In the Northern Territory we characterise the unit of value for defamation proceedings as a “swimming pool” — in Darwin at least that is one of the first things that a successful defendant would buy with an award of damages. Hence, $20 grand is one swimming pool, $40 grand two swimming pools, etc.
This week the publisher of the Alice Springs News took a bath — five times over.
On Monday, Justice Judith Kelly of the Northern Territory Supreme Court delivered her judgement in the matter of David Forrest v Erwin Chlanda & Erwin Chlanda Pty Ltd. Alice Springs real estate agent David Forrest complained to the court that an article published by the News in September 2010 conveyed three defamatory imputations about him: that he behaved in such a way as principal of First National Real Estate Framptons as to deserve to be stood aside as the southern region representative of the Real Estate Institute of the Northern Territory; that he is suspected by police of having engaged in fraud; and that he has run the company in such a way as to allow it to be suspected by police in engaging in fraud.
First defendant, Erwin Chlanda, editor of the News and author of the offending article, is also a director and shareholder of the second defendant, Erwin Chlanda Pty Ltd. The defendants denied the article bore the imputations pleaded by Forrest, instead pleading that it conveyed a different defamatory imputation and that the article contained honest opinions related to the public interest and was covered by qualified privilege — both defences available under the NT’s Defamation Act 2006.
The News has long been one of Crikey’s favourite small papers. Back in 2009 we characterised it as a “freebie local weekly that usually runs to about 16 modest pages and is often more entertaining than informative … and can seem more like a hobby-horse for the proprietors’ pet peeves, predilections and prejudices”.
Those words seemed prescient by the next time we looked at the News in relation to a problem entirely of its own making. In late 2010 Crikey noted that:
“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. The 17 A4-page missive is perhaps the most remarkable response I’ve ever seen to a writ — not just because Chlanda chose to publish it online in its entirety, but also because it seems 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.
Erwin Chlanda and his company did not engage counsel for the three days of hearing in September 2011. On September 7, Tom Molomby SC cross-examined Chlanda for the plaintiff Forrest. The following exchange relates to Erwin’s understanding of journalistic standards:
Molomby: Yes. Do you hold yourself out, Mr Chlanda, as somebody who observes high standards in journalism?
Molomby: Do you say that in writing the article of September 2, the article sued on, you were observing those high standards?
Molomby: I might have asked you a version of this already, but let me go back on it please. Do you agree that to say in that article that Framptons First National Real Estate is the subject of a fraud investigation by the police was to say something serious?
Molomby: Do you agree that, as a journalist, when saying something serious it is your obligation to have a proper basis for it?
Molomby: Do you agree that when saying something serious as a journalist it is your obligation to check it responsibly before publication?
Molomby: Do you say that you were acting according to the highest journalistic standards known to you?
Chlanda: Yes. I need to give further information on that.
Molomby: Yes. All right. Well what do you want to say about that, Mr Chlanda?
Chlanda: The — it is inevitable that journalists form a strong view of given facts, so there are certain things that you don’t necessarily check because you don’t ring the MET Bureau to see if the sun rises in the morning. We know it’s going to happen. I’m slightly exaggerating this. Now, in connection with this report, and it’s a series of reports that were written over the best part of two years, we had no doubt whatsoever that the police investigation would be into all the players in this Carey/Frampton saga. The same view was formed by all the contacts that we had — we obtained information from and who regularly gave us information. So we were clearly of the view on good grounds that that investigation (a) took place, because that was confirmed by the police, and (b) that it involved all the players. We then went to every reasonable effort to obtain comment or a response from Framptons, and from the plaintive — no, from Framptons because it was the company we were talking about. Now, that response wasn’t forthcoming, despite three attempts to obtain it.
Molomby: You mean, from Framptons?
Chlanda: From Framptons. Correct.
Justice Judith Kelly dismissed Erwin Chlanda and his company’s defences to Forrest’s complaint, finding that:
“The nature of the defamatory imputations in the article concerning Mr Forrest are extremely serious; the article does not in any way distinguish between suspicions, allegations and proven facts, but states as a fact a matter which Mr Chlanda admitted in evidence he simply assumed without checking, namely that Framptons was under investigation by police for fraud. Mr Chlanda took no steps to verify those suspicions by checking with the police; and there is no evidence of any need for urgency in publishing the article which would have made it unreasonable to take the time to verify Mr Chlanda’s suspicions.”
Unsurprisingly Justice Kelly found for the plaintiff Forrest.In considering damages to Forrest, Justice Kelly found it was clear he had suffered actual damage to his reputation in the small town of Alice Springs and that the damage had been aggravated by the conduct of the defendants since publication:
“The defendants refused to withdraw the publication from the second defendant’s website … Mr Chlanda attempted to characterise the article of 30 September as an apology but, despite the headline, ‘Framptons boss makes demands from Alice News under Defamation Act, get apology’, I do not read it as such. There is nothing apologetic about the article …
“Further, the defendants published … the whole of their first defence which contained (inter alia) a statement that there would be further evidence of a fraud investigation into Framptons, and not just into Mr Carey. In the witness box Mr Chlanda candidly admitted that he still believed that police were investigating Framptons for fraud, despite being assured by police that they were not and never had been.”
Justice Kelly awarded Forrest $100,000 in damages with interest of 4% to run from the date of publication in September 2010 — ” … a sum sufficient to console the plaintiff for the personal distress and hurt caused by the publication; provide reparation for harm done to the plaintiff’s personal and professional reputation and (importantly) to vindicate the plaintiffs reputation”.
Whether Erwin Chlanda has learnt anything from this unfortunate matter remains to be seen. He posted the following commentary on the News website (Chlanda told Crikey that is all they want to say on the matter):
It is the first time in my half century working as a journalist that I have had to stand trial for defamation.
The arduous experience of conducting my defence without legal representation, and with a minimum of legal advice, is motivating me to do as much as I can to get behind the current push for reform of the way our society deals with defamation.
The present system is a great impediment to freedom of speech.
There is a vast gulf between what the law and the courts can demand, and what the readers expect from us, the journalists, and our duty to inform.
Rich people are vastly more likely to win than poor people. They can set on to journalists and publishers, lawyers receiving extraordinary levels of remuneration in a rigid court process that can result in the ruin of a medium and its staff.
With the recent Finkelstein Review, these issues are well and truly in the public arena nation-wide.
Maybe Erwin Chlanda should take note of this comment from one of his loyal readers posted on the News website:
“Spare the pity, you defamed someone, you published an untruth. You chose to represent yourself and you still believe you are the victim. It may be the first time in 50 years you have come across someone with the balls and capacity to take you on and take the risk of following the matter through … Stop your bleating, accept you were in the wrong and get on with life. Everyone makes mistakes, but only a few are man enough to put their hand up and admit it.”