Lawyers' threatening letters ... Heavy handed attempts to get the media or campaigning activists to back-off ... Spectre of defamation proceedings and aggravated damages ... Huffing and puffing that goes nowhere
Bruce Robertson and family on their farm near Wingham, NSW. (pic SMH)
LET us together share those lawyers' menacing letters that have recently come back to bite writers and clients alike on their bums.
First, the notorious, over-the-top threat from Robert Todd at Ashurst directed to former corporate analyst turned Burrell Creek cattle farmer Bruce Robertson.
Here's Todd's letter in full.
You'll note it's headed "strictly not for publication", which suggests that he wanted his threat to be kept under-cover. To a layperson it means: "Mention this to anyone and we'll have you."
Robertson had been holding a candle to the nation's electricity transmitters, claiming that their justifications for price rises were bollocks.
He attributed the price hikes to excessive "gold-plating" of the network and not the carbon tax or increased consumer demand, as the transmission giants claimed.
The Productivity Commission agreed with Bruce about inaccuracies in the network's data. The farmer took his arguments to the media and to a senate inquiry.
Ashurst's Robert Todd said he was writing on behalf of Grid Australia, which is supposedly the peak body of state owned power companies sitting on $10 billion of network assets.
Todd's clients "are seriously concerned about the unfounded and defamatory allegations".
Robertson is "wilfully or at best recklessly ignoring the facts" and his public utterances convey imputations that Grid Australia has misled a senate inquiry and consumers.
Robertson was to refrain from republishing his submissions to the senate "outside the parliamentary process"; take down the submission from his website; publish an apology; refrain from further defamatory publications about Grid Australia; and pay costs.
All of those things were to be done "immediately".
There was a further menacing flourish about "malice and improper purpose".
Robertson's facts could not have been too far wide of the mark because 10 days after Todd wrote his letter the chairman of Grid Australia, Peter McIntyre, apologised to Robertson and withdrew the legal threats.
"I refer to the letter sent to you by Ashurst on 5 November 2012.
I sincerely apologise if this correspondence caused you or your family concern in regard to pending legal action. I have instructed Ashurst that Grid Australia has no intention of taking legal action against you in regard to the matters referred to in that letter."
Robert Todd is a media and IP partner whose job is defending grubby News Ltd publications. This makes his threat to Robertson all the more surprising.
Media lawyer and former head of the ABC's legal department Bruce Donald says Ashurst's letter is "an entirely unacceptable letter of demand".
He points to the fact that Grid Australia is not an incorporated entity and that the members of the outfit are all government agencies or large corporations, which run the national electricity market.
They would have no standing to bring an action in defamation. Where's their "hurt and distress"?
Todd doesn't name any natural person who might have been defamed by Robertson, nor does he spell out any ground for an action in injurious falsehood.
Senator Matt Thistlethwaite (ALP, NSW) says that threatening a witness to a parliamentary inquiry might well be a contempt of parliament. Witnesses are protected under the Parliamentary Privileges Act.
It now turns out that the ABN number being used by Grid Australia is actually owned by a graphic design company in Melbourne, Grid Australia Pty Ltd, whose sole director is Daniel Rosenberg of Caulfield South.
Rosenberg says he's never heard of Transgrid or any of the other members of the organisation's five electricity members.
The peak power body is not a registered entity and appears to be using someone else's ABN.
The mystery deepens.
The Sydney Morning Herald also put a series of questions to Ashurst:
- On what legal grounds is Ashurst basing its threats?
- On what ethical grounds is Ashurst basing its threats?
- Was Ashurst happy for Robertson - a man of integrity and honesty - to lose his farm and his livelihood in the process of Ashurst making a fee?
The firm's greatest minds puzzled over those queries, but were unable to offer any answers
* * *
(Holy) Moses Obeid
HERE is the letter that Colin Biggers & Paisley partner David Miller sent to the editor of The Sydney Morning Herald on May 17, 2010, on behalf of Moses Obeid, son of the slippery old political eel, Eddie Obeid.
It was prompted by a phone call to Moses from Herald reporter Anne Davies who was inquiring about the Obeids' property in the Bylong Valley and associated coal deposits under their land.
Miller made it clear that the Obeids were only interested in the beef cattle on the farm and that there was no link between their land and the "granting of certain resource exploration licences by the NSW government in the Bylong Valley region".
"Mr Obeid and the Obeid family are well regarded in the Bylong Valley area. The contact made by Ms Davies with Bylong Valley residents may damage that reputation."
Malice and aggravated damages were bandied about as things that would flow from publication of "false allegations".
Three days later the Herald did publish an article by Davies which linked the Obeids, their land in the Bylong Valley and coal exploration licences.
See: Coal down below: how rich is his valley
ICAC is now examining whether the relevant minister at the time, Ian Macdonald, was corruptly influenced by Eddie Obeid, or members of his family, to open a coal mining area in the Bylong Valley.
In 2008, Colin Biggers & Paisley partners Chris Rumore and Greg Skehan did work for the Obeids in establishing companies and trusts that had the effect of masking the the family's interest in the proposed mining venture.
So the "false allegations" must have turned out to be accurate, because no claim for damages relating to this article was made by the Obeids or their lawyers.
On November 14, Chris Rumore was asked during the ICAC inquiry:
"Have you even met Mr Obeid senior? - No.
Have you ever spoken to him? - No.
In there course of 2008 were you aware that Mr Obeid Senior was a politician? - No.
You didn't see his name in a newspaper? - I don't read newspapers."