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Sellman v Slater

Sellman v Slater

Case [2018] NZHC 3057 23 November 2018

Admissibility of Evidence

Defamation Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1312

[2018] NZHC 3057

UNDER the Defamation Act 1992

BETWEEN

JOHN DOUGLAS SELLMAN

First Plaintiff

BOYD ANTHONY SWINBURN
Second Plaintiff

SHANE KAWENATA FREDERICK BRADBROOK

Third Plaintiff

AND

CAMERON JOHN SLATER

First Defendant

Continued …

Hearing: 13-14 August 2018

Appearances:

D M Salmon, J P Cundy and E D Nilsson for the Plaintiffs B P Henry for the First Defendant

E J Grove for the Second and Third Defendants
W Akel, JWS Baigent and K R Teague for the Fourth and Fifth Defendants

Judgment:

23 November 2018

JUDGMENT NO 6 OF PALMER J

(Discovery and oral examination)

This judgment was delivered by me on 23 November 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

SELLMAN v SLATER [2018] NZHC 3057 [23 November 2018]

CIV-2016-404-1312

Continued …

CARRICK DOUGLAS MONTROSE GRAHAM
Second Defendant

FACILITATE COMMUNICATIONS LIMITED
Third Defendant

KATHERINE RICH
Fourth Defendant

NEW ZEALAND FOOD AND GROCERY COUNCIL INC

Fifth Defendant

Summary

[1] Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook sue Mr Cameron Slater, Mr Carrick Graham and Mr Graham’s company Facilitate Communications Ltd (FCL) for defamation and Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for procuring defamation. In this judgment I determine a second set of interlocutory applications:

(a)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.

(b)I grant a narrower version of the plaintiffs’ applications for particular discovery by Mr Slater, Mr Graham and FCL because there are grounds for believing they have not discovered relevant documents but the original applications were too broadly framed.

(c)I grant the plaintiffs’ applications for particular discovery by Mrs Rich and the NZFGC but only to a limited extent, for the avoidance of doubt and for updating purposes.

(d)I decline Mrs Rich’s and the NZFGC’s application for particular discovery by the plaintiffs because:

(i)The court’s ability to strike out a proceeding for abuse of process is not a parameter for discovery for the purposes of its trial.

(ii)Defamation law presumes a defamatory statement damages a plaintiff’s reputation in the eyes of those who may read it. The presumption cannot be rebutted by evidence of lack of consequences of harm to the plaintiff’s reputation in the eyes of groups of people who may or may not have read it. Otherwise every trial of the defamation of a plaintiff would turn into a detailed evaluation of the plaintiff’s reputation, which would be as unattractive as it is likely to be time-consuming.

(iii)The plaintiffs’ public and academic profiles, publications, media and social media comments of the plaintiffs are not sufficiently relevant to the allegedly defamatory statements to mitigate damages.

(e)I grant the plaintiffs’ application to examine Mr Slater…

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 [2018] NZHC 3057
Case: [2018] NZHC 3057
Decision Date: 23 November 2018

CaseChat Overview and Summary

This case concerns a defamation proceeding brought by three plaintiffs, Dr Doug Sellman, Dr Boyd Swinburn, and Mr Shane Bradbrook against Mr Cameron Slater, Mr Carrick Graham, and Facilitate Communications Ltd (FCL). They further sue Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for procuring defamation. This judgment deals with a second set of interlocutory applications. Palmer J declined Mr Slater’s application to exclude hacked documents obtained by the plaintiffs from Mr Nicky Hager at this stage of the proceeding. The judge granted a narrower version of the plaintiffs’ applications for particular discovery by Mr Slater, Mr Graham and FCL because there are grounds for believing they have not discovered relevant documents but the original applications were too broadly framed. The judge granted the plaintiffs’ applications for particular discovery by Mrs Rich and the NZFGC but only to a limited extent, for the avoidance of doubt and for updating purposes. The judge declined Mrs Rich’s and the NZFGC’s application for particular discovery by the plaintiffs because the court’s ability to strike out a proceeding for abuse of process is not a parameter for discovery for the purposes of its trial. The judge granted the plaintiffs’ application to examine Mr Slater and Mr Graham orally because he considered they had made insufficient answers to interrogatories, particularly about whether blog posts were posted on the Whale Oil website for reward.

Orders