Sellman v Slater - [2021] NZHC 349

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sellman v Slater

Details

AGLC: Sellman v Slater [2021] NZHC 349
Case: [2021] NZHC 349
Decision Date: 2 March 2021

CaseChat Overview and Summary

This case involves a defamation claim brought by three public health professionals against Cameron Slater, Carrick Graham, and Carrick Graham's former company, Facilitate Communications Limited. The plaintiffs allege they were defamed in blog posts published on the Whale Oil website. The first defendant, Slater, has consented to judgment being entered against him. Two other defendants have settled, and the plaintiffs were granted leave to discontinue against them. The media applications concern access to the court file and in-court media coverage by way of photographs and sound recording. The court considered the principles of open justice and freedom of expression, as well as the rights to privacy and confidentiality. The court ruled that media applicants are entitled to access the pleadings, opening submissions, briefs of evidence (subject to redactions), notes of evidence, and closing submissions. Access to documents produced in evidence may be granted on specific request. In-court media coverage is permitted on standard conditions for the taking of photographs and recording sound. The court did not grant access to the electronic bundle of documents, as they may not become evidence if not referred to by counsel or a witness, or if objected to and ruled inadmissible.

Orders