Thursday, 21 October 2010

Your own Colour-Coded Courtroom Culler deCoder

Blog readers will have been following the unfolding drama surrounding the defamation against against CairnsBlog and it's author, Michael Moore.

Cairns Regional Councillor, who is right now somewhere in China on an all-expenses paid trip to learn something about culture, is suing for $350,000 defamation. There has been a number of supporters who have come forward, including Councillors Robert Pyne and Diane Fosyth, and a number of blog supporters.

Community activist and proponent of free speech, Bryan Law recaps the current lawsuit...

CairnsBlog's author Michael Moore’s legal position has been widely noticed and commented on in Cairns and around Australia. The conventional media first began seeking comment when Councillor Alan Blake’s case was filed with the Supreme Court in August, and details of the claim were made public.

The full range of opinions has since been expressed, from lawyers and non-lawyers alike. Mike is either doomed or certain of success. Amazingly brave or wilfully stupid. Breaking new ground or boringly derivative.

As a community service, CairnsBlog has published the legal documents and correspondence between the parties since the action commenced. A key purpose of the CairnsBlog publication is to provide an accessible case study, as it unfolds, of a local government politician suing a blogger for defamation, including for comments made by unknown third parties.

Such actions are both anti-democratic and increasingly prevalent.

It serves the public interest that such actions are scrutinised in public, and defeated in the Courts. Expanding and enhancing responsible freedom of speech. particularly in matters of politics and governance.

To help us and our readers, we’ve constructed a kind of flow chart, containing all the letters, actions, and applications that have taken place so far. The actual correspondence has been separately published as “Love Letters.”

FIGURE 1 (Schema)
This shows the present state of play. While it’s presented as a flat piece of paper, it’s best viewed as a cylinder, showing the political and legal contests as parallel, but separate.

The boxes marked with a red cross are defunct. More boxes will become defunct after the Supreme Court mention on 29th October. That's next Friday.

On 29 October, defendant Michael Moore is asking for a ruling from the Court about the defect in Alan Blake’s originating claim, namely, the failure to include a solicitor’s name is in breach of Uniform Civil Procedure Rules 17(1)(b)(ii).)

Robert Owen, Blake’s solicitor, as much as admitted this defect by filing an amended claim on 28th September. Can the original claim survive that defect, and is the amendment properly made? Mike can’t just take Mr Owen’s word for it. Nor does he have legal representation at this stage. Nor the beginning of a clue about the Supreme Court process. So he’s asking for a ruling from the Judge.

If the Judge rules one way, the present suit will disappear, and a new suit may or may not emerge.

If the Judge rules another way, the present suit will be greatly simplified, and the state of play will be as as follows...

FIGURE 2 (Post Schema).
Mike has completed an Amended Defence, which he is hoping will be considered a valid defence.

Meanwhile, Mike has made a without prejudice offer to Alan that includes an offer of apology and retraction, and explains the social and political context of any “defamatory imputation”. This will be published soon on CairnsBlog.

It would be best for all concerned that this matter be resolved amicably. We’re certain that Councillor Blake is able to endorse a vigorous, fearless discussion about politics among the communities of Cairns and district. Such discussion can be conducted in respectful and constructive manner. We are sure the matter can be settled amicably out of court.

Failing that, Mike will have to continue to participate in a legal process in which he is disadvantaged.

The longer the formal legal contest runs, the greater threats and penalties Mike and CairnsBlog will face. The more he will need quality legal representation.

Despite the cost and risk, a continuing suit will provide opportunities to further illuminate the nature of Alan Blake’s performance as a Cairns Regional Councillor through, among other things, seeking discovery of relevant documents held by Alan Blake and even of documents held by Cairns Regional Council. We’ll see.

Politically, Mike has survived the initial skirmish. As a non-lawyer, Mike found the level of threat, and all the time-constraints of an unfamiliar process, both confronting and daunting. The legal advantage is with Alan Blake. Mike has limited means. I think the technical term for Mike’s legal position is “pushing shit up hill”.

However, there is also a political context. When Mike spread the word about his situation, he started getting feedback which included valuable information from a wide variety of supporters. Mike discovered that Councillor Alan Blake had applied to the Cairns Regional Council for an indemnity so that Council would pay all his legal costs. A campaign put paid to that plan with Council CEO Lyn Russell refusing any support. Alan now has to fund his own action.

Mike also discovered that the originating claim was defective because it failed to disclose Robert Owen’s name as the Plaintiff’s solicitor. Mr Owen had to submit an “Amended Claim”.

In the time these things have bought him, Mike has been able to consult with a variety of supporters, and now believes he is able to proceed through the next stage of the suit, if there is one.

See you all next Friday, 29th October, at the Cairns Supreme Court, 10am.

1 comment:

Michael Hyams said...

Thank you Brian for your efforts to inform those of us who, whilst knowing Michael, have been dumstruck by the antics ofa tin-pot local Councillor taking him to Court, are pleased to be able to benefit from your analysis of the situation of peril which faces Michael. This is not just a battle between a crassly thin skinned Council member and a proponent of "new Media", it is a perfect example of how the law serves only those who can afford it. If Michael's offer of a published apology (I don't know what for) and a` retraction of anything he has published is rejected then I think any fair minded persons's opinion of Blake will be further dimished. My reason for this comment isnot just to let off steam and
"have my say" It is` intended to try and persuade blog readers to attend court, as I hopeand expect to do, to give Michael the moral support he deserves.Heaven help us, if everyone in Public Office went running to the Courts each time they were belittled or had metaphorical bricks thrown at them, the Justice system would very soon collapse. Perhaps the answer is for any candidate for Public Office to have a "skin-thickness" test. We can take it for granted that many have thick heads