New Zealand Defamation Law: 2016 in review – Ali Romanos

4 01 2017

2016-reviewNew Zealand courts heard several trials and important interlocutory battles in 2016.  Political defamation cases were a feature.  The most prominent case was that brought by Taxpayers’ Union director Jordan Williams against former Conservative Party leader Colin Craig. 

As the first civil jury trial to be heard in Auckland since August 2002, the case was possibly New Zealand’s most widely followed and reported defamation trial. After 10 hours of deliberation, the 11-member jury awarded Williams a record NZ$1.27m in general and punitive damages.

But the case continues.  Following the verdicts, Craig applied to set aside the verdicts, claiming the verdict was against the weight of evidence, as well as alleged judicial misdirection and excessive damages.  The application was heard by the trial Judge, Justice Katz, on 5 December. Her Honour reserved judgment, which is expected to be released around March or April 2017.  Meanwhile, Justice Katz’s pre-verdict ruling on response-to-attack qualified privilege shone light on this comparatively rare defence.

Colin Craig has also been involved in several other high-profile proceedings, which will take centre-stage in 2017.  Craig’s action against former Conservative Party board member John Stringer has been set down for a three-week judge-alone trial in the Christchurch High Court in March 2017.  This follows several interlocutory battles during 2016 (see here and here and here).

Craig will also appear in the Auckland High Court in May 2017 – this time for a three-week jury trial against Whale Oil blogger Cameron Slater, who has filed a counterclaim.

Meanwhile, Craig’s separate claim in the Auckland District Court, against Jordan Williams and Social Media Consultants Ltd (Cameron Slater’s company) for breach of copyright, was struck out in early December by Judge Sharp.  The defendants argued successfully that the claim had been brought to defend Craig’s reputational interests, rather than its purported commercial orient.

There were other political defamation battles.  Earlier in the year, Associate Judge Bell gave a lengthy interlocutory judgment in the case brought by political activist Penny Bright against Auckland Council CEO Stephen Town.

Meanwhile, Invercargill City Councillor Karen Arnold’s claim against Mayor Tim Shadbolt and Fairfax Media has rumbled through 2016 with multiple interlocutory decisions (see here and here).  It is anticipated a trial will be set down sometime in 2017.

Speaking of Fairfax Media, the company was party to some significant interlocutory decisions through the year.  First, in Gatland v Fairfax – a case brought by Wales’ rugby coach Warren Gatland and the Welsh Rugby Union – Justice Toogood delivered a judgment rich in honest-opinion jurisprudence (with a key finding that, as with the defence of truth, New Zealand law does not allow defendants to plead alternative meanings).  Secondly, Associate Judge Smith delivered a lengthy judgment in a case brought by a New Plymouth doctor, wherein Fairfax’s novel defence of ‘public-interest qualified privilege’ was canvassed at length but, ultimately, struck out.

Fairfax Media was also to be sued by rich-lister Stephen Jennings.  However, the Auckland proceeding was settled shortly before a jury trial was to commence.

Two judge-alone trial judgments emerged from the Auckland High Court.  The first – Kim v Cho – was between members of the Korean community over an advertisement published in a free-weekly newspaper.  Justice Courtney heard the action by way of formal proof.  The plaintiff was awarded $100,000 damages.

And in early December, Justice Woolford dismissed the long-running case of Wu v Moncur.  The defendant’s postings on ‘Skykiwi’ – a website that reaches 80 per cent of New Zealand’s Chinese community – were held not to identify the plaintiff, and otherwise the defence of honest opinion prevailed.

2016 was also a moving year for the Jameel doctrine.  In September, Judge Ingram of the Tauranga District Court permanently stayed a plaintiff’s claim brought in respect of two single-publishee emails and letters, as an abuse of process.  The claim is New Zealand’s first, and so far only, defamation claim to be struck out or stayed in its entirety under the Jameel doctrine.

And more recently, in the case of Opai v Culpan, a proceeding brought by a Police employee, Associate Judge Bell provided extensive analysis of the Jameel doctrine and where the ‘threshold of harm’ sits in New Zealand’s framework.  The Jameel doctrine was applied to strike out several parts of the plaintiff’s claim, including the claim against the first defendant, which could have proceeded only on the basis of seeking punitive damages.  D-U considers this to be New Zealand’s judgment of the year.

The final consideration of the Jameel doctrine was in X v Attorney-General, a case brought by a former naval officer against the New Zealand and United Kingdom Attorneys-General.  A two-day hearing was held in December before Justice Simon France – in the Court of Appeal owing to earthquake damage to Wellington’s High Court.  Judgment has been reserved.

In sum, 2016 may be footnoted as a year in which New Zealand courts gave valuable consideration to qualified privilege, honest opinion and the Jameel doctrine.

Ali Romanos is a Wellington defamation lawyer.  He runs the website Defamation Update and Twitter feed @defamationnz.

This post was originally published on Defamation Update.  It is reproduced with permission and thanks.

 

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