Update and clarification

Photo / NZME

On 6 November 2021, NZME retracted reporting relating to Smart Environmental Limited and its then-managing director, Grahame Christian. The retraction was made after Mr Christian had commenced defamation proceedings against NZME, a journalist, and Murray Bain, who had provided information to NZME. After the retraction was published, Mr Christian discontinued his claim against NZME and the journalist, but continued it against Mr Bain.

On 14 December 2022, the High Court dismissed Mr Christian’s defamation claim against Mr Bain. Justice Walker concluded that the allegations in the two articles were defamatory of Mr Christian. However, Murray Bain succeeded in his defence of responsible communication on a matter of public interest. Mr Christian’s appeal to the Court of Appeal failed, and on 17 November 2023 the Court of Appeal upheld Justice Walker’s judgment.

When NZME’s retraction and apology to Mr Christian was first published in November 2021, NZME had only received summaries of investigative reports by PwC and Morrison Low which were relevant to the matters discussed in the reporting. During the course of the proceedings, evidence was introduced which challenged some of the conclusions in the report summaries.

In particular:

1. Justice Walker found that there was no documented agreement between Smart and the Council which permitted Smart to toll commercial waste through Thames Coromandel RTS sites. Justice Walker found that Smart had endeavoured “to persuade [the Council] that during the 2013 negotiations of the Solid Waste Contract, [the Council] had agreed that Smart could put its Commercial Waste through the RTS sites and on to landfill at Council’s rate.” Justice Walker noted that Mr Christian had signalled in two emails to the Council that Smart intended to do so, but that there was no record of any substantive response from the Council to those emails. Mr Christian asserted in evidence that it was common in business dealings to assume agreement if there was no response. Justice Walker concluded “on the evidence, I was left with the distinct impression that Smart’s approach and arguments in support of its position were no more than a negotiation strategy designed to increase leverage”.

2. Justice Miller in the Court of Appeal said “PwC stated that Morrison Low had found there was no significant unaccounted-for waste. That statement was not strictly accurate. Morrison Low did not find that a variation of 9 per cent was insignificant. They found no clear indication that the quantity of unaccounted-for waste was significant having regard to available explanations that did not implicate Smart in wrongdoing.” You can read more about the outcome of the proceedings here and here.

Mr Bain was not the only source for the articles. The evidence at trial demonstrated that there were multiple sources for the articles. Further, the Court of Appeal ultimately was not persuaded that the Morrison Low or PwC analyses showed that Mr Bain’s data was materially wrong, or that the allegations of unaccounted-for waste and unauthorised discounting were incorrect.

The Court of Appeal held that Mr Bain had “succeeded in substance”, and awarded Mr Bain costs. The Court of Appeal said that the conclusion that the defence of responsible communication on a matter of public interest was made out should come as no surprise. Going on to say that:

The allegations stem from Smart’s unilateral decision to commence tolling in April 2018 without, as Mr Christin now admits, first securing the consent of the [Thames Coromandel District Council]. The single most important detail in the verification process was the [Thames Coromandel District Council’s] confirmation that no tolling agreement was in place. It led inevitably to questions about how Smart was able to tip commercial waste at refuse transfer stations without paying the Gate Rate.

Mr Christian sought leave to appeal the Court of Appeal’s judgment to the Supreme Court. On 18 April 2024, the Supreme Court declined that application.