Jennings v Buchanan Ca106/01 - [2002] NZCA 363

IN THE COURT OF APPEAL OF NEW ZEALAND CA106/01

BETWEEN OWEN ROBERT JENNINGS

Appellant

AND ROGER EDWARD WYNDHAM BUCHANAN

Respondent

Hearing: 26 March 2002

Coram:Richardson P Gault J
Keith J Blanchard J Tipping J

Appearances: M F Gilkison for the Appellant
M R Camp QC and M McClelland for the Respondent
T Arnold QC and T Warburton for the Attorney-General as Intervener Judgment: 23 May 2002

JUDGMENTS OF THE COURT

Paragraph No

Richardson P, Gault, Keith and Blanchard JJ [1]
Tipping J [70]

Appendices A : The Independent, article, 18 February 1998 [169]
B : The Independent, letter, 4 March 1998 [170]

RICHARDSON P, GAULT, KEITH AND BLANCHARD JJ (DELIVERED BY KEITH J)

Table of Contents Paragraph No

The principal question and our answer................................................................ [1] The facts and the proceedings........................................................................................... [2]
The earlier judgments........................................................................................ [9]
The submissions.............................................................................................. [15]
Article 9 of the Bill of Rights............................................................................ [18]
Its corporate purpose....................................................................................... [25]
The protection it accords.................................................................................. [29]
Proceedings not “in Parliament”....................................................................... [30]
Protected by legislation in some cases.............................................................. [36]
And protected by courts in others..................................................................... [38]
Court use of “proceedings in Parliament”.......................................................... [41]
The uncertain scope of article 9 : three recent cases........................................... [42]
Critical facts : unprivileged (effective) repetition.............................................. [51]
Other grounds of appeal................................................................................... [65]
Conclusion...................................................................................................... [69]

The principal question and our answer

[1] The principal question in this appeal is whether a Member of Parliament may be held liable in defamation if the Member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under art 9 of the Bill of Rights 1688 – and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege. We conclude that a Member may be held liable in those circumstances and that the defendant was rightly held liable in this case. His appeal based on absolute privilege is accordingly dismissed. Our reasons turn on the words of art 9 and the public interest underlying it. The Member’s “freedom of speech … in Parliament” is not itself being “questioned”, and the important public interest in the Member not being inhibited from speaking fully and freely in Parliament at that earlier time is not affected.

The facts and the proceedings

[2] Mr Buchanan, a senior official of the New Zealand Wool Board, claimed he was defamed by statements made by Mr Jennings, a Member of Parliament. Mr Buchanan was actively involved in organising a promotional tour in November 1996

of the United Kingdom by the Barbarians rugby team, supported by the Board. He accompanied the tour to the United Kingdom and was directly involved in advancing and delivering the promotion. Mr Jennings, in a debate in the House of Representatives on 9 December 1997, said this about the tour:

… This year one of the boards spent $3.5 million promoting the Barbarians rugby team in Great Britain, for what appears to be no other reason than that two of the senior officials involved in the process could continue an…

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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Details

Case: [2002] NZCA 363
Decision Date: 23 May 2002

CaseChat Overview and Summary

Jennings was a Member of Parliament who was sued for defamation by Buchanan, a senior official of the New Zealand Wool Board. Buchanan alleged that Jennings made defamatory statements about him in the House of Representatives, and then repeated them outside the House. The court had to decide whether Jennings' defence of absolute privilege under the Bill of Rights 1688 applied, and if not, whether Jennings was liable for the defamation. The Court of Appeal held that Jennings' defence of absolute privilege did not apply, and that he was liable for the defamation. Jennings appealed to the Privy Council, arguing that his statements in the House were protected by absolute privilege and that he could not be held liable for repeating them outside the House. The Privy Council dismissed Jennings' appeal, holding that absolute privilege did not extend to defamatory statements made outside Parliament, including those involving the repetition or effective repetition of statements made inside Parliament. The Court found that Jennings had effectively repeated the defamatory statements outside the House, and that his defence of absolute privilege did not apply. The Privy Council held that the protection afforded by the Bill of Rights was limited to "speech... debate or proceedings in Parliament", and that it did not extend to an individual Member's actions falling outside those proceedings. The Court also found that the use of parliamentary records to give meaning to a later non-privileged public statement did not breach the underlying purpose of the privilege. The Privy Council dismissed Jennings' appeal, and the original judgment of the High Court was upheld. Jennings was held liable for the defamation, and ordered to pay Buchanan damages in the amount of $50,000.

Orders