Sellman v Slater

• Jurisdiction: New Zealand
• Judge: Palmer J
• Judgment Date: 23 November 2018
• Neutral Citation: [2018] NZHC 3057
• Docket Number: CIV-2016-404-1312
• Court: High Court
• Date: 23 November 2018

Between

UNDER the Defamation Act 1992

John Douglas Sellman

First Plaintiff

Boyd Anthony Swinburn

Second Plaintiff

Shane Kawenata Frederick Bradbrook

Third Plaintiff

and

Cameron John Slater

First Defendant

Carrick Douglas Montrose Graham

Second Defendant

Facilitate Communications Limited

Third Defendant

Katherine Rich

Fourth Defendant

New Zealand Food and Grocery Council Inc

Fifth Defendant

[2018] NZHC 3057

CIV-2016-404-1312

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

Civil Procedure, Defamation — plaintiffs suing for defamation — interlocutory applications — whether hacked documents obtained should be excluded under the Evidence Act 2006 (“EA”) — orders for discovery under r8.19 High Court Rules (“HCR”) (order for particular discovery against party after proceeding commenced)

Counsel:

D M Salmon, J P Cundy and E D Nilsson for the Plaintiffs

B P Henry for the First Defendant

E J Grove for the Second and Third Defendants

W Akel, JWS Baigent and K R Teague for the Fourth and Fifth Defendants

JUDGMENT NO 6 OF Palmer J (Discovery and oral examination)

Summary

1 Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook sue Mr Cameron Slater, Mr Carrick Graham and Mr Graham's company Facilitate Communications Ltd (FCL) for defamation and Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for procuring defamation. In this judgment I determine a second set of interlocutory applications:

• (a) I decline Mr Slater's application to exclude hacked documents obtained by the plaintiffs from Mr Nicky Hager at this stage of the proceeding because the evidence does not satisfy me they are inauthentic and they appear relevant to the applications about discovery.

• (b) I grant a narrower version of the plaintiffs' applications for particular discovery by Mr Slater, Mr Graham and FCL because there are grounds for believing they have not discovered relevant documents but the original applications were too broadly framed.

• (c) I grant the plaintiffs' applications for particular discovery by Mrs Rich and the NZFGC but only to a limited extent, for the avoidance of doubt and for updating purposes.

• (d) I decline Mrs Rich's and the NZFGC's application for particular discovery by the plaintiffs because:

  • (i) The court's ability to strike out a proceeding for abuse of process is not a parameter for discovery for the purposes of its trial.

  • (ii) Defamation law presumes a defamatory statement damages a plaintiff's reputation in the eyes of those who may read it. The presumption cannot be rebutted by evidence of lack of consequences of harm to the plaintiff's reputation in the eyes of groups of people who may or may not have read it. Otherwise every trial of the defamation of a plaintiff would turn into a detailed evaluation of the plaintiff's reputation, which would be as unattractive as it is likely to be time-consuming.

  • (iii) The plaintiffs' public and academic profiles, publications, media and social media comments of the plaintiffs are not sufficiently relevant to the allegedly defamatory statements to mitigate damages.

• (e) I grant the plaintiffs' application to examine Mr Slater and Mr Graham orally because I consider they have made insufficient answers to interrogatories, particularly about whether blog posts were posted on the Whale Oil website for reward.

Context of the proceeding

The proceeding

2 The factual context of this proceeding is summarised in a previous interlocutory judgment of 2 October 2017 (the October 2017 judgment). 1 Dr Sellman, Dr Swinburn and Mr Bradbrook are public health professionals. They brought the proceeding following publication of a book, Dirty Politics, by Mr Nicky Hager. They

allege they have been defamed in a series of blog posts by Mr Slater on his Whale Oil website and in comments on the posts by Mr Graham and FCL. They also sue Mrs Rich and the NZFGC for allegedly procuring Mr Slater, Mr Graham and FCL to publish the substance and sting of the alleged defamations

The October 2017 judgment

3 In the October 2017 judgment, I struck out 21 of 159 pleaded defamatory meanings as incapable of being defamatory. I declined to strike out claims as being time-barred or an abuse of process or self-evidently speculative, false or incapable of founding legal liability. I made orders regarding pleadings, defences and next steps in the trial of the proceeding.

4 In the October 2017 judgment, in relation to an application by Mrs Rich and the NZFGC to strike out the causes of action against them, I stated: 2

[101] I have examined chapter seven of Dirty Politics and Mr Slater's leaked emails, as exhibited to the January 2017 affidavit. I agree Dirty Politics makes the allegations the plaintiffs say, above, it does. I agree Dirty Politics and the emails could support the inferences the plaintiffs say, above, they do. The most tenuous part of the plaintiffs' pleadings, on the basis of the information before me, is whether there is a link between [Mrs] Rich and the NZFGC and Dr Swinburn and Mr Bradbrook. But, on balance, I consider the allegations in Dirty Politics are capable of supporting an inference they were.

[102] I cannot, and do not, find those allegations and inferences are supported by any other evidence or are correct or that the causes of action will succeed.

Defendants' discovery and interrogatories

5 In December 2017, each of the defendants filed answers to interrogatory questions from the plaintiffs. They also provided discovery of relevant documents in February and March 2018:

• (a) Mr Slater disclosed 32 documents, other than blog posts, including 27 individual emails to or from Mrs Rich. He disclosed no correspondence with Mr Graham, no evidence of payments received and only one document containing data from the Whale Oil website.

• (b) Mr Graham and FCL disclosed 172 documents including four emails from Mr Slater and 114 emails to or from Mrs Rich or NZFGC. None of the discovered emails to or from Mrs Rich pre-date the publication of Dirty Politics.

• (c) Mrs Rich and NZFGC disclosed around 1,200 documents including 24 items of correspondence with Mr Graham. No correspondence with Mr Slater is included.

6 Mr Slater's and Mr Graham's discovery affidavits do not give particulars of the steps taken to search for documents, as required by r 8.15(2)(c) of the High Court Rules 2016.

7 Mr Slater's evidence in answering interrogatories is that his company Social Media Consultants Ltd (SMC) “does not accept payment for the publication of blog posts, these are my opinions”. 3 Mr Graham's evidence is: 4

I have talked and shared information with the First Defendant on the basis that it might contribute to his knowledge or understanding of an issue. I have never procured nor instructed the first defendant to publish a Blog Post. The closest I have come to “requesting” a blog post is communicating with the first defendant that “this would be a good story”.

8 Mr Slater's evidence is that SMC received $93,840 from FCL between 3 October 2013 and 25 March 2016, there were no records before that and received two payments totalling $6,900 (GST incl) from NZFGC on 9 May 2013 and 5 November 2013, along with accommodation and airfares for a NZFGC conference on the Gold Coast. 5 Mr Graham's evidence is that FCL paid SMC $124,430 (GST incl) between 1 October 2012 and 22 June 2016 and received from NZFGC $365,814.40 (GST incl) between 30 November 2009 and 31 July 2016. 6 Mrs Rich's evidence corroborates Mr Slater's evidence regarding payments by NZFGC to SMC and has a slightly different

figure for payments to FCL ($365,619.02 (GST incl) between 30 November 2009 and 31 July 2016). 7

9 Mrs Rich swore an affidavit answering interrogatories:

• (a) denying she or NZFGC procured, instructed or requested any of the other defendants and/or Whale Oil to publish any of the blog posts or Mr Graham's comments, or material relating to the plaintiffs, Te Reo Marama, the University of Otago or the University of Auckland or countering or responding to research or advocacy by them or by others relating to the regulation of the relevant industries;

• (b) denying she knew who Mr Bradbrook was, before reading the statement of claim; and

• (c) denying she or NZFGC had made any payments or other compensation to Mr Slater and or Whale Oil or any entity associated with them for any publications.

Plaintiffs obtain documents from Mr Hager

10 In the meantime, the plaintiffs obtained further documents from Mr Hager who had obtained them from a hacker known as “Rawshark”. These included, allegedly, further emails and documents from Mr Slater and spreadsheets of comments data from the Whale Oil website. Some of the emails were made publicly available by Rawshark on the Twitter account “Whaledump”. They are adduced via affidavits filed by the plaintiffs. 8 Among the emails are:

• (a) An email of 13 January 2014 from Mr Graham to Mr Slater, with the subject line “KR — Fonterra Post (first thing in the morning)”, with the text of a blog post about Fonterra that was posted on Whale Oil the next day.

• (b) An email of 13 January 2014 from Mr Graham to Mr Slater, with the subject line “Monday hit #2 KR”, with the text of another blog post about Fonterra that was posted on Whale Oil the next day.

• (c) An email reply of 21 January 2014 from Mr Graham to Mr Slater, with the subject line “Sugar”, saying “Coke keeps sending stuff to KR expecting her to do something (where we come in). Hit pending.”

• (d) An email of 21 January 2014 from Mr Graham to Mr Slater, with the subject line “KR Hit — TF #1”, and with the text of a blog post titled “Coke & Frucor in lawyers sights for class action”, that was posted on Whale Oil the next day.

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