The Sydney Morning Herald http://www.smh.com.au/news/9903/02/text/features1.html HINDMARSH FALLOUT A bridge writ large Date: 02/03/99 One of Australia's most extraordinary webs of litigation has been woven around a tiny stretch of water and the bridge supposed to span it. Debra Jopson reports. IT IS the most famous non-existent bridge in Australia. But its notoriety does not derive from its planned length of 320 metres, which is less than a third the distance across the Sydney Harbour Bridge. Nor is design the sticking point. In fact, what it will look like is a State secret - spokeswomen for the South Australian Attorney-General and Transport SA refuse to say anything about its dimensions. The waterway it is meant to span is remote from the daily concerns of metropolitan Australians, being 80 kilometres south of Adelaide in the stark, wide landscape of the Murray River mouth. The Hindmarsh Island bridge was conceived to replace a car ferry between Goolwa, which harbours about 3,700 souls and the island also known as Kumarangk, whose population of about 300 swells with water-loving tourists on weekends. The political fireworks over this non-bridge have been spectacular. But more are to come. The bridge affair has contributed to one Labor minister, Robert Tickner, losing his marginal seat, a Liberal frontbencher, Ian McLachlan, being banished to the back bench, and a royal commission making the highly contested finding in this native title era that some Aboriginal women had fabricated "secret business". The fireworks are muffled lately, but they are still there, exploding in courtrooms and lawyers' officers in one of the most extraordinary chains of litigation Australia has ever seen. Steve Palyga, the lawyer for Tom and Wendy Chapman, who want the bridge built to boost their marina development, summarised the story so far when he talked to an environmental law conference almost two years ago. Then, there had already been two High Court, three Supreme Court and seven Federal Court actions, a royal commission, two inquiries under Federal Aboriginal heritage laws and two inquiries initiated by the South Australian Parliament. "It is certain, however, that this web of litigation is far from complete," Palyga said then. How true was this prediction from the man who has piloted much of the legal action. The Chapmans, represented by Palyga, have at least 12 legal actions on the boil. And they have threatened other legal action. Warning letters have gone out to about 30 bridge opponents, threatening damages claims of up to $47 million if they obstruct construction. Even a British Internet Web master was threatened with defamation action. >From their island marina, the Chapmans are involved in litigation against the Federal Government, a former Federal minister, a State government, a retired senator, six media organisations, a constitutional lawyer, a theology student and an environmental body, among others. On March 31, they and their company in liquidation, Binalong Pty Ltd, have a directions hearing in the Federal Court over their $70 million-plus damages claim against Tickner, the Commonwealth, constitutional lawyer Cheryl Saunders, anthropologist Deane Fergie and the Adelaide University company Luminus Pty Ltd. Justice John von Doussa has set aside nine weeks for hearings from October 25. The Howard Federal Government passed special legislation to let the bridge go ahead, but its construction has been on hold while the Chapmans negotiate with the South Australian Government. The Chapmans allege the State Government breached its contract with their company in 1993 when it stopped work on the bridge, causing delay costs. "They [the State Government] want to build the bridge. They're very public about that, but they say they want to sign off the Chapmans first," says Palyga. Additionally, the Chapmans have settled six defamation cases and have 10 more going through the courts in various stages. "Many more are planned ... the bridge case might be characterised as a defamation fireball," says Palyga. SOME of the smaller fry feeling the heat from the fireball have formed themselves into the Kumarangk Legal Defence Fund Inc (KLDF). Its convener, Greg Ogle, says the KLDF is not involved in the anti-bridge campaign, but offers "financial, moral and legal support" for people and organisations being sued in connection with that campaign. It has a core of about 10, plus supporters. "There's a couple of academics. One of the people being sued is a theology student. A librarian and ... a retired senator. We didn't get to choose the best legal brains to form the KLDF. It was just the people who were pulled in by interest or fate." This week, the KLDF is launching its own Web site. To garner funds, it has seven times screened the film McLibel - about two British activists sued by McDonald's, found guilty of defamation, but who had a judge agree that much of what they said about the hamburger giant was true. "It's of particular interest because it's about corporations suing activists for a leaflet they put out. And it had a happy ending. Although the appeal's started ...," says Ogle. Entertainment aside, there is some angst. Some sued for defamation fear they will lose their family homes if they must pay damages, according to Ogle. They also have a broader worry about the impact litigation has had on their ability to speak out, says Ogle, who is doing a PhD in political economy and was made KLDF spokesman because he has not been sued. "It's a small bridge in a small corner of the galaxy, but the issues that are raised ... [are] something that's happening in lots of places around the world, particularly in America." The Web site will be accessible under the Sydney-based GreenNet banner www.green.net.au/hindmarsh, despite a letter from Palyga while it was being set up alleging that it was defamatory. In a previous incarnation, the KLDF site was hosted by the British Web master, Demon Internet. Demon shut the site down after receiving a letter alleging it defamed the Chapmans. Palyga says three other service providers, Internode, the University of NSW and Gateway, had also agreed to remove material after he told them it was defamatory. In the first of the defamation cases to come to judgment late last year, against a former South Australian government archaeologist and anthropologist, Dr Neale Draper, and Green Left Weekly, which published his comments, the Chapmans won $110,000 in damages. Draper is appealing the decision. In his judgment, Judge Lowrie of the South Australian District Court gave a thumbnail summary of the Chapmans' defamation action to date. The Australian, The Bulletin and The Canberra Times had all settled out of court over individual articles by publishing an apology and paying an undisclosed sum. Channel 10 had also paid a settlement over two segments it had aired. The media outlets which face further action are the ABC, Channel 7, Channel 10, The Bulletin, The Australian and The Canberra Times. Activists being sued over their comments in the media include Dean Whittaker, who is studying to be a deacon in the Uniting Church, and the former South Australian Democrats senator John Coulter. Also facing action are Richard Owen of the Friends of Goolwa and Kumarangk, the Conservation Council of SA's president, Professor David Shearman, and its vice-president, Margaret Bolster. The Chapmans have also taken three organisations to court, as well as a husband-and-wife team of printers, Gregory and Christine Lundstrom, over a 1994 anti-bridge pamphlet which they allege defamed them. The organisations are the Conservation Council of SA, Friends of Goolwa and Kumarangk Inc, and the Kumarangk Coalition. It appears they have not sued any Aborigines. Tom Chapman says they may still do so. Wendy Chapman says: "I don't want to have this conversation." Palyga says "mums and dads" had left themselves open to be sued for defamation when they repeated allegations that the Chapmans were racist, which had been spread by the Kumarangk Coalition. "It's a thoroughly nasty organisation which some thoroughly nasty people are hiding behind. Who it is, no-one will tell you. No-one knows." The KLDF and the Chapmans have very different views on how defamation law should be used. Wendy Chapman says: "We have a reputation to guard, both Tom and myself, and when everybody, when so many people have been defaming us, why should we sit back and just take it?" Ogle claims that when the Kumarangk Coalition won a SA Reconciliation Committee award for a 1996 walk from Adelaide to the island in support of Ngarrindjeri people, no-one was brave enough to claim it and identify themselves as belonging to that organisation. The Chapmans have kept tabs on bridge opponents by taking photos of them. Wendy Chapman says they started doing so after being told by their lawyers that they needed evidence and this was done in a public place. "Our task, being totally bombarded from every angle you could imagine, was to collect evidence," she says. Palyga claims that he and the Chapmans have never even been threatened with defamation action. "We don't bother to issue warnings any more. When an anti-bridger recently made a repetition defamation, we had issued and served him with defamation proceedings within 48 hours," Palyga told the 1997 conference. "I wrote to people warning them of defamation actions, but it proved to be pointless and even counter-productive, as the anti-bridgers went public in a campaign to characterise these letters as disingenuous attempts to stop lawful protest," he said. "They claimed this was intimidation, rather than a real warning of legal action to stop defamatory and other illegal conduct. They claimed it was SLAPP-suiting. S.L.A.P.P. That is, Strategic Litigation Against Public Protest. They claimed it was a breach of the freedom of speech." The Chapmans, he said, were in a "no-win" situation. "The tactic is: when a party takes advantage of legitimate rights, paint it as a dastardly breach of the freedom of speech, talk about SLAPP suits and how they monster and frighten the public into silence. Talk about breaches of the freedom of speech and paint your opponent as some kind of local version of Idi Amin." Palyga told the Herald that anti-bridge opponents had been alleging for five years that the Chapmans were "SLAPP-suiters and are engaging in intimidating legal tactics and are environmental bandits, pirates and have usurped the planning process". However, a recent decision by Justice Williams in the South Australian Supreme Court in their case against the ABC amounted to a judicial finding "which is to call you a SLAPP-suiter is a defamation", he says. Says Ogle: "I think there are important issues at stake here about the ability to participate in the public process and the political process and the way defamation law works makes that very difficult. By trying to support people who are being sued and by continuing to speak out we're trying to redress what we see as the imbalance in defamation law. Defamation law confuses and silences. We are trying to address that." THE KLDF has somewhere between $10,000 and $20,000 in its coffers and gets some pro bono legal help, according to Ogle. "We've been given an estimate that one of the cases will probably cost $60,000-$80,000 to defend, not counting the appeals. We've raised nowhere near that. We're never going to raise that much money, I suspect." Palyga, whose firm, Lynch and Meyer, decided to work for the Chapmans on a "no-win, no-fee" basis five years ago because he thought the Chapmans had been "dudded", estimates he has clocked up at least 5,000 hours. "We're owed stacks" - but he is not saying how much. The Chapmans themselves are no strangers to the law. After an Australian Securities Commission investigation, in 1996 Wendy Chapman was convicted and fined $1,000 for breaching company law after she failed to deliver the books of two family companies to liquidators. In 1993, Tom, Wendy and their son, Andrew Chapman, were convicted on charges laid by the ASC relating to their failed investment company, Balthazar. They pleaded guilty and were given four months to pay $1,392 in fines and court costs. In the same year, Tom Chapman had his landbroker's licence suspended by the Commercial Tribunal and was fined $1,500 over his handling of a trust account (there was no suggestion of fraud or dishonesty). In 1994, the Supreme Court ordered Tom Chapman to pay $21,581 plus costs to the Salvation Army and the RSPCA after they sued him for failing to distribute estate funds to beneficiaries. He was subsequently cleared of charges that he defrauded nearly $70,000 from two deceased estates. The Chapmans have not yet succeeded in getting a bridge built, but they have fed a lot of lawyers. In their big October court case, they have engaged Marie Shaw, QC. The Commonwealth will be represented by David Quick, QC, and Tim Anderson, QC, will appear for Deane Fergie and Luminus. Adelaide solicitor Steve Connell, who is acting for Fergie, predicts it will be very expensive: "It's good for lawyers, but not for anyone else." Says Palyga: "The fallout will go for years. It's a classic legal saga that's just trundled on for a long time." 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