Christian v Bain - [2022] NZHC 3408

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001818

[2022] NZHC 3408

UNDER the Defamation Act 1992

BETWEEN

GRAHAME CHRISTIAN

Plaintiff

AND

MURRAY IAN BAIN

Defendant

Hearing: On the papers

Appearances:

C T Patterson and E J Grove for the Plaintiff

J Dickson, D Dustan and A Cox for the Defendant

M Hardy for Applicant - Smart Environmental Limited T Goatley for NZME and Michael Valintine

Judgment:

14 December 2022

JUDGMENT OF WALKER J

[Application for access to Court file]

This judgment was delivered by me on 14 December 2022 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CHRISTIAN v BAIN [2022] NZHC 3408 [14 December 2022]

[1] Smart Environmental Ltd (Smart) requests access to Court documents in this proceeding. The application relies on rr 11–13 of the Senior Courts (Access to Court Documents) Rules 2017 (the Access Rules).

[2] Th application was made after trial but before issue of the substantive judgment. This judgment is issued in conjunction with the substantive judgment.

[3] This proceeding is a defamation claim brought by Grahame Christian, a director and shareholder of Smart. Mr Christian’s claim relates to two articles published in the Weekend Herald and republished in the Bay of Plenty Times and Hawke’s Bay Today. The articles, a front-page news article and a feature article, related principally to Smart and its commercial relationship with Thames-Coromandel District Council (TCDC). Smart had an interest in the articles and consequently in the litigation but is not a party to the litigation.

[4] The original defendants to this claim were NZME Publishing Limited (NZME); Michael Valintine, the journalist under whose by-line the articles in question were published; and Murray Bain. Mr Christian settled (and discontinued) his claims against NZME and Mr Valintine. This left the claim against Mr Bain for determination following a three-week trial.

[5] It follows that NZME, Mr Valintine and Mr Bain also have an interest in Smart’s application and an entitlement to respond to it.

[6] Mr Christian consents to Smart’s application for access. For the purposes of this application, I assume that his interest is materially the same as Smart’s interests. NZME, Mr Valentine and Mr Bain oppose the application for access save that Mr Bain is agnostic in respect of access to the formal court record.

[7] In my substantive judgment, I held that the articles were defamatory of Mr Christian and that Mr Bain was in law a joint tortfeasor1. It followed that he had legal responsibility for the articles subject to any available defences. I upheld Mr Bain’s defence of responsible communication on a matter of public interest.

1 Christian v Bain [2022] NZHC 3394.

Consequently, I dismissed Mr Christian’s claim in defamation. This does not of course mean that I found that the sting of the articles to be true or the underlying facts accurate. The defence of responsible communication on a matter…

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 [2022] NZHC 3408
Case: [2022] NZHC 3408
Decision Date: 14 December 2022

CaseChat Overview and Summary

The case of Christian v Bain revolves around a defamation claim initiated by Grahame Christian, a director and shareholder of Smart Environmental Ltd (Smart), against Murray Ian Bain. The defamation stemmed from two articles published in the Weekend Herald and subsequently republished in other media outlets. Smart, having an interest in the litigation, sought access to court documents. The primary legal issue was whether Smart was entitled to access the court file under the Senior Courts (Access to Court Documents) Rules 2017.

The High Court considered the principles of open justice, the protection of confidentiality and privacy interests, and the orderly and fair administration of justice. Walker J held that Smart's application failed to meet the specificity requirements set out in Rule 11(2)(b) of the Access Rules. The reasons provided by Smart were deemed too general and did not sufficiently articulate the connection between the defamatory comments and the evidence in the proceeding. The Court also highlighted concerns about the potential identification of confidential journalistic sources and the risk of documents being used for ulterior purposes. Consequently, the Court denied Smart access to most of the requested documents, only granting access to certain judicial orders, minutes, and decisions, subject to redactions where necessary.

Ultimately, the Court dismissed Smart's application for broad access to the court file, finding that the countervailing factors, particularly the protection of privacy interests and the fair administration of justice, outweighed Smart's interest in accessing the documents. The Court made no order as to costs on the application.

Orders