Blomfield versus Slater trial over?

The Matthew Blomfield versus Cameron Slater defamation trial started last Monday, but I still can’t find any media coverage, so it’s hard to know exactly what is going on.

Slater posted on it at Whale Oil on Tuesday but he claimed this:

Legal action was started six years ago, but given the nature of [redacted], the plaintiff hasn’t actually been very keen to get the case before the court and has used every trick in the book to avoid this trial while I have fought to get the case before the judge.

That is so ridiculous (Blomfield as the Plaintiff could have ended the action any time he wanted to and court judgments show that Slater tried to appeal, delay and strike out the action) that anything Slater claims should be viewed with scepticism.

‘Bill Brown’ claimed here on Wednesday that the trial “Starts next Monday” but that is obviously wrong.

The case was included every day this week on the High Court Daily List, but it shows a change for Monday:

CIV2013-404-5218 Civil Proceeding – Defamation
MATTHEW JOHN BLOMFIELD (F E Geiringer, G Vosper) v CAMERON JOHN SLATE (GF Littlie SC, D Beard)

That suggests Slater was right about one thing, he has another law representing him now.

But I have heard that the trial may have ended on Friday, even though it was set down for up to four weeks. I’m not sure what this means.

I know from past judgments that Slater “has not advanced an arguable defence” on some publications. He may have since done that but this suggests his defence in part at least is not strong. See BLOMFIELD v SLATER [2018] NZHC 1099 [18 May 2018] for a summary as at May this year.

The publications are incapable of amounting to expressions of opinion

[80] As I have already observed, it is for the Judge in the first instance to determine whether, reading the publication as a whole and assuming the pleaded imputations can be proved, the publication is capable of being an expression of opinion rather than a statement of fact.

[81] Mr Geiringer invites me to consider this issue now to avoid wasting time at trial dealing with a defence that is not available given the wording used in the publications. I agree that this would have advantages. I consider, however, that the assessment should properly be made once the pleadings are in their final form. One reason for this is that an order for strike out at this stage gives rise to appeal rights that could jeopardise the trial date. Given the age of this proceeding that would be highly
unfortunate.

[82] Furthermore, and as I have already observed, the defence must be based on the facts referred to in the publication together with other facts that were generally known at the time of the publication. There is no ability, as there is in a defence based on truth, to rely on facts that come into existence after the publication. These factors significantly restrict the scope of the evidence that Mr Slater may adduce to establish the defence. I therefore do not consider there is much scope in the present case for Mr Slater to call a significant body of additional evidence in relation to the defence of honest opinion.

[83] I therefore consider the issue should properly be considered at trial. It will be for the trial Judge to ensure Mr Slater does not call evidence beyond the scope of that permitted to establish the defence.

Slater only needs to lose on one publication to lose the case, but I presume the number of defamatory publications would affect the possible damages awarded. That will be for the judge to decide, which we will find out in due course.

No news on Blomfield v Slater

I previewed the defamation trial between Matthew Blomfield and Cameron Slater here: Whale Oil be fucked? Defamation trial against Slater starting on Monday

As far as I know the trial started on Monday but I can find no media coverage, which seems unusual. Perhaps Slater is too toxic for the media to cover him any more, but that seems unlikely.

It has been on the Court Daily List all week, but there is a curious change. On Monday and Tuesday it was shown as:

NO 8 COURT BEFORE THE HON. JUSTICE DAVISON
CIV2013-404-5218 MATTHEW JOHN BLOMFIELD (F E Geiringer) v CAMERON JOHN SLATER  (D Beard) & ANOR
Civil Proceeding – Defamation

But on today’s list (Wednesday) it has changed from to ‘Civil Proceeding – Defamation’ to ‘Pre-trial hearing’ I have no idea what that means. It could be just a mistake, I think there was a pre-trial hearing on Friday.

SB posted at Whale Oil on Monday:  Do you want the good news or the bad news?

Starting today Cam is back in the High Court for up to four weeks depending on how the trial goes. The battle royale starts today.

It certainly feels very bizarre to be back in the high court for a second case when the first case from over a year ago has still not concluded.

This time around I will not be able to accompany Cam as I was only a part-timer back then but I work full time, seven days a week for the blog now.

Last time Cam was able to do some posts because we rented an apartment that was walking distance from the court so there was no long commute to and from the court each day. In fact, we spent our 25th Wedding Anniversary there. This time around Cam will be doing the long commute between the city and Whangaparaoa each day instead. If the case goes for the full 4 weeks Cam will be spending his 50th birthday.

Last time was Craig versus Slater. The judgment is not yet out, well over a year after the trial.

I know from our last experience that Cam will be mentally, physically and emotionally drained at the end of each week so I have done a Jacinda and made a Captain’s Call. I have put my foot down and told him that he is not to write on the weekends until the case is over.

I have told him to rest on the weekends and that we will all just have to cope without him.

During Craig trial, and when Slater was ill early last year, there were some posts from Slater. Since then Whale Oil has become much less reliant on his input, with SB taking a much more active role and a number of others becoming regular contributors. WO seems to be chugging away ok there, although comment numbers seem to be lower.

We are VERY confident that we will win this latest court case but your guess is as good as mine as to how long it will take to get a judgement.

The Whale Meat Company is currently helping us to fund our court case so your support of our new business is not only feeding your family it is supporting ours while ensuring that Whaleoil will not be silenced.

There were supporting comments and commiserations for the fading political activist.

A curious comment from ‘Loki’ here yesterday:

Things went horribly wrong for our hero yesterday.
No court today !

That appears to be a sarcastic reference to Slater.

‘Bill Brown’, who keeps trying to disguise his association with the case, has not been here reporting any positives so his optimism that some claims had been dropped was a positive may have been premature.

Court cases can be a black hole for information if media don’t cover them, and if you can’t attend in person. I will keep an eye out for any developments, but for now there is little information available.

Whale Oil be fucked? Defamation trial against Slater starting on Monday

Whale Oil potentially be fucked if the defamation trial about to start in the Auckland High Court is successful.

Matthew Blomfield started defamation proceedings against Cameron Slater in 2012 after a series of posts (thirteen) on Whale Oil attacking Blomfield. It finally goes to trial on Monday after Slater ran out of legal options to avoid facing the claims against him.

NO 8 COURT BEFORE THE HON. JUSTICE DAVISON
First Floor 10.00am
CIV2013-404-5218 MATTHEW JOHN BLOMFIELD (F E Geiringer) v CAMERON JOHN SLATER (D Beard) & ANOR
Civil Proceeding – Defamation

The defamation claim

[5] In 2012, Mr Slater ran and administrated the blog website “Whale Oil” under the name http://www.whaleoil.co.nz (Whale Oil). Mr Blomfield had provided marketing services to Hells Pizza until 2008 and had been a director of a company Hell Zenjiro Ltd (in liquidation), which had owned several outlets of the Hells Pizza chain. That company went into liquidation on 9 April 2008 and was struck off the Companies Register on 6 September 2013. Mr Blomfield was adjudicated a bankrupt in 2010 and an order was made prohibiting him from being a director of a company. He has since been discharged from bankruptcy

[6] Hells Pizza had an association with a charity known as “KidsCan”. On 3 May 2012 Mr Slater wrote and published on his Whale Oil website a blog post entitled “Who really ripped off KidsCan?”. It contained a number of statements that Mr Blomfield claims were defamatory of him. On the same day Mr Slater wrote another blog on the Whale Oil website entitled “Knowing me, knowing you – Matt Blomfield”. In that story he made a number of statements about Mr Blomfield. Between 3 May 2012 and 6 June 2012, Mr Slater wrote and published on his website 13 articles that referred to Mr Blomfield.

[7] Mr Blomfield claims that these articles allege that he had conspired to steal charitable funds and was alleged to be a thief, as well as dishonest, dishonourable, a party to fraud, involved in criminal conspiracy, bribery, deceit, perjury, conversion, the laying of false complaints, drug dealing and making pornography. He was also accused of being a psychopath, a criminal, a thief and a “cock smoker”.

[8] The majority of the articles that are the subject of the claim contain extracts of emails to which Mr Blomfield is allegedly a party. They refer to electronic files which Mr Blomfield claims were sourced from his hard-drive and potentially other sources including a filing cabinet of Mr Blomfield.

[9] Mr Slater admitted in his statement of defence that he had in his possession copies of emails, databases and electronic files relating to the affairs of Mr Blomfield. He stated that on or about February 2012 he was provided with a
hard-drive that included approximately one terabyte of computer files previously owned by Mr Blomfield.

[10] Following the publication of the articles on the Whale Oil website, Mr Blomfield filed proceedings in the Manukau District Court in October 2012 in which he claimed that the statements and the articles were defamatory. He sought anorder that the material relating to him be removed from the Whale Oil website as well as compensatory and punitive damages.

SLATER v BLOMFIELD [2014] NZHC 2221 [12 September 2014]

The trial was initially delayed due to arguments about Slater’s status as a journalist, and whether this allowed him to keep secret sources of material he published – he had appeared to be acting on behalf of others. Slaater was found to be acting as a journalist, but in 2014 a judge ruled:

[150] On balance the public interest in disclosure outweighs any adverse effects on the informants and the ability of the media to freely receive information and access sources.

[151] Therefore Mr Blomfield succeeds on overview and there is an order that s 68(1) does not apply, and Mr Slater must answer the interrogatories and comply with discovery in the usual way.

SLATER V BLOMFIELD CA 678/2014 [2015] NZCA 240 [17 June 2015]

Slater applied to adduce new evidence, and tried to appeal, but eventually failed, as did other legal attempts. A judgment from 6 July 2017:

[2] Mr Slater has applied to strike out Mr Blomfield’s proceeding on grounds of delay. Mr Blomfield applies for further discovery, on an “unless” basis. Both applications are opposed. Mr Blomfield contends that the delay in prosecuting his claim to hearing has largely been caused by Mr Slater’s own actions.

[30] Mr Slater referred me to a wealth of information to suggest that Mr Blomfield may not have had any relevant business reputation at the time the articles were published on the Whaleoil site. He submitted that the Court’s resources should not be deployed to deal with such an undeserving claim for defamation.

[31] I do not accept that this proceeding is of such a character as to justify invocation of the Jameel approach. A number of the allegations made against Mr Blomfield go beyond his business activities and/or practices; in particular, the suggestions that he might be a pornographer and/or a psychopath. In my view, while there may be a question about the value of his claims based on business reputation, the same cannot be said about those other aspects of the claim.

[32] In those circumstances, the better course is to ensure the proceeding is readied for trial promptly. Mr Slater’s application to strike out is dismissed.

BLOMFIELD v SLATER [2017] NZHC 1654 [18 July 2017]

The trial is set to start over a year later.

While Slater is in the firing line, if he loses this Whale Oil will take a hit as well. Slater has been far less prominent on the blog over the last few months so it could probably survive without him, but if a sizeable award goes against Slater, or even just costs (costs are eye-wateringly high in defamation proceedings) it would put the blog at financial risk – Whale Oil could be fucked.

Slater has not been acting alone through all this. He was supplied information – one of the sources has been revealed as Marc Spring, and the court ordered that others be revealed but I don’t think that has shown in court judgments.

In 2015 Spring also tried to use Your NZ to continue attacks on Blomfield against a court agreement with Slater and against a restraining order. I believe that me stopping Spring was at least part of the reason he Slater and Dermot Nottingham turned on me, attacking me here, via lauda Finem and via the courts (the legal harassment is ongoing, I have a hearing v Nottingham in the Court of Appeal on Tuesday).

Spring has obvious associations with Lauda Finem, where attacks against Blomfield continued well into 2016, until Blomfield had the site shut down by court order (I think that something on that is also due to come up in court this month).

Nottingham has also been thick in this. Both he and Spring feature here: SLATER v BLOMFIELD [2014] NZHC 2221 [12 September 2014].

And Nottingham continued to assist Slater:

Hearing: 6 July 2017
Counsel: F Geiringer for Plaintiff
C J Slater, in person, Defendant
(D Nottingham as McKenzie Friend for Mr Slater)

With friends like that…

And this year Nottingham was sentenced for breaching non-publication orders (suppression) and criminal harassment via Lauda Finem – see  “Either Dermot Nottingham is Lauda Finem…or he is so intimately related to it…”

It would appear that Slater has a difficult defence on at least some of the claims.

The ninth publication – 17 May 2012

[51] Mr Slater has not responded to the evidence adduced by Mr Blomfield regarding this issue.

[52] The overall tenor of the publication is clearly defamatory because it accuses Mr Blomfield of stealing assets belonging to the company and then selling them to a third party

.The twelfth publication – 6 June 2012

[61] Mr Slater has not responded to this evidence so for present purposes must be taken to have no answer to it. He would therefore appear to have no arguable defence to the claim relating to this publication. As in the case of the ninth publication, however, I propose to exercise my discretion against the entry of summary judgment and for the same reasons.

BLOMFIELD v SLATER [2018] NZHC 1099 [18 May 2018]

The challenge:

[76] Mr Slater needs to be aware, however, that the defences comprise different elements. For that reason the same particulars may not support both defences. In order to establish the defence of truth, for example, it is necessary for the defendant to set out the facts and circumstances relied upon to prove either that the pleaded imputations are true or substantially true, or that the publication as a whole is substantially true.

[78] The defence of honest opinion requires the defendant to establish that, reading the publication as a whole, such imputations as the fact finder has found to exist were conveyed by the publication as expressions of opinion rather than statements of fact. It is for the Judge in the first instance to determine whether the imputations are capable of being opinion rather than fact. Importantly, the facts in the publication must have existed at the time of the publication and must either have been alleged or referred to in the publication. Alternatively, they must have been generally known at the time. The defendant may not go outside these parameters in establishing the defence of honest opinion. Furthermore, the defendant may not call evidence at trial that is outside the ambit of the permitted particulars. For that reason the particulars “serve to focus and confine the evidence which may be given in support of defences of truth
and honest opinion”.

[79] Mr Slater needs to re-plead his statement of defence and particulars bearing in mind these principles. He also needs to be aware that he will not be permitted to call evidence at trial if it falls outside the pleadings in their final form.

The means that Slater cannot use the trial as a way of continuing the campaign against Blomfield by calling witnesses in order to attack Blomfield when this is outside the defence of ‘honest opinion’ – I think his defence has to be based on his own opinion at the time of publishing the posts on Whale Oil, not the ‘opinions’ of his associates and accomplices.

I have a particular interest in this because I got dragged into this as a means to try to avoid court orders.

But there should be wider interest.

If Blomfield is successful there is a real possibility that Whale Oil be fucked.

Craig and MacGregor admit defamation trial is of no benefit to either of them

The Colin Craig versus Rachel MacGregor defamation trial has now been going for a week. I don’t have any interest in rehashing old evidence dragged up again.

There are two things worth noting.

One is the bizarre situation where, accused of harassment but acting for himself, Craig is able to cross-examine MacGregor as a witness. Stuff:  Colin Craig begins cross examination of Rachel MacGregor in defamation trial

In an awkward interaction, Craig cross-examined MacGregor on Friday afternoon, with MacGregor refusing to look at her former employer.

It is the second time this has played out – Craig cross-examined MacGregor at his defamation trial against blogger Cameron Slater last year.

The second:

Craig told MacGregor on Friday he did not “consider that this proceeding is in the interest of either party”.

“Do you accept that?” Craig asked.

“Yes, I do,” MacGregor replied.

So why the hell is it happening? Courts are overloaded with important stuff, so this is a drain on limited resources.

I think it’s unlikely this is MacGregor’s choice. Craig seems to have become obsessed with using the courts to try to prove something. There has been:

  • Williams versus Craig (not Craig’s choice)
  • Craig versus Slater & Slater versus Craig
  • Craig versus Stringer
  • Craig verses Stiekema
  • Craig versus MacGregor & MacGregor versus Craig

Obviously the last of those is before the court still. Stringer may be finished with, but all the others are in various states of progress through the courts.

Related to these (having also been caused by posts on Whale Oil):

  • Blomfield versus Slater (due in court in October)
  • Sellman, Swinburn, Bradbrook versus Slater, Graham, Facilitate Communications Limited, Katherine Rich, New Zealand Food and Grocery Council Inc

The latter provides some insight into claims that seem to be common across all of these cases:

[11] In 31 causes of action the plaintiffs seek general damages, aggravated and punitive damages and costs from Mr Slater, Mr Graham and FCL in various combinations for defaming them in different combinations in the 31 posts. In nine more causes of action (numbers 32 to 40) the plaintiffs allege Mr Graham and FCL defamed them in various combinations in comments on the posts. In one cause of action, number 41, all plaintiffs seek general damages, aggravated and punitive damages and costs from Ms Rich and the NZFGC for procuring Mr Graham, FCL and Mr Slater to publish the substance and sting of the defamatory statements.

[12] The defendants deny the allegations against them and offer several affirmative defences

(a) a number of the causes of action are time-barred;

(b) all statements on all causes of action are true and statements of honest opinion;

(c) all statements attract qualified privilege as part of robust political debate about matters of legitimate public interest regarding the regulation of alcohol, sugar, fat and tobacco

Result

[125] I decline the applications to strike-out the causes of action except in relation to the pleaded meanings identified in the table annexed to this judgment.

SELLMAN & ORS v SLATER & ORS [2017] NZHC 2392 [2 October 2017]

That judgment was almost exactly a year ago. I presume this case is still progressing, slowly as defamation cases seem to. They tend to be drawn out and expensive.

What you see in news reports is mostly just on actual trials. There can be a lot of other processes including submissions, rulings and court hearings involved.

I doubt there will be any real winners in all of this. Some may get enough damages and costs to cover their expenses, but most reputations have been irreparably damaged, and that gets amplified by all the court carry on.

Defamation trial – Craig versus McGregor

A two week judge only defamation trial between Colin Craig and his ex-party secretary Rachel McGregor is due to start tomorrow. There have been a number of high profile defamation cases involving Craig, and McGregor has been a feature of most of them, but this case has not received much if any attention so far.

Stuff: Public appeal for funds ahead of Rachel MacGregor’s defamation action against Colin Craig

Former Conservative Party leader Colin Craig and his former press secretary Rachel MacGregor go head to head in a defamation case at the High Court in Auckland on Monday.

In the latest stage in the ongoing very public saga of the pair’s work relationship, the case goes to court after Craig filed defamation proceedings against MacGregor in November 2016.

Craig’s case is based on what he alleges are three separate defamations of him.

MacGregor has responded with a counterclaim alleging Craig defamed her in four separate incidents.

The issues at the heart of the proceedings came to public attention when MacGregor resigned as Craig’s press secretary two days before the 2014 election. The same day, she filed a claim of sexual harassment against him with the Human Rights Commission, allegations he denied.

At mediation, they settled the sexual harassment claim and a financial dispute, and signed a confidentiality agreement.

MacGregor subsequently complained to the Human Rights Review Tribunal that Craig had breached the confidentiality agreement, by doing media interviews and holding two press conferences.

The tribunal found in her favour, and ordered Craig to pay MacGregor $128,000.

In an interview with Stuff Circuit, timed to launch a public appeal to help her fund her legal defence, MacGregor said: “I don’t have any assets. I am just absolutely nowhere as wealthy as Colin Craig.”

MacGregor said it’s been a tough four years having to navigate the legal system.

“I would not be able to do that on my own and I don’t know how people are expected to navigate it on their own.”

She is still bound by the confidentiality agreement and said, “There’s a real asymmetry. People have mainly heard his side of the story and … the little bits of mine that they’ve heard, I haven’t been able to lead the narrative. I haven’t been able to tell my story on my terms and it’s really frustrating.”

This is not a great way to get to tell one’s side of a messy story.

Defamation trials can be very expensive. Craig is representing himself.

McGregor has already been dragged into two related defamation cases as a subject and a witness. One is Jordan Williams versus Craig, currently heading to a Supreme Court appeal and cross appeal:

A Leave to appeal and leave to cross-appeal is granted (Williams v Craig [2018] NZCA 31).

B The approved question is whether the Court of Appeal erred in allowing the appeal to that Court in part and dismissing the cross-appeal to that Court.

The other is Craig versus Cameron Slater. The trial was held in May-June 2017, but there has been no judgment yet. It is possible the judge in that trial is waiting on outcomes from Williams versus Craig.

Slater is heading for another defamation trial next month, taken against him by Matthew Blomfield, also as a result of posts on Whale Oil.

Craig has also been to court versus John Stringer. I find the last judgment: CRAIG v STRINGER [2017] NZHC 3221 [19 December 2017] confusing between plaintiffs and defendants but it includes an order rewording a previous judgment including:

[2] The wording of the judgment is amended to now read:

(a) There is judgment for the plaintiff against the defendant in relation to the following publications alleging:

(i) The plaintiff sexually harassed one or more women other than Rachel MacGregor;

(b) The plaintiff’s claims, save his claims in relation to publications alleging that the plaintiff sexually harassed Rachel MacGregor, are otherwise dismissed.

There have been a number of ugly aspects to these protracted defamation proceedings. They are set to get another airing in court over the next two weeks,

Williams versus Craig in the Supreme Court

The Jordan Williams versus Colin Craig defamation saga reached the Supreme Court this week. Most media must be over this spat as it was largely ignored.

But for those who aren’t over it yet, Asher Emanuel covered it well for The Spinoff – ‘Who do you despise more?’ Jordan Williams and Colin Craig at the Supreme Court

The jury seem to have despised Craig the most, but the trial judge said that tainted their decision.

Here’s the ‘the very abbreviated version” of the background:

Earlier this year an appeal court said that these long-running defamation proceedings had “exposed serious flaws in the characters of both protagonists”, which is also a fair description of the events which led to this week’s Supreme Court hearing.

In the weeks before the 2014 general election, polls showed the Conservative Party to be a genuine prospect to enter parliament. Two days before the vote, Colin Craig’s press secretary, Rachel MacGregor, resigned unexpectedly. The party ended up falling a percentage point short of the threshold required to make it.

After the election, MacGregor told Williams, an acquaintance of hers, that Craig had sexually harassed her. She later filed a claim of sexual harassment with the Human Rights Tribunal, which was settled in mediation with Craig in early 2015. The settlement included a confidentiality agreement and she considered the matter at an end.

Despite promising MacGregor and her lawyer he would keep her story and documents she’d entrusted to him confidential, Williams used the information in what a judge later described as a “campaign” to have Craig removed as leader of the party. Williams told the party board members, informed Garth McVicar of the Sensible Sentencing Trust that he should prepare to fill the party leadership, and authored posts for Whale Oil under the pen name “Concerned Conservative” alleging Craig sexually harassed MacGregor as well as publishing a poem Craig had sent her.

Craig responded by calling a press conference to announce a pamphlet he’d put together about “the dirty politics agenda and what they have been up to in recent weeks”. There had been a campaign of defamatory lies about him, he said. He’d never sexually harassed anybody, claims otherwise were false, and in the next 48 hours he would be suing Jordan Williams, Cameron Slater, and a member of the Conservative Party board member John Stringer for $300,000, $650,000 and $600,000 respectively.

At a cost of $250,000 he had the pamphlet — replete with strange capitalisation, a cartoon and an obviously fictitious interview between Colin Craig and a Mr X (actually also Colin Craig) — sent to 1.6 million homes.

Williams sued Craig, saying Craig had defamed him by calling him a liar and implying Williams was dishonest, deceitful, a serial liar, not to be trusted, and lacking in integrity. Williams won and was awarded $1.27 million, the largest defamation award ever made in New Zealand. (The trial judge did, though, find there was some evidence that Williams had been dishonest and deceitful, and could not be trusted.)

Both Craig and Williams had their reputations tarnished by the trial, but the jury decided that Craig’s responses to Williams’ attacks were excessive.

The appeal court worried that the size of the original award was more about punishing Craig than vindicating Williams’ reputation. Indeed, Craig’s lawyer had said, pretty candidly, that the he thought the jury “hated” Craig.

And Williams’ reputation was not worth $1.27 million.

“The trial process revealed that Mr Williams had accused Mr Craig of sexual harassment against Ms MacGregor but himself harboured offensive attitudes towards women,” the court said, referring to Facebook messages between Williams and Cameron Slater published by the hacker Rawshark and put in evidence by Craig.

“A damages award should restore Mr Williams’ reputation to the status it ought it to have enjoyed if this element of his character was known publicly. The law must be concerned with the reputation he deserved and compensate accordingly.”

Williams won’t have been well known to the general public but many of those who followed politics and ‘Dirty Politics’ are likely to have not rated his reputation highly before his spat with Craig.

And this week the spat reached the Supreme Court.

The precise legal issues involved are particularly technical and arcane — for instance, which elements of the defence of qualified privilege are for a judge to decide, and which are for a jury.

But the essence of each party’s case is simple enough. Williams wants the jury’s verdict to stand, including the enormous damages award. He disagrees with the trial judge’s decision to order a retrial of the whole case, and the appeal court decision that any damages should be far more modest.

Craig, presumably, just wants it all to go away. The jury shouldn’t have taken away his defence. He had been defending his political standing, his lawyer explained. He had retaliated to “protect his reputation as a man, a husband and a father.” Williams, by contrast, was overly hasty, exaggerated his claims, breached various assurances of confidentiality, was uninterested in evidence which contradicted his views, et cetera.

In this case, the privilege Craig relied on is the right to respond to an attack on one’s reputation. Williams attacked Craig, so Craig was entitled to respond. But there are limits. For instance, Craig would lose the defence if he was mainly motivated by “ill will”, including if he didn’t believe what he was saying was true.

Craig’s lawyer said he honestly believed that he had not sexually harassed MacGregor, and that the relationship was close and to some extent reciprocated. The judge’s instructions to the jury made it seem like it was easy for Craig to lose his defence, the lawyer argued.

Williams’ lawyer said Craig knew he sexually harassed MacGregor, he knew his remarks about Williams were false, and the defence was not available to him, as the jury decided.

The lawyers, who must have already cost their clients huge amounts of money, went over all of this over two days in front of five Supreme Court judges.

The outcome will be awaited. The jury’s verdict could be reinstated. A retrial could be ordered, either in whole or just on damages, which retrial could in turn give rise to further appeals, and so on and so on. Unfortunately, the courts cannot substitute their own view on damages unless the parties consent. And agreement to let the court assess damages has not been reached, despite some pleading from the appeals court.

In time a verdict will come out, but that will only determine who this saga will proceed to yet another court.

And that’s not all for Craig. He is still waiting for a verdict on his defamation and counter claim versus Cameron Slater, now well over a year after the trial. perhaps that has been waiting to see the outcome of this saga, as any monetary award would have to add up alongside whatever Williams ends up with being awarded.

And that’s not all for Slater – 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).

It’s hard to see there being any winners out of all of this, financially at least. The cost of taking defamation to court is horrendous, and as Williams and Craig have found out the cost to their reputations can be high as well.

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.