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High Court of New Zealand Decisions |
Last Updated: 29 August 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-495 [2016] NZHC 1801
|
UNDER
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the Defamation Act 1992
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BETWEEN
|
NINA LUPTON Plaintiff
|
|
AND
|
FAIRFAX NEW ZEALAND LIMITED Defendant
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Hearing:
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20 April 2016
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Counsel:
|
M F McClelland QC and C F Rieger for the Plaintiff
R K P Stewart and R G Cahn for the Defendant
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Judgment:
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5 August 2016
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JUDGMENT OF ASSOCIATE JUDGE SMITH
Contents
Background........................................................................................................................................ [6] The statement of claim .................................................................................................................... [26] The statement of defence ................................................................................................................ [27]
The relevant statutory framework
.................................................................................................
[29]
(a) Sections of the Defamation Act 1992 relevant to the statutory qualified privilege
defences............................................................................................................
[29] (b) Sections
of the Defamation Act 1992 relevant to the common law
privilege defence ......... [30] (c) Relevant provisions of the Health
and
Disability Commissioner Act 1994......................... [31]
Principles applicable to strike-out applications ............................................................................ [39] The issues ......................................................................................................................................... [42]
Issue 1 – the statutory qualified privilege defence
........................................................................
[43]
Issue 1(i) – was the Letter an “official report made by a
person holding an inquiry under the authority of the Parliament
of New
Zealand”, under s 65(5) of the HDC Act? ...........................
[43]
The parties’ submissions
...............................................................................................................
[43]
LUPTON v FAIRFAX NEW ZEALAND LIMITED [2016] NZHC 1801 [5 August 2016]
Conclusions on Issue 1(i)
.............................................................................................................
[54] Issues 1(ii) – 1(iv)
.........................................................................................................................
[70]
Issue 2: Should the defence of common law qualified privilege be struck
out? ......................... [71] The parties’ submissions
...............................................................................................................
[71] Discussion and conclusions on Issue
2.........................................................................................
[81]
Result ...............................................................................................................................................[115]
[1] The plaintiff is a registered medical practitioner. At material
times, she was practising as a general practitioner in
New Plymouth.
[2] The defendant (Fairfax) is the publisher of the Taranaki
Daily News newspaper, and the New Zealand news website at www.stuff.co.nz (the Stuff
website).
[3] In this proceeding, Dr Lupton sues Fairfax for defamation,
arising from articles published by Fairfax on 22 July
2013 in the Taranaki
Daily News (under the headline “Family angry at lack of action on
missed pregnancy”) and on the Stuff website (under the heading
“Family devastated by doctor’s inaction – missed pregnancy was
followed by miscarriage”). I will refer to
the two articles together as
“the Articles”.
[4] Fairfax has filed a statement of defence in which it pleads, among other defences, the statutory defence of qualified privilege under the Defamation Act 1992 (the Act), on the basis that the words published in the Articles were fair and accurate reports of an official report made by a person holding an inquiry under the authority
of the Parliament of New Zealand.1 Fairfax also pleads
qualified privilege at
common law, on the basis that it had a duty to publish the information
contained in the Articles, and the readers of the Articles
had a corresponding
interest in receiving that information. Fairfax further contends that the
Articles concerned matters of legitimate
public interest to the public of New
Plymouth.
[5] Dr Lupton now applies to strike out Fairfax’s defences of statutory and common law qualified privilege. She has also filed an application for leave to file, out of time, a notice under s 41 of the Act rebutting the qualified privilege defences, but no order will be required on that application if she succeeds with her first
application and the qualified privilege defences are struck
out.
1 Defamation Act 1992, s 16(2) and sch 1, pt 2, cl 3(a).
Background
[6] Dr Lupton qualified as a general practitioner in the United
Kingdom. She worked independently in that jurisdiction, before
moving to New
Zealand and commencing practice as a general practitioner in this country.
Among other qualifications, she holds
specialist diplomas in obstetrics and
gynaecology.
[7] In early January 2013, Dr Lupton was working as a general
practitioner at the Carefirst Medical Centre in New Plymouth.
Although
she was an experienced general medical practitioner, as an overseas-qualified
doctor she was required to work under
supervision during her first 12 months
working in New Zealand. In early January 2013 Dr Lupton’s supervisor was
the medical
director of the Carefirst Medical Centre, Dr. Kelly.
[8] On 4 January 2013 Dr Lupton was consulted by Mrs Groombridge. The
reason for the consultation was a mole on Mrs Groombridge’s
back, but Dr
Lupton noted some abdominal distension. Dr Lupton identified a palpable pelvic
mass, and arranged for blood tests (which
included a pregnancy test) and an
ultrasound scan.
[9] Dr Lupton says that she advised Mrs Groombridge that the pregnancy
test should be carried out straight after the consultation,
and that she would
discuss with a radiologist arrangements for an urgent ultrasound scan. The scan
would likely be performed early
the following week. However Mrs Groombridge
advised Dr Lupton that she was going on a family holiday, and was not due to
return
until the following Wednesday. Mrs Groomsbridge elected not to
change her holiday plans, and Dr Lupton requested an ultrasound
scan which
would fit in with those plans.
[10] On 6 January 2013 Mrs Groombridge suffered a miscarriage at an
Auckland hospital. Shortly afterwards, she made a complaint
to the Health and
Disability Commissioner (the Commissioner).
[11] On 8 July 2013 a Deputy Health and Disability Commissioner, Ms Theo Baker, sent a letter (the Letter) advising that she had resolved pursuant to s 38(1) of the Health and Disability Commission Act 1994 (the HDC Act) to take no further action on Mrs Groomsbridge’s complaint. In the Letter, the Deputy
Commissioner advised that the Commissioner’s in-house clinical advisor
had determined that Dr Lupton had departed from expected
standards to a moderate
degree in failing to exclude possible pregnancy in a timely manner, but
otherwise Dr Lupton’s management
of the case “was conscientious and
appropriate”. The in- house clinical advisor had also advised that there
were significant
difficulties in making the diagnosis. The Deputy Commissioner
expressed the belief that it would be appropriate for Dr Lupton to
provide a
written apology to Mrs Groombridge. She asked Dr Lupton to provide a copy of
the apology, which she would forward to Mrs
Groombridge.
[12] Fairfax published the Articles on 22 July 2013. The article
published in the
Taranaki Daily News included the following:
Family angry at lack of action on missed pregnancy
A New Plymouth family has been left traumatised after the miscarriage of a
baby girl they did not realise existed.
Samantha Groombridge is also angry the GP who failed to detect she was
pregnant has avoided any serious punishment.
Mrs Groombridge, 34, miscarried at 18 weeks, in January, but she did not
realise she was pregnant.
It was just days after she saw Dr Nina Lupton at New Plymouth’s Carefirst
Medical Centre complaining of vaginal bleeding and abdominal pain.
The British GP was under a 12-month period of peer supervision required for
overseas doctors new to New Zealand.
Mrs Groombridge complained to the Health and Disability Commissioner about
her treatment.
Recently deputy Commissioner Theo Baker ruled that the failure to exclude
the possibility of pregnancy was “a departure from expected
standards”.
Ms Baker has asked that Dr Lupton provide a written apology but decided that
no further disciplinary action was necessary.
Dr Lupton examined Mrs Groombridge and discovered a lump “the size of
an apple” in her womb but reassured her she was
not pregnant despite not
doing a urine test to confirm her diagnosis.
Mrs Groombridge had taken two home pregnancy tests in December and both
returned negative.
Dr Lupton arranged for blood tests and an ultrasound to be done the following week.
Mrs Groombridge, the mother of three boys, was given the all-clear to go away
on a family holiday but two days later she miscarried
at an Auckland
hospital.
“I was crying in the van from my stomach pains, it was like I was in
labour”.
Initially the family left their little girl at the hospital but quickly
changed their minds.
“We were like, what have we done, we can’t leave her there, she
is part of us”, Mrs Groombridge said.
They arranged for a family member to pick up their baby’s body and meet
them in Hamilton.
Mrs Groombridge’s husband, Garry, was shocked by what happened.
“The anger that was going through me, I didn’t want to feel like
that – one minute we didn’t have a baby and
now we are driving to
pick up a dead baby girl” he said.
The couple named the little girl Kaysea. She was cremated a couple of days
later, which was traumatic for the family, and her ashes
now sit beside the
family tree.
Mrs Groombridge has been left wondering what would have happened if the
doctor had carried out the urine test.
“Things might have been different if I was told to come home and rest,
but we never got that chance”.
She said it was offensive that all she was being offered was an apology and
she would be writing to the commissioner again to express
her disgust.
Dr Lupton is permitted to practise medicine in New Zealand under
the supervision of Dr Lester Kelly, who is the medical
director of the Carefirst
clinic, which has 13 doctors.
Dr Kelly could not be contacted by the Taranaki Daily News
yesterday.
[13] A photograph of Mrs Groombridge and her family appeared with the
article. The text beneath the photograph read:
A family’s pain: Samantha and Garry Groombridge, with their
boys...The couple were devastated after a doctor she visited when suffering
vaginal bleeding
and abdominal pain failed to realise she was pregnant before
she had a miscarriage.
[14] The article on the Stuff website had the same content, but was entitled “Family devastated by doctor’s inaction – Missed pregnancy was followed by miscarriage”.
[15] The Fairfax journalist responsible for the Articles did not approach
Dr Lupton herself for comment before the articles were
published. Fairfax says
that the journalist did endeavour to approach Dr Kelly, but Dr Kelly’s
telephone number was not listed
and the medical practice was not open that
Sunday (the day the journalist prepared the story). Fairfax says that the
journalist
found an email address for Dr Kelly and tried to contact him by
email, but did not receive a response. The journalist succeeded
in contacting
Dr Kelly on the Monday, and Fairfax published an article reporting on his
reaction in the Taranaki Daily News and on the Stuff website, the day
following the publication of the Articles. The follow-up article published by
Fairfax on 23 July
2013 read:
Clinic medical director supports GP over pregnancy
A New Plymouth medical clinic is standing by a GP who failed to detect a
woman was pregnant just two days before she miscarried.
In January Samantha Groomsbridge saw Dr Nina Lupton at New Plymouth’s
Carefirst Medical Centre, complaining of vaginal bleeding
and abdominal
pain.
Dr Lupton did not detect Mrs Groomsbridge was pregnant and she
miscarried two days later, which eventually resulted in her
making a complaint
to the Health and Disability Commissioner.
The commissioner ruled the failure to exclude the possibility of pregnancy
was “a departure from expected standards”,
but decided no further
disciplinary action was necessary.
Mrs Groomsbridge said she would be writing to the commissioner again to
express her disgust at only being offered an apology.
Dr Lupton is permitted to practise medicine in New Zealand under
the supervision of Dr Lester Kelly, who is the medical
director of the Carefirst
clinic, which has 13 doctors.
Dr Kelly yesterday told the Taranaki Daily News there was no reason to
take any further action against Dr Lupton.
“The Health and Disability Commission has noted that overall the
management plan was appropriate given the presentation”, Dr Kelly
said.
“We have peer reviewed the case and believe that Dr Lupton did a
thorough and conscientious job”.
David Maplesden, an in-house clinical advisor for the Health and Disability Commissioner, considered Dr Lupton’s consultation with Mrs Groomsbridge at the clinic was well documented overall and the management plan was appropriate.
Dr Kelly said Dr Lupton was a fully qualified and widely experienced GP,
specifically recruited on the basis of her impeccable training,
experience and
references.
“She is a member of the Royal College of GPs in the UK and is also a
fellow of the New Zealand College of GPs, making her a
general practice
specialist in two countries”, he said.
“She has additional post-graduate qualifications in obstetrics and
gynaecology. She is more qualified than the
majority of GPs in
New Zealand”.
Dr Kelly said Dr Lupton did not require “supervision” in the traditional
sense.
“The supervision that is being talked about is a standard
period of observation that all foreign doctors
undergo when they
move to New Zealand, no matter what their qualifications are. It is aimed at
ensuring their easy integration
into the New Zealand health system and as a
double safety check that they conform to New Zealand Standards”.
He said there had never been any concerns that Dr Lupton’s clinical practice
had been anything except at the highest level.
“The supervision does not require actual oversight of each individual
consultation. This supervision should not be confused
with supervision that may
be required by a newly qualified doctor as Dr Lupton is a fully qualified and
experienced GP”.
Dr Kelly said Dr Lupton was not required to seek a second opinion as she was
a fully qualified GP.
[16] Dr Lupton’s solicitors wrote to the editors of the Taranaki Daily News and the Stuff website, putting them on notice of her concerns over the Articles, on
26 July 2013. On the same day Dr Lupton’s counsel wrote to the
Commissioner
expressing concern over the decision notified by the Deputy
Commissioner on
8 July 2013.
[17] On 31 July 2013, counsel for Fairfax advised Dr Lupton’s
solicitors of their view that the Articles were protected
by statutory qualified
privilege, and that while the article on the Stuff website had been taken down
it was intended that it would
be reinstated online. Fairfax offered to publish
a statement in explanation or contradiction on behalf of Dr Lupton at the foot
of each article.
[18] On 18 November 2013 Professor Dowell, an expert retained for Dr Lupton, provided a report on Dr Lupton’s management of the case. Professor Dowell
rejected the clinical advisor’s view that Dr Lupton’s actions
amounted to a moderate departure from accepted standards.
He considered that Dr
Lupton had shown a high level of clinical acumen.
[19] On 18 November 2013 Mrs Groombridge filed a complaint
against
Dr Lupton in the Human Rights Review Tribunal.
[20] By June 2014, the Commissioner had completed a reconsideration of
the complaint against Dr Lupton, taking into
account the views
expressed by Professor Dowell. On 11 June 2014, the Commissioner advised that
Dr Lupton was no longer
required to provide a written apology, as there was no
longer any finding that her treatment amounted to a departure from accepted
standards. The Commissioner advised the Medical Council
accordingly.
[21] Discussions followed between the parties’ legal
advisors. Dr Lupton’s counsel requested that a retraction
and apology
be published online and on the front page of the Taranaki Daily News.
Fairfax declined to publish the retraction and apology sought by Dr
Lupton.
[22] Mrs Groomsbridge’s complaint to the Human Rights Review
Tribunal was
withdrawn in September 2014.
[23] This proceeding was commenced on 19 June 2015, and Fairfax filed and served its statement of defence on 10 August 2015. Further discussions followed between the parties’ legal advisers, and in a joint memorandum for the Court dated
17 September 2015 counsel advised that settlement discussions were
“reasonably advanced”. An adjournment was sought to
allow the
discussions to continue.
[24] A further joint memorandum of counsel dated 23 October 2015 referred
to “ongoing settlement discussions”, but
it also advised that Dr
Lupton intended to file a s 41 notice/leave application by 11 November
2015.
[25] Dr Lupton filed her application to strike out the qualified privilege defences on 28 January 2016. On the same day she filed her application for leave to file, out
of time, a notice under s 41 of the Act, setting out her rebuttal of the
qualified privilege defences.
The statement of claim
[26] Dr Lupton says that the Articles would have been understood by
ordinary, reasonable readers as conveying a number of meanings
which she says
are untrue and defamatory. The pleaded meanings include the
following:
(1) that due to her lack of experience, Dr Lupton was only permitted to
practise in New Zealand under supervision of another
doctor;
(2) that Dr Lupton failed to consider or appreciate the possibility
that
Mrs Groombridge was pregnant;
(3) that Dr Lupton failed to advise Mrs Groombridge at the consultation
that she was possibly pregnant;
(4) that Dr Lupton failed to explain to Mrs Groombridge the urgency of
the situation, and despite the urgency, advised Mrs Groombridge
that she could
go away on a family holiday;
(5) that Dr Lupton was responsible for Mrs Groombridge’s
miscarriage;
(6) that Dr Lupton was incompetent or negligent in her care
and management of Mrs Groombridge;
(7) that Dr Lupton’s conduct was such that disciplinary action
was
necessary;
(8) that the shortcomings in Dr Lupton’s care for and management of Mrs Groombridge were such that an apology was not a sufficient disciplinary outcome.
The statement of defence
[27] In its statement of defence, Fairfax denies the defamatory meanings
pleaded by Dr Lupton. It then pleads statutory qualified
privilege, in the
following terms:
33. If any of the words complained of conveyed any of the meanings pleaded by the plaintiff (which is denied) then those words consisted of a fair and accurate report of an official report made by a person holding an inquiry under the authority of the Parliament of New Zealand and, accordingly, were published on an occasion of qualified privilege.
Particulars
...
33.5 On 8 July 2013 Ms Baker released her report in relation to
the Complaint (“the Decision”).
33.6 To the extent the words complained of referred to the
Decision they constituted a fair and accurate report of the
said Decision,
which was a report made under [the HDC Act] by the
Commissioner.
33.7 Section 65(5) of [the HDC Act] provides that any report made under
that Act by the Commissioner shall be deemed to be an
official report made by a
person holding an inquiry under the authority of the Parliament of New
Zealand.
33.8 Accordingly, the said words are protected by qualified
privilege by virtue of section 16(2) of [the Act]
and paragraph 3(a) of
Part II of the Schedule 1 thereto.
34. At the time of their publication [the Articles] were each a matter
of public interest in any place in which those publications
occurred.
Particulars
34.1 At the time of the publication of the Articles the plaintiff
continued to practise at the Carefirst Medical Centre in New
Plymouth.
34.2 Carefirst was, at that time, the largest Medical Centre in
New Plymouth with 13 General Practitioners caring for over
13,000 patients.
[28] As a further or alternative defence, Fairfax pleads the defence of
common law privilege, in the following terms:
35. If any of the words complained of conveyed any of the meanings pleaded by the plaintiff (which is denied) the defendant had a duty to publish the information contained in the Articles and the readers of
the Taranaki Daily News had a corresponding interest in receiving that
information.
36. The Articles concerned matters of legitimate public interest to the
public of New Plymouth and readers of the Taranaki Daily News and each
was published on an occasion of qualified privilege.
Particulars
36.1 The quality of medical care provided to the public by
registered medical practitioners is a matter of public interest.
36.2 At the time of the publication of the Articles the plaintiff
continued to (sic) practice at the Carefirst Medical Centre
in New
Plymouth.
36.3 Carefirst was, at that time, the largest Medical Centre in
New Plymouth with 13 General Practitioners caring for over
13,000 patients.
The relevant statutory framework
(a) Sections of the Defamation Act 1992 relevant to the statutory
qualified privilege defences
[29] The following provisions of the Act are relevant:
16 Qualified privilege
...
(2) Subject to sections 17 to 19, the publication of a report or other
matter specified in Part 2 of Schedule 1 is protected
by qualified
privilege.
(3) Nothing in this section limits any other rule of law
relating to qualified privilege.
18 Restrictions on qualified privilege in relation to Part 2 of
Schedule 1
(1) Nothing in section 16(2) protects the publication of a report or
other matter specified in Part 2 of Schedule 1 unless,
at the time of that
publication, the report or matter is a matter of public interest in any place in
which that publication occurs.
(2) In any proceedings for defamation in respect of the publication in
any newspaper ... of a report or other matter specified
in Part 2 of Schedule 1,
a defence of qualified privilege under section 16(2) shall fail if the plaintiff
alleges and proves—
(a) that the plaintiff requested the defendant to publish, in the manner in which the original publication was made, a
reasonable letter or statement by way of explanation or
contradiction; and
(b) that the defendant has refused or failed to comply with that
request, or has complied with that request in a manner that,
having regard to
all the circumstances, is not adequate or not reasonable.
19 Rebuttal of qualified privilege
(1) In any proceedings for defamation, a defence of qualified
privilege shall fail if the plaintiff proves that, in publishing
the matter that
is the subject of the proceedings, the defendant was predominantly motivated by
ill will towards the plaintiff,
or otherwise took improper advantage of
the occasion of publication.
(2) Subject to subsection (1), a defence of qualified privilege shall
not fail because the defendant was motivated by malice.
41 Particulars of ill will
(1) Where, in any proceedings for defamation,—
(a) the defendant relies on a defence of qualified privilege; and
(b) the plaintiff intends to allege that the defendant was predominantly
motivated by ill will towards the plaintiff, or otherwise
took improper
advantage of the occasion of publication,—
the plaintiff shall serve on the defendant a notice to that effect.
(2) If the plaintiff intends to rely on any particular
facts or circumstances in support of that allegation,
the notice required by
subsection (1) shall include particulars specifying those facts and
circumstances.
(3) The notice required by subsection (1) shall be served on
the defendant within 10 working days after the defendant's
statement of defence
is served on the plaintiff, or within such further time as the court may allow
on application made to it for
that purpose either before or after the expiration
of those 10 working days.
Schedule 1, Part 2 Publications subject to restrictions in section
18
...
3 A fair and accurate report of the proceedings in an inquiry held
under the authority of—
(a) the Government or Parliament of New Zealand; or
(b) the Government or legislature of a territory outside
New Zealand,—
or a true copy of, or a fair and accurate extract from or summary of, any
official report made by the person by whom the inquiry was
held.
...
(b) Sections of the Defamation Act 1992 relevant to the common law
privilege defence
[30] Section 16(3), quoted above, preserves a defendant’s
right to invoke the common law defence of qualified privilege.
Sections 19
and 41 above also apply to common law qualified privilege.
(c) Relevant provisions of the Health and Disability Commissioner
Act 1994
[31] Section 38 of the HDC Act materially provides:
38 Commissioner may decide to take no action or no further action
on complaint
(1) At any time after completing a preliminary assessment of
a complaint (whether or not the Commissioner is investigating,
or continuing to
investigate, the complaint himself or herself), the Commissioner may, at his or
her discretion, decide to take no
action or, as the case may require, no further
action on the complaint if the Commissioner considers that, having regard to all
the
circumstances of the case, any action or further action is unnecessary or
inappropriate.
(2) The Commissioner’s consideration under subsection (1) may, in
particular, take into account any of the following matters:
(a) the length of time that has elapsed between the date when the
subject matter of the complaint arose and the date when the
complaint was
made:
(b) whether the subject matter of the complaint is trivial:
...
(4) In any case where the Commissioner decides to take no action, or
no further action, on a complaint, the Commissioner must
inform the following
persons and agencies of that decision and the reasons for it:
(a) the complainant:
(b) the health care provider or the disability services provider to whom the complaint relates:
(c) any agency or any person to whom the complaint has, in accordance with
section 34 or section 36, been referred:
(d) any advocate to whom the complaint has been referred.
[32] Section 38 is situated within pt 4 of the HDC Act, which is
concerned with complaints and investigations. Under s 31 a
person may complain
orally or in writing to the Commissioner alleging that any action of a
healthcare provider is or appears to be
in breach of the Code of Health and
Disability Services Consumers’ Rights (the Code). Once a complaint is
made under s 31,
the Commissioner is required by s 33 to make a
preliminary assessment of the complaint to decide whether to take one
or
more of four stated courses of action. Those courses of action include
referring the complaint to an agency or person in accordance
with ss 34 or 36 of
the HDC Act, and the Commissioner investigating the complaint himself
or herself. A further option
for the Commissioner under s 33 is to take no
action on the complaint.
[33] Sections 40 to 49 of the HDC Act deal with investigations by the Commissioner. Under s 40(3), the Commissioner may investigate an action under the section either on receipt of a complaint or on the Commissioner’s own initiative, if it appears to the Commissioner that any action of a healthcare provider (or disability services provider) is or appears to be in breach of the Code. The
complainant and the provider are required to be notified of the
investigation,2 and
there are provisions for the Commissioner to give notice of the investigation
to the appropriate authority,3 and for the Commissioner, on
completion of the investigation, to advise certain parties of the results of the
investigation and of
any further action the Commissioner proposes to take (or if
it is the case, that the Commissioner proposes to take no further
action).4
[34] The persons to whom that advice must be given include the
complainant and the healthcare provider.
2 HDC Act, s 41.
3 HDC Act, s 42.
4 HDC Act, s 43.
[35] Section 45 sets out the procedure which is to be followed after the
Commissioner has completed an investigation. If
the Commissioner is
of the opinion that any action that was the subject matter of the investigation
constituted a breach of
the Code, the Commissioner may take all or any of a
number of steps. Those steps include the following:
45 Procedure after investigation
...
(2) If this section applies, the Commissioner may do all or any of the
following:
(a) report the Commissioner’s opinion, with reasons, to
any health care provider or disability services provider
whose action was the
subject matter of the investigation, and may make any recommendations as the
Commissioner thinks fit:
(b) report the Commissioner’s opinion, with reasons, together
with any recommendations that the Commissioner thinks fit,
to all or any of the
following:
(i) any authority or professional body:
(ii) the Accident Compensation Corporation:
(iii) any other person that the Commissioner considers appropriate:
(c) make any report to the Minister that the Commissioner thinks fit:
(d) make a complaint to any authority in respect of any person: (e) if any person wishes to make such a complaint, assist that
person to do so:
...
[36] Section 46 of the HDC Act provides that where the Commissioner has made any recommendation under s 45(2)(a) or (b) to any person, the Commissioner may request that person to notify the Commissioner, within a specified time, of the steps (if any) that the person proposes to take to give effect to the recommendation. Under s 46(2), the Commissioner is required to inform the complainant if the person to whom the recommendation is made appears to have taken no or inadequate or inappropriate action on the recommendation. The Commissioner may also, if he or
she considers it appropriate, “transmit to the Minister such report on
the matter as the
Commissioner sees fit”.
[37] Section 65(5) of the HDC Act is contained in a part of the Act
headed
“Miscellaneous provisions”. The subsection provides:
65 Proceedings privileged
...
(5) For the purposes of clause 3 of Part 2 of Schedule 1
of the Defamation Act 1992, any report made under this
Act by the Commissioner
shall be deemed to be an official report made by a person holding an inquiry
under the authority of the Parliament
of New Zealand.
[38] Section 67 of the HDC Act deals with the situation where the
Commissioner, in a report under any of ss 14, 45, 46(2)(b) of
the HDC Act, or in
his or her annual report published under pt 4 of the Crown Entities Act 2004,
makes any comment that is adverse
to any person. No such adverse comment is to
be made unless that person has been given a reasonable opportunity to be heard
and
to make a written statement in answer to the adverse comment.
Principles applicable to strike-out applications
[39] The parties are agreed that the Court should apply the following
principles in
considering Dr Lupton’s strike-out application:
(a) Pleaded facts, whether or not admitted, are assumed to be true.
This does not extend to pleaded allegations which are entirely speculative
and without foundation.
(b) The cause of action or defence must be clearly untenable. As Elias CJ and Anderson J noted in Couch v Attorney-General, “it is inappropriate to strike out a claim summarily unless the court can
be certain that it cannot
succeed”.5
5 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725, at [33].
(c) The jurisdiction is to be exercised sparingly, and only in clear cases.
This reflects the Court’s reluctance to terminate
a claim or defence short
of trial.
(d) The jurisdiction is not excluded by the need to decide difficult
questions of law, requiring extensive argument.6
[40] The Court should be slow to strike out a claim in any developing
area of the law, particularly where a duty of care is alleged
in a new
situation. In Couch, Elias CJ and Anderson J said “particular
care is required in areas where the law is confused or
developing”.7
[41] In this case, the application is to strike out an affirmative
defence. It is to be considered on the basis that Dr Lupton
will succeed in
proving that the Articles had the defamatory meanings which she has pleaded, and
that one or more of those meanings
were defamatory of her.
The issues
[42] The following issues fall to be determined:
(1) Should the defence of statutory qualified privilege be struck
out because:
(i) the Letter was not an “official report made by a person
holding an inquiry under the authority of the
Parliament of New
Zealand” under s 65(5) of the HDC Act; or
(ii) (if the Letter was an “official report” covered by s 65(5) of the HDC Act) the Articles were not fair and accurate reports of that “official report”, and thus do not fall within cl 3 of pt 2 of
the Schedule to the Act; or
7 Couch v Attorney-General, above n 5, at [33].
(iii) (if the Articles were fair and accurate reports of an
official report covered by s 65(5) of the HDC Act) the Articles were not, at the
time they were published,
a matter of public interest in any place in which the
publications occurred (s 18(1) of the Act); or
(iv) Fairfax has refused or failed to comply with a request made under s
18(2) of the Act that it publish a reasonable letter
or statement by way of
explanation or contradiction?
(2) Should the defence of common law qualified privilege by struck out
because:
(i) New Zealand law does not recognise common law qualified privilege
in respect of a generic averment of “public interest”;
or
(ii) as a matter of law, the Articles are incapable of attracting
qualified privilege, as Fairfax did not have a duty to
publish the information
contained in the Articles and the readers of the Articles did not have any
corresponding interest in receiving
that information; or
(iii) the publications in the Articles were excessive?
(3) If one or both of the qualified privilege defences is not struck out, should Dr Lupton be granted an extension of time to file a notice under s 41 of the Act rebutting the qualified privilege defences?
Issue 1 – the statutory qualified privilege defence
Issue 1(i) – was the Letter an “official report made by a
person holding an inquiry under the authority of the Parliament
of New
Zealand”, under s 65(5) of the HDC Act?
The parties’ submissions
[43] Dr Lupton contends that the Letter is not a report of
“proceedings in an inquiry”. She says that all that
happened
was that Mrs Groombridge made a complaint under s 31, the Deputy
Commissioner sought advice from an in-house expert,
and the Deputy Commissioner
then wrote to Mrs Groombridge under s 38(4) informing her of her decision to
take no further action.
[44] Mr McLelland submits that s 65(5) refers only to the
reports which are provided for in s 45, namely reports completed
by the
Commissioner after he or she has decided to conduct an investigation of a
complaint and has made a report following that investigation.
He submits that a
letter informing a complainant of a decision to take no further action is simply
that – it is quite different
from a full report from the Commissioner
under s 45 where there has been a finding that there has been a breach of the
Code.
[45] In the alternative, Mr McLelland submits that, to come within s
65(5), a report must be a report of a concluded inquiry under s 45. He
submits that that is the only fair and reasonable construction of cl 3 of pt 2
of sch 1 to the Act.
[46] Mr McLelland notes the use of the present tense “holding an inquiry” in s 65(5), and contrasts it with the (apparently past tense) expression “an inquiry held” in cl 3 of pt 2 of sch 1 of the Act. He submits that the word held is used in the Act to limit protection to reports of official reports of concluded inquiries. He submits that there is no sound reason why Parliament would envisage protection being made available for “reports” of ongoing inquiries under the HDC Act, but limit the qualified privilege protection for inquiries which are not conducted under the Act, to concluded inquiries.
[47] For Fairfax, Mr Stewart submits that Mr McLelland is placing an
unjustified gloss on the wording of s 65(5). In his submission,
s 65(5)
applies when the Commissioner makes any report under the HDC Act.
He notes that the word “report” is not defined in the HDC Act,
but the Shorter Oxford Dictionary definition is “an account given
or opinion expressed on some particular matter, esp. after investigation or
consideration”.
[48] Mr Stewart draws attention to the fact that s 65(5) is within that
part of the HDC Act which deals with miscellaneous matters.
It is not within pt
4 of the Act, which contains the sections dealing with “Investigations by
the Commissioner”. The
location in the “Miscellaneous
provisions” part of the HDC Act shows that s 65(5) was intended to have
more general application.
[49] Mr Stewart contrasts the reference to “any report” in s
65(5), with s 67, which deals with adverse comments made
by the Commissioner in
reports published under any of ss 14, 45 and 46(2)(b), or in the
Commissioner’s annual report. He
submits that if the application of s
65(5) had been intended to be confined to reports following an investigation,
the section would
have been drafted in similar terms to s 67.
[50] More generally, Mr Stewart notes that the Commissioner’s work
does not necessarily involve investigative processes.
The Commissioner has a
wide range of options when receiving a complaint, and can deal with complaints
in a variety of ways. The
protection offered by s 65(5) would be severely
limited if it only applied to a report of “proceedings in an
inquiry”,
or a concluded inquiry or investigation.
[51] Although the Commissioner may decide to take no action on a complaint, Mr Stewart submits that the preliminary assessment procedure is still a robust process, and the notification of the result of that process is a “report”, i.e. an account or opinion of a matter given after investigation or consideration. He refers to the thorough process the Commissioner undertakes gathering information, and notes that one of the Commissioner’s functions (under s 14) is to “gather such information as in
the Commissioner’s opinion will assist the Commissioner in
carrying out the
Commissioner’s functions [under the HDC
Act]”.8
[52] Mr Stewart also notes that, in a letter to the
Commissioner dated
15 November 2013, Dr Lupton herself disagreed with the Commissioner’s
“original report”.
[53] Finally, Mr Stewart submits that to restrict the ambit of s 65(5) to reports of “proceedings of an inquiry”, or “concluded inquiries”, would severely limit the dissemination of the Commissioner’s decisions to the public. He submits that that would be inconsistent with one of the functions of the Commissioner, which is to promote, by education and publicity, respect for and observance of the rights of health consumers and disability service consumers, and, in particular, to promote awareness, among health consumers, disability service consumers, healthcare providers, and disability service providers, of the rights of health consumers and disability service consumers and of the means by which those rights may be
enforced.9
Conclusions on Issue 1(i)
[54] In my view the Letter was not an “official report” of
the kind referred to in
s 65(5).
[55] I note first that the HDC Act uses a variety of expressions to cover
advice or information communicated by the Commissioner.
For example, s 14,
which sets out the functions of the Commissioner, states that one of the
Commissioner’s functions is to
“advise” the Minister on
certain matters (s 14(1)(j)), while another function is to “report”
to the Minister
from time to time on the need for, or desirability of,
legislative, administrative or other action (s 14(1)(k)).
[56] Under s 33, the Commissioner is not initially required to make a
“report” on a
complaint – the Commissioner’s task is to make a
“preliminary assessment”.
Following that preliminary assessment, the Commissioner may decide to
take no
8 Section 14(1)(m).
9 Section 14(1)(c).
action on the complaint, investigate the complaint himself or herself, or
take any of the other steps referred to in s 33(1)(a).
The Commissioner is
required to promptly “notify” the complainant and the healthcare
provider of the Commissioner’s
preliminary assessment (s
33(2)).
[57] The Commissioner’s discretion to take no action on a
complaint is specifically addressed in s 38.
Section 38(2) sets out a
list of matters the Commissioner may take into account in deciding to
take no action, and
under s 38(4), the Commissioner must
“inform” various parties of the decision and the reasons for
it.
[58] So far, then, we see the following expressions used
to described
communications from the Commissioner: “advise”,
“report”, “notify” and “inform”.
[59] As soon as reasonably practicable after the Commissioner has completed an investigation of a complaint, the Commissioner is required to “advise” certain persons of the results of the investigation and of any further action that the Commissioner proposes to take (or that the Commissioner proposes to take no
further action as the case may be).10
[60] The complainant, and the healthcare provider whose action was the
subject of the investigation, are among those to
whom the
“advice” must be given under s 43(1).
[61] Section 45 sets out the procedures which apply if, after making an investigation, the Commissioner is of the opinion that any action that was the subject matter of the investigation was in breach of the Code. If the Commissioner has formed that opinion he or she may take all or any of the steps set out in s 45(2). Three of those steps include the making of a “report”. Under s 45(2)(a), the Commissioner may “report” the Commissioner’s opinion, with reasons, to any healthcare provider whose action was the subject matter of the investigation (with any recommendations the Commissioner may think fit to make), and under
s 45(2)(b) the Commissioner may “report” the
Commissioner’s opinion, with reasons
10 Section 43(1).
and any recommendations, to any authority or professional body, the
Accident Compensation Corporation, or any other person
that the Commissioner
considers appropriate. The Commissioner may also make any “report”
to the Minister that the Commissioner
thinks fit to make (s
45(2)(c)).
[62] Looking at ss 43 and 45 together, it appears that a two-stage procedure was contemplated. First, the Commissioner “advises” certain people (including the complainant and that healthcare provider) of the results of the investigation, and whether the Commissioner proposes to take any further action. A “report” will only be made if the Commissioner forms the opinion that there has been a breach of the
Code (and the Commissioner then decides to provide a reasoned
“report”).11
[63] The expression “report” is used again in s 46(2)(b). Section 46 is concerned with the implementation of recommendations made by the Commissioner, and subs 2 is particularly concerned with the Commissioner’s options if the person to whom a recommendation has been made takes no action on the recommendation, or the Commissioner considers that any action taken has not been adequate and appropriate. In that circumstance, the Commissioner must “inform” the complainant of the Commissioner’s recommendations, and may make such comments on the matter as the Commissioner thinks fit. In addition, the Commissioner may, where the Commissioner considers it appropriate, transmit to the Minister such “report” on
the matter as the Commissioner thinks fit.12
[64] In my view the decision of the legislature to use a variety of different expressions to described statutory communications by the Commissioner was deliberate, and the use of the expression “report” was intended to refer only to the more formal expressions of opinion made by the Commissioner after his or her consideration of a particular issue under the HDC Act. Mr Stewart cites the Shorter Oxford Dictionary definition of “report” as “an account given or opinion expressed on some particular matter esp. after investigation or consideration”, and I accept that definition as far as it goes. But the ultimate question is what meaning is
to be given to the expression where it appears in s 65(5). In my view
“report”, where
11 Section 45(1)(a).
12 Section 46(2)(b).
the expression is used throughout the HDC Act, denotes the most formal of
communications from the Commissioner after he or she conducts
an investigation
or consideration, and s 65(5) is only intended to cover communications from the
Commissioner which are required
to be made by way of
“report” under other sections of the HDC Act.
[65] In this case, the communication was made following a preliminary assessment only, after which the Deputy Commissioner decided that it was appropriate to take no action on the complaint. The Commissioner was not required by s 38 to prepare a “report” recording that decision and the reasons for it, but
merely to “inform” the affected persons and
agencies.13
[66] Standing back from the text of the HDC Act, it seems to me that that
view is consistent with the purpose of the statutory
qualified privilege as set
out (inter alia) in cl 3 of pt 2 of Sch 1 of the Act. The statutory qualified
privilege reflects a legislative
intention that the public’s right to know
the result of an official inquiry trumps the right of a person referred to in a
report
of the output of that inquiry not to be defamed, so long as the
“report of the official report” is fair and accurate
and meets the
requirements of s 18 of the Act. I think it is understandable that mere advice
from the Commissioner following a
preliminary assessment that he or she proposes
to take no further action, has not been regarded by Parliament as a sufficiently
important
communication from the Commissioner that the statutory qualified
privilege should apply to it. The public interest in knowing the
result of a
complaint against a health care provider is of lesser importance where the
Commissioner has made a preliminary assessment
and decided that no further
action is necessary.
[67] I think those views are also consistent with s 67 of the HDC Act, relating to comments made by the Commissioner in certain reports which are adverse to a person. In my view s 67 reinforces the elevated status of “reports” and “recommendations” made under the HDC Act, over communications from the Commissioner which are described using lesser expressions such as “advise”,
“inform” or “notify”. Section 67 can
therefore be seen as complementing an
13 Section 38(4).
interpretation of s 65(5) which excludes from the definition of
“report” lesser forms of communication from the Commissioner,
such as the “informing” which is required by s 38(4).
Because reports or recommendations provided under
the sections referred to
in s 67 will attract statutory qualified privilege under s 65(5), it is
important that anyone who might
be defamed by a comment made in the report or
recommendation should have the right to be heard, and to answer the adverse
comment
before the report or recommendation is published.
[68] For all of those reasons, I conclude that the Letter was not a
“report” covered by s 65(5) of the HDC Act.
[69] The foregoing findings mean that the statutory qualified privilege
defence must be struck out.
Issues 1(ii) – 1(iv)
[70] My findings on issue 1(i) mean that it is not necessary for me to
address these issues.
Issue 2: Should the defence of common law qualified privilege be struck
out?
The parties’ submissions
[71] For Dr Lupton, Mr McLelland submits that a plea of qualified
privilege will be struck out where the defendant plainly had
no obligation to
put the relevant defamatory allegations into the public domain, and a wide
publication was clearly not warranted
by the occasion.14
[72] He says that this is a case where the Court should strike out the
defence: a trial is not likely to yield any factors supporting
a claim of
privilege. All there is to say is already before the Court.
[73] Mr McLelland acknowledges that New Zealand case-law has
developed considerably in recent times in respect of common
law qualified
privilege. Political
discussion pertaining to former, current or aspiring parliamentarians has been afforded the status of a qualifying occasion,15 and recent cases have also supported an extension to other forms of representative and responsible government.16 But whatever steps the common law may have taken, Mr McLelland submits it would be a step too far to propose that defamatory statements made about a doctor (seeing a patient in a private consultation) or other professional person should also necessarily
qualify for blanket protection. The Act simply does not recognise any
generic
“public-interest qualified privilege”.
[74] In Mr McLelland’s submission, the best Fairfax can argue is
that there is a commonality of interest between Fairfax
and readers of the
Articles, because those readers might also be actual or potential patients of Dr
Lupton. Any such argument would
say that those readers would have an interest
in knowing about Dr Lupton’s alleged misdemeanours. Mr McLelland submits
that
that is a dangerous proposition, because it would encourage the
dissemination of serious allegations without proper factual enquiries
being
made, and natural justice being adhered to.
[75] Further, Mr McLelland submits that there can be no justification for
Fairfax publishing a “local” issue to a
vast national and
potentially international audience via the Stuff website.17
Such a wide publication was not fairly warranted by the occasion.
Mr McLelland further submits that, even if there is a prima
facie common law
qualified privilege available, the Articles contained excessive material, so as
to preclude the privilege’s
application.18 He submits that
the Articles contained extraneous and excessive criticisms of Dr Lupton, which,
bolstered by the fact that she was
not afforded an opportunity to comment before
the Articles were published, preclude the application of the common law
privileged
defence.
[76] For Fairfax, Mr Stewart asks the Court to develop the
common law by permitting the defence of common law qualified
privilege in New
Zealand to apply
15 Lange v Atkinson (No 2) [2000] NZCA 95; [2000] 3 NZLR 385 (CA).
18 Citing Lange v Atkinson (No 2), above n 15, at [21], and John Burrows and Ursula Cheer
Media Law in New Zealand (6th ed, Lexis Nexis, Wellington 2010) at [3.2.4].
to matters of genuine public interest. He notes that the common law defence
exists separately from the Act, and submits that the
time has now come to
recognise that publications about matters of genuine public interest (such as
public safety, public finances,
public health etc), provided that they are dealt
with responsibly by the journalist/publisher concerned, should not be chilled by
the threat of a defamation proceeding from a person who may be the subject of
defamatory comment within such publications.
[77] Mr Stewart rejects the suggestion that such a development would open
the door to the dissemination of serious allegations
without proper factual
enquiries being made, or natural justice being adhered to. In appropriate
circumstances, the (expanded) defence
would not be available where the
journalism had not been “responsible”.
[78] In response to Mr McLelland’s point about the publication of a
local issue online, Mr Stewart notes that the Act recognises
that publication of
a matter of public interest “in any place” in which the publication
occurs is sufficient for the
purpose of the statutory form of the defence. And
if Dr Lupton were correct on her “width of publication” point, given
the qualified privilege modern development of publishing material online, no
local content could safely be disseminated from outside
the local area to
readers who may be interested. The dissemination of local news and information
would inevitably be constrained.
[79] Mr Stewart refers to the developments of the qualified privilege defence in the United Kingdom and in Canada. In the United Kingdom, the Defamation Act 2013 now provides that it is a defence to a defamation claim to show that the statement complained of was a matter of public interest, and the defendant reasonably believed that publishing the statement was in the public interest. The Court has regard to all the circumstances of the case, and in particular, when deciding whether it was reasonable for the defendant to believe that publishing the
statement was in the public interest, must make allowance for editorial
judgment.19
19 Defamation Act 2013 (UK), ss 4(2) and (4).
[80] In Canada, the Supreme Court in Grant v Torstar Corp has
modified the common law of defamation by creating a defence called
“responsible communication of matters of public interest”.20
The Supreme Court of Canada did not propose a definition of “public
interest”, but it is not confined to political matters.
The authors of
Media Law in New Zealand summarise the decision in Grant in the
following terms:21
...The subject matter must invite public attention or substantially concern
the public because it affects the welfare of citizens
or attracts considerable
public notoriety or controversy. Some segment of the public must have a
genuine stake in knowing about
the matter. This element is not to be
characterized narrowly.
There are a number of factors which will be relevant to whether a public
interest defamatory communication is made responsibly.
These are: the
seriousness of the allegation; the public importance of the matter;
the urgency of the matter; the status
and reliability of the source; whether the
plaintiff’s side of the story was sought and accurately reported; whether
including
the defamatory statement was justifiable; whether the
statement’s public interest lay in the fact it was made rather than its
truth (reportage); and a catch-all category of other considerations where
relevant.
Discussion and conclusions on Issue 2
[81] The learned authors of Media Law in New Zealand note that
publications in the general news media are seldom covered by common law
qualified privilege, because of the difficulty of
“excess of
publication”. In its traditional form, the defence will only be
available to the publisher of a statement
to the extent that those to whom the
statement is published have a genuine interest or concern in receiving the
information.22 An article in a newspaper, or a radio or television
broadcast, will usually be received by many people who have no such interest or
concern.
[82] The learned authors of Gatley on Libel and Slander note that a plea of qualified privilege will be struck out where the defendant plainly had no obligation to put the relevant defamatory allegations into the public domain, and a wide
publication was clearly not warranted by the
occasion.23
20 Grant v Torstar Corp 2009 SCC 61, [2009] 3 SCR 640.
22 At 123.
23 Gatley on Libel and Slander, above n 14, at 1144.
[83] In the first of the Lange decisions in the Court of Appeal, Richardson P and Henry, Keith and Blanchard JJ noted in their joint judgment that there must be a duty on or interest for the defendant to publish, and the publication’s audience must not exceed those with an interest to receive it. The publication must not be too wide, and the protection of qualified privilege will be denied to the media at common law except where the public as a whole (or the section of it to which publication is made)
has the relevant interest.24
[84] When the Lange case came back before the
Court of Appeal in Lange v Atkinson (No 2),25 the Court
of Appeal referred to the familiar duty/interest test articulated by Lord
Atkinson in Adam v Ward, in the following terms:26
...a privileged occasion is ... an occasion where the person who makes a
communication has an interest or a duty, legal, social, or
moral, to make it to
the person to whom it is made, and the person to whom it is so made has a
corresponding interest or duty to
receive it.
[85] Their Honours also referred to Stuart v Bell, where Lindley
LJ said:27
The question of moral or social duty being for the judge, each judge must
decide as best he can for himself. I take moral or social
duty to mean a duty
recognised by English people of ordinary intelligence and moral principle, but
at the same time not a duty enforceable
by legal proceedings, whether civil or
criminal.
[86] The Court of Appeal in Lange (No 2) went on to note that a
privileged occasion has to be an occasion in which the duty/interest test is
satisfied.
[87] It is the occasion which is capable (or not as the case may be) of being regarded as one of qualified privilege. The fact that the subject-matter of a statement may qualify for protection (because the publisher and the recipients have a shared interest in that subject matter) does not necessarily mean that the publication will have been made on an occasion of privilege. Usually that will be so, but it will not necessarily be the case (the Court of Appeal in Lange (No 2) gave the example of a
gratuitous slur published about a politician in a publication which was
concerned
24 Lange v Atkinson [1998] 3 NZLR 424 (CA) at 437.
25 Lange v Atkinson (No 2), above n 15.
26 Adam v Ward [1917] AC 309 at 334.
27 Stuart v Bell [1891] 2 QB 341 at 350.
with a quite different topic – an occasion of that sort does not
attract common law qualified privilege).
[88] In Lange (No 2), the Court of Appeal extended the previously
understood scope of the qualified privileged defence in New Zealand by extending
it
to statements, published generally, in respect of the actions and qualities
of actual or aspiring politicians, so far as those actions
and qualities
directly affected their capacities to meet their public
responsibilities.
[89] The Court identified six conclusions about the defence of qualified
privilege as it applies to such statements:28
(1) The defence of qualified privilege may be available in respect of
a statement which is published generally.
(2) The nature of New Zealand’s democracy means that the wider
public may have a proper interest in respect of generally-published
statements
which directly concern the functioning of representative and responsible
government, including statements about the performance
or possible future
performance of specific individuals in elected public office.
(3) In particular, a proper interest does exist in respect of
statements made about the actions and qualities of those currently
or formerly
elected to Parliament and those with immediate aspirations to such office, so
far as those actions and qualities directly
affect or affected their capacity
(including their personal ability and willingness) to meet their public
responsibilities.
(4) The determination of the matters which bear on that capacity will
depend on a consideration of what is properly a matter
of public concern rather
than of private concern.
(5) The width of the identified public concern justifies the extent of
the publication.
...
(6) To attract privilege, the statement must be published on a
qualifying occasion.
[90] Lange (No 2) was, in its terms, clearly concerned with
political discourse.
28 Lange v Atkinson, above n 15, at [10] and [41].
[91] There have been a number of developments in the common law of qualified privilege since Lange (No 2). In Osmose New Zealand v Wakeling, the High Court appeared to extend the defence by treating it as one based on the publication having been made in the public interest.29 Osmose made and supplied timber preservative products and, the defendants were alleged to have made false and damaging statements about those products which were reported on Television New Zealand,
Radio New Zealand, and in newspapers published by the two major print media
publishers in New Zealand. These news media organisations
were not sued by
Osmose, but the defendants had joined them as third parties, seeking
contribution or indemnity under s 17 of the
Law Reform Act 1936.
[92] Harrison J found that the articles were published on occasions of
qualified privilege, because the material published was
of public concern. The
learned Judge considered that the high national incidence of leaky homes,
suggesting systemic failures in
the building industry which had justified
government intervention, and the significant rates of home ownership in
New Zealand,
meant that the published material was on a matter of public
concern. That was particularly so as the government had endorsed
Osmose’s product following an inquiry into leaky homes.
[93] Harrison J considered that Lange (No 2) had relaxed the
traditional limits of the qualified privilege defence, even where material had
been disseminated to the public at
large. That was especially so where the
subject-matter could be loosely defined as of a political nature. The judge
defined the
inquiry as whether or not the factual conditions necessary to
qualify for a shared interest in the publications existed.
[94] In Chinese Herald Ltd v New Times Media Ltd, the same Judge dealt with a case which was concerned with allegedly defamatory publications made in a Chinese -language newspaper which was published weekly in Auckland.30 The defendants applied for leave to file an amended defence pleading qualified privilege after the case had been set down for trial. Leave to file the amended defence was
declined on other grounds, but the Judge accepted that the defendants
shared an
29 Osmose New Zealand v Wakeling [2006] NZHC 1626; [2007] 1 NZLR 841 (HC).
30 Chinese Herald Ltd v New Times Media Ltd HC Auckland CIV-2000-404-1568,
31 October 2003.
interest with the Chinese community in New Zealand in knowing the political orientation of the newspaper published by the plaintiffs, and the links the plaintiffs’ newspaper had to the Chinese Communist Party. He accepted that an occasion of communication on that subject should be protected by qualified privilege. His Honour confirmed that it is the occasion which is privileged, rather than the communication itself or the publisher, however identification of the occasion required an examination of the nature of the material, the persons by and to whom it
was published, and in what circumstances.31
[95] Mr Stewart referred to developments in the law of qualified privilege in the United Kingdom and Canada. Under the Defamation Act 2013 (UK), it is a defence to a defamation claim to show that the statement complained of was a matter of public interest, and that the defendant reasonably believed that publishing the statement was in the public interest. The Court is required to have regard to all the circumstances of the case, including whether it was reasonable for the defendant to believe that publishing the statement was in the public interest. Mr Stewart also referred to the development of the defence of “reasonable communication of matters
of public interest” by the Supreme Court of Canada, in Grant v
Torstar Corp.32
[96] Prior to being replaced by s 4 of the Defamation Act 2013, the
defence of qualified privilege in the United Kingdom appears
to have been
broadened further with the more recent decision of the House of Lords
in Jameel v Wall Street Journal.33 The defence in that
case was held to be broad enough to protect the material, rather than the
occasion. The context of the article
as a whole is used to determine public
interest, so if an allegation is serious, the article has to make a real
contribution to the
matter of public interest.34
[97] Having regard to those developments, Mr Stewart submitted that the time has come to recognise that matters of genuine public interest (such as public safety,
public finances, public health, etc) should be within the ambit
of the qualified
31 Applying Reynolds v Times Newspapers Ltd [2001] 2 AC 127 per Lord Hope at 229 – 235, and
Lange v Atkinson (No 2), above n 15, at [23].
32 Grant v Torstar Corp, above n 20.
33 Jameel v Wall Street Journal Europe [2006] UKHL 44, [2007] 1 AC 359.
34 At [46] and [51].
privilege defence, provided they are dealt with responsibly by the journalist/publisher concerned. He submitted that the publication should not be chilled by the threat of defamation from a person who may be the subject of defamatory comment within that publication. Mr Stewart went on to submit that such matters as the absence of proper enquiries, or the failure to seek comment, might be sufficient to deprive the journalist of the defence on the grounds that the journalism undertaken had not been “responsible”, but that circumstance should not preclude the Court from extending the broad defence as a whole. In his submission it is clear that in the “more progressive parts of the common law world” the defence of common law qualified privilege has developed for the benefit of informing public
discussion and debate in relation to matters of genuine public
interest.35 The time is
right for a further development in the New Zealand law, under which the
common law privilege defence would be extended to cover all
general media
publications on matters of public interest.
[98] The starting point in New Zealand cases that fall outside
the already established occasions in which the privilege
arises, is that it is
a question for the Court, having regard to all the circumstances, whether
an occasion should be regarded
as privileged.36 The ultimate
question is whether it is in the public interest to recognise the privilege and
strike the balance between freedom of
expression and protection of reputation
accordingly.37
[99] In Fairfax’s favour, recent High Court authority arguably does support the submission that common law qualified privilege is developing to encompass statements published generally about matters of public concern byond those related to representative and responsible government.38 I therefore accept that it is arguable for Fairfax that, although the jurisprudential basis of the defence is yet to be fully
articulated, and the appellate courts have not clarified its parameters,
a more general
36 Karam v Parker [2014] NZHC 737 at [208].
37 Vickery v McLean [2006] NZAR 481 (CA) per Tipping J, cited in Karam v Parker [2014] NZHC
737 at [208].
38 Karam v Parker, above n 36, at [201]–[214]; Cabral v Beacon Printing & Publishing Company
Ltd [2013] NZHC 2584 at [28]; Osmose New Zealand Ltd v Wakeling, above n 28.
public interest-based qualified privilege defence may now
be part of
New Zealand law.
[100] But whatever form such an expanded defence might take, I think it
must inevitably retain the requirement that the publication
be concerned with
matters that are of genuine public concern. The need for the subject-matter to
be genuinely of public concern
was accepted in Lange (No 2), where the
Court of Appeal held that there must be qualifying subject-matter as well
as a qualifying occasion.39 One of the Court’s
“conditions” was that the width of the “identified public
concern” must justify
the extent of the publication.40
And as Tipping J observed in Vickery v McLean, the public
interest value must be such that freedom of expression ought to prevail over
reputational interests:41
[18] ... it is necessary for Mr Vickery to establish his asserted
privilege by reference to first principles. He must show that
it is in the
public interest (for the common convenience and welfare of society as Parke B
classically put it in Toogood v Spyring ...) that on an occasion such as
the present, freedom of expression should prevail over protection of
reputation.
[101] The protection of reputational interest is not a consideration to be lightly dismissed in the balancing exercise which is required when considering the common law qualified privilege defence. As Associate Judge Bell found in Cabral, it is useful to reflect on the interests which the law of defamation is intended to protect.
His honour referred42 to the speech of Lord Nicholls
in Reynolds v Times
Newspapers Ltd, where his Lordship said:
Reputation is an integral and important part of the dignity of the
individual. It also forms the basis of many decisions in a democratic
society
which are fundamental to its well-being: whom to employ or work for, whom to
promote, whom to do business with or to vote
for. Once besmirched by an
unfounded allegation in a national newspaper, a reputation can be damaged
forever, especially if there
is no opportunity to vindicate one’s
reputation. When this happens, society as well as the individual is the loser.
For it
should not be supposed that protection of reputation is a
matter of importance only to the affected individual and his
family.
Protection of reputation is conducive to the public good. It is in the public
interest that the reputation of public figures
should not be debased falsely.
In the political field, in order to make an informed choice, the electorate
needs to be able to
39 Lange v Atkinson (No 2), above n 15, at [13].
40 Conclusion (5) in Lange v Atkinson (No 2), quoted at [89] of this judgment.
41 Vickery v McLean, above n 37.
42 Cabral v Beacon Printing & Publishing Company Ltd, above n 38, at [24].
identify the good as well as the bad. Consistently with these
considerations, human rights conventions recognise that freedom of
expression is
not an absolute right. Its exercise may be subject to such restrictions as are
prescribed by law and are necessary
in a democratic society for the
protection of the reputations of others.
[102] Turning to the facts of this case, they are nothing like
the facts in Lange (No 2), or even Osmose. In both cases,
there was genuine and legitimate nationwide interest in the subject-matter of
the publications. And in Chinese Herald Ltd, Harrison J considered that
the relatively narrow target audience (Chinese readers in New Zealand) had
sufficient interest in the
subject matter of the publication. There is nothing
of that sort here. The subject-matter of the article arose from a most unusual
and difficult set of circumstances which confronted a particular medical
practitioner in the course of a private consultation with
one of her
patients.
[103] And in my view the subject matter of the article was less a matter of proper public interest or concern than the statements involved in Cabral v Beacon Printing
& Publishing Company Ltd, where the qualified privilege defence
was struck out. 43
In that case, Associate Judge Bell found that while an article on the development of a geothermal project requiring a very substantial investment and involving both community and commercial interests was newsworthy, and would have met any public interest requirement for a defence of honest opinion, it did not meet the high threshold of public interest necessary to attract the defence of a qualified privilege. The Associate Judge considered that something more was required – “something so important that it entitles the defendants to tell the readers of the Beacon about it even though it defames the plaintiff and is not true.” His honour was unable to find any
such “outranking element”44 on the facts of the
case.
[104] Fairfax knew from the Letter that Mrs Groombridge was approximately 20 weeks’ pregnant at the time, had had two pregnancy tests previously, both of which returned negative results, and had experienced heavy bleeding in the period leading up to her consultation with Dr Lupton. The situation appears to have been highly unusual, and I do not think it could possibly have been concluded from the Letter
that women in New Plymouth, or in the Taranaki area generally, needed to
be warned
43 Cabral v Beacon Printing & Publishing Company Ltd, above n 38.
44 At [36].
about Dr Lupton. The Letter recorded Dr Lupton’s advice that it is
very rare to discover a pregnancy of approximately 20 weeks
if a patient denies
symptoms of pregnancy, has received two negative home pregnancy tests, and has
reportedly experienced regular
periods. And the Deputy Commissioner herself
acknowledged in the Letter the “significant difficulties in making
the
diagnosis, given what appeared to be regular periods, no other symptoms
of pregnancy, and two negative pregnancy tests”.
The Deputy
Commissioner concluded in the Letter that Dr Lupton’s management
(apart from not arranging for an
urgent urine or blood test to exclude the
possibility of pregnancy) had been “conscientious and
appropriate”.
[105] While the circumstances may have been of interest or concern to
medical practitioners, I do not think it reasonably arguable
that the
subject-matter of the article was of public concern to readers of the
Taranaki Daily News generally. Fairfax presumably took the view that
this was a story with a high “human interest” factor, and that may
well
have been so. It may well have been “interesting” to the
readers of the Taranaki Daily News (or “newsworthy” to adopt
the language of Associate Judge Bell in Cabral), but that is not the same
thing as saying that the subject-matter was of public interest or concern,
sufficient to render Fairfax
immune from a defamation suit if it happened to
defame Dr Lupton in the article.
[106] This case is not about a situation where the publisher was concerned
to inform public discussion and debate in relation to
matters of genuine public
interest, which was the broad justification Mr Stewart advanced for an
extension of the defence.
No topic for any such discussion or debate is
suggested by the article, and nor was there any question of drawing to the
attention
of those who needed to know, some significant public safety or other
national concern (as in Osmose). As I have said, this case is concerned
only with a private consultation between a doctor and her patient, and I see no
Taranaki-wide
public concern or interest in the subject matter of the
publication, such as might have justified the publication. There was nothing
in
what Fairfax had to tell readers of the article that was important enough to
trump Dr Lupton’s reputational interests.
[107] I do not consider the overseas developments to which Mr Stewart
refers assist
Fairfax. In Grant v Torstar, the Supreme Court of Canada made it clear that a
requirement of the new defence of “responsible communication on matters
of public interest” was (as the name given to
the defence suggests) that
the publication had to be on a matter of public interest. The majority
said:45
First, and most fundamentally, the public interest is not synonymous with
what interests the public. The public’s appetite
for information on a
given subject – say, the private lives of well-known people – is not
on its own sufficient to render
an essentially private matter public for the
purposes of defamation law.
[108] The majority also noted that:46
To be of public interest, the subject matter must be shown to be one inviting
public attention, or about which the public has some
substantial concern because
it affects the welfare of citizens, or one to which considerable notoriety or
controversy has attached.
[109] I do not think it arguable for Fairfax in this case that the subject
matter of the article was one which either affected the
welfare of citizens
(thus giving rise to substantial public concern), or was one to which
“considerable notoriety or controversy”
had attached.
[110] Nor can recourse to developments in the United Kingdom afford Fairfax any arguable common law qualified privilege defence. The House of Lords made it clear in Jameel that the subject matter of the publication must be of real public interest. Their Lordships variously referred to “the value of informed public debate of significant public issues,”47 the “duty/interest test based on the public’s right to
know, which lies at the heart of the matter”48, and
the publication of information
“that the public as a whole, as opposed to a specific individual or individuals, was entitled to know”49 (emphasis added in each case). And Baroness Hale considered that, as a first condition for the expanded defence to apply, there must be a “real
public interest in communicating and receiving the information”.
50
45 Grant v Torstar Corp, above n 20, at [102].
46 At [105].
47 Jameel v Wall Street Journal Europe, above n 33, at [28], per Lord Bingham of Cornhill
(referring to the decision of the House of Lords in Reynolds).
48 At [106], per Lord Hope of Craighead.
49 At [130], per Lord Scott of Foscote, referring to the speech of Lord Nicholls in Reymolds.
50 At [147].
[111] The Defamation Act 2013 (UK) abolished the so-called Reynolds
defence and substituted a new defence of “publication on a matter of
public interest”. But this new defence still requires
that the
statement complained of must have been or formed part of a statement on a
matter of public interest.51
[112] Accordingly, I conclude that, whether on the law as it presently
stands or as it might reasonably be developed, there is no
reasonable prospect
of Fairfax’s common law qualified privilege defence being upheld at
trial.
[113] In reaching that conclusion, I am acutely aware that the
Court’s approach to strike-out applications in developing areas
of law
should be cautious. But I am satisfied that striking out the defence is the
proper course to take in this case. The subject-matter
of the article, and the
occasion of its publication, were clearly not of sufficient public interest or
concern to justify Taranaki-wide
publication in a daily newspaper.
[114] There will accordingly be an order striking out the common law
qualified privilege defence.
Result
[115] I make orders striking out both of the qualified privilege defences.
In those circumstances, there is no need to deal with
Dr Lupton’s
application under s 41 of the Act.
[116] Dr Lupton is entitled to costs, which are awarded on scale
2B, plus disbursements as fixed by the
Registrar.
Solicitors:
DLA Piper, Wellington for plaintiff
Izard Weston, Wellington for defendant
Associate Judge Smith
51 Defamation Act 2013 (UK), s. 4(1)(a).
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