Using the courts to clear one’s reputation can seem like a logical path, but it can also backfire spectacularly.
Even victory can prove pyrrhic, as waves of publicity accompanying every court appearance lead to a retelling of the original slur.
But public figures often resort to the courts, convinced they can clear their name.
The latest is the former NSW premier Gladys Berejiklian.
Next month her legal team will seek a judicial review of the Independent Commission Against Corruption’s finding that she engaged in “serious corrupt conduct”.
Despite the finding, Berejiklian remains a much-loved figure in the NSW community, fondly remembered for her stalwart stewardship during the Covid crisis, and as someone who was taken down by “a bad boyfriend”.
The matters which led to the Icac finding are now well known: Berejiklian had an undisclosed relationship with former Wagga MP Daryl Maguire, who has was found to have used his position as an MP to run a private business assisting property developers.
The relationship came to light as a result of secret phone taps, leading to further investigations into whether Berejiklian had breached the ministerial code of conduct and the public trust in playing a part in grants to the seat of Wagga Wagga.
Maguire was referred to the director of public prosecutions over the findings.
Berejiklian was specifically not recommended for referral, but Icac ruled that her involvement in giving grants to Maguire’s seat of Wagga Wagga without disclosing the relationship to her cabinet colleagues amounted to “serious corrupt conduct”.
Should she appeal?
One of Berejiklian’s key supporters, the Liberal MP and moderate power broker Matt Kean, supports her decision to appeal.
“I think she was wronged,” he said of the ruling.
“At the end of the day it’s her reputation and only she can decide what value she places on it. Her brand matters to her.”
The former NSW Liberal party president, Philip Ruddock, said she should be guided by the legal advice.
“My view is that she has access to some of the most senior legal advice, namely Bret Walker SC. It’s her reputation. If I was her I would be guided by the legal advice,” Ruddock said.
Berejiklian is now in a relationship with barrister Arthur Moses SC, but insiders say he has not been the one who urged an appeal.
What are the risks of litigation?
“A large proportion of clients who come to us due to critical media coverage want to sue,” said Mark Forbes, director of the reputation and crisis management firm Icon Reputation.
“Almost without exception we advise against court action, as it ensures another round of media coverage on the issue they want to disappear and creates an opportunity for the airing of further damaging testimony and documents, with success never guaranteed, he said.
“Just look at Ben Robert-Smith’s defamation action against Nine over his alleged involvement in atrocities … It resulted in a devastating and financially crippling defeat. Court cases never come cheap.”
Roberts-Smith, who is also under investigation by the Office of the Special Investigator charged with investigating war crimes, is now appealing against the defamation decision.
The special investigator processes would no doubt have continued behind the scenes regardless of the court process. But would Roberts-Smith have become the public face of those under investigation if he had not sued? Would the public still be discussing the stories five years after they were published?
What is a judicial review?
Berejiklian’s legal action is not a defamation case but a judicial review of an Icac ruling. It is a hard and narrow road.
“Essentially the only available grounds for judicial review is legal error,” said Geoffrey Watson, a director at the Centre for Public Integrity. “There can be no challenge to factual findings.”
He says that most such challenges result in failure. Just ask former Labor powerbroker Eddie Obeid, mining magnate Travers Duncan, former Newcastle mayor Jeff McCloy, and the Lazarus sisters, to name a few.
One success was the former Liberal NSW premier, Nick Greiner, whose administration created Icac before he was later forced out due to Icac findings. Greiner successfully appealed an Icac finding against him in 1992.
The commission had found him technically guilty of corruption over his manoeuvrings to find a government job for Liberal turned independent MP, Dr Terry Metherell.
But although the court found Icac had “exceeded its jurisdiction” in ruling against Greiner, it could not rescue his previously stellar political career.
He nonetheless went on to enjoy a life outside elected politics, becoming a successful company director and later federal president of the Liberal party and consul general in New York.
Other politicians cited as “victims of Icac” – the former premier Barry O’Farrell and senator Arthur Sinodinos – were not subject to an adverse finding by Icac as a result of the Australian Water Holdings investigation.
Sinodinos was returned to the Turnbull ministry after he was cleared, and then went on to become Australia’s ambassador to the US.
O’Farrell’s somewhat inexplicable decision to resign days after admitting he had given misleading evidence to Icac over a bottle of Grange – and well before the findings came out – remained embedded in the public mind.
It showed that sometimes the person’s own actions, rather than the official ruling on it, is the problem.
O’Farrell has gone on to have a low-profile but successful second career as high commissioner to India.
What is Berejiklian’s case?
Berejiklian’s judicial review will cover 13 grounds, many of them technical.
Berejiklian is attacking the validity of the appointment of the presiding commissioner, Ruth McColl, at the time that she wrote the report that found her seriously corrupt.
She is also arguing that as premier, the code of ministerial conduct did not apply to her because she was the arbiter and could not also be subject to it.
Another avenue attacks the commission’s findings that she was motivated by a non-pecuniary interest – namely the advancement of her relationship with Maguire – as not a valid type of interest capable of giving rise to corrupt conduct.
Watson says: “The concept of corruption is broader than personal benefit. It could arise if there is a diversion away from the public interest or insufficient regard for the public interest.
“It does not require that there be a private benefit, though that can be a sure sign of corrupt conduct,” he said.
Could Berejiklian return to politics?
Whether a win on technical grounds can clear the air sufficiently for Berejiklian to return to politics remains to be seen.
Forbes argues that even if Berejiklian succeeds, it will not be a full vindication.
“The arguments her legal team are making, including that conflict of interest rules should not apply to premiers, would struggle to pass the pub test,” he said.
“If the case fails, it puts a severe dent in her future ambitions. The key steps in reputation recovery are acknowledgment, apology and actions demonstrating changed ways.”
Forbes argues that if federal politics is her aim, overturning Icac’s corruption finding isn’t absolutely necessary.
“Gladys retained a large degree of support and sympathy through the initial hearings, maintaining the narrative of a trusting woman whose trust was abused, and a sense of an unfair, drawn out process,” he said.
“I’d question what she is hoping to achieve. She may have an eye to the historical record, but attempting to redress reputational baggage is more likely to do with pursuing future business or political opportunities.”
