13 Jun 2017

Truth on Trial — Part 1: Mark Darwin SLAPPs the Law

By Gi Linda

Justice is a powerful lightening-rod touching the domain of the Divine. 

Imagine being attacked by a powerful Goliath that spits, roars and boasts of invincibility while sharpening teeth and reddened claws! I am inspired by the young Hebrew shepherd, who, with only three small stones, a slingshot and reverence for God, felled that scoffing, iron-clad warrior, and with a single shot hit the giant smack between the eyes, then decapitated the fallen brute with its own massive sword.

The Truth About Truthology

The truth about Truthology was first told in my exposé of the fraudulent community venture in which I mistakenly invested $120,000. “Bhula Bhula Village Community” at Mt Burrell, NSW, is operated by Mark Darwin, Adrian Brennock and cohorts who are selling home-lots located on environmentally protected land where no habitation is permitted, without informing investors of land-use restrictions.

“The Truth about Bhula Bhula”, published in the Nimbin GoodTimes, October 2016, reveals how Mark Darwin and Adrian Brennock entrapped potential investors in their land-share fraud by combining social networking with misleading marketing through progressive fronts Truthology and Freedom Summits. At that time, eleven disenfranchised investors were ready to launch class action to recover combined losses over $1.5 million.  

The trial to determine the truth about Truthology began at Sydney Supreme Court on June 9, 2017, with defamation charges brought against myself, author of the news feature exposing the land-share scam, and the Nimbin GoodTimes as  publisher.
Mt Warning Eco Village proposed on environmentally protected land
After their deceptive front, Truthology, was exposed in my article "The Truth About Bhula Bhula", Darwin and Brennock scrubbed their tracks off the internet. However, with Tweed Shire Council initiating litigation to drive the unapproved community off protected land, strong opposition from neighbors and reports of Tweed Shire Council's litigation against Darwin and Brennock in several local newspapers, prudent potential investors doing due diligence could see the fraud more clearly than the first flock of sheeple who were sheared.  

Darwin & Co  were no longer able to sell fake shares in the failed community, so they moved to a neighboring property, "Nightcap Forest", owned by Peter van Lieshout that has the same environmental protection constraints to development. They popped up new fronts, "Rainmaker Eco Investments" and "Mt Warning Eco Village", and continued selling home sites on land where habitation is not allowed.

Litigants Darwin and Brennock complain that publication of these truths and honest opinions about the falseology of Truthology have damaged their reputations and cause them loss of sales and commissions. At stake is a demand for payment currently soaring over $4 million, a total blow-out of maximum legislated damages of $381,000. With a cool $1 million requested by each of four plaintiffs, this is by far the biggest defamation claim in Australian history. 

SLAPPs -- Strategic Lawsuits Against Public Participation

Darwin and Brennock's defamation claim against the Nimbin GoodTimes and myself is an abuse of legal process known as a “SLAPP”. In SLAPP suits, where legitimate dissent obstructs a litigant’s lust for profit, plaintiffs improperly use the courts to bulldoze private interests over public concerns by intimidation.

In 1984, George W. Pring and Penelope Canan studied "SLAPPs", “Strategic Lawsuits Against Public Participation” at the University of Denver. They found that SLAPPs undermine the right to free speech by setting up an unfair Goliath v David battle between private and public interests, in which an overwhelming threat of litigation is used maliciously to silence critics and prevent free speech on issues of public concern.

Political activists and environmental defenders, civic and social organizations and public interest groups are often “slapped” with malice to prevent them effectively exposing vested economic interests that trample pubic concerns. One Judge described SLAPPs as, “suits without substantial merit, brought by private interests to stop citizens exercising political rights or punish them for having done so.”

2009 political comment on Peter van Lieshout's proposed "Nightcap Village"
The protection of free speech in Australia is embodied in the Commonwealth Constitution, which, for the legitimate functioning of representative government, presumes that all citizens have the ability to freely communicate their views.

Defamation law retains the basic principles of common law, which defines defamation as publication of FALSE imputation by which a person’s reputation or profession is likely to be injured, or which may cause a person to be shunned, ridiculed or despised by others.

Therefore everyone has a legal right to publish TRUTH, and to provide accurate information and discuss honest opinions in the public interest. Even so, the exercise of free speech to expose and oppose fraud demands some courage if the result is likely to be malicious prosecution and intimidation by the more powerful perpetrators. Obviously, fraudsters tend to be angered by the potentially adverse impact on their pockets resulting from publication of truth about their dishonest ventures.

Around the soft edges of defamation law, screen-media is often used as a platform to exercise freedom of speech as a last resort in a quest for justice by those who have suffered abuse. But the same screen media is also used by the wealthy to protect their private privilege against public concern and outrage.

In a review of the book, SLAPPs: Getting Sued for Speaking Out, Brian Martin says:

“George W. Pring is a law professor and Penelope Canan a sociology professor at the University of Denver. In the early 1980s they realised that there was an epidemic of legal actions whose purpose was to intimidate citizens. These suits had little chance of success and indeed few of them succeeded in court. But they still worked for the filers, since even when they lost their cases, they scared their opponents and achieved their goals.”

The SLAPPs study shows that those filing malicious defamation claims presumed the courts would favour the private economic interests of the prosperous over the public concerns of the impecunious: 

"The idea is that because a business has money at stake, business should receive priority over civic, communal opposition.”

Research by the Political Litigation Project at the University of Denver reveals how SLAPPs are used as an effective bludgeon to traumatize and silence opponents by causing an intimidating fear of crippling costs, damages and loss of reputation. Fear alone is usually enough to force acquiescence to the litigant’s agenda of injustice. In most cases power and profit defeat truth and justice, without ever going to trial.

When SLAPPs litigants are opposed with a full hearing to examine the veracity of their claims, only 10% successfully win their case. It doesn’t matter. Litigants protecting private greed against public interest drag out costly quarrels in the courts for many years, not motivated by the unlikely prospect of winning and claiming damages, but simply to SLAPP their opponents with punishment until they capitulate.

"SLAPPs -- Expensive Free speech"
Besides using defamation laws to hobble opponents, SLAPPs litigants have also used the Trade Practices Act. In March 1991 Greenpeace tried to protect the breeding and calving grounds of the Southern Right Whale in Victorian waters that were targeted with seismic testing by BHP Petroleum. To stop the activists, BHP slapped Greenpeace with damages amounting to millions, but after successfully intimidating their opponents, BHP withdrew charges.

SLAPPs are common in America, where anti-SLAPP legislation has been enacted in some states, but they’re infrequent in Australia and are mostly “LULUs”, a type of litigation dealing with "locally unwanted land uses” in which defamation charges are brought with malicious intent to silence effective environmental defenders.

The targets of SLAPP litigation are generally not professional activists or radical environmentalists. They are mostly organisers of small groups, or individuals who are seen as trouble makers because they advocate protection of their local community from private greed. A precedent was set in Helensburg in 1986, when Protection Society activists were slapped for opposing a property developer’s environmentally damaging rural rezoning plan. Donohoe and Tapsell were charged with destroying the developers’ commercial interests.

In another case, property developers used a SLAPP against activists who opposed them on environmental protection issues at Hinchinbrook.  Over 100 people protested extensive mangrove clearing by the developers, but only one woman aged 67 was slapped, causing her great trauma and expense. As a result the activists stopped their campaign, then the developers withdrew their charges.

With a similar flourish of characteristic malice, I am targeted with costly, traumatizing litigation threatening damages of millions, as
Darwin and Brennock flaunt the presumed supremacy of their self-endowed right to private profiteering and expect the courts, of course, to favour profits over people. This abuse of legal process is clearly intended to intimidate and also to discourage similar attempts by others to expose the land-share fraud.

Adding to the intimidation of his SLAPP, Mark Darwin and collaborators have also been maliciously defaming me since February 2016, by widely spreading lies that are sworn as truth in legal affidavits and published online as proven fact. Evidence submitted in Darwin’s SLAPP prominently features photos of strangled goats along with defamatory claims.  Darwin also posted his malicious narrative on a website dedicated to defamation of me, with profoundly demeaning, scoffing insults. The irony is that the defamer then charges the defamed with defamation of the defamer!
Nimbin GoodTimes SLAPPED

In a gloating but false account of my legal demise, Darwin announced his success by posting online a copy of private correspondence between his legal representative, Stone Group Lawyers and Nimbin GoodTimes.

In this case, Darwin & Co’s SLAPP against the Nimbin GoodTimes was very successful. The newspaper’s editor, Bob Dooley, quickly capitulated, removed the article from their archive and accepted Darwin’s offer to discontinue litigation against the newspaper in exchange for throwing me under the bus by issuing a dishonest retraction denying the veracity of my article, dissing my professional reputation and publishing twelve full-page promotions of Darwin’s fraudulent venture during the next year. 

Even before the deal was fully sealed, the triumph was so hilarious to Darwin that he couldn’t resist taunting me by publicly posting privileged details of the proposed deal and inviting fans to have a good laugh and kiss his costly pyrrhic victory. 

Michael Bachelard in the Sydney Morning Herald, “Free Speech the Loser in Australia's Defamation Bonanza”:

“Australia's punishing defamation laws have made Sydney the libel capital of the world, and people posting on Facebook and in blogs are the latest target for expensive legal action and threats. 

Defending a court action for defamation costs between $100,000 and $1.1 million. Damages can also be substantial. A WA court last year awarded the largest ever Australian payout in a defamation case brought by three people against a blogger of $700,000. 

Defamation lawyer Matt Collins, QC, said Australia's laws were now "a Frankenstein's monster" of rules and exclusions, and prevented good journalism from investigative reporters. "There are important, high-profile stories that don't get told because of the chilling effect of defamation law, and the high cost of actions”.

“Richard Ackland of the Gazette of Law and Journalism, described it as ‘a racket’.”

In their book, SLAPPs: Getting Sued for Speaking Out, Pring and Canan describe how environmental defenders and social justice activists can win a SLAPP suit by a process of "SLAPP-back". They explain that litigants typically respond to pubic outrage by:

- Reinterpreting litigation as defense of their reputation, not suppression of free speech.
- Devaluation and denigration of the target.
- Misuse of the law as a means of attack. 
- Intimidation and bribery.
- Cover-ups and gag clauses.

By flipping these techniques used by SLAPPs plaintiffs to inhibit public outrage, five effective steps can be taken to counter injustice:
- Interpret the action correctly as a violation of free speech.
- Validate the worth of the target.
- Disavow abuse of process in the courts as a means of imposing injustice.
- Refuse to be intimidated or bribed.
- Publicize the action.  

In cases where defendants have countered intimidating litigation this way, it’s the reputation of the plaintiff that suffers most, as with the SLAPP-back by Channel Seven against John Marsden’s defamation SLAPP-suit, that damaged his personal reputation even more than before.

Supreme Court Urgent Injunction Application

The defamation charges brought by  Darwin and Brennock against myself and the Nimbin GoodTimes were heard on June 9 at a directions hearing at the Sydney Supreme Court before Justice McCallum. The plaintiffs’ barrister, Ms Barnett, also wanted to submit an additional SLAPP on two blogs that I publish for the “Association of Investors Defrauded by Darwin” (AIDD), because of her clients' complaint that the blogs are causing them loss of commercial opportunity

On kind advice of Ms Barnett, Justice McCallum made a referral to the Bar Association Pro Bono scheme requesting the assistance of a barrister to advise me,  noting that I am self-representing and identify the case as a SLAPP; a malicious prosecution abusing the law as a means of intimidation to protect the commercial interests of the plaintiffs, Darwin and Brennock, against demands for restitution by their defrauded victims.

Leave was granted by Justice McCallum to the plaintiffs permitting them to file an application to have the blogs removed by court order, with another directions hearing listed for Friday June 16 at Sydney Supreme Court.

At the June 16 hearing of Darwin and Brennock's application to the NSW Supreme Court for an urgent injunction to remove this blog, a decision by Justice McCallum was deferred until June 21, pending provision of evidence of development approvals, or not.

SLAPPed with injustice
In Australia, defamation law is widely seen as hostile to free speech, but the law correctly respected actually does protect truthful free speech. The real problem is not the law, but legal bloodsuckers who do not know the difference between truth and lies and don’t care, because for a fat buck they'll swear by any false narrative to profit the powerful over the poor. If abuse of process to protect profits over people became normalized, the legal justice system would become the problem not the solution; a cause of injustice rather than a relief from injustice. 

"Speak Out -- And When You're Sued Just Bite Back”. This is the inspiring title of Brian Martin’s review of the book, “SLAPPs: Getting Sued for Speaking Out”. Published in The Republican, August 1997, the review concludes:

“The frightening reality is that SLAPPs work in scaring most targets, who become less active than before… A SLAPP essentially takes a political or social issue in which the focus is on the behaviour of a company or individual and transforms it into a private legal issue in which the focus is on the behaviour of the person who spoke out. By labelling such a suit as a SLAPP, the political dimension is highlighted.” 

Goliath Corp defeated with by truth and a slingshot
The book by Pring and Canan has good advice on cross-claiming against the SLAPPer with the so-called "SLAPP-back" charge of malicious prosecution. SLAPP-back empowers those who are being slapped to overcome fear by standing firm in their right to self-defense by truthful free speech and honest opinion, and the right to expose and oppose scurrilous profiteering in the public interest. 

The famous McLibel case illustrates how corporate SLAPP suits can fail when they’re seen to oppressively violate popular interests. Litigation by McDonalds against a persistent public advocacy campaigner backfired when he used all five bite-back counter-measures to generate massive support. As a result, his website, mcspotlight.org, was accessed more than 184 million times during the litigation. 

"I refuse to be muzzled!"
The best known SLAPP suit was the "mad-cow case" brought by the US National Cattlemen's Beef Association against television talk-show host Oprah Winfrey, her production company and her guest, a Humane Society official, for defaming beef during an April 1996 Oprah show discussing the dangers of mad cow disease. Oprah was accused of violating "veggie-libel laws" that give foods legal rights against defamation. After the broadcast, cattle ranchers blamed Oprah for sending the beef market into a spin, claiming more than $12 million in damages. Oprah won the suit  saying, "Free speech is not only alive, it rocks...I refuse to be muzzled!"

Truth 0n Trial

The "Truth 0n Trial" SLAPP against free speech by Darwin and Brennock will determine the truth of “The Truth about Truthology”. The gigantic power of Goliath wielded by Mark Darwin and his mates is their assumed right to profit from sale of home-sites located on land where no habitation is permitted, and then use the power of the courts to intimidate defrauded investors who were disenfranchised without restitution.

In reply to Darwin and Brennock's defamation charges, I am defending my article on grounds of justification; the defense of truth. The content of my article is more than substantially true, inferences and comments reflect honest opinions. The article is based on facts substantiated by the well-documented affidavits of other defrauded investors and independent witnesses, and is supported by archived screen-media exhibits revealing fraud and fiduciary misconduct by Darwin/Brennock in relation to the “Bhula Bhula Village Community” since 2014.
Having brutally SLAPPed their targets in an unjust slugfest, Darwin & Co would be unwise to prematurely celebrate a pyrrhic victory over those they have scammed; even stone-slinging shepherd boys and defrauded investors have a right to speak truth, and the ability to bite-back with justice. 

 “The Truth About Truthology”, was based on a chapter of a book I am writing about my experience as one of the victims of fraud by Darwin and Brennock. The exposé was retitled by the editor of Nimbin’s colourful monthly newspaper as “TheTruth About Bhula Bhula”. It is copied with additional visual commentary at:


-  Sharon Beder, 'SLAPPs: Strategic Lawsuits Against Public Participation', Current Affairs Bulletin, Vol. 72, No. 3, 1995
-  George Pring and Penelope Canan, 'SLAPPs: Getting Sued for Speaking Out' (1996)
-  Brian Martin, ‘Speak Out -- And When You're Sued Just Bite Back’, The Republican, August 1997

-  Sue Curry Jansen and Brian Martin, 'Making Censorship Backfire' (2003)
- Sue Curry Jansen and Brian Martin, 'Exposing and Opposing Censorship: Backfire -  Dynamics in Freedom-of-speech Struggles' (2004)
-  Fiona J L Donson, ‘Legal Intimidation: A SLAPP in the Face of Democracy’ (2000)
- Seth Goodchild, 'Media Counteractions: Restoring the Balance to Modern Libel Law’ Georgetown Law Journal 315 (1986)  
- SMH, Michael Bachelard, ‘Free Speech the Loser in Australia's Defamation Bonanza’ May 12, 2017 

- The McLibel Trial Story McSpotlight (2004); mcspotlight.org/case/trial/story.html