Craig v Slater

• Jurisdiction: New Zealand
• Judge: Edwards J
• Judgment Date: 27 January 2021
• Neutral Citation: [2021] NZHC 30
• Court: High Court
• Docket Number: CIV-2015-404-001923
• Date: 27 January 2021

UNDER the Defamation Act 1992

Between

Colin Graeme Craig

Plaintiff

and

Cameron John Slater

First Defendant

Social Media Consultants Limited

Second Defendant

[2021] NZHC 30

Edwards J

CIV-2015-404-001923

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Damages, Defamation, Tort — quantum of damages assessment for defamation — compensatory, aggravated and punitive damages sought — reputational damage — assessment of the plaintiff's reputation before the defamatory remarks were made — costs were a lay litigant — the plaintiff had failed on some claims — Defamation Act 1992

Appearances:

C G Craig (Self-represented Plaintiff) in Person

No Appearance of, or for Defendants

JUDGMENT OF Edwards J

This judgment was delivered by me on 27 January 2021 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

1 Mr Slater and his company, Social Media Consultants Ltd (in liq) (SMC), were found by the High Court and the Court of Appeal to have defamed Mr Craig through ten publications. 1 Other claims of defamation were dismissed. The Court of Appeal directed damages and costs to be assessed in this Court. 2

2 Mr Craig seeks compensatory, aggravated and punitive damages in the sum of at least $500,000. He seeks costs, being disbursements he incurred as a self-represented litigant, of approximately $158,000. The awards are unlikely to be satisfied as Mr Slater is now bankrupt and his company is in liquidation. 3 Neither defendant appeared at the hearing.

3 As the High Court Judge (Toogood J) who heard the substantive claim has since retired, it falls to me to determine the quantum of the damages and costs awards.

A brief background

4 The background is set out in detail in the High Court judgment and summarised in the Court of Appeal judgment. 4 That means I may be brief.

5 Mr Craig is a businessman. He is also the founder of the Conservative Party, which contested the 2011, 2014 and 2017 general elections. He was the party's leader until 2015.

6 Ms MacGregor was employed as the party's Press Secretary shortly after it was founded in 2011. She resigned in September 2014, just days before the general election. Following her resignation, Ms MacGregor accused Mr Craig of sexual harassment. Those claims and others were subsequently settled at a mediation.

7 The allegations of sexual harassment were leaked to Mr Slater. From 19 June 2015 until 29 July 2015, Mr Slater made various statements about Mr Craig which were published on the Whaleoil blog site, NewsTalk ZB and the One News Now website.

8 The Court of Appeal summarised the nature of the statements made as follows: 5

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.

9 Mr Craig commenced proceedings for defamation against Mr Slater and SMC, the publisher of Whaleoil. Mr Slater counterclaimed against Mr Craig for defamation relating to statements made in a pamphlet published and distributed by Mr Craig.

10 The High Court delivered judgment in October 2018. 6 Mr Slater was found liable in defamation for four publications, but the other claims were dismissed on the grounds that they were either not defamatory or were protected by defences of truth, honest opinion, or responsible public interest communication. The Judge declined to award Mr Craig damages. Mr Slater's counterclaim was dismissed on the basis that Mr Craig's pamphlet was a justifiable response to an attack made by Mr Slater and thus protected by qualified privilege.

11 The award of costs was dealt with in a separate judgment. 7 Costs (albeit reduced) were awarded to Mr Slater on the basis that Mr Craig's claim had largely failed. The costs of the counterclaim were ordered to lie where they fell.

12 Mr Craig appealed both judgments. The substantive appeal was successful in in relation to eight statements, making a total of 10 defamatory publications. 8 Each of the defamatory publications are set out later in this judgment. The Court of Appeal

also found that the Judge had erred by failing to award damages. 9 Mr Craig was found to be the successful party on the substantive claim and in his defence of the counterclaim, and accordingly entitled to costs. The determination of damages and costs were remitted back to the High Court in accordance with the Court of Appeal's judgment

The defamatory statements

Publication 1 — 19 June 2015

13 Publication 1 was a Newstalk ZB radio interview with Mr Slater on 19 June 2015. Mr Slater said in this radio interview that he had “copies of sext messages, you know, dirty text messages” that Mr Craig had sent Ms MacGregor.

14 The High Court found the essential sting of the statement was that Mr Craig had sexually harassed Ms MacGregor by sending her, in writing, sexually orientated messages that were unsolicited. 10 The statement was found by Toogood J to be substantially true in material respects. 11 That finding was upheld on appeal. 12

15 In the same radio interview, Mr Slater said the harassment had been of a sexual nature and Mr Craig had settled for a large sum of money, believed to run into six figures.

16 The High Court found that the statement that Mr Craig had paid Ms MacGregor a six-figure sum was not true but that the material element of the allegation, being that Mr Craig had provided Ms Gregor with a substantial financial benefit in exchange for her not pursuing a justifiable claim that he had been guilty of sexual harassment, was true. 13

17 The Court of Appeal disagreed, saying: 14

[73] In our view, the difference between publication and fact here was material. Mr Slater repeated the “six figures” reference three times in the course of the interview, to emphasise the self-acknowledged seriousness of Mr Craig's behaviour. An ordinary listener or reader would measure the seriousness of the sexual harassment by the sum paid to settle, and that it must have been very serious indeed to warrant a six-figure settlement. In fact, all that could be established was that a sum of [$19,000] may have been exchanged because, or in part because, of Mr Craig's misconduct. This is not a distinction without a material difference. This challenge succeeds with respect to the “six-figure” allegations in publication 1, and publications 7 and 9.

Publication 4 — 20 June 2015

18 Publication 4 was a post on Whaleoil headed “Will the Conservative Party survive Colin Craig?”. The relevant part of the post provided: 15

There is simply so much more to come. There are financial issues, contractual issues, sleight-of-hand with loans, GST rebates and other strategic trickery. And that's all before the nasty stuff, like letters written by a married man to beg another woman for an affair. And then no longer begging, but putting pressure on this woman financially. TXT messages. Unsolicited and unwanted. Some so lewd they are SXT messages.

19 Toogood J found that the passage carried the inference that Mr Craig had placed Ms MacGregor under financial pressure to sleep with him. 16 As there was no evidence of this, the Judge found that the imputation was neither true nor materially true. 17 Despite finding that publication 4 contained some matters of public interest, the Judge nevertheless rejected the defence of responsible communication in relation to the statement. 18

Publication 6 — 20 June 2015

20 Publication 6 arose out of a post by Mr Slater on Whaleoil on 20 June 2015. The relevant passage in the post is as follows: 19

Worse than untrue, a deliberate lie. Craig has also misled the board over the amount of the settlement and the nature of the settlement. He has told the board one amount that is many tens of thousands of dollars away from the real settlement amount … Having a chaperone, which I am told was at the request

of Rachel MacGregor, just provides even more evidence of the creepy behaviour of Colin Craig.

…

If this carries on much more I predict death by a thousand cuts as TXT, SXTS and more musings from “Creative Colin” make their way into the public view.

21 Toogood J found that the pleaded imputations arising from this statement were proved and the statement was therefore defamatory. 20 As they were not expressions of opinion, the defence of honest opinion was not available. 21 However, the defence of truth applied in relation to some of the imputations with the exception of the suggestion that Mr Craig had engaged in behaviour with Ms MacGregor which was so morally reprehensible that the Board of the Conservative Party had to put chaperones in place to protect her. 22

22 The Court of Appeal agreed that the statements were defamatory but reversed the finding that the public interest communication defence had been established. 23

Publication 7 — 21 June 2015

23 Publication 7 was a post on Whaleoil headed “Exclusive: Emails reveal Conservative Party meltdown”. The post included statements in one of Mr Stringer's emails as follows: 24

I am disappointed half of us were missing tonight from the special meeting called to discuss these matters “(that are of some years standing)”. We had documentary evidence in the form of hand written notes, letters signed by Colin, his SXTs and emails for you to see, and I wanted to hear Colin's side of the story.

…

I have … spoken to the media tonight to protect my own reputation and that of the Party from a man who is morally bankrupt and has lied to us as a Board for months and months.

The explicit and salacious details of Colin's indiscretions with women other than his wife...