The Whaleoil blogger Cameron Slater has lost a bid to have hacked documents obtained by author Nicky Hager excluded from a High Court defamation case.

Slater, and a co-defendant Carrick Graham the son of former national minister Sir Douglas Graham, have also been ordered to front-up in court ahead of the defamation hearing to answer questions from the lawyers for the three health professionals who are suing them for defamation.

Justice Matthew Palmer ordered the cross examination in the court room because Slater and Graham had not cooperated satisfactorily with the written questioning from lawyers for medical researchers Doug Sellman, Boyd Swinburn and Shane Bradbrook.

Justice Palmer’s decisions were the latest setbacks for Slater and his lawyer Brian Henry, the longtime barrister for New Zealand First leader Winston Peters, in the defamation case.

The three health professionals sued Slater, Graham, ex National MP Katherine Rich and her Food and Grocery Council for defamation after Hager’s Dirty Politics book revealed emails and communications linking the defendants in blog posts critical of the three men.

They allege Graham wrote blog posts on behalf of the Food and Grocery Council and paid Slater to publish them on his Whaleoil site.

The defendants deny paying for or accepting money for the blogposts and tried to have the action dismissed but in October last year, Justice Palmer struck out just 21 alleged defamatory meanings allowing a further 138 to stand. 

Since then the health professionals’ lawyers have been trying to obtain documents and answers under High Court discovery rules. This latest action alleged Slater and Graham had withheld information and sought new discovery orders against them, Rich and the food council.

The three plaintiffs have obtained further documents from Hager, who had obtained them from a hacker known as Rawshark, which have Graham and Slater discussing “hits” against others, some entitled with the initials “KR Hit”.   One email had the subject line: “KR hit – Confirmed: Doug Sellman Gone Mad” and that post appeared on the Whaleoil site the next day.

Henry, for Slater, asked Justice Palmer to exclude the hacked material from the case, but the judge declined, saying “I am not persuaded they are not genuine” and “most of them appear to be statements by likely witnesses.” He also indicated Hager could be called by the plaintiffs to give evidence. And he said the issue of how much weight could be given to the hacked documents could be determined in the full hearing.

The health professionals asked the judge for further discovery orders because they allege Slater had “failed to disclose” some relevant emails or documents, including emails they claim show Graham having prepared blog posts.

Justice Palmer’s ruling says the plaintiff’s lawyer Davey Salmon “says information to be provided by a third party, Voyager, almost certainly confirms one of the ISPs from which comments were posted on Whale Oil blogs was that of Graham yet Graham failed to disclose any emails from the relevant email accounts associated with those comments.

“Mr Salmon says Mr Graham and [his PR company] FCL failed to disclose any documents relating to the tobacco companies on whose behalf he says they were acting, nor payments received from them.”

“Mr Salmon submits it is inadequate that the defendants have disclosed “almost no” documents about the services provided in exchange for payment” by FCL to Slater’s company and by the Food and Grocery Council to both those companies.

Justice Palmer found “the evidence to which the plaintiffs point suggests at least some of the information sought exists.” He said there were “grounds for believing Slater, Graham and FCL have not discovered documents” related to blog posts about the plaintiffs, comments and metadata from the Whaleoil site. 

The judge ordered they “comply fully” with the High Court rules’ for discovery and warned them discovery obligations were ongoing so if any further documents covered by the order arose they would have to disclose them also.

Rich and the Food and Grocery Council succeeded in narrowing the discovery sought by the three health professionals from them. Justice Palmer said Rich was “clear in denying she or the FGC procured the other defendants to publish the relevant blog posts or comments or paid them for any publications.”

However Rich failed in her own attempt to force extensive disclosure of documents and information to her from the three plaintiffs. Justice Palmer said: “An order of the type sought would fall into the roving inquiry into aspects of the plaintiffs’ lives, unconnected with the subject matter of these specific allegedly defamatory statements.”

On forcing Slater and Graham to appear in court and personally answer questions from the other side, the judge said: “I am concerned their statements that Whaleoil did not publish blogposts for reward are not consistent with the evidence to which the plaintiffs point, which suggests that was done in specific instances. They are inconsistent with reasonable inferences from the emails obtained by the plaintiffs.”

The most efficient way of eliciting answers was for Graham and Slater to “attend court for up to one day to be orally examined.”

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

Leave a comment