Lawyers for the environmental activist Ben Pennings say the long-running case against him brought by the mining company Adani should be thrown out as an “abuse of process”, telling the Queensland supreme court the remaining claims are “embarrassing”, “incredibly weak” and “highly problematic”.
Adani, which operates in Australia as Bravus, first sued Pennings in 2020, alleging he had sought to disrupt the operations of the Carmichael coalmine, its suppliers and contractors.
The activist’s barrister, Michael Hodge KC, told a hearing in Brisbane on Monday that Adani had already abandoned the “primary cause of action” in its case against Pennings, when last year it dropped claims he unlawfully accessed confidential information.
Justice Susan Brown is now considering an application to strike out Adani’s amended statement of claim, which alleges Pennings engaged in intimidation and conspiracy, and that he had induced employees to breach their contracts.
The miner, a subsidiary of the controversial Indian conglomerate, claims it suffered a financial loss after two companies, Greyhound and Downer, withdrew from contracts to provide services to the Carmichael mine.
Hodge told the court that Adani’s claim – that these contracts collapsed due to specific “demands and threats” by Pennings – was not supported by any contemporaneous evidence.
He said the case was “highly problematic” and amounted to an abuse of process because Adani had made and maintained claims about the loss of those contracts that bear “no resemblance” to any evidence it had disclosed.
Claims that threats by Pennings had caused companies to withdraw from contracts were “inconsistent” with public statements made by Greyhound and Downer, including a statement by Downer to the Australian Stock Exchange in 2017, Hodge said.
Both Downer and Adani have said publicly they agreed to terminate their contract in 2017, with Adani citing the Queensland government’s decision to veto a potential loan to the miner under the northern Australia infrastructure facility. Adani said the loan veto meant it would be cheaper to run the mine as an owner-operator.
An affidavit tendered in evidence attests to comments made by Downer’s former chairman Michael Harding that the company “had to make a choice between Adani and every other party Downer was working with” due to the threat of activists targeting its operations.
Greyhound said publicly it had decided to withdraw after receiving messages, emails and phone calls about its involvement with the project. The court heard Greyhound had sent a letter to Adani citing a Guardian Australia article that had first revealed the company’s contract.
Adani is opposing the strike-out application. Its barrister, Graham Gibson KC, said there was a “sufficient factual foundation” to support the pleading and that it ought not be struck out.
He said Adani’s case was that demands and threats by Pennings were “the source of protest activity” targeting Adani contractors.
“The pleading of causation in the statement of claim is not deficient, nor is it uncertain,” Gibson said.
He said Hodge’s criticisms of Adani’s pleading had been “expanded out of all proportion” and were “ultimately if not a contrivance, an exaggeration”.
In relation to claims of conspiracy, Adani’s claim alleges the involvement of “unknown conspirators”.
Gibson said the pleadings did not contain “direct evidence” of an agreement or understanding between Pennings and others to harm Adani but that such a conspiracy “is clearly to be inferred from the facts”.
The case was launched in 2020 after an unsuccessful application by Adani to search Pennings’ home.
Court documents in that case detailed that Adani hired a private investigator to surveil the activist and his family members, including taking photographs of him walking his then nine-year-old daughter to school.
The case has now been running for more than three years. Legal sources say it is highly unusual for a case not to progress beyond pleadings in that time. Both sides have publicly blamed one another for delays and Adani has said it always intended to adjust its pleadings following the discovery process.
Pennings is also applying to lift an injunction that has been in place throughout the case, and for the reversal of a costs order imposed on him by the court after an earlier hearing.
The hearing continues.
