A media vs media defamation case will go ahead, after the District Court decides the issues involved should be argued in court.

A judge has declined to strike out a defamation case against Newsroom brought by the website NBR.

Judge Nicola Mathers, of the Auckland District Court, said the case could go to trial as there were facts in dispute on whether NBR had suffered any pecuniary loss from the Newsroom article that is the subject of the defamation action.

Newsroom had published a BusinessDesk news agency story quoting a letter sent to NBR by the lawyers of former Finance Minister Steven Joyce over alleged defamation of Joyce in an NBR column by Matthew Hooton.

NBR says the story published on Newsroom defamed it in turn, a claim rejected by this website. Under defamation law, a business like NBR must not only prove reputational damage but also that it suffered financial loss from an article published.

NBR claims to have lost subscribers, but has been unable to provide records of this as it changed its IT systems and no numbers are now attainable. Alternatively, NBR claims its losses come from the diversion of executive time of the publisher, Todd Scott, and senior staff in responding to the Newsroom article.

Newsroom sought a summary judgment and striking out of the case at a hearing in December before Judge Mathers. Newsroom’s lawyer Andy Glenie said NBR’s own initial numbers provided under legal discovery showed it had actually added subscribers in the week after the story in question. It had not provided any documents to back-up its claims of financial loss – either of subscribers or of executive time. He said the claim was trivial and would incur “significant costs and restriction of freedom of expression”.

Judge Mathers found an affidavit from Scott referred to matters that could not be classified as trivial and it was for NBR “to substantiate matters raised in the affidavits and some of those matters seem to me to be capable of oral evidence. They are however matters for trial and satisfactory proof.”

Between the hearing and Judge Mathers’ ruling, Joyce comprehensively won his High Court defamation case against NBR. Justice Pheroze Jagose took just one week to decide the NBR and Scott had separately defamed Joyce – and to order them to pay the ex MP’s legal costs.

The case was unusual in two respects. First, NBR held out against Joyce despite the author of the column that defamed him, Matthew Hooton, apologising, retracting his statements and paying Joyce $5000 in costs 18 months earlier.

And second, Scott was found to have defamed Joyce by tweeting comments relating to the column and Hooton, one of the first defamations by Twitter by a public figure.

The double defeat for NBR and publisher Todd Scott also represented the first time, according to NBR itself, that it had lost a defamation case in court.

Newsroom will now consider appealing the District Court finding to the High Court.

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

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