The Bet

Omeo Court House

When I worked in Gippsland, I regularly appeared in the Omeo Court. There was always something interesting happening in the Omeo Court. I had one client called Merv, who worked driving a grader for what was then called the Country Roads Board, and had ten children. 

Merv liked a drink. There were two hotels in Omeo – the Golden Age, better known as the “bottom pub”, and Faithfull’s, better known as the “top pub”. Merv had been banned from the bottom pub, and so, on this particular evening in the late 1970s, was drinking in the top pub, along with another bloke - also banned from the bottom pub – Charlie.

They were well in their cups, and Charlie turned to Merv late in the night and said “You’re an alcoholic.”

“I am not – I could give up the drink any time I liked.”
“I bet you $1,000 you could not stop drinking and smoking for six months.”

“You’re on.”

$1,000 was a lot of money in those days, especially to a person like Merv. In the end, they both bet each other that they could not stay off the grog and the smokes for six months. Merv couldn’t afford to offer $1000, so he put up $200.  They went to the Omeo branch of the CBA bank, and opened a joint account for the purpose.

The six months went by. Both of them were shouted drinks by everyone in town. Offered smokes. No, they just drank lemon squashes. They both kept to the terms of their bet.

At the end of the time, Merv put out his hand for his money. “No,” said Charlie, “I don’t believe you could have kept to the bet. But I did, and I want my $200.”

Merv was furious. He couldn’t believe what he was hearing. He’d spent six months living for this moment.

They argued and argued, but Charlie wouldn’t budge. Eventually they went to the bank manager and asked him to adjudicate. He said he wasn’t going to adjudicate, and they could both take out the money that they put in. So, instead of his $1,000, Merv received just $200, and reckoned he was $800 out of pocket.

Months went by. It was Grand Final day in 1979, Carlton v Collingwood. Charlie and Merv, along with a hundred other drinkers, were at the top hotel. The bet was over now, and they were both well and truly drinking again.

The bar at the top hotel is arranged as a large “U”. Near one end of the bar, Charlie had two $50 dollar notes, and was calling out “Come on, who’ll bet with me – I’m backing Collingwood.” And he slapped his fifty dollar notes down on the table.

Merv was standing just to his left. Charlie was looking at the rest of the bar to his right. Merv sidled up to Charlie. In full view of the 100 drinkers in the bar, and with a wink to them all,

Merv picked up the two $50 notes and pocketed them. Then he tapped Charlie on the shoulder and said “That’s 700 you owe me, Charlie.”

Charlie was furious. He went to the police station, staffed by a single Sergeant of police, and laid a complaint of theft.

The policeman went down to the Omeo Highway where Merv was working on his grader and hauled him back to the police station for a record of interview.

Confronted with the allegation of theft, and with 100 witnesses to the fact that he had taken the money, Merv made no mention of the bet – he denied taking the money.

He was duly charged, and he came to me to represent him.

The court room was packed with every drinker from miles around. The first witness was Charlie. I had one old crone, smelling of sherry at that early hour, telling me I should ask him about this and that previous outrage.

I cross examined him. At first, he denied there had been any bet at all with Merv. We had the bank manager in court on subpoena – and when I pointed out that he would be giving evidence, Charlie reluctantly admitted that there had been a bet, but reverted to claiming Merv had not fulfilled his part of the bargain. Eventually he admitted that Merv had used the words “That’s 700 you owe me, Charlie”.

My client gave evidence, and admitted that he had lied to the police, but explained why he had taken the money.

I argued that it was not a bet at all (which is unenforceable at law) but a prize, as it depended on the conduct of the parties. But in any event the defence was a claim of right, and even a mistake of law would not vitiate a claim of right.

We won.

A few months later Merv came to see me in my office in Bairnsdale. He thanked me for my help in the case, and wondered if I could now take action against Charlie to get the remainder of the money back.

Goolengook

Just after Bob Brown was elected a Senator in 1996, I walked out of court at lunchtime. I was in Hobart, prosecuting orange roughy fishermen for fraudulently understating their catch.

I turned on my mobile and it rang. It was Margaret Blakers, Bob Brown’s personal assistant. She told me Bob had just been charged with obstructing lawful forest operations at Goolengook forest in East Gippsland.

As it happened, I already knew that, because his photo was all over the front page of the papers that morning.

Now it was for me to act for him.

The first concern was the prospect that if he was convicted of any serious offence, he might be disqualified from taking his seat in the senate. When I later met with Bob and his advisers, there was discussion about how the court case could be used to highlight the plight of the forests, but I had a different perspective: the way to get good publicity was to win the case, and I thought we could.

I had a good team, with fellow barristers Klaus Mueller and Brad Baker, and some diligent instructing solicitors, including Bill Coady and Bill Lambros.

Goolengook was spectacular forest, and had been the site of a long running logging blockade.

The charge was obstructing lawful forest operations. In fact, there was no logging occurring at the time, and nothing to obstruct. But more importantly, the prosecution would have to prove that the logging was lawful, and I was not sure that it was: the logging on which the police relied was carried out next to the Goolengook River - listed as a heritage river under the Heritage Rivers Act.

The Heritage Rivers Act recognised the Goolengook River as having the best continuum of rainforest in Victoria, and made logging unlawful in the area it had protected. That area was defined by reference to a map. We had to go to the Surveyor-General's office to obtain a copy of the map which was referred to in the Act.

Looking at the map, and looking at the logging coupe plans, one thing leapt out at me: the Act required that there be 200 metre buffer zone either side of the river, but the coupe plan purported to allow logging to within 100 metres of the river.

The logging was in breach of the Heritage Rivers Act, and Parliament had set out in the Heritage Rivers Act (s 15 of the Act at that time) that the Act was to prevail over other Acts, and any instrument (ie document) authorising a contravention of the Heritage Rivers Act was "void".

In due course we travelled to Moe Court to defend Bob Brown and two others who had been charged with him. The fate of several hundred other protesters - who had also been charged - would depend on this case.

The police witnesses gave their evidence. They included the foresters who had drawn up the coupe plans and authorised the logging. None of them had considered the Heritage Rivers Act, and none of them had looked at the map which Parliament had said should prevail over any other logging rules.

It was clear that the prosecution could not prove that the logging was lawful, and after three days of hearing (extending into early 1998) the case was thrown out.

The Kennett government was embarrassed by the outcome. It dropped the charges against all those who were charged, and suspended logging in East Gippsland for the remainder of the summer - the court ruling meant that the East Gippsland Forest Management Plan was "void" in its entirety, and they had to start again.

The government introduced legislation to retrospectively validate the logging plans, and to amend the strong protection in the Heritage Rivers Act. It reduced the buffer zone from 200 metres to 100 metres. The government also introduced legislation making it an offence to enter a "forest operation zone" - large areas where logging might or might not occur.

They also appealed to the Supreme Court against the dismissal of the charge against Bob Brown.

The Supreme Court hearing came on late in 1998. I was opposed by Susan Crennan QC, now a High Court Justice. Justice Kellam reserved his decision, and we came back on 23rd October (which happened to be my wife Sally's birthday) to hear the result.

Justice Kellam found that the prosecution argument faced "insuperable obstacles" and threw out the appeal. He confirmed that the charge against Bob Brown remained dismissed, and ordered costs against the prosecution.

It took many more years to save Goolengook, but that night, at least, we all went out to a restaurant in Southbank and celebrated!

External Links

• DPP v Brown (Supreme Court)
• Heritage Rivers Act 1992 (as now amended)
• Save Goolengook
• Goolengook - TWS

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

Blue Wedgie

Port Phillip Bay near the Rip - photo by Greg Blair

In 2006 the Blue Wedges coalition approached the Victorian Supreme Court to challenge the legality of the government’s “trial” dredging of Port Phillip Bay. Blue Wedges alleged that the dredging was in breach of the government’s own laws, because it was being conducted without any environment effects statement. The law required that “no works” be carried until such a statement has been completed. These trial works involved 5% of the overall works, and moving 1.7 million cubic metres - enough earth to make a structure stretching from Melbourne to Sydney. The claim by Blue Wedges had, at the very least, real prospects of success.

A challenge like this takes months to be given a full hearing by the Supreme Court. By then the dredging would have been finished, and there would be no point in the Court ruling on the case.

Blue Wedges coalition asked the court for an injunction to prevent works until the issue could be fully argued.

In such cases it is usual for the party who seeks an injunction to give the court an undertaking to pay any damages caused by the delay in works if the court ultimately rules against the legal challenge. If you want a court to stop something so you can bring a case, you must (usually) be prepared to cover the loss caused if you fail.

In this case, the prospective damages from a delay in the dredging was said to be some $32 million, accumulating at over $300,000 a day. There was no prospect of a community group honestly giving an undertaking to pay such a vast sum, and they sought to be excused from the requirement.

Justice Mandie refused to excuse Blue Wedges from this requirement, and accordingly would not grant the injunction. The merits of the case were never heard. (There were subsequent cases brought by Blue Wedges, but they were tangential, relying on Commonwealth legislation, and were never as strong as this challenge.)

Whatever you think of dredging Port Phillip Bay, the Blue Wedges case highlights an important gap in our rule of law. If the government was acting unlawfully in this trial dredging, surely the rule of law requires that it be held to account. But how?

Justice Mandie approached the case with a conventional view: the common law assumes that private individuals take court action only to protect their private interests. The common law also assumes that the only party who approaches the courts to uphold the public interest is the Attorney-General. Both these assumptions are outdated and wrong.

The common law model does not take account of community groups approaching the courts not for any financial interest, but for the public good. It is not unusual for community groups to be in stark conflict with the Attorney-General of the day in doing so. When Liberty Victoria approached the Federal Court seeking relief for the asylum seekers on the Tampa they did so in spite of strong efforts by the government of the day, including the Attorney-General, to oppose them. But if Liberty Victoria, (and other concerned members of the public) had not approached the court, there would have been no one to speak for the asylum seekers whose rights were being overridden.

And yet, when the courts consider cases brought by such community groups, they generally apply rules designed for a different situation – namely for those who come to court to defend their private interests.

The safeguard of relying on the Attorney-General to protect the public interest is no longer enough. It is true that the Attorney-General may intervene in any case as of right, and may give his “fiat” for an issue of public interest to be litigated by another person. But what if the Attorney-General is himself party to the conduct in question?

In the Blue Wedges case, the Victorian Attorney-General Rob Hulls was also at the time the Minister for Planning, who administered the environment effects process. He made public pronouncements in support of the trial dredging. He was not to be regarded as a genuinely independent law officer who would defend the public interest in this matter despite his own political interests.

Whether in Victoria or elsewhere, this is the reality with Attorneys-General in Australia today. They are no longer independent of the political fray, and our reliance on the Attorney-General to uphold issues of public interest is unrealistic and ignores the political pressures to which they are subject.

Access to justice is critical for the rule of law. There is no point having the law if members of the community are not able to approach the courts to obtain remedies to enforce it. It is an affront to the rule of law to leave anyone – especially the government – free to break the law because no one can afford to challenge them.

Where issues of public interest are raised, particularly by non-profit groups acting for what they perceive to be the public good, it is no longer enough to assume that such matters are only for an Attorney-General to pursue. Rather, courts should ensure that the real issues in claims of unlawfulness by government authorities are determined as soon as possible.

It is time for a comprehensive approach to giving community groups a hearing in the courts. New procedures are needed. Where non-profit groups approach the courts in order to uphold the public good, in a proceeding with real prospects of success, generally they should not have to pay costs, they should not have to give security for costs, and they should not have to give undertakings as to damages.

Upholding the rule of law requires us to give the community a hearing.

Turbidity Plume from channel deepening

External Links

• Blue Wedges

Human Rights denied

The Eureka Flag

Yesterday the Rudd government announced that it will not give us a Human Rights Act. In the same week that the government reopened the cruel Curtin Detention Centre, it is a tragic missed opportunity.

The Government engaged in a National Human Rights Consultation, under the leadership of Father Frank Brennan AO. It was the most extensive public consultation in Australian history receiving and considering over 35,000 submissions - an unprecedented number, and overwhelmingly in support of a Human Rights Act.

The Report of the Consultation found that human rights are insufficiently protected in Australia and recommended a Human Rights Act.

"Doc" Evatt

On 10th December 1948 the General Assembly of the United Nations passed the Universal Declaration of Human Rights. An Australian - Dr H V Evatt - presided over the United Nations for the passage of that historic declaration. After the passage of the Universal Declaration, the UN passed other great human rights instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Australia ratified both these charters.

It is one thing for Australia to sign onto these treaties. It is another thing to put them into force as part of the domestic law of Australia. Until that is done, they remain largely aspirational, and without real force in the life of our nation.

Alone among all western democracies, Australia has never legislated to recognise and protect the rights set out in the Universal Declaration of Human Rights. The ACT enacted a Human Rights Act in 2004. Victoria enacted a Charter of Human Rights and Responsibilities Act in 2006. These are welcome first steps, but national leadership was required to give effect to these rights across our nation.

No one is suggesting a US style Bill of Rights entrenched in the constitution. What is proposed is an Act of Parliament, under which Parliament remains sovereign, but which directs the courts to consider and apply human rights principles. The courts will not be able to strike down legislation, but will be able to draw Parliament's attention to legislation which runs counter to human rights principles. Parliament may leave the legislation as it is, but may also amend or repeal the legislation to correct the problem. This is known as the "dialogue model", and is the kind of model used in the United Kingdom, Canada, and New Zealand.

Some argue that we don't need a Human Rights Act because totalitarian regimes like the old Soviet Union had bills of rights, and they proved ineffective to protect anyone. Legislated human rights protections in countries like the old Soviet Union, or Zimbabwe today, have no force because the rule of law has no support in such places. None of the laws have real effect because they are states governed by tyrannical regimes. But Australia is not like that. Our courts and police and public service have a culture of abiding by the law. No one can seriously suppose that if the parliament passed a law here it would be given no effect by the courts or those required to administer it.

Opponents of a Human Rights Act make the dire warning that it would be a "lawyer's picnic". Lawyers often have a poor reputation, but a Human Rights Act will not give them a "picnic". Bob Carr ran an Op Ed in the Australian on just this theme - warning that "Lawyers are already drunk with power". I have done a great deal of human rights work over the course of my career, and such work is usually for people with little or no resources - the powerless in the community - and it almost never pays.

The enactment of human rights legislation in other jurisdictions has not seen an explosion of litigation - in fact, almost no increase at all. Most of the effect of the charter has been out of court, in relation to decisions made by public authorities to better reflect their obligations to human rights. Typical examples have been allowing a gay surviving partner to take over the lease of a public housing unit, or preventing the separation of an elderly couple into different nursing homes after decades of marriage. Such litigation as has occurred has usually been in the context of giving an extra argument in cases that would have proceeded anyway. There is no lawyer's picnic in a Human Rights Act.

"Ah!" say the opponents of human rights, "A Human Rights Act transfers power to unelected judges." What utter nonsense this is. A Human Rights Act does not give power to unelected judges, but rather gives power to unelected citizens. Is it seriously proposed that people with human rights grievances could take them before Parliament? The suggestion is preposterous, and would abandon the powerless to the vagaries of political expediency.

Judges are unelected, it is true. They have to be to keep them clear of the political fray. They must decide contests between citizen and State. A Human Rights Act will direct them to consider particular criteria - namely human rights - in determining such disputes. Parliaments direct the courts to consider particular criteria in determining cases all the time. For example, section 15AA of the Acts Interpretation Act 1901 directs courts as follows:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

The Human Rights Act would perform exactly the same kind of work, asking judges to apply human rights, and defining what those rights are. This is entirely in conformity with the usual arrangements between parliament and the courts. Far from transferring power to judges, this tells judges how to exercise the discretion they already have.

The opponents of a Human Rights Act generated hysteria about it which was baseless. They did not shrink from fabricating accounts of overseas experience, often persisting in erroneous stories of cases even after the facts had been pointed out. Former NSW Premier Bob Carr, in particular, was shameless about this. The Australian ran articles which were often mendacious to the point of absurdity.

As Philip Lynch, director of the Human Rights Law Resource Centre has written:

Evidence and experience from Victoria and the Australian Capital Territory, both of which have their own Human Rights Acts, demonstrate that a national Act would promote more accountable government, improve public services, address poverty and disadvantage, and enshrine fundamental, unifying values. Instead, the homeless, the elderly, people with mental illness and children with disability — all of whom have been beneficiaries of human rights laws in Victoria and the ACT — must now wait at least another 4 years before their human rights are adequately protected and promoted at the national level.

A Human Rights Act would build a greater Australia. The government's craven submission to a scare campaign diminishes us all.

External Links

Brian Walters debates with Bob Carr on the Law Report

Philip Lynch on the Government's new human rights framework - "Icing without a Cake"

Amnesty International

Frank Brennan's response