Ambrose v Key
[2015] NZHC 2388
•2 October 2015
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4650
[2015] NZHC 2388
BETWEEN BRADLEY CHRISTOPHER GEOFFREY AMBROSE
PlaintiffAND
JOHN PHILLIP KEY
Defendant
Hearing: 28 August 2015 Appearances:
M Salmon and D Nilsson for the Respondent/Plaintiff
B C Gray QC and J Greenleaf for the Applicant/Defendant
Judgment:
2 October 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 2 October 2015 at 12pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:………………………….
Solicitors:
Dominion Law, Auckland. Shortland Chambers, Auckland.
AMBROSE v KEY [2015] NZHC 2388 [2 October 2015]
Introduction
[1] The plaintiff, Bradley Ambrose, has brought a defamation claim against the defendant, Rt Hon John Key, in relation to a number of allegedly defamatory comments the defendant made about him.
[2] The trial is due to commence in February 2016. The defendant applies to have particulars of the second amended statement of claim struck out in accordance with r 15.1(1)(b) of the High Court Rules (Rules) on the grounds they are irrelevant and raise scandalous material.
Facts
[3] On 11 November 2011, the defendant, Prime Minister of New Zealand and the leader of the National Party, attended a meeting with Hon John Banks, the then ACT Party candidate for the Epsom electorate (the Meeting).
[4] The Meeting formed part of the National Party’s and ACT Party’s respective 2011 general election campaigns.
[5] Prior to the Meeting, representatives from all major New Zealand news media agencies were invited to film, take notes and report about the fact that the defendant was endorsing Mr Banks as a candidate for the Epsom electorate in the 2011 general election.
[6] Part of the discussion in which the defendant and Mr Banks were engaged was recorded by the plaintiff through a recording device left by him at the table at which they were seated (the Recording).
[7] The plaintiff says the Recording was procured inadvertently.1 In an interview with the New Zealand Herald on 13 November 2011, the plaintiff stated that the defendant’s security staff had stopped him from retrieving the recording device and
1 The plaintiff on 17 November 2011 filed an affidavit in the High Court at Auckland in support of a declaration that the Recording was not of a “private communication” under the Crimes Act 1961, in which he gave evidence on oath that the Recording was procured inadvertently.
that the recording device had transmitted the discussion to his camera equipment but he was not aware of the Recording until after the Meeting.
[8] On three separate occasions after the Meeting, the defendant made allegedly defamatory statements about the plaintiff in relation to the Recording (the Statements). They are set out below.
Press Conference of 14 November 2011
[9]The defendant talked to reporters about the plaintiff and the Recording.
[10] Among other things, he said it was his belief that the Recording was deliberately made by way of “secret taping” to get information. He said “I’m not going to reward News of the World tactics”2 and that “there’s no place for it in New Zealand”.
[11] The plaintiff’s explanation that the Recording was inadvertently obtained was put to him. The defendant said the plaintiff “will be able to answer to those in due course to the Police.”
Firstline Interview of 15 November 2011
[12]The defendant was interviewed by a Firstline 3 News programme reporter.
[13] When asked whether he had a clear conscience about the Recording, the defendant said:
I think it’s the Herald on Sunday and the cameraman that may not have a clear conscience… And, you know, if you look what the Herald on Sunday has
2 “News of the World tactics” refers to the scandal in which the ‘News of the World’ tabloid newspaper engaged journalists and a private investigator to intercept voicemail messages of public and private figures in the United Kingdom, including British royalty, footballers and politicians. The critical moment in the affair came when the Guardian newspaper reported that News of the World had hacked into the mobile phone of a 13 year old victim, who was abducted and killed in 2002 while walking home from school. Her body was found approximately six months after she was reported missing. The private investigator hacked into the victim’s voicemail, listened to her messages and deleted some voice messages to make room for new ones, which gave false hopes that she was still alive. The scandal led to the establishment of the Leveson Inquiry in July 2011 by David Cameron, Prime Minister of the United Kingdom, which led to the closure of the News of the World newspaper, announced on 7 July 2011.
potentially done in cahoots with this freelancer is, quite possibly, deliberately gone and done that, at least all the indications are.
[14]Reference was again made to “News of the World tactics”.
[15] When it was put to him that there is a distinction between leaving a microphone on a table and hacking into the phone of a child who has been murdered, the defendant replied:
No it’s not. No it’s not. It’s an illegal attempt to get information, and that’s the principle.
Main Street statements of 16 November 2011
[16] The defendant talked to reporters on Main Street about the plaintiff and the Recording.
[17] The defendant maintained that New Zealanders care about important issues, “not illegally conducted taping”. He said, “I believe it was illegally taped” and emphasised that those responsible for the Recording “have some questions to answer about illegal taping… to the Police”.
[18]He added:
… I’m taking a principled stance. I believe in the principle which it is illegal to tape people without their knowledge unless one party consents to that. Now I’m going to stand up for that principle, and I’ve said before, it’s all very well starting with me, but it will move to a lot of other New Zealanders, it would change dramatically the way I can conduct my business and do things, because I would have to be on the lookout for that every second.
[19] No apology or retraction has been made by the defendant since the making of the Statements.
The plaintiff’s second amended statement of claim
[20]The plaintiff’s three causes of action are based on the Statements.
[21] In essence, the claims are that references to “cameraman”, “freelance” and “Herald on Sunday” were intended to, and were understood to mean, references to the
plaintiff. The plaintiff says the Statements, in light of the context, were intended to mean that he committed a crime by deliberately making the Recording; acted unethically and immorally by deliberately making the Recording; and is a person who deliberately engages in immoral behaviour. References to the “News of the World tactics” meant and were understood to mean that his actions in making the Recording were akin to the type of conduct (including illegal phone hacking) as that of the News of the World scandal, and that his conduct was of a similar unethical, illegal and immoral standard.
[22] The plaintiff says he has suffered injury to his character and reputation, including his professional reputation as a freelance cameraman and journalist. He says he is entitled to punitive damages because, at the time the Statements were made, the defendant was aware the plaintiff maintained that the Recording was inadvertently made. He says the defendant acted recklessly as to the truth of the Statements and was motivated predominately by concerns about his political interests.
[23]The plaintiff seeks general and punitive damages in the sum of $500,000.
The defence
[24] In the statement of defence in response to the first amended statement of claim,3 the defendant says he was aware that the plaintiff maintained the Recording was inadvertently made but honestly believed the plaintiff made it deliberately.
[25] The defendant denies the meanings pleaded and raises three defences: truth, honest opinion and qualified privilege.
[1] 3 A statement of defence in response to the second amended statement of claim has not been filed. Mr Gray QC confirmed at the hearing that the defendant may file one depending on the outcome of this application.
Truth
[26] The defendant relies on s 8(3)(b) of the Defamation Act 1992 (the Act), that is, the publication taken as a whole was in substance true or not materially different from the truth and sets out the particulars in his statement of defence.
Honest opinion
[27] The defendant pleads honest opinion under ss 9 to 12 of the Act, relying on those same particulars.
[28] In respect of each of the Statements, the defendant says he was expressing his own genuinely held opinion on a matter of legitimate public interest, as set out in schedule A.
Qualified privilege
[29] The defendant also claims common law qualified privilege in that, as Prime Minister of New Zealand and as a person who makes statements to and is interviewed by the press most days, he had a duty in relation to the matters set out in schedule A and the public had a corresponding legitimate interest in those matters.
[30] The defence is that the Statements were directly relevant to the matters set out in schedule A and, as such, were made on an occasion of qualified privilege. Further, that the nature and extent of the matters set out in schedule A justify the nature and extent of the Statements.
[31]Schedule A lists the matters of legitimate interests as:
1 Maintenance of reasonable expectations of privacy and confidentiality in private conversation, including between politicians.
2 Whether any reasonable expectations of privacy and confidentiality held by politicians are modified by there being a campaign for a General Election.
3 Freedom of members of the public including politicians from unauthorised recording of private conversations.
4 Whether it is or should be illegal in New Zealand to make an electronic recording of a voice conversation without the knowledge of the participants to the conversation.
5 Whether it is or should be illegal in New Zealand to make an electronic recording of a voice conversation without the consent of the parties to the conversation.
6 Whether politicians should be able to engage with members of the public without fear of their voice conversations being electronically recorded without their knowledge or consent.
7 Whether concerns expressed in the United Kingdom about journalistic practices employed by News of the World and other reporters applied in New Zealand to recording of conversations between politicians which were not intended to be recorded and for which no consent had been given to recording.
Plaintiff’s reply to statement of defence
[32] In his reply to the statement of defence, the plaintiff denies that the Statements were the truth.
[33] The plaintiff denies that the defendant honestly believed the plaintiff made the Recording deliberately. If the Statements were statements of opinion, the plaintiff says that opinion was not genuinely held by the defendant.
[34] The plaintiff denies the matters set out in schedule A are of genuine and legitimate interest to the public.
[35] In respect of the claimed common law qualified privilege, the plaintiff denies that the defendant had a duty in relation to the matters set out in schedule A and that the public had a corresponding legitimate interest in those matters. Furthermore, the plaintiff denies that the Statements were published on a privileged occasion and, if they were, says that when publishing the Statements, the defendant was primarily motivated by ill will towards the plaintiff or otherwise took improper advantage of any occasion of privilege. The plaintiff denies the nature and the extent of the matters set out in schedule A justify the nature and extent of the Statements.
[36] In accordance with ss 39 and 41 of the Act, the plaintiff has given notice of his allegation that the defendant’s opinion was not genuinely held and provides particulars of the facts and circumstances in support of that allegation, relevantly saying:
The Defendant made the statements without an honest belief in the truth of the facts underlying his statements regarding the Plaintiff, and for the purposes of placing priority on political expediency rather than on proper investigation or fairness to the Plaintiff and in the circumstances not having an honest belief based on reasonable grounds …
[and the defendant]
(iii) Made the defamatory statements in his capacity as Prime Minister of New Zealand and/or the leader of the National Party, knowing that his statements would be widely published to the general public and would carry significant weight with the general public.
(iv) Was motivated in making the defamatory statements by political expedience, including (but not limited to) a desire to direct public discourse regarding the incident away from the contents of the Recording prior to the general election on 26 November 2011.
[37] The plaintiff has also given notice under the Act that the plaintiff intends to allege that, if the Statements were published on a privileged occasion, the defendant was predominantly motivated by ill will towards the plaintiff or otherwise took improper advantage of the occasion of publication. The particulars of facts and circumstances include:
The Defendant took improper advantage of the occasion of privilege:
(a) The Defendant's purpose for making the statements was to protect his own political interests and those of National (rather than any duty owed to the general public of New Zealand), including (but not limited to) a desire to direct public discourse regarding the incident away from the contents of the Recording prior to the general election on 26 November 2011.
Strike-out application
[38] The defendant applies to have the particulars contained in paragraphs 26, 27, 28, 29, 30 and 41(a) and 41(l) to (n) in the second amended statement of claim (the Particulars) struck out under r 15.1(1)(b) of the Rules on the basis they are irrelevant and scandalous.
[39] Paragraphs 26 to 30 are contained in the first section of the second amended statement of claim, under the heading “Defendant’s opinions and actual conduct”. They provide:
26. At all material times the defendant had a modus operandi of seeking to undermine the credibility of the source of potentially politically embarrassing or damaging publicity to avoid having to engage with the substance of such information.
27. At all material times the defendant held the view that it is permissible to access personal information about individuals without their knowledge or consent where the relevant individuals have not ensured that the relevant information is sufficiently protected. Further particulars to be provided following discovery and at trial.
28. At material times the defendant has utilised spy agencies to spy upon or take surveillance of private communications for personal and/or political advantage and/or for the purposes of his allies’ personal and/or political advantage. Further particulars to be provided following discovery and at trial.
29. Since approximately 2008 the defendant has been aware of and/or authorised and/or overseen a media/political strategy involving:
(a)The seeking out and/or receiving of personal and private information regarding persons who are or may become politically at odds with the defendant and/or National;
(b)The dissemination of such information, including embarrassing information, at times calculated to benefit the defendant and/or National and/or to harm the subjects of such information;
(c)The utilisation of third parties to obtain such information including but not limited to the defendant’s office and staff, bloggers (including without limitation Cameron Slater and persons associated with him and his website Whaleoil), and New Zealand spy agencies;
(d)The utilisation of third parties to disseminate such information including but not limited to the defendant’s office and staff, bloggers (including without limitation Cameron Slater and persons associated with him and his website Whaleoil).
Further particulars to be provided following discovery and trial.
30. Since aspects of the above media/political strategy have become public, the defendant has defended them and/or failed to investigate them and/or failed to criticise the conduct including by not asserting criminality or “News of the World tactics” and/or chosen not to make any complaint to the Police or other relevant authorities.
[40]In the section relating to punitive damages, paragraph 41 relevantly provides:
41. The plaintiff is entitled to punitive damages including because:
(a)The plaintiff repeats paragraphs 26-30.
…
(l)Following the Defendant becoming aware of the Recording the Defendant either personally or through persons acting on his behalf and/or for the benefit of his personal or political interests and/or for the interests of the National Party (including but not limited to Paula Oliver, Jason Eade, Wayne Eagleson and Kevin Taylor), communicated with third parties regarding the Plaintiff and/or the Recording.
(m)The third parties to the communications included publishers of blogs (including but not limited to Cameron Slater or other persons involved with the Whale Oil Beef Hooked website ( communications were had with those third parties with a view to the third parties publishing materials regarding the Plaintiff and/or the Recording which could benefit the Defendant and / or his personal or political interests and/or the interests of the National Party.
Principles relating to strike-out
[41]Rule 15.1 of the Rules provides:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court’s inherent jurisdiction.
[42] The principles relating to the criteria for strike out are well established. Pleaded facts, whether or not admitted, are assumed to be true though this does not extend to pleaded allegations which are entirely speculative and without foundation. The court will not strike out a claim summarily unless it can be sure that it cannot succeed.4
[43] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal said:5
[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible.
[44] In terms of r 15.1(1)(b), the decision of Van der Kaap v Attorney-General is the leading authority on the meaning of a scandalous and irrelevant proceeding.6 The relevant rule at the time was r 186(b) which provided that the court may strike out proceedings where a pleading is “likely to cause prejudice, embarrassment or delay or is otherwise an abuse of process.”
[45] Hammond J stated the words “prejudice”, “embarrassment” and “delay” are to be given a liberal meaning and include proceedings which are both scandalous and irrelevant. The Judge explained:7
This Court also has a general jurisdiction to expunge scandalous matter in any proceedings. The matter must be both scandalous and irrelevant…
Allegations of dishonesty and outrageous conduct are not scandalous if relevant to the issue... The sole question whether a pleading contains scandalous material is whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the pleading which is material with reference to the relief prayed…
4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 (footnote omitted).
6 Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC).
7 At 165.
[46] The courts have emphasised that the jurisdiction is sparingly utilised. If the defect in the pleadings can be cured, the court would normally order an amendment of the statement of claim. Rule 5.21(4) empowers the court to order further particulars even in the absence of any notice being served by the opposing party.
The function of pleadings
[47]It is necessary by way of background to consider the function of pleadings.
[48] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal summarised the procedural requirements for statements of claim under rules 5.17, 5.26 and 5.27 as follows:8
·The pleading must be accurate, clear and intelligible.
·Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met.
·While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.
·Separate causes of action must be separately stated.
·The pleading should set out all the elements of the cause of action.
·The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated.
[49] Although the Rules do not explicitly state the purpose of pleadings, the principle reiterated is that the function of pleadings is to clarify and define the issues for the court, as well as to inform the opposite party in preparation for trial.9
8 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 5, at [84].
9 See generally Thomson v Westpac Banking Corporation (1986) 2 PRNZ 505 (HC); Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17: “pleadings are an essential road map for the Court and the parties… They are documents which establish parameters of the case, not the briefs of evidence.”; Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366 where it was stated that if the plaintiff has not clearly defined the issues which the defendant has to meet, “it is difficult for a defendant to prepare for trial…”
[50] The need for proper pleadings is important because they act as a “road map” for the court and the parties throughout all stages of the proceedings.10 They are a reference point for seeking of particulars, obtaining discovery orders as well as determining the admissibility of evidence and the permissible realms of cross- examination. The answer to each of these will always come back to whether and how the issue was originally framed in the pleadings.
[51] The function of particulars is different; it being to fill in the picture of the applicant’s cause of action with information sufficiently detailed to put the respondent on notice as to the case to be met and to enable preparation for trial. There is in practice some overlap between pleadings and particulars and it is often difficult to distinguish between a material fact and a “particular” piece of information it is reasonable to give in order to set out the case the other side has to meet.
[52] Rule 5.26(b) holds that the statement of claim must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party against whom relief is sought of the plaintiff’s cause of action.
Relevance
[53] For the defendant to succeed in his application, the Particulars must be both scandalous and irrelevant. The real issue in the present case is whether the Particulars are relevant.
[54]Relevance under s 7(3) of the Evidence Act 2006 is of guidance. It provides:
Evidence is relevant in a proceeding if it has a tendency to prove or to disprove anything that is of consequence to the determination of the proceeding.
[55] To be relevant, the evidence must be material and probative. The question is whether the evidence has some probative tendency, not whether it has sufficient probative tendency.11 The concept of materiality, encapsulated by the phrase, “is of
10 Price Waterhouse v Fortex Group Ltd, above n 9, at 19.
11 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
consequence to the determination of the proceeding”, requires the evidence to be about a matter or fact at issue in the case.
Analysis
[56] For the purposes of this application, the claimed meanings of the Statements must be deemed true. They are:
In their natural and ordinary meaning, or by necessary implication, the passages … mean and were understood to mean:
(a)The plaintiff had committed a crime by deliberately making the Recording;
(b)The plaintiff had acted unethically by deliberately making the Recording;
(c)In making the Recording, the plaintiff had acted deliberately and immorally; and
(d)The plaintiff is a person who deliberately engages in immoral behaviour. [The Statements]
… mean and were understood to mean, by the person with knowledge of the matters pleaded in those paragraphs that:
(a)The plaintiff’s actions in making the Recording were akin to the type of conduct (including illegal phone hacking) engaged in by the News of the World (through its investigators);
(b)The plaintiff’s actions in making the Recording were of a similar legal, ethical, and moral standard to those in the News of the World scandal generally in that they were illegal, unethical and immoral.
(c)The plaintiff, as a journalist, is a person who engages in behaviour akin that engaged in by the News of the World, and generally condemned by the international media.
Issues in dispute
[57] Counsel have referred, in a general sense, to the issues which will arise in the substantive proceeding. However, for the purposes of this application, it is necessary to identify them clearly in order to determine the relevance of the Particulars. Leaving aside the question of whether the Statements were true, the issues seem to be:
(a)Were the Statements intended to mean that the plaintiff acted unethically and immorally?
(b)Were the Statements intended to mean that the plaintiff’s actions were akin to News of the World tactics and were therefore unethical, illegal and immoral?
(c)In making the Statements, was the defendant primarily motivated by concerns about his political interests?
(d)In relation to the defence of honest opinion (ignoring for present purposes the issue of whether it was the defendant’s honest opinion that the plaintiff made the Recording deliberately):
(i)Was it the defendant’s genuinely held opinion that:
(1)the plaintiff’s conduct was akin to that of News of the Word tactics and that there is no place for such tactics in New Zealand;
(2)as a matter of principle, he was concerned about illegal attempts to obtain information; and
(3)as a matter of principle, he was concerned about illegal taping of people without their knowledge.
(ii)Was it the defendant’s genuinely held opinion that the issues set out in
(i) above are of legitimate public interest?
(e)In relation to the defence of qualified privilege:
(i)Did the defendant have a legal, social or moral duty or interest in relation to the matters set out in schedule A?
(ii)Was the public legitimate interest confined to private conversations?
(iii)Was the defendant primarily motivated by ill will or did he take improper advantage of the occasion of publication?
[58] In respect of this application, the issues relevant to the Particulars can be summarised as:
(a)whether the defendant, in making the Statements, was honestly concerned as a matter of principle about the matters referred to in paragraph [57](d) or whether the Statements were made without an honest belief in them and for political expediency; and
(b)whether the defendant was motivated by ill will towards the plaintiff or otherwise took improper advantage of the occasion of publication when making the Statements.
Paragraph 26
[59]Paragraph 26 of the statement of claim alleges that:
At all material times the defendant had a modus operandi of seeking to undermine the credibility of the source of potentially politically embarrassing or damaging publicity to avoid having to engage with the substance of such information.
[60]Mr Gray submitted paragraph 26 should be struck out because:
(a)reference “at all times” is unreasonably wide;
(b)the allegation is that the defendant had a general way of doing things; and
(c)it is a propensity type allegation without the necessary specificity.
[61] In Mr Gray’s submission, if matters are relevant in an evidential sense then cross examination on them will be proper. A matter can be relevant for cross examination though not specified in a pleading and thus the question of relevance should be left for the trial Judge to decide, he said. Mr Gray contended that, by including these types of allegations in Particulars, the plaintiff is seeking to forestall any objection at trial.
[62] It is, in Mr Salmon’s submission, inconceivable that the defendant will not be able to be asked about these matters at trial. Furthermore, he said, it is inconsistent to say that the Particulars are irrelevant to the pleading but could be relevant at trial.
[63] The general principle is that all matters relevant to the plaintiff’s case must be pleaded at the outset. As the Court of Appeal in Hopper Group Ltd v Parker stated:12
…if the case goes to trial without precise pleadings, much time can be wasted and a defendant might be taken by surprise when the real issue not previously stated clearly suddenly emerges.
[64] If a matter is relevant to an issue in dispute, it should be particularised. The allegation in paragraph 26 is directly relevant to the question of whether or not, in making the Statements, the defendant was predominately motivated by ill will or took improper advantage of the occasion of publication such that the defence of qualified privilege is lost. These issues have already been pleaded in the plaintiff's notice of particulars under the Act. The particular adds to those pleadings only by alleging the defendant has a tendency to act in the way alleged.
[65] The allegation is of a wide and general nature and does not provide sufficient detail to meet the requirements of a particular. No example of the type of behaviour alleged was given at the hearing and there is no indication that any specificity is to be provided.13
[66] For these reasons, paragraph 26 is struck out. How this allegation is dealt with at trial is a matter for the trial judge.
Paragraph 27
[67]Paragraph 27 of the statement of claim alleges that:
At all material times the defendant held the view that it is permissible to access personal information about individuals without their knowledge or consent where the relevant individuals have not ensured that the relevant information is sufficiently protected. Further particulars to be provided following discovery and at trial.
12 Hopper Group Ltd v Parker, above n 9, at 366.
13 Compare, for example, paragraphs 27, 28 and 29 of the pleadings where it is stated “Further particulars to be provided following discovery and at trial.”
[68] Mr Gray’s objection was that, first, the phrase “at all material times” refers to some undefined period and, secondly, the paragraph relates to the defendant’s belief and does not assist in clarifying whether the defendant honestly believed what he said was true.
[69] In Mr Gray’s submission, the pleading is vague and unparticularised and is simply a fishing expedition seeking to impose discovery obligations on the defendant.
[70] Mr Salmon said that paragraph 27 is relevant to the defence of honest opinion because what the defendant has previously said on record about the hacking of the Labour Party website, for example, is at odds with his moral indignation at the plaintiff’s conduct.14
[71] Mr Salmon explained that the paragraph is unparticularised because, although the circumstances on which the plaintiff relies can be particularised with reference to what is already in the public domain, there may be other examples of prior inconsistent statements and/or conduct which become available during discovery about which the plaintiff does not yet know. The plaintiff should not be disadvantaged by not having the necessary documentation to know if any answers given in cross-examination could be challenged or not, Mr Salmon said. He relied on the Supreme Court decision of Hickson v Scales in support of the view that the plaintiff may well have imperfect knowledge of what the defendant has actually done, ignorance of which might relieve the defendant from being held responsible with respect to the claim.15 It is the defendant who knows whether he did what the claim alleges he did.
[72] In Mr Salmon’s submission, this is not of a fishing expedition and does not impose oppressive discovery requirements and, if this were contended, then an application could be made in that regard.
14 A Labour Party website security flaw allowed a database containing supporters’ personal information to be freely downloaded in mid-2011. The database included a mailing list containing the names and email addresses of about 18,000 supporters and a list of hundreds of recent online donations, complete with names and amounts given. The defendant is reported to be on record saying that even if Mr Ede, who was linked to the National Party, covertly accessed the Labour Party’s computer systems, “… it would be fine to go and do that” because they were unprotected (saying, “he may have seen it but it was wide open for anyone to see”).
15 Hickson v Scales (1900) 19 NZLR 202 (SC).
[73] I accept that paragraph 27 is relevant to the issue of whether the defendant’s opinion about the matters referred to in paragraph [57](d) was honestly held. While the defence has tried to confine matters of legitimate public interest to what is contained in schedule A, being privacy expectations about private conversations, the Statements themselves were not limited in that way. For example, on the second occasion of alleged defamation, the defendant referred to his principles about “… an illegal attempt to get information.”
[74] The plaintiff is, however, required to particularise the circumstances on which he presently relies (although this is not limited to the specific examples Mr Salmon gave at the hearing) in accordance with r 5.26(b). Reliance on “Further particulars following discovery and at trial” is considered from paragraph [97] below but it is difficult to see what disclosure will flow from the particular, in any event.
Paragraph 28
[75]Paragraph 28 of the statement of claim alleges that:
At material times the defendant has utilised spy agencies to spy upon or take surveillance of private communications for personal and/or political advantage and/or for the purposes of his allies’ personal and/or political advantage. Further particulars to be provided following discovery and at trial.
[76] This, again, in Mr Gray’s submission, is a propensity type allegation which fails to provide the necessary specificity.
[77] Furthermore, he said, there is no allegation that any surveillance of private communications which might have occurred was used against the plaintiff. However, that is not the plaintiff’s case. The plaintiff’s allegation is that the defendant himself has been involved in privacy breaches and therefore his claimed opinion was not genuinely held.
[78] Mr Gray then said the issue will be whether or not the defendant believed that the plaintiff acted in a way which can be compared to the News of the World journalists. If the defendant did not believe the plaintiff acted in that way, then he would not be able to avail himself of the honest opinion defence.
[79] However, the plaintiff’s claim is not limited to the comments about the News of the World journalists. It also concerns comments by the defendant to the effect that issues surrounding privacy in private communications are a matter of principle to him. The plaintiff’s case is that the defendant cannot have honestly held this view based on his prior inconsistent behaviour.
[80]The particular is therefore relevant to the honest opinion defence.
[81] In response to Mr Gray’s criticism that the pleading is not sufficiently detailed, Mr Salmon said there can be further particularisation based on what is already in the public domain, for example, the allegation that the government used spyware to observe Hon Tim Groser’s rival candidates for the position of the World Trade Organisation director-general; his point being that there may be other examples not within the plaintiff’s knowledge at this stage.
[82] For the same reasons stated at paragraph [74] above, the particular should contain the matters within the plaintiff’s knowledge and an order for further particulars is made.
[83] It could be said that this allegation, when particularised, is not relevant to the pleaded defence because schedule A covers only private conversations. That is, the fact that a government spy agency might have programmed an internet surveillance system to intercept emails about rival candidates is not relevant because it falls outside of the realm of “private conversations”. In my view, it would be artificial to approach the matter in this way. When particularised, paragraph 28 will relate to “electronic eavesdropping” which must be relevant to the circumstances of this case as it involves the freedom to communicate in private.
[84] It is, however, irrelevant and scandalous to suggest the defendant used spy agencies for his personal advantage or that of his allies. No foundation for this allegation has been advanced (save potentially with regard to Hon Tim Groser and this will be particularised) and reference to it is therefore struck out.
[85] Furthermore, this particular is not to be construed as raising issues about national security or requiring disclosure in that regard. Although the question of disclosure is not before me, it is likely that disclosure will be limited to matters particularised.
Paragraphs 29 and 30
[86]Paragraph 29 of the statement of claim alleges that:
Since approximately 2008 the defendant has been aware of and/or authorised and/or overseen a media/political strategy involving:
(a)The seeking out and/or receiving of personal and private information regarding persons who are or may become politically at odds with the defendant and/or National;
(b)The dissemination of such information, including embarrassing information, at times calculated to benefit the defendant and/or National and/or to harm the subjects of such information;
(c)The utilisation of third parties to obtain such information including but not limited to the defendant’s office and staff, bloggers (including without limitation Cameron Slater and persons associated with him and his website Whaleoil), and New Zealand spy agencies;
(d)The utilisation of third parties to disseminate such information including but not limited to the defendant’s office and staff, bloggers (including without limitation Cameron Slater and persons associated with him and his website Whaleoil).
Further particulars to be provided following discovery and trial.
[87]Paragraph 30 of the statement of claim alleges that:
Since aspects of the above media/political strategy have become public, the defendant has defended them and/or failed to investigate them and/or failed to criticise the conduct including by not asserting criminality or “News of the World tactics” and/or chosen not to make any complaint to the Police or other relevant authorities.
[88]Paragraphs 29 and 30 are interrelated and best considered together.
[89] In Mr Gray’s submission, paragraph 29, at best, pleads matters properly the subject of evidence. In any event, any such strategy is not, in Mr Gray’s submission, relevant to a genuine belief or any motivation by ill will.
[90] Mr Gray noted that, in respect of the defence of qualified privilege, there is no allegation the defendant was motivated by ill will towards the plaintiff. That is not correct. The plaintiff has served the notice required under the Act in this regard.
[91] In Mr Gray’s submission, the plaintiff is simply trying to create a platform from which to make wide ranging allegations against the defendant.
[92] Mr Salmon submitted that it is not simply ill will which is relevant but also the issue of improper advantage which, in his submission, will be the real issue here. That is, the defendant says it was his duty to inform New Zealanders of what happened but has in the past declined to answer similar questions regarding others with whom he was involved, for example, his staff and political allies.
[93] Mr Salmon relied on the case of Lange v Atkinson as authority for the proposition that occasions of privilege are fact dependent, the circumstances of which may show that the defendant did not exhibit the necessary responsibility when purporting to act under the cloak of qualified privilege and hence abused that privilege.16 The plaintiff’s position is that the defendant, a popular public figure, made widely published defamatory comments about an unknown New Zealander. That, in Mr Salmon’s submission, is an example of where extreme care would be required.
[94] The plaintiff’s case is that the defendant is claiming a duty to tell the public what he thought about the matters contained in schedule A whereas he has refused to comment on other occasions when it is alleged a party’s privacy has been breached. As an example of this, Mr Salmon referred to the defendant’s reaction when asked about the hacking of the Labour Party website where, Mr Salmon said, the defendant is on record of making comments to the effect that he had no problem with it. These types of issues must be relevant to the claim of qualified privilege, in Mr Salmon’s submission.
[95] In my assessment, paragraph 29 has been extremely widely drafted such that it goes beyond what is relevant and properly pleaded. It needs to be redrafted so it is focused on the issues at trial as identified at paragraph [57] above. For example, it is
16 Lange v Atkinson [2000] 3 NZLR 385 (CA) at [43].
too wide to allege that the defendant “has been aware of” a strategy; the strategy must surely be a political one even though it might involve the use of the media; the information must be private rather than simply personal; reference to those who “may become” politically at odds with National should be deleted; the allegation must be limited to “National” (which, in any event, needs to be clarified) and reference to the defendant, to the extent the allegation extends to him in his personal capacity, should be deleted; reference to “embarrassing information” should be deleted. Reference to “New Zealand spy agencies” should be deleted because no foundation has been laid for that allegation so it is irrelevant (and particularly scandalous).
[96] While I accept that the matters referred to by Mr Salmon are relevant to the issue of qualified privilege and honest opinion, the particular is far too wide. I accept Mr Gray’s submission that it has the flavour of the plaintiff seeking to use the proceedings as a political tool to raise accusations levelled against the current government during all its terms. The plaintiff clearly has in mind specific examples of alleged behaviour and it is those which should be particularised.
“Further particulars to be provided following discovery and at trial”
[97] I accept that paragraphs 27, 28, 29 and 30, if pleaded with sufficient specificity, meet the threshold for relevance. The matters identified would be admissible in evidence as material to and probative of the pleaded defences. They fulfil the purpose of particulars and put the defendant and the court on notice of the plaintiff’s case.
[98] The next issue is whether the phrase “Further particulars following discovery and at trial” in paragraphs 27, 28 and 29 is proper.
[99] I accept that the usual expectation of detailed particulars may give way in cases where the party who would be entitled to particulars has knowledge concerning those particulars which the other party does not have.17 It may be that, following disclosure, the plaintiff will be able to supplement the particulars but, as ordered, specificity is required now in respect of matters within the plaintiff’s knowledge. As referred to above, it seems to me unlikely that discovery will be ordered beyond the matters
17 Truck Master Ltd v Mastagard Waste Ltd [2014] NZHC 1676 and Hickson v Scales, above n 15.
specified in the particulars as amended. However, it is conceivable that further matters could arise as a result of discovery and therefore reference to further particulars to be provided following discovery can remain.
[100] Mr Salmon contended that a defamation case includes the conduct of the defendant at trial. However, the particulars complained of do not refer to alleged behaviour at trial but provide that the particulars will be provided at trial. Reference to “and at trial” is therefore struck out.
Paragraph 41
[101]Paragraph 41 of the statement of claim, in relevant part, alleges that:
The plaintiff is entitled to punitive damages including because:
(a) The plaintiff repeats paragraphs 26-30.
…
(l) Following the Defendant becoming aware of the Recording the Defendant either personally or through persons acting on his behalf and/or for the benefit of his personal or political interests and/or for the interests of the National Party (including but not limited to Paula Oliver, Jason Eade, Wayne Eagleson and Kevin Taylor), communicated with third parties regarding the Plaintiff and/or the Recording.
(m) The third parties to the communications included publishers of blogs (including but not limited to Cameron Slater or other persons involved with the Whale Oil Beef Hooked website ( communications were had with those third parties with a view to the third parties publishing materials regarding the Plaintiff and/or the Recording which could benefit the Defendant and / or his personal or political interests and/or the interests of the National Party.
[102] Paragraph 41 relates solely to the plaintiff’s claim for punitive damages. In Mr Gray’s submission, the plaintiff is again seeking discovery of what the defendant might have said to third parties. However, the fact that the defendant might have spoken to third parties about the plaintiff and the Recording is not of itself relevant to the proceedings. Mr Gray pointed out that aggravated damages have not been pleaded and this is, in his submission, a pleading of evidence, done to create a discovery obligation and with a view to seeking something to be made relevant at trial. Mr Gray
discussed the case law relating to punitive damages and said the particulars go nowhere near meeting the test.
[103] The defendant’s behaviour may be relevant to assessing the issue of aggravated damages, which is compensatory in nature and is distinguished from punitive damages. The Court of Appeal in Siemer v Stiassny said that aggravated damages are awarded to:18
… compensate for injury to the plaintiff’s feelings or dignity where that sense of injury has been exacerbated by the manner in which, or the motive with which, the defendant committed the defamatory act, or by how the defamation defendant behaved towards the injured plaintiff, particularly after the tort had been committed
[104] This is essentially the plaintiff’s claim although he has not sought aggravated damages in the second amended statement of claim. Mr Salmon said the plaintiff will be seeking aggravated damages and that an amendment to the statement of claim in that regard will be made.
[105]On the issue of punitive damages, s 28 of the Act states:
28 Punitive damages
In any proceedings for defamation, punitive damages may be awarded against a defendant only where that defendant has acted in flagrant disregard of the rights of the plaintiff.
[106] Punitive damages are additional to what would have already been awarded for general damages (and possibly aggravated damages) resulting from hurt to feelings.19 The Supreme Court in Couch v Attorney General has confirmed that punishment and deterrence are the main purposes of punitive damages.20 That is, punitive damages must go beyond the direct consequences of an award of compensatory damages in order to deter or punish the defendant. There must be a direct nexus between the high- handed conduct for which the defendant is being punished/deterred and the pleaded causes of action in which the plaintiff is successful.
18 Siemer v Stiassny [2011] NZCA 106 at [51].
19 See Siemer v Stiassny, above n 18, for reasons.
20 Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149.
[107] The case for the plaintiff is that, when the overall picture is considered, rather than the allegations taken one by one, the test for punitive damages is met. In that regard, it is relevant, in Mr Salmon’s submission, that when speaking about the plaintiff, the defendant allegedly took a different approach from that taken when his allies were in a similar position.
[108] It is not a matter for the Court to make a decision on punitive damages but simply whether there is an arguable case. I accept the submission that all factors taken together results in an arguable case that the defendant demonstrated a sufficiently flagrant disregard of the plaintiff’s rights, such that punitive damages might be appropriate.
[109] Paragraph 41 is therefore relevant. Again however, it has been drafted too widely. What the defendant did himself or instructed others to do on his behalf is relevant but what others may have done, believing it to be in the interest of the defendant or the National Party, is not. Those references are therefore struck out.
Summary of results
[110]Paragraph 26 of the second amended statement of claim is struck out.
[111] The plaintiff is to redraft the particulars in accordance with this decision within four weeks.
Costs
[112] If costs cannot be agreed the defendant is to file and serve a memorandum within 21 days and any response is required seven days thereafter.
Thomas J
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