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Brash v Hooton

Brash v Hooton

Case [2025] NZHC 1530 11 June 2025

Defamation Act 1992

Threshold of Seriousness

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002574

[2025] NZHC 1530

UNDER the Defamation Act 1992

BETWEEN

DONALD THOMAS BRASH

Plaintiff

AND

MATTHEW OWEN HOOTON

Defendant

Hearing: 4 June 2025

Appearances:

P A McKnight / A J Romanos for the Plaintiff B H Dickey / C S A Jordan for the Defendant

Judgment:

11 June 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 11 June 2025 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Franks Ogilvie, Wellington Meredith Connell, Auckland

B H Dickey, Auckland
P A McKnight, Wellington A J Romanos, Wellington

BRASH v HOOTON [2025] NZHC 1530 [11 June 2025]

CONTENTS

Introduction............................................................................................................... [1]
Legal principles — strike-out.................................................................................... [8]

When can the Court strike out a defamation claim?................................................ [10]

The Jameel principle............................................................................................ [10]

New Zealand law................................................................................................. [14]
The relevance of an apology................................................................................ [32]
Should the proceeding be struck out because the threshold of seriousness is not met?
................................................................................................................................. [37]
The context and nature of the defamatory statements......................................... [40]
The extent of publication..................................................................................... [47]
The apology......................................................................................................... [51]
Conclusion on the threshold of seriousness......................................................... [59]
Is the proceeding an abuse of process because it is brought for a predominant
improper purpose?................................................................................................... [61]
Legal principles.................................................................................................... [61]
Dr Hooton’s argument......................................................................................... [65]
The alleged purpose that the proceeding is a vehicle for Dr Brash to defame Dr Hooton while protected by privilege................................................................................. [70]
The alleged purpose that the proceeding is to advance the political agenda of Dr Brash and Hobson’s Pledge, and to obtain funding for that agenda..................................... [74]
Conclusion on improper purpose......................................................................... [79]
Are the costs and burden of this proceeding likely to be disproportionate to the benefit or vindication that Dr Brash might achieve from the proceeding?.............................. [80]
If Dr Brash’s claim is upheld, what damages are likely to be awarded?............. [84]
Mitigation by the apology.................................................................................... [86]
Defaming Dr Hooton........................................................................................... [93]
Pursuing the proceeding to further the interests of Hobson’s Pledge.................. [94]
Conclusion on the likely award of damages and proportionality........................ [95]

Orders...................................................................................................................... [97]

Introduction

[1] The plaintiff, Donald Brash (Dr Brash), is a well-known New Zealander. He has been a Governor of the Reserve Bank of New Zealand, a Member of Parliament and the Leader of the Opposition in Parliament. Dr Brash is the founder and a trustee of Hobson’s Pledge Trust, a political advocacy group (Hobson’s Pledge).

[2] The defendant, Matthew Hooton (Dr Hooton), is a well-known political commentator with extensive experience in public relations. On 29 August 2025, Dr Hooton was a guest on “The Working Group” political podcast (the podcast). The topics discussed by the hosts and guests included Māori customary rights to the foreshore, and an advertisement that Hobson’s Pledge had placed in the New Zealand Herald (the advertisement).

[3] During the discussion on the podcast, Dr Hooton made statements about Dr Brash that Dr Brash considers defamed him. Later in the evening of 29 August 2024, the podcast was removed from all podcast…

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 Brash v Hooton

Details

AGLC: Brash v Hooton [2025] NZHC 1530
Case: [2025] NZHC 1530
Decision Date: 11 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Brash v Hooton involves a defamation claim brought by Donald Brash against Matthew Hooton. Dr Hooton made several statements during a podcast that Dr Brash considers defamatory, leading to this legal action. The defendant has applied for the proceeding to be struck out on the grounds that it is an abuse of process and that the costs and burden of the proceeding are disproportionate to the benefit or vindication that Dr Brash might achieve. Associate Judge Brittain considered the application and found that the proceeding should not be struck out.

The court first addressed the threshold of seriousness, which requires that the defamatory statements have caused or are likely to cause serious harm to the claimant's reputation. The court found that the context and nature of the defamatory statements, as well as their extent of publication, indicated that Dr Brash may have suffered more than minor harm, and therefore the threshold of seriousness was met.

The court then considered whether the proceeding was an abuse of process due to an improper purpose. The defendant argued that Dr Brash's predominant purpose was to promote and fund the political agenda of Hobson's Pledge. However, the court found that Dr Brash's predominant purpose in bringing the proceeding was to restore any damage done to his reputation by the defamatory statements.

Finally, the court assessed whether the costs and burden of the proceeding were disproportionate to the benefit or vindication that Dr Brash might achieve. The court found that it was not possible to determine at this stage of the proceeding that any award of damages to Dr Brash would be nominal. The court concluded that this was not one of those rare and exceptional cases that should be struck out as an abuse of process.

In conclusion, the defendant's application for an order striking out the proceeding was declined, and the plaintiff is entitled to costs.

Orders