Publisher NZME extracted itself from a costly defamation suit over allegations in the waste industry, only to find three courts ruled the story was responsibly told, in the public interest.
The Supreme Court has backed the Court of Appeal and High Court in giving the thumbs down to legal action for damages by Grahame Christian, founder and director of Smart Environmental Waste Ltd, who claimed an NZME article stimulated by a former worker defamed him.
The publisher bailed out of the legal action relatively early, apologising to Christian and retracting the article that its journalist had spent months verifying.
But Christian continued to pursue defamation action against the former colleague Murray Bain – there was said to be “bad blood” between them – first, failing at the High Court then appeal court and finally on Thursday having a bid to take it to the top court turned down.
The story reported allegations emanating from Bain that Smart Environmental Waste misused local authority dumping facilities, centred on the Thames-Coromandel District Council.
Christian had been given the chance to respond to the allegations ahead of publication but did not do so.
He later launched the defamation action, NZME opted out (presumably paying costs and possibly a sum in lieu of damages), and Christian pressed on against Bain.
But first the High Court then the appeal court found that while elements of the claims might have involved defamatory meanings, the issues raised were responsibly raised as matters of public interest. The courts accepted Bain’s defence that he was justified to make them public.
Christian finally sought leave to argue in the Supreme Court that the defence of responsible disclosure in the public interest could not stand if the article in question was misleading.
The Supreme Court decision said Christian claimed the omission of 25 facts known to Bain, the reporter and NZME invalidated the public interest defence.
He said the appeal court was wrong to have accepted the High Court’s view on that defence.
But in the three-judge decision released on Thursday, the Supreme Court noted the Court of Appeal had placed weight on the steps made by the journalist and NZME to independently verify information beyond what had been said by Bain.
The appeal court had also found that despite Bain’s animosity towards Christian – they had been at Smart at the same time previously, Bain left in some acrimony involving an employment dispute, and founded his own waste company – “his allegations were sufficiently verified”.
Christian claimed Bain’s “malice” towards him had not been disclosed in the NZME articles, but the courts found that a reference to the men’s bad blood, and Bain’s former employment at Smart was sufficient to flag for readers the potential feeling between them.
The Supreme Court said the appeal judges had found a misleading article did not necessarily void the defence of public interest.
“The point of the defence is that the public interest may justify a publication shown to be inaccurate provided reasonable steps were taken to verify it.”
It quoted the Court of Appeal: “The allegations were serious but the subject matter was of real public importance.”
The Supreme Court decision not to grant Christian leave to appeal that decision said: “Nothing raised by Mr Chrstian calls into question the correctness of that assessment.
“The complaint, on analysis, is rather that the publications were incomplete.”
Christian’s alleged 25 omitted facts did not establish “knowing suppression”.
His allegation of malice by Bain had “insufficient prospects of success to grant an application for leave”. It noted that the fact Bain had “an axe to grind” appeared to have set the journalist and publisher to even more extensive verification than they might have undertaken.
Christian was ordered to pay Bain’s costs of the leave application.
