Supreme Court dismisses defamation case over waste management business

The Supreme Court concluded Justice Walker was right that the defence of responsible communication on a matter of public interest was made out. Photo / Mark Mitchell

The former head of a waste management company has had his defamation claim against a former competitor dismissed by the Supreme Court.

Grahame Christian, founder and former managing director of Smart Environmental, went to the Supreme Court after losing in the High Court and Court of Appeal.

He had brought defamation proceedings against Murray Bain, a Smart competitor and the principal source for two articles published by the Herald in 2019.

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

In November 2019, Christian, Herald publisher NZME and freelance writer Mike Valintine reached a confidential, satisfactory settlement.

Christian did not settle with Bain, who then applied to the High Court to strike out the claim against him. That application was dismissed.

In a December 2022 judgment, Justice Tracey Walker concluded the articles contained imputations defamatory of Christian and Bain was partly responsible for them as a joint tortfeasor.

But because NZME and Valintine had made reasonable efforts to verify the allegations and had offered Smart an opportunity to comment on them, Bain succeeded in making out the defence of responsible communication on a matter of public interest.

Justice Walker later ordered Christian to pay a substantial sum in costs, “including an uplift for some costs elements due in part to challenges to Bain’s evidence and the complexity of the case”.

Christian, who was Smart’s main shareholder until mid-2017 and managing director until shortly before the publication of the articles, appealed the liability and costs judgments.

The Court of Appeal dismissed both appeals and awarded costs against Christian.

In the Supreme Court, Christian argued again that the articles were misleading by omission of important information and therefore there could be no public interest in a misleading publication.

He claimed the articles omitted 25 material facts known to Bain and/or Valentine.

He also claimed Bain’s “malice” towards him was not disclosed in the articles when it should have been.

The Supreme Court rejected these arguments.

“Nothing raised by Mr Christian calls into question the correctness of [the Court of Appeal’s] assessment,” the Supreme Court judges said.

The court said the proposed arguments in relation to malice had insufficient prospects of success to justify a grant of leave.

“The articles include reference to the facts that Mr Bain was a former employee of Smart, that he owns a competing waste management company and that there was “bad blood” between him and Mr Christian. As the respondent submits, readers with this information would understand Mr Bain’s motivations.”

Christian was ordered to pay Bain’s costs of $2500 for the leave application.