ANY win by a defendant in a defamation action is usually only a pyrrhic one. Three years ago a former public servant turned consultant, Paul Thistlewaite, threatened to sue The Canberra Times over what seemed like a straightforward report arising out of proceedings by the Senate Estimates Committee. He wanted an apology and reserved his rights for damages.
He asserted the article contained the imputation that he had taken advantage of his position of specialist knowledge in the Public Service to obtain a consultancy doing the same work for more money _ what is now known as the revolving-door syndrome. The Canberra Times said if the imputation arose it was out of parliamentary proceedings.
(Those readers wanting to further information can look at the Hansard of Senate Estimates Committee A from late August to November of 1989 and articles in the computers section of The Canberra Times articles on September 4, October 2 and November 30 of 1989 available in the National Library.)
The Canberra Times could have agreed to Dr Thistlewaite’s apology and given him costs and or damages of say $5000 to get the case out of its hair. But the paper decided to make a stand. There would be no apology and no correction and no damages.
If the paper cannot report parliament without paying up for what I would call a meritless case, the paper may as well stop publishing and go into margarine production.
In 1989 a view still persisted around town that The Canberra Times would always settle defamation actions because it cost too much to fight. The former is not true the latter is.
Taken in isolation, it would have made good commercial sense in this case to settle for $5000, even though the paper was convinced the journalism was good and it was in the public interest that we report proceedings of parliamentary committees.
However, every settlement like that adds to the reputation of a newspaper as an organisation that will buckle just to get cases out of its hair cheaply. It only results in more plaintiffs in the long run.
So this time the paper stood, knowing it would cost more in the short term for this case, but pay in the long term because people in the legal fraternity and their plaintiff clients would get the firm message that there is no point trying on meritless cases in the hope of a quick settlement for a few thousand. The paper also stood on principle.
It did cost more, but not as much as the paper expected. It ended up with the paper paying perhaps between $10,000 and $15,000 in legal fees to file defences and all the legal mumbo jumbo that goes with these cases. However, the paper not only stood firm on the question of no correction, apology or damages, but told the plaintiff that his virtually meritless case had put The Canberra Times to great legal costs and that it would demand payment for them.
It took nearly three years for the plaintiff and his legal advisers to get the message. Even if the plaintiff had no concern about his own costs, he might have to pay the paper’s. And those costs were getting higher and higher.
One of the ironies is that most of these cases are settled on a “”terms-not-for-publication”. What that means is that every lawyer in town is allowed to know what the settlement is. It only takes one of the dozen or so people involved to whisper it to one outsider and the whole legal-bureaucratic elite of Canberra knows. But poor of Joe Public never does.
This time, however, there was no such clause. I can now report that Dr Thistlewaite paid $5000 to The Canberra Times last week in full settlement of the case.
The Canberra Times is still out of pocket, but perhaps not to the extent that it could be described as a pyrrhic victory. As usual, the lawyers on both sides won handsomely. Incidentally, there have been at least four others recently who have had to pay costs to The Canberra Times after seeing their cases did not have enough merit to go on.
The lesson for those aggrieved by something in the newspaper is not to run off to a lawyer and assume, on the strength of the Ettingshausen or Carson cases that there is a pot of gold in it. Try contacting the paper first. The corrections column is testament to the willingness of the paper to correct when it is wrong. Suing for damages is a twin-edged sword.