Erin a Leigh v The Attorney-General in Respect of the Ministry of Environment

JurisdictionNew Zealand
JudgeEllen France J
Judgment Date17 December 2010
Neutral Citation[2010] NZCA 624
Docket NumberCA483/2009
CourtCourt of Appeal
Date17 December 2010
Between
Erin A Leigh
Appellant
and
The Attorney-General In Respect of the Ministry of Environment
First Respondent

and

Lindsay Gow
Second Respondent

[2010] NZCA 624

Court:

William Young P, O'Regan and Ellen France JJ

CA483/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court decision which struck out parts of the appellant's claims for defamation and negligent misstatement — appellant previously employed by the Ministry of Environment — alleged defamatory statements in a Briefing Paper supplied to the Minister for the Environment in order to answer Parliamentary questions — whether s13 Defamation Act 1992 (absolute privilege in relation to Parliamentary proceedings) and Article 9 Bill of Rights 1688 (proceedings of Parliament not to be impeached) precluded the pleading that the Minister's statements in the House and subsequent media reports were a republication — whether Briefing Papers were covered by absolute privilege — whether the Ministry owed the appellant a duty of care when preparing the Briefing Paper.

Counsel:

J G Miles QC and J S Langston for Appellant

J W Tizard and A J Connor for Respondents

  • A The appeal is allowed, to the extent that:

    • (a) the statements made in the Briefing Paper are capable of bearing the defamatory meanings pleaded; and

    • (b) the Oral Statements are capable of bearing the pleaded meaning that the appellant was overly emotional.

  • B The Judge's finding that Article 9 of the Bill of Rights Act 1688 precludes the pleading that the Minister's statements in the House were a republication is upheld.

  • C The strikeout of the cause of action for negligent misstatement is upheld.

  • D Paragraph [48] of the amended statement of claim is reinstated by consent.

  • E The cross appeal is dismissed.

  • F No order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Page No.

Introduction

[1]

Factual background

[5]

The judgment in the High Court

[11]

Were the statements capable of defamatory meaning?

[15]

The relevant pleadings

[15]

The applicable principles

[17]

This case

[20]

“The plaintiff was incompetent”

[23]

“The plaintiff was irresponsible”

[30]

“The plaintiff was overly emotional”

[33]

“The plaintiff was not fit to be employed by a Government department, Ministry or agency as a professional communications consultant”

[35]

Were the Oral Statements capable of defamatory meaning?

[39]

The impact of Article 9

[40]

The scope of proceedings in the House

[66]

The pleadings issues

[78]

One or two causes of action?

[79]

The requirement to plead actual words

[85]

Negligence

[91]

Disposition

[102]

Costs

[106]

Introduction
1

Erin Leigh says that various statements (written and oral) made about her by the Ministry for the Environment (the Ministry) and by Lindsay Gow, the then Deputy Secretary of the Ministry, were defamatory. The statements were made in the context of providing material for the Minister for the Environment in order to answer Parliamentary Questions. Ms Leigh brought proceedings against the respondents seeking damages for defamation and negligence in relation to the statements. The respondents succeeded in the High Court in striking out some aspects of Ms Leigh's amended claim. 1 Ms Leigh appeals and the respondents cross-appeal.

2

The appeal raises the following primary issues:

  • (a) Were the statements capable of bearing the defamatory meanings pleaded?

  • (b) Can Ms Leigh claim for damage to her reputation resulting from what the Minister said about her in Parliament and subsequent media reporting of what the Minister said?

  • (c) Are the statements made by the Ministry and Mr Gow covered by absolute privilege?

  • (d) Did the Ministry owe a duty of care to Ms Leigh in preparing the statements?

3

In addition, there are some subsidiary issues about aspects of the pleadings.

4

We will discuss the appeal by reference to these questions but it is first necessary to say something more about the background. We largely adopt Dobson J's description in that respect. 2

Factual background
5

Ms Leigh contracted to the Ministry between July 2005 and May 2006 as a communications advisor in relation to climate change issues. In mid-May 2006, another communications advisor, Clare Curran, was appointed to oversee the content of the communications strategy on which Ms Leigh had been working. This

appointment resulted in Ms Leigh's abrupt departure from her role. She finished work on 16 May 2006 although the latest of the three contracts under which she performed the work ran until the end of May
6

Ms Leigh moved on to other work. However, what had occurred in mid-May 2006 became relevant for present purposes in November 2007. At that point, the then government was coming under fire about the circumstances in which Ms Curran had been employed. Ms Leigh was asked about the events by a reporter. Ms Leigh apparently confirmed that she saw Ms Curran's appointment as politically motivated given Ms Curran's links with the Labour Party and that the hiring of Ms Curran led to Ms Leigh ceasing work. These issues were canvassed in a news item broadcast on TV3 on 21 November 2007.

7

That same month, questions were asked in Parliament about the circumstances of Ms Curran's appointment. The then Minister for the Environment, the Hon Trevor Mallard, requested information from the Ministry on 21 November 2007 to allow him to respond to further Parliamentary Questions. On 22 November, Mr Gow was asked by the Chief Executive of the Ministry to provide information about Ms Leigh's contract with the Ministry and the circumstances of her departure. Mr Gow prepared a Briefing Paper that day outlining the circumstances.

8

Ms Leigh says the content of the Briefing Paper is defamatory. This claim founds the first cause of action. She also says this Briefing Paper was presented to the Minister at a meeting on 22 November at which further defamatory statements were made orally (the Oral Statements). This is the basis of the second cause of action.

9

During Question Time in the House of Representatives on 22 November 2007, the Minister made various criticisms of Ms Leigh and her performance during her time at the Ministry. Ms Leigh says the statements in the House are republications of the defamations in the Briefing Paper and in the Oral Statements, which aggravate the damage suffered as a result of the original defamation.

10

Ms Leigh also says the Ministry was negligent in not taking due care in the preparation of the Briefing Paper and the Oral Statements. This aspect of her claim is reflected in the third cause of action.

The judgment in the High Court
11

The respondents applied to strike out Ms Leigh's claim on a number of grounds. The application was granted in part. Dobson J found that the statements in the Briefing Paper were incapable of bearing the defamatory meanings attributed and struck out the first cause of action.

12

The Judge also concluded that the Oral Statements were not capable of bearing the pleaded meaning that Ms Leigh was overly emotional. Apart from that, Dobson J said that the Oral Statements could, at least provisionally, bear the defamatory meanings alleged.

13

Dobson J found that Article 9 of the Bill of Rights precluded the pleading that the Minister's statement amounted to a republication of the Briefing Paper or the Oral Statements.

14

Finally, the third cause of action was struck out. The Judge found that the relationship between Ms Leigh and the Ministry was not sufficiently proximate to impose a duty of care. In addition, the Judge took the view that policy considerations militated against the imposition of a duty of care.

Were the statements capable of defamatory meaning?
The relevant pleadings
15

In her amended statement of claim in relation to the first cause of action, Ms Leigh relies on the content of the Briefing Paper and alleges a number of false and defamatory meanings as follows:

  • 27. The Briefing Paper contained the following statements:

    • (a) “She was responsible for developing a communications work programme for climate change communications. This went through a series of six drafts in late April to early May 2006”.

    • (b) “Around about mid May 2006, the work Erin did apparently received consistent adverse comment from government departments, from senior officials and also from the Minister responsible for climate change (Hon David Parker). Clare Curran was employed from 22 May 2006”.

    • (c) “By 25 May 2006 Clare Curran had initially reviewed the work that Erin Leigh had done, provided advice to the Ministry on it, and indicated desirable changes”.

    • (d) “Erin's contract was due to cease on 31 May 2006. However, she effectively finished work on 15 May. Her invoices show that she came to work for 15 minutes on 16 May 2006. I have been advised that staff reported she appeared to be in a state of concern. She then left the office, never returned and did not complete the term of her contract”.

    • (e) “We have not found any written documentation to date that shows why Erin left suddenly. What appears to be her last formal communication with the Ministry was an invoice, which included the 15 minutes she was in the office on 16 May 2006”.

  • 28. The statements contained in the Briefing Paper (“ Written Statements”) as a whole were false and defamatory of the Plaintiff in that they meant and were intended to mean that:

    • (a) the Plaintiff was incompetent;

    • (b) the Plaintiff was irresponsible;

    • (c) the Plaintiff was overly emotional;

    • (d) the Plaintiff was not fit to be employed by a Government department, ministry or agency as a professional communications consultant;

    • (e) the Plaintiff's work had received consistent adverse comment from Government departments, senior...

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