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ORDER PROHIBITING PUBLICATION OF THE CONTENTS OF THE ALLEGED DEFAMATORY STATEMENTS IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
9 - 10 February 2017 with further submissions on 9, 17 March,
14, 16 June and 5, 11, 15, 25 September 2017
Appearances:
E D Nilsson and J P Cundy for Plaintiffs B P Henry for First Defendant C T Patterson for Second and Third Defendants W Akel and K R Teague for Fourth and Fifth Defendants
Judgment:
2 October 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 2 October 2017 at 10.00 am pursuant to r 11.5 of the High Court Rules.
The proceeding .....................................................................................................[7] The parties [7] The cases [9]
The Issues ............................................................................................................[14] Law of strike-out ................................................................................................[15]
Issue 1: Are causes of action time-barred? Multiple v single publication.....[19] Applications [19] General law of limitation [20] The law of multiple or single publication [22] Submissions [29] Should some causes of action be struck out as time-barred? [33]
Issue 2: Is there a substantial or significant tort? ...........................................[47] Applications [47] Law of abuse of process and Jameel [48] Submissions [55] Should the proceeding be struck out as an abuse of process? [58]
Issue 3: Can the statements have defamatory meanings? ..............................[70] Applications [70] Law of defamatory meaning [71] Submissions on defamatory meaning [77] Are the words capable of defamatory meaning? [81]
Issue 4: Is the claim against Ms Rich & NZFGC speculative or untenable? [91] Application [91] Submissions on strike out as speculative [93] Should the claim against Ms Rich and NZFGC be struck out as speculative? [95] Law of procuring or being an accessory to defamatory publication [103] Submissions on procuring publication [112] Should the claim against Ms Rich and NZFGC be struck out for lack of publication? [114]
Issues 5: Other applications and next steps ................................................... [119] The plaintiffs’ ss 39 and 41 notices [119] Mr Slater’s affirmative defences [121] Next steps [123]
Result .................................................................................................................[125]
Annex: Table of Pleaded Defamatory Meanings .......................................................
Summary
[1] Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook are public health professionals. They allege they…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sellman v Slater [2017] NZHC 2392
Case
[2017] NZHC 2392
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand, the plaintiffs, Dr Doug Sellman, Dr Boyd Swinburn, and Mr Shane Bradbrook, brought a defamation claim against Mr Cameron Slater, Mr Carrick Graham, and Facilitate Communications Ltd (FCL), as well as Ms Katherine Rich and the New Zealand Food and Grocery Council Inc (NZFGC). The plaintiffs alleged that the defendants defamed them in a series of blog posts and comments on the Whale Oil website. The defendants sought to strike out the proceeding as a whole and specific aspects of it.
The court considered several issues, including whether the claims were time-barred, if there was a substantial or significant tort, if the statements could have defamatory meanings, and if the claim against Ms Rich and NZFGC was speculative or untenable.
The court found that the multiple publication rule applied in New Zealand, meaning that a separate cause of action arose for each publication. Thus, the claims were not time-barred. The court also found that the proceeding should not be struck out as an abuse of process, as there had been a substantial or significant tort, and the cost of the proceeding was not disproportionate to its benefit.
Regarding defamatory meanings, the court found that certain terms, such as "trougher", "rorter", and "ripping off", had pejorative connotations of wrongdoing in the use of funding, which were capable of being defamatory. However, the court struck out some of the pleaded meanings as not capable of being defamatory.
The court did not strike out the claim against Ms Rich and NZFGC as speculative or untenable, as the allegations in Dirty Politics were capable of supporting an inference that they were involved in the defamatory publications. The court found that it was possible for liability to be established on the basis of these pleadings, if proved at trial.
In conclusion, the court declined the applications to strike out the causes of action, except in relation to the pleaded meanings identified in the table annexed to the judgment. The court also directed the parties to propose further timetabling directions for the substantive hearing within 15 working days of the date of the judgment.