Wednesday, August 29, 2012
Response to Screen Australia's lawyers
Moray & Agnew Lawyers
Level 24, 233 Castlereagh St
Sydney, NSW 2000 30th August 2102
Dear Moray and Agnew
In response to your letter of 29th August
I would be delighted to withdraw my Supreme Court Statement of Claim if Ruth Harley releases or identifies the correspondence she asserts bears witness to my having intimidated, harassed and placed at risk members of her staff. I have been asking her to do so since 10th May this year. I have also sought, to no avail, to obtain the allegedly offending correspondence through Screen Australia’s FOI officer. And I have asked the office of the Ombudsman to request of Ms Harley that she provide evidence to back up her intimidation claims that resulted in the Screen Australia Board voting to ban me. To date, my appeal to the Ombudsman’s office has yielded no result – leaving me with little option, if I am not prepared to be banned on trumped up charges, to hope, through discovery, to acquire the correspondence through my action in the Supreme Court. I am sure the Court will wonder why it is that the matter is being heard in it but I believe also that the judge will wonder why it has not been possible for me to acquire the allegedly intimidating correspondence (a) by asking Ruth Harley to provide or identify it, (b) through FOI and (c) through the office of the Ombudsman.
If, by 4 pm Friday 31st August Ms Harley has identified and/or released the relevant correspondence I will withdraw my Statement of Claim. If Ms Harley refuses to release it and instructs Screen Australia’s FOI officer not to release it, I trust that the Commonwealth Information Commissioner (to whom I am copying this letter) will ask her to do so. I will also request of the office of the Ombudsman (to whom I am also copying this letter) to request of Ms Harley that she identify the offending correspondence by Friday 4pm.
There is an alternative course of action based on my assertion that Screen Australia does not have on record correspondence from me that meets any dictionary definition of ‘intimidation’ and that there is not one paragraph, one sentence, one phrase, one word in any of my correspondence that a reasonable person would view as my having placed Screen Australia staff at risk. If Ms Harley will acknowledge by 4 pm Friday 31st that no such correspondence exists, apologize for her error and have the Screen Australia Board lift the ban that has been placed on me, I will withdraw my Statement of Claim.
If Moray & Agnew Lawyers believes that it has in its possession copies of intimidating correspondence from me, why not advise Ms Harley to identify and release the offending paragraphs, phrases sentences or words, with, if need be, the name of the person to whom I wrote the correspondence redacted? This would serve two purposes: (1) Satisfy the requirements of natural justice that a person accused of a crime be appraised of the evidence against him and (2) Make it possible for any independent observer, any ‘reasonable’ independent observer to draw one of two conclusions: (a) Ricketson has indeed been intimidating and placing at risk members of Screen Australia staff and his being banned is entirely appropriate or (b) Ricketson is innocent of the crime he has been accused of, his being banned is entirely inappropriate and should be lifted immediately.
If I have intimidated and placed at risk members of Screen Australia staff I do not deserve to be a part of the film community. Indeed, it would not be inappropriate for Screen Australia to take out an AVO order to prevent me from entering any of its offices. If the allegations that Ruth Harley has made against me are false I do not believe that she should remain as part of the film community and hope that she would follow the logical course of action appropriate to her abuse of the power vested in her as Chief Executive and resign.
In response to my plan to publish on the internet, on my blog, correspondence written by myself, you write:
12. We point out at this juncture, that any documents you obtain through discovery or any other coercive process in the proceeding, will be subject to restrictions on their use. You would not be permitted to publish documents obtained in that way on the internet without breaching your legal obligations.
It may be that I have misunderstood this statement. If so please correct me if I am leaping to conclusions I ought not to. It seems to me that Moran and Agnew, on behalf of Screen Australia, intends to request of the Supreme Court that I not be able to publish online correspondence I have written which reveals me to be, in the eyes of Screen Australia, a person who intimidates, harasses and places at risk members of Screen Australia staff? If Ruth Harley’s allegations of intimidation are correct, surely my publishing the relevant correspondence would be in hers and Screen Australia’s best interests – revealing me to be someone who not only intimidates public servants but who lies repeatedly in a public forum about not having done so!
I imagine, given that you are representing Harley and Cameron, that you must at some point have asked to see the correspondence they both refer to. And, having seen it, that you have given them legal advice, right? Broadly speaking the advice would have to fall into two categories: (1) Ricketson has indeed intimidated and placed at risk members of your staff and you will win this case hands down or (2) We can find no evidence that Ricketson has intimidated or placed anyone on Screen Australia’s staff at risk with his correspondence. This second finding is not necessarily an insurmountable obstacle for an accomplished lawyer, however – not if Moray & Agnew can use the Supreme Court to prevent Ricketson from publishing correspondence that reveals either himself or Ruth Harley to be playing fast and loose with the truth or, as Malcolm Turnbull once so delightfully put it, being “economical with the truth.”
Perhaps the Supreme Court will accept Moray & Agnew’s legalistic arguments as to why this case should be thrown out. If so, so be it. On the other hand the Court may wonder why and how it is that a filmmaker can be banned on the basis of correspondence he has allegedly written but not be provided with copies of said correspondence.
I find it highly unlikely that the Court would wish to place an embargo of any kind on correspondence I have written. I hope that the Court would, when presented with such a proposition by Moray & Agnew, ask Screen Australia (along with the Ombudsman and the Information Commissioner) why Mr Ricketson was not presented with the relevant correspondence three months ago (in relation to his banning) and around 20 months ago, in relation to Fiona Cameron’s allegations.
One final point in relation to:
2. “We consider the proceedings commenced against Dr Harley and Ms Cameron constitute an abuse of process.
My response: Banning a filmmaker on false allegations that he has intimidated, harassed and placed at risk members of Screen Australia staff is a far more significant abuse of process. This is what Ruth Harley has done, with the blessing of the Screen Australia Board and with the acquiescence of the Minister for the Arts, the Hon Simon Crean.
Finally, I cannot accede to your request that I do not copy this letter to anyone. There are numerous people who could (and I believe should) have nipped this dispute in the bud long ago. They did not do so and must share some responsibility for the fact that it has been allowed to fester this long and will wind up in the Supreme Court next week. Amongst those who could (and I believe should) have nipped this in the bud long ago, on the basis of facts and not unsubstantiated allegations, are the entire staff of the Documentary Section of Screen Australia, the Screen Australia Board, the office of the Ombudsman, the office of the Hon Simon Crean and, this past week, the office of the Commonwealth Information Commissioner. Even now, with the Supreme Court hearing just six days away, either the Ombudsman or the Information Commissioner could get on the phone to Ms Harley and say, “Dr Harley, please release the intimidating correspondence you claim Mr Ricketson has written and upon which you have relied for the ban on him by 4 pm Friday 31st. August.”
cc Stephen Nowicki, Senior Investigation Officer, Commonwealth Ombudsman’s office
Raewyn Harlock, Deputy Director, Compliance, Office of the Australian Information Commissioner
The Hon Simon Cream MP, Minister for the Arts