Claim that payments were not for Whale Oil blog posts “a fiction”

Cameron Slater was back in court yesterday after failing to avoid being orally examined in a long running defamation case brought against he, Carrick Graham and others by three public health academics, Boyd Swinburn, Douglas Sellman and Shane Bradbrook.

Slater had tried to avoid appearing, claiming that as he was now bankrupt he was not liable, and that he was medically unfit. He had also for years delayed defamation proceedings brought against him by Matthew Blomfield, until finally being found to have no defence in October 2018. Damages in that case are yet to be awarded but are likely to be substantial.

In July last year the High Court ordered him to appear – from ] SELLMAN v SLATER [2019] NZHC 1666 [17 July 2019]:

In this proceeding, three medical professionals sue Mr Cameron Slater, and other defendants, for defamation. In an interlocutory judgment of 23 November 2018, I ordered Mr Slater to provide further particular discovery and to attend court to be orally examined. Since then, Mr Henry, for Mr Slater, has: applied for a temporary stay on the basis Mr Slater’s medical condition prevented him giving instructions; foreshadowed an intention to apply for appointment of a litigation guardian; advised of Mr Slater’s bankruptcy; and advised that he has instructions to oppose new applications but that Mr Slater no longer defends the substantive proceeding.

The plaintiffs have applied for orders that Mr Slater comply with the court orders for discovery and oral examination or be held in contempt of court. Mr Henry now submits, on Mr Slater’s instructions, that Mr Slater is no longer a party to the proceeding or able to engage a solicitor, because he is bankrupt, and he seeks a formal hearing on that issue. Mr Henry also says there are medical reports from February 2019 confirming Mr Slater is unable to give evidence in court.

This proceeding was commenced three years ago, in mid-2016. The plaintiffs are three medical professionals, Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook. They sue Mr Slater who they allege defamed them in a series of blog posts on his Whale Oil website. They also sue Mr Carrick Graham and his company Facilitate Communications Ltd (FCL) for defaming them in comments on the posts. And they sue Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for allegedly procuring Mr Slater, Mr Graham and FCL to publish the substance and sting of the alleged defamation.

Under the discretion, on 20 March 2019, I ordered this proceeding to continue against Mr Slater. I consider it is an implicit term of that order that Mr Slater must comply with orders made against him in the proceeding, which was one of the reasons why the plaintiffs sought its continuation against him. If that was not sufficiently implicit, I now make it explicit under that discretion and/or under the inherent jurisdiction of the High Court to supervise proceedings before it. That means Mr Slater must comply with the court orders irrespective of Mr Henry’s argument about the effect of his bankruptcy.

Mr Slater must comply with the orders personally if the Official Assignee cannot do so through the exercise of the Assignee’s powers. The order to be examined orally must be complied with by Mr Slater personally, subject to what I say below about his medical condition.

It finally got to court yesterday. Tim Murphy reports at Newsroom: The return of Dirty Politics

Slater and Graham had to appear in the witness box at the High Court at Auckland to provide answers to questions from the lawyers for three health academics, Boyd Swinburn, Douglas Sellman and Shane Bradbrook, who are suing the pair for defamation.

They had been attacked on the Whaleoil blog for their research and calls for public health and policy action on alcohol, tobacco and sugar.

Justice Matthew Palmer ordered Slater and Graham in late 2018 to appear to give evidence in person, but Slater had had a stroke and was incapacitated, and then in rehab, through most of last year.

Slater did not have a lawyer representing him but his former advocate Brian Henry was in the back of the courtroom, declining the possibility raised by Justice Palmer of assisting the court and Slater. Henry said he was suffering from shingles and “no longer appearing before this court”, adding he was there because it “was too good a show to miss”.

Henry said in his experience, Slater would be able to concentrate for up to an hour on the stand before the judge might notice “he starts to no longer be with this court”.

Salmon repeatedly asked if Graham had been paying Slater to publish blog posts against his clients. “No. He was not. You seem to think if that’s what you ask me again and again it will change my answer. I’ve sworn an affidavit. It’s my opinions. No one can buy those opinions.”

Asked about payments detailed in documents Graham and Slater had turned over, totalling $93,840 “from Mr Graham and his company to you and your company”, Slater said they would have been for media services, public relations advice and social media expertise, not posts themselves.

He agreed Graham was the PR man providing such media services, but added: “He needs advice on that.”

Later he said: “No one pays me for blog posts, contrary to the fantasies of Mr Hager. That’s never happened.”

I think that’s contrary to what was disclosed in the Blomfield case.

On blog posts that might have been drafted by Graham, Slater said: “They are articles that I have written about and published under my name, so therefore I take ownership of those articles but I receive briefings, as anyone in media does, about intricacies in various cases.”

Asked again if Graham had “procured you to publish” those posts, he said: “No.”

Was he paid by Graham? “I was paid for advice.”

Slater claimed he had provided in the the discovery process everything that he had, but told Salmon he had been hacked and a huge amount of damage had occurred to his IT systems. “I do not know what I do not know. If documents are not there I don’t know why they’re not there. Did they go missing? Did I delete them ? No idea. I don’t have them. They are not under my control.”

He has no idea if he deleted them?

Carrick Graham also denied he paid for blog posts against the three academics.

Salmon pointed to one invoice Graham had issued which mentioned blog posts at $300 each.

Graham: “The client realised Mr Slater would not do it for free and showed no interest in doing it for free but at the same time he heard what went on and what happened and would do a post.”

To another document Graham had provided, listing his work in ‘drafting online posts x 3″, Salmon asked if that corresponded to a line on an invoice for $900. “Possibly,” Graham answered.

Salmon wanted to know, if Graham had not paid for blogposts, whether anyone else of Graham’s clients had paid Slater direct to publish views against the academics.

Salmon used a different total to Graham than he had earlier put to Slater, for payments between his business and Slater. “Payments between your entities and Mr Slater’s entities I calculate at $124,434 – payments you have said you have made to Mr Slater. Correct?

“Yes”.

Salmon: “Are you able to agree that there is a surprising number of invoices paid there that are divisible by $300?”

Graham: “If you say so. Could be divided by all sorts of numbers.”

He said work he did for various clients to do with alcohol, tobacco and the sugar and food industries was “about intelligence… what’s going on. Not the blog posts in question.”

Salmon: “In your own time?”

Graham: “I’m personally interested in these issues.”

Salmon told Justice Palmer that when the case goes to trial, the plaintiffs would argue the claim that payments were not for blog posts “is a fiction”.

One can make their own conclusions about this, but it will be up to the court to decide on whether payments were made for posts or whether they were just coincidental payments for other work done that had nothing to do with the Whale Oil  posts.

I can imagine what Slater would be saying if this was someone else making claims like this.

John Stringer loses defamation case against Colin Craig

Ex-Conservative Party member John Stringer has lost a defamation case against his former party leader Colin Craig, adding to the list of court failures in the aftermath of the attacks on Craig run on the Whale Oil blog.

[1] In July 2015, after the implosion of the Conservative Party, Mr Colin Craig and Mrs Helen Craig said Mr Craig had been the victim of dirty politics as the Party’s former leader. They named three individuals as responsible, including Mr John Stringer, a former Conservative Party Board member. They gave a press conference and published a booklet saying so and distributed it to 1.63 million households in New Zealand. Mr Craig made other public statements saying so. The booklet was moderated, anonymously, by Mr Stephen Taylor. Party officials, Mrs Angela Storr and Mr Kevin Stitt, emailed updates to Conservative Party members about Mr Stringer and Mr Craig’s booklet and legal proceedings.

[2] Mr Stringer sues the five of them for defamation…The defendants fairly characterise their statements as falling broadly into six categories of meanings regarding Mr Stringer, that he: lied or is a liar; engaged in attack politics; coordinated with others to target Mr Craig; seriously breached the Conservative Party’s rules; acted unlawfully (by defaming Mr Craig); and betrayed others. The defendants did publish the statements complained of, most of which were defamatory of Mr Stringer. But, I hold:

(a) Mr and Mrs Craig have qualified privilege for all of their defamatory statements because they were made in response to Mr Stringer’s attacks on them. The force and vigour of their responses were not out of proportion to his, were not made in bad faith and were made for the purpose for which the privilege is accorded. With one exception, Mr and Mrs Craig’s defamatory statements of fact were also true or not materially different from the truth. Their defamatory statements of opinion were their genuine opinions and based on facts that were true or not materially different from the truth.

(b) Mr Taylor knew his moderation of the booklet would encourage its publication and he had the opportunity to influence, significantly, whether the statements were published. So, at law, he also published the defamatory statements. But the defences of qualified privilege for response to attack, truth and honest opinion protect him as they do the Craigs.

(c) Mrs Storr and Mr Stitt’s statements were made in discharge of their duty to communicate with party members and therefore benefit from the defence of qualified privilege of a duty to publish. They were also either true or their honest opinions.

[3] Accordingly, Mr Stringer’s claims all fail….

[10] By early 2015, there were persistent leaks of Board information to the media and, in particular, to Whale Oil, then one of the most read blogs in New Zealand. It is now clear, including by Mr Stringer’s admissions under cross-examination at trial, that Mr Stringer had been feeding information to the Deputy Editor of Whale Oil, Mr Pete Belt, from at least 15 November 2014…

[11] On 28 February 2015, in chairing a Board meeting, Mr Dobbs reminded Board members of their confidentiality obligations. All Board members, including Mr Stringer, re-signed the Party’s Code of Conduct which said, among other things, that “[a]ll media correspondence with regard to The Conservative Party of NZ business must be issued through the Party Leader, President or Press Secretary”.They also all signed a confidentiality agreement …

[12] Despite this, on 5 March 2015, Mr Stringer provided further suggestions to Mr Belt about possible stories regarding the Conservative Party…

Feel free to say you approached me, “but he declined to comment, citing Board confidentialities” but did say there were some widespread concerns over various matters the Party was seeking to resolve as amicably as possible.

In all other respects, cite “A Party member.” (Don’t mention Board as source). Is it better that we chat?

Stringer sent a text to Jordan Williams:

Pathetic jellyfish on Board wouldn’t even agree to release stmnt accepting CCs resignation last night. Done with them. Going nuclear. Time to carpet bomb the Colin Craig cult compound, make sure this clown doesn’t come back …

Getting so drawn into this now; and WO and I are gonna take him on if he goes us legally; wod kinda like opportunity to actually site the folders if at all possible, read the texts. I’m only responding to hearsay and accusations so far.

More from the judgment:

[19] On 21 June 2015, Mr Stringer emailed Mr Watkin at TV3, saying Whale Oil had a “‘nuclear bomb’ re Colin and may disclose this week”

So Stringer, Williams, Pete Belt and Cameron Slater were all involved to various extents at Whale Oil.

[102] It is simply not credible that Mr Stringer did not understand the effect of feeding information to Mr Belt. Mr Stringer was sending emails to Mr Belt about scandalous topics of current interest. Mr Stringer is an experienced political operative. His wife attested to that. 

A person of Mr Stringer’s experience with the media would have expected that the information and allegations he was sending Mr Belt would end up on the Whale Oil blog. I do not believe his protestations to the contrary. Indeed, his email of 26 February 2015 was explicit in asking Mr Belt to “hold off publication” because of a “witch-hunt” due to a previous Whale Oil post. Mr Stringer’s email to Mr Belt of 21 June 2015 said “not for publication yet, lets wait for Magic Hands replies”. And despite Ms Rankin expressing to him her outrage about the Walden report being leaked to Whale Oil, Mr Stringer continued to feed stories to Mr Belt, as he had leaked that report. 

It was entirely foreseeable that providing salacious allegations and confidential information to the Deputy Editor of the Whale Oil blog would result in it ending up on that blog. I consider the evidence establishes Mr Stringer knew full well what he was doing when he emailed Mr Belt. He was providing a stream of leaked information and damaging allegations about Mr Craig for possible publication on the Whale Oil blog, including when he was a member of the Board of the Conservative Party. He was working with Whale Oil to attack and undermine Mr Craig.

[159] If successful, Mr Stringer sought declarations, damages, aggravating damages and, apparently, punitive damages against the defendants, amounting to a total of over $3.5 million dollars. I agree with the point Mr Akel offered in submission, that it is too late for Mr Stringer to put punitive damages under s 28 of the Act in issue, when he failed to do so in his pleading. I also accept Mr Akel’s point that Mr Stringer’s own conduct would be relevant to any damages award if he were successful. He provided a link to, and argued against the booklet, republished the three Party updates on his own blog and even used the term “Judas” as a heading for one of his own cartoons on his blog.And I accept the defendants’ submission that the amounts claimed are divorced from reality. But, as it is, Mr Stringer has not succeeded in any of his claims.

[161] Mr Stringer’s suit was misconceived. I dismiss his claim.

The public accusations against Colin Craig that destroyed the already failed Conservative Party led to a number of defamation trials that have kept courts busy for years.

This all blew up in 2015, driven by Cameron Slater and the Whale Oil blog, with Jordan Williams supplying information he had access to in confidence, Williams deemed the public good justified breaching that confidence, but dirty politics and self interest seemed to be prominent.

The ‘public good’ seemed to be an attempt to destroy the Conservative Party (it succeeded), or to oust Craig as leader and install different leadership.

Slater and Whale Oil also tried to have Auckland mayor Len Brown deposed just after the 2013 election with what amounted to a series of sleazy attacks. Brown served his term and then stood down.

Following a flurry of accusations and counter attack from Craig, Williams went to court and had a big win (awarded 1.27 million by a jury) against Craig, but that has been set aside after legal challenges and appeals, and was finally settled last December: Colin Craig receives apology, compensation from Jordan Williams

A long and bitter court feud between former Conservative Party leader Colin Craig and Jordan Williams has been settled, with an apology and compensation from Williams.

In the first High Court case, a jury had found overwhelmingly for Williams and awarded him $1.27 million in damages – a record for defamation awards in New Zealand.

But the Supreme Court found the High Court jury had been materially misdirected and the case should be run again.

“My options are to settle, however much it sticks in the throat, go bankrupt, or incur huge debt to fight on,” said Williams.

“With the comments the appeal judges have made about limits to damages in defamation, no one rational would go for the retrial.”

On Tuesday, Craig sent out a press release saying he’d received a full apology and a payment from Williams, after Williams admitted making false allegations about him.

It means a retrial of a case in which Williams accused Craig of defamation will not go ahead.

“I wish to apologise publicly for the untrue statements I have made about Mr Craig,” the apology from Williams said.

Now John Stringer loses defamation court battle against former Conservative party leader Colin Craig

Former Conservative Party leader Colin Craig has won a legal defamation battle with the party’s ex-board member John Stringer.

During a High Court trial in August 2019, Stringer claimed the booklet – Dirty Politics and Hidden Agendas – sent to 1.6m households by Craig and his wife Helen in July 2015, hurt his political aspirations.

He took the Craigs to court for defamation, as well as Stephen Taylor, who moderated the booklet, and party officials Angela Storr and Kevin Stitt, who emailed supporters updates about Stringer and the booklet.

At the trial, Stringer claimed the booklet was designed to defame him “to as wide an audience as possible” and alleged he was involved in a “dirty politics conspiracy”.

Stringer also used Whale Oil in the stoush and afterwards so yeah.

In 2016, Stringer ran for a Christchurch City Council seat in the Papanui ward, but lost to current councillor Mike Davidson.

He claimed members of the public subsequently told him “that Colin Craig stuff” hurt his campaign.

Before the 2017 general election, Stringer was actively considered by NZ First as a potential candidate in South Canterbury’s Rangitata electorate.

However, Stringer said the person organising his candidacy later said the party wanted to withdraw it, “because I was one of those dirty politics brigade fellows”.

In a recently-released judgement on the matter, Justice Matthew Palmer found the Craigs were covered by qualified privilege for their statements as they were made in response to Stringer attacking them.

“The force and vigour of their responses were not out of proportion to his, were not made in bad faith and were made for the purpose for which the privilege is accorded.”

Their statements were factual, with the exception of one, he said.

“Their defamatory statements of opinion were their genuine opinions and based on facts that were true or not materially different from the truth.”

He added that as moderator of the booklet, Taylor was technically the publisher of the defamatory statements when it came to the law.

However, the defence of qualified privilege and truth and honest opinion protected him also.

As it was Storr and Stitt’s duty to communicate with party members, they were also protected.

Justice Palmer dismissed Stringer’s defamation claim, which he said was “misconceived”.

I think there was a lot ‘misconceived’ in the attack on Craig and his counter attack.

Williams must be out of pocket by a substantial amount.

Slater is bankrupt due to multiple defamation failures (he appeared to see defamation as a money making scheme, especially after the original award in Williams’ favour when Slater launched into his own case against Craig.

Craig made now monetary claim against Stringer who was already not in a position to pay anything.

Dirty politics via Whale Oil has been an expensive own goal for a number of people using the blog to attack people.

Judgment: Stringer v Craig [2020] NZHC 644 (3 April 2020)

 

Nottingham application for recall dismissed by Court of Appeal

Another in long list of failures by Dermot Nottingham with the Court of Appeal dismissing an application for recall of an award of costs in a long running (since 2013) litigation versus Maltese Cat regarding claimed defamatory posts on the Lauda Finem website in 2013.

Nottingham was convicted in 2018 of criminal harassment and suppression breaches where he was found ‘by a wide margin’ to be ‘the driving force’ responsible for numerous posts on the Lauda Finem website.

[38] Identity (in the sense of responsibility for the acts either as principal or party) was therefore in issue on all charges. Again, Mr Nottingham’s position (both at trial and on appeal) was that there was no evidence of information being communicated from computers under his control to the LF website. And again, the Crown case was (and is) the evidence identifying him as the “driving force” behind the harassment was, if not overwhelming, certainly very strong.

[43] The weight to be given to all of these individual pieces of evidence was essentially a jury function. By a wide margin we conclude that on the issue of “identity”, Mr Nottingham fails to satisfy us that the jury’s verdict was unreasonable.

That’s from Nottingham’s failed appeal of conviction and sentence – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]. He tried to appeal that decision inn the Supreme Court –  DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019] – but his application for leave to appeal was dismissed.

No question of general or public importance accordingly arises. Against that factual background, nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment.

Nottingham had argued that he wasn’t responsible, but also that the posts were true, so he was trying defend something he claimed there was no evidence he had done.

This is relevant to the Maltese Cat case because they are claiming Nottingham has some involvement in defamatory posts at Lauda Finem.

From NOTTINGHAM v MALTESE CAT LIMITED [2019] NZCA 641 [12 December 2019]

[1] The issue in this appeal is whether a defamation claim seeking declaratory relief and costs is a money claim for the purposes of s 11 of the Limitation Act 2010.

[2] The respondents brought the proceedings alleging that defamatory statements had been published about them on the website http://www.laudafinem.com. The host of the website, Godaddy.com LLC, has advised that it is contractually entitled to take down defamatory, obscene or lewd material and will abide any order of this Court declaring publications on the laudafinem.com website to fall into those categories.

[3] Mr Nottingham brought a number of interlocutory applications, including an application to strike out the proceeding on the ground that it was time barred. Rule 15.1 of the High Court Rules 2016 permits the court to strike out all or part of a pleading on specified grounds, including that it is an abuse of the process of the court.  In order to succeed on a strike-out application brought on the ground that the cause of action is statute-barred, the applicant must show that the claim is properly regarded as frivolous, vexatious or an abuse of process.  The threshold for striking out a pleading is a high one; the jurisdiction is to be exercised sparingly and only in clear cases and the cause of action must be clearly untenable.

[4] Fogarty J found that the proceedings were not time barred. Mr Nottingham appeals.

[9] The Judge considered that the limitation issue could be disposed of on the basis that the defence provided under s 11 on which Mr Nottingham relied was not available, because s 11 applies only to “money claim[s]” and the respondents were seeking only declaratory relief, which is not a money claim.

[11] On appeal, Mr Nottingham modified his argument in relation to s 11. He submitted that, because the statement of claim seeks costs (and indeed indemnity costs would likely be payable by virtue of s 24(2) of the Defamation Act 1992), as well as declaratory relief, the proceedings do constitute a “money claim” for the purposes of s 11 of the Limitation Act.

[12] Mr Nottingham also maintained the argument that the multiple publication rule should not apply and that the proceedings are time barred because they were filed more than two years after the first date of publication and the respondents had knowledge of the publication within that period.

[13] We consider that the Judge was right in his conclusion that the proceeding is not a money claim and that the fact costs are sought makes no difference.

[15] A claim for declaratory relief is clearly not a money claim for the purposes of s 11 and Mr Nottingham did not seek to argue otherwise. Nor is it tenable to argue that a claim for costs could, in itself, constitute a money claim. A claim for costs under the High Court Rules is essentially a claim for a contribution to litigation costs incurred, that being the basis upon which claims are allowed. It is well recognised, however, that proceedings cannot be brought where legal costs are the only relief sought. It is therefore self-evident that a claim for costs cannot transform a claim for declaratory relief, which is not a money claim, into a money claim.  We agree with Mr Connor’s point, for the respondents, that treating costs as a form of relief would have the potential to turn virtually every claim into a money claim for the purposes of the Limitation Act.

[16] Our conclusion that the proceeding in this matter is not a money claim means that whether the publication is to be treated as having occurred on the first day of publication or subsequently, under the multiple publication rule, cannot affect the respondents’ position. It is therefore unnecessary to consider the merits and application of that rule.

[17] Nor is it necessary to consider the other aspects of Mr Nottingham’s extensive written submissions, which rest on factual matters not before the Court.

Nottingham has a history of “extensive written submissions” – often hundreds of pages, sometimes over a thousand – which ‘rest on matters not before the Court’, that is, irrelevant or inadmissible. A problem with this is that lawyers have to read all submissions just in case there is something of legal importance hidden in the dross. This takes time and costs clients money.

Result
[18] The appeal is dismissed.

The latest judgment: Nottingham v Maltese Cat Limited [2020] NZCA 31 (28 February 2020)

[1] Mr Nottingham applied unsuccessfully in the High Court to strike out the respondents’ claim on the basis that it is time-barred. This Court dismissed Mr Nottingham’s appeal against that decision. Mr Nottingham was ordered to pay one set of costs for a standard appeal on a band A basis with usual disbursements. He has now applied for a recall of the judgment and a rehearing of the appeal on various issues.

[3] Mr Nottingham identifies five grounds for his application. They can be broadly summarised as follows:

(a) the costs awarded are punitive and unfair in the circumstances;

(b) in considering costs the Court failed to take into account allegations of perjury by the respondents and the merits of Mr Nottingham’s substantive argument;

(c) there were errors of law by the Court and bias by one of the panel;

(d) there is a history of this Court making decisions adverse to Mr Nottingham; and

(e) Mr Nottingham’s rights under the New Zealand Bill of Rights Act 1990, the International Covenant on Civil and Political Rights and the Declaration of the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms have not been observed.

[5] It is evident from Mr Nottingham’s memorandum that he wishes to reargue a number of matters that were argued at the hearing of the appeal and, moreover, seeks to have this Court take further steps to investigate factual matters in issue between the parties. None of the matters Mr Nottingham raises are within the category of cases appropriate for recall. Mr Nottingham’s proper course is to pursue the application for leave to appeal to the Supreme Court that he filed prior to making the present application.

[6] The respondents have sought costs on a band A basis in respect of this application. Mr Nottingham did not address the issue of costs in his memorandum. We grant costs on the basis sought.

So the application for a recall of a costs award has been dismissed, and further costs awarded against Nottingham.

Nottingham was adjudged bankrupt in 2018 largely due to hundreds of thousands of dollars of unpaid costs in a number of court proceedings (five failed private prosecutions, one against myself).

I think it’s fair to ask whether Nottingham is deliberately inflicting costs through repeated hopeless litigation in which he has no intention nor ability to pay costs.  This makes the risk of costs no deterrent, which puts targets of Nottingham’s prosecutions and appeals at a serious disadvantage. I don’t know if there is anything the courts can do about this, but they could do something about the leniency they have repeatedly given Nottingham over later and prolix filings and repeatedly failing to comply with court rules and timetables.

Nottingham is currently limited from starting new litigation as he is a bankrupt serving home detention and has a ban on Internet access.

But this Maltese Cat proceeding shows that if you only claim a statutory declaration and don’t claim damages there is no time bar. This leaves possible legal recourse to anyone who thinks they have been defamed by posts on Lauda Finem (including myself) to seek a declaration to try to get defamatory posts taken down.

Time bar doesn’t apply in defamation case with no damages sought (Nottingham loses another appeal)

The Court of Appeal has confirmed that there is no time bar on filing defamation proceedings if damages are not sought in yet another failed appeal by Dermot Nottingham.

This time it is in a case against brought against him by Maltese Cat Limited and two individuals who are seeking a declaration that articles posted on the Lauda Finem website are defamatory – a legal declaration is necessary to get overseas hosts of websites to take down defamatory material.

This judgment suggests that anyone seeking a declaration from the Court to get material taken down could be able to do so as long as the material remains available online, long after it was first published.

But it does not answer another issue on defamation law – whether or not an online publication is regarded as re-published whenever it is accessed (and not just when first published).

It seems ludicrous to me that individuals need to go to these lengths in the courts. Nottingham has already been found to be largely responsible for posts at Lauda Finem when found guilty of multiple counts of suppression breaches and criminal harassment, yet a lot of material remains accessible.

From sentencing notes:

[22] Now, I make some findings of fact. Consistent with the verdicts of the jury I have concluded that between 2010 and 2015 Dermot Nottingham published or had published numerous articles on the blog site laudafinem.com. Either Dermot Nottingham is Lauda Finem (in other words, the leading mind of that blog) or he is so intimately related to it that it is proper to conclude that he provided information and draft articles to that blog site knowing and intending that they would be published.

[23] During that five year period the defendant undertook numerous campaigns of harassment against a number of individuals, the most egregious and persistent of which were represented by the five complainants in the trial. I concluded that his conduct by publishing said articles, through other intimidating and harassing conduct – including threatening, watching, photographing, following – was either carried out directly by Dermot Nottingham or at his direction and that he knew his conduct was likely to cause the individuals to fear for their safety or the safety of family members.

Despite that finding, and Nottingham losing  subsequent appeal against sentence and conviction in the Court of Appeal (DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]) and another appeal to the Supreme Court (DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]), extensive content is still publicly available online.

The latest judgment NOTTINGHAM v MALTESE CAT LIMITED [2019] NZCA 641 [12 December 2019]:

[1] The issue in this appeal is whether a defamation claim seeking declaratory relief and costs is a money claim for the purposes of s 11 of the Limitation Act 2010.

[2] The respondents brought the proceedings alleging that defamatory statements had been published about them on the website http://www.laudafinem.com. The host of the website, Godaddy.com LLC, has advised that it is contractually entitled to take down defamatory, obscene or lewd material and will abide any order of this Court declaring publications on the laudafinem.com website to fall into those categories.

[3] Mr Nottingham brought a number of interlocutory applications, including an application to strike out the proceeding on the ground that it was time barred…

[4] Fogarty J found that the proceedings were not time barred. Mr Nottingham appeals.

[9] The Judge considered that the limitation issue could be disposed of on the basis that the defence provided under s 11 on which Mr Nottingham relied was not available, because s 11 applies only to “money claim[s]” and the respondents were seeking only declaratory relief, which is not a money claim.

[11] On appeal, Mr Nottingham modified his argument in relation to s 11. He submitted that, because the statement of claim seeks costs (and indeed indemnity costs would likely be payable by virtue of s 24(2) of the Defamation Act 1992), as well as declaratory relief, the proceedings do constitute a “money claim” for the purposes of s 11 of the Limitation Act.

[13] We consider that the Judge was right in his conclusion that the proceeding is not a money claim and that the fact costs are sought makes no difference.

[15] A claim for declaratory relief is clearly not a money claim for the purposes of s 11 and Mr Nottingham did not seek to argue otherwise. Nor is it tenable to argue that a claim for costs could, in itself, constitute a money claim. A claim for costs under the High Court Rules is essentially a claim for a contribution to litigation costs incurred, that being the basis upon which claims are allowed. It is well recognised, however, that proceedings cannot be brought where legal costs are the only relief sought. It is therefore self-evident that a claim for costs cannot transform a claim for declaratory relief, which is not a money claim, into a money claim. We agree with Mr Connor’s point, for the respondents, that treating costs as a form of relief would have the potential to turn virtually every claim into a money claim for the purposes of the Limitation Act.

So this confirms that declaratory relief without damages being sought is not time barred, and costs are not considered a damages ‘money claim’.

[16] Our conclusion that the proceeding in this matter is not a money claim means that whether the publication is to be treated as having occurred on the first day of publication or subsequently, under the multiple publication rule, cannot affect the respondents’ position. It is therefore unnecessary to consider the merits and application of that rule.

So that question appears to remain legally unresolved.

[17] Nor is it necessary to consider the other aspects of Mr Nottingham’s extensive written submissions, which rest on factual matters not before the Court.

Nottingham has a record of making extensive written submissions that are not relevant or admissible. This my be in part legal incompetence, but I suspect that it has also been used as a way of inflicting legal hardship and costs – lawyers have to read all his crap, often hundreds of pages and in some cases over a thousand pages in a single submission (that has happened in a failed case against myself and others).

[18] The appeal is dismissed.

[19] The appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

This is also a bit farcical – in September 2018 Nottingham was adjudicated bankrupt due to not paying hundreds of thousands of dollars in costs accrued in various cases – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018]

One benefit of him being bankrupt is it now limits what new court actions he can take, as the official assignee has a say in anything he does that could incur costs.

But I don’t know why the Police or Courts can’t do something about the extensive amount of material still published online (disclosure – some of this material attacks and defames myself).

NBR found to have defamed Steven Joyce

A column written by Matthew Hooton and published in NBR in March 2018 has been found to have been defamatory. Hooton himself apologised for assertions he made and contributed to costs, but the publication itself claimed otherwise, held out and ended up in court and now on the losing end of a judgment.

Joyce did not seek financial damages, instead seeking a declaration NBR at it’s publisher Todd Scott had defamed him and also costs, which could be substantial, defamation cases can be legally very costly.

Newsroom: Joyce defamed, NBR and publisher must pay

A High Court judge took just one week to decide the business website NBR and its publisher had separately defamed former finance minister Steven Joyce – and to order them to pay the ex MP’s legal costs.

The case is unusual in two respects. First, NBR held out against Joyce despite the author of the column that defamed him, Matthew Hooton, having apologised, retracted his statements and paid Joyce $5000 in costs 18 months ago.

And second, its publisher was found to have defamed Joyce by tweeting comments related to the column and Hooton, one of the first defamations by Twitter by a public figure.

The column, published in March 2018, included claims that Joyce had won just four votes other than his own in the National Party leadership contest, that he had used his proxy Communications Minister Amy Adams to try to help his “friends at Chorus”, and that he could “blackmail” the new leader Simon Bridges.

Scott later tweeted that “sources are solid” and Hooton had retracted his column for reasons other than it having been incorrect.

During the preliminary phases of the case, the parties went to judicial mediation under the Defamation Act. They heard from Justice Pheroze Jagose that the passages of the Hooton column could carry defamatory meanings – it could be taken by an ordinary reader to have accused Joyce of unethical and improper behaviour in pursuit of his own political ends.

He recommended NBR consider conceding and publishing a correction. It declined to do so.

Now, after a two-day hearing in the High Court at Auckland, Justice Jagose has found both NBR and Scott did defame Joyce.

JOYCE v HOOTON [2019] NZHC 3356 [17 DECEMBER 2019]

[1] The plaintiff (“Mr Joyce”) seeks declaratory and indemnity costs relief under s 24 of the Defamation Act 1992 (the “Act”) against the second defendant (“Fourth Estate”), which publishes The National Business Review (“NBR”) in print and website formats. Relief pleaded for my recommendation of a s 26 correction was not pursued.

[2] Mr Joyce alleges two specific passages in a NBR article titled “Joyce sacking first test of Bridges’ leadership” (and, in its print format, subtitled “National MPs have finally been allowed to express what they really think of the party’s unelected strategist”), published on 2 March 2018, are defamatory of him.

[37] I emphasise my meanings are the passages both imputed Mr Joyce’s preparedness to engage in poor conduct “in pursuit of his (rather than his party’s) political objectives”. They are not imputations of his poor conduct more generally. The limitation springs from the subject matter of Mr Hooton’s column. Their distinction from Mr Joyce’s pursuit of what may be his party’s political objectives also is important; even untrue allegations of sharp party-political conduct may not be defamatory.18 Although that is to find meanings divergent from those Mr Joyce pleads, their circumscription is less injurious than claimed by him, and I thus am free to find those lesser meanings established.19 Nonetheless, they are meanings of sufficient seriousness, of Mr Joyce’s significant and self-serving impropriety, to climb above defamation law’s disregard of trivialities.[41] Mr Joyce pleads against Mr Scott his three tweets “were intended, and would be reasonably understood to mean” the two passages were:

true, or not materially different from the truth;

retracted by [Mr Hooton] for reasons other than that they were untrue; responsibly and properly published by [Fourth Estate].

Mr Joyce pleads the tweets “accordingly amounted to a republication of the [passages’] defamatory imputations”.

[42] The pleading is of an innuendo: the tweets were “used in a defamatory sense other than [their] natural and ordinary meaning”.

[52] I do not see Mr Scott’s joinder as disproportionate at all. As I have explained, Mr Joyce is seeking vindication not only from the article’s defamatory comments, but also from Mr Scott’s (first and third) tweets’ endorsement of their truth. Mr Joyce seeks declarations both Fourth Estate and Mr Scott are liable to him in defamation. The coincidence in time – of Mr Scott’s first tweet with the NBR’s replacement of the article on its website, with Mr Hooton’s apology – identifies the separate defamatory nature of Mr Scott’s endorsement. There can be no suggestion Fourth Estate is vicariously liable for Mr Scott’s tweets, or the resource committed by Mr Scott’s joinder otherwise is disproportionate to Mr Joyce’s interests in being vindicated also from their innuendo.

[60] I declare Fourth Estate and Mr Scott separately each are liable to Mr Joyce in defamation. I award Mr Joyce solicitor and client costs against separately each Fourth Estate and Mr Scott.

Newsroom:

Joyce told Newsroom Tuesday night he was pleased to be vindicated. “It was important to me to set the record straight. It was about restoring my reputation and being made whole again in terms of meeting my costs.”

He had not sued for financial damages, just the judge’s declaration that NBR and Scott had defamed him and the costs order.

He said: “I tried to operate with integrity in my political career and in a place where I tried my absolute best. It meant a lot to me to be able to restore that after what was a pretty vicious article.”

Asked if he now expected an apology from the NBR or Scott, Joyce said he had not sought that in the High Court hearing. “If they had apologised at any point earlier in the process and paid the costs, we would not have needed to be here now.”

While Hooton’s apology had been welcome, “it was really important that the publisher makes the restitution in terms of the apology”.

Scott’s tweets had undermined Hooton’s apology. “The court has decided that’s not okay …. It was clear and obvious, and the judge has taken it to be clear, that they were effectively a re-statement, that the original story was accurate.”

Joyce said his costs had been significant as they covered the initial complaint, the mediation, an earlier aborted trial and the trial last week.

With Hooton having conceded his column was defamatory and apologising it must have always been a difficult case for NBR to defend.

Brian Henry threatens Nick Smith and Guyon Espiner damages claim “as high as $30,000,000.00”

Lawyer Brian Henry, closely associated with Winston Peters and NZ First, has threat to sue National MP Nick Smith and RNZ’s Guyon Espiner for defamation “for general damages together with special damages which from the information to hand could be as high as $30,000,000.00”.

This looks remarkably heavy handed – Smith claimed intimidating – and potentially a chilling effect on our democracy and journalism. One thing it does is ensure is that Henry becomes even more in the spotlight.

Meanwhile stuff continues to risk threats of legal action: ‘I am the dark shadow of NZ First’ – what party candidates claim Winston Peters’ lawyer said

Brian Henry’s role in the unfolding NZ First donations scandal is now under close scrutiny. In addition to being Peters’ right-hand man, lawyer and NZ First’s judicial officer, he is also a trustee of the New Zealand First Foundation. The foundation appears to have been taking political donations, while operating as a political slush fund for the NZ First political party.

Henry also runs QComms, a company which Stuff understands runs the party’s Nation Builder website – a campaigning and membership tool.

Some party members call Henry “Peters’ attack dog”. People turn skittish when the name is mentioned in interviews. Numerous people connected to NZ First who spoke to Stuff feared lawsuits and retribution for doing so.

Numerous sources have confirmed to Stuff that, during a candidates briefing in at a hall in Takanini near Manukau in the lead up to the 2017 election, Henry gave NZ First candidates a lesson in how the party really works.

“I am the dark shadow in this party that you don’t want to receive a phone call from,” attendees told Stuff he said. “My job is to make sure Winston Peters gets the position he deserves and none of you are going to get in the way of that,” Henry said, according to sources present at the meeting.

Henry’s comments have surfaced as a raft of former NZ First officials have come forward to Stuff – both on the record and on the condition of anonymity – complaining that they were kept in the dark about party finances, the existence of the New Zealand First Foundation. Anyone who challenged Peters, Henry or Doug Woolerton, a former MP, party president and the other trustee of the NZ First Foundation, was forced out, sources have told Stuff.

“We started off in the party and believed in its ideals and policies,” the person said.

“But the longer you are there, the more you notice these backroom deals and as soon as you start to get close, or start challenging Winston on it, you get moved aside pretty quickly.

The influence of Henry within the party is enormous and across all aspects of its operations, numerous sources told Stuff.

“Winston Peters calls Henry to back people down,” one former MP said. “He’s an attack dog. People are afraid of being tied up in litigation.”

This doesn’t surprise me and probably won’t surprise journalists. Peters threatened me with defamation action many years ago (through a lawyer I think, I can’t remember who that was).

Peters has claimed that the party is operated democratically, but it isn’t referred to as Winston First for nothing.

RNZ: NZ First Foundation trustee threatens lawsuit against National leader and MP

National has been pursuing New Zealand First and the prime minister over allegations about the handling of party donations.

Yesterday, National’s Nick Smith made a comment in Parliament about the donations.

This afternoon he tabled an email that he and National Party leader Simon Bridges received today from Mr Henry.

It said media reports had been “false and malicious”, adding that the loan activities to the party were lawful.

In the email, Mr Henry invited Dr Smith and Mr Bridges to “repeat what you said in the House in public or apologise”.

“Please note if you oblige with this request I will sue you for defamation for general damages together with special damages,” the email reads.

Speaking to reporters outside the House, Dr Smith said he needed to be very “constrained and careful” about his choice of words, given the legal threat, but he described the email as “extremely worrying”.

He said it was very concerning that an MP “going about their duties of holding the government to account” should be threatened in this way.

“I feel very strongly about the importance of New Zealand having a high level of transparency, I take great pride that when National left government New Zealand had the top ranking in the world as the least corrupt country and want to make sure that’s protected,” Dr Smith said.

“It makes you very nervous of that work when effectively the financial wellbeing of your family is being threatened.”

Letter from Brian Henry sent to National MP Nick Smith and leader Simon Bridges.

Mr Henry said in his email there was one loan from the foundation of $73,000, which was repaid in full over two years.

However, in a statement the Electoral Commission told RNZ that according to NZ First’s returns, there was one loan of $73,000 entered into in Dec 2017, another separate loan of $76,622 was disclosed in May 2018. The Commission said it understood that loan was to replace the first loan. Then there was a further loan of $44,923 disclosed in April 2019.

Going by the continuation of media reports after the defamation threat Henry’s threat does not appear to have buried the story.

Media are repeating what Smith said in Parliament – ‘this is a rort with a capital R’ – as they are protected from legal action when reporting what is said under parliamentary privilege.

Newsroom: Stonewalling on donations saga but many questions remain

NZ Herald: NZ First Leader Winston Peters’ lawyer Brian Henry threatens to sue a National MP for $30m

New Zealand First has upped the ante in the saga over its mysterious foundation, with party leader Winston Peters’ long-time lawyer Brian Henry threatening to sue National for $30 million.

In the House, senior National MP Nick Smith tabled a letter in which Henry issued a clear ultimatum to the veteran MP.

“Repeat what you said in the House in public or apologise.”

A spokesperson for National said the party would not be commenting on the letter or the threat.

But speaking to Newstalk ZB, Smith said he stood by the comments he made in the House.

He would not, however, repeat the comments he made in the House under privilege for “obvious reasons”.

This threat from Henry just escalated the NZ First donations and PGF application issues to a higher level.

Sellman (and others) versus Slater (and others) – Slater and his lawyer want out

Another defamation proceeding involving Cameron Slater that is encountering persistent delays – this case starting in mid-2016, and three years later still looks a long way off going to trial.

(The Matt Blomfield versus Slater and Social Media Consultants defamation started after a series of posts on the Whale Oil website in 2012, and while Slater was last year found by a court to have no defence damages won’t be dealt with until next year. Colin Craig versus Slater began in mid-2015 and is still going).

Newsroom: Lawyer: Let me off Whaleoil case

In October last year and again in March, Justice Palmer decided Slater and Graham had provided insufficient answers to questions from the medical academics’ lawyers and needed to do so, both in writing and by turning up to court personally for face to face interviews.

Slater has not done so. On his behalf, Henry has argued Slater had two medical opinions saying he was too ill to continue with the case. Then he argued the personal bankruptcy meant the defamation action should be halted and any action that survived ought to be against the Official Assignee as legal custodian of Slater’s property and finances.

In March, Justice Palmer used his discretion to order the case would go on, despite the bankruptcy. The plaintiffs then sought orders forcing Slater to comply and making him respond in writing to their application.

In April Justice Palmer decided there was no “medical evidence on the basis of which I could be satisfied Mr Slater was then incapacitated so that I could appoint a litigation guardian for him.”

The judge regarded Henry’s arguments about the different legal personalities of a bankrupt and the bankrupt’s estate as “a nice academic issue” but decided “I would expect a bankrupt continues to be personally responsible for the discharge of duties in legal proceedings which are purely personal in nature and unrelated to any property interest of the bankrupt” and “no further argument is required.”

Now, in his eighth judgment on these matters, delivered on Tuesday, he says Slater is either actually too ill to continue – in which case either a “litigation guardian” should be appointed or a proper court hearing on his illness and examination of his medical evidence needs to be held – or Slater simply does not want to want to do so. “In which case, he must face the consequences of the plaintiff’s current application.”

The judgment yesterday details the latest court saga:

[1] In this proceeding, three medical professionals sue Mr Cameron Slater, and other defendants, for defamation…

The proceeding

[5] This proceeding was commenced three years ago, in mid-2016. The plaintiffs are three medical professionals, Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook. They sue Mr Slater who they allege defamed them in a series of blog posts on his Whale Oil website. They also sue Mr Carrick Graham and his company Facilitate Communications Ltd (FCL) for defaming them in comments on the posts. And they sue Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for allegedly procuring Mr Slater, Mr Graham and FCL to publish the substance and sting of the alleged defamation.

Slater’s lawyer Brian Henry is now claiming that due to a stroke suffered in late October 2018 Slater is unable to give him instructions, but had given him instructions on some matters that suited Slater. And Henry wanted the court to excuse him from representing Slater, but he has continued to represent him on a personal basis anyway.

It’s a messy situation for Henry, made worse by Slater filing for bankruptcy in February.

Slater and his family are claiming that he should no longer participate in the proceedingsfor health and stress reasons.

The state of play up until this judgment:

[1}…In an interlocutory judgment of 23 November 2018, I ordered Mr Slater to provide further particular discovery and to attend court to be orally examined. Since then, Mr Henry, for Mr Slater, has: applied for a temporary stay on the basis Mr Slater’s medical condition prevented him giving  instructions; foreshadowed an intention to apply for appointment of a litigation guardian; advised of Mr Slater’s bankruptcy; and advised that he has instructions to oppose new applications but that Mr Slater no longer defends the substantive proceeding.

[2] The plaintiffs have applied for orders that Mr Slater comply with the court orders for discovery and oral examination or be held in contempt of court. Mr Henry now submits, on Mr Slater’s instructions, that Mr Slater is no longer a party to the proceeding or able to engage a solicitor, because he is bankrupt, and he seeks a formal hearing on that issue. Mr Henry also says there are medical reports from February 2019 confirming Mr Slater is unable to give evidence in court.

[3] On 20 March 2019, I ordered this proceeding to continue against Mr Slater despite his bankruptcy, under a wide discretion in s 76(2) of the Insolvency Act 2006 (the Act).

The full judgment may be of interest to legal geeks (I’m not a legal person but have acquired a habit of reading through legal judgments), but here I’ll skip to the middle:

[16] In Minute No 15 of 2 April 2019, I did not consider there was any medical evidence on the basis of which I could be satisfied Mr Slater was then incapacitated so that I could appoint a litigation guardian for him. I noted Mr Slater appeared to intend not to comply with the discovery and oral examination orders, made in the 23 November 2018 judgment, and that he had sought to avoid complying with them from 14 December 2018 by successively applying for a stay on medical grounds, indicating he would apply for appointment of a litigation guardian, withdrawing instructions from counsel, indicating he would take no steps and applying for bankruptcy.

So the judge is nu buying Slater’s claims without evidence.

And to the end.

[28] Section 76(2) of the Act provides that “on the application by any creditor or other person interested in the bankruptcy, the court may allow proceedings that had already begun before the date of adjudication to continue on the terms and conditions that the court thinks appropriate”. That is, if anything, wider than the court’s discretion in the predecessor section which was characterised by the High Court as wide.

[29] Under the discretion, on 20 March 2019, I ordered this proceeding to continue against Mr Slater. I consider it is an implicit term of that order that Mr Slater must comply with orders made against him in the proceeding, which was one of the reasons why the plaintiffs sought its continuation against him. If that was not sufficiently implicit, I now make it explicit under that discretion and/or under the inherent jurisdiction of the High Court to supervise proceedings before it. That means Mr Slater must comply with the court orders irrespective of Mr Henry’s argument about the effect of his bankruptcy. Given that, I do not consider the court and the parties need to incur yet further delays from, and the expense of, argument about that issue. Further argument is not required.

[30] Mr Slater must comply with the orders personally if the Official Assignee cannot do so through the exercise of the Assignee’s powers. The order to be examined orally must be complied with by Mr Slater personally, subject to what I say below about his medical condition. If the Official Assignee has possession of, and control over, Mr Slater’s documents sufficient to discharge Mr Slater’s obligations under the discovery order then I request the Official Assignee to arrange compliance with that order. Otherwise, Mr Slater will need to comply with that obligation personally too.

Mr Slater’s medical condition

[33] In terms of Mr Slater’s medical condition, I identify three possibilities:

(a) either Mr Slater is incapacitated and not able to give instructions, in which case a litigation guardian must be appointed for him under r 4.30 of the High Court Rules 2016; or

(b) Mr Slater is able to give instructions but is not medically able to provide discovery and/or be orally examined, in which case medical evidence of that must be provided and tested if required in response to the plaintiffs’ current application to compel compliance or sanction for contempt; or

(c) Mr Slater is able to give instructions, is able to provide discovery and be orally examined but does not want to do so, in which case he must face the consequences of the plaintiffs’ current application.

[34] I assume that possibility (a) is not the case, because Mr Henry has most recently said he has instructions from Mr Slater. If, now or at some future point, Mr Henry were to tell me Mr Slater is incapacitated and not able to give instructions, then I would want to see an affidavit explaining the basis of such a statement and its consistency with the various statements made to me to date and I would consider appointing a litigation guardian under r 4.35 of the Rules.

[35] If possibility (b) or (c) is the case, Mr Slater will need to file a notice of opposition to the plaintiffs’ application to compel compliance or sanction for contempt, with any supporting affidavits, by 1 pm Monday 22 July 2019, if he wishes to oppose the application.

Doubts have been raised here about claims of how debilitating the stoke was. Slater was commenting on Whale Oil soon after his stroke. And this was posted on Whale Oil in April:

Having just spent a bit of time with the boss I can tell you a couple of things.

He’ll be back if he chooses to be.

The mans grit and fortitude are unbelievable.
We had a reasonably active weekend and he stayed the course and even after he’d already told me he was knackered he then walked another kilometer.

Then the bloke that had lost all use of his right arm a few short months ago and has only regained a portion of its use and is in constant pain, picks up his shotgun, takes 3 practice swings and then proceeds to blow 9 out of 10 clay pigeons out of the air using the 2nd barrel only once.
If I hadn’t seen it (and scored it) I wouldn’t have believed it.

Bloody amazing man.

See Slater active recovering from stroke. Not such an amazing man when it comes to court matters – unless that grit and fortitude is applied to avoidance.

But it looks like the current avoidance hasn’t been successful.

 [32] …I will be hearing the plaintiffs’ application to compel compliance or sanction for contempt at 10 am on Friday 26 July 2019.

So the case will proceed, with Slater required to front up or risks being found in contempt of court for not complying with legal requirements. That can be a serious matter.

A large bit of deceit at Whale Oil

Whale Oil continues to deceive their readers, most of whom are likely to know at least some of the truth despite repeated posts that defy reality. I think that SB (Juana Atkins) is unlikely to be totally ignorant of what numerous court judgments and media reports have revealed over the years, but SB continues to make claims that are at odds with what Cameron Slater and Whale Oil have done – and some of which she has been a party to.

Posted yesterday:  A Little Bit of Justice

As I write this post I am acutely aware of my bias.

She begins with a frank admission, but it all goes downhill from there.

My view of New Zealand’s justice system is totally skewed by the fact that people with deep pockets were able to drag my better half through the court system for more than 7 long years until he had a debilitating stroke from the stress at only 49 years old and was forced to declare himself bankrupt.

I think it’s fair to say that Slater brought a lot of stress upon himself. he had his stroke last October, when he had embroiled himself in the Jami Lee Ross saga, was dealing with finally having to front up in court in the seven year Blomfield defamation, had just been slammed by another judge in another ongoing defamation case – see More court costs for Slater and co-defendants in defamation entree, abandons appeal in another case – and had just got bad news in his defamation tit for tat versus Colin Craig – see Craig v Slater – the biggest losers.

When SB first fronted up about the stroke at Whale Oil in February she blamed reporters for causing stress:

Prior to this event Cam was perfectly fit and healthy with no predisposing stroke risk factors. Doctors have concluded that the cause of the stroke was entirely due to stress.

That doctor claim has been debunked in court. The claim of no predisposing stroke risk factors also looks questionable if not downright nonsense.

“7 long years” has to be referring to the defamation case against Slater, doggedly pursued by Matt Blomfield after Slater had run an attack campaign of over a hundred posts on Whale Oil based on the contents of a hard drive that Slater had obtained that contained a large amount of private, personal and business information – Judge Asher found the hard drive and other documents provided to Slater “appear to have been obtained illegitimately”.

Being right didn’t matter at the end of the day as it came down to who could last the longest.

‘Being right’ is a ludicrous claim. Slater was eventually found to have been wrong about many things, with a court finding in the end that he had no defence to false and defamatory  claims.

And it was Slater who dragged the proceedings out for so long, trying to avoid being held to account with many delays and failed appeals. Some of the delays and the copious amount of inadmissible ‘evidence’ can be put down to legal incompetence. He was helped by Dermot Nottingham, who has a very poor record in numerous legal proceedings. But some appears to have been deliberate tactics to wear down legal opponents and to inflict as much financial hardship as possible.  That eventually backfired, with both Slater and Nottingham now bankrupt over hundreds of thousands of dollars of legal costs.

NZ Herald:  Whaleoil blogger Cameron Slater loses defamation case and gets told: ‘Your day will come’

Whaleoil blogger Cameron Slater has lost one of the country’s longest running defamation cases after failing to put up any credible defence.

The judgment made public today saw Justice Paul Davison find in Blomfield’s favour, ruling out a defence from Slater after long delays and failures to meet legal requirements to defend a claim of defamation.

The new judgment came after a defamation hearing as due to start on October 8 was adjourned when Slater and lawyers arrived at court without a proper defence.

In total, Slater had entered or attempted to enter five statements of defence over the course of the case which all failed to meet the legal requirements for attempted defences of truth and of honest opinion.

Davison said Slater had been “afforded considerable leniency” to meet deadlines and get a proper defence before the court.

There had been “indulgence” to allow Slater to change his defence with one High Court judge even providing the blogger guidance as to how to prepare for the defamation hearing.

Davison said Slater’s attempts to change his defence and to introduce new pleadings was rightly seen as “a last-minute attempt to prevent the (Blomfield’s) claim from being heard and determined by the court”.

He said it was possible to see delay as Slater’s objective when seeking court hearings on issues such as a security for costs.

Davison said the statement of defence Slater had arrived with when the trial was due to start failed to identify the facts which would have been used to prove his blog posts were true.

Instead, large piles of evidence had been pointed to which, in a number of cases, relied on “a third party’s allegations about the plaintiff”.

And instead of providing a defence of honest opinion, Slater’s court filings instead repeated his inadequate defence of truth.

Davison said it wasn’t necessary to rule on the merits of the case because of the legal, technical flaws in Slater’s attempted defence.

“However, in my view the documents relied on by the defendants do not provide cogent support for the propositions and conclusions they seek to draw from them in relation to the defences of truth and honest opinion, or the bad reputation of the plaintiff.”

So the judge found that Slater had no defence for making false and defamatory claims. SB must be aware of this, but still claims that Slater was right and is somehow the victim in this.

Slater appealed, but that appeal has since been dropped. Damages are yet to be awarded, that won’t happen until next year.

Costs on pre-trial proceedings have been awarded against Slater a number of times over the years (that happens when you’re wrong, not right). The last of these were awarded recently  – BLOMFIELD v SLATER COSTS JUDGMENT [2019] NZHC 1203 [29 May 2019]

By memorandum dated 23 November 2018, Mr Blomfield (the plaintiff), seeks an award of costs against Mr Slater and Social Media Consultants Limited (collectively “the defendants”), in relation to several interlocutory matters.

SB (Atkins) was a director of Social Media Consultants Limited (now in liquidation) so must be aware of all of this.

The defendants were planning on relying on a large body of evidence covering many different issues, and I determined that almost all of it was inadmissible.

The plaintiff is entitled to costs and disbursements of $59,000.29 as set out in the annexed schedule.

The Human Rights tribunal also found that Slater and Whale Oil were wrong – Human Rights Tribunal slams Cameron Slater:

This blog can only be described as a calculated attack on Mr Blomfield and an extended assassination of his character.”

Even if Mr Slater was not party to any illegality, it seems likely the information was obtained illegally by Mr Slater’s sources.

[175.1] A declaration is made under s 85(1)(a) of the Privacy Act 1993 that Mr Slater interfered with the privacy of Mr Blomfield by disclosing personal information about Mr Blomfield contrary to IPP 11.

[175.2] An order is made under s 85(1)(b) of the Privacy Act 1993 restraining Mr Slater from continuing or repeating the interferences with Mr Blomfield’s privacy, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the interferences, or conduct of any similar kind.

[175.3] An order is made under s 85(1)(d) of the Privacy Act 1993 that Mr Slater erase, destroy, take down and disable any personal information about Mr Matthew John Blomfield as may be held on http://www.whaleoil.co.nz and on http://www.scribd.com. Mr Slater is to likewise erase, destroy, take down or disable any of Mr Blomfield’s personal information published by Mr Slater and which may be found on any other website or database which is within Mr Slater’s direction or control.

[175.4] Damages of $70,000 are awarded against Mr Slater under ss 85(1)(c) and 88(1)(c) of the Privacy Act 1993 for the humiliation, loss of dignity and injury to feelings experienced by Mr Blomfield.

The full judgment [2019] NZHRRT 13 is here.


SB continued yesterday:

Oh, how I hate the old “public interest” line. The New Zealand media and Nicky Hager justified what they did to us as being in the public interest. The information they had obtained was stolen and included private and personal communications but even though it revealed zero wrongdoing (no one had broken any law) they decided it was in the “Public interest” to publish what had been written between friends with an expectation of privacy.

‘Zero wrongdoing’ is a joke.

I have always expressed concerns about hacking for political purposes, but there is no evidence that Slater was actually hacked (although it seems likely). There have been suggestions a whistle blower inside the Whale Oil camp may have at least aided the revelations.

There was certainly public interest in revealing that staff (Jason Ede at least) in the Prime Minister’s office colluded with Slater and used Whale Oil as a medium with which to run political attacks – some of the dirtiest of politics (Slater used to brag about how dirty he played).

There was also public interest in revealing that Whale Oil was being paid to run attacks on businesses, academics and people.

Perhaps SB just hates being found out.

She is also being very hypocritical about personal information and privacy, given:

  • Slater and Jason Ede using private information obtained from a Labour Party website by dubious means.
  • Slater’s attempt to hack The Standard (he had to admit he broke the law to get diversion).
  • Slater’s use of Blomfield’s private information.
  • The attempt to overturn the Auckland Mayoral election, and the trashing of Len Brown, using private and personal information.
  • The trashing of Colin Craig’s political career using private information in a breach of confidence.

There must be few people now who are still deceived by claims of innocence at Whale Oil, and there will be little sympathy for their repeated claims to be victims.

They are running the risk of ongoing self inflicted stress. They could deal with this if they front up with some honesty, as well as admissions and acceptance of the harm they have dumped on many people, but there is no sign of that happening.

High Court awards more costs against Slater, SMCL

Legal costs continue to mount for Cameron Slater and the company that ran Whale Oil, Social Media Consultants Limited. Slater has already filed for bankruptcy, and the company is in liquidation.

The latest costs of $59,000 are for pre-trial proceedings and do not include preparing for and conducting the trial held last October, nor damages, neither of which will be determined until next year.

Judgment: BLOMFIELD v SLATER COSTS JUDGMENT [2019] NZHC 1203 [29 May 2019]

[1] By memorandum dated 23 November 2018, Mr Blomfield (the plaintiff), seeks an award of costs against Mr Slater and Social Media Consultants Limited (collectively “the defendants”), in relation to several interlocutory matters.

[4] Following two results judgments on 27 September and 16 October 2018,2 on 26 October 2018, I released a judgment detailing my reasons for ruling in favour of the plaintiff on several interlocutory matters. The interlocutory matters dealt with in those judgments were:

(a) the defendants’ application for security for costs;

(b) the defendants’ application for leave to file a fourth amended statement of defence;

(c) the defendants’ application for leave to file a fifth amended statement of defence;

(d) the defendants’ application for an adjournment of the trial for a day to enable counsel to prepare the fifth amended statement of defence; and

(e) the plaintiff’s application challenging the admissibility of evidence proposed to be adduced by the defendants.

It was Slater’s fourth failed application for security of costs.

Blomfield’s lawyer Felix Geiringer has pointed out that the it was actually Slater’s ninth statement of defence document in the lengthy (over 6 years) lead up to the trial. From the book Whale Oil:

Not withstanding (Judge) Laang’s orders for timetabling – all pleadings by 13 July; all briefs of evidence by 13 August – throughout September Slater embarks on a massive exercise, filing enormous quantities of paperwork, including a new statement of defence, with dozens of amendments and additions, making it substantially different to the document around which Matt and Geiringer have been preparing for trial. It even includes a new defence of public interest; that Slater was doing important civic duty in exposing Matt’s activities.

The material flooding in is overwhelmingly dense, and it’s now two months after the date that wss to have been Slater’s last chance to file his defence.

From the judgment:

[21] The trial was originally due to start on 8 October 2018, and the defendants’ evidence was originally to be filed by 13 August 2018. Two briefs were filed on 21 September 2018, following an unless order made by Wylie J in a Minute issued on 13 September 2018. A notice under r 9.7(6) of the High Court Rules 2016 was also filed by the defendants to the effect that they intended to call 27 witnesses who had not provided briefs of evidence. That notice did not contain the necessary information required by r 9.7(6). The defendants also did not finalise their list of documents to be included in the common bundle until 6 October 2018, two days before the trial was due to commence.

[22] The plaintiff’s counsel says that he urgently assembled a team of five lawyers, who worked extensive hours in an effort to try and preserve the trial fixture. In addition to responding to the defendants’ interlocutory applications, they assembled an electronic casebook ready for a delayed start of the trial scheduled for 23 October
2018. They also prepared reply evidence, submissions and cross examination materials.

[25] For those reasons, I have decided to allow the plaintiff to recover the full amount of costs it seeks on a mixed 3A/3B/3C basis, except for the amount claimed for wasted preparation for trial.

[26] Having considered the disbursements the plaintiff also seeks, I have decided to allow the full amount of $10,160.29.

Result

[27] The plaintiff is entitled to costs and disbursements of $59,000.29 as set out in the annexed schedule.

That adds to the already substantial debts in Slater’s bankruptcy and Social media Consultant’s liquidation.

The only significant assets disclosed so far are the value of the Whale Oil website (whatever that may be), and several hundred thousand dollars of costs awarded to Slater and Social media Consultants – see Slater awarded costs v Craig, but well short of actual costs (with Slater’s legal bills in that proceeding far in excess of costs awarded).

This will take some time to work through, as the damages award is still pending, as is another defamation case Slater (and others) still face versus Sellman, Swinburn and Bradbrook – latest public judgment: SELLMAN v SLATER NO 7 [2019] NZHC 467 [18 March 2019]

Blomfield may benefit from Craig costs v Slater

Here’s a possible twist to Cameron Slater’s defamation cases – he has been awarded substantial costs in the Craig v Slater defamation case, but as I understand it those will be paid to the administrators of Slater’s bankruptcy and company liquidation. And part of available funds from them could end up being paid to Matt Blomfield, who is likely to be a major creditor for both.

While Blomfield has won substantial costs in various court proceedings, Slater appeared to negate all of that by declaring himself bankrupt in February.

This week the a High Court judge awarded costs to Slater in the defamation and counter defamation trial versus Colin Craig – see Slater awarded costs v Craig, but well short of actual costs.

These costs amount to several hundred thousand dollars. It’s a good bet that Craig will appeal the costs, but there are very limited options with that, costs are at the discretion of the trial judge and are difficult to overturn unless an error of law is made.

So where do these costs go? I believe not, as I had initially presumed, directly to Slater’s lawyers. Slater has been billed (indemnity costs according to the judgment) $564,730. That is substantially more than the costs awarded, but presuming that Slater has paid not paid all of his legal bills, that is a debt incurred by his lawyers.

Costs are not paid to the lawyers, they are paid to, in this case, the first defendant Slater, and the second defendant Social Media Consultants Limited (Slater’s company).

But with Slater being bankrupt any costs will go to the Official Assignee, and with Social Media Consultants being in liquidation costs related to the company will be under control of the liquidator.

Slater’s lawyers will have to line up with all other creditors to seek their share of what is available to be paid out. Blomfield is already a creditor as well.

But there could be another substantial debt to be added, incurred before bankruptcy and liquidation, but yet to be quantified.

An award of damages in the Blomfield versus Slater defamation is yet to be made. Despite the case already taking nearly seven years, I understand that the hearing on an award of damages won’t take place until next year, and it could take some time after that for the judge to make a decision.

The judgment on defamation between Craig and Slater was made on 19 October 2018, but the judgment on costs has just been made (6 June 2019).

The award of damages in Blomfield v Slater may not be known until 1-2 years from now. But as they were incurred before the bankruptcy and liquidation, and funds available will be apportioned to Blomfield and any other creditors like Slater’s lawyers. Even if Craig appeals costs that should be decided on by then.

The cost of clearing his name has been expensive. Blomfield’s legal battles with Slater have cost him many hundreds of thousands of dollars. It may turn out that costs awarded to Slater in Craig v Slater may pay some of that back via through costs and damages incurred in Blomfield v Slater & Social Media Consultants.

But this may be even more complicated. Slater is still facing defamation in the action bought against him by Sellman, Swinburn and Bradbrook. If costs (either way) or damages are awarded there it could also affect things.

Note – I’m not a lawyer or debt expert, I’m just trying to get my head around how this all works.