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2017: Half-Year Update

As New Zealand enters (what we’ll call) the Chilly Winter Term, it is timely to observe some important judgments released recently.  Developments have mainly favoured defendants.

Jameel developments

Most importantly—for day-to-day practice, at least—are two decisions involving the Attorney-General, which have ensconced the Jameel doctrine in New Zealand law.

Opai v Attorney-General (formerly Opai v Culpan)

On 18 May 2017, Katz J ruled on the plaintiff’s application for review of orders made by an Associate Judge (formerly a Master) – possibly the last such review to be heard prior to the commencement of the Senior Courts Act 2016.  Associate Judge Bell had applied Jameel to strike out the former first defendant as a party to the proceeding.  He had also struck out from the claim one of the four documents on which the plaintiff was suing, citing Jameel abuse.  Katz J upheld the decision to strike out the former first defendant, but reinstated the document as part of the plaintiff’s claim.  The decision of Katz J can be seen as New Zealand’s first authoritative endorsement and application of the Jameel doctrine.  Katz J also touched on, but did not rule, whether the decision also constituted the removal of the first defendant as an ‘unnecessary’ defendant, having regard to the Attorney-General’s vicarious liability for the first defendant’s actions.

X v Attorney-General 

The Jameel doctrine got a further head of steam just eleven days after Katz J’s judgment, when Simon France J struck out several pleaded ‘reputational claims’.  The Judge struck out the defamation claim—one based on true-innuendo meanings—as Jameel abuse of process.  The Judge considered the pool of potential readers who may have both read the materials and understood them in the defamatory sense alleged, to be very small.  The Judge also noted there was no prospect for further publication. France J additionally struck out the plaintiff’s claim under the Fair Trading Act 1986, and rejected her attempt to frame her grievances under the North American torts of ‘misappropriation of personality’ and/or ‘false-light privacy’ (the latter of which, interestingly, France J employed the Jameel doctrine to strike out).

So at this point, New Zealand’s Jameel application has been somewhat unusual: Jameel has been applied by the High Court to strike out: (a) a plaintiff as a named party to a proceeding; (b) a claim based on true-innuendo meanings; and (c) a false-light privacy claim. If we’re keeping score, the District Court decision of Judge Ingram remains the only New Zealand judgment to strike out a proceeding in its entirety (since other, non-tortious, claims by Ms X will proceed against the Attorney-General).

Insight for privacy buffs: France J expressed doubt that ‘misappropriation of personality’ or ‘false-light privacy’ have a place in New Zealand’s tortious framework. So while in 2012 ‘intrusion upon seclusion’ may have found favour with Whata J, this could be the fullest extent to which New Zealand courts adopt the United States’ Restatements torts (sourced from Harvard Law Professor William Prosser’s seminal 1960 article).

Three important qualified-privilege judgments

Hagaman v Little

On 28 April 2017, Clark J released her reasons for a ruling during the Hagaman v Little jury trial, as to whether the words complained of were published on an occasion of privilege. The reasons are thorough and detailed, serving as a valuable application of the ‘political discussion’ brand of qualified privilege recognised in Lange v Atkinson (No 2). Clark J also found that, couched in constitutional principles, the Leader of the Opposition enjoys an occasion of privilege when he or she engages in speech that purports to scrutinise and/or criticise the government for the purpose of holding it to account.

The other side of the discussion, however, will be the fact the reasons for ruling came out three weeks after the trial – long after the jury’s seats had cooled.  The plaintiffs’ stated intention to appeal the decision has no doubt been derailed by the death of the 92-year-old first plaintiff (the second plaintiff’s claim having been rejected by the jury on the fused issues—at least as they were run in this case—of defamatory meaning and identification).  Perhaps the experience of this delay, and that which occurred in Williams v Craig, where the reasons for a ruling on qualified privilege were also released some time after the verdicts, might bolster the view that, when qualified privilege is raised in a proceeding before a jury, the jury should determine malice before the Judge rules on whether the matter was published on an occasion of privilege.  Indeed, Gatley provides that a Judge is not bound to rule on qualified privilege at the close of evidence – and who would argue with Gatley?

Durie v Gardiner

In an encouraging judgment for responsible media and bloggers (no irony intended), Mallon J refused to strike out the defence of qualified privilege, which was pleaded as “neutral reportage or, alternatively, responsible communications on matters of public interest”.  There were other findings on meanings and honest opinion.

Bright v Town

In the first judgment of the year, on 13 February 2017, the defendant obtained a rare order for summary judgment on Associate Judge Smith’s appraisal of the strength of qualified privilege and incurable defects in the plaintiff’s malice plea.

One for plaintiffs

The best news for plaintiffs over this period was the judgment of Ellis J in Alphacasa v Attorney-General, which has possibly sounded the death knell for a signatory interlocutory move of defendants.  Essentially, the defendants complained that the plaintiff hadn’t indicated which passages in the words complained of gave rise to each of the pleaded meanings.  Ellis J recorded the plaintiff counsel’s concern that such applications were brought by defendants in defamation proceedings with “an almost involuntarily reflexive regularity”.  Her Honour held the meanings were readily ascertainable from the pleadings.  The judgment also reflects the relative ease through which plaintiffs may pass interlocutory stages with causes of actions based on republications of alleged defamations.  All it seems the plaintiff has to do, is ensure the claim pleads expressly that the defendant “caused” the defamatory republications of the sting of the original publication, with a few particulars in support of the same. Whether the republication was in fact reasonably foreseeable will be left to the jury.

Procedural judgments

While not addressing defamation-law principles directly, some other interesting judgments were released in defamation actions.

In Williams v Craig, Katz J set aside the jury’s record-breaking damages awards ($1.05m in general damages; $220,000 in punitive damages) as excessive, and ordered a full retrial.  The decision has been appealed and cross-appealed, with a Court of Appeal hearing likely to be heard later in the year or early 2018.

In Craig v Slater, a proceeding heard recently over four weeks by Toogood J (sitting without a jury), two pre-trial decisions are of note.  First, the plaintiff (and cross-claim defendant) was granted an application for a judge-alone trial.  The plaintiff then was granted an application to have a barrister appear as a McKenzie friend.  Following closing addresses over 1 and 2 June 2017, Toogood J has reserved his decision relating to fifteen or so causes of action (between the claim and counterclaim).

In Craig v Stiekema, the plaintiff obtained an ex tempore order transferring the High Court proceeding to the District Court, the effect of which being to take away the proceeding from a jury (there being no civil jury trials in the District Court).  The proceeding is set down for hearing on 12 July 2017 of the defendant’s application to strike out the proceeding as, inter alia, Jameel abuse.

Finally, on 31 May 2017, Williams J heard an application by the defendants in Smallbone v London to strike out the proceeding for want of prosecution. On 7 June 2017, the application was dismissed.

Upcoming proceedings

In Arnold v Fairfax & Shadbolt, a two-week jury trial has been set down for 26 February 2018, with Mallon J presiding.  Pundits understand this will be the first civil jury trial to be set down in Invercargill since Murphy v Kelly in 1919 (settled on the eve of trial, but which, as a sign of different times, would have been the eleventh libel jury trial in Invercargill since 1882).