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Craig v MacGregor

Craig v MacGregor

Case [2021] NZCA 156 4 May 2021

Breach of Confidence

Defamation

Qualified Privilege

Unconscionable Conduct

Rebuttal of Attack

Misleading and Deceptive Conduct

Defamation Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA514/2019
[2021] NZCA 156

BETWEEN	COLIN GRAEME CRAIG Appellant
AND	RACHEL JOY MACGREGOR Respondent

Hearing:	17 November 2020
Court:	Kós P, Clifford and Collins JJ
Counsel:	S J Mills QC and T F Cleary for Appellant H J P Wilson, L Clark and B A Mathers for Respondent
Judgment:	4 May 2021 at 9 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent costs for a standard appeal on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Between 2011 and 2015 the appellant, Mr Colin Craig, was the leader of the Conservative Party. Between 2011 and 2014 the respondent, Ms Rachel MacGregor, was the press secretary for Mr Craig and the party. Their tortured employment and personal relationships were the subject of an earlier decision of this Court: Craig v Slater.[1] That proceeding was commenced in August 2015. Ms MacGregor gave evidence in Craig v Slater, but was not a party. In that earlier proceeding Toogood J found Mr Craig had engaged in moderately serious sexual harassment of Ms MacGregor, a conclusion this Court upheld on appeal.[2] In this appeal Mr Craig in effect attempts to challenge that conclusion.
[1]Craig v Slater [2020] NZCA 305 [Craig v Slater (CA)].
[2]See [5]–[6] below.
The proceeding underlying the present appeal, brought against Ms MacGregor herself, was filed in November 2016 but not served for some eight or nine months. Ms MacGregor however found out about the proceeding and filed a defence and counterclaim in June 2017. In the High Court, Hinton J found both Mr Craig and Ms MacGregor defamed each other to a limited extent.[3] Relevantly, the Judge also held Mr Craig had sexually harassed Ms MacGregor. That meant a defence of truth was unavailable to him on his defamatory statements that Ms MacGregor had falsely claimed to have been sexually harassed. The Judge also held Mr Craig’s statements were not protected by the qualified privilege applying to replies to attacks.

Appeal

[3]Craig v MacGregor [2019] NZHC 2247 [High Court judgment]. See at [265]–[271] for a summary of the Judge’s findings.

Mr Craig appeals that High Court decision on two grounds:
(a)Issue one: whether the Judge erred in finding Mr Craig sexually harassed Ms MacGregor (meaning his defence of truth should succeed)?
(b)Issue two: whether the Judge erred in finding Mr Craig lost the qualified privilege he would otherwise have had?
Before addressing those issues, we explain briefly this Court’s prior decision in Craig v Slater and the defamation claims made by Ms MacGregor which are the subject matter of this appeal.[4]

This Court’s prior decision: Craig v Slater

[4]Strictly, Ms MacGregor’s claims took the form of counterclaims. Nothing turns on that; there is no appeal in relation to Mr Craig’s claims against Ms MacGregor, some of which the Judge upheld.

In the…

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 Craig v MacGregor

Details

AGLC: Craig v MacGregor [2021] NZCA 156
Case: [2021] NZCA 156
Decision Date: 4 May 2021 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was called upon to consider an appeal by Mr Craig against a decision of the High Court which found that Mr Craig had sexually harassed Ms MacGregor and that he had lost his qualified privilege to reply to defamatory attacks made against him. Mr Craig sought to challenge the High Court's finding of sexual harassment and its conclusion that he had lost his qualified privilege. The Court dismissed the appeal and held that Mr Craig sexually harassed Ms MacGregor and that he lost his qualified privilege in his response to the attacks against him. The Court found that Mr Craig's counter-attack on Ms MacGregor was not a bona fide reply to the attacks made against him by others. Rather, he had targeted her in an attempt to harm her reputation and restore his own. The Court concluded that Mr Craig had gone further than was reasonably necessary in responding to the attacks and had taken improper advantage of the occasion of privilege.

Orders