Chris Merritt, Legal Affairs Editor, Sydney, THE AUSTRALIAN, MARCH 28, 2016 12:00AM
Clive Evatt believes the scale of the fight adversely affected Stephen Dank’s effectiveness as a witness in his defamation case. Picture: John Feder
Eccentric defamation barrister Clive Evatt is planning a last-ditch appeal to avoid his client paying $2 million in costs after representing controversial sports scientist Stephen Dank.
After securing a Pyrrhic victory against The Sunday Telegraph, Mr Evatt hopes to turn a minor victory into cash.
His client, Mr Dank, has instructed Mr Evatt to lodge an appeal against this month’s ruling that found Mr Dank had been defamed but deserved no damages.
He will also seek to overturn an order from the NSW Supreme Court that requires him to pay the newspaper’s legal costs, which are expected to top $2 million.
Mr Evatt said the Dank case, while a technical victory, was one of the worst cases in which he had been involved.
“It was a Pyrrhic win. What’s the point of winning if you don’t get any damages or costs?” he said.
“In England they are still giving verdicts of a farthing, but I’ve never heard of zero damages where they find for the plaintiff. It’s new ground in defamation.”
“The usual rule is that if you find for the plaintiff, the plaintiff gets the costs — so Dank has instructed us to appeal on that point.”
Under Mr Evatt’s business model, he relies on costs orders from successful cases for his income. But in the Dank case, many things went wrong.
An associated claim against The Daily Telegraph failed. Nationwide News, which publishes the Telegraphs and The Australian, successfully defended a report that Mr Dank had accelerated the death of footballer Jon Mannah by administering banned peptides.
Mr Evatt believed the scale of the fight adversely affected Mr Dank’s effectiveness as a witness.
His client had been “a bit overawed by it all’, he said. “He was like a rabbit caught in the headlights. Some people are born witnesses. He wasn’t a natural witness.”
He believed Mr Dank had been shocked to be subjected to cross-examination for more than two days — even though Mr Evatt said he did not consider this to be excessive. He believed he had been “outgunned by a better team — I don’t have any excuses”.
But he believed the case suffered because three expert witnesses who had been promised by Mr Dank had failed to appear and give supporting evidence.
“The other side were really well prepared. They ran their case perfectly and we were a bit at sea,” he said. “All right, we lost Dank’s case. Totally crushed. But nevertheless, it cost them a few bob to fight it.”
So does he feel guilty about forcing media companies to spend so much defending themselves?: “No. They can settle. These are tough, tough-nosed people. They love a good fight.”
Mr Dank’s case is the latest in a series of high-profile defamation matters in which Mr Evatt has found himself representing colourful clients.
Others include notorious historian Fredrick Toben, who was an undischarged bankrupt when he launched defamation proceedings over an article in The Australian that described him as a Holocaust denier. “You would not say he was the full quid,” he said.
But he viewed the Toben case, which is under appeal, as a free-speech issue. “He is obsessed, completely obsessed about the Holocaust. But why can’t he express his view?” Mr Evatt said.
In 1998 Dr Toben was jailed in Germany for breaching that country’s Holocaust law. In Australia he was jailed for contempt of court in 2009 when he refused to stop publishing material that vilified Jews.
In November last year, the NSW Supreme Court ruled that his litigation against The Australian was an abuse of process aimed at securing a privileged forum and should be permanently stayed.
He had sued Clive Mathieson, who was then editor of The Australian; senior reporter Christian Kerr and former Greens leader Christine Milne over a 2013 article that carried the headline: “Split in the Greens over Holocaust denier”.
Mr Evatt has deep links to the law. His uncle was former High Court judge and federal Labor leader Bert Evatt; his sister is Elizabeth Evatt, the first chief justice of the Family Court; and his father, Clive Evatt Sr, was a silk and state Labor politician in NSW.
Clive Evatt Jr has twice been admitted to the Bar; the time in 1956 and the second in 1981, after an enforced absence.
He was struck off in 1968 for his part in a scheme with two solicitors, H.A.P. Vernon and B.R. Miles, that led to clients being charged what the NSW Supreme Court described as “extortionate and grossly excessive sums”. The Supreme Court had only wanted Mr Evatt suspended for two years. But the NSW Bar Association went to the High Court and had him struck off.
Since returning to practice, he said he believed he had won about 80 per cent of his cases against the media, including the 2012 case he ran for former Guantanamo Bay inmate Mamdouh Habib.
He won $176,000 from radio stations 2GB and 2UE after broadcasts by Ray Hadley, Steve Price and John Laws concerning Mr Habib’s entitlement to social security benefits.
After all those victories against the media, did he mind that mainstream media organisations might considered him to be the great satan?
“It’s just words. It means nothing to me,” he said. He also saw no inconsistency with his strong stance on freedom of speech because he considered defamation cases were merely “correcting mistakes”. “Free speech is pretty important,” he said. “That’s about all we have got left. I think anyone within reason should be able to express their opinion.”
While his practice is dominated by defamation, he understood that “journalists hate it”.
“They go to a lot of trouble to write their stories and they expect their newspapers to stick up for them — which they do.”
But he said this was not the case when The Sydney Morning Herald stood down respected columnist Paul Sheahan this month over one flawed column.
“It was a bit of an over-reaction; he has been with them for 20 years and was treated unfairly,” he said.
Mr Evatt believed former Herald columnist Mike Carlton had also been treated harshly. Carlton resigned two years ago after sending abusive emails to readers, accusing one of being a “Jewish bigot”.