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
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- Cao v Stuff Limited [2024] NZHC 44
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- [2024] NZHC 44
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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