AMBROSE v KEY [2015] NZHC 2388

AMBROSE v KEY [2015] NZHC 2388 [2 October 2015]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-4650[2015] NZHC 2388BETWEEN BRADLEY CHRISTOPHER GEOFFREYAMBROSEPlaintiffAND JOHN PHILLIP KEYDefendantHearing: 28 August 2015Appearances: M Salmon and D Nilsson for the Respondent/PlaintiffB C Gray QC and J Greenleaf for the Applicant/DefendantJudgment: 2 October 2015JUDGMENT OF THOMAS JThis judgment was delivered by me on 2 October 2015 at 12pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Solicitors:Dominion Law, Auckland.Shortland Chambers, Auckland.Introduction[1] The plaintiff, Bradley Ambrose, has brought a defamation claim against thedefendant, Rt Hon John Key, in relation to a number of allegedly defamatorycomments the defendant made about him.[2] The trial is due to commence in February 2016. The defendant applies to haveparticulars of the second amended statement of claim struck out in accordance with r15.1(1)(b) of the High Court Rules (Rules) on the grounds they are irrelevant and raisescandalous material.Facts[3] On 11 November 2011, the defendant, Prime Minister of New Zealand and theleader of the National Party, attended a meeting with Hon John Banks, the then ACTParty candidate for the Epsom electorate (the Meeting).[4] The Meeting formed part of the National Party's and ACT Party's respective2011 general election campaigns.[5] Prior to the Meeting, representatives from all major New Zealand news mediaagencies were invited to film, take notes and report about the fact that the defendantwas endorsing Mr Banks as a candidate for the Epsom electorate in the 2011 generalelection.[6] Part of the discussion in which the defendant and Mr Banks were engaged wasrecorded by the plaintiff through a recording device left by him at the table at whichthey were seated (the Recording).[7] The plaintiff says the Recording was procured inadvertently.1 In an interviewwith the New Zealand Herald on 13 November 2011, the plaintiff stated that thedefendant's security staff had stopped him from retrieving the recording device and1 The plaintiff on 17 November 2011 filed an affidavit in the High Court at Auckland in support ofa declaration that the Recording was not of a "private communication" under the Crimes Act 1961,in which he gave evidence on oath that the Recording was procured inadvertently.that the recording device had transmitted the discussion to his camera equipment buthe was not aware of the Recording until after the Meeting.[8] On three separate occasions after the Meeting, the defendant made allegedlydefamatory statements about the plaintiff in relation to the Recording (the Statements).They are set out below.Press Conference of 14 November 2011[9] The defendant talked to reporters about the plaintiff and the Recording.[10] Among other things, he said it was his belief that the Recording wasdeliberately made by way of "secret taping" to get information. He said "I'm notgoing to reward News of the World tactics"2 and that "there's no place for it in NewZealand".[11] The plaintiff's explanation that the Recording was inadvertently obtained wasput to him. The defendant said the plaintiff "will be able to answer to those in duecourse to the Police."Firstline Interview of 15 November 2011[12] The defendant was interviewed by a Firstline 3 News programme reporter.[13] When asked whether he had a clear conscience about the Recording, thedefendant said:I think it's the Herald on Sunday and the cameraman that may not have a clearconscience And, you know, if you look what the Herald on Sunday has2 "News of the World tactics" refers to the scandal in which the 'News of the World' tabloidnewspaper engaged journalists and a private investigator to intercept voicemail messages of publicand private figures in the United Kingdom, including British royalty, footballers andpoliticians. The critical moment in the affair came when the Guardian newspaper reported thatNews of the World had hacked into the mobile phone of a 13 year old victim, who was abductedand killed in 2002 while walking home from school. Her body was found approximately sixmonths after she was reported missing. The private investigator hacked into the victim'svoicemail, listened to her messages and deleted some voice messages to make room for new ones,which gave false hopes that she was still alive. The scandal led to the establishment of the LevesonInquiry in July 2011 by David Cameron, Prime Minister of the United Kingdom, which led to theclosure of the News of the World newspaper, announced on 7 July 2011.potentially done in cahoots with this freelancer is, quite possibly, deliberatelygone and done that, at least all the indications are.[14] Reference was again made to "News of the World tactics".[15] When it was put to him that there is a distinction between leaving a microphoneon a table and hacking into the phone of a child who has been murdered, the defendantreplied:No it's not. No it's not. It's an illegal attempt to get information, and that'sthe principle.Main Street statements of 16 November 2011[16] The defendant talked to reporters on Main Street about the plaintiff and theRecording.[17] The defendant maintained that New Zealanders care about important issues,"not illegally conducted taping". He said, "I believe it was illegally taped" andemphasised that those responsible for the Recording "have some questions to answerabout illegal taping to the Police".[18] He added: I'm taking a principled stance. I believe in the principle which it is illegalto tape people without their knowledge unless one party consents to that. NowI'm going to stand up for that principle, and I've said before, it's all very wellstarting with me, but it will move to a lot of other New Zealanders, it wouldchange dramatically the way I can conduct my business and do things, becauseI would have to be on the lookout for that every second.[19] No apology or retraction has been made by the defendant since the making ofthe Statements.The plaintiff's second amended statement of claim[20] The plaintiff's three causes of action are based on the Statements.[21] In essence, the claims are that references to "cameraman", "freelance" and"Herald on Sunday" were intended to, and were understood to mean, references to theplaintiff. The plaintiff says the Statements, in light of the context, were intended tomean that he committed a crime by deliberately making the Recording; actedunethically and immorally by deliberately making the Recording; and is a person whodeliberately engages in immoral behaviour. References to the "News of the Worldtactics" meant and were understood to mean that his actions in making the Recordingwere akin to the type of conduct (including illegal phone hacking) as that of the Newsof the World scandal, and that his conduct was of a similar unethical, illegal andimmoral standard.[22] The plaintiff says he has suffered injury to his character and reputation,including his professional reputation as a freelance cameraman and journalist. He sayshe is entitled to punitive damages because, at the time the Statements were made, thedefendant was aware the plaintiff maintained that the Recording was inadvertentlymade. He says the defendant acted recklessly as to the truth of the Statements and wasmotivated predominately by concerns about his political interests.[23] The plaintiff seeks general and punitive damages in the sum of $500,000.The defence[24] In the statement of defence in response to the first amended statement ofclaim,3 the defendant says he was aware that the plaintiff maintained the Recordingwas inadvertently made but honestly believed the plaintiff made it deliberately.[25] The defendant denies the meanings pleaded and raises three defences: truth,honest opinion and qualified privilege.[1] 3 A statement of defence in response to the second amended statement of claim has not beenfiled. Mr Gray QC confirmed at the hearing that the defendant may file one depending on theoutcome of this application.Truth[26] The defendant relies on s 8(3)(b) of the Defamation Act 1992 (the Act), that is,the publication taken as a whole was in substance true or not materially different fromthe truth and sets out the particulars in his statement of defence.Honest opinion[27] The defendant pleads honest opinion under ss 9 to 12 of the Act, relying onthose same particulars.[28] In respect of each of the Statements, the defendant says he was expressing hisown genuinely held opinion on a matter of legitimate public interest, as set out inschedule A.Qualified privilege[29] The defendant also claims common law qualified privilege in that, as PrimeMinister of New Zealand and as a person who makes statements to and is interviewedby the press most days, he had a duty in relation to the matters set out in schedule Aand the public had a corresponding legitimate interest in those matters.[30] The defence is that the Statements were directly relevant to the matters set outin schedule A and, as such, were made on an occasion of qualified privilege. Further,that the nature and extent of the matters set out in schedule A justify the nature andextent of the Statements.[31] Schedule A lists the matters of legitimate interests as:1 Maintenance of reasonable expectations of privacy and confidentiality inprivate conversation, including between politicians.2 Whether any reasonable expectations of privacy and confidentiality heldby politicians are modified by there being a campaign for a GeneralElection.3 Freedom of members of the public including politicians from unauthorisedrecording of private conversations.4 Whether it is or should be illegal in New Zealand to make an electronicrecording of a voice conversation without the knowledge of theparticipants to the conversation.5 Whether it is or should be illegal in New Zealand to make an electronicrecording of a voice conversation without the consent of the parties to theconversation.6 Whether politicians should be able to engage with members of the publicwithout fear of their voice conversations being electronically recordedwithout their knowledge or consent.7 Whether concerns expressed in the United Kingdom about journalisticpractices employed by News of the World and other reporters applied inNew Zealand to recording of conversations between politicians which werenot intended to be recorded and for which no consent had been given torecording.Plaintiff's reply to statement of defence[32] In his reply to the statement of defence, the plaintiff denies that the Statementswere the truth.[33] The plaintiff denies that the defendant honestly believed the plaintiff made theRecording deliberately. If the Statements were statements of opinion, the plaintiff saysthat opinion was not genuinely held by the defendant.[34] The plaintiff denies the matters set out in schedule A are of genuine andlegitimate interest to the public.[35] In respect of the claimed common law qualified privilege, the plaintiff deniesthat the defendant had a duty in relation to the matters set out in schedule A and thatthe public had a corresponding legitimate interest in those matters. Furthermore, theplaintiff denies that the Statements were published on a privileged occasion and, ifthey were, says that when publishing the Statements, the defendant was primarilymotivated by ill will towards the plaintiff or otherwise took improper advantage of anyoccasion of privilege. The plaintiff denies the nature and the extent of the matters setout in schedule A justify the nature and extent of the Statements.[36] In accordance with ss 39 and 41 of the Act, the plaintiff has given notice of hisallegation that the defendant's opinion was not genuinely held and provides particularsof the facts and circumstances in support of that allegation, relevantly saying:The Defendant made the statements without an honest belief in the truth of thefacts underlying his statements regarding the Plaintiff, and for the purposes ofplacing priority on political expediency rather than on proper investigation orfairness to the Plaintiff and in the circumstances not having an honest beliefbased on reasonable grounds [and the defendant](iii) Made the defamatory statements in his capacity as Prime Minister of NewZealand and/or the leader of the National Party, knowing that his statementswould be widely published to the general public and would carry significantweight with the general public.(iv) Was motivated in making the defamatory statements by politicalexpedience, including (but not limited to) a desire to direct public discourseregarding the incident away from the contents of the Recording prior to thegeneral election on 26 November 2011.[37] The plaintiff has also given notice under the Act that the plaintiff intends toallege that, if the Statements were published on a privileged occasion, the defendantwas predominantly motivated by ill will towards the plaintiff or otherwise tookimproper advantage of the occasion of publication. The particulars of facts andcircumstances include:The Defendant took improper advantage of the occasion of privilege:(a) The Defendant's purpose for making the statements was to protect his ownpolitical interests and those of National (rather than any duty owed to thegeneral public of New Zealand), including (but not limited to) a desire to directpublic discourse regarding the incident away from the contents of theRecording prior to the general election on 26 November 2011.Strike-out application[38] The defendant applies to have the particulars contained in paragraphs 26, 27,28, 29, 30 and 41(a) and 41(l) to (n) in the second amended statement of claim (theParticulars) struck out under r 15.1(1)(b) of the Rules on the basis they are irrelevantand scandalous.[39] Paragraphs 26 to 30 are contained in the first section of the second amendedstatement of claim, under the heading "Defendant's opinions and actual conduct".They provide:26. At all material times the defendant had a modus operandi of seeking toundermine the credibility of the source of potentially politicallyembarrassing or damaging publicity to avoid having to engage with thesubstance of such information.27. At all material times the defendant held the view that it is permissible toaccess personal information about individuals without their knowledgeor consent where the relevant individuals have not ensured that therelevant information is sufficiently protected. Further particulars to beprovided following discovery and at trial.28. At material times the defendant has utilised spy agencies to spy upon ortake surveillance of private communications for personal and/or politicaladvantage and/or for the purposes of his allies' personal and/or politicaladvantage. Further particulars to be provided following discovery and attrial.29. Since approximately 2008 the defendant has been aware of and/orauthorised and/or overseen a media/political strategy involving:(a) The seeking out and/or receiving of personal and private informationregarding persons who are or may become politically at odds withthe defendant and/or National;(b) The dissemination of such information, including embarrassinginformation, at times calculated to benefit the defendant and/orNational and/or to harm the subjects of such information;(c) The utilisation of third parties to obtain such information includingbut not limited to the defendant's office and staff, bloggers(including without limitation Cameron Slater and persons associatedwith him and his website Whaleoil), and New Zealand spy agencies;(d) The utilisation of third parties to disseminate such informationincluding but not limited to the defendant's office and staff, bloggers(including without limitation Cameron Slater and persons associatedwith him and his website Whaleoil).Further particulars to be provided following discovery and trial.30. Since aspects of the above media/political strategy have become public,the defendant has defended them and/or failed to investigate them and/orfailed to criticise the conduct including by not asserting criminality or"News of the World tactics" and/or chosen not to make any complaint tothe Police or other relevant authorities.[40] In the section relating to punitive damages, paragraph 41 relevantly provides:41. The plaintiff is entitled to punitive damages including because:(a) The plaintiff repeats paragraphs 26-30.(l) Following the Defendant becoming aware of the Recording theDefendant either personally or through persons acting on his behalfand/or for the benefit of his personal or political interests and/or forthe interests of the National Party (including but not limited to PaulaOliver, Jason Eade, Wayne Eagleson and Kevin Taylor),communicated with third parties regarding the Plaintiff and/or theRecording.(m) The third parties to the communications included publishers of blogs(including but not limited to Cameron Slater or other personsinvolved with the Whale Oil Beef Hooked website(www.whaleoil.co.nz)).(n) The communications were had with those third parties with a viewto the third parties publishing materials regarding the Plaintiff and/orthe Recording which could benefit the Defendant and / or hispersonal or political interests and/or the interests of the NationalParty.Principles relating to strike-out[41] Rule 15.1 of the Rules provides:15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, or caseappropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1), thecourt may stay all or part of the proceeding on such conditions as areconsidered just.(4) This rule does not affect the court's inherent jurisdiction.[42] The principles relating to the criteria for strike out are well established.Pleaded facts, whether or not admitted, are assumed to be true though this does notextend to pleaded allegations which are entirely speculative and without foundation.The court will not strike out a claim summarily unless it can be sure that it cannotsucceed.4[43] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Courtof Appeal said:5[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse ofthe court's processes. Rule 15.1(1)(b), which deals with pleadings that arelikely to cause prejudice or delay, requires an element of impropriety andabuse of the court's processes. Pleadings which can cause delay include thosethat are prolix; are scandalous and irrelevant; plead purely evidential matters;or are unintelligible.[44] In terms of r 15.1(1)(b), the decision of Van der Kaap v Attorney-General isthe leading authority on the meaning of a scandalous and irrelevant proceeding.6 Therelevant rule at the time was r 186(b) which provided that the court may strike outproceedings where a pleading is "likely to cause prejudice, embarrassment or delay oris otherwise an abuse of process."[45] Hammond J stated the words "prejudice", "embarrassment" and "delay" are tobe given a liberal meaning and include proceedings which are both scandalous andirrelevant. The Judge explained:7This Court also has a general jurisdiction to expunge scandalous matter in anyproceedings. The matter must be both scandalous and irrelevantAllegations of dishonesty and outrageous conduct are not scandalous ifrelevant to the issue... The sole question whether a pleading containsscandalous material is whether the matter alleged to be scandalous would beadmissible in evidence to show the truth of any allegation in the pleadingwhich is material with reference to the relief prayed4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ andAnderson J.5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR679 (footnote omitted).6 Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC).7 At 165.[46] The courts have emphasised that the jurisdiction is sparingly utilised. If thedefect in the pleadings can be cured, the court would normally order an amendment ofthe statement of claim. Rule 5.21(4) empowers the court to order further particularseven in the absence of any notice being served by the opposing party.The function of pleadings[47] It is necessary by way of background to consider the function of pleadings.[48] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Courtof Appeal summarised the procedural requirements for statements of claim under rules5.17, 5.26 and 5.27 as follows:8• The pleading must be accurate, clear and intelligible.• Sufficient particulars must be given to enable the defendant to befairly informed of the case to be met.• While adequate particulars are required, the statement of claim mustnot stray into setting out the evidence relied upon.• Separate causes of action must be separately stated.• The pleading should set out all the elements of the cause of action.• The relief sought must be clearly pleaded in respect of each cause ofaction and, where there is more than one plaintiff and multipledefendants, the relief sought by each plaintiff against each defendantmust be clearly stated.[49] Although the Rules do not explicitly state the purpose of pleadings, theprinciple reiterated is that the function of pleadings is to clarify and define the issuesfor the court, as well as to inform the opposite party in preparation for trial.98 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 5, at [84].9 See generally Thomson v Westpac Banking Corporation (1986) 2 PRNZ 505 (HC); PriceWaterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17: "pleadings are an essentialroad map for the Court and the parties They are documents which establish parameters of thecase, not the briefs of evidence."; Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366where it was stated that if the plaintiff has not clearly defined the issues which the defendant hasto meet, "it is difficult for a defendant to prepare for trial"[50] The need for proper pleadings is important because they act as a "road map"for the court and the parties throughout all stages of the proceedings.10 They are areference point for seeking of particulars, obtaining discovery orders as well asdetermining the admissibility of evidence and the permissible realms of cross-examination. The answer to each of these will always come back to whether and howthe issue was originally framed in the pleadings.[51] The function of particulars is different; it being to fill in the picture of theapplicant's cause of action with information sufficiently detailed to put the respondenton notice as to the case to be met and to enable preparation for trial. There is in practicesome overlap between pleadings and particulars and it is often difficult to distinguishbetween a material fact and a "particular" piece of information it is reasonable to givein order to set out the case the other side has to meet.[52] Rule 5.26(b) holds that the statement of claim must give sufficient particularsof time, place, amounts, names of persons, nature and dates of instruments, and othercircumstances to inform the court and the party against whom relief is sought of theplaintiff's cause of action.Relevance[53] For the defendant to succeed in his application, the Particulars must be bothscandalous and irrelevant. The real issue in the present case is whether the Particularsare relevant.[54] Relevance under s 7(3) of the Evidence Act 2006 is of guidance. It provides:Evidence is relevant in a proceeding if it has a tendency to prove or to disproveanything that is of consequence to the determination of the proceeding.[55] To be relevant, the evidence must be material and probative. The question iswhether the evidence has some probative tendency, not whether it has sufficientprobative tendency.11 The concept of materiality, encapsulated by the phrase, "is of10 Price Waterhouse v Fortex Group Ltd, above n 9, at 19.11 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].consequence to the determination of the proceeding", requires the evidence to be abouta matter or fact at issue in the case.Analysis[56] For the purposes of this application, the claimed meanings of the Statementsmust be deemed true. They are:In their natural and ordinary meaning, or by necessary implication, thepassages mean and were understood to mean:(a) The plaintiff had committed a crime by deliberately making the Recording;(b) The plaintiff had acted unethically by deliberately making the Recording;(c) In making the Recording, the plaintiff had acted deliberately and immorally;and(d) The plaintiff is a person who deliberately engages in immoral behaviour.[The Statements] mean and were understood to mean, by the person with knowledge of thematters pleaded in those paragraphs that:(a) The plaintiff's actions in making the Recording were akin to the type ofconduct (including illegal phone hacking) engaged in by the News of theWorld (through its investigators);(b) The plaintiff's actions in making the Recording were of a similar legal, ethical,and moral standard to those in the News of the World scandal generally in thatthey were illegal, unethical and immoral.(c) The plaintiff, as a journalist, is a person who engages in behaviour akin thatengaged in by the News of the World, and generally condemned by theinternational media.Issues in dispute[57] Counsel have referred, in a general sense, to the issues which will arise in thesubstantive proceeding. However, for the purposes of this application, it is necessaryto identify them clearly in order to determine the relevance of the Particulars. Leavingaside the question of whether the Statements were true, the issues seem to be:(a) Were the Statements intended to mean that the plaintiff actedunethically and immorally?(b) Were the Statements intended to mean that the plaintiff's actions wereakin to News of the World tactics and were therefore unethical, illegaland immoral?(c) In making the Statements, was the defendant primarily motivated byconcerns about his political interests?(d) In relation to the defence of honest opinion (ignoring for presentpurposes the issue of whether it was the defendant's honest opinion thatthe plaintiff made the Recording deliberately):(i) Was it the defendant's genuinely held opinion that:(1) the plaintiff's conduct was akin to that of News of the Wordtactics and that there is no place for such tactics in New Zealand;(2) as a matter of principle, he was concerned about illegal attemptsto obtain information; and(3) as a matter of principle, he was concerned about illegal taping ofpeople without their knowledge.(ii) Was it the defendant's genuinely held opinion that the issues set out in(i) above are of legitimate public interest?(e) In relation to the defence of qualified privilege:(i) Did the defendant have a legal, social or moral duty or interestin relation to the matters set out in schedule A?(ii) Was the public legitimate interest confined to privateconversations?(iii) Was the defendant primarily motivated by ill will or did he takeimproper advantage of the occasion of publication?[58] In respect of this application, the issues relevant to the Particulars can besummarised as:(a) whether the defendant, in making the Statements, was honestlyconcerned as a matter of principle about the matters referred to inparagraph [57](d) or whether the Statements were made without anhonest belief in them and for political expediency; and(b) whether the defendant was motivated by ill will towards the plaintiff orotherwise took improper advantage of the occasion of publication whenmaking the Statements.Paragraph 26[59] Paragraph 26 of the statement of claim alleges that:At all material times the defendant had a modus operandi of seeking toundermine the credibility of the source of potentially politically embarrassingor damaging publicity to avoid having to engage with the substance of suchinformation.[60] Mr Gray submitted paragraph 26 should be struck out because:(a) reference "at all times" is unreasonably wide;(b) the allegation is that the defendant had a general way of doing things;and(c) it is a propensity type allegation without the necessary specificity.[61] In Mr Gray's submission, if matters are relevant in an evidential sense thencross examination on them will be proper. A matter can be relevant for crossexamination though not specified in a pleading and thus the question of relevanceshould be left for the trial Judge to decide, he said. Mr Gray contended that, byincluding these types of allegations in Particulars, the plaintiff is seeking to forestallany objection at trial.[62] It is, in Mr Salmon's submission, inconceivable that the defendant will not beable to be asked about these matters at trial. Furthermore, he said, it is inconsistent tosay that the Particulars are irrelevant to the pleading but could be relevant at trial.[63] The general principle is that all matters relevant to the plaintiff's case must bepleaded at the outset. As the Court of Appeal in Hopper Group Ltd v Parker stated:12if the case goes to trial without precise pleadings, much time can be wastedand a defendant might be taken by surprise when the real issue not previouslystated clearly suddenly emerges.[64] If a matter is relevant to an issue in dispute, it should be particularised. Theallegation in paragraph 26 is directly relevant to the question of whether or not, inmaking the Statements, the defendant was predominately motivated by ill will or tookimproper advantage of the occasion of publication such that the defence of qualifiedprivilege is lost. These issues have already been pleaded in the plaintiff's notice ofparticulars under the Act. The particular adds to those pleadings only by alleging thedefendant has a tendency to act in the way alleged.[65] The allegation is of a wide and general nature and does not provide sufficientdetail to meet the requirements of a particular. No example of the type of behaviouralleged was given at the hearing and there is no indication that any specificity is to beprovided.13[66] For these reasons, paragraph 26 is struck out. How this allegation is dealt withat trial is a matter for the trial judge.Paragraph 27[67] Paragraph 27 of the statement of claim alleges that:At all material times the defendant held the view that it is permissible to accesspersonal information about individuals without their knowledge or consentwhere the relevant individuals have not ensured that the relevant informationis sufficiently protected. Further particulars to be provided followingdiscovery and at trial.12 Hopper Group Ltd v Parker, above n 9, at 366.13 Compare, for example, paragraphs 27, 28 and 29 of the pleadings where it is stated "Furtherparticulars to be provided following discovery and at trial."[68] Mr Gray's objection was that, first, the phrase "at all material times" refers tosome undefined period and, secondly, the paragraph relates to the defendant's beliefand does not assist in clarifying whether the defendant honestly believed what he saidwas true.[69] In Mr Gray's submission, the pleading is vague and unparticularised and issimply a fishing expedition seeking to impose discovery obligations on the defendant.[70] Mr Salmon said that paragraph 27 is relevant to the defence of honest opinionbecause what the defendant has previously said on record about the hacking of theLabour Party website, for example, is at odds with his moral indignation at theplaintiff's conduct.14[71] Mr Salmon explained that the paragraph is unparticularised because, althoughthe circumstances on which the plaintiff relies can be particularised with reference towhat is already in the public domain, there may be other examples of prior inconsistentstatements and/or conduct which become available during discovery about which theplaintiff does not yet know. The plaintiff should not be disadvantaged by not havingthe necessary documentation to know if any answers given in cross-examination couldbe challenged or not, Mr Salmon said. He relied on the Supreme Court decision ofHickson v Scales in support of the view that the plaintiff may well have imperfectknowledge of what the defendant has actually done, ignorance of which might relievethe defendant from being held responsible with respect to the claim.15 It is thedefendant who knows whether he did what the claim alleges he did.[72] In Mr Salmon's submission, this is not of a fishing expedition and does notimpose oppressive discovery requirements and, if this were contended, then anapplication could be made in that regard.14 A Labour Party website security flaw allowed a database containing supporters' personalinformation to be freely downloaded in mid-2011. The database included a mailing list containingthe names and email addresses of about 18,000 supporters and a list of hundreds of recent onlinedonations, complete with names and amounts given. The defendant is reported to be on recordsaying that even if Mr Ede, who was linked to the National Party, covertly accessed the LabourParty's computer systems, " it would be fine to go and do that" because they were unprotected(saying, "he may have seen it but it was wide open for anyone to see").15 Hickson v Scales (1900) 19 NZLR 202 (SC).[73] I accept that paragraph 27 is relevant to the issue of whether the defendant'sopinion about the matters referred to in paragraph [57](d) was honestly held. Whilethe defence has tried to confine matters of legitimate public interest to what iscontained in schedule A, being privacy expectations about private conversations, theStatements themselves were not limited in that way. For example, on the secondoccasion of alleged defamation, the defendant referred to his principles about " anillegal attempt to get information."[74] The plaintiff is, however, required to particularise the circumstances on whichhe presently relies (although this is not limited to the specific examples Mr Salmongave at the hearing) in accordance with r 5.26(b). Reliance on "Further particularsfollowing discovery and at trial" is considered from paragraph [97] below but it isdifficult to see what disclosure will flow from the particular, in any event.Paragraph 28[75] Paragraph 28 of the statement of claim alleges that:At material times the defendant has utilised spy agencies to spy upon or takesurveillance of private communications for personal and/or politicaladvantage and/or for the purposes of his allies' personal and/or politicaladvantage. Further particulars to be provided following discovery and at trial.[76] This, again, in Mr Gray's submission, is a propensity type allegation whichfails to provide the necessary specificity.[77] Furthermore, he said, there is no allegation that any surveillance of privatecommunications which might have occurred was used against the plaintiff. However,that is not the plaintiff's case. The plaintiff's allegation is that the defendant himselfhas been involved in privacy breaches and therefore his claimed opinion was notgenuinely held.[78] Mr Gray then said the issue will be whether or not the defendant believed thatthe plaintiff acted in a way which can be compared to the News of the Worldjournalists. If the defendant did not believe the plaintiff acted in that way, then hewould not be able to avail himself of the honest opinion defence.[79] However, the plaintiff's claim is not limited to the comments about the Newsof the World journalists. It also concerns comments by the defendant to the effect thatissues surrounding privacy in private communications are a matter of principle to him.The plaintiff's case is that the defendant cannot have honestly held this view based onhis prior inconsistent behaviour.[80] The particular is therefore relevant to the honest opinion defence.[81] In response to Mr Gray's criticism that the pleading is not sufficiently detailed,Mr Salmon said there can be further particularisation based on what is already in thepublic domain, for example, the allegation that the government used spyware toobserve Hon Tim Groser's rival candidates for the position of the World TradeOrganisation director-general; his point being that there may be other examples notwithin the plaintiff's knowledge at this stage.[82] For the same reasons stated at paragraph [74] above, the particular shouldcontain the matters within the plaintiff's knowledge and an order for further particularsis made.[83] It could be said that this allegation, when particularised, is not relevant to thepleaded defence because schedule A covers only private conversations. That is, thefact that a government spy agency might have programmed an internet surveillancesystem to intercept emails about rival candidates is not relevant because it falls outsideof the realm of "private conversations". In my view, it would be artificial to approachthe matter in this way. When particularised, paragraph 28 will relate to "electroniceavesdropping" which must be relevant to the circumstances of this case as it involvesthe freedom to communicate in private.[84] It is, however, irrelevant and scandalous to suggest the defendant used spyagencies for his personal advantage or that of his allies. No foundation for thisallegation has been advanced (save potentially with regard to Hon Tim Groser and thiswill be particularised) and reference to it is therefore struck out.[85] Furthermore, this particular is not to be construed as raising issues aboutnational security or requiring disclosure in that regard. Although the question ofdisclosure is not before me, it is likely that disclosure will be limited to mattersparticularised.Paragraphs 29 and 30[86] Paragraph 29 of the statement of claim alleges that:Since approximately 2008 the defendant has been aware of and/or authorisedand/or overseen a media/political strategy involving:(a) The seeking out and/or receiving of personal and private informationregarding persons who are or may become politically at odds withthe defendant and/or National;(b) The dissemination of such information, including embarrassinginformation, at times calculated to benefit the defendant and/orNational and/or to harm the subjects of such information;(c) The utilisation of third parties to obtain such information includingbut not limited to the defendant's office and staff, bloggers(including without limitation Cameron Slater and persons associatedwith him and his website Whaleoil), and New Zealand spy agencies;(d) The utilisation of third parties to disseminate such informationincluding but not limited to the defendant's office and staff, bloggers(including without limitation Cameron Slater and persons associatedwith him and his website Whaleoil).Further particulars to be provided following discovery and trial.[87] Paragraph 30 of the statement of claim alleges that:Since aspects of the above media/political strategy have become public, thedefendant has defended them and/or failed to investigate them and/or failed tocriticise the conduct including by not asserting criminality or "News of theWorld tactics" and/or chosen not to make any complaint to the Police or otherrelevant authorities.[88] Paragraphs 29 and 30 are interrelated and best considered together.[89] In Mr Gray's submission, paragraph 29, at best, pleads matters properly thesubject of evidence. In any event, any such strategy is not, in Mr Gray's submission,relevant to a genuine belief or any motivation by ill will.[90] Mr Gray noted that, in respect of the defence of qualified privilege, there is noallegation the defendant was motivated by ill will towards the plaintiff. That is notcorrect. The plaintiff has served the notice required under the Act in this regard.[91] In Mr Gray's submission, the plaintiff is simply trying to create a platform fromwhich to make wide ranging allegations against the defendant.[92] Mr Salmon submitted that it is not simply ill will which is relevant but also theissue of improper advantage which, in his submission, will be the real issue here. Thatis, the defendant says it was his duty to inform New Zealanders of what happened buthas in the past declined to answer similar questions regarding others with whom hewas involved, for example, his staff and political allies.[93] Mr Salmon relied on the case of Lange v Atkinson as authority for theproposition that occasions of privilege are fact dependent, the circumstances of whichmay show that the defendant did not exhibit the necessary responsibility whenpurporting to act under the cloak of qualified privilege and hence abused thatprivilege.16 The plaintiff's position is that the defendant, a popular public figure, madewidely published defamatory comments about an unknown New Zealander. That, inMr Salmon's submission, is an example of where extreme care would be required.[94] The plaintiff's case is that the defendant is claiming a duty to tell the publicwhat he thought about the matters contained in schedule A whereas he has refused tocomment on other occasions when it is alleged a party's privacy has been breached.As an example of this, Mr Salmon referred to the defendant's reaction when askedabout the hacking of the Labour Party website where, Mr Salmon said, the defendantis on record of making comments to the effect that he had no problem with it. Thesetypes of issues must be relevant to the claim of qualified privilege, in Mr Salmon'ssubmission.[95] In my assessment, paragraph 29 has been extremely widely drafted such that itgoes beyond what is relevant and properly pleaded. It needs to be redrafted so it isfocused on the issues at trial as identified at paragraph [57] above. For example, it is16 Lange v Atkinson [2000] 3 NZLR 385 (CA) at [43].too wide to allege that the defendant "has been aware of" a strategy; the strategy mustsurely be a political one even though it might involve the use of the media; theinformation must be private rather than simply personal; reference to those who "maybecome" politically at odds with National should be deleted; the allegation must belimited to "National" (which, in any event, needs to be clarified) and reference to thedefendant, to the extent the allegation extends to him in his personal capacity, shouldbe deleted; reference to "embarrassing information" should be deleted. Reference to"New Zealand spy agencies" should be deleted because no foundation has been laidfor that allegation so it is irrelevant (and particularly scandalous).[96] While I accept that the matters referred to by Mr Salmon are relevant to theissue of qualified privilege and honest opinion, the particular is far too wide. I acceptMr Gray's submission that it has the flavour of the plaintiff seeking to use theproceedings as a political tool to raise accusations levelled against the currentgovernment during all its terms. The plaintiff clearly has in mind specific examplesof alleged behaviour and it is those which should be particularised."Further particulars to be provided following discovery and at trial"[97] I accept that paragraphs 27, 28, 29 and 30, if pleaded with sufficient specificity,meet the threshold for relevance. The matters identified would be admissible inevidence as material to and probative of the pleaded defences. They fulfil the purposeof particulars and put the defendant and the court on notice of the plaintiff's case.[98] The next issue is whether the phrase "Further particulars following discoveryand at trial" in paragraphs 27, 28 and 29 is proper.[99] I accept that the usual expectation of detailed particulars may give way in caseswhere the party who would be entitled to particulars has knowledge concerning thoseparticulars which the other party does not have.17 It may be that, following disclosure,the plaintiff will be able to supplement the particulars but, as ordered, specificity isrequired now in respect of matters within the plaintiff's knowledge. As referred toabove, it seems to me unlikely that discovery will be ordered beyond the matters17 Truck Master Ltd v Mastagard Waste Ltd [2014] NZHC 1676 and Hickson v Scales, above n 15.specified in the particulars as amended. However, it is conceivable that further matterscould arise as a result of discovery and therefore reference to further particulars to beprovided following discovery can remain.[100] Mr Salmon contended that a defamation case includes the conduct of thedefendant at trial. However, the particulars complained of do not refer to allegedbehaviour at trial but provide that the particulars will be provided at trial. Referenceto "and at trial" is therefore struck out.Paragraph 41[101] Paragraph 41 of the statement of claim, in relevant part, alleges that:The plaintiff is entitled to punitive damages including because:(a) The plaintiff repeats paragraphs 26-30.(l) Following the Defendant becoming aware of the Recording theDefendant either personally or through persons acting on his behalfand/or for the benefit of his personal or political interests and/or for theinterests of the National Party (including but not limited to Paula Oliver,Jason Eade, Wayne Eagleson and Kevin Taylor), communicated withthird parties regarding the Plaintiff and/or the Recording.(m) The third parties to the communications included publishers of blogs(including but not limited to Cameron Slater or other persons involvedwith the Whale Oil Beef Hooked website (www.whaleoil.co.nz)).(n) The communications were had with those third parties with a view to thethird parties publishing materials regarding the Plaintiff and/or theRecording which could benefit the Defendant and / or his personal orpolitical interests and/or the interests of the National Party.[102] Paragraph 41 relates solely to the plaintiff's claim for punitive damages. InMr Gray's submission, the plaintiff is again seeking discovery of what the defendantmight have said to third parties. However, the fact that the defendant might havespoken to third parties about the plaintiff and the Recording is not of itself relevant tothe proceedings. Mr Gray pointed out that aggravated damages have not been pleadedand this is, in his submission, a pleading of evidence, done to create a discoveryobligation and with a view to seeking something to be made relevant at trial. Mr Graydiscussed the case law relating to punitive damages and said the particulars gonowhere near meeting the test.[103] The defendant's behaviour may be relevant to assessing the issue of aggravateddamages, which is compensatory in nature and is distinguished from punitivedamages. The Court of Appeal in Siemer v Stiassny said that aggravated damages areawarded to:18 compensate for injury to the plaintiff's feelings or dignity where that senseof injury has been exacerbated by the manner in which, or the motive withwhich, the defendant committed the defamatory act, or by how the defamationdefendant behaved towards the injured plaintiff, particularly after the tort hadbeen committed[104] This is essentially the plaintiff's claim although he has not sought aggravateddamages in the second amended statement of claim. Mr Salmon said the plaintiff willbe seeking aggravated damages and that an amendment to the statement of claim inthat regard will be made.[105] On the issue of punitive damages, s 28 of the Act states:28 Punitive damagesIn any proceedings for defamation, punitive damages may be awarded againsta defendant only where that defendant has acted in flagrant disregard of therights of the plaintiff.[106] Punitive damages are additional to what would have already been awarded forgeneral damages (and possibly aggravated damages) resulting from hurt to feelings.19The Supreme Court in Couch v Attorney General has confirmed that punishment anddeterrence are the main purposes of punitive damages.20 That is, punitive damagesmust go beyond the direct consequences of an award of compensatory damages inorder to deter or punish the defendant. There must be a direct nexus between the high-handed conduct for which the defendant is being punished/deterred and the pleadedcauses of action in which the plaintiff is successful.18 Siemer v Stiassny [2011] NZCA 106 at [51].19 See Siemer v Stiassny, above n 18, for reasons.20 Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149.[107] The case for the plaintiff is that, when the overall picture is considered, ratherthan the allegations taken one by one, the test for punitive damages is met. In thatregard, it is relevant, in Mr Salmon's submission, that when speaking about theplaintiff, the defendant allegedly took a different approach from that taken when hisallies were in a similar position.[108] It is not a matter for the Court to make a decision on punitive damages butsimply whether there is an arguable case. I accept the submission that all factors takentogether results in an arguable case that the defendant demonstrated a sufficientlyflagrant disregard of the plaintiff's rights, such that punitive damages might beappropriate.[109] Paragraph 41 is therefore relevant. Again however, it has been drafted toowidely. What the defendant did himself or instructed others to do on his behalf isrelevant but what others may have done, believing it to be in the interest of thedefendant or the National Party, is not. Those references are therefore struck out.Summary of results[110] Paragraph 26 of the second amended statement of claim is struck out.[111] The plaintiff is to redraft the particulars in accordance with this decision withinfour weeks.Costs[112] If costs cannot be agreed the defendant is to file and serve a memorandumwithin 21 days and any response is required seven days thereafter._______________________Thomas J