I must say I’ve been a bit bemused by the reaction of some in the media (not least Red Kezza on this evening’s ABC 7.30 Report) to the imagined revelation that Tony Abbott had lied to Four Corners in 1998 about whether he had bankrolled or arranged the bankrolling of disgruntled One Nation candidate Terry Sharples’ civil action against Pauline Hanson and David Ettridge. Abbott has now apparently issued a press release claiming that he didn’t set up the $100,000 “slush” fund until after his statement to Four Corners, so conceivably he didn’t lie anyway. But so what if he did? Four Corners is hardly Parliament, and there are numerous situations where politicians may be almost obliged to lie to the media, in a practical and sometimes even ethical sense.
What interests me more about the “slush” fund revelation is whether Abbott, and others involved in its establishment (including allegedly Peter Costello’s father-in-law Peter Coleman), may have committed the tort of maintenance, which would allow Pauline Hanson to sue them for damages. Here’s what Butterworths Halsbury’s Laws of Australia has to say about the tort of maintenance:
Maintenance consists of unjustifiable support or promotion of civil litigation in which the person has no direct or legitimate interest and may be accomplished by assisting either the plaintiff or the defendant in the proceedings without lawful justification. Champerty is an aggravated form of maintenance which consists of unlawfully maintaining an action, or a suit, upon an agreement to receive a share of any proceeds from the litigation. The torts of maintenance and champerty are actionable by a person who is caused special damage by the intermeddling. Both torts are of decreasing importance and have been abolished in some jurisdictions. Both wrongs also constituted a criminal offence.
The essential element of impropriety in an action for either maintenance or champerty is the officious intermeddling in, and supporting of, litigation in which the defendant has no legitimate interest. The intermeddling of the defendant must be shown to be intentional but there is no requirement of proof of malice or to show that the intermeddling was without reasonable and probable cause. The torts are applicable only to intermeddling in civil litigation and do not apply to assistance provided in criminal prosecutions, nor for intermeddling in administrative proceedings which are not contested litigation.
The most common way of committing maintenance is by providing financial assistance to a litigant, either by lending money to permit the bringing of the suit, or by bearing the full or partial costs of the litigation. It is not champerty for a solicitor to act for a client without means and to bear counsel’s fees and other disbursements where the solicitor has considered the case and has a bona fide belief in the client’s cause of action or defence, and there has been no bargain with the client for a share of any proceeds from the litigation. However, champerty will lie where a legal practitioner engages in speculative litigation on an agreement to receive a proportion of any damages recovered.
It is a defence to the tort of maintenance or champerty that the person interfering in the litigation has an interest recognised by law in the proceedings. Where there is a genuine and legitimate common business interest between the maintainer and the maintained in the result of litigation, some activities in support of litigation may be justifiable. A legitimate common interest may also be found in a direct and substantial pecuniary interest in the outcome of litigation such as contracts of indemnity, or contracts of insurance. It must be shown that the activity which constitutes some intermeddling in, or support of, the litigation is a proper method of seeking to protect the common interest. It is possible, but exceptional, to be able to justify a champertous agreement on the basis of common interest.
Acts which are prima facie maintenance or champerty may be justified on a range of grounds which include the relationship of master and servant, kinship, compassion and charity. Where reliance is placed upon charity as justifying an intermeddling it must be shown that there is a genuine belief in the litigant’s impecuniosity. However, it is not necessary to show that the litigant is in fact destitute and otherwise incapable of engaging in litigation without assistance. Charity to assist the poor includes the situation where the litigant has assets which cannot be reached or used. The privilege will not afford a defence where the intermeddler has sought to promote his or her private interests and it is very difficult to justify champerty on the basis of such relationships of privilege.
As far as I can see on a very quick search, although the tort of maintenance has been abolished in several States, it still exists in Queensland. Moreover, it’s difficult to see Abbott and his fellow Sharples benefactors successfully making out any of the defences discussed above. Hanson may yet have the last laugh.
I actually have some practical professional experience with the tort of maintenance. Some years ago I acted for then NT Labor Opposition Leader Bob Collins in obtaining a Supreme Court injunction against the entire NT Cabinet after a Minister had been forced to reveal in the media that the Government had agreed to fund defamation litigation by former Chief Minister Ian Tuxworth against Bob Collins. Apparently the agreement to fund Tuxworth’s litigation had been made as part of a secret deal to get him to agree to resign quietly as Chief Minister in favour of another CLP nominee thought to have better electoral prospects. My morning in court as junior counsel was a personally memorable one. Not only was I suing the entire Cabinet on behalf of the Labor Opposition, but spectators in the public gallery included then right wing heavy and federal minister Graham Richardson. The argument got off to a seemingly disastrous start as soon as my senior counsel got to his feet and announced our appearances. The presiding judge, Justice John Nader, demanded to know in an imperious tone: “This isn’t another one of your political stunts is it, Mr McDonald and Mr Parish? I won’t have my court turned into a three ring political circus!”
Senior counsel then proved why his daily charge rate was much higher than mine. “Of course not, Your Honour, nothing could be further from the truth. This is simply a legal argument about whether an interlocutory injunction should be awarded on ordinary legal principles to restrain the commission of an ongoing and prima facie serious actionable civil wrong committed against a citizen of the Northern Territory.” It was, as Richo observed afterwards in tones of awe-struck admiration, one of the most brazen lies he’d ever heard in a courtroom. Justice Nader must have been impressed too. He gave us the injunction, and the entire case settled soon afterwards on terms not to be disclosed.
Update – Robert Corr blogs at length on the Hanson/Abbott affair, including a considerably more extensive look at maintenance in Queensland than I was able to afford. One side benefit of the affair is that it looks like it may have inspired Rob to postpone hanging up his blogging boots (as he’d threatened to do the other day). Stick around Rob. You make an excellent contribution to reasoned discussion in the ozplogosphere, and I for one certainly don’t want to see you drift away (as long as you give your studies first priority,the teacher in me feels compelled to add).