Monday, September 3, 2012
To Ruth Harley - one day before Supreme Court hearing
150 William St.
Woolloomooloo 2011 4th Sept 2012
You will not, as you promised on 10th May, read this letter. Given that it will be posted on the internet, however, others will read it and perhaps someone will appraise you of its contents.
Tomorrow, 5th Sept, the ongoing dispute between myself and Screen Australia will have its initial hearing in the Supreme Court of NSW. This is a dispute that could and should have been resolved in Nov. 2010 if Screen Australia had a functioning complaints process; if you as Chief Executive had not allowed it to fester for around 20 months. All that was required at the outset was one question of Claire Jager and Ross Mathews: “Did you or did you not view James’ ‘promo’ for ‘Chanti’s World’ before knocking back his development application?” A truthful answer to this question would have resulted in a competent Chief Executive declaring the first assessment null and void and requesting of Ross that a new assessment commissioned – but not by Claire Jager who, with the multiple factual errors she made in her first assessment (with no apology forthcoming fro not having viewed my ‘promo, should have been disqualified from making a second assessment on the ground of a conflict of interest. A second question, for Fiona Cameron in Nov 2010 would have been, “Please produce the correspondence in which James makes it clear that he believed ‘Chanti’s World’ had been ‘greenlit’.”
Of course the reality is that you knew that Fiona’s ‘greenlit’ correspondence did not exist back in Nov 2010 just as you knew back in 2010 that Ross and Claire did not view my ‘promo’ and just as you know that there is no correspondence from me on file at Screen Australia that has intimidated or placed at risk members of your staff. Yes, you have plenty of correspondence from me with questions relating to Fiona’s dishonest claims vis a vis my ‘greenlit’ correspondence and yes, you have plenty of correspondence from me in which I ask that Screen Australia act in accordance with the precepts of accountability and transparency it claims to. And yes there is plenty of criticism of Screen Australia policies that I believe to be detrimental to Australian film. But there is not one letter, one email, one paragraph, one sentence or even ne phrase in which I have threatened violence against a member of your staff or written anything that even comes close to any dictionary definition of the verb ‘to intimidate’.
It would seem that your hope, tomorrow in the Supreme Court, is that your legal counsel will find some way of guaranteeing that no-one in the film community, not even members of the Board that banned me, will get to see for themselves the evidence of my having intimidated your staff. My hope, needless to say, is that the presiding judge will not be swayed by such arguments and will agree that your having accused me of intimidation and placing your staff at risk warrants that the case be heard at a later date. My suspicion is that s/he will, regardless of a determination, make it clear it is not appropriate that this dispute be resolved in the Supreme Court of NSW when there are easier, more appropriate and less costly forms of resolution available to both Screen Australia and myself – each one of which would necessitate that you produce documentary evidence of my having intimidated your staff.
My amended Statement of Claim reads:
On 9tthMay 2012 the Defendant published to Directors of the Screen Australia Board a draft letter to the Plaintiff which included the words, “your correspondence places our staff at risk. We are under an obligation to protect our staff from harassment and intimidation.” This statement harmed the Plaintiff’s reputation in the eyes of film colleagues on the Screen Australia board.
On 10th May the Defendant confirmed the damage that had been done to the Plaintiff’s reputation when she wrote informing him that “Screen Australia has taken the decision that it will not accept further funding applications from you, or engage in correspondence with you about funding applications.” The Defended added, in this letter, “…any correspondence which you send to us about the decision notified in this letter will not be read.”
The Plaintiff insists that he has never intimidated or placed at risk any member of Screen Australia staff in his correspondence or in any other manner.
On 11th May the Plaintiff, wishing to defend himself against the allegations of intimidation that had led the Screen Australia Board to effectively ban him, wrote to the Defendant requesting that she provide him with copies of correspondence from himself in which he had allegedly harassed, intimidated and placed at risk members of Screen Australia staff. The Defendant did not respond to the Plaintiff’s request.
Since 12th Nov 2010 the Plaintiff had been writing to the Defendant requesting copies of other correspondence he had allegedly written and which were damaging to his reputation. His requests were refused and correspondence written by the Plaintiff to the office of the Ombudsman to obtain copies of the allegedly intimidating correspondence were ignored.
On 14th May 2012 The Plaintiff requested assistance from the Administrative Appeals Tribunal in acquiring copies of the allegedly intimidating correspondence he had written so that he could appeal the decision made by the Screen Australia Board. The AAT informed the Plaintiff that there was no legislation that would allow the AAT to review the decision taken by the Screen Australia Board.
On 25th May 2012 the Plaintiff wrote to the Ombudsman, in the following terms: “If I were obliged to reduce my request for assistance from the office of the Ombudsman to one simple question it would be: “Please ask Ruth Harley to quote one sentence, one
paragraph, one email, one letter to a member of her staff that contains anything that could be construed, by even the most sensitive or Screen Australia employee, as posing a risk to them.” The Plaintiff did not receive a response to this letter, or even acknowledgement of its receipt from the office of the Ombudsman.
On 18th June 2012 The Plaintiff applied, though Freedom of Information legislation, to acquire copies of the intimidating correspondence he had allegedly written to member of Screen Australia’s staff.
On 18th July the Plaintiff received from Screen Australia copies of a substantial amount of the correspondence he has sent to Screen Australia over a period of three years but with no indication as to which parts of it were intimidating or placed Screen Australia staff at risk. The Plaintiff could not find one instance in this correspondence in which he had intimidated or placed at risk members of Screen Australia staff.
On 9th August 2012 the Plaintiff requested, through FOI, specific details of the instances in which he had, in his correspondence, harassed, intimidated and placed at risk members of Screen Australia staff. Screen Australia’s FOI officer wrote to the Plaintiff, “It is our view that this request goes beyond the scope of the FOI Act, and is not a valid FOI request.”
Every attempt on the part of the Plaintiff to acquire copies of the correspondence that support of the allegations of intimidation that the Defendant presented to the Screen Australia Board has ended in failure.
It is close to impossible to produce a film in Australia without utilizing a tax incentive scheme known as the ‘Producer’s Offset’ – administered by Screen Australia. Screen Australia’s refusal to correspond with the Plaintiff or to allow the Plaintiff to speak with Screen Australia staff effectively prevents him from producing films and TV programmes in an industry to which he has devoted 40 years of his life.
On 8th August the Plaintiff wrote to the Defendant in relation to this matter. The letter included the following: “If Screen Australia wishes to leave it up to the Supreme Court to determine the existence or non-existence of correspondence, so be it. This strikes me being a dreadful waste of time, energy and financial resources. And it will yield the same result as would be achieved by yourself, Fiona and myself sitting around a table with an independent Conciliator – as I suggested months ago. At such a meeting you could produce the correspondence you both refer to in justification of Screen Australia’s banning of me. And Fiona could produce the correspondence I have been asking her to produce or identify for 18 months now. If correspondence exists in which I intimidate, harass and place at risk members of Screen Australia staff, I owe these staff an apology at the very least and my banning is appropriate to the crime I have committed. If the correspondence does not exist, Screen Australia owes me an apology, in writing, and the lifting of the ban that has been placed on me.” The Defendant did not respond to this letter.
On 31st. August the Defendant wrote letters to the Office of the Ombudsman and to the Minister for the Arts Mr Crean suggesting that it was inappropriate that this dispute, which rests on the existence or non-existence of certain correspondence, should be heard in the Supreme Court. The Plaintiff has not, to date, received responses from either the Office of the Ombudsman or that of the Hon Simon Crean.
My ‘Relief Claimed’ reads:
1. That the Defendant apologize in writing for having published, to the Screen Australia Board, statements about the Plaintiff in relation to intimidating correspondence that were factually incorrect and damaging to his reputation.
2. That the Screen Australia Board lift the ban it has placed on the Plaintiff and apologize for having put it in place in the absence of evidence in support of it.
As I have written many times now, if I have intimidated, harassed or placed Screen Australia staff at risk, it is entirely appropriate that the Board should effectively ban me from having any further dealings with the organization. And, given the dictionary definition of ‘intimidate’, it would not be inappropriate for Screen Australia to take out an AVO order against me to protect its staff. If I have not intimidated or placed at risk members of Screen Australia’s staff, your draft letter to the Screen Australia Board, dated 9th May 2012, is not only defamatory but an abuse of the powers vested in you as Chief Executive.
My guilt or innocence of the charges of intimidation rest on the existence or non-existence of my allegedly intimidating correspondence. My attempts to obtain copies of this correspondence, through FOI and the office of the Ombudsman, have failed. My suggestion that a Conciliator or some other ‘reasonable person’ to brought in to review the relevant correspondence and form an independent view as to whether or not I have intimidated Screen Australia staff has been ignored by yourself.
The worst possible scenario for me is that your legal counsel produces, in the Supreme Court, evidence in support of your allegation that I have intimidated you staff. Even in this scenario (an unpleasant one for me, needless to say) the question will arise: Why has Ruth Harley waited until a Supreme Court hearing to produce correspondence that Mr Ricketson has been asking her to produce since 11th May? A follow on question might be: “How much money has Screen Australia wasted on legal fees that could have been saved by handing over the correspondence in the middle of May?”
You are in a position, Ruth, to release or identify my ‘intimidating correspondence’ today or sufficient extracts from it to convince any ‘reasonable person’ that I am guilty of the crimes of which I have been accused. If I am demonstrably guilty, my public apology to members of Screen Australia staff will be swift (today) and I will accept my ban as an appropriate punishment. If however, on reading through the relevant correspondence it is abundantly clear that there is nothing intimidating in it, nothing that places Screen Australia staff at risk, your apology should be equally swift (today), as should the Board’s lifting of the ban on me.
Either of these two alternatives would make it unnecessary for the matter to be dealt with in the Supreme Court tomorrow, thus saving a good deal of time, energy and money and not wasting the Supreme Courts time on a matter that should not be before it anyway.