High Court dismisses claim against Smart Environmental competitor

Both parties are appealing the decision. Photo / NZME

The High Court has dismissed a defamation claim against a former employee-turned-competitor of Smart Environmental who spoke out against the waste management firm in two Herald articles published in 2019.

The claim was pursued by Graham Christian, Smart’s founder and then managing director, who had also originally sued Herald publisher NZME and Michael Valintine, a freelance writer and author of the articles, and Smart’s competitor Murray Bain.

The front page news article and longer feature article focused on Smart’s provision of services to the Thames Coromandel District Council (TCDC).

Christian, NZME and Valintine reached a confidential, satisfactory settlement but Christian did not settle with Bain, who applied to the High Court to strike out the claim against him.

Bain argued that Christian should be prevented from continuing his claim against him.

The court declined to strike out the claim in a judgment delivered on December 10, 2021.

Christian attributed responsibility for the publication of the articles and republication of the sting of the articles on social media sites to Bain and pleaded that the republications aggravated damage to his reputation.

He therefore asserted that Bain, who was quoted in the articles, was responsible as a “joint tortfeasor” with NZME and Valintine.

In a lengthy judgment released last December, Judge Tracey Walker concluded that Bain is a joint tortfeasor and the articles were defamatory of Christian.

However, Justice Walker dismissed the claim concluding that Bain had succeeded in his defence of responsible communication on a matter of public interest.

Justice Walker noted that while the dismissal of the claim may appear a harsh result for any plaintiff concerned with reputational damage, “in this instance, any reputation damage has been assuaged in part by the apology and retraction on the part of NZME and by the published findings of the TCDC following its inquiry”.

TCDC had engaged Morrison Low and PriceWaterhouseCoopers (PwC) to investigate the allegations in the Herald articles.

A key argument in the claim against Bain was the extent to which he worked with Valintine on the story.

Christian’s lawyers contented that Bain was not a mere journalistic source but “collaborated with Mr Valintine to jointly craft every aspect of the allegations and the articles with the common intention to ultimately see them published”.

In other words, it was alleged that Bain procured and played a substantial part in having the articles published. Bain’s lawyer contended that he had a much more limited involvement in the articles, arguing that they were not based materially on statements he made.

Rather, it was argued that Bain was only one of more than 15 sources for the articles and Valintine conducted his own investigation. Justice Walker accepted there were many other sources for the articles, including a confidential TCDC source.

She found that, “It is significant however that those sources fulfilled a secondary role - to corroborate Mr Bain’s hypotheses.”

Justice Walker was satisfied that the steps taken by Valintine to authenticate the Smart/TCDC data were sufficiently robust in all the circumstances.

“The steps taken to verify the substantive allegations, the multiplicity of sources and their reliability combined with the inadequacy of the responses from TCDC to LGOIMA requests and the ample opportunity afforded to Smart and Mr Christian to respond substantively all lead me to conclude that this was a reasonable journalistic investigation on issues of public interest.

“I uphold the defence of responsible communication on a matter of public interest. It follows that the claim in respect of the articles must be dismissed,” Justice Walker declared.

Both parties are appealing the decision.