Defamation: Two recent examples of attempted strike outs

Two recent High Court cases involving well-known public figures considered the basis on which a defamation claim can be struck out.

In Hubbard v Fourth Estate Holdings Limited1, Auckland City's mayor Dick Hubbard brought proceedings against the National Business Review (NBR) newspaper.

The proceedings concerned a story entitled "Hubbard's Triple Bottom Lie" and related to claims made during the Auckland mayoral campaign in October 2004.

At issue in this decision was the conduct of Mr Hubbard during the proceedings. In his statement of claim, Mr Hubbard claimed relief of $1.5 million - in breach of section 43 of the Defamation Act, which provides that the amount of damages claimed must not be specified in proceedings against news media defendants.

Mr Hubbard was later reported as saying "I have been advised by my legal advisers that the case is both watertight and simple." The NBR sought to strike out/stay Mr Hubbard's action on the basis that he was in contempt of court.

The Court found that there had been a clear breach of section 43 and was also critical of Mr Hubbard's statements about the strength of his case, which were seen as inappropriate, unwise and objectionable.

The issue for the Court was whether, as a result, there was a real risk that there could not be a fair hearing of the defamation case.

The Court noted that the figure had been mentioned in error rather than as a deliberate breach and that an amended statement of claim had been filed as soon as Mr Hubbard and his lawyers realised the error.

Although section 43 exists to ensure that plaintiffs do not claim large damages to stifle or "gag" news media defendants, there was no evidence that the NBR felt intimidated or "gagged" by the plaintiff.

The court also took into account the nature of the comments made by the NBR about Mr Hubbard's integrity, the apology by Mr Hubbard, and that a lengthy time would pass before trial.

The Court found that the NBR had failed to satisfy the Court that Mr Hubbard's conduct was such that it required the ultimate sanction of striking out or staying these proceedings and the defendant's application was dismissed.

In Peters v TVNZ2, New Zealand First MP Winston Peters brought proceedings against a number of parties, including TVNZ, Radio New Zealand, National Party MP David Carter and Act MP Ken Shirley regarding allegations concerning Mr Peters' relationship with Simunovich Fisheries. Mr Carter applied to have the claims against him struck out.

Mr Carter had been quoted on local media as saying that he had passed on allegations that he had received about Mr Peters to the Speaker of the House.

Mr Carter argued that the publications referred to were not capable of bearing a defamatory meaning and therefore did not disclose a reasonable cause of action against him.

He submitted that the only meanings that the statements made by him were reasonably capable of conveying were that he had an affidavit which contained serious allegations and which warranted further investigation by the Speaker and that Mr Carter was not able to say whether the allegations were correct or not.

The Court noted that statements imputing suspicion that a person may have committed an offence were capable of being defamatory and also that a statement that there was to be an inquiry might be defamatory in certain contexts and circumstances. However, that had not been pleaded.

Instead, it was alleged that Mr Peters was a party to serious misconduct and/or that he was in contempt of Parliament.

The Court took the view that the statements, whether taken individually or cumulatively, were not capable of conveying to the ordinary person these meanings. The causes of action against Mr Carter were struck out and Mr Peters was given leave to replead.

1 Hubbard v Fourth Estate Holdings Limited, 16 February 2005, Venning J, HC Auckland, CIV 2004-404-005152

2 Peters v TVNZ, 5 November 2004, Paterson J, HC Auckland, CIV 2004-404-3311