There is a dispute between the legal teams of Adani and Ben Pennings as to who won the recent round in the coal case before Justice Susan Brown. The proceedings on the sixth of December 2024 are pre-trial. They were an attempt by Pennings legal team led by Hodge KC to have the SLAPP lawsuit suit brought by Adani knocked out as an ‘abuse of process‘.
Failing that, counsel for Pennings was attempting to have as much of Adani’s case as possible to be struck out. Pennings’ legal team failed to convince Justice Brown that the SLAPP suit is an abuse of process. There is still some doubt as to who won the latter part of the legal argument. The question then arises: Was this a useful tactic, and if not, why not?
The mine
What is Adani’s Carmichael mine and rail to Port project? Miners see it as an economic venture with certain regulatory risks: “Carmichael is a thermal coal mine under construction in the Galilee Basin in Central Queensland, which has been approved by the Queensland and federal governments. The project was given the go-ahead in June 2019, and construction began later that year. Initially, the mine was envisioned as one of Australia’s largest, but over years of planning and regulatory processes, the mine has been scaled back.” (See https://www.mining-technology.com/features/adani-carmichael-controversy-explained/?cf-view).
Aboriginal land
For some Wagan and Jagalingou people, the mine, rail and port means the theft and destruction of country and an attack on aboriginal custodianship of land and therefore culture. “It is the rape of our mother (the land),” said Adrian Burragubba. No means No is the campaign that Adrian led. It was quite separate from the Galilee Blockade even though they had shared goals.
For environmental activists Carmichael means Adani will destroy the ancestral lands, waters and cultures of Indigenous people without their consent, increase shipping traffic through the Great Barrier Reef heritage area and add around 4.7bn tonnes of carbon pollution to the atmosphere over its 60-year lifespan. A huge blow producing global warming. To the Queensland government, it means jobs and coal royalties.
Scorecard
The following is an analysis of Justice Brown’s ruling on the sixth of December 2024. Hopefully, it gives some insight into who will win this case and whether her honour’s findings have significance or relevance.
Firstly, let’s look at how Justice Brown sees the Galilee Blockade:
[2] “The Carmichael Mine and the Carmichael Rail have been opposed by a group of environmental activists, known as the Galilee Blockade. The founder of the Galilee Blockade is said to be Mr Pennings. The fact that he held a strategic role with the Galilee Blockade is not a matter of contention between the parties. Adani and Carmichael complain that since January 2017, the Galilee Blockade has sought to frustrate the development of the Carmichael Mine and the Carmichael Rail. The Galilee Blockade is alleged to have threatened to occupy and obstruct the offices and industrial worksites of existing and proposed contractors of Adani and Carmichael unless they terminate their contracts with Adani and Carmichael or withdraw from negotiations as to proposed contracts in order to cause Adani and Carmichael economic harm.”
Stop Adani. Neither judges nor the lawyers appear concerned with the broader ‘Stop Adani’ campaign. Their concern is the Galilee Blockade. STOP ADANI involved campaigns run by the Wangan and Jagalingou people, Frontline Action on Coal, Bob Brown and the Greens.
There is no way that Adani should be allowed to plead that these groups and individuals were co-conspirators with Pennings. They ran their own campaigns in their own way. Adani’s investigator appears to rely on social media for her claim that there is a conspiracy. This is absurd.
Then, there were alternative media that helped expose the real purpose behind the Adani mine. For example, the Paradigm Shift on Community radio 4ZZZ that ran a series of shows from 2017 onwards that opposed the Adani mine, interviewing aboriginal owners of the land and environmental activists from a range of groups determined to stop the mine. These activities are all lawful.
“The particulars (provided by Adani) appear to only support the allegation that the other parties involved in the Galilee Blockade are parties to the agreement. There are no particulars supporting the allegation that the agreement was to procure confidential information.” – Justice Brown, 6 December 2024.
This is a clear win for Pennings even though her honour is wrong in her assessment that other groups were parties to an agreement. Galilee Blockade was a campaign. Her honour has mis-characterised it as a coherent group of people in shared agreement with others. This is not a serious argument when you consider the diversity of interested parties and their different interests.
“57 While it is open to the plaintiffs (Adani) to plead alternative cases, what is not permissible is to plead the acts and loss and damage together such that it is impossible to disentangle what are said to be agreed unlawful acts relied upon and how they cause the plaintiffs loss and damage. The distinct elements necessary to constitute the respective torts must be clearly defined and pleaded. As it stands, the pleading is confused and deficient and should be struck out.”
This is a clear win for Pennings. But does it help Adani re-plead their case? There was an array of tactics used by the Stop Adani campaign. Most of the tactics were lawful, for example, peaceful assembly on public land as defined under section 4 of the Peaceful Assembly Act 1992. The truth is that only a few people engaged in unlawful activities through civil disobedience. Most people engaged in the campaign did not wish to be arrested, and there were comparatively few arrests. Was it the campaign that caused Samsung Securities, Downer, or Greyhound to withdraw from providing services to Adani. I think not.
“The reason given was the impact to the Downer business as a consequence of continuous protestor action directed to Downer’s business and offices.” Sofronoff J. in https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCA/2020/169.html?context=1;query=sofronoff%20pennings%20adani;mask_path=
Despite claims to the contrary, Downer’s decision to pull out of its contract with Adani appears to be based on the risk of them not being paid by Adani and the low returns on their investment in mining machinery. As if to confirm this, Downer EDI, in December 2021, sold its mining business to concentrate on building urban infrastructure.
112. There are a number of concerning aspects with the claim. However, even taking into account the considerable weaknesses evident in the claim that is made, which may not be overcome by the plaintiffs either in first repleading the claim and, if that is successful, at trial, I am not satisfied, despite valid criticisms that have been made, that the plaintiffs, particularly Adani, cannot plead a viable cause of action and that the claim is otherwise illusory and without foundation. There is sufficient evidence suggesting that there may be a proper basis for pleading the cause of action in relation to the events with Downer, and they should be given the opportunity to do so.”
It doesn’t sound to me like the judge is making it hard for Adani to replead. Her honour’s reference to Downer EDI is unfortunate given the unlikelihood that Downer’s withdrawal from building the mine had anything to do with the Galilee Blockade. This appears to be a home goal by Adani that favours Pennings, but only if the judges rule on the basis of commercial realities.
[33] “The agreement pleaded (by Adani) in [78] does not make any distinction between the agreement for a lawful means conspiracy and the agreement to engage in conduct amounting to unlawful means. It refers to an agreement with the persons who disclosed some or all of the Information to be used by the persons associated with the Galilee Blockade to facilitate Direct Action against the plaintiffs and Targeted Contractors, pressure the Targeted Contractors to withdraw from contracts or negotiations with the Plaintiffs and otherwise cease to perform any of the plaintiffs’ work and frustrate the development of the Carmichael Mine and Rail Network.. It refers to an agreement with the persons who disclosed some or all of the Information to be used by the persons associated with the Galilee Blockade to facilitate Direct Action against the plaintiffs and Targeted Contractors (eg Downer and Greyhound), pressure the Targeted Contractors to withdraw from contracts or negotiations with the Plaintiffs and otherwise cease to perform any of the plaintiffs’ work and frustrate the development of the Carmichael Mine and Rail Network.”
Another win for Pennings. It is sheer nonsense to claim that their is a clear connection between blockade tactics like locking-on to a rail line and leaked confidential information.
[34] The pleading of what is the subject of the agreement to engage in conduct to use unlawful means must be made clear.
This may help Adani re-plead their case.
[35] “The identity of the other parties (to the conspiracy) would arguably have a flow-on effect as to whether the agreement was, in fact, carried into effect. At least, the particulars (given by Adani) in [67] suggest that the other parties to the agreement are people involved in the Galilee Blockade. Proper consideration of the agreement and whether it is singular or there are a number of them needs to be given any repleading of the claim.”
Good luck to Adani in proving an unlawful conspiracy. As if anyone is going to come forward and admit to that. Unless Adani pays them to take the fall, of course.
According to the judgement, the key point distinguishing lawful and unlawful conspiracy is whether injuring Adani was the sole purpose of Pennings actions (unlawful conspiracy) or the injury was a secondary or collateral consequence of another lawful goal such protesting (lawful conspiracy).
Unlawful conspiracy is a criminal matter, lawful conspiracy is something like negligent disregard for Adani’s rights and interests. Adani’s failure was conflating both lawful and unlawful conspiracies.
“Adani have an absolutely appalling record of eco-terrorism and human rights abuses, particularly in India. They own the lease to the biggest mine in the Galilee Basin, Carmichael. They also own the shipping terminal facilitie [sic] in Abot [sic] Point. Adani are the biggest and most advanced player in the sick race to mine the Galilee Basin. They are threatening ecocide. They must be stopped.” – Justice Sofronoff quoting Adani’s private investigator, who does most of her research online.
Another Adani own goal because his honour refused Anton Pillar civil search warrant to be issued to search Ben Pennings computer for a ‘confidential’ Mine Plan, itself already published to a number of parties. It appears that confidentiality had already been breached by Adani itself.
Media
All the media present (all the networks were there) concentrated on the effects on Ben’s family. I argued with them that they were asking the wrong questions. The first question they should have asked was, “Why did Adani choose Ben to attack with a s l a p p lawsuit?” They just did not get it, challenging me on what I thought was the reason. In the end, one of the journos said it was because Pennings was the go-to person for the media. But they never bothered to ask him why it was he that had been placed in that role. Listening to the Stop Adani organisers that gathered at the court that day, made it evident that Ben was the go-to person for the people organizing the Stop Adani campaign, or at least that part of it.
The actual organisers of the blockade, mainly women, put everything they had into that campaign. One person told me that he and his partner could not focus on any other issue because they were putting all of their energy into stopping the Adani coal mine and its horrendous consequences. It is pretty clear that nearly everyone there saw the burning of fossil fuels as being the most important existential threat to humanity. Are they right about that? I don’t know. All I can say is that the we are very close to an all-out World War starting in places where fossil fuels are most abundant. One reason for the recent fall of the Assad regime is that Qatar and Turkey want to provide cheap gas to Europe via a pipeline through Syria.
The Justices themselves are trapped within a legal system that has placed them in and Ivory Tower where little of the real world seems to penetrate.
My advice to activists is to avoid litigation at all costs. And if we are drawn into litigation by the state or corporations we should not allow that to become our primary concern. We must defend our political activists but not to the exclusion of pursuing our main objectives in this case to stop the Adani mine on Aboriginal land.
Murdoch v Crikey
In the Crikey case, Hodge KC told the court: ‘Lachlan Murdoch denies that Joseph Biden won the 2020 presidential election and that Donald Trump lost it’.
Hodge was arguing that Lachlan Murdoch is morally and ethically culpable for the illegal January 6 attack on the capital building in Washington DC because Fox News, under his control and management, promoted and pedalled Trump’s lie of the stolen election despite Lachlan Murdock knowing it was false.
It appears that this was all too much for Justice Wigney, who said : “It seems to me that both parties could take stock at what’s turning into a scorched earth policy. There does seem to be a hint that this case is being driven more by, and I say this with the greatest respect, ego, and hubris and ideology more than anything else.”
It does not sound to me as if the judge was going to entertain Murdoch’s claims of defamation against Crikey as being serious even if the case were to proceed.
‘Contextual truth’
Hodge KC represented Crikey in the Lachlan Murdoch v Crikey defamation case. Eric Beecher (Crikey) calls Hodge ‘the silent assassin’ in the nicest way possible. Murdoch’s lawyers re-pled their case and handed up a series of legal gifts to Crikey. Hodge countered the re-pleading with a technical legal argument known as ‘contextual truth’. The losses and publicity were so bad Murdoch was forced to withdraw the action against Crikey.
To explain what is meant by ‘contextual truth’, Murdoch’s claims were sent up by ‘The Chaser‘ … in order to incur damages for loss of reputation, Murdoch would have to possess a reputation to defend in the first place.
The same could be said of Adani. I am sure his companies would be incurring huge losses on the Carmichael mine regardless of what Ben Pennings did, at least for tax purposes. Mining companies nearly always claim big losses for tax purposes, especially in the early years of a mine.
As far as Adani is concerned, it is well known in judicial circles that his companies engage in artificial tax minimisation schemes such as transfer pricing. Adani sells thermal coal cheaply to related entities in Singapore. Thus reducing tax liabilities here. Singapore has a lower tax regime, so Adani on-sells the coal at a higher price to make a profit there rather than here, thereby paying no tax here and little there.
“This year, 2022, on January 26, Wangan and Jagalingou Cultural Custodians will also mark a significant anniversary – more than 150 days of continuous re-occupation of our ancestral homelands. We continue to stand our ground in opposition to Adani’s coal mine on our land. We continue to witness and oppose the destruction of our artefacts, and the poisoning of our Springs and aquifers.” – Adrian Burragubba.
Ian Curr
19 December 2024
Correction – Congress Party’s campaign against Modi.
Does anyone know if Ben has the right to elect for a jury trial in this matter?
I know that in recent years, there have been fewer and fewer jury trials in the civil jurisdiction.
Personally, I would prefer a jury to be the decision makers because judges often own shares in big corporations and are biased toward government imperatives against defendants who are portrayed as lawless, purely because they are activists.
It all may fall on deaf ears if the experts (judges) become the arbiters of fact (eg re Downer et al).
A coupla comments –
1/ You have implied but not clarified the most important part of the judgement – Adani have until February 14 to file a new-improved statement of claim and it will go to trial next year. In light of misinformation about the judgement and a possible Adani appeal, I think it is important to clarify what is really going on.
2/ With regard to why Downer pulled out, the issues you raise were raised by Ben’s lawyers and remarked on in the judgement. Ben did indeed win on this issue. However Adani now have an opportunity to cobble together something new to avoid its present problem, and the court gave advice how to do it. My guess is they will come up with fresh new evidence of Downer’s reasons, customised to the legal issues raised in the judgment. Or they could press on with the argument they put in Ben’s application (below). Either way they do not have to provide proof of anything, only to establish an inference on the balance of probabilities. If there is contradicting evidence, such as the media releases giving different reasons to the depositions, there are no established facts and the court must infer them. Its not like beyond reasonable doubt.
Adani’s present argument (which the solicitors were criticised for not properly documenting)
[99] Mr Gibson KC (Abani lawyer) emphasised that Mr Vora had been asked by Mr Wilson about the Press Release of 18 December 2017. Mr Vora told Mr Wilson he had drafted it for distribution by an external public relations consultant and that NAIF funding applied to the Carmichael Rail only and that the Labor Government had in an election promise stated that it was going to veto the Carmichael Rail application for funding, which in fact was what occurred. He said the reference to the NAIF veto was made to deflect public attention from Downer’s withdrawal and that the withdrawal was the real reason for Adani’s decision to operate the mine as an owner-operator and conduct further tenders, which was decided prior to the NAIF veto. Mr Vora said that he confirmed his evidence the subject of Mr Wilson’s affidavit in 2020 as to what occurred at the November 2017 meeting when Downer announced its withdrawal
Thanks JT. I think you have clarified both the new pleading and the Downer withdrawal sufficiently. I’m hoping the serious issues that Adani faces in India and the US will prompt its lawyers to pull the plug.
A short story about short selling – How the Bob Brown Foundation and the campaign against Adani’s Carmichael mine got hijacked by a US investment firm. (This story is fictional and any resemblance to any real entity is entirely coincidental.)
Essential info before we start, what is short-selling? “Short selling is a strategy where traders profit from a decline in the price of an asset, often a stock. In a short sale, investors borrow shares of a stock they believe will fall in value, sell those shares on the open market, and later buy them back at a lower price to return to the lender. The difference between the sale and buyback price is the profit.” OK, now we got that out of the way…….
Once upon a time there was a diverse movement of people including traditional owners and non-Aboriginal activists that opposed to the development of the Adani Carmichael coal mine in Central Queensland because it was a threat to the climate, biodiversity, water and land rights. Various methods of lobbying, protest, court actions and direct action were used to resist the mine.
One day a very clever short-selling firm in America (Hindenburg Research) did a lot of research into Adani (the Hindenburg report) including getting information from the Bob Brown Foundation’s “Adani Watch” campaign which was part of the above mentioned resistance to the Carmichael mine. On the basis of the research from around the world, the short-sellers short-sold Adani shares, then widely released the report’s revelations of rampant rorting by Adani, which caused Adani’s share price to collapse, which caused billions of dollars profits for the short sellers and their clients. I told you they were very clever.
When the abovementioned resistance to Adani’s Carmichael mine heard about what the Hindenburg report had done to Adani’s share prices they were overjoyed, although it made no difference to the operation of the Carmichael mine. They didn’t seem to talk much about how the Hindenburg report collapsed the biggest solar farm in the world being built in India while US short-sellers profited, so I guess that mustn’t have been very important. Anyway, by this time the two non-Aboriginal organisations opposing the Carmichael mine were the Bob Brown Foundation’s “Adani Watch” and the “Stop Adani” movement. Since the release of the Hindenburg report the main activity of the two organisations has been to publicise the reports allegations, the only other activity being Stop Adani’s fundraising for Ben Pennings’s defence against Adani’s compensation claim against him. The Bob Brown Foundation’s Adani Watch and the Stop Adani movement are, it appears willingly, agents of Hindenburg’s business strategy. They don’t even talk about coal, climate, biodiversity, water or land rights any more. Funny eh?
And you know what? Today the only people still talking about the Carmichael mine are the traditional owners.
Solar energy is an essential service and should be publicly owned, not placed in the hands of billionaire profiteers like Adani. For example, electricity is being used as a weapon of war in Gaza, Israel is depriving Palestinians of this essential commodity for life.
All solar and wind energy plants in India and Australia are owned by mining or fossil fuel companies. Adani is doing nothing Twiggy Forrest isn’t doing in steamrolling in his Australian windfarms. It is the market standard. The specific allegations against Adani Green energy in India – manipulating and misrepresenting consent by tribal authorities, is exactly what Twiggy did with his Iron ore mines in WA and the courts found it to be legal, and what Adani did to the Wangan and Jagalingou which the courts found to be legal. While the campaign against Adani might be dressed up in anti-capitalist jargon, it is just media fodder for Adani’s energy corporation competitors and the BJP’s campaign against Modi.
The Palaszczuk/Miles plan for Queensland’s “renewable energy zones” was to facilitate (by massive public subsidy) the construction of mining company owned power plants in Western Queensland to provide electricity to new mines (which will all be electrified and automated – few jobs), using the stored energy in damming coastal river systems. This, so we are told, is the alternative to coal that campaigns like Rising Tide, Stop Adani and the Greens promote. “Stop Adani” has no meaning to country, culture or class.