Stephenson v Jones - [2015] NZHC 1455

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1921 [2015] NZHC 1455

BETWEEN
JON STEPHENSON

Plaintiff

AND

RICHARD RHYS JONES First Defendant

THE ATTORNEY-GENERAL Second Defendant

Hearing: 24 June 2015

Counsel:

D M Salmon and E D Nilsson for Plaintiff
H B Rennie QC and H S Hancock for Defendants

Judgment:

26 June 2015

JUDGMENT OF THE HON JUSTICE KÓS (Particular discovery and interrogatories)

[1] Mr Stephenson is a journalist. He has issued defamation proceeding against Lt Gen Jones1 and the Attorney-General.2 His claim arises from a media statement issued by Lt Gen Jones. It criticised three articles written by Mr Stephenson about the activities of the Special Air Service3 in Afghanistan between 2002 and 2010. Mr Stephenson says the statement imputes that he is a liar and a journalist not to be trusted.

[2] Mr Stephenson’s claim was filed in 2012. In July 2013 a jury was unable to

agree verdicts. The case is due to be retried, now before a Judge alone, commencing

20 July 2015.

1      Formerly Chief of the New Zealand Defence Force
2      Sued on behalf of the New Zealand Defence Force. Herein “NZDF”.
3      Herein “SAS”.

STEPHENSON v JONES [2015] NZHC 1455 [26 June 2015]

[3] In May 2015 Mr Stephenson filed an application for particular discovery. It covers four categories of documents. All concern the relationship between the SAS and the Afghani Ministry of Interior Crisis Response Unit4 in 2010. The application also seeks certain answers given by the defendants to interrogatories be set aside as insufficient.

[4] Exigency necessitates delivery of this judgment urgently. That is because of the imminence of trial and the implications of an outcome either way. Some compression in reasoning is an inevitable consequence.

Context, claim and pleadings

[5] New Zealand troops were deployed in Afghanistan between December 2001 and April 2013 when the final rotation of the New Zealand Provincial Reconstruction Team left that country. For some of that time the SAS was deployed.5

[6] In May 2010 an article by Mr Stephenson appeared in the Sunday Star-Times. The heading was “SAS HQ: Walk Right In”. It describes an interview between Mr Stephenson and “Col M”. He was said to be commander of the CRU. The interview was said to have occurred in his office in the compound in Kabul where the CRU and SAS troops were based. Apart from commenting on the apparently lax security, the article focused on assistance the SAS had given the CRU in April 2010 in arresting a group of suicide bombers as they closed in upon their target.

[7] A second article written by Mr Stephenson appeared in the Sunday Star- Times in August 2010. It appeared under the heading “Prisoners being delivered to brutal Afghan secret police”. It described the SAS as helping to catch insurgents who were then handed over to the Afghani National Directorate of Security. It also discussed the original topic of the May report, the CRU’s arrest of the suicide
bombers with the assistance of…

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 Stephenson v Jones

Details

AGLC: Stephenson v Jones [2015] NZHC 1455
Case: [2015] NZHC 1455
Decision Date: 26 June 2015

CaseChat Overview and Summary

The plaintiff, Jon Stephenson, a journalist, has brought defamation proceedings against Lt Gen Richard Rhys Jones and the Attorney-General. The claim arises from a media statement issued by Lt Gen Jones that criticised three articles written by Mr Stephenson about the activities of the Special Air Service in Afghanistan between 2002 and 2010. Mr Stephenson claims the statement defames him by imputing that he is a liar and a journalist not to be trusted. The defendants have advanced an affirmative defence of qualified privilege and a defence of truth, asserting that Mr Stephenson’s articles contained factual inaccuracies. The case is set for retrial before a Judge alone, commencing on 20 July 2015. Mr Stephenson has made an application for particular discovery and for certain answers given by the defendants to interrogatories be set aside as insufficient. The Court found that some degree of discovery of documents relevant to the defendants’ pleadings must be given. The Court made an order for particular discovery of documents relating to operations in Afghanistan in 2010 in which the SAS was involved and where suspected insurgents were captured or detained. The order is suspended for seven days to allow the parties to file memoranda as to whether they wish the order to be uplifted. As to interrogatories, the defendants are directed to reconsider the answer to interrogatory 5(b) and answer interrogatory 5(d)(iv), so far as they can, by 4 pm on Thursday 3 July 2015. A telephone conference is to be convened on Friday, 3 July 2015 to consider the responses given and the trial fixture still scheduled to commence on Monday, 20 July. Costs are reserved.

The Court found that the defendants’ answers to interrogatories 5(b) may or may not be perfunctory. The defendants are directed to refer the meaning of "surveillance" to the deponents of the answers and, if their answers to interrogatory 5(b) are incorrect, they are to be corrected in accordance with rule 8.43. The defendants are also directed to answer interrogatory 5(d)(iv) so far as they can, by 4 pm on Thursday 3 July 2015. The Court found that the answer to interrogatory 5(e)(v) is not evasive and inadequate. The scatter-gun answer to interrogatory 5(f) is plainly unsatisfactory and the interrogatory is grossly oppressive. The normal response is simply to uphold the objection. The Court upheld the objection to interrogatory 5(f).

Orders