Australia’s biggest SLAPP abusers “Strategic Lawsuit against Public Participation”

I only recently became aware of the term “SLAPP lawsuits”, which corrupt companies use to silence critics, because it is about to be tested in the NSW Supreme Court on the 4th of August in the Capilano Honey and Ben McKee v Simon Mulvany defamation case.

It is not just companies with low profiles who use SLAPP lawsuits. McDonalds tried to silence critics in England in 1997 in what became known as the McLibel Trial where they were trying to conceal their grubby corporate culture of cruelty to animals, exploiting children and underpaying staff. (Click here to read more)

When I looked at the definition and characteristics of SLAPP lawsuits I realized that is exactly the type of court cases that Kerry Stokes has been running against myself and others. In fact I suspect Kerry Stokes and Seven West Media are the biggest SLAPP lawsuit abusers in Australia.

What are Slapp Lawsuits? Strategic lawsuit against public participation.

Wikipedia says:

A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech.

The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.

There is a difficulty in that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims. Thus, anti-SLAPP laws target tactics used by SLAPP plaintiffs. Common anti-SLAPP laws include measures such as penalties for plaintiffs who file lawsuits ruled frivolous and special procedures where a defendant may ask a judge to consider that a lawsuit is a SLAPP (and usually subsequently dismiss the suit).

Anti-SLAPP laws occasionally come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Nonetheless, anti-SLAPP laws are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.

Characteristics

SLAPPs take various forms. The most common used to be a civil suit for defamation, which in the English common law tradition was a tort. The common law of libeldates to the early 17th century and (unusual in English law) is reverse onus, meaning, once someone alleges a statement is libelous, the burden was on the defendant to prove that it is not. In England and Wales, the Defamation Act 2013 removed most of the uses of defamation as a SLAPP by requiring the proof of special damage. Various abusive uses of this law including political libel (criticism of the political actions or views of others) have ceased to exist in most places, but persist in some jurisdictions (notably British Columbia and Ontario) where political views can be held as defamatory.

A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.

Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants’ costs even if this clearly costs more to the plaintiffs.

Several jurisdictions have passed anti-SLAPP laws, designed to quickly remove cases out of court. In many cases, the plaintiff is also required to pay a penalty for bringing the case, known as a SLAPP-back.

Australian SLAPP laws

In the Australian Capital Territory, the Protection of Public Participation Act 2008 protects conduct intended to influence public opinion or promote or further action in relation to an issue of public interest. A party starting or maintaining a proceeding against a defendant for an improper purpose may be ordered to pay a financial penalty to the Territory. (Click here to read more)

Judges who assist – Bruce McWilliam

To run SLAPP lawsuits it generally requires judges to aid and abet the litigants. Bruce McWilliam heads up the legal team at Seven West Media who have been running several SLAPP lawsuits against me over the last 3 years. On Saturday (8/7/17) Bruce McWilliam bragged about his relationship with one judge in an interview with Fairfax Media as per the screen shot below:

The same story spoke about Bruce McWilliam’s and his wife’s close relationship with Justice John Sackar who will hear the Seven West Media v Amber Harrison matter on Monday. The article says:

“McWilliam’s connections now spread so wide that he is all but tripping over them. In April, for instance, it was disclosed that the judge hearing the Amber Harrison case in the Supreme Court, Justice John Sackar, had known McWilliam for years and done academic research with McWilliam’s wife, a mediation lawyer.” (Click here to read more)

Having judicial connections comes in very handy when running multiple SLAPP lawsuits to silence critics and whistleblowers.

Gunns SLAPP lawsuit against 20 people

Another well known SLAPP lawsuit was by Gunns which reminds me a lot of how Seven West Media are dealing with social media users. The SMH wrote about the Gunns SLAPP lawsuit in 2011 and said:

THE first time Alec Marr was arrested in front of a Gunns bulldozer was in 1987, as he protested against the logging of Tasmania’s Lemonthyme forest. Gunns was then, in his words, a small company with a bad attitude.

Seventeen years later, Marr was served with a writ as lead defendant in Gunns v Marr, Australia’s biggest strategic lawsuit against public participation, or SLAPP suit. Gunns was then a billion-dollar forestry organisation run by powerful Tasmanian businessman John Gay. It was determined to destroy its opposition, seeking $6.4 million in damages from people who could not afford to pay.

Writs were issued to the so-called ”Gunns 20” shortly before Christmas in 2004. Two days later, Gunns revealed plans to build a $2.2 billion pulp mill at Bell Bay in the Tamar Valley. The lawsuit designed to crush opponents of the mill would prove to be Gunns’ grave error, stirring outrage that would shatter the company’s legitimacy here and abroad.

Gunns even sued an elected politician, Australian Greens leader Bob Brown. ”I knew better than to call the lawyers,” says Brown. ”The first thing I did was to call a press conference. Within 24 hours we had a candlelight vigil for democracy, in Hobart. It was like the Prague Spring.”

For corporate Australia, Gunns would become a case study in how not to deal with community protest. Far from being cowed, Marr and his colleagues ramped up an unprecedented campaign, targeting Gunns’ bankers and shareholders, Japanese customers and European partners, and ultimately bringing one of Australia’s most controversial companies to its knees, slashing its market value and ousting divisive chairman Gay. (Click here to read more)

If I was a shareholder in the Kerry Stokes’ companies Seven West Media and Capilano Honey I would be selling now as I have no doubt their share prices will head the same way as Gunns and for the same reason of running dodgy SLAPP lawsuits.

Whats happening now with SLAPP lawsuits is not uncommon. The website New Matilda wrote in 2010:

“Due to the prohibitive costs of mounting a defence, defendants often agree to settle their cases out of court, undertaking agreements to be silent on the issue or to publicly retract their criticisms. If they lose their case, they may be forcibly silenced by an injunction order preventing them from speaking against, or taking protest action against, the plaintiff.” (Click here to read more)

The big difference now is that small websites and bloggers are starting to grow to a size where they can have impact. And that impact is starting to be felt by the companies instituting SLAPP lawsuits so those lawsuits will backfire just like what happened with Gunns a few years ago.

If you have time make sure you go and support Simon Mulvany who publishes the Save The Bees Facebook page at his hearing on the 4th of August in the NSW Supreme Court. It is a hearing to have the suppression orders against him lifted and in effect have the claim against him buy Capilano Honey and their CEO Ben McKee be declared a SLAPP lawsuit.

If you know of other companies using SLAPP lawsuits please add to the comment section below as I will keep investigating and reporting on this issue as SLAPP lawsuits undermines free speech.

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18 Comments on “Australia’s biggest SLAPP abusers “Strategic Lawsuit against Public Participation””

  1. Ned July 8, 2017 at 10:26 pm #

    Have to love the internet and freedom to express, outside the fake msm.

  2. Brett July 8, 2017 at 10:42 pm #

    Why not just flat out refuse to accept the Jurisdiction of the Court and the Slapp Law Suit? That way they cant apply it to you the living flesh and blood man. Stay out of their Admiralty Jurisdiction.

    • Joe Zidar July 8, 2017 at 11:02 pm #

      Brett, they are very wise words and another gentleman recently provided me with the same advice. Even if you have the ability to self-litigate, the Coporation will not be defeated, and will do whatever it takes to destroy you.

      How do we create a level playing field??? Until this question can successfully be answered, then the common person has (2) options:

      1. Concede
      2. Get quashed

      Until the people start fighting back and start supporting people like SD in masses, then the SYSTEM we have today will always be victorious..

  3. Whistleblower July 8, 2017 at 11:33 pm #

    Slade waterhouse lawyers in Brisbane are acting for a plaintiff in a SLAPP LAWSUIT

  4. GordonC July 9, 2017 at 7:36 am #

    Here is a recent SLAPP suit in the Federal Court Sydney, where the four ‘SLAPPER’ companies had to cut and run and got seriously burnt. Their blunder into litigation against an unrepresented activist (and Google) without due diligence, cost them around $80,000 in legal fees. http://rodgersreidy.sucks

  5. allan moore July 9, 2017 at 9:51 am #

    Without a doubt, one of the most ruthless and corrupt industries that totally abuse SLAPP lawsuits is the Shopping Centre Industry. An Industry that enjoys huge Political and Judicial protection throughout Australia, including our Federal bodies who’s job it is to protect individuals and companies from corporate thugs.
    Due to being a victim of one of the biggest cover ups in this industry’s history
    i have spent 10 years compiling a book on the the major shopping centre owners and managers and their acts of bastardry against tenants, and the protection they have received or forced from all levels of Government, Politicians including Ministers, Police, both State and Federal, and at all levels of our Justice system.
    They will all b exposed through their own documentation in the book to be published mid 2018, The first copy off the press will be given to Shane, it’s contents are explosive, i don’t intend to make money out of this book , it is purely to expose the industry it’s major players and their modus operandi and the protection afforded them. It will be dumped all over the internet for all to read.
    A teaser here that will be in the book, Major Fraud, potential $300 million dollar fines, ACCC’s involvement and investigation
    A famous man once said,something along the lines “Do unto others as they would do unto you” payback will be a bitch.

    • GordonC July 9, 2017 at 10:36 am #

      Hi Allan,
      Given my publication at http://accc.report (THE ACCC HAS FAILED FOR 8 YEARS) I am really interested in what information you have on the ACCC.
      Perhaps you could visit the website and provide info in the ‘contact form’.

  6. Jonde July 9, 2017 at 10:10 am #

    The tactics under the SHLAPP heading, other methods of quashing freedom of speech, and hard-fought-for basic freedom of life is merely a variation of ‘jack-booting’ as witnessed in other countries with severe dictatorship which removes all rights of the individual inhabitants, to which the average Joe Public comment is, “They (the people) should do ‘something’ to stop it.”
    Meanwhile, abusing a referee over a given penalty while watching a ball game on TV is far more important.

  7. Kenneth-Clyde Ivory July 9, 2017 at 11:20 am #

    Other forms of SLAPP misconduct comes about by instances such as the ASX and ASIC who were both strategically stacked and rigged ready for the Telstra three (3) share floats.

    During the Telstra one (1) and Telstra (2) share float David M Hoare was not just the Chairman of Telstra but was also the Chairman of his Mallesons Stephen Jacques (MSJ) law firm partnership, who were on Telstra retainers and also were the legal advisory firm to Telstra during the Commonwealth’s three purported Telstra Share Floats.

    Hoare was then strategically positioned to head the ASX ready for the Telstra three (3) purported share float and his two IC was MSJ Managing Partner Tony D’Aloisio.

    Then on 09 October 2006 a former MSJ Partner Douglas Gration as the Telstra Board’s Company Secretary lodged with the ASX the still duly TELSTRA BOARD MEMBERS FULLY UNSIGNED OFF purported Telstra three (3) prospectus with his MSJ partners.

    On the same 2006 date Treasurer Peter Costello appointed D’Aloisio to head ASIC, to conceal insider trading and market manipulation frauds by Cabinet Members. A few weeks latter D’Aloisio got paid out over $7.5 million dollars to finish up early at the ASX to start at ASIC before the Telstra three (3) float closed off.

    Also the ACMA was also stacked and rigged with MSJ people etc. They also are masters at getting away with running SLAPP DEFENCES and SLAPP ACTIONS against those who get in their way. They have unfretted judicial and political protection of past and present by politically stacked purported judiciary, who they have controlling holds over for crimes committed when they were legal counsel who behind the scenes were caught out for wilfully perverting and defeating the course of justice.

  8. Mike Howard July 9, 2017 at 2:35 pm #

    Under sections 117 and 118 of the Constitution of the Commonwealth of Australia, the Australian Capital Territory Protection of Public Participation Act 2008 is applicable in every other State of the Commonwealth.

  9. Jonde July 10, 2017 at 10:36 am #

    Mike, the situation relates to the perpetrators being private corporations, each with Australian Business Numbers. (ABN) operating under their own rules with no interest in complying with The Australian Constitution.
    The perpetrators will not be punishing themselves for operating ouside the Rules and Regulations of The Australia Constitution.

  10. Vinny July 10, 2017 at 5:25 pm #

    I did not think corruption in the judiciary, politics and big business could get any worse. How wrong was I. God won’t help Australia Mr Gough. We need a lot more Shane Dowling’s to save us from these parasites.

  11. John Wilson July 10, 2017 at 6:14 pm #

    Why are People avoiding the obvious? Trial by Jury is Democracy. Democracy is Common Law…the Law of the People, by the People and for the People….made by the lawful judgments of free men…..made by Juries. No free man shall be imprisoned or dispossessed unless by the lawful judgment of his equals which is the law of the land (Magna Carta). Outside of the Federal Parliament is the Magna Carta Monument. Inside is the Confirmation of Charters. Do they need flashing neon lights?
    Yours sincerely,
    John Wilson.

  12. Tracy Leigh July 16, 2017 at 10:20 am #

    I am facing a SLAPP defamation and injurious falsehood suit against me by the manufacturer of my $73,000 lemon caravan, Lotus Caravans. I run a large Facebook group, Lemon Caravans & RVs in Aus, that now has 17,500 members. At the time the writ was filed I had 3000 members.

    I have been fighting for a refund for my lemon caravan since August 2015 but the legal system for consumers is fundamentally flawed and it will cost me more to go to court than the caravan is worth. There is a loan over the whole amount of the caravan so it isn’t even an asset.

    When I did say that I was going to court for a refund of the caravan, three weeks later I was threatened with defamation and injurious falsehood for my comments on my Facebook group page. I was told to close down the group and cease posting about the company and my caravan or the writ would be filed. At the same time they said they were keen to negotiate a settlement on the caravan. I took this as a bullying threat but when I didn’t accept their ridiculous negotiating terms (which included writing ‘honest and constructive posts’ i.e. positive posts they gave me an ultimatum with a few hours to respond. I was having an afternoon nap and when I didn’t respond they filed the writ.

    The Plaintiffs know I am a disability support pensioner with limited assets and are claiming over $500k in damages. They will only settle if I agree to remove all my posts about the caravan and the company and agree to be gagged in the future. I have refused.

    They also know that I am telling the full truth as they have the reports about my caravan and also reports from government inspections that showed they are making caravans that are non compliant to Australian Standards, which is illegal and dangerous.

    This case is a huge public interest case. It goes to the heart of a consumer’s rights to freedom of opinion and expression when they purchase a defective product or service and tell others about that in a public forum, such as a Facebook group or review sites such as promuctreview.com.au . I am fighting for all consumers’ rights by standing up to this SLAPP suit.

    At the Directions Hearing in the Victorian County Court I asked the judge how do I go about claiming that the suit is vexatious litigation. He told me how to do it but warned me that the Plaintiffs had presented a case to answer and that it was unlikely I would be successful. It would then cost me their legal costs. So once again the innocent party is thwarted if they have no money.

    In their reply to my defence they have now accused me of attempted extortion! They are really ramping up the threats to try and scare me into settling. I asked the Directions Group how to get this struck out as it is against the rules of the Court to introduce a claim that is not related to the originating claim. No answer.

    So I am self representing and preparing for trial in February 2018. I have so much evidence to show I am telling the whole truth but the Plaintiff’s solicitors have indicated that they are going to fight hard against admissibility of this evidence.

    I have crowd funded enough money to get my defence written by a leading defamation barrister but doubt I can raise the tens of thousands to be represented in court. I am undeterred. I am in a no win situation in any case. Either I capitulate, allow them to win and bankrupt me with a settlement or I make a stand at trial, possibly lose and am bankrupted with the damages award. However, the truth will come out about them and the industry at trial, so even if I lose, I will win.

    They have tried to ruin my life but so far have failed. I have amazing support from my group, who are still trying to raise money for me. It has been a tough struggle mentally and physically with my disabilities but I won’t ever be silenced.

    So if there are any solicitors reading this who would be willing to assist me pro bono, please get in touch. I have a willing barrister but I can’t directly instruct him. I need a solicitor and have been unable to find one that will work pro bono or even no win no fee.

Trackbacks/Pingbacks

  1. Seven’s lawyer tells court journalist should be jailed for naming Armitage and Gibney in 7 Scandal | Kangaroo Court of Australia - July 23, 2017

    […] is there is no legal justification for the suppression orders and they are just part of another SLAPP lawsuit (Strategic lawsuit against public participation) being run by Seven West Media and Kerry Stokes. It must be noted that Justice McCallum is good […]

  2. Justice Lucy McCallum is again taking bribes from Kerry Stokes and Channel Seven | Kangaroo Court of Australia - July 29, 2017

    […] Matilda on top of his frivolous and vexatious cases against Simon Mulvany and myself. The list of SLAPP lawsuits by Stokes and Seven keeps on […]

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