Defamation! It's the worst word in journalism, its greatest fear, its lurking menace that can strike when you least expect it and take you to the cleaners, to the edge of sanity, to a very bad place indeed. Still, it's fun when it happens to someone else. A peculiar example was referenced last month in the valedictory speech of retiring Supreme Court judge, Justice William Young.
Defamation attracts some of the best minds in the legal profession. Attorney-General David Parker was present at Justice Young's ceremony. He spoke first, and made mention of a defamation case at the High Court in Invercargill: "His Honour kicked my backside - a reference His Honour will get, but others here today can be spared." Young noted, "Anyone intrigued by the somewhat oblique references to that case can go to the 1990 Law Reports and look at Mount Cook Group Ltd v Johnstone Motors Ltd. " I accepted the invitation and located the volume at the Law School library at the University of Auckland on Monday morning.
Defamation patrols any territory occupied by the written or spoken word. The case heard in Invercargill on February 21-22, 1990 concerned a poster in a Queenstown sports shop. High Court judge Justice Andrew Tipping described it in his ruling: "It depicts a bridal couple walking with their backs to the camera along a gravel path with lawns and leafy trees in the background. The bride is attired in white and the groom in formal black. The back hem of the bride's dress is being held up by the groom so that her underpants and bare legs are exposed. The groom is holding the hem of her dress at about shoulder level with his right hand. His left hand is placed on and under the bride's bottom adjacent to the perineum in such a way as to constitute in the context an overtly sexual gesture." The caption functioned as a punchline. It read, 'PLEASE DARLING NO CHILDREN YET - FUN FIRST, LET'S SKI CORONET PEAK.'"
Defamation law can be said to hold a flaming sword in defence of that immortal part of ourselves: reputation. Mount Cook, which operated the Coronet Peak skifields, felt that anyone seeing the poster would assume they were behind it and, as such, that it blackened their reputation. A Mrs Rowe complained in a letter to the chairman of Mount Cook: ''That this sort of image of women as being passive sex objects should be used to promote skiing in Queenstown is quite inappropriate, apart from the extremely derogatory caricature of the nature of a marriage relationship." But the poster was made by a rogue publisher with no connection to Mount Cook. Justice Tipping: "It has been displayed for quite a number of years on the glass entrance door of a shop … It appears from the evidence that it is distributed by a company based in Rakaia of which a man called Hoffman is the guiding hand."
Defamation is in the eyes of the allegedly defamed; the alleged defamer claims it's a trick of the light, that there's nothing to see. David Parker represented the sports shop (owned by Johnstone Motors), Young acted for Mount Cook. There were other complaints ("smutty and degrading … an affront to the residents of the district") about the poster. Parker argued that it was an orchestrated campaign – note a future minister in the Labour government, playing the conspiracy card - but Justice Tipping saw no evidence. He said, "They represented a mother, a retired lady aged 73, a 34-year-old carpenter, a lady with a doctorate in anthropology, a minister of religion with previous experience as a salesman for a building supply company, and a music teacher." They all hated the poster. They all blamed Mount Cook. They all sought to uphold the nature of a marriage relationship, maybe.
Defamation rulings have the power to shoot the messenger. Justice Tipping sided with the plaintiff ("Ordinary sensible readers would in my judgment conclude that it was a poster published by Mount Cook") but shot merely to wound, not to kill, dismissing Young's claim for $15,000 damages, and setting it at $1000. Here, then, was a victory for the callow 29-year-old, later to be appointed as attorney-general: "Mr Parker pressed upon me a strong submission that no satisfactory proof had been given as to what revenue Mount Cook had lost." The judge also ordered a permanent injunction against the poster. The sports shop had printed 1700 copies. Have any survived to this day? Strange to think of someone hoarding an archival copy of an odious little document depicting a sexual gesture adjacent to the perineum. Perhaps one or two remain in the possession of Hoffman, the man from Rakaia with a guiding hand.