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Supreme Court to hear defamation case

By Steven | December 1, 2008

The sprawling trawling case is off to the Supreme Court. It’s pretty much for defamation train-spotters only – the appeal concerns pre-trial skirmishes about points of pleading (listed below). But these issues matter quite a lot, as they set the boundaries for the arguments and evidence that can be advanced in an attemtpt to establish the defences of truth and honest opinion.

There’s one particularly fascinating question in play (and it relatees to many of the issues listed below). When someone makes an allegation that there are “reasonable grounds to suspect that X has done Y horrible thing” – is it going to be enough to show that reliable-person-Z said that X had done Y horrible thing? On the one hand, shouldn’t a news outlet be able to rely on reliable-person-Z (who might have been a judge making findings in a court decision, or an inquiry making findings after an investigation) in publishing that allegation, and in showing it to be true? The news outlet isn’t, after all, saying that X actually did Y horrible thing.

On the other hand, one of the most basic principles of defamation law is that if you repeat someone else’s smear, you’re liable for proving the truth of it – you can’t defend yourself simply by saying that Z thought it was true. The Court of Appeal has gone with this view. The media will be pitching in behind the other one. It’s as important a media law case as has yet hit the Supreme Court, I think.

Issues accepted for hearing by the Supreme Court:

(1) That s 38 of the Defamation Act 1992 applies to a stand-alone defence of truth.

(2) That in pleading “circumstances” in support of a truth defence pursuant to s 38(b), a defendant may not rely on the fact that third parties made statements.

(3) That the “repetition” and “conduct” rules apply to pleadings of truth to “tier 2” imputations.

(4) That the “repetition rule” applies not only at an evidential stage but at the pleading stage of a proceeding.

(5) That there is no exception to the “repetition rule” for reliance on judicial decisions in support of a pleading of truth to a “tier 2” imputation.

(6) That the position is not affected by the changes to the treatment of hearsay evidence brought about by the Evidence Act 2006.

(7) Regarding matters which the appellant may not plead as part of its truth defence.

(8) That a defendant may not plead in support of an honest opinion defence the fact that third parties made statements.

(9) That the repetition and conduct pleading rules adopted in the United Kingdom jurisdiction, apply without modification, to a truth defence to “tier 2” meanings which impute only that there are reasonable grounds to suspect the plaintiffs rather than that the plaintiffs are guilty.

(10) That accordingly a defendant may not seek to prove the truth of “tier 2” imputation by reference to the opinions or assertions of others.

(11) That the phrase “facts and circumstances” in s 38 of the Defamation Act 1992 does not mean that the third party assertions or opinions may be pleaded since they are not capable in law of establishing a defence of truth by virtue of the repetition and conduct rules.

(12) That judicial decisions and opinions do not fall outside the repetition and conduct rules, are not primary facts for the purposes of the law of defamation, and may not be relied on as evidence of facts in issue by virtue of s 50 of the Evidence Act 2006.

(13) That third party assertions, opinions and judicial decisions may not be relied on as publication of facts on which a defence of honest opinion is based.

Topics: Defamation | 11 Comments »

11 Responses to “Supreme Court to hear defamation case”

  1. ross Says:
    December 3rd, 2008 at 10:16 am

    Who claims to have been defamed and what are the allegedly defamatory comments?

  2. Steven Says:
    June 9th, 2009 at 5:17 pm

    Belated response: it’s the Simunovich fisheries case, and you’ll have to read the judgment. It’s too complex to go into much here. In short, Simunovich alleges TVNZ and APN wrongly accused it of corruption and/or dishonesty in relation to scampi fishing rights.

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