Craig v Macgregor

• Jurisdiction: New Zealand
• Judge: Kós P
• Judgment Date: 04 May 2021
• Neutral Citation: [2021] NZCA 156
• Court: Court of Appeal
• Docket Number: CA514/2019
• Date: 04 May 2021

Between

Colin Graeme Craig

Appellant

and

Rachel Joy Macgregor

Respondent

[2021] NZCA 156

Court:

Kós P, Clifford and Collins JJ

CA514/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Defamation — appeal against a High Court decision which found that both the appellant and respondent had defamed each other — defamation — defences — qualified privilege — defence of reply to attack privilege — attacking a third party when responding to attacks made by others

Counsel:

S J Mills QC and T F Cleary for Appellant

H J P Wilson, L Clark and B A Mathers for Respondent

• A The appeal is dismissed.

• B The appellant must pay the respondent costs for a standard appeal on a band A basis, with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Kós P)

1 Between 2011 and 2015 the appellant, Mr Colin Craig, was the leader of the Conservative Party. Between 2011 and 2014 the respondent, Ms Rachel MacGregor, was the press secretary for Mr Craig and the party. Their tortured employment and personal relationships were the subject of an earlier decision of this Court: Craig v Slater. 1 That proceeding was commenced in August 2015. Ms MacGregor gave evidence in Craig v Slater, but was not a party. In that earlier proceeding Toogood J found Mr Craig had engaged in moderately serious sexual harassment of Ms MacGregor, a conclusion this Court upheld on appeal. 2 In this appeal Mr Craig in effect attempts to challenge that conclusion.

2 The proceeding underlying the present appeal, brought against Ms MacGregor herself, was filed in November 2016 but not served for some eight or nine months. Ms MacGregor however found out about the proceeding and filed a defence and counterclaim in June 2017. In the High Court, Hinton J found both Mr Craig and Ms MacGregor defamed each other to a limited extent. 3 Relevantly, the Judge also held Mr Craig had sexually harassed Ms MacGregor. That meant a defence of truth was unavailable to him on his defamatory statements that Ms MacGregor had falsely claimed to have been sexually harassed. The Judge also held Mr Craig's statements were not protected by the qualified privilege applying to replies to attacks.

Appeal

3 Mr Craig appeals that High Court decision on two grounds:

• (a) Issue one: whether the Judge erred in finding Mr Craig sexually harassed Ms MacGregor (meaning his defence of truth should succeed)?

• (b) Issue two: whether the Judge erred in finding Mr Craig lost the qualified privilege he would otherwise have had?

4 Before addressing those issues, we explain briefly this Court's prior decision in Craig v Slater and the defamation claims made by Ms MacGregor which are the subject matter of this appeal. 4

This Court's prior decision: Craig v Slater

5 In the High Court in October 2018, Toogood J concluded that Mr Craig sexually harassed Ms MacGregor, and that the degree of sexual harassment was “moderately serious”. 5 Our subsequent judgment on appeal records: 6

The primary defamatory imputation of Publication 1 was that Mr Craig had seriously sexually harassed Ms MacGregor. The Judge held that imputation to be true, finding Mr Craig's conduct amounted to “moderately serious” sexual harassment. Though Mr Craig may have been encouraged by Ms MacGregor's response to a letter sent in February 2012, his attentions were unwelcome thereafter. Though Mr Craig sought to reassure Ms MacGregor she would not lose her job over rejecting his further advances following the 2011 election night, the power imbalance in the workplace relationship meant Ms MacGregor chose not to complain for that very reason. Though not the primary factor, the harassment was an operative factor in Ms MacGregor's decision to resign.

6 We dismissed Mr Craig's challenge to that finding of moderately serious sexual harassment. In particular, we said: 7

… Mr Craig's conduct was intentional, sexualised conduct directed at a workplace subordinate. The Judge was also right to hold that where a complaint of sexual harassment involves an allegation of intentional sexualised conduct or language, and there is a power imbalance favouring the perpetrator over the recipient, it is reasonable to draw a rebuttable inference that the sexual conduct or language was unwelcome, whether the complainant objected at the time of the alleged harassment or not.

7 We continued: 8

… although Ms MacGregor did not make it known that Mr Craig's advances were unwanted, the Judge was perfectly entitled to find on the evidence before him that she did not do so because of her concerns over losing her job. Mr Craig was aware she was in some financial difficulty.

8 Of relevance to the second issue in this appeal is our conclusion that a confidentiality clause in the settlement agreement between the two did not give Mr Craig: 9

… licence to mislead the board by saying that Ms MacGregor's claims were “ridiculous”, and … leading them to believe that the claims were baseless and the product of her infatuation with Mr Craig.

9 Mr Craig did not seek leave to appeal to the Supreme Court.

Ms MacGregor's claims

10 This appeal is about defences. There is no contest over the actionable defamatory meanings drawn by the Judge from the publications complained of. Relevantly, these were as follows: 10

• (a) Ms MacGregor's first cause of action: statements made by Mr Craig (and through his wife) at a press conference with his wife on 22 June 2015, which bore meanings that Ms MacGregor had made false claims of sexual harassment against Mr Craig and was a liar.

• (b) Ms MacGregor's second cause of action: statements made by Mr Craig in a letter to party members on 25 June 2015 which bore meanings as in (a), as well as that Ms MacGregor had withdrawn her false claims of sexual harassment and had some kind of (continuing) inappropriate relationship with him, a married man.

• (c) Ms MacGregor's third cause of action: statements made by Mr Craig (and again through his wife) at a second press conference with his wife on 29 July 2015 which bore meanings as in (a), as well as that Ms MacGregor had victimised the Craigs and was the sort of person who would victimise and hurt a family.

• (d) Ms MacGregor's fourth cause of action: statements made by Mr Craig in his “Dirty Politics” booklet published 29 July 2015 which bore meanings as in (a), as well as that Ms MacGregor had withdrawn her claims of sexual harassment and had falsely played “the victim”.

11 The gravamen of each publication was that expressed in [10(a)]; the further meanings are really variations on the theme that her allegation of sexual harassment was false.

Issue one: Sexual harassment — and whether we should revisit the subject

12 A chronology assists:

• (a) the defamatory statements by Mr Craig about Ms MacGregor were made in June and July 2015;

• (b) the claim against Mr Slater was commenced in August 2015;

• (c) the claim against Ms MacGregor was filed in November 2016;

• (d) Hinton J heard the present proceeding in September and October 2018 (with a further telephone hearing in April 2019);

• (e) Toogood J's judgment in Craig v Slater was delivered on 19 October 2018 (and an appeal was filed shortly afterwards);

• (f) Hinton J delivered her judgment in September 2019; and

• (g) this Court's judgment in Craig v Slater was delivered in July 2020.

13 Hinton J of course appreciated the interweaving of time and judgment presented certain problems. Her judgment records: 11

I had raised with the parties at the outset of this hearing my concerns over potential conflicting findings, particularly since the question of whether there had been sexual harassment was at issue in both. They were in agreement that the decision in Craig v Slater would not affect this proceeding.

As will become apparent, we think the view taken by the parties at that time too simplistic. 12 The authority of a prior High Court judgment is not a matter of purely private bargain. Public policy intrudes.

14 The Judge held Mr Craig sexually harassed Ms MacGregor. 13 The letters received from 2012 onwards and texts or comments about sleeping between her legs were of a sexual nature. 14 Ms MacGregor did not welcome Mr Craig's conduct from 2012 onwards. The language in Ms MacGregor's texts from early 2012 was affectionate and appreciative of Mr Craig, but the Judge considered it was in response to Mr Craig's flattery of her rather than encouraging or reciprocating Mr Craig's sexual comments. The Judge also found Ms MacGregor did not welcome the massages and hugs from Mr Craig. It did not matter that Ms MacGregor did not object to Mr Craig's conduct as an employee in her position likely would not. 15

15 The Judge accepted Ms MacGregor may have been infatuated with Mr Craig much earlier, but not in June 2014 as stated in evidence by two party employees. Though considering the witnesses honest, the Judge considered their evidence inconsistent with the correspondence between Mr Craig and Ms MacGregor at the time and neither knew of the letters and texts Mr Craig sent Ms MacGregor nor whether she welcomed the letters. 16

Submissions

16 Mr Mills QC, for Mr Craig, sought to challenge the Judge's finding on the facts. In written submissions he sought to point to the terms of the correspondence as inconsistent with sexual harassment. Ms MacGregor's evidence acknowledged a positive reaction to his letters, and she considered him a kind man in 2013. The Judge found Mr Craig and Ms MacGregor had a positive and affectionate relationship even after 2012 and exchanged affectionate correspondence through to the end of 2013. Ms MacGregor's responses to Mr Craig's letters went beyond not

wanting to offend an employer and when correspondence was unwelcome, she made that known. To the extent Ms MacGregor's view of Mr Craig changed, her recollection of events was “limited or confused”. The Judge wrongly disregarded the evidence of...