Slater v Blomfield

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 17 June 2015
• Neutral Citation: [2015] NZCA 240
• Docket Number: CA678/2014
• Court: Court of Appeal
• Date: 17 June 2015

Between

Cameron John Slater

Applicant

and

Matthew John Blomfield

Respondent

[2015] NZCA 240

Court:

Stevens, Wild and Miller JJ

CA678/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for an extension of time to file an appeal under r29A of the Court of Appeal (Civil) Rules 2005 (the Rules) — appellant was being sued in defamation — High Court had ruled that the appellant was a journalist and his blog was a news medium for the purposes of s 68(1) Evidence Act (Protection of journalists' sources) — however, the Judge allowed the respondent's application for an order under s68(2), so that the protection of s68(1) did not to apply in the proceeding — also held that r8.46 High Court Rules (HCR) (Defamation proceedings — honest opinion on matter of public interest or privileged) did not apply because of the provisions of the Defamation Act 1992 — appellant had wrongly assumed that leave was required to appeal and had initially filed an application in the HC for leave to appeal — appellant was self-represented — whether the delay was significant — whether there appeal an issue of public importance.

Counsel:

Applicant in person

M G Beresford for Respondent

JUDGMENT OF THE COURT

A The application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted.

B The applicant is directed to:

(a) file and serve the case on appeal no later than 31 July 2015;

(b) file and serve any affidavits in support of the application for leave to adduce fresh evidence by no later than 14 August 2015; and

(c) pay security for costs and any filing fees, as well as apply for a fixture by no later than 28 August 2015.

C Immediately following 28 August 2015, the Registrar is to arrange a telephone conference with the Civil List Judge to discuss any outstanding timetabling or other issues.

D The applicant must pay the respondent the costs of a standard application on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Stevens J)

Introduction

1 The applicant, Cameron Slater, applies for an extension of time to file an appeal under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules). He wishes to appeal a judgment of Asher J given on 12 September 2014. 1 Asher J ordered under s 68(2) of the Evidence Act 2006 (the Act) that Mr Slater (and his sources) were not protected by s 68(1). That provision, which prevents a journalist from being compelled to disclose an informant's identity when the journalist has promised to keep their identity secret, applies to journalists who publish information in a news medium, unless a judge orders otherwise.

2 Mr Slater is being sued for defamation in the District Court by Matthew Blomfield, the respondent. The alleged defamation relates to stories Mr Slater published in 13 articles on his Whale Oil blog about Mr Blomfield. One such blog post, entitled “Who really ripped off KidsCan?”, alleged business interests with which Mr Blomfield was associated had defrauded a charitable trust for children. Other relevant articles contain extracts of emails to which Mr Blomfield is alleged to be a party. Mr Blomfield says some of the information comes from a hard drive of his. Mr Slater admits publishing the articles in question, but says they are not defamatory. He seeks to raise the defences of truth and honest opinion.

3 Mr Blomfield filed interlocutory applications in the District Court for orders requiring discovery and the answering of interrogatories. Mr Slater opposed those applications, on the basis he should not be compelled to disclose the information under s 68(1) of the Act. Judge Blackie rejected that claim, holding that a blog, and therefore Whale Oil, was not a news medium within the definition of s 68(5) of the

Act. 2 Mr Slater appealed to the High Court. After the appeal was filed, Mr Blomfield made an originating application to the High Court seeking an order under s 68(2) of the Act, should he be unsuccessful in opposing the appeal relating to s 68(1). Asher J found that Mr Slater was a journalist and the Whale Oil blog was a news medium for the purposes of s 68(1) (as defined in s 68(5)). However, he allowed Mr Blomfield's application for an order under s 68(2), so that the protection of s 68(1) is not to apply to Mr Slater in the proceeding

4 Mr Slater seeks to appeal the s 68(2) order.

High Court judgment

5 Asher J held the “newspaper rule” which protected newspapers from being required in defamation cases to disclose their sources of information was subsumed by s 68 of the Evidence Act. 3 The old common law rule concerned disclosures to journalists in circumstances of confidence. Section 68 focuses on disclosures to journalists in circumstances where the journalist has promised to keep the informant's identity secret. 4 Any person seeking protection under that provision has to meet certain minimum requirements. 5

6 Asher J concluded Mr Slater was a “journalist” within the definition in s 68(5). He further held Judge Blackie was wrong to consider a blog could not be a news medium. 6 Provided it disseminates news involving provision of new information to the public about recent events of public interest or observations about the same and there was some regular commitment to the publication of news, it fell within the definition of “news medium” in s 68(2). After examining the content and nature of the Whale Oil blog run by Mr Slater, the Judge held Mr Slater was engaged in reporting genuine new information of interest over a wide range of topics. 7 He found further he was receiving information from informants, of the kind s 68(1)

protects, in the normal course of this work as a journalist. 8 Asher J also found, during the material time, Mr Slater had promised to individuals not to disclose their identity. The relevant elements of 68(1) being satisfied, the Judge determined Mr Slater was entitled to invoke the protection in s 68(1) in relation to his sources. Sources whose identity had already been disclosed, being one particular source before Asher J, did not attract the protection. 9

7 Judge Blackie had determined r 8.46 of the High Court Rules did not apply. 10 Justice Asher determined r 8.46 properly governed the requirements for the honest opinion defence (previously, the fair comment defence). 11 But it had no application to the present circumstances because of the provisions of the Defamation Act 1992. Accordingly, for different reasons he dismissed the appeal in respect of the determination in the District Court that r 8.46 of the Rules does not apply.

8 The Judge then discussed the factors to be considered in deciding under s 68(2) of the Act whether an order should to be made that s 68(1) not apply. The Judge held that disclosure of evidence of the identity of informants was appropriate in this case. 12 There was a public interest in allowing all information that might assist in refuting defences of truth and honest opinion, and in persons who claimed to have been defamed being able to explore the circumstances and what sources were reporting to and informing the publisher. There would be no significant adverse effect arising from disclosure. 13 The public interest considerations affecting communication of facts and opinion to the public by the news media and its ability to access sources of facts was not implicated by the current case. 14

9 The Judge therefore made an order that s 68(1) is not to apply to the disclosures sought in this defamation proceeding. The result was that Mr Slater was required to comply with interrogatories and discovery obligations, including those relating to his sources.

Steps prior to filing of application

10 Mr Slater initially filed an application in the High Court for leave to appeal. He wrongly assumed that leave of the High Court was required. Despite the initial proceedings commencing in the District Court, as the issue under s 68(2) arose only by way of originating application in the High Court, there is an appeal to this Court as of right in respect of that issue. 15 All other questions, if appeal was sought, would have required leave.

11 Asher J noted Mr Slater had been informed of that position in a minute and Mr Slater had indicated he intended to appeal to the Court of Appeal. He also understood his appeal was out of time so an application for leave to appeal out of time would be required. Mr Slater confirmed he could do this “within two weeks”. The Judge made a direction recording Mr Slater's indication of his intention to file an application for leave.

Application for leave filed

12 Mr Slater filed the application for extension of time on 21 November 2014. This was two days outside the time referred to in the directions timetable of Asher J. The application is opposed by Mr Blomfield.

Grounds

13 Mr Slater submits this Court should grant an extension of time first, because there is no prejudice to the respondent. Mr Blomfield was aware of his desire to appeal the s 68(2) decision when he filed the application for leave to appeal in the High Court. 16 Second, the matter is one of public or general importance. The issues of law are important and the matters contained in the judgment of Asher J should be clarified.

14 The s 68(2) application in the High Court was the first time the issue was considered. 17 Protection of sources in relation to internet news media is a question of significant public importance. Mr Slater submits the specific issues concerning the protection bloggers' sources under s 68(2) have not yet been canvassed by this Court.

15 Mr Slater contends his sources are genuinely concerned as to their safety. The protection offered to the fourth, and now fifth, estate needs to be addressed by this Court. As to the factual underpinning to the concerns of the unidentified sources, Mr Slater said he would file an application for leave to adduce fresh evidence. 18 An...