Williams v Craig - [2016] NZHC 1453

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1845 [2016] NZHC 1453

UNDER the Defamation Act 1992

BETWEEN

JORDAN HENRY WILLIAMS Plaintiff

AND

COLIN GRAEME CRAIG First Defendant

AND

NATHANIEL JOHN HESLOP, KEVIN STITT, ANGELA MARIA STORR Second Defendants

Hearing: 24 May 2016

Appearances:

PA McKnight and A Romanos for plaintiff
SJ Mills QC and J McKay for first defendant
H Wilson and L Clark for Ms Rachel MacGregor

Judgment:

29 June 2016

JUDGMENT OF TOOGOOD J [Non-party Discovery]

This judgment was delivered by me on 29 June 2016 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Williams v Craig [2016] NZHC 1453 [29 June 2016]

[1] In this proceeding the plaintiff, Mr Jordan Williams, sues the former leader of the Conservative Party of New Zealand, Mr Colin Craig, and other officers of the Party, over allegedly defamatory statements made by Mr Craig in July 2015 following Mr Craig’s resignation from the Party leadership. The statements are alleged to have been made by Mr Craig at a media conference and in a leaflet distributed to members of the news media and published on the internet. It is alleged also that between 4 and 8 August 2015 or thereabouts, the leaflet was distributed nationwide to 1,627,402 letterboxes and other mail services using a commercial distribution organisation.

[2] The remarks attributed to Mr Craig in his media conference and the leaflet concerned, in part, allegations of sexual harassment made against Mr Craig by his former press secretary, Ms Rachel MacGregor.

[3] Ms MacGregor is not a party to this case. Mr Craig sought non-party discovery by her of documents in her possession or control which are said to be relevant to the proceeding. All issues about the disclosure of documents by Ms MacGregor have now been resolved, except those concerning a group of handwritten notes made by Ms MacGregor on topics related to her allegations of sexual harassment.

The nature of the documents – confidentiality

[4] On 18 September 2014, the day she resigned from her employment as Mr Craig’s press secretary, Ms MacGregor made a claim to the Human Rights Commission, under s 62 of the Human Rights Act 1993 (the HRA), alleging that she had been sexually harassed by Mr Craig. The disputed documents are handwritten notes prepared by Ms MacGregor containing references to matters related to the sexual harassment claim. They form part of a so-called “dossier” of documents which was provided to Mr Williams who, at relevant times, advised Ms MacGregor on matters relating to her resignation and the allegation of sexual harassment. Mr Williams showed the dossier to other members of the Conservative Party (but not

Mr Craig) at a relevant time or relevant times, and it was subsequently returned to Ms MacGregor according to an agreement reached during a meeting between Mr Williams, Ms MacGregor and her solicitors.

[5] Copies of the documents were given to me on a strictly confidential basis so that I could consider them in connection with…

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 Williams v Craig

Details

AGLC: Williams v Craig [2016] NZHC 1453
Case: [2016] NZHC 1453
Decision Date: 29 June 2016

CaseChat Overview and Summary

In the case of Williams v Craig, the plaintiff, Jordan Henry Williams, is suing the former leader of the Conservative Party of New Zealand, Colin Graeme Craig, and other officers of the Party, over allegedly defamatory statements made by Mr Craig in July 2015. The remarks in question were made by Mr Craig at a media conference and in a leaflet distributed to members of the news media and published on the internet. The statements concerned, in part, allegations of sexual harassment made against Mr Craig by his former press secretary, Rachel MacGregor, who is not a party to this case. Mr Craig sought non-party discovery by Ms MacGregor of documents in her possession or control which are said to be relevant to the proceeding. The issue at hand concerns a group of handwritten notes made by Ms MacGregor on topics related to her allegations of sexual harassment.

The court had to decide if the disputed handwritten notes were relevant to the proceeding and if Ms MacGregor was required to disclose them. Both Mr Williams and Mr Craig, through counsel, accepted that the documents are or may be relevant to the matters at issue in the defamation proceeding. Ms MacGregor argued that the notes were prepared for the dominant purpose of enabling her legal adviser or advisers to conduct, or advise regarding, her claim under s 62 of the Human Rights Act 1993, and that they are protected from disclosure by the privilege for preparatory materials for proceedings established by s 56 of the Evidence Act 2006.

The court held that Ms MacGregor's claim to privilege under s 56 of the Evidence Act in respect of document A6 must fail, as it was not enough that Ms MacGregor may have had the possibility of pursuing her claim before the Human Rights Commission in the back of her mind, or that she understood she may have had to issue a proceeding in the Human Rights Review Tribunal to resolve her claim. To meet the dominant purpose test, Ms MacGregor is required to satisfy the Court that she apprehended that a qualifying proceeding in a court was probably going to occur. The proceeding would have had to be a real likelihood, rather than a mere possibility.

The court ordered that the notes comprising document A6 must be disclosed by Ms MacGregor to Mr Williams, Mr Craig, and the second defendants for the limited purpose of enabling them to prepare, respectively, their claims and defences in this proceeding. The confidentiality orders made in the telephone conference minute of 12 May 2016 (No. 13) shall apply also to document A6. Questions of costs for the exchange of memoranda were reserved.

Orders