The GC’s role during litigious proceedings
Following their court victory over AGL – in proceedings that garnered international attention – Greenpeace APAC chief executive David Ritter and general counsel Katrina Bullock discussed how best GCs can support their organisations when faced with litigation.
Speaking recently on The Corporate Counsel Show, David Ritter and Katrina Bullock detailed the case brought against them by energy giant AGL for an advertising campaign that labelled it Australia’s biggest environmental polluter, amounting to 8 per cent of the nation’s emissions.
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The interlocutory injunction sought by the energy company did not refute the claims made by Greenpeace, Ms Bullock noted, but noted that the use of its logo in the environmental NFP’s advertising campaign – purporting to persuade the company to discontinue all use of coal-burning power stations by 2030 – breached its trademark and copyright.
The Federal Court denied the injunction, as reported early in June by Lawyers Weekly, on the basis that while use of the AGL logo infringed upon copyright on certain fronts, Greenpeace had not breached trademark in other ways because its use of AGL’s logo was not in the course of trade and that its advertising materials were protected by fair dealing safeguards in the Copyright Act. AGL has been ordered to pay 85 per cent of Greenpeace's costs.
Taking action when proceedings are brought
As CEO, Mr Ritter’s first response when a “cease and desist” letter arrived from AGL was that it was “absolutely outrageous” for the energy company to respond as such, and that “we were not going to be shut up”.
“Our obligation is on behalf of nature and people and the planet, and since we were confident in our position of law, the basis upon which we resisted the action sprang from that position of principle that we weren’t going to be silenced,” he said.
Ms Bullock added: “We were really aware that when you speak truth to power, when you call out a very large, well-resourced fossil fuel company, [for whom] strategic lawsuits against public participation like this one are actually quite common, it’s something that you need to be prepared for.
“David had this really strong understanding, as did our board and the rest of our senior leadership team, that we are in a climate crisis and that we simply cannot allow corporations to weaponise the law to stifle dissent at a time when environmental and social advocacy is more important than ever.”
Having the senior executives on board made the full proceedings – which were wrapped up within one month – more manageable, Ms Bullock mused, given those extraordinary time constraints.
“Anyone who has been involved in the litigation knows that there are so many steps in there. There’s the preparing of affidavits, there’s the filing of submissions, there’s responding to notices to produce. And, at the same time, just trying to manage everything else in the background because this was a live campaign, it was still running and evolving, there was still creative material that we needed to be reviewing and getting out into market,” she listed.
“Ultimately, our goal is to create change in society, and we didn’t want to distract from that, so we had to find ways of messaging this as part of the campaign and leveraging some of that attention the court case was getting to really focus on the key messages in the campaign and put more pressure on AGL, really, to move across to renewables and close down those coal-fired power stations.”
Assisting with witness prep and other tasks
That month was an “incredibly intense” period, Mr Ritter reflected, with no one working longer hours than Ms Bullock.
“I learned was just the true value of a really outcome-focused general counsel at moments like that. I mean, there was never any moment in which Kat became interested in some esoteric position of law or drawn down at the side alley,” he recalled.
“It was always about the outcome, always about the mission of the organisation. And, in the particularly personal circumstances of giving evidence on behalf of Greenpeace in being cross-examined and, of course, the preparation of my affidavit in advance to that, Kat did a wonderful job in emphasising the significance of those processes and ensuring that when I did give evidence, I felt as prepared as anyone could possibly feel.”
Ms Bullock added that she, together with the organisation’s barrister team, knew that it was “really important” to draw the distinction between preparing witnesses for court and coaching witnesses.
“You can prepare them for what to expect on the day. You can make sure they generally understand what will be in contention, where to focus their review and their scrutiny when they’re looking at the responses to the notices to produce and the parts of the affidavit before walking into the courtroom, but you can never really tell them what to say,” she explained.
“You can’t over communicate in these scenarios. But, equally, when you’ve got a timeframe like we did, which was very short, it’s really important that when you provide court materials to the senior leaders that might be giving evidence in a case, you indicate the likelihood of those materials actually coming up in the proceedings because it’s not uncommon for one side in a litigation to try and go on a fishing expedition or to overwhelm the other party with just an abundance of documents that will not really be in contention and will not really come up in the case, particularly when it’s a one-day hearing like this one was.”
As such, one of the roles of GCs is helping senior executives and those giving evidence understand the level of review and scrutiny required of the various documents, Ms Bullock advised, “so they can focus their review, feel really comfortable walking into the courtroom, and feeling like they’ve prepared as much as possible before they’re in that witness box”.
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Katrina Bullock and David Ritter, click below: