He thought he was doing the right thing and speaking out for a mate, but at a community hall outside of Byron Bay in 2001, NSW Greens upper house MP Ian Cohen made the comments that have led to a bill of over $1 million.
Now preparing to sell up his flat in Sydney’s Tamarama and take on a bank loan with interest repayments alone of about $1000 each week, the once outspoken politician is facing financial ruin, all because he criticised a developer, Jerry Lee Bennette, for bringing a defamation case against a school teacher, Bill Mackay.
Cohen had called Bennette a “thug” and a “bully” and accused him of trying to stifle public debate by suing Mackay, who had penned a letter to a newspaper condemning an environmental award given to the developer.
Bennette responded by suing Cohen, who wasn’t aware the developer had private investigators in the hall secretly taping the speech.
Now the Greens MP, who has served in NSW since 1995, owes $1,015,000 plus interest of up to $250,000 for the plaintiff’s legal fees and costs. He’s already paid $15,000 in damages. It’s a hefty price-tag for a case about free speech, according to Cohen, who is scrambling to raise the funds to avoid bankruptcy, which would have him kicked out of parliament.
“I do not intend that to occur,” says the MP who had planned to retire at the end of this term after 16 years in office.
After nine years of legal wrangling, Cohen is “shocked” at the outcome, warning that anyone, especially those in the public eye, could be vulnerable if they criticise another person, even in a small forum.
“I did impromptu speeches in a local community hall in defense of a mate,” he says. There were only 60 people there but Bennette – armed with his secret recordings – was able to bring a case and in 2006 a jury found that the developer had been defamed. That was overturned in 2007 when Justice Ian Harrison accepted Cohen’s defence of qualified privilege, and suggested it was contrary to society’s interest that people’s rights should be hampered “by constant fear of actions for slander”.
In March 2009, the Court of Appeal overturned the finding, with Justice David Ipp ruling that describing Bennette as “a thug and a bully does not advance the cause of free speech, the environment or justice”. In November the High Court refused Cohen leave to appeal.
Cohen’s barrister, Clive Evatt, has described the case as having “very big” implications for free speech, and in the High Court last month he said of the allegations, “It is not as though he called him a paedophile or a wife-beater or something.”
Bennette’s barrister Bruce McClintock, SC, says the case has nothing to do with free speech and was the result of a long-term malicious vendetta against his client by green groups in Byron Bay.
For the man left with the bill, the whole episode has shown that justice comes at a price.
“I believe that the current state of the law does not deliver justice,” Cohen says. “The very poor are immune and the very rich are free to act but the vast majority of people would be financially crushed by defamation proceedings.”
Senator Bob Brown was one of those brought to the brink of bankruptcy in 2009 when he lost his appeal against the full Federal Court’s decision which overruled Justice Marshall’s 2006 ban on logging in Tasmania’s Wielangta Forest.
Now Senator Brown is calling on the Rudd Government to give the courts power to make protective costs orders in public interest matters which ensure that individuals or groups who take legal action in the public interest are protected from the risk of huge costs. “The risk of an adverse costs order is a major deterrent to people taking legal action in the public interest and greatly diminishes access to justice for many Australians”, Senator Brown says.
Meanwhile Cohen is trying to pay what he owes to the developer by signing on for a loan which he describes as “like taking out the house loan without the house”. Although he likes to use a Buddhist saying to lend some perspective to the situation: “If they burn down your house, the better you can see the moon.”
He also appreciates the support of those who are contributing to his defamation fund, “smaller donations will be vital in assisting me to pay what will be a crippling interest rate until I can get on my feet.”
One supporter is Senator Brown, who will be speaking at a fundraiser for Cohen on January 23rd at the Byron High School Gym, which can hold an audience of 800. Cohen says Brown can talk in “general terms about big corporations trying to shut down freedom of expression”. But he wisely reckons that Brown “could even preface it by saying, ‘I’m not referring to one particular person’.”
Contributions to Cohen’s support fund can be made via www.greens.org.au