Craig’s poem back in court

Colin Craig is back in court this week, appealing a High Court decision that found his copyright claim on publication of a poem he wrote was vexatious.

Most media seem to have had enough of Craig in court but NZ City covers it:  Colin Craig’s poem lawsuit back in court

Judge Mary Beth Sharp threw Mr Craig’s copyright lawsuit out in December, calling it “vexatious”, “improper” and a “deception perpetrated on the court”.

On Wednesday, lawyers for Craig appealed that decision in the High Court at Auckland, saying a literary work didn’t have to reach “Tolstoy’s standards” to be protected and that there were legal arguments that still needed to be heard.

Lawyer Kevin Glover said the case shouldn’t have been thrown out over a procedural error made by Mr Craig – who failed to file a reply to a document – because he had been arguing the case for himself as a “layperson”.

“Mr Craig should have had a bit more slack cut to him,” he said.

There had been no other agenda behind the lawsuit as found by the judge, Mr Glover said, adding the decision had been “coloured” by media coverage of other legal cases Mr Craig was involved in.

“He has a legitimate claim for infringement of copyright.”

But this claim was opposed.

But Mr William’s lawyer, Peter McKnight, told Justice Mark Woolford the case could not be considered independently of Mr Craig’s numerous other legal proceedings, reading out a long list.

“He’s had his day in court. In fact, he’s had seven-and-a-half weeks,” Mr McKnight said.

And counting. But court decisions aren’t based on quotas. Slater’s  days in court must be clocking up too – most not of his choice, but he has certainly stretched out some procedures.

Mr Slater’s lawyer, Brian Henry, said Mr Craig had chosen to run the case himself and could have easily hired lawyers as he had done in past.

That’s an odd point to pick out. The item concludes:

The hearing continues.

But ‘Whaleoil staff’ state:

The judgement was entered in favour of Mr Craig, who now gets to pursue his copyright claim in a separate court case.

I have no idea why Craig continues with all his legal crusades. he seems to think that his honour is at stake but I don’t think he is enhancing his fairly tattered reputation – the wrecking of which seems to have been the aim of Williams and Slater. They have succeeded, but they didn’t help their own reputations in the process.

Whale Oil is again allowing criticisms and comments against Craig in relation to ongoing court proceedings they are involved in. I think this is unwise, and find it highly hypocritical given their accusations and threats here over the last few days. ‘Albert’ posted “The last few months have been a free for all in your comments against Slater “, which is not true, while they allow a virtual free for all against Craig to continue.

Taxpayers’ Union response to Spinoff apology

Jordan Williams has responded to the Spinoff apology and has demanded answers. There are suggestions of a thick plot here.

Retraction and apology received from the Spinoff

The full retraction and apology by the Spinoff, relating to allegations that were totally false and defamatory, contained in an article by Simon Wilson, and published on the Spinoff website morning, is welcome.

The Spinoff has accepted that the Taxpayers’ Union (including its affiliate the Auckland Ratepayers’ Alliance) and the three people named in the original article had no role in the distribution of feathers. The Spinoff has apologised for making the allegation and rewritten the article.

We want to know how the Spinoff got this so wrong, and why they didn’t even bother to approach us for comment before publishing.  Both organisations operate 24-hour phone lines for media comment. We couldn’t be more available.

The Spinoff is funded by Auckland Council through its “Heart of the City” lobby group.  We want to be satisfied that the Spinoff was not acting pursuant to the Council’s interest in distracting attention from the finalisation of the Council’s budget.

This suggests there could be a thick plot here.

It’s fair to ask how the incorrect accusation came about.

Taxpayers’ Union denies white feathers

Jordan Williams has emphatically denied the Taxpayers’ Union having anything to do with emailing white feathers or sticking them on councillors doors.

It’s not the sort of story someone is likely to dream up, so there’s some explaining to be done – in the first instance by The Spinoff who made the claim on a story.

The Spinoff has been threatened with defamation action.

Taxpayers’ Union: SPINOFF ARTICLE ON “WHITE FEATHERS” TOTALLY WRONG

The Taxpayers’ Union, its founders Jordan Williams and David Farrar, the Auckland Ratepayers’ Alliance, and its spokesperson Jo Holmes, totally reject the allegation made on the Spinoff website today that they have sent ‘white feathers’ (either physically or electronically) to Auckland Councillors or have acted in any unethical way in relation to the Auckland Ratepayers’ Alliance “Ratepayer Protection Pledge” signed by approximately a dozen Auckland Councillors, prior to last year’s elections.

The Spinoff’s publisher and the article’s author have been sent a letter putting them on notice of the defamatory allegation, and unless an apology and full retraction is received prior to 5pm today, advice in relation to filing defamation proceedings will be sought.

Fair enough asking for a retraction and apology, but that’s very heavy handed.

So it’s up to The Spinoff to substantiate or retract.

UPDATE:

UPDATE 2:

The Spinoff has added at the top of their story:

NB: An earlier version of this story attributed the distribution of white feathers to The Taxpayers’ Union, a charge the organisation has since vigourously denied. The Spinoff has since been told that the feathers were in fact distributed anonymously, and accepts that The Taxpayers’ Union had no role in the distribution of the feathers. The story has now been updated to reflect this. The Spinoff apologises to the Taxpayers’ Union, Jordan Williams, David Farrar and Jo Holmes for the error.

And they have updated their story:

First, how nasty can council politics get? Right now, it’s this nasty: councillors who didn’t vote for public consultation on the rates rises have been sent a white feather – as a mark of their “cowardice”.

The Spinoff understands white feathers were anonymously emailed to nine councillors in the form of a certificate, though at least two are said to have received a real feather at their homes.

The strategy comes straight from the playbook of the Tea Party in the US: they don’t bother much with left-leaning politicians, except to abuse them, but prefer to target the centre-right. And it’s predominantly centre-right aligned councillors who are alleged to have received these feathers.

There must be some reason why Simon Wilson at The Spinoff linked the Taxpayers’ Union to the feathers, either in error or he was incorrectly informed. I think an explanation is in order here.

Taxpayers’ Union deliver white feathers – claim

This is looking a bit ugly from the Taxpayers’ Union.

The Spinoff: Threats, legal threats and cowardice: Auckland Council’s budget battle gets nasty

First, how nasty can council politics get? Right now, it’s this nasty: councillors who didn’t accept that the next rates rise should be limited to 2 percent have been sent a white feather – as a mark of their “cowardice”.

The white feathers were emailed to nine councillors in the form of a certificate, by [Deleted – the original post has been edited with an apology for incorrectly linking the taxpayers’ Union to the sending of the white feathers. See Taxpayers’ Union denies white feathers – PG]

The strategy comes straight from the playbook of the Tea Party in the US: they don’t bother much with left-leaning politicians, except to abuse them, but prefer to target the centre-right.

And there are claims it has gone further than emailing.

If true that’s getting quite ugly.

Disagreement and criticism is an important part of politics, but gutless attacks on people’s homes is crossing a dirty line in my opinion.

Even emailing white feathers is borderline at best.

[Update – The Spinoff has accepted they got it wrong about the Taxpayers’ Union being involved and have apologised. This leaves unanswered about who sent the feather emails, who stuck feathers on councillors doors, and why Simon Wilson thought that the Taxpayers’ Union was involved. Was it a false assumption, being given false information or was it a setup?]

Craig versus MacGregor resuming today

Colin Craig will resume his cross-examination of Rachel MacGregor today. It is unusual for someone accused of sexual harassment to be able to personally question the alleged victim.

Pete Belt at Whale Oil said yesterday:

I’m told it is to give Ms MacGreggor a day off to regain some energy and fortitude. Yesterday was not one of the easiest days of her life. Keep in mind she was there against her will in the first place 😦 I’m told she got testy with the judge towards the end of the day as she felt she wasn’t getting much help from the court. Sadly, the prosecution (Mr Craig) gets to ask just about anything and for as long as he wants.

But Belt has previously said that Craig has been given strict instructions about how he can question MacGregor by the judge.

Craig will have had time to review how things have gone and decide how to proceed from here, hopefully with good legal advice. He is up against a very experienced lawyer, as Peterwn at Whale Oil explains:

You can take it that Brian Henry is a master at his trade. He would have a fair knowledge of the personalities and other attributes of the various judges he appears before. Brian is not going to make an issue of something if there is no immediate need and in particular is not going to point out weaknesses in the other side’s case or evidence. He will gain much by merely listening. The fun starts when he makes his closing submission no doubt to a packed court. He will then point out what is hearsay, identify and disputed facts for the judge to consider and argue which he considers correct, pull apart the other side’s claims and substantiate his client’s claims by applying the facts as needed and dealing with relevant points of law. He will aim to make things easy for the judge when he writes up his decision. That is why he is on the case – no client could do this as effectively as he would do it.

If Craig sums up his own case with the same level of expertise he has conducted himself through this whole issue then it looks like a major mismatch, but it will all come down to what Justice Toogood gets out of the evidence and the credibility of witnesses.

It’s difficult to gauge how a case like this is going based on media reports, which tend to cherry pick bits of general interest or what’s good for headlines rather than legal arguments that can often be tedious.

One part of the trial I would have been interested in was a reported one hour questioning of Cameron Slater by Justice Toogood, but that got just a short paragraph in media coverage.

Something that may not be relevant to the defamation but I think would be of interest that I haven’t seen anything about is the timeline of Jordan Williams’ relationship with MacGregor, and what influence he had on what transpired. This is from the judgment on Williams v Craig:

[8] On 19 November 2014, two months after her resignation, Ms MacGregor told Mr Williams, an acquaintance of hers, that Mr Craig had sexually harassed her. She showed Mr Williams the letters and cards that Mr Craig had sent to her. Mr Williams assured Ms MacGregor and her lawyer that he would keep this information as confidential as if he were her lawyer.

 

 

MacGregor gives evidence

Rachel MacGregor started giving evidence in the Craig v Slater defamation trial yesterday. Some odf the details are already known but MacGregor emphasises how she felt about her relationship with Craig.

NZ Herald: Rachel MacGregor gives evidence in Colin Craig v Cameron Slater defamation trial

Colin Craig’s former press secretary Rachel MacGregor says despite the politician’s “dodgy poems”, shoulder massages and “sleep trick” she felt she was forced to stay in the job.

She said during her time at TVNZ she had put up with “inappropriate males”, but that Craig’s mention that the cut of her top was too low, followed by a letter, made her feel uneasy.

She said she outlaid her concerns and the pair talked of setting professional boundaries.

“As we know with Colin Craig he likes to do things in a weird way, a kind of quirky way.”

She thought the pair had a “good working relationship” after the boundaries were established, before Craig “had gone and broken them”.

She told the court she was curious to see what Craig had written but “was really offended” by the “really bad poems”.

“It was awful actually, especially because he was going into detail about me physically, it was really disgusting.”

Just days before her resignation, while on a flight from Napier to Auckland on September 14, 2014, Craig claims MacGregor said: “You know me better than anyone, Colin … I want to be more than just your press secretary”.

“I absolutely guarantee you that I never propositioned Mr Craig for me to be anything more than his press secretary … it is very convenient for Mr Craig’s story,” MacGregor said.

Henry asked MacGregor about an incident on election night in 2011, when Craig kissed MacGregor and touched her breast.

MacGregor said she stopped the incident and “lost faith” in Craig.

“I thought that he was trustworthy, but I lost a lot of trust in him,” MacGregor said.

“I still wanted to keep my job, the car that I [drove], Colin owned … I had to keep my job to stay afloat really.”

Craig will cross-examine MacGregor today.

In the meantime MacGregor has spoken out about how media has treated her at The Wireless in Rachel MacGregor has had enough of the media’s bullshit

Since it began last week, the Colin Craig trial – in which he and Whale Oil’s Cameron Slater are suing each other over defamatory statements each said the other published about them – has quickly replaced the Eminem v National fiasco as the nation’s favourite silly trial.

It is easy to see how the case has become the focus of such schadenfreude: the men are seen by many as repugnant, the poems are ridiculous and there is entertainment to be had.

It’s been three years since she left her job as press secretary to then-Conservative Party leader Colin Craig, alleging that in during her time working for him she had suffered ongoing sexual harassment. Craig denied the allegations.

Rachel MacGregor has not found it so funny.

It’s been three years since she left her job as press secretary to then-Conservative Party leader Colin Craig, alleging that in during her time working for him she had suffered ongoing sexual harassment. Craig denied the allegations.

Slater published documents and articles alleging the claims were correct and the pair have been fighting about it ever since.

During those three years, MacGregor’s efforts to put the incident in the past have been repeatedly thwarted, and as Craig’s many litigious issues play out in court and in public she has become a reluctant recurring figure in the media.

The Craig and Slater trial is yet another block in the road.

And MacGregor complains about how some of the media has covered her involvement, and specifically complained about a semi-satirical piece in NZ Herald (which has had an odd way of covering the current trial)..

Bound by a confidentiality agreement with Craig, MacGregor feels she’s “essentially been gagged”- leaving media outlets free, it seems, to editorialise her role in a case of creative licence not generally associated with the news media.

She tries to address her concerns without breaching the confidentiality agreement

Braunias in particular seems to have chosen to run with the narrative of a consensual relationship describing Craig’s “unholy lust” for MacGregor with whom he had been “formerly in a relationship that started with a kiss and never actually went any further”.

Huh? As Cameron Slater said of the relationship in court on Friday (and you know things are bad when you’re quoting Cameron Slater) “there was no evidence at all, and there still is no evidence that it was reciprocated in any way”. Since when were sexual harassment victims fair game for satire?

While MacGregor is unable to comment on her relationship with Craig, the tone of the satire has disturbed her.

“It’s absolutely misrepresenting me, and it’s making a joke out of an issue that’s actually very serious.”

And difficult for her to address.

From the outside it seems like a kind of purgatory – both central and peripheral to a highly public, and somehow neverending series of disputes, she has somehow found herself cast as a plot device, her humanity and agency long since forgotten in this war between dreadful men.

The men involved in this case and in Williams v Craig – Colin Craig, Cameron Slater and Jordan Williams – have been guilty of some dreadful behaviour. This has been revealed in their arguments over defamation, with MacGregor caught in the middle, gagged.

“Unfortunately, this story does involve me to quite a large degree,” she tells me. “Even though the court case itself is not about me, it unfortunately is about me, if that makes sense.”

Though her own case with Craig has been through the Human Rights Tribunal, neither party are permitted to discuss the particulars of the case due to a confidentiality agreement (a clause Craig was found to have breached by speaking about her in media interviews).

MacGregor has kept her end of the deal – something which has left her open to speculation and judgment.

One way or another, women who report their abusers rarely go unpunished. MacGregor’s ordeal is a startling reminder that, when given the chance, the old guard media are ready and willing to partake in that punishment.

It is telling that, in a society now entirely familiar with the concepts of rape culture and victim blaming, we are so keen to sidestep Craig’s alleged actions, while projecting an assumed narrative on such a complex and troubling situation.

One could argue that the target here is Craig’s inherent strangeness – those are some pretty wack poems after all. But by choosing to find him ridiculous we run the risk of normalising what may have been reprehensible actions while also re-victimising MacGregor. Without knowing the full detail of the Human Rights Tribunal case, we just don’t know.

“I guess my message is, please take what you read with a grain of salt and try to understand the context in which it’s been written,” she says.

“Until you have the facts, just withhold judgment and try to think about this a little bit more deeply than just having a laugh about it.”

Most of us will are unlikely to know all of the facts.

As far as I’m aware she hasn’t chosen to be involved in these public legal spectacles. In Williams v Craig she made it clear to Williams she didn’t want anything revealed or published.

I have posted this to give MacGregor more of an opportunity to air her views, albeit limited by the confidentiality agreement.

I won’t allow this to be used as an opportunity to promote agendas, or to make one-sided or unfounded claims or claims based on confidential information, or to attack or criticise MacGregor personally.

Williams appealing defamation decision

Jordan Williams has announced he is going to appeal the judgment to set aside the jury decision in the defamation case Williams v Craig, saying he doesn’t want witnesses to have to go through a new trial and an appeal is “the best way forward”. His other option was to walk away with nothing but a huge legal bill.

In general for the public I think this is a good path to take, as the Court of Appeal will help clarify issues of defamation and of appropriate awards.

In September 2016 a jury awarded Williams a total of $1.27 million having found that he was defamed on two counts by Colin Craig.

On count one, the jury ordered $400,000 be paid in compensation caused for the injury to Williams’ reputation and feelings and $90,000 in punitive damages for Craig’s “flagrant disregard” of Jordan’s rights.

On count two, they ruled Craig pay $650,000 in compensation and $130,000 in punitive damages.

At the time Nick R (a lawyer) commented at Kiwiblog:

Court of Appeal can reduce any award of damages it considers to be manifestly excessive. It has done so before for jury awards in defamation cases. The CA has previously indicated that damages in defamation cases in NZ should be modest in the absence of evidence of actual pecuniary loss. That’s why I expect them to reduce this award, potentially by quite a lot.

Immediately following the verdicts Craig’s counsel requested that Judge Katz defer entering judgment as they intended applying to have the jury’s verdict set aside, so the judge deferred entering judgment.

Craig’s counsel subsequently applied to have the verdict set aside, and six months later, on 12 April 2017, Judge Katz delivered a judgment ruling that the damages awards were so high that they constituted a miscarriage of justice.

[109] …I am satisfied that the damages award is well outside the range that could reasonably have been justified in all the circumstances of the case. The consequence is that a miscarriage of justice has occurred. The jury’s verdicts must therefore be set aside and a retrial ordered, unless both parties are willing to consent to my substituting a new damages award in place of the jury’s award.

Result

[112] The parties are to file memoranda by 3.00 pm on Wednesday 26 April 2017 advising whether they consent to the Court substituting its own award of damages for the jury’s award, pursuant to s 33 of the Act. If confirmation is not received by that date that both parties consent to such a course, then I order that the jury’s verdicts be set aside and the proceedings be set down for a re-trial on the first available date that is convenient to senior counsel.

Craig immediately indicated he would not consent to the Court substituting it’s own award of damages, and it has now been confirmed that he has advised the court that he wouldn’t consent, and Williams put out a press release saying he didn’t want another trial, but would instead appeal Judge Katz’s judgment.

Statement from Jordan Williams

Lawyers for Jordan Williams are appealing the judgment setting aside last year’s jury verdict in the Williams v Craig defamation proceedings.

Mr Williams says, “Colin Craig argued that the jury’s damages award was too high. The judge agreed but the High Court is only able to reset the damages if both parties agree.”

“Last week Colin Craig’s lawyers told Justice Katz that Colin Craig was not willing to have her determine the damages; they want a full retrial.”

“I don’t want Rachel MacGregor or my mother or any other of my witnesses to have to go through it all again. The jury made clear findings. At every stage Mr Craig has wanted to stretch things out. We have no assurance he would not appeal after a new trial. So an appeal now could get to the key issues directly. It is the best way forward.”

It probably is the best way forward for Williams, but it has risks.

A new trial would presumably mean that there was no way that Williams could recover any costs from the first trial, and a new award would likely be significantly lower given Judge Katz’s judgment. Williams’ counsel would have had to seriously consider claiming significantly lower damages to avoid a repeat of the first trial.

NZ Herald have reported a response from Craig in: Jordan Williams appeals to try to avoid retrial in Colin Craig defamation case

Craig said Williams had every right to appeal, but he believed a retrial was the right way forward.

He said Justice Katz’s decision said a miscarriage of justice had occurred so he was not willing to accept the jury’s decision he had defamed Williams.

But Judge Katz said that the miscarriage of justice was due to the damages award being “well outside the range that could reasonably have been justified in all the circumstances of the case”, the Judge did not reject the jury’s decision that Craig had defamed Williams.

[110] In relation to Mr Craig’s second ground of challenge to the jury’s verdicts, I reject the submission that there was no evidence, or insufficient evidence, to support the jury’s finding that he had lost his qualified privilege…As a result, there is no basis for entering judgment in favour of Mr Craig (as opposed to ordering a retrial).

So on to an appeal. The Court of Appeal is limited on what it can rule on, I think just on points of law in the judgment. So presumably Williams will ask for the setting aside to be overruled. I don’t know if the amount of damages can be changed on appeal, or if it’s an all or nothing situation.

Judge Katz took months before delivering her Judgment, and is likely to have anticipated a likely appeal, so is likely to have taken a lot of care in her Judgment. That doesn’t rule out having made a mistake in law, but it may narrow the grounds for appeal.

In the meantime there is one other matter from her judgment that I don’t know if it is still relevant or not, costs.

[113] This outcome is likely to raise some difficult costs issues. Leave is accordingly reserved to file costs memoranda in relation to both the trial and the present application, if costs cannot be agreed. Any memorandum on behalf of Mr Williams is to be filed by 5 May 2017. Any memorandum on behalf of Mr Craig is to be filed by 19 May 2017. Counsel are to indicate in their memoranda whether a hearing is sought in respect of costs.

I have no idea what can or may happen with this, given the verdict has been set aside. Perhaps we will find out next month. Or perhaps it will have to wait for the outcome of the appeal.

The Judge Katz decision: http://www.courtsofnz.govt.nz/cases/williams-v-craig/@@images/fileDecision

Difficulties for Williams

A damning post by Peter Aranyi on the Judge’s setting aside of the jury award of ‘excessive damages’ in the Jordan Williams v Colin Craig defamation case: About that Jordan Williams damages award…

This highlights how damning Judge Katz’s ruling was.

Williams nor has some difficult decisions to make. Craig has indicated that he won’t agree to allowing the judge to determine damages, so this leaves three options (that I can think of):

  • A new trial
  • Walk away
  • Appeal Judge Katz’s ruling

Williams and his legal team have incurred large costs that I presume cannot be claimed off his opponent in the trial already held, unless Craig agrees to the judge deciding damages (he understandably doesn’t agree to that) and also costs, or if Williams wins an appeal and gets a substantial damages award plus costs.

If the new trial option is taken then I presume no costs can be sought on the case that has been set aside, so Jordan has an unrecoverable big bill before he starts a new case.

In a new trial a number of claims by Williams can’t (surely) be repeated after Katz pointed out that they were false and that Williams had lied.

So a new trial would have less material to claim on.

And Judge Katz has set a benchmark indication of appropriate costs that are far less than what the last trial jury awarded.

There’s a chance that Williams would lose altogether. Or he could win small – and not get anything like a recovery on his costs over the two trials.

Obviously walking away would also be costly for Williams.

He and his legal team have some decisions to make. The risks of losing are higher, and the chances of coming out ahead financially are doubtful.

And Williams’ reputation has been severely damaged, more so from his own actions than Craig’s.

I expect he will be watching Craig V Slater with interest – and possibly trepidation – before making a decision on what to do.

Dirty politics may have succeeded in killing off Craig’s political ambitions, but it has also resulted in self inflicted wounds on Williams too, in both the political and legal worlds.

Would another Hagaman trial be conclusive?

The defamation case taken by Earl and Lani Hagaman against Labour leader Andrew little ended in a very inclusive verdict.

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.

Lani Hagaman has indicated that they would like to have a new trial to sort out the uncertainties over the case and over qualified privilege generally, but that may be dependent on a very sick Earl living long enough.

And NZ Herald editorial says Andrew Little’s defamation action has resonated

Judges and philosophers would struggle to resolve the conflicting principles that faced the jury in the defamation action brought against the Labour Party leader, Andrew Little, by donors to the National Party, Earl and Lani Hagaman.

The jury had to decide not just whether the Hagamans’ reputation was damaged but if so, whether Little’s comments were permissible for someone in his public position. In other words they had to decide which was more important: a person’s right to be recompensed for a false personal slight, or the ability of MPs to raise matters they believe to be in the public interest.

Add to that what responsibilities are involved for politicians.

Something has come out of the inconclusive case so far.

By taking the case as far as she has, Lani Hagaman has stood up strongly for her scruples and those of her ailing husband. She has received a fulsome public apology from Little on the witness stand.

The Labour leader, and perhaps others who are too quick to suppose political donations bring material rewards, ought to be chastened by the lengths the Hagamans have gone to defend their good name.

It is to his credit that he accepted the costs of defending the case and the possibility of damages he might not have been able to afford without mortgaging his home.

It’s difficult to judge what impact the case has had on Little politically. He has been criticised and also supported.

The case has left open the possibility his comment could even be permissible under the privileges of Parliament. MPs have an absolute privilege when speaking in the chamber to impugn the reputations of individuals outside at no risk of a defamation suit. When their words are reported outside the chamber they carry the same privilege on condition the report is accurate and published in the public interest, not malice. Little invoked that “qualified privilege” for his comments outside the House.

The jury has not rejected his defence out of hand. If the Hagamans go back to court for a conclusive ruling, a jury could give MPs greater licence to speak outside Parliament in the public interest.

A jury could give MPs greater license to speak without legal risk, but a different jury could clamp down on loose political lips too.

Given the indecision of this jury, and the setting aside of the excessive award by a jury in the Jordan Williams v Colin Craig case, and the ruling by a judge that the Colin Craig v Cameron Slater trial would be judge-alone, if the Hagamans get to court again their may be no jury involved.

A judge-alone decision is probably the only way of getting a conclusive legal ruling.

This could be tested to an extent next month in Craig v Slater, but Craig used a different type of qualified privilege for his defence in Williams v Craig, the right to ‘ counter-punch’, or to fight back against attacks on him by Williams.

So that will be limited to the lengths people can legally go in waging general political attacks.

If Earl Hagaman dies before going to trial we may not get a conclusive ruling on how protected politicians are against ‘collateral damage’ from them attacking the Government with unfounded accusations.

Williams v Craig – the ‘Dirty Politics’ connection

On 12 April 2017 Judge Katz J delivered a judgment in the defamation case brought by Jordan Williams against ex leader of the Conservative Party Colin Craig.

Judge Katz put aside the jury award of a record amount of damages of $1.27 million, ruling that it was excessive and would have amounted to a miscarriage of justice.

Unless Williams decides to walk away from the case it looks like it will have to go to another trial.

The full decision is here (PDF, 528KB)

Law Professor Andrew Geddis has a good summary of key legal points here: How to lose when you win. This explains Judge Katz’s reasoning well.

However Geddis avoids naming a person and a blog closely involved in the case – Cameron Slater and Whale Oil. Judge Katz describes how Williams used both to attack Craig, which prompted Craig’s retaliation that the jury ruled ill willed enough and/or took improper advantage of the occasion.

So I’ll have a look at the blogging aspects aspects of the case and connections made to Dirty Politics that are mentioned in the judgment.

Some background:

[16] Ms MacGregor appears to have had little or no knowledge of what Mr Williams was doing. However, she had, by this time, become suspicious that Mr Williams may have taken copies of the letters Mr Craig had sent her, which she had stored in his office safe. On the morning that Mr Williams was scheduled to meet with Messrs Day and Dobbs she sent him an email requesting that he return the letters to her. She further stated in her email:

Do not copy them. I do not want them to be used against Colin. I want this whole thing to go away and for there to be no more trouble.

Mr Williams disregarded Ms MacGregor’s request.

[17] Mr Day met with Mr Craig on 19 June 2015 (the morning after he and Mr Dobbs had met with Mr Williams) and told him what an “informant” had told them. Mr Craig, by this time, was fairly sure who the informant was. Mr Craig agreed to stand down to enable the Board to undertake a full investigation of the issue.

Slater and Whale Oil get involved.

[18] That same morning Mr Williams, using the nom de plume “Concerned Conservative”, sent a draft blog post to blogger Cameron Slater for publication on the Whale Oil website. The draft blog post made allegations against Mr Craig of sexual harassment, a pay-out to a former staff member, and inappropriate touching. Mr Williams attached (without Ms MacGregor’s knowledge or consent) a photo of a poem Mr Craig had sent to Ms MacGregor, entitled “Two of Me”, and a photograph of Mr Craig’s signature at the bottom of a letter to Ms MacGregor.

[19] The Whale Oil website published the blog post immediately prior to (or possibly simultaneously with) a press conference called by Mr Craig to announce he was stepping aside. Over the course of the next three days, Whale Oil published a number of further articles containing allegations about Mr Craig and speculating about the leadership of the Conservative Party. Mr Williams was involved in instigating or drafting most of that material. These actions contributed to (but were not the sole cause of) what was described at trial as a subsequent “media firestorm.”

Those familiar with Whale Oil may recognise this modus operandi – providing Whale Oil with material that is either posted anonymously or under the authorship of ‘Cameron Slater’ as part of a sustained campaign against someone.

Similar tactics were described in Nicky Hager’s 2014 book Dirty Politics, including involvement of Williams with Slater, and the use of Whale Oil.

[20] On 29 July 2015 Mr Craig called a press conference, during which he read out the Remarks to the media. The Remarks included a number of statements about a group referred to as the “Dirty Politics Brigade”, identified as including Mr Williams, Mr Slater and Mr Stringer. Some of the key passages from the Remarks (with the words Mr Williams specifically complained of in italics) are as follows:

Today is a good day because this is the day we start to fight back against the Dirty Politics Brigade who have been running a defamatory strategy against me.

The first of the 2 major announcements today is the publication of a booklet that outlines the dirty politics agenda and what they have been up to in recent weeks. There is a copy here for each of you to take away after the statements today.

Although I was broadly aware of the dirty politics agenda, I have after all read Nicky Hager’s book, I had not expected to have such close and personal attention from them.

In our booklet we reveal that there has been a campaign of defamatory lies to undermine my public standing, a campaign that in the Dirty Politics Brigade’s own words they describe as a “strategy that is being worked out”. I shall briefly cover some of their lies so you have a taste of what the booklet contains.

The first false claim is that I have sexually harassed one or more persons. Let me be very clear, I have never sexually harassed anybody and claims I have done so are false.

The second false claim being bandied about by the Dirty Politics Brigade is that I have made a pay-out (or pay-outs) to silence supposed “victims”. Again this is nonsense. Take for example the allegations around my former press secretary. Let me be very clear, the only payment I have made to Miss MacGregor since her resignation is an amount of $16,000 which was part payment of her final invoice. It was a part payment because I disputed her account which I had every right to do. Claims of any other amounts being paid and especially the suggestions of large sums of hush money being paid are utterly wrong and seriously defamatory.

Again in a similar vein is the false allegation that I have sent sexually explicit text messages or “SEXTs” as they are known. Once more this is not true. I have never sent a sexually explicit text message in my life.

We identify in the booklet 3 key people in the campaign against me. Each of these will be held to account for the lies they have told. Formal claims are being prepared and I expect these persons will have formal letters from my legal team within the next 48 hours. Due to the serious, deliberate and repetitive nature of the defamatory statements I will, for the first time, be seeking damages in a defamation claim.

The first defamation action is against Mr Jordan Williams. I will be seeking damages from him of $300,000.

The second defamation action is against Mr John Stringer. I will be seeking damages from him of $600,000

The third defamation action is against Mr Cameron Slater. I will be seeking damages from him of $650,000.

Today the line is drawn. Either the dirty politics brigade is telling the truth or I am. The New Zealand public need certainty about the truth of these claims. This is about who is honest. Is Colin Craig telling the truth or is it the Dirty Politics Brigade. Let the courts judge this matter so we know whom to trust.

[21] The Leaflet was made available at the press conference and subsequently distributed nationwide to letterboxes. Key passages included the following (the words of specific complaint are again emphasised):

We are a nation that believes in a fair go. We want our referees to be fair and every game to be played in a sportsmanlike way. We do not like corrupt people, and honesty is one of our core values. We must therefore reject the “Dirty Politics Brigade” who are seeking to hijack the political debate in New Zealand.

This booklet details the latest action by the Dirty Politics Brigade, this time in an attack on Conservative Party leader, Mr Colin Craig. […]

Williams is a well-known member of the Dirty Politics Brigade having already been identified in the “Dirty Politics” book as “acting as an apprentice to … Slater”. He is a lawyer and currently works full time as a political lobbyist.

It was Williams who gathered the initial information and accusations against Craig. His source was Craig’s former press secretary Rachel MacGregor with whom Williams had a romantic relationship.

Using the information he had gathered, Williams built a compelling story of MacGregor’s alleged harassment which he supported by an “attack dossier” of information. His presentation of events was in part her story (as he says she told it to him), some personal notes by MacGregor regarding the matter, and selected details of alleged correspondence from Craig to MacGregor.

The allegations presented by Williams included claims that (a) Craig had sent MacGregor “SEXT” messages, (b) MacGregor had resigned due to harassment but was lured back by big money, and (c) Craig stopped paying MacGregor for 6 months and put sexual pressure on her with requests she stay the night.

These are false allegations and easily proved so. Sexually explicit texts, resignations, and invoicing/payment records are by nature documented events.

Once Williams had put together the “attack dossier” he provided the details to Cameron Slater [Whaleoil] which ensured that there would be a media agenda at work against Craig.

Williams however did not stop there. He also had confidential meetings/discussions with people including some of Craig’s key supporters and Board members. In these “confidential” discussions Williams would attack Craig’s character undermining support for him. Williams was always careful that Craig did not know of the meetings, that no copies of the supposed “evidence” were taken, and that his [Williams’] involvement was kept secret.

Later the judge details examples of where Williams was not successful in his claims, with a number of things proven to be true (and therefore not defamatory).

[53] In my view the fact that the jury awarded the full amount of damages sought by Mr Williams strongly supports the inference that the jury must have concluded that Mr Williams was entirely successful in his claim, or almost entirely successful. He was not. Several of the defamatory imputations he pleaded were proved to be true at trial. For example, the allegation that Mr Craig had sent sext messages to Ms MacGregor was a key plank of Mr Williams’ attack on Mr Craig’s reputation. Mr Williams pleaded that Mr Craig defamed him by saying that he (Mr Williams) had lied when he told people that Mr Craig had sent sext messages to Ms MacGregor. The undisputed evidence at trial, however, was that Mr Williams did tell a number of people that Mr Craig had sent Ms MacGregor “sext” messages and that this was not true. This information had a significant impact on those who heard it and was a key factor in the pressure on Mr Craig to step down as leader of the Conservative Party.

[54] It was open to the jury to conclude that, initially at least, Mr Williams may have been mistaken as to the existence of sext messages from Mr Craig to Ms MacGregor. The over whelming weight of the evidence at trial was inconsistent with any continued mistaken belief, however, as pressure mounted on Mr Williams to produce evidence of the sext messages, which he was unable to do. Further, Mr Williams told at least one witness that he had seen copies of sext messages, when he had not.

[55] Mr Williams also pleaded that Mr Craig had defamed him by saying that he (Mr Williams) had lied by falsely alleging that Mr Craig had made a pay-out (or pay-outs) of large sums of money to silence Mr Craig’s victim(s) of sexual harassment. The evidence established that Mr Williams did tell people that Mr Craig had paid large sums of money to settle Ms MacGregor’s sexual harassment claim. Mr Williams acknowledged, however, that he knew that any settlement sum was likely to be small, not the large figure he had mentioned.

[56] There was also undisputed evidence at trial that provided at least some support for a number of the other defamatory imputations pleaded, such as imputations that Mr Williams had been dishonest, deceitful, and could not be trusted.

Examples of undisputed evidence at trial that supported such imputations included

  • Mr Williams’ admitted breach of his undertaking to Ms MacGregor to keep her information and documents as confidential as if he were her lawyer,
  • his disclosing of her confidential documents to Messrs Day and Dobbs within hours of Ms MacGregor requesting their return,
  • his lying to Ms MacGregor about going to Hamilton to meet with Messrs Day and Dobbs,
  • his claims that he had seen copies of “sexts” from Mr Craig to Ms MacGregor when he had not,
  • his creation of the nom de plume “Concerned Conservative” to provide confidential information and a draft blog post to Cameron Slater for publication on the Whale Oil website,
  • and his subsequent denials to Ms MacGregor when he was confronted regarding this.

[Paragraph separated into points – Ed]

That list isn’t very complimentary about Williams’ behaviour and trustworthiness.

It shows how Whale Oil was used in a similar way as described in Dirty Politics. More may be revealed about this in the Craig v Slater defamation case due to be heard in a judge-alone trial set down for next month.

One interesting point – “…as pressure mounted on Mr Williams to produce evidence of the sext messages, which he was unable to do. Further, Mr Williams told at least one witness that he had seen copies of sext messages, when he had not. ”

I think there has been a number of claims made on Whale Oil in relation to this and in relation to Dirty Politics of evidence that I believe has never been produced.

And it reminds me of another sustained campaign at Whale Oil to oust a politician – just after the 2013 local body election when Len Brown was re-elected mayor of Auckland. At one stage claims were made that there was evidence of ‘lewd text messages’ sent by Len Brown.

That actually resulted in a post at 2:30 pm, 15 October 2013 – EXCLUSIVE: Len Brown’s lewd text messages – that showed some texts claimed to have been sent by Brown. I think there may be doubt about that they were written by Brown (note that I have no reason to believe that involved Williams at all, someone else with some history of fabricating evidence trying to hide their identity could have done that).

In December 2013 Whale Oil post Sex Sells that was listed that as third on a list of their top 50 posts for the year. This post included this image:

cartoo1

Since then Slater (or posts under his name, there’s no guarantee who wrote them) has kept bragging about being dirty and has promised to carry this on in 2017.

screen-shot-2016-12-12-at-9-52-14-pm

Still (as of now) on Whale Oil on Twitter:

whaleoiltwitter2

Coincidentally or not this post appeared at Whale Oil yesterday:

Whaleoil Code of Ethics? You’re kidding, right?

by Pete

Our critics would have you believe that it is a free-for-all in blog land, and that we destroy lives at will and without any sense of restraint.

When I started helping out with Whaleoil some years ago, I had to decide where I was going to draw the line.  And where I ended up drawing it is exactly the same as the way Cam operates.

I suspect that line but be drawn a bit more carefully over the next couple of months. The ongoing promotion of ‘Dirty Politics’ as what they are might not help in several possible court cases that I can think of.

Our interest does lie with news and current affairs.  If you are the subject of our attention, it may feel intense and extremely personal.  But if it was personal, we wouldn’t stop when you stop.

An example would be Colin Craig.  His public and private dealings were intensely followed due to his unorthodox political style.  This was then exacerbated as stories developed around him such as his press secretary quitting 2 days before the election.  And his subsequent media appearances, publications and court appearances have kept him “on the field”.

Yet Colin is no longer offering himself to the public as a public servant to be elected.  So our attention has pretty  much gone away.   Apart from the court cases, which are of personal interest to us, we don’t really talk about Colin anymore.

That’s not how it has sounded at WO, but they have to be careful what they say now because of pending court cases.

What we are doing now, is having a hard look at the new leader of the Conservative Party, his strategies, communications and background.   To the new leader, this may appear quite personal.  But it is clear Whaleoil was never personally interested in Colin Craig.  Because our attention shifts along as Colin has, for now, left politics.

I know for a fact that Whaleoil has changed lives.  Bringing things to the public’s attention has destroyed careers.  Marriages.  Businesses.  Relationships.

How do we sleep at night?

We sleep because we know that we didn’t make the mistakes.  We simply bring them to the public’s attention.  And we sleep because as soon as the person withdraws from the public eye, we move on too.

That’s an odd way of making excuses for destroying people’s careers.

And given what Judge Katz has written “we know that we didn’t make the mistakes” looks like it should be treated with scepticism, if not scorn.

As Judge Katz said the defamation trial found evidence that Williams disguised his identity on Whale Oil and supplied material for Slater to post in a sustained attack against Craig and the Conservative Party.

When I see a familiar looking political activism post on Whale Oil some of the first things I wonder are a) who actually wrote it or supplied the material to be written up, b) is this part of a wider campaign against someone and b) is there money involved?

Whale Oil still fills an online niche for people who like their style and content, but if they keep promoting a dirty style of political activism they will struggle to be seen as serious or credible media.

And most people with any ambition in politics will not want to be associated with the Dirty Politics gang at Whale Oil.