IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-002915
[2021] NZHC 3082
BETWEEN
COLIN GRAEME CRAIG
Plaintiff
AND
RACHEL MARGARET JOY MACGREGOR
Defendant
Hearing:
On the papers (submissions received 4 October, 24 October and 1 November 2019; 21 September, 22 September, 7 October,
8 October, 4 November and 8 November 2021)
Judgment:
16 November 2021
JUDGMENT OF HINTON J
(Damages and Costs)
This judgment was delivered by me on Tuesday, 16 November 2021 at 11.20 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Dentons Kensington Swan, Wellington. Copy to: Plaintiff.
CRAIG v MACGREGOR [2021] NZHC 3082 [16 November 2021]
[1] This decision in relation to damages and costs is the latest in a long and continuing series of “Colin Craig” judgments which as the Court of Appeal has said have occupied exhaustive judicial time.
[2] On 6 September 2019, I found that in certain respects Ms MacGregor had defamed Mr Craig and Mr Craig had defamed Ms MacGregor.1 Further claims of defamation made by each against the other were dismissed. Mr Craig withdrew his claim for damages on the first day of the hearing (acknowledging Ms MacGregor was not in a position to pay) and sought only a declaration, which I made, insofar as he had been defamed. Ms MacGregor maintained her claim for damages and also claimed special and punitive damages. Submissions as to damages and costs were therefore invited.
[3] The September 2019 judgment was then appealed by Mr Craig. One of the grounds was clearly arguable, being whether the defence of qualified privilege (arising out of the right to reply to an attack) was available to him. A favourable outcome would have significantly affected both damages and costs. The appeal was dismissed by the Court of Appeal on 4 May 2021,2 although the finding on the issue of qualified privilege was reached for different or expanded reasons. Mr Craig sought leave to appeal, which the Supreme Court dismissed on 9 September 2021, deciding that the issue turned on factual findings as to whether the statements made were protected and was not of general or public importance.3
[4] Subsequent to the Supreme Court decision, both parties have filed further comprehensive submissions on damages, arising out of the appeal and out of the various parallel “Craig” proceedings. In addition, submissions have been filed as to costs, and in reply. No costs submissions had been filed previously.
[5] In recent submissions Ms MacGregor increased her claim for punitive damages to $150,000 and Mr Craig belatedly provided schedules of his legal expenses, each of these leading to yet further reply submissions from the other party.
[6] The net result is I have received six further sets of submissions from the parties since the Supreme Court decision, the last on Monday, 8 November…
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.
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Craig v MacGregor [2021] NZHC 3082
Case
[2021] NZHC 3082
Decision Date
CaseChat Overview and Summary
The case of Craig v MacGregor is the latest in a series of defamation cases between Colin Craig and Rachel MacGregor. The current case concerns the assessment of damages and costs following a previous finding of defamation by both parties against the other. The primary issue before the court was the assessment of damages claimed by Ms MacGregor for the defamatory statements made by Mr Craig. The court had to determine the quantum of general damages, aggravated damages, and punitive damages, taking into account the nature of the defamatory statements, the extent of publication, the injury suffered by Ms MacGregor, the damage to her reputation, and Mr Craig's conduct. The court found the defamatory statements to be of moderate seriousness, published on multiple occasions and to a wide audience, causing Ms MacGregor significant harm and distress. The court awarded Ms MacGregor general damages, including aggravated damages, of $400,000, but declined to award punitive damages. In terms of costs, the court applied the relevant rules and statutes, ultimately awarding costs to Ms MacGregor on her counterclaim and to Mr Craig on his claim for a declaration. The court fixed the total costs payable by Ms MacGregor to Mr Craig at $37,337 and the costs payable by Mr Craig to Ms MacGregor at $77,550, with a final award of costs in favour of Ms MacGregor of $40,213 and disbursements of $955.76.