CONSERVATION COUNCIL OF SA INC & ORS v CHAPMAN & ORS No. SCCIV-98-81 [2003] SASC 398

CONSERVATION COUNCIL OF SA INC & ORS v CHAPMAN & ORS No. SCCIV-98-81 [2003] SASC 398 - SASC 2003 case summary — Zoe

[13]

" Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.

Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend."

[49]

... the peak (or "umbrella") conservation organisation for South Australia and represents member groups (fluctuating between 50 and 65 in all) whose main purpose is conservation and protection of the environment; the Conservation Council claims that those combined groups represent over 60,000 members ...It is partially funded by grants from the Federal and State Governments. It is a non profit, non political party organisation. The evidence shows that the Conservation Council is influential in public affairs in South Australia. The Council is in a position through the goodwill of its members and associated organisations to provide expert advice to government and the community. The Council is also accustomed to lobby and to proselytise with respect to selected issues. My assessment is that the Conservation Council occupies a respected and powerful position of influence within the community.

As at September 1995 the Conservation Council ran 16 working groups to advise the Council on various environmental issues. One of these groups was the Environmentalists and Aboriginal Reconciliation Action Group ('EARAG') whose purpose was declared to be 'Promotion of Aboriginal reconciliation and the forging of links, particularly in relation to the conservation movement and environmental issues'.

Membership of the Conservation Council in terms of its 1993 rules is confined to organisations which become affiliated with the Council and which meet a strict set of criteria. Such organisations have voting rights via councillors appointed to represent the organisation at meetings of the Conservation Council; the number of councillors to be appointed by a particular organisation is dependent upon its own membership in accordance with a prescribed scale. It is the practice of the Conservation Council only to admit incorporated bodies to membership. (As a result of this requirement the admission of The Friends of Goolwa and Kumarangk to membership of the Conservation Council was deferred for some months until May 1994 to enable the association to become incorporated).

The Executive Committee (which includes the President, Vice President, Secretary, Treasurer and committee members) are elected by the councillors in general meeting from amongst their number but the Executive Committee itself has power to fill vacancies by election or appointment (see R55); there is also a power to include staff on the Executive.

The rules contemplate the creation of Research Action and Resource Groups or Committees but these groups are not required to pay an affiliation fee. The operation of these groups is required to be reviewed by the Executive from time to time (see R44 & 56).

The Conservation Council employs salaried core staff but it is largely dependent upon voluntary activity. ... a degree of informality is necessarily associated with the flexible workings (in an organisational sense) of the various sub-committees and working groups; these may hive off a matter of interest to a designated subgroup to satisfy the exigencies. ... those participating voluntarily in the affairs of the Conservation Council 'came and went' as their interest in a particular topic waxed or waned or as the topic of interest was disposed of.

[131]

First the bridge and now the commission to nowhere ...all funded by SA taxpayers.

Despite increasing opposition the SA Government persists with a Royal Commission which it claims will decide the truth about the spiritual significance of Kumarangk (Hindmarsh Is) to Aboriginal women. Due to appalling reporting in commercial press many people in the community remain confused about the issues and believe the commission should continue as it will reveal the 'truth'. Unfortunately Terms of Reference for the commission prevent it from investigating any of the issues which could reveal the political reasons for this assault on Aboriginal cultural beliefs. It is worth re-examining some of the history of this saga to identify who is currently benefiting and why the Commission should be abandoned immediately.

The Hindmarsh Island bridge should never have been an issue at all. There was and continues to be widespread local community opposition to building a bridge to Hindmarsh Island. This was ignored. The bridge was proposed by the State government as an adjunct to the terms of planning approval for Binalong developers Tom and Wendy Chapman to proceed with a marina and housing development on the island.

Despite widespread community and environmental concerns the Government decided to fund the building of the bridge to cost SA taxpayers $6.4m when the developers said they were unable to do so. It should be remembered that this bridge was believed to benefit a small number of Hindmarsh Is landowners. The bridge, objectively speaking, was never in the best interest of the SA community. At Berri a bridge was desperately needed to support crucial SA primary industries.

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 organizations listed as a condition for building the bridge.

In opposition the Liberals repeatedly indicated that they would stop the Hindmarsh Is Bridge. Once in Government they commissioned the Jacobs Inquiry which examined the financial and contractual obligations in relation to the bridge. The findings are undisclosed and the report exempt under Freedom of Information. Pre-election promises were rescinded and the bridge given the go-ahead in May 1994. Michael Armitage, State Minister for Aboriginal Affairs, authorised the Dept of Road Transport to do as much damage to Aboriginal sites as necessary for construction of the bridge. At the request of the Ngarrindjeri people and after investigation by constitutional lawyer Cheryl Saunders, Federal Minister Tickner declared a ban of the bridge for 25 years. The decision to stop the bridge was on the basis of all materials submitted to Saunders. The secret women's business was just one part of the significance of the area to Ngarrindjeri people.

Attention returned to the Hindmarsh Is bridge in March 1995 with Ian McLachlan resigning, after admitting he had misrepresented events to the Australian public. McLachlan had authorised the photocopying of materials he had received which were meant for Tickner's office. This included a male staff member copying the contents of an envelope marked 'Confidential Appendices 2 & 3. To be read by women only.' He had claimed that the envelope containing the secret knowledge was neither sealed nor marked confidential.

In May 1995, Liberal Party campaigner Sue Lawrie organised a meeting of the Aboriginal women who now claim the Kumarangk women's business was fabricated (known now as the dissident women). In evidence at the Commission most of these women have revealed that they know little or none of their Ngarrindjeri language, traditional stories and mythology. Why should it be surprising that they have also not heard about the women's business? This exploitation of divisions within Aboriginal communities for political purposes can only be viewed with sadness and abhorrence.

Based solely on frenzied media reports which ensued from the dissident women's claims, the SA Government demanded that Tickner resign and an investigation be undertaken. Before the announcement of the Federal inquiry, Premier Brown had established the Royal Commission to determine 'whether the 'women's business', was a fabrication'. Contrary to endless media reports Tickner did not stop the building of the bridge solely on the basis of the women's business and the contents of the secret envelopes. The basis of the Royal Commission is thus fundamentally flawed and its real purpose comes into question. In some respects the Royal Commission seems to be just another attempt to discredit Aboriginal beliefs as apart of a post-Mabo backlash. It also appears to be part of a campaign to discredit Federal Minister for Aboriginal Affairs, Robert Tickner, and to allow the reinstatement of Ian McLachlan on the Liberal frontbench in the approach to the Federal election. The women who hold strong beliefs in relation to Kumarangk have rightly said that they will not be a part of this inquisition into their beliefs. So how can an adequate outcome ever be reached by this Commission?

Kumarank Coalition

The next issue of ESA (to be distributed in January 1996) will feature an article by Paul Leadbeter (ELCAS (SA) Inc and Director Australian Centre for Environmental Law, the University of Adelaide), entitled Citizen Enforcement of the Development Act and the Environment Protection Act. In this Paul reminds us that 'Where there is an apparent breach of the provisions of the Development Act (DA) individuals and community groups are often frustrated by the failure of the relevant authorities to take any action under the legislation regarding that breach. They should not forget that s85 of the DA provides that any person may apply to the Environment Resources and Development Court for an order to remedy or restrain a breach of the DA. Obviously, it is preferable that enforcement action be initiated by the relevant authority...However it is useful to know that if the authority will not initiate proceedings, there is the option to do it yourself.' Ed

[269]

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. As in the USA they are likely to be used increasingly by developers, large corporations and the rich, to silence opposition posed by environmentalists, consumer groups and concerned individuals.

An important role of the Conservation Council is to speak publicly on matters of environmental importance and to represent the views of the community on such issues. This we did on the implications of the Hindmarsh Island Bridge. It was highly appropriate that we should express our concerns on the potential effects of development on extensive wetlands which have birdlife protected by international agreements. It was appropriate that we should express our views on planning processes which had failed to consider environmental matters and forward management plans.

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. This injunction on expressing our opinions was lifted by His Honour Justice Heerey but despite this interim viewpoint from His Honour the companies indicated that they would continue the case against us. We believe that this legal process is being used simply to silence us for the view of an eminent legal expert, Andrew Stewart, Associate Professor of Law at Flinders University is that 'What the law prohibits is intentional interference with the performance of contracts. This obviously limits the capacity of environmentalists to protest against projects for which contracts have already been signed. But it would be ludicrous to suggest that any one who so much as discusses the Hindmarsh Island Bridge or indeed comments on the outcome of the recent Court proceedings is necessarily guilty of contractual interference. Of course those of us with some legal knowledge or the money to pay for legal advice may realise this. But others may not. As a society we must not allow the point to be reached where the mere threat of law suits is enough to silence those who wish only to express a legitimate point of view'.

An even more effective legal mechanism was used to silence those who wished to express an opinion. Dozens of individuals, some of whom never made a public statement on the issue, on meeting privately to discuss the matter had their car registration numbers taken and were then served with legal letters indicating and I quote 'your past actions give (the company) a claim against you for interference in contractual relations. By your conduct you have already caused (the company) enormous losses'. Thirty two million dollars is then mentioned. The letter then indicates that your past actions have resulted in receivership and a probable 'fire sale'. If this occurs there will be a claim against you of this magnitude even if the bridge is built.

You be the judge of the intent of these letters! This produced anxiety and even terror in many ordinary members of the community who feared the loss of their houses and other assets. All these individuals were deeply concerned with their local environment and the future. If we were to select model citizens here they were. Some in their eighties were reduced to sleepless nights, other developed anxiety states. Some went away temporarily because of stress. 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 (see article in May/June issue of ESA). However in the United States the Constitution guarantees the right of free speech and the communities are fighting back with anti-SLAP suits, damages for the psychological stress and other injuries incurred by the community. In Australia you will be surprised to find that our Constitution does not provide for the right of free speech and at the moment there is no way that we can proceed with an anti-slap suit. Constitutional review? Forget the monarchy and republicanism - we need constitutional review to give us free speech!

Certainly these events are enough to drive one to cynicism for the only political and press response to these legal events has been several political somersaults, a wail for loss of development and a stampede to salve the muscle spasms brought on by persistent and compulsive genuflection before the altar of State's rights. Certainly our representatives have not expressed any concern about the suffering and loss of free speech of many of our citizens.

[273]

The public's right of freedom of speech has been vindicated in a highly significant judgement in the Federal Court regarding the Hindmarsh Island Bridge issue.

Injunctions that sealed the lips of community concern for the past seven months have been lifted through the efforts of the Conservation Council of SA (CCSA); its member group Friends of Goolwa and Kumarangk Inc; and the Construction, Forestry, Mining and Energy Union.

The lawyers for Binalong P/L sought a stay of proceedings in their action against the above groups on the grounds that the Chapman's appeal against Federal Minister Robert Tickner's decision to ban the building of the Hindmarsh Island bridge had implications for their court action.

Justice O'Loughlin refused Binalong's application for a stay in proceedings; dissolved the injunctions and ordered that Binalong's lawyers proceed with any intended legal action by 12 Dec 1994.

This is a clear victory for free speech and the rights of the public to protest, to debate, to question and to challenge what is being done in this State. The injunctions have remained since April with no action being taken through the courts to test the validity of the charges.

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?

Baden Chapman Teague - Senator for SA?

In October, Senator Teague, in our opinion, used Parliamentary privilege in the Senate to broadcast misinformation. The commissioned report he referred to uses inaccurate and uninformed statistical data and information. He reveals a complete lack of sensitivity to, in fact ignorance of Aboriginal issues, and a poor understanding of union involvement.

The Friends of Goolwa and Kumarangk approached Senator Teague after his first misleading Parliamentary speech in June this year, but at no stage has he agreed to discuss the issue with conservationists or Aboriginal people. It is disappointing to see a Senator for SA representing short-term financial indulgences (which have cost SA tax payers dearly). CCSA calls on the Senator to justify his assertions to the people of this state, whom he is charged to properly represent.

Richard Owen and Margaret Bolster, CCSA Executive"

[279]

First the bridge and now the commission to nowhere ...all funded by SA taxpayers.

Despite increasing opposition the SA Government persists with a Royal Commission which it claims will decide the truth about the spiritual significance of Kumarangk (Hindmarsh Is) to Aboriginal women. Due to appalling reporting in commercial press (sic) many people in the community remain confused about the issues and believe the commission should continue as it will reveal the 'truth'. Unfortunately Terms of Reference for the commission prevent it from investigating any of the issues which could reveal the political reasons for this assault on Aboriginal cultural beliefs. It is worth re-examining some of the history of this saga to identify who is currently benefiting and why the Commission should be abandoned immediately.

The Hindmarsh Island bridge should never have been an issue at all. There was and continues to be widespread local community opposition to building a bridge to Hindmarsh Island. This was ignored. The bridge was proposed by the State government as an adjunct to the terms of planning approval for Binalong developers Tom and Wendy Chapman to proceed with a marina and housing development on the island.

Despite widespread community and environmental concerns the Government decided to fund the building of the bridge to cost SA taxpayers $6.4m when the developers said they were unable to do so. It should be remembered that this bridge was believed to benefit a small number of Hindmarsh Is landowners. The bridge, objectively speaking, was never in the best interest of the SA community. At Berri a bridge was desperately needed to support crucial SA primary industries.

Consultation with the relevant Aboriginal groups throughout the planning process was token. Wendy Chapman has admitted in Federal Court (sic) that Binalong never consulted directly with any of the organizations listed as a condition for building the bridge.

In opposition the Liberals repeatedly indicated that they would stop the Hindmarsh Is Bridge. Once in Government they commissioned the Jacobs Inquiry which examined the financial and contractual obligations in relation to the bridge. The findings are undisclosed and the report exempt under Freedom of Information. Pre-election promises were rescinded and the bridge given the go-ahead in May 1994. Michael Armitage, State Minister for Aboriginal Affairs, authorised the Dept of Road Transport to do as much damage to Aboriginal sites as necessary for construction of the bridge. At the request of the Ngarrindjeri people and after investigation by constitutional lawyer Cheryl Saunders, Federal Minister Tickner declared a ban of the bridge for 25 years. The decision to stop the bridge was on the basis of all materials submitted to Saunders. The secret women's business was just one part of the significance of the area to Ngarrindjeri people.

Attention returned to the Hindmarsh Is bridge in March 1995 with Ian McLachlan resigning, after admitting he had misrepresented events to the Australian public. McLachlan had authorised the photocopying of materials he had received which were meant for Tickner's office. This included a male staff member copying the contents of an envelope marked 'Confidential Appendices 2 & 3. To be read by women only.' He had claimed that the envelope containing the secret knowledge was neither sealed nor marked confidential.

In May 1995, Liberal Party campaigner Sue Lawrie organised a meeting of the Aboriginal women who now claim the Kumarangk women's business was fabricated (known now as the dissident women). In evidence at the Commission most of these women have revealed that they know little or none of their Ngarrindjeri language, traditional stories and mythology. Why should it be surprising that they have also not heard about the women's business? This exploitation of divisions within Aboriginal communities for political purposes can only be viewed with sadness and abhorrence.

Based solely on frenzied media reports which ensued from the dissident women's claims, the SA Government demanded that Tickner resign and an investigation be undertaken. Before the announcement of the Federal inquiry, Premier Brown had established the Royal Commission to determine 'whether the "women's business", was a fabrication'. Contrary to endless media reports Tickner did not stop the building of the bridge solely on the basis of the women's business and the contents of the secret envelopes. The basis of the Royal Commission is thus fundamentally flawed and its real purpose comes into question. In some respects the Royal Commission seems to be just another attempt to discredit Aboriginal beliefs as apart of a post-Mabo backlash. It also appears to be part of a campaign to discredit Federal Minister for Aboriginal Affairs, Robert Tickner, and to allow the reinstatement of Ian McLachlan on the Liberal frontbench in the approach to the Federal election. The women who hold strong beliefs in relation to Kumarangk have rightly said that they will not be a part of this inquisition into their beliefs So how can an adequate outcome ever be reached by this Commission?

Kumarank Coalition

Side note to above article

The next issue of ESA (to be distributed in January 1996) will feature an article by Paul Leadbeter (ELCAS (SA) Inc and Director Australian Centre for Environmental Law, the University of Adelaide), entitled Citizen Enforcement of the Development Act and the Environment Protection Act. In this Paul reminds us that "Where there is an apparent breach of the provisions of the Development Act (DA) individuals and community groups are often frustrated by the failure of the relevant authorities to take any action under the legislation regarding that breach. They should not forget that s85 of the DA provides that any person may apply to the Environment Resources and Development Court for an order to remedy or restrain a breach of the DA. Obviously, it is preferable that enforcement action be initiated by the relevant authority...However it is useful to know that if the authority will not initiate proceedings, there is the option to do it yourself. Ed"

[291]

220 The Judge found that the publication occurred on an occasion of qualified privilege in the traditional sense. I will refer to this privilege as traditional qualified privilege and it is to be distinguished from the extended defence (see below). The Judge noted that in the ordinary case the media could not take the benefit of traditional qualified privilege because publication by the media is to such a wide audience. He referred to Morosi v Mirror Newspapers [1977] 2 NSWLR 749. However, there are exceptional cases where the relevant duty and interest or reciprocal interests exist (Loveday v Sun Newspapers Ltd and Anor [1938] HCA 28; (1938) 59 CLR 503 per Dixon J at 525). The Judge found that Publication No 6 was an exceptional case. As I have said, the respondents have not filed a Notice of Alternative Contentions, and this conclusion of the Judge is not challenged. The Judge found that the respondents had made it clear that any person who unlawfully interfered with the construction of the bridge could face legal proceedings. It was this conduct which created the occasion of qualified privilege in that Professor Shearman was entitled to advise members of the conservation movement of the limits of the law. The Judge found that Professor Shearman had an interest in providing advice to members of the conservation movement as to the legal difficulties facing those members who chose to carry their protests to the point where they intentionally interfered with commercial contracts, and that those members had a reciprocal interest in receiving such advice. The Judge said that it was appropriate to refer to the proceedings in the Federal Court in order to explain the point. However, the Judge found that the defamatory material was not published for the purpose of the privilege, and therefore, malice on the part of Professor Shearman defeated the claim for traditional qualified privilege. The Judge found that the dominant motive of Professor Shearman in writing the publication was to damage the standing of Mr and Mrs Chapman in order to influence them and others to withdraw support for the building of the bridge to Hindmarsh Island. He found that the conduct of Professor Shearman was part of an orchestrated campaign to "target" and attack the interests of Mr and Mrs Chapman and to influence public opinion against the State government and others who were interested in the contract to build the bridge. In making his finding of malice against Professor Shearman, the Judge relied on the following matters:

[379]

278 The Judge said that the publication was potentially within the protection of the extended defence because the operation of the State planning laws was a matter which was properly characterised as a topic concerning (to use the Judge's words) "government and political matters that affect the people of Australia". The Judge said that each member of the community had an interest in disseminating and receiving information, opinions and arguments on this subject. The respondents have not filed a Notice of Alternative Contentions and this conclusion of the Judge is not challenged. However, the Judge found that the conduct of the CCSA and Ms Bolster was not reasonable in all the circumstances of the case. He did not consider that anyone who was responsible for Publication No 11 had reasonable grounds for believing the imputations to be true, nor was any proper step taken to verify the accuracy of the information. The Judge found that the publication was not made for the purpose of communicating "government or political" information, "but instead was published as part of the campaign to lambaste Tom and Wendy Chapman and for that specific purpose". The Judge said that Ms Bolster was at least recklessly indifferent as to whether the material was truthful and accurate. He found that the publication was actuated by malice. The Judge found that the publication failed to satisfy the conditions identified by the High Court in Lange and, in any event, common law malice independently would destroy the defence even if the other requirements were treated as being satisfied. The Judge found that Ms Bolster, as editor, published the article over the name of the Kumarangk Coalition believing that the article had shortcomings which were likely to lead to litigation at the suit of Mr and Mrs Chapman and that she knew that the writer of the publication (Ms Noack) did not want her name associated with the publication for this reason. The Judge said that the use of the name Kumarangk Coalition in the particular circumstances was indicative of a lack of bona fides. It seems that in inferring malice on the part of Ms Bolster the Judge relied on the above matters and the evidence I have identified in connection with Publication No 7. The appellants challenge the Judge's conclusion that Publication No 11 was not protected by the extended defence.

[448]

"PARTICULARS OF MALICE

(a) The relevant Defendants had an obligation to make some extrinsic inquiry as to the truth or otherwise of the words referred to before publishing the same, but failed and/or refused to do so.

(b) The relevant Defendants published the words referred to in wilful blindness as to their truth or otherwise.

(c) The relevant Defendants failed to inquire of the Plaintiffs as to the truth or otherwise of the words referred to.

(d) The relevant Defendants gave no opportunity to the Plaintiffs to comment on or answer the allegations contained in the words referred to.

(e) It is manifest from facts, and the Defendants' conduct, relating to, and/or both before and after, the publication of the words complained of that the relevant Defendants' intention in publishing the words referred to was to embarrass and hurt the Plaintiffs, such facts and conduct being -

(i) the fact of defamatory publications of the Plaintiffs being regularly and repeatedly made by the Defendants as set out in the Statement of Claim

(ii) the fact of the virulence of such defamatory publications as set out in the Statement of Claim

(iii) the fact that such defamatory publications amounted to a sustained and virulent attack on the integrity of the Plaintiffs

(iv) the fact that the Defendants' intention is and was to advance the cause of those opposed to the Hindmarsh Island bridge and/or those with an interest in embarrassing and hurting the Plaintiffs as protagonists for that bridge

(v) the fact that the first Defendant has known for some time that material published by it relating to the bridge, namely a paragraph in a pamphlet called 'Coorong Ramsar Site' relating to the reasons for decreases in bird species, is an incorrect and misleading quote from Paton Pedlar and Pedlar 1989, but has failed or refused to amend the same, and continues to publish the same

(vi) the fact that the first Defendant has so refused despite the Plaintiff's solicitor's letters of the 2nd April 1997, the 18th April 1997, the 7th May 1997and the 13th May 1997 to the first Defendant, and its letters to the first Defendant's solicitors dated 16th May 1997 and the 25th June 1997, requesting it to amend the same.

(vii) the fact that the first Defendant denies that the anti-bridge unincorporated association known as the Kumarangk Coalition is or has been located within the first Defendant's premises, despite the fact that letters dated 2nd April 1997, 18th April 1997, 7th May 1997, 13th May 1997 and 25th June 1997 have been sent to it at such address, namely 120 Wakefield Street, Adelaide, but not returned

(viii) the fact that the first Defendant has attempted to harm the Plaintiffs financially by lobbying their financiers Westpac Banking Corporation Limited to 'pull out' of the marina development, which lobbying was done by way of the first Defendant's letter to the said Bank of the 15th March 1994

(ix) the fact that the third Defendant has similarly attempted to harm the Plaintiffs financially by lobbying their financiers Westpac Banking Corporation Limited to 'pull out' of the marina development, which lobbying was done during a radio segment on the Keith Conlon Show on the morning of Tuesday 15th March 1994 being an interview with the third Defendant, and also in a paper he delivered at the 'Defending the Environment Conference' in May 1994

(x) the fact that the Plaintiffs by their solicitors wrote to the first and second Defendants on the 9th March 1994, and the first and third Defendants on the 16th March 1994, advising that the recipients had defamed the Plaintiffs, but such Defendants failed and/or refused to apologise and retract such defamations, and notwithstanding that, in respect to the letters dated 9th March 1994, the same related to the publication referred to in paragraph 21 of the Statement of Claim in respect of which the first and second Defendants do not now seek to justify the truth

(xi) the fact that, after receiving the letters referred to above, in or about May 1994 the Defendants participated in and/or promoted the establishment of the Kumarangk Coalition for the purpose of and/or knowing that such unincorporated association would be used to publish false and/or defamatory statements about the Plaintiffs without the publisher being able to be stopped or sued because the publisher could not be identified

(xii) the fact that by their solicitors' further letters dated 9th January 1996, 17th September 1996 and 14th October 1996, the Plaintiffs further sought that the first Defendant publish an apology and retraction in respect to libels published, but the first Defendant failed or declined to do so, and notwithstanding that the Defendants do not now seek to justify the truth of most of the publications referred to in the Statement of Claim

(xiii) the fact that it is manifest from the various letters to the Defendants referred to above, and from the fact that the Defendants have not made or offered any retraction or apology notwithstanding that the Defendants do not now seek to justify the truth of most of the publications referred to in the Statement of Claim, that the Defendants have a wilful disregard for such truth and/or the Plaintiffs' reputation

(xiv) the fact that, by their solicitor's letter dated 9 January 1996, the Plaintiffs complained of certain conduct on the part of the first Defendant, and requested that the letter in question be published in the first Defendant's magazine Environment SA, but the first Defendant, by reply dated 7th August 1996, declined to give them such opportunity to respond

(xv) the fact that other Defendants knew of and/or approved the conduct of named Defendants referred to above and/or participated in such conduct by reason of the facts in paragraphs 3-5 of the Statement of Claim and, in the case of the conduct of the first Defendant, by reason that the second, third and fourth Defendants were participating in and/or directing the conduct of the first Defendant as officers of it."

At a glance

Court

Decision date

Before

Source

Judgment (518 paragraphs)

CONSERVATION COUNCIL OF SA INC & ORS v CHAPMAN & ORS No. SCCIV-98-81 [2003] SASC 398 (9 December 2003)

Parties

Legislation Cited (2)

Cases Cited (17)