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

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

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

Newsroom: Lawyer: Let me off Whaleoil case

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

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

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

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

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

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

The judgment yesterday details the latest court saga:

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

The proceeding

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

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

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

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

The state of play up until this judgment:

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

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

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

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

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

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

And to the end.

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

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

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

Mr Slater’s medical condition

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

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

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

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

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

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

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

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

He’ll be back if he chooses to be.

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

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

Bloody amazing man.

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

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

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

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