Filmmaker Dennis O’Rourke has won his action for defamation against Stephen Hagan and Nationwide News Pty Ltd. Justice Crispin in the ACT Supreme Court today ordered that Mr Hagan and Nationwide News pay O’Rourke damages totalling $204,300.
O’Rourke sued over articles published in The Daily Telegraph and The Australian about his film Cunnamulla, which is set in the town of the same name. In those articles it was claimed that he had been unscrupulous in the way he had filmed two teenage girls, who talk frankly about their sexual experiences in the far west Queensland town – ‘the end of the railway line’as it is described by Neredah, the taxi driver’s wife, who is one of the film’s memorable characters.
Cunnamulla was funded and produced by Film Australia. It was released in 2000 to critical acclaim and was shown in cinemas around the country and at many international film festivals; and broadcast by the ABC.
In his judgement Justice Crispin said:
‘It is obviously possible for one person to conscientiously believe that it is morally right to make a film graphically exposing the plight of young people in a small country town, and for another to feel that the film has unjustifiably exposed some of those interviewed to unwarranted shame or embarrassment. Yet others may be conscious of the potential conflict between competing moral imperatives and uncertain as to which should be accorded primacy.’
‘…. I have carefully considered the arguments ably advanced by counsel for (Nationwide News Pty Ltd), some of which were not without cogency. Nonetheless, I am satisfied that (Dennis O’Rourke) genuinely believed that he was morally justified in acting as he did and, in all the circumstances, I am not satisfied that he has been shown to have been an unscrupulous film producer. Accordingly, the defence of truth fails in relation to this imputation.’
The articles that defamed O’Rourke were reports on a long-running action in the Federal Court, where Cara Hearn and Kellie-Anne Allardice have claimed he engaged of ‘misleading and deceptive conduct’ as defined in the Trade Practices Act. Their case has been assisted and promoted by indigenous activist Stephen Hagan and by Peter Black of the Brisbane firm of solicitors, Drakopoulos Black. Both are known for their involvement in other high-profile legal cases, including the ‘Nigger Brown’ case in which Hagan sued the Toowoomba Sportsground Trust over the name of a football stand. That case was lost in the Federal Court and subsequently the High Court refused Mr Hagan leave to appeal.
Mr Hagan grew up in Cunnamulla and is a former ATSIC Regional Councillor. Since 2001, he and Mr Black, in different legal manoeuvres and on behalf of various Aboriginal residents of the town, have been attempting to have the film Cunnamulla withdrawn from distribution.
In his submissions, O’Rourke’s barrister, Tom Molomby SC, told the ACT Supreme Court:
‘It is clear from the very film Cunnamulla itself that Mr O’Rourke had concern and sympathy for Cara and Kellie-Anne and their situation. It is also clear, from the original rushes before the court that the selection and structuring of the material was done in a sympathetic way. It is clear that Mr O’Rourke had objectives and intentions, which were formed with the interests of the girls in mind. His ultimate decision, to use the extracts showing them to demonstrate the situation they were in, is one about which people take different views. It seems not to have been seen as controversial or questionable in early reviews, even in the defendant’s own publications.’
Dennis O’Rourke is one of Australia’s most acclaimed and respected filmmakers. He is the recipient of both the Byron Kennedy Award and the Don Dunstan Award, for his contribution to the Australian film industry. Both Cunnamulla and his more recent film Land Mines – A Love Story won AFI awards for best director and best documentary, respectively. His films are known for their direct and unflinching treatment of controversial issues.
O’Rourke said:
‘I would have preferred to have never brought this action, but Stephen Hagan, by his libellous statements – made with the abetment of The Daily Telegraph and The Australian – eventually left me with no other choice. I regret that Cara and Kellie-Anne have also suffered in the process.’
‘Even after this good result, I recognise that I was foolhardy to imagine that I could take on News Limited and win; and I could never have done so without the support of and my Canberra solicitor, Brian Hatch of Pamela Coward and Associates, and my barristers, Tom Molomby and Roger Rasmussen, who all agreed to work on the case with no guarantee of ever being paid.
Brian Hatch said today:
‘Too often people give up their legal rights because of the potential costs. I am pleased to see that our relatively small firm can achieve justice for our clients in these complex cases.’
Dennis O’Rourke:
‘It is a pity that Stephen Hagan could so easily persuade the mainstream media into recycling his false statements, causing damage to the reputations of myself and my colleagues and (what I think is worse) discrediting the value of my film and its potential to effect change.’
‘Mr Hagan is always eager to claim he is the defender of the rights of others, he was happy to stride down the pavement outside the courts in Brisbane, be photographed and interviewed, call me a liar, pose as a crusading hero and appear all over the media; but, when it was time for him appear in court to defend his words… he didn’t show up. The two young women, who he claims to be helping, were not so fortunate: they and their parents were called as witnesses by the lawyers acting for Nationwide News and were, as a consequence, humiliated. Mr Hagan was not there to grandstand on that occasion.’
‘In the years since Cunnamulla was made, life has unfolded for Cara and Kellie-Anne (and for many others in the film) in ways that have saddened me. However, I know that the film was not the cause of their troubles. I made Cunnamulla with the hope that, by revealing some disturbing truths that so-called ‘responsible’ people wanted to stay hidden, life could improve for young people in Cunnamulla, and for those like them in hundreds of towns around Australia. I believed then, as I do now, that all the characters in the film are portrayed with dignity, empathy and respect – even if their circumstances were not always to be celebrated.’
‘Many of the people I filmed, including those who appear in Cunnamulla (and not necessarily depicted in a rosy light), are now my friends. It may be impossible now, but I would very much like to sit down with Cara and Kellie-Anne, and talk about everything.’
[release from TM Publicity]