In the lead-up to the no-WTO protests in Sydney in Sept...
In December 2004, Tasmanian timber and forestry giant, Gunns Ltd launched legal proceedings in the Victorian Supreme Court against 3 environmental organisations and 17 individuals arising out of the campaign to protect Tasmania’s old growth forests. The 216 page writ claimed $6.3m damages for a “corporate campaign” of alleged unlawful lobbying of Gunns’ banks, Japanese customers and others, and also from a series of forest protests and a general conspiracy against the company.
It was a high profile case as the defendants included Senator Bob Brown, the Greens Tasmanian leader, Peg Putt, and one of Australia’s largest environment organisations, The Wilderness Society. Concerns were immediately expressed about the implications for free speech and the right to protest. The concerns were heightened when, just of a few days after the writ was issued, Gunns announced its intention to build the largest pulp mill in the southern hemisphere in the north of Tasmania. It may have just been a coincidence of timing, but some viewed the writ as a pre-emptive strike against pulp mill opponents Whatever the truth, the fear of litigation was always in the background of the pulp mill campaign, but the mill itself was also tainted from the beginning.
For the next 5 years the Gunns 20 case played out in two parallel streams – one legal and one activist, but always against a background of the broader pulp mill and forests campaign.
When the case began, the defendants scrambled to get legal advice and representation – some paid, others sought pro bono support. Given its high profile, there was in fact no shortage of lawyers prepared to act, and in the end 6 legal teams were assembled to represent different combinations of defendants. When the court first heard the defendants’ application to strike out the unwieldy statement of claim, Gunns were probably surprised by the wall of silk the motley activists had assembled.
Before the hearing of the application to strike out the statement of claim, Gunns lodged a second, longer statement of claim purporting to give more details of the vaguely alleged conspiracy and the planning of the actions complained of, but to no avail. With some harsh comments, Justice Bongiorno threw out the statement of claim as it did not state a case clearly against the defendants. Gunns returned with a third statement of claim, including increased claims for damages, but it too was struck out.
After two years and much pointless expenditure, Gunns sacked its legal team and appointed Australia’s largest legal firm Clayton Utz, and there was a new approach to the pleading. Three defendants were dropped from the case (including the Greens MPs), the one claim against Frank Nicklason was made into a separate defamation case, and all the pleadings about the campaign in relation to Japanese customers, the banks and the Banksia awards were dropped. The fourth version of the statement of claim was allowed to proceed based just on the claims around particular forest protests – still big, but a much clearer and more manageable case.
Over the next two years, there were a variety of legal moves which saw discreet claims settled and/or agreements to drop more defendants from the case, before a protracted battle begun over discovery of documents. Given that Gunns claimed that The Wilderness Society was behind all the forest protests, it sought evidence in the organisation’s documents. The Wilderness Society had always said that they had been involved in only of the actions, had settled most of that, and resisted handing over membership records, minutes of meetings and planning documents which were not relevant. Gunns sought court orders for more documents, lost, appealed and lost again – leaving them with little evidence of involvement of the only defendant who could realistically pay any damages. In March 2009, mediation saw The Wilderness Society walk away from the case with a payment of $350,000 for its costs – recouping the money it had paid in strategic settlements along the way and claiming a huge win.
With The Wilderness Society and its five officers gone from the case, the original $6.3m grand conspiracy case had become a small case against largely impecunious defendants. In January 2010, they too were dropped with a payment of $155,000. With the case against Frank Nicklason also settling, after 5 years the Gunns 20 case ended.
As noted above, the Gunns 20 case was never only or simply a legal case. It had political dimensions and raised key issues about the right to protest. When the defendants were sued, there were protests about the case, and a support organisation, GVMO (Gunns v Marr & Others) was established to raise funds and assist in legal research and defence coordination. While legally the defendants could not call on Gunns to drop the case, they could and did use the case to highlight the clear-felling of Tasmania’s old growth forests. Public meetings were held around the country, and in a statement that they would not be intimidated, delivered a birthday cake to Gunns’ head office on the first anniversary of the writ. And most importantly, the campaign against the pulp mill grew and grew.
With the case focussing attention on the Tasmanian forests, and with the international networks of The Wilderness Society and Greenpeace (who were not sued but had done two of the protest actions in the case) activated, environment groups in Europe, Japan, and the United States started raising issues about what was happening and about the environmental certification of Gunns woodchips. The issues were raised in the UK parliament, with the European timber certification bodies and directly with Gunns’ Japanese customers. Given that the largest amount of damages claimed in the case was for the “Japanese customers campaign”, it was ironic that the case itself led to more pressure on those companies to stop buying woodchips from native forests.
The case, plus the unfolding pulp mill saga of political interference in planning processes and Gunns appearing to write its own laws and approval conditions, meant that Gunns effectively lost its social licence. Protests grew across the country, and without that social licence and with the loss of a compliant government, Gunns found getting finance for the mill impossible. The company’s fortunes tumbled. From a share price of over $4 when the Gunns 20 case began, Gunns share were worth around 50c by the end of the case. Its old guard management left, and the new management set about re-shaping the company and re-building its social licence. This ushered in a promising period of talks between the government, industry and environmentalists aimed at ending the long running forestry disputes in Tasmania.
At the time of writing (April 2012) it is still not clear whether the forestry deals hammered out over the last few years will last, and whether Gunns will eventually build its re-modelled pulp mill, but the Gunns 20 case stands as a great lesson in the importance of a company’s social licence and the dangers of suing political opponents.
However, while ultimately victorious, the Gunns 20 case was not without cost for the defendants. The Wilderness Society spent over $1m in legal costs and used a lot of staff and activist energy which could have gone to other environmental campaigns. The Huon Valley Environment Centre continued to campaign and be a hub for organising protests in the forests in the south of Tasmania. The individual defendants got on with their lives: some left Tasmania or retired from environmental activism – either burnt by the case, or just because other things came up – while others became more hard-nosed activists. Most tragically, the 13th defendant, Ben Morrow died of cancer just weeks after the case against him was dropped.
The legal legacy of the case is hard to tell, but it did spawn a campaign for so-called “anti-SLAPP” (Strategic Litigation Against Public Participation) legislation to protect the right of public participation and protest. Some of the edge was taken off the campaign by the passing of new defamation laws in all states in 2005, and by the then moves towards a national bill of rights. However, in 2008, after a campaign by The Wilderness Society and on the initiative of the Greens, the ACT parliament passed a watered-down, but symbolically significant Protection of Public Participation Act.
The Wilderness Society
Senator Bob Brown
Peg Putt, MP
The Huon Valley Environment Centre
Dr Frank Nicklason
Doctors for Native Forests Inc