Case Study: Lawyers, Gunns and Protest
Gunns Limited, a Tasmanian sawmiller and hardware retailer, is Australia’s biggest woodchip exporter and probably Australia’s most profitable timber company with profits that grew from $53 million to $105 million between 2002 and 2004, according to the company’s annual reports. At the same time the logging of old growth forests has become a very contentious issue in Tasmania, with regular protest action. Among other things, environmentalists claim that many rare species are being destroyed by Gunns and other sawmillers in Tasmania, and they also express concerns about the effects of clearfelling on the ecosystem and issues like local water catchments. During the 2004 federal election campaign, the Liberal–National Party Coalition (which was re-elected to government) promised to act immediately to make another 170,000 hectares of Tasmanian forest protected old-growth forest by 1 December 2004. However the federal Coalition government did not do so until mid-May 2005. In the meantime, environmentalists claimed that the Tasmanian State government was allowing sawmillers like Gunns to log areas that ought to have been protected. In mid-2004 Gunns attracted bad publicity in Tasmania when a helicopter accidentally doused a Tasmanian farm with a potentially carcinogenic herbicide while spraying a Gunns forestry plantation.[1] At the end of 2004 a public consultation phase began for a decision about a new Gunns $1 billion pulp mill in Tasmania.
On 13 December 2004, Gunns lodged a writ in the Supreme Court of Victoria seeking injunctions and damages of $6.36 million against twenty defendants in relation to ‘campaign activity’ against Gunns. The defendants included Doctors for Native Forests Inc, the Huon Valley Environment Centre Inc, The Wilderness Society Inc, and some of its staff, Greens Members of Parliament Bob Brown and Peg Putt, and a number of individuals who had allegedly been involved in protest activities. The damages claimed included about $1 million for actual losses and more than $5 million in aggravated and exemplary damages.
The writ was unusually long and complex at 216 pages. It was later expanded to 350 pages. It claimed that the 20 defendants engaged in a campaign against Gunns that amounted to, firstly, a conspiracy to injure Gunns by unlawful means organised by The Wilderness Society and its staff; and, secondly, interference with Gunns’ trade and business by unlawful means. The alleged campaign activity included:
(a) logging operations disruption campaigns and actions at Lucaston, Hampshire, Triabunna, and the Styx – including allegations of machinery sabotage, destruction of property, trespassing, blocking bridges, taking keys from cars, damaging property, ramming mud into exhaust pipes, pulling down direction signs, people locking themselves to or inside items and obstructing police officers;
(b) corporate vilification campaigns relating to Gunns’ exclusion from the Banksia Foundation’s environmental awards shortlist, and allegations that a woodchip pile could harbour harmful bacteria;
(c) campaigns against overseas customers of Gunns including customers in Japan and Belgium – including allegations that conservationists had tried to pressure Japanese woodchip customers to stop buying from Gunns via threats of adverse publicity, consumer boycotts and direct action against the Japanese customers and all their operations;
(d) corporate campaigns targeting shareholders, investors and banks – some of the defendants were accused of ‘publicly denigrating, vilifying and criticising’ Gunns and encouraging others to boycott or protest against it.
Gunns’ executive chairman was reported as saying that the company was taking the action to protect the interests of its employees, contractors and shareholders:
Gunns Limited and the majority of Tasmanians are sick and tired of the misleading information being peddled about our industry and our state . . . The company’s claim includes allegations concerning risks to the health and safety of our employees and contractors, unauthorised entry to private property and damage to equipment owned by Gunns Limited and our contractors. These activities have been going on for years and it is about time they were stopped.[2]
On the other hand, the Gunns action was heavily criticised in the media as a ‘SLAPP’, a ‘strategic lawsuit against public participation’. A SLAPP is when a corporation or government agency makes a civil claim, such as defamation, conspiracy, malicious prosecution or nuisance, against individuals or organisations in order to punish them for voicing their criticisms, or silence them. In some SLAPP situations (but not the Gunns case), the lawyers acting for the plaintiffs have even threatened social commentators and academics with defamation proceedings if they make adverse comments on the ethics of the litigation.[3] In Australia there is no constitutional right to freedom of expression.
A number of US states have passed legislation that seeks to counteract the use of SLAPPs. Critics argue that companies should not interfere with free speech by taking legal action in relation to ordinary political protests, especially where the company can claim its legal expenses as a tax deduction but the people being sued are unlikely to be able to afford adequate legal representation or claim tax deductibility, and could even face bankruptcy if the case is upheld against them. In the Gunns case, however, the Hobart Mercury reported that ‘dozens of lawyers, from top silks to eager law students, are offering to fight the Gunns writ for nothing’.[4] Nevertheless some of the defendants felt threatened by the case:
There was a general feeling amongst folk [among the defendants] who hadn’t been faced with this situation before; they were stunned. One of them wandered around her house thinking that this lounge suite, my TV, the things she’d worked years to get, now inherently are not hers; the cloud of Gunns ownership hangs over them. And people were very frightened because it’s not just you that’s being effectively, potentially taken to the cleaners by a court case like this – and indeed into potential bankruptcy – but your loved ones, your family, other people.[5]
On 19 July 2005 Justice Bongiorno of the Victorian Supreme Court ordered that Gunns’ writ should be struck out because it failed to set out with sufficient clarity the case which the defendants must meet. He suggested ‘that the conceptual basis of the plaintiffs’ case be subjected to serious reconsideration’.[6] Gunns was given 28 days to file a new writ if the proceeding was to continue.
Notes on Application of Four Approaches (Chapters 1 and 2 of Inside Lawyers’ Ethics) to Lawyers, Gunns and Protest Case Study
The obvious argument is that Gunns is a powerful, rich corporation and the defendants are just individuals and therefore adversarial advocacy is not appropriate as it is not an equal contest, and nor will you be supporting the powerless against the powerful (as in the criminal defence context). However this argument is not so compelling here given the availability of pro bono lawyers for the Gunns 20 and the fact that they have decided to work together and fight these allegations. A more compelling argument against the adversarial advocacy approach in this situation is the concern that Gunns’ action is a fundamental misuse of the legal process for collateral purposes – to silence or intimidate protesters especially in the context of government decision-making about old growth logging and the new pulp mill.
The main difficulty for the responsible lawyer in this situation is how will they know whether Gunns’ purpose is an abuse of the court process for collateral purposes or not, and whether all or some of the causes of action are completely baseless? The facts can be interpreted and used to argue different points of view. In particular it is useful to distinguish between those causes of action/allegations that relate to illegal activities by the protesters and therefore appeared more legitimate, and those that were more vague and likely to be aimed more at intimidating protesters or trying to establish a new cause of action (eg conspiracy and corporate vilification). Bongiorno J thought the conceptual basis for the whole case needed ‘serious reconsideration’. This suggests that a completely different approach to the case is required for the case to go ahead and that therefore a law firm seeking to take a responsible lawyering approach when rewriting the writ might have considerable leverage over the client to agree to this. It is a matter of advising the client as to what the court will accept and the legal and ethical limits on lawyer conduct.
The moral activist lawyer would see it as appropriate to advise the client on the ethical issues raised by this case (both the substantive issue of logging and the process issue of the impact of such an action on free speech and protest activity). On the one hand a moral activist might argue that it was perfectly just for Gunns to seek to protect their valid and legal interests in logging against protest activity. But a moral activist also needs to address the possibility that within the political context, this action by Gunns could well have the effect of silencing critics. In other words, the danger is that legal action in the courts would be used to prevent voices being heard in the proper forum for decision-making about old growth logging, ie the democratic political process. Again there are facts that go both for and against this argument that need to be considered.
If a moral activist did take the view that this action was likely to have the effect of improperly silencing protesters, then it is very hard to see how a moral activist could act at all since Gunns is asking its lawyer to rewrite the writ and the whole writ seems aimed at an improper purpose. Even if it were limited to illegal or criminal activities of protesters, why use a civil suit to do this? Why not press criminal charges? Australian law does not have any robust protection of free speech (unlike US law) so it is not sufficient to say that the court could decide on the limits of free speech. Also on the facts one couldn’t simply argue that a whole law firm cannot agree on a moral activist justice position. It is possible that a firm’s identity may be to support environmental causes or at least not silence them improperly.
It might be argued that the ethics of care approach requires that the issue go to mediation or alternative dispute resolution and that this would be a good solution to the ethical issue. ADR, however, is not an easy ethical answer. It raises its own problems: What about the power imbalance between the parties? Could Gunns use ADR to impose a settlement on the defendants that involves them keeping quiet or even apologising for their previous protests (as has happened in previous SLAPPs)? Would that be an appropriate resolution? What will be discussed in any mediation – only the current writ (but isn’t there an argument that it is totally inappropriate and the defendants shouldn’t have to mediate on it at all) or the more substantive environmental issues of old growth logging etc (but wouldn’t these issues be more appropriately determined in a public, democratic process such as through the government or even through the courts (not a private ADR session)?
It is important to adequately critique the ethics of care perspective from an ethical perspective, not just a practical perspective. The ethical problem with the ethics of care is that it is short on criteria for determining which relationships, and which dimensions of relationships, are worth preserving and caring for, and which are not. The ethics of care sees itself as nurturing good relationships, ie relationships that are aimed at the goodness (moral virtue) of both parties. However, what are the criteria for goodness? The minimise harm principle that is part of the ethics of care may be relevant here – the idea that any losses should fall on those most able to bear them, and those most vulnerable should be more protected.
Finally, it might be suggested that an ethics of care lawyer might represent Gunns subject to certain conditions. The ethics of care does not countenance imposing conditions on another party – you either enter into a dialogue in which you are both willing to change your point of view and behaviour. Or you do not act at all, if you feel it would be contrary to your moral character to do so. To impose conditions is to attempt to impose your moral view on the client – this is a moral activist or a responsible lawyer approach (depending on the source of the ethics that you insist upon).
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Inside Lawyers’ Ethics
Case study: Lawyers, Gunns and Protest
© Cambridge University Press 2014
[1] Adam Morton, ‘Logging Giant Sues Activists for $6.3m’, The Age (Melbourne), 15 December 2004.
[2] Ellen Whinnett, ‘Gunns Sues’, The Mercury (Hobart), 15 December 2004, 1.
[3] See Sharon Beder, Global Spin: The Corporate Assault on Environmentalism (Scribe Publications, Melbourne, 1997) ‘Ch 4: Lawsuits Against Public Participation’ 63–74; Penelope Canan and George W Pring, ‘Strategic Lawsuits Against Public Participation’ (1988) 35 Social Problems 506.
[4] Claire Konkes, ‘Free Lawyers Line Up to Battle Gunns’, The Mercury (Hobart), 6 February 2005.
[5] Bob Brown speaking on ABC Radio National, ‘The Gunns 20 Litigation’, The Law Report, 25 January 2005 http://www.abc.net.au/rn/lawreport/stories/2005/1287516.htm#> at 9 May 2006. See also Ellen Whinnett, ‘Road Rage: Gunns Writ Sparks Rally and Direct Action, Suit Sends Gunns Soaring’, The Mercury (Hobart), 16 December 2004, 2 quoting ‘stay at home grandmother’ Lou Geraghty: ‘I’m just an everyday person trying to protect the area I live in’.
[6] Gunns Ltd v Marr [2005] VSC 251 (Unreported, Bongiorno J, 18 July 2005) [59].