Laws v Otago University Students Association [2021] NZDC 2704

Published 06 October 2021

Interlocutory applications — summary judgment — strike out — further particular of defence — defamatory statement — definition of "defamatory" — lower a person in the estimation of right-thinking members of society — definition of "racist" — definition of "shitbag" — honestly held opinion — genuine opinion — state of mind attributable to an organisation — Defamation Act 1992, ss 4, 10, 11, 38, 39 & 43(1) — Defamation Act 2013 (UK), s 1 — District Court Rules 2014 , rr 12.2 & 15.1 — High Court Rules 2016, r 15.1 — Warehouse Limited v Westgate NO 1 Ltd [2013] NZHC 2264 — Westpac Banking Corporation v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) — Burley v Samoilov HC Tauranga CIV-2003-070-123, 19 September 2006 — Attorney-General v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA) — Couch v Attorney-General [2008] NZSC 45 — Sellman v Slater [2017] NZHC 2392, [2018] 2 NZLR 218 — Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 — Hubbard v Fourth Estate Holdings Ltd HC Auckland CIV-2004-404-5152, 13 June 2005 — Hunt v Star Newspaper Co [1908] 2 KB 309 (CA) — Mitchell v Sprott [2002] 1 NZLR 766 (CA) — Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 (NSWSC) — Cornwall v Myskow [1987] 2 All ER 504 (CA) — Craig v Slater [2020] NZCA 305 — Durie v Gardiner [2018] NZCA 278 — APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 — Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946 — Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, [2018] QB 594 — Lachaux v Independent Print Ltd [2019] UKSC 27, [2020] AC 612 — Opai v Culpan [2017] NZHC 1036 — X v Attorney-General (No 2) [2017] NZHC 1136, [2017] NZAR 1365 — Craig v Stiekema [2018] NZHC 838 — Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (EWCA) — Television New Zealand v Keith [1994] 2 NZLR 84 (CA) — Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015 — Craig v Stringer [2020] NZCA 260. The plaintiff had issued defamation proceedings against the defendant organisation, seeking damages. The defendant, a student association of a university ("the Association"), defended the proceedings on the bases that the words were not defamatory; the words were genuinely held honest opinion; and the plaintiff had suffered no loss to reputation given his own actions. The allegation arose from a Facebook post by the plaintiff in which he shared an article about the killing of elephants in Botswana and added his own caption, part of which read that "Africa represents the very worst of humanity". In response to the post a student magazine, owned by the Association, published an article in print and online with the caption "Critic call Michael Laws a 'racist shitbag'". This hearing was to determine cross-applications to strike out the proceedings and defences, further particulars of defence, and/or for summary judgment in favour of the Association. Rule 15.1 of the District Court Rules ("DCR") permits a court to strike out proceedings if there is no reasonably arguable cause of action or defence; if it is likely to cause prejudice or delay; or if it is frivolous, vexatious or otherwise an abuse of process. In a strike-out application the facts pleaded are assumed to be true; the causes of action must be so untenable that they cannot possibly succeed; jurisdiction is to be used sparingly but is not excluded by the need to decide difficult questions of law; and extra care is necessary where the law is developing. Some factors in relation to summary judgment applications are that the defendant bears the onus of satisfying the court on the balance of probabilities that none of the claim can succeed, and it is not enough to show that there are weaknesses in the claims. For something to be defamatory it must be shown to lower a person in the estimation of right-thinking members of society. The Judge noted that, although it was unnecessary to determine the issue at this hearing, it seemed the word "racist" even without the invective "shitbag" would tend to do this. The Association submitted that those words were an opinion and that the opinion was a genuinely held honest opinion. The article had been written by the editor of the magazine and it was argued that his state of mind when writing the piece was attributable to the Association. In relation to the second defence of no causation of damage, the legal position is that the harm to reputation must be more than minor and if the harm is so low that likely vindication, including damages, is outweighed by the cost to the parties and court, the claim may be struck out for abuse of process. The Judge noted that while the plaintiff may have caused harm by his own actions of publishing the post, it was arguable that there was additional harm caused by the magazine's article. The current hearing was not the time to consider the amount of damages which may be awarded. The Judge was satisfied that there was an arguable defence both for honest opinion and no causation of damage and declined to strike out those defences. The Judge also declined to strike out the plaintiff's claim or grant summary judgment in favour of the Association. As neither party had been successful in their respective applications, costs were to lie where they fell. The issue of further particulars of the defence was to be addressed at a case management conference. Judgment Date: 17 February 2021.