Slater v Blomfield

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 19 November 2015
• Neutral Citation: [2015] NZCA 562
• Docket Number: CA678/2014
• Court: Court of Appeal
• Date: 19 November 2015

Between

Cameron John Slater

Appellant

and

Matthew John Blomfield

Respondent

[2015] NZCA 562

Court:

Wild, Miller and Cooper JJ

CA678/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for leave to adduce further evidence in an appeal — the applicant was appealing against a High Court (HC) decision that although a blog was a news medium the applicant could therefore be considered a “journalist”, nonetheless the names of his sources should be disclosed under s68(2) Evidence Act 2006 (EA) (Protection of journalists' sources — public interest in disclosure of identity of the informant) — the applicant wished to introduce three affidavits to the effect that disclosure of his sources posed a threat to the informants as a result of the drawing of inferences of intimidation and to demonstrate that contents of filing drawers and a hard drive belonging to the respondent and from which the applicant had taken information had not been stolen — whether the inferences of intimidation could be drawn from the affidavits — whether the proposed evidence was fresh, credible and cogent — whether it could with reasonable diligence have been discovered so as to be adduced at the trial — whether the evidence was inadmissible as being hearsay.

Counsel:

Appellant in person

M G Beresford for Respondent

J G Miles QC as Counsel assisting

JUDGMENT OF THE COURT

A The application for leave to adduce further evidence is dismissed.

B The appellant must pay the respondent's costs calculated as for a standard application for leave to appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Cooper J)

Introduction

1 The appellant, Mr Slater, operates a blog on the internet which he calls Whale Oil. The respondent, Mr Blomfield, has sued him in the Manukau District Court claiming he has been defamed by material published on the website.

2 Judge Blackie in the District Court held in an interlocutory ruling that the blog was not a “news medium” as defined in s 68(5) of the Evidence Act 2006. 1 This had the consequence that Mr Slater would not be a “journalist”, and s 68(1) of the Act would not apply. 2 Section 68(1) provides that a journalist who has promised not to disclose an informant's identity may not be compelled to do so.

3 On appeal to the High Court at Auckland, Asher J determined that Whale Oil was a news medium and Mr Slater could properly claim to be a journalist. 3 However, the Judge ruled that the names of his sources should nevertheless be disclosed under s 68(2) of the Evidence Act. This provides:

68 Protection of journalists' sources

…

(2) A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs—

• (a) any likely adverse effect of the disclosure on the informant or any other person; and

• (b) the public interest in the communication of facts and opinion to the public by the news media, and, accordingly also, in the ability of the news media to access sources of facts.

4 Mr Slater has filed an appeal against the s 68(2) ruling. He now applies for an order under r 45 of the Court of Appeal (Civil) Rules 2005 for leave to adduce further evidence in that appeal.

Background

5 Mr Blomfield had provided marketing services to Hell Pizza until 2008 and had been a director of the company, Hell Zenjiro Limited (in liquidation) which had owned outlets in the Hell Pizza chain. The articles the subject of the defamation claim arose out of Hell Pizza's association with a charity called “KidsCan”. The first allegedly defamatory article was published on the Whale Oil blog on 3 May 2012, under the headline, “Who really ripped off KidsCan?” On the same day, another article appeared making a number of statements about Mr Blomfield. Asher J noted that between 3 May and 6 June 2012 Mr Slater wrote and published 13 articles referring to Mr Blomfield. 4

6 Mr Blomfield's defamation proceeding claimed that the articles accused him of dishonesty, theft, bribery, deceit, perjury and other criminal conduct. The statements on the blog included assertions that Mr Blomfield is a “psychopath”, that he loves extortion and is a pathological liar. Another statement said he had “conspired to steal a cheque”. Another allegedly said “Drugs, fraud, extortion, bullying, corruption, collusion, compromises, perjury, deception, hydraulic-ing..it is all there”. There was reference to “a network of crooks”. In his statement of defence, Mr Slater admitted publishing the articles containing the allegedly defamatory material. However, he denied that the words conveyed or were capable of conveying the alleged defamatory meanings and raised the affirmative defences of truth and honest opinion in respect of each of the statements forming the basis of Mr Blomfield's claim.

7 Much of the material to which the claim relates contains extracts of emails to which Mr Blomfield is alleged to be a party. They refer to electronic files which Mr Blomfield said came from the hard drive of his computer and other sources including a filing cabinet. He claims that this material was unlawfully taken.

8 Asher J noted that Mr Slater admitted in his statement of defence that he had in his possession copies of emails, databases and electronic files relating to Mr Blomfield's affairs. Mr Slater acknowledged that around February 2012 he had

been provided with a hard drive that included approximately one terabyte of computer files previously belonging to Mr Blomfield

9 Mr Blomfield sought discovery, and that interrogatories be answered. The former referred to “all email correspondence between” Mr Slater and other persons who were allegedly involved in the supply of material to Mr Slater. Those persons were Mr Powell, Mr Spring, Ms Easterbrook, Mr Price and Mr Neil. The notice to answer interrogatories included a question about the source of the alleged defamatory material published on Mr Slater's blog site. The question was:

Who supplied [Mr Slater] with the hard drive and other information referred to on the Whale Oil website?

10 Mr Slater refused to give discovery or answer the interrogatories, claiming that the information sought was privileged under s 68(1) of the Evidence Act.

11 As has been seen, the High Court made an order on Mr Blomfield's application under s 68(2). The Judge's reasons for making that order may be summarised as:

• (a) There was a public interest in the disclosure of evidence of the identity of the informants. That public interest had two aspects. First, and as a general proposition, where a journalist presents to the public “extreme and vitriolic statements” about another alleging serious crimes, there is a public interest in the “fair airing” of those statements and the circumstances of their making when the issues are traversed in defamation proceedings. 5 Second, there is a public interest in the fair working of the court process. In this respect, the identity of sources might in some cases assist in assessing whether the allegations were correct and in this case, as to whether Mr Blomfield's claim that the opinions expressed were not Mr Slater's genuine belief. 6

• (b) There were no likely adverse effects of disclosure on the informants except the possibility of civil action against them by Mr Blomfield, which the Judge considered was not a significant factor. 7

• (c) There was no relevant wider or public interest favouring confidentiality arising from the public importance of the issues or persons involved in what was essentially a private dispute. Disclosure was unlikely to have a chilling effect on other “whistleblowers and informants”. 8 The disclosures were “extreme and vindictive” having the hallmarks of a private feud. 9 Further, the documents disclosed by the sources appeared to have been obtained illegitimately: this diminished the importance of protecting the informants. 10

12 The Judge found that on balance the public interest in disclosure outweighed any adverse effects on the informants and the ability of the media to freely receive information and access sources. 11

13 In relation to the issue of adverse effects on the informants, the Judge noted that Mr Slater had claimed Mr Blomfield was capable of physical violence. There was also an affidavit from Mr Spring claiming that he had been threatened by Mr Blomfield on numerous occasions. However, the only details provided were that Mr Spring had been sent text messages about his being run out of New Zealand and threatening a “public relations nightmare” if Mr Spring did not stop pursuing Mr Blomfield for money. 12 There was reference also to Mr Blomfield's brother, claimed to be a criminal convicted of assaults, who had also threatened Mr Spring. Mr Slater claimed that on this basis that Mr Blomfield might seek to “bully and intimidate” his sources if they were disclosed. 13

14 However, the Judge considered there was no evidence that Mr Blomfield had endeavoured to bully and intimidate Mr Spring, or others who had already been

disclosed as sources of information given to Mr Slater. The email exchange between Mr Blomfield and Mr Spring indicated that Mr Spring appeared “to be sending Mr Blomfield aggressive and abusive texts”, with Mr Blomfield taking a “relatively defensive position”. 14 Mr Blomfield has no convictions for violent offending, and the Judge rejected Mr Slater's suggestion that he was a person to be feared. 15 He found there was nothing to suggest Mr Blomfield would resort to intimidatory tactics

The additional evidence

15 Mr Slater's application for leave to adduce further evidence was initially based on three affidavits. These were his own affidavit sworn on 14 August 2015, to which was attached an affidavit of Mr Spring sworn on...