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CRAIG V SLATER [2018] NZHC 2712 [19 October 2018]

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CRAIG V SLATER [2018] NZHC 2712 [19 October 2018] ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL 11.00 AM ON THURSDAY 25 OCTOBER 2018 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV-2015-404-1923 [2018] NZHC 2712 IN THE MATTER of the Defamation Act 1992 BETWEEN COLIN GRAEME CRAIG Plaintiff AND CAMERON JOHN SLATER First Defendant AND SOCIAL MEDIA CONSULTANTS LIMITED Second Defendant Hearing: 8–12, 15–19, 22–26, 29, 31 May and 1 June 2017 Further submissions received 2, 7 and 12 June, 13, 20 September 2017, 6, 29 March, 12, 30 April, 10, 16 August, 5, 11 September 2018 Appearances: CG Craig, representing himself, support by TF Cleary as McKenzie Friend BP Henry and CSL Foster for the Defendant Judgment: 19 October 2018 JUDGMENT OF TOOGOOD J This judgment was delivered by me on 19 October 2018 at 3.00 pm Pursuant to Rule 11.5 High Court Rules Registrar/Deputy Registrar CRAIG v SLATER [2018] NZHC 2712 [19 October 2018] TABLE OF CONTENTS THE NATURE OF THE CASE [1] Introduction [1] The proceeding [11] SUMMARY OF THE FINDINGS AND DECISIONS [17] Findings on Mr Craig’s defamation claims [17] Findings on Mr Slater’s counterclaim [20] Significant principles of law applied [23] THE BROAD SCOPE OF THE RELEVANT FACTS [24] The witnesses and their evidence [26] The witnesses [26] Disclosure of relevant documents [29] MR CRAIG’S RELATIONSHIP WITH MS MacGREGOR [33] About Mr Craig [33] About Ms MacGregor [35] Ms MacGregor’s engagement as Mr Craig’s executive assistant and press secretary [36] The nature of Mr Craig’s and Ms MacGregor’s relationship in 2011 [38] Ms MacGregor’s evidence [39] Mr Craig’s response to Ms MacGregor’s evidence [44] The 2 November 2011 letter [47] The election night 2011 incident [57] The relationship immediately after the general election and in December 2011 [61] Comment and findings on the relationship in 2011, including election night [67] The nature of Mr Craig’s and Ms MacGregor’s relationship in 2012 [78] The 7 February 2012 letter [83] The one-page “Things I am Doing” note [90] The formal nature and terms of Ms MacGregor’s engagement [102] The nature of Mr Craig’s and Ms MacGregor’s relationship during 2012 and 2013 [113] Ms MacGregor’s evidence [113] Mr Craig's response to Ms MacGregor's evidence [118] Other significant correspondence in 2012 and 2013 [127] (i) The 22 October 2012 letter [130] (ii) The 24 December 2013 letter [135] Ms MacGregor’s financial position in early 2014 [144] 2014 events up to 18 September [148] Mr Craig’s email of 17 June 2014 [153] Mr Craig’s letter of 18 June 2014 [156] Ms MacGregor’s letter of 20 June 2014 [159] Ms MacGregor’s workload [163] Comments and findings on Mr Craig’s and Ms MacGregor’s relationship in 2012, 2013 and 2014 [167] Ms MacGregor’s abrupt resignation 18 September 2014 [178] The trip to Napier on 14 September 2014 [186] Ms MacGregor’s phone call to Mrs Craig on 18 September 2014 [190] The aftermath of the resignation [192] Financial issues and Ms MacGregor’s sexual harassment claim [195] Human Rights Commission mediation and settlement of Ms MacGregor’s claims [208] MR CRAIG AND THE CONSERVATIVE PARTY [221] What happened after the 2014 general election [221] Mr Slater and Whaleoil get involved [225] Mr Craig’s disclosures to the Conservative Party board [231] The sauna interview 9 June 2015 [239] Ms MacGregor’s claim that Mr Craig breached the settlement agreement [243] The continuing pressure on Mr Craig to step down as leader [248] Mr Craig stands down as leader on 19 June 2015 [259] MR SLATER’S STATEMENTS ON RADIO AND TELEVISION AND HIS POSTS ON WHALEOIL 19 JUNE 2015 TO 29 JULY 2015 [268] Publication 1 Newstalk ZB 19 June 2015, 5.30pm [268] Publication 4 Whaleoil 20 June 2015, 8.30 am [271] Publication 6 – Whaleoil 20 June 2015, 4.30 pm [275] Publication 18 Peter Belt (Whaleoil) letter 20 June 2015, 4.45 pm [277] Publication 7 Whaleoil 21 June 2015, 8.30 am [282] Mr and Mrs Craig’s media conference 22 June 2015 [284] Publication 9 Whaleoil 23 June 2015, 10.00 am [292] Approach to Mr Slater by Ms Madeleine Flannagan [293] Publication 10 Whaleoil 26 June 2015, 12.30 pm [299] Publication 11 Whaleoil 28 June 2015, 10.30 am [300] Publication 12 Whaleoil 28 June 2015, 1.00 pm [301] Publication 14 Whaleoil 1 July 2015, 4.00 pm [302] Publication 15 Whaleoil 8 July 2015, 10.00 am [306] Publication 16 Whaleoil 18 July 2015, 10.00 am [308] Publication 17 One News Now 29 July 2015 [309] THE DIRTY POLITICS AND HIDDEN AGENDAS BOOKLET [311] THE TORT OF DEFAMATION AND THE PLEADED DEFENCES [314] Proof that the author published a statement that was defamatory [315] Were the statements published by the parties alleged to have made them? [319] Are the statements relied upon statements of fact or opinion? [323] Truth [325] Honest Opinion [329] Lange v Atkinson qualified privilege / new defence of responsible communication on a matter of public interest [332] The Lange v Atkinson qualified privilege [335] The new defence of responsible communication on a matter of public interest [342] The new defence applies [350] Reply to attack qualified privilege [357] Mr Slater’s application to file a late s 41 notice concerning reply to attack qualified privilege [363] DETERMINATION OF THE CLAIMS AND DEFENCES RELATED TO EACH PUBLICATION [380] The issues to be determined in respect of each alleged publication [380] First cause of action (against Mr Slater only) Publication 1 Newstalk ZB 19 June 2015, 5.30pm [382] Do the statements bear the pleaded meanings? [384] Were the pleaded meanings defamatory? [388] Were the pleaded passages statements of fact or expressions of opinion? [390] What is the meaning of “sexual harassment” in the context of this case? [392] The meaning of “sexual harassment” and the principles to be applied [411] Did Mr Craig sexually harass Ms MacGregor? [412] Was the impugned conduct sexual in nature and was it unwelcome? [414] (i) The 2 November 2011 letter [416] (ii) The incident on election night 2011 [421] (iii) The 7 February 2012 letter [425] (iv) Ms MacGregor’s Christmas card of December 2012 [437] (v) The 24 December 2013 letter [438] Conclusion Mr Craig sexually harassed Ms MacGregor [442] Did Mr Craig sexually harass Ms MacGregor so seriously that he paid her a six-figure sum in settlement? [448] Was the sexual harassment serious? [448] Did Mr Craig pay Ms MacGregor a six-figure sum in settlement? [459] Did Mr Craig lie to the Conservative Party board about the terms of the financial settlement with Ms MacGregor? [461] Findings about the defence of truth [468] Defence of responsible communication on matter of public interest [471] A matter of public interest [471] Did Mr Slater act responsibly in making the statements? [472] (i) What standards of responsibility should apply? [479] (ii) What were Mr Slater’s motivations in making the statements? [485] Conclusion – defence of responsible communication on a matter of public interest would succeed [490] Third cause of action Publication 4 Whaleoil 20 June 2015, 8.30 am [495] Do the statements bear the pleaded meanings? [497] Were the pleaded meanings defamatory? [499] Were the pleaded passages statements of fact or expressions of opinion? [500] Defence of truth [501] Did Mr Craig put financial pressure on Ms MacGregor to get her to sleep with him? [502] Defence of responsible communication on a matter of public interest [512] Fifth cause of action Publication 6 – Whaleoil 20 June 2015, 4.30 pm [515] Defence of truth [519] Defence of responsible communication on a matter of public interest [523] Sixth cause of action Publication 7 Whaleoil 21 June 2015, 8.30 am [525] Defence of responsible communication on a matter of public interest [530] Seventh cause of action Publication 9 Whaleoil 23 June 2015, 10.00 am [534] Eighth cause of action Publication 10 Whaleoil 26 June 2015, 12.30 pm [539] Mr Slater’s discussions with Ms Flannagan [539] Publication 10 [549] Defence of responsible communication on a matter of public interest [552] Ninth cause of action Publication 11 Whaleoil 28 June 2015, 10.30 am [561] Tenth cause of action Publication 12 Whaleoil 28 June 2015, 1.00 pm [563] Eleventh cause of action Publication 14 Whaleoil 1 July 2015, 4.00 pm [566] Can statements in the form of questions be defamatory? [570] The imputations [574] Defence of responsible communication on a matter of public interest – Question 5 [578] Twelfth cause of action Publication 15 Whaleoil 8 July 2015, 10.00 am [584] Thirteenth cause of action Publication 16 Whaleoil 18 July 2015, 10.00 am [587] Fourteenth cause of action (against Mr Slater only) Publication 17 One News Now 29 July 2015 [592] Fifteenth cause of action (against SMCL only) Publication 18 Peter Belt (Whaleoil) letter 20 June 2015, 4.45 pm [595] THE COUNTERCLAIMS [601] Background [601] Mr Slater’s first cause of action [604] Mr Slater’s second cause of action [608] Mr Slater’s arguments [614] Mr Craig's defences [619] Imputations in the first and second causes of action were defamatory [624] Defence of truth [626] Reply to attack qualified privilege [630] Did Mr Craig lose the privilege because he was predominantly motivated by ill will? [632] Conclusion on counterclaims [637] SUMMARY OF CONCLUSIONS ON LIABILITY CLAIMS AND COUNTERCLAIMS [638] REMEDIES DECLARATIONS AND DAMAGES SOUGHT BY MR CRAIG [641] Declarations under s 24 of the Defamation Act 1992 [642] General damages [645] Aggravated damages [646] Punitive damages [647] Discussion [648] RESULT AND ORDERS [654] Costs [655] Ancillary orders [657] Acknowledgement [659] THE NATURE OF THE CASE Introduction [1] This defamation proceeding has its origins in the political rise and fall of Mr Colin Craig, an Auckland accountant and businessman, who founded and led the Conservative Party of New Zealand between 2011 and June 2015.
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