New public interest defence to defamation – Court of Appeal

Lange v Atkinson[1998] has often been quoted and used as a defence in defamation cases over the last twenty years. The Court of Appeal has just released a decision that will replace this legal precedent.

The judgment recognises the existence of a new public interest defence to defamation claims arising from mass publications. The elements of the new defence are that the subject matter of the publication must be:

  • a matter of public interest
  • and that the communication must be responsible.

Unlike the political focus of Lange v Atkinson the new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern.

This should also apply to blogging and other types of online publications.

An element not agreed on by the Court is ‘reportage’ – verification of content before publication.


COURT OF APPEAL OF NEW ZEALAND

DURIE AND ANOR v GARDINER AND ANOR [2018] NZCA 278

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at http://www.courtsofnz.govt.nz.

1. The Court of Appeal today released a judgment recognising the existence of a new public interest defence to defamation claims arising from mass publications. The elements of the new defence are that the subject matter of the publication must be a matter of public interest and that the communication must be responsible.

2. In recognising the new defence, the Court held the form of qualified privilege recognised in Lange v Atkinson [1998] 3 NZLR 424 (CA) and [2000] 3 NZLR 385 (CA) has been replaced. The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern.

3. The Court was unable to agree on a related issue known as “reportage”: whether mass publication of an allegation without verification of its content is protected where the public interest lies in the fact of the allegation having been made, rather than the truth of the allegation.

Background

4. Sir Edward Durie and Ms Donna Hall issued defamation proceedings in response to a story broadcast by Māori TV and published on its website. Sir Edward was at relevant times co-chair of the New Zealand Māori Council. Ms Hall is a high-profile lawyer specialising in Māori legal issues and had been representing the Council before the Waitangi Tribunal.

5. Sir Edward and Ms Hall say the broadcast and website story conveyed various defamatory meanings. They also complain that the website story did not initially include Ms Hall’s response to the allegations.

6. The High Court had declined to strike out the respondents’ public interest defence that relied on legal developments in the United Kingdom and Canada. The Judge held the defence pleaded was available and would not inevitably fail on the facts. On appeal, the appellants conceded some form of public interest defence might now exist in New Zealand. The argument was on the boundaries of such a defence, and whether the respondents could tenably rely on it.

The Judgment

7. Building on English and Canadian case law, the Court of Appeal has concluded it is time to strike a new balance between the right to protection of reputation and the right to freedom of expression by recognising the existence of a new defence wider than that in the Lange v Atkinson decisions. The new defence is not confined to parliamentarians or political issues but extends to all matters of public concern.

8. The new defence requires the subject matter of the publication to be of public interest, and the communication to be responsible. Both are to be determined by the judge, not a jury. It is available to all who publish material in any medium, and is not part of the rubric of qualified privilege. Therefore, the Lange v Atkinson form of qualified privilege has been replaced.

9. In this case, it was common ground the publications were on a matter of public interest. The key issue was whether communication was responsible. The Court held the public interest defence was untenable in relation to the website story for the period of time before Māori TV published Ms Hall’s responses. Other challenges to the responsibility of the communication were held to be properly left for trial.

10. Concerning reportage, the majority held it is not a separate defence but part of the same spectrum. Reportage is a special and relatively rare situation and need not be pleaded separately. Dissenting, Brown J expressed concerns about reportage including its relationship with statutory defences. If it is to be recognised, Brown J considered it should be viewed as a discrete defence. The Court held unanimously that reportage is not available in this case as one of the most prominent assertions was portrayed as fact, not as an allegation.

Full judgment: DurievGardinerNZCA278.pdf

Craig versus Williams granted leave to appeal and cross appeal

The Colin Craig versus Jordan Williams defamation saga continues, and it’s getting a bit complicated legally.

Williams won a record payout in a High Court jury trial. However the judge had concerns about that verdict.

Craig took it to the Court of Appeal, which ruled earlier this year hat it was “satisfied that the jury’s award of both compensatory and punitive damages was excessive or wrong, and must be set aside accordingly.”

Today the Supreme Court granted leave to appeal that to Williams, and also leave to cross appeal was granted to Craig.

So it’s looking increasingly likely the only winners will be the lawyers.

NZH: Supreme Court allows Craig v Williams defamation appeal over compensation amount

New Zealand’s highest court will allow challenges to a court’s ruling that $1.27 million in compensation for a man defamed by former politician Colin Craig was “excessive or wrong”.

New Zealand Taxpayers’ Union executive director Jordan Williams sued Craig, the former Conservative Party leader, for defamation after Craig, in 2015, delivered 1.6 million pamphlets criticising Williams to homes across the country and held a press conference.

Williams sought compensatory damages of $400,000 and punitive damages of $90,000 for the remarks against him, and a further $650,000 in compensatory damages and $130,000 in punitive damages for the leaflets.

So this is likely to take at least a few more months, if not longer.

In the meantime Craig is still waiting for a judgment on the judge only defamation he took against Cameron Slater, who also took an action against Craig.

The Court of Appeal ruling: WILLIAMS v CRAIG [2018] NZCA 31 [5 March 2018]

High Court ruling: WILLIAMS v CRAIG [2017] NZHC 724 [12 April 2017]

Crowd funding for defence of Bob Jones defamation action

Action Station has set up a fundraising campaign via GiveALittle to help raise money for Renae Maihi in her defence of  defamation by Bob Jones.

Maihi had set up a petition calling for Jones to be stripped of his knighthood after he wrote a silly “Māori Gratitude Day”  NBR column that disparaged Māori. I thought this was a well intentioned but inappropriate and over the top (and unsuccessful) petition.

In response Jones filed defamation proceedings against Maihi. I think this was even sillier and more over the top from Jones, and could be seen as using the court for bullying that only a rich person could afford.

So I think it’s fair enough to crowd fund for a defence of the defamation.

Fundraiser launched for filmmakers’ defence fund against Bob Jones
Community campaigning organisation ActionStation have launched a Givealittle fundraising campaign in support of filmmaker and mum Renae Maihi. 
 
Earlier this year, Maihi launched an online petition that gathered more than 70,000 signatures asking Parliament for the removal of business mogul Sir Bob Jones’ knighthood.
 
The petition followed a now-removed National Business Review column in which Jones proposed a “Māori Gratitude Day” in place of Waitangi Day where Māori would serve non-Māori out of “gratitude for existing”. 
 
The column was widely described as “racist” by many, including a National Party MP. Last week, the hashtag “#BobJonesIsARacist” was also trending as people took to Twitter to express their views. 
 
Jones is now suing Maihi for defamation. He also sent Waikato University Professor Leonie Pihama a ‘cease and desist’ type letter for a Tweet in which she described Jones’ column as “racist”. 
 
As Andrew Geddis, Professor in the Faculty of Law at the University of Otago, points out on Twitter, “The targets of both [of Bob Jones’ threats to sue for defamation] have been Māori wahine who speak out strongly on te tino rangatiratanga. Yet if you want to go looking for people who have called Bob Jones a “racist”, you can find lots of examples.”
 
If Maihi loses the suit, she could have to cover Sir Bob’s legal fees. 
 
“We think that’s wrong and have launched a Givealittle crowdfunding campaign to tautoko (support) Renae.” says ActionStation Director, Laura O’Connell Rapira. 
 
“Bob Jones is one of New Zealand’s wealthiest men and he is throwing huge sums of money at this fight. Renae is a grassroots filmmaker and mum. We must show her our support.”

Good on Action Station for doing this (not so sensible of them to support the petition).

GiveALittle: Legal fund for Renae Maihi

Multi-millionaire Bob Jones has issued high court defamation proceedings against filmmaker Renae Maihi and she needs our help

Funds raised will be used to help Renae for any legal bills she may incur as a result of Bob Jones’ lawsuit.

Defamation proceedings can be horrendously expensive just to defend – that’s why usually only rich people attempt them.

While I don’t know what Jones’ motives are here, defamation actions can be used as a form of financial retribution.

The petition: https://www.change.org/p/rt-hon-jacinder-ardern-strip-racist-sir-bob-jones-of-his-knighthood-read-his-vile-rant-here/

About the lawsuit: https://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=12065598

I didn’t support or sign the petition, but I think the defamation is thin skinned, over the top, and could be a rich privileged abuse of the legal system.

Has Jones got a reputation to defend here? If it goes to trial that will be for the court to decide.

Bob Jones slaps another threat of defamation

Bob Jones is already taking someone to court alleging defamation, but has threatened defamation against at least one other person as well.

For someone who has been deliberately provocative in writings over the years he seems to have a very thin skin when comments are directed at him. Or he just feels like abusing his position as a wealthy person, and he could be seen to be abusing court processes.

Pursuing defamation redress through the courts is a way of protecting yourself from attacks on your reputation, but it is really only available to people with a lot of money.

And it is open to abuse by people in powerful positions. I was threatened with defamation by a prominent MP a few years ago, one who is currently using the court to seeking damages on other matters, which is a questionable use of the law. I have had other threats of defamation from petty legal incompetents, who have also tried to inflict financial costs.

Last week: Sir Bob Jones files defamation papers against filmmaker Renae Maihi

Sir Bob Jones has filed defamation papers against filmmaker Renae Maihi.

In March, Maihi presented to Parliament a petition  to strip Jones of his knighthood that was signed by more than 70,000 people.

The defamation papers were received by the Wellington High Court “a couple days ago”, the court confirmed to Stuff on Wednesday.

It is understood Jones will argue the language used in that petition was defamatory.

Maihi started the petition after Jones suggested in his regular National Business Review column in February that a new public holiday should be introduced – called Māori Gratitude Day instead of Waitangi Day.

The column Jones wrote looked deliberately provocative but was probably best ignored.

Maihi’s petition seemed like a silly over-reaction – it could be seen as an attempt to suppress free speech.

But the subsequent defamation proceedings makes Jones look very heavy handed and petty to me. It is only something a person with a lot of money to spare could do.

For someone who talks tough Jones is either very thin skinned, or is being malicious in trying to inflict severe financial damage on someone who says something he takes exception to, or uses as an excuse to get publicity.

Yesterday Leonie Pihama posted Speaking Truth to Racism – in which she shows a letter from Jones’ lawyer claiming a comment she made in a tweet was “clearly defamatory” and demands an immediate withdrawal and retraction and apology also using twitter.

Pihama’s post is carefully worded but defiant. She concludes:

What is clear is that the threat of lawsuits is a tool being used as a means of silencing responses that challenge his views of our people. What is clear is that no matter how many suits he threatens or he files against those who stand up against the vitriolic attacks on our people, we will not stop calling him out, not now not ever. There will always be people who will speak truth back to racism.

Defamation proceedings are really only possible for the rich. They can be a valid response to attacks via speech, but are not practical for most people.

And threats of defamation can be insidious attempts to shut down valid speech.

For someone like Jones who has been liberal with his use of critical provocative speech over a long time his use of lawyers and courts to try to shut down comment and debate looks both hypocritical and an abuse of power and money.

This latest threat looks like an alarming escalation of a war of words into what is sometimes referred to as lawfare – and that can be a very uneven and unfair battle.

Dave Armstrong wrote in February: Sir Bob Jones says his Māori Gratitude Day column was satire. So what was he satirising?

Jones responded that his column was satire – that his idea of a “Maori Appreciation Day” was simply a “satirical suggestion”. It was, as Bob suggested, a “piss-take”.

…there you have it – definitely satirical but also pretty awful…

So yes, Bob Jones was being satirical, and if you like lazy satire that kicks people on the bottom then Bob’s your man. I prefer satire that challenges the pompous, wealthy and powerful and doesn’t require traversing a pay-wall.

Bob was once well-known for his maverick, iconoclastic ways and has made me laugh heartily in the past. Now he has announced that he will be taking legal action against Ranae Maihi for her petition. He believes that it is defamatory for her to describe what he wrote about ‘them’ as ‘hate speech’.

This threatened legal action makes the wannabe NBR satirist look just like all the wimpy, bureaucratic, tan-shoe-wearing, schoolteacher-types that Bob used to rail against. Real satirists don’t sue; they get sued.

That Jones wants to use his considerable wealth, legal resources and societal privilege to silence a lone, largely unknown filmmaker expressing an honest opinion makes Bob the Bill Rowling of satirists not the Rob Muldoon. Grow some balls, Bob.

Jones now seems to be trying to silence Pihama via his lawyer. Are there others he is slapping with legal letters who don’t go public?

To me this looks extremely heavy handed, petty and pathetic.

I think Jones is doing far more to tarnish his own reputation with his legal posturing than a word or two on Twitter could achieve.

Perhaps he is attention seeking – but that would be an abuse of financial privilege and could be an abuse of legal process.

Findlaw: Abuse of Process

Civil wrongs that don’t result in physical harm can fall into a category called dignitary torts, which are torts that have caused harm to a person’s reputation or dignity. A few examples of dignitary torts are defamation, malicious prosecution, and abuse of process. Abuse of process refers to a person using the legal system in a way that is not necessarily serving the underlying legal action, but rather to achieve another purpose. Although this tort may sound similar to malicious prosecution, an abuse of process claim can be brought against someone even if the underlying cause of action for the lawsuit was valid.

I don’t know how much that applies in New Zealand.

Blomfield v Slater trial date set

A defamation proceeding brought by Matthew Blomfield against Cameron Slater that was started in the District Court in 2012 will finally go to trial in the High Court in October. It will be judge only (no jury), and is expected to run for four weeks or six weeks (two recent judgments give different durations).

Blomfield claims he was defamed in a series of thirteen posts at Whale Oil, while Slater claims that taken in context the posts were not defamatory, and also that the posts expressed truth and honest opinion.

The publications

[6] Each of the blogs was published between 3 May and 6 June 2012. They occurred after Mr Slater came into possession of a hard drive containing emails sent to or by Mr Blomfield. Other material was also stored on the hard drive, including photographs of Mr Blomfield’s family.

This is rather ironic given the complaints Slater has made about Nicky Hager obtaining material that was hacked from Whale Oil and Slater. I don’t know whether it has been established that the hard drive was obtained illegally or not.

[7] There is no dispute for present purposes that Mr Slater caused the blogs to be published on the Whaleoil website notwithstanding the fact that the website is apparently operated by the second defendant, Social Media Consultants Limited. There can also be no dispute that the blogs related to Mr Blomfield because he was named in each. Each of the blogs also contains material that is arguably defamatory of Mr Blomfield.

In late 2017 Blomfield made a successful application joining a second defendant Social Media Consultants Limited as a party to the proceeding. This was done after Slater pointed out that the publications forming the basis of the defamation claims
are posted on a website operated by that company.  Shareholders and directors of the company are Cameron Slater and Juana Atkins.

This information and an outline of the defamation claims are detailed in two judgments available at Judicial Decisions Online:

These two judgments cover interlocutory issues and an on application by Blomfield for summary judgment and/or strike out.

They show that Slater has incurred more costs awards against him, and an application by Slater that security of costs be paid by Blomfield was declined because Slater is acting for himself so won’t be able to claim costs, unless he engages a lawyer for the trial.

Some of the arguments are related to the inability of Slater to provide emails as a part of the discovery process because they were deleted in the wake of ‘Dirty Politics’.

The judge notes that some comments in the posts “are clearly defamatory” but that Slater can argue truth and honest opinion.

[42] Despite the relatively extreme nature of Mr Slater’s assertions, and the sketchy particulars provided in support of the defences of truth and honest opinion, I am not prepared to enter summary judgment in respect of this publication. Sufficient particulars have been provided to enable Mr Slater to advance the defences at trial. He will obviously need to re-formulate his particulars so that they provide sufficient detail to enable Mr Blomfield to respond to them.

Most applications by both Blomfield and Slater were declined in the judgments. The need to finally get the proceeding to trial with no further delays was an overriding factor in some of the decisions.

This looks like a complex case. I have no idea of strength of the complaints or the defences. That will be for a judge to decide when it goes to a four or six week trial in October.

In other defamation proceedings, Slater is still waiting for a judgment in defamation claims and counter claims versus Colin Craig after a trial that concluded in June last year – see Craig v Slater – reserved decision.

Slater is involved in another defamation case started against him (and others) in August 2016, related to another series of posts at Whale Oil. This is summarised in SELLMAN & ORS v SLATER & ORS [2017] NZHC 2392 [2 October 2017]:

Summary

[1] Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook are public health professionals. They allege they have been defamed in a series of blog posts by Mr Cameron Slater and comments on the posts by Mr Carrick Graham. They sue Mr Slater, Mr Graham and Mr Graham’s company Facilitate Communications Ltd (FCL). They also sue Ms Katherine Rich and the New Zealand Food and Grocery Council Inc (NZFGC) for allegedly procuring Mr Slater, Mr Graham and FCL to publish the substance and sting of the alleged defamations.

Both this proceeding and Blomfield’s allege that Slater (or Social media Consultants) was paid to do attack posts on Whale Oil. This was also alleged in Hager’s ‘Dirty Politics’.

One thing is clear – defamation proceedings can be complex, time consuming and very expensive.

Shadbolt, Southland Times no guilty of defamation

Invercargill mayor says that a defamation case in which he was found not guilty the local government equivalent of the David Lange defamation case.

The case pitted a city councillor against her mayor (and the local newspaper).

RNZ – Defamation trial: Not guilty verdict good for councils – Shadbolt

A jury on Friday found Mr Shadbolt and the Southland Times newspaper not guilty of defaming Karen Arnold in a series of columns in 2014 and 2015.

Ms Arnold had argued she was portrayed by the mayor in the columns as unprofessional and a leaker of confidential documents.

Mr Shadbolt said the verdict was highly significant for freedom of speech.

“If we really want to criticise our mayors or if our mayors want to cristicise their councillors, it certainly gives a lot more room for them to do that and I think as a result it will lead to much healthier debate around the council table.”

Mr Shadbolt said his case was the local government equivalent of the David Lange defamation case 20 years ago.

Stuff (which includes the Southland Times): Defamation proceedings against Invercargill Mayor Tim Shadbolt and Stuff fail

Invercargill City councillor Karen Arnold had sued Shadbolt and Stuff, formerly Fairfax Media, for defamation over comments made by Shadbolt in four columns published in The Southland Times in 2014 and 2015.

She claimed a number of defamatory meanings could be drawn from the columns, which discussed her position on council matters, including the council’s trading company Holdco and a proposed kākāpō display.

The meanings alleged by Arnold included that she was dishonest, had leaked confidential documents, had colluded with a defunct ratepayers group and had acted inappropriately by engaging in debate about the “kākāpōrium” after declaring a conflict of interest.

The jury found Arnold had proved some of the alleged meanings, but did not find any of these to be defamatory. However, after the verdict, the judge granted her lawyers’ request to make a court application to determine whether the verdicts for the first three columns were legally sound.

Arnold is considering whether to appeal.

Stuff editorial director Mark Stevens said he was pleased with the jury’s decision.

“We always felt that at the heart of this case was the very important editorial principle of freedom of expression and it’s great for the industry and the craft of journalism to have this outcome”.

Speaking outside the courthouse Shadbolt said he was “absolutely relieved” by the decision, which came three years after the statements in question.

During the trial his lawyer had warned a decision against his client could have a chilling effect on political speech, however Shadbolt said the jury had sided with “freedom of speech and freedom of expression”.

“It’s a landmark case and it’s also a defence not just of sincere conversation, but of satire, humour, being able to enjoy politics, which I’ve always tried to do.”

Shadbolt said the decision had confirmed those in local government could “express ourselves”, but rejected the working relationship between him and Arnold would be strained as a result: “I think both parties will be very keen to get back … to work”

That working relationship must have changed after this.

In his closing address, Stuff’s lawyer Robert Stewart asked the jury if the meanings alleged would be evident to a reasonable reader or to someone “who sees conspiracies that don’t exist”.

Arnold’s lawyer Peter McKnight said the meanings were clear. He told the court Shadbolt “loathed” his client, that there was no factual basis for his statements and he was simply “out to give Karen Arnold some decent swipes”.

The sentiment was denied by the Shadbolt camp. His lawyer Felix Geiringer said that while it was true the pair did not “get on”, he was within his rights to criticise her and otherwise he was giving his opinion on local political matters.

Some big name out of town lawyers there. It won’t have been a cheap trial for any of the parties.

Arnold alleged Stuff was irresponsible and reckless in the way it published the columns, in part because only one staff member – long-term Southland Times features editor Mike Fallow – checked them without referral to editor Natasha Holland or a lawyer.

This, in McKnight’s reckoning, was “totally irresponsible”. However, Stuff’s chief executive Sinead Boucher said she would have personally published the columns and the checking process they went through was appropriate for a modern news organisation.

Geiringer told the jury freedom of speech was particularly important in this case. He argued there would be a chilling effect on political speech and publishers’ willingness to provide a platform if the jury found against his client.

Their decision would have, he said, a “substantial impact on the society we live in”, whereas McKnight contended it was “very important that we as a society protect the reputations of politicians from unwarranted attack”.

There is a well known precedent that specifically applies to criticism of politicians.

The case provided a basis for the Lange defence – a legal precedent that allowed news organisations to report harsh criticism of politicians, provided they were not reckless or motivated by malice – to apply not just to parliamentarians, but local body politicians.

TEARA: David Lange, defamation and media freedom

In the October 1995 issue of North and South magazine, political scientist Joe Atkinson suggested that former Prime Minister David Lange had been too lazy to take on the difficult aspects of that job. The accompanying cartoon played with the article’s suggestion that Lange suffered from ‘false-memory syndrome’ in his portrayal of himself as prime minister – as well as his comments about hotel breakfasts in New Zealand.

David Lange, defamation and media freedom

Lange considered the article (and cartoon) to be defamatory and took Atkinson to court in 1996.

After the case went through a series of courts, the Court of Appeal eventually decided that journalists had a defence of ‘qualified privilege’ – meaning that they could criticise politicians on the basis of their ‘honest belief’. The findings in the case have given New Zealand media greater freedom to comment on the performance of politicians.

The Southland case is different in that it was a councillor versus the mayor.

 

Williams versus Craig: will there be an apology?

Jordan Williams has sort of won the latest round in the defamation proceedings he brought against Colin Craig, but it’s hard to are any either his or Craig’s reputation or bank balance coming out of this in the positive.

Williams was originally awarded about $1.2 million in ordinary and punitive damages by a jury, but the judge set that aside, saying it was an excessive award and it should go back to trial. Williams appealed that and won – it won’t go back to trial to determine defamation, that stands, but it will go back to trial or the judge to determine an appropriate award. Craig cross appealed and lost.

A key question in the original trial was whether Craig’s reaction to attacks and provocation from Williams was justified or over the top. The jury ruled it was excessive and that stands, but the Court of Appeal ruled they didn’t take the behaviour and reputation of Williams into account when awarding damages.

Judgment of the Court

A The appeal is allowed in part. The order made in the High Court for retrial of the appellant’s claims for liability and damages is set aside.

B Judgment is entered for the appellant in accordance with the jury’s verdict on liability. An order is made directing a retrial of the appellant’s claim for damages.

C In all other respects the appeal and cross appeal are dismissed.

D The respondent is ordered to pay the appellant 50 per cent of costs as calculated for a standard appeal on a band A basis with usual disbursements. There is no order for costs on the cross-appeal. All costs issues arising in the High Court are to be determined in that Court in accordance with this judgment.

However they also ruled that it was appropriate to set a limit on the level of damages.

[58] Mr Williams must take primary responsibility for the jury’s delivery of an unsustainable award. His claim was pitched at a plainly extravagant level. There was no request for a direction about the appropriate parameters of an award. In this case an appropriate direction would have been up to $250,000 for compensatory damages
including aggravation, and for punitive damages no more than $10,000.

[78] It will be for the retrial Judge to decide procedure for a damages claim.

(b) Mr Williams is entitled to a compensatory award, which should be anywhere up to a maximum of $250,000 for damage to his reputation, including aggravating factors…

(c) an award of punitive damages was also available but should not be more than $10,000.

So a maximum of $260,000 recommended, about a million dollars less than the original award.

A lack of an apology from Craig was a factor, and remains a factor.

[41] The circumstances of this case are much less serious than those of Siemer v Stiassny and Holloway. We acknowledge the jury’s finding that Mr Craig’s statements about Mr Williams were false and defamatory and would tend to lower his standing in the estimation of right-thinking members of society generally. Its verdicts must be respected. We acknowledge also the gravity of Mr Craig’s attack on Mr Williams’ reputation, the nationwide and repetitive circulation of Mr Craig’s defamatory comments, Mr Craig’s persistence with his defence of truth and attack on Mr Williams’ reputation, and Mr Craig’s refusal to apologise. However, some perspective is necessary. We refer to two particular contextual factors.

[42] First, Mr Williams cannot point to any special harm. He is not a public figure. He is the leader of a little-known political group. Nor was he defamed in performing his professional duties as a lawyer. He was defamed in response to his actions taken with the aim of removing Mr Craig from his office as leader of a small political party. Whether Mr Williams’ objective was purely personal or linked to his role as a lobbyist for fiscal conservatism is of no real moment. His tactics — such as private messaging and the use of a pseudonym — were covert so as to keep himself out of the public eye.

[43] The trial process revealed that Mr Williams had accused Mr Craig of sexual harassment against Ms MacGregor but himself harboured offensive attitudes towards women. Mr Williams’ Facebook exchanges with Mr Slater, on which he was recalled for cross-examination at trial, were sexually crude and disparaging of women, particularly those of a different political leaning. In a written apology, which he read aloud at trial, Mr Williams accepted that his messages portrayed him in a poor light. It may fairly be observed that the trial process exposed serious flaws in the characters of both protagonists.

[79] …The trial Judge will provide extracts from the evidential transcript. Mr Craig may also wish to mitigate damages by tendering an unequivocal apology to Mr Williams.

This suggests that if Craig tenders “an unequivocal apology” the damages will be mitigated – that must mean reduced.

I don’t know if Craig will be prepared to apologise, but if he does, properly, the award should shrink further.

This has been a very costly trial, both monetary and to both reputations.

Williams was awarded just 50% of the costs of his appeal, and none of the costs for the cross appeal.

On a retrial on damages he may also be awarded costs, but that may not be all of the costs there, and I don’t know how the costs of the original trial will be determined, if at all. It’s hard to see Williams being awarded all costs given the Court of Appeal stated “Mr Williams must take primary responsibility for the jury’s delivery of an unsustainable award”.

In one respect Williams has won – the defamation decided by the jury stands. But he has not helped his own reputation with the trial, and he may not come out of this very well financially either. It could end up being a win-lose outcome for him.

It’s just a lose-lose situation for Craig. He was understandably at the attacks on him and the fairly clear attempts to destroy his political career and his Conservative party, but he over-reacted in response, using the power of his money excessively. That has cost him a lot. If he apologises it will cost him a little less perhaps.

Williams versus Craig – retrial of damages only

The Court of Appeal has ruled in the Jordan Williams versus Colin Craig defamation, saying there should be no retrial of the defamation, but the costs should go before the Court again.

 

After noting Wiliams’ Facebook exchange with Whaleoil was “sexually crude and disparaging of women” the Court of Appeal said of the damages award: “The law must be concerned with the reputation he deserved and compensate accordingly.”

The Appeal Court on Colin Craig “We agree with Mr Mills QC that the size of the award suggests the jury’s particularly adverse judgment on Mr Craig’s character, credibility and conduct of his defence. Mr Mills pitched it at the level of the jury’s hatred for Mr Craig.”

But a different take from Stuff:  Taxpayers’ Union boss wins right to argue claim for $1.27m in damages

Taxpayers’ Union co-founder Jordan Williams may be able to claw back the $1.27 million in damages originally awarded to him in a defamation case.

The High Court judge presiding over the case later set aside the damages – the largest defamation award in New Zealand, and the maximum Williams had sought.

But on Monday, the Court of Appeal released a decision allowing part of Williams’ appeal, which would see a retrial of his claim for damages.

Other aspects of Williams’ appeal and Craig’s cross-appeal were dismissed. However, the retrial relating to the damages alone, would give Williams the chance to claw back at least some of the initial $1.27m he was initially promised.

That’s different to the headline and initial paragraph. Stuff has a copy of the decision.

[78] It will be for the retrial Judge to decide procedure for a damages claim.The process should be analogous to trial of a claim on admitted facts, or admitted pleadings, and be relatively straightforward. The Judge could properly direct the jury to this effect:

(a) Mr Craig defamed Mr Williams in two separate publications, the Remarks and the Leaflet, at least a week apart, by stating that Mr Williams had acted dishonestly, untruthfully and deceitfully for making the allegation that Mr Craig had sexually harassed Ms MacGregor, which was necessarily rejected by the first jury;

(b) Mr Williams is entitled to a compensatory award, which should be anywhere up to a maximum of $250,000 for damage to his reputation,including aggravating factors, taking into account that:

– any damage was caused primarily by the Remarks and compounded marginally by republication in the Leaflet;

– some of the allegations made by Mr Craig about Mr Williams’ conduct relating to the defamatory statements had elements of truth in that some aspects of his conduct had been dishonest, deceitful and untrustworthy, but not in making the allegation of sexual harassment;

– Mr Craig’s statements were made in a political context and in a counter-attack to criticisms made by a man whose own attitude to women was questionable;

– elements of Mr Craig’s  conduct of his defence may have compounded the original damage; and

(c)  an award of punitive damages was also available but should not be more than $10,000

That sets maximums at less than a quarter of the original award.

79]

The Judge’s approach will ultimately be influenced by the parties’ decisions.

[80]
There is of course a more pragmatic and sensible solution. The parties can simply agree that Katz J should determine damages.  The Judge alluded to this option in her retrial decision.  She invited counsel for the parties to submit memoranda.Both sides have since shadow boxed on this proposal, which remains in limbo. It isthe most obvious path to resolution if the parties are genuinely seeking finality. Katz J is fully familiar with all the evidence and would only require focused submissions from counsel to complete the exercise.

Can they be pragmatic?

[118]  The appeal is allowed in part. The order made in the High Court for a retrial of the appellant’s claim for liability and damages is set aside.

[119]  Judgment is entered for the appellant in accordance with the jury’s verdict onliability. An order is made directing a retrial of the appellant’s  claim for damages.

[120]  In all other respects the appeal and cross-appeal are dismissed.

[121]  The respondent is ordered to pay the appellant 50 per cent of costs as calculatedfor a standard appeal on a band A basis with usual disbursements. This reductionreflects the fact that the appeal was only partially successful. There is no order for costs on the cross-appeal. All costs issues arising in the High Court are to be determined in that Court in accordance with this judgment.

The decision online: http://www.courtsofnz.govt.nz/cases/williams-v-craig-1/@@images/fileDecision?r=514.731640769

Statement from Jordan Williams re Court of Appeal decision

Naturally, I am delighted with the success of my appeal at the Court of Appeal overturning Justice Katz’s earlier decision to set aside the jury verdict in my defamation claim against Colin Craig. Justice Katz had ordered a full re-trial on the basis that the $1.27 million damages award was so high.

I am very relieved that there will not be a full re-trial, and that the issue is now simply damages. It means Mr Craig has failed in his efforts to re-litigate, yet again, this whole matter.

The judgment is totally clear that I was defamed by Mr Craig, and that the jury’s findings, now confirmed, have vindicated me.

No one can take away from the fact the jury were unanimous in my favour. The jury believed me, believed Rachel MacGregor, and not Mr Craig. Today’s decision has confirmed all of that.

As I said immediately after the jury verdict, I never entered into these proceedings for the money, nor did I want these proceedings at all. It was only Mr Craig’s own threats of legal action against me which saw us in Court. I sought to prove that Mr Craig’s allegations were wrong and to put a stop to Mr Craig’s egregious assault on my reputation.

But overplaying his hand on money has resulted in this legal mess.

[58] Mr Williams must take primary responsibility for the jury’s delivery of anunsustainable award. His claim was pitched at a plainly extravagant level. There was no request for a direction about the appropriate parameters of an award. In this case an appropriate direction would have been up to $250,000 for compensatory damages including aggravation, and for punitive damages no more than $10,000.

Hagaman v Little appeal rejected by Supreme Court

The defamation case Hagaman v Andrew Little has reached a conclusion in the Supreme Court, where an appeal on behalf of Earl Hagaman has been rejected.

In April 2017 a jury could not decide on some claims in a defamation case brought by Earl and Lani Hagaman against then Labour Party leader Andrew Little. The jury found that one comment wasn’t defamatory, one was but they couldn’t decide if ‘qualified privilege’ was an adequate defence, and they couldn’t decide at all on four other claims.

An appeal was filed, but not long after the trial (25 May) Earl Hagaman died.

Since then Lani Hagaman has tried to argue that an appeal should survive Mr Hagaman’s death, but has failed.

The Supreme Court ruling follows a Court of Appeal judgment in November:

[1] Does the late Mr Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survive his death? That is the question this judgment is concerned with.

Background

[2] Mr and Mrs Hagaman owned a large New Zealand hotel chain. In 2014 Mr Hagaman made a substantial donation to the governing National Party of New Zealand. The Hagamans’ hotel chain later received Niue Government funding to
upgrade a hotel in that country. The ultimate source of that funding was New Zealand Government aid assistance. The Leader of the Opposition Labour Party of New Zealand, Mr Little, drew a connection between these events in a series of six
public statements.

[3] The Hagamans issued proceedings in defamation against Mr Little in June 2016. Trial commenced in April 2017. During the trial Clark J ruled that the six statements were protected by qualified privilege. The jury were agreed that
Mrs Hagaman’s claims failed. They also agreed that two of Mr Hagaman’s six claims failed. But they could not agree on the other four. Judgment was entered in the High Court for Mr Little against Mrs Hagaman. No judgment was entered in relation to Mr Hagaman’s claim.

[4] The present appeal against the Judge’s ruling concerns one only of those four disagreed claims — the second cause of action. The appeal was filed in April 2017. Mr Hagaman died in May 2017. Although his personal representatives have not yet been substituted as appellants, they are responsible for the present conduct of the appeal and accept responsibility for any costs ordered on it.

[5] The question trail on the second cause of action given to the jury by the Judge, and the answers they gave, were as follows:
First named plaintiff (Earl Hagaman): Second cause of action
5. Do the words set out in paragraph 10 of the second amended Statement of Claim carry any of the meanings set out in paragraph 11?
[YES]
6. If the answer to any of issue 5 is “Yes”, is that meaning defamatory of the first named plaintiff (Earl Hagaman)?
[YES]
7. If the answer to issue 6 is “Yes” was the defendant (Andrew Little) motivated by ill-will towards the first named plaintiff (Earl Hagaman) or, did the defendant take improper advantage of the occasion of publication?
[NO ANSWER]
8. If the answer to issue 7 is “Yes”, then assess:
(iii) General damages $
(iv) Exemplary damages $
[NO ANSWER]

[6] The practical question we must decide is whether the jury answers on the second cause of action amount to a verdict for Mr Hagaman. We will now explain why this point matters.

When does an appeal in a defamation claim survive death?

[7] The old common law rule was that personal actions in tort (including defamation) abate upon the death of the plaintiff (or the defendant): actio personalis moritur cum persona. The rationale for the rule is that such an action is personal to the victim and his or her tortfeasor, and should not devolve to their estates. Professor Pollock called it a “barbarous rule”. The effect of the rule, as we will see, rather depended on the stage the claim had reached.

[8] The rule was abolished in part by statute in 1936, permitting the continuation of an action despite the death of a party.

[9] Defamation is excluded from the reforming effect of s 3(1). That simply means that the reform (creating a new statutory survival rule for other torts) does not apply to it. For defamation the old common law rule continues.

[10] Whether a defamation claim abates with death or not ultimately depends on the stage the proceeding has reached.

Does Mr Hagaman’s appeal survive his death?

[14] We are concerned only with the second cause of action. Mr Tizard for Mr Little submits there is neither verdict nor judgment on that cause of action. It follows it has abated and the appeal must be dismissed. Mr Fowler QC for Mr Hagaman’s representatives submits that although there is no judgment, the cause of action does not abate because there is at least a verdict. He submits that the jury answers constitute a special verdict finding that Mr Hagaman was defamed by Mr Little.

[15] A special verdict is one where the jury is asked to respond with answers to a series of questions rather than simply stating whether they find for the plaintiff and in what amount.

[16] But an incomplete set of answers will not amount to a verdict for one party or the other. A verdict is a conclusive determination of all factual issues within a cause of action, for one party or the other. The verdict can then be perfected by entry of judgment. In defamation a verdict for the plaintiff must include the jury’s award of damages; otherwise it is incomplete and void.

[17] It is evident that in this case the jury was asked by the Judge to respond to a series of questions, the intended result of which would be a special verdict on each cause of action. This produced verdicts for Mr Little on the causes of action alleged by Mrs Hagaman. It also produced verdicts for Mr Little on the fifth and sixth causes of action alleged by Mr Hagaman. Here the jury, asked questionse, answered either that the words did not bear the meaning alleged or that the meaning was not defamatory. That meant, as the question trail makes clear, that the jury had no more work to do. The answers were complete, even though not all questions had been answered.

[18] The same cannot be said of the second cause of action. The jury’s work was incomplete. Having answered the first two questions affirmatively, they had to go on and answer the third. But they could not agree on it. That is not a special verdict, because there is no conclusive answer on that cause of action. No judgment upon it could be pronounced.

[19] It follows that no verdict was given on the second cause of action. It therefore abates with the death of Mr Hagaman. No appeal may now be advanced upon it. As the whole of the appeal is confined to that cause of action, it also follows that the appeal itself must be dismissed.

Result

[20] The appeal is dismissed.

[21] The appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

This decision was appeared in the Supreme Court. RNZ: Little defamation appeal rejected by Supreme Court

A bid by the late Earl Hagaman’s estate to continue a defamation case against former Labour leader Andrew Little has been dismissed by the Supreme Court.

Mr Hagaman – who died in May last year – and his wife Lianna-Merie sued Mr Little for statements made about a hotel contract.

A jury was not able to reach a conclusive verdict.

Mr Hagaman’s widow tried to continue the case, taking it to the Court of Appeal.

It ruled the case could not continue after Mr Hagaman’s death and the decision was taken to the Supreme Court.

The Supreme Court decision today said the arguments by Mr Hagaman’s representatives were not sufficient to warrant a retrial.

Mr Little has been awarded costs.

So a win and costs award for Little, but it will have (hopefully) been a lesson to him. He will obviously not want to be taken to Court again, especially now he is Minister of Justice and Minister for Courts.

Anti-free speech litigation versus anti-free speech petition

Last week Bob Jones included some inflammatory comments in an NBR article. As a result of reaction NBR pulled the column and said they would no longer publish columns from Jones.

In reaction Renae Maihi started a petition asking that the Prime Minister strip Jones of his knighthood, calling the column ‘a vile racist rant’.

Stuff: Tens of thousands sign petition to strip Sir Bob Jones of his knighthood

Acclaimed film-maker Renae Maihi started the change.org petition on Thursday morning. “There is public support for this, somebody can’t get away with hate speech like that and not be held to account,” she said.

Maihi is upset by what Jones wrote in his regular National Business Review column last week, under the title ‘Time for a Troll’. He said a new public holiday should be introduced called Māori Gratitude Day instead of Waitangi Day.

“I have in mind a public holiday where Maoris bring us breakfast in bed or weed our gardens, wash & polish our cars & so on, out of gratitude for existing.” Jones also commented on children, blood quantum and suicide.

“I think he went beyond trolling, it’s hate speech,” Maihi said.

Maihi admits it’s unlikely Jones will lose his knighthood but will continue to collect signatures and approach the Prime Minister formally at a later date.

“He’s been honoured amongst a group of people that are meant to inspire and I just don’t think he’s very inspirational at all with those extreme racist comments. I just don’t think he deserves to be called a Sir anymore.”

Obviously Maihi had a right to criticise Jones, but I criticised her attempt to punish Jones for exercising his right to free speech. See Anti-Jones petition worse than inflammatory column.

Now Jones is threatening to punish Maihi for what she said about him through the courts.

Newshub: Sir Bob Jones threatens legal action against anti-racist petition

Sir Bob Jones has threatened legal action against filmmaker Renae Maihi, after she started a petition to have him stripped of his knighthood.

Sir Bob told RadioLIVE’s Ryan Bridge that his column was clearly satirical and he would sue Ms Maihi for defamation.

“For God’s sake, if anyone can take that literally, they’ve got serious problems,” he said. “It’s basically a mickey-take on issues of the day.

“I will be issuing proceedings against this woman for defamation, because I take particular exception when she uses the word ‘hate’. I don’t hate anyone.”

That seems like a heavy handed anti-free speech act that only someone with a lot of money could afford to do.

An over the top reaction to an over the top petition in reaction to over the top comments in a column.

Maihi remains staunch – for now: Film-maker stands her ground over petition against Sir Bob Jones

The woman behind a petition to strip Sir Bob Jones of his knighthood is standing her ground, despite the threat of being sued by the property magnate.

In a statement, Maihi told Fairfax she would not be taking down the petition, which had received more than 49,700 signatures by 5.40pm today.

“People like Bob Jones need to understand that the privilege they have in society also comes with a responsibility, and at a bare minimum that includes not writing flagrant hate speech in the media,” the statement reads.

Just yesterday she wrote on her Facebook page that she welcomed further support.

“Support welcome, I’ll need it – clearly he’s one of the wealthiest men in this country and I am not,” the post reads.

“I will always stand up for the mana of our children.”

A later update on the Facebook page showed she had been offered assistance from lawyers.

Sir Bob told One News earlier this week that the column was a “p*sstake” and that he took exception to it being called hate speech.

“I won’t sue her for a lot because that would seem like I’m bullying her,” he said.

Both he and Maihi are taking excessive action in response to the speech of others.

Perhaps Jones’ threat is just another piss-take.