Mediaworks TV Ltd v Staples

• Jurisdiction: New Zealand
• Judge: Miller,Asher,Clifford JJ,Asher J
• Judgment Date: 03 May 2019
• Neutral Citation: [2019] NZCA 133
• Court: Court of Appeal
• Docket Number: CA436/2018
• Date: 03 May 2019

Between

Mediaworks TV Limited

First Appellant

Kate McCallum

Second Appellant

Tristram Clayton

Third Appellant

and

Bryan Douglas Staples

First Respondent

Claims Resolution Service Limited

Second Respondent

[2019] NZCA 133

Court:

Miller, Asher and Clifford JJ

CA436/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Civil Evidence, Media — refusal to disclosure identity of sources under s68(1) Evidence Act 2006 (“EA”) — jurisdiction of Court of Appeal to hear an appeal against interlocutory decision of an Associate Judge sitting in Chambers.

Counsel:

J G Miles QC and T F Cleary for Appellants

P A Morten and J Moss for Respondents

• A The application for an extension of time to apply for a review of the Associate Judge's decision is granted.

• B We determine the review sitting as a full court of the High Court.

• C The application to file a memorandum supporting the judgment on other grounds is granted.

• D The review is allowed.

• E The High Court order to direct disclosure without redactions is quashed.

• F The effect of allowing this review is that the part of the High Court judgment directing the disclosure of each of the documents in part 3 of the schedule to their affidavits without redactions is declined, but only to the extent that the documents or parts of them identify the informants who have provided the documents to Mediaworks.

• G In all other respects issues of the adequacy of discovery remain open and are not determined by this review. It is open to the respondents to seek a further hearing in relation to the discovery issues that have not been determined, or to bring another application in relation to discovery. In particular, the issue of whether the documents do in fact fall into the category of protected documents under s 68(1) remains open.

• H The respondents are jointly and severally liable to pay one set of costs to the appellants on a 2B basis under the High Court Rules 2016 and usual disbursements.

• I The costs orders made by the Associate Judge in the High Court are quashed. If the parties cannot agree on those High Court costs, the issue should be determined in the High Court in accordance with this judgment.

JUDGMENT OF Miller, Asher AND Clifford JJ

REASONS OF THE COURT

(Given by Asher J)

Introduction

1 The issue that is raised before us is whether the appellants as journalists are entitled to invoke the statutory protection of sources provided for in s 68(1) of the Evidence Act 2006. The appellants are the media company, Mediaworks TV Ltd, together with two journalists who were employed by Mediaworks at the relevant time, Kate McCallum as a television producer, and Tristram Clayton as a journalist (for convenience we will refer to all three as Mediaworks).

2 The first respondent Bryan Staples is a director of the second respondent, Claims Resolution Service Ltd (Claims Resolution). Mr Staples and Claims Resolution are engaged in the business of assisting claimants in bringing claims for those who suffered damage to their properties in the Canterbury earthquakes of 2010 and 2011. Mr Staples and Claims Resolution claim they were defamed by Mediaworks and its journalists when, in a Campbell Live programme and subsequently, Mediaworks broadcast and published complaints that were very critical of aspects of their Christchurch business activities. Mediaworks refused to discover certain documents, claiming the protection from disclosing the identity of informants in s 68(1) of the Evidence Act. In the High Court Mr Staples and Claims Resolution successfully challenged the availability of that protection relying on s 68(2). 1 That decision has been appealed to this Court.

3 Following the delivery by the Associate Judge of the decision that is challenged, Mediaworks proceeded by way of appeal. The case on appeal was filed followed by submissions, and the respondents filed a memorandum seeking to support the judgment on other grounds. The case was fully argued before us as an appeal without opposition from the respondents. Subsequent to that hearing in the process of our deliberations, the Court became aware that the decision appealed from was a part of proceedings governed by the Judicature Act 1908. That being so, any challenge to the High Court decision fell under s 26P of the Judicature Act 1908 and should have proceeded as a review by the High Court. The Senior Courts Act 2016, which abolished review, did not apply. 2 Following a minute of the Court, that position is now accepted by the parties. 3 For reasons that we set out at the end of this judgment we have decided to determine the challenge to the High Court decision as a full court of the High Court sitting on review. We will for convenience continue to refer to the parties as the appellants and the respondents.

Background

District Court proceedings

4 A Mr Richard Freeman, who is not a party to this review but is a defendant in the High Court proceedings, was a director of the company Ironclad Securities Ltd (Ironclad), a debt collection company, and had an association with Mr Staples and his companies that ended in acrimony. In April 2014 Mr Freeman started publishing posts on a Facebook website he administered which were highly critical of Mr Staples and his business operation. Mr Freeman claimed that he and his company were owed in excess of $200,000 by Mr Staples and his business. He did not limit his attack on Mr Staples to just that matter. The statements about Mr Staples involved the use of strong language including descriptive phrases of Mr Staples and his enterprises as “professional conmen” involved in “dodgy dealings” and other similar pejorative remarks. There was an accusation of manipulation of police, media and lawyers.

5 On 11 April 2014 Mr Staples issued defamation proceedings against Ironclad and its associates. He sought an interim injunction in the District Court at Christchurch against Ironclad and other persons associated with Ironclad, Mr Richardson, Mr Joseph Smith and Mr Kane Smith. On 15 April 2014 Judge Kellar of the District Court granted a without notice application of Mr Staples for an interim injunction in the following terms:

Later Mr Freeman was joined by Mr Staples as a defendant to the District Court proceedings. We will refer to these proceedings as the District Court proceedings, to distinguish them from the later High Court proceedings which have led to this review.

• (1) That the first respondent, IRONCLAD SECURITIES LIMITED, and the second respondents, LYNDON VAUGHAN RICHARDSON, JOSEPH DENNIS ROBERT SMITH and KANE ARANA SMITH, immediately remove all statements and material in any way related to the applicant and his associated companies from the webpage on Facebook operated by the first and second respondents at the internet address www.facebook.com/ironcladsecurities

• (2) That the first and second respondents or their employees or associates are hereby restrained from publicising any information in any way relating to this proceeding pending further order of the Court.

6 Mr Staples had also filed an affidavit in support of his District Court application for an interim injunction. That affidavit was responded to by statements of defence by Ironclad and the other defendants, and supporting affidavits were also filed in the District Court. It is alleged by Mr Staples that Ironclad's statement of defence and the other supporting affidavits state amongst other things that Mr Staples is corrupt and a thief, has an unpaid and undisputed debt of over $170,000, with an associate has over 24 companies struck off, is a fraudster and a conman, has committed an unlawful act and has defrauded members of the public.

The first Campbell Live programme

7 In the statement of claim filed by Mr Staples and Claims Resolution in the later High Court proceedings which have led to this review, it is alleged that after the interim injunction was granted in the District Court Mr Freeman through a third party provided copies of the District Court documents to the Rt Hon Winston Peters MP. It is also alleged that Mr Freeman spoke by telephone to Ms McCallum about the contents of the District Court documents and the website posts. It is pleaded that on 23 July 2014 Mr Peters used the information that he had been given to deliver a speech in Parliament which was highly critical of Mr Staples, accusing him amongst other things of:

• (1) a long list of fraudulent practices;

• (2) using his companies which purported to assist earthquake victims to defraud, mislead and cheat people;

• (3) carrying out technical inspections of properties for earthquake compensation purposes which neither he, nor his companies and the people they employed were qualified to do; and

• (4) being paid for but not actually providing genuine technical reports.

8 It is alleged that on 23 July 2014 Mediaworks broadcast Mr Peters' allegations on the Campbell Live programme (which we will refer to as the first Campbell Live programme) to an audience of hundreds of thousands of New Zealand viewers. It is also alleged that Mediaworks posted reports of Mr Peters' allegations on its website which was on the worldwide web system of the internet and open to general access by any user.

9 There is no claim against Mediaworks for this first Campbell Live programme. The claim arose from events that followed.

The second Campbell Live programme

10 Ms McCallum and Mr Clayton started working on a story about Mr Staples and his associated companies. It is alleged that on about 23 July 2014 Mr Staples told Ms McCallum and Mr Clayton that there was an interim injunction in place and that they could not discuss the case because of that. Mr Staples asserts that he put this in an email of 28 July 2014.

11 On 30 July 2014 Mediaworks broadcast another Campbell Live programme which we will call the second Campbell Live programme. This was produced for...