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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He has no idea if he deleted them?

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

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

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

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

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

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

“Yes”.

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

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

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

Salmon: “In your own time?”

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

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

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

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

Sellman, Swinburn, Bradbrook v Slater, Graham, Rich

Stuff: Whale Oil blogger, former MP, and PR specialist could face jury

Blogger Cameron Slater, Food and Grocery Council head Katherine Rich and PR specialist Carrick Graham have failed in a bid to get a defamation claim thrown out of court.

The case was brought by public health professionals Dr Doug Sellman, Dr Boyd Swinburn and Shane Bradbrook, who alleged they had been defamed in a series of blog posts on Slater’s Whale Oil blog, and comments Graham allegedly left on the posts.

They also alleged Graham had organised the posts’ publication and authored one of them himself, and Rich – a former National MP – and the New Zealand Food and Grocery Council had paid Graham for his services.

The case was prompted by allegations made in Nicky Hager’s 2014 book Dirty Politics.

In a decision released this week, the High Court at Auckland declined the defendants’ bid to have the case struck out.

They had argued the case was filed too late as it was brought more than two years after the first publication of the statements.

However, Justice Matthew Palmer said as the statements were still available on Slater’s blog, they had, in effect, been published multiple times.

This is an interesting and important ruling.

[40] In relation to defamation proceedings Parliament reconfirmed in 2010 that a standard limitation period of two years is appropriate – less than for other claims. That reflects a policy that a person who has been defamed ought to take legal steps to vindicate his or her rights relatively quickly after the defamation has been published, or after he or she reasonably becomes aware of its publication. That may be two years after a blog is first posted. But if the blog is still up on the web, and the publisher cannot show the post has not been accessed in the past two years, I see no reason why a defamed person should not be able to sue for the continuing publication of a blog in order to vindicate their reputation. Accordingly, I consider the multiple publication rule is the law in New Zealand.

So a blog post is an ongoing publication. This must surely also apply to news items posted online by media, as well as tweets and comments in social media like in Facebook.

The judge also found that what Slater claims is ‘colourful language’ is potentially defamatory.

[85] Third, I consider the terms “trougher”, “rorter” and “ripping off”. Where these terms are used in the statements complained of here, the plaintiffs plead that, in its natural and ordinary meaning, the statement means and has been understood to mean, that the relevant plaintiff “has misused public funds”, “has misappropriated public funds”, and “has used public funds for his own benefit, to ‘enrich’ his own life and not in the public interest”. The defendants offer more innocuous meanings, as noted above.

[86] I consider an ordinary reasonable person would understand references to “troughing” and “troughers” to have connotations going beyond the meaning of being funded publicly. The same is true of “rort” and “rorter” and “ripping off”. I consider the ordinary reasonable person, with the attributes identified by Blanchard J, would infer those terms to carry a pejorative connotation of wrongdoing in the use of funding; being, in some sense, morally or legally illegitimate.

[87] These terms do not take their meanings only from the tone or adjectives that
qualify them. And their meanings are not altered by, or an ordinary part of, a context of the robust political debate. The dictionary definitions suggest “rorter” and “rip-off” may have a more fraudulent connotation than “trougher”. Rort, for example, can support a meaning of fraudulent or dishonest. For each, a derogatory meaning is part and parcel of the ordinary meaning of these terms in New Zealand. That seems likely to be why they were used. The reader is likely to think worse of their subject, in a more than minor way.

I think that has often seemed to be the intent of whoever writes and posts at Whale Oil.

[89] The terms “trougher”, “rort” and “rip-off” are capable of bearing the meanings alleged by the plaintiffs here, in the specific passages identified in the annex. Whether they are, here, is a question for trial.

So the applications to strike out were denied.

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.

[126] I am inclined to let costs lie where they fall, since each party has had a measure of success.

[127] Because this proceeding could be the subject of a jury trial, and it is important the jury’s minds not be prejudiced, as the parties requested, the contents of the allegations in pleadings should not be publicly reported. The contents of the allegations are largely contained in the table annexed to this judgment.

So another defamation trial looks likely for Slater, this time accompanied by Graham and Rich.

The full judgment: https://www.courtsofnz.govt.nz/cases/sellman-ors-v-slater-ors/@@images/fileDecision?r=352.466892743

More from Newsroom: Whaleoil, ex MP, PR man to face jury trial

It will be interesting to see whether a Court accepts claims that Whale Oil has been used to attack people for payment, as claimed by Nicky Hager in ‘Dirty Politics’.

However it may not be ready to go to trial yet.

[123] Prior to the hearing I had directed the parties to propose further timetabling directions for the substantive hearing. The defendants indicated they would seek a stay pending the outcome of any appeal of this judgment, if the strike-out applications were declined. The plaintiffs indicated they would press for their proposed timetable to be ordered.

This is just one of a number of cases considering the use of Whale Oil as an attack blog.

Whale Oil was integral to the defamation case between Jordan Williams and Colin Craig. This initially resulted in a record jury award against Craig, but that was quashed by the trial judge and a retrial may be forthcoming.

Slater is also waiting for the judgment in the related defamation cases between him and Craig.

There is another case involving Slater and Whale Oil that is presumably ongoing. A judgment in July:

[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.

This case has taken a long time.

[26] The primary reason why the case has taken so long to get to trial is the need to resolve an important question of law about whether s 68(1) of the Evidence Act 2006 (protection of journalists’ sources) applied to a blogger such as Mr Slater. That question was first addressed by the District Court in a judgment given on 26 September 2013 by Judge Blackie It was the subject of Asher J’s judgment on appeal. Subsequently, Mr Slater applied for leave to appeal to the Court of Appeal. An application to adduce further evidence was dismissed on 19 November 2015. Ultimately, on 17 May 2016, the substantive application for leave to appeal was abandoned.

[27] In the meantime, there were also contempt applications brought by Mr Blomfield in respect of alleged breaches of an undertaking by Mr Slater not to publish certain material relevant to the proceeding. Those applications were dealt with in two judgments given by Asher J on 10 February and 18 February 2016.

Slater’s application to strike out the proceeding was also struck out.

Judgment: https://forms.justice.govt.nz/search/Documents/pdf/jdo/d4/alfresco/service/api/node/content/workspace/SpacesStore/1f0d30c0-f211-43f2-840a-00b90faf848d/1f0d30c0-f211-43f2-840a-00b90faf848d.pdf

In yet another legal action involving  Slater and Whale Oil and also Carrick Graham to attack people: Lawyer Jeanne Denham who tried to destroy ex-husband Peter Clague’s career suspended

Denham was found guilty of misconduct earlier this year over her decision to pursue a private prosecution of Clague for assault which the judge called an “abuse of process”.

She also conducted an elaborate PR campaign against both her ex-husband and Kristin School, with the assistance of controversial PR man Carrick Graham and blogger Cameron Slater.

From NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

[8] Ms Denham engaged the services of a public relations consultant, Mr Carrick
Graham, who in turn provided press releases which were approved by Ms Denham, to the blogger Cameron Slater for the “Whaleoil” blog.

[9] Having equivocated and (she acknowledged in evidence before us) being concerned about the harm she was likely to do to her former husband, his reputation and the reputation of his employer Kristin School, Ms Denham determined in any event she ought to proceed with the media strategy.

[10] On 18 October 2012 she filed a complaint with the police regarding the alleged assault on 10 September 2010. The timing of this complaint was that it shortly followed the response (and opposition) by Mr Clague to her relationship property claim. Some six days after this complaint the first blog post on Whaleoil appeared stating that the head of Kristin School was being questioned by police regarding a
charge of male assaults female.

[11] The blog also named the Chair of the Kristin School Board of Governors and stated that the school had known about the allegations and done nothing.

[12] On 25 October 2012 Ms Denham texted Mr Graham saying “Carrick – Cameron’s blog is starting to generate interest in the Kristin community. It’ll spread like wildfire now!” Two minutes later the response from Mr Graham read “Excellent. We’ll talk more tomorrow about what else we can run on there!”

Many more details followed, including:

(6) That Ms Denham was paying a public relations agent and in turn a blogger (Cameron Slater) to publicise what would otherwise be private matters (at least until aired in Court), is a clear indicator that “justice for a crime committed” would not appear to be the dominant purpose. In examination about Mr Slater’s involvement in her payment to him, both in the District Court criminal trial and before the Tribunal, her evidence was evasive and unsatisfactory. Furthermore she misled the Tribunal in her affidavit dated 30 November 2016 where she stated “I did not have any editorial input into the Whaleoil postings and did not have any real understanding of who “Cameron” was at the time or the true nature of his Whaleoil blog”. Emails to Carrick Graham in late October 2012, in which she seems to have a clear view that her reputation might be tarnished by a connection with Mr Slater, and in which she certainly refers to editorial input to the press releases, if not the blog itself, discredit this assertion.

And from

[74] For example, at paragraphs [31-33] when discussing the Whaleoil blog that referred to “the fool” avoiding “a whole world of pain and trouble (not to mention public attention) by settling the issue when they separated”. His Honour commented at [32]:

“[32] It is difficult to interpret this as anything other than a blatant attempt to
apply pressure to the defendant to settle the complainant’s relationship property
claim, given the timing of the posting, with the affidavits in reply on that claim
due, given the complainant’s acknowledgement that she was aware of the
material which was going up on the Whale Oil site and given that she was
paying Mr Slater for his services.

[33] The complainant denied any input into these postings but against the
overall background as I have set it out I find that impossible to accept.”

Of course the defamation case between Sellman, Swinburn, Bradbrook and Slater, Graham, Rich is yet to be decided, but the latest judgment has found that it should not be struck out and should be tested in court.

Slater must have confidence in his defence, posts attacking those taking this case against him using some of the language detailed by the judge are still published on Whale Oil.

Legal problems and hypocrisy mounts

It’s hard to know what is mounting more, Cameron Slater’s legal problems or his hypocrisy.

He is now facing another defamation case, this time from three public health researchers who have featured in a number of posts at Whale Oil over the years.

Defamation proceedings against Carrick Graham and Cameron Slater

13th June 2016

Today, we have filed defamation proceedings in the High Court at Auckland against Carrick Graham and Cameron Slater.

The proceedings relate to a series of blog posts and comments published on the Whale Oil website. For some years, Whale Oil has published articles with a negative focus on various public health experts and advocates. It was not until the book Dirty Politics was published in August 2014 that it became clear Carrick Graham was involved in the publication of material on Whale Oil.

We had hoped things would change, but the various articles and comments remain live on Whale Oil, and Mr Slater has continued to publish further material. Accordingly, we have decided to bring these proceedings to address what we claim is a campaign of deliberate and sustained defamation.

While we will continue to speak and write on important public health issues, we will be making no further comment on the matters at issue in the defamation proceedings as they are properly dealt with by the Court.

Professor Doug Sellman
Professor Boyd Swinburn
Shane Bradbrook

Slater has responded via NBR (paywalled):

Public health researchers’ defamation claim is ‘vexatious bullying’ – Slater ($)

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Bullying, trying to silence critics, being vexatious and being involved in frivolous legal processes could easily be self descriptions of Slater.

It’s hard to know if he’s blind to his hypocrisy or he just doesn’t care about how it looks.

And it seems this is only one of Slater’s problems today. Veutoviper posted this at The Standard:

This afternoon a case management conference is also being held in the Auckland High Court before Judge Asher re the ongoing case between Slater and Matthew Blomfield, with each of them representing themselves. https://www.courtsofnz.govt.nz/business/calendar/daily-lists/2Tue14062016.pdf

A couple of weeks ago, Slater dropped his appeal against an earlier decision by Judge Asher in relation to this defamation case against Slater, so it will be interesting to see the outcome of today’s conference, although it may not be made public.

http://www.defamationupdate.co.nz/sites/all/pdf/2014/Slater-v-Blomfield-2014-NZHC-2221.pdf

Slater has been trying to drag this out for years. His legal argument losses have been accumulating and he recently gave up on an appeal. That means that it must just about be time for the court file to be unsealed so Slater’s sources are revealed, something he had been trying hard to avoid.