The defamation case arose from incidents during pick-up at the school gate. Photo / 123rf
A school principal felt that a girl’s father was a loving and “exemplary” parent, but that the mother was denying him his custody rights.
She said as much in an email to a lawyer appointed to look after the girl’s interests in a Family Court dispute, after the father was prevented from picking up the girl at the school gate.
The mother then sued the principal for defamation.
The defamation case has now been before the courts for two years and has led to thousands of dollars in costs.
It is also headed towards the Court of Appeal despite a judge’s view that it is “meritless litigation”.
High Court Justice Dale La Hood says the defamation action “should be regarded as an abuse of process and a collateral attack on the Family Court proceedings”.
The names of the parents and the school principal have been anonymised in Justice La Hood’s judgments about the case, to protect the identity of the child.
The name of the school is also not mentioned.
Justice La Hood has given the fictitious name Sarah Smith to the mother. He called the principal Jennifer Black.
Smith claimed the principal defamed her by making “false statements” about her to the police and a lawyer appointed to represent her daughter in the Family Court.
Her case failed at the first hurdle, in the District Court, where it was described as “untenable and an abuse of process”.
But the mother persisted, appealing against the District Court decision to the High Court, which also decided against her and imposed more than $25,000 of costs.
The mother has now applied to take appeals against the High Court decision and the costs order to the Court of Appeal.
The dispute began when the girl’s father came to the school on February 24, 2022, to collect his daughter for the weekend in line with a parenting order.
While the father waited at the gate, the principal and two school staff saw the child running away from the school with a woman they did not know.
The principal called the police saying, “A woman dragged [the child] and ran away from the school.”
The girl was found later at her mother’s home. Smith alleged that the phone call to police had defamed her.
She later claimed that emails the principal sent to the girl’s lawyer were also defamatory.
One of the emails, on February 28, 2022, recounted the incident reported to police four days earlier.
On May 20, 2022, the lawyer asked the principal to make observations about the girl’s father and his dealings with the school.
The principal emailed back that the father had been an “exemplary parent to work with”.
“He is approachable, engaged and clearly shows a deep love and concern for his daughter,” the principal said.
“We see him to be a good and supportive parent who always puts his daughter’s welfare first.”
She also reported the girl had been hesitant to leave with her father on days when he had care of her but that “she always comes back happy” and “Dad’s patience and support is admirable”.
On September 15, 2022, Black emailed the lawyer again, saying that there had been a “resurgence of incidents” with the mother.
She said Smith had made allegations against other girls in the class, and her daughter had again gone missing after school.
“I am of the strong opinion [the child] was told to go home without meeting her dad,” the principal wrote.
“It is very sad that [the father] continues to be denied his parental rights by the mum.”
Smith claimed that the emails defamed her, but the District Court struck out her proceedings.
The District Court judge said the emails referred to an “unknown woman” taking the child and comments about the father could not be defamatory about the mother.
The defamation proceedings were regarded as “both vexatious and an abuse of process”.
Justice La Hood in the High Court said that some of the comments were capable of lowering Smith’s reputation, but that Black was protected by defences of absolute or qualified privilege.
These defences protect someone making a statement from liability in a defamation case.
“The [defamation] proceedings are abusive because, as a matter of absolute privilege, Ms Black should not be subject to harassment through defamation proceedings for providing evidence to the Family Court [through the lawyer] about the care arrangements for a child at her school,” Justice La Hood said.
He said that there was no basis to infer that Black was motivated by ill will or sought to obtain an improper advantage in her comments about Smith.
“Accordingly, I consider the defence of qualified privilege is unanswerable.”
Justice La Hood dismissed Smith’s appeal but court documents reveal that the mother still intends to take the matter further, to the Court of Appeal.
Black has told the High Court she continues to incur costs through Smith’s “frivolous litigation”.
In relation to Smith’s concern about her costs, Black suggested that Smith should consider withdrawing the proceedings instead of filing more.
Smith, for her part, argues that her application for leave for another appeal has “substantial merit” as her defamation claim should not have been struck out.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.