 2005 - a Monday. After 5 pm on Friday 1st July (the last business day before the hearing) Gunns served us with a proposed amended Statement of Claim. This time it was 360 pages long, and even more complex.

Gunns expected us to seek an adjournment. They wanted to keep the bird aloft a bit longer, even though it didn't have a feather to fly with.

All weekend, to all hours, we worked on mastering the new document.

On the Monday morning counsel for Gunns announced that there would be yet further amendments, by way of "particulars" (this is where more detail is provided of specific allegations), and said that the material ought to be considered as a whole. He did not make clear what he was asking for but after ten pages of transcript the judge asked:

So you're seeking an adjournment effectively of today's application?

In a long answer, counsel for Gunns eventually conceded that he was. Counsel for the defendants opposed the adjournment, pointing out that we had been asking for particulars for months and had effectively received nothing, and did not expect anything further now.

The adjournment was refused.

We then argued the case for the remainder of the week. On 18th July the judge delivered his damming assessment of the Gunns writ - in both forms. It was struck out. The judge described it as "embarrassing", "confusing", "complex" and "unintelligible".

A third Statement of Claim was then delivered some months later. Again, we applied to have it struck out, and again the judge threw it out with a damning assessment.

The Gunns case was now in serious trouble. The adverse publicity had seen the Gunns share price plummet. Gunns sacked its lawyers and hired a new team.

At this point Gunns dropped the case against Doctors for Native Forests, and agreed to pay all costs.

The case then collapsed against a number of other defendants, including Bob Brown, and bit by bit the Gunns litigation unravelled.

Finally, on 1st February 2010, Gunns abandoned the case against the remaining four defendants, and agreed to pay them over $150,ooo in costs.

Gunns ended up paying several millions of dollars in costs to the defendants, to say nothing of what it paid to its own lawyers. But for many of the defendants it was an immense strain, imposing real financial and personal costs - just because they had stood up to a powerful company.

The Gunns litigation was a try on by well resourced plaintiffs who were determined to tie up their political enemies in court for as long as possible and as expensively as possible.

Litigation like this brings our legal system into disrepute, and should be outlawed by legislation.

External links

• Bush Lawyer's Guide to further information on SLAPPs
• Draft Bill submitted to the Victorian Attorney-General
• earlier post on SLAPP suits
• Being Forest Friendly
• The National Interest
• Parliamentary Debate on SLAPP suits
• Stop the SLAPP
• Bob Brown's view
• Gunns 20 website

Being Forest Friendly

Alan Gray

My journey in relation to SLAPP suits began in 1999 when my friend Alan Gray rang me. It was the Thursday before Easter, and I was about to go on holidays. I could hear the fear in his voice. He sounded devastated. “Brian,” he said, “I’m not feeling good – all I have worked to build for my family – my house and my business – could go down the drain.”

Alan was then, and still is, the editor of Earth Garden magazine. He had written a book called “Forest-Friendly Building Timbers”. It was a consumers' guide to the ethical purchase of timber for various building needs - timber not sourced from native forests. BBC Hardware had agreed to stock the book throughout Australia.

Just before the close of business for the Easter holidays, when Alan was in Sydney for a launch of the book, the solicitors for the National Association of Forest Industries sent him a letter threatening to take him to court for deceptive and misleading conduct under the Trade Practices Act, because the book made a number of statements about the logging industry which they disputed.

The statements were all sourced and quoted from government reports. They were indisputable. And there were good statutory defences under the TPA anyway. But this would not matter – Alan Gray could not afford to bankrupt himself in order to prove he was right. Even a few days in court would be crippling.

NAFI demanded the shredding of all copies of the book, and an undertaking not to repeat any of these statements. Otherwise, off to the Federal Court. Alan, unable to face the prospect of even a short Federal Court hearing, was at the point of capitulation.

The irony was that the Trade Practices Act is meant to be about consumer protection, and the logging industry wanted to keep information from consumers to protect its own interests.

It was the modern equivalent of a mediaeval book burning.

I arranged for Alan to send the letter and the book immediately so I could look over them.

I rang back. Sometimes you have to have the courage of your convictions when you give legal advice. I said to him that he should not worry: the letter meant the book would enjoy greatly increased sales. We prepared a legal reply telling NAFI to "go jump" and then sent the correspondence to every journalist we could think of.

It got a run in every paper, and in many cases on the front page. Terry Lane on Radio National's "National Interest" interviewed Professor Allan Fels (head of ACCC) who offered the opinion that the NAFI letter itself may well amount to deceptive and misleading conduct, because anyone who knew the workings of the TPA would know that the threat they made was empty.

We dared NAFI to bring proceedings. They didn’t. The book was at the top of the non-fiction best seller list for months.

There was one dark aspect of the outcome. BBC Hardwares issued a press release which said:

BBC Hardware Limited today withdrew from sale in its stores a booklet titled “Forest-Friendly Building Timbers”.

This follows a threat of legal action against BBC Hardware by the National Association of Forest Industries, which took exception to the publication.[1]

NAFI’s threat of legal action was baseless. They did not even issue any proceedings. But still their threat pushed “Forest-Friendly Building Timbers” off the shelves of the major hardware chain which had supported it.

It’s a good example of the way some big business operators misuse the court system – frequently without even having to take proceedings. In this case we called their bluff, and that’s a good lesson in how to deal with SLAPP suits – stick together, go public, and don’t let them get away with it.

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[1] BBC Hardware Media Statement 8 April 1999

External Links

• Slapping on the Writs
• The National Interest
• Parliamentary Debate on SLAPP suits
• Draft Bill submitted to the Victorian Attorney-General
• earlier post on SLAPP suits

Muzzling FIDO

Lake McKenzie, Fraser Island

John Sinclair was named Australian of the Year in 1976. He grew up in Maryborough in Queensland. He had studied agriculture and had been a district organiser for the Young Farmers. Having qualified at night school, he worked as a teacher with the Queensland Education Department.

Sinclair had heard about Fraser Island from his parents, who honeymooned there, and when he visited the place, it fulfilled his "almost mythical" expectations.

John became the driving force behind the Fraser Island Defenders Organisation. Without FIDO, Fraser Island would have been logged and mined to the point where it lost most of its natural values. FIDO is responsible for its status as a national park. The story of the Fraser Island campaign is one of tenacity and ingenuity - and injustice.

During the course of the campaign, in which not only the mining industry but also the Bjelke-Petersen government attacked him relentlessly, John Sinclair’s wife received threatening phone calls. His children had the tyres on their bikes slashed. He himself was booed when he led his scout troop into the arena at the Maryborough Show.

In the Queensland Parliament Sinclair was repeatedly vilified by National Party MPs with false and scandalous allegations – for which he was given no right of reply.

The Education Department moved him without warning from Maryborough to a specially created post in Brisbane, and then, again with no warning, to Ipswich.

At the height of the controversy, Sinclair published in his newsletter the submission he had made to the Commonwealth’s Commission of Inquiry into Fraser Island mining. In it, he attacked the mining company Murphyores for “corruptly obtaining its leases and licences”. The Murphyores company.sued him for defamation.

Murphyores had tried to stop the Commonwealth’s inquiry – taking two proceedings. The failure of its challenge to the constitutionality of the Commonwealth’s inquiry was one of the first great environmental victories in the Australian courts - the High Court’s decision in Murphyores[1].

But now Murphyores sued John Sinclair personally, and others with him. He was under immense pressure to do something to relieve the burden from others – particularly the Hervey Bay Publishing Company, the small business which printed FIDO’s newsletter. Eventually, three days before the hearing, he caved in, apologised, and paid out a significant but undisclosed sum to Murphyores.

Then the Education Department sent him on another sequence of unsolicited transfers and he resigned, abandoning $250,000 in superannuation. His family life in tatters, and having filed for bankruptcy, he moved to Sydney, where he was unemployed for six months, a refugee from a State whose heritage at Fraser Island and Cooloola he had done so much to protect.

Today Fraser Island is world heritage listed and a mecca for people all around the world – a wonderful resource for refreshment and inspiration. It would have been lost to Queensland and to the world if not for FIDO. And yet the legal system did not protect those who spoke out to make the world a better place, and the cost to John Sinclair – the Australian of the year – diminished all of Australia.

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[1] Murphyores v the Commonwealth (1976) 136 CLR 1; see also Sinclair v Maryborough Mining Warden (1975) 132 CLR 473