Claire Trevett is the New Zealand Herald’s deputy political editor.

Andrew Little defamation trial a win for future Opposition leaders - and the lawyers

Claire Trevett sat through five days of theatre and politics at Andrew Little's trial for defamation

"This case is not about politics," Earl and Lani Hagaman's lawyer Richard Fowler said on the first day of the hoteliers' defamation trial against Labour leader Andrew Little.

It was a rather optimistic plea in a case which was always going to be about politics.

With both sides trying to show political motivation on the part of the other, it was not so much a case of wrong and right as left and right, of political power versus personal wealth.

It was about politics when Lani Hagaman set out husband Earl's previous donations to parties including Labour, NZ First, Act and National. Probed further, she said the Labour donations had been during the Rogernomics years and Mr Hagaman's attention had moved to Act once Sir Roger Douglas and Richard Prebble left Parliament.

It was about politics when, in a written statement, Earl Hagaman spoke of how he had discussed Kim Dotcom with National Party president Peter Goodfellow when handing over a donation the day after the 'Moment of Truth' night of the 2014 campaign, and "how destructive it would be if he ever got into a position of power."

It was about politics when Little's team presented a letter Earl Hagaman had written to Prime Minister John Key in 2009, saying he was doing a "great job and unwinding some of the horrendous miscarriages Helen [Clark] set up to defraud the taxpayers."

Lani Hagaman, left, leaving the Wellington High Court with members of her legal team. Photo / Mark Mitchell
Lani Hagaman, left, leaving the Wellington High Court with members of her legal team. Photo / Mark Mitchell

Mrs Hagaman too was then pressed on her views on paying taxes. She declared nobody likes paying taxes, but that doesn't mean they don't pay them.

It was never clear why we needed Mrs Hagaman's views on paying taxes, but it passed the time.

It was about politics when Little told the court he hoped to pay for all the costs and damages out of his own pocket - even if it meant a mortgage on his house - rather than use the taxpayer funds open to him. It made him look quite virtuous.

But it was also because just a year ago, Little had criticised former Prime Minister John Key for initially proposing to use his Parliamentary funded leaders' budget to settle the 'tea pot tapes' defamation case brought by photographer Bradley Ambrose against him.

Little said New Zealanders had to know Key had learned the lesson "that an attack from him on a New Zealander can cause serious harm to that person's career." He said Key should both apologise and foot the bill. "If anyone can afford to pay for a 'small cash settlement,' it's John Key."

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Key changed his mind a day later and said it would be paid for by the National Party and donations.

And it was most certainly about politics when Little took to the witness box.

His evidence at times verged on a campaign speech. He railed about the Saudi sheep deal, and Foreign Minister Murray McCully and Panama Papers and John Key's lawyer and the SkyCity convention centre and conflicts of interest and "irregular arrangements"and offshore trusts and Saudi sheep.

His aim was to show his real target was McCully and the Government - not the Hagamans.

He did it with such vigour and returned to it so often that at times he sounded a bit like a conspiracy theorist.

He said he had never met Earl Hagaman but had heard that he "expresses right wing views". "I don't mean this in any pejorative way," he added.

His worst moment was when he got caught out in what looked suspiciously like a porkie. It was the moment of high theatre.

Little had criticised the Hagamans at length for what he described as the "most bizarre negotiations" he had ever taken part in in trying to settle before court.

The problem, he said, was that the Hagamans critiqued the wording he put up for an apology but never gave him the wording they wanted. They also demanded costs for what he considered "excessive"legal fees.

Then came the cross examination by the Hagamans' lawyer Richard Fowler.

Earl Hagaman, with his wife Lani, after receiving the CNZM Companion of the New Zealand Order of Merit for services to business, tourism and philanthropy at an investiture ceremony at Government House, Auckland in 2014. Photo / Brett Phibbs
Earl Hagaman, with his wife Lani, after receiving the CNZM Companion of the New Zealand Order of Merit for services to business, tourism and philanthropy at an investiture ceremony at Government House, Auckland in 2014. Photo / Brett Phibbs

Fowler held a letter both parties had agreed not to put before the court and said Mrs Hagaman waived her right to keep it secret.

He asked if Little would also waive his. Little was stuck. By now it was obvious there was Something Important in the letter. If he said no, the jury would know he was trying to hide something. He said yes.

The letter included the full text of a suggested apology the Hagamans had put forward right at the start of events.

It is unclear whether Little had forgotten the letter, or assumed it would never see the light of day again.

Little tried to explain it away - not very well.

He never sounded more like a politician than at that moment.

Having just justified his part in those "excessive"legal fees Fowler managed to resist rubbing it in, but in his closing statement he made sure the jury remembered it by pointed out he had resisted rubbing it in.

Jokes were few and far between and had an edge when they did come.

After the Shewan exchange, Fowler asked about Little's past career as a lawyer and quipped he had "moved away from the dark side."

"I fought for the good guys anyway," Little replied. It was said with a smile, but a clear barb at Fowler. One juror tittered.

Little was up against Mrs Hagaman, a diminutive figure with guts and a core of steel to call on.

She didn't brook any nonsense.

When Little's lawyer, John Tizard, questioned her repeatedly over the $2.3 million amount claimed in damages and whether she wanted to bankrupt Little, she replied "you're not going to put me in the position of being the bad person here."

She said she had no wish to bankrupt anyone, but Little had a chance to settle early and cheaply and had not taken it. She was now in Wellington fighting for her family name while her husband Earl was dying. If Little couldn't afford it, he only had himself to blame.

Andrew Little was fighting with one arm behind his back. Photo / File
Andrew Little was fighting with one arm behind his back. Photo / File

The subtext was that had treated them as collateral damage in his pursuit of Murray McCully and now he could be collateral damage in their attempt to get justice.

Both sides were playing to a jury of nine men and three women

In terms of hearts and minds, she had the upper hand and she knew it. Her husband Earl, 92, was dying. She was fighting to clear his name before that happened.

It meant Little was fighting with one arm behind his back.

It was something Tizard sought to point out in his closing address, saying it put Little in an "uncomfortable" position.

They could only watch helplessly as Mrs Hagaman and Fowler built Earl Hagaman up into a Saint - listing his good deeds and his charitable giving. After a long list, Mrs Hagaman observed of the $100,000 to the National Party "I don't want to be rude, but it wasn't big in the scheme of things."

Mrs Hagaman also spoke of his love of New Zealand, his road to riches journey after a humble upbringing in America during the Great Depression - the child of a used car salesman who made his first dimes cleaning car wheels at the age of 5. "There were many times when if they didn't sell a car, they couldn't eat." There was her own parallel journey, the daughter of a freezing worker and postie - a "wholesome family, but we didn't have any money."

Little's team could not puncture it without looking like monsters.

Both tried to claim the cause of democracy for their side and both were right.

Mrs Hagaman claimed that everyone had a democratic right to donate to any political party of their choosing without being pilloried for it, or nefarious intent seen in it.

Little claimed it was his own democratic and 'moral' duty as leader of the Opposition to question that donation and the motives behind it.

His side spent much of the trail trying to talk any potential damages down.

The recent $1.27 million award to Jordan Williams in the Colin Craig case was never mentioned, but was clearly on minds. The jury was warned not to look at other defamation awards when making its own decisions, to be 'reasonable' and fair to both sides, and not to get carried away.

Their own evidence done, both Mrs Hagaman and Mr Little sat at the back of the court room for most of the trial.

Lani Hagaman leaving the Wellington High Court after hearing the verdicts in her defamation case against Labour Party leader Andrew Little. Photo / Mark Mitchell
Lani Hagaman leaving the Wellington High Court after hearing the verdicts in her defamation case against Labour Party leader Andrew Little. Photo / Mark Mitchell

Hagaman sat on the right at the front, Little on the left at the back.

Little was flanked by staff, Hagaman by a friend.

The jury sat impassive and infuriatingly inscrutable through most the trial, scrabbling their way through screeds of files.

The opposing sides watched like hawks for any sign they were doing well. A sympathetic look here, a smile there.

When they were sent to make their decision, they were asked not to let either personal or political sympathies affect their decisions.

It took that jury more than 13 hours to come to a decision - such as it was.

The reason for the inscrutable faces became clear when the string of decisions was read out - the jury found Lani Hagaman was not defamed at all, but was unable to decide on almost all of the claims by Earl Hagaman.

In the one case it did find defamation, it was unable to decide whether Little had acted in abuse of the 'qualified privilege' he had claimed so no damages were awarded.

There is a possibility of a retrial - but if Mr Hagaman dies, the chance of that happening will also end. Lani Hagaman may also decide that the jury's one finding of defamation was enough to make her point.

As is often the case in such matters, the only winners in monetary terms were the lawyers.

Little joked that had a substantial award been handed down he would have ended "busking at the bottom of Lambton Quay."

He may well end up there anyway - he was yet to get his own bill from lawyer John Tizard.

But he may have saved others from busking on Lambton Quay.

The other winners in the case were future Leaders of the Opposition.

Little's present to them was Justice Karen Clark's ruling that as Leader of the Opposition he met the criteria for the defence of qualified privilege.

The ruling acknowledges Little had a moral or legal duty to make the statements he had, in the course of holding the Government to account. It offers some protection in defamation suits, unless the person claiming it was motivated by ill-will or otherwise abused the privilege.

The jury was unable to decide if he had ceded his right to it, but it proved Little's saving grace in the end.

If that holds up untrammelled through any appeals, Little's successors will thank him.

- NZ Herald

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Claire Trevett is the New Zealand Herald’s deputy political editor.

Claire Trevett is the New Zealand Herald’s deputy political editor and joined the Press Gallery in 2007. She began with the Herald in 2003 as the Northland reporter before moving to Auckland where her rounds included education and media. A graduate of AUT's post-graduate diploma in journalism, Claire began her journalism career in 2002 at the Northern Advocate in Whangarei. Claire has conjoint Bachelor of Law/ Bachelor of Arts degrees from the University of Canterbury.

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