27 august 2020

Adani fails to win court order to conduct surprise search of environmental activist's home

Queensland’s supreme court rejects the mining firm’s bid, saying it could result in ‘humiliation and family distress’

Ben Smee The Guardian, August 27, 2020

Coalmining company Adani asked a Queensland court for orders that would have allowed its representatives to conduct an unannounced search at the family home of an environmental activist.

But the supreme court rejected the move, noting the search could result in “humiliation and family distress” for Ben Pennings and others.

Adani said on Wednesday it was suing Pennings, the national spokesperson of the group Galilee Blockade, which has sought to disrupt the operations of Adani, its suppliers and contractors.

The former Greens leader Bob Brown released a statement on Thursday, which said the legal action would “send a shudder through every Australian who values democracy, free speech and the right to peaceful protest”.

Adani has steadfastly claimed, in repeated public statements, that the campaigns by activists had “failed” to stop progress on the Carmichael project.

In the claim filed against Pennings, the company detailed financial loss from activist activities including the withdrawal of former contractors Downer EDI, AECOM and Greyhound Australia.

Adani is also seeking damages from Pennings for intimidation and conspiracy, and court costs.

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After being served with legal documents, Pennings released a statement referring to two ex parte legal applications made by Adani – in the Queensland supreme court and the Queensland court of appeal – prior to its decision to launch the civil case.

They show Adani sought a so-called Anton Piller order to conduct a surprise search of Pennings’ home, believing he held confidential Adani information the company sought to obtain before launching the court case.

Judgments in the cases reveal Adani hired a private investigator who gave evidence to identify Pennings as the owner of premises in Brisbane, where he lives with his partner and three children.

The order sought by Adani was to “permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order” and permit them also “to leave and re-enter the premises on the same day and the following day until the search and other activities referred to in this order are complete”.

Court documents indicate the proposed search party would comprise two solicitors instructed by Adani Mining and an associated company, Carmichael Rail Network, an independent solicitor and an independent computer expert.

Adani sought an order requiring Pennings to permit “the independent computer expert to search any electronic device and make a copy or digital copy of any electronic device and permit the independent computer expert to remove any electronic device from the premises”.

“If Mr Pennings were to object, then the independent solicitor would take the electronic devices.”

The supreme court and the appeal court rejected the application. The appeal judgment cited commentary by Sir Hugh Laddie, the former high court of England and Wales judge credited with conceiving the idea for an Anton Piller order, which described them as “offensive weapons”.

They have the ability to harm their victims in many ways,” Laddie said in the judgment.

“Service of an ex parte order coupled with a demand for immediate entry into premises is likely to produce strong emotional reactions; shock, anger, confusion, a sense of violation and powerlessness are common recollections, even when orders are served by sensitive and tactful solicitors.

“The execution of an order may cause severe, sometimes irreparable, physical disruption to a defendant’s business or daily life: the process may take hours to complete.”

The court of appeal refused the application citing the nature of the premises as a family home.

Surely, to permit a search of a defendant’s house, with the humiliation and family distress which that might involve, lies at the outer boundary of the discretion,” the judgment states.

This is because, for reasons that anyone can understand, the ‘shock, anger, confusion’ and the ‘sense of violation and powerlessness’ will be much greater in such a case and may be suffered not only by someone who is proved in due course to be a wrongdoer, but by entirely innocent parties as well.”

In a statement, Pennings said: “My wife and I have three school-aged children living at home, one with a disability.

“Adani has failed in two recent … applications to raid our family home for corporate secrets they believe I possess,
” the activist said.

Adani’s ‘attack dog’ legal strategy is well known. They want to silence dissent about their destructive thermal coal project that a majority of Australians oppose.

“Adani has already bankrupted traditional owner Adrian Burragubba. I will not let a massive multinational company threaten or bankrupt my family

Adani said its decision to launch legal action against Pennings was “needed to ensure our business can continue to deliver jobs and opportunities to regional Queensland communities at a time when they were needed most”.

“Adani is claiming that Mr Pennings has orchestrated a sustained campaign of harassment and intimidation against Adani’s business, employees, contractors and potential business partners spanning almost a decade.”

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Alongside its activities conducting physical protests at Adani contractors, Galilee Blockade has run a “dob in Adani” campaign that solicits information from employees of the company and its contractors.

This legal action does not seek to limit free speech. As we have repeatedly stated, we believe a diversity of views is an important part of democracy,” the company said.

“Adani is alleging that Mr Pennings has been instrumental in organising blockades and the occupation of offices and industrial premises of many of our existing and potential suppliers, as well as some organisations that have absolutely no association with Adani.

“After almost a decade of this type of intimidation, we are saying enough is enough

In relation to its application for an Anton Piller order, Adani said the application would have enabled a solicitor appointed by the court to secure evidence for the civil case.

“The court did not issue the Anton Piller order, however, we are able to pursue the civil claim regardless

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