More court costs for Slater and co-defendants in defamation entree, abandons appeal in another case

More costs awarded against Cameron Slater for more court failures, and also against co-defendants Carrick Graham (and Facilitte Communications Limited) and Katherine Rich (and NZ Food and Grocery Council) – and this is just an entree in a defamation  case brought against them by Sellman, Swinburn and Bradbrook.

Slater’s counsel have also applied to withdraw from representing him.

It follows this decision in November: SELLMAN v SLATER [2018] NZHC 3057 [23 November 2018]

[4] On Monday 25 February 2019, Mr Henry, his junior and his instructing solicitor sought to withdraw from representing Mr Slater because they no longer had instructions as at Friday 22 February 2019. He advised Mr Slater had voluntarily applied to be adjudicated bankrupt, needed to be isolated from stress and there were extensive legal fees outstanding.

Sounds like no money, no lawyer.

[8] Mr Salmon, for the plaintiffs, seeks costs on their successful applications and costs on the unsuccessful applications of Mr Slater, Mrs Rich and the NZFGC…The total of costs sought by the plaintiffs is $24,063.90.

[12] I consider the plaintiffs succeeded in relation to the applications, as follows:

(a) completely, in opposing Mr Slater’s application to exclude documents from the proceeding;

(b) substantially, in applying for particular discovery by Mr Slater, Mr Graham and FCL;

(c) to a limited extent, for the avoidance of doubt and for updating purposes, in applying for particular discovery against Mrs Rich and the NZFGC;

(d) substantially, in opposing Mrs Rich’s and the NZFGC’s application for particular discovery;

(e) completely, in applying to examine Mr Slater and Mr Graham orally

[14] …I consider the overall interests of justice are best served by awarding costs, as sought, to the plaintiffs, to be borne: 50 per cent by Mr Slater; 33 per cent by Mr Graham and FCL; and 17 per cent by Mrs Rich and NZFGC.

So that’s about $12,000 awarded against Slater in addition to ‘extensive legal fees outstanding’, and he is still required to be orally examined – from the November judgment:

[60] I have examined Mr Slater’s and Mr Graham’s answers to interrogatories. I am concerned their statements that Whaleoil did not publish blogposts for reward are not consistent with the evidence to which the plaintiffs point, which suggests that was done in specific instances. They are inconsistent with reasonable inferences from the
emails obtained by the plaintiffs. And they are inconsistent with Mr Graham belatedly accepting he did do so in respect of blog posts about Mr Clague once evidence of that was adduced. I am also concerned a number of other aspects of the interrogatories may not have been properly responded to, regarding: who was the author of the blog posts; the involvement of each of the defendants in their preparation; downloading of blog posts; authorship of the comments; and payments received. I consider Mr Slater and Mr Graham have made insufficient answer to the interrogatories.

[61] I consider the most efficient means to elicit answers to the plaintiffs’ questions is for Mr Slater and Mr Graham to attend Court for up to one day to be orally examined.

Slater has brought much of this on himself, through his initial actions, and subsequently by failing to deal with court proceedings properly, and refusing to conceded or apologise. He has voluntarily gone bankrupt, and has tried to avoid further proceedings claiming ill health, but it doesn’t look like the financial and legal stress is going to ease up yet.

He has choices – he could try to bring all this to a conclusion, or he could keep digging himself into a bigger quagmire.

JUDGMENT No 7 OF PALMER J [Costs]

And also today: Whale Oil blogger Cameron Slater abandons appeal against defamation court ruling

Whale Oil blogger Cameron Slater is no longer appealing a High Court decision which found he defamed businessman Matthew Blomfield.

Slater was set to appeal the decision. However, the Court of Appeal confirmed on Monday that the appeal, which was scheduled to be heard on March 25, had been abandoned by parties acting for Slater. That means the High Court ruling stands.

The court is yet to decide how much money Slater will have to pay Blomfield in damages.

On the High Court decision: Blomfield v Slater defamation – no credible defence

So Slater has effectively conceded no credible defence.

This follows an award of $70,000 against Slater by the Human Rights Review Tribunal of $70,000 last week – Human Rights Tribunal slams Cameron Slater

 

What Whale Oil isn’t telling their readers

Whale Oil is feeding misinformation to it’s readers about the defamation cases that Cameron Slater is embroiled in, and they are not telling them the facts that would enlighten readers to the grim reality of legal and financial holes dug by Slater himself. Claims that vexatious litigants have dragged out the cases are in some cases at least the opposite of the truth.

Particularly in the six and a half year Blomfield v Slater defamation it is Slater who has opposed, appealed, dragged things out, and failed to file a defence after numerous attempts (which appear to be mostly trying to continue the attacks against Blomfield).

Whale Oil is not being open and honest about the facts of the three cases involving Slater. And I haven’t seen them reveal at all that the company that owns Whale Oil, Social media Consultants, is also included in court actions.

As a result, comments like this are being posted at Whale Oil:

No other journalist in NZ has so many honest people behind him.

Karma will get them in the end, and the continued growth of WOBH will ensure increasing numbers of people get to hear what’s really going on.

You might have been temporary lost in some of the battles, but you will win the war.

Some people are so vindictive they just can’t let go.

I was wondering how many court cases were still pending and how that was going to be handled. I know you would rather fight on and take it to them, but I’m certain that you are getting the right advice, health comes first.

You’ve been brutally fearless and a force of nature on the political landscape.
Stay fearless and apply those traits in your recovery.

It’s too bad that those responsible for this, the vexatious litigants, will never face the costs they should do.

As for the litigants not giving extra time, have they not dragged this on for years already?

That’s more forthright than you normally expect, these days. Our martyr for free speech. Makes one want to join the Whale army, if it exists.

A lot of irony in there. And misconceptions and/or sock puppet misinformation.

Is it possible to tell us without too much detail just who the litigants are on the three outstanding actions?

Whale Oil is keeping the facts from their readers.

Yesterday in An update on Cam’s health ‘Whaleoil staff’ claimed:

This has led Cam to make the very difficult decision to declare bankruptcy, since he is unable to generate enough passive revenue to fund the three extremely expensive and in his opinion, vexatious, defamation actions against him.

They are right that the actions are likely to be extremely expensive. Costs alone are likely to add up to hundreds of thousands of dollars – Slater himself has previously said that’s the likely cost of defamation defences.

But court documents suggest that if anyone has been vexatious, or bringing costs upon himself, it is Slater.

From ( (pre-defamation trial) SELLMAN & ORS v SLATER & ORS NO 5 – COSTS [2018] NZHC 58 [7 February 2018] in which Slater was first defendant, and the plaintiffs were were Sellman, Swinburn and Frederick:

It is a fundamental principle of New Zealand civil law that costs follow the event – a losing party pays a winning party a contribution towards their legal costs. The question of who has won and who has lost is guided by the interests of justice and must be viewed in terms of “who in reality has been the successful party”.

Overall, I consider the plaintiffs  did enjoy substantive success.

The time-bar strike-out applications by all five defendants involved argument about, and determination of, a relatively untested aspect of New Zealand defamation law, based on policy considerations. But the applications all failed. I award costs to the plaintiffs in respect of this aspect of the applications on a 2B basis.

The abuse of process strike-out applications also failed…On a net basis, accordingly, I award costs to the plaintiffs, in respect of this aspect of the applications, of 90 per cent against the first defendant and 80 per cent against the second and third defendants.

Assuming, as I do for this purpose, that each of the three aspects of the strikeout applications of the proceeding by the first, second and third defendants were of equal weight, the result is that I award to costs to the plaintiffs of 93 per cent of the costs for the first defendant’s strike out application…I discount each award by a third. So the first defendant will pay 62 per cent.

The first, and the second and third defendants’ applications to strike out the ss 39 and 41 notices simply failed. They will each pay two thirds of the costs of that to the plaintiffs on a 2B basis.

All defendants will pay the costs of the one-and-a-half-day hearing and the plaintiffs’ disbursements jointly and severally.

So costs were awarded against Slater in failed actions. Slater was represented by two lawyers so presumably would have accrued costs of his own too.

From SELLMAN v SLATER [2018] NZHC 3057 [23 November 2018]:

Should Mr Slater and Mr Graham be examined?

[60] I have examined Mr Slater’s and Mr Graham’s answers to interrogatories. I am concerned their statements that Whaleoil did not publish blogposts for reward are not consistent with the evidence to which the plaintiffs point, which suggests that was done in specific instances. They are inconsistent with reasonable inferences from the emails obtained by the plaintiffs. And they are inconsistent with Mr Graham belatedly accepting he did do so in respect of blog posts about Mr Clague once evidence of that was adduced. I am also concerned a number of other aspects of the interrogatories may not have been properly responded to, regarding: who was the author of the blog posts; the involvement of each of the defendants in their preparation; downloading of blog posts; authorship of the comments; and payments received. I consider Mr Slater and Mr Graham have made insufficient answer to the interrogatories.

[61] I consider the most efficient means to elicit answers to the plaintiffs’ questions is for Mr Slater and Mr Graham to attend Court for up to one day to be orally examined.

Slater has provided inconsistent insufficient answers and is being called to appear in a court hearing to answer questions.

It looks to me that either through evasiveness or incompetence (or both) Slater is prolonging the action.

Mr Henry advised at the hearing that Mr Slater would have to file a new amended statement of defence to substitute the new public interest defence for qualified privilege.

Similarly, the application to strike out affirmative defences falls away with the filing and impending filing of new affirmative defences. I record that, if the previous sets of pleadings by Mr Slater, Mr Graham and FCL had remained extant, I do not consider they should have been struck out but they would have needed to be amended to provide greater specificity of particulars in relation to the defences.

More insufficient information and changing defences.

Discovery

Mr Slater, Mr Graham and FCL will provide further particular discovery to the plaintiffs and other defendants, within 15 working days of this judgment

Costs

If costs cannot be agreed between the parties they have leave to file written submissions of no more than five pages within 10 working days of the date of the judgment

So Slater appears to be responsible for ongoing delays and further court appearances, and is incurring further costs.

A telephone conference was scheduled for this case in the High Court yesterday, the same day that Whale Oil posted:

The prospect of on-going ill health and potential further strokes means the advice of his medical team, lawyer, accountant, family members and those who, due to his incapacity, would have been appointed his guardians ad litem, is for him to completely withdraw from any activity other than rehabilitation.

It’s understandable that Slater would want to withdraw from any ongoing court actions, but I don’t know if the judge will buy it.

From CRAIG v SLATER [2018] NZHC 2712 [19 October 2018], just prior to Slater having a stroke, claiming media stress (Slater is first defendant, Social Media Consultants is second defendant):

RESULT AND ORDERS

I declare under s 24 of the Defamation Act 1992 that Cameron Slater and Social Media Consultants Limited are liable to Colin Craig in defamation for the untrue statements…

I dismiss Mr Slater’s causes of action in defamation against Mr Craig by way of counterclaim.

So Slater failed in his defence, and he also failed in his counter claim against Craig.

Costs

[655] Rule 14.2 of the High Court Rules 2016 provides as a primary principle that a party who fails with respect to a proceeding should pay costs to the party who succeeds.  The rule also provides that an award of costs should reflect the complexity and significance of the proceeding. Bearing in mind that each of the parties has both succeeded and failed in the proceeding in varying degrees, and having regard to the complexity and significance of the proceeding, it will be obvious that the determination of costs will require careful consideration by the parties and by the Court.

Due to his failed counter claim it looks unlikely that Slater will be awarded any costs, and may have substantial costs awarded against him.

From Blomfield v Slater [2018] NZHC 2781 [26 October 2018] (Slater first defendant, Social media Consuktants second defendant):

[139] It is therefore apparent that the defendants took no heed whatsoever of the description provided by Lang J in his judgment of 18 May 2018 as to the pleading requirements for the defences of truth and honest opinion. In the circumstances it is clear that the defendants have chosen to adopt the general and unspecific approach later taken in the 3ASOD pleading those defences.

[140] By adopting this approach, the defendants have entirely failed to plead any facts and circumstances relied on to support their defences of truth and honest opinion.

[142] Accordingly, in the absence of any proper particulars that would enable the trial to proceed in a focused and orderly manner, I ruled that the defendants may not adduce any evidence directed at advancing the defences of truth and honest opinion…

[144] The proposed evidence clearly contains opinions and conclusions that the first defendant cannot offer as admissible evidence…

Conclusion

[147] The effect of my judgments is to preclude the defendants from adducing any evidence directed at supporting the defences of truth and honest opinion, as well as any evidence directed at showing the plaintiff to be a person of bad reputation. This unusual situation is the direct consequence of the defendants’ failure to plead their case in accordance with the requirements for pleading the defences of truth and honest opinion and the requirements for adducing evidence directed at establishing bad reputation. The defendants have had considerable time and a number of opportunities to get their pleadings in order, leading to the Court giving them a final opportunity to replead their defences in May 2018. Despite this leniency, and the impending trial
fixture, the defendants failed to properly plead their defences in the 3ASOD and it was not until the trial was a fortnight or so away that they took steps to apply to file a further amended pleading that significantly recast their case yet still failed to comply with the requirements of pleading. Then, when that application was dismissed and the trial was to commence, they applied again to file a yet further amended pleading which also significantly recast their case and contained numerous deficiencies in pleading.

After six and a half years Slater could not put up a credible defence. This played out in court mid October last year, with the judgment being given just prior to Slater having a stroke claimed to be due to stress from media.

[148] Although the effect of my rulings and judgments may appear harsh, this outcome underlines the importance of proper pleading and of compliance with procedural rules and timetable orders. In this case the defendants’ failure to comply with those requirements have resulted in them placing themselves in the situation in which they now find themselves.

“defendants’ failure to comply with those requirements have resulted in them placing themselves in the situation in which they now find themselves” – not due to vexatious litigants, due to hopeless defendants.

Both an award of damages and awards of costs are yet to be determined.

From Blomfield v Slater [2018] NZHC 171 [15 February 2019]:

[20] Here there is no concern that the reasons judgment contains any confidential information of the defendants, nor any information that would be likely to adversely affect the defendants’ fair trial interests if released for publication. While it is likely that publication of the results judgment may be unwelcome and somewhat embarrassing for the defendants, those consequence arise from the manner in which they themselves, particularly the first defendant, have conducted these proceedings during the past six-and-a-half years.

Again the responsibility for his predicament is Slater’s.

[24] I decline to determine the costs on the interlocutory applications brought by the defendants at this time.

Deferred pending an appeal.

[25] I direct that the Registrar recover $12,800 of the balance owing for Court fees from the defendants. The remaining $1,600 (unless it has already been paid by the time of this judgment) is to be recovered from the plaintiff.

Yesterday following the post on Whale Oil, Blomfield responded via NZ Herald:  Cameron Slater’s stroke – what defamation victim Matt Blomfield says the evidence shows about the blogger’s health

The businessman who successfully battled Whale Oil’s Cameron Slater over defamation claims the blogger’s claim ill-health drove him to bankruptcy is contrary to evidence and should be treated with suspicion.

Matt Blomfield told the Herald he was basing his view on evidence which had emerged during the final stages of the seven-year defamation battle.

He said he was making the details public over concern Slater was attempting to gain sympathy from the public and seek donations from readers, as he has done over the course of the prolonged court case.

Blomfield said the High Court ruling was followed by Slater filing with the Court of Appeal then seeking to delay the subsequent hearing on the basis of ill-health.

He said Slater was then obliged by the court to provide evidence supporting his claims around his health and “that evidence simply didn’t support his application”.

“He has told the public he had two strokes, but the evidence showed he had only had one. He keeps repeating the fact that the stroke was caused by stress and that he must now avoid stress.

“However, the medical evidence is that his particular stroke has nothing to do with stress and he is in no more danger of another stroke due to stress than any other person.

“He claimed to have cognitive and language impairment because of his stroke, but the evidence showed he had none.

“He claimed to be too incapacitated to communicate with his lawyers, but he was simultaneously engaging in political discussions in the comments section of the Whale Oil website.”

Slater was commenting on Whale Oil soon after he had his stroke, and continued for months until recently.

Blomfield said the Court of Appeal gave Slater until February 22 to provide evidence supporting his claims of ill-health.

“He filed no response at all. Instead, he applied for bankruptcy. He is now saying his proceedings need to be halted for that reason.

“He is doing everything he can to avoid the consequences of his own nefarious actions.”

Blomfield said “this will not work” and a full Court of Appeal hearing next month would rule based on the evidence.

So Slater failed to file evidence of ill health to the Court of Appeal, but instead unsubstantiated claims were made on Whale Oil yesterday, with most of the facts of the cases again omitted.

As well as the misinformation and misleading, Whale Oil seems to be in denial of reality. Comments from yesterday’s post:

He really sees that as a good thing? ‘Nige’ is one of the site managers. I wonder how much information  he has been given – I mean facts rather than fiction and fantasy.

The second last word from ‘Whaleoil staff’:

Contrary to many naysayers’ opinions, the Whaleoilsite is continuing to grow and expand. This is very similar to the way Breitbart survived its founder Andrew Breitbart’s death. Whaleoil has become very much bigger than just Cam. Unlike Breitbart, when and if Cam’s health allows, he will return to the site, subject entirely to his medical team’s clearance.

Deluded.