I had a bit of a cyber-chinwag on Twitter this morning with a couple of other legal academics about the rather obscure topic of the torts of maintenance and champerty.
Maintenance and champerty are explained in this article at NSW Lawlink:
Maintenance is the ancient common law crime and tort of assisting a party in litigation without lawful justification. Champerty is an aggravated form of maintenance, in which the maintainer receives something of value in return for the assistance given. As stated above, the crimes and torts of maintenance and champerty were recently abolished in New South Wales.1
My reference to a case I ran where we obtained an injunction against the entire Northern Territory Cabinet is worth expounding in a bit more detail. 2
I acted for the NT ALP for quite a few years before a short and eventful stint in Parliament myself. As part of that informal retainer I conducted numerous matters for then Opposition Leader Bob Collins, including the one described below. I’ve written here before about Collins’ much more recent suicide when facing charges of child sexual abuse, but this story comes from happier times in the late 1980s when Bob was riding high. Mind you, not long after these events he was deposed as Labor Parliamentary Leader and, after a short stint in the political wilderness, was elected as a federal Senator for the Northern Territory from which he went on to a successful career (in political terms anyway) as a Minister in the Hawke and Keating governments.
The maintenance/champerty case arose when CLP Chief Minister Ian Tuxworth was deposed in an internal coup by Member for Nightcliff Steve Hatton. Tuxworth was making a dreadful hash of the Chief Minister job, and Collins was making mincemeat of him in the Legislative Assembly and media. The dominant CLP government could foresee its massive ascendancy being eclipsed if they didn’t act decisively to stop the rot. So they did a deal whereby Tuxworth apparently agreed to go fairly quietly in return for the government agreeing to fund a defamation action he wanted to run against Collins.
Somewhat unwisely as it transpired, Tuxworth and a couple of other CLP politicians made veiled public references to the existence of this deal. It occurred to me that this might amount to maintenance or even champerty (torts I very vaguely remembered from law school) and Colin McDonald QC agreed, so we commenced proceedings seeking damages for those torts against the entire Cabinet as individuals, supported by an interlocutory injunction to restrain funding while the substantive matter was decided.
The application came on on short notice one morning before Nader J in the Supreme Court. I was junior counsel to McDonald QC An entertainingly theatrical irascible judge, Nader J’s first words on seating himself were:
“Mr McDonald! Mr Parish! This isn’t another one of your blatantly political cases, is it?”
The answer to His Honour’s rhetorical question was fairly obvious given that the plaintiff was the Opposition Leader and was sitting large as life in the back of the court along with federal Minister and famous Labor fixer Senator Graham Richardson who was coincidentally in town at the time and keen for some light entertainment; and that the defendants were the recently deposed Chief Minister and every single current member of Cabinet. Nevertheless, being well used to Nader J’s usual courtroom demeanour, Colin simply responded mildly:
“No, not at all Your Honour. It’s simply a normal matter where we are seeking an interlocutory injunction in the Court’s equitable jurisdiction, and where we will convince Your Honour on the evidence that there is a serious question to be tried and that the balance of convenience between the parties favours the grant of an interlocutory injunction.”
The tone of proceedings rapdly improved from there. We got our injunction and both Collins’ maintenance/champerty proceedings and Tuxworth’s defamation action were settled on terms not to be disclosed not long after.
Later that day at a very long and jolly lunch, Richo expressed his unbounded admiration for Colin McDonald’s chutzpah under pressure in denying with a straight face that the case was political, saying: “I don’t think I’ve heard a bare-faced lie as good as that even in Parliament.”