Counsel: J W Tizard and A J Connor for Appellants
J G Miles QC and S E Trafford for Respondent
J C Pike and P J Gunn for Speaker of the House of Representatives as Intervener

Judgment: 16 September 2011

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Tipping J)

Introduction

In November 2007 the then Minister for the Environment, the Hon Trevor Mallard, was asked a written question for oral answer in the House of Representatives. To enable him to answer the question the Minister asked the Chief Executive of the Ministry for a briefing on the circumstances which had given rise to the question. The Chief Executive delegated that task to the second appellant, Mr Gow, a Deputy Secretary. Mr Gow briefed the Minister both orally and in writing and the Minister used the information supplied to him to answer the parliamentary question. The respondent, Ms Leigh, issued proceedings in the High Court claiming on two causes of action that Mr Gow had defamed her both in what he had told the Minister orally and in what he had written in his briefing note. Mr Gow contended that his written and oral communications with the Minister had taken place on an occasion of absolute privilege and that the claim against him should on that account be struck out. Both the High Court[1] and the Court of Appeal[2] held that the occasion in question was an occasion of qualified rather than absolute privilege and that the claim could not therefore be struck out as barred by absolute privilege. The Attorney-General and Mr Gow appeal to this Court from the conclusion that the occasion on which Mr Gow communicated with the Minister was not one of absolute privilege. We would dismiss the appeal and uphold the decision of the Court of Appeal for the reasons which follow.

Absolute privilege

[1]Leigh v The Attorney-General HC Wellington CIV-2008-485-2315, 14 July 2009.

[2]Leigh v Attorney-General [2010] NZCA 624, [2011] 2 NZLR 148.

Section 13(1) of the Defamation Act 1992 provides that proceedings in the House of Representatives are protected by absolute privilege.[3] This provision is consistent with art 9 of the Bill of Rights Act 1688, and the exclusive cognisance or jurisdiction rule which is largely the opposite side of the art 9 coin.[4] As Binnie J said, when writing for the Supreme Court of Canada in Canada (House of Commons) v Vaid,[5] the purpose of parliamentary privilege is to recognise Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity.
[3]This section is supplemented by s 242 of the Legislature Act 1908 which provides, in summary, that the House of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Leigh

Details

AGLC: Attorney-General v Leigh [2011] NZSC 106
Case: [2011] NZSC 106
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Attorney-General v Leigh involved a defamation claim brought by Erin Alice Leigh against Lindsay Gow, a Deputy Secretary who had provided information to the Minister for the Environment in relation to a parliamentary question. Leigh argued that Gow had defamed her in both his oral briefing and written note. Gow contended that his communications with the Minister were protected by absolute privilege, which would bar the defamation claim. The High Court and the Court of Appeal found that the occasion did not qualify for absolute privilege, but rather qualified privilege, and therefore dismissed the appeal.

The legal issues in this case revolved around the scope and application of absolute privilege in parliamentary proceedings. The court needed to determine whether the occasion in question was one of absolute privilege, which would protect Gow from the defamation claim, or if it was an occasion of qualified privilege, which would not bar the claim. The court also had to consider the balance between protecting parliamentary privilege and preserving the common law right to vindicate reputation.

The Supreme Court found that absolute privilege applies to proceedings in Parliament, but the key issue was whether the occasion in question was necessary for the proper and efficient functioning of the House of Representatives. The court concluded that absolute privilege is justified only if it is essential for the functioning of Parliament, and that the occasion in question did not meet this test. The court held that necessity, rather than closeness of connection or incidentality, was the appropriate test for determining absolute privilege. The court found that it was not necessary to afford greater protection to those communicating with Ministers in these circumstances, as it could be detrimental to the proper functioning of Parliament. Therefore, the appeal was dismissed, and the decision of the Court of Appeal was upheld.

Orders