The first lesson in litigation as a defendant is to mitigate your losses.
Earlier this year, Carey Builders, an Alice Springs-based building contractor went bust. Local weekly freebie the Alice Springs News led the charge in reporting on the collapse of Carey Builders, and to its credit broke some important aspects of the story.
In mid-March this year, the News (which is published by Erwin Chlanda Pty Ltd and of which Erwin Chlanda is variously managing editor, senior writer etc) reported, under Chlanda’s byline, that:
“Alice Springs home buyers facing big losses with the collapse of Carey Builders Pty Ltd are increasingly looking to the local franchise of Framptons First National for compensation. The real estate firm had drawn up a scheme to provide land, finance, design and construction but it claims the choice of builders was always ‘the client’s decision’. But the Alice News obtained a letter sent by Framptons to buyers at the start of the scheme, believed to involve 17 buyers, giving them a string of assurances for supervision and management of construction, and a successful completion (see below).
For this Framptons would charge a 3% fee. The Alice News put to Framptons that these commitments constitute a contract with the buyer, but Frampton’s Director (Sales) David Forrest said he would make no comment about that … After the Alice Springs News reported exclusively in its online edition on Wednesday last week that Carey Builders had been put into liquidation, Mr Forrest did the round of local media, saying he was feeling ‘aggrieved and upset’ about the developments, but stressing that buyers would need to deal with the liquidator.
He denied that Framptons had any responsibility for damages.”
So far so good. But in an article a few months later, Chlanda apparently exceeded the bounds of our (admittedly ridiculous) defamation laws.
On September 2 the News published a short piece entitled “Real Estate Institute silent on role of Framptons boss as probe by govt. board continues”.
Crikey notes that this article is still up on the News website — at least in part. But we won’t be quoting from it.
Following the publication of that piece, the principal of Framptons, David Forrest, issued proceedings in the Supreme Court of the Northern Territory claiming that Chlanda and the News had defamed him.
On October 30, Chlanda published a long missive on the News website in relation to the case, which apparently sets out his defence, filed with the Court of October 26, to Forrest’s action.
According to that missive, the News published a further piece in the September 30 edition titled “Framptons boss makes demands from Alice News under Defamation Act, gets apology”. Crikey has been unable to find that piece in the News online edition of that date.
Now I’ve not done a lot of defamation law in my time but in the course of my legal practice I have dragged the odd precedent from a file and drafted a few “apologise, desist and withdraw or we’ll issue proceedings” type letters from time to time.
The usual response to such letters is either of the “puffs-out-chest-tell-’em-to-get-stuffed” type or an abject and immediate apology.
But things — as I’ve said before often enough — are very different in the NT and no less so in Alice Springs.
Chlanda’s 17 A4 page missive of October 30 is perhaps the most remarkable response that I’ve ever seen to a writ. Not just because Chlanda chose to publish it online in its entirety, and I’ll turn to that in a minute, but also because it seems that the only legal advice he had taken — to October 30 at least — was his own.
There is an old lawyers’ saying that a man who represents himself will have a fool for a client.
We won’t be publishing any of the more colourful parts of Chlanda’s defence but we’ll try to give you a little of its flavour.
Chlanda’s justification for publication of his defence, in the course of which he re-publishes the September 2 article, the subject of the writ, is to rely on a defence of absolute privilege as outlined in s. 24 of the NT’s Defamation Act.
Chlanda begins his defence — as outlined in his online post of October 30 — with two paragraphs:
- In relation to paragraphs 1 to 8 inclusive the Defendant agrees with the contents thereof.
- In relation to paragraphs 9 to 11 the matters therein referred to are denied.
Then follows 15 A4 pages of material that outlines his experience as a journalist, his personal and familial relationships, etc, etc — little of which appears to have much relevance — in a legal sense — to the writ.
Perhaps most remarkable is the publication of the full text of emails between Chlanda and NT police media staff (including their full names and email addresses) and the full text of email correspondence between Chlanda and the solicitor for the plaintiff, David Forrest.
Crikey understands that this matter was first mentioned in the NT Supreme Court in Alice Springs in early November and that Forrest’s counsel there made application to strike out Chlanda’s defence.
Crikey understands that application will be heard by the court in early December.
Crikey forwarded several questions to Chlanda in relation to this matter and requested a telephone interview. Chlanda failed to respond before deadline.