Australian defamation law has been held up to a fair amount of a hatred ridicule and contempt this month. Ten days ago the chairman of the Aboriginal and Torres Strait Islander Commission, Geoff Clark, announced that he would not sue the Fairfax newspapers over very detailed allegations they published asserting that he had sexually assaulted four women in the 1970s and 1980s. He said it that his legal advice was that the trial would take between 12 and 18 months in preparation and take between four and eight weeks in court.
“I am that further advised it would be unwise for me to immediately retaliate to the gross libel by issuing legal proceedings unless I am prepared to suffer the considerable financial consequences of a legal war of attrition,” he said.
The Age reporter Andrew Rule responded by saying, “I think it’s code for I’m not going to sue because it’s too risky to do so. We here regard it as confirming our case.”
However, Mr Clarke’s point was given some strength this week with the decision in the John Marsden case. Masden won his defamation action against Channel 7 after a six-year battle. He won $575,000 and he was awarded his legal costs estimated at $6 million. Channel 7’s costs are estimated to be about $12 million. There is likely to be a shortfall between the costs awarded to Marsden and the actual amount he will have to pay s own lawyers. It will eat into his $575,000 and verdict.
This is fairly typical of defamation cases. Though the figures may not be as high, the proportions are about right. If the media defendant loses, the result is: lawyers 25, plaintiff 0, media (read advertisers and consumers who it pay for media services) -25. If the media defendant wins it is: lawyers 25, plaintiff -10, and media defendant -15.
Much of most successful plaintiff’s verdicts in defamation cases are eaten up in legal fees. In short, the defamation law does not proivide a remedy, except for the very rich who can afford the risk of obtaining a verdict.
As Marsden said, “This case should serve as a warning to every person here today, to every family and to every politician that the price of justice in Australia has become so expensive that most people simply cannot afford it.”
It gets worse. Even if a plaintiff gets a verdict, it may not amount to vindication. As Marsden himself said after his case, “”Although I have one, I have lost. I will remain for ever tainted by the false claim that I was a pederast.”
In short, the defamation law which is supposed to provide restoration of reputation does nothing of the kind.
Meanwhile, up at Parliament House in the adjournment debate last week, a member of parliament, Senator Bill Heffernan, could get to his feet and make allegations of sexual abuse against a leading member of the indigenous community, Terry O’Shane, with impunity. The allegations were made despite the fact that there was a court injunction against a newspaper which intended to make those very allegations against that person. O’Shane’s only redress is to have a statement of his own tabled in the Parliament.
And also last week we had the case of the Federal President of the Australian Medical Association, Kerryn Phelps, filing for defamation because the Minister for Health, Michael Wooldridge, refused to apologise for an unsubstantiated claim that she was not medically qualified. This one seemed be a very childish little spat. The fact that Dr Phelps retains her position is for all the world to see that she is medically qualified and that her professional body has every confidence in her. It seems like a very expensive waste of the court’s time.
These cases show several weaknesses of the defamation law and practice.
Costs put it out of reach; people can be attacked with impunity provided it is done artfully — either in Parliament or by clever use of existing defences; and the law allows people to take action for a far too broad range of things — anything that would ”lower them in esteem in the eyes of right-thinking people”. This is stupidly broad. The law should concentrate on severe allegations.
On costs, defamation is the prime example of putting the law beyond reach. It need not be the case. Lower courts in Australia deal with matters fairly expeditiously and fairly cheaply. It seems that the more money there is at stake the more complex a case becomes. The complexity is not generated by the facts or the legal issues, but rather by the capacity of the legal profession to artificially manufactured complexity whenever there are large sums of money around. For example, if the Lang Hancock fortune had only been a few thousand dollars, the challenge to the will and subsequent proceedings would have been dealt with much more quickly and cheaply.
Mr Clark is in an invidious position. There is no reasonably cheap way the allegations in the age can be tested. The practice of defamation law has got out of hand. The rich and powerful often do battle with rich and powerful media organisations. Both have very deep pockets which encourages the development of complexity which then the becomes normal practice which applies to future cases for both the rich and poor – thus shutting the poor out of any legal redress.
I think the answer is to cap the damages available in defamation actions, or not have damages at all. Once you do that, the big name lawyers will desert the shop. The important thing, surely, with defamation is that a court expeditiously decides whether the publication was justified. The level of damages is irrelevant compared to a solid, speedy court statement of vindication – either for the defamed person or for the publisher. Lower courts deal with dozens and dozens more trials per judicial officer per year than higher courts, but defamation invariably goes to higher courts.
It should only take three or four days of hearing to look at the evidence of the four women who gave statements to the Age in the Clark case, for example. The Marsden case was absurd in its complexity. The judgment ran to 2339 pages. The case rambled through the courts for weeks on end. Nothing has changed since Charles Dickens wrote about the case of Jarndyce v Jarndyce in Bleak House a century and a half ago.
And what a bleak house the defamation law and practice has proved this week – – no remedies, just pots of money for lawyers.