Recent defamation cases: Johnny Depp, Ben Roberts-Smith, Christian Porter, etc.

Rob:

We’re going to talk about legal stuff, because there’s a lot of cases going on that are high profile in the media, and you just scratch your head sometimes and wonder what the hell is going on. Steven Brown, he’s a lawyer. He knows all about this stuff, and he’s been good enough to join us. Steve, welcome to The Pulse.

Steve Brown:

Morning, Rob. Morning, listeners.

Rob:

Good to have you, and hopefully have some clarity on a legal system that for we at the bottom end of the pecking order in society, scratch our heads and wonder the amount of money that, well, is available to be used to support these legal cases. Ben Roberts-Smith is one in Sydney that seems to be going on for six months. And, of course, the more catching the eye of the celebrities, the Johnny Depp and Amber Heard thing. Coming out of it all, apart from reputation, what on earth are they seeking to saver?

Steve Brown:

Well, that’s the funny thing, isn’t it, Rob, is that they go into these defamation cases saying that you’ve tarnished my reputation and I need to then go and get monetary compensation for that. But what we’ve seen happen a lot in the recent cases, so the Ben Roberts-Smith, the Johnny Depp, the Christian Porter, the Craig McLachlan ones, the list goes on is that they’ve got all these skeletons in their closet and more is coming out in the trial process that is damaging their reputation even further. So any monetary compensation they’re going to potentially receive, if they’re successful after spending hundreds of thousands of dollars on legal fees is going to be highly questionable because the whole reason they started this was to protect the reputation, which they’ve just gone and resulted in tarnishing it even further.

Rob:

Yeah, that’s the thing that’s been most extraordinary to me. And I suppose, I mean, Johnny Depp and Amber Heard’s interesting because they’ve probably been in that world. Their reputations are a bit on anyway, so no one’s really raising their eyes over what’s coming out there. But the Ben Roberts-Smith one is interesting because he seems to have damaged his own reputation more than an article in a newspaper did. So in hindsight, if he’d had just not said anything and let things flow over as they normally would, no one have even remembered now who Ben Roberts-Smith was and everyone could live happily ever after.

Steve Brown:

Exactly. And maybe it’s, if you publicly do have your name tarnished, is it appropriate to come out publicly and try to set the record straight? But that’s not what a court and trial process will do. So there’s a part of the trial process and leading into it is a process called discovery where the parties have to reveal all of the information that they have, documents, emails, anything electronic, text messages that relate to the issues in dispute. And we saw recently the Clive Palmer and the WA state Premier Mark McGowan case, is some text messages between the WA Premier and the Attorney-General that came out in the discovery process was not highly flattering of them, that they would’ve preferred the public not to know about. So going into it with a view that you’re going to improve your reputation by a defamation case is often highly fraud.

Rob:

Just on that, the cynic in me suggests, and I apologize to you personally, but your fraternity is probably going to get a wack here, but in the Ben Roberts-Smith case, has he received bad advice or do you sense that once sort of an endless pit of money seemed available that the solicitors thought, well, the more time we can drag this out, the better off it’s going to be for us financially?

Steve Brown:

It’s very hard to see beyond inside of the strategy of a side acting on a matter, but what you can say in hindsight and looking at the matter now, you would have to say that the strategy and the approach on that matter hasn’t been the most best thought-out approach. Because what we’ve seen is, even if a whole lot of that evidence is not true, the fact that it’s getting aired every day in the radio, the papers, the TV is highly damaging to his reputation. I mean, what Ben Roberts-Smith is going to be able to do with his career moving forward from here, when he had moved into the media and he was building a successful career after his military career, now is, yes, he has the backing of 7 and they’ll spend a million dollars or more on legal fees in this matter. It’s probably likely to be the longest defamation case in Australian history. But yeah, one would have to question the strategy that’s been taken in the trial.

Rob:

I wondered about Ben Roberts-Smith’s career beyond the case and how badly it is damaged, but we’ve certainly seen cases where media outlets have been happy to take on damaged goods. And being a sport nut that I am, I look at the Channel 7 football coverage, and I see Wayne Carey still very much the face of Channel 7 and I shudder, and I know a lot of my female friends shutter even more, but that’s an interesting thing to say, well, even though they are damaged goods, they’re not totally damaged. As long as their skin is thick enough, they can still front up to the public and go about a relatively normal life.

Steve Brown:

Yeah, it is interesting, isn’t it? And what we, as the public will forget and how quickly we’ll forget it, we move in a very fast news cycle world today. How long these things will stick for, the fact that it’s now been probably about a year, because of all the lockdowns and the issues with COVID that have also resulted in the Ben Roberts-Smith trial going for so long. But yeah, it’ll be very interesting to see how that does play out longer term for it.

Rob:

The Johnny Depp one is more interesting. As I said, it’s almost just naturally… It’s like another theater production, live stage theater at the moment. So I don’t think anyone is going to be too concerned about Johnny Depp’s reputation. I’m sure if he leaves the court and goes and makes another movie, it’ll still pack cinemas out. So there’s less likely to be damage there, but with celebrities like that, is it just that there’s an almost endless amount of money, means that they’re more than happy to keep turning up at court to play out a saga?

Steve Brown:

Well, the Johnny Depp and Amber Heard one is interesting because they’ve had a shot at it [inaudible 00:06:37] and he didn’t succeed there. So now he’s having a shot in the US, but that seems to be a vendetta. It seems to be a very personal vendetta that is being played out in a courtroom and a courtroom’s not the place for personal vendetta to be played out because the whole system and structure is not there to resolve hurt feelings. It’s there to either stop someone from doing something such as an injunction to stop an event occurring that would’ve been horrendous or it’s to provide monetary compensation for something that’s occurred. And none of that is going to fix the issues that Johnny Depp has with Amber Heard or vice versa.

Rob:

Another interesting statement I like is settled out of court. There’s been a lot of high-profile cases and I suppose Christian Porter’s is the most recent high-profile one in Australia. Then it gets to the stage, it’s almost going to go in for the big courtroom punch up. And then we have the settled out of court and both parties walk away. And in this case, both parties walked away claiming victory. That was a little odd. Is that usually the best way to fix these issues is to create the big high-profile issue, and then just resolve it quietly behind the scenes?

Steve Brown:

Generally, the astute people will play the game that way, Rob. But what we can see, Christian Porter, it’s ended up ruining his political career anyway. So the whole thing of taking that to trial and making it a bigger issue didn’t work for him either. I think it probably depends on the individual and the individual circumstances, but it’s often a way in which even just normal commercial disputes are tackled, is if there’s not a reasonable negotiation happening without court proceedings, sometimes it takes upping the ante and commencing proceeding in court to get the other party, to take it seriously enough to get them on the table and talk a reasonable settlement.

Rob:

Another thing that the court does is it does damage reputations seemingly needlessly and unfairly. And the one that sticks in my thought at the moment is the behind the scenes trial of Bernard Collaery and Witness K from memory, two gentlemen who found themselves inadvertently involved in a political scandal. And they’re up against definitely an endless stream of money when you’re dealing with government lawyers. That’s very messy and ugly, and we don’t hear much about it in the news, but there’s nothing pleasant about that for anyone concerned, I wouldn’t have thought.

Steve Brown:

No, it’s a really interesting one, Rob. So it’s been going for four years now. What we’ve seen is that… And we’re still just dealing with interlocutory disputes, which means disputes before we’ve actually got to a final trial. And these disputes at the moment are about whether or not information that has been heard in the court can be released to the public. Now, one of the foundations of our system of justice is that it occurs publicly so people can know and hear and understand so that it can be up to public scrutiny what’s occurring. And what we’ve seen there is that the ACT Supreme Court made a finding in regard to disclosing it, that was then appealed to the Court of Appeal. And they’ve again said that some of this information that the Morrison government says is too secret to be revealed, it can be revealed. And now they’re seeking to appeal that to the High Court and the High Court hasn’t yet decided whether or not they’ll actually even hear the appeal.

Steve Brown:

But it is a very political issue, and it’s a play here because there’s obviously some things that happened with that Timorese negotiations relating to the rights to gas. There’s been some inappropriate things done clearly, I think. And what they’re saying is that constantly the issue of what is a state secret, depending on what’s politically playing in the world at the moment is changing. And that’s therefore constantly, the government lawyers coming back and say, “Oh, we’ve got new evidence. We’ve got new facts.” Because now, because of this going on in the world, that information becomes a state secret.

Rob:

Perception is an interesting thing. My favorite saying of all is perception is reality. And when you’ve got someone screaming innocence, but not wanting any information made public, there’s an instant perception that one is drawn to of course. And that’s that it’s not as squeaky clean as appears, and the longer this goes on, the more murky and messy it looks, and the more public money being spent to keep it in secret leaves me with only one possible perception. And I suppose many in the general public as well. Is perception a healthy and damaging thing for reputation as well?

Steve Brown:

Yeah. Exactly. And that’s part of the problem that we see with these cases is that usually the public at large don’t hear the whole day’s evidence or the whole week’s evidence. They hear snippets in radio bites, see headlines in a newspaper, or on a website, might read a paragraph here or there. And so what happens is the sensationalized bits come out and the public hear about that, but they might not hear about a whole lot of the other evidence that might have carved that in a slightly different light.

Rob:

And that brings us to another thing about the role of media. It’s certainly not fair. No one could possibly for a moment think that it is fair because it’s very much cherry-picked for what is going to give them the best return for their media program, whether it be paper, television, or radio. So, is there a way of fixing that or is that just something society has to live with the role of media?

Steve Brown:

I think it’s twofold, isn’t it? A lot of these defamation cases are against media outlets. So, that makes it even more interesting as to the impartiality of what’s being heard by the public. The other thing that is playing out is that probably with the rise of technology, there is a lot more expansive types of media out there. We used to have the large media houses, running newspapers, radio stations, television programs, but now we’ve also got a lot on the internet there available for people to absorb, some of it’s questionable in the truth content of it. So there is more of it, I think available, but yes, of course, the nature of it is they’re either there to… Most of them need to sell and ratings are a king.

Rob:

One of the other things getting right down to the bottom every day, there are cases that are not fair. People are poorly treated, whether it be reputation or financially, or even physically harmed, which causes major medical bills, but their ability to get compensation in the legal system doesn’t seem even remotely fair. It’s all about how much money you’ve got to be able to pay for quality legal service to get your compensation. It’s led to a lot of, what do you call not pro bono, but a lot of legal companies that’ll fee for service type of arrangement.

Steve Brown:

No win, no fee.

Rob:

Yeah. I guess that they’re very choosy about who they pick too. So is it with that type of provision for legal service that we’re somewhere nearer to being fair?

Steve Brown:

No, there’s still so many people that are denied the justice system because of the expense of it and the way in which it’s structured and the way in which technically very proficient lawyers can play the game, so to speak, to make the matter go for longer if they’re acting for a wealthy defendant or plaintiff. That makes it very difficult for someone else that is not of the same means to be able to run the litigation against them.

Rob:

There’s been a lot of very famous pro bono work done by people who have a massive heart. And they probably got themselves into a financial situation of comfort. One of the biggest problems, of course, is not just that you don’t have the money to go to court in the first place, it’s that you don’t have the money to wear down the amount of money that’s on the other side of the case. And that seems to be the most unfair part about the system that people can just keep deferring or bringing in new witnesses or new things and just drag things out until they bleed their opposition dry. That’s probably the most unfair and unhealthy part about our legal system. Is there any way that could be changed with legislation?

Steve Brown:

Surprisingly the courts are a lot better than when I started doing this 25 years ago in doing what we call case management, which means making the matter, move along. So causing things to have, to keep moving towards an eventual resolution of it. They’re also a lot better at mediating. So helping the parties to negotiate a resolution of the dispute. But when we get into these bigger high-profile matters and the parties have endless resources to throw at them, that’s when we see these trials really blowing out to multiple-year events.

Rob:

Locally, the Barwon Legal Health Service, and I’m sure they’re all around the place, Barwon Community Legal Service is a local company that does allow people with limited funds to get as close as they can to justice. They’re certainly in Geelong, there’s a 1-300 number for people listening that have got ideas in their mind about getting some form of retribution if you’ve been wrong, but 1-300-430-599, that’s 1-300-430-599, or you can go onto the internet, and it’s barwoncommunitylegal.org.au. And that service is all the regions around Geelong. I suppose they’re common all around Australia, Steve, but are they really adequate?

Steve Brown:

No. I mean, that’s the thing is that they’re not sufficiently financed by government to be able to deal with the demand for their services and the same with our justice system, it’s hugely underfunded and that causes delays because the less… But not just lawyers that are funded from community service, but also the court system itself, the volume of matters that it’s having to deal with. And the number of staff that are actually employed to be able to handle it is causing delays and those delays cause added expense.

Rob:

Yeah. And I suppose the other thing is the passion for the lawyer, someone who goes to law school and trains up, they’re probably motivated for different reasons. And I suppose there’s many that want to get deep into the high paying corporate world. There’s others that are compassionate and empathetic and do want to work for the hard done by. From your experience, those coming through the system at the moment, are we still getting a mix of the type of people that are drawn to law?

Steve Brown:

Yeah, definitely, Rob. And there is a lot of pro bono work done within the legal fraternity as well. There are also a lot of them that are making a hell of a lot of money from it. So there is definitely still a mixture. And the newly graduated lawyers as well, that are coming through the system, I think you’ll find very similar from what I can see anyway, some of them, there’s a whole span of different motivations for why they’ve entered that career.

Rob:

Another one of the perceptions that I have about the legal system is that governments make laws that are more and more complicated to make sure that the legal fraternity are going to be needed into the future because, well, I guess lawyers make laws. Is that a fair perception to make?

Steve Brown:

What I think is we live in a more and more complicated world. If we want all the benefits of the things that come with that complication, so the more we have in the world, the more different things that are going on and the more benefits that we derive from that as a society creates a more complex legal system that has to deal with it. So I think the laws are systemic of where we’re going as society and the more involved, technical, complicated world that we live in today, the laws just reflect that rather than the laws creating the complexity.

Rob:

Yeah. And I imagine the government’s sort of messy handling of the Religious Discrimination Bill is a good example of that because the perception of discrimination is becoming more and more varied, wide, broad, whatever you want to look at it that legal minds are required more than ever to decipher through it, but even writing it up in the first place to try and get it fair and equitable for the different needs and wants of people would be a legal nightmare in itself.

Steve Brown:

Yes, definitely. And what the writers of the legislation are dealing with is that there is a lot more legislation out there. So every time they create a bit of legislation, they’ve got to work out, well, is this touching on anything else that’s already out there? How does this play with this other piece of legislation, do they work hand in hand? Do they contradict each other? And as we get a more complex society, and as we’ve had a bit over 100 years of parliament law making in this country, and the longer that goes, the likelihood we’ll have more legislation.

Rob:

High courts are interesting too. It’s the last line of anyone’s defense or attack. And I find it intriguing that the laws must be difficult to have been written and read if you have the best legal minds in the land, all sitting together. And there’s five of them and they come up with three have one opinion and two have the other means that if they can’t get it right, is it ever going to be right?

Steve Brown:

It is very interesting when it can get that close. It doesn’t often get that close. But yes, you can go to the highest court in the land with some of the best legal minds in the country, and it can be swayed by one decision that could have a very longterm effect on the direction of Australian society.

Rob:

It’s definitely not like, well, I suppose it’s almost still like umpiring a game. It’s about perception, isn’t it? It can be written in so many different words in so many different ways, but at the end of the day, it’s still about the perception of it all, as opposed to the hard, cold, hard facts, it’s either right or it’s wrong. It’s just a very murky and complicated system and you’re up to your eyeballs in it. Do you still enjoy your work?

Steve Brown:

Yeah. I love it still, Rob. Like any other job, it has it days where I’d prefer to be doing something else. But I like the people I interact with and seeing a result for someone, taking something off someone’s shoulders that was really bothering them in life and being able to help find a path to solve that for them.

Rob:

Are you a different person now than when you started 25 years ago?

Steve Brown:

I’m a lot more cynical. You see a bit in this job that changes you. I probably used to think almost all people were mainly good. I probably have a slightly different view of the world and my perception of how people attack the world in life. But yeah, certainly.

Rob:

No. Interesting. I remember going to a function here in Geelong and there was a very famous Melbourne criminal barrister who was here. And he lost me when he was gloating about how he was putting criminals back on the street because the police were stupid. And I just thought as a society, we’ve got things a little bit wrong if that’s the way the legal system goes. So I’m glad to find that after all this time you’ve become more cynical. I think you’ve restored my faith in the occupation. So good on you. I’m really pleased, Steven, that you’re able to do this at short notice. I genuinely appreciate your support and your knowledge and I thoroughly enjoyed that conversation. I might tap in again and we’ll do something some other day if you enjoyed it as much as I did. I really appreciate your time.

Steve Brown:

Really enjoyed it. Thanks, Rob.

Rob:

All the best. Steve Brown, he’s a lawyer who I was only able to manage to get last-