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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2008-485-2315
BETWEEN
ERIN A LEIGH
Plaintiff
AND
THE ATTORNEY-GENERAL
First Defendant
AND LINDSAY GOW
Second Defendant
Hearing: 3 June 2009
Counsel:
J W Tizard & A J Connor for defendants/applicants
J G Miles QC & J S Langston for plaintiff/respondent
Judgment: 14 July 2009
RESERVED JUDGMENT OF DOBSON J
(Strike out application)
Factual background...........................................................................................................................[2]
Grounds for strike out application...................................................................................................[9]
Briefing Paper capable of defamatory meaning?..........................................................................[12]
"The
plaintiff was incompetent"...................................................................................................[20]
"The plaintiff was irresponsible" .................................................................................................
[22]
"The plaintiff was overly emotional" ...........................................................................................
[23]
"The plaintiff was not fit to be employed by a government department, ministry or agency as a
professional communications
consultant" .................................................................................... [25]
"The plaintiff's work had
received consistent adverse comment from government departments,
senior officials and from the Minister Responsible for Climate
Change Issues as a consequence of
her incompetence" ........................................................................................................................
[27]
Impact of "apology" ........................................................................................................................
[28]
Insufficient particularity as to Oral Statements?..........................................................................[33]
Oral Statements capable of a defamatory meaning? .................................................................... [39]
Breach
of Article 9, Bill of Rights 1688..........................................................................................[46]
Minister's
statement a republication?............................................................................................[64]
Strike
out sought for irrelevance .................................................................................................... [74]
Third cause of action: negligent misstatement .............................................................................. [83]
Summary ..........................................................................................................................................
[97]
LEIGH V THE ATTORNEY-GENERAL AND ANOR HC WN CIV-2008-485-2315 14 July 2009
[1] In these proceedings, the plaintiff
(Ms Leigh) sues the Attorney-General in
respect of the Ministry for the Environment (the Ministry) and the second defendant
as the
then Deputy Secretary of the Ministry (Mr Gow) for defamation, and for
negligent misstatement. The present application is one brought
on behalf of the
defendants for striking out either all, or various parts, of Ms Leigh's Amended
Statement of Claim.
Factual background
[2] Between July 2005 and
May 2006, Ms Leigh was retained by the Ministry
pursuant to a number of consecutive contracts to provide advice as to
communications
in relation to climate change issues. In the period up to her
unilateral termination of the then current contract in mid May
2006, Ms Leigh was
working on successive drafts of a climate change communications strategy. The
document had undertaken a number
of drafts and from early May 2006 the then
Minister for Climate Change, the Hon David Parker, plus other politicians and senior
officials
commented adversely on the content of Ms Leigh's drafts.
[3] On or about 15 May 2006, Ms Leigh was told by the person within
the
Ministry managing her work for it that the Minister had appointed another
communications adviser, Clare Curran, to oversee the
content of the communications
strategy Ms Leigh was working on. As a result of what she was told, Ms Leigh
terminated her involvement
with the Ministry. The Amended Statement of Claim
pleads this occurrence in terms that "the plaintiff resigned from her contract
position
with the Ministry on the same day". If the contract was one for provision of
services, the legal effect of her conduct was
presumably to unilaterally terminate the
contract which was due to expire at the end of May 2006. Nothing turns on which is
the correct
legal analysis.
[4] Ms Leigh went on to other work, and the events of mid May 2006 only
became relevant for the purposes of
these proceedings in November 2007, when
criticism was levelled at the then government for the circumstances in which
Ms Curran had
been hired. At that time, Ms Leigh was approached by a reporter as
to the circumstances in which Ms Curran was retained and Ms Leigh
ceased her
involvement on the climate change communications strategy. It appears that
Ms Leigh confirmed that she saw
Ms Curran's appointment as politically motivated,
given Ms Curran's links with the New Zealand Labour Party, and that it was the
hiring of Ms Curran that caused her to stop work on the project. Following that
interview, publicity about the matter led to criticisms
of the Government, and
questions in Parliament. That in turn led to a request from the office of the then
Minister for the Environment,
the Hon Trevor Mallard, to the Ministry for
information as to the basis on which Ms Leigh had been engaged, the nature of the
work
she undertook, and the reasons why she had terminated her contract in May
2006.
[5] The Ministry's response took the form of
a Briefing Paper prepared by
Mr Gow and dated 22 November 2007 (the Briefing Paper). It comprised seven
relatively short paragraphs
describing the circumstances in which Ms Leigh's
services were contracted, the scope of what she was to do and the circumstances
of
her departure. Ms Leigh's Amended Statement of Claim pleads five extracts from
the Briefing Paper, and alleges that its contents
were false and defamatory of her in
five respects. The extracts are set out in paragraph [13] below.
[6] The Amended Statement
of Claim then pleads that the Briefing Paper was
used by the Minister to criticise Ms Leigh's competence in the course of answers
to
oral questions posed of the Minister in Parliament. The Amended Statement of
Claim specifies four particular comments made by
the Minister in the House,
treating them as a republication of some of the content of the Briefing Paper. Those
are set out in paragraph
[65] below.
[7] In a second cause of action, Ms Leigh also alleges that a meeting occurred on
the day the Briefing Paper was
prepared at which Mr Gow expanded on the content
of the Briefing Paper in making certain oral statements (the Oral Statements) about
Ms Leigh. The pleading alleges the Oral Statements in summary terms, and alleges
that Mr Gow made statements in those terms or "which
were substantially the same".
It is then alleged that the Oral Statements were false and defamatory of the plaintiff
as a whole, and that the Oral Statements meant,
and were intended to mean, a series
of five propositions adverse to her good reputation. Again, the Minister's response
to questions
in the House is treated as a republication of these alleged Oral
Statements.
[8] The Amended Statement of Claim then pleads
in a third cause of action that
the Briefing Paper and the Oral Statements were made in circumstances where the
Ministry owed Ms
Leigh a duty of care, and that the Oral Statements were made in
breach of that duty of care when the Ministry failed to exercise
reasonable care and
skill in preparing the Briefing Paper and in the Oral Statements that Mr Gow made
on behalf of the Ministry.
Grounds for strike out application
[9] The defendants seek to strike out the whole of the Statement of Claim on the
basis
that:
· the Briefing Paper is incapable of bearing the defamatory meanings
alleged in respect of it;
· the differences between it and what was said by the Minister in
Parliament means that the latter is
incapable of being characterised as a
republication of the words in the Briefing Paper; and
· there was
no tenable cause of action in negligence because Ms Leigh is
prevented from claiming in negligence for damage to her
reputation.
[10] The defendants also invite a ruling on their affirmative defence that the
circumstances of Mr Gow's communications
to the Minister constituted an occasion
of absolute privilege, so that recognition of that defence would constitute a complete
answer
to all allegations of defamation.
[11] Separately, the application challenged the tenability of the allegation in
respect of
the Oral Statements, arguing that Ms Leigh is obliged to allege the actual
words used before such an allegation could constitute
the basis of any cause of
action. The defendants' argument on the strike-out also challenged the prospect of
there being two causes
of action in defamation where, on the argument for the
defendants, there was only a single publication and therefore only a single
potential
cause of action. Certain of the paragraphs alleging contextual factual matters
occurring around the time of the Briefing
Paper are also challenged as being
irrelevant.
Briefing Paper capable of defamatory meaning?
[12] I propose to deal first with
the defendants' challenge to the capacity for the
words in the Briefing Paper to bear the alleged defamatory meanings. This threshold
issue is one appropriately dealt with on a strike out application to be assessed on the
basis that a plaintiff will make out the
factual allegations as pleaded. On the basis of
that assumption, the question is whether the words are capable of bearing a
defamatory
meaning. It is settled law that this constitutes a question of law and the
approach is adequately described in Gatley in the following
terms:
In determining whether the words are capable of a defamatory meaning the
Judge will construe the words according
to the fair and natural meaning
which would be given to them by reasonable persons of ordinary
intelligence, and will
not consider what persons setting themselves to work
to deduce some unusual meaning might extract from them. The reasonable
reader is not naive but not unduly suspicious, can read between the lines, can
read in an implication more readily
than a lawyer and may indulge in a
certain amount of loose thinking. "The Court should be cautious of an over-
elaborate
analysis of the material in issue." (Gatley on Libel and Slander,
11th ed, para 36.4)
[13] Within the first cause of action,
the content of the Briefing Paper relied upon,
and the false and defamatory meanings alleged to arise from it, are as follows:
27. The Briefing Paper contained the following statements:
(a) "She was responsible for developing a communications
work programme for climate change communications. This
went through a series of six drafts in late April to
early May
2006."
(b) "Around about mid May 2006, the work Erin did apparently
received consistent adverse comment from government
departments, from senior officials and
also from the Minister
responsible for climate change (Hon David Parker). Clare
Curran
was employed from 22 May 2006."
(c) "By 25 May 2006 Clare Curran had initially reviewed the
work that Erin Leigh had done, provided advice to the
Ministry on it, and indicated desirable changes."
(d) "Erin's contract was due to cease on 31 May 2006.
However, she effectively finished
work on 15 May. Her
invoices show that she came to work for 15 minutes on
16 May 2006.
I have been advised that staff reported she
appeared to be in a state of concern. She then left the office,
never returned and did not complete the term of her
contract."
(e)
"We have not found any written documentation to date that
shows why Erin left suddenly. What appears to be
her last
formal communication with the Ministry was an invoice,
which included the 15
minutes she was in the office on
16 May 2006."
28. The statements contained in the Briefing Paper
("Written
Statements") as a whole were false and defamatory of the Plaintiff
in that they meant and
were intended to mean that:
(a) the Plaintiff was incompetent;
(b) the Plaintiff was irresponsible;
(c) the Plaintiff was overly emotional;
(d) the Plaintiff was not fit to be employed by a Government
department, ministry or agency as a professional
communications consultant;
(e) the Plaintiff's work had received consistent adverse
comment from Government departments, senior
officials and
from the Minister Responsible for Climate Change Issues as
a consequence
of her incompetence.
[14] With the possible exception of the observation reported from staff that
Ms Leigh "appeared to be in
a state of concern" on the morning she departed, the
whole of the statement is confined to matters cast as facts, and avoids the
expression
of any opinions about her or her work. The Briefing Paper was provided some
18 months after the events, and not because
the Ministry needed to defend any
suggestion it had unjustifiably dismissed Ms Leigh. To the contrary, there is no
suggestion that
the Ministry was going to terminate Ms Leigh's services and it
appears that the Ministry would have let her contract expire at the
end of May.
Instead, the focus is on the circumstances that justified the hiring of Ms Curran. This
context is likely to be important
to the reasonably intelligent reader fully informed of
all the circumstances. For instance, the statement pleaded in paragraph 27(e)
that
"we have not found any written documentation to date that shows why Erin left
suddenly" would have been relevant to the Minister
who would be interested in any
record from the time of her departure, criticising the perceived political influence in
the appointment
of Ms Curran. Its relevance in that light gives the statement a
neutral connotation. In contrast, if the statement was attempting
to justify a finding
of inappropriate or incompetent behaviour on Ms Leigh's part, then absence of
written notice could have been cited as a failing on her part.
[15] Mr Miles QC submitted
that the content and tone of Mr Gow's Briefing
Paper was quintessentially "a Wellington type communication" he eschewed the
prospect
that such communications would ever occur in Auckland. Without
introducing any regional tension into the analysis,
I took this characterisation of the
context as being peculiar to the culture and practices pervading senior civil servants'
communications
with each other, and with Ministers. I took Mr Miles to be
suggesting that the Briefing Paper would be measured by the
finder of fact as arising
in the Sir Humphrey-esque world of "you might very well think that Minister, but I
couldn't possibly comment".
I was invited to assess the natural and ordinary
meaning that could be attributed to the words as being conveyed in this relatively
subtle environment in which the writer and the audience share an unarticulated
expectation of the meaning conveyed "between the lines".
I note that there is no
pleading of specific innuendo arising.
[16] I accept that the particular context in which the Briefing
Paper was prepared
and presented to the Minister is very important to the natural and ordinary meanings
the words are capable of
conveying. However, the prospect for criticisms arising
implicitly from "reading between the lines" must be balanced against another
feature
of the environment in which senior civil servants are required to respond to requests
for information from the office of
a Minister. That is, unless an opinion or
evaluation is called for, a factual enquiry is responded to by provision of the
facts, as
they can be gathered within the time available. In situations such as requests for
information enabling the Minister to
respond to questions in Parliament, finders of
fact are likely to realise that a materially different approach also arises ie tell
the
Minister the facts, and let the Minister make of them what the Minister will.
[17] Such a limitation confining the meaning
of the Briefing Paper to the facts
reported, and resisting the invitation to read in positive or negative inferences in
relation
to the conduct described, might well break down once the Briefing Paper is
the subject of dialogue between the reporting civil servant
and the Minister. I need
to deal subsequently with just such an allegation in the present case.
[18] However, making appropriate
allowance for the approach of non lawyers,
and a certain amount of loose thinking, I treat the present consideration as confined
to the natural and ordinary meanings arising from the terms of the Briefing Paper in
the context in which it was requested and delivered.
I see no basis for adding to the
meanings that may tenably arise because either the terms of the Briefing Paper itself,
or the circumstances
in which it had been requested and provided to the Minister, are
to be interpreted as conveying an invitation from Mr Gow for the
Minister to infer
criticisms of Ms Leigh by "reading between the lines".
[19] Turning to each of the defamatory meanings pleaded
as arising on the terms
of the Briefing Paper.
"The plaintiff was incompetent"
[20] The context is that Ms Leigh had been re-appointed
on two occasions and left
because she was unhappy that a politically connected communications adviser was to
be retained to oversee
the work that she was doing. As to the elements in the
Briefing Paper that could go to her competence, the first is that her work
had gone
through six drafts. I do not see a reasonably informed observer treating that as an
indication of incompetence on her part,
given the complexity and importance of the
subject matter. The next element is that around the time she departed, her work
received
consistent adverse comment from government departments, senior officials
and the Minister who was responsible for the matter she
was working on. In the
context of the circumstances in which Ms Leigh quit, the more natural inference is
that her approach to the
content was at odds with those others who commented
adversely on it. Clearly, those considering her work would make adverse comments
about it because they did not like its content. That does not necessarily mean that it
was incompetently prepared. I acknowledge
a possible progression from the
commentators' dislike of its content, to an inference that a competent person in her
position would
have been sensitive to the political environment, and accordingly
adapted her own views to reflect this environment. However, in
the context of her
being an independent contractor whose contracts had been renewed a number of
times, and in the circumstances of
her leaving because of the vote of no confidence
implicit in another person being interposed to oversee the wording of her work,
that
progression is not one I find naturally arising.
[21] Next, potentially going to incompetence, are the statements that she
left at
short notice, did not complete the term of her contract, and did not document in
writing why she left suddenly. Such statements
are more likely to go to the relative
responsibility of Ms Leigh's conduct at the point of her departure. I do not accept
that they
can create or contribute to an inference that she was incompetent. Clearly,
there was a division of professional views as to what
ought to be contained in the
paper she was working on, and that difference had got to a point where the Ministry
wished the content
to be influenced by another adviser. Ms Leigh was not prepared
to compromise her view of the content, or lose control of its content,
by having it
overseen by Ms Curran. That infers a principled stand, rather than incompetence.
"The plaintiff was irresponsible"
[22] The last elements of the Briefing Paper considered in the preceding paragraph
are those most likely to give rise to an inference
that Ms Leigh was irresponsible.
Again, measuring them in the context in which the Briefing Paper was produced, and
its overall content,
I am satisfied that they cannot bear that meaning. There is no
suggestion of criticism of her work before "about mid May 2006", and
she left at that
time because someone else was being appointed to vet her work. Once all the
context is taken into account, there
is no suggestion that those for whom she was
working were left in any doubt as to the reason for her departure, or that they would
have preferred her to work out her contract. Once she had responded negatively to
having her work vetted by another consultant/contractor,
she was entitled to take the
view that there was no point in remaining. She would stop work, and the Ministry
would stop paying her,
having Ms Curran on hand to carry on. As I have noted
above, the absence of a written explanation for her early departure is not
relevant as
a reflection on how responsibly she conducted herself at the end of her period with
the Ministry. The material reason
for that fact being referred to is to report to the
Minister that there was no contemporaneous document recording her protest about
the circumstances of appointment of Ms Curran which was the topic that had
motivated the Minister's request for a report in the first
place.
"The plaintiff was overly emotional"
[23] The principal passage which might convey this meaning is the advice
Mr Gow
had received from staff that the plaintiff "appeared to be in a state of
concern", when considered in light of the context that she
left at short notice, did not
complete her contract, and did not provide any written explanation for doing so.
This is to be assessed
within the wider context of her terminating her work on the
project as a result of being advised that Ms Curran had been appointed
to oversee the
content of the work she was contracted to produce.
[24] The passage does not convey an overly emotional reaction.
The Briefing
Paper is entirely devoid of any judgement or comment that the reaction was
excessive or unwarranted. What it does convey is that she
was sufficiently
concerned at what she had just been told to leave work at short notice in
circumstances where her concern was apparently
sufficient to be discerned by those
observing her at the time. I cannot see that finders of fact would treat this as
inferring that
the plaintiff was overly emotional. Rather, it conveys an immediate
and potentially principled decision not to continue with the
assignment in the
changed circumstances she had just been appraised of.
"The plaintiff was not fit to be employed by a government
department, ministry or
agency as a professional communications consultant"
[25] The first fact that her work had gone through
a series of six drafts does not
render her unfit to be employed in a government department. Experience of finders
of fact in a diverse
array of situations might provide reassurance that anything from
the wording of an advertising jingle to a politician's speech,
a commercial contract
or a clergyman's sermon might undergo six or more drafts without rendering the
draftsperson unfit for that
particular task.
[26] The fact that a number of those considering one or more drafts of her work
consistently commented adversely
on it might, depending upon the context in which
such adverse comments were made, suggest that the person was not fit to undertake
such work. However, here, the context suggests a clash of principles with the
Minister wanting a product reflecting a political agenda,
and Ms Leigh's work
reflecting a different approach. The initiatives to transfer the task to a
communications adviser seen
as aligned with the Minister's political thinking on the
subject strengthens the impression that it was a difference of principle.
Without
more than the facts specified in the Briefing Paper, the circumstances of such a clash
do not infer that a communications
adviser of principle is unfit to be employed
generally, but rather that the Government's agenda made it inappropriate for her to
continue on this assignment. These two are quite distinct notions, and in the relevant
context here, I do not see the notional reasonable
person drawing a meaning of
general unfitness to be employed from the description of events in the particular
case.
"The plaintiff's
work had received consistent adverse comment from government
departments, senior officials and from the Minister Responsible for
Climate Change
Issues as a consequence of her incompetence"
[27] This overlaps with the analysis of the first meaning contended
for. It requires
there to be a tenable connection between the first, factual proposition that
Ms Leigh's work had, around mid-May
2006, consistently drawn adverse comments,
and the second, unstated opinion that such comments arose as a consequence of her
incompetence.
For the reasons set out above, I am not satisfied that such a
connection between the two propositions could arise as a natural
and ordinary
meaning of the words complained of.
Impact of "apology"
[28] In analysing whether the terms of the Briefing Paper
could sustain any of the
defamatory meanings alleged in respect of it, I have not overlooked the pleading in
the Amended Statement
of Claim of a written statement issued on 5 December 2007
by the Chief Executive of the Ministry, Mr Hugh Logan. To understand its
potential
relevance, it is again necessary to quote in full the extent to which that apology is
pleaded in the Amended Statement
of Claim:
42. On 5 December 2007, Mr Logan, the Chief Executive of the
Ministry, on behalf of the Ministry,
issued a written apology to the
media, apologising for the Briefing Paper and the Minister's
Comments
("Apology"). The Apology included the following
statements:
(a) "I am concerned that written material
provided to the
Minister in preparation for a question in the House led to a
reflection on the work of Ms Erin Leigh
in 2005/06 that was
not intended by the Ministry."
(b) "Ms Leigh, a professional communications
consultant, was
contracted in 2005 by the Ministry. Her contract was
renewed three times.
In May 2006 she notified the Ministry
that she was ending her contract and ceased work. At the
time the Ministry accepted this without seeking any further
explanation, and paid all contract fees
billed to it."
(c) "Ms Leigh had completed a number of projects under the
four contracts.
Her media work was professional and of
good quality, especially work that she did in respect of the
Waitaki Water Allocation Board of Inquiry."
(d) "The climate change work on which she was engaged,
with
other Ministry personnel, was not yet concluded and was
subsequently completed by
others."
(e) "Two weeks ago the Ministry was asked to provide the
Minister with information
on her work and her departure.
Under time limitations, a briefing note was prepared from
internal records and provided to the Minister."
(f) "As Chief Executive, I was responsible for that briefing.
I
did not take it or intend it to reflect on Ms Leigh's
professional ability or her performance
under contract to the
Ministry."
(g) "The events which have followed show that the note
could
be, and was, interpreted in this adverse way. In particular,
the Minister understood
it in that way, with public and
personal consequences for Ms Leigh and for the Ministry."
(h) "Because these events were connected with an investigation
that had already been initiated by the
State Services
Commissioner, I initially considered that there should not be
a separate
public response."
(i) "I now consider that there should have been a Ministry
response
and so I am releasing this statement. Because
Ms Leigh has not agreed to the public release of the briefing
note, the Ministry will not be releasing it with this
statement."
(j
) "Both personally and on behalf of the Ministry I apologise
for what has occurred, and I regret the public
attention which
has been generated."
[29] I was not sympathetic to Mr Tizard's argument that this was one
of the
paragraphs that should be struck out on the basis that it could not have any relevance.
However, nor am I persuaded that the
views reflected in it can have any proper
influence on the analysis of whether the words in the Briefing Paper are indeed
capable
of conveying any of the defamatory meanings pleaded in respect of it. With
great respect to the Chief Executive, his acknowledgement
that the Briefing Paper
could be interpreted to reflect adversely on Ms Leigh's professional ability or her
performance under her
contracts with the Ministry does not reflect the analysis
required by the legal test I am bound to apply. The obvious imperative
confronting
Mr Logan in the period after the Minister's statement in the House was to endeavour
to bridge the gap between the Legislative
and Executive branches in respect of their
contributions to the comments on Ms Leigh's conduct. The Minister was immune
from legal
liability, and likely to be in a situation dominated by political
considerations that would weigh against any public concession to Ms Leigh. At the
same time, it was untenable
for Mr Logan to disavow the Minister's statement, or to
seek to distance the Ministry's Briefing Paper from what had been said in
the House
when to do so would state or imply that the Minister had gone materially further than
the factual matters stated in the
Briefing Paper.
[30] The context of Mr Logan's statement is also material. There had been no
publicity given to the Briefing
Paper, and his statement acknowledged that it would
not be released because Ms Leigh was opposed to that course. What created the
public interest, and the matter to which he was responding in practical terms, was the
terms of the Minister's statement. An obvious
motive was to diffuse problems that
might arise for the Ministry, as a result of what the Minister had said. At that point,
no
problems had arisen discretely in respect of what was stated in the Briefing Paper.
[31] Accordingly, the fact that the Chief
Executive of the Ministry publicly
acknowledged the prospect of adverse inferences arising from the Briefing Paper
does not alter
the conclusion I have reached that the Briefing Paper was not capable
of bearing the defamatory meanings pleaded in respect of it.
[32] Accordingly, I find that the first cause of action, to the extent it alleges the
Briefing Paper contained meanings defamatory
of Ms Leigh, is untenable and is to
be struck out.
Insufficient particularity as to Oral Statements?
[33] Somewhat different
considerations arise in respect of the Oral Statements
alleged to have been made by Mr Gow to the Minister at the 22 November 2007
meeting. Mr Tizard argued that this pleading was deficient for another reason,
namely that it failed to plead with appropriate particularity
the words alleged to have
been uttered at the meeting by Mr Gow. The relevant allegation is in the following
terms:
51.
During the Meeting, the Second Defendant, on behalf of the
Ministry, made the following statements or statements which
were
substantially the same ("Oral Statements"):
(a) stated that the Plaintiff was primarily responsible for
developing a
communications work programme for climate change
communications;
(b) stated that [the] Plaintiff was responsible for the "yellow gumboots"
project;
(c)
stated that the Plaintiff's work had received consistent adverse
comment from:
(i) other
Government departments;
(ii) senior officials; and
(iii) the Minister responsible for Climate
Change Issues.
(d) stated that her work at the Ministry was:
(i) incompetent;
(ii) open for criticism; and
(iii) required numerous changes.
(e) stated that the Plaintiff left:
(i) suddenly;
(ii) irresponsibly; and
(iii) without advising the Ministry
of the reasons for her leaving.
(f) stated that, on the Plaintiff's last day of work at the Ministry, the
Plaintiff:
(i) worked for a total of 15 minutes clearing out her desk; and
(ii) invoiced
the Ministry for that 15 minutes.
[34] Mr Tizard is correct in submitting that the usual requirement for pleading a
defamatory
utterance is to plead the specific words used because the actual words in
question will always have a material effect on the assessment
of whether they
convey one or more defamatory meanings. He relied on the Court of Appeal
decision in Kerr v Haydon
[1981] 1 NZLR 449. That decision acknowledged the
relatively absolute terms in which the requirement is expressed in the English Court
of Appeal decision
in Collins v Jones [1955] 1 QB 564 where the requirement was
expressed in terms that "in a libel action it is essential to know the very words on
which the plaintiff
founds his claim". However, he had to acknowledge that this rule
is not inflexible and absolute. Even in Kerr it was acknowledged:
...Sometimes a plaintiff suing for slander may be allowed to administer
interrogatories to the defendant as to the
precise words used. He will be
required to satisfy the Court that he is not merely fishing; but if it is
abundantly
clear that the defendant has uttered some words slanderous of the
plaintiff "of a definite character", the jurisdiction may
be exercised in the
discretion of the Court:...(453)
[35] Mr Miles sought to bring the present circumstances within the
scope of this
exception. He relied primarily on the English Court of Appeal decision in Best v
Charter Medical of England Ltd [2001] EWCA 1588. That case involved
allegations cast in similar terms to the second cause of action in the present case, in
that
the allegation was that the defendant had published words "to the effect that..."
Keene LJ characterised the exception as a narrow
one which will arise "only rarely"
(para 11). The judgment continued:
I conclude that the exception to the normal rule only
operates where the
claimant can satisfy the Court that he has a good cause of action, because
there is credible evidence
that the defendant on a particular occasion and to a
particular person made a defamatory statement about him of a specified
nature. Unless there is evidence that there is a good cause of action in
defamation, an order for further information
under Civil Procedure Rules
Part 18 would indeed be a fishing expedition. (para 13)
[36] To similar effect are the observations
of the Privy Council in its decision in
Jennings v Buchanan [2005] 2 NZLR 577:
Where an oral statement is complained of,
it is rarely possible (in the
absence of a recording, a transcript or a very careful note) for a plaintiff to
establish
the precise words used by the defendant. But the law does not
demand a level of precision which is unattainable in practice.
The plaintiff
must plead the words complained of, but it is enough if the tribunal of fact is
satisfied that those
words accurately express the substance of what was said.
[5]
In the circumstances of that case, Their Lordships held that
it could not matter
whether Mr Jennings had said "I do not resile..." or whether the relevant journalist
had asked him "Do you resile...?"
and Mr Jennings had answered "No".
[37] Accordingly, there is some scope for exceptions. This may be justified, for
example where
a plaintiff knows of the circumstances of a communication, and the
"sting" of the libel conveyed, but cannot reasonably be expected
to plead the specific
words used. However, defendants cannot be required to respond where there is no
credible allegation with sufficient
specificity to at least assess in a general way any
potential liability and the grounds for defence. Similarly, an unreasonably vague
pleading should not be recognised as a sufficient platform to launch discovery
initiatives that would amount to "fishing".
[38]
I am not prepared to strike out paragraph 51 of the Amended Statement of
Claim at this stage, on the basis of its lack of particularity.
Nor can I pre-judge the
presently outstanding application on behalf of Ms Leigh to administer interrogatories
to Mr Gow intended
to elicit specific answers as to what he contributed to the
22 November 2007 meeting. At this juncture I intend assessing the capacity
for the
pleading in the second cause of action to bear defamatory meanings, on the
assumption that either paragraph 51 or a more
particularised version of that
allegation would be able to withstand a subsequent challenge to its lack of
particularity. That is
also not to suggest any determination that the present terms of
paragraph 51 are necessarily sufficiently particularised. The extent
of prejudice to
Mr Gow that may follow if Ms Leigh does obtain leave to administer interrogatories,
and after they are answered,
the pleading remains substantially in its same terms, is
an issue to be addressed if and when those contingencies ensue.
Oral Statements
capable of a defamatory meaning?
[39] Accordingly, within that provisional context, I turn to consider whether the
words attributed
to Mr Gow in paragraph 51 are capable of bearing any of the
defamatory meanings alleged in the second cause of action. These are
the same five
meanings as have been considered in respect of the Briefing Paper in the context of
the first cause of action.
[40]
Because the Oral Statements allegedly used by Mr Gow include statements
that Ms Leigh was incompetent, and that she left irresponsibly, those Oral
Statements are capable of bearing the meanings that she was incompetent and
irresponsible as pleaded in paragraphs 52(a)
and (b).
[41] As to the pleaded meaning in paragraph 52(c) that Ms Leigh was overly
emotional, there is nothing more attributed
to Mr Gow in the Oral Statements
beyond the statements in the Briefing Paper that could possibly be capable of
conveying that meaning.
For the same reasons as specified in paragraphs [23] and
[24] above, I do not accept that the Oral Statements are capable of conveying
the
defamatory meaning that Ms Leigh was overly emotional.
[42] Paragraph 52(d) repeats paragraph 28(d), alleging a defamatory
meaning that
Ms Leigh was not fit to be employed by a Government ministry, department or
agency as a professional communications
consultant. On the basis of the additional
elements of Oral Statements attributed to Mr Gow to the effect that she was
incompetent
and irresponsible, I find that the Oral Statements may be capable of
bearing this defamatory meaning in respect of her.
[43]
Similarly, paragraph 52(e) repeats paragraph 28(e) to the effect that adverse
comments arose as a consequence of her incompetence.
As with paragraph 52(d),
the additional elements alleged to be made among the Oral Statements render such a
meaning one that the
Oral Statements are capable of bearing.
[44] Accordingly, with the exception of paragraph 52(c), I am not prepared to find
that
the Oral Statements pleaded in paragraph 52(a), (b), (d) and (e) are not capable
of bearing such defamatory meanings.
[45] I
turn next to consider two grounds of challenge argued by Mr Tizard that I
consider to be intimately linked to each other. The first
argument is that the essence
of the claims constitutes a challenge to what the Minister said in the House, as
without the publicity
his answers received and the terms in which he expressed them
there could be no meaningful "sting" to any libel. Any attack on what
is said in
Parliament is blocked by Article 9 of the Bill of Rights 1688 (Imp), and that is
argued as a complete answer to the whole
claim. The second argument was that it
was untenable to plead that either the Briefing Paper or the Oral Statements were
"republished"
by what the Minister said in the House. That involves a consideration
of the materiality and extent of differences between the Briefing
Paper and the Oral
Statements on the one hand, and the Minister's statement on the other. That leads in
turn to an analysis of the
prospects that the Minister's statement is capable of bearing
defamatory meanings that do not tenably arise from either the Briefing
Paper or the
Oral Statements. This last analysis arguably strays into the impugning of
Parliament. I accordingly consider
the Bill of Rights' argument first, whilst
recognising that the consideration of the second issue on "republication" by the
Minister
is at the very least illustrative of the difficulties raised by a pleading that is
in any way dependent on what has been said in
the House.
Breach of Article 9, Bill of Rights 1688
[46] Mr Tizard argues that a crucial element of both causes of action in
defamation is the words used in Parliament by the Minister. Before the Minister's
statement was made, the extent of publication of
both the Briefing Paper and Oral
Statements is insufficient to warrant any substantial claim. Given that primary
importance
of the Minister's statement, the defendants argue that Ms Leigh is relying
on the publication of the Minister's words as causing
the damage, in a way that
infringes Article 9 of the Bill of Rights 1688. That Article provides:
That the freedom of speech
and debates of proceedings in Parliament ought
not to be impeached or questioned in any Court or place out of Parliament.
[47] It is accepted for Ms Leigh that no liability can attach to the Minister for what
was said as that was an occasion of absolute
privilege. However, the plaintiff resists
the invocation of Article 9 as an attempt to extend the protection of absolute
privilege to what is said to Ministers in relation
to what they may subsequently say
in the House. In New Zealand, this absolute privilege is recognised by s 13 of the
Defamation Act
1992, as extending to "proceedings in the House of
Representatives". Although certain specific situations such as publication
of
documents to the House are recognised, there is no definition of what constitutes the
relevant "proceedings".
[48] Both parties
invited analogies with the decision of the Queensland Court of
Appeal in a judgment on striking out in Erglis v Buckley [2004] QCA 223. There are
two material differences between the present circumstances, and those involved in
that case. First, the Parliament of Queensland
Act 2001 provides:
8 Assembly proceedings can not be impeached or questioned
(1) The freedom of speech and
debates or proceedings in the Assembly
can not be impeached or questioned in any court or place out of the
Assembly.
(2) To remove doubt, it is declared that subsection (1) is intended to
have the same effect as article
9 of the Bill of Rights (1688) had in
relation to the Assembly immediately before the commencement of
the subsection.
9 Meaning of `proceedings in the Assembly'
(1) `Proceedings in the Assembly' include
all words spoken and acts
done in the course of, or for the purposes of or incidental to, transacting
business of
the Assembly or a committee.
(2) Without limiting subsection (1), `proceedings in the Assembly'
include
...
(c) presenting or submitting a document to the Assembly, a
committee or
an inquiry; and
(d) a document tabled in, or presented or submitted to, the
Assembly,
a committee or an inquiry; and ...
[49] That scope of "Proceedings in the Assembly" is materially wider than the
natural meaning
attributable to s 13 of the New Zealand Act.
[50] The second material difference is that what occurred in Parliament in the
Erglis case was the reading by the Minister of Health of a letter written by 11 nurses
in respect of a twelfth nurse. All of those
nurses worked in a particular ward of a
Brisbane hospital, the management of which was a matter of public comment at the
time.
[51] The Court of Appeal reversed an order that had struck out a pleading that
referred to the letter being read in Parliament.
I am satisfied that the scope of s 13 of
the New Zealand Act cannot be legitimately influenced by the scope of the definition
of
"proceedings in the Assembly" in the Queensland Act. More importantly, a
verbatim reading of a letter conveyed for wider publication
is materially different
from the original work involved by a Minister when crafting the Minister's own
terms for reply to Parliamentary
questions. Once the extent and nature of the new
thinking reflected in the words used in the House is raised, then the prospect of
impugning the Minister's conduct and therefore impugning Parliament is also likely
to arise.
[52] In the context of an alleged
republication as pleaded in this case, any material
difference between the Oral Statements and their adaptation by the Minister in
his
statement to the House will require consideration of whether what the Minister said
beyond what the Minister was told can bear
any defamatory meaning independent of
those arising from the Oral Statements. This arises irrespective of the recognition of
absolute
privilege for the statement by the Minister in the House. Although the point
has not been reached in these proceedings where it is
actually, rather than
hypothetically, confronted, I consider a pleading that does require an analysis of the
extent, if any, of defamatory
meanings arising in a republication in the House when
compared with any lesser or different objectionable content in the original
statement
would be vulnerable to strike out on the ground that such an analysis impugns
Parliament.
[53] The Privy Council considered
the scope of Article 9 in Jennings, in the
context of an alleged repetition outside the House, by implication, of an earlier
statement
made in the House that was alleged to be defamatory. The review of
principles attaching to Parliamentary privilege, including citations
from the
Privy Council's earlier decision in Prebble v Television New Zealand Ltd [1994]
3 NZLR 1 per Lord Browne-Wilkinson, which
had included the recognition that
parties to litigation:
...cannot bring into question anything said or done in the House by
suggesting (whether
by direct evidence, cross-examination, inference or
submission) that the actions or words were inspired by improper motives
or
were untrue or misleading. ([10] in Jennings, adopting what had been said
at 10 in Prebble)
[54] It was relevant
in Jennings to draw the distinction that this rule did not
preclude references in Court proceedings to what had taken place in the
House where
that became relevant as a matter of history as to what had transpired. The
Privy Council also cited
from the judgment of Cooke P in Hyams v Peterson [1991]
3 NZLR 648, citing other authority for the proposition that:
...what is said or done in the House in the course of proceedings there
cannot be examined outside Parliament for the purpose of supporting a cause
of action, even though the cause of action
itself arises out of something done
outside the House.
Accordingly, the rationale recognised in these cases is that reference
to what is said
in the House will be excluded if the purpose for doing so is to invite any form of
criticism of what was said. I
consider the process of comparing the defamatory
meanings capable of arising on the Oral Statements, when compared with the
defamatory
meanings capable of arising from the Minister's statement in the House
raises the spectre of just that form of critical analysis
that is within the notion of
"impugning" the proceedings of the House. The reality is that the plaintiff has
pleaded defamatory meanings
that arise from the Minister's statement and then
attempted to attribute them to Mr Gow. The first premise, not explicit for obvious
reasons, is that the Minister's statement was defamatory.
[55] Mr Miles suggested that this situation could be avoided by recognising
that a
jury be invited to disregard the extent of "embellishment" in a republication in the
House. He also argued that such a prospect
did not warrant strike out, because the
need for such an invitation does not arise until the extent of the embellishment is
ascertained
as a matter of fact at trial. Where the pleading introduces the prospect of
some material distinction between what the Minister was
told, and what the Minister
said, then any allegation of republication will traverse either explicitly, or in the
negative sense
when reflecting on any differences in wording, whether the words
used in the House are capable of bearing a defamatory meaning that
would not arise
on the original statement. However, it would not be necessary to both embark on
such an analysis, and to make a positive
finding that additional defamatory meanings
could arise from the additional matters raised only in what was said by the Minister
in Parliament, to constitute a questioning or impugning of Parliament. I took
Mr Miles' argument to contemplate that an
impugning of Parliament would only
arise once that positive finding arises.
[56] I consider that a questioning of the proceedings
of Parliament must arise
where a cause of action pleads that a republication occurred in the House in
circumstances where there was
any material difference between what was conveyed
to the Minister, and what was then said by the Minister in the House. Whether the
Minister's statement can qualify as a republication, in whole or in part, necessarily
traverses the prospect of independent defamatory
meanings arising only from what
was said in the House. It is inherent in an allegation that a statement is defamatory
that it is
false and misleading, and evaluating whether that character can be attributed
to it must be a form of questioning or impugning Parliament
that is within the long-
standing prohibition recognised in Article 9 of the Bill of Rights 1688.
[57] Where an allegedly libellous
statement is made to a Member of Parliament,
and such statement then forms a basis for a claimed republication of that statement
in
the House, then Article 9 would preclude any pleading that related to content of the
alleged "republication" going in any material
respect beyond the content of the
original statement to the Minister. I consider that reflects the appropriate extent to
which Article
9 should be applied in the present case.
[58] Mr Tizard submitted that the Court of Appeal in Peerless Bakery Ltd v Watts
[1955] NZLR 339 recognised that absolute privilege could extend to a report by
officials to the Minister. Although observations in general
terms by
Barrowclough CJ presiding in the Court of Appeal in that case might be taken to
confirm that proposition, I do not consider
that reasoning a reliable basis for
extending absolute privilege to the present circumstances. The essence of the
analysis
in Peerless Bakery was that it mattered not whether a Minister's
communication was to a subordinate, an equal or to a superior, and
that the privilege
extended because the Minister was engaged in a matter of state which warranted
recognition of the privilege (see
353). Given the rationale for the privilege, I am not
persuaded that the reasoning justifies extending the privilege to a communication
from someone obliged to report to the Minister such as the Deputy Secretary in the
present case.
[59] In support of extending
absolute privilege, Mr Tizard also cited from
paragraph [100] in the judgment of Fryberg J in Erglis:
[100] [...] It seems
to me that there is something to be said for the view
that a member's freedom of speech might be impaired if there were a
risk
that by making a speech he or she would cause an informant to become
liable for increased damages. Moreover such
an outcome might cause the
flow of information from outsiders to dry up. I do not think these concerns
are overcome
by reference to the member's immunity from action. They
may depend upon how robust an approach members of the Legislative
Assembly take to such matters. A robust approach is easier when one's own
liability is unaffected. It may be that these
are matters upon which evidence
should be taken; I am not sure that I am in a position in its absence to form a
view.
[60] Mr Tizard was concerned that recognition of the entitlement of a plaintiff in
defamation proceedings to plead a Minister's
construction of what has been reported
to the Minister would lead to a reversal of the long-standing convention that
Ministers
accept responsibility for the actions of civil servants within their
portfolios, by attributing tortious liability to a civil servant
for the conduct of the
Minister. It was characterised as undesirable in policy terms because of the obvious
chilling effect it would
have, inhibiting the full and frank reporting by senior
Ministry employees to their Ministers.
[61] From the opposing perspective,
Mr Miles submitted that competent civil
servants acting in good faith have nothing to fear because their communications to
Ministers
in such situations would still attract the defence of qualified privilege so
long as they were not acting recklessly or maliciously.
Further, that it was in the
public interest for senior civil servants to appreciate the responsibility and not be
able to hide behind
Parliamentary privilege where it is clear that any defamatory
inferences would be given prominence in any repetition in the House.
[62] The ban on impugning proceedings of Parliament may not always be an
effective balance between these two interests. However,
I consider it is sufficient
and appropriate in present circumstances: if a Member or Minister has gone off on a
critical tack of
his or her own, then the differences between an original report to the
Member of Parliament and what is said in the House will generally
mean that the
latter cannot be a republication of the former. There would be no scope for simply
ignoring the "embellishments". If,
however, the civil servant's words, or a close
approximation of them, are used, then liability may well arise for republication in
the
House, unless qualified privilege can be made out.
[63] Accordingly, I am not persuaded that absolute privilege can be claimed
for
the Briefing Paper, or for the Oral Statements, simply by virtue of their proximity to
"proceedings in the House of Representatives".
However, a discrete concern arises
where the Amended Statement of Claim pleads that republication of either the
Briefing Paper or the Oral Statements occurred
in relevant comments in the House
by the Minister, and where the pleading reveals material differences between the
words used in
the original instances, and those used in the alleged republication. In
such circumstances the Court could not entertain the prospect
of issues arising at trial
in respect of alleged republication that involve consideration of whether the
Minister's words could bear
defamatory meanings that did not also arise from the
terms of the original publication. Article 9 of the Bill of Rights excludes
such
matters from being justiciable. Looked at another way, this conclusion means that
republication for the purposes of aggravating
the extent of defamation cannot be
pleaded in respect of a statement in the House, unless that statement constitutes a
material repetition
of the original statement without any embellishment (as occurred
in Erglis).
Minister's statement a republication?
[64] In
part to illustrate the inevitability of straying into the question of whether
the Minister's statement could bear independent defamatory
meanings, I turn next to
the challenge that the Minister's statement in the House could not constitute a
republication, respectively
of the Briefing Paper and the Oral Statements. Having
found that the Briefing Paper is not capable of bearing the defamatory meanings
pleaded in respect of it, the short answer is that logic dictates that any defamatory
meanings alleged to arise from the Minister's
statement cannot constitute
republication of a non-defamatory report to him. In the event that such logic is
inadequate, and to demonstrate
the concerns reflected in the previous section of this
judgment, I will also reflect on the extent of the material differences between
them in
the present strike-out context, abstracted from the actual factual enquiry that would
ensue at trial.
[65] Four particular
comments by the Minister are pleaded in the following terms:
(a) "Erin Leigh had repeated competence issues. She had
to fix up the
piece of work that she was employed to do six times after complaints
from senior
officials from a number of departments. As a result of
that, someone had to come in and fix up that mess. Clare
Curren
was employed to do that."
(b) "The last record of contact that the Ministry had with Erin
Leigh
was when she came in, in an agitated state, for a quarter of an hour
in order to clear
out her desk. It is my understanding that the last
non-physical contact was when she sent an invoice to the Ministry
for that quarter of an hour."
(c) "Ministers have the right to insist on competent advice. That
has
been established for a long period of time. When something comes
to them six times and is
criticised by officials not only from the
Ministry for the Environment but from other Government
departments, I think that any reasonable chief executive would look
for someone who could do the work. When there
is someone
available to try and fix up the mess who did climate change strategic
work for the Australian
Liberal Government, I can understand why
the Ministry employed her."
(d) "[the Plaintiff] who is a sad
person, who had six attempts at doing a
piece of work, and who was replaced on that job..."
[66] The authorities
suggest that the test as to whether a secondary publication
constitutes a republication of a primary publication may depend in part
on whether
the plaintiff is suing on the secondary publication as a separate cause of action for
which the person responsible for
the primary publication is alleged to be liable on a
stand-alone basis, or whether the secondary publication is pleaded as a republication
of the first
merely for the purposes of adding to the extent of damage alleged to have
been caused by the primary publication. For instance, the
English Court of Appeal
in McManus v Beckham [2002] EWCA Civ 939; [2002] 1 WLR 2982 drew the distinction that an analysis
requiring the whole of the `sting' in the first libel to be reflected as well in the
alleged
republication is only necessary where the second publication is relied upon
as an independent cause of action. If the republication
is pleaded merely in
aggravation of the damages flowing from the original publication then, in pleading
terms, any material part
of the sting in the original publication, repeated in the
republication, will be sufficient to constitute the second occasion a republication
going to aggravation of the extent of damages suffered as a result of the original
publication.
[67] When republication is pleaded
for the more limited purpose of adding to the
damage allegedly flowing from the original publication, the issue of whether the
second
publication is to be characterised as a republication of the first reflects a
conventional tortious analysis of whether the damage
incurred is too remote from the
primary publication: see Slipper v British Broadcasting Corporation [1991]
1 QB 283 at 296 per Stocker LJ:
Further, in my view, the law relating to republication in defamation cases is
but an example
of the rules of novus actus in all cases of tort or, where
applicable, breaches of contract where that issue arises. In a
defamation case
where there has been republication the question whether or not there has
been a breach in the chain
of causation inevitably arises but such cases are
not in a special category related to defamation actions but are examples
of
the problem and will fall to be decided on general principles and in the light
of their own facts as established.
They are not specific or special rules
peculiar to defamation actions. [...]
It is at this point that the issue of
natural and probable consequence or
foreseeability arises. In my opinion this is a question of remoteness of
damage
and not liability and raises an issue of fact for the jury.
[68] Since the Minister's statement was made on an occasion of absolute
privilege, there is no prospect of it attracting independent liability. Therefore
republication is to be treated here as pleaded
for the more limited purpose of
aggravating the damage from the original publication. Therefore the relative
closeness between
the original publication and the republication is to be analysed on
the basis that the latter might be pleaded in aggravation of
damages so long as some
material part of the "sting" in the original publication is repeated in the alleged
republication.
[69]
However, even measured by that standard, I am satisfied that the differences
between the Briefing Paper and the Minister's statement
are so material that the
Minister's statement would fall outside the ambit of what could be recognised as a
republication of the
Briefing Paper. I acknowledge that the latter builds on the
former, and addresses the same subject matter. However, when the focus
is upon
defamatory content, the absence of `sting' in the factual statements in the Briefing
Paper, when compared with the strong
prospects of making out numerous
defamatory `stings' in the Minister's statement requires the recognition of a material
distinction
between the two that distances the former from the latter in any analysis
of the potential defamatory consequences. The same answer
arises if a conventional
tortious analysis of remoteness of damage is applied.
[70] I have already determined that the Briefing
Paper cannot bear any of the
defamatory meanings alleged as a arising from it. To the extent that the Minister's
statement built
on the factual matters reported to him, that elaboration is bound to be
treated by a finder of fact as what creates the prospect
of any `sting'. For example,
as to the first of the Minister's statements as pleaded and cited in paragraph [65](a)
above, the terms
of the Briefing Paper do not provide a foundation for the comment
that Ms Leigh had repeated competence issues. Nor does it warrant
the comment
that she had to "fix up the piece of work that she was employed to do six times..."
where that suggests that the work
was expected to be of acceptable, final, quality
when first produced, rather than acknowledging the nature of that work as
reasonably
requiring at least a number of drafts, before it will be treated as
concluded.
[71] Similarly in respect of the allegation cited
at paragraph [65](b) above, it may
be considered critical and demeaning of Ms Leigh to suggest that she sent a separate
invoice to
the Ministry for the quarter of an hour spent clearing out her desk on the
last day she attended at the Ministry. That criticism
would not be justified by the
terms of the Briefing Paper which reported the different notion that the last invoice
for work up to
the time of her departure included a charge for the quarter of an hour
on that last day.
[72] To the extent that adverse inferences
could tenably arise from most, if not all,
of the Minister's statement, they all involve significant embellishment that is
sufficiently remote to be distanced from the Briefing Paper
in a reasoned
consideration of the cause of any damage to her reputation. I am satisfied that there
are too many leaps made between
the factual statements in the Briefing Paper, and
the Minister's statement, for the latter to be treated as a republication of the
former.
[73] The second cause of action alleges that the Minister's statement constituted a
republication of the Oral Statements.
Because many of the `embellishments' as
between the Briefing Paper and the Minister's statement are found in the
Oral Statements,
I might well come to the contrary conclusion, namely that if indeed
the Oral Statements are made out, then the connection between
them and the
Minister's statement is materially closer, to an extent justifying the allegation that
the latter constitutes republication
of the former. Given the uncertainty over the
future of that pleading, I say no more about it at this stage. It follows from this
reasoning on the possible tenability of the second cause of action that I reject
Mr Tizard's arguments to the effect that there was
in reality only one cause of action
for defamation.
Strike out sought for irrelevance
[74] Mr Tizard also sought to strike
out 10 paragraphs of the Amended Statement
of Claim, on the ground that they were irrelevant.
[75] The first group of allegations
are those in paragraphs 42 to 44, addressing the
content of the 5 December 2007 apology from the Chief Executive of the Ministry,
plus an allegation that the content of the apology did not retract the written
statements made, and that a further comment in the
House by the then Minister did
not include an apology for the Minister's earlier comments.
[76] The so-called apology addressed
only the Briefing Paper, and made no
reference to the Oral Statements. As I have found the Briefing Paper not to be
capable of any
of the defamatory meanings allegedly arising from its terms, then it
would follow that a pleading referring to an apology in respect
of that Briefing Paper
could not possibly have any relevance.
[77] So far as paragraph 44 makes further reference to a statement
in the House
that could not possibly constitute a republication of the Briefing Paper, then it is also
irrelevant so far as the first
cause of action is concerned.
[78] Mr Miles argued that Mr Logan's apology and the further comment by the
Minister are relevant
to the issue of damages because it shows that the substance of
the statements had not been retracted. There is, however, a logical
disconnect
between the second cause of action depending on the Oral Statements, and the
context and content of the apology and further
Ministerial statement. If at all, the
latter impacted only on the Briefing Paper where the Minister's statement could
tenably be
characterised as a republication of the Briefing Paper. However, that is
not the case and accordingly paragraphs 42 to 44 in their
present form must be struck
out as a consequence of the strike out of the first cause of action. It may be that
some alternative
means of relating the timing and content of Mr Logan's apology to
the second cause of action may arise. It is difficult to see how
that could occur, but a
re-pleading of different circumstances relating to the apology should not be
excluded.
[79] Mr Tizard
also challenged as irrelevant paragraphs 25, 29, 33, 50, 53 and 54
of the Amended Statement of Claim. Those paragraphs allege that
the Ministry and
Mr Gow ought to have appreciated that the information provided to the Minister
would be used to criticise the competence
and performance of Ms Leigh, that the
Ministry had information that would have demonstrated that the Briefing Paper was
false and
misleading, and similar points in respect of the circumstances of the Oral
Statements. Mr Tizard submits that such matters are entirely
irrelevant to whether
the Briefing Paper and the Oral Statements are defamatory. Mr Miles counters that
they go to the existence of recklessness or lack of goodwill, and
are therefore
relevant in responding to the defendants' plea of qualified privilege.
[80] Some of the paragraphs might have more
aptly appeared in the pleading of
the negligent misstatement cause of action, but their potential relevance to qualified
privilege
cannot be dismissed entirely. Accordingly, if I were wrong to strike out the
defamatory allegations in the first cause of action,
I would not have required the
exclusion of these paragraphs that appear in the first cause of action. The parallel set
of allegations
in the second cause of action can remain because of the prospect of
relevance as argued by Mr Miles.
[81] Objection was also
taken to paragraph 33 which pleads that the Briefing
Paper was also published to Television New Zealand, TV3 News and (National Party
Member of Parliament) Gerry Brownlee. There is no allegation as to how either the
Ministry or Mr Gow was responsible for, or contributed
to, the circumstances in
which those further publications of the Briefing Paper occurred. Mr Tizard argues
that without some attribution
of responsibility to the defendants, an allegation of
additional publication is irrelevant to both the existence of defamatory statements
in
the Briefing Paper, and also to the extent of damages arising from any defamatory
statements, for which the defendants could be
made liable.
[82] I accept that the paragraph as presently expressed is inadequately
particularised to have any relevance to
the case against the defendants. However,
before it is removed, I consider Ms Leigh ought to be afforded an opportunity of
making
the allegation relevant by particularising some respect in which the further
publications alleged can be attributed in some way to
the defendants. In the absence
of such further particulars, then that paragraph should not remain in the Amended
Statement of Claim.
Third cause of action: negligent misstatement
[83] As to the additional cause of action pleaded only against the Ministry for
negligent misstatement, the submissions for Ms Leigh fairly acknowledged the
starting position for the defendants' challenge to this
cause of action. The written
outline of the plaintiff's argument included the following:
11.1 A Plaintiff cannot ordinarily
bring a claim in negligence for harm to
his or her reputation. To impose such a duty would subvert the
balance between freedom of expression and the right to individual
reputation that has been achieved by the law
of defamation.
[84] Here, however, it has nonetheless been pleaded for Ms Leigh that the
Ministry owed her a duty of care as an
independent contractor working exclusively
for the Ministry in circumstances where it had special knowledge of her experience
and
competence, and knew that Ms Leigh would rely on the Ministry to exercise
reasonable care in making any statements about her professional
experience or
competence. The Amended Statement of Claim then pleads that such duty was
breached because the Ministry failed to adequately
enquire, or have regard to,
positive matters that ought to have been reflected in the comments made about her.
[85] Both parties
cited the decision of the Court of Appeal in Midland Metals
Overseas Pte Ltd v The Christchurch Press Co Ltd [2002] 2 NZLR 289. That
decision confirmed the striking out of pleadings alleging a duty of care owed in tort
for statements made about the quality
of cables supplied by the plaintiff. The
leading judgment of Gault J analysed in detail the rationale for the exception to the
usual
rule that no duty of care in negligence will arise for damage to personal
reputation. To do so cuts across the law of defamation.
An exception to this
approach had been recognised by the House of Lords in Spring v Guardian
Assurance plc [1994] UKHL 7; [1995] 2 AC 296. That case recognised the prospect of liability in
negligence where a former employee sought to claim against the former employer
for a defamatory reference written without reasonable care and provided on request
to prospective new employers of the plaintiff.
[86] The Court of Appeal in Midland Metals was inclined to confine any impact
of the House of Lords' decision in Spring to circumstances
where there was a special
relationship between the maker of the statement and the person about whom the
statement was made, or where
there has been a relevant assumption of responsibility
by the former (see [42]). The essence of the reasoning is to confirm the approach
adopted in earlier New Zealand decisions, including South Pacific Manufacturing Co
Ltd v New Zealand Security Consultants and Investigations
Ltd [1992] 2 NZLR 282
(CA), as to the recognition of circumstances in which a novel duty of care may be
recognised. That affords some priority to the concern
not to create a novel duty of
care in circumstances that cut across established legal liabilities in other areas, in
particular defamation.
[87] Here, Mr Miles argued that the relationship between Ms Leigh and the
Ministry tenably came within that exceptional category
of special relationship in
which a tortious duty to take care might arise.
[88] Mr Tizard submitted that recognition of the prospect
of a duty of care in the
present circumstances would be inconsistent with a well-established line of cases in
New Zealand, including
Midland Metals and South Pacific Manufacturing, that are
consistently against the recognition of a possible duty of care in such
circumstances.
[89] I accept that the circumstances in Spring are distinguishable. The Briefing
Paper in issue here was not prepared
as a reference, or to address Ms Leigh's
competence for the sake of prospective employers. Rather, the Minister required the
Ministry
to provide information, in the context of criticism of the circumstances in
which Ms Curran was retained, to explain the circumstances
of Ms Leigh's
contemporaneous departure. The Ministry had clearly defined obligations to be full
and frank in a factual response,
within an apparently tight timeframe. It is inherently
unlikely that the law would superimpose in that situation a potentially conflicting
duty to take care to protect Ms Leigh's reputation. The opportunity to consider the
impact on her future employment prospects, which
would be to the fore in preparing
a reference, could not reasonably come within the immediate scope of concerns for
the officials
in the Ministry when preparing a prompt response to the Minister's
request.
[90] I would not be inclined to treat Ms Leigh's
status as an independent
contractor, rather than as an employee, as decisive on its own. It does, however,
distance her to a material
degree away from the relationship that applies between an
employer and employee. There is no suggestion of a requirement for performance
reviews that would be undertaken periodically, or prospects for monitoring her
performance to consider promotion within the organisation.
In contrast to an
employee, she had been present to perform personal services pursuant to a series of
relatively short-term
contracts.
[91] I therefore find that the relationship between Ms Leigh and the Ministry falls
outside the requisite proximity
that would be required to impute a duty of care.
[92] On the other classic touchstone when considering evolving circumstances
in
which duties of care will be imposed, namely that of policy, there are numerous
additional factors that negative any justification
for imposing a duty of care.
[93] First, it does cut across the recognised boundary regulating the scope of
tortious liability.
The Courts have been wary of imposing a duty for negligent
misstatement causing damage to reputation because the law addresses that
harm
within the law of defamation, where specialised defences, including - relevantly -
qualified privilege, are well established
to regulate the scope of potential liability.
Another policy consideration is not to upset the balance between freedom of
expression
and a recognition of rights to protection of reputation. That takes on
some real significance where the context of the communication
is the Ministry's
requirement to respond to a request for information from a Minister of the Crown.
There should be no chilling influence,
as would arise from the prospect of tortious
liability for negligent misstatement exerted on those responding to such a
requirement,
given the level of importance attaching to full, frank and prompt
responses in such situations.
[94] Accordingly, I see policy
considerations as supporting a finding that this is
not a relationship to which the law should attribute a tortious duty of care.
[95] The practical context in which the alternative cause of action is pleaded also
tells against recognising the
prospect of negligent misstatement as an alternative
basis for claiming damages. Having found the Briefing Paper not capable of bearing
defamatory meanings, the content of that document becomes no more than context in
which any subsequently particularised allegations
as to the content of the Oral
Statements are then pursued as the source of defamation of Ms Leigh. It would be
untenable for finders
of fact to be confronted with the allegedly defamatory impact
of the Oral Statements and the allegedly negligent consequences of
the Briefing
Paper.
[96] For all these reasons, I am satisfied that a striking out of the third cause of
action is warranted.
Summary
[97] I find:
a) The Briefing Paper is not capable of bearing any of the defamatory
meanings pleaded in respect of it.
b) That Article 9 of the Bill of Rights 1688 precludes pleading that
the
Minister's statement amounted to a republication of the Briefing
Paper.
c)
Provisionally, that the Oral Statements could bear all but one of the
defamatory meanings alleged in respect
of them.
d) Certain incidental challenges on grounds of irrelevance are upheld,
others dismissed.
e) The third cause of action alleging negligent misstatement is struck out
as untenable on a
consideration of proximity of Ms Leigh's
relationship to the Minister, and policy considerations.
[98] The
consequences of these findings for the Amended Statement of Claim are
as follows:
a) The pleading of the content of
the Briefing Paper can remain as a
matter of context.
b) Paragraphs 28, 36, 37, 40 and 48 are untenable
and should be struck
out.
c) Paragraph 33 may remain, but is vulnerable to strike out unless
particularised (see paragraph [82] above).
d) The second cause of action purports to repeat paragraphs
42 and 43.
As those paragraphs are pleaded, they relate solely to the Briefing
Paper, and are struck
out. The reference to their repetition should also
be removed.
e) Paragraph 52(c) is struck out.
f) The third cause of action (paragraphs 63 to 71) is also struck out.
[99] I invite memoranda as to costs, if
the parties cannot agree on the costs
consequences of this judgment.
Dobson J
Solicitors:
Oakley Moran, Wellington for defendants/applicants
Wilson Harle, Auckland for plaintiff/respondent
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