Friday, 23 January 2015

Defamation Litigation May Not Stop The Discussion

Campbell Newman -v- Alan Jones - Defamation

An understanding of normal litigation practice may give some insight into why Campbell Newman launched the Defamation proceedings against Alan Jones in the way that he did.

One would normally expect relevant instructions to have been given from Campbell Newman to his Solicitors and they ask relevant questions of him to confirm his instructions and the nature of his complaint. There may also be some research needed on the part of the Solicitors to obtain relevant supporting material for the complaint.

The Solicitors would then prepare a Brief to Counsel to advise on the matter generally and the prospects of success of Mr Newman. That may also involve a conference with Counsel to confirm the instructions of Mr Newman and the direction in which he wished to proceed.

Counsel would then be briefed to Settle the Claim and Statement of Claim, the Court documents which set out the claim and the relevant facts and contentions of the Plaintiff.

Where Counsel has settled the proceedings, normal practice is that a statement as such should be included at the end of the pleading (eg This pleading was settled by [x] of Counsel). There appeared to be no such statement at the end of the published documents. There being no statement that the relevant documents were settled by Counsel, it would seem they were prepared and finalised by the Solicitors.

A perusal of those published documents reveals that:

  • The alleged defamatory Publication occurred on:
  • Monday 19 January 2015;
  • Tuesday 20 January 2015; and
  • Wednesday 21 January 2015.
  • On Thursday 22 January 2015 the relevant legal proceedings were filed in the Supreme Court of Queensland, Brisbane Registry (BS 820 of 2015)
  • No mention is made of a "Concerns Notice" being sent by the Plaintiff to the Defendant

Further, an Audio Recording of the Defendant (Friday 23 January 2015) suggests no "Concerns Notice" was sent by the Plaintiff to the Defendant.

Given the foregoing and the apparently short time taken to prepare and file the subject proceedings (1-3 days), it appears that they were prepared by the Solicitors only.

It is expected that the Defendants will defend the litigation and in so doing prepare, file and serve a detailed Defence to the subject Statement of Claim. It may be that upon being served with the Defence of the Defendants, the Plaintiff decides to re-plead its Statement of Claim and engage Counsel to do so.

In the circumstances it is submitted, it is reasonable to conclude that the subject proceedings were designed to stop discussion of issues during the election campaign, rather than were issued to truly prosecute the subject alleged defamation.

One of the problems with litigating alleged defamation is the litigation discusses the issue/s the Plaintiff does not want to discuss. (See Queensland Premier suing Alan Jones is ‘risky’: legal experts)

The tactical wisdom in pursuing that litigation in that fashion is a relevant consideration. Insofar as the 2015 State election is concerned, it may have the effect of focussing attention upon issues Mr Newman would rather not discuss.