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High Court of New Zealand Decisions |
Last Updated: 27 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1845 [2016] NZHC 2496
JORDAN HENRY WILLIAMS
v
COLIN GRAEME CRAIG
|
Hearing:
|
28 September 2016
|
|
Counsel:
|
P A McKnight and A J Romanos for plaintiff
S J Mills QC and J Graham for first defendant
|
|
Judgment:
|
19 October 2016
|
REASONS FOR JUDGMENT OF KATZ J [Defence of qualified
privilege]
This judgment was delivered by me on 19 October 2016 at 11:00am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Langford Law, Wellington
Chapman Tripp, Auckland
Counsel: S J Mills QC, Barrister, Auckland
P A McKnight, Quayside Chambers, Wellington
A Romanos, Barrister, Wellington
Introduction
[1] Jordan Williams is the founder and Executive Director of an organisation known as “the Taxpayers’ Union”. Colin Craig is the founder and former leader of the Conservative Party, a political party that unsuccessfully contested the 2011 and
2014 Parliamentary elections.
[2] Mr Williams brought these proceedings against Mr Craig, in defamation. He alleged that Mr Craig defamed him in remarks he made at a press conference on
29 July 2015 (“Remarks”) and in a leaflet that was made available
at that conference and was subsequently delivered nationwide
(“Leaflet”). I will refer to the particular statements that are
said to bear defamatory meanings as “the
statements”. Mr
Williams claimed, amongst other things, that the natural and ordinary meaning of
the statements was that he
had told lies about Mr Craig, including that Mr Craig
had sexually harassed a person and that he had sent her sexually explicit text
messages. Mr Williams further alleged that a reasonable person who read
or heard the statements would understand them
to mean that Mr Williams is
dishonest, deceitful, a serial liar, cannot be trusted and lacks
integrity.
[3] The trial proceeded by way of a jury trial, before me, during the
period
5 September 2016 to 30 September 2016. After the evidence had
concluded, Mr Craig sought a ruling that the Remarks
and the Leaflet
were published on occasions of qualified privilege. The particular category
of privilege is one that entitles
a person to reply to an attack on their
character or reputation, even if what they say in response might, in itself, be
defamatory.1
[4] Determining whether a defence of qualified privilege arises in any given case requires a two stage analysis.2 The first stage is to identify whether the relevant statements were made “on an occasion of privilege”. This is an issue for the Judge, on which the defendant bears the onus of proof. If an occasion of privilege exists, then the second stage of the analysis is to consider whether it has been lost
(hence the phrase “qualified” privilege). This is an issue
for the jury, on which the
plaintiff bears the onus of
proof. Qualified privilege will be lost if the plaintiff proves that the
defendant was predominantly
motivated by ill will towards the plaintiff, or
otherwise took improper advantage of the occasion of
publication.3
[5] Although it is for the Judge to determine whether the statements were made on an occasion of privilege, he or she may only do so (where the trial proceeds before a jury) on the basis of undisputed facts. If factual issues need to be resolved in order for the Judge to determine the issue, then those factual issues must be put to the jury for determination. Only then can the Judge determine whether the occasion was one of qualified privilege.4 As is apparent from the case law there are difficult demarcation issues between the role of the Judge and the role of the jury in cases where the defence of qualified privilege is raised, and that has certainly proved to be
the case here.
[6] Mr Mills QC, for Mr Craig, submitted that the Court could be
satisfied, on the basis of undisputed facts, that the
statements were
made on occasions of qualified privilege. Mr Romanos, for Mr Williams,
disagreed. He submitted that, now
that the evidence had closed, the Court could
be satisfied that the defence of qualified privilege was incapable of prevailing
as
a matter of law. In the alternative, Mr Romanos submitted that the
jury’s findings in respect of a number of disputed factual
issues were
required before the Court could determine whether the statements were made on
occasions of qualified privilege.
[7] I held that it was possible, on the basis of undisputed facts, to determine whether the statements were published on occasions of qualified privilege. I concluded that they were.5 As a result, I ruled that the defence of qualified privilege should be put to the jury. It would then be for the jury to determine if the privilege had been lost. Given the trial pressures, and the need to determine the application overnight (following a full day of argument), it was not possible to provide full reasons for my decision at that time. I accordingly advised that written reasons
would follow. Those reasons are set out below.
3 Defamation Act 1992, s 19(1).
5 Williams v Craig HC Auckland CIV-2015-404-1845, 26 September 2016 (Ruling No 7).
[8] I note that events have moved on since I delivered my ruling on
qualified privilege. Following my ruling, counsel delivered
their closing
addresses and the jury retired to consider their verdicts. They ultimately
found that Mr Craig had defamed Mr Williams
in both the Remarks and the Leaflet.
It necessarily follows that the jury concluded that Mr Craig had lost the
qualified privilege
conferred on him, either because he acted with ill will, or
because he took improper advantage of the occasion of publication (or
both).
Qualified privilege - legal principles
[9] Section 16(3) of the Defamation Act 1992 (“Act”)
preserves the application of common law qualified privilege.
Generally
speaking, common law qualified privilege arises in circumstances where the
person who makes the communication has an
interest or a duty (legal, social or
moral) to make it to the person to whom it is made, and the person to whom the
communication
is made has a corresponding interest or duty to receive it.6
In such circumstances, the law places a particularly high value on the
right to free speech, essentially as a matter of public policy.
As Tipping J
observed in Vickery v McLean:7
All occasions of qualified privilege are based on an identified public
interest in allowing people to speak and write freely, without
fear of
proceedings for defamation unless they misuse the privilege. On occasions of
privilege the public interest is seen as prevailing
over the protection of
individual reputations.
[10] It has been observed that qualified privilege is a “rare example of the law permitting an individual to seek self-redress by conduct that would otherwise be unlawful”.8 In other words, it allows an individual to make defamatory statements. Common examples of occasions of privilege include reporting suspected criminal behaviour to the appropriate authorities and providing an employment reference to a prospective employer. Free speech is seen as having a particularly high value in
such circumstances.
6 Adam v Ward, above n 2, at 334 per Lord Atkinson as qualified by the Court of Appeal in
Lange v Atkinson (No 1) [1998] 3 NZLR 424 (CA) at 441 and Lange v Atkinson (No 2) [2000]
3 NZLR 385 at [20]–[22].
7 Vickery v McLean [2006] NZAR 481 (CA) at [15].
8 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61, (2011) 279 ALR 183 at [108].
[11] A less common situation where the common law recognises an occasion
of privilege is where a person has been subjected to
an attack on their
character or reputation. This particular form of qualified privilege is
described in Gatley on Libel and Slander as follows:9
...a person whose character or conduct has been attacked is
entitled to answer such attack, and any defamatory statements
he may make about
the person who attacked him will be privileged, provided they are published bona
fide and are fairly relevant to
the accusations made.
(footnotes omitted)
[12] The purpose and foundation of the “right to reply to an
attack” privilege was
explained by Dixon J in Penton v Calwell, as
follows:10
When the privilege of the occasion arises from the making by the plaintiff of
some public attack upon the reputation or conduct of
the defendant or upon some
interest which he is entitled to protect, the purpose of the privilege is to
enable the defendant on his
part freely to submit his answer, whether it be
strictly defensive or be by way of counter-attack, to the public to whom the
plaintiff
has appealed or before whom the plaintiff has attacked the
defendant. The privilege is given to him so that he may with
impunity bring to
the minds of those before whom the attack was made any bona fide answer or
retort by way of vindication which appears
fairly warranted by the occasion.
...
The foundation of the privilege is the necessity of allowing the
party attacked free scope to place his case before the
body whose judgment the
attacking party has sought to affect. The purpose is to prevent the charges
operating to his prejudice.
It may be conceded that to impugn the truth of the
charges contained in the attack and even the general veracity of the attacker
may be a proper exercise of the privilege, if it be commensurate with the
occasion. If that is a question submitted to or an argument
before the body to
whom the attacker has appealed and it is done bona fide for the purpose of
vindication, the law will not
allow the liability of the party attacked to
depend on the truth or otherwise of defamatory statements he so makes by way of
defence.
An analogy is sometimes drawn with the right of self-defence to a physical
attack. In Alexander v Clegg, the Court of Appeal described the privilege
as one to “hit back” or “counterpunch” when one’s
reputation
it attacked, and noted that the right
of
9 Mullis and Parkes, above n 1, at [14.51]. See also Ursula Cheer Media Law in New Zealand
(7th ed, LexisNexis, Wellington, 2015) at 143-146.
10 Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 (HCA) at 233–234 per Dixon J.
retaliation did not require the recipients of an attack “to keep one
hand behind their backs”.11
[13] The traditional “duty and interest” analysis can be
somewhat difficult to apply in the context of reply to an
attack privilege, as
the High Court of Australia acknowledged in Harbour Radio Pty Ltd v
Trad.12 As a result, Courts have taken a broad view of the
relevant duties and/or interests in the context of this type of privilege. In
Mowlds v Fergusson, Dixon J summarised the position as
follows:13
Any communication which the defendant might make tending to vindicate his
conduct or rehabilitate his reputation would be a subject
of privilege provided
that the person to whom he made the communication were one proper to receive it.
It is commonly said that the
recipient must possess an interest or be under a
duty which corresponds with the interest of the person making the
communication...Where
the defamatory matter is published in self-defence or in
defence or protection of an interest or by way of vindication
against
an imputation or attack, the conception of a corresponding duty or
interest in the recipient must be very
widely interpreted.
[14] The law presumes that the audience of the original attack
“will generally have a sufficient reciprocal interest
to receive
the refutation by the person defamed”.14 In
Loveday v Sun Newspapers Ltd, Starke J said that where the
defendant “has appealed to the public and provoked or invited a reply. A
person attacked
has both a right and an interest in repelling or refuting the
attack, and the appeal to the public gives it a corresponding interest
in the
reply”.15
[15] The privilege of right of reply to an attack has been recognised as a robust one. It may entitle “violent or excessively strong” language to be used.16 Similarly, the terms of the “reply are not measured in very nice scales”.17 They may be strictly
a denial or may move to a “counter-attack”18
or “counterpunch”,19 including on
the
11 Alexander v Clegg [2004] NZCA 36; [2004] 3 NZLR 586 (CA) at [61]- [63].
12 Harbour Radio Pty Ltd v Trad [2012] HCA 44, (2012) 247 CLR 31 at [23]- [24].
13 Mowlds v Fergusson [1940] HCA 38; (1940) 64 CLR 206 (HCA) at 214–215 per Dixon J.
14 Watts v Times Newspapers [1997] QB 650 (CA) at 662 per Hirst LJ citing Laughton v Bishop of
Sodor and Man [1872] EngR 35; (1872) LR 4 PC 495.
15 Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 (HCA) at 515 per Starke J.
16 Adam v Ward, above n 2, at 339 per Lord Atkinson.
17 Penton v Calwell, above n 10, at 243 per Latham CJ and Williams J.
18 At 233 per Dixon J.
19 Alexander v Clegg, above n 11, at [62].
attacker’s character.20 A person who is defamed has a
recognised interest in being able to reply forcefully to those allegations made
against him or her in
order to “prevent the charges operating to his
prejudice”.21
[16] The response, however, must be relevant to the attack in order for an occasion of qualified privilege to arise. The decision of the High Court of Australia in Harbour Radio Pty Ltd v Trad illustrates the approach courts take to determining relevance.22 Mr Trad attacked the radio station 2GB, accusing it of racism and inciting the Cronulla riots (a series of racially motivated riots in Sydney). The Court ruled that most of the responses made by the radio station were relevant, including that Mr Trad had himself stirred up hatred, had incited people to commit acts of violence, held racist attitudes, was a dangerous and disgraceful individual, and gave
out misinformation about the Islamic community. All of these responses were found to be relevant, given the nature of the attack. Such comments were linked to Mr Trad’s credibility and also to pointing out his hypocrisy in criticising
2GB.23 Two statements, however, were found to be irrelevant to
the attack. First,
the allegation that Mr Trad was a “pest” and, second, that he was
abusing a position he had been given by others. These
allegations were
completely unconnected to his credibility or hypocrisy.24
They were accordingly not protected by qualified
privilege.
[17] Statements made in reply will be irrelevant if it is “plain
and obvious”25 that they were “entirely irrelevant
and extraneous material”,26 or “unrelated or
insufficiently related to the attack”. 27 I note that this is
a fairly high threshold.
[18] In light of the above legal principles, I must consider the following issues in order to determine whether the statements were made on occasions of qualified
privilege:
21 Penton v Calwell, above n 10, at 233 per Dixon J.
22 Harbour Radio Pty Ltd v Trad, above n 12.
23 At [36]–[37].
24 At [40].
25 Hamilton v Clifford [2004] EWHC 1542 (QB) at [74]. Mullis and Parkes, above n 1, at [32.41].
26 Watts v Times Newspapers Ltd, above n 14, at 671.
27 News Media Ownership v Finlay, above n 2, at 1095.
(a) Did Mr Williams attack Mr Craig’s character and/or
reputation?
(b) If so, was Mr Craig’s reply relevant to the attack?
(c) If so, were the statements made to an audience having an interest in
receiving them?
[19] I will consider each issue in turn, following which I will briefly
address several additional arguments advanced on behalf
of Mr
Williams.
Did Mr Williams attack Mr Craig’s character and/or
reputation?
[20] I summarise below the relevant factual background, based on facts
either admitted in Mr Williams’ reply to Mr Craig’s
statement of
defence, or which have been accepted (or were not disputed) in evidence at
trial. I will endeavour to focus on primary
facts and will only refer to
secondary facts, such as either party’s state of mind or motives, where
there has been an admission
or concession by the relevant person on that issue.
Where a person’s state of mind is in dispute it is for the jury to decide
what inferences can properly be drawn from the facts found to be
proven.
The relevant facts
[21] Mr Craig was the founder and leader of the Conservative Party, which
unsuccessfully contested the Parliamentary elections
in both 2011 and
2014.
[22] On 18 September 2014, two days before the 2014 general
election, Mr Craig’s press secretary, Rachel MacGregor,
resigned. Ms
MacGregor resigned following a conversation in which Mr Craig refused to discuss
increasing her remuneration rate,
at least at that time. Other aspects of the
conversation are in dispute.
[23] Ms MacGregor stated to the media at the time of her resignation that Mr Craig was “manipulative,” but did not comment further. She filed a sexual harassment claim in the Human Rights Review Tribunal (“Tribunal”) shortly after her resignation, but Mr Craig did not become aware of this until a couple of months
later. Ms MacGregor’s resignation, coming as it did on the eve of
the general election, received widespread publicity.
[24] Two months later, on 19 November 2014, Ms MacGregor told Mr
Williams, an acquaintance of hers, that Mr Craig
had been
sexually harassing her. Ms MacGregor showed Mr Williams letters and cards
that Mr Craig had sent to her that were
of an affectionate, and at times
romantic, nature. Mr Williams made notes of the discussion, which he
subsequently emailed through
to Ms MacGregor for checking. She did not reply,
confirming the accuracy of the notes or otherwise, because she understood the
notes to be an aide-mémoire for herself, for the purposes of preparing
for her proceedings before the Tribunal.
She did not authorise Mr
Williams to use the notes for any other purpose.
[25] Mr Williams understood that what Ms MacGregor had told him, and the
correspondence she had shown to him, was confidential.
He assured her and her
lawyer that he would keep the information confidential, “as if he were her
lawyer”. Although
Mr Williams is a qualified lawyer, and held a current
practising certificate at the time, he was not Ms MacGregor’s
lawyer.
[26] Mr Williams’ motives for his subsequent actions are in
dispute. It is not in dispute, however, that, based on Ms MacGregor’s
disclosure to him, Mr Williams formed the view that Mr Craig was not fit to
continue to lead the Conservative Party.
[27] In early 2015, Mr Williams spoke to Garth McVicar, the founder of
the Sensible Sentencing Trust. Mr McVicar had
stood as a candidate
for the Conservative Party in the 2014 general election. There is
some dispute about precisely
what Mr Williams said to Mr McVicar, but it is
undisputed that, at a minimum, he told Mr McVicar that he had seen
material
that he was deeply disturbed by and this material meant that
Mr Craig was vulnerable. He told Mr McVicar that there
was likely to be a
leadership vacancy that Mr McVicar should prepare to fill.
[28] Also in early 2015, Mr Williams embarked on a romantic relationship
with
Ms MacGregor. Ms MacGregor asked him to store the bundle of letters and cards
she had received from Mr Craig, together with some handwritten notes she had
made, in his office safe, which he did. These documents
were referred to at
trial as “the dossier”.
[29] Mr Williams then contacted Brian Dobbs, the Conservative Party Board Chairman, and told him (amongst other things) that Mr Craig had been sending sexually explicit texts (“sexts”) to Ms MacGregor and, in particular, one that referred to lying between her naked legs. This was not true, as there is no evidence (from Mr Craig, Ms MacGregor, or the documents produced in evidence) that such a text ever existed. Mr Williams acknowledged at trial that he had never seen such a text. Whether Mr Williams genuinely, but mistakenly, believed that such a text existed, or was deliberately untruthful, was in dispute at trial. For present purposes, I simply note that there is no evidence that Mr Craig ever sent the alleged text, or any other sexually explicit text, or indeed any letters or cards containing sexually explicit material. Nor, apart from a relatively minor and fleeting incident on election eve
2011, is there any evidence to suggest that there was ever any physical
contact between Mr Craig and Ms MacGregor that was overtly
sexual in
nature.
[30] At about this time (early 2015), Mr Williams also contacted Laurence
Day, another Conservative Party Board member, and told
him (at a minimum) that
he had every reason to be concerned regarding the rumours about Mr Craig and Ms
MacGregor.
[31] In March 2015, Mr Craig’s lawyers (Chapman Tripp) sent a detailed letter to Ms MacGregor’s lawyers regarding her allegations of sexual harassment. Chapman Tripp’s letter set out, in some detail, the reasons why Ms MacGregor’s claim of sexual harassment was rejected. The relationship between Mr Craig and Ms MacGregor was essentially characterised as an emotionally close and intense friendship, which was mutual. Copies of correspondence from Ms MacGregor to Mr Craig were annexed to Chapman Tripp’s letter in support of that characterisation of the relationship. Without setting out details of the relevant correspondence, it is fair to say that it tends to support the view that the relationship was one of mutual admiration and deep affection, particularly in the first year or two. This conclusion is also broadly supported by the text messages adduced in evidence at trial.
Although the exchange of more personal (but not sexual) text messages appears
to have declined over time, the text message
evidence was consistent
with an ongoing close friendship as well as a working relationship. Indeed,
this appears to have still
been the case only a week or so before Ms MacGregor
resigned, when Ms MacGregor confided in Mr Craig the reasons (which were of a
highly personal nature) that she was feeling down at that time.
[32] Returning to March 2015, Ms MacGregor worked on a response to
Chapman Tripp’s letter in Mr Williams’ office,
in the presence of Mr
Williams. It is not entirely clear what the level of Mr Williams’
involvement was in helping
Ms MacGregor prepare a response to the Chapman
Tripp letter. As a minimum, it is not disputed that he was a “sounding
board”
and helped her on some little points. Mr Williams’ evidence,
however, was that he did not read the whole letter (or
possibly any of
it). He did accept, however, that he learned for the first time, at around
this date, that it was alleged
that there had been some responses
from Ms MacGregor to Mr Craig’s correspondence, although he said
that he
did not actually read the correspondence from Ms MacGregor that
was annexed to the Chapman Tripp letter.
[33] On 4 May 2015, Mr Craig and Ms MacGregor attended a mediation at the
Human Rights Commission (“Commission”),
following which they both
signed a Mutual Resolution Agreement. They agreed that a significant part of
their working/friendship
relationship had been positive, constructive and
mutually beneficial. Both parties acknowledged, however, that on occasions
some
of their conduct was inappropriate. Mr Craig apologised to Ms MacGregor
for any inappropriate conduct on his part. On her part,
Ms MacGregor withdrew
her complaint to the Commission. It was agreed that:
Neither party will make comment to the media/third parties other than a
statement that the parties met and have resolved their differences.
A separate agreement was reached in relation to Ms MacGregor’s disputed
invoices
and a loan that had been made to her by Mr and Mrs Craig, which was forgiven.
[34] Ms MacGregor did not show “the dossier” to
anyone after that date (or authorise anyone else to do
so). She believed
that matters between her and Mr Craig had been resolved.
[35] Several weeks later, on 26 May 2015, Mr Williams (without Ms
MacGregor’s knowledge or consent) contacted Christine
Rankin, the former
Chief Executive of the Conservative Party, by text message. He told her he had
read “explicit hand written
letters from Colin where he talks about
his fantasies” and that he “presume[d] he’s [Mr Craig]
paid
Rachel to keep her quiet”. He said he knew that “she had made
a big claim to the Human Rights Review Tribunal”.
He also stated that he
had read the letters where “Colin wrote stuff like ‘I slept well
last night because I dreamt
of being between your legs’,”
along with other “sexual fantacises [sic], poems, kisses etc and at one
point even an acknowledgement it was unwanted”.
[36] Ms Rankin shared this information with Bob McCoskrie, a director of
Family First NZ and a supporter of the Conservative Party.
She also informed Mr
Dobbs that a source had given her information, including sexually explicit text
messages that the source had
read to her, and that the source had also referred
to a large settlement sum being paid in respect of Ms MacGregor’s sexual
harassment claim.
[37] On 26 May 2015, Ms Rankin informed Mr Craig that she had been
provided with information about his relationship with Ms MacGregor
from a
confidential informant. She subsequently put the matters Mr Williams had
disclosed to her to Mr Craig in person, on 29 May
2015. Although Ms Rankin did
not disclose her source, Mr Craig strongly suspected it was Mr
Williams.
[38] In June 2015, Mr Williams spoke directly to Mr McCoskrie, telling him that he believed that Mr Craig had committed serious sexual harassment, including sending sexts to Ms MacGregor, including one referring to sleeping between her legs. He also showed Mr McCoskrie poems written by Mr Craig using FaceTime (an internet video telephone service). Mr McCoskrie subsequently asked Mr Williams to “put up or shut up” in relation to the alleged sext messages, which were of particular concern to him, but was never shown the actual messages.
[39] On 8 June 2015, Mr Craig conducted an interview with David Farrier, which took place in a sauna. When asked about the circumstances of Ms MacGregor’s departure, he rejected any suggestion of impropriety and stated (or at least implied) that she had resigned due to work stress. In particular, Mr Craig said that Ms MacGregor’s position had been “job shared” to try and reduce the stress on her. Ms MacGregor was deeply upset by this comment, which she saw as an attack on
her professional reputation and ability.28
[40] On 15 June 2015, Mr Williams spoke again with Mr Day, offering to disclose documents supporting the allegations he had made regarding Mr Craig. Mr Williams arranged to meet with Messrs Day and Dobbs in Hamilton on Thursday 18 June
2015, to show them the dossier.
[41] Ms MacGregor had no knowledge of the planned meeting. However, she
had, by this time, become suspicious that Mr Williams
may have taken copies of
the letters Mr Craig had sent her, which she had stored in his office safe. On
the morning of the proposed
meeting, she emailed Mr Williams requesting that he
return the letters to her. She further stated in her email:
Do not copy them. I do not want them to be used against Colin. I want this
whole thing to go away and for there to be no more trouble.
[42] Mr Williams disregarded Ms MacGregor’s email. He claimed
that, in doing so, he was acting in her best interests.
As his motives are in
dispute I put them to one side. What is clear, however, is that, without Ms
MacGregor’s knowledge or
consent, Mr Williams flew to Hamilton and met
with Messrs Day and Dobbs on the afternoon of 18 June 2015. There is some
dispute
as to precisely what Mr Williams said at that meeting. It does not
appear to be seriously disputed, however, that (at a minimum)
he told Messrs Day
and Dobbs that:
(a) Mr Craig was smitten with Ms MacGregor (or words to that general
effect).
28 The evidence at trial established that Beverley Adair-Beets was engaged, in the lead up to the election period, to provide support to Ms MacGregor in her role. Ms MacGregor rejected, however, any suggestion that her role of Press Secretary was “job-shared” with Ms Adair-Beets.
(b) Mr Craig had sexually harassed Ms MacGregor over an extended
period.
(c) Mr Craig kissed Ms MacGregor and touched her in a sexual way on
election night 2011. (The evidence of Messrs Day and Dobbs
was that Mr
Williams had presented the incident as being non-consensual. Mr Williams denied
that. In any event, the undisputed evidence
at trial was that what was referred
to as “the election night incident” was consensual).
(d) Mr Craig sent sexts to Ms MacGregor including one that referred to
sleeping between her legs.
(e) Ms MacGregor had settled the sexual harassment claim for a
significant sum (although Mr Williams denied saying
it “was in six
figures”.)
(f) Mr Craig had stopped paying Ms MacGregor for a period prior to her
resignation, but had lent her money, with the effect
or intent of putting
pressure on her.
[43] Mr Williams showed Messrs Day and Dobbs the dossier. In addition,
he read to them, from his phone, extracts from the notes
he had prepared
following his meeting with Ms MacGregor in November 2014. The general
tenor of the disclosures made
to Messrs Day and Dobbs was that Mr
Craig’s attention had been unwelcome and unreciprocated by Ms MacGregor
(and hence constituted
sexual harassment). There was some discussion about the
alleged sext message in which Mr Craig is said to have referred to
sleeping between Ms MacGregor’s legs. Mr Williams indicated he had the
sext but could not find it at that time, but would
do so later. The existence
of this sext was of huge significance to Messrs Day and Dobbs. Mr Williams
acknowledged, under cross
examination, that his allegations regarding the sext
message were enormously damaging to Mr Craig.
[44] The meeting with Messrs Dobbs and Day concluded on the basis that the Conservative Party Board would need to consider the allegations. In an email to Mr Day immediately prior to the meeting, Mr Williams had stated that after he had
laid out the material he had, he would leave the next steps to Messrs Day and
Dobbs.
This included the option of “letting sleeping dogs
lie”.
[45] Mr Williams acknowledged in cross-examination that, if he had seen
the correspondence from Ms MacGregor that was adduced
in evidence at trial, he
could not have conveyed to Messrs Dobbs and Day at least some of what he told
them. He also acknowledged
that, as a result of what he knew about the Chapman
Tripp letter, he was aware that there may be another side to the story and that
he could have informed himself of that by reading the letters from Ms MacGregor
that were annexed. Mr Williams also accepted
that the people he was
talking to might have seen matters differently if they had been aware
of “the other
side”. He acknowledged that he was wrong when he
informed people he had read a sext message from Mr Craig (albeit he said
that
any error on his part was inadvertent). Mr Williams also accepted, after looking
again at the dossier during the course of cross
examination, that its contents
may suggest a degree of reciprocity, in the sense of there being a possible
broader context that might
include something also coming from Ms MacGregor.
Mr Williams also said that he knew that it was likely Ms MacGregor
had
settled her claim for a small amount, not a large amount.
[46] John Stringer, another Conservative Party Board member and a candidate for the party in the 2014 general election, appeared as a witness for Mr Williams. Under cross-examination he confirmed that Mr Williams had told him, on 19 June 2015, that Mr Craig had sexually assaulted Ms MacGregor by grabbing her by her breast and forcing her onto a bed, “or something like that” (this is a reference to the election eve incident). In addition, he said that Mr Williams had told him that Mr Craig sent sexts to Ms MacGregor, including a sext stating, “I slept well because I dreamed I was between your legs”, and another sext using the phrase “magic hands down your panties” or something similar. As I have noted above, there was no evidence at trial of any sext messages from Mr Craig to Ms MacGregor (or anyone). Further, the undisputed evidence at trial was that the election night incident was consensual. As with Messrs Dobbs and Day, however, Mr Williams disputed having told Mr Stringer that the election incident was non-consensual. I therefore put Mr Stringer’s evidence on this issue to one side for present purposes.
[47] Mr Day met with Mr Craig on 19 June 2015 (the morning after he and
Mr Dobbs had met with Mr Williams) and told him what the
“informant”
had told them. He also provided details of the correspondence he and Mr Dobbs
had been shown. Mr Craig
agreed to stand down to enable the Board to undertake
a full investigation of the issue.
[48] That same morning, without awaiting the outcome of the Board
process, Mr Williams, using the nom-de-plume “Concerned
Conservative”, sent a draft blog post to Cameron Slater for
publication on the Whale Oil website. The draft
blog post made
allegations against Mr Craig of sexual harassment, a pay-out to a former
staff member, and inappropriate
touching. Mr Williams attached
(without Ms MacGregor’s knowledge or consent) a photo of a poem Mr Craig
had sent to
Ms MacGregor entitled, “Two of Me”, and a photograph of
Mr Craig’s signature at the bottom of a letter to Ms MacGregor.
The
draft blog post referred to other “selected material” that had been
provided to Whale Oil, which was currently
being worked through. In addition to
exchanging emails, Mr Williams and Mr Slater texted each other 29 times and
phoned each other
twice on 19 June 2015.
[49] Mr Slater published the blog that Mr Williams had drafted on the
Whale Oil blog immediately prior to (or possibly simultaneously
with) a
press conference called by Mr Craig to announce he was stepping down.
Publication of the blog post contributed to
(but was not the sole cause
of) what was referred to at trial as “a subsequent media
firestorm”. Mr
Williams acknowledged that he knew and intended
that the publication of the blog post would attract all sorts of
media attention and that his intention was that this would put Mr Craig under
pressure and place the Board in a position where it
would be forced to sack Mr
Craig.
[50] Following publication of the blog, Mr Williams maintained his frequent communication with Mr Slater. He sent follow up emails to Mr Slater setting out a list of questions that could be asked of Mr Craig, including such questions as: “Did you try to use a financial dispute to try to pressure a young staff member to sleep with you?” He continued to write further emails and draft blog posts, including one, prior to Mr Craig stepping down, that asked who would take over from Mr Craig as
leader of the Conservative Party given that “Colin Craig’s
departure [was] now
inevitable”.
[51] Over the course of the next three days, Whale Oil published a number
of further articles containing allegations about Mr
Craig and speculating about
the leadership of the Conservative Party.
[52] Mr Williams acknowledged that he knew that there would be
serious consequences for Mr Craig’s personal reputation
and leadership of
the Conservative Party, stemming from the material he disclosed to Mr Slater.
He also acknowledged that he knew
that publication of the “Two of
Me” poem on the Whale Oil website would be humiliating for Mr Craig.
Mr Williams
admitted knowing that the Whale Oil blog was the most visited blog
in New Zealand and that the mainstream media frequently pick up
material from
the Whale Oil blog and run their own stories on the basis of that material.
Mr Williams acknowledged that he
knew that the publication of the
allegations against Mr Craig would be likely to have a detrimental (and likely
terminal) effect
on his position as leader of the Conservative Party, and more
generally on the Conservative Party itself.
[53] Mr Williams also admitted that he knew, at all material times, that
Mr Craig was a party to a confidentiality agreement with
Ms MacGregor that
prevented him from saying anything more than “we have met and have
resolved our differences” in response
to any questions put to him, or
issues raised, by the media in relation to the allegations published by Mr
Williams. Mr Craig
would therefore be unable to provide a substantive
response and denial of the allegations, without breaching (or further
breaching) the confidentiality agreement. (Mr Williams noted, however, that Mr
Craig had already breached the confidentiality agreement
by this time, most
notably in the sauna interview when he referred to Ms MacGregor’s position
having been “job-shared”).
[54] On 22 June 2015, Mr and Mrs Craig held a press-conference. At the press conference, Mr Craig stated that he and Ms MacGregor had met and resolved outstanding matters, but that a lack of detail had meant that some people were “filing in gaps very creatively”. He said that the financial settlement with
Ms MacGregor was based on an invoicing dispute. He denied any
sexual harassment or that the payment he had made was connected
with the sexual
harassment complaint. He stated that, while both he and Ms MacGregor
had behaved inappropriately, they
had both agreed this was the case, so they
could move on.
[55] If the press conference was intended to douse the flames of
speculation and rumour it failed dismally in that objective.
The intense
media speculation and commentary, both on blog sites such as Whale Oil and in
the mainstream media, continued unabated.
[56] On 29 July 2015, Mr Craig called a further press conference at which
he made the Remarks, outlining his belief that he was
the subject of a
“dirty politics” campaign based on false allegations. The Leaflet
was available to the media at that
conference. It was also distributed
nationwide.
Did Mr Williams’ conduct amount to an attack on Mr Craig’s character and/or
reputation?
[57] Mr Romanos did not dispute that, from (at least) February through
until June
2015, Mr Williams published various allegations, as summarised above, which
cast aspersions on Mr Craig’s character and reputation.
Indeed, Mr
Williams did not dispute at trial that, based on what Ms MacGregor told him, he
formed the view that Mr Craig was not
morally fit to lead the Conservative
Party. Further, he believed that he had a duty or obligation to draw Mr
Craig’s character
failings to the attention of influential people within
the Conservative Party. During the course of cross examination, Mr Williams
acknowledged that he knew the messages he was going to convey about Mr Craig
would be likely to be destructive of Mr Craig’s
personal
reputation.
[58] Given this context, Mr Romanos did not seriously dispute that Mr Williams had attacked Mr Craig’s character or reputation. Rather, although he acknowledged that some of the allegations Mr Williams had published were false (in a “literal” sense) Mr Romanos submitted that the overall “sting” of Mr Williams’ attack on Mr Craig’s character was justified. For example, it was open to the jury to conclude
that, even if the relationship was reciprocal at the outset, by 2014 it was
not and that, by that time, Mr Craig’s conduct constituted
sexual
harassment, in the sense of being unwelcome and an abuse of power. If
so, it was neither here nor there that
Mr Williams had erred in
believing that Mr Craig had sent sext messages to Ms MacGregor.
Similarly, although the jury
may not find that Mr Craig had withheld payment of
Ms MacGregor’s invoices to exert pressure on her to sleep with him (an
allegation
that was not supported on the evidence) they may nevertheless find
that Mr Craig demonstrated a general lack of integrity in his
financial dealings
with Ms MacGregor. Essentially, Mr Romanos’ position was that
any attack by Mr Williams on Mr
Craig’s character and reputation was
justified, when viewed in the round.
[59] I was not persuaded, however, that the issue of justification was a
matter that I should take into account when determining
whether or not Mr
Williams’ conduct constituted an attack. As I have already noted, there
are difficult demarcation issues
between the role of Judge and jury in relation
to the defence of qualified privilege. This is particularly so when the
sub-category
of privilege involved is that of “defence to an
attack”. Cases involving this particular defence are, in my view,
fairly
challenging ones to proceed by way of jury trial because of the difficulty in
drawing a clear line between (factual) issues
for the jury and (legal) issues
for the Judge. For example Mr Romanos submitted that the central issue before
me, namely whether
Mr Williams attacked Mr Craig at all, was a factual issue
that should be put to the jury. However, determination of this issue goes
to
the very heart of whether the occasion is one of qualified privilege, which is a
legal issue for the Judge. I therefore proceeded
on the basis that determining
whether there was an attack was an issue for the Court, albeit one that must
be decided based
on undisputed facts (which raises its own
challenges).
[60] Similarly, there are differing views as to whether issues of justification should be considered by the Judge at the first stage of the inquiry (whether the occasion is one of qualified privilege) or by the jury at the second stage of the
inquiry (whether the privilege has been lost). The learned authors of
Gatley on
Libel and Slander state:29
If the defendant is responding to an attack which he knows to be justified he
is guilty of malice, though the view has also been expressed
that in such a case
one might equally well say that there was no privileged occasion.
(footnotes omitted)
[61] In the particular circumstances of this case, I concluded
that the most efficient and appropriate way forward
would be for the issue of
justification to be considered by the jury, at the second stage of the inquiry
(whether the privilege had
been lost). I was not attracted to Mr
Romanos’ suggestion that I put the issue of justification to the jury for
determination
as a preliminary issue, and then determine whether the occasion
was one of qualified privilege in light of their answer. Such a
course appeared
to me to be unduly cumbersome and unnecessary in all the
circumstances.
[62] Given that (on this approach) issues of justification are not relevant at the first stage of the inquiry, I had no hesitation in concluding that Mr Williams did attack Mr Craig’s character and reputation in the first six months or so of 2015. Indeed, the acknowledged purpose of Mr Williams’ communications to the various people I have referred to was to bring to light what he believed to be Mr Craig’s moral unsuitability to lead the Conservative Party. It goes without saying that alleging that a person is guilty of sexual harassment, or that a married man has sent sexually explicit (and unwelcome) text messages to a younger female employee, or that he is dishonest or lacked financial integrity, are matters that are likely to negatively impact the recipient’s views of that person’s character. The disclosures that Mr Williams made were undoubtedly damaging to Mr Craig’s reputation, as Mr Williams acknowledged. The content of the disclosures progressively escalated as the various people that Mr Williams spoke to talked to each other. The allegations therefore gained increasing traction, culminating in the publication of the Whale Oil blog (drafted by Mr Williams) on 19 June 2015, which was in turn picked up by the
mainstream media.
29 Mullis and Parkes, above n 1, at [14.51].
[63] I do accept, however, Mr Romanos’ submission that, for the purposes of determining whether the occasion was one of qualified privilege, the focus must be on Mr Craig’s state of knowledge at the relevant time.30 At the time he published the statements, Mr Craig would not have been aware of all of the detail I have summarised at [21] to [56] above. It is quite clear, however, that he would have been aware (and was aware) of the core substance of many of the allegations made against him, as relayed back to him by Ms Rankin, Mr Day and others. He was also aware of the content of the Whale Oil blog posts, although he likely believed they were
based on information provided by Mr Williams, rather than having been
authored (in at least one case) by Mr Williams himself. Based
on such
information, Mr Craig was clearly aware, by the time he published the Remarks
and the Leaflet, that his character and reputation
were under attack and that Mr
Williams was one of the key people responsible for that attack.
Was Mr Craig’s “reply” relevant to the
attack?
[64] I must now determine the relevance of the statements to the attack.
Did Mr Craig’s statements meet and respond to
the allegations made by Mr
Williams against him? Or did they raise matters that were irrelevant to the
attack?
[65] I have outlined the relevant legal principles at [16] to
[17] above. In summary, statements made in reply to
the attack must be a
genuine response to the matters raised by the attack in order to be protected by
qualified privilege. If some
of the statements are irrelevant to responding to
the attack then, as a matter of law, those statements are not covered by
qualified
privilege. The threshold of irrelevance is a fairly high one,
however.
[66] It was up to Mr Williams to prove that portions of the statements were irrelevant or extraneous to the occasion.31 Mr Romanos did not submit that any specific portions of the statements were irrelevant to the attack. I am satisfied that the statements, taken as a whole and in context, were relevant. Their aim was to either demonstrate that particular allegations made by Mr Williams were false, or were directed to Mr Craig’s belief that he had been subjected by Mr Williams and
others to a “dirty politics” attack of the nature outlined in
Nicky Hager’s book “Dirty
Politics”.
[67] I also accept Mr Mills’ submission that the credibility of Mr
Williams was relevant to Mr Craig’s reply, as it
was in Harbour Radio
Pty Ltd v Trad. Where the strength of an attack is tied in some way to the
veracity or character of the person who made it, attacking those characteristics
is relevant.32 As Earl Loreburn in Adam v Ward put
it:33
...a judge may well think that a man is justified in inculpating his accuser
in order more effectively to exculpate himself, and also
may well think that the
defendant has not exceeded [again in terms of relevance] the privilege when he
has expressed himself with
some warmth under real provocation.
[68] None of the statements were plainly and obviously irrelevant or
extraneous to the attack.
Were the statements made to an audience having an interest in receiving
them?
[69] The final issue that must be considered in order to determine
whether the occasion was one of qualified privilege is whether
the statements
were made to an audience having an interest in receiving them.
[70] The occasion of privilege in making a reply only extends to the
audience of the attack. Accordingly, if Mr Williams had
only published his
allegations regarding Mr Craig to various individuals, such as Ms Rankin
and Messrs Dobbs, Day, Stringer
and McCoskrie, and they had not disseminated
the allegations publicly, then a response to the general public could not have
been
justified.
[71] Mr Williams did not, however, only publish his allegations to the identified individuals. He also provided information to Mr Slater and published a blog on the Whale Oil website making a number of allegations regarding the relationship between Mr Craig and Ms MacGregor. He knew and intended that this would be picked up by the mainstream media, which it was. It then contributed to (but was not the sole cause of) a subsequent media “firestorm”.
[72] Mr Williams’ attack therefore ultimately reached a
nationwide audience, through the Whale Oil blog and the mainstream
media.
Because the attack was made, at least in part, through the media, it was
legitimate for Mr Craig to respond in the same
way.34 As Barton ACJ
in Norton v Hoare (No 1) stated:35
The defendant is allowed to defend himself in the same field in which the
plaintiff has assailed him – if the attack is through
the press, then
again the press may be used in answer: see Laughton v Bishop of Sodor and
Man.
(footnote omitted)
[73] Mr Craig was not restricted to responding through the Whale Oil blog (assuming that would have been possible) on the basis that that was the primary means through which the attack became public. It is apparent from the case law that the relevant focus is not on the particular medium used, but on whether the attack was conducted and communicated to the public at large. If it was, a response to the public at large is permitted. Mr Mills noted that, in at least two of the leading cases, the attack and reply were through different media (albeit both to the public at
large).36
[74] I also accept Mr Mills’ submission that it is relevant that,
from Mr Craig’s perspective, he was responding
to what he saw as
a “dirty politics-styled” campaign against him. Mr Craig was
aware that Mr Williams had been
identified in Nicky Hager’s book
“Dirty Politics” as a person who had had some previous
involvement
in political attacks falling within the category identified by Mr
Hager of “dirty politics”. Mr Craig believed that
he was the victim
of such an attack.
[75] The courts recognise a hierarchy of speech value.37
Speech that relates to democratic values is at the top of this
hierarchy.38 Baroness Hale in Campbell v MGN Ltd explained
the position as follows:39
There are undoubtedly different types of speech, just as there are different
types of private information, some of which are more
deserving of protection in
a democratic society than others. Top of the list is political speech.
The
34 Adam v Ward, above n 2, at 319 per Lord Findlay LC, at 324 per Lord Dunedin, and at 343 per
Lord Atkinson; Harbour Radio Pty Ltd v Trad, above n 12, at [120].
35 Norton v Hoare (No 1) (1913) 17 CLR 301 (HCA) at 318 per Barton ACJ as quoted in Harbour
Radio Pty Ltd v Trad, above n 12, at [26].
36 Harbour Radio Pty Ltd v Trad, above n 12; and Penton v Calwell, above n 10.
free exchange of information and ideas on matters relevant to the
organisation of the economic, social and political
life of the country
is crucial to any democracy. Without this, it can scarcely be called a democracy
at all.
[76] It is therefore relevant that Mr Craig’s intention, at least
in part, was to speak out against what he saw as the tactics
of “dirty
politics “in New Zealand, which he believed to be destructive to the
fabric of New Zealand’s democracy.
Whether or not Mr Craig was correct in
his view is not a matter I need to determine.
[77] Mr Craig was the leader of the Conservative Party, which
was the fifth-highest polling party in New Zealand in
the 2014 general
election. The context in which the privilege is asserted is therefore clearly
political and the issues involve governance
and democratic values, both of which
are “core” values under s 14 of the New Zealand Bill of Rights Act
1990.40 It has been recognised that there is a general public
interest in the actions and qualities of a current or aspiring politician
insofar
as they affect the ability or capacity of the person to meet
their responsibilities as a politician.41 There is also a
“transcendent public interest in the development and encouragement of
political discussion” which “extends
to every member of the
community”.42
[78] Although it is arguably of less relevance, I also accept Mr Mills’ submission that Mr Williams was himself actively engaged in the political world. In 2011, he was the national spokesperson for the “Vote No” MMP referendum campaign. He subsequently founded, and is the Executive Director of, the Taxpayer’s Union. During the relevant period he frequently appeared in the media and was retained by
some media outlets for commentary roles.
37 Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at [132] per Gault P and Blanchard J, and at [235] per Tipping J; Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [243]–[247] per Thomas J; R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [21]; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 (HL) at [148] per Baroness Hale.
38 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne,
2003) at 312; Lange v Atkinson [2000] 1 NZLR 257 (PC) at 260; Morse v Police [2011] NZSC
45[2011] NZSC 45; , [2012] 2 NZLR 1 at [14] per Elias CJ; For similar statements in the United Kingdom see: R v
Shayler, above n 37,at [21]; in Australia see Monis v The Queen [2013] HCA 4, (2013) 249 CLR
92 at [60]; and in Canada see: Harper v Canada 2004 SCC 33, [2004] 1 SCR 827 at 828–829.
39 Campbell v MGN Ltd, above n 37, at [148].
40 Rishworth, above n 38, at 312; Lange v Atkinson (No 1), above n 6, at 458, 462–464 and 468;
Lange v Atkinson, above n 38, at 260.
41 Lange v Atkinson, above n 6, at 468.
42 Lange v Atkinson, above n 38, at 260.
[79] Taking all of these matters into account, I am satisfied
that Mr Craig’s statements in reply were made to
an audience with a
proper interest in receiving them.
Was Mr Williams responding to an attack by Mr Craig on Ms
MacGregor?
[80] I now turn to address an argument advanced by Mr Romanos to the effect that the statements were not made on occasions of qualified privilege because it was Mr Craig who first attacked Ms MacGregor. Mr Williams then simply responded to that attack, in Ms MacGregor’s defence. Although this proposition was not pleaded,
I granted leave to make the necessary amendments43 and considered
the argument on
its merits.
[81] There is Australian case law to the effect that those who initiate
an attack, and are then the subject of a reply, cannot
claim privilege for any
“riposte” or response to that reply.44 The reason for
this is that allowing “an initial defamer to have a right of reply to the
retort of the victim would defeat the
policy upon which the privilege ... is
founded”.45 Allowing a right of reply in such circumstances
would enable the initial defamer to defame the victim twice. This principle
has
not yet been judicially considered in New Zealand, and it has been observed
that, although it has been recognised in Australia, “the
limits of this
doctrine have not yet been clearly established”.46
[82] It is not necessary in this case, however, to embark on a detailed
analysis of the limits of the doctrine. In my view, the
facts I have outlined
above do not support the contention that Mr Williams was simply responding to an
attack by Mr Craig on Ms MacGregor.
[83] The sauna interview on 8 June 2015 is the event that Mr Williams
relied on in
his evidence as the event that formed the basis of Mr Craig’s alleged
attack on
Ms MacGregor, which Mr Williams then responded to. As I have noted
above, in
43 Ruling No 7, above n 5.
44 Mullis and Parkes, above n 1, at [14.52]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1219]–[1225]; Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 at [78]–[82].
45 Kennett v Farmer [1988] VicRp 90; [1988] VR 991(VSC) at 1003–1004.
46 Echo Publications Pty Ltd v Tucker, above n 44, at [80].
the sauna interview, Mr Craig asserted that Ms MacGregor’s Press
Secretary role had been job-shared to reduce the stress
on her. He
implied, in effect, that Ms MacGregor had resigned due to the job being too
much for her (although those were
not his words). Ms MacGregor was deeply upset
at such a suggestion being made, and saw it as casting aspersions on her
professional
abilities.
[84] The difficulty with the submission that the sauna interview somehow
justified Mr Williams’ actions (as a reply to an
attack on Ms MacGregor)
is that Mr Williams’ own attack had commenced well prior to the sauna
interview. By 8 June 2015,
Mr Williams had already spoken with Messrs McVicar,
Dobbs and Day. He had also made various allegations, in late May, to Ms Rankin.
Sometime in early June he made similar allegations to Mr McCoskrie.
[85] I further note that Mr Williams’ conduct would likely
fail to meet the relevance threshold required for
a response to an attack,
given the fairly narrow scope of the comments made by Mr Craig in the sauna
interview. In particular, the
various allegations of sexual harassment that Mr
Williams made did not engage with Mr Craig’s key assertion in the sauna
interview,
which was that Ms MacGregor’s position had been job shared to
relieve her stress. This was the statement that caused Ms
MacGregor
particular concern.
Is the reasonableness of the response relevant to determining whether the
occasion is one of qualified privilege?
[86] Mr Romanos also submitted that the Remarks and Leaflet should not be
recognised as being made on occasions of qualified privilege,
because they
constituted a totally disproportionate response to Mr Williams’ attack on
Mr Craig in terms of their content.
In essence, Mr Romanos submitted that Mr
Craig’s response was unreasonable.
[87] Provided a response is relevant, however, the fact that it is excessive or unreasonable does not prevent an occasion of privilege arising. Rather, an excessive or unreasonable response is a matter that may properly be taken into account by the jury when determining whether the privilege has been lost, as it goes to malice
(or, in New Zealand, ill will).47 As Kiefel J observed in
Harbour Radio Pty Ltd v
Trad:48
A question which therefore arises on this aspect of the appeal is whether
some test of reasonableness of response is to be applied
to limit the scope of
the privilege in a case of this kind. The law clearly requires that defamatory
statements made in response
to an attack be relevant to the allegations made in
the attack or to the vindication of a defendant’s reputation. Statements
which seem excessive in their language or content are to be considered in
connection with the question of the defendant’s malice,
in respect of
which the plaintiff bears the onus of proof. A consideration of the operation
of the privilege and its relationship
with the question of malice does not, in
my view, provide support for a requirement additional to that of relevance, in
order for
the privilege to apply.
[88] I accordingly did not take this issue into account in determining
whether the statements were made on occasions of privilege.
Rather, I directed
the jury in my summing up that this was a matter that they could take into
account in deciding if the privilege
had been lost. I note again, however, that
this is a further example of the demarcation line between the role of Judge and
jury
being a fairly fine one in the context of reply to an attack privilege, as
evidenced by the fact that Mr Romanos viewed this issue
as relevant to whether
an occasion of privilege arose, whereas Mr Mills saw it as one going to the loss
of privilege. Further,
it is apparent from the case law that even counsel
(and occasionally Judges) can struggle with the distinction between
the
relevance of a response and its reasonableness. No doubt drawing
such fine distinctions is even more difficult for a jury.
Summary and conclusion
[89] For the reasons outlined I was satisfied that:
(a) Mr Williams’ conduct during the first half of 2015, based on undisputed facts, constituted an attack on Mr Craig’s character and
reputation;
47 Mullis Parkes, above n 1, at [14.64]. See also Adam v Ward, above n 2, at 339 per Lord
Atkinson; see also 334–335.
48 Harbour Radio Pty Ltd v Trad, above n 12, at [108]. While the majority at [27] and [29] appeared to say that reasonableness is an element, they did not. These statements were in relation to the submissions by either party. The majority said “Neither submission should be accepted”(at [20]).
(b) Mr Craig’s reply (as set out in the Remarks and the Leaflet)
was
relevant to the attack; and
(c) The Remarks and the Leaflet were published to an audience who had an
interest in receiving them.
[90] I rejected Mr Romanos’ submission that Mr Craig had mounted
the original
attack (on Ms MacGregor) and that Mr Williams had simply been responding to
that.
[91] I determined that the issues of whether Mr Williams’ attack
was justified and whether Mr Craig’s response was
excessive or
unreasonable were issues for the jury to consider, in the context of deciding if
the qualified privilege has been lost.
I summed up to the jury on that
basis.
[92] In light of these various findings, it necessarily followed that the Remarks and the Leaflet were published on occasions of qualified privilege. I ruled
accordingly.
Katz J
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