The KLDF has received a complaint from the Chapmans' lawyers that material on this website defames their clients. In order to fairly present the issues involved, we have reproduced their complaint and the KLDF reply below.
Lynch & Meyer Lawyers
[Letterhead]21 December 1998
The Secretary
Kumarangk Legal Defence Fund Inc
PO Box 3168
Rundle Mall
SA 5000Dear Secretary,
Re: www.green.net.au/hindmarsh
We act for Tom and Wendy Chapman.
We refer to material published by you at the above internet site.
On our instructions, such material defames our clients in carrying imputations that:
there may be grounds to criticise our clients' planning processes related to the bridge (by referring to that defamation sued on)
there may be grounds to criticise our clients' consultation with Aboriginal people (by referring to that defamation sued on)
there may be grounds to say our clients were involved in "police irregularities at an anti-bridge protest" (by referring to that defamation sued on)
our clients abused the processes of a court with a view to silencing proper anti-bridge protest (by referring to our clients' defamation actions as "SLAPP suits" and "Strategic Litigation Against Public Participation")
our clients used such suits to curtail others "basic civil rights of freedom of speech"
our clients are abusing the "civil liberties" of others.We first became aware of this site on 21st December, and we note further that it is false and misleading in failing to detail the current position of the legal cases in a section under the heading "News of the cases". Most importantly, the outcome of Chapman v Allan and Draper has not been noted despite the fact that the decision was handed down nearly a month ago.
The site makes it obvious that you are privy to information relating to the progress of the cases, but lest you be unaware of the decision, we are instructed to specifically draw your attention to it. The decision was handed down on 26th November 1998 in the District Court by His Honour Judge Lowrie. Amongst other things, this case was brought in relation to allegations in the Green Left Weekly that, in connection with the bridge, our clients had failed to carry out planning approval processes correctly, and had failed to proper [sic] consult Aboriginal people. The Judge's findings of fact (pages 49 -51 of his decision) included:
" During [the time of the planning application, the Chapmans] had, of their own volition, been aware of sensitive Aboriginal areas and had consulted with all authorities in and about the preservation and restoration of such sites ... Dr Draper was initially involved when some Aboriginal artefacts and skeletal material had been discovered on Hindmarsh Island and thereupon the Chapmans consulted with all relevant persons to ensure that all such material was properly restored and preserved. All actions by the Chapmans after this discovery showed a very proper and caring manner ... The Chapmans, in regard to the development of the marina extensions which subsequently incorporated the bridge, carried out every requested step by all authorities including the Aboriginal Heritage branch of the Department of Environment and Planning to their complete satisfaction. There is no basis whatsoever for any criticism in any way of the manner in which the Chapmans applied themselves to either their legal and/or moral obligations regarding the development of land at Hindmarsh Island and the bridge ... ... that the Chapmans did all that they were required to do in and about the development process."In his lengthy judgment, Judge Lowrie also sets out in detail the history of the bridge planning process, and the Chapmans' consultation process. We commend this decision to you. The case is called Chapman v. Allan and Draper, and is District Court judgement number D3915. A full copy of the judgement is obtainable via email or in hard copy from the South Australian Supreme Court Library, telephone number 8204 0488.
Our clients have regularly and consistently been accused of failing to properly carry out planning processes for the bridge, and failing to properly consult Aboriginal people in connection with those planning processes and the planning approval issued. Our clients have, since such allegations were first raised, regularly complained that they are false and defamatory of them. The correctness of their position has now been accepted by a Court, although we note that Dr Draper has appealed the decision.
Background
A bridge writ large
(covers the launch of this website)
Defamation ruling against Green Left article
Fresh evidence threatens bridge
It is important that you be aware of this decision. It is also important that you be aware that the purpose of this letter is to seek that you stop publishing defamations complained of by our clients.Our clients have no objection to lawful protest against the bridge, and this includes the right to freely make statements and express opinions about the bridge and issues to do with it, so long as such statements and opinions are not defamatory of our clients (that is, both false and derogatory of our clients).
Our clients firmly believe that freedom of speech is an important civil right of all Australians. However, the freedom of speech is subject to an equally important qualification which protects an individual's right of reputation. We refer you to Article 19 of the International Covenant of Civil and Political Rights. In other words, human rights charters and also the law attempt to find a proper balance between two very important civil rights, namely free expression and individual dignity.
On our instructions, the repeated assertions of those opposed to the bridge that our clients' defamation actions, and letters of warning of defamations, amount to an attempt to silence opposition to the bridge, "strategic litigation" and a breach of the fundamental human right of freedom of speech, are not only false and defamatory, but are also extremely peculiar given the outcome of defamation actions which finalised to date. So far, six defamations have been resolved. Five have resulted in substantial payments to our clients (and in four of those five cases, an apology and retraction was published). The sixth case is Chapman v. Allan and Draper, where our clients were found to have been seriously defamed, and the court awarded them $100,000 plus $11,000 interest plus costs. Indeed, most important in the context of our clients' complaints as to the content of your internet site, you will note from Judge Lowrie's findings that a similar allegation of "sweeping human rights aside" in Green Left Weekly was found to be a "gross defamation" of our clients.
The fact that, despite all this, some of those opposed to the bridge choose to continue to repeat such defamations demonstrates that their objective is to deliberately disparage our clients, rather than engage in lawful expression of opinion in opposition to the bridge.
Our clients now require that you forthwith amend your site such that it no longer defames our clients, as well as any other publications of yours which repeat the matter complained of by our clients.
Our clients reserve all their rights.
Yours faithfully
LYNCH & MEYER
per: Steve Palyga
Partner
spalyga@lynchmeyer.com.au
THE KLDF REPLIES
Steve Palyga
Partner Lynch and Meyer, Lawyers
GPO Box 467
Adelaide SA 5001Dear Mr Palyga,
We have your letter of 21 December 1998. We acknowledge your clients' patience in allowing an extended time for response having regard to the holiday period.We have taken counsel's advice upon the contents of your letter. We are instructed to respond as follows:
1. We note the alleged defamatory imputations identified by six dot points. We consider that those do not represent the natural and ordinary meaning of our web site. We consider that the meanings asserted by you are "strained or forced or utterly unreasonable": Jones v Skelton (1963) 3 All E R 952 at 958.
2. We note your comment upon the decision of Chapman v Allan and Draper and acknowledge that the web site has not been brought up to date to reflect that decisions. That update is occurring at this time. There is no design in the delay in the update. The resources of the KLDF are limited. The holiday period has affected the functioning of the KLDF.
3. We note and applaud your clients' belief in the right of freedom of speech.
4. The KLDF does not assert in its web site that your clients' actions constitute "an attempt to silence opposition to the bridge". To the contrary, the KLDF's web site specifically removes "the motivation" of your clients from consideration and concentrates on "the effect" of their actions.
5. The KLDF is not in a position to comment upon settlements entered into by others of which it has no details. As to the decision in Chapman v Allan and Draper, the KLDF understands that Allan did not contest the proceedings and that Draper has appealed.
6. The KLDF's web site makes no allegation of your clients "sweeping human rights aside".
7. We enclose for your information a copy of the amended principal text of the site. The amendments have been sent to our volunteer webmaster for immediate attention and will be altered as soon as he is able to make the amendments.
We trust that the above meets the matters raised by you in your letter.
Yours faithfully,
Tom Glynn
for the Kumarangk Legal Defence Fund Inc.
27 January, 1999
The Kumarangk Legal Defence Fund Inc.• PO Box 3168 • Rundle Mall • SA 5000 • AUSTRALIA • Email thekldf@yahoo.com Articles posted on this website are provided to individual readers without permission from the copyright owner Background • Background to the defendents • Links • Email • News of the cases • Is this website defamatory? • Actions against the KLDF • Media releases • A bridge writ large (covers the launch of this website) • Defamation ruling against Green Left article • Fresh evidence threatens bridge • Map of the local area • 
|
