Winston Raymond Peters v Television New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 27 May 2011
• Neutral Citation: [2011] NZCA 231
• Court: Court of Appeal
• Docket Number: CA387/2010
• Date: 27 May 2011

Between

Winston Raymond Peters

Appellant

and

Television New Zealand Limited

First Respondent

Yvonne Teresa Dossetter

Second Respondent

[2011] NZCA 231

Court:

O'Regan P, Ellen France and Stevens JJ

CA387/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against High Court decision refusing appellant's application to amend pleadings — substantive matter involved alleged defamatory remarks — TV programme repeated allegations against appellant made under Parliamentary privilege — alleged misconduct in relation to scampi fishing industry — whether words capable of bearing tier one meaning (actual misconduct) or tier two (suspected misconduct) — ability to determine meaning of alleged defamatory statements by reference to statements made in Parliament.

Counsel:

B P Henry and P J Knapp for Appellant

W Akel and H Wild for First Respondent

No appearance for Second Respondent

JUDGMENT OF THE COURT

A The appeal is allowed to the extent that leave to amend the second cause of action in the fifth amended statement of claim to plead a “tier two” meaning is granted. The appeal is otherwise dismissed.

B The appellant must pay the first respondent 85 per cent of costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Background	[3]
The High Court Judgment	[10]
The appeal against strike out	[13]
The ability to determine meaning by reference to statements made in Parliament	[16]
Is the programme capable of bearing a tier one meaning?	[45]
Appeal against decision declining leave to amend	[47]
Disposition	[51]

Introduction

1 Mr Peters has brought proceedings which include claims that television programmes broadcast by Television New Zealand Limited (TVNZ), based in part on statements made in Parliament, were defamatory of him. A key issue in this appeal is the extent to which the words initially spoken in Parliament can be considered in determining whether one of the television programmes, the Holmes programme, is capable of bearing a ‘tier one’ meaning, that is, one imputing actual misconduct on the part of Mr Peters.

2 In the High Court, Andrews J struck out the part of Mr Peters' claim that is the subject of this appeal on the basis that the Holmes programme was not capable of bearing the alleged defamatory meaning. The Judge refused to grant leave to amend the pleadings to allege a “tier two” meaning, namely, that there are grounds to suspect misconduct. 1 Mr Peters appeals against both decisions. 2

Background

3 We adopt the description of the background set out by Andrews J. 3

4 In 2004 Mr Peters was a Member of Parliament. He had been an alternate member of a parliamentary select committee inquiring into the scampi fishing industry in New Zealand with a particular focus on the involvement of Simunovich Fisheries Limited in that industry. The committee's inquiry began in February 2003.

5 On 22 June 2004 TVNZ's One News reported on the disclosure in Parliament of an affidavit sworn by the second respondent, Ms Dossetter, on or about 29 January 2004 concerning matters affecting the scampi inquiry. The One News report said that a Member of Parliament had referred the affidavit to the chair of the select committee (Mr Carter), who had then referred it to the Speaker, calling for an investigation. Mr Peters' first cause of action against TVNZ is founded on this television news item. The third cause of action against TVNZ is based on a summary of this programme which appeared on TVNZ's website. Neither of these causes of action is in issue on the present appeal.

6 On 23 June 2004, the Holmes programme reported on the allegations in Ms Dossetter's affidavit. The second cause of action, which is the part of the claim in issue on the appeal, is founded on the Holmes programme. Andrews J outlined the structure of the programme as follows: 4

• a) An introduction by the presenter, Mr Holmes. Mr Holmes first said that “serious allegations” had been made in Parliament that day “under the protection of Parliamentary privilege”. Mr Holmes then set out what a Member of Parliament, Mr Shirley, had said in Parliament in relation to Ms Dossetter's affidavit. Mr Shirley is reported as having said that Ms Dossetter had said in her affidavit that a proposal had been made at a meeting attended by Mr Peters and Mr Meurant (a former Member of Parliament) that a payment of $300,000 to Mr Meurant would be a good investment for the Simunovich business. Ms Dossetter had also said that Mr Meurant was working for both Mr Peters' political party and for Simunovich during the scampi inquiry. Mr Holmes then said that Ms Dossetter was the former partner of Mr Meurant;

• b) Background information by a reporter, Ms Janes, in relation to the scampi industry and the Select Committee inquiry, including extracts from an interview of Ms Dossetter by Ms Janes, an outline given by Ms Janes of alleged telephone calls from Mr Meurant to Mr Peters and to Simunovich representatives at the time of the Select Committee inquiry, and footage of Mr Shirley referring to Ms

  Dossetter's affidavit in Parliament together with a report by Ms Janes of two further statements made by Mr Shirley in Parliament;

• c) A report by Mr Holmes of a statement made by the Managing Director of Simunovich denying any illegal or inappropriate behaviour, [preceded] by Mr Holmes noting that Mr Meurant had not answered calls and that Mr Peters was overseas; and

• d) A live studio interview of Mr Shirley by Mr Holmes.

7 A full transcript of the Holmes programme is attached as Appendix 1 to this judgment.

8 Mr Peters issued defamation proceedings in June 2004. The initial claim related to five defendants. The current statement of claim, the fifth amended statement of claim, was filed in late June 2009. A number of interlocutory matters were dealt with subsequently. 5 The end result of various interlocutory skirmishing is that the number of defendants has been reduced to two and the pleadings have changed.

9 In terms of the current relevant pleading, the second cause of action in the fifth amended statement of claim, Mr Peters pleads that he “expressly does not rely on any words spoken in Parliament” or reports of statements made by Mr Shirley referred to in the Holmes programme “except for the purpose of understanding the meaning of the words spoken outside Parliament”. Paragraphs 11 and 12 of the statement of claim set out the alleged meanings of the words spoken during the Holmes programme. At paragraph 12 it is alleged that the pleaded words from the Holmes programme would be understood as Ms Dossetter stating that Mr Peters had accepted and acted on a bribe and was corrupt. Paragraph 13 avers that TVNZ has defamed Mr Peters by:

• i) Repeating and publishing the statements in paras 8, 9 and 10 by the said Dossetter; or in the alternative:

• ii) Publishing a mosaic of its own comments at the same time as repeating the said statements of Dossetter… .

The High Court Judgment

10 Andrews J, as we have noted, struck out the second cause of action relating to the Holmes programme. In doing so, the Judge concluded that the meaning of the statements made in the programme was to be determined without reference to any of the statements made in Parliament. To do otherwise, Andrews J said, would call into question the proceedings in Parliament and so breach the privilege attached to those proceedings.

11 The Judge decided that there were a number of references in the broadcast which defeated the meaning of guilt of misconduct pleaded by Mr Peters, in particular, the description throughout of the “claims” in the affidavit as “allegations”, and the focus on the need for a process for investigation emerging from the live interview with Mr Shirley. In view of these matters, Andrews J was satisfied that the Holmes programme was not capable of bearing the meaning that TVNZ was repeating and publishing statements made by Ms Dossetter to the effect that Mr Peters had accepted and acted on a bribe and was corrupt. The Judge said she would have reached the same conclusion even if it was permissible to refer to the privileged material included in the Holmes programme.

12 Finally, the Judge refused leave to amend the pleading to assert a tier two meaning, namely, that there was cause for suspicion that Mr Peters may have been guilty of serious misconduct. 6 The Judge said this was not in the interests of justice given the history of the proceedings and the delays to date.

The appeal against strike out

13 The nature and scope of Mr Peters' claim has been something of a moveable feast. This is a point we come back to when considering the appeal from the decision declining leave to amend the pleadings. Before us, the focus is on the effect

of TVNZ's reporting of Ms Dossetter's statement, “Yvonne Dossetter says she still stands by her claims in the affidavit”. Mr Henry, on behalf of Mr Peters, says that Ms Dossetter's affidavit was capable of bearing a tier one defamatory meaning. TVNZ, by reporting Ms Dossetter's effective repetition of her claims, has repeated the defamatory statement and is accordingly liable in defamation. Mr Henry says that in these circumstances, in determining the possible defamatory meaning, the material otherwise subject to parliamentary privilege can be considered because the audience understands the non-privileged statements by Ms Dossetter and the journalist by reference to the parliamentary material. For completeness, we interpolate here that it is not at all clear that this approach is captured in the current pleading

14 TVNZ submits that the programme cannot bear a tier one meaning. TVNZ is not adopting anything Ms Dossetter has said. In determining the meaning of a particular...