Craig v Stringer

• Jurisdiction: New Zealand
• Judge: Gilbert J
• Judgment Date: 30 June 2020
• Neutral Citation: [2020] NZCA 260
• Court: Court of Appeal
• Docket Number: CA312/2019
• Date: 30 June 2020

Between

Colin Graeme Craig

First Appellant

Helen Ruth Craig

Second Appellant

Angela Maria Storr

Third Appellant

Kevin Eric Stitt

Fourth Appellant

Stephen Dylan Taylor

Fifth Appellant

and

John Charles Stringer

Respondent

[2020] NZCA 260

Court:

Kós P, Gilbert and Goddard JJ

CA312/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Civil Procedure, Defamation — appeal against a High Court decision which had stayed defamation proceedings indefinitely on the basis that their pursuit would be oppressive to a prospective witness and therefore an abuse of process of the Court — Defamation Act 1992

Counsel:

S J Mills QC and T F Cleary for Appellants

Respondent in person

W Akel and E A Keall as counsel assisting

• A The appeal is allowed.

• B The order made in the High Court staying the proceeding is set aside.

• C The respondent is to pay costs to the appellants for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

1 The central issue on this appeal is whether the High Court was correct to stay the present defamation proceedings indefinitely on the basis that their pursuit would be oppressive to a prospective witness and therefore an abuse of process of the Court. 1 The witness had already given evidence three times on the same topic in other defamation proceedings involving different parties (the other defamation proceedings) and Palmer J considered it would be oppressive to require her to do so again. 2

2 The present defamation proceedings comprise a proceeding by Colin Craig against John Stringer 3 and a proceeding by Mr Stringer against Mr Craig and the other four appellants. 4 These separate proceedings were filed in September and October 2015 and were due to be heard together at a trial commencing in August 2019. However, on 17 June 2019, two months prior to the scheduled trial date, the High Court, of its own motion, made an order staying indefinitely Mr Craig's claim against Mr Stringer and part of Mr Stringer's claim against Mr Craig and the other appellants. 5 This meant that the time, effort and cost expended by Mr Craig over a four-year period to prepare his claim for trial were all for nothing.

3 Although no question of issue estoppel or res judicata arose out of the other defamation proceedings, and no one other than Mr Craig had sought consolidation of any of the proceedings, the Judge concluded that Mr Craig's continued pursuit of his claim against Mr Stringer was an abuse of the process of the Court. 6 The Judge considered it would be “inequitable” to stay Mr Craig's claim and not Mr Stringer's,

so he stayed Mr Stringer's claim as well to the extent it would require the same prospective witness to give evidence again. 7

Factual background

4 Mr Craig was the leader of the Conservative Party from 2011 until 2015. Two days before the general election in September 2014, Mr Craig's press secretary, Rachael MacGregor, suddenly resigned. Ms MacGregor privately alleged that Mr Craig had sexually harassed her during the three-year period she had been his press secretary. She also claimed that she had not been fully paid. After Mr Craig denied these allegations, Ms MacGregor promptly filed a claim with the New Zealand Human Rights Commission.

5 In November 2014, Ms MacGregor confided in Jordan Williams that Mr Craig had sexually harassed her. Mr Williams was a lawyer, the co-founder and executive director of the New Zealand Taxpayers' Union and a supporter of the Conservative Party. Ms MacGregor disclosed to him in confidence some of the letters and cards Mr Craig had sent to her. Mr Williams assured Ms MacGregor that he would keep this information confidential as if he were her lawyer. However, in breach of that undertaking, Mr Williams made various statements to a number of leading figures associated with the Conservative Party, including that Mr Craig had sexually harassed Ms MacGregor and had sent sexually explicit text messages to her.

6 Ms MacGregor's sexual harassment claim was not determined by the Human Rights Commission because the parties reached a confidential settlement of their disputes at a mediation in May 2015. This settlement was intended by Mr Craig and Ms MacGregor to be the end of the matter.

7 However, Mr Williams, who by then had become romantically involved with Ms MacGregor, decided to mount a campaign to remove Mr Craig as leader of the Conservative Party. In further breach of his confidentiality undertaking, Mr Williams told various leading figures associated with the Party, including Mr Stringer, a board member, that Mr Craig had sexually harassed Ms MacGregor and

he showed them some of Mr Craig's letters to her. He also said that Mr Craig had sent sexually explicit text messages to Ms MacGregor and falsely claimed he had copies of these. Mr Williams also claimed that Mr Craig had made a large payment to Ms MacGregor to settle her claim

8 Following these disclosures, on 19 June 2015, Mr Craig agreed to stand down as Party leader to enable the board to undertake an investigation. That same day, Mr Williams sent a draft blog post to Cameron Slater for publication on his “Whale Oil” website. This draft contained allegations of sexual harassment by Mr Craig, including inappropriate touching and stated that a pay-out had been made to a former staff member. Without Ms MacGregor's knowledge or consent, Mr Williams, using the pseudonym “Concerned Conservative”, sent Mr Slater copies of some of Mr Craig's communications with Ms MacGregor. This blog was immediately published on the Whale Oil website.

9 Mr Slater subsequently published a number of further defamatory statements about Mr Craig, some of which were instigated or drafted by Mr Williams. Mr Slater published these statements on the Whale Oil website and various other media platforms. The statements included that Mr Craig had sexually harassed Ms MacGregor, sent her numerous “dirty” sexually explicit text messages, “begged” her for an affair, put her under financial pressure to sleep with him, paid her a large sum of money running into six figures to settle her claims and seriously sexually harassed a woman other than Ms MacGregor. Mr Stringer made similar allegations as well as allegations of financial misconduct and electoral fraud. These were published on his own blogsite CoNZervative and through various media. Mr Stringer was also one of Mr Slater's sources of information for his Whale Oil website.

10 On 29 July 2015, Mr Craig held a press conference and announced that he intended to “fight back” against what he described as “the Dirty Politics Brigade” who had been “running a defamatory strategy” against him. He provided media representatives with copies of a 12-page booklet entitled “ Dirty Politics and Hidden Agendas” (the booklet). He said he was preparing separate claims in defamation against Mr Williams, Mr Stringer and Mr Slater, all members of the so-called “Dirty Politics Brigade”. He said they had mounted a “campaign of defamatory lies” against him, including that he had sexually harassed one or more persons, made pay-outs to silence supposed victims, and sent sexually explicit text messages. Mr Craig subsequently arranged for copies of this booklet to be delivered to some 1.6 million homes throughout New Zealand.

The defamation proceedings

11 Six separate defamation proceedings (the present defamation proceedings and the other defamation proceedings) arising out of these various publications followed:

• (a) Williams v Craig CIV-2015-404-1845 — filed by Mr Williams in August 2015. This proceeding was heard before a jury in September 2016 (the Williams proceeding). Verdicts were returned in Mr Williams' favour, with damages being awarded in the sum of $1.27 million. In a judgment delivered on 12 April 2017, the High Court made a conditional order setting aside these verdicts and ordering a retrial of Mr Williams' claims on both liability and damages. 8 Mr Williams appealed to the Court of Appeal. This Court allowed the appeal in part, restoring the jury's verdict on liability, entering judgment for Mr Williams on liability and limiting the retrial to damages. 9 In a judgment delivered on 11 April 2019, the Supreme Court allowed Mr Craig's appeal and ordered a general retrial on liability and damages. 10 These proceedings, and Mr Craig's claim against Mr Williams referred to at (f) below, were subsequently settled on the basis that Mr Williams retracted his statements about Mr Craig, apologised to him and agreed to pay a confidential settlement sum.

• (b) Craig v Slater CIV-2015-404-1923 — filed by Mr Craig in August 2015 against Mr Slater and his company, which owned the Whale Oil website. Mr Slater counterclaimed against Mr Craig, alleging Mr Craig defamed him in the booklet, and seeking damages of

  over $8 million. This proceeding was heard in May and June 2017 (the Slater proceeding). In a judgment delivered on 19 October 2018, Toogood J made a declaration that Mr Slater and his company were liable to Mr Craig in defamation for the untrue statements that Mr Craig had placed Ms MacGregor under financial pressure to sleep with him and had sexually harassed at least one other victim. 11 The Judge declined to award any damages to Mr Craig. 12 Mr Craig's other claims in defamation were dismissed, as were Mr Slater's counterclaims against Mr Craig. 13 This judgment is presently under appeal by Mr Craig to this Court.

• (c) Craig v Stringer CIV-2015-409-575 — filed by Mr Craig in September 2015 and forming one of the present defamation proceedings, the subject of this appeal. This proceeding was initially settled at a judicial settlement conference held on 30 January 2017. Consent orders were made entering judgment for Mr Craig against Mr Stringer for alleging that he had sexually harassed Ms MacGregor and one...