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]

US Supreme Court

The US Supreme Court has featured in the news two days in a row,

Yesterday:

Fox News: Upholds Trump’s Travel Ban 5-4

The 5-4 ruling marks the first major high court decision on a Trump administration policy. It upholds the selective travel restrictions, which critics called a discriminatory “Muslim ban” but the administration argued was needed for security reasons.

Chief Justice John Roberts, who authored the conservative majority opinion, wrote that the order was “squarely within the scope of presidential authority” under federal law.

“The sole prerequisite set forth in [federal law] is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States. The president has undoubtedly fulfilled that requirement here,” he wrote.

Associate Justice Sonia Sotomayor was among the court’s four liberals that wrote a dissent.

In a written statement, Trump called the ruling “a tremendous victory for the American People and the Constitution.” As critics continued to decry the policy as “xenophobic,” Trump described the court decision as “a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country.”

NPR: In 5-4 Decision, Court Deals Huge Blow to Government Unions

In a blow to organized labor, the U.S. Supreme Court ruled Wednesday that government workers who choose not to join a union cannot be charged for the cost of collective bargaining.

The decision reverses a 4-decades-old precedent and upends laws in 22 states.

The vote was a predictable 5-4. Justice Samuel Alito wrote the majority opinion with the court’s conservatives joining him.

So two decisions split between conservative and liberal judges. And the Supreme Court may get to lean further to the right – judges are appointed by Presidents, but need to be confirmed by the Senate.

CNBC: Kennedy Leaving Supreme Court

Supreme Court Justice Anthony Kennedy announced Wednesday he’s retiring at the end of July, giving President Donald Trump another chance to fundamentally reshape the highest court in the land.

Replacing Kennedy with a conservative could have a massive long-term effect on the highest U.S. court. His decision to leave will have huge implications for the midterm elections, as Democrats and Republicans battle for control of the Senate. The chamber confirms Supreme Court justices.

This will increase interest and pressure in the mid-term elections.

US Supreme Court rules on online sales tax

The US Supreme Court has overturned a ruling that had given online retailers a way of avoiding some state taxes.

NY Times: Supreme Court Clears Way to Collect Sales Tax From Online Retailers

Internet retailers can be required to collect sales taxes in states where they have no physical presence, the Supreme Court ruledon Thursday.

Brick-and-mortar businesses have long complained that they are disadvantaged by having to charge sales taxes while many of their online competitors do not. States have said that they are missing out on tens of billions of dollars in annual revenue under a 1992 Supreme Court ruling that helped spur the rise of internet shopping.

On Thursday, the court overruled that ruling, Quill Corporation v. North Dakota, which had said that the Constitution bars states from requiring businesses to collect sales taxes unless they have a substantial connection to the state.

This could be significant for New Zealand. If internet retailers like Amazon have to comply with all the state taxes in the US (a complex thing) depending on the location of the purchaser,then it should be simple to also comply with tax requirements for other countries.

Writing for the majority in the 5-to-4 ruling, Justice Anthony M. Kennedy said the Quill decision had distorted the nation’s economy and had caused states to lose annual tax revenues between $8 billion and $33 billion.

But there could be a downside. If online retailers are forced to charge more tax in the US they may look for more sales in places where they can get away without charging tax.

Hagaman v Little appeal rejected by Supreme Court

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

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

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

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

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

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

Background

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

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

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

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

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

When does an appeal in a defamation claim survive death?

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

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

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

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

Does Mr Hagaman’s appeal survive his death?

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

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

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

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

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

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

Result

[20] The appeal is dismissed.

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

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

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

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

A jury was not able to reach a conclusive verdict.

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

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

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

Mr Little has been awarded costs.

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

Pike River prosecution withdrawal unlawful

RNZ: Pike River prosecution withdrawal unlawful – Supreme Court

It was unlawful for WorkSafe to withdraw its prosecution of Pike River mine boss Peter Whittall, in exchange for payments to the victims’ families, the Supreme Court has ruled.

WorkSafe New Zealand initially laid 12 health and safety charges against Mr Whittall, but they were dropped after more than $3 million was paid to the victims’ families.

Earlier hearings in the High Court and Court of Appeal ruled the decision to offer no evidence to the charges was not unlawful.

In October, lawyers for Anna Osborne and Sonya Rockhouse, who both lost family members in the 2010 explosion, asked the Supreme Court to issue a declaration that the dropping of charges arose from an unlawful bargain.

In is defence, the Crown argued the reparation payment was just one of several factors taken into account in withdrawing the charges.

It also had to consider the possible unavailability of witnesses and the fact a trial could take between 16 and 20 weeks.

In today’s decision, the Supreme Court unanimously allowed the appeal and ruled the decision to offer no evidence was “an unlawful agreement to stifle prosecution”.

RNZ has extensive coverage of this here.

Ruataniwha wrangling to continue?

Conservation groups are celebrating the Supreme Court ruling that the Conservation Minister’s attempt to swap protected conservation land for farmland to make way for the Ruataniwha dam reservoir was not legally allowed, but the Government is threatening to change the law.  That hasn’t gone down well.

RNZ:  Ruataniwha dam: law-change plan branded arrogant

The government is arrogant if it thinks it can change the law to push through the Ruataniwha dam project, the Labour Party says.

Environment Minister Maggie Barry said the government would now consider legislating to ensure such land swaps could go ahead.

She said the government had long believed that under the conservation act it was allowed to swap a low value piece of conservation land for a piece of land with higher conservation values.

Labour’s Ikaroa-Rāwhiti MP Meka Whaitiri said the conservation land being swapped for the irrigation scheme was not low quality.

“It’s a beautiful pristine area, looking down the valley, so giving that up for another piece of land … everybody knows it’s really swapping land so this dam could go ahead.”

Ms Whaitiri said it would be arrogant for the government to legislate to overturn the court’s ruling.

Green Party conservation spokesperson Mojo Mathers said the government wanted to destroy protected conservation land for its private developer mates.

She said it should just respect the court’s decision.

Threatening to legislate away a Supreme Court ruling does seem like arrogance – not a good thing to show in an election campaign.

Flooding conservation land to enable increased farm production is highly questionable with or without enabling legislation given clear signs production has reached unsustainable levels and natural waterways have been badly damaged as a result.

US general discussion

News or views or issues from the USA.USFlag

As well as the Syrian air strikes there was other big news in the US yesterday.


NY Times: U.S. Senate Confirms Neil Gorsuch as Supreme Court Justice

The confirmation saga did not help the reputation of the Supreme Court, either. The justices say politics plays no role in their work, but the public heard an unrelentingly different story over the last year, with politicians, pundits and well-financed outside groups insisting that a Democratic nominee would rule differently from a Republican one.

BBC:  Trump Welcomes New ‘Friend’ Xi

“Tremendous progress” has been made in talks with Chinese President Xi Jinping, Donald Trump has said on the summit’s second and final day.

“I think truly progress has been made,” the US president said, declaring the relationship as “outstanding”.

The two men and their staff sat face to face for talks at Mr Trump’s Mar-a-Lago retreat in Florida.

Last year Mr Trump said China had “raped the US” and vowed to brand the superpower a currency manipulator.

I don’t know how the Chinese will view a two-faced Trump.

US Supreme Court nomination going ‘nuclear’

As predicted Senate Democrats blocked the nomination of Neil Gorsuch to the Supreme Court  to fill a vacancy that wasn’t filled last year because Republicans blocked President Obama’s nomination.

So the Republicans are resorting to a rule change to override the need for a 60 vote majority, often referred to as ‘the nuclear option’ – a move enabled by Democrats in 2013 that allowed them to ram through lower court nominations.

I don’t know why the Democrats didn’t try going nuclear last year, perhaps they thought it would look too bad in election year.

But the Republicans don’t care how it looks now, they just want to win over the nomination.

The BBC covers this in ‘Nuclear’ showdown over Supreme Court nominee Neil Gorsuch

Republicans have taken the historic step of changing US Senate rules in order to ram through confirmation of President Trump’s Supreme Court pick.

They invoked the “nuclear option” after Democrats used a tactic known as a filibuster for the first time in half a century to block the nominee.

Denver appeals court judge Neil Gorsuch is now set to be approved on Friday.

The move will leave Congress even more plagued by gridlock. Republican John McCain said: “Bad day for democracy.”

At stakes is ideological control of the nation’s highest court, which has the final say on some of the most controversial US legal issues, from gun control to abortion to election financing to workers’ and LGBT rights.

Given the sweeping power of the Supreme Court – it touches on every facet of American life – the stakes have become too high for little things like tradition and consensus-building to merit consideration.

Thursday was about the exercise of raw power. Republicans had the votes, and they wanted – they needed – their man on the high court to preserve their conservative majority.

The legislative manoeuvre – called the nuclear option because it is so extreme – enables Mr Gorsuch to be approved by a simple majority in the 100-member Senate, where Republicans control 52 seats.

After falling five votes short on Thursday of the 60 needed to confirm Mr Gorsuch, Republican Senate leader Mitch McConnell retaliated by voting 52-48 along party lines to rewrite the rules.

The legislative manoeuvre – called the nuclear option because it is so extreme – enables Mr Gorsuch to be approved by a simple majority in the 100-member Senate, where Republicans control 52 seats.

Given the sweeping power of the Supreme Court – it touches on every facet of American life – the stakes have become too high for little things like tradition and consensus-building to merit consideration.

Thursday was about the exercise of raw power. Republicans had the votes, and they wanted – they needed – their man on the high court to preserve their conservative majority.

So much for a non-partisan judiciary, but trying to slant the Supreme Court politically is nothing new in the US. Allowing politicians to select judges is doomed to be abused.

More from the BBC on this:

The ‘shining city upon a hill whose beaconlight guides freedom-loving people everywhere’ (Ronald Reagan) was already badly tarnished has found a way to set a worse example of democratic abuse.

Brexit appeal 5-8 December

A date has been set for the UK Government appeal against the ruling that Parliament must vote on Brexit – it will start in the Supreme Court on 5 December, is set down for four days, but it probably won’t be until the new year before a decision is made.

BBC: Brexit court ruling appeal date set for 5 December

The government’s appeal against the High Court ruling that MPs must vote on triggering Brexit will be heard in the Supreme Court from 5 December.

It will last four days, with the decision expected in the new year.

Theresa May has said she is “clear” she expects to start talks on leaving the EU as planned by the end of March.

Campaigners say MPs and peers have to scrutinise the government’s plans beforehand, but ministers say they can decide without this happening.

The High Court ruled last Thursday that Parliament should have a say before the UK invokes Article 50 of the Lisbon Treaty – which triggers up to two years of formal EU withdrawal talks.

Labour has said it will not attempt to delay or scupper this process if a vote goes ahead. The prime minister has promised to invoke Article 50 by the end of next March.

The government said it was going to appeal almost as soon as the ruling came out and the Supreme Court has now granted permission – pushing through the process at a far faster pace than usual because of the importance of the case.

With the short time frame the Government will need to continuing planning for an exit by the end of March, hoping their appeal succeeds.

Concerns about Constitution proposals

Dr Andrew Butler and Sir Geoffrey Palmer have proposed a constitution for New Zealand. This is far from a new topic for Palmer.

Dr Bryce Wilkinson at the New Zealand Initiative has some concerns, to the extent that he thinks there is No need for a constitution:

Dr Andrew Butler and Sir Geoffrey Palmer’s new book, A Written Constitution for Aotearoa New Zealand, proposes radical changes.

This is not entirely a surprise. Sir Geoffrey railed eloquently for decades against unbridled (parliamentary) power. He long advocated MMP as part of the remedy. The title of his 1997 book, co-authored with his son Dr Matthew Palmer, now a High Court judge, was Bridled Power.

That book also included a proposed written constitution, making it clear that bridled power was not enough. 
Its s54 conferred massive discretionary power on the High Court. Anyone could ask it to stop any law or government action that it deemed to be inconsistent with the proposed constitution. 

Unbridled power
The court could order any remedy that was “fair and reasonable in the circumstances.” Parliament appeared to have no ability to respond. S3 decreed the constitution prevailed; s2 entrenched it. The problem with this, of course, is that it confers unbridled power on unelected judges.

The Butler and Palmer proposal is marginally more nuanced. It gives Parliament 12 months to validate a law the Supreme Court considers unconstitutional. However, that validation requires the support of 75% of all parliamentarians. That looks a remote prospect under MMP. Minor parties would hold the major governing party to ransom.

This nuance aside, their proposal increases the need for political decision-making by the Supreme Court. In particular, many of the provisions seek to entrench rights to other people’s money.

One new right is an “adequate standard of living.” Another is to a “free” state education.” Does this means someone who chooses not to work for a living is entitled to an “adequate” standard of living , while tax-funded spending is anything but free?

Sounds almost like a socialist constitution. Wilkinson prefers that in a social  democracy, political decisions are best made by voters, either directly or through their elected representatives. Not by Supreme Court interpretations of a constitution.

Wilkinson says that the status quo is unsatisfactory, but we need to improve on what we have, not cobble representative democracy.

What about the proposed constitution as a whole? It is hard to escape the feeling that it aims to saddle future generations with the entitlement follies of the past half century, along with a new folly of unbridled power for unelected judges.

The strongest case against a written constitution for New Zealand is that we would make a mess of it. We presume too much if we think our generation knows best. Regardless, I wonder if Sir Geoffrey has any objection now to the proposed Regulatory Responsibility Act that would not apply with much greater force to his own proposal.

Website: A constitution for Aotearoa New Zealand

Our proposal: a modern constitution that is easy to understand, reflects New Zealand’s identity and nationhood, protects rights and liberties, and prevents governments from abusing power.

The Law Foundation is backing Palmer’s work: Towards a written constitution for New Zealand

The Law Foundation is backing work led by former Prime Minister Sir Geoffrey Palmer to draft a model New Zealand Constitution as a basis for public debate.

The project is based on Sir Geoffrey’s view that New Zealand’s present constitution is “dangerously incomplete, obscure, fragmentary and far too flexible.” He says the country needs a constitution that is “fit for the modern age” to prevent governments from abusing power.

Unlike other countries, nearly all of New Zealand’s constitutional rules could be altered too easily by simple majorities of MPs, he said. “Public power ought not to be at large, untethered and without anchors.”

The proposed flexible New Zealand constitution will be designed to protect the freedom of individuals, advance open and transparent institutions and offer efficient accountability mechanisms.

Public participation and involvement in decision-making should be encouraged, he said. A constitution was for the people, so the authors would issue their proposals for public feedback before making a formal submission to Government.

For example, the proposed new constitution would replace the Crown with a legal entity of the State. Sir Geoffrey said it was possible to retain the monarchy and create the State, and whether the Queen then remained Head of that State would be up to New Zealanders.

“Opinions will differ on what precise powers should be distributed where and this is an important reason whereby we propose to take comments and submissions from the public before we express our final view in 2017 on what should be in a constitution for Aotearoa New Zealand.”