Christian v Bain - [2024] NZSC 35

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 144/2023
[2024] NZSC 35

BETWEEN	GRAHAME DOUGLAS CHRISTIAN Applicant
AND	MURRAY IAN BAIN Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	C T Patterson for Applicant W Akel and J C Dickson for Respondent
Judgment:	18 April 2024

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

This application for leave to appeal arises in the context of a claim for defamation brought by the applicant, Grahame Christian, against the respondent, Murray Bain. Mr Bain was quoted prominently in two articles in the New Zealand Herald (the articles) alleging that Smart Environmental Ltd (Smart), a waste management company associated with Mr Christian, was misusing local authority dumping facilities.
Mr Christian also sued NZME Publishing Ltd (NZME) and the author of the articles, Mr Valintine. NZME retracted the articles and apologised. The claim then proceeded to trial against Mr Bain only. Mr Christian was unsuccessful in the High Court[1] and on appeal to the Court of Appeal.[2] The High Court held that while the publications contained defamatory imputations against Mr Christian, and that Mr Bain was responsible as a joint tortfeasor, Mr Bain had successfully made out the defence of responsible communication on a matter of public interest.[3] The Court of Appeal upheld the High Court’s finding that the defence was made out. Mr Christian seeks leave to appeal to this Court.

Background

[1]Christian v Bain [2022] NZHC 3394 (Walker J) [HC judgment].

[2]Christian v Bain [2023] NZCA 579 (Miller, Brown and Courtney JJ) [CA judgment].

[3]See Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131; and Grant v Torstar Corp 2009 SCC 61, [2009] 3 SCR 640.

The factual background is set out in the Court of Appeal judgment.[4] For present purposes, it is sufficient to note two key matters. First, Mr Bain used to work for Smart and had an acrimonious relationship with Mr Christian. Amongst other matters, the two were parties to an employment dispute. Mr Bain later set up his own waste management company in competition with Smart. Second, the articles alleged that Mr Christian enabled Smart to obtain unlawful advantages at council-owned tipping stations. This included an allegation that Smart was tipping waste for less than other commercial operators, and doing so without the knowledge or approval of the Thames‑Coromandel District Council (the Council). Smart was practically able to do this because it was contracted to manage these council-owned transfer stations, and thus had after-hours access.

The decision of the Courts below

[4]CA judgment, above n 2, at [10]–[66].

In determining whether the defence of responsible communication on a matter of public interest was made out, the High Court addressed the two elements of the defence: that “the subject matter of the publication was of public interest; and … the communication was responsible”.[5]
[5]Durie v Gardiner

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 Christian v Bain

Details

AGLC: Christian v Bain [2024] NZSC 35
Case: [2024] NZSC 35
Decision Date: 18 April 2024

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Grahame Christian, the applicant, sought leave to appeal against the decision of the Court of Appeal in relation to a defamation claim against Murray Bain, the respondent. The original claim, which also included NZME Publishing Ltd and the author of the articles, Mr Valintine, was concerning two articles published in the New Zealand Herald alleging misuse of local authority dumping facilities by Smart Environmental Ltd, a waste management company associated with Mr Christian. The articles were retracted and an apology issued by NZME, leading to the claim proceeding solely against Mr Bain. The High Court and the Court of Appeal had both found in favour of Mr Bain on the basis that he had successfully established the defence of responsible communication on a matter of public interest. The key legal issues in this case were whether the defence of responsible communication on a matter of public interest can be made out if the publication is materially misleading by omission, whether Mr Bain's malice towards Mr Christian should have been disclosed in the articles, and whether the Court of Appeal's approach was inconsistent with that of the Supreme Court of Canada in Grant v Torstar Corp. The Supreme Court found that the known material omissions did not render the publication irresponsible, as the public interest may justify a publication shown to have been inaccurate provided reasonable steps were taken to verify it. The Court also found that the Court of Appeal's approach was not inconsistent with that of the Supreme Court of Canada, as the articles included reference to Mr Bain's motivations and went to considerable lengths to seek corroboration from various sources. The application for leave to appeal was dismissed, and the applicant must pay the respondent costs of $2,500.

Orders