Sellman v Slater
[2021] NZHC 349
•2 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-1312
[2021] NZHC 349
UNDER The Defamation Act 1992 BETWEEN
JOHN DOUGLAS SELLMAN
First Plaintiff
BOYD ANTHONY SWINBURN
Second Plaintiff
SHANE KAWENATA FREDERICK BRADBROOK
Third Plaintiff
AND
CAMERON SLATER
First Defendant Continued over
Hearing: 1 March 2021 Appearances:
J Cundy D Salmon and D Nilsson for Plaintiffs (by telephone) No appearance by First Defendant
C Patterson and E Grove for Second and Third Defendants (by telephone)
J Miles QC and T Goatley for non-party BAT G Espinor – RNZ representative (with leave) D Fisher – NZME representative (with leave)
M Johnstone – NZ Doctor representative (with leave) A Braae – The Spinoff representative (with leave)
Judgment:
2 March 2021
JUDGMENT OF WALKER J
(Media access applications by Spinoff, RNZ, NZ Doctor and NZME)
This judgment was delivered by me on Tuesday 2 March 2020 at 5.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:………………………….
CARRICK DOUGLAS MONTROSE
Second Defendant
FACILITATE COMMUNICATIONS LIMITED
Third Defendant
Introduction
[1] The trial of this longstanding defamation claim was due to commence on 1 March 2021. It has been deferred for two days to enable practical arrangements to be put in place to accommodate the Alert Level 3 status in Auckland.1 In the interim, several pre-trial matters are to be dealt with. One of these is the present application by various media for access to the court file and in-court media coverage by way of photographs and sound recording.
[2] The plaintiffs are public health professionals. They allege they have been defamed in a series of blog posts by Cameron Slater and comments which they assert were published by Carrick Graham on the Whale Oil website. The plaintiffs sue Mr Slater, Mr Graham and Mr Graham’s former company, Facilitate Communications Limited (“FCL”).
[3] The first defendant, Mr Slater, has consented to judgment being entered against him. He did not take part in this hearing.
[4] Two other defendants previously joined to the proceeding have now settled the issues as between them. The plaintiffs were granted leave to discontinue against those parties.
[5] The applications by media request access to the court file generally but also specifically to:
(a)the opening presented by counsel;
(b)submissions;
(c)minutes on the file to date;
(d)pleadings;
(e)briefs of evidence; and
1 Government announcement effective from 6 am 28 February 2021.
(f)notes of evidence, including notes of evidence from a previously held oral examination of Mr Slater and Mr Graham on 17 July 2020.
[6] At a telephone hearing convened for the purpose, I heard from representatives of The Spinoff, NZ Doctor, RNZ and NZME. I also heard from counsel for the plaintiffs and second and third defendants and counsel for British American Tobacco (New Zealand) Limited (“BAT”). BAT is not a party to the proceeding. However, the plaintiffs served a subpoena on BAT for the purpose of producing certain specified documents at trial. BAT has filed an interlocutory application to set aside the subpoena (“BAT Application”).
[7] The status of that application is not yet known. It is possible that it will not proceed at all since it depends on the outcome of other applications. It is unnecessary to traverse the reasons here. Nonetheless, I accept that BAT has a limited interest in the applications by media. I therefore permitted Mr Miles QC and Ms Goatley to be heard in opposition to the media application.
[8] At a general level, there is no opposition to the applications to take photographs and record sound at trial. This is subject to the submissions advanced by the second and third defendants to constrain the scope of in-court reporting of certain contested matters. I deal with this aspect later in my judgment. The focus of this judgment is on the applications for access to the court file.
Background
[9] The context of this proceeding is set out in the judgment of Palmer J dated 2 October 2017. I largely adopt that description for the purposes of providing a backdrop to this judgment.
[10] The plaintiffs allege that the defendants defamed them in multiple blog posts on the Whale Oil website and in comments to the posts from 3 November 2009 to 23 February 2016.2 They say that Mr Slater published the posts but Mr Graham authored one of them, authored, commissioned or procured Mr Slater to publish the others and
2 The plaintiffs assert the material remained accessible on the website for a longer period.
authored and published the comments on the posts himself. The plaintiffs also say that Mr Graham’s involvement was concealed and could not reasonably have been known until the publication of the book “Dirty Politics” by Nicky Hager on 13 August 2014. They say that Mr Graham and FCL paid Mr Slater to publish the posts and that Mr Graham/FCL were in turn paid by their clients to publish the posts.
[11] The plaintiffs seek general damages, aggravated and punitive damages and costs.
[12] The second and third defendants deny the allegations including denial that the publications bear the pleaded defamatory meanings. They also offer several affirmative defences including that some of the causes of action are time-barred, all statements are true and/or honest opinion and all statements are protected by the defence of public interest communication.3
[13] The plaintiffs in turn reply that if held to be expressions of opinion (which is denied), the opinions were not genuinely held. Likewise, if they attract protection as public interest communications, the defendants were motivated by ill-will or otherwise took improper advantage of the occasion of publication thus removing any protection afforded by the common law.
Relevant principles
[14] This application is governed by s 173(1) of the Senior Courts Act 2016 and the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Rule 8(1) provides:4
Every person has a right to access the “formal court record” relating to a civil proceeding, which, under r 4, includes judgments, orders and minutes by a judge.
[15] The rules require me to consider the nature of, and the reasons for, a request for other information. My consideration must take into account:5
3 See Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131.
4 See Donaldson v Chiswell [2019] NZHC 3083 at [5] and Senior Courts (Access to Court Documents) Rules 2017, rr4 and 8.
5 Rule 12.
(a)the orderly and fair administration of justice:
…
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
…
(h) any other matter that the Judge thinks appropriate.
[16] The starting point for any application for access are the twin principles of open justice and the freedom to seek, receive and impart information guaranteed by s 14 of the New Zealand Bill of Rights Act 1990. Freedom of expression is subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.6
The arguments
[17] The plaintiffs and defendants take different positions in respect of the applications for access. The plaintiffs do not oppose any aspect of the applications. Mr Salmon submits there is no sensitivity in respect of the court file. He says that all the issues have already been publicly paraded and reported on.
[18] Bearing on that submission is the fact that there have already been nine interlocutory judgments delivered and 26 minutes issued by Palmer J dealing with procedural aspects of weight. With the exception of one judgment delivered on 2 October 2017 (“October Judgment”) I am not aware of any publication restrictions in place and none have been advised to me by counsel. The exception is the October judgment of Palmer J and reporting relating to a party’s medical condition. The
6 New Zealand Bill of Rights Act 1990, s 5.
October judgment included an order prohibiting publication of the contents of the alleged defamatory statements until final disposition of trial at the request of the parties. The reason was the proceeding could be the subject of a jury trial and it was important that a juror’s mind not be prejudiced. Of course, the trial is now a Judge alone trial and so the stated reason for that reporting restriction has fallen away.
[19] I accept Mr Salmon’s submission that there has already been much media interest in the proceeding and reporting along the way including as to the connection between the allegations in this proceeding and the assertions in Mr Hager’s book.
[20] The second and third defendants focus their opposition on two issues. First, they oppose access to the court file by The Spinoff on the grounds of a commercial connection between the second plaintiff and sponsorship of The Spinoff by the University of Otago which employs the second plaintiff. Secondly, they oppose access by any media to certain documents. Those documents are the subject of a challenge by the second and third defendants who argue that while the “Dirty Politics” allegations are in the public domain, the evidential basis that the plaintiffs say supports their allegations is not in the public domain.
[21] In particular, the second and third defendants refer to PDF files created or saved on around 18 July 2016 apparently provided to the plaintiffs by Mr Hager through his counsel. They submit that the plaintiffs had asked Mr Hager for documents provided to him by a hacker known as “Rawshark”. Instead, the documents provided by Mr Hager were described as from “another party.” No metadata was provided to enable the original creator of the documents to be identified.
[22] Mr Patterson refers to seven spreadsheets which purport to contain email and IP addresses relating to certain comments posted on the blogs at issue. He describes these as unattributed and unauthenticated. Mr Hager is not apparently to be a witness in the trial. Mr Patterson is critical that no-one with primary knowledge is being called to give evidence as to when, how, by whom and why these spreadsheets were created yet the plaintiffs’ expert witness intends to rely on these spreadsheets to opine that the posts at issue were made by the second and third defendants. His concern is that media
will report this as a matter of expert evidence before any decision is made as to whether any such evidence is admissible at all.
[23] Mr Patterson submits that there is or will be nothing before the Court to establish that the documents are what they purport to be. There is no evidence that these documents were in fact ever “hacked” or are the same documents that Mr Hager relied on in “Dirty Politics”. In short, while no one disputes that some form of hack of Mr Slater occurred well prior to August 2014, there is nothing to show that the material the plaintiffs now rely on comprises that hacked material.
[24] He expresses the concern that any media reporting will generate misapprehension about the nature of this material before the authenticity and related admissibility objections are determined. He cites as an example of the capacity for misapprehension, my minute issued 1 March 2021. That minute refers to documents obtained by a “third party hack” of Mr Slater’s computer files.7
[25] Mr Patterson also signals a hearsay challenge to portions of the plaintiffs’ brief of evidence which refer to extracts from the book “Dirty Politics”. He submits:
…the Plaintiffs’ statements in relation to Dirty Politics will be reported and will give additional credibility to the allegations contained in Dirty Politics by virtue of the statements having been made in legal proceedings, only for all such statements and/or reliance upon Dirty Politics to ultimately be held to be hearsay.
[26] Mr Patterson submits that the proper course if media is granted access is that an interim condition be imposed that, until the Court has determined the admissibility, authenticity and/or weight issues there should not be any access to the materials obtained from Mr Hager nor any reporting of witness allegations that rely on such materials.
7 Mr Slater, the first defendant, previously applied for an order that all the documents the plaintiffs obtained from Mr Hager or from publications by Rawshark be excluded as evidence at trial. The grounds were that the documents are not authentic and their use without providing the originals of the documents constitutes an abuse of process. Mr Graham and FCL supported that application. Palmer declined. He stated “I decline Mr Slater’s application to exclude hacked documents obtained by the plaintiffs from Mr Nicky Hager at this stage of the proceeding because the evidence does not satisfy me they are inauthentic and they appear relevant to the applications about discovery. See Sellman v Slater [2018] NZHC 3057.
[27] BAT’s interest in the media applications is naturally limited to its application to set aside the subpoena. Mr Miles QC submits that the question of media access is premature. The application has not yet been brought on for hearing and there is a reasonable degree of likelihood that either the subpoena may not be enforced against BAT or the application becomes otiose because of other procedural issues. As such, Mr Miles submits that confidentiality and privacy concerns weigh more heavily in the balance at this point in time and there is no legitimate public interest in media access to documents filed in an interlocutory matter involving a non-party which remains unheard at the present time.
[28] Each of the media representatives argued the media has a genuine and proper interest in being permitted to search the court file and to have access to the documents because of their duty to fairly and accurately report on issues of legitimate public interest. They submit that there is a high level of public interest in this proceeding because of its nature and because of previous publicity of the underlying issues. They rely on the principles of freedom of expression and open justice to enable full, detailed and balanced reporting.
[29] Mr Braae for The Spinoff argued that the second and defendants mischaracterised the relationship between the plaintiffs and The Spinoff. Publication of articles by Professor Swinburn were in his capacity as a public academic in the same way that other media published such articles in the same time period. Sponsorship of The Spinoff implied no editorial or other control but is a factor of the new funding model relied on by media in place of advertisers.
Discussion
[30] It is material that the substantive hearing is about to commence (and indeed would have commenced but for the Alert Level 3 declaration). This means that open justice has greater weight than at other stages of the proceeding. I accept there is a public interest in the availability of information about this proceeding. This is due to the nature of the proceeding, the underlying allegations and the issues at stake. The second and third defendants themselves plead the defence of publication on matters of public interest in respect of the publications which are sued on.
[31] The proceeding is open to the public but that does not mean that the public attends. At this time there are practical difficulties in the public and media attending given the Covid-19 restrictions. Arrangements are being made to ensure that the proceedings will be seen by media via VMR. Some media, albeit restricted, may be able to physically attend subject to protocols to ensure the protection of all participants.
[32] The principle of open justice does not just apply to oral hearings held in public. Civil litigation today generates a great deal of written material placed before the court in the place of reliance on oral argument and oral evidence. It would pay lip service to the principle of open justice if access to material on a court file was unnecessarily circumscribed. Access enhances accurate reporting which in turn serves the public interest.
[33] This does not mean there is any presumption of disclosure or access but” [w]hen a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary”.8
[34] I reject the suggestion of implicit or explicit bias on the part of The Spinoff by dint of a commercial relationship. First, the mere publication of op-ed pieces by one of the plaintiffs in the past is of no moment. Secondly, there is nothing in the material presented to me which suggests that being a sponsor of media influences news reporting on that platform. I accept that sponsorship is the underlying reality of media funding in today’s environment and is analogous to advertising in the analogue media environment. The Spinoff is subject to the same fairness and balanced reporting imperatives as other media. I treat its application in the same vein as the applications by other media.
[35] None of the parties oppose access to the pleadings, opening submissions, briefs of evidence, notes of evidence and closing submissions in principle. But, the second
8 Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petrόleo [2017] NZCA 490, [2017] NZAR 1617 at [22] and [25]. See also Eurekly Ltd v Crimson Consulting Ltd [2019] NZHC 972 at [5].
and third defendants argue that there should be no access to the Hager sourced material or some form of restriction on reporting on that material until resolution of the authentication issues.
[36] I am not persuaded that there are strong reasons to restrict access in the manner argued by the second and third defendants. The very nature of a trial is to test disputed evidence and to determine which evidence is reliable and the weight to be accorded to it. The particular issue relating to the identified Hager sourced material is conceptually different from a typical admissibility argument where the outcome is that the challenged evidence does not see the light of day. Here, it appears that this material is an integral part of the plaintiff’s case on the question of responsibility for or participation in the alleged defamation. The second and third defendants deny responsibility for publication. They impugn the authenticity of the material. This is a critical part of the claim and defence which the media is entitled to report.
[37] Mr Patterson’s position would be an unwarranted constraint on reporting – a form of prior restraint until resolution of the question of whether the material is authentic.
[38] I note too for completeness that media must report proceedings in this Court fairly and accurately to attract qualified privilege protection. Depending on context, a fair and accurate report could well be expected to identify the contest in respect of this material but it is not for the Court to direct or interfere with the editorial decisions exercised by media on a daily basis.
[39] On a practical level, the briefs of evidence are only initial prepared statements. They are not evidence until read in court or the evidence is given by some alternative means. I do not propose to grant access to the briefs until the brief is read in court and any challenges to admissibility of any part (if any) are ruled on. It may be that parts of the briefs will have to be redacted subject to those rulings. The notes of evidence should be available since they supplement and sometimes alter evidence-in-chief. It is important that the media remains cognisant of the relationship between evidence- in-chief, cross-examination and re-examination.
[40] I therefore direct the Registry to make the notes of evidence available to the media applicants when they are complete. If there are any matters raised in the notes of evidence which involve particular privacy or commercial confidentiality concerns, the parties may raise these as and when they arise.
[41] For the avoidance of doubt, this judgment does not deal specifically with access to the many documents which are currently in the electronic bundles. Those are not evidence yet and may not yet become evidence. They do not become evidence if not referred to by counsel (other than in closing) or by a witness or if objected to and ruled inadmissible.9 There is therefore no blanket access to the electronic bundle. If particular documents mentioned in a brief or in openings are sought by media, they may ask for access. There would need to be good reason for access not to be granted. None has yet been advanced.
Result
[42]Accordingly, all the media applicants are entitled to:
(a)the current pleadings between the plaintiffs and first to third defendants inclusive (and not at this stage the interlocutory application by BAT to set aside the subpoena and supporting evidence);10
(b)the parties’ opening submissions once delivered;
(c)the briefs of evidence of any witness, subject to redactions to remove any material ruled inadmissible, once the witnesses’ evidence is given;
(d)the notes of evidence in the trial once complete and notes of evidence from the oral examination of Mr Slater and Mr Graham; and
(e)the closing submissions when delivered.
9 High Court Rules 2016, r 9.5(4).
10 Any application to access to the BAT material is deferred to the hearing of the interlocutory application by BAT. Insofar as earlier pleadings involved other defendants, they are not available to be accessed without those parties being notified and having an opportunity to be heard.
[43] The media applicants may have access to documents which are produced in evidence subject to specific request rather than wholesale access to the electronic bundle of documents.
[44] Finally, I grant the applications for In-Court media coverage on standard conditions for the taking of photographs and recording sound.
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Walker J
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