Slater v Blomfield

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 12 September 2014
• Neutral Citation: [2014] NZHC 2221
• Docket Number: CIV-2013-404-005218
• Court: High Court
• Date: 12 September 2014

Between

Cameron John Slater

Appellant

and

Matthew John Blomfield

Respondent

[2014] NZHC 2221

CIV-2013-404-005218

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Appeal from a District Court (“DC”) decision which declined to extend to the appellant the protection given by s68(1) Evidence Act 2006 (“EA”) (protection of journalists' sources) — cross appeal by respondent against ruling disclosure was not available by way of interrogatory under r8.46 High Court Rules (“HCR”) (defamation proceedings) — appellant ran and administrated the blog website “Whale Oil” — respondent alleged appellant had made defamatory statements that he had conspired to steal charitable funds from the charity — appellant had been provided with files previously owned by the respondent — appellant refused to supply identity of the person who had supplied him with information — whether appellant protected by s68 EA — whether the appellant was a journalist — whether the appellant's blog was a news medium under s68(5) EA (means for the dissemination to the public or a section of the public of news and observation on news) — whether the appellant had received the information in the normal course of his work — if s68(1) EA did apply, whether disclosure could be ordered under s68(2) EA (public interest outweighs adverse effects of disclosure) — whether r8.46 HCR applied.

Counsel:

CJ Slater in person

MA Karam and MG Beresford for Respondent

J Miles QC as amicus curiae

JUDGMENT OF Asher J

Table of Contents

	Para No
Introduction	[1]
The defamation claim	[5]
Section 68(1) of the Evidence Act 2006	[17]
Approach to s 68(1)	[33]
The relevant time	[36]
Whether there was a promise	[39]
Whether Whale Oil was a news medium
Blog sites	[42]
Can a blogger be a news medium?	[43]
Is Whale Oil a news medium?	[55]
Was Mr Slater receiving information in the normal course of his work?
The notion of normal course of work	[66]
Was Mr Slater receiving information in the normal course of his work?	[75]
Disclosure of sources has taken place	[85]
Conclusion on s 68(1)	[93]
Rule 8.46	[95]
Application for order that s 68(1) not apply	[104]
The issues to be determined in the proceeding	[109]
The public interest in the disclosure of evidence of the identity of the informants	[112]
Likely adverse effect of the disclosure on the informants or any other person	[121]
The public interest in the communication of facts and opinion to the public by the news media and its ability to access sources of facts	[128]
Weighing the factors	[136]
Summary of conclusions	[140]
Result	[152]
Costs	[155]

Introduction

1 The appellant, Cameron Slater, is being sued for defamation in the Manukau District Court by the respondent, Matthew Blomfield. There are two matters arising in this Court. First, there is an appeal against a decision of Judge Blackie declining to extend to Mr Slater the protection given by s 68(1) of the Evidence Act 2006 to journalists from being compelled to disclose the identity of informants. 1 An aspect of this appeal is a challenge to Judge Blackie's decision that r 8.46 of the High Court Rules did not apply and that interrogatories should have been allowed. The second matter is an originating application to this Court filed by Mr Blomfield after the

filing of the appeal, as a back-up position, seeking an order under s 68(2) of the Evidence Act that s 68(1) not apply should he be unsuccessful in opposing the appeal relating to s 68(1)

2 Both parties in this Court were originally unrepresented. Mr Miles QC was appointed amicus curiae. By the time of the hearing Mr Blomfield had briefed Mr Karam who appeared for him, and Mr Slater remained self-represented. Mr Miles presented a wide ranging submission to assist the Court.

3 Recently, some time after the hearing, Mr Blomfield has sought to produce further evidence, arising from the publication of the book Dirty Politics by Nicky Hager, and various email exchanges.

4 I have declined to grant leave for the introduction of this further evidence on the basis that it is hearsay or privileged. 2

The defamation claim

5 In 2012, Mr Slater ran and administrated the blog website “Whale Oil” under the name www.whaleoil.co.nz (Whale Oil). Mr Blomfield had provided marketing services to Hells Pizza until 2008 and had been a director of a company Hell Zenjiro Ltd (in liquidation), which had owned several outlets of the Hells Pizza chain. That company went into liquidation on 9 April 2008 and was struck off the Companies Register on 6 September 2013. Mr Blomfield was adjudicated a bankrupt in 2010 and an order was made prohibiting him from being a director of a company. He has since been discharged from bankruptcy.

6 Hells Pizza had an association with a charity known as “KidsCan”. On 3 May 2012 Mr Slater wrote and published on his Whale Oil website a blog post entitled “Who really ripped off KidsCan?”. It contained a number of statements that Mr Blomfield claims were defamatory of him. On the same day Mr Slater wrote another blog on the Whale Oil website entitled “Knowing me, knowing you – Matt Blomfield”. In that story he made a number of statements about Mr Blomfield.

Between 3 May 2012 and 6 June 2012, Mr Slater wrote and published on his website 13 articles that referred to Mr Blomfield

7 Mr Blomfield claims that these articles allege that he had conspired to steal charitable funds and was alleged to be a thief, as well as dishonest, dishonourable, a party to fraud, involved in criminal conspiracy, bribery, deceit, perjury, conversion, the laying of false complaints, drug dealing and making pornography. He was also accused of being a psychopath, a criminal, a thief and a “cock smoker”.

8 The majority of the articles that are the subject of the claim contain extracts of emails to which Mr Blomfield is allegedly a party. They refer to electronic files which Mr Blomfield claims were sourced from his hard-drive and potentially other sources including a filing cabinet of Mr Blomfield.

9 Mr Slater admitted in his statement of defence that he had in his possession copies of emails, databases and electronic files relating to the affairs of Mr Blomfield. He stated that on or about February 2012 he was provided with a hard-drive that included approximately one terabyte of computer files previously owned by Mr Blomfield.

10 Following the publication of the articles on the Whale Oil website, Mr Blomfield filed proceedings in the Manukau District Court in October 2012 in which he claimed that the statements and the articles were defamatory. He sought an order that the material relating to him be removed from the Whale Oil website as well as compensatory and punitive damages. When the proceedings were commenced there was no statement of claim required under the District Court Rules 2009. It was only when interlocutory orders were sought and the file was referred to a Judge that a statement of claim and statement of defence were filed in the traditional manner.

11 In his statement of defence, Mr Slater admitted that he published the articles that contained the words alleged to be defamatory. He denied that the words conveyed or were capable of conveying the alleged defamatory meanings. He raised the affirmative defences of truth and honest opinion in respect of each of the statements in each of the articles published.

12 Mr Blomfield filed applications for orders requiring discovery and the answering of interrogatories. The application for discovery sought amongst other things “all email correspondence between” the appellant and several persons, including persons allegedly involved in the supply of material: Mr Powell, Mr Spring, Ms Easterbrook and Mr Price. This was accompanied by a notice to answer interrogatories, which included a question about the source of the alleged defamatory material published on Whale Oil:

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

13 Nothing very much happened on the file between November 2012 and 26 August 2013, at which point Mr Blomfield made an interlocutory application for orders that Mr Slater answer his interrogatories and provide discovery. Mr Slater refused to comply with the discovery request and the interrogatory on the basis that the information was privileged under s 68 of the Evidence Act.

14 Mr Slater's notice of opposition to these applications relied on s 68(1) which provides journalists with a cloak of non-compellability. He asserted that he was a “journalist” and that to require him to answer the interrogatory or provide discovery would be to require him to disclose the identity of his “informants” to whom he had promised non-disclosure. He also relied on r 8.46 of the High Court Rules which provides that no interrogatories should be allowed unless necessary in the interests of justice.

15 The applications were heard by Judge Blackie on 2 September 2013. He held that s 68(1) did not provide a basis for Mr Slater to refuse to answer the interrogatories or give discovery. He held: 3

Whaleoil is a blog site. It is not a news medium within the definition of s 68(5) of the Evidence Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.

16 The Judge also considered whether r 8.46 of the High Court Rules provided a basis on which Mr Slater could object to answer the interrogatories as to his sources. He held: 4

I can find no reference in the Law Commission report to support the contention that the defendant's blog site could be...