Craig v Slater

• Jurisdiction: New Zealand
• Judge: Kós P
• Judgment Date: 23 July 2020
• Neutral Citation: [2020] NZCA 305
• Court: Court of Appeal
• Docket Number: CA696/2018
• Date: 23 July 2020

Between

Colin Graeme Craig

Appellant

and

Cameron John Slater

First Respondent

Social Media Consultants Limited

Second Respondent

[2020] NZCA 305

Court:

Kós P, Gilbert and Wild JJ

CA696/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Defamation — appeal against a High Court decision which held that some publications by the respondent did not bear the defamatory meanings alleged — allegations of sexual harassment — defences of truth, honest opinion or responsible public interest communication — English practice of referring to three tiers of possible meaning — Defamation Act 1992

Counsel:

J G Miles QC and T F Cleary for Appellant

W Akel and E A Keall as counsel assisting the Court

• A The appeal is allowed, to the extent set out at [131] below.

• B The appellant is entitled to costs in this Court for a standard appeal on a band A basis plus any disbursements. We certify for second counsel.

• C Damages are remitted for redetermination in the High Court, along with costs therein, in light of the terms of this judgment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Kós P)

1 Mr Craig was an aspiring politician. 1 From 2011 to 2015 he was the leader of a small political party, the Conservative Party. The party contested the 2011, 2014 and 2017 general elections. It gained modest success at the first two, but failed to cross the five per cent threshold that would have earned it parliamentary seats.

2 From 2011 until 2014, Rachel MacGregor was the press secretary for Mr Craig and the party. It is evident that an attraction developed between the two, part spiritual, part romantic and part sexual. Some sexual activity (short of intercourse) occurred between them on one occasion, on the night of the 2011 general election. Ms MacGregor then came to her senses and sought to revert to a professional relationship only. 2 The same cannot be said of Mr Craig. He continued to write Ms MacGregor lengthy personal letters and poems.

3 Following Ms MacGregor's resignation in September 2014, she alleged that Mr Craig had sexually harassed her and that she had not been paid in full. A mediated, confidential settlement ensued in which Mr Craig agreed to pay Ms MacGregor $16,000 and forgive a debt of some $19,000, and Ms MacGregor agreed to withdraw her sexual harassment claim.

4 Information about Mr Craig's conduct towards both Ms MacGregor and the party board were leaked to Mr Slater, a conservative activist who ran a now-defunct blog site called Whaleoil. 3 Mr Slater's sources were two. First, a party board member, John Stringer, who harboured reservations about Mr Craig, and had his own ambitions. Secondly, a friend of Ms MacGregor's, Jordan Williams. He was another conservative activist who, for reasons best known to himself, felt at liberty to impart his friend's confidences. All three have since ended up in defamation proceedings with Mr Craig. 4

5 On 19 June 2015, Mr Craig announced at a press conference that he was standing down as party leader. From 19 June 2015 until 29 July 2015, Mr Slater made various statements about Mr Craig on Whaleoil, NewsTalk ZB and on the One News Now website. The relevant statements are set out in a schedule appended to this judgment.

6 The essence of Mr Slater's statements was that Mr Craig had sexually harassed Ms MacGregor (including by sending her sexually explicit text messages or “sexts”), put her under financial pressure to sleep with him, paid her a six-figure sum in settlement, sexually harassed at least one other woman, lied to the party board about his conduct and how much he had paid Ms MacGregor, and lied to the media about why two board members had left the party.

7 In response Mr Craig held another press conference, on 29 July 2015, and published a pamphlet entitled “Dirty Politics and Hidden Agendas”. It was subtitled “Colin Craig vs The Dirty Politics Brigade … and their Campaign of Lies”, and sub-subtitled “A story that had to be told”. The “Brigade” was identified as Messrs Williams, Slater and Stringer, who were “the schemers in plot against Craig”. Copies were delivered to 1.6 million letterboxes.

8 Mr Craig commenced this proceeding against Mr Slater and an associated company, Social Media Consultants Ltd. Mr Slater counterclaimed on the basis the pamphlet defamed him.

Judgments

9 In a lengthy and comprehensive judgment of some 249 pages, delivered in October 2018, Toogood J held that Mr Slater was liable in defamation for two publications: that Mr Craig had placed Ms MacGregor under financial pressure to

proceedings in defamation against Mr Stringer and Mr Stringer filed proceedings in defamation against Mr Craig. Mr Craig's claim and parts of Mr Stringer's claim were stayed by the High Court in Craig v Stringer [2019] NZHC 1363, [2019] 3 NZLR 743 and this stay has since been set aside by this Court in Craig v Stringer [2020] NZCA 260. The remainder of Mr Stringer's claim was determined against Mr Stringer by the High Court in Stringer v Craig [2020] NZHC 644. Mr Craig filed proceedings in defamation against Ms MacGregor but did not serve them on her until she learnt of the proceedings and filed a counterclaim for defamation. The High Court determined that Mr Craig and Ms MacGregor defamed each other to a limited extent in Craig v MacGregor [2019] NZHC 2247.

sleep with him, and that he had sexually harassed at least one other victim. 5 The other publications were either not defamatory, or protected by defences of truth, honest opinion or responsible public interest communication. The Judge declined to award Mr Craig damages: his reputational loss was caused almost entirely by his own actions, and a declaration would be adequate vindication

10 Mr Slater's counterclaim was dismissed on the basis Mr Craig's pamphlet was a justifiable response to an attack made by Mr Slater and thus protected by qualified privilege.

11 In a separate costs judgment, itself of some 33 pages, the Judge held that, as Mr Craig's defamation claim had largely failed, costs would on balance be awarded to Mr Slater, albeit on a reduced basis. 6 On the counterclaim he held each party succeeded and failed in more or less equal measure. Costs on the counterclaim would lie where they fell.

Appeal

12 Mr Craig appeals the judgments below on the basis that the Judge erred in seven respects. The errors alleged are indicated in the seven issues set out below at [14].

13 Mr Slater is now a bankrupt, and his company is in liquidation. Neither participated in the appeal. We appointed Mr Akel as counsel assisting, to act as contradictor.

Issues on appeal

14 Seven issues arise on this appeal:

• (a) Did the High Court err in finding five publications did not bear the meanings alleged by Mr Craig?

• (b) Did the High Court err in finding certain meanings not defamatory?

• (c) Did the High Court apply the correct approach to determining whether publications were “true, or not materially different from the truth”?

• (d) Did the High Court err in finding the defence of honest opinion applied to publication 16?

• (e) Did the High Court err in finding the responsible public interest communication defence applied to publications 1, 6, 7, 9 and 16?

• (f) Did the High Court err by failing to award Mr Craig damages?

• (g) Did the High Court err in its costs judgment?

Issue one: Did the High Court err in finding five publications did not bear the meanings alleged by Mr Craig?

15 For a statement to bear a (defamatory) meaning alleged, two fundamental pre-conditions must be met. First, it must be the meaning an ordinary, reasonable person would draw or infer from the words, taken in their context and in light of generally known facts. 7 Secondly, that meaning must be pleaded. 8

16 Whether a statement is capable of bearing a particular meaning is a question of law; whether it in fact conveys that meaning is a question of fact. Here, both tasks fell to the Judge, it being a Judge-alone trial. This is a general appeal, and it is for this Court to reach its own conclusion on whether the statements can bear the meaning alleged. It is in as good a place to do so as the trial Judge. The observations of Lord Kerr in Stocker v Stocker, counselling “disciplined restraint” in differing from a trial Judge on meaning, 9 need to be read in light of the more intrusive standard of

review on a general appeal in New Zealand commanded by Austin, Nichols & Co Inc v Stichting Lodestar. 10

Publication 4 — deceived the board

17 Publication 4 was a Whaleoil post on 20 June 2015. The particular words at issue referred to “financial issues, contractual issues, sleight-of-hand with loans, GST rebates and other strategic trickery”. In context they were attributable to Mr Craig. Mr Craig pleaded that the natural and ordinary meaning of those words was that Mr Craig “[t]ricked, misled and deceived the [board] in relation to loans and GST rebates”.

18 The Judge held the statement did not in fact bear that meaning. He said it only contained “vague insinuations” that Mr Craig was “engaged in some unspecified way in irregular dealings”. 11 We would accept Mr Miles' submission that insinuations as to irregularity in financial dealings may be enough to found defamation, and that the ordinary reader, whose eyes the Court sees through for these purposes, has a considerable capacity to read between the lines. 12

19 The pleading here is however a narrow one. It is that the ordinary reader would draw from the words that Mr Craig had tricked, misled and deceived the board in relation to loans and GST rebates. We agree with the Judge that, read in the context of the post as a whole, that particular, extended meaning would not readily commend itself to the ordinary reader. It is not therefore the natural and ordinary meaning of the words, as pleaded. This challenge therefore fails.

Publication 10 — a danger to women?

20 Publication...