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Durie v Gardiner

Durie v Gardiner

Case [2017] NZHC 377 8 March 2017

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-729 [2017] NZHC 377

UNDER the Defamation Act 1992

BETWEEN

SIR EDWARD TAIHAKUREI DURIE First Plaintiff

DONNA MARIE TAI KOKERAU HALL Second Plaintiff

AND

HETA GARDINER First Defendant

THE MĀORI TELEVISION SERVICE

Second Defendant

Hearing: 8 and 9 June 2016

Appearances:

R Fowler QC, F Geiringer and J Forrest for the Plaintiffs
W Akel and T J Walker for the Defendants

Judgment:

8 March 2017

JUDGMENT OF MALLON J

Table of contents

Introduction .......................................................................................................................................... 2

The facts ................................................................................................................................................ 3

The Māori Council ............................................................................................................................ 3

Māori Television Services.................................................................................................................. 4

Background to the publications ......................................................................................................... 6

The broadcast .................................................................................................................................. 10

The first website story...................................................................................................................... 12

Other media ..................................................................................................................................... 13

Complaints ...................................................................................................................................... 13

The second website story ................................................................................................................. 13

Subsequent events ............................................................................................................................ 13

DURIE v GARDINER [2017] NZHC 377 [8 March 2017]

The law ................................................................................................................................................ 14

First principles ................................................................................................................................ 15

Australia: political discussion privilege subject to reasonableness ............................................... 18

New Zealand: political discussion privilege.................................................................................... 19

United Kingdom: the Reynolds privilege......................................................................................... 23

Canada: responsible communications on matters of public interest ............................................... 31

New Zealand decisions after Lange and Reynolds .......................................................................... 35

Where does this leave the prospects for the privilege pleaded in this case ..................................... 39

Must any such new defence inevitably fail on the facts? ................................................................. 42

Honest opinion .................................................................................................................................... 45

The defence...................................................................................................................................... 45

The challenge to the pleading.......................................................................................................... 47

The pleadings .................................................................................................................................. 47

Are the pleaded imputations opinions ............................................................................................. 52

Publication facts.............................................................................................................................. 54

Genuine opinion .............................................................................................................................. 57

Conclusion....................................................................................................................................... 58

Result ................................................................................................................................................... 58

Introduction

[1] Sir Edward Durie (the first plaintiff) is a retired High Court Judge and co- chair of the New Zealand Māori Council. Donna Hall (the second plaintiff) is a lawyer and principal in Woodward Law, and Sir Edward’s wife. They have brought defamation proceedings arising out of a report broadcast on Māori Television and two articles on its website. The Māori Television Service (the second defendant) is the broadcaster of Māori Television. Heta Gardiner (the first defendant) is employed by Māori Television Service and is the journalist who reported on the matters at issue.

[2] The television report and the articles reported on the Māori Council having “dumped” Ms Hall as legal counsel on important litigation in which it was engaged, as a result of concerns by some members of its Executive about Sir Edward and Ms Hall. The plaintiffs allege statements in the broadcast and website articles meant they had acted unlawfully, unprofessionally, in breach of their responsibilities to the

Māori Council, and placed their own interests over those of the Māori Council and

Māori generally amongst other things.

[3] The defendants contend the words do not bear the alleged defamatory meanings. The defendants contend the publications were protected by qualified privilege as being “neutral reportage or, alternatively, responsible communications on matters of public interest”. They also rely on the defence of honest opinion. Sir Edward and Ms Hall have applied to strike out these defences on…

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 Durie v Gardiner

Details

AGLC: Durie v Gardiner [2017] NZHC 377
Case: [2017] NZHC 377
Decision Date: 8 March 2017

CaseChat Overview and Summary

The plaintiffs, Sir Edward Durie and Donna Hall, have brought defamation proceedings against Heta Gardiner, a journalist employed by Māori Television Service, and Māori Television Service, for a television broadcast and two articles published on its website. The broadcast and articles reported on the Māori Council having “dumped” Ms Hall as legal counsel on important litigation in which it was engaged, as a result of concerns by some members of its Executive about Sir Edward and Ms Hall. The plaintiffs allege statements in the broadcast and website articles meant they had acted unlawfully, unprofessionally, in breach of their responsibilities to the Māori Council, and placed their own interests over those of the Māori Council and Māori generally amongst other things. The defendants contend the words do not bear the alleged defamatory meanings. The defendants contend the publications were protected by qualified privilege as being “neutral reportage or, alternatively, responsible communications on matters of public interest”. They also rely on the defence of honest opinion. Sir Edward and Ms Hall have applied to strike out these defences on the basis that they cannot succeed. The plaintiffs submitted that the pleaded defences are untenable for a number of reasons. The Court found that the pleaded defences were not so untenable that they should be struck out, but that the honest opinion defence required amendment. The Court directed the defendants to file an amended pleading within 30 days of this judgment or such further period of time as the Court may direct. Costs would ordinarily follow the event. However the plaintiffs have had a measure of success on the honest opinion pleading, the neutral reportage and qualified privilege defence is new, and whether the defences will succeed will be decided at trial. It may be that this is an appropriate case to reserve costs. If, however, an order for costs is sought at this juncture, leave is reserved for each side to file a brief memorandum setting out their position on costs. Any such memorandum should be filed within 30 days of this judgment or such further time as the Court may direct.

Orders