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IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI
SC 21/2018 [2019] NZSC 38
BETWEEN
COLIN GRAEME CRAIG Appellant
AND
JORDAN HENRY WILLIAMS Respondent
Hearing:
4 and 5 September 2018
Court:
Elias CJ, William Young, Glazebrook, Ellen France and Arnold JJ
Counsel:
S J Mills QC, J W J Graham and T F Cleary for Appellant P A McKnight and A J Romanos for Respondent
Judgment:
11 April 2019
JUDGMENT OF THE COURT
A The appeal is allowed. The orders of the Court of Appeal entering judgment for the respondent on liability and directing a retrial of the respondent’s claim for damages are set aside. An order for a general retrial on liability and damages is substituted.
B The cross-appeal is dismissed.
CThe respondent must pay the appellant costs of $35,000 plus usual disbursements. We allow for second counsel.
DThe costs award made in the Court of Appeal is set aside. If costs in that Court cannot be agreed they should be set by the Court of Appeal in light of this judgment. Any costs issues arising in the High Court shall be considered by the High Court in light of this judgment.
ELIAS CJ, ELLEN FRANCE AND ARNOLD JJ (Given by Ellen France J)
Table of Contents
Para No.
Introduction
[1]
Background
[4]
Qualified privilege – the approach to s 19 of the Defamation Act 1992
[21]
The summing up
[32]
Extent of the response and relevance
[33]
Acting with reasonable care
[44]
Ill will
[49]
The question of Mr Craig’s knowledge
[54]
A new trial?
[62]
Were the misdirections material?
[64]
Other bases for finding the privilege was lost?
[70]
Effect of counsel’s election not to object
[74]
Conclusion
[77]
The cross-appeal
[78]
Result
[82]
Introduction
After a trial of nearly four weeks a jury found for Jordan Williams, the founder and executive director of the New Zealand Taxpayers’ Union, in his claim that Colin Craig, the founder and former leader of the Conservative Party, defamed him. The jury awarded Mr Williams damages of $1.27 million. In doing so, the jury must have rejected Mr Craig’s affirmative defences of truth and honest opinion and found that he had lost qualified privilege.
Subsequently, the trial Judge, Katz J, set aside the jury’s verdict on the basis that the damages award was excessive.[1] The Judge also said she had misdirected the jury in one respect.[2] The Judge ordered a new trial of the claim by Mr Williams on both liability and damages. Mr Williams appealed. The Court of Appeal allowed the appeal in part.[3] The Court set aside the order made by the High Court, entered judgment in accordance with the jury’s verdict on liability and ordered a retrial on the question of damages. Leave to appeal and leave to cross-appeal from the decision of the Court of…
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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AGLC
Craig v Williams [2019] NZSC 38
Case
[2019] NZSC 38
Decision Date
CaseChat Overview and Summary
In Craig v Williams, the Supreme Court of New Zealand considered an appeal from the Court of Appeal's decision that ordered a retrial of the damages in a defamation case. The Court of Appeal had set aside the original jury verdict which awarded the claimant, Jordan Williams, $1.27 million in damages, including punitive damages, for a defamatory statement made by Colin Craig. The original trial judge had ordered a retrial on both liability and damages, but the Court of Appeal set aside that decision and ordered a retrial of damages only. The Supreme Court allowed the appeal and set aside the Court of Appeal's order for a retrial of damages only, substituting an order for a general retrial on both liability and damages. The Court held that the trial judge's summing up misdirected the jury on the question of qualified privilege, which was a fundamental issue in the case. The misdirections included incorrect instructions on the relevance of the scope and proportionality of the defendant's response, and the extent to which the defendant needed to act with reasonable care. The Court concluded that the misdirections went to the core issue of whether the defendant genuinely believed in the truth of his statements, which was necessary to maintain the qualified privilege. The Supreme Court held that the misdirections warranted a new trial because the jury's decision might have been influenced by the errors, and it was not possible to be confident that the jury approached the matter correctly. The Court also dismissed the cross-appeal on the damages, holding that the jury's award, while high, was not excessive when considered in the context of the defamatory nature of the statements and the extent of their publication. The Supreme Court emphasised the difficulty of establishing a pattern for defamation damages awards and the need for judges to provide some guidance to juries on acceptable ranges of damages.