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    « Julian Morrow | Main | Rupert's Bootle Boy »
    Friday
    Aug102018

    Life of Clive

    Clive Evatt leader of the defamation bar - RIP ... Passionate about plaintiffs, yet gave significant leg-ups to defendants ... Charming, wily and unrelenting ... The Evatt business model ... Dubious clients and desperate cases ... A big life beyond the law ... Thoughts from colleagues and opponents 

    Clive Andreas Evatt died last Friday (August 3) aged 87. He was probably the most talked about defamation barrister in a generation, but his spirited life extended beyond the law into opera, art and architecture. 

    He gave the turf away 35 years ago because he hit a losing streak: 

    “You wouldn’t go out to the races and lose money, I had a good winning streak because I was in with a team of smart punters … and I put all my money into art.”

    He was a genuine renaissance man but his most profound influence was undoubtedly at the Sydney bar where his spree of plaintiff actions created a heap of work for defamation lawyers. 

    For many clients who rubbed up in the media without much of a reputation to protect, he sought damages and, for himself, fees. He once told the editor of the Gazette that he only acts for people who are “deserving”. 

    “I acted for Darcy Dugan, a few allegedly corrupt police, I’ve acted for Mr Obeid … I’ve acted for notorious madams in Kings Cross. I’ve acted for Abe Saffron. 

    I would add that I prefer more up-market clients and I do have some a bit better than that.” 

    He claimed that he was driven to seek revenge collectively against the media because of its attacks made on his relatives, particularly the Labor leader Dr H.V. Evatt. 

    In 2012 he told the Gazette of Law & Journalism that he “loves the media”:  

    “I really support the print media, the newspapers. The television media – I seldom look at it because it’s too intrusive. But I’ve got nothing against the media at all – except that they gave my uncle and my father a very rough time …” 

    In particular, he disliked the Packer Telegraph and its editor-in-chief David McNicoll: 

    “I thought if I ever got the chance to hit back at these people, I’d take it. So if I can cost them a million in costs or something, that’s one thing for my father or Dr Evatt.”

    There was also his love of the punt, the chase and the ever-hopeful scent of victory.

    He would have countless cases on a roll at the same time and keep them rolling. 

    He explained his strategy to various libel lawyers in Sydney. If he kicked off five new actions a year he pocketed $100,000 up front. Settlements were more about his costs than damages and they would go on top of the $100,000. Any verdicts really lifted his earnings. On any reasonable estimation, he was pulling in $500,000 a year from defamation alone. 

    He put it this way to GLJ: 

    “The majority of my work is that a client pays some fees up front, as much as he can afford, but the rest of it is just on spec.” 

    For a time he was keen to file cases in Queensland because he wanted to get away from Justice David Hunt and he thought the judges there gave him a good reception. 

    He was also the proprietor of Leuralla, the magnificent deco house in Leura in the Blue Mountains. It was built in 1903 by his mother’s father, E.P (Harry) Andreas, a businessman and big-game fisherman. It was destroyed in a bushfire in 1909 and rebuilt in 1912. 

    Clive installed a train and toy museum there, which provided him with tax benefits. He delighted in dressing-up as a train conductor and greeting visitors at the front gate.  

    When it came to his own reputation he could be vigorously protective. Journalist Lynton Besser’s sister is an artist who lives in the Blue Mountains. She wrote a letter to the Blue Mountains Gazette complaining about all the Nazi toys at the Leuralla Museum and suggested he should put up a sign warning people about this before they came in. 

    The toys comprised a full military parade in front of Hitler with little Nazi flags. Besser’s sister received a steaming, threatening letter from the barrister. 

    The general consensus about Clive the person was that he was possessed of enormous amounts of charm, wiles and stamina. 

    Some of those who worked with him or against him have kindly volunteered their thoughts. 

    Justice Peter Applegarth, Supreme Court of Queensland

    In 1994, I was Clive’s junior in Murphy v Sun Newspapers, a jury trial in Brisbane. After legal argument on the first morning, Justice Shepherdson  gave an ex tempore ruling, during which he repeatedly said “Mr Evatt of Queen’s Counsel submitted …” The ruling went in Clive’s favour, after which he sprang to his feet and said, “I have to correct your Honour”.

    Tom Shepherdson was not a judge whom barristers tried to correct, and you could have heard a pin drop.

    Clive continued:

    “My name is Clive Evatt. Mr father’s name was Clive Evatt. He was a Queen’s Counsel. Unfortunately, the title is not hereditary.” 

    This “Young Clive” charm offensive worked a treat on the judge. After a good day in court, the case was happily settled that evening.

    Sandy Dawson SC

    “What have I done now? … Tell me all your troubles”. These were Clive’s two standard greetings whenever I rang him to talk about one of the many cases we did against each other. 

    No matter what the topic for discussion, he would always make you laugh. I remember one call in particular when I was questioning the merits of the case he had brought. He said, in that distinctive high-pitched and croaky voice, “Now look. Don’t get too shirty with me young man. I’ve thought up a lot of cases to keep you busy. So don’t complain too much.”

    Clive was a formidable and dangerous opponent in a defamation case, particularly in front of a jury. He combined wit, charm, humour and clever legal arguments to win cases for many a plaintiff, even those who seemed entirely unworthy. 

    A number of his opponents, distracted by his age and the apparently disorganised sea of paper on the Bar table, underestimated him. But just as those who were investigated by Peter Falk’s character Columbo learned to their peril, this was a grave mistake.

    As was falling victim to his distraction techniques. He built false confidence in the uninitiated opponent by telling them that his own case was hopeless and that they had the jury eating out of their hands.

    Or he just got under your skin. He infuriated one opponent by constantly leaving his cane under that part of the Bar table where the lectern sat, so that every time the opposing counsel stood up to address the court he stumbled on the cane and lost his balance.

    In a fit of rage induced by having fallen for this yet again, the discombobulated silk kicked the cane angrily away muttering expletives, much to the horror of the judge. Clive feigned innocence, breaking his wry smile only to say “Eh? What’s happening?” 

    In the last trial I did against him at the end of 2017, Clive was as wily and humorous as ever. He called a witness, a woman in her early 80s who had hobbled across the courtroom to the witness box.

    When she told the court her age, Clive remarked: “That’s not old. You’re just a spring chicken!” 

    It is strange, and sad, to think that the era – and that is what it was – has come to an end. But when I think of Clive, it will always be with respect, great affection and a smile.

    Tom Blackburn SC

    No courtroom opponent was as convivial and polite to his opponents as Clive. 

    In decades of combat I never had a sharp word from him. He was not as consistently polite about his clients. Occasionally he would cheerfully bag out a client, once or twice in the client’s hearing. 

    When that happened, or when he jovially remarked on how lousy his case was, you knew he thought he was on a winner. When he was quieter, you knew he was worried. 

    In fact, Clive didn’t worry much. He played the odds. And he was a master of that invaluable skill of appearing engaged in a case, but unconcerned about winning it. 

    Clive completely eliminated the hard sell in his interaction with the jury. He knew that juries often respond well to that approach; they feel they aren’t being pressured or hoodwinked. 

    He got verdicts for a number of highly unpromising plaintiffs, though not even Clive’s wiliness was enough to get Stephen Dank or Captain Dragan over the line. 

    On the other hand, he won the Gacic litigation after 11 years in the courts. All over a restaurant review. 

    His cross-examinations were always short and concentrated on one or two points, and even when they were not effective, he was rarely bested. But one such occasion occurred in Stephen Dank’s case, where a medical expert had taken a very dim view of one of the plaintiff’s sports supplements. 

    Playing to the jury, Clive said with good-humoured incredulity: “Almost as bad as cyanide. Is that what you’re saying?” “Yes”, said the doctor. 

    In the course of a case, he could be a truly infuriating opponent; but whether that observation reflects on him or me is for others to judge. He continued to appear in very tough physical circumstances, and his cheerfulness and courage were admirable. 

    During our last case together, in January last year, he turned to me and said, “This might be the last time I see you”. 

    It was not the usual jokey banter; he meant it. So we had a convivial dinner. It was like drawing a line under years of combat, and parting as friends. 

    Judge Judith Gibson, District Court of NSW

    Although Clive Evatt has been described as appearing “invariably for the plaintiff” in defamation proceedings, his most significant contributions to defamation law have actually occurred in cases where he appeared for the defendant.

    In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, Clive successfully argued that, conformably with the principles set out in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, a local council was not entitled at common law to maintain a claim for damages for defamation. 

    Despite the insidious advance of human rights creeping into UK decisions as a result of art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the NSW Court of Appeal (by majority) applied those principles and dismissed the council’s claim. Kirby P even went on to note that, although Australia is not a party to the European Convention, art 19 of the International Covenant on Civil and Political Rights, to which Australia is a party, is “in similar terms” (at 688), a high point in freedom of speech law which arguably has not been equalled since. 

    As always, Clive had other arguments to put before the court which, although unsuccessful at the time, deserve revisiting today. 

    His submission that a claim for injurious falsehood was similarly impermissible found favour with Kirby P, but not with the majority. There is even a very faint hint of the doctrine of proportionality in Kirby P’s warning that the utility of injurious falsehood proceedings to recover meeting costs of $800 should be the subject of “serious consideration”. 

    In the course of his judgment, Kirby P discussed Clive’s other great invention for defendants, namely the cross-claim for abuse of process, which was the subject of the landmark decision of Hanrahan v Ainsworth (1985) 1 NSWLR 370.

    Clive had similarly original approaches to trivial claims. Although he was popularly supposed to be willing to bring proceedings over any claim, no matter how hopeless, he is one of the very few barristers able to persuade a jury to find for the defendant on the defence of unlikelihood of harm, namely in the Ainsworth v Burden trial (see the appeal at [2006] NSWCA 199). 

    Another ingenious submission in the Ainsworth v Burden trial was his preliminary (unsuccessful) application for a perpetual stay, Ainsworth v James [2005] NSWSC 338, on the basis that the defamation proceedings commenced against the defendant 12 years earlier now represented a serious challenge to his health. 

    James J dismissed the application, stating that such claims were possible in criminal but not in civil matters. Bizarrely, Mr Burden’s application for a stay was published as Ainsworth v James – a Freudian slip?

    Clive extended his interest in the defence of unlikelihood of harm to include the doctrine of proportionality in Adams v Bristow [2012] NSWCA 166. Although Clive was unsuccessful, it is interesting to compare the principles he unsuccessfully attempted to explain at first instance and on appeal with those set out by McCallum J in Kostov v Nationwide News Pty Ltd [2018] NSWSC 858. Once again, Clive was ahead of his time.

    Even in death, Clive will continue to be of assistance to defendants. While he was alive, opponents to defamation law reform were able to point to his active defamation practice as being (together with jury trials) the main reason for the large number and complexity of defamation proceedings. With Clive gone, his naysayers will have to confront the real causes (such as online publication) for these problems. 

    Richard Coleman, for many years Fairfax Media’s night lawyer 

    Clive was the publisher’s constant irritant.

    Even so, he could be disarming, as on the day outside the Defamation List when he said to me: “Some of my clients are on the shady side of doubtful.”

    It’s understandable that any such clients sought him out – Clive was a kindred spirit.

    Defamation is the game in which every player wins a prize and Clive won more than most.

    His business model was said to be $20K upfront to take the punter through to the jury’s verdict. Any offer of amends, as he told ABC Radio once, went into the bin. Clive wanted a trial, or the threat of a trial, the publisher’s worst nightmare.

    Negotiations were difficult. His opening gambit would be, “I’ve told him it’s a storm in a teacup but he won’t listen”. 

    With difficulty, you might get him down from gross to merely outrageous.

    His real preference, though, was to let it run through to trial. If he pulled the winning ticket there, as he sometimes did, then it was the business model’s best outcome: a payout for the punter and a gouge for his costs.

    Clive was devious but never dull. My lasting memory of him is the day he unexpectedly turned up at the Return of Subpoenas. 

    The deputy registrar was belting through the list at bewildering speed with the regular legal clerks and very junior solicitors handing up documents or objecting to production, claiming privilege or waiving confidentiality when Clive suddenly appeared bent over the table and all traffic came to a shuddering halt. 

    The deputy registrar looked up irritated and said, “Yes, what do you want Mr Evatt?” Pause. Then Clive said: “Well, what are the options?”

    Graham Hryce, solicitor 

    Clive was the most inventive libel lawyer ever. 

    He was a supreme strategist and ran his cases with extraordinary vigour and audacity. He won cases that no one else could have won. 

    Clive invented new legal principles when necessary – most notoriously the concept of “business defamation” – and convinced judges to accept them even though they were patently wrong. 

    Business defamation bit the dust in Chesterton v 2UE when the High Court said it was nonsense. 

    He was also a very effective jury advocate. Underneath the humour and bluster there was a first-class mind. Opponents underestimated him to their cost. On a personal level, he was a man of enormous charm and possessed a wicked sense of humour. His views of other barristers were succinct and pointed. Of one he said, “If he were a woman he would be perpetually pregnant”. 

    Clive could also laugh at himself. Some of his most amusing stories were about the proceedings in which he was struck off. 

    He said his father Clive Evatt QC swore an affidavit that was before the court in the proceedings brought by the Bar Association. Clive jnr said his father’s affidavit was complete claptrap. 

    Evatt QC was asked by counsel for the bar association, whether he was Clive Evatt QC? “Yes”. The father of the defendant? “Yes”. And you have prepared an affidavit? “Yes” And it’s a true and fair statement? “Well, it’s very kind of you to say so.”  

    Clive was simply unique. He is irreplaceable. 

    Published with kind permission of the Gazette of Law & Journalism 

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