Cato v Manaia Media Limited - [2019] NZCA 661

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA169/2019
[2019] NZCA 661

BETWEEN	KRISTIN PIA CATO Appellant
AND	MANAIA MEDIA LIMITED First Respondent
AND	ROWAN DIXON Second Respondent
AND	JANE THOMPSON Third Respondent

Hearing:	14 November 2019
Court:	Wild, Whata and Katz JJ
Counsel:	S J Mills QC and E D Nilsson for Appellant S A McKenna and F A King for Respondents
Judgment:	18 December 2019 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe defamatory meanings pleaded in the appellant’s first amended statement of claim at [11(a)(ii)–(iii)], [11(b)–(d)] to the extent they rely on [11(a)(ii)–(iii)], and all the meanings pleaded in [11(e)–(f)] are reinstated and may be pleaded by the appellant in her statement of claim.
CThe respondents are jointly and severally liable to pay the appellant one set of costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
DThe respondents are jointly and severally liable to pay the appellant one set of costs of $4,000 on their abandoned cross-appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

This is an appeal from part of an admirably succinct judgment delivered by Hinton J in the Auckland High Court on 13 March 2019.[1] The Judge held that two of the meanings pleaded in the statement of claim in a defamation proceeding were not available.[2] This appeal is against that part of the ruling.
[1]Cato v Manaia Media Ltd [2019] NZHC 440.
[2]At [48]–[50].
A cross-appeal was also brought. It has now been abandoned, so we need deal only with the costs of that cross-appeal.

Background

Early in 2017 a senior New Zealand show jumping team toured Australia. Subsequently, members of the team made complaints to Equestrian Sports New Zealand (ESNZ) against another member of the team, Katie Laurie, and Ms Laurie’s father, Jeff McVean, who was the team’s chef d’equip.
ESNZ convened a Judicial Committee to consider the complaints. That Committee directed the parties to try and settle the complaints at mediation. The parties were successful in doing that, including agreeing to the publication of a statement recording the fact of the settlement and the steps agreed to by Mr McVean and Ms Laurie. The statement records that the details of the settlement were otherwise confidential.
The appellant Ms Cato is a barrister. She acted for the complainants in the mediation. On 30 November 2017, Ms Cato released the agreed statement to iSpyHorses and Show Circuit magazine, two equestrian media outlets which the appellant says have large online followings. The statement was not released to NZ Horse & Pony, which the respondents assert is this country’s “highest-selling and most long-standing” equestrian publication. The first respondent is the publisher of NZ Horse & Pony, the second respondent the editor and the third respondent the author of the article detailed in the next paragraph.
Following Ms Cato’s release of the statement, for six days from 3–9…

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.

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Details

Case: [2019] NZCA 661
Decision Date: 18 December 2019 at 3.00 pm

CaseChat Overview and Summary

In Cato v Manaia Media Limited, the Court of Appeal of New Zealand considered an appeal against the High Court's ruling that certain defamatory meanings pleaded by the appellant, Kristin Pia Cato, were not available. The respondents, Manaia Media Limited, Rowan Dixon, and Jane Thompson, were the publishers, editor, and author, respectively, of an article in NZ Horse & Pony that Ms Cato alleged defamed her. The article discussed a settlement statement released by Ms Cato regarding a complaint against members of a New Zealand show jumping team. Ms Cato claimed the article suggested she acted unethically by releasing the statement to certain media outlets and not others, and by not disclosing her familial connection to one of the outlets. The High Court had struck out certain defamatory meanings, holding that an ordinary, reasonable reader would not necessarily interpret the article as suggesting Ms Cato acted unethically or improperly.

The Court of Appeal disagreed, finding that the article's tone and content could lead ordinary, reasonable readers to infer that Ms Cato misused her position as counsel and acted unethically or unprofessionally in releasing the statement to certain media outlets. The Court of Appeal reinstated the struck-out defamatory meanings and held that the respondents were jointly and severally liable to pay Ms Cato one set of costs for a standard appeal on a band A basis and usual disbursements. The respondents were also liable to pay Ms Cato $4,000 in costs for their abandoned cross-appeal.

The Court of Appeal's decision highlights the importance of considering the tone and content of an article when determining whether it is capable of bearing certain defamatory meanings. In this case, the article's investigative journalism style and suggestion of hidden relationships and agendas led the Court of Appeal to find that ordinary, reasonable readers could be left with the impression that Ms Cato acted unethically or improperly in releasing the settlement statement. This case serves as a reminder that when considering whether an article is capable of bearing defamatory meanings, courts must take into account the overall tone and content of the article, as well as the words used.

Orders