India Carmichael Mine Freedom of Speech Coal
Ben Pennings takes on Adani in Supreme Court
Mar 02, 2021
Ben Pennings takes on Adani in Supreme Court

UPDATE THURSDAY 4 MARCH 2021:

Following Tuesday's Supreme Court hearing, Ben Pennings thanked his crowdfunder donors and legal team.

'Thanks to my legal crowdfunder donors, my 4 excellent lawyers clearly outshone Adani's 6 lawyers. As expected, the judge reserved her decision. But I'm more than hopeful I'll get the particulars of the case against me that Adani are currently trying to withhold.

'It was amazing to see the #StopAdani support outside the Supreme Court. My heart swelled, especially after seeing video footage of my eldest daughter bravely addressing the crowd and media scrum.'

 

TUESDAY 2 MARCH 2021:

Prominent Stop Adani activist Ben Pennings is taking Adani to the Supreme Court today, arguing Adani should not be permitted to withhold key particulars of the civil case they have brought against him.

Adani is suing Mr Pennings for alleged breach of confidence, inducing breaches of contract and conspiring with others to commit unlawful acts, amongst other things. Each of these claims is based on Mr Pennings having allegedly received Adani’s confidential information. Together they make up at least two thirds of the total claim, as well as underpinning the temporary injunction against Mr Pennings. 

Adani wants the Supreme Court to make broad confidentiality orders in the court case. These orders would permanently ban Ben’s lawyers from telling him what confidential information Adani says he’s already received. Ben’s legal team will be saying to the Court that he will have a fundamental difficulty in defending the case if those orders are made. Kiera Peacock, partner of Marque Lawyers, said:

“Adani says Ben has taken its confidential information, but won’t tell him what that information actually is. This creates a real tension with Ben’s fundamental right to natural justice, to know the case he has to defend. That is the tension the parties will be asking the court to resolve.” 

Mr Pennings said: 

'It’s impossible to defend myself against a multi-billionaire if Adani withholds details of its case against me. 

'Adani originally followed my wife to work and our child to primary school in failed attempts to search our family home. I need to know what exactly Adani says I did wrong, so that I can actually defend this case and end the ongoing pain this is causing my family.'

Greens MP Michael Berkman and Ben’s eldest daughter Isabella will be available to the media at the court solidarity event organised by Stop Adani Brisbane. Ben will hold a press conference after the day in court as needed. 

When: Tuesday March 2, 9:15am

Where: Supreme Court of Queensland - 415 George St, Brisbane City

Contact: Ben Pennings on 0418 164 014

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Background on Freedom-of-Speech issues raised by Adani's actions

Adani (now trading in Australia as Bravus) alleges that Mr Pennings ran a campaign of intimidation and harassment against the company’s attempts to open up the Galilee coal basin to exploitation. Adani’s Carmichael mine, if it goes ahead, would be the first in a series of proposed mines aimed at extracting millions of tonnes of coal from the massive basin. For several years, Mr Pennings was the public face of Galilee Blockade, a community endeavour aimed at protecting the Earth’s climate by keeping the coal in the ground.

Adani instituted proceedings against Mr Pennings in August 2020. Later that month it was revealed that Adani had secretly but unsuccessfully sought the court’s permission to mount a raid on Mr Pennings’s family home in Brisbane in order to seek confidential documents supposedly acquired by Mr Pennings. In October 2020, it was further revealed that Adani had organised surveillance of Mr Pennings and his family by hiring a private security firm. The secret photographing of Mr Pennings walking his nine-year-old daughter to school was described as a ‘creepy’ and ‘abhorrent’ move by Adani.

In statements to the media, Adani attempted to excuse its behaviour.

‘Any surveillance activity related to the relatives of Mr Ben Pennings was an effort to determine the time of day to carry out a search order that would see the least disruption to residents, if it was granted by the courts,’ a company spokesperson said.

‘Our court proceedings relate to Mr Pennings alone, and we were proactively trying to avoid disrupting his family where possible. These activities were legally undertaken.

‘We are unapologetic for exercising our legal rights and we will continue to use all legal means available to us to protect ourselves, our employees and contractors from individuals or groups who act unlawfully.’

Similar attempts to use the courts to crack down on those who criticise or question the Adani Group have been used in India.

A senior Indian journalist, Paranjoy Guha Thakurta, has been the subject of a long-running defamation case mounted by an Adani company in the home state of group founder, Gautam Adani. Even though a court has determined that the offending story required only minor modifications, and even though Adani has dropped other defendants from the 2017 litigation, Adani has pursued the case against Paranjoy. In January 2021, a court in Mundra (the location of Adani’s biggest single operation – the sprawling Mundra port and special economic zone) issued an arrest warrant against Paranjoy. Although a higher court subsequently suspended the warrant, it nevertheless required the 65-year-old journalist to travel over 1000 km from his home in Delhi to the Mundra court for hearings of the case, despite the obvious dangers to an older person from travelling during the COVID-19 pandemic.

Senior Indian journalist Paranjoy Guha Thakurta - subject of persecution through the courts

The use of this defamation case, the warrant and the requirement to travel constitute a clear case of persecution – to the point of being sadistic – against the veteran journalist.

As if this were not enough, Paranjoy is also the subject of a second defamation case mounted against him and others by Adani in September 2020. Again, the case was filed in a Gujarat court. Without hearing from Paranjoy and the other respondents, the Gujarati judge imposed a gag order on them. As a result, Paranjoy, Abir Dasgupta (formerly a frequent contributor to AdaniWatch) and NewsClick (an independent online news outlet that has frequently republished AdaniWatch stories) are prohibited from reporting on matters pertaining to the Adani Group. With businesses in ports, real estate, coal mining, power stations, solar power, gas, electricity transmission, edible oils, defence industries and airports, the Adani colossus reaches its tentacles into almost all aspects of life in India. The imposition of a ban on reporting of any of the group’s activities therefore constitutes a huge curtailment of press freedom that is contrary to India’s national interest.

AdaniWatch regards the attempts of the Adani Group to muzzle its critics and quash dissent to be abhorrent. Adani’s actions constitute a deplorable insult to the proud traditions of democracy and press freedom that have prevailed in India for decades.

The Adani Group is not the only entity attempting to crush freedoms in India.

At around 8 am on 9 February 2021, India’s Enforcement Directorate launched simultaneous raids on the headquarters and homes of key staff of NewsClick. Officials said the extraordinary series of raids related to allegations of money laundering and ‘foreign remittances.’ However, they were widely seen as intimidation of a media organisation that had given airplay to those critical of the Modi Government, such as the millions of farmers that have been protesting against agricultural deregulation for the past three months. Authorities in India have also cracked down on YouTubers and the Caravan publication using similar pretexts.

The treatment of NewsClick editor-in-chief and founder, Prabir Purkayastha, and his wife was particularly harsh. According to an interview with The Wire, the raid on the Purkayastha home lasted 113 hours – almost five days! Allegations and selected pieces of information obtained in the raids were leaked by government to conservative media outlets that toe the government line. While the raid was in progress, these craven organisations ran stories of the unproven allegations even though NewsClick personnel were unable to respond, given the confiscation of their telecommunication devices. This was deliberate cruelty by the Modi government towards the elderly couple, clearly aimed at intimidating other journalists, editors and news organisation.

 As Mr Purkayastha later said, ‘the process is the punishment’.

 Meanwhile, the Delhi police had detained a young climate campaigner on the flimsiest of pretexts. Disha Ravi, 22 years old and described as an Indian equivalent of Greta Thunberg, was one of the founders of the Indian Fridays for Future movement. The police charged her with criminal conspiracy for having circulated a ‘tool kit’ for people wanting to support the farmers’ protests. Investigators referred repeatedly and disingenuously to the ‘tool kit’ as if it were an assemblage of sharp metallic objects and explosive devices rather than a document with talking points and hashtags.

In a refreshing expression of judicial common sense, a Delhi court granted Ms Ravi bail, saying that the police’s ‘scanty and sketchy’ investigation had failed to prove any violent intent on her part. One hopes that India’s courts will take a similarly enlightened approach to the claims against Paranjoy, NewsClick, Abir Dasgupta and the Caravan.

 

Further background on the Pennings case from Marque Lawyers

Adani has been pursuing Ben Pennings through the courts since June 2020.  Following two failed attempts to get court orders to raid Ben’s family home, Adani obtained a temporary injunction in September 2020, restraining Ben from engaging in much of the activities he undertook as spokesperson for Galilee Blockade. 

Adani’s civil case claims Ben’s campaigning resulted in a ‘breach of confidence’ relating to confidential information, ‘inducing breach of contract’ and ‘intimidation’ relating to Adani’s contractors, and a ‘conspiracy’ to injure Adani’s coal operations in Australia.  

Ben had been asking Adani for that detailed explanation of these claims since November 2020. In late December he applied to the Court for a formal order that Adani properly explain and substantiate the case against him. Adani has now applied for orders which would prevent Ben from seeing important sections of Adani’s explanation on the basis that they are confidential. Without seeing this detail, Ben believes it will be impossible for him to properly defend the case. 

Adani’s substantive claim against Ben is primarily based on allegations he called for, obtained and used Adani’s and Carmichael Rail’s confidential information. They allege that the confidential information was leaked to Mr Pennings by the companies’ employees and future contractors. The words ‘confidential information’ are used on around 100 separate occasions in the claim, being around 67% of the paragraphs of the claim.

But despite its centrality to Adani’s claim and the huge amount of work Adani put into its claim for the three court cases to date, Adani has refused to explain what confidential information it says Mr Pennings actually received or used.  Mr Pennings has been asking for this explanation since October 2020.

Following several requests for details of this claim since October 2020, in December 2020 Ben was left with no choice but to apply to the Court for an order that Adani explain its case through the provision of particulars. Adani agreed to do so, on condition that the explanation relating to the ‘confidential information’ would for a short time be provided only to Ben’s legal team, and not to Mr Pennings. Adani separately said that during that time it would ask the Court for orders prohibiting Mr Pennings’ lawyers from ever telling Mr Pennings about the confidential information which Adani says he has and which he used in direct action campaigns. 

Adani’s application to stop Mr Pennings receiving or being told about the details of Adani’s case against him is listed for Tuesday 2 March 2021. On the same date Mr Pennings will ask the Court to order Adani to properly explain the basis of its case.