The amendments, which would be adopted by all Australian states and territories, include requiring plaintiffs to establish that a publication caused, or was likely to cause, serious harm to their reputation, as well as the creation of a new “public interest” defence, similar to one that already exists in New Zealand. Changes are intended to become law this year.
In a submission to the review, published on the website of the NSW Department of Justice, former Ipswich mayoral candidate Gary Duffy provided in support of the proposals a range of examples of defamation lawsuits he had followed that he argued were using the law “as a political weapon or used against people who voiced a justifiable concern”, some of which involved Queensland local government, the LGAQ or Mr Hallam.
He described Facebook posts in which Mr Hallam “talks about how (he) will spend $250k to try to bankrupt Gary Duffy” through defamation claims.
Mr Hallam declined to respond to a request from Brisbane Times for comment regarding his online posts.
However, in a Facebook post on the same website where he allegedly made the threat against Mr Duffy, Mr Hallam wrote: “I will not be commenting publicly following ongoing requests on my intentions with respect to any possible legal action against Mr Gary Duffy.”
“My legal team have previously stated that I’ve reserved my rights in this matter and have up to another 5 months to file an affidavit for defamation. This is a private legal matter and I have nothing further to say at this time,” he said.
He added in response to a comment: “I have no interest in suing people who don’t defame me. But every constitutional right to sue those that do, and will. I never bluff. Problem solved.”
Mr Duffy described in his submission a defamation suit brought by Mr Hallam against former independent state MP Rob Pyne and others – in which he is suing for more than $2 million in damages in the Brisbane District Court after being compared to Star Wars character Jabba the Hutt – as an example where “serious harm” had not been shown.
Mr Duffy also described a defamation case brought by the chief executive of Cassowary Coast Regional Council against a north Queensland couple, Paul and Julie Toogood, which is being funded by the council, which he said Mr Hallam had commented on online.
“In comments (Mr Hallam) posted online, (he) further boasts about bankrupting the Toogoods as an implied threat to what will happen should you question the local government or the LGAQ.”
Mr Duffy claimed the Toogood case had been facilitated by the LGAQ providing legal insurance to councils for the costs of such actions even though the last review of defamation law in 2005 introduced provisions supposed to prevent public bodies being able to sue for defamation.
“This litigation is supported by the LGAQ where the CEO of the LGAQ openly refers to using the Defamation Act to bankrupt people who speak out against local governments and the administration of local government,” Mr Duffy wrote in his submission.
Mr Hallam told Brisbane Times: “The LGAQ has not advised any council to take defamation action against ratepayers. We do not have an insurance instrument to fund plaintiff matters.”
Mr Duffy claimed in his submission that “unscrupulous” lawyers used defamation laws “just to wind up costs” against defendants and suggested defendants were sometimes not pursued because they had sufficient resources to defend themselves effectively.
“Evidence of the current Defamation Act shows that it is being used to bankrupt defendants by obtaining costs orders through the courts process … when these matters end up at trial there is no substance to the claims made and no evidence of serious harm,” he said.
Mr Duffy suggested to the review that to avoid such situations, “as in the Planning and Environment Court, there should be no court costs awarded against either party” prior to a trial.
Submissions on the amendments closed on January 24. The review timetable calls for state and territory governments to begin enacting agreed amendments by the middle of this year.
Mark Solomons is an investigative journalist for Brisbane Times.