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Cao v Stuff Limited

Cao v Stuff Limited

Case [2024] NZHC 44 31 January 2024

Defamation

Responsible Publication

Defamatory Meaning

Public Interest

Defamation Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-196

[2024] NZHC 44

BETWEEN
DONG (ANNE) CAO

First Plaintiff

AND

PAUL OULTON

Second Plaintiff

AND

STUFF LIMITED

First Defendant

AND

GARY JAMES FARROW

Second Defendant

Hearing: 30 – 31 October, 1 – 3 and 6 – 10 November 2023

Counsel:

K J Crossland & J K Boparoy for Plaintiffs

R K P Stewart & P K J Roycroft for Defendants

Judgment:

31 January 2024

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 31 January 2024 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

CAO & ANOR v STUFF & ANOR [2024] NZHC 44 [31 January 2024]

[1] Each spring, the cherry trees at the plaintiffs’ semi-rural home on the outskirts of Hamilton blossom spectacularly. In 2017 and 2018, an event was held there, called the Waikato Cherry Tree Festival. Unless it reached a certain scale, the festival did not require a resource consent.

[2] Ms Cao and Mr Oulton planned a larger festival for 2019: one requiring a resource consent. Prior to and during the period of the planned 2019 festival, a media organisation, Stuff Limited (Stuff), published a series of news articles written by its reporter Gary Farrow. The resource consent was not forthcoming. The day before it was due to commence, Ms Cao and Mr Oulton cancelled the festival, electing not to seek to hold a smaller-scale event. Ticketholders were upset.

[3] Ms Cao and Mr Oulton were unhappy with the news articles. They sued Stuff and Mr Farrow alleging defamation.

[4] A jury trial was held in this Court between 30 October and 9 November 2023. The jury found that an online article first published on 15 September 2019 defamed Ms Cao and Mr Oulton, by asserting that they needed a resource consent to have lawfully operated their 2017 and 2018 events. The entire balance of their case, relating largely to what the articles said about the planned 2019 festival, was rejected. The jury found that the articles did not mean what was alleged, or if they did those meanings were not defamatory, or if they were such defamation caused no more than minor harm.

[5] The issue that remains for determination is whether the remedy that Ms Cao and Mr Oulton seek – a declaration under s 24 of the Defamation Act 1992 that Stuff and Mr Farrow are liable to them in defamation, and solicitor and client costs – should be granted, or denied, because Stuff and Mr Farrow are protected by the modern defence of responsible publication on a matter of public interest.1

[6] Before determining that issue, I will describe the 15 September article and the events surrounding its publication in more detail. I will also describe the procedure that resulted in the jury’s findings. This will help to illustrate the significance of the

1 Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131.

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 Cao v Stuff Limited

Details

AGLC: Cao v Stuff Limited [2024] NZHC 44
Case: [2024] NZHC 44
Decision Date: 31 January 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Dong (Anne) Cao and Paul Oulton, sued the defendant, Stuff Limited, and its reporter Gary Farrow, for defamation. The plaintiffs alleged that the defendants defamed them in a series of news articles published by Stuff, which led to the cancellation of their planned Waikato Cherry Tree Festival in 2019. The jury found that one of the articles defamed the plaintiffs by asserting that they needed a resource consent to have lawfully operated their 2017 and 2018 events. However, the jury rejected the plaintiffs' claims regarding the other articles. The remaining issue was whether the defendants were protected by the modern defence of responsible publication on matters of public interest.

The Court of Appeal had established that in a case tried by a jury in New Zealand, it is for the trial judge to determine whether the two elements of the defence are established based on the primary facts as found by the jury. The Court of Appeal had also set out a non-exhaustive list of factors that might be relevant to determining whether a communication was responsible. However, the Court of Appeal had not elaborated on what the "primary facts" to be found by the jury should be. The trial judge took the view that the primary facts should be confined to the disputed elements of the tort of defamation, any other pleaded affirmative defence, and the quantum of damages.

In this case, the jury found that the 15 September 2019 article defamed the plaintiffs by asserting that they failed to obtain a resource consent for the 2017 and 2018 festivals, and so operated them unlawfully. The trial judge concluded that the defamatory aspect of the article was not published responsibly, as the defendants were aware that the article's assertion was incorrect. The trial judge also noted that the defendants' arguments based on the Durie factors were unpersuasive, as publishing incorrect information that is known to be incorrect does not serve the public interest.

The plaintiffs sought a declaration under s 24 of the Defamation Act 1992 that the defendants are liable to them in defamation, and the consequential claim for solicitor and client costs. The defendants argued that the defence of responsible publication on matters of public interest should not operate in cases where the only remedy sought at trial is a s 24 declaration. However, the trial judge did not consider it necessary to express a concluded view on this matter, as it had not been settled by statute or case law. Instead, the trial judge left the assessment of the appropriate balance to be struck specifically in s 24 declaration-only cases to an occasion on which the facts required it.

Ultimately, the trial judge granted the plaintiffs' claim for a declaration that the defendants are liable to them in defamation for publishing the 15 September 2019 article. However, the trial judge left the issue of costs to be determined by the parties, noting that the presumption of awarding solicitor and client costs under s 24(2) might not apply in this case.

Orders