Tini v Cook Islands News (2008) Ltd [2011] CKHC 77; Plaint 09.2010 (6 April 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT NO. 9/10

BETWEEN

JOHN TINI
Plaintiff

AND

COOK ISLANDS NEWS (2008) LTD
First Defendant

AND

JOHN WOODS
Second Defendant

AND

HELEN GREIG
Third Defendant

PLAINT NO. 15/10

BETWEEN

JOHN TINI
Plaintiff

AND

COOK ISLANDS NEWS (2008) LTD
First Defendant

AND

JOHN WOODS
Second Defendant

Hearing: 6 April 2011

Counsel: Ms L Rokoika for Plaintiff
Mr D McLellan and Mr C Little for Defendants

Judgment:

JUDGMENT OF HUGH WILLIAMS J

Solicitors:
T Browne, Browne Harvey & Associates, Avarua, Rarotonga
C Little, Little & Matysik PC, Maraerenga, Avarua, Rarotonga

Introductory

[1] These two proceedings each allege libel of the plaintiff, Mr Tini, in took Islands News"News", a newspaper published in the Cook Islands of which the second defendant, Mr Woods, is managing editd the third defendant in Plaint 9/2010, Helen Greig, is a journalist.[1]

[2] This Judgmeals with the following three interlocutory applications:

1. An application by Mr Tini in Plaint 9 for an ordn order for production of documents in the joint affidavit of documents of the defendants for which privilege has been claimed, and discovery of all communications between the defen and any government departmpartment or agency "before and after the publications of alleged defamatory material that are relevant to this proceeding". The defendants object on the grounds that the privilege claimed has properly been invoked and, in particular, that newspaper proprietors and journalists cannot be compelled in defamation proceedings to produce documents which disclose the source or content of confidential information as to their sources. As far as counsel were aware this is the first occasion on which that branch of - qualified privilege - commonly known as the "newspaper defence" has been raised in the Cook Islands.
   
2. An application by the defendants, intituled in both Plaints, for further discovery by the plaintiff on the grounds that Mr Tini's affidavitocuments wats was incomplete, opposed by the plaintiff on the ground that the assertion is not proved.
   

100. An application bion by the defendants in Plaint 9/2010 to strike out parts of the statement of claim on the grounds that the words pleaded are not capable of bearing the meanings asserted, and the plaintiff's separate claim for aggravated damages is not maintainable in defamation proceedings, opposed on the basis that the words are capable of bearing the pleaded meanings and the claim for aggravated damages is not a separate cause of action.
     

Pleadings
Plaint 9/2010

[3] Mr Tinied Plaint 9/2010 o010 on 4 that year, amended it on 24on 24 Octoand amended it again onin on 5 A#160;2011. Further possiblssible amendments were forecast at the hearing on 0;Aprr>
[5] In his latest claim, Mr Tini pleads that he is the suspended ChiecutificerO") o Cook Islands Investment Corp Corporatioration ("CIIC"), and that on 6 MarchMarch&#160 2010 Mr Wcausek Iook Islanws to pubo publish in its "Smoke Signal" column, the following sing statement concerning him:

Top Resort Jobs >A sier writes: "Here is the short list of t of the pehe people ople to run the government owned Sheraton/Hilton:

Personnel Manager: John Tini, for his intimate knowledge and experience in nepotism;

[6] Mr Tinids that in their naturaatural and ordinary meaning those words mean, and were understood to mean, that he had:

... procured preferential treatment for his own personal gain had thereby abused and woud would continue to abuse the office he holds, and therefore is wanting in honesty and integrity, and is unfit to hold the said office or any office at all.

And further, that the words also mean that he:

... corruptly favors [sic] his relatives and friends who worked with him at the CIIC since he became its Chief Executive Officer, and at all his other workplaces before joining CIIC.

[7] Mr Tinids those words were cale calculated to disparage him as CEO of CIIC, in imputing " nepotism in the future in any work place he is employed in", thus injuring his character, credit and reputati CEO of CIIC and jeopardisirdising his future employment prospects.

[8] The latest claim says he wrote to the defendants on 11 March 2010 seeking raceton and apnd apology. "Cook Islands News" and Mr Woods exacerbate injury to y to his feelings and his reputation by their aggravating conduct, conduct of which is particularised as:

1. Ms Greig reig going his properroperty on 14 March&#010 in an action whin which amounted to trespass, and photographing Mr Tini's home and parked ves;cles;
   
2. Ms Greiging the "Coo "Cook Islk Islands News" to publish a further article about Mr Tini on 16h 201cluding a de a defamatormatory statement:
   

... in the meantime the audit office is still trying to ini tpond to its findings and his management performance which include allegations ions of frof fraud, nepotism and deceit during his three years as head of CIIC.

That statement being headlined "Audit looks into claimed Chinese car 'kickbacks'", with a cartoon appearing also in the 16 March 2010 issutraying Mr Ti60;Tini in a car with a tuotation " YEAH! THEY MIGHT EVEN GIVE YOU A FREE CAR".

1. Mr Tini p that "Cook Islands Nnds News" is available to a much larger audience than only the Cook Islands as it is online.
   

[9] In a pleading sg exemplary damages Mr Tini repehe allegations suns suns summarised above and pleads that the "defendant's conduct was deliberate" – an allegation which he particularises – reckless, unverified, intended to damage his reputation and made in a manner which was intended to influence the public and the Director of Audit. He pleads the 16 Mar60;2010 publication was was deliberate, despite an ongoing investigation by the Director of Audit and made in order to influence its outcome by "printing leakeormation from the Director of Audit concerning the Suzuki Vuki Vitara in the plaintiff's possession".

[10] He then pleads that the defendants conspired and facilitated the "unlawful conduct of the Director of Audit to divulge confidential information obtained in the course of the investigation", which is particularised as being in breach of s 5(5) of the Public Expenditure Review Committee and Audit Act 1995/96, an alleged breach which is further particularised.

[11] Mr Tini's laclaim conc with anth an allegation that the defendants lack remorse as they have failed to d to publish any correction or apology, any havtinued to maintaiintain the accuracy of the articles despite there being "no finding ding of guilt by a Court of law" [sic] against him.

[12] Mr Tini seeks damages agaiCook"Cook Islands News" and Mr Wonly, in the sums of $200,$200,000 (each of general and aggravated damages separately) and exemplary damages of $100,000 plus costs and interest.

To thent discernible fble from their statement of defence filed iled on 30 August 2010, it appeaes thences raes raised are that the words complained of do not have, nor are capable of having or being understood to have the meanings alleged and qualified prge coing the publication on 16 March&2010 of10 of an a an a an article pleaded to be of matters of legitimate public interest concerning CIIC and Audit Office investigations of CIIC and the plaintiff. Justification, fair comment, lack of causation, and what is pleaded as unparticularised mitigation, are also raised.

Plaint 15/2010

[14] This claim was commenced on 9 June&#160 and amended on 8&on 8 July thar. A statement of d of defence was filed on 23 September 20br>
[15] The amendedended claim asserts that on 34&#16 Mr Woods caused Cook Islands News to publish defh defamatory statements of Mr Tini:

(3 May 2010)

".len Gwaig ics vics victimistimised for daring to publish the truth about a government agency chief executive who took a back hander fhe Ch construction company in the form of a motor vehicle."

(4 May&#1ay 2060;2010) <. Helen waen was arrested, interrogated (for three hours) and charged with trespassing after she took pictures to prove a vehicle paid for by a Chinese contion ny had fallen into the hands of a government agen agency emcy employee."

[16] In the natural and ordinary meaning Mr Tini pleads those words were meant and were understood to mean that he had:

... procured preferential treatment and/or received a bribe in orm of a motor vehicle for his own personal advantage, and had thereby abused and would cond continue to abuse the office he holds, and is wanting in honesty and integrity, and is unfit to hold office. Further, that the plaintiff is engaged in corrupt and dishonest dealing to exploit his official position for his own benefit.

[17] Mr Tinn pleads that because ofse of the report of 16 March 2010 rng to the Audit OfficOffice's investigation of Mr Tini concerning ther vehiclehicle, readers of the "Cook Islands Newsld idy himhe CEO CEO of a government agency and thus being the person referred to in the 3the 3 and and 4 May 2010 articles.

[e pleads the words were cale calculated to disparage him in his office as CEO and the statements were designed to ruin his reputationuse of his letter of 11 March&#110 and their failurailure to withdraw and apologise fose for their contents.

[19] He also pleads that Cook Islands News and Mr Woods have maliciously red rted on the issue of the Audit investigation in relation to the Chinese construction company owned motor vehicle as if it was a conclusive fact that he had "received a bribe in the form of or vehicle".

[20] [20] In Plaint 15/2010 he seeks general damages of $150,000, aggravated damages of $250,000, solicitor/client costs and interest.

[21] In their defence filed on 23 September 2010, thendafes admit the wthe words quoted above were capable of being understood to mean Mr Tini "procured pential trea treatment in the form of a motor vehicle fs ownonal advantage and had thereby abused the office fice he hehe held", but deny the cited passages would have led to readers identifyin#160;Tini as the person refn referred to. They also plead qualified privilege in reporting matters of legitimate public interest – particulars of which are given – justification, fair comment, lack of causation and what is again pleaded as unparticularised mitigation.

Application for production of privileged documents
(1) Introductory

[22] Intituled in both Plaints, Mr Tini's aation for productiouction of documents for which privilege is claimed accepted that privilege was properly claimed for documents passing between the defendants heir solicitors and counsel, and counsel to third parties, ies, but sought production, to which he said he was entitled in law, of:

All communications between the defendants and any government official or statutory authority before or after the publications of the libellous material and which is relevant to this proceeding.

[23] The pleaded position is a little complicated in that Mr Woods and Ms&#reig swore a re a joint affidavit of documents on 11 October&#160 claiming solicsolicitor/client or litigation privilege foe 94 documents, but then filed an amended joint affidavit sworn on 20 December&#1er 2010 claiming prie for 89&# 89&#16uments and adding to the grhe grounds of objection to production that some of the documents "comprise communications which are subject to fidentween the maker and receiver of the document in q in questiuestion".

[24] In the meantime, on 14 December 2010, M0;Tini filed his apps application for production of the privileged documents and its supporting affidavit,[3] swornsworn on 1 February 2011, saying he had exd Mr&d Mr Tini to sue Cook Islanws imws immediately he received the plaintiff's letter of 11 Mar60;2010, andainin differifferences between the defendants' two joint affidavits of documents. The affidaffidavit avit dealt with the claims to solicitor/client itigation privilege, enumerating the documents said to be p be privileged under that rubric, explaining certain other documents but asserted that documents 78, 79, 82, 83 and 85 in Plaint 9/2010, and documents 60, 65, 66 and 69 in Plaint 15/2010 were marked "confidential source" and came from:

... a source who provided information to the Newspaper on the explicit understanding that all correspondence would be confidential and on the basis that neither the identity, the source of the information or the content of the correspondence would be disclosed.

Mr Woods said the plays an:

... important role in keeping a check on the State and other organisations or individuals whose actions affect the community, and itessential to the fulfilment of that role that people with iith important information should not be discouraged from coming forward for fear of disclosure of their identity.

(2) Submissions

[25] By the time of the hearing, the situation had clarified, at least to the point that Ms Rokoika, for Mr Tini, accepted laims for soor solicitor/client and litigation privilege and was seeking only production of the documents in Plaint 9/2010 claim be privileged eged from production by the newspaper rule. She listed the documents which included all those listed by Mr Woods,added numbers 74, 86,, 86, 88 and 89.[4]

[26] Ms Rokoikained her submissionssions to urging the Court to inspect the documents for which privilege is claimed under r 143 of the Co Civicedure anre and, if, on inspection, the claim for privilege were not made out, then toen to order production of the documents un 145. Relying on the 1997 edition of the Supreme Court Practice[5] and Alfred Crompton Amusement Machines Limited v. Commissioners of Customs and Excise (No. 2),[6] she noted the learned authors said that a litigant is not entitled to claim privilege for documents and information merely because they are supplied in confidence by a third party.

[27] Accepting that the Audit Office report, once tabled in Parliament, was privileged, she noted that the Audit investigation into the matters in issue in this proceeding was still in progress when the allegedly defamatory matter was published.

[28] Ms Rokoicepted, however, that that some of the material sought may be discovered by the Audit Office pursuant to an order made against that party on 14 January 201name="fnB7" href="#fn7

[29] On 5&#165 April 20&#160s fids filed an affi affidavit[8] exhibiting two rs fro Audit Office which had been provided to the defe defendantndants' solicitors on 25 March 2011. Thoserts were said toid to have been tabled in Parliament.

[30] Mr McLellan, leading counsel for the defendants, first focused on the specific documen whicduction was sought saying that privilege had now now been been waived in respect of document number 88, litigation privilege appliedumbers 74, 78, 79, 83, 85, 85, 86 and 89, and documents 78, 79, 82, 83 and 85 were within the "newspaper rule".

[31] He submitted that it was well settled that litigation privilege extended to documents created for the dominant purpose of conducting or advising regarding litigation as soon as it was reasonably anticipated.[9]

[32] He stressed Mr Woods' view that asonably ably anticipated proceedings being taken against "Cook Islands News" by Mr Tini as soonhe plaintiff's ff's letter of 14 March 2010 was received.
<33> [33] It would appear, therefore, and taking this fhe joint affidavit of 11 October 2010t numbers 78 and 85 are5 are documents in rein respect of which litigation privilege hen pry claimed.


[3r> [34] Document 74 appears to be an internal email which may or may not be subject to litigation privilege.

[35] Because the parties other than Mr Woods or Ms Gare unknown, litigation pron privilege may or may not have been properly claimed in respect of documents 79, 83, 86 and 89.

[36] Subject to what later appears in this Judgment, copiesll thuments in respectspect of w of which litigation may be dubiously claimed should be provided to the Court in a sealed envelope marked "To be opened by Hugh Williams J only", and the applicability of privilege in relation to those documents can then be properly determined.

[37] It is next convenient to deal at this point with the claims for privilege in Plaint 15/2010.
<38] In the johe joint affidavit of documents sworn on 11 October;2010, documents 60 s 60 and 65 appear to be documents in rt of which litigation privilege is properly claimed.

[39] For the same reason as a as applied in Plaint 9/2010, the clao prie in rein respect of d of documents 66 and 69 may be doubtful and, again subject to later passages in this Judgment, the defendahould lodge copies of those documents with the Registrar, in a sealed envelope marked as pras previously noted for the determination of whether privilege is properly claimed in respect of those documents.

[40] Concerning the "newspaper rule", Ms Ra's oral submissions firstfirst noted that the law of defamation in the Cook Islands remains the common law, the topic not havinn touched upon by statutory intervention as in many other countries[10]. Accordingly, she submitted, there was no special immunity at law with respect to journalistic disclosure of sources. She relied on Broadcasting Corporation of NZ v. Alex Harvey Industries Ltd.[11]

[41] But, there the learned Judge, commenting on[12] a "longstanding rule or practice, even a principle of law, since it has always been observed, that the proprietors of newspapers will not be compelled to discover the source of information on an alleged libel", went on to observe:[13]

The rule or principle that the defendant in an action for libel published in a newspaper would not be forced to disclose his source of information was described as long ago as 1888 as a "tolerably settled practice never to order production" of documents in such cases: per Lindley LJ in Hennessy v Wright (No 2) 24 QBD 445, 449. A few years later Lord Esher MR spoke of the practice as one that had been followed "for a long series of years" prior to 1888: Hope v Brash [1897] UKLawRpKQB 107; [1897] 2 QB 188, 191. And it has been applied consistently ever since then, both to attempts to obtain disclosure by the use of interrogatories and by the production of documents ...

I would remark, however, that if the immunity is not founded upon discretion (and in the absence of privilege) it certainly becomes rather difficult to detect the basis upon which it was thought originally that the rule could operate. Perhaps it is enough to accept that it has been "carved out of the general field of relevance" as Scott LJ suggested in South Suburban Co-operative Society v Orum [1937] 2 KB 690, 703; [1937] 3 All ER 133, 137. In any event there can be no doubt that the principle has been accepted by the Courts for more than a century and despite occasional reference to exceptional circumstances as a possible reason for departing from it there appears to be no reported case where that has happened. Furthermore I am satisfied that it is well settled that the principle as it has been applied is one that relates to discovery generally: see for example Hope v Brash; and in this country Isbey v New Zealand Broadcasting Corporation (No 2) [1975] 2 NZLR 237 and Brill v Television Service One [1976] 1 NZLR 683. In the Isbey case when considering a similar issue Cooke J remarked that "in principle no distinction can be made for the purpose between interrogatories and the production of discovered documents for inspection". I agree. In my opinion Holland J was quite right in the present case when he held that the newspaper rule does indeed extend to the inspection of documents.

[42] In the same case Richardson J described the rule's rateonale in the following passages:[14]

The most authoritative early English cases on the rule are the decisif the Court of Appeal in Hennessy v Wright (No 2) (1i> (1888) (reported as a note to Parnell v Walter [1890] UKLawRpKQB 3; (1890) 24 QBD 441 at 445) and Hope v Brash [1897] UKLawRpKQB 107; [1897] 2 QB 188. In Hennessy v Wright one of the proposed interrogatories was directed to the source of the information in the statement in The Times complained of by the plaintiff. The interrogatory was disallowed. Lord Esher MR, in whose judgment Lopes LJ concurred, said (p 448):

"The only way in which it can be suggested that the production of the document . . . or the disclosure of the names of the persons who gave the information, could be of any use to the plaintiff would be for the purpose of enabling him to get at the persons named, or to look at the contents of a document so disclosed, with the view of finding out evidence that the statements of fact were not accurate, or that the motive of the writer was malicious. In other words, the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present. If that is the effect of the interrogatories, it seems to me that they come within the description of 'fishing' interrogatories, and on that ground cannot be allowed."

...

There are four other aspects of the rule which should be noted at this point. First, it applies only at the pre-trial stage and not to disclosure at the trial itself (see the discussion in Attorney-General v Clough [1963] 1 QB 773; [1963] 1 All ER 420, Attorney-General v Mulholland, and McGuinness v Attorney-General of Victoria).

...

Third, it is well settled that, where the defendant in defamation proceedings pleads fair comment or privilege and the plaintiff raises express malice in answer to the plea, the identity of the informant is relevant and material to the plaintiff's case (see, for example, Plymouth Mutual Co-operative and Industrial Society Ltd v Traders' Publishing Association Ltd [1906] UKLawRpKQB 13; [1906] 1 KB 403, 412, 413, per Vaughan Williams LJ, Lyle-Samuel v Odhams Ltd [1920] 1 KB 135, 143, per Scrutton LJ, and South Suburban Co-operative Society v Orum [1937] 2 KB 690, 700-701; [1937] 3 All ER 133, 135-136, per Scott LJ). In the last mentioned case Scott LJ at p 703; 137 referred to the special newspaper immunity as an exception "carved out of the general field of relevance" and, in McGuinness v Attorney-General of Victoria [1940] HCA 6; (1940) 63 CLR 73, 104 Dixon J adopted the observation of Professor Wigmore in his Treatise on Evidence that the immunity depends not on a plea of privilege but on the limitations of discovery (also adopted by Lord Parker in Attorney-General v Clough [1963] 1 QB 773, 792; [1963] 1 All ER 420, 427). On this reasoning the material in the newspaper's possession relating to its sources of information falls outside the discovery provisions of R 163 of the Code. Whether that is so or whether the newspaper rule is a special case within the discovery rule is not material, at least for present purposes: the rule has been settled for one hundred years and it is much too late to question its existence.

Fourth, the newspaper rule is firmly grounded in public policy considerations.

...

The reasons for the rule are not found simply in the needs of particular litigants. The broader purpose is to encourage the flow of information to the public and thereby facilitate free trade in ideas. That flow is dependent on the reporting of matters of public interest to the news media. The rule promotes this end by holding out to news gatherers and contributors of information to the news media the assurance that, unless and until a matter goes to trial and in the setting of the trial itself, identification of the source of the news media's information will not ordinarily be compelled.

[43] Ms Roksubmitted that, were thee the newspaper rule to be admitted in the Cook Islands, it would be an exception to the common law which applies here and, she submitted, would be contrary to the fundal human rights and freedomeedoms enshrined in s 64(1), (b) and f the Constionstitution of the Cook Islands vouchsafing individual rights to equality before, and the protection of, the law and to freedom of speech and expression. She submitted a balancing hould be undertaken before fore the Court accepted the newspaper rule but, more broadly, it should not be allowed because it would outweigh the Constitutional protections for the plaintiff.

[44] Mr McLellan also trad the hist history of the newspaper rule with reference to Broadcasting Corporation of NZ v. Alex Harvey Industries Ltd and the cases discussed in it, busing his submissions with reference to the New Zealand Evid Evidence Act 2006, s 68(2)[15] and placed particular reliance on Ashworth Hospital Authority v. MGN Ltd,[16]. That cas arguas relevant to Ms Rokoika's argubased osed oned on s&#n s 64 of onstitution as where here the House of Lords discussed Article 1the Convention for the Proe Protection of Human Rights and Fundamental Freedoms. The leading speech of Lord Woolf CJ observ name17" href="#fn17">n17">[17]

The approach of the European Court of Huof Human Rights as to the role of article 10 in achieving this was clearly set out by the court in Goodwin v United Kingdom ( [1996] ECHR 16; 22 EHRR 123, 143, pa3, para 39 in these terms:

"The court recalls that freedom of expression constitutes one of the esal foundations of a democratic society and that the safeguafeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with article 10 of the Convention unless it is justified by an overriding requirement in the public interest."

[45] Mr McL argued that the newspapwspaper rule should be accepted as part of the law of the Cook Islands as being a common law principle, and s 64 should be regarded as m rely one factor in the balg act exercise to be undertndertaken in deciding whether to inspect the documents and order production under rr 143 and 145.
[46]egardsgards inspection, whilst acknowledging the New ZNew Zealand Court of Appeal's observations in Guardian Royal Exchange Ance of NZ Ltd v. Stuart and General Accident Fire & Life Assurance Corporation Lion Ltd v. Elite Apparel Ltd, he relied on Foley's Transport Ltd v. Weddel New Zealand Ltd (In Receivership and Liquidation),[18] that, where affidavits of documents appear to be in order and claims to privilege orthodox – something which applied here – a Court should be slow to inspect contested documents.

[47] While that is accepted, in the Cook Islands there is an express power to inspect and, notwithstanding that inspection can place the Judge in a position akin to a witness, it nonetheless remains a useful tool to resolve disputed discovery questions speedily and cheaply.

(3) Discussion and decision

[48] In the Court's view, this application can be resolved in a relatively straightforward fashion.

[49] The law of defamation in the Cook Islands is principally the common law.[19] The newspaper rule, being Judge made, is part of the common law and has been part of the common law for well over a century. As the authorities cited demonstrate, it is a rule which is limited in extent and time. It is a rule which balances the undoubted public interest in persons holding information coming forward (when permitted by law so to do) – and coming forward anonymously - to divulge information which is in the public interest, and it fosters freedom of expression and the public's right to read reports on matters of legitimate public interest.

[50] The matters at issue in these proceedings are undoubtedly a matter of legitimate public interest in the Cook Islands. The defendants were accordingly able to publish the articles in furtherance of that interest.

[51] Section 64 of the Constitution of the Cook Islands is a factor to be taken into account in the balancing exercise required to be undertaken in determining applications such as these – but it c be read as a definitive bar to a finding that the newspapespaper rule applies to defamation proceedings in the Cook Islands. Indeed, the defendants argue that a finding that the newspaper rule forms part of the law of the Cook Islands would accord with the balancing exercise plainly to be undertaken pursuant to s 64(2>
[52] The rule hale has been based recently on publications on matters of public concern giving rise to the qualified privilege of which the newspaper rule forms part.[20] So, as cases ases such as Reynolds v. Times Newspapers Ltd and Ashworth Hospital Authority v. MGN Ltd demonstrate, the newspaper rule remains alive and well as a variety of qualified privilege at common law.

[53] Having regard to all of that, the Court holds that the newspaper rule, as defined in the authorities, and the qualified privilege attached to it is part of the law of the Cook Islands. That being the case, and there having been no other attack on the correctness of the joint affidavits of documents sworn on 11 October 2there bell be orders that that the documents in respect of which the newspaper rule qualified privilege is claimed, at this stage of the case, are not open to production or inspection.
Foley's Transport the Court rescinds the order for the lodging of the documents with the Court. The 'newspaper rule' trumps inspection to see whether litigation privilege has been properly claimed.

Defendants' application for further discovery
(1) Introductory

[55] On 14 October 2010, Mr Tini sworeffi avit of documdocuments intituled in Plaint 15/2010 listing 19 docs, ins, including the pleadings, which he had in his possession, none which he ha in hssessut had since parted with, and none in r in respecespect of t of which he claimed privilege. However, on 1 April 2011 he filed a furthfidaviidavit of documents intituled in both Plaints 9/2010 and 15/2010,[21] in which he liin anually full narrative form some 47 documents he said he had in his possession. Aga. Again, tin, there was no listing of documents that had been in his possession but with which he had parted with possession and privilege was claimed for none.

[56] On 22 March 2011, the defen[22] sought an order for further discovery were over and above the documents listed in the 14 Or 2010 list. They rely related to documents concerning Mr Tini'sension as CEO of CIIC CIIC and any disciplinary issues; documents relating to the investigations pleaded in the statement of defence filed in Plaint 9; docs rel to howo how Mr&w Mr Tini obtainssession of n of n of the vehicle referred to in the statement of defence in that Plaint; dnts relating to Mr Tini's possession se of thef the vehicle including financial reporteporting or claims with respect to it; communications with the Chinese company pleaded to have been the source of the vehicle; and documents relating to communications between Mr Tini and the Cook Islands Police relating to the investigations.

[57] Mr Woods fileaffidavit in supp support of the defendants' application,[23] in which he said Mr Tini must hav documents in s in the cates sought, together with a second affidavit commenting on Mron Mr Tinicond affidavit of documdocuments, that sworn on 1 Apri0;2011, susing the addi additional documents Mr Tini hini had discovered ahd exhibiting the two Audit Office reports sent to thendantlicitors on 25&#125 March 2011.

b>(2) Submissions>

[58] In his submissions Mr McLellan argued ocuments sots sought were almost certain to have been in Mr Tinissession either now or w or previously, and were relevant to the claims, supporting that art with reference to the Audit Office reports.

[59] [59] Mr T second affidavit was said said to be deficient in setting out material favourable to the plaintiff's case, something not permitted in discovery.[24]

Ms Rokoika said Mr&#16r Tini nevw the Audit reportsports until about December 2010 when he "stumupon it o it on the Internet". She disputed that matters of Mr T employment contract and sand suspension were relevant to the defamation claims.

(3) Discussion and decision

[61] It is axiomatic that a party to litigation must discover all documents in his or her possession which are relevant to the matters at issue in the proceeding, plus all relevant documents that have been in his or her possession but which have now been parted with.

[62] The pleadings have already been summarised in Plaint 9/2010. In Plaint 9/2010 the issues raised by the second amended statement of claim filed on 5 April 20e tha#160 Tini as thas the suspended CEO of CIIC was defamed in the 6 March 2010 Issue of Cook Islands'News' article concerning the "Government oSherailtone alleged defamation was that Mr T160;Tini had abused the ofhe office he held and woul would corruptly favour his relatives and ds wo with him at CIIC CIIC. The. The publication was "calculated to disparage the plaintiff in his ... office as" CEO of CIIC. Aggravating conduct is pleaded in relation to the 16 March 2010 issuehe "Cook Islands ands News" speaking of the Audit Office investigation of the plaintiff during his years as CEO of CIIC, particularly his possession of a car said to have come via China Civil eerinstruction Corporarporation.tion. Exemplary damages were said to be justified by disclosure of the circumstances of the Audit investigations. The defendants' pleading elaborates on those issues.

[63] In Plaint 15/2010 Mr Tini again pleads that he was the CEO of CIIC and was defamed in that capacity by what can be described as events subsequent to the matters at issue in Pla/2010, which readers of Cook Islands News on 3 and 4 May 20uld hnderstderstoerstood tood to be referring to him.

[64] The statement of defence in Plaint 15/2010 is similar to that in Plaint 9/2010.

[65] There is no need for additionalysiond that and the the earliearlier summaries of the pleadings. The Court declines to analyse the terms of the exhibited Audit Office reports since they will undoubtedly be an issue for decision at trial.

[66] The abiding question in matters of discovery is much the same as the issue of admissibility at trial: are the matters raised relevant to the issues in the case? A useful indication of whether documents should be regarded as relevant to issues raised in the pleadings is whether a question asked in cross-examination concerning documents would be held inadmissible as irrelevant.

[67] In these cases, the plaintiff has pleaded that he is or was the CEO of CIIC and has pleaded he was defamed by articles in the Cook Islands News concerning his tenure of that post, the advantages he is said to have received from it, his suspension from that post, and matters consequential on the Cook Islands News publication relating to him and the Audit Office investigation in its issue of 6 March 2010 an issues pleaded subs subsequent to that.

[68] Seen in that light, it is clear Mr Tini could rly be asked in d in cexamin questions concerning all documents in his possession or former possession conceconcerningrning his employment contract, his suspensnd what he received as a result of his being CEO of CIIC inIC including the benefits said to have accrued to him from that employment.

[69] His affidavits are clearly deficient in that regard and require to be rectified.

[70] Similarly, he pleads that the defamatory material concerning his receiving a "bribe in the form of a motor vehicle was a personal advantage". Having pleaded that issue, he is plainly obliged to discover all documents in his present or former possession which relate to the circumstances in which he received that vehicle and his permitted use of it, including communications with CCECC relating to his obtaining possession of the vehicle and usage.

[71] However, there does not appear to be sufficient relevance in any communications passing between Mr Tini and the Police relati g to possible allegations of fraud so the application for further discovery is dismissed in that regard.

[72] As to the omnibus application for "communications with any person not ied ... above relating to thto the subject matter of the proceedings", to the extent Mr Tini has d documents other ther than those already listed and those dealt with in the earlier part of this Judgment which are relevant to the case, they are documents whught to be discovered. If they are not relevant to issues pues pleaded, then such is not the case.

[73] Mr Tini is to h1 days from them the date of delivery of this Judgement to file and serve an amended list of documents in the common form in eacint which lists all documents which are relevant to the issues raised in the pleadings and and which he has not previously discovered.

[74] As a postscript, it must be observed that applications such as this are determined on the form of the pleadings at the time the applications are argued. But issues which seem relevant before a trial often lose that relevance as the hearing proceeds. The reverse is also the case. But neither of those observations protects the obligation of proper discovery of all documents present or past held which are relevant to the claims and defences raised.

Defendants' application to strike out in Plaint 9/2010
(1) Striking Out Principles

[75] The defendants' application to strike out parts of the statement of claim filed in Plaint 9/2010 was ded to the meanimeanings of the publication sued on, the prayer for aggravated damages and the claim for exemplary damages.

[76] Because the application was filed on 8 October 201was nacessarily directedected to the amended statement of claim filed on 28 September 2010 not t sthend amended sded statement of claim filed on 5&#16il, t Mr McLellan made oral submissions concerning theg the late latest version of the claim.

[77] The principles upon which str out cations are deciddecided ared are now well settled and have been recounted in a large number of decisions. For present purposes it is sufficient to note the observations of the New Zealand Court of Appeal in Attorney-General v. Prince & Gardner,[25] where the Judgment of three of the five members of the Court said:

A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289at pp 294 – 295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pp 316 – 317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZCA 37; [1983] NZLR 37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).

[78] The only omission from that codification of striking-out principles is that it is well settled that if a proceeding can be amended in a way which complies with the pleading rules, that opportunity will be given rather than striking out the claim.[26]

[79] The relevant rules are r 131h gives the Court power ower to strike out the "proceedings" when no reasonable cause of action is disclosed, and r 150 whicount Court's inherenherent jurisdiction if there is thought to be a difficulty in strikingiking out only part of a claim. Ms Ro did ress that point.
.

[80] Mr Tini filed an affidavit stiporting his nots notice of opposition. It recounted a lothe factual material on which his claim rests to the point where it read like the first draf draft of his brief of evidence.

It is well settled that bect because claims in the statement of claim are approached on the basis they are provable, on striking-out applications the Courts make no attempt to resolve disputed questions as to fact. Affidavits on anything more than wholly uncontentious matters are accordingly inadmissible.[27] Mr Tini'idavit was not taken iken into account in determining the striking-out application.

[82] The principles to be applied to striking-out applications in dtion cases such as the present are those listed in the deci decision of the New Zealand Court of Appeal in New Zealand Magazines Ltd v. Hadlee (No. 2).[28] The principles are:

(a) The test is objective: under the circumstances in which the words were published, what would the ordinary reasonable person understand by them?

(b) The reasonable person reading the publication is taken to be one of ordinary intelligence, general knowledge and experience of worldly affairs.

(c) The Court is not concerned with the literal meaning of the words or the meaning which might be extracted on close analysis by a lawyer or academic linguist. What matters is the meaning which the ordinary reasonable person would as a matter of impression carry away in his or her head after reading the publication.

(d) The meaning necessarily includes what the ordinary reasonable person would infer from the words used in the publication. The ordinary person has considerable capacity for reading between the lines.

(e) But the Court reject thosethose meanings which can only emerge as the product of some strained or forced interpretation or groundless speculation. It is not enough to say tha words might be understood in a defamatory sense by some pame particular person or other.

(f) The words complained st best be read in context. They must therefore be construed as a whole with appropriate regard to the mode of publication and snding circumstances in which they appeared. I add to this that a jury cannot be asked to prto proceed on the basis that different groups of readers may have read different parts of an article and taken different meanings from them: Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65; [1995] 2 All ER 313 (HL) at p 72; 318.

(2) Submissions

[83] Mr McLellan said the dants cons contend that paragraphs 6 and 7 of the amended statement of claim allege natural and ordinary meanings which, they say, are not capable of being taken from the published words. Parag#160;6 alleges natural and and ordinary meaning of the words pleaded in paragraph 5, with an adnal natural anal and ordinary meanings in paragraph 7. That, Mr&McLellan submitubmitted, was duplicated and confusing.

[84] On analysis, he submiparagraph 6 meant Mr Tini is wanting nesty asty asty and unfit to hold office either as the CEO of CIIC or any other office and, from paragraph 7, that he "corruptlyrs hiss his relatives and friends". The sting, Mr McLellan submi was the use use of the word 'nepotism' in the context of a light-hearted gossip column.

[85] He submitted the meanings pleaded in paragraph 6 wncapaf being taken from from the published words because thse the natural and ordinary meaning is that the plaintiff procured prefere treatment for his own personal gain. Personal gain is not, he submitted, an element of nepf nepotism and paragraph 6 should accgly be struck ouck out.

[86] As regards paragraph 7, heitted that just as neps nepotism does not include an elemenpersonal gain, it also is not a corrupt practice and nothing in the published words indicatdicated dishonesty or corruption, especialen seen in the context of a of a light-hearted gossip column.

[87] As far as the claim for aggravated damages was concerned, Mr McLellan submitted thate agle aggravating conduct can be an element augmenting general damages in a defamation claim, aggravated damages as such have no place in such proceedings, relying upon Attorney-General v. Niania:[29]

In recent times damages have come to be classified under the headings compensatory, aggravated and exemplary. The latter are sometimes called punitive as their object is not to compensate the plaintiff but to punish the defendant. The expression "aggravated'' damages is potentially misleading (see McGreigor on Damages (15th ed, 1988) at para 280 particularly footnote 1). It would in my view be better discarded. Aggravated damages are still compensatory. They are designed to reflect the manner in which or the motives with which the wrong has been committed. Circumstances of aggravation can justify an increase in compensatory damages just as circumstances of mitigation can justify a decreased award.

So-called aggravated damages apply particularly to torts which cause injury to feelings or reputation; for example defamation and, as in this case, false imprisonment. Rather than treating compensatory and aggravated damages as distinct categories of damage, it is in my view better to concentrate on the compensatory function of damages (other than exemplary). Where appropriate a greater sum is necessary to compensate the plaintiff for the injury suffered because of the way in which or the circumstances in which the tort was committed.

Relevant authorities in this field include Rookes v Barnard [1964] UKHL 1; [1964] AC 1129; Australian Consolidated Press Ltd v Uren [1967] 3 All ER 523 (PC) per Lord Morris of Borth-y-gest; and Fogg v McKnight [1968] NZLR 330 per McGreigor J. The point is also helpfully discussed in McGreigor at paras 1623-1624A. The learned author cites the false imprisonment case of Walter v Alltools Ltd (1944) 61 TLR 39, 40 (CA). There Lawrence LJ said:

". . . any evidence which tends to aggravate or mitigate the damage . . . which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man's liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.''

That citation, specifically directed as it is to the question of reputation, is relevant to the point I am discussing because it treats the circumstances sometimes said to justify aggravated damages as simply going to the appropriate level of compensatory damages in much the same way as matters of mitigation do, but of course in the other direction.

Also of assistance is the comment in Salmond and Heuston at p 594:

""Aggravated damages are given for conduct which shocks the plaintiff: exemplary damages for conduct which shocks the jury.''

...

Similarly, while an award of exemplary damages is conventionally assessed as a separate item, it has never been thought appropriate to award so-called aggravated damages as a discrete figure: hence the Judge's method of approach in the present case. As to pleadings, if relevant, it will usually be appropriate to set out the circumstances of aggravation but it is not, of course, appropriate to seek aggravated damages separately as is the case with exemplary damages. It is for these various reasons that I would favour henceforth the abolition of the suggestion that there is a distinct category of damages called aggravated damages. In truth there are only two types of damages: compensatory and exemplary.

[88] Concerning exemplary damages, Mr McLelubmitted the pleading ding disclosed no arguable basis for an award of exemplary damages, they being available only in "exceptional cases" and where a defendant"acted in flagrant disregard of the rights of the plaintiffntiff".[30] He submitted the particulars in paragraph 12 of the amentatement of c of claim concerning earlier defamation suits against "Cook Islands News", the allegation that that publication enjoys a worldwide audience so articles such that sued on generate a lot of publicity could not under any circumstances justify a claim for exemplary damages as none were capable of being seen as the publication acting in flagrant disregard of Mr Tini's rightd none were alle allegations of intentional or consciously reckless conduct.

[89] Ms Ro's formulation of the prie principles applying to striking-out applications was based on Mechanical Plastics Corp v. Holdfasttd,[31] suggesting that striking-out applications shou should only succeed where the facts relied on are different from those relied on in the rest of the claim. That may have been appropriate in the particular case but is not a principle of general application. She submitted Mr Tinffidavit was admissible ible as it did not contradict the claim.[32]

[90] Ms Rokoika sted it would be wrbe wrong to strike out the particular parhs under challenge before hore hearing evidence as to the meanings at trial, though she accepted that the pleading was of the naturalordinary meaning of the wore words.

[91] In response to the challenge to paragraph 6 ofamended statement of clof claim Ms Rokoika submitted the publication as a whole could mean that Mr Tini had procured preferential treatment for his owsonal gain. "Nepotism" included preferential treatment and and the publication suggested Mr Tini used histion to get thet the benefipreferentially employing friends and relatives who were unqe unqualified. That, she submitted, was commonly regarded as a form of coron. Indeed, in the Cook Islands, she submitted that nepotispotism is synonymous with corruption, especially in the context of the Sheraton/Hilton complex. She said the public in the Cook Islands know that project was not completed because of the corruption of the managers and politicians at the time. Therefore, "nepotism" had acquired a local meaning of corruption. If so, that should be pleaded specifically.

[92] Concerning the aggravated damages aspect of the claim, Ms Rokoika submitted the particulars showed the defendants acted with malice at the time of the publication and subsequently.[33]Pearson v. Lemaitre and Midland Metals Overseas Pte Ltd v. The Christchurch Press Co Ltd were both distinguishable, she preferred to rely on Falwasser v. Attorney-General,[34] where Stevens J apparently said that "aggravated damages may be available where an award of damages on a restorative or restitutionary basis is insufficient".

[93] For those reasons Ms Rokoika subd the claim and and prayer for aggravated damages should remain.

[94] As to exemplary damages, Ms Rokoika accepted thessity tity to prove the allegedly defamatory words were pued with knowledge they were were false or reckless as to truth or falsity.[35] Ms Rokoika submithis should fuld follow Enow English rather than New Zealand precedent on the topic given the differences in the respective laws of defamation.

(3) Discussion and decision

[95] Although counsel's submissions focused, naturally, on the first amended claim filed on 28 September 2010, by the date e hearingaring the second amended statement of claim had been filed and accordingly the Court's focus needs to be on the pleadings presently current.

[96] Paragraphs 6 and 7 in the second amended statement of claim were previously quoted.

[97] Counsel are correct that the sting of the publication in the "Cook Islands News" issue of 6 March 2010 is the use in the " Sike Signals" column of the word "nepotism", which is pleaded in its natural and ordinary meaning to mean Mr Tini had "procurederential tial treatment for his own personal gain"; that he had "thereby abused and would continue to abuse the office" of CEO of CIIC; that he "therefore is wanting in honesty and integrity"; and was unfit to hold both that or any other office.

[98] Mr McLellan was correct thatethe etymology of "nepotism" shows the word stems from Papal preference for nephews,[36] and means "showing special favour to nephews or other relatives in conng offices; unfair prefermeferment of nephews or relatives to other qualified persons".[37]

[99] Although Ms Rokoika sously attempted toed to justify the pleaded phrase "for his own personal gain" the definition of nepotism contains no such component and that phrase should be struck out.

[100] That order makes meaningless the phrase "had procured preferential treatment" so that should also be struck from paragraph 6 and, sinc abuse of officeffice, lack of honesty and integrity and unfitness to hold office are all pleaded as consequential on the phrase now struck out – "therebyherefore" - the balance of paragraph 6 also must be stbe struck out, though it must be acknowledged that since abuse of office and unfitness for office can be meanings of "nepotism", should Mr Tini replead his claim further and re-use those pleadings,e concepts may well survivervive any further striking-out application.

[101] As part of those general observations, the Couruld deal with Mr McLellan's submn that nepotnepotism iism is not corrupt and accordingly any meaning pleaded which suggests corruption must be struck out.

[102] The first observation is that Mr Tini does not plead iagraphgraph 6 of the latest claiPlaint aint 9/10 that the allegedly defamatory statement implied corruption on his behalf although he does so elsewhere: onthe mgs pleaded is that he lacked honesty and integritegrity.

[103] The definition of " of "honesty" invokes the definition of "honest", one meaning of which is "respectable" and another "worthy of honour, honourable, commendable; bringing honour, creditable" and "free from disgrace or reproach, respectable, decent, seemly befitting, becoming".[38] To say that a charge of nepotism means a person lacks honesty would therefore seem unlikely to be struck out. Even if not corrupt, nepotism may well be held to be not respectable, lacking creditableness, disgraceful or unbecoming.

[104] "Integrity" is defined as "unimpaired moral state, freedom from moral corruption, innocence, sinlessness; soundness of moral principle ... esp. in relation to truth and fair dealing, uprightness, honesty, sincerity".[39] A meaning of nepotism may accordingly be not sinless and lacking uprightness and honesty. Those pleaded meanings in any further amended claim may therefore also survive any further striking-out application.

[105] The phrase in paragraph 7 that Mr Tinoured his "relatives ands and friends he worked with at the CIIC" is a classic meaning of nepotism but the main point of Mr&#160llan'llenge to paragraph 7 is that thouritism was plas pleaded to be corrupt. Mr&. Mr #160;McLellan sted nepotismotism was not corrupt.

[106] Dictionary definitions of "corrupt" include "debased in character, infected with evil, depraved, perverted, evicked" and "perverted from uprightness and fidelity in the the discharge of duty ... venal".[40]

[107] The Court has no idea whether Mr Tini whilst aC employed reld relatives and friends, especially those who were less qualified than other applicants for positions but, since these allegations are to be regarded as provable in striking-out cations, nothing hangs on t on that. But, seen against the dictionary definitions, a meaning of nepotism involving corruption would seem to be an ordinary meaning which the tribunal trying the case could take from use of the term "nepotism". "Nepotism" might well be regarded as perversion from uprightness and fidelity in the discharge of duty and the other meanings.

[108] The application to strike out that portion of paragraph 7 of thond amended statementement of claim is accordingly dismissed.

[109] On this part of the case, therefore, the defendants' striking-out application is granted as far as it relates to th in which paragraph 6 60;6 of thond amended stad statement of claim is drafted, but dismissed as regards paragraph 7.

[As far as the the pleading of aggravating conduct is concerned and the claim for aggravated damages, it is necessary only to sat this Court accepts the comment quoted from Gatley and Niania that in defamation caon cases features of a case may aggravate the claim for general damages but aggravated damages is not a separate head.

[111] It follows that the pleading in clause 11 of the second amendedemeatement of claim, being aggravating of conduct said to aggravate the claim for general damages, may stand, but the separate prayer for relief by way of aggravated damages must be struck out.

[112] Exemplary damages would appear to be a topic where the common law and New Zealand law have diverged. As Mr McLesubmitted, in New ZealaZealand exemplary damages appear only to be claimable in cases involving intentional or consciously reckless conduct or for deliberate anrageous running of a consciously appreciated risk of causinausing injury to the plaintiff.[41] Gatley defines the circumstances in which exemplary damages can be claimable in England. The only category relevant to the present action is where there is a wilful commission of a tort with guilty knowledge and the chance of economic advantage so exemplary damages are necessary to punish the defendant.[42]

[113] Seen in that light, the conduct pleaded in paragraph 12(a)(d (ii) of the second cond amended statement of claim would appear possibly giving rise to a claim for exemplary damages, but the allegation as to the defendants' knowledge of the Director of Audit's investigation identified in paragraph 12(a)(iii) is of anlated maed matter which cannot give rise to a claim for exemplary damages.

[114] The factors pleaded in paragraphs 12(d)-(f) and (h) appear to contain a basis for a claim for exemplary damages even though some aspects are unparticularised.

[115] The basis for the exemplary damages claim pleaded in paragraph 12(g) raises difficultit leat least in part.

[116] The allegation is that the defendants conspired and facilitated unlawful conduct on the parthe Director of Audit to divulge confidential information, but there is no pleading of the the means by which that conspiracy and facilitation occurred apart from paragraph 12(g)(ii). It is iible to s to see how alleged breaches of obligation on the part of a third party can justify claims for exemplary damages against the defendants, except to the extent information gained by thed party was passed to them.them.

[117] On that basis the application to strike out the exemplary damages claim should be granted in relation to paragraphs 12(g)(i) and (iii), but paragraphs 12(g)(ii) and (iv) can remain even though further particularisation would appear to be required, particularly of the latter.

[118] That leaves paragraph 12(i) which is a dual allegation that the defendants have continued to maintain their articles were accurate, coupled with an assertion that there has been no finding of guilt by a Court of law against Mr Tini witpect to those allegallegations.

[119] It is not possible to see that latter allegation as properly a matter of pleading. Whatever it means, it is clearly a matter of evidence. But thading as to the maintenancenance of accuracy can remain while the balance is struck out.

Consolidation

[120] The parties – especially the defendants – should give serious consideration to consolidating these proceedings either under inherent jurisdiction or s 11he Defamation Act 1960;1993.
[121] PlainPlaint 9/2010 allegfamation arisinrising out of the publication of an article about Mr Tini on 6&#16ch&#110 and includes actions after that date includinguding a further article on 16 March 2rch 2010. The plaintiff's employment by and suson from his office of CEO of CIIC and the audit investigation into his conduct are at the hthe heart of that claim.

[122] P 15/2010 pleads defamation in articles published on 3 and 4and 4 May 2010 which refer back to the incident involving Ms Greig on160;March 2010;2010 which result the the publication of the 16 March 2010 article. Again, the piaintifessioCEO oC and his actions in that role will be l be imporimportant features of the evidence, as wils will the audit investigation.

[123] fore,st the two plaints are based on separate incidentidents thes they appear to involve publication – or, at least, evidence - of substantially the same defamatory matters so as possibly to justify an order under s 11 for ctions to be tried tied together with separate decisions being given.

[124] From a practical point of view, the proof in each action would appear to in many of the same witnesses, the same documents and the same same facts. It would not be possible to try Plaint 9/2010 without reference to the actions of the defendants after 6 March 201 woul beot be possible tble to try Plaint 15/2010 without reference to the events earlier than 3 or 4 May 2010, especially those of 14 March 2010, which will also beatufeature o evidin Plaint 9/2010.2010.


[125] If the two actions remain separate, there is, therefore, the prospect that the two will tach lothan g the athe actions simultaneously, many of the sahe same wime witnesses will have to give evidence twice, there will be duplication of documents and the possibility of inconsistent verdicts.

[126] From an even more practical point of view, the two Court files have become confused even though the claims have only been on foot for a modest period and, as passages in this Judgment show, both the parties and counsel regularly intitule their documents with both headings. There is repetitive cross-referencing.

[127] Recognising there may be tactical advantages seen by the parties in maintaining the separateness of the two files, the Court nonetheless commends the suggestion of consolidation to the parties for serious consideration.

Result

[128] There will be the Orders appearing in the text of this Judgment.

[129] Both sides having been both successful and unsuccessful to varying degrees, there will be no Orders for costs.

Hon Hugh Williams J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.

---

^[1] Though the defamation ed by the plaintiff was pubs published on separate occasions in April and May 2010, the two procgs are bere being run in parallel and many of the documents filed bear both Plaint numbers. Since often only single copies of double intituled documents have biled, the Court files have become confused. Thus some of t of the pleading references in this Judgment may be inaccurate.
^[2] Intituled with both Plaint numbers.
^[3] Also intituled with both Plaint numbers.
^[4] Which must relate to the joint affidavit sworn on 11 October 201thereoare only 71 items tems for which privilege is claimed in the joint affidavit sworn on 20 Decemb60;2010.
^[5] The White Book.
^[6]3) 2 All ER 1169 HL.
^[7] And - intituled in boin both Plaints – against the Audit Office on 3 March 2011^{me name="fn8" href href="#fnB8">[8]} Intituled in both Plaints.
^[9] Guardian Royal Exchange Assurance of NZ Ltd v. Stuart [1985] 1 NZLR 596, General Accident Fire & Life Assurance Corporation Ltd v. Elite Apparel Ltd [1987] 1 NZLR 129.
^[10] The submissions overlooked, it would seem, The Defamation Act 1993.
^[11] [1980] 1 NZLR 163 at 168, where Woodhouse J cited Attorney-Gl v. C v. Clough [1963] 1 QB 773 at 787 that “confidentiality of itself has never been recognised as a good ground for a valid claim of immunity”.

^{[12] At 165.
[13] At 165-6.
[14] At 170-2.
[15] Encompassing s 35 of the 1980 Evidencedmenndment Act, the Contempt of Court Act 1981, s 10 (UK)[16]} [2002] 2033 at para 39.
^[17] At 2043 para [38a [38].
^[19] The Defamation Act 1993 effects a limited change to the common law.
^[20] Reynolds v. Times Newspapers Ltd [2001] 2 AC 127 Hlmo and Rogers, Gatley on Libel and Slander 11^th ed 2008 Chapter 14.
^[21] But listing only the parties in Plaint 15/2010.
^[22] In an application intituled with both Plaints 9/2010 and 15/2010.
^[23] To which he exhibited two affidavits of documents by Mr Tini on 14 October&#1er 2010.[24] Rockwell Machine Tool Co. Ltd v. EP Barrus (Concessionaires Ltd) [1968] 2 All ER 98 at 99.
^{[25] [ 1 NZLR 262 at 26at 267.[26]} Peerless Bakery Limited v. Watts [1955] NZLR 339.
^[27] CED Distributors (1988) Ltd v. Computer Logic Ltd (In Receivership) (1991) 4 PRNZ 35.
^[28] [2005] NZAR 621 at 625.
^[29] [1994] 3 NZLR 106 at 111-112. Midland Metals Overseas Pte Ltd v. The Christchurch Press Co. Ltd [2001] NZCA 321; [2002] 2 NZLR 289 at 302-3 paras [59]-[62]. Gatley on Libel and Slander of cit para 9.15 p 285 says “Though threexpression ‘aggravated damages’ is often used, it might be better if instead we simply said that certain featof the might aggravate the damages.”
^[30] Todd et al The Law of Torts in New Zealand 5 ed 2009 771. A v. Bottrill [2003] 1 AC 449 HL.
^[31] HC Hamilton CIV-2007-419-845, 16 September 2010, Faire AJ^[32] Attorney-General v McVeagh [1995] 1 NZLR 558.
^[33] Pearson v. Lemaitre (1843)amp;G 700, 719.
^[34] HC Rotorua, CIV-2009-463-701 at [94].
^[35] Broome v. Cassell [1972] UKHL 3; (1972) AC 1027. Couch v. Attorney-General [2010] NZSC 27.
^[36] Nepote is the Latin for ‘nephew’.
^[37] Oxford English Dictionary 2 ed Vol. X p 327.sup>[38] Oxford English Dictionary 2 ed Vol. VII p 3
^[39] Oxford English Dictionary 2 ed VoI p 1br>^[40] Oxford English Dictionary 2 ed Vol. III p 972.
^[41] A v. Bottrill [2002] UKPC 44; [2003] 1 AC 449 PC (on appeal from NZom NZCA), Couch v. Attorney-General0] NZSC 27 at 179.
^[42] Gatley para 9.16 p&#6 p 288.