Legal Research
Cases
Craig v Slater

Craig v Slater

Case [2017] NZHC 874 4 May 2017

Jurisdiction

Legal Privilege

Expert Evidence

Defamatory Statements

Qualified Privilege

Civil Litigation & Procedure

Defamation Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1923 [2017] NZHC 874

IN THE MATTER of the Defamation Act 1992

BETWEEN

COLIN GRAEME CRAIG Plaintiff

AND

CAMERON JOHN SLATER Defendant

AND

SOCIAL MEDIA CONSULTANTS LIMITED

Second Defendant

Hearing: 1 May 2017

Appearances:

CG Craig, representing himself
BP Henry and C Foster counsel for Defendants

Judgment:

4 May 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 4 May 2017 at 9.30 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Craig v Slater & Anor [2017] NZHC 874 [4 May 2017]

Introduction

[1] Mr Colin Craig is the plaintiff and counterclaim defendant in defamation proceedings initiated by him against the first and second defendants. Mr Craig's claims and the counterclaim by Mr Slater are set down for a three-week trial before me, sitting without a jury, commencing on 8 May 2017.

[2] This judgment concerns an application by Mr Craig for permission to be assisted in Court by a McKenzie friend; that is, a support person who may attend as a friend and sit beside an unrepresented party to civil litigation to provide support, take notes, make suggestions and give advice.1 A McKenzie friend does not have the right to take part in the proceedings as an advocate, although the Court has a discretion to allow the friend to play a greater role, such as speaking for the party, if that is thought appropriate. That discretion is exercised sparingly.

[3] The unusual feature of this case is that the McKenzie friend from whom Mr Craig wishes to obtain assistance throughout the trial of the proceeding is a practising barrister, Mr Thomas Cleary.

[4] Although the defendants do not object in principle to the appointment of a McKenzie friend for Mr Craig, they oppose the granting of permission for Mr Cleary to act in that capacity.

Result and order

[5] After hearing from Mr Craig and from Ms Foster on behalf of the defendants, I granted Mr Craig permission to use Mr Cleary in court as a McKenzie friend. The order I made was in these terms:

(a) Until the further order of the Court, I grant permission for Mr Thomas
Cleary, Barrister, to sit in court as a support person/McKenzie friend for Mr Craig in respect of all matters before the Court in this

1 Mihaka v Police [1981] 1 NZLR 54 (HC); and McKenzie v McKenzie [1970] 3 WLR 472 (CA).

proceeding, with immediate effect. The conditions applying to the grant are that Mr Cleary may:

(i) sit beside Mr Craig in court; (ii) take notes;
(iii) quietly make suggestions to Mr Craig and give advice;

(iv)propose questions and submissions to Mr Craig who may put the same before the Court; and

(v) in rare circumstances, and only with the further leave of the

Court, address the Court.

(b) Mr Cleary will not be permitted to ask questions of any witness.

[6] I told the parties I would set out the reasons for my…

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 Slater

Details

AGLC: Craig v Slater [2017] NZHC 874
Case: [2017] NZHC 874
Decision Date: 4 May 2017

CaseChat Overview and Summary

In Craig v Slater, the court was asked to decide whether Colin Graeme Craig, an unrepresented party in a defamation case, could be assisted in court by a McKenzie friend who was a practising barrister, Thomas Cleary. The defendants opposed the application, citing potential ethical difficulties and the possibility that Craig was seeking to re-victimise his former press secretary, Rachel MacGregor, by cross-examining her. The court considered the Law Commission's recommendations against allowing practising lawyers to act as McKenzie friends, as well as previous cases where such arrangements had been permitted. Ultimately, the court found that there was no principled reason to disapprove of Cleary's appointment as a McKenzie friend and granted Craig permission to use his assistance, subject to certain conditions. These included limiting Cleary's role to providing advice, taking notes, and proposing questions and submissions to Craig, and prohibiting him from asking questions of any witnesses.

The court emphasised that the decision to allow a practising lawyer to act as a McKenzie friend should be made on a case-by-case basis, taking into account the unique circumstances of each case. The court also noted that the tort of defamation is an arcane area of law, and that Craig's proposal to use Cleary met his need for valuable legal assistance in representing himself in a complex civil proceeding. The court found that allowing Cleary to act as a McKenzie friend would benefit both Craig and the court, as he would be available to provide assistance in dealing with evidentiary objections and ensuring that Craig's presentation of the case complied with the law of evidence and procedural rules. The court also rejected the defendants' allegation that Craig was seeking to re-victimise MacGregor, finding no evidence to support this claim.

The court concluded that its decision to grant permission for Cleary to act as a McKenzie friend was based on the particular and unique facts of the case, and that it was unlikely to lead to a flood of similar applications in other cases. The court emphasised the importance of facilitating developments that could help provide access to justice for all, and suggested that the legal profession should be prepared to innovate and engage in debate about these issues. The court imposed proper constraints on Cleary's role as a McKenzie friend, ensuring that he did not step outside the boundaries of his responsibility as drawn by the court.

Orders