The lawsuit brought by the woodchipping and logging corporation, Gunn’s Ltd, against twenty activists and organisations (the “Gunns 20″) has finally been settled. Well, kind of. Gunn’s is still taking legal action against six individuals and one organisation.
Heidi Douglas today doesn’t owe Gunns a cent. That’s a monumental change for a woman of modest means whom the timber company sued for $464,313.
It’s more than four years since a process server handed Douglas a writ claiming she was part of a conspiracy that interfered with Gunns’ business. She shot videos of two protests in Tasmania’s Styx Valley and at a woodchip mill in the island’s north-west as a part-time employee of the Wilderness Society. She left the mill when asked, but was later charged with trespass anyway, and found guilty.
“I was naive,” Douglas admits. “I didn’t realise I was trespassing. I wasn’t actually involved in the protest. But because I was found guilty for that, it would affect me in a civil court.”
The writs arrived in December 2004 like a bolt from the blue to the group that became known as the Gunns 20. “I was completely shocked,” Douglas says. “There was a very large chance that I would go bankrupt if I was found to be guilty in any way.”
Facing this prospect, the 20-something filmmaker had to decide whether she should put her life on hold, or get on with building a business and buying a home with her husband. She chose to forge ahead. “If I decided not to, I would still be in a share house going crazy.”
Still, the emotional cost of the case would run for years. It ended this week when Gunns settled with the Wilderness Society, the original $6.9 million claim against the 20 having all but collapsed.
The failure of Gunn’s legal action has been widely reported as a triumph for the activists involved, but the financial sword of Damocles under which these people have been living has certainly taken its toll on their lives, livelihoods and relationships. That’s no accident; Gunns’ action was a SLAPP suit, or Strategic Litigation Against Public Participation. SLAPP suits are brought by corporations against activists, some of which are organisations and others are simply individuals with few resources. The object is to frighten them into silence.
Bob Brown: There was a general feeling amongst folk who hadn’t been faced with this situation before; they were stunned. One of them wandered around her house thinking that this lounge suite, my TV, the things she’d worked years to get, now inherently are not hers; the cloud of Gunns ownership hangs over them. And people were very frightened because it’s not just you that’s being effectively, potentially, taken to the cleaners by a court case like this – and indeed into potential bankruptcy – but your loved ones, your family, other people.
Why should Gunns worry about justifying their operations when they can just use money to make their critics go away? Brian Walters, SC, the head of Free Speech Victoria and author of the book Slapping on the Writs, says
Just to give some examples: when Chris Masters of 4-Corners did his ‘Moonlight State’ report in 1988, that was a major contribution to the Australian community. That led to the Fitzgerald Royal Commission and a change of government in Queensland, and an alteration of the entire culture. He was still dealing with the litigation arising from that program 13 years later. That’s not just something you leave to your lawyers, you’re carrying around suitcases full of legal documents wherever you go, answering interrogatories, dealing, month in, month out with all of the immediate questions that you have to resolve for a court case. Where people are running professional lives, dealing with family responsibilities and just in that extra bit of time they have, campaigning to make the world a better place, if they’ve got to run a court case, they’re out of it. They’re shut out because of the sheer pressure of time. Not so for the corporation, they just give it to some officer in the corporation who can just handle that for them.
Gunns brought three Statements of claim, all of which were found to have no basis in law. The second was thrown out by the judge, Justice Bongiorno, as being “legally embarassing” and “unintelligible”. My take is that Gunns didn’t care about that at all. Anything that prolonged the process was in their favour because it would wear the less experienced activists down, waste their time and frighten others away.
“(In the US) filers of SLAPPs rarely win in court yet often ‘win’ in the real world, achieving their political agendas. We found that SLAPP targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out–’chilled’ in the parlance of First Amendment commentary.” (George Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out, 1996.)
Which is probably why the AGE editorial, not known for its lefty sensibilities, described the collapse of the “Gunns 20″ case as a victory for democracy. But SLAPPs continue in Australia because there is no effective legislation to prevent them. Recently, the Victorian government brought one against the Blue Wedges Coalition to steamroll public opposition to the controversial channel deepening in Port Phillip Bay. Quite recently, the ACT passed Anti-SLAPP legislation – how effective, I’m not in a position to know. It would be nice to think that something like that could happen in Victoria and Tasmania. Given the development at any costs, ram the project through mentality in both States, I imagine such a change might be long in coming.
Still, raise a glass to the Gunns 20.
Thanks Helen for reporting on this – it must be horrific to live in fear of an unfavourable ruling meaning bankruptcy for the little person who just doesn’t want their local environment trashed.
Gunns will of course write off the legal costs as tax deduction. Whereas the defendants had to use their post tax dollars to defend themselves.
Wrong at any angle.
Yes, great article Helen. And a special big “Thank-you” to all the people in Tassie. Once again you have stared that arrogant, destructive monster down – using little other than your integrity, resourcefulness (which obviously at times seems no where near up to the task), and determination.
Good on ya, mates. You’re a shining example to us all – and I reckon hellishly stronger (within yourselves) – than ever before (although it might not seem like it just now!).
What a great triumph for the environment and of the human spirit. Gunns really had better look out now – the “meek” do bite!
Interesting point Dave about the tax deduction. Perhaps, perhaps the ATO could argue the purpose was not to make income but intimidate protesters (ie a non-business purpose) and so the amounts are not deductible.
From memory there is s specific court costs deduction provision. I’ll have a look.
Anyway, the main point is a good one. SLAPPs are anti-democratic. As Helen says they consume the lives of the protestors but no the company and even if the company withdraws or lsoes in Court, they win in the battle against their opponents by tying them up.
I’ll try to chase up the ACT’s anti-SLAPP laws, although I would point out the Save the Ridge group lost a case here and had substantial costs awarded against them, at the behest from memory of the ACT Government in an attempt to discourage protestors taking direct and court action.
Gawrsh, thanks, guys. I was only really aggregating what others have said.
That plus the NSW case had a real affect on forest blockades – it means you really do have to be willing to declare bankruptcy to participate. One interesting govt measure would be to include HECS in bankruptcy (if it isn’t already). It would mean recent uni grads would gain a secondary benefit if they did get sued.
I get very sick of the “but I was just there to film the events” defence though. No disrespect the Heidi, but it’s still trespass even if you’re employed to do it by the bought media. I don’t want a world where anyone can use that as a defence when they invade people’s homes.
Not really analogous to invading a home, unless you mean a home for the wildlife, which they’re trying to stop being taken away.
That’s a whole post in itself – has the bad behaviour and cynical ambulance-chasing of tabloid TV crews made it more difficult for legitimate news gatherers, who could do valuable work witnessing to bad corporate behaviour?
I wouldn’t underestimate the significance of adverse costs orders in SLAPP claims.
A “legally embarrassing” and “unintelligible” statement of claim, when struck-out for want of disclosing a cause of action, is quite likley to lead to an indemnity costs order. Such costs orders can be devastating in prolonged proceedings.
Sure, they may merely be a tax write-off for the company, but what about their lawyers?
Costs orders can be (and occasionally are) made under the Rules in the appropriate cases against the legal representatives of unsuccessful Plaintiffs.
And matters where a pleading is “legally embarrassing” and discloses no cause of action whatsoever are exactly the sorts of claims where a Court may well get its dander-up and make such an order. Let’s face it, the Courts don’t like people (even lawyers) wasting their time any more than anyone else does.
Now that prospect alone could potentially have a significant effect on the sort of cowboy litigation that appears to constitute SLAPP proceedings.
What lawyer or firm is going to be prepared to act for the likes of Gunns in such cases if they may be looking at a crushing costs order against them personally when the claim is tossed-out summarily for being a load of crap.
Viva Bernie Bong.
Good on you, Gunns 20. You give us all extra courage just when we need it. (My heart’s been in my mouth the past couple of days over a couple of little things I’ve been doing about internet censorship elsewhere than LP, but you’re giving me courage to keep going.)
That’s a whole post in itself – has the bad behaviour and cynical ambulance-chasing of tabloid TV crews made it more difficult for legitimate news gatherers, who could do valuable work witnessing to bad corporate behaviour?
I’d love to see that post, because it’s an interesting and relevant discussion. The Hanson photos combined with the Brennan Affair give a good start to two ways of looking at it. The blurring lines between bought media and citizen journalism make it even more interesting.
On the one hand, some kind of formal indemnity for journalists would be better than the current conditional “p*lice discretion” approach, but on the other hand the tabloids would queue up to be the first to use it to defend the indefensible (“Nicole Kidman giving birth: we have the photos!!!”). There’s also questions about defining “media” – can a protester whip out a camera to avoid arrest? Does someone from the bought media become liable for arrest if their camera breaks down?
I hope everyone remembers that there are still several individuals under the sword of this disgusting ‘legal’ action by Gunns. What’s sad is that those remaining are the smallest individuals overall, with the least resources to defend themselves. The politicians and Wilderness Society had more resources to fight and settle etc., which is no disrespect to them, but I hope they keep helping the others. People like Lou Geraghty, a wonderful older woman who runs an organic cafe in Huonville, and frequently donates food and drinks to worthy community events, despite having this hanging over her and draining her resources.
Really hope it ends for the remaining 6 soon.
Thanks Myriad, I wasn’t aware that Lou Geraghty was among the remaining 7. That (channeling Tigtog’s thread) is truly disgusting.
Hear hear for the almost finalisation of that disgusting chapter – geez Gunns are a pack of evil bastards (yes helen, that’s not satirical or ironic). Friends of friends of mine have been part of this, and yes the personal impact has been severe.
But the Blue Wedges Coalition – I don’t know what the specifics of the claimed Vic Government SLAPP are (and that link’s broken for me), but I’ve seen a lot of their arguments, and they are in many cases completely loony tunes. At some stage, having had a LOT of time spent on them, and well after they’ve exhausted all reasonable lines of attack, and without broad public support (which they never got), they have to be told to go away and stop wasting the courts and the tribunals time.
I just looked on the Blue wedges website, and found no claim of a SLAPP – all I could see was that costs were awarded against them in a court case. Are you really trying to say this is equivalent?
SLAPPs are court cases, yes. But I’d disagree that BW had no public support. My impression that it was the usual case of public support being ignored by the Victorian Government – again. And of course shamefully, a lot of us don’t do enough because we’re all immersed in our own trivia, me included – didn’t even blog it. Shame on me for that.
O/T – We haven’t swum at Willi beach this summer as we usually do as we don’t know what might have been stirred up from the depths by the dredgers. Sure it might be OK, but I don’t trust the Port of Melbourne Authority to give an honest answer as to its safety. / O/T
Yes but helen, Losing a court case that YOU have brought, and then having costs awarded against you, is a loooong way from a SLAPP, you agree?
Oh, you should have come on in, the water at Willi Beach was fine this summer. I would be far more worried about the stormwater outfall smack bang in the middle than any fanciful dredging effects.
It’s not quite that simple. As the Monash law centre points out, SLAPPs are preventing opposition to activities that may well be illegal.
Sorry about the length, but you see the problem here? On the one hand corporations are allowed to bring suits against their opponents because of direct action, yet when an activist organisation tries to bring an action through the “proper channels” they get SLAPPed just the same.
Well I think you’re extending the term excessively. After a while, they become vexatious litigants without a leg to stand on.
I also have it on very good authority that the Blue Wedges lawyers were, to put it politely, incompetent nincompoops, far better at drafting a(n erroneous) media release than a legal argument.
The Federal government had plenty of triggers through the EPBC Act, and no obvious bias, yet they were happy to let dredging through.
Wilful, you seem to have the idea that if you can discredit Blue Wedges, SLAPP suits don’t exist. They do. For multiple examples you only need to do the most minimal googling.
Huh? what on earth? Where did I ever suggest that SLAPPs don’t exist? You said the Blue Wedges were subject to a SLAPP, I pointed out that well clearly they’re not, you attempted to change the point? By your definition, any community group involved in any legal fight whatsoever is subject to a SLAPP. That’s nonsense.