Opai v Culpan
[2016] NZHC 3004
•13 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-092-1026 [2016] NZHC 3004
UNDER the Defamation Act 1992, section 35 BETWEEN
MELISSA JEAN OPAI Plaintiff
AND
LAURIE CULPAN First Defendant
ATTORNEY-GENERAL
(sued on behalf of the COMMISSIONER OF POLICE)
Second Defendant
AND
Hearing: 6 September 2016 Appearances:
N W Woods and P Amaranathan for Plaintiff
H Rennie QC for First Defendant
M McClelland QC and N Ridder for Second DefendantJudgment:
13 December 2016
JUDGMENT (1) OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 13 December 2016 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
Solicitors:
Rice Craig (Neville Woods/Rani Amaranathan), Papakura, for Plaintiff
Thomas Dewar Sziranyi Letts (D Gerard Dewar), Wellington, for First DefendantCrown Law Office (Alison Todd), Wellington, for Second Defendant
Copy for:
Hugh Rennie QC, wellington, for First Defendant
Matthew F McClelland QC, Wellington, for Second Defendant
New Zealand Police (Nicola Ridder), Wellington, for Second Defendant
OPAI v CULPAN [2016] NZHC 3004 [13 December 2016]
TABLE OF CONTENTS
Some procedural history [3]
The pleadings [10]
The performance appraisal of July 2013 [15] Extent of publication [20] The meaning of the performance appraisal [25] Do the statements arguably defame Ms Opai? [32]
Briefing paper [34]
Do the statements refer to Ms Opai? [38] Meaning [40] Do the words defame Ms Opai? [42]
The 258 report form [43]
Meaning [49]
Diary notes[54] Meaning [57] Are the words defamatory? [59]
Allegation of malevolent campaign to vilify [60] Claim for exemplary damages [62] Mr Culpan’s stay application [66] Jameel [74] Form of amended statement of claim [93]
The Attorney-General’s objection to Ms Opai’s
notice under s 39 of the Defamation Act [101]
The Attorney-General’s objection to Ms Opai’s
notice under s 41 of the Defamation Act [110]
Ms Opai’s application against Attorney-General’s pleading [114] Pleading of the 258 report [115] Pleading of qualified privilege on performance appraisal [122]
Outcome [126]
[1] This decision deals with some of the interlocutory applications in this workplace defamation proceeding. Ms Opai works in the Counties Manukau District Headquarters of the Police but is not a sworn officer. She was formerly a watch house officer (supervisor), but now has another administrative job. Mr Culpan is a senior sergeant also based at Counties Manukau. Ms Opai reported to him, while he was O/C Station (Counties Manukau) from 3 February 2013 to 13 January 2014. She sues him for allegedly defamatory statements made in four documents:
(a) a performance appraisal in July 2013; (b) a briefing paper of November 2013;
(c) a 258 report of 5 November 2013; and
(d) diary notes made in 2013.
Her current statement of claim seeks damages of $280,000 (including aggravated damages) from Mr Culpan for all the statements. She sues the Attorney-General on behalf of the Commissioner of Police for his vicarious liability for the statements made by Mr Culpan. In addition to compensatory damages of $280,000, she seeks punitive damages from the Attorney-General.
[2] The interlocutory applications in this decision are:
(a) Mr Culpan applies to strike out Ms Opai’s claim generally or against him in particular, to stay the proceeding while Ms Opai’s employment grievances are heard in the employment institutions under the Employment Relations Act 2000 and for preliminary determination of the meanings of the alleged defamatory statements.
(b) The Crown applies to strike out Ms Opai’s claim in its entirety, to
strike out certain alleged meanings in the statement of claim and to
strike out Ms Opai’s notices under ss 39 and 41 of the Defamation Act
1992.
(c) Ms Opai applies for the Crown to provide a more explicit pleading and to strike out parts of its statement of defence.
There are other applications. Ms Opai has applied for further discovery and to set aside claims for privilege. Mr Culpan has applied for security for costs. I do not deal with those applications in this decision. An application by Ms Opai as to Mr Culpan’s pleading has been resolved.
Some procedural history
[3] Ms Opai is unhappy with the way she has been treated in her work. A common remedy in such cases is to lodge a personal grievance under the Employment Relations Act 2000. Ms Opai has lodged personal grievances, but has not taken any proceedings in the employment institutions. Her preference is to obtain redress by a tort claim in this court.
[4] Ms Opai began this proceeding in the District Court at Manukau without legal assistance. She sued “the Chief Executive of the New Zealand Police”, that is, the Commissioner of Police. As well as defamation, her initial statement of claim pleaded other matters:
(a) an alleged breach of the code of conduct and general instructions under the Policing Act 2008;
(b)breach of the Employment Relations Authority 2000, in particular the good faith obligations under s 4;
(c) breach of the principles of natural justice; and
(d) breach of the New Zealand Bill of Rights Act 1990. That statement of claim alleged discrimination and victimisation.
[5] The Commissioner applied to strike out. On 2 September 2014 a District Court Judge ordered that the entire proceeding be transferred to the Employment Relations Authority for determination whether the matter should be heard by the Authority or the Employment Court, but recorded that Ms Opai wished to keep her option on her claim for defamation.
[6] By 2015 Ms Opai had instructed lawyers. She filed an amended statement of claim in the District Court under which Ms Opai’s claims were confined to defamation. She applied to transfer to this court because the damages claimed were more than the $200,000 limit for the District Court’s jurisdiction. She also applied to join Mr Culpan as defendant. On 30 March 2015 the District Court joined Mr Culpan as a defendant and transferred the defamation proceeding to this court.1
The Judge who made the order noted that at an earlier stage the proceedings had
been transferred to the Employment Relations Authority and/or the Employment Court. The transfer order made on 30 March 2015 was said to have no effect on those proceedings.
[7] Notwithstanding the order in the District Court of 2 September 2014 transferring proceedings to the Employment Relations Authority, Ms Opai has taken no steps in the Employment Relations Authority or the Employment Court.
[8] In this court the defendants applied to strike out on the ground that the proceeding was within the exclusive jurisdiction of the Employment Relations Authority. Associate Judge Sargisson held that this court had jurisdiction to hear Ms Opai’s defamation proceeding and dismissed the application. 2
[9] In case management directions I fixed a date by which any party was to give a jury notice under s 19A of the Judicature Act 1908. 3 No-one has elected trial by
jury. This case will be heard by a judge alone.
1 Opai v Commissioner of New Zealand Police [2015] NZDC 5320.
2 Opai v Culpan [2015] NZHC 2010.
3 Opai v Culpan CIV-2014-092-1026, 19 April 2016 (Minute) at [33].
The pleadings
[10] The latest statement of claim has two causes of action, one against Mr Culpan and one against the Attorney-General. The separate publications are not pleaded as distinct causes of action, but combined. Ms Opai alleges publication within the Police, but no wider. The extent of publication is in dispute. She pleads meanings, but does not rely on any true innuendos. Her cause of action against Mr Culpan has a section headed “Malevolent Campaign to Vilify”. She seeks aggravated but not exemplary damages from him. Her cause of action against the Attorney-General alleges vicarious liability but adds that the statements were made in flagrant disregard of her rights – a matter going to the Attorney-General’s liability for punitive damages.
[11] The defendants admit that the statements were made, but put in issue the meanings pleaded and deny defamation. They plead affirmative defences: honest opinion and common law qualified privilege. They also say that the statements do not have the minimum threshold of seriousness to amount to a real and substantial tort.
[12] In reply, Ms Opai has filed a notice under s 39 of the Defamation Act that any opinions were not genuinely held and a notice under s 41 of the Defamation Act that the defence of qualified privilege is not available because of ill will or improper use of the occasion for privilege.
[13] The defendants’ applications are broadly in four areas:
(a) They attack particular parts of her pleadings as untenable.
(b)They say that the proceeding as a whole should be struck as disproportionate under the Jameel principle.4
(c) The form of the statement of claim is defective for not pleading the statements as distinct causes of action.
4 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946.
(d)The Attorney-General says that Ms Opai’s notices under ss 39 and 41 of the Defamation Act are defective.
I deal with their applications first and in that order, then Ms Opai’s application.
[14] As for particular parts of Ms Opai’s statement of claim, I apply the test for
strike out when a defendant alleges that no reasonable cause of action is disclosed.5
The test in Jameel is different and is dealt with separately.
The performance appraisal of July 2013
[15] Mr Culpan prepared a performance appraisal form for the year ending
30 June 2013. He discussed it with Ms Opai. That is the first version of the performance appraisal form. Later Mr Culpan prepared another form which changed parts Ms Opai had objected to. Eventually there was a third version which contains no material to which Ms Opai objects. All versions of the performance appraisal form contain generally positive comments about Ms Opai.
[16] The part Ms Opai sues on is in the concluding comments section of the first version:
Melissa has a strong sense of responsibility to the police and her team. This sense of responsibility ensures that Melissa and her team are up to date with all training, leave balances are within requested levels, files are generally prepared to a high standard and completed on time.
Unfortunately this sense of responsibility can be misdirected and be viewed by other as malevolence, or ill will. This is evidenced on a number of occasions where Melissa has circumvented her supervisor and taken issues direct to senior management. On each occasion this has been explained as happenstance and backed up by assurances there was no intent to by pass her supervisor, rather it was a matter of circumstance.
[17] In an earlier statement of claim she relied on the second version which replaced the above words with the following:
Melissa has a strong sense of responsibility to the police and her team. This sense of responsibility ensures that Melissa and her team are up to date with
5 Attorney-General v Prince [1998] 1 NZLR 262 (CA); Couch v Attorney-General [2008] NZSC
all training, leave balances are within requested levels, files are generally prepared to a high standard and completed on time.
Unfortunately this sense of responsibility can be misdirected and be viewed by others in a very poor light which can be alienating and does not foster a harmonious work environment. On several occasions Melissa has circumvented her supervisor and taken issues direct to senior management. For the next appraisal year I would like for her to ensure that if she has matters to raise she does this only with her direct supervisor …
[18] In the final version the corresponding passage reads:
Melissa has a strong sense of responsibility to the Police and her team. This sense of responsibility ensures that Melissa and her team are up to date with all training, leave balances are within requested levels, files are generally prepared to a high standard and completed on time.
Melissa’s challenge for the coming year will be to focus on her continued
development and that of her team.
[19] Her latest pleading does not acknowledge the later versions but it is common ground that they were made.
Extent of publication
[20] Ms Opai pleads seven acts of publication, from September 2013 to April
2014, five by Mr Culpan and two by herself:
(a) to an inspector at the District Headquarters;
(b) to a human resources manager at District Headquarters;
(c) to all officers of senior sergeant rank or higher who inspected her personnel file;
(d) to all human resources personnel;
(e) by herself to the District Commander;
(f) to another senior sergeant (who succeeded Mr Culpan); and
(g) by herself to Police National Headquarters.
[21] The defendants deny all publications except to two human resources personnel. They also point out that consent is a defence to defamation under s 22 of the Defamation Act:
It is a defence to proceedings for defamation if the defendant alleges and proves that the plaintiff consented to the publication of the matter that is the subject of the proceedings.
They say that Ms Opai’s publication was an “own goal”.
[22] They take a pleading point as to the extent of publication. They say that as Ms Opai has not filed a reply to the latest statements of defence and, in the absence of any pleading in response to the denial of publication, is deemed to have admitted those defences. However, a reply is required only to address affirmative defences or positive allegations. A plea of limited publication is a partial admission of the publication claimed by the plaintiff, but not a positive assertion and does not require a reply under r 5.62.
[23] So far as her own publication of the appraisal is concerned, Ms Opai says that she was under a duty to do so. A possible explanation is that she did it as a matter of self-interest to obtain some redress from superiors. The matter is not capable of summary disposal. Before the Defamation Act 1992, it was recognised that a plaintiff who published a statement because they were under a duty to do so could
not be barred from suing for defamation.6 That gloss on the consent defence
arguably applies under the Defamation Act 1992, but I did not hear full argument on that point. Given the uncertainty as to the scope of that qualification to the defence, the matter is a trial issue.
[24] Mr Culpan takes issue with the third and fourth acts of publication in [20] (c) and (d) above, as the pleading may mean only that others had the opportunity to read the performance appraisal, not that they actually did. He says that it is not enough
that someone has the opportunity to read an alleged defamatory statement.
6 Collerton v McLean [1962] NZLR 1045 (SC).
Publication occurs only when the person actually reads it.7 That is a matter of proof, not pleading. For Mr Culpan it was submitted that the pleading is speculative. I do not accept that as a strike out point under r 15.1(a) of the High Court Rules. Any difficulties Ms Opai might have in proof do not warrant striking out the pleading on the basis of absence of a tenable cause of action.
The meaning of the performance appraisal
[25] Ms Opai targets the sentence, “Unfortunately this sense of responsibility can be misdirected and can be viewed by others as malevolence, or ill-will.” as defaming her. She pleads these meanings:
(a) that she has a misdirected sense of responsibility; and
(b) that she has acted malevolently.
[26] Mr Culpan objects that these words are not capable of bearing these meaning. [27] There was no objection to my considering whether the pleading as to
meaning could be struck out. Mr Rennie QC initially proposed that I decide that as a separate question under r 10.15 of the High Court Rules. Any findings made on a hearing of a separate question directed under r 10.15 of the High Court Rules are final determinations in the proceeding. They are not within the jurisdiction of an
Associate Judge.8 On the other hand, an Associate Judge can deal with arguments as
to the meaning of alleged defamatory statements as part of a strike-out application under r 15.1 of the High Court Rules. The meaning of an alleged defamatory statement goes to the cause of action. To establish that the alleged words were defamatory, the plaintiff needs to show that the words have the particular meaning pleaded. If the words do not mean what the plaintiff alleges, the plaintiff has no claim. As a strike out application under r 15.1(a) decides whether a pleading is
reasonably arguable, I decide whether the words can reasonably mean what Ms Opai
7 Citing Clutterbuck v Chaffers (1816) 1 Stark 471; Pullman v Walter Hill & Co Ltd [1891] 1 QB
524 (CA); Ursula Cheer Burrows and Cheer Media Law in New Zealand ( 6th ed LexisNexis, Wellington, 2015) at [2.2.1] and Laws of New Zealand - Defamation at [58].
8 Judicature Act 1908, s 26I.
has pleaded (a question of law), not the actual meaning of the words ( a question of fact).9 All parties accepted that no further evidence will be required to ascertain the meaning of the statements complained of.
[28] As to the approach on ascertaining the meaning of statements alleged to be defamatory, in New Zealand Magazines Ltd v Hadlee (No 2) Blanchard J said: 10
(a) The test is objective: under the circumstances in which the words were published, what would the ordinary reasonable person understand by them?
(b) The reasonable person reading the publication is taken to be one of ordinary intelligence, general knowledge and experience of worldly affairs.
(c) The Court is not concerned with the literal meaning of the words or the meaning which might be extracted on close analysis by a lawyer or academic linguist. What matters is the meaning which the ordinary reasonable person would as a matter of impression carry away in his or her head after reading the publication.
(d) The meaning necessarily includes what the ordinary reasonable person would infer from the words used in the publication. The ordinary person has considerable capacity for reading between the lines.
(e) But the Court will reject those meanings which can only emerge as the product of some strained or forced interpretation or groundless speculation. It is not enough to say that the words might be understood in a defamatory sense by some particular person or other.
(f) The words complained of must be read in context. They must therefore be construed as a whole with appropriate regard to the mode of publication and surrounding circumstances in which they appeared. I add to this that a jury cannot be asked to proceed on the basis that different groups of readers may have read different parts of an article and taken different meanings from them…
[29] Similarly in Gilick v Brook Advisory Centres the English Court of Appeal endorsed the following statement by Eady J at first instance:11
9 In defamation proceedings before a jury, the Judge and the jury have different functions in determining meanings. The Judge may, as a matter of law, find whether the words are capable of a defamatory meaning but the jury finds, as a matter of fact, whether the words do have a particular meaning. – Defamation Act 1992, s 36.
10 New Zealand Magazines Ltd v Hadlee [2005] NZAR 621 (CA) at 625 (citations omitted).
11 Gilick v Brook Advisory Centres [2001] EWCA Civ 1263 at 7.
The Court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naïve or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task.
Context, including audience, mode of publication and surrounding circumstances all count.
[30] The defendants submitted that the pleaded meanings were an artificial distortion and exaggeration of what was written in the performance appraisal. The meaning had to be taken from the context as a whole. The plaintiff had taken one and a half sentences out of context. The words were no more than advice to Ms Opai as to how some of her actions have been or may be perceived by others. As it was advice, not a statement of fact, it did not carry the meanings alleged.
[31] The performance appraisal does contain generally positive statements as to Ms Opai’s performance, but that praise does not affect the meaning of the particular words targeted by Ms Opai. The words are reasonably capable of the meanings pleaded. It does not matter that the comments may be advice. “This sense of responsibility can be misdirected” is more than a statement of possibility. It states what happens from time to time. The attribution that others view Ms Opai’s sense of responsibility as “malevolent” or “ill will” is arguably a euphemism for saying that she is malevolent. Think, for example, of the implication in “Some may say so, but I could not possibly comment …”
Do the statements arguably defame Ms Opai?
[32] The defendants submit that Ms Opai’s case is so trivial that the court should
strike out her claim. That argument based on Jameel v Dow Jones & Co Inc12 is addressed later. The matter here is separate: do the published statements defame
12 Jameel v Dow Jones & Co Inc, above n 4.
Ms Opai? The matter goes only to meaning, not to wider considerations that arise under Jameel. For a statement to be defamatory there is a threshold requirement of seriousness. Trivial claims are excluded. A statement is defamatory if it substantially affects, in an adverse manner, the attitude of other people towards the plaintiff or has a tendency to do so.13 A pointer to how this minimum threshold of seriousness is to be applied can be found in the speech of Lord Atkin in Sim v Stretch:14
That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character; and are treated as actionable wrongs.
[33] Workplace statements in personnel records and to superiors that an employee has a misdirected sense of responsibility and that she acts malevolently arguably do substantially affect in an adverse way the attitude of other people towards the person spoken of or have a tendency to do so. The defendants’ arguments for striking out the pleading for the performance appraisal under r 15.1(a) fail.
The briefing paper
[34] In an affidavit for the defendants, a human resources officer says that in July
2013 there was a review of staffing of the front counter to address supervisor numbers and to enable rostering to better meet demand. In November 2013
Mr Culpan prepared a briefing paper for that review. The briefing paper is in sections: background, current situation, issues, assumptions, options, recommendations and risks. Ms Opai focuses on these parts of the background section:
3.There is a culture where casual employees are engaged as a matter of course as opposed to having an actual requirement.
4.Management style and expectations differ between sections (Watchhousr [sic] officers) causing poor communication, disruption to service delivery and silos which contribute to unnecessary friction and disfunction [sic].
13 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985, [90]-[96].
14 Sim v Stretch [1936] 2 All ER 1237 (HL) at 1242.
5.The root cause of this tension appears to have been through a power struggle by some supervisors, a void leadership and management from the previous O/C Station, and a truncated investigation into two employment complaints.
6. This “culture” is disproportionately impacted upon by two of the
remaining supervisors.
7.Through the better use of existing supervisors (a proposed change to the supervisors rosters), the use of existing supervision within the wider work groups (FMC, DCU, DCC, ASN) I believe there is opportunity to achieve:
- Two supervisors’ positions can be freed up for use elsewhere
- FTE hours can be better matched to demand
- Existing service delivery can be maintained and standards improved
- The culture can be positively impacted
- The remaining Officers can be performance-managed or exited.
[35] Ms Opai pleads that these statements referred to her and they meant that she was unfit to hold her office since her “management style and expectations” did cause “poor communication” and “disruption”, “friction” and “dysfunction” to the extent that she deserved to be “exited”.
[36] She says that the briefing paper was published to an inspector in the District Headquarters and to the human resources officer, it was left on a senior sergeant’s desk in circumstances where others could read it, it was repeated orally on a meeting/training day to other police officers, and to a further inspector. She says that she sent the briefing paper to the Police Association when she was under a duty to do so. She says that as a result of these publications, the contents of the briefing paper became widely known within the New Zealand Police, particularly in South Auckland.
[37] The defendants say that two members of the review team (an inspector and a human resources officer) understood the briefing paper to relate in part to Ms Opai. They deny the meanings pleaded by the plaintiff and say that the briefing paper was published to only two people – the inspector and the human resources officer (leaving aside the plaintiff’s own publication to the Police Association).
Do the statements refer to Ms Opai?
[38] As a general rule, defamatory statements made about a general class of people are not actionable by a particular member of the class. In Eastwood v Holmes, Willes J said:15
If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual.
But words which refer to a class may be actionable if the words or circumstances indicate a particular claimant. It is a question of fact in each case whether a reasonable reader could conclude that the claimant as an individual was pointed at. Whether a statement is capable of referring to a plaintiff is a question of law and can be decided in a strike-out application. Gatley on Libel and Slander identifies these
factors as relevant:16
(a) the size of the group; (b) the nature of the group;
(c) the plaintiff’s status, duties, responsibilities or activities in the group is the real target of the defamation;
(d) the seriousness or extravagance of the allegations;
(e) the plausibility of the comments and tendency to be believed; and
(f) extrinsic factors.
It is irrelevant whether the author intended to refer to the plaintiff or not. Where the publication is made to persons who have special knowledge, the issue is decided according to what reasonable persons having that knowledge would understand by
the words.
15 Eastwood v Holmes (1858) 1 F & F 347 at 349.
16 Alastair Mullis and Richard Parkes (eds) Gatley on Libel and Slander (12th ed, Sweet & Maxwell, London, 2013) at [7.9].
[39] Nowhere in the briefing paper is Ms Opai named nor, for that matter, is any other member of the watch house staff. Nevertheless the number of watch house supervisors was small. The actual number is not given but that does not matter. Within the group of watch house staff, supervisors are mentioned in particular. The statements within this part of the briefing paper arguably apply to each watch house supervisor. The statements were made by a police officer with watch house responsibility: they are prima facie plausible. As a police example, in Farrington v Lee, it was held that a statement that at least two of a team of seven police officers had acted dishonestly was held to give an arguable cause of action to each member
of the team. 17 It is accordingly arguable for Ms Opai that the statements about
watch house officers in the introductory part of the briefing paper refer to her.
Meaning
[40] Once it is arguable that the briefing paper was understood by its readers to refer to Ms Opai, the statements as to management style and expectation, poor communication, disruption to service delivery and silos which contribute to unnecessary friction and dysfunction, a “power struggle by some supervisors”, and the culture being disproportionately impacted upon by two supervisors, refer to her. Use of these words indicates that, in these respects, Ms Opai’s performance of her job was sub-standard.
[41] The words are not, however, capable of meaning that she was unfit to hold her office. The words “the remaining officers can be performance-managed or exited” show that dismissal was not the only option. Performance management, an acknowledged possibility, may bring about the desired change. The wording allows for a range of possibilities - ranging from advice and monitoring through to dismissal. At its highest, the reference to “exited” may be taken as suggesting that there could be grounds for investigating whether Ms Opai should keep her job, given that any dismissal for misconduct would first require an enquiry into her performance. But that is not enough to convey to the reading audience within the Police that she is unfit to hold her job. The distinction here is similar to that made in
other cases which differentiate between allegations of actual misconduct and those
17 Farrington v Leigh The Times, 10 December 1987 (CA).
suggesting no more than grounds to believe that a plaintiff is guilty of misconduct.18
In Chase v News Group Newspapers Ltd the English Court of Appeal described three tiers of meaning.19 A tier one meaning imputes to the plaintiff actual misconduct; a tier two meaning asserts that there are grounds to believe or suspect the plaintiff is guilty of misconduct; and a tier three meaning asserts that there are grounds for investigating whether the plaintiff is guilty of misconduct. In APN New Zealand Ltd v Simunovich Fisheries Ltd the Supreme Court cautioned:20
This tripartite classification provides a convenient general description of different forms of meaning. Care must, however, be taken lest classification be allowed to dictate meaning. The crucial first step is to identify the precise meaning of the words in issue, rather than attempting to force that meaning into one of the three “tiers”. Meanings in different tiers may shade into each other, rather than always falling neatly into one compartment or another.
Even allowing for that caution, the words here fall short of alleging actual unfitness for office. While that allegation cannot stand, Ms Opai may be able to amend her statement of claim to plead other available meanings.
Do the words defame Ms Opai?
[42] In terms of the distinction made by Lord Atkin in Sim v Stretch, the words referring to poor communication, disruption to service delivery, silos, unnecessary friction, dysfunction, and a power struggle by some supervisors, are capable of harming the employment reputation of anyone the subject of the statements. They are more than trivial and go beyond displaying bad manners. They have a tendency to substantially affect in an adverse way the attitude of Ms Opai’s superiors towards her. The statements arguably defame Ms Opai.
The 258 report form
[43] In the Police, “258 reports” are used to forward complaints about staff to
appropriate persons for handling. In this case, Mr Culpan forwarded a report he had received about Ms Opai. The report is headed “Melissa Opai: Breach of the code of
18 Truth (New Zealand) Ltd v Holloway [1961] NZLR 22 (PC); Lewis v Daily Telegraph Ltd [1964] AC 234 (HL).
19 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11 (CA) at [45]–
[46].
20 APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93, [2010] 1 NZLR 315 at [16].
conduct”. The complainant stated that she had noted discrepancies between work hours recorded on time sheets and actual times when Ms Opai and her staff left at the end of a shift. In short, the complaint was that Ms Opai and her staff were clocking off early but claiming for having worked a full day. The complainant recorded five alleged dates when Ms Opai had stopped work early and claimed for more time.
[44] Mr Culpan’s report included this (I have not stated the name of another staff member):
It would appear that these issues have reached a tipping point resulting in the attached email and formal complaint. It is noted that Miss OPAI was herself the author of a similar complaint in 2013 made against Ms …. for almost identical behaviour.
and
It is my opinion that if the staff named in the email/complaint have left early without correctly filling out time sheets, it will have been sanctioned by Ms OPAI although I have not traversed this point with those identified.
and
I believe these actions fall under the general headings of Honesty and Integrity and dependent upon interview with Ms OPAI, may be viewed as misconduct in that they represent repeated absence from duty or place of work without proper reason or authorisation.
[45] Ms Opai pleads these meanings:
(a) she was dishonest and did commit a crime, in that she stole time from her employer and concealed it by falsifying her time records;
(b)she was a hypocrite in that she “was herself the author of a similar complaint in 2013”; and
(c) she lacks integrity, in that if others falsified time records in her work group then she would have “sanctioned” this, and there have been “like issues simmering under the surface” for some time pervading that work group.
[46] Ms Opai alleges that the report was disseminated to the human resources manager in the District Headquarters, an inspector, other members of the human resources staff, to all staff in her section, to a senior sergeant who took over from Mr Culpan and that it was available to be inspected on her personnel file. She published it herself to Police National Headquarters but was duty bound to do so.
[47] Mr Culpan admits making the report, and pleads that it was forwarded to appropriate managers. The reaction within the Police was not to commence a formal investigation but to have a meeting with the entire work section to outline expectations about timeliness, time sheets, workload breaks and handover to other sections. A human resources officer has deposed that the 258 form is not on Ms Opai’s personnel file.
[48] Mr Culpan’s report contains statements made by another, but that of itself does not give him a defence. Under the repetition rule, the re-publication of statements may itself be the publication of a defamatory statement.21
Meaning
[49] The words are reasonably capable of meaning that Ms Opai was dishonest. The report refers to discrepancies between the time worked and the time recorded on the time sheets and suggests that the actions fall under the general heading of “honesty and integrity”. The allegation arguably goes beyond one of simply suspected dishonesty. Under the ranking of tiers of meaning adopted by the English Court of Appeal in Chase v News Group Newspapers Ltd, there is arguably a tier one
allegation of actual dishonesty.22
[50] Similarly, the allegation that she sanctioned other staff not filling in their time sheets correctly is reasonably capable of meaning that she lacks integrity. Mr Culpan’s suggestion that the actions fall under the heading of “integrity” supports
this pleaded meaning.
21 Truth (New Zealand) Ltd v Holloway, above n 18; APN New Zealand Ltd v Simunovich Fisheries
Ltd , above n 19, at [24].
22 Chase v News Group Newspapers Ltd, above n 19; APN New Zealand Ltd v Simunovich
Fisheries Ltd, above n 20, at [15]-[16].
[51] The words, however, do not reasonably mean that Ms Opai committed a crime of stealing time. “Time” is not something capable of being stolen. The conduct may be deceitful: the employer is being cheated by paying for her being at work when she was not. But the words do not suggest theft. Ms Opai may be able to amend to plead another meaning of the words.
[52] The alleged meaning that she is a hypocrite is based on the remark that Ms Opai had herself made a similar complaint over similar behaviour by another member of the Police staff. A person who complains of misconduct by another while taking part in that same conduct herself may reasonably be described as a hypocrite. Mr Rennie submitted that there had to be an express reference to hypocrisy, citing Laws LJ in Lait v Evening Standard Ltd:23
There is no overt reference to hypocrisy in the article; it is not a necessary inference to be drawn from the words; at most the charge of hypocrisy might be a reason in the minds of some (albeit on the facts a false one) for being angered by the claimant’s subscription to the letter to The Times.
That is taken out of context and does not apply to this case.
[53] In short, all the meanings are reasonably capable, apart from the allegations that Ms Opai committed the crime of stealing time. That aspect may be cured by amendment. The allegations of dishonesty, lack of integrity and hypocrisy in a connection with performance are defamatory in terms of the approach suggested by Lord Atkin in Sim v Stretch.
Diary notes
[54] In April or May 2014, Mr Culpan handed to Senior Sergeant Traill, who was taking over from him, a document headed “Diary notes – Melissa OPAI 2013-14 performance year”. Ms Opai sues on two of these diary notes:
12July Took a complaint to Brendan RYAN in what has been described as an attempt to scuttle Deepak and Harry WANGs police enrolements [sic] – Email conformation [sic] from Brendan Ryan
23 Lait v Evening Standard Ltd [2011] EWCA Civ 859, [2011] 1 WLR 2973 at [37].
And
5 Nov Complaints about timekeeping
This has been resulted [sic] however is listed for your reference
[55] Ms Opai pleads that the first diary notes means that she acts maliciously towards others and that the second means that she is dishonest.
[56] A police human resources advisor says that it is common practice for a manager to make diary notes about staff. It is useful to record feedback that they give their staff, and is useful when completing appraisals at the end of a performance year. Diary notes are not kept on the employee’s personnel file. The notes in this case are not on Ms Opai’s personnel file. Ms Opai’s pleads that the diary notes were published more widely than to Senior Sergeant Traill. She alleges that they were also sent to a Senior Sergeant Mullin, were placed on her personnel file and were disseminated more widely within the South Auckland Police.
Meaning
[57] The 12 July diary notes records a complaint about a single incident. A literal- minded lawyer would not read the note as going beyond that. But the ordinary reader may. People form their opinions about others by judging them on their conduct and reports of their conduct. A report that someone has acted maliciously on one occasion may lead the reader to infer that that person may act that way again. But it is a stretch to infer from a report that because a person has acted maliciously on a single occasion that that person acts maliciously as a matter of course. The diary note cannot reasonably mean that Ms Opai acts maliciously as a matter of course. Ms Opai’s pleaded meaning, that she acts maliciously, is ambiguous. Her pleading may mean that she acts maliciously as a matter of course or may do no more than record that she has acted maliciously on the occasion referred to. This ambiguity may lead to confusion. At trial Ms Opai may run a case relying on the wider meaning, whereas the defence will want to argue for a more limited meaning. The matter should be cleared up. I accept that a reader may draw from the statement an inference that there is a risk that Ms Opai may act maliciously at other times, but not that she acts maliciously as a matter of course. She should amend her pleaded
meaning so as to not allege the wider meaning of acting maliciously as a matter of course (that is, that she is generally malicious).
[58] The statement “complaint about timekeeping” does not mean that Ms Opai is dishonest. Complaints about timekeeping may simply go to laziness, incompetence or non-performance. The statement does not, on its own, suggest dishonesty.
Are the words defamatory?
[59] As the words do not reasonably mean what Ms Opai has pleaded, this question does not arise. It may however be possible for her to amend the pleaded meanings so as to show defamatory imputations.
Allegation of malevolent campaign to vilify
[60] In the cause of action against Mr Culpan paragraph 45 of the statement of claim is headed “Malevolent campaign to vilify”. Ms Opai alleges that Mr Culpan made the defamatory statements as part of a pattern of conduct in which he sought out and pursued opportunities to vilify her. The pleading contains particulars. The defendants object to this pleading on the ground that it is an attempt to raise, within a defamation proceeding, matters that are properly the subject matter of an employment dispute which should be pursued in the employment institutions.
[61] The defendants misunderstand the purpose of paragraph 45. Ms Opai has claimed damages, including for aggravated damages. She is entitled to plead matters to justify an increased damages claim for defamation, even if those matters overlap employment issues.
Claim for exemplary damages
[62] Ms Opai’s cause of action against the Attorney-General, on behalf of the Commissioner of Police, is for vicarious liability for Mr Culpan’s defamatory statements. She seeks exemplary damages from the Crown, but not from Mr Culpan. She has it the wrong way round. Punitive damages are not awarded solely on the
basis of vicarious liability. Tipping J explained this in Couch v Attorney-General
(No 2):24
Vicarious liability is imposed largely as a matter of policy. When one person is acting on behalf of another, the wrong is seen for the purposes of compensation as having been committed both by that person and by the other. But the policy behind awarding compensatory damages against a person on the basis of vicarious liability does not mean that exemplary damages should be similarly awarded. There is no policy basis for punishing someone for the conduct of another unless the first person’s conduct itself also qualifies for punishment. People should not be vicariously liable for punishment on account of the conduct of someone else just because that conduct renders them liable to compensate the plaintiff.
[63] In a defamation claim that is reinforced by s 28 of the Defamation Act 1992:
In any proceedings for defamation, punitive damages may be awarded against a defendant only where that defendant has acted in flagrant disregard of the rights of the plaintiff.
(Emphasis added)
Ms Opai cannot allege that the Crown acted in flagrant disregard of her rights. Its liability is vicarious under s 6(1)(a) of the Crown Proceedings Act 1950. That enacted an exception to the general principle that the Crown can do no wrong – a rule of tortious immunity. Conduct of an employee for which an employer is vicariously liable is not conduct of the employer. Vicarious liability is different from attributed liability, under which the actions and state of mind of agents may be held
to be the actions and states of mind of a body corporate or government department.25
Ms Opai does not suggest any basis for attributed liability.
[64] Paragraph 51 of Ms Opai’s statement of claim gives particulars in support of her claim for exemplary damages, but when analysed they amount to no more than allegations of “flagrant disregard” under s 28 by Mr Culpan and other members of the Police, all matters of vicarious liability. The exemplary damages claim against the Attorney-General is struck out.
[65] Ms Opai might overcome this difficulty by claiming exemplary damages against Mr Culpan. It appears that as a matter of practice the Crown would
24 Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [158].
25 Couch v Attorney-General (No 2), above n 25, at [158]-[159].
indemnify Mr Culpan, even if it is not under legal liability to do so. For Ms Opai, Mr Woods proposed to amend the statement of claim to include a claim for exemplary damages against Mr Culpan. I consider that aspect later as part of the defendants’ application to strike out on the basis of Jameel.
Mr Culpan’s stay application
[66] Mr Rennie made an “alternative forum” submission to say that this proceeding was an abuse of process. Essentially his argument was that Ms Opai’s complaints were an employment dispute and the appropriate forum to decide it was one of the institutions under the Employment Relations Act. He submitted that the proceeding should be stayed while Ms Opai pursued her remedies under that act. The District Court had transferred the employment aspects of Ms Opai’s original claim to the employment institutions and Ms Opai had the opportunity to pursue them. He argued that, in cases where there were overlapping claims in a civil court and an employment institution, case law showed that the claim in the civil court
would be stayed while the merits of the other proceeding were decided;26 And that
Associate Judge Sargisson decided only whether this court had jurisdiction for this proceeding, not whether it should be stayed pending the outcome of proceedings in an employment institution.27
[67] If the submission were upheld, Mr Culpan would not be a party to any proceeding in an employment institution because he was not in a relevant employment relationship with Ms Opai under the Employment Relations Act. The employment institutions deal with employment relationship problems.28 “Employment relationships” is defined to include relationships between an employer and an employee employed by that employer;29 but an employee-employee
relationship is not within the definition.
26 Citing Air New Zealand Ltd v New Zealand Airline Pilots Association HC Auckland CP 2383-
39, 3 August 1990; Beattie v Premier Events Group Rentals Ltd [2014] NZCA 184, [2015] NZAR 1413; Rooney Earthmoving Ltd v McTague HC Christchurch CIV-2009-476-471, 30
April 2010; New Zealand Fire Service Commission v McCulloch (2010) 8 NZELR 460 (HC).
27 Opai v Culpan above n 2 at [17].
28 See Employment Relations Act 2000, s 161 for jurisdiction of the Employment Relations
Authority and s 187 for jurisdiction of the Employment Court.
29 Employment Relations Act 2000, s 4(2)(a).
[68] Notwithstanding the District Court order, Ms Opai has taken no steps in the Employment Relations Authority. The time limit for beginning a proceeding based on a personal grievance is three years after the employee first raises the matter in the
90 day period under s 114(1).30 I was advised that Ms Opai did not intend to make
any claim in the Authority in relation to the performance appraisal even though the deadline was approaching.
[69] The absence of a relevant employment relationship provides an answer to the stay application. The fact that an employee may have a remedy against the employer in an employment institution does not bar the employee from suing another employee in a civil court if a cause of action is available. The defendant cannot complain of concurrent proceedings. Any risk of double recovery can be addressed when judgment is sought, but not earlier. See for example Lord Atkin in United
Australia Ltd v Barclay’s Bank Ltd:31
I therefore think that on a question of alternative remedies no question of election arises until one or other claim has been brought to judgment. Up to that stage, the plaintiff may pursue both remedies together, or pursuing one may amend and pursue the other: but he can take judgment only for the one, and his cause of action on both will then be merged in the one.
[70] The fact that the subject matter of this proceeding arose in an employment context is not by itself a conclusive reason for staying this proceeding in favour of a claim in the Employment Relations Authority. While I used to believe that the purpose of the exclusive jurisdiction provisions of the Employment Relations Act
was to provide a specialist jurisdiction for employment disputes,32 the Court of
Appeal has made it clear that civil courts cannot get out of deciding them. In
JPMorgan Chase Bank NA v Lewis the Court of Appeal held that I was wrong.33
According to its judgment an employment relationship problem must be one that directly and essentially concerns an employment relationship.34 Whether the
problem essentially concerns an employment relationship depends on whether the
30 Employment Relations Act 2000, s 114(6).
31 United Australia Ltd v Barclay’s Bank Ltd [1941] AC 1 (HL) 1 at 30.
32 Aztec Packaging Ltd v Malevris [2012] NZHC 243, (2012) 10 NZELC 79,003; Hibernian Catholic Benefit Society v Hagai [2014] NZHC 24, (2014) 11 NZELR 534; and Global Kiwi NZ Ltd v Fannin [2014] NZHC 656.
33 JP Morgan Chase Bank NA v Lewis [2015] NZCA 255, [2015] 3 NZLR 618 at [94]-[101].
34 At [95].
relationship was a necessary component of any cause of action between the parties.35
If a cause of action within the jurisdiction of the Authority could alternatively be pleaded as another cause of action outside its jurisdiction, the case must be brought in a civil court.
[71] Ms Opai cannot sue in tort in the Employment Relations Authority, as Associate Judge Sargisson recognised.36 Since she may both claim in an employment institution and sue in a civil court, she has a choice of remedies. It is not an abuse of process to bring a tort claim in this court in preference to pursuing personal grievances in the Employment Relations Authority.
[72] Some might consider a defamation proceeding as unsatisfactory for obtaining redress in an employment dispute. Dobson J noted the general difficulties with defamation proceedings in CPA Australia Ltd v New Zealand Institute of Chartered Accountants:37
In many circumstances, litigating a claim for defamation is among the least efficacious forms of proceedings available for civil wrongs. Pursuit of vindication of a defamed plaintiff’s rights inevitably involves revisiting the content and circumstances of the damaging utterances, and the courts are familiar with cases in which notionally successful plaintiffs are left dissatisfied with the final outcome. In an era when a focus on the substance of civil disputes generally enables them to be litigated pursuant to an agreed sequence of issues, the technical requirements of pleading for both plaintiff and defendant in defamation cases places greater emphasis on these more technical considerations: the accuracy of alleged defamatory meanings, the presence of innuendo, the justification for honest opinion or defence of matters such as qualified privilege.
In a 2010 judgment, Lord Phillips observed for the United Kingdom
Supreme Court:
Over 40 years ago Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB
157, 171 referred to “the artificial and archaic character of the tort of libel“.
Some 20 years on Parker LJ in Brent Walker Group Plc v Time Out Ltd[1991] 2 QB 33, 46 commented on the absurdity of the “tangled web of the law of defamation”. Little has occurred in the last 20 years to unravel the tangle …
35 At [97].
36 Employment Relations Act 2000, s 161(1)(r).
37 CPA Australia Ltd v New Zealand Institute of Chartered Accountants [2015] NZHC 1854, (2015) 14 TCLR 149 at [116]-[117] (footnotes omitted).
Notwithstanding that, it is not for the court to substitute its judgment for Ms Opai’s
in choosing to sue in defamation.
[73] It would also be wrong to stay a proceeding in this court, where all parties have taken considerable steps, to await the outcome of proceedings in an employment institution that have not even been started. This follows from the application of the criteria in Mackay Refined Sugars (NZ) Ltd v New Zealand Sugar Company Ltd,38 and applied in employment cases in Rooney Earthmoving Ltd v
McTague,39 and Beattie v Premier Events Group Rentals Ltd.40 The alternative
forum argument does not give reason to stay this proceeding.
Jameel
[74] The defendants say that Ms Opai’s claim should be struck out under the principle in Jameel v Dow Jones & Co Inc.41 There the Saudi plaintiff sued Dow Jones Inc in England for publishing on the online version of the Wall Street Journal an article suggesting that he had financed Al-Qaeda. Dow Jones established that only five subscribers in England had accessed the article and three of them were associated with Mr Jameel. The Court of Appeal stayed the proceeding on the
ground of abuse of process. While it recognised that Mr Jameel may have a cause of action, allowing his case to go to trial would be disproportionate. It said:42
We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation. In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant's resort to English jurisdiction or to seek to strike out the action as an abuse of process.
…
An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is
38 Mackay Refined Sugars (New Zealand) Ltd v New Zealand Sugar Company Ltd [1997] 3 NZLR
476 (HC).
39 Rooney Earthmoving Ltd v McTague, above n 26.
40 Beattie v Premier Events Group Rentals Ltd, above n 26.
41 Jameel v Dow Jones & Co Inc, above n 4.
42 At [40], [54], [55] and [69].
concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.
…
There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.
…
If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.
In Lait v Evening Standard Ltd, Laws LJ said:43
The principle identified in the Jameel case [2005] QB 946 consists in the need to put a stop to defamation proceedings that do not serve the legitimate purpose of protecting the claimant’s reputation. Such proceedings are an abuse of the process. The focus in the cases has been on the value of the claim to the claimant; but the principle is not, in my judgment, to be categorised merely as a variety of the de minimis rule tailored for defamation actions. Its engine is not only the overriding objective of the [Civil Procedure Rules] but also, in Lord Phillips MR’s words, the need to keep “a proper balance between the article 10 right of freedom of expression and the protection of individual reputation”.
In Bleyer v Google Inc, McCallum J said:44
I am satisfied that the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process.
It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the
43 Lait v Evening Standard Ltd, above n 23 at [42].
44 Bleyer v Google Inc LLC [2014] NSWSC 897, (2014) 88 NSWLR 670 at [62]-[63]),
court is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation.
[75] Some aspects may be noted:
(a) A claim may be struck out as disproportionate under the Jameel principle, even if the plaintiff otherwise has an arguable case. Indeed the strike out is made in contemplation of arguable success at trial. It will still not be worth the effort.
(b)The proceeding may be struck out on an interlocutory application. It is not necessary to wait until trial. In that respect, it replaces the award of derisory damages at trial – where a plaintiff may be awarded a trifling sum by way of damages, notwithstanding a verdict in his favour. See for example Lord Esher MR in Whittaker v Scarborough Post:45
… if a libel were a trivial or ridiculous one, in respect of which the jury thought that an action ought not to have been brought, they would only give contemptuous damages…
(c) The Jameel test is separate from the seriousness requirement for a statement to be defamatory, as Warby J explained in Lachaux v Independent Print Ltd:46
By the time the section was passed the common law had developed a twin-track approach to the elimination of trivial defamation claims: they might fail to meet the threshold of seriousness identified in the Thornton case, and be struck out on the grounds that the statement complained of was not defamatory; or they might be struck out as an abuse of process pursuant to Jameel. Inherent in the Jameel requirement of a real and substantial tort, but absent from the Thornton test, is an assessment of all the circumstances including, and in particular, the gravity in fact of the
45 Whittaker v Scarborough Post [1896] 2 QB 148 (CA) at 149.
46 Lachaux v Independent Print Ltd [2015] EWHC 2242(QB), [2016] QB 402 at [50] (citations omitted).
reputational harm that a publication has caused or is likely to cause.
(d)In England the common law approach has been replaced by s 1(1) of the Defamation Act 2013 (UK):
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The section appears to fuse the twin-track approach, but decisions under it may give guidance in other jurisdictions, so long as focus is kept on the separate tests at common law.
(e) Jameel and some of the cases that apply it refer to the requirement for a “real and substantial tort”. That term comes from case law on service of tort claims out of the jurisdiction.47 In challenges to service abroad, as under the forum non conveniens test in Spiliada Maritime Corp v Cansulex Ltd,48 jurisdiction may be declined for absence of a real and substantial tort in England.49 But under Jameel, that origin does not matter. An application does not have to show that there is some other more appropriate forum. The abuse of process may be shown in cases without any foreign element.
(f) While many of the cases involve limited publication, often to those in the plaintiff’s camp, the strike out rule applies in other contexts. In Lait v Evening Standard Ltd a claim was struck out on the basis that a particular additional pleaded meaning (an allegation of hypocrisy against a Member of Parliament) was relatively obscure and unlikely
to cause real damage.50 The circumstances for finding that a claim is
trivial under Jameel are not limited.
47 High Court Rules, r 6.27(2)(a) of the is the equivalent New Zealand provision.
48 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL).
49 E.g. Kroch v Rossell et Cie Société des Personnes à Responsibilité Ltd [1937] 1 All ER 725 (CA).
50 The defendant had a defence of honest comment for the other meaning.
(g)The court must exercise particular care before striking out an arguable case.51
[76] While the English Court of Appeal expressly took into account the Civil Procedures Rules and the Human Rights Act as a basis for its decision in Jameel, there is another factor it did not refer to but which marks a point of difference with New Zealand practice. In England defamation proceedings are considered as suitable for hearing in the High Court, as opposed to the County Court. In a Practice Note by the Chief Justice in England under the High Court and the County Courts Jurisdiction Order 1991 (UK), article 7(5), allocating work between those courts, defamation is one class of case considered to be important and therefore suitable for trial in the High Court. The requirement for a hearing in the High Court must add to costs and go to questions of proportionality. That aspect does not apply in New Zealand. Defamation proceedings seeking damages within the jurisdiction of the District Courts may be heard there. There is no presumption against District Courts
hearing defamation claims.52 Currently, under the District Courts Act 1947, District
Courts can hear claims up to $200,000.53 Under the District Court Act 2016, the
District Court will be able to hear civil claims, including for defamation, for up to
$350,000.54 That will cover the majority of defamation claims involving limited publication.
[77] While the Jameel doctrine has not always been applied in particular cases, the general trend in New Zealand is to recognise it as a ground for strike out:
(a) In Bradbury v Judicial Conduct Commissioner, not a defamation proceeding, in a footnote the Court of Appeal referred to Jameel with other English authorities as exemplifying an approach to strike out in the court’s inherent jurisdiction as similar to New Zealand’s.55 It did
not consider the case in depth.
51 Lait v Evening Standard Ltd, above n 23 at [57].
52 Human Resources Institute of New Zealand Inc v Elephant Training & HR Ltd [2015] NZHC
2739 at [18]-[21].
53 District Courts Act 1947, s 29.
54 District Court Act 2016, s 74.
55 Bradbury v Judicial Conduct Commissioner [2014] NZCA 441, [2015] NZAR 1 at [106].
(b)In Karam v Parker, a case of defamation on websites, the self- represented defendants cited Jameel as a ground for strike out.56
Associate Judge Sargisson had little difficulty in finding that Jameel
did not apply in the circumstances of that case.
(c) The Deliu v Hong cases were part of ongoing disputes between warring lawyers. They sued each other for defamation. I struck out the claims as frivolous, although I was not aware of Jameel when I gave my decision in court.57 Mr Deliu succeeded in a review application. Courtney J upheld other parts of my decision but for different reasons.58 On a later strike out application by Mr Hong Associate Judge Osborne held that Jameel did not apply in New Zealand and, if it did, he would not have applied it to strike out Mr Deliu’s claim.59
(d)In Moodie v Strachan Ronald Young J held that Jameel provided grounds for strike in New Zealand but the test was not met in that case.60
(e) In Ware v Johnson Associate Judge Sargisson found that the relevant publications were subject to qualified privilege when there was no prospect of rebuttal under s 19 of the Defamation Act, but stated that otherwise, it may well have been an appropriate case to apply the rule in Jameel.61
(f) In CPA Australia Ltd v New Zealand Institute of Chartered Accountants Dobson J obiter considered that there was a requirement of a minimum threshold of seriousness, a test similar to that in s 1(1)
of the Defamation Act 2013 (UK) (proof by the plaintiff of serious
56 Karam v Parker HC Auckland CIV-2010-404-3038, 29 July 2011 at [50]-[55].
57 Deliu v Hong [2011] NZAR 681 (HC).
58 Deliu v Hong HC Auckland CIV-2010-404-6349, 21 December 2011.
59 Deliu v Hong [2013] NZHC 735 at [143]-[194].
60 Moodie v Strachan [2013] NZHC 1394 at [54]-[68]
61 Ware v Johnson [2014] NZHC 892 at [47].
harm or likelihood of serious harm to the plaintiff’s reputation).62 The plaintiff failed on another ground, inability to establish pecuniary loss.
[78] Only Associate Judge Osborne’s decision rejects the Jameel principle. While the others accept it to a greater or less degree, they have followed a cautious approach; see in particular Karam v Parker and Moodie v Strachan. The English reliance on the Human Rights Act and the Civil Procedure Rules is echoed in New Zealand: by reducing an unnecessary restriction (not demonstrably justifiable in a free and democratic society – s 5) on the freedom of expression under the New Zealand Bill of Rights Act 1990 and by the objective of the High Court Rules of
securing the just, speedy and inexpensive determination of any proceeding.63 Access
to the court to obtain vindication is not to be taken away lightly. The Jameel principle is a basis for strike out for abuse of process in New Zealand, so long as the power is used with due care.
[79] Now for this case. First some contextual matters.
[80] Ms Opai’s case is that the statements made by Mr Culpan have tarnished her reputation at her workplace, that she has missed out on promotion and instead has been moved sideways. As well as seeking vindication, Ms Opai wishes to expose shortcomings in the Police. Specifically she believes that the Police do not guarantee and support integrity reporting; at management level there is a failure to investigate integrity reports; instead they are suppressed; there is a culture of inequality and discrimination; and there is dysfunction within the Counties Manukau District. She has not so far offered any particular evidence in support of these matters.
[81] It is not of itself an abuse of process to bring a claim for a particular wrong if success is also a step towards other results sought by the plaintiff, as the High Court of Australia explained in a different context:64
To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of
62 CPA Australia Ltd v New Zealand Institute of Chartered Accountants, above n 37.
63 High Court Rules, r 1.2.
64 Williams v Spautz (1992) 174 CLR 509 at 526.
process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.
Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent’s conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor’s favour.
[82] The defendants’ affirmative defences include qualified privilege. On the face of it Mr Culpan made all the statements in the course of his job for proper work purposes to others in the Police who had a proper reason for receiving them. Those in management are entitled to report freely and candidly to other members of management as to the performance of staff, even if they get the facts wrong. The employment context is a standard one for qualified privilege.65 The statements
appear to fit squarely within Lord Atkinson’s formulation in Adam v Ward:66
A privileged occasion is…an occasion where the person who makes a communication has an interest, or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
[83] While the defences of honest opinion may be contestable because of difficulties in proving a factual basis for the opinions, that does not arise with qualified privilege. Ms Opai’s chances of success at trial turn on her being able to show that privilege did not apply to the particular occasion or to rebut it under s 19 of the Defamation Act, that is, that Mr Culpan was motivated by ill-will towards her or otherwise took improper advantage of the occasion. As the Jameel test is applied on the assumption that the plaintiff may succeed at trial, the question is whether allowing her the opportunity to overcome the qualified privilege defence is
disproportionate.
65 Mullis and Parkes (eds), above n 16, at [14.47].
66 Adam v Ward [1917] AC 309 (HL) at 334.
[84] At a general level Ms Opai has a proper basis for seeking vindication for defamation. At least some of the statements are damaging as imputing dishonesty, disruptiveness and unsatisfactory work. She alleges that she has been adversely affected by Mr Culpan’s statements. While the circle of publication was not wide, the statements were made to others in management, who have the power to affect her in her employment. At that level her case cannot be dismissed as trivial. Yet there are disproportionate elements in her case.
[85] First she has sued in this court. Taking all the statements together and assuming success on all aspects including any elements of aggravation, any damages Ms Opai might recover will be within the civil jurisdiction of a District Court – at present up to $200,000.67 Damages in defamation are at large. They are intended to be compensation for the injury to reputation, the natural injury to feelings and the grief and distress caused by the publication.68 A control on excessive damages claims is the power to award solicitor-client costs to a defendant, even if the plaintiff has succeeded.69 Damages awards against the media tend to be higher, because their publications are invariably more extensive. I take as a comparator case Lee v The New Korea Herald Ltd, a case of media publication – seven very damaging articles in a newspaper with a circulation of 22,000 in New Zealand alleging among other things illegal and dishonest activity, arrest and investigation by the Fijian Police, deliberate contravention of orders of the Fiji High Court, forgery of a police officer’s signature, bribery of public officials and being found guilty in the Fiji High Court. In a judge-alone trial the newspaper and its directors were ordered to pay compensatory damages of $250,000 to the plaintiff.70 This case is clearly much less serious. Similarly awards on successful personal grievance claims in the Employment Relations Authority (which may take into account humiliation, loss of dignity and injury to feelings71 tend to be for much smaller sums. Ms Opai had this proceeding transferred to this court by the expedient of claiming damages of more
than $200,000. The proceeding was transferred to this court under s 44 of the
67 District Courts Act 1947, s 29.
68 Television New Zealand Ltd v Keith [1994] 2 NZLR 84 (CA) at 86.
69 Defamation Act 1992, s 43(2).
70 Lee v The New Korea Herald Ltd HC Auckland CIV 2008-404-5072, 9 November 2010. In Kim v Lee [2012] NZCA 600 a defendant who had not been represented at trial successfully appealed against the judgment and obtained an order for a rehearing, but there is no suggestion in the decision of the Court of Appeal that the damages awarded were inadequate.
71 Employment Relations Act 2000, s 123(1)(c)(i).
District Courts Act as being beyond the jurisdiction of the District Court. It cannot be sent back: the power to transfer from this court to the District Court is available only for proceedings commenced in this court.72 If Ms Opai had accepted at the outset that her case did not need to be moved to this court, all parties would have been saved considerable effort and costs. The limit on monetary relief would have dictated a less expansive approach. Further, bringing this proceeding in this court makes it more vulnerable to being found disproportionate.
[86] The second element is joining Mr Culpan as a defendant. Ms Opai may establish the Crown’s vicarious liability by proving Mr Culpan’s personal liability to her in defamation, even if he is not a party to the proceeding. No doubt the Crown will call him as a witness – it is hard to see how it could run its defences without him. Relevant documents within his possession as a police officer are discoverable by the Crown. Subject to one matter, having Mr Culpan as a party to the proceeding is unnecessary as it adds to the overall costs, steps to be taken and work for all parties and the court. That is inefficient. At a conference on 19 April 2016 I explored whether Ms Opai needed to sue both defendants. I gave her the option of discontinuing against one defendant before 6 May 2016, but she chose not to do so. The one matter that might warrant keeping Mr Culpan as a defendant is to obtain an award of exemplary damages which the Crown would likely pay as a matter of practice, notwithstanding that it cannot be vicariously liable for them. So far Ms Opai has not claimed exemplary damages against Mr Culpan, but Mr Woods proposed that her claim could be amended to include them, once it became clear that she could not recover them directly from the Crown. He relied on that as a ground for keeping Mr Culpan as a defendant.
[87] That leads to the question whether Ms Opai should be able to amend her pleading to include a claim for exemplary damages against Mr Culpan as a way to keep him in as a defendant. Ms Opai has already sought aggravated damages in her claim for compensatory damages – to reflect the effect of his alleged misconduct and motives on her. To obtain exemplary damages she will need to prove that Mr Culpan had no genuine belief in the truth of the words he published – he must have known
the words to be untrue or have suspected as much and deliberately refrained from
72 District Courts Act 1947, s 46
taking obvious steps which would have turned suspicion into certainty.73 The damages may be awarded only if he acted in flagrant disregard of her rights.74 That will be in addition to establishing liability for compensatory damages which will involve overcoming the qualified privilege defence. A finding of malice under s 19
of the Defamation Act against Mr Culpan is likely to have its own punitive effect and may allow an increase in damages for aggravation. The need for a top-up for punishment is very much a long shot. Any award is likely to be moderate. Keeping Mr Culpan in the proceeding for the sole purpose of seeing whether Ms Opai can make out a case for exemplary damages is Jameel disproportionate. He should be removed from the proceeding.
[88] The third matter is the performance review. Ms Opai sues only on the first draft of the 2012-2013 appraisal year. When she objected to it, it was amended and when she objected again, it was changed once more. She does not object to the later versions, which do not have the statements she complains of. Any injury to her reputation can only have been fleeting.
[89] Mr Culpan clearly wrote the appraisal on a qualified privilege occasion. Managers must be able to make frank comments in performance appraisals. Ms Opai will be able to establish liability only by rebutting the defence under s 19 of the Defamation Act by proving that Mr Culpan was predominantly motivated by ill will towards her or otherwise took improper advantage of the occasion. In the circumstances of the performance appraisal that is implausible. That is because there are more positive statements about Ms Opai’s performance than the parts she objects to. As examples:
Melissa has ensured her section give all customers appropriate prevention advice as a matter of course.
Melissa has a sense of duty and responsibility to police she actively promotes the police values within the work group.
Melissa has embedded Service Excellence within her section. The section has a clear Service Excellence ethos.
73 Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 (CA) at 33.
74 Defamation Act 1992, s 28.
Melissa possesses the required skills to perform at a high level. She has undertaken to develop her IDP with the O/C Station. Melissa is a NIA trainer and as such has been used to train various casual staff all of who have obtained fulltime employment.
Melissa holds the portfolio for maintaining and updating the operational procedures manual which is a credit to her tenacity and organisational prowess. It has been adopted as best practice by the Upper North area and is being viewed by police as a base best practice document.
[90] The author of those statements obviously bore her no ill will. The replacement of the first draft after Ms Opai complained, which shows a willingness to reconsider, also makes a finding of ill will improbable. Giving Ms Opai the opportunity to show that Mr Culpan was malicious is Jameel disproportionate. Her
claim based on the performance appraisal should be struck out.75
[91] The fourth matter is the complaint about timekeeping in the diary notes. Above I did not accept that the words allege dishonesty, but I left it open for the pleading to be amended to allege some other meaning. A non-specific complaint about timekeeping may mean nothing more serious than that Ms Opai is a poor timekeeper. But if that is all that Ms Opai can allege, the matter is trivial. By itself it would not warrant a hearing in the Disputes Tribunal, let alone this court. Even if Ms Opai were to get over the qualified privilege defence and to establish liability for defamation, the effort of proving it would not be worthwhile. Leaving this matter in is Jameel disproportionate. It should be struck out.
[92] The remaining parts of Ms Opai’s case are the allegations about the briefing paper, the 258 report and the comment in the diary note about scuttling enrolments. Those statements arguably stand to injure her employment reputation more than trivially. The reading audience was not in her camp, but people in authority who could influence her employment. As establishing liability will require her to overcome defences of honest opinion and qualified privilege, her case is far from straightforward. But given the cautious approach required under Jameel, I cannot
say that pursuing these claims in this court is disproportionate.
75 For a similar finding in like circumstances, see Crossland v Wilkinson Hardware Stores Ltd
[2005] EWHC 481 (QB).
Form of amended statement of claim
[93] The defendants object to the form of Ms Opai’s current statement of claim because she has combined four defamatory statements in a single cause of action against Mr Culpan and in a second cause of action against the Attorney General. There is one prayer for relief for each cause of action. They say that each defamatory statement should have its own distinct pleaded cause of action with a separate prayer for relief. In support they rely on section 7 of the Defamation Act:
7 Single publication to constitute one cause of action
Proceedings for defamation based on a single publication constitute one cause of action, no matter how many imputations the published matter contains.
[94] They cite r 5.17(1) of the High Court Rules, under which distinct causes of action and distinct grounds of defence founded on separate and distinct facts must if possible be stated separately and clearly, and r 5.27(2), which requires that a statement of claim with two or more causes of action must specify separately the relief or remedy sought for each cause of action immediately after pleading that cause of action.
[95] In Wishart v Murray Courtney J reviewed authorities on defamation pleadings that combine more than one publication in a cause of action and said:76
It can be seen from these cases that, in determining whether multiple statements by the same author can properly be seen as a single publication, there is no rigid dividing line between categories and reasonable minds may differ. It is generally for the plaintiff to select how to present a case and it will only be if the plaintiff’s choice is so untenable or so unfair as to warrant striking out that the courts will intervene. The relevant considerations are:
(a) where the case concerns related materials published by the defendant on different occasions, and it is clear that the defendant intended for the material to be read together or the materials contain internal references to each other so that the reader may reasonably be expected to read it together;
(b) the diversity of the content contained in each of the related materials and whether the same or different imputations must be pleaded for each;
76 Wishart v Murray [2015] NZHC 3363, [2016] 2 NZLR 565 at [21].
(c) whether the related materials were published to the same or different people.
[96] The defendants say that under those considerations Ms Opai cannot justify combining all the statements within a single cause of action.
[97] The defendants’ submission is pedantic: possibly technically correct, but otherwise without merit. Both r 5.17(1) (“must if possible be stated separately”) and the cases Courtney J referred to allow for flexibility. The purpose of requiring separate causes of action to be stated discretely is to ensure a plaintiff’s various claims are distinctly and adequately identified and to allow a defendant to respond separately to each of them. It allows the pleadings to identify the issues for the parties and the court. In practice there is not rigid adherence to separating causes of action in many proceedings. For example, in building defects cases, each defect may arguably give rise to a distinct cause of action, but defects are invariably pleaded in
combination as part of a single cause of action.77 A director who is alleged to have
misappropriated sums of money from a company over a period will typically be required to plead to a statement of claim which combines all the defalcations into one cause of action. In this respect I see no greater requirement for formality for a defamation pleading than for claims in other areas of the law. It is a frequent complaint that defamation law is unduly technical. This aspect need not add to it.
[98] Despite their complaints, the defendants cannot be prejudiced by the form of pleading. Ms Opai’s allegations in respect of each statement are appropriately separately pleaded under r 5.17 in such a way that the defendants have been able to respond to them by setting out distinct affirmative defences for each alleged publication.
[99] The defendants say that Ms Opai ought to have claimed separate sums for her damages for each publication, but that is not required here. If Ms Opai succeeds on more than one publication, the judge will not assess the damage for each publication
separately but will instead give one overall award to cover damage caused by those
77 Indeed fresh damage originating from an existing defect may give a new cause of action: Mount
Albert Borough Council v Johnson [1979] 2 NZLR 234 (CA) at 243.
statements for which there is liability. The damages will be assessed for their
cumulative effect. Ms Opai’s prayers for relief reflect this understanding.
[100] For the above reasons, this part of the defendants’ applications fails. In her new statement of claim Ms Opai will not be required to plead separate causes of action for the publications which remain in issue.
The Attorney-General’s objection to Ms Opai’s notice under s 39 of the
Defamation Act
[101] Ms Opai has given a notice under s 39 of the Defamation Act in response to the defences of honest opinion of both defendants. The Crown says that her response to its defence is misdirected. For that it is necessary to understand how the honest opinion defence applies in the context of the Crown’s vicarious liability under s 6(1) of the Crown Proceedings Act 1950. Section 10 of the Defamation Act says:
10 Opinion must be genuine
(1) In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is the author of the matter containing the opinion shall fail unless the defendant proves that the opinion expressed was the defendant's genuine opinion.
(2) In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,—
(a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that—
(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and
(ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion:
(b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that—
(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and
(ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion.
(3) A defence of honest opinion shall not fail because the defendant was motivated by malice.
[102] A defendant runs a genuine opinion defence on the basis that, but for the opinion, they would otherwise be liable. As s 10 recognises, defendants may be authors or non-authors of the alleged defamatory publication. Section 10(1) applies to authors – they must prove that their own opinion is genuine. Section 10(2) applies to defendants who are non-authors. Their defence applies variously according to whether the author is or is not the defendant’s employee or agent. But it assumes that the defendant would otherwise be liable because of their own actions, as by publishing the defamatory statement. That is shown by the recognition that a defendant may be otherwise liable for matters authored by those who are not employees or agents of the defendant (s 10(2)(b)) and by agents (s 10(2)(a), for whom there may not be vicarious liability. For defendants to face liability for defamation regardless of any relationship with the author, they must have done something tortious themselves.
[103] For the defences under s 10(2) it is necessary to show a relevant state of mind of a defendant at a particular time. Under subsection (a) the defendant needs to show that the opinion expressed is not its own, but that it believed it to be the genuine opinion of the employee/agent author. Under (b) it needs to show that the opinion was not its own or that of any employee or agent, and that it had no reasonable cause to believe that the opinion was not the author’s genuine opinion. The relevant time of the defendant’s beliefs is before or at the time of the events giving rise to liability. Beliefs formed after the publication are irrelevant. In the case of corporate defendants, it is necessary to attribute to the defendant the beliefs of someone inside the organisation, presumably the person who authorises or does the acts giving rise to liability. But it would not make any sense to inquire into the beliefs of a defendant whose own conduct is irrelevant to its liability for defamation.
[104] Accordingly s 10(2) does not apply to a defendant whose own conduct does not give rise to liability, but is sued only for vicarious liability because of the tortious conduct of its employees. Given that the Crown can do no wrong,78 it cannot be sued for publishing defamatory statements itself, but only for defamation by its servants.79 Because the Crown is being sued only in respect of torts alleged to have been committed by one of its servants, Mr Culpan, but not in respect of its own actions, it is entitled to defend Ms Opai’s claim on the basis of any defence available to Mr Culpan. The Attorney-General is accordingly entitled to run a defence under s
10(1) on the basis that Mr Culpan genuinely held his stated opinions. But it cannot run an opinion defence under s 10(2) because that section does not apply. This means that in this case the Attorney-General is the defendant under s 10(1), even though he is not the actual author. That results from a purposive rather than a literal interpretation of s 10.80
[105] The Attorney-General has used this formula in pleading his honest opinion defences:
Insofar as the words set out in paragraph…of the amended statement of claim are expressions of opinion the opinion in its context and in the circumstances of its publication did not purport to be the opinion of the second defendant and the second defendant believed that the opinion was the genuine opinion of the first defendant.
[106] That relies on s 10(2)(a). It presupposes that it is possible to prove the Crown’s belief as to the genuineness of Mr Culpan’s opinion. But given the corporate nature of the Crown, it is not possible to establish whose beliefs within the Crown are to be attributed to it. There are no relevant acts of the Crown that expose it to tortious liability, only Mr Culpan’s. Any beliefs by others within the Crown as to the genuineness of his beliefs can only have been formed after the event and are irrelevant. If he wishes to run honest opinion defences, the Attorney-General needs to do so under s10(1) and prove that Mr Culpan stated his genuine opinion in the publications. What others in the Police may have thought of them afterwards does
not matter for the honest opinion defences.
78 Stephen Todd (general ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [23.1].
79 Crown Proceedings Act 1950, s 6(1).
80 Interpretation Act 1999, s 5.
[107] In her notice under s 39 of the Defamation Act, Ms Opai has pleaded that the opinions stated in the statements of defence of Mr Culpan are respectively not the genuine opinions of Mr Culpan and not the genuine opinions of the Crown at the time of publication. The Attorney-General has taken Ms Opai to task on this. He says that under s 39(1)(b)(ii) and 39(2) she has to allege and give particulars that the Crown had reasonable cause to believe that the opinions stated were not Mr Culpan’s genuine opinions. To understand that, here is s 39:
39 Notice of allegation that opinion not genuinely held
(1) In any proceedings for defamation, where—
(a) the defendant relies on a defence of honest opinion; and
(b) the plaintiff intends to allege, in relation to any opinion contained in the matter that is the subject of the proceedings,—
(i) where the opinion is that of the defendant, that the opinion was not the genuine opinion of the defendant; or
(ii) where the opinion is that of a person other than the defendant, that the defendant had reasonable cause to believe that the opinion was not the genuine opinion of that person,—
the plaintiff shall serve on the defendant a notice to that effect.
(2) If the plaintiff intends to rely on any particular facts or circumstances in support of any allegation to which subsection (1)(b)(i) or (ii) applies, the notice required by that subsection shall include particulars specifying those facts and circumstances.
(3) The notice required by subsection (1) shall be served on the defendant within 10 working days after the defendant's statement of defence is served on the plaintiff, or within such further time as the court may allow on application made to it for that purpose either before or after the expiration of those 10 working days.
Mr Woods took the bait. For the hearing he tendered a draft amended notice which pleaded that the Crown had reasonable cause to believe within s 39(1)(b)(ii).
[108] For the reasons I have given, the Attorney-General’s objection is misconceived because he has mistakenly relied on s 10(2)(a) instead of s 10(1). If he intends to run a genuine opinion defence he will need to plead and prove that
Mr Culpan stated his genuine opinions. If Ms Opai wishes to rebut that she will be able to give a notice under s 39(1)(b)(i) that Mr Culpan did not genuinely hold the opinions he expressed. The matters she set out in response to Mr Culpan’s statement of defence may apply equally to the Crown’s honest opinion defence.
[109] The Attorney-General’s objection to Ms Opai’s notice under s 39 has misfired. Instead the Attorney-General will be required to replead his honest opinion defences and Ms Opai will give a new s 39 notice.
The Attorney-General’s objection to Ms Opai’s notice under s 41 of the
Defamation Act
[110] The Attorney-General objects to Ms Opai’s notice under s 41 of the Defamation Act, but that fails for much the same reasons as his objection to her s 39 notice. As noted above Mr Culpan appears to have made the statements on qualified privilege occasions, a defence saved under s 16(3) of the Defamation Act. Section
19 of the Defamation Act allows a plaintiff to rebut a defence of qualified privilege:
19 Rebuttal of qualified privilege
(1) In any proceedings for defamation, a defence of qualified privilege shall fail if the plaintiff proves that, in publishing the matter that is the subject of the proceedings, the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication.
(2) Subject to subsection (1), a defence of qualified privilege shall not fail because the defendant was motivated by malice.
[111] A plaintiff intending to rebut that defence must give a notice under s 41:
41 Particulars of ill will
(1) Where, in any proceedings for defamation,—
(a) the defendant relies on a defence of qualified privilege; and
(b) the plaintiff intends to allege that the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication,—
the plaintiff shall serve on the defendant a notice to that effect.
(2) If the plaintiff intends to rely on any particular facts or circumstances in support of that allegation, the notice required by subsection (1) shall include particulars specifying those facts and circumstances.
…
[112] In her notice under s 41 Ms Opai has pleaded that Mr Culpan was predominantly motivated by ill-will towards her or otherwise took improper advantage of the occasion. The Attorney-General’s objection is that her notice addresses only Mr Culpan’s motivation, but is not directed at him. It says that her notice should be struck out insofar as it applies to the Attorney-General.
[113] That argument applies an over-literal interpretation of s 41 and misunderstands the Crown’s vicarious liability. Because the Crown is generally immune from tort claims, it cannot be sued for its own defamatory publications. It can only be sued for defamation by its servants. In defending a claim for which it is vicariously liable, it may raise any defence which the liable servant may raise. When invoking defences available to its servants, its position is no stronger than its servants’. In a defamation proceeding it may plead qualified privilege if its servant made the publication on a privileged occasion. But if the servant bore ill-will or abused the occasion, the Crown’s qualified privilege defence also fails. It is not necessary or possible for a plaintiff to plead or prove that the Crown itself bore ill will towards him or her.
Ms Opai’s application against Attorney-General’s pleading
[114] Ms Opai attacks two parts of the Attorney-General’s statement of defence. One goes to whether the Attorney-General has put truth in issue in his defence to the claim on the 258 report. The other is about what particulars can be given for the qualified privilege for the performance appraisal. As the claim on the performance appraisal has now gone, I shall deal with that only briefly, in case this decision is reviewed.
Pleading of the 258 report
[115] Ms Opai’s pleading on the briefing paper relevantly says:
32 The 258 Report Form contained the statement set out below, which
was as a whole false and defamatory of the Plaintiff as follows:…
[the paragraph sets out the text Ms Opai complains about, almost the whole of the report].
33 A copy of the 258 Report Form is attached hereto as Annexure 3.
The Plaintiff relies on the 258 Report Form in its entirety.
34 In their natural and ordinary meaning the statements contained in the
258 Report Form, referred to in paragraph 32 above, were, as a whole, false and defamatory of the Plaintiff in that they meant or
were intended to mean that:…
[the paragraph sets out the pleaded meanings]
[116] The statement of defence says in response:
32 He admits that the 258 report form contained the statements set out in paragraph 32 and relies on the 258 report form in its entirety appraisal (sic) for its full terms and effects but in all other respects denies paragraph 32.
33 He admits paragraph 33.
34 He denies paragraph 34.
While the defences to the 258 report form include honest opinion and qualified privilege, the Attorney-General has not expressly pleaded truth as a defence.
[117] Ms Opai says that by denying the falsity of the statements the Attorney- General must be asserting that they are true and accordingly he can be required to give particulars under s 38 of the Defamation Act:
In any proceedings for defamation, where the defendant alleges that, in so far as the matter that is the subject of the proceedings consists of statements of fact, it is true in substance and in fact, and, so far as it consists of an expression of opinion, it is honest opinion, the defendant shall give particulars specifying—
(a) the statements that the defendant alleges are statements of fact; and
(b) the facts and circumstances on which the defendant relies in support of the allegation that those statements are true.
[118] The matter needs to be considered against traditional practice for pleading defamation. In the past it was standard to plead that the defendant published the offending words “falsely and maliciously”. That pleading did not by itself add anything to what the plaintiff had to prove to establish a prima facie case for liability. If the defendant wanted to defend on the basis that the statements were true, the
defendant had to plead that defence expressly and to prove it. In other words the plea of falsely publishing reflected a presumption that goes in favour of any plaintiff suing in defamation. A simple denial by the defendant did not by itself put falsity in issue. Similarly malice only becomes in issue when it can be raised in rebuttal of an affirmative defence, as in qualified privilege.
[119] The Defamation Act reflects this standard practice. Section 37(1) says:
37 Particulars of defamatory meaning
(1) In any proceedings for defamation, the plaintiff shall give particulars specifying every statement that the plaintiff alleges to be defamatory and untrue in the matter that is the subject of the proceedings.
(Emphasis added)
And under s 8, truth (formerly called justification) remains an affirmative defence to be pleaded and proved by the defendant. Under s 38 a defendant is required to give particulars of a truth defence.
[120] Ms Opai’s pleading of “false and defamatory” is to be read in light of this practice. The Attorney-General’s denials have not put falsity in issue. Particulars of a truth defence are therefore not required under s 38.
[121] At the same time it may be noted it is no longer necessary to use the formula “falsely and maliciously” and variations of it. Gatley on Libel and Slander is against the practice:81
The practice in a libel and slander claim of alleging that the defendant published the words “falsely and maliciously” is archaic and should not be used. The modern practice is to plead simply that the defendant published “the following words defamatory of the claimant”, thus indicating beyond doubt that the claim is brought in defamation.
That is good advice and I do not see why it cannot be followed in New Zealand. Section 37 does not stand in the way. It is directed at pleading requirements for
meaning and does not require falsity to be pleaded expressly.
81 Mullis and Parkes (eds), above n 16, at [26.10] (footnotes omitted).
Pleading of qualified privilege on performance appraisal
[122] As noted above, this matter is strictly not necessary to the decision, given that the claim on the performance appraisal is to be struck out as Jameel disproportionate.
[123] In response to Ms Opai’s plea that Mr Culpan wrote the performance appraisal in July 2013, the Attorney-General has pleaded numerous particulars describing the performance appraisal process beginning in February 2013 and ending in April 2014. In its qualified privilege defence, it relies on all those particulars. Ms Opai’s complaint is that only the events up to the publication of the appraisal in July
2013 can be relevant to the qualified privilege defence. An occasion does not become privileged by reason of events that take place later.
[124] The Attorney-General’s response is that the particulars give fair notice of the facts he intends to prove at trial and the events after July 2013 are relevant as putting the appraisal into context.
[125] In my judgment the matter does not warrant strike out, even if the claim on the performance appraisal were to stay in. The pleading is helpful in setting out the facts the Attorney-General intends to prove and those facts are relevant as putting the appraisal in context. Events after publication may show all the circumstances relevant to establishing the privileged occasion. The Attorney-General should not be barred from pleading and proving them.
Outcome
[126] There is no basis for staying this proceeding while Ms Opai first takes proceedings against her employer in the employment institutions. It is disproportionate for Ms Opai to sue both Mr Culpan and the Attorney-General. She can obtain adequate redress by suing only the Attorney-General. Ms Opai’s claim in respect of the 2013 performance appraisal is struck out as Jameel disproportionate. While she generally has an arguable case for the briefing paper, the statements are not reasonably capable of meaning that she is unfit to hold office. She may amend
that part of her claim to allege an alternative meaning. The 258 report does not arguably mean that she committed a crime of stealing time, but she may amend to plead another meaning. Her claim in respect of the report is otherwise arguable. The diary note as to her scuttling enrolments is not reasonably capable of meaning that she generally acts maliciously towards others, but may support a lesser meaning which Ms Opai may set out in an amended pleading. Her claim in respect of the “Complaints about timekeeping” is Jameel disproportionate. Her statement of claim may include allegations in terms of her “Malevolent campaign to vilify” as being relevant to her claim for aggravated damages. Her claim for exemplary damages against the Attorney-General is not arguable. She does not need to plead separate causes of action for each publication she sues on. The Attorney-General has misconceived his honest opinion defences. He will need to plead and prove that Mr Culpan genuinely held the opinions he expressed. His own beliefs are irrelevant. Ms Opai may rebut the Attorney-General’s qualified privilege defence by showing ill use or improper use of the occasion by Mr Culpan. She does not need to prove malice by the Attorney-General. The Attorney-General has not put truth in issue in its defence (except to the extent required for any honest opinion defence) and is not required to give particulars of a truth defence.
[127] Given the extensive matters covered in this decision and the closeness of the Christmas break, it is appropriate to extend time to apply for a review under r 2.3(2) of the High Court Rules.
[128] I make these orders:
(a) Mr Culpan’s application for a stay is dismissed;
(b)Mr Culpan is removed as a defendant and the cause of action against him is struck out;
(c) Ms Opai’s claim on the performance appraisal is struck out;
(d)Ms Opai’s plea that the briefing paper meant that she is unfit for office is struck out, but without prejudice to her amending to plead an alternative meaning;
(e) Ms Opai’s plea that the 258 report meant that she committed a crime of stealing time is struck out, but without prejudice to her amending to plead an alternative meaning;
(f) Ms Opai’s plea that the “scuttling enrolments” diary note means that she acts maliciously towards others is struck out, but without prejudice to her amending to plead an alternative meaning;
(g) Ms Opai’s claim as to “complaints about timekeeping” is struck out;
(h)Ms Opai’s claim for exemplary damages against the Attorney-General is struck out;
(i)The Attorney-General’s application to strike out Ms Opai’s notice under s 39 of the Defamation Act is dismissed, but without prejudice to the Attorney-General amending to bring his honest opinion defences under s 10(1) of the Defamation Act;
(j) The Attorney-General’s application to strike out Ms Opai’s notice
under s 41 of the Defamation Act is dismissed;
(k)Ms Opai’s application against the Attorney-General for further particulars of defence is struck out;
(l)By 27 January 2017 Ms Opai is to file and serve an amended statement of claim that takes into account the findings in this decision;
(m)By 24 February 2017 the Attorney-General is to file and serve a statement of defence to that new statement of claim;
(n)By 10 March 2017 Ms Opai is to file and serve any reply and notices under ss 39 and 41 of the Defamation Act;
(o)The Registrar is to allocate a further telephone case management conference for a date after 10 March 2017. The purpose of the conference will be to give further directions, including as to delivery of evidence and hearing;
(p) The time for applying for a review of this decision is extended to 20
January 2017;
(q) If the parties cannot agree costs, I shall decide costs on the papers.
Those parties seeking costs are to file and serve their memoranda by
20 January 2017. Submissions in response are to be filed and served by 27 January 2017; and
(r) Leave is reserved to apply for further directions.
………………………………….
Associate Judge Bell
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