COMMENT by ERWIN CHLANDA
A decision on costs yesterday – awarded to the plaintiff as expected – brought to a conclusion the defamation case Framptons’ principal David Forrest (pictured below right) brought against me related to an article I published in September 2010. But the story’s not over.
The trial for fraud offences of Randal Carey, the builder associated with the collapsed Framptons New Homes Scheme, is scheduled to take place in February next year and may shed further light on what happened when about a dozen local families suffered the anguish of losing significant amounts of money and being left with uncompleted homes. The Alice Springs News Online will report on that trial as it proceeds.
In the meantime, I can reveal that Mr Forrest in the course of my trial made a bid for full ownership of the Alice Springs News. Although it could have settled the case and avoided a great deal of stress at the time and a large part of the impact that the judgment against me has had on me and my company, I rejected the bid. The trial went to its conclusion and the consequence was a $100,000 plus interest damages order against me and the costs awarded yesterday.
The approach to buy the News was made in the evening of the first day of the trial, on September 5 last year. That morning the final mediation had failed and the trial had commenced.
I have experienced proceedings in the Supreme Court many times, sitting in the public gallery as a reporter, but never before as a defendant. In preliminary hearings to my trial before several judges and finally at the trial before Justice Judith Kelly I was representing myself. I did not have the means to brief and engage counsel beyond drafting a defence.
I had been given leave to represent the co-defendant, my company, Erwin Chlanda Pty Ltd. My wife and chief reporter at the News, Kieran Finnane, was allowed to assist me and sit next to me at the bar table.
At one point a firm trial date had been set by Justice John Reeves, for him to hear the matter. Mr Forrest had already engaged Sydney QC Tom Molomby, a man reputed to be at the top of his field and who no doubt charges accordingly. He appeared on this occasion by video link, objecting to the date because he wasn’t available. Justice Reeves said he was not obliged to take into account counsel’s convenience in setting a trial date.
Nevertheless, the trial date he set was later changed – my objections notwithstanding – and Mr Forrest got his top QC. John Stirk, Mr Forrest’s solicitor, disclosed that he and Justice Kelly had been friends since university days. I did not object to her carriage of the case. Until about then I had thought Mr Stirk was my friend too. He certainly was someone who knew a lot about my business and financial position, him having often been generous with advice and his office having had carriage of formalising some of the more critical arrangements for my business and personal affairs.
For Mr Forrest, the array against us included Mr Molomby, Chris Dibb, a “junior counsel” (though by no means does this mean inexperienced) and local lawyers, Mr Stirk and Peer Schroter. For us it was the culmination of work spanning a year: formulating a defence, gathering evidence, sometimes by subpoena or court order, trying to learn the ropes and obtaining sporadic legal advice. I was fighting for my financial and professional life in a way I never had to before, on two continents and in half a century of journalism, the last 37 years in Alice Springs.
During a break in the hearing on that first trial day, as Kieran and I were under immense pressure to keep up with an unfamiliar process, Mr Molomby asked me if I wanted to discuss “selling” the Alice Springs News, as part of a settlement. His client could be interested, he said. I was stunned and said I would think about it.
He said I would have to make my mind up quickly as a settlement would only be useful if it avoided continuing further with the trial. I spoke to Kieran briefly. We were both appalled at the possibility of his client taking possession of what we had created in nearly 20 years of work, but by then we were also very apprehensive about the trial.
I may not be able to get into detail now, ahead of Mr Carey’s trial, about the information we gathered and attempted to put before the court as evidence in support of our defence. But I can say that much of what a layperson – for example, a journalist and his readers – would consider relevant to the case was struck out by the Judge out for legalistic reasons.
The full story behind the Framptons New Homes fiasco, which was the context for me publishing a string of articles including the one sued on, and for my defence, had been decimated. Had I been able to afford legal representation, by someone experienced in defamation law as well as the rules of evidence, I am quite confident that a lot more evidence would have seen the light of day, especially as in many cases the reason for striking out was “form” – the way we had put it. When the reason was “relevance” it appeared to us to be very narrowly defined, and hardly any explanation from me was sought by the Court.
So, we agreed to meet with Mr Molomby, at the end of the day at the Red Ochre restaurant. We expected to see only him but instead it was the full catastrophe – Mr Dibb too, and Mr Stirk and Mr Schroter. Mr Stirk and Mr Schroter – as locals familiar with the News – led the discussion. Mr Schroter eagerly quizzed me about technical matters in relation to our online publishing. Both he and Mr Stirk wanted to understand our copyright arrangements and it was Mr Stirk who blithely suggested that Kieran’s copyright should form part of the deal, even though Kieran was not a defendant.
We were shocked by the apparent extent of the deal being proposed, shocked particularly that locals could be promoting it.
Nonetheless, we wanted time to think and asked for the proposal to be put in writing. The same evening we received an email from Mr Schroter outlining a detailed proposal – subject to approval by Mr Forrest: entry of judgment in favour of Mr Forrest, $20,000 in cash by way of damages, an apology in terms dictated by them AND the Alice Springs News in its entirety, its masthead, the website, phone numbers, email addresses, contact book, all archival material – more than five million words – and all copyright including that held by Kieran.
We didn’t actually think Mr Forrest was entertaining a new career in newspaper publishing. That wealth of material, our work of 20 years, a rich vein of the town’s recent recorded history, was surely headed for the dustbin. All this to bury my investigation into the Framptons’ fiasco? No doubt that was part of it. (Google our site for details.)
But there was more, which Mr Forrest made clear at the trial. Our archive also contains articles about his and his family’s involvement in the collapse of the Territory Tool and Gun company in 2001, an ongoing sore point for him. (PAWA sells land in bid to recover debt and PAWA land deal: still no answers. Both reports carry my by-line).
Accepting Mr Molomby’s deal could have made something very unpleasant for us go away but we couldn’t do it. And so we went through the trial to the best of our ability and suffered its outcome and lived to publish another day. The judgement and now the costs decision have forced me into bankruptcy, but I don’t owe anyone a cent, apart from Mr Forrest.
Note: I offered Mssrs Molomby, Stirk and Schroter right of reply to this comment. They did not respond. We have lodged complaints with the NT and NSW law societies.