Christian v Bain

[2022] NZHC 3394

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001818

[2022] NZHC 3394

UNDER

The Defamation Act 1992

BETWEEN

GRAHAME CHRISTIAN

Plaintiff

AND

MURRAY BAIN

Defendant

Hearing:

8-11 February 2022; 14-18 February 2022; 21-25 February 2022;

Written submissions 11 March 2022 and 1 April 2022

Appearances:

C T Patterson and E J Grove for the Plaintiff

J Dickson, D Dustan and A Cox for the Defendant

Judgment:

14 December 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 14 December 2022 at 11 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CHRISTIAN v BAIN [2022] NZHC 3394 [14 December 2022]

TABLE OF CONTENTS

Protagonists  [11]

The genesis of the Articles—an overview  [20]

Events after publication  [94]

Issues on liability  [97]

Is Mr Bain responsible in law for the Articles?  [100]
Legal principles—responsibility for publication  [119]
Preliminary—credibility and reliability of evidence  [150]
Analysis of Mr Bain’s role  [172]

Meaning—do the articles bear the defamatory natural and ordinary meanings

complained of by Mr Christian?  [204]

Legal principles  [204]
The contest as to meaning  [215]

News Article  [217]
Respective arguments as to meaning  [233]

The Discount Allegations  [243]
The Clandestine Dumping Allegations  [246]
Conclusions as to meaning of first article  [248]

Feature Article  [260]

Is the defence of responsible communication on a matter of public interest available to Mr Bain?  [276]

Legal principles  [276]

Degree of public interest  [290]

Verification steps  [292]

Involvement of Mr Valintine and NZME  [357]

Opportunity to respond/comment  [359]

Editorial licence  [374]
Conclusion on the defence of responsible communication  [379]

Honest Opinion  [383]

Result  [392]

Costs  [394]

[1]    Grahame Christian complains of defamation in two articles published by NZME Publishing Ltd (NZME) in the Weekend Herald and other NZME media under the by-line of Michael Valintine. Mr Christian is a company director and businessman living in Whitianga. He is the founder of Smart Environmental Limited (Smart), a privately owned refuse and recycling company.

[2]    NZME is the publisher of the New Zealand Herald (including the Weekend Herald), the Herald Online, Hawke’s Bay Today and Bay of Plenty Times. It published a front-page news article (the News Article) and feature article (the Feature Article) about Smart’s provision of services to Thames Coromandel District Council (TCDC) in the Weekend Herald on 3 August 2019 (together, the Articles). Both, with minor alterations, were available in the Herald Online. One was republished by NZME with minor alterations in the Hawkes Bay Today and Bay of Plenty Times.

[3]    The full text of the Articles published in the weekend edition of the New Zealand Herald are annexed for ease of reference. On 8 August 2019, NZME deactivated the online Articles after contact from Smart’s solicitors. Initially on a temporary and “without prejudice” basis, the Articles were never reactivated. In the relatively brief period the Articles were available online, there were 3,382 unique browser views for the News Article and 10,264 unique browser views for the Feature Article.

[4]    Mr Christian commenced defamation proceedings on 9 September 2019. Smart did not issue proceedings.

[5]    Mr Christian originally sued three defendants—NZME, Michael Valintine and Murray Bain. He asserts that Mr Bain, who is quoted prominently in the articles, is responsible as a joint tortfeasor with NZME and Mr Valintine. Mr Christian settled the claim against NZME and Mr Valintine on a confidential basis on 24 August 2021. The settlement included a retraction and apology.  He did not settle with Mr Bain.  Mr Bain applied to strike out the claim against him. He argued that the settlement against NZME and Mr Valintine prevented Mr Christian from continuing his claim

against him. I declined to strike out the claim in a judgment delivered on 10 December 2021.1

[6]    On 6 November 2021, NZME published an apology and retraction. The apology was picked up by social media sites and republished online. Mr Christian also widely circulated the apology with his own commentary.

[7]The apology included the following statements:

NZME has now received documentation which indicates that the Morrison Low and PWC investigative reports concluded (in summary):

Smart Environmental engaged in correspondence with the Council in relation to its commercial waste disposal fees from around April 2018.

Smart Environmental’s tolling fees were charged in reliance on that 2018 correspondence; and

While there were discrepancies in relation to the waste tonnages entering the Thames-Coromandel RTS sites, based on the information provided to the investigators, the discrepancies did not appear to be significant. The Council published its findings in response to the allegations in the articles on 11 May 2020.

NZME understands that Mr Christian was not interviewed by Morrison Low, PWC or the private investigator in relation to these matters.

NZME acknowledges that Mr Christian has enjoyed a justifiable and very good reputation in the community including as a result of his success in business. NZME also acknowledges  and  apologises  for  any  damage  to Mr Christian’s and Smart’s reputation and distress Mr Christian may have suffered through publication of the articles.

NZME will not be republishing the articles and unreservedly withdraws any allegations of wrongdoing against Smart and Mr Christian contained within them.

[8]    Mr Bain is not sued in respect of his statements to the named author or to NZME knowing and intending they would be republished by NZME. The Articles quote Mr Bain on an attributed basis and others on both an unattributed and attributed basis. Mr Bain accepts that the quotes are accurately reported and attributed to him. He acknowledges as he must, that he is a source for the Articles. Mr Christian attributes responsibility for the publication of the entire Articles and the republications

1      Christian v NZME Publishing Limited & Ors [2021] NZHC 3390.

of the sting of the Articles on social media sites to Mr Bain. He pleads that the republications aggravate damage to his reputation.

[9]    The assertion that someone in Mr Bain’s position may be responsible for the Articles in their entirety is, at least at first blush, a novel application of the broad principle of responsibility for a defamatory publication.

[10]   Mr Patterson submitted that the primary contest between the parties is whether Mr Bain’s fingerprints are sufficiently across every aspect of the Articles and would not have been published but for his involvement or whether he was one of many sources responsible only for his  utterances  to  Mr Valintine.  The  way  in  which Mr Christian has pleaded and argued his case means that Mr Bain has no potential liability should the Court accept the latter proposition.

Protagonists

[11]   Mr Christian was the main shareholder of Smart (and its predecessor) until mid-2017 when his shares were acquired by two investment firms and he gifted a parcel to long-standing employees and co-directors. He was the managing director of Smart until shortly before the Articles were published. He remains a director and shareholder.

[12]   Smart is one of New Zealand’s largest waste management firms. By 2019, Smart had over 500 personnel, a significant fleet of vehicles, facilities, plants and equipment throughout the country. It provides services throughout the country, not only to private businesses and clients but also to councils. One of its significant waste management contracts is with TCDC, the Matamata-Piako District Council (MPDC) and Hauraki District Council (HDC). These services are provided under what is known as the Eastern Waikato Contract for Solid Waste (Solid Waste Contract).

[13]   The Solid Waste Contract was negotiated and finalised in 2013. It provides the backdrop to the Articles.

[14]   Mr Christian gave evidence of his background, his involvement in the community and his former career with the New Zealand Police. He presented as a

successful and self-made entrepreneur. He said that, before publication of these Articles, he had intended to stand for election as a ward councillor in the Mercury Bay ward of TCDC. He is chair of his iwi’s land claim (Wai 475) and chair of the Pare Hauraki Iwi Asset Holding Company. That entity manages significant iwi assets in aquaculture, fisheries and other property. Mr Christian was recently asked to chair a Coromandel community organisation whose objective was to preserve New Chum Beach. He remains in the co-governance group after the successful purchase of the headland, working with the Environmental Defence Society, Waikāto Regional Council and the Coastal Trust. He said that the Articles greatly distressed him and deeply affected his mana in the Māori community, amongst his colleagues and industry peers. He described the Articles as “relentless, utterly vindictive and cruel”.

[15]   Mr Bain used to work at Smart. He has long experience in the refuse and recycling industry. Mr Bain started his own waste business in Te Awamutu which he sold around 2009. After a few years out of the industry, he joined Envirowaste in mid- 2014. He was “poached” a couple of years later by Mr Christian and offered a role with Smart as commercial manager based out of Kopu, Thames. After a very short period, Mr Bain stepped up to be the area manager. In that role he managed the Solid Waste Contract.

[16]   Mr Bain left Smart in December 2017 after a breakdown in his relationship with Mr Christian. Although I heard evidence about the triggers for that breakdown, it is unnecessary to traverse the detail. It suffices to say that the dealings between the pair of them have been acrimonious since then. The acrimony did not cease after Mr Bain settled his terms of departure with Smart. On the contrary, it was followed by an employment dispute involving allegations of Smart’s breach of the settlement agreement and counter-allegations that Mr Bain was breaching his restraint of trade.

[17]   The third protagonist is Michael Valintine. Mr Valintine is a journalist with a career in broadcasting spanning more than forty years. He has won multiple investigative journalism awards during that time and worked in leading news, current affairs and investigative journalism roles. He describes himself now as a freelance journalist, producer, director and executive producer of content for media.

[18]   Messrs Bain and Valintine were known to each other. They first met sometime in 2003 when Mr Bain approached Mr Valintine in a local café, having recognised him from his television career. At that time, Mr Bain was embroiled in efforts to uncover the truth about the death of his brother at the Waiouru army base. He had commenced his own investigation and was battling the New Zealand Army and Government. He approached Mr Valintine and asked, “If I had a story to get out in the media, how would I go about that?” This piqued Mr Valintine’s interest. He asked Mr Bain to tell him the story. Together over many years they successfully exposed the truth about the fatal shooting of Mr Bain’s brother in the Army, obtaining a hard-fought public apology from the NZ Army and Police.

[19]    Mr Bain had a great deal of respect for Mr Valintine’s skill set as a consequence. Mr Valintine in turn admired Mr Bain’s dogged determination. While they cultivated a close relationship in that period, they had only sporadic contact after about 2008. From time to time, they ran into each other on the Coromandel Peninsula. Nonetheless, that early experience working closely set the scene for their involvement in the Articles at issue.

The genesis of the Articles—an overview

[20]The Articles had a long period of gestation.

[21]   Mr Bain incorporated Coastal Bins Limited (Coastal Bins) with his business partner, Michael Barlow, not long after leaving Smart. Mr Barlow was also a former employee of Smart. Coastal Bins is based in Thames but has also expanded beyond Thames. It competes with Smart in some aspects of its business but not others.

[22]   Sometime in April 2018, Mr Barlow first saw Smart commercial trucks unloading waste at the refuse transfer station (RTS) at Thames. A few weeks later he observed Smart commercial trucks tipping after hours. To understand the significance, it is necessary to describe refuse and recycling services in the Coromandel area in general terms.

[23]   Waste that will ultimately be disposed in landfill is either taken to landfill directly or delivered to an RTS first. At an RTS, the waste is compacted into pods

which are then placed on trucks and taken to landfill. RTS sites are owned by local councils. The landfill sites are owned by third parties. In this proceeding, the key landfill site is at Tirohia, owned by Waste Management Limited (Waste Management).

[24]At the material time, the opening hours at the Thames RTS were between

8.30 am and 2.30 pm on weekdays. In the peak period season, those hours were extended to 5.30 pm. On weekends and public holidays, the opening hours were between 10.30 am and 5.30 pm. The Tirohia landfill operated between 6.30 am and  4 pm.

[25]   Councils have responsibility for the collection, management and disposal of waste within their boundaries. The Solid Waste Contract sets out Smart’s obligations for collecting waste, providing, operating and maintaining drop off and transfer facilities for the collection and consolidation of waste and processing and transporting waste.

[26]Under the Solid Waste Contract there are three types of waste:

(a)Council Waste. This is waste that councils have contracted Smart to collect for them. It includes general household waste and recyclables. The general household waste is put into official council rubbish bags purchased by residents and left at the kerbside for collection by Smart. Each council has a different coloured bag. These are often called “kerbside bags” in the industry. Recyclables are also put on the kerbside for collection.

(b)Commercial Waste. This is collected from Smart’s third party customers such as retail and business clients.

(c)Specified Waste. Specified Waste is waste collected by Smart from third parties within the council territorial boundaries in specified ways.

[27]   Smart operates two fleets of trucks with different configurations and operational capacity. The first fleet is used for collection of Council Waste and Specified Waste. These trucks are configured to suit the kerbside collection of different types of products and are branded with council logos and graphics. The second fleet is for collection of Commercial Waste. These are usually gantry, rear- loader, side-loader and front-loader trucks which are configured differently.

[28]   Up until 10 April 2018 when a fire decommissioned the facility, Smart used the Kopu in-house waste facility (KRC) owned by Mr Christian to store waste collected from its operation. This included Council Waste, Specified Waste and Commercial Waste, all stored separately. Council Waste from each separate council also needed to be stored separately for invoicing purposes because each council and Smart had separate accounts with the owner of the Tirohia landfill. Councils negotiate special volume rates for disposal at landfill which tend to be significantly better than the rates that a smaller landfill user such as Smart could negotiate.

[29]   The rate to use an RTS, known as the “gate rate”, is set by the council that owns it. Generally, it is cheaper to take waste directly to landfill than to use an RTS. This is subject to geographical and efficiency factors. Sometimes Smart would not be able to dispose of waste at the landfill. A truck may have a breakdown and not get to the landfill before closing or travel distances between refuse “runs” may mean that trucks could not reach the landfill before closing. In those scenarios, the truck would be offloaded at the KRC. This allowed Smart to ensure daily offloads of its entire fleet to enable trucks to recommence a run before 6.30 am the next day.

[30]   Waste tonnes are generally accounted for at landfills and RTS sites by weighbridges. Some weighbridges are operated automatically. The driver of the truck enters details into a keypad and the system automatically generates a printed weigh docket. Offloading after hours at an RTS means the weigh station kiosk would be closed, so there would be no external system for drivers to enter details and no weigh docket printed. This could practically be overcome by a driver looking into the kiosk window and writing down the weight when they go in and out of the RTS.

[31]   Offloading Council Waste after the RTS had closed was not unusual. Truck drivers of Council Waste trucks had always had keys in the refuse trucks to manage this. According to witnesses who formerly worked at Smart, it was only after the KRC fire that Smart commercial drivers were given keys to enable access to the RTS.

[32]   Witnesses and documents frequently referred to “tolling” arrangements. It became apparent that this term was used in various ways. Sometimes it was used as a synonym for price “discount”. David Howie, general manager and director of Waste Management gave evidence for Mr Bain. His explanation of the term “tolling” was generally consistent with Mr Bain’s use. He agreed that tolling arrangements are common in the refuse industry and have a particular meaning. A tolling arrangement, properly understood, is not synonymous with a discount but is separate to contract pricing. Mr Howie said:

A tolling agreement, like those used by Waste Management, is generally entered between three parties – a collection entity, a third party refuse transfer station owner and a landfill owner… the transfer station owner would consolidate waste from numerous parties and transport the waste to the landfill. Both the collection entity and the transfer station owner would have a direct commercial relationship with the landfill owner and both could deliver waste to that site directly, with their own, often different, disposal pricing at the landfill.

The collection entity would set up a tolling agreement with the transfer station owner to drop off waste at the transfer station site, consolidate it, and have it transferred to the landfill for a set per tonne fee – this is the tolling fee. The material being taken to the transfer station by the collection entity would be weighed in over a certified weighbridge, with this volume information being provided on a regular basis by the transfer station owner to both the collection entity and the landfill.

The transfer station owner would charge the collection entity the tolling fee at a per tonne rate each month for this material and the landfill would deduct the recorded collection entity’s volume from the transfer station owner’s monthly volume, and charge disposal for that volume directly to the collection entity at their agreed disposal rate.

[33]   In the background, Smart was endeavouring to persuade TCDC that during the 2013 negotiations of the Solid Waste Contract, TCDC had agreed that Smart could put its Commercial Waste through the RTS sites and on to landfill at Council’s rate. This was first signalled in an  email  from  Mr  Christian  to  TCDC  on  9  April  2018. Mr Christian indicated that Smart planned to do this at the end of that month.

[34]   It was apparent that any such entitlement was news to Mr Bruce Hinson, a senior manager at TCDC. He said he was unfamiliar with that condition and would await further detail from Smart.

[35]   Mr Christian sent a second email to Mr Hinson and other senior persons at TCDC who had oversight of the Solid Waste Contract on 10 April 2018. In the email, Mr Christian asserted that Smart and TCDC had agreed several concessions in favour of Smart in return for Smart’s obligation to purchase all wheelie bins and crates as part of the Solid Waste Contract. One of the concessions he asserted was that “on request Smart could toll its Commercial waste through Council transfer stations”. The email included what purported to be an extract from the Solid Waste Contract but was actually an extract from Smart’s proposal during the 2013 negotiations. That extract proposed an option to toll Commercial Waste. Mr Christian wrote:

Accordingly we advise from May 1, 2018 Smart wishes to exercise this clause to toll commercial waste at Transfer Stations.

The mechanics of this clause we propose are the following:

1.   All commercial waste into RTS is recorded as Smarts.

2.   The waste goes into landfill at Council’s rate.

3.   Smart deducts the transport and waste component from its monthly invoice as a credit.

We look forward to your prompt response.

[36]   There was no record of any  substantive response  produced  to  the  Court. Mr Christian confirmed in cross-examination that TCDC did not respond. He asserted that it was common in business dealings to assume agreement if there is no response.

[37]   Two days later, on 12 April 2018, a senior manager at Smart emailed an update to Mr Hinson and copied other TCDC personnel. He stated:

The KRD is no loner [sic] operational …the KRC won’t come back online. As per Grahame’s email on Monday, we have enacted the agreement to take our commercial waste to the Thames RTS.

[38]   Smart and TCDC met a few days later for a partner meeting. Curiously, the minutes of that meeting make no mention of any alleged tolling agreement and there

is no documentary evidence to suggest that Smart advised TCDC that it would be charging itself $77.05 per tonne for disposal of Commercial Waste at TCDC RTS sites. It was not surprising then that throughout Mr Bain’s investigation, TCDC denied there was any documented tolling agreement. There were no witnesses from TCDC in this trial.2 On the evidence that was presented, I was left with the distinct impression that Smart’s approach and arguments in support of its position were no more than a negotiation strategy designed to increase leverage.

[39]   Mr Barlow’s observation of Smart commercial trucks dumping at the Thames RTS raised a red flag. Drop-offs at an RTS were actively discouraged when Messrs Bain and Barlow worked at Smart because of the expense. Messrs Barlow and Bain started tracking Smart’s commercial trucks. They wanted to know whether Smart was obtaining any pricing advantage which could possibly explain the change in practice. They suspected that Smart had a newly negotiated and better rate.

[40]   In August 2018, Messrs Barlow and Bain met with the Mayor and the then Chief Executive Officer of TCDC. They explained that they had proof that Smart was tipping its Commercial Waste after RTS sites had closed and had reason to believe that some discount arrangement was in place based on discussions with drivers and former Smart managers. They made the point that offloading Commercial Waste at the Thames RTS could not be economic if Smart was paying the full gate rate. They asked whether TCDC was aware of and had approved this. Mr Bain’s evidence is that the CEO assured them that no one received a discount on the gate rate and no one was disposing of Commercial Waste after hours when the gate was shut.

[41]   On 24 August 2018, Coastal Bins wrote to TCDC. The letter reiterated the belief that Smart had been allowed to dispose of Commercial Waste at the TCDC RTS sites at a reduced disposal charge. It complained this provided a competitive advantage in breach of the Commerce Act 1986. It requested information and documents under the Local Government Official Information Act 1987 (LGOIMA). This was to be the first of a series of LGOIMA requests.

2      There was an affidavit from a TCDC representative authenticating documentary evidence. Another witness was a former employee of TCDC.

[42]   On 4 September 2018, Mr Bain met with Mr Hinson. Mr Bain emailed Mr Hinson after the meeting writing:

In light of the openness [sic] of the meeting and your undertaking to research matters and advise your findings/decisions/changes, we therefore formally apply a temporary halt to our LGOIMA request effective immediately…

[43]   On 1 November 2018, Mr Bain attended an ERA hearing of his employment dispute with Smart.   Sometime before that hearing, Mr Bain had reached out to     Mr Valintine. He asked whether they could meet in Hamilton. Mr Valintine’s recollection was that Mr Bain wanted to talk about what he thought could be a television current affairs story. Mr Bain’s recollection was that he suggested Mr Valintine go down to Hamilton to talk about a potential story about Smart’s control of TCDC RTS site and possible abuse of that control. Mr Valintine travelled to Hamilton and met with Mr Bain before the hearing. He sat through the hearing. He described  it as a “valuable exercise”, giving him an insight into the relationship between the main protagonists.

[44]   At the end of that day, Mr Bain told Mr Valintine that he was waiting on more information from TCDC and would not bother him until he had enough to justify   Mr Valintine’s attention.

[45]   At some stage, TCDC engaged Morrison Low and PriceWaterhouseCoopers (PWC) to investigate the allegations. Precisely when this took place is not clear. Mr Bain was not interviewed by PWC or Morrison Low until November 2019, well after publication of the Articles.

[46]   At around this time, commercial negotiations began between TCDC and Smart on a number of issues associated with the Solid Waste Contract.

[47]   In December  2018,  Mr  Barlow’s  brother-in-law,  a  Smart  driver,  gave  Mr Barlow a visual recording of Waipa recycling being tipped at the Thames RTS. The driver stated that he had been instructed to tip the recycling by his manager at Smart. He gave similar evidence to this Court. Mr Christian acknowledged on cross- examination that tipping Waipa recycling at the Thames RTS would amount to a breach Smart’s services contract with Waipa District Council.

[48]   In early 2019, events took a turn when Mr Bain received a memory stick in his letterbox from an anonymous source. According to Mr Bain, it contained Smart/TCDC data for the 2018 calendar year. Amongst the material appeared to be monthly claims and supporting data including RTS transaction reports for November and December 2018. Mr Bain, along with Mr Barlow, began the process of interrogating the data to see if they could decipher the pricing issues.

[49]Mr Bain explained that:

(a)The monthly claim is an Excel-based report detailing volumes and costs of Smart’s council-related activities including kerbside collections and RTS management.

(b)Revenue rebated from Smart back to TCDC depends on incoming volumes to each RTS. Freight costs of moving waste from the RTS to the landfill was dependent on volumes carted.

(c)Variable costs in the claims included things like removal and destruction of hazardous waste.

(d)The greater financial component to the claim was comprised of the handling of the solid waste.

(e)While there will be monthly variances, year on year trends and volumes tend to be remain relatively static. Moderate annual increases would be expected with population growth.

(f)The data populating the solid waste component of the claim is taken from the RTS transaction reports.

(g)The RTS transaction reports confirm for each load disposed of, the RTS site, volumes of incoming waste and product ID code of that waste.

(h)The product ID shows whether the load is revenue to the council.

(i)Information from the RTS transaction reports is sourced from the weighbridges. Most of the information comes directly from the RTS but supervisors can manually add, delete or alter entries. The prices charged by TCDC for different types of waste is captured in the RTS transaction reports produced by a programme known as Sensortronics.

(j)TCDC pays the costs of all waste sent from the RTS sites to the Tirohia landfill so the make-up of the incoming volumes captured on the RTS transaction report needs to be reconciled against the volume of waste being sent to the landfill as stated in the Tirohia report.

(k)The RTS transaction reports and the Tirohia report are crucial for Smart to accurately assess its claims and for TCDC to validate the claim.

[50]   Messrs Bain and Barlow’s first impressions were that the Smart/TCDC data lacked transparency in so far as it related to TCDC. There was not enough information to complete a full reconciliation of the payment claims presented by Smart. They also considered that the Smart/TCDC data appeared to show volumes of waste coming into the RTS sites for TCDC which were significantly lower than the volumes entering Tirohia from the same site. It was inexplicable to them that an RTS would be sending out more volume of waste than it was taking in.

[51]   On 8 January 2019, Messrs Bain and Barlow met again with Mr Hinson and another TCDC representative. It is not clear from the evidence whether this was before or after receipt of the anonymously delivered Smart/TCDC data. Coastal Bins followed up the meeting with an email recording what had been discussed and expressing disappointment at the lack of progress.

[52]   Mr Bain’s habit of following up meetings in writing provided a useful contemporaneous record of what was discussed. No internal TCDC meeting notes or records were produced to the Court.3 In the absence of correction by TCDC, the Court can infer that these records were generally accurate.

3      Non-party discovery was provided by TCDC during the proceedings.

[53]   One of the items discussed was the request by Coastal Bins to negotiate commercial tipping to RTS sites at a price that covers the RTS operational costs including disposal at landfill, cartage to landfill, Smart’s management fee plus a margin. In short, a form of tolling. TCDC declined to negotiate. Mr Hinson said TCDC could not accept commercial contractors disposing at RTS sites. Mr Bain’s summary also records that Mr Hinson advised that the Solid Waste Contract has “grey areas” that TCDC needed to work through with Smart. The letter concluded:

We are [sic] tried our very best to not only highlight these irregularities to TCDC but to also work with you in giving you time to address these issues. We now have no confidence that TCDC will in fact create a “level playing field” with all local waste contractor[s] and strongly feel that TCDC is creating an anti-competitive environment.

We also discussed the various enquiry [sic] we have had from media in recent weeks and our position of “no comment to date”. The effect of TCDC allowing Smart preferential treatment and at the expense of the ratepayer is beginning to financially impact on our business and we feel compelled to explore other outlets to convince TCDC to create an impartial environment.

[54]   On the same date, Mr Bain emailed the CEO reiterating disappointment at TCDC’s response. That email closes with a statement that “we are contemplating involving Media to gain public support to get these issues addressed”.

[55]   TCDC’s CEO responded on 9 January 2019 citing the ongoing contractual dispute resolution process with Smart.

[56]   A further meeting took place on 10 January 2019. Mr Bain, writing to TCDC afterwards suggested that he was contemplating a complaint to the Office of the Auditor-General but that the meeting had given Coastal Bins some confidence that TCDC is aware and monitoring the cost to TCDC ratepayers. Mr Bain referred to videos of Smart sending TCDC kerbside recycling to waste. More correspondence followed between 13 January 2019 and 23 January 2019, among other things resurrecting the earlier LGOIMA request.

[57]   It must have been clear to TCDC by then that Mr Bain’s tenacity meant that these issues would not be going away. Mr Bain’s own frustration at the TCDC lack of response led him to email the CEO of TCDC on 18 January 2019 saying that “Smart’s constant cheating of the Shared Services contract” was bigger than TCDC was aware.

He alleged that Smart was tipping Waipa kerbside recycling at the Thames RTS at night, that TCDC staff were aware of Smart’s cheating and yet it continued.

[58]   Messrs Barlow and Bain met a number of times with in-house legal counsel at TCDC. Among the various concerns Mr Bain raised was that the delay in responding to LGOIMA requests was impeding substantiation of the claims made by Coastal Bins.

[59]   Coastal Bins continued to make further LGOIMA requests between 29 January 2019 and 6 February 2019.

[60]   On 20 February 2019, following the hearing some months earlier, the ERA determined that Mr Christian had disparaged Mr Bain in breach of the settlement agreement. It rejected a claim by Mr Bain that Smart owed further monies under the settlement agreement but accepted that Mr Bain had not breached any restraint of trade. The Authority awarded damages to Mr Bain. Smart appealed.

[61]   On 22 February 2019, TCDC responded to various LGOIMA requests. The most material information in that response was that there was no documented agreement with Smart for the “tolling” of commercial waste at any TCDC RTS site, there is no afterhours access to the RTS unless by prior arrangement with TCDC and that no one other than the RTS operator should be in the RTS afterhours unless they have permission from TCDC. Mr Bain considered the answers evasive. He sent follow-up requests on 22 February 2019.

[62]   Concerned that they were not getting any traction, Mr Bain laid a complaint with the Office of the Auditor-General.

[63]   In the background, but not known to Mr Bain, TCDC’s in-house counsel had written to Smart on 12 February 2019. He pointed out that the concept of Smart paying a lower rate compared to those paid by others for Commercial Waste disposal was never included within the signed Solid Waste Contract. The letter stated that “[o]ur expectation is that Smart will discontinue this practice forthwith and pay the full rate

… until further notice”. Smart’s response was that TCDC’s decision was not based on all  the  facts,  which  it  was  currently  gathering,  and  TCDC  ought  not  take  any

precipitous action. The reply was that it was Smart that had taken precipitous action in unilaterally decided to grant itself a reduced disposal rate for commercial waste.

[64]   Mr Bain’s evidence is that it was around late January or early February 2019 when he contacted Mr Valintine again to arrange to meet in Auckland. Mr Valintine thought the first contact after the ERA hearing was early in the New Year. Their different recollection as to timing is not material for present purposes. Mr Bain explained to Mr Valintine where matters had got to with TCDC. After that get together Mr Valintine formed the view that there were significant public interest issues at stake which were worth looking into. He decided to travel to Thames to go through the issues in more detail.

[65]   It was after that briefing session with Messrs Bain and Barlow that Mr Valintine contacted Miriyana Alexander, then Head of Premium Content for the New Zealand Herald. On 4 March 2019, Mr Valintine sent through a rough outline of what he was investigating to get an indication of interest. Ms Alexander responded confirming the New Zealand Herald’s interest.

[66]   Mr Valintine’s first step was a LGOIMA request to TCDC.4 He consulted with Mr Bain about the content and framing of the request to avoid duplication and to get guidance on the most useful information to seek. Mr Valintine specifically advised in the request that he was working on an article to be published in the New Zealand Herald and potentially a television documentary.

[67]   Mr Valintine coincidentally knew TCDC’s communications manager, Laurna White.5 The first LGOIMA response from TCDC to Mr Valintine was sent by Ms White on 13 March 2019 along with an invitation to call her to discuss further. TCDC’s formal response was that it could not disclose the requested documents because TCDC was in commercial negotiations with Smart. However, based on his telephone call with Ms White, Mr Valintine was expecting TCDC to be in a position to provide more information in a couple of weeks. He thought that when this further information arrived it may well avoid any need for a major investigation.

4      Requests were also made to other councils which were parties to the Solid Waste Contract.

5      Ms White’s formal title was Communications and Economic Development Group Manager.

[68]   That did not prove to be the case. As the two weeks dragged into further weeks, Mr Valintine spent more time with Messrs Bain and Barlow working through their extrapolation of information from the Smart/TCDC data. At the same time he started interviewing key people face to face. Some of those contacts, such as former Smart drivers and operational personnel were organised by Mr Bain. Others were sourced by Mr Valintine. Many interviewees sought confidentiality protection. Materially, Mr Valintine also established a confidential source within TCDC.

[69]   On 27 March 2019, Mr Valintine emailed a story outline to Ms Alexander. He expressed confidence in the story due to the weight of documentation and his “deep throat” within TCDC. He asked for a “ballpark figure” if she was interested. I take this to mean the freelance fee for Mr Valintine.  The outline is relatively brief and  Mr Valintine includes what he called a “disclaimer” reiterating that there is bad blood between his “initial source and main protagonist” and his former boss at Smart.

[70]   NMZE responded with queries and pointed out a potential fish-hook in respect of the provenance of the documentary material and videos. Mr Valintine suggested that a public interest argument would protect the documents provided by “whistle-blowers”. There were further exchanges between NZME and Mr Valintine.

[71]   I return later in this judgment to the verification process that Mr Valintine says he undertook.

[72]   By this time, the editor/owner of a local newspaper, the Informer, was hovering in the background and also looking to publish a story on these issues. I discern that he was in regular contact with Mr Bain although precisely how that came about was not clear. The editor sent a draft opinion piece to TCDC regarding Smart and copied the draft to both Messrs Valintine and Bain with whom he had been in contact. He asked TCDC for information to verify the information. He specifically queried whether Smart was paying a lower rate for disposing of third-party waste at TCDC’s RTS sites.

[73]   During this investigative period, Mr Valintine sent to Mr Bain various drafts of the Articles. He asked Messrs Bain and Mr Barlow to fact check the drafts. He was also communicating with NZME, updating Ms Alexander as he went and providing

drafts. A “first draft” was sent to Ms Alexander on 10 April 2019. Mr Valintine described that draft as containing the key information for NZME to begin addressing both editorial and legal issues before he approached Smart and TCDC given the complexity of the subject matter. He pointed out that his contact was willing to meet with her and any experts to discuss questions or challenges, something which he recommended. He explained that, at that stage, he had not broken the story out into a news article and feature because TCDC and the “company CEO” will form a significant part of any feature.

[74]   Ms Alexander responded a few days later. She wrote, “Amazing story…looking great, and sounds like you have all the corroboration …”. She suggested that she was  happy  to  meet  with  him  and  his  “contact”  and  asked  Mr Valintine for his view of the optimal timing for publication.

[75]   The upshot was that Ms Alexander suggested that Mr Valintine forge on and write it all up without going to Smart or TCDC yet. She added that, at that point, she would put the news and feature stories “in front of our lawyers and tell them what corroboration we had, and get the all-clear from them”.

[76]   In early May 2019, Mr Valintine reported to NZME that he was restructuring and rewriting following receipt of new documents and other interviews. He set out some of the developments in his investigation. He also reported that his main contact had been in touch with the Auditor-General’s office which he described as helpful to a news story should that office begin an investigation.

[77]   On 21 May 2019, Mr Valintine emailed Ms Alexander with a further draft feature and news story. He stated:

Obviously there are a number of legals to consider and I am happy to meet and to provide documentation and sources[.] In all I interviewed over ten people involved mostly existing or former senior managers and staff from both sides. The documentation is literally hundreds of thousands of spreadsheet lines. It would probably be helpful at some stage for you to meet the main source who with, other former staff members took me through the complicated web of documents and extracted the information. He is happy to come up and go through spreadsheets with any expert you can provide.

[78]Mr Valintine added that “we still have to go to the council and the company…”.

[79]   I pause to interpolate that the various iterative drafts underwent many changes but the key allegations remained substantially the same from the initial stages right through to publication.

[80]   On 12 June 2019, Mr Valintine sought comment from Mr Christian. There was a lengthy text exchange in which Mr  Christian vigorously denied the allegations.  Mr Valintine also emailed Todd McLeay, the new chief executive of Smart. He sent to Mr McLeay a detailed list of questions and factual assertions and sought comment from Smart. Mr McLeay told Mr Valintine that the Solid Waste Contract prevented him from talking without the approval of TCDC. Mr Valintine’s evidence was that Mr McLeay undertook to inquire about a release from TCDC but never came back to him.

[81]   Around this time, Mr Valintine approached Ms White expressing concern that TCDC was writing Mr Bain off as a disgruntled former employee and dismissing his claims as baseless. Mr Valintine urged Ms White to arrange a meeting with the CEO and a manager of the Solid Waste Contract so that Mr Bain could present his evidence to TCDC managers. Mr Valintine made it clear that meeting was conditional on the CEO of TCDC attending. He said that he would bring Mr Bain to take people through the spreadsheets and pivot tables.

[82]   The meeting was scheduled to take place on 12 June 2019. On the way to the meeting, Ms White contacted Mr Valintine to says that the CEO of TCDC could not and would not meet and that no-one from the Solid Waste Contract would attend either. Instead, the meeting would be with Ms White and newly appointed in-house counsel.

[83]   Although the stipulated condition for meeting had not been met, Messrs Bain and Valintine decided to attend anyway. Neither regarded the meeting as in any way successful. However, Ms White wrote to Mr Valintine the following day. She described the meeting as productive. She included in that letter a statement for publication. That statement said, in part:

Thank you for the meeting to provide us with specific documented information and evidence that raises some very serious allegations, which will help with us now investigate, analyse and take further advice.

We have been working with appropriate authorities for some time to identify and validate any evidence of whether illegal activity has occurred or whether any contractual breaches have become apparent.

[84]   Mr Valintine reported developments to NZME. Mr Bain meanwhile also reported on the meeting to Gabrielle Wheddon from the Office of the Auditor-General. He explained that he had taken the TCDC representatives through four months of the Smart/TCDC data to show the disparity between landfill tonnes and RTS incoming tonnes; that Smart had only included a transaction report for November and December and the differences in RTS “captured revenue” and the RTS rebate amount paid back to TCDC by Smart. He had also shown to TCDC what he considered was proof of the Commercial Waste drop off rate at $77.05 per tonne plus GST.

[85]   In early July 2019, Mr Bain was contacted by a private investigator engaged by TCDC. He met with the investigator, Michael Campbell, along with Mr Valintine. According to Mr Valintine this was an off-the-record discussion and not attributable although Mr Campbell would be reporting the discussion to TCDC.

[86]   Mr Campbell went on to speak with some of the same sources to whom     Mr Valintine had spoken. Mr Valintine was present when some of those sources were interviewed by Mr Campbell.

[87]   On 16 July 2019, the Office of the Auditor-General reported to Mr Valintine that its work was ongoing.

[88]   A series of changes in editor responsibility at NZME saw the draft articles languish for a period. Mr Valintine emailed NZME on 17 July 2019 pointing out that the story had been sitting with NZME for weeks. He asked for confirmation that the New Zealand Herald would publish and give the story some priority.

[89]   Stuart Dye, the editor of the Weekend Herald and Herald on Sunday responded to Mr Valintine. Mr Dye was called as a witness by Mr Bain. His evidence was slim. He did not discuss the editorial role of NZME other than to state that NZME has a rigorous process in place for stories submitted by freelancers. He gave no detail about that process but confirmed that legal advice from external lawyers was obtained.

NZME did not waive privilege in that advice. Mr Dye confirmed that Mr Bain had no input into the headlines or other headings or titles in the Articles.

[90]   Mr Patterson pressed Mr Dye on cross-examination about the rigour of that editorial process. The exchange was as follows:

Q: So, is it your understanding that your lawyer had the numbers checked?

A: No, the lawyer reviewed the whole story. The numbers would have been checked as part of our internal processes.

Q: Okay, who internally at The Herald checked the numbers?

A: That would have been the Head of Business Duncan Bridgeman.

…

Q: So you couldn’t be confident that Duncan Bridgeman would be able to understand what was – the evidence that’s been given, very complex documentation?

A: I mean I guess that’s duly – I would have confidence in Duncan as I would with most senior editors of The Herald because that is our job to quickly understand complex information and be able to trust that we can publish it.

[91]   Mr Patterson then put a series of propositions to Mr Dye about the relative complexity of the Smart/TCDC data. He suggested to Mr Dye that a partner at PWC and an expert at Morrison Low could not understand Mr Bain’s analysis and that TCDC did not accept Mr Bain’s workings. The cross-examination continued:

Q: So now having been told that would you be confident to tell the Court that Mr Duncan Bridgeman would have been able to verify Mr Bain’s workings?

A: I mean I, yeah, I can’t say with certainty.

[92]   This line of questioning appeared to shake Mr Dye’s confidence in the rigour of the review process. Yet, there was no cogent evidence presented to the Court that PWC or Morrison Low could not understand Mr Bain’s analysis.  There was only  Mr Bain’s supposition in respect of Morrison Low’s findings following TCDC’s issue of a press release purporting to summarise its findings.6 Similarly, there was no evidence of TCDC challenging Mr Bain’s workings.

6      Only summaries of those reports were made available post publication despite request by Mr Bain. The findings of PWC and Morrison Low are hearsay and generally inadmissible if intended to be offered to prove the truth of their contents. The summaries cannot be conclusive of anything.

[93]    Smart settled its employment dispute with Mr Bain the day before the Articles were published. Mr Valintine texted Mr McLeay to tell him that the Articles were to be published the next day.

Events after publication

[94]   By 8 August 2019, NZME had  deactivated  the Articles.  A  month  later,  Mr Christian commenced this proceeding. PWC began interviewing Mr Bain in November the same year. Messrs Bain, Barlow and Valintine were all interviewed by Morrison Low around the same time.

[95]   In early 2020, Smart and TCDC concluded their negotiations and entered into a deed of settlement. The deed records that with effect from 1 April 2020 Smart is to pay the gate rate for the disposal of Commercial Waste at any of TCDC’s RTS sites. TCDC posted a statement on its website announcing the conclusion of the negotiations with Smart. That statement referred to reports from PWC and Morrison Low concluding that the media allegations are either rebutted by the evidence or the amounts involved were not material to the contract. Mr Christian circulated the TCDC post with further commentary.

[96]   Mr Christian settled his claim against NZME and Mr Valintine on 24 August 2021.

Issues on liability

[97]The claims in respect of the Articles give rise to four issues on liability:

(a)whether Mr Bain has any responsibility in the law of defamation for the Articles;

Mr Bain wrote to Morrison Low on 19 May 2020 describing the published finding as “astonishing” and suggesting that he can only conclude that it indicates that Morrison Low disregarded his information as “non-factual”. He asked Morrison Low to advise the reasons why it considered the information to be incorrect and to confirm whether the investigation findings were evidence based. Morrison Low did not respond substantively.

(b)whether the Articles convey any of the defamatory natural and ordinary meanings pleaded by Mr Christian;

(c)whether the defence of responsible communication on a matter of public interest is available to Mr Bain; and

(d)whether the defence of honest opinion is available to Mr Bain. This raises a number of sub-issues:

(i)Would the ordinary reasonable reader understand the conveyed defamatory imputations to be comment in the sense of an expression of opinion?

(ii)Is the expression of opinion based on truly stated facts referred to in the article or otherwise generally known?

(iii)Is the opinion genuinely held by Mr Bain?

[98]   Depending on the outcome on those issues, remedial issues then arise including as to the effect of the settlement with NZME and Mr Valintine, an assessment of damages, including punitive damages and the availability of injunctive relief.

[99]   Thirteen witnesses gave evidence. Some gave evidence in person in Court, others by VMR. The VMR procedure was agreed by the parties to mitigate risk to participants as a result of the COVID-19 pandemic. Closing submissions were also delivered by VMR with leave to file full written and referenced submissions after the hearing.

Is Mr Bain responsible in law for the Articles?

[100]   Publication is an essential element of the tort of defamation. Publication is the process by which a defamatory imputation is conveyed or disseminated. Liability for publication is strict.7 The primary publisher of the Articles was NZME. NZME

7      The strictness is mitigated by the defence of innocent dissemination and s 21 of the Defamation Act 1992.

controlled and performed the physical act of disseminating the Articles. NZME retained editorial discretion including as to the final decision whether or not to include the Articles in the print and/or web version of the New Zealand Herald.8

[101]   However, as publication is a ‘process’, the relevant acts are not limited to the actual physical act of dissemination. Rather, they include steps in the chain preceding dissemination. It is trite that the author or journalist who composes a print media article (the originator) is as responsible in law as the editors and owner of the media entity for the act of dissemination.

[102]   Unless this Court finds that Mr Bain is also responsible at law for the publication by NZME of the Articles, there is no case to answer. This threshold question is not without difficulty. First, there is a degree of novelty in the proposition that someone in Mr Bain’s shoes is liable. While courts have traditionally expressed the principles of accessorial liability to publication in sweeping terms, as Palmer J said in Sellman v Slater “[t]here is little New Zealand authority on the outer limits of responsibility for publication by procuring, or being an accessory to, the making of defamatory statements”.9 Moreover, Courts more often discuss the principles in the context of interlocutory applications where claims of liability need only be tenable to survive strike out so offer limited guidance. Sellman was such an example.

[103]   Secondly, the New Zealand Bill of Rights Act 1990 (NZBORA) requires that defamation law strikes an appropriate balance between protection of reputation and freedom of expression.10 The latter imperative tends not to explicitly feature in the early ‘bedrock’ authorities. It has played a greater role in the analysis of publication liability in more recent internet defamation cases where the question of “who is a publisher” is particularly acute. Accordingly, one must be cautious in the application of the general statements from these early authorities and critically focus on their particular context.

8      There is no suggestion that NZME had a contractual or other obligation to publish. Nor is there any suggestion that NZME’s editorial discretion was curtailed for any reason.

9      Sellman v Slater [2017] NZHC 2392, [2018] 2 NZLR 218 at [103].

10     New Zealand Bill of Rights Act 1990, s 14.

[104]   Thirdly, Mr Christian has pleaded and argued his case on the issue of publication in various ways without necessarily distinguishing inherently different concepts. This is not surprising when trying to fix Mr Bain with liability for the whole contents of the Articles when, on their face, he has contributed only part. The comments in the Articles attributed to Mr Bain were initially a slim basis on which to assert responsibility for the whole. Through the discovery process and, as the evidence emerged, evolution of this part of the case was inevitable.

[105]   Whether Mr Bain’s liability was founded on statements made to Mr Valintine which Mr Bain knew and intended would be republished, as a co-publisher as participant or party or as joint tortfeasor on general tortious principles was not clear on the pleaded case. These routes to liability are conceptually different and have different proof requirements.

[106]The first statement of claim pleaded in summary:

(a)NZME published two articles authored by Mr Valintine.

(b)Those articles were republished by NZME and non-parties and such republishing was the natural and probable consequence of NZME’s publication.

(c)Those articles made allegations based materially on statements made by Mr Bain to Mr Valintine and repeated and/or published such statements verbatim as quotations.

[107]Then at [23], Mr Christian pleaded:

At all material times, Mr Bain intended and/or consented and/or reasonably foresaw NZME’s repeating, and relying upon for the Articles, the Bain statements, including the quotations of the Bain statements contained in the Publications.

[108]   The key to Mr Bain’s alleged responsibility in this pleading appears to be statements he made to Mr Valintine which he intended NZME to publish. This has the

hallmarks of a pleading of ‘intended republication’ without particularising the actual statements in the articles which Mr Bain is said to have contributed.11

[109]   At [30], Mr Christian  pleaded  that  the  Articles  were  intended  by  both  Mr Valintine and Mr Bain to damage his reputation (as well as the reputation and business of Smart) and that Mr Bain was motivated by personal malice and anticipation of commercial benefit. This might be read, at least implicitly, as an allegation of a common design along general tortious principles.

[110]   The next iteration of the statement of claim was not materially different in so far as the basis for Mr Bain’s alleged liability for publication is concerned.12

[111]   Despite the uncertainties in the pleaded case, it is clear that Mr Bain was not under any illusion that the claim was limited to the quotations attributed to him. This was obvious in an earlier interlocutory hearing of Mr Bain’s application to strike out the claim on the  basis  that  the  settlement  between  Mr  Christian,  NZME  and  Mr Valintine also released Mr Bain as joint tortfeasor.13

[112]   Shortly before trial, and without opposition, Mr Christian added particulars to his amended statement of claim.14 The operative paragraph now reads:

[22] The Rort Article, the Dirty Secret Article and the Dirty Secret Republications (collectively as "the Publications"):

[22.1] were authored by Mr Valintine;

[22.2] made allegations that were based materially on statements made by Mr Bain to Mr Valintine including statements:

of opinion;

of advice as to the wording;

as to contents and accuracy of drafts of the Publications; comprising hearsay;

11     This follows the line of authority in Slipper v BBC [1991] 1 All ER 165 (QB).

12     Amended statement of claim dated 29 November 2019.

13     Christian v Bain [2021] NZHC 3390.

14 The second amended statement of claim was filed initially in draft with an application seeking  leave on 28 January 2022. The defendant consented to the application for leave to amend and an order was made accordingly. The amendments added further particulars at [22] of the first amended statement of claim dated 29 November 2021.

embodied in documents and analyses prepared by Mr Bain; and

as to the accuracy, reliability and/or truthfulness of documents provided to Mr Valintine by Mr Bain and third parties and third party information obtained by Mr Valintine

(collectively "the Bain statements");

[22.3] materially relied upon, embodied, repeated and/or published the Bain statements including repeating and/or publishing verbatim as quotations some of the Bain statements.

[113]   While ostensibly added as particulars, these are additional strands to the case on responsibility. The flavour of these particulars is participation in publication of the Articles.

[114]   In opening the plaintiff’s case, Mr Patterson contended that Mr Bain was not a mere journalistic source but collaborated with Mr Valintine to jointly craft every aspect of the allegations and the Articles with the common intention to ultimately see them published.

[115]In closing, Mr Patterson submitted variously (in summary):

(a)Mr Bain is liable not as a publisher but as a joint tortfeasor having procured and played a substantial part in having the articles published;15

(b)that the plaintiff need only establish that Mr Bain causally contributed, in a material sense, to the defamatory imputations being published;

(c)Mr Bain procured and played a substantial part in having the Articles published; and

15    This is a difficult submission to understand.  If it is intended to rely on the general law principles of joint tortfeasorship set out in Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544, [2013] 3 All ER 867 at [45] and upheld by the Supreme Court on appeal (Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10, [2015] AC 1229), there is only the barest foundation in the pleading and no reference to nor development of the elements of common design. If the reliance is on an assertion of procurement or participation, the conclusion is that a defendant would be treated as a co-publisher in the legal sense within the rubric of the law of defamation.

(d)but for Mr Bain’s involvement, the pleaded imputations would not have been published so he was just as responsible for the contents as if he had been a formally accredited and attributed co-writer or editor with Mr Valintine.

[116]   In support, Mr Patterson relied on statements in the leading text, Gatley on Libel and Slander,16 the decision in Sellman and a fine-grained analysis of the communications between Mr Bain and Mr Valintine.

[117]   Ms Dickson contended that Mr Bain had a much more limited involvement in the Article. She argued that the Articles overall were not based materially on statements he made. Rather, Mr Bain was only one of more than 15 sources for the Articles; Mr Valintine conducted his own investigation; he and/or NZME maintained editorial control throughout and it was Mr Valintine who inserted the references to Mr Christian and the Sopranos (among other elements of the articles) which are relied on for the defamatory meanings. Mr Bain cannot be responsible for spin or inaccuracy as a result of the contribution of others. She relied on Alsaifi v Secretary of State for Education17 and s 14 of the NZBORA in support of these propositions.

[118]   Ms Dickson submitted that it follows that the chain of causation between    Mr Bain’s contribution and commercial publication by NZME was broken. In short, that Mr Bain had no need of a defence for all of the contents of the articles, only the quotations attributed to him which are defended as honest opinion.

Legal principles—responsibility for publication

[119]   Gatley on Libel and Slander summarises the principles of responsibility for publication in the following terms:18

General principles: responsibility for publication. The person who first spoke or composed the defamatory matter (the originator) is of course liable, provided he intended to publish it or failed to take reasonable care to prevent

16 Alastair Mullis and Richard Parkes (eds) Gatley on Libel and Slander (12th ed, Sweet & Maxwell, London, 2013). Since the trial, a newer edition of Gatley has been published: Richard Parkes and Godwin Busuttil (eds) Gatley on Libel and Slander (13th ed, Sweet & Maxwell, London, 2022).

17 Alsaifi v Secretary of State for Education [2019] EWHC 1413 (QB).

18 Gatley (12th ed), above n 16, at [6.10] and [6.11] (emphasis added). See also Gatley (13th ed) [7.10]–[7.11].

its publication. However, at common law liability extends to any person who participated in, secured or authorised the publication (even the printer of a defamatory work) though this was qualified by special rules for mere distributors, who could escape liability by showing lack of knowledge of the defamatory nature of the publication and the exercise of reasonable care.

Joint and several liability: In accordance with general principle, all persons who procure or participate in the publication of a libel, and who are liable therefore, are jointly and severally liable for the whole damage suffered by the claimant.

[120]In a subsequent chapter, Gatley records:19

Alteration of defamatory matter: Where it is alleged that the defendant is liable as publisher, on the ground that he has authorised another to publish, he is not necessarily protected because the material has been altered. The correct principle is that:

where a man makes a request to another to publish defamatory matter, of which, for the purpose, he gives him a statement, whether full or in outline, and the agent publishes that matter, adhering to the sense and substance of it, although the language be to some extent his [the agent’s] own, the man making the request is liable to an action as the publisher. If the law were otherwise, it would in many cases throw a shield over those who are the real authors of libels, and who seek to defame others under what would then be the safe shelter of intermediate agents.

The question is whether the defendant authorised the substance and the sting.

[121]   This passage from Gatley is cited often. It draws support from the English cases of Bunt v Tilley and Bataille v Newland, both first instance decisions by specialist libel judge, Eady J.20 The expansive language is adopted by other leading texts. Duncan and Neill on Defamation states that “[e]very person who knowingly takes part in the publication of defamatory matter is prima facie liable in respect of that publication” and:21

A person who authorises or ratifies publication by another will be taken to have participated in it. … A person may also be liable for the defamatory publication of another person on normal tortious principles of vicarious or accessory liability, or under the law of agency.

19     At [6.54] (emphasis added).

20     Bunt v Tilley [2006] EWHC 407 (QB), [2006] 3 All ER 336; and Bataille v Newland [2002] EWHC 1692.

21     Richard Rampton and others Duncan and Neill on Defamation, (5th ed, LexisNexis, London, 2020) at [8.10].

[122]The New Zealand text, Burrows and Cheer on Media Law says:22

It is trite law that if a defamatory statement appears in a publication all those concerned with it are liable — for a newspaper, for example, this will be the company, the editor, the reporter, even the subeditors and layout editors.

[123]And, in a leading Australian text, David Rolph says:23

Any person or entity who voluntarily participates in the dissemination of defamatory matter is, in principle, a publisher.

[124]   Two recent New Zealand High Court decisions discuss responsibility for a defamatory publication. Both refer to and apply the principles in Gatley. Both also rely on the Australian High Court decision of Webb v Bloch.24

[125]   Newton v Dunn was a defamation claim borne of a dispute between the plaintiff and two community figures, Mr and Mrs L.25 Mrs L had worked with the plaintiff who was principal of the school. Their relationship soured. An employment dispute ensued. The Judge described the employment dispute as “one of several fronts on which the battle between Mrs [L] and [the plaintiff] unfolded.26 Sometime afterwards, Mrs L engaged a ghost writer for a fee to write about her experiences and to “profile” and “expose” the plaintiff. The contract of engagement was explicit about the intent and purpose behind the book. As part of an information gathering exercise, the writer composed a letter to people in the community seeking information. The letter was defamatory of the plaintiff. The plaintiff sued the writer and then joined Mr and Mrs L.

[126]   Materially, the letter had been sent to Mr and Mrs L in draft before its circulation. Some amendments were made at Mrs L’s suggestion but these largely related to statements about persons other than the plaintiff. The letters eventually disseminated incorporated passages from the draft seen by Mr and Mrs L.

22     Ursula Cheer Burrows and Cheer Media Law in New Zealand (8th ed, Lexis Nexis, Wellington, 2021) at 60.

23     David Rolph Defamation Law (Thomson Reuters, Sydney, 2016) at [8.30].

24     Webb v Bloch (1928) 41 CLR 331.

25     Newton v Dunn [2017] NZHC 2083. This was one of the few substantive decisions in this areas.

26 At [37].

[127]   Justice Collins accepted that Mr and Mrs L were “publishers” if they either authorised or participated in the sending of the letters. He referred to the statement by Isaacs J in the High Court of Australia in Webb v Bloch:27

All who are in any degree accessory to publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication; thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable to the act of publication when it has been so effected.

[128]   Mr and Mrs L at least implicitly authorised the sending of the letter under the terms of the agency agreement. Authorisation for publication arose when they raised no objection to the relevant defamatory passages after careful consideration knowing it was going to be sent to a number of recipients. Mrs L participated in publication by furnishing the letter writer with the names and addresses of recipients and played a material role in ongoing publication of the revised letter.28 Materially, Collins J rejected the submission that a defendant cannot be liable as an accessory to a publication unless shown to have exercised control over its final form.29

[129]   In Sellman v Slater,30 public health professionals complained of defamatory blog posts and comments. They sued the individual responsible for the blog who had posted the material, along with a public relations practitioner who posted comments. They also joined two other parties whom they said procured the publication of the substance and sting of those posts and comments, by engaging the public relations practitioner as intermediary for a fee.

[130]   Those parties applied to strike out the claim. Palmer J summarised the law on procuring or being an accessory to the making of a defamatory statement. He started with the passage from Gatley cited above. He referred to statements in Bataille v Newton that encouraging the primary author, supplying him with information intending or knowing that it will be republished, or instructing or authorising him to

27 Webb v Bloch, above n 24, at 364 (emphasis original). To  “conduce” in this context means “to  lead” or “contribute to the result” or “bring about.

28 At [128]–[130].

29 At [85], the Judge also rejected the submission that Thiess v TCN Channel 9 Pty Ltd (No 5) [1994] 1 QD R 156 (QSC) had modified the law articulated by the High Court of Australia in Webb v Bloch.

30 Sellman v Slater, above n 9.

publish it can give rise to legal responsibility.31 He also referred to the following passage from Bunt v Tilley:32

In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant’s knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant’s words) responsible for “corporate sponsorship and approval of their illegal activities”.

[131]   I pause to interpolate that both Bataille and Bunt were interlocutory decisions. Neither involved primary acts of publication by media content providers. In Bunt, the issue was in what circumstances, if at all, an internet service provider which facilitated a defamatory communication could be held to be a publisher. In Bataille, the issue was whether someone providing defamatory content or encouraging its communication within a workplace environment, but who did not compose it nor physically distribute it, can be responsible for publication.

[132]   Palmer J accepted that liability for defamation arises from procuring, participating in, instructing, authorising, or encouraging publication of a defamatory statement. Consequently he declined to strike out the claim.

[133]   The reliance on Webb is explicable in both Newton and Sellman because all three cases can be readily understood in terms of principal and agency relationships between the party who actually communicated the defamation and those who were said to have “conduced” publication by bringing it about. None of those authorities involved an independent media party as primary publisher. Ms Dickson argues, with some force, NZME and Mr Valintine’s actions operated as a novus actus interveniens. I consider that Mr Bain was not in an agency/principal relationship with NZME. In my assessment, he was never in a position to authorise, instruct, or direct NZME in the relevant sense.

31     Bataille v Newland, above n 20, at [25].

32     Bunt v Tilley, above n 20, at [21].

[134]   Although the context of Webb is an agency and principal relationship, it is frequently cited by Australian courts as to the extent of liability for participation in the publication of a defamation. Webb was recently approved by a majority of the High Court of Australia in two internet-related cases Fairfax Media Publications Pty Ltd v Voller33 and Google LLC v Defteros.34 Both cases involved factual contexts very different to the case argued against Mr Bain. Shortly stated, the majority in Voller said that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge or intent.35 Understood in this way, a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher.36

[135]   A more factually similar case to the issues at hand is Thiess v TCN Channel Nine Pty Limited (No 5).37 TCN Channel Nine broadcast four programmes. The second defendant was the acknowledged source. He approached the broadcaster, provided information about events and incidents as well as supporting documents and names of individuals who could be interviewed to corroborate the key assertions. He helped with research and interviewing contacts. He became part of the broadcaster’s team and was contracted to receive a conditional fee in the event of broadcast. He also appeared in one or more of the programmes. In all respects, he was “central” to the programme themes or structure.

[136]   At trial, a jury found that the second defendant was not a publisher. The plaintiff unsuccessfully appealed. A full Court of the Queensland Supreme Court said that it was not enough for a plaintiff to show that, without the source, the television programmes would never have been devised or broadcast. Its view of Webb was that the case involved a publication which the defendants were held to have given authority or approval to the final form to which they had contributed.38 Unlike Webb, there was no agency/principal overlay. It could never have been suggested that the source was the principal of TCN channel since he did not exercise control over the final form of

33     Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, (2021) 392 ALR 540.

34     Google LLC v Defteros [2022] HCA 27.

35     At [30] per Kiefel CJ, Keane and Gleeson JJ, [68] per Gageler and Gordon JJ.

36     At [32] per Kiefel CJ, Keane and Gleeson JJ, [59] per Gageler and Gordon JJ.

37     Thiess v TCN Channel Nine Pty Limited, above n 29.

38     At 194.

the programmes. Rather, he played a subsidiary and intermediate part, albeit he was important to the programmes.

[137]The Court said:39

What is said in Webb v Bloch and Gatley would perhaps suffice to make [the defendant] liable with TCN 9 if he had seen the script or viewed the programmes before publication; but the evidence is that he did not do so. The decision in Webb v Bloch is concerned with a case that is in some ways the direct converse of this.

[138]   Thiess has been approved in a number of cases. In Zeccola v Fairfax,40 the plaintiff sued the proprietor of a newspaper, the journalist who wrote the article and also a quoted source. That person quoted was sued in respect of the whole article rather than for republication of his statements to the journalist although he was not the only source of information relied on by the journalist. The Court summarily dismissed the claim as incapable of disclosing an arguable case. The Judge appeared to have accepted that the breadth of the imputations complained of plainly arose from material that had nothing to do with anything that individual had said to the journalist.

[139]   In Rush v Nationwide News,41 a media defendant sought to join its source to whom it had gone for comment before publishing an article. The Court dismissed the application on multiple grounds including the weakness of the proposed claim. The Court said it was highly questionable whether the statements by the interviewee were reasonably capable of conveying any, let alone all of the imputations in the article.

[140]   The source had asked the reporter to read out the proposed article before commenting but, materially, the spelling of the headline—a pun or word substitution which arguably conveyed the defamation— was not read out. The Court stated that the plaintiff had to establish that by contributing material the defendant had participated in or was an accessory to the entire publication. It was not enough to establish only that the source brought about the republication of the statements he or she made to the journalist because it was not possible to plead a cause of action based

39     At 195.

40     Zeccola v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1007.

41     Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, (2018) 359 ALR 564.

on publication of only part of the article.42 Rather, the plaintiff would have to prove that the article reproduced the sense and substance of the defendant’s statement to the journalist. Where a person merely contributed material but had no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she assented to its final form.43

[141]Finally, I refer to the decision of Alsaifi v Secretary of State for Education.44

Ms Dickson argued that the following propositions can be taken from this case:

(a)A source is not responsible for any errors or misleading aspect of the context in which his or her source material appears.

(b)The source cannot be held responsible for inaccuracy, spin or additional material added by the media which alters the meaning of the source material.

(c)The source is entitled to assume that his or her contribution will appear in the context of an account that is fair and accurate. If the account is not “fair and accurate” and the effect is to give the source material a defamatory meaning that it would not otherwise bear, the source should not be held liable for the media publisher’s inaccuracy which is beyond the control of the source.

(d)A person cannot be held liable for republication that person did not intend, authorise or foresee.

[142]   The claim in Alsaifi was limited to the four lines from a source’s press release inserted by a journalist in an article. The plaintiff did not contend that the source was liable for the contents of the whole article. In short, it was a republication case. I also note that the passage in the judgment setting out the second proposition was itself

42 At [120] citing Mohareb v Fairfax Media Publications Pty Ltd (No 3) [2017] NSWSC 645 at [40]– [44].

43 At [124] citing Dank v Whittaker (No 1) [2013] NSWSC 1062 at [22]. See also Dank v Cronulla- Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850; and Purcell v Cruising Yacht Club of Australia [2001] NSWSC 927.

44 Above n 17.

taken from an earlier decision of Warby J in parallel proceedings.45 However, a key part of Warby J’s statement was omitted in the subsequent decision. The whole passage reads that the source cannot be held responsible for any inaccuracy or unfair spin which the rest of the article contained if that was not known to [the source].46

[143]   In conclusion, Alsaifi is factually and legally a different kind of case. It does not advance Mr Bain’s defence because Mr Christian does not stake his claim on the quotes attributed to Mr Bain in the Articles.

[144]   Although responsibility in law for a defamatory publication has wide reach, there must be limits. Contribution to or connection with a publication can take many forms. There is a spectrum of involvement. At one end there is the commercial publisher, such as NZME, who undertakes the arrangements for the physical dissemination. In the traditional media environment, editors, sub-editors and journalists sit close to the commercial publisher; they are sufficiently connected to the process of dissemination to be joint tortfeasors.

[145]   Where does a journalist’s source sit on that spectrum? Sources are the lifeblood of investigative journalism. Encouraging the free flow of information between a journalist and his or her source is squarely in the public interest and a vital component of any democracy.47 This principle is well recognised. If a news medium is sued and admits publication, a Court will not order it to disclose its sources before trial.48 Section 68 of the Evidence Act 2006 provides that journalists are not compellable to disclose confidential sources unless a Court finds there is greater public interest in disclosing their identity. There are also guiding principles for the grant and execution of warrants for the search of media premises.49 These examples underscore the importance of protecting media sources.

45     Alsaifi v Trinity Mirror Plc and Board of Directors [2017] EWHC 1444 (QB).

46     At [65] (emphasis added).

47     See Law Commission Evidence Reform (NZLC R55, 1999) at [301].

[344]   Ms O’Grady also said that about a couple of months after the change in policy, she had been asked to get keys for the RTS sites cut for commercial drivers.

[345]   Ms O’Grady gave evidence of speaking with Mr Valintine on multiple occasions and meeting with him twice. She had left Smart in June 2018. She also worked for a very short time at Coastal Bins on a part-time basis in late 2018. After leaving Smart, she had received messages from Mr Christian which she found upsetting. Ms O’Grady was also interviewed by the private investigator engaged by TCDC on 20 July 2019. These related to Smart’s employment dispute with Mr Bain. Ms O’Grady was forthright in her evidence that she (understandably) had limited recollection of her discussions with Mr Valintine because of her circumstances. To an extent, she was reconstructing what she expects she would have told him. However, she clearly recalled being worried about the change in practice at Smart because a budget blow out might affect her performance assessment.

[346]   I found Ms O’Grady to be a straightforward and honest witness whose evidence was unaffected by any of her dealings with Smart or Mr Christian. I also accept Mr Valintine’s account of what Ms O’Grady told him pre-publication.

[347]   Ms Park gave similar evidence. Ms Park was confused about the timing of the meeting with Mr Valintine in a local café. She too stated that she no longer recalled exactly what she told Mr Valintine. Nonetheless, her evidence generally supported what Mr Valintine reported she had told him.

[348]   The third cohort of sources was Mr Howie, an individual from the owner of the Tirohia landfill, Waste Management New Zealand Ltd. He was not prepared to be interviewed on the record but confirmed to Mr Valintine there was no agreement between the owners and TCDC which allowed commercial operators the benefit of TCDC’s lower rate for tipping. He gave evidence at trial. He confirmed that he had spoken with Mr Valintine pre-publication.

[349] Generally, all the information coming Mr Valintine’s way, except the LGOIMA responses from TCDC, was consistent and supported Mr Bain’s hypothesis. There was one significant exception. Pre-publication, Messrs Valintine and Bain were made aware of the email from Mr Christian to TCDC dated 10 April 2018 outlined above at [35].

[350]   The question is whether this email should have alerted Messrs Valintine and Bain that TCDC had at least been notified or that there was an agreement between Smart and TCDC for a reduced rate at the RTS sites.

[351]   On its face, one would expect that this email would have prompted inquiry as to whether there was any response from TCDC. However, Mr Valintine’s TCDC source had confirmed there had been a rigorous search for contemporaneous documents and there was no tolling or discount agreement. There were also LGOIMA responses denying any discounting arrangement or tolling and Mr Bain’s recollection of an attempt in 2017 to negotiate a discount with TCDC. There was also nothing to this effect in the formal Solid Waste Contract and a contractual provision requiring any variation to be in writing. It was reasonable to understand that such an arrangement was hardly a minor or mechanical variation.

[352]   A closer scrutiny of Mr Christian’s email is telling. It did not, with respect, advance a cogent argument of an agreement reached in 2013 between Smart and TCDC. The language instead reads very much as a preliminary proposal, not a statement of intention but rather of a desire to instigate a tolling arrangement.110

110   In cross-examination, Mr Christian agreed that TCDC had not come back to Smart with a substantive response.

[353] Subsequent emails between Smart and TCDC on the subject were however produced to the Court. These included an email from Ben Dey of Smart to TCDC following the fire at the Kopu facility to which I have already referred at [28].

[354]This email was put to Mr Bain in cross-examination:

Q. And so, would you accept that Ben [Day] is notifying the Council that the option is being enacted?

A. I accept that Ben [Day] is saying here they are going to do it which contrary to Grahame’s 10^th of April email.

Q. … Wouldn’t you agree that the words “we have enacted” is stating something that’s happened?

A. States something that’s going to happen, yes.

Q. Well no because he would say words to the effect of: “We will be,” yes, yes agreed, yes. But you’d have to accept that we have [is] communicating to the Council that Smart has done it?

A. Correct.

[355]   The series of emails mean that the statements in the News Articles that “[t]he council investigation centres on whether Smart introduced the discount without advising or negotiating with council …” and “[t]he former member of Christian’s team said the council was not consulted or advised” were misleading. The fact of disposal at Tirohia at “Council’s rate” was disclosed. What was not explicitly disclosed is the rate.

[356]   However, there is no evidence that Messrs Bain or Valintine were ever provided with the subsequent emails or had any notice of them. On the contrary, Mr Valintine said in evidence that he was “pretty sure we had one email, not the series”. In my view, absent knowledge of the subsequent emails, the email dated 10 April 2018 is not evidence that Messrs Bain and Valintine’s genuine belief in the sting of the Articles lacked objective reasonableness.

Involvement of Mr Valintine and NZME

[357]   Mr Bain’s involvement of Mr Valintine in the investigation came about because of his earlier experience of Mr Valintine’s investigative capabilities. He respected

Mr Valintine as an experienced and highly regarded journalist. Mr Bain was entitled to expect a commensurate  level  of  professionalism.  He  was  also  informed  by Mr Valintine that NZME would have any articles ‘legalled’ and the underlying data audited for accuracy. He would have been aware that the New Zealand Herald was one of New Zealand’s largest and most reputable media entities. The fact that he knew and understood there would be an independent ‘checking’ process would have increased his level of comfort that the Articles were accurate and lawful.

[358]   That NZME apparently elected to proceed without an independent checking process does not detract from Mr Bain’s understanding and expectation of process.

Opportunity to respond/comment

[359]   Mr Valintine approached Mr Christian for comment more than six weeks before publication. This was initially in a series of texts between 12–24 June 2019 although Mr Valintine proposed to then email Mr Christian with a full set of questions.

[360]   Mr Valintine characterised his text exchange with Mr Christian pre-publication as an “interview”. This is an embellishment. Nonetheless I consider that Mr Valintine put to Mr Christian that the proposed story:

(a)related to the TCDC contract and what appears to be a significant discount Smart gave its commercial operation at TCDC RTSs which on its face breached contract terms; and

(b)included other issues and allegations, including afterhours access, apparent missing or unaccounted tonnes through the transfer stations, a significant number of loads not captured on weighbridges and recycling from Waipa being dumped in the Thames RTS.

[361]   Mr Christian responded by text, “Wow that is pretty serious Mike and all denied”. He then went on the counter-offensive against Mr Bain. He texted:

We know who is making these complaints. He is an ex employee whom we are in legal proceedings against, and found over one thousand files in a

memory stick that he stole from his previous employer. He has been running a gutter campaign against us for the past 12 months.

[362]Among other things, Mr Christian also told Mr Valintine in the text exchange:

(a)Smart had invested $8 million into the contract and was able to access transfer stations at a negotiated rate that offset Smart’s massive and ongoing investment.

(b)The unaccounted tonnes issue was an error by a consultant, since rectified.

(c)Smart had to dispose of contaminated recycling after a significant fire, followed by another at the Kopu site. This was disclosed to Smart’s clients.

(d)He was not able to comment about after-hours access except that it may happen but Smart would insist all staff account for transactions.

(e)Smart has an outstanding reputation of honesty and any such alleged action would have to be clandestine, involve many people and just would not happen.

[363]   In follow-up text exchanges, Mr Christian suggested that Mr Bain should have known about the RTS rate when employed by Smart as it was definitely in the contract. This statement was at odds with Mr Valintine’s knowledge of the Solid Waste Contract, Mr Bain’s clear recollection of being asked to try to negotiate a preferential rate during his time at Smart and what the TCDC informant had conveyed.

[364]   Mr Valintine proposed to Mr Christian that he “open the books” and the best way forward may be for Mr Valintine to send a series of questions and statements to both Mr Christian and Mr McLeay. Mr Christian responded:

I think that is a good idea Mike. I honestly don’t know why there is bad blood. Murray left of his own volition and whilst on paid 6 months leave, he was setting up in competition to us.

I would want an undertaking that if we produce the documents that you will also publish that you have viewed the memory stick that clearly shows the stolen information and his private information on the stick and an email to me acknowledging that the stick was his.

[365]   Mr Valintine’s riposte was that Mr Bain was one of a dozen sources involved in the corroboration process and had had a minimal role given he was not employed by Smart at the relevant time. He indicated to Mr Christian that he would email the substance of the issues that needs to be addressed to both he and Mr McLeay.

[366]   In Mr Christian’s penultimate text to Mr Valintine, he said “send the email…and we will seek legal advice”. He pointed out that Smart had a confidentiality obligation in the Solid Waste Contract to which Mr Valintine responded:

I assure you there is no intent to have a trial by media but rather a pain staking [sic] attempt to ascertain sic the truth before publication. That can most easily be achieved by “opening the books” as we largely appear to have agreed to last evening.

[367]   On 24 June 2019, Mr Valintine texted Mr Christian again for clarification to which Mr Christian texted back saying that he no longer has the right to speak on behalf of Smart in any capacity and the correct process is via Mr McLeay. He added that he “cannot and will not respond to any further queries”.

[368]   Mr Valintine had already emailed Mr McLeay on 13 June 2019 with a series of statements and asked for a response. He set out twenty detailed statements in his email. Materially, they included:

(a)In 2018, Smart reduced the fee it paid for its commercial waste dumped at the TCDC RTS sites from the council posted rate of $181 per tonne down to $77.05.

(b)Smart did so without consultation with the TCDC or notification of the “discount”.

(c)This was a breach and deprived TCDC of substantial revenue during 2018.

(d)Retroactively Smart argued the “discounted” rate was based on an email exchange in 2013 which included discussion over a “tolling” rate for Smart.

(e)No agreement was reached with TCDC on a tolling rate at the time nor was it included in the contract or any subsequent variations.

(f)That from January through to October last year Smart did not send weighbridge transaction reports with the monthly claims to TCDC as had been common (and industry) practice until that point.

(g)Without transaction reports TCDC was unable to do an accurate reconciliation of the claim.

(h)Smart had keys cut to access RTS sites and supplied them to its commercial drivers allowing unfettered access to those sites after hours.

(i)Smart dumped commercial loads after hours and without TCDC’s approval on a regular basis.

(j)In December 2018, Smart dumped more than 30 tonnes of recycling from the Waipa district in the Thames RTS.

[369]   Mr McLeay contacted Mr Valintine by telephone but did not provide any written response. He told him that there were reasonable explanations for the key points but the clause in the Solid Waste Contract meant that he could not talk without TCDC approval. Mr Valintine’s evidence is that Mr McLeay undertook to ask TCDC to let him respond. All went quiet. On the eve of publication, which was many weeks later, Mr Valintine texted him again to advise that the Articles were to be published the next day. Mr McLeay telephoned Mr Valintine in response. It appears he may have thought the story had “gone away”.111

111   It is possible that Mr McLeay’s belief stemmed from a negotiated settlement of the outstanding appeal against the Employment Relations Authority determination between Smart and Mr Bain.

[370]   The email to Mr McLeay was fulsome and detailed. I consider it implausible that Mr Christian would not have seen Mr Valintine’s email to Mr McLeay or its contents would not have been communicated to him by Mr McLeay. Common sense dictates that he was in the loop. It strains credibility to think that the senior persons at Smart were not discussing how to respond, if at all. This is particularly so since the allegations all related to the period in which Mr Christian was the managing director. He also remained on the board of Smart.

[371]   There was the opportunity to seek waiver of the confidentiality provision from TCDC, if required, to address any inaccuracies. There is no evidence that Mr Christian or Mr McLeay did so. It was not logical in this context for one of the parties to the Solid Waste Contract to use the confidentiality provisions to prevent the other from correcting the record. It is apparent that TCDC had no qualms about providing high level comment to Mr Valintine although it refused to engage on the detail. It was quoted in the Articles.112 In my assessment, Smart and Mr Christian chose not to respond, or to seek a release from TCDC. They preferred to use the confidentiality provision as a protective shield. They were entitled to do so. They had no obligation to speak with media. But, having adopted that strategy, they were on risk that any inaccuracies would not be corrected pre-publication. This is part of the context against which the publishers’ responsibility must be assessed.

[372]   There was no urgency to publish given the context. This was not a situation of perishable news in the ordinary sense. However, I reject the suggestion that the Articles were rushed to print and did not afford Smart and/or Mr Christian a reasonable opportunity to respond and or comment in a meaningful way. The contrary is true. I reject the criticism that the omission of certain details in Mr Valintine’s communications with Mr Christian and Smart, such as, among other things, his access to TCDC data from an unnamed source, Mr Bain’s analysis of that data, that Smart was under investigation by the Office of the Auditor-General and that there was video evidence of the dumping of recycling, led to unfairness. That level of specificity may

The terms of settlement included bilateral non disparagement provisions. The plaintiff did not make anything of those terms which both Smart (by Mr Christian) and Mr Bain arguably breached.

112   As soon as TCDC commented to Mr Valintine for the article it is arguable that restrictions fell away as a result of the public domain exception.

be required of a prosecutor in a legal process but it is unrealistic for an investigative journalist.

[373]   I am therefore satisfied that substance of the allegations was sufficiently put to both Mr Christian and Smart pre-publication to avoid unfairness.

Editorial licence

[374]   Mr Patterson was critical of omissions from the Articles which created a misleading impression. He referred to:

(a)knowledge that other users of the RTS, not just Smart, had after-hours access so it was misleading to imply that Smart was the only operator accessing the RTS after hours.

(b)Mr Bain’s knowledge that Smart drivers had keys to the RTS sites during his time with Smart.

(c)the publication of opinion from industry sources who were not aware that the analysis on which they commented relied on unauthenticated and unaudited data and who would not likely have suggested wrongdoing had they known.

(d)Mr Bain’s knowledge that the Office of the Auditor-General was not taking any further investigative steps pending the conclusion of TCDC’s inquiry.

(e)the failure to “qualify” other sources who were connected to Mr Bain leaving readers with an unbalanced view as to what weight, if any, to put on the assertions.

(f)the failure to disclose that the base information relied on Mr Bain’s analysis only.

(g)omitting reference to the fact Mr Bain had made claims in the ERA against Smart in respect of disparaging statements by Mr Christian.

(h)omitting Mr Bain’s threat to TCDC that he would go to the media unless they provided him with the same discounted rates.

[375]   A publication may be held protected even if the journalistic exercise has in some respect fallen short of the standards to be expected of a responsible journalist. As Bingham LJ stated in Jameel:113

If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.

[376]   Courts must make allowance for editorial judgment and the fact that reasonable minds may differ on such a question.114 As the United Kingdom Supreme Court stated in Flood:115

The courts therefore give weight to the judgment of journalists and editors not merely as to the nature and degree of the steps to be taken before publishing material, but also as to the content of the material to be published in the public interest. The courts must have the last word in setting the boundaries of what can properly be regarded as acceptable journalism, but within those boundaries the judgment of responsible journalists and editors merits respect.

[377]   In any event, I do not accept Mr Patterson’s criticisms. Some, with respect, miss the point. It is the fact that it was the drivers of the Commercial Waste trucks who were given keys after the KRC fire rather than drivers of the Council Waste trucks which was material. The ERA issues were not particularly relevant. The fact that the Office of the Auditor-General was holding off investigating until TCDC responded was neither here nor there and, in my assessment, there was sufficient verification of the data analysis for the purposes of how the data was reported in the Articles.

[378]   Finally, I have considered Mr Patterson’s point that there was no need to reference Mr Christian by name in the Articles. His argument was that omitting that reference would have lessened the gravity of the sting and the decision to do so was

113   Jameel (Mohammed) v Wall Street Journal Europe Sprl, above n 98, at [34].

114 At [51].

115   Flood v Times Newspapers Ltd, above n 72, at [137].

motivated by personal malice on the part of Mr Bain.  While I accept that naming  Mr Christian brought more focus to him, Mr Christian was implicated in the Articles regardless of whether or not he was named.

Conclusion on the defence of responsible communication

[379]   The steps taken to verify the substantive allegations, the multiplicity of sources and their reliability combined with the inadequacy of the responses from TCDC to LGOIMA requests and the ample opportunity afforded to Smart and Mr Christian to respond substantively all lead me to conclude that this was a reasonable journalistic investigation on issues of public interest.

[380]   Mr Bain’s commercial interests in obtaining the same rates that Smart was receiving does not derogate from the steps Mr Valintine took to corroborate and verify the information before publication. Both Messrs Valintine and Bain had an honest belief in the substance of the matters published. They also had an expectation that the editors at NZME would exercise professional judgment and care.

[381]   I uphold the defence of responsible communication on a matter of public interest. It follows that the claim in respect of the Articles must be dismissed.

[382]   This defence provides the whole answer to Mr Christian’s claim regardless of the truth or falsity of the allegations in the Articles. That I have concluded that the Articles were responsible communications on a matter of public interest of course says nothing about the accuracy of the sting of the Articles. That may appear a harsh result for any plaintiff concerned with reputational damage. In this instance, any reputation damage has been assuaged in part by the apology and retraction on the part of NZME and by the published findings of the TCDC following its inquiry.

Honest Opinion

[383]   It is strictly unnecessary to discuss the defence of honest opinion in the light of my conclusions. However, both counsel provided extensive written submissions. In case it should be of assistance, I offer a few observations.

[384]   I accept that a defendant’s denial that a publication has the meaning complained of by a plaintiff does not preclude a defence of honest opinion.116 The denial of meaning will nonetheless be one of the many factors to be taken into account in the assessment of whether any opinion is genuinely held.117

[385]   Two particular requirements of the defence of honest opinion will be determinative in the present case. The first is the requirement to show that the defamatory imputation is recognisable as an expression of opinion rather than fact. The question is how the publication would strike the ordinary, reasonable, reader. Without finally deciding the point, I observe that the defamatory imputation arising in this case is a combination of conclusionary opinion and fact. The allegation that Smart’s activities rorted TCDC and ratepayers is the conclusionary opinion but is inextricably tied to the description of Smart’s activities. These elements are statements of fact. They fall well outside the principle expressed in Gatley that “a statement that may be regarded as an assertion of fact may yet be comment for the purposes of the defence if it comprises an inference from other facts stated or referred to”.118

[386]   Compounding the difficulty for the defendant is that the defamatory sting is that Mr Christian is complicit Smart’s rort. This is the crux of the claim. It is difficult to see how this would be understood other than as a statement of fact.

[387]   The second key requirement of particular relevance in this case is that a defendant must be able to prove the existence of true facts on which the opinion is based. This is because a sufficient factual basis for the opinion will allow the reader or audience to “assess the validity of the opinion for themselves against the relevant facts truly stated”.119 The onus is on a defendant to prove on the balance of probabilities and on admissible evidence of primary or underlying facts that those publication facts are true or not substantially different from the truth.

116   In this regard, I respectfully agree with the decision in Gatland v Fairfax New Zealand Limited

[2016] NZHC 970 and in Arnold v Fairfax New Zealand Limited [2016] NZHC 207.

117   The plaintiff filed and served a notice under s 39 of the Act asserting that Mr Bain had no honest belief in the imputations. The notice also sought to impugn Mr Bain’s motive.

118   Gatley (12th ed), above n 16, at [12.8].

119   APN New Zealand Limited v Simunovich Fisheries Limited, above n 79, at [18].

[388]   Not every fact in the publication must be shown to be true. The defendant must show that the opinion is genuine having regard to the facts that are proved to be true or not materially different from the truth or other true facts generally known at the time of publication.120

[389]   Materially in this jurisdiction, the test of whether the opinion was honestly held is a subjective test. There is no objective element in the test.121

[390]   I say that the two required elements in [385] and [387] will determine the outcome of the defence of honest opinion because I am easily satisfied that Mr Bain genuinely believed the imputations in the Articles. Mr Bain’s evidence that he considered Mr Christian is Smart and should have responsibility for what he perceived to be Smart’s wrongdoing was not shaken under cross-examination. His views were consistently held by him as seen in the contemporaneous documents.

[391]   The defence of honest opinion is not defeated by malice. Mr Bain’s motivation is relevant only in so far as it may tend to show that Mr Bain did not honestly hold the views. I do not doubt that Mr Bain’s motivation was to advance the commercial interests of Coastal Bins by rectifying what he saw as an unfair playing field. I conclude that Mr Bain’s personal animosity towards Mr Christian may have spurred his tenacity but it did not undermine his honest belief in the accuracy of the imputations.

Result

[392]I find that:

(a)Mr Bain is a joint tortfeasor;

120 There would also need to be consideration of the effect, if any, of the Court’s conclusion that the Articles were responsible communications on a matter of public interest. The Court in Yeo v Times Newspapers Limited [2015] EWHC 3376 appeared to accept the proposition that comment may be supported by facts published with the protection of Reynolds protection but was influenced in that view by the statutory defence of honest opinion in ss 3(3) and 3(7)(b) of the Defamation Act 2013 (UK). This proposition was neither pleaded nor argued in this case and not be addressed.

121 This is different in England and Wales although it might also be said that the “objective test” of honest comment in that jurisdiction is generous. Refer Gatley (12th ed), above n 16, at [12.27] and Gatley (13th ed) at [13.020] discussing the Defamation Act 2013.

(b)the Articles were defamatory of Mr Christian;

(c)the Articles bore the meanings set out in [252] and [272] above; and

(d)Mr Bain succeeds in his defence of responsible communication on a matter of public interest.

[393]   I dismiss Mr Christian’s claim. Consequently, the question of damages does not arise.

Costs

[394]   Both parties requested to be heard on questions of costs. If costs cannot be agreed, memoranda of no more than 5 pages in length should be filed within 30 days, responses no more than 10 days thereafter and a reply if any (of no more than 3 pages) within a further 5 days.

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Walker J