gunns 20
5 Feb 2010
Gunns Backs Down
Last week the case against the Gunns 20 was dropped. Will the failed case deter other corporations from taking protestors to court? Greg Ogle reviews a five-year-long corporate PR disaster
The so-called Gunns 20 lawsuit dates back to December 2004 when Tasmanian forestry giant Gunns Ltd sued 20 environmentalists, including Bob Brown and the Wilderness Society. The case lasted more than five years, turned into three different cases and had 52 appearances in court. Pleadings ran to thousands of pages and millions of dollars worth of costs accrued.
With one minor exception, however, the Gunns 20 lawsuit set no legal precedent.
In the course of arguments over the production of documents, the notion of "commercial-in-confidence" was probably extended to the operation of the non-commercial activities of community organisations but apart from that, the Gunns 20 case has had little legal significance. The truth is that for most defendants, it never got near a trial. There was no judgment of the facts of the case, the alleged wrong done to the company or the right to protest — issues which were at the heart of the lawsuit.
Two years after the case opened, Gunns dropped half their claims for damages, including all claims relating to the alleged unlawful lobbying of banks and the approach to Gunns’ Japanese customers in relation to the timber company’s logging of native forests. Greens MPs Bob Brown and Peg Putt and two other defendants exited the case at that time with their expenses paid by Gunns.
Four years on, in 2008, Gunns dropped the case against the Wilderness Society and its officers. They paid out over $300,000 in costs against the only defendant which had serious assets to claim against should Gunns ever have been successful. Along the way other individual defendants were dropped from the case, some giving undertakings not to engage in particular kinds of protest in the future.
Finally, last week, Gunns agreed to discontinue the case against the final four defendants, paying them $155,000 for their troubles. In all, the case probably cost Gunns over $4 million — and a lot of bad publicity. It was here that a key precedent was set: a political precedent.
Ever since two self-represented activists humiliated hamburger giant McDonald’s in England’s longest-running libel case in the 1990s, big companies with public images to protect have avoided suing their political opponents. To do so gives opponents notoriety, public sympathy, access to company documents and makes the company look like a bully. In short, it is very bad PR for companies who often spend millions of dollars building their corporate image and reputation.
Since McLibel, in Australia at least, those suing critics and community activists have largely been smaller companies, developers or individuals who did not have big public images. They tended to have all their financial investment concentrated in one project and were less sensitive to their broader public or market image.
The Gunns 20 case threatened to change all that. Had Gunns been successful, had environmentalists been silenced as a result of the lawsuit, then a clear message would have been sent to corporate Australia that the McLibel precedent was dead and that there was mileage to be made by issuing SLAPP suits (or Strategic Litigation Against Public Participation).
The reverse happened. While the Gunns 20 case did have an impact on environmentalists and their campaign during the five years it ran, protests in the Tasmanian forests continued nonetheless and a huge campaign against Gunns’ proposed pulp mill gained momentum. (The Gunns 20 case was launched in the same week as the proposal to build the pulp mill in the Tamar Valley.)
The whole case generated plenty of bad publicity for Gunns. it damaged their corporate reputation and worked to reignite the campaigning that had triggered the original suit. Forest conservation groups in Japan, Europe and America began protesting about Gunns’ logging practices and targeting Gunns’ customers in those countries, while the pulp mill itself became mired in controversy.
Gunns had little social licence left when the global financial crisis sabotaged early attempts to finance the biggest pulp mill in the southern hemisphere — even their bank, ANZ, agreed with critics of the pulp mill and declined to finance it. Gunns’ current preferred partner in the mill, the Swedish pulp and paper company Sodra Ltd, is putting conditions on its involvement which will require Gunns to pursue a new model of engagement with the community. It is unlikely that this new model includes suing environmentalists.
The pressure of bad publicity, the risk to the pulp mill project and a court case with little left in it over a protest which took place seven years ago all combined to force Gunns to pull out of the case on the eve of the trial. Gunns stated that this was a "commercial decision to avoid the need for a lengthy and expensive court case". But it was always going to be a lengthy and expensive court case. The fact that Gunns agreed to pay a substantial sum to the defendants to end the case shows the pressure the corporation was under. It was, as a judge described the dropping of claims earlier in the case, a capitulation.
Gunns are still suing 13 other activists in an unrelated case after a protest at Triabunna woodchip mill in December 2008, but, like the Gunns 20 case, it seems unlikely that this one will ever get to court. Rather than dragging out proceedings unnecessarily — only to make another "commercial decision" — Gunns should take another step toward rebuilding its corporate reputation and settle this case.
The Gunns 20 defendants met in Melbourne this week to celebrate the end of the case. While they have their own costs to count in terms of stress and lost time, as well as substantial personal financial costs, they can be proud that they have set a great precedent for the community’s right to free speech and political protest.
Anyone in corporate Australia should look to the Gunns case and know that taking political disagreements with members of the community into the court system can be disastrous. The Gunns 20 should loom alongside the McLibel case in the PR text books that advise companies it is better to engage with opponents than to try to destroy them.
Of course, while the Gunns precedent should loom large, there will always be a cowboy somewhere who thinks going to court to silence opponents is a good thing and for this reason we also need anti-SLAPP law reform. The Gunns case was pivotal to the passage of Australia’s first "anti-SLAPP" legislation in the ACT, but while the bill introduced by Greens MLA Deb Foskey was good, the government severely amended it and limited the usefulness of many provisions.
However, it is a start, and we need more and better legislation like it, just as we need activists like those who made up the Gunns 20 who will stand up to the big corporations and their legal teams.
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Yeah, Krudd, we need anti-SLAPP legislation, right NOW!
Tell all your Big Corporation mates to ‘stuff-off’, and do something for ordinary people for once. Bit of a radical change, I know!
But there is an election coming up, and although all the big money is going to come from your ‘mates’ in Big Business (Big Coal in particular) you still need a few ordinary citizens to vote for you and yours.
Best wishes for the future to the ‘Gunns 20’ from me!
Best wishes to all who fight Big Polluters, in whatever way.
And yeah, I know, Kevvie baby, your mates in the corrupt Tasmanian Labor Government must also be feeling the electoral heat!
Hope so! Go the Greens!
Mozzi - go dazza and yeah - Go the Greens. And thanks Get Up for telling ANZ not to back Gunns!
Great article! Fabulous to read some positive news for once! I second the above comments and commend all those involved. FIGHT THE POWER! Get up should get onto SLAPP suits!
… and Tasmania needs an anti-corruption watchdog. The Tas government has long been a little too chummy with Gunns.
I should probably point out though that while it’s likely that ANZ refused to fund the pulp mill due to the negative public sentiment towards the mill, they actually cited other reasons why the funding wouldn’t go ahead. (cowards)
Without the full support of the state government in everything the were doing, would Gunns have considered starting this case? Surely Labor is also at fault, for giving Gunns / John Gay the impression that Gunns ruled the state, and had the right to squash opposition?
This was just before the announcement of the pulp mill, when John Gay and Lennon must have had a lot of discussions, and Lennon was always like a bull in a china shop, so maybe John Gay thought he could be too?
Excellent article Greg. The outcome is just, but the full costs of the Gunns20 (beyond the direct legal costs) should be sought then paid by Gunns. This help crystalise the precedent to deter future corporate SLAPPers.
Greg’s article truly reflects New Matilda’s subject category ‘Civil Society’, which is a core principle that should underpin anti-SLAPP legislation proposed. Indeed, the Greens and sympathetic non-LibLabs should draft a bill to put it into effectand request public/blog contribution.
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Then we read in the Sydney Morning Herald same day [5-Feb-10] the article ‘Buyers Force Tasmanian Woodchip Mills to use only Plantation Timber’ by Fairfax’s ‘Hobart Correspondent’ Andrew Darby.
This highlights Gunns’ problem selling its native forest woodchips, which have been stockpiling at its Hamilton Mill outside Burnie. This is apparently because its main Japanese paper-making customers are broke and also because Gunns by logging old growth and native forests is breaching international Forestry Stewardship Council (FSC) standards.
Other claimed ‘excuses’ are the GFC and the Australian dollar. What a fickle industry!
And so Gunns has closed its woodchip plants and told logging contractors and forest workers, sorry no work! Why would anyone work for Gunns?
The primary industry landscape is globally becoming more ecologically accountable, albeit slower than the estimated rate of climate change. Neanderthal ecology profiteers like Gunns will become extinct if they fail to evolve with the external environment.
Justice, although denied to forest protesters, in the identification of corporate stifling, was served, finally. The 5 years of revelation, that Gunns vile practices in attempting to divert the democratic process on this island, has served to damage the company in investment circles globally. A great result and congratulations to all of you who fought the good fight.