Another episode in the sad and extraordinary saga of Asian-based freelance journalist Eric Ellis and Melbourne’s intellectual magazine, The Monthly, is about to unfold. Ellis is taking a civil action against The Monthly over the spiking of his story on Sri Lankan refugee camps late last year.

Monthly proprietor Morry Schwartz this morning said that Ellis was seeking $20,000 in what he described as a “frivolous claim”. Meanwhile, Ellis said: “It’s an everyday claim for monies owed, to be heard in a small claims jurisdiction … You must be struggling for a story.”

Ellis’ spiked piece went on to be published in The Spectator. The Monthly paid Ellis a “kill fee” of $US1,500 — which compared to the $A4,000 that he would have expected to receive had the piece been published. The Monthly also paid his expenses.

I understand Ellis is claiming that he should have been paid $US2 per word, and is also claiming aggravated damages, but the details are not yet clear.

But now the matter is off to the Victorian Civil and Administrative Appeals Tribunal. There was to be a directions hearing at 11.45 this morning, and although it is surely more likely that one or other side will settle or withdraw, we may eventually have a judgement that will give us some guidance on what the law regards as reasonable practice in dealings between editors and freelancers.

Ellis, readers might remember, was the journalist who wrote the famous profile of Rupert Murdoch’s wife Wendy Deng. That piece was spiked by Fairfax, resulting in a lot of fuss and allegations that Fairfax was guilty of censorship, or that Murdoch had somehow reached his long arm into the Fairfax newsroom. The controversy was reported internationally, and was taken up by The Age Independence Committee of staff journalists.

Ellis’ piece then went on to be published, with some glee, by The Monthly under its former editor Sally Warhaft. The piece proved to be solid, rather than revelatory.

Before I go on, some declarations. I found out about Ellis’ legal action against the magazine because The Monthly approached me asking if I would act as a witness on its behalf, to talk about normal industry practice when articles are spiked.

I refused, on the grounds that I planned to report on the action, and it would therefore be inappropriate to act as a witness for either side.

In the interests of total disclosure, readers should also know that I recently had a piece published in The Monthly and expect to write for it again.

Late last year, the dispute between Ellis and The Monthly was the subject of excruciating email correspondence that was published on my blog here.

In October 2009 Ben Naparstek commissioned Ellis to write a story on the Sri Lankan boat people. It all began well, with Naparstek and Ellis discussing plans for him to visit the camps from which the refugees were fleeing. Naparstek pressed for copy by December, and on November 11 Ellis filed with the words:

“did my last intvu … I dont this needs any more adds, at which point its getting too long though, that said, I think it zings along … One could add more camps, or the stuff about the Oz UN guy behind the lines, or I could ask Rudd — I’m seeing him at a breakfast in Sing on Sat — abt all this … Anyways, in the interim, go with this this.”

Naparstek replied asking for “more on the camps — if indeed there is more you can say”.

Ellis replied in part:

“Frankly, Ben, having gone through my notes, this is my take;
I dont know there is a great deal more that can be said abt it, in terms
of the observation than I have.”

And on November 14, Naparstek wrote:

“Unfortunately, we won’t be able to run this essay. What I can offer is
a kill fee of $1500, and you will, of course, be free to publish the
essay elsewhere. My thanks even still for all your hard work in
gaining access to the camps.”

To which Ellis replied initially with a brief:

“You are kidding? Why not?”

Naparstek responded:

“Sorry, Eric: after trying to edit it, I just decided that it is not up
to the standard we require. But I’m sure you’ll have no difficulty placing it elsewhere.”

Then the outrage began.

Over the next few weeks Ellis wrote to Monthly proprietor Morry Schwartz and editorial board member Robert Manne in increasingly virulent terms. The encounter was, he said, “particularly puzzling, unpleasant and unprofessional”. Naparstek had behaved like “a petulant teen” and was guilty of “gross immaturity”. Ellis’ trip to the camps had been achieved through use of contacts of many years’ standing, and at some personal risk.

“My visit to the camps was no casual stroll to a Fitzroy café to interview some artist. This was a hasty but well-executed trip by a sole foreign journalist to one of the world’s trickiest countries for journalists, to a recent war zone, while engaging with officials on the most sensitive matter before them. I cannot underline stronger the gravity of that, a gravity the inexperienced Naparstek seems unable to grasp in his glib and casual emails.”

By November 18, Schwartz wrote that the tone of Ellis’ emails had “made it obvious to us that you have no intention of allowing this matter to be settled on any terms that we regard as reasonable.”

At this point the correspondence landed in my in tray, with both sides apparently convinced it supported their case.

So now the whole thing may be off to the tribunal. The Guthrie trial running this week has shown us that journalists and editors rarely look good in court. I suspect this little storm in a teacup will come to a conclusion before it gets too far.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey