Cook v Thomson - [2022] NZHC 3373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-401

[2022] NZHC 3373

UNDER The Defamation Act 1992

BETWEEN

STEPHEN JOHN COOK

Plaintiff

AND

AND

MARGIE ARITA ENDORA THOMSON

First Defendant

POTTON & BURTON LIMITED

Second Defendant

Hearing: 29 November 2022 (by AVL)

Appearances:

Mr Cook (Plaintiff) in person

S A Woods and G S Burcher for the Defendants

Judgment:

14 December 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

COOK v THOMSON [2022] NZHC 3373 [14 December 2022]

Introduction

[1] Mr Cook sues Ms Thomson and Potton & Burton Ltd (PBL) in defamation. Ms Thomson is the author of a book published on 28 May 2019 by PBL called “Whale Oil”.

[2] This proceeding was commenced on 7 March 2022 and is therefore outside the two year limitation period applying to defamation proceedings.1

[3] Mr Cook relies on the late notice provisions under s 14 Limitation Act 2010 (the Act) to say that his claim is within time.

[4] Ms Thomson and PBL, on 26 May 2022, applied for security for costs. Accordingly, no issue of delay in security being sought arises.

The Whale Oil publication

[5] Ms Thomson describes the Whale Oil book (the book) as a work of investigative journalism focusing on a long running smear campaign and internet harassment campaign against Mr Matthew Blomfield by the blogger, Cameron Slater and his various associates. Mr Slater ran the blog Whale Oil.

[6] The extracts from the book said to give rise to the defamation are attached as a schedule to Mr Cook’s statement of claim. The book addresses an assault on Mr Blomfield which it suggests was undertaken in return for the wiping of a debt. Ms Thomson suggests a probable gang related link to the person said to have carried out the assault which she said in the book “leads to some interesting possibilities to consider”. In the book, Ms Thomson then suggests at least three possible conduits between Whale Oil and the world of gangs; one being Mr Cook.

[7] Ms Thomson then records that in July 2008, Mr Cook was chief reporter at the Herald on Sunday (the Herald). The Police had intercepted a telephone call between Mr Cook and two drug dealers in which they discussed the purchase of

1 Limitation Act 2010, ss 11(1) and 15.

methamphetamine. Details of those conversations are contained within a judgment of this Court in November 2010.2

[8] Mr Cook’s work vehicle was seen outside a house the Police had under surveillance as part of a methamphetamine investigation. The Police traced the ownership of the car to the Herald with issues arising from those enquiries resulting in Mr Cook being dismissed.

[9] Further, in November 2014, Mr Cook was arrested and convicted of possessing a Class A drug and a glass pipe used to smoke the drug.

[10]The key passage in the book after this background is:

With methamphetamine controlled through organised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Thomson

Details

AGLC: Cook v Thomson [2022] NZHC 3373
Case: [2022] NZHC 3373
Decision Date: 14 December 2022

CaseChat Overview and Summary

In Cook v Thomson, the plaintiff, Stephen John Cook, brought a defamation action against Margie Arita Endora Thomson and Potton & Burton Limited, the publisher of Thomson’s book titled “Whale Oil.” Cook alleged that certain passages in the book were defamatory and sought damages for defamation. The defendants, Thomson and Potton & Burton Limited, raised various defences including the limitation period, honest opinion, and public interest communication. They also sought security for costs, arguing that Cook was resident in Australia and would be unable to pay their costs if his claim failed.

The primary legal issues the court had to decide were whether Cook's claim was within the limitation period under the Limitation Act 2010, whether security for costs should be ordered under the High Court Rules 2016, and the merits of Cook’s defamation claim. The court first considered whether Cook’s claim was within the limitation period despite being filed outside the standard two-year limitation period for defamation claims. The court found that Cook's reliance on the late notice provisions under the Limitation Act 2010 did not sufficiently justify the delay in bringing the action.

Turning to the issue of security for costs, the court assessed whether the threshold criteria for ordering security were met, namely whether Cook was resident outside New Zealand and whether there was reason to believe he would be unable to pay the defendants’ costs if his claim failed. The court found that Cook's residence in Australia met the first threshold. Regarding the second criterion, the court noted that Cook’s financial affidavit provided only general information about his income and did not detail his assets or liabilities. Additionally, Cook had sought financial assistance from a millionaire friend, which raised concerns about his financial capacity to meet an award of costs. Although Cook applied for legal aid, the court found that this did not preclude the ordering of security for costs.

The court then assessed the merits of Cook’s defamation claim, acknowledging that while there were significant hurdles for Cook to overcome, the claim was not entirely without merit. The court ordered security for costs in the sum of $30,000, payable in three instalments, to be determined within specific timeframes. The court reasoned that the amount was modest and would not stymie Cook’s ability to pursue his claim, while also reflecting that the merits of the case were not entirely against Cook.

The court’s final orders included the payment of $10,000 into Court within five working days of the judgment, a second payment by the end of January 2023, and a final payment by the end of April 2023. Failure to comply with these payment deadlines would result in the proceedings being stayed.

Orders