GRAHAME DOUGLAS CHRISTIAN v MURRAY IAN BAIN [2023] NZCA 579

GRAHAME DOUGLAS CHRISTIAN v MURRAY IAN BAIN [2023] NZCA 579 [17 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA52/2023CA139/2023[2023] NZCA 579BETWEEN GRAHAME DOUGLAS CHRISTIANAppellantAND MURRAY IAN BAINRespondentHearing: 15–16 August 2023Court: Miller, Brown and Courtney JJCounsel: C T Patterson for AppellantW Akel and J C Dickson for RespondentJudgment: 17 November 2023 at 2.00 pmJUDGMENT OF THE COURTA The appeals from [2022] NZHC 3394 (liability) and [2023] NZHC 424 (costs)are dismissed.B The cross-appeal from [2022] NZHC 3394 is dismissed.C The appellant must pay costs in this Court for a complex appeal on a band Abasis with usual disbursements as fixed by the Registrar, with provision forsecond counsel.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Introduction[1] Grahame Christian sued Murray Bain in defamation.1[2] The claim focused on two articles published on 3 August 2019 byNZME Publishing Ltd in the Weekend Herald, and republished by other news outlets,about the apparent misuse of local authority dumping facilities bySmart Environmental Ltd. The two articles, which we will call the News Article andthe Feature Article, are attached to this judgment.2 We discuss them at [53] below.The gist of the story was that Smart was engaging in clandestine practices whentipping commercial waste at refuse transfer stations owned by local authorities andwas also substantially underpaying, without the local authorities' knowledge, forcommercial waste tipped there.[3] Smart is a large waste management company closely associated withMr Christian. Mr Bain is a competitor and former employee of Smart who wasNZME's initial and principal source for much of the information published.He worked closely with Michael Valintine, a freelance journalist who offered the storyto NZME then wrote the articles over a period of about six months. Messrs Christianand Bain were both quoted in the articles, which told readers that they werecompetitors with bad blood between them.[4] Mr Bain's liability is not said to rest on specific statements attributed to him inthe articles. The alleged defamation of Mr Christian rests on an imputation, drawnfrom the articles as a whole, that he was knowingly responsible for Smart's underhandconduct. Mr Bain is said to have been liable as a joint tortfeasor, with NZME andMr Valintine, for everything said in the articles.[5] NZME later retracted any allegations of wrongdoing and published an apology.It compromised Mr Christian's claim, which went to trial against Mr Bain alone.1 Christian v Bain [2022] NZHC 3394 [liability judgment].2 Counsel did not focus on the republications, which were in the Hawkes Bay Today and Bay ofPlenty Times and on the New Zealand Herald website. Republication is said to have increased theinjury to Mr Christian but not to affect liability.[6] Mr Christian lost before Walker J, sitting without a jury.3 The Judge found thatthe publications contained imputations defamatory of Mr Christian,4 and that Mr Bainwas responsible for them as a joint tortfeasor.5 But because NZME and Mr Valintinehad made reasonable efforts to verify the allegations and had offered Smart anopportunity to comment on them, Mr Bain succeeded in making out the defence ofresponsible communication on a matter of public interest.6[7] The Judge later ordered Mr Christian to pay a substantial sum in costs,including an uplift which reflected the impact of his approach to the litigation on costsincurred by Mr Bain.7[8] Mr Christian now appeals the liability and costs judgments. He accepts thatthe publications concerned matters of public interest but says that, far from actingresponsibly, Mr Bain acted from base motives and not enough was done to ensure thepublications were accurate.[9] Mr Bain supports the liability judgment on other grounds. He says the Judgewas wrong to find that the articles were defamatory of Mr Christian and wrong to findhim responsible for them; he was merely a journalist's source and had no control overthe articles or the decision to publish. The Judge also found it unnecessary to decidehis alternative honest opinion defence and he invites us to find that it was made out onthe facts.The principal actors[10] Mr Christian was Smart's main shareholder until mid-2017, when he sold orgifted most of his shares, and he was managing director until shortly before publicationof the articles. Walker J described him as a successful and self-made entrepreneurwho is also a prominent member of his communities.83 Liability judgment, above n 1.4 At [259] and [273].5 At [203].6 At [379]–[381].7 Christian v Bain [2023] NZHC 424 [costs judgment] at [44].8 Liability judgment, above n 1, at [14].[11] Mr Bain is a competitor of Smart through his company Coastal Bins Ltd.He worked for Smart between September 2016 and December 2017, when he left aftera breakdown in his relationship with Mr Christian. There followed an employmentdispute, eventually settled the day before the articles were published, in which theytraded allegations of breach of a settlement agreement and breach of a restraint oftrade.[12] Mr Valintine, who wrote the articles, has more than 40-years experience as ajournalist. He has known Mr Bain since 2003, when they began working together onan ultimately successful investigation into the shooting death of Mr Bain's brother atthe Waiouru Military Camp.Local authority refuse collection and disposal in the Thames District[13] The proceeding finds its context in the 2013 Solid Waste Contract betweenSmart and three local authorities: the Thames-Coromandel District Council (TCDC),the Hauraki District Council and the Matamata-Piako District Council. These localauthorities, which we will call the Councils, own some 12 refuse transfer stations anduse the Tirohia Landfill under contract with its owner, Waste Management Ltd.[14] However, the activities and events which concern us focus on dealings amongthe parties and the TCDC. The articles referred to one of the TCDC's refuse transferstations at Thames and the Tirohia Landfill. The Tirohia Landfill is about 40 km fromThames. The litigation focuses on those facilities.[15] Solid waste collection and disposal is a public service performed by localauthorities.9 The Councils offer the service to their ratepayers but deliver it throughSmart under the Solid Waste Contract.[16] Speaking generally, the Councils limit their ratepayer-funded service to normalhousehold refuse which is collected in wheelie bins or refuse bags from houses or9 From 2010 until 2019 it was one of a number of a core services on which local authorities wererequired to focus: Local Government Act 2002, s 11A(c).commercial premises.10 Industrial or commercial waste, which typically is collectedin large bins, is paid for by the user.11 Under the Solid Waste Contract, Smart mustoffer a commercial waste collection service in the districts, but it is not a serviceprovided to the Councils and it is offered in competition with other firms, includingCoastal Bins.[17] Smart operates a dedicated fleet of duo-combi trucks for the collection ofhousehold waste and recycling. These trucks are configured for kerbside collection ofhousehold rubbish and recycling in separate compartments. Trucks used for thecollection of commercial waste are usually set up differently. They generally loadfrom the front or rear into a single compartment.[18] Again speaking generally, anyone may dump commercial waste at Tirohia orat a refuse transfer station.12 The price paid depends on who is doing the dumping,and where. We focus here on the TCDC and Tirohia:(a) The TCDC does not pay to tip household waste at its own refusetransfer stations. Rather, it pays Waste Management when the waste istaken from the refuse transfer station (by a contractor to Smart, aftercompacting and loading into large bins known as pods) and dumped atTirohia. There is evidence that the rate paid by the TCDC wasapproximately $77 per tonne of solid waste.13(b) Anyone other than the TCDC who tips solid waste at a refuse transferstation pays the TCDC Gate Rate, which was $181 per tonne at thematerial time. This includes any commercial operator, such as Smartor Coastal Bins, which chooses to dump commercial waste at a refusetransfer station.10 Household refuse is defined in the Solid Waste Contract as "such of the following or othermaterials as directed by the Contract Manager from time to time, including, but not limited to,wrapped cold ashes, sweepings, dust, wrapped bones and waste food, cans, cartons, or other foodcontainers, or any other rubbish or refuse arising from domestic housekeeping, sacks and rags".11 This waste is referred to as "Third Party Collections" in the Solid Waste Contract. We note forcompleteness that Smart may use equipment that is used to collect household waste for certainThird Party Collections but the Councils are not responsible for paying landfill charges.12 Some waste cannot be accommodated at a refuse transfer station.13 This rate is GST inclusive.(c) Smart pays Waste Management to dump commercial waste whichSmart collects and takes to Tirohia without first tipping it at a TCDCrefuse transfer station. The rate paid to Waste Management is higherthan the rate paid by the TCDC and less than the TCDC Gate Rate, butthe evidence does not establish what the rate was. It does indicate thatthere was a commercially significant difference between the rates paidby the TCDC and by Smart. Mr Christian himself deposed that Smartwould have sent commercial waste direct to landfill had it not been ableto pay a lower rate that covered the TCDC's costs. Mr Bain deposedthat when he worked for Smart (September 2016 to December 2017)the company paid Waste Management around $80 per tonne but the ratepaid by his own company, Coastal Bins, from mid-2018 was between$95 and $105 per tonne.[19] For a commercial operator which has its own contract withWaste Management, such as Smart, the obligation to pay the TCDC Gate Rate createsa substantial disincentive to tip commercial waste at a refuse transfer station. For thatreason such tipping occurred only occasionally, usually for logistical reasons and withexpress permission from a Smart manager, before the events described in the articles.[20] If Smart were permitted to pay the rate that the TCDC pays at Tirohia at aCouncil refuse station, it would be commercially advantageous for Smart to tipcommercial waste at a Council refuse transfer station then dump it to landfill atTirohia. However, that practice, which is known as tolling, has at all material timesbeen prohibited under the TCDC's contract with Waste Management. The TCDC alsoprefers that refuse transfer stations not be used for commercial waste because ofincreased wear and tear on facilities and equipment.[21] The Councils have outsourced to Smart not only the collection and disposal ofhousehold waste but also the management and operation of refuse transfer stations.Trucks cross weighbridges when entering and leaving the Thames refuse transferstation. The weight is displayed on a screen in a kiosk which is staffed by a Smartemployee during public opening hours. The weight is entered into a computer systemcalled Sensortronic and a docket is printed for the driver.[22] Normal public opening hours at the Thames refuse transfer station are 10 amto 3 pm during Monday to Friday and 10.30 am to 5.30 pm on weekends. The facilitymust be open during those hours. Outside public opening hours the kiosk is not staffedand the gates are closed and locked. However, the resource consent for the site permitsoperation between the hours of 8 am and 5 pm during Monday to Saturday and 10 amand 5 pm on Sundays. Drivers who are handling household waste for the Councilcarry keys to the gates and may enter the refuse transfer station to dump their loadsduring those hours. The drivers record on paper the weight recorded on theweighbridge screen and provide that record to an administrator at Smart, who enters itmanually in Sensortronic as a "super" entry.[23] Household recycling is handled separately under the Solid Waste Contract.Smart must collect household recycling and the sale and processing of the recyclablematerial is Smart's sole responsibility. No recyclables may be disposed at a landfill.If that were to happen, the Councils would incur the dumping cost. Smart establisheda recycling depot to handle the material, which was shipped to China for processing.[24] Each of the Councils is contracted to pay an annual fee for refuse and recyclingcollection and management of refuse transfer stations, and a rate per tonne for wastetransported to landfill from each area. Smart bills the Councils in monthly claims.The claims must detail the amount of refuse transported to Tirohia, the volumes whichoriginated in the territory of each of the Councils, Smart's performance against keyperformance indicators, and the amount of the payment claimed. In practice eachclaim is accompanied by a refuse transfer station transaction report detailing all loadsthrough the stations. The transaction reports allow the Councils to validate the claims.The Contract Manager is also entitled under the Solid Waste Contract to inspectfacilities, equipment and records and to audit Smart's records.The factual context for the publications[25] The narrative begins with the negotiation of the Solid Waste Contract in 2013.Mr Christian sought the right to toll commercial waste through refuse transfer stationsat no cost to the Councils. It is now common ground that the Councils did not agreeand no provision was made for tolling in the Solid Waste Contract.[26] As above, Mr Bain left Smart at the end of 2017, and he soon incorporatedCoastal Bins with another former employee of Smart, Michael Barlow. Walker J foundthat the relationship between Mr Christian and Mr Bain has remained acrimonioussince Mr Bain's employment with Smart ended.14[27] On 9 April 2018 Mr Christian emailed Bruce Hinson, a senior manager at theTCDC, advising that Smart planned to commence tolling and claiming that theCouncils had agreed to it:On reviewing our tender submission, we noted that due to Smart purchasingall of the wheelie bins for the EW contract, it had been agreed that we couldput our commercial waste through the transfer stations and go to landfill atCouncils rate, Smart would not charge transport for the tonnes that formedpart of that arrangement. This is planned for the end of this month. Additionalresource will be required to handle these additional tonnes and we will do thisat our cost. Full details will be sent shortly.[28] The following day Mr Christian emailed again, stating that:Through [the negotiation] process, Smart and Councils agreed on severalconcessions in favour of Smart.1. It was agreed that Smart could collect private customers at thesame time as kerbside collections for both refuse andrecycling and we have been doing this since contractinception.2. It was agreed that on request Smart could toll its Commercialwaste through Council transfer stations. Please see the cutand paste below."Thames Coromandel District Council and Matamata Piako District Councilwill where requested allow Smart Environmental to "toll" Commercial Wastethrough its Transfer Stations, such that it will be at no cost to Councils".Accordingly we advise that from May 1, 2018 Smart wishes to exercise thisclause to toll Commercial Waste at Transfer Stations.The "cut and paste" was not an agreement but an extract from a proposal that Smarthad made in the 2013 negotiations.[29] The Council did not respond. Mr Christian asserted in evidence that he tookthis as acquiescence.14 Liability judgment, above n 1, at [16].[30] On 12 April 2018 a senior manager at Smart sent an email, copied toMr Hinson, stating that:The KRC is no longer operational given the compactor and mule truck havesustained fire damage; the KRC won't come back on line. As per Grahame'semail on Monday, we have enacted the agreement to take our commercialwaste to the Thames RTS.The Kopu Refuse Centre (KRC) was an in-house facility that Smart operated at Koputo hold Council and commercial waste, separately, before it was taken to Tirohia. Itwas sometimes convenient to tip waste there rather than go direct to landfill. Driverscould use the KRC outside the Tirohia Landfill hours of 6.30 am to 4 pm. The wastewould be compacted and loaded into large pods before going to Tirohia. Each podwould be assigned a code indicating whether it was Council or commercial waste soit could be accounted for at Tirohia. The KRC was rendered inoperable by fire on10 April 2018. However, the evidence is that the decision to tip at Thames was madebefore the fire at Kopu.[31] In argument before us, Mr Patterson for Mr Christian acknowledged that theSolid Waste Contract does not permit tolling but maintained that Mr Christian believedthat it did. Mr Christian deposed in his evidence in chief that Smart had "specificallynegotiated" the right to toll with the Councils, although the records were "slightlychallenging". He acknowledged that the TCDC was not happy about the "tollingoption", but he attributed its attitude to what he believed was its decision to enter anew contract with Waste Management which prohibited tolling.[32] This evidence is contradicted by the evidence of David Locke, a formeremployee of the Matamata-Piako District Council who was involved in the 2013negotiations. He deposed that the tolling request was declined and Smart was told thatthe proposal would breach the agreement with the then owner of the Tirohia Landfill.That contract was later assigned to Waste Management. There is also evidence thaton three occasions between 2014 and 2017 Mr Christian asked the Councils to permittolling at cost or with a modest markup. Mr Christian says he did so because theCouncils were ambivalent about the right to toll. David Lindsay, a TCDC employeeuntil 2017, says that he told Mr Bain, who was working for Smart at the time andapproached him about tolling, that the TCDC could not agree to it without breachingthe contract with Waste Management. As Walker J noted, the minutes of a partnermeeting between Smart and the TCDC on 19 April 2018 make no reference to anyalleged tolling agreement.15[33] Walker J did not resolve the conflict of fact about what Smart knew or believed,but she stated that she was left with "the distinct impression that Smart's approach andarguments were no more than a negotiation strategy designed to increaseleverage".16 We record that in early 2020, after the articles had been published, Smartreached an agreement with the TCDC under which, from 1 April 2020, it would paythe Gate Rate for commercial waste tipped at a refuse transfer station.[34] Importantly, the Judge found that throughout Mr Bain's subsequentinvestigation the TCDC denied there was any documented tolling agreement.17She described the TCDC's stance as unsurprising. The TCDC did not disclose theemail of 12 April 2018 to Mr Bain or Mr Valintine prior to publication of the articles.[35] Following the email of 12 April, Smart began to tip commercial waste at theThames refuse transfer station. For purposes of dumping at Tirohia, Smart treated thiswaste as Council waste and paid Waste Management the TCDC rate. Smart had keyscut to the Thames refuse transfer station for its commercial drivers so they could tipwaste there outside public opening hours, as was already the case for its Councildrivers.[36] The altered behaviour of Smart's commercial trucks was soon apparent.Mr Barlow observed them tipping waste at Thames outside public opening hours.This behaviour raised a red flag because Mr Barlow knew from his own time at Smartboth that commercial drivers would not do that without a very good reason and alsothat commercial drivers did not have after-hours access. He initially assumed thatSmart had found it necessary to do this because of the fire at Kopu. He and Mr Bainbegan tracking Smart trucks.15 Liability judgment, above n 1, at [38].16 At [38].17 At [38].[37] In August 2018 Mr Bain and Mr Barlow took their concerns to the TCDC. TheJudge found that:[40] In August 2018, Messrs Barlow and Bain met with the Mayor and thethen Chief Executive Officer of TCDC. They explained that they had proofthat Smart was tipping its Commercial Waste after RTS sites had closed andhad reason to believe that some discount arrangement was in place based ondiscussions with drivers and former Smart managers. They made the pointthat offloading Commercial Waste at the Thames RTS could not be economicif Smart was paying the full gate rate. They asked whether TCDC was awareof and had approved this. Mr Bain's evidence is that the CEO assured themthat no one received a discount on the gate rate and no one was disposing ofCommercial Waste after hours when the gate was shut.[41] On 24 August 2018, Coastal Bins wrote to TCDC. The letterreiterated the belief that Smart had been allowed to dispose of CommercialWaste at the TCDC RTS sites at a reduced disposal charge. It complained thisprovided a competitive advantage in breach of the Commerce Act 1986. Itrequested information and documents under the Local Government OfficialInformation Act 1987 (LGOIMA). This was to be the first of a series ofLGOIMA requests.[38] The Judge found that at some stage the TCDC engagedPricewaterhouseCoopers (PwC) and Morrison Low to investigate the allegations.18Their reports were not received until after the articles had been published.[39] Mr Bain contacted to Mr Valintine in late 2018 and they met on 1 Novemberin Hamilton, where Mr Valintine attended the hearing of Mr Bain's dispute with Smartin the Employment Relations Authority. Mr Bain explained his suspicions but said hewas waiting for information from the TCDC and would not bother Mr Valintine untilhe had more information.[40] In December 2018 a Smart driver gave Mr Barlow a video of recycling fromWaipa being tipped at the Thames refuse transfer station. It appears that this happenedbecause of mechanical problems with the duo-combi trucks being used to collecthousehold refuse and recycling at Waipa. A rear-loading truck with a singlecompartment had to be used. It compacted recycling and refuse together. This wasdone for about a month. Mr Barlow also gave evidence that he saw recycling andrefuse being collected in a rear loader on one occasion in April 2019.18 At [45].[41] The tipping of recyclables assumed significance in the published articles partlybecause Mr Christian was reported as having complained in August 2018 thatrecycling, which had previously provided a revenue stream for Smart, had become aliability after the Chinese government had announced that the country would no longerprocess other countries' recycling. The TCDC was among the local authorities whichwere said to have refused to compensate Smart for the costs it was now incurring toprocess recycling.[42] In early 2019 a memory stick was delivered anonymously to Mr Bain'sletterbox. He explained that it contained Smart/TCDC data for the 2018 calendar year,including monthly claims and supporting refuse transfer station reports. Walker Jrecorded Mr Bain's explanation of what the data comprised:19(a) The monthly claim is an Excel-based report detailing volumes andcosts of Smart's council-related activities including kerbsidecollections and RTS management.(b) Revenue rebated from Smart back to TCDC depends on incomingvolumes to each RTS. Freight costs of moving waste from the RTS tothe landfill was dependent on volumes carted.(c) Variable costs in the claims included things like removal anddestruction of hazardous waste.(d) The greater financial component to the claim was comprised of thehandling of the solid waste.(e) While there will be monthly variances, year on year trends andvolumes tend to be remain relatively static. Moderate annualincreases would be expected with population growth.(f) The data populating the solid waste component of the claim is takenfrom the RTS transaction reports.(g) The RTS transaction reports confirm for each load disposed of, theRTS site, volumes of incoming waste and product ID code of thatwaste.(h) The product ID shows whether the load is revenue to the council.(i) Information from the RTS transaction reports is sourced from theweighbridges. Most of the information comes directly from the RTSbut supervisors can manually add, delete or alter entries. The pricescharged by TCDC for different types of waste is captured in the RTStransaction reports produced by a programme known as Sensortronics.19 At [49]–[50].(j) TCDC pays the costs of all waste sent from the RTS sites to the Tirohialandfill so the make-up of the incoming volumes captured on the RTStransaction report needs to be reconciled against the volume of wastebeing sent to the landfill as stated in the Tirohia report.(k) The RTS transaction reports and the Tirohia report are crucial forSmart to accurately assess its claims and for TCDC to validate theclaim.[50] Messrs Bain and Barlow's first impressions were that theSmart/TCDC data lacked transparency in so far as it related to TCDC. Therewas not enough information to complete a full reconciliation of the paymentclaims presented by Smart. They also considered that the Smart/TCDC dataappeared to show volumes of waste coming into the RTS sites for TCDCwhich were significantly lower than the volumes entering Tirohia from thesame site. It was inexplicable to them that an RTS would be sending out morevolume of waste than it was taking in.[43] Walker J recounted the steps taken by Mr Bain in January and February 2019to get the TCDC to address his concerns:20[51] On 8 January 2019, Messrs Bain and Barlow met again withMr Hinson and another TCDC representative. It is not clear from the evidencewhether this was before or after receipt of the anonymously deliveredSmart/TCDC data. Coastal Bins followed up the meeting with an emailrecording what had been discussed and expressing disappointment at the lackof progress.[52] Mr Bain's habit of following up meetings in writing provided a usefulcontemporaneous record of what was discussed. No internal TCDC meetingnotes or records were produced to the Court. In the absence of correction byTCDC, the Court can infer that these records were generally accurate.[53] One of the items discussed was the request by Coastal Bins tonegotiate commercial tipping to RTS sites at a price that covers the RTSoperational costs including disposal at landfill, cartage to landfill, Smart'smanagement fee plus a margin. In short, a form of tolling. TCDC declined tonegotiate. Mr Hinson said TCDC could not accept commercial contractorsdisposing at RTS sites. Mr Bain's summary also records that Mr Hinsonadvised that the Solid Waste Contract has "grey areas" that TCDC needed towork through with Smart. The letter concluded:We are [sic] tried our very best to not only highlight theseirregularities to TCDC but to also work with you in giving you timeto address these issues. We now have no confidence that TCDC willin fact create a "level playing field" with all local waste contractor[s]and strongly feel that TCDC is creating an anti-competitiveenvironment.We also discussed the various enquiry [sic] we have had from mediain recent weeks and our position of "no comment to date". The effect20 Footnote omitted.of TCDC allowing Smart preferential treatment and at the expense ofthe ratepayer is beginning to financially impact on our business andwe feel compelled to explore other outlets to convince TCDC to createan impartial environment.[54] On the same date, Mr Bain emailed the CEO reiteratingdisappointment at TCDC's response. That email closes with a statement that"we are contemplating involving Media to gain public support to get theseissues addressed".[55] TCDC's CEO responded on 9 January 2019 citing the ongoingcontractual dispute resolution process with Smart.[56] A further meeting took place on 10 January 2019. Mr Bain, writingto TCDC afterwards suggested that he was contemplating a complaint to theOffice of the Auditor-General but that the meeting had given Coastal Binssome confidence that TCDC is aware and monitoring the cost to TCDCratepayers. Mr Bain referred to videos of Smart sending TCDC kerbsiderecycling to waste. More correspondence followed between 13 January 2019and 23 January 2019, among other things resurrecting the earlier LGOIMArequest.[57] It must have been clear to TCDC by then that Mr Bain's tenacitymeant that these issues would not be going away. Mr Bain's own frustrationat the TCDC lack of response led him to email the CEO of TCDC on18 January 2019 saying that "Smart's constant cheating of the Shared Servicescontract" was bigger than TCDC was aware. He alleged that Smart wastipping Waipa kerbside recycling at the Thames RTS at night, that TCDC staffwere aware of Smart's cheating and yet it continued.[58] Messrs Barlow and Bain met a number of times with in-house legalcounsel at TCDC. Among the various concerns Mr Bain raised was that thedelay in responding to LGOIMA requests was impeding substantiation of theclaims made by Coastal Bins.[59] Coastal Bins continued to make further LGOIMA requests between29 January 2019 and 6 February 2019.[60] On 20 February 2019, following the hearing some months earlier, theERA determined that Mr Christian had disparaged Mr Bain in breach of thesettlement agreement. It rejected a claim by Mr Bain that Smart owed furthermonies under the settlement agreement but accepted that Mr Bain had notbreached any restraint of trade. The Authority awarded damages to Mr Bain.Smart appealed.[61] On 22 February 2019, TCDC responded to various LGOIMArequests. The most material information in that response was that there wasno documented agreement with Smart for the "tolling" of commercial wasteat any TCDC RTS site, there is no afterhours access to the RTS unless by priorarrangement with TCDC and that no one other than the RTS operator shouldbe in the RTS afterhours unless they have permission from TCDC. Mr Bainconsidered the answers evasive. He sent follow-up requests on22 February 2019.[62] Concerned that they were not getting any traction, Mr Bain laid acomplaint with the Office of the Auditor-General.[44] It can be seen that the TCDC was not very forthcoming with information orwilling to allow Coastal Bins to tip commercial waste on terms similar to thoseenjoyed by Smart. But it did confirm that there was no documented tollingarrangement and no after-hours access to the refuse transfer station without permissionof the TCDC.[45] Mr Bain was not told that the TCDC had taken the issue up with Smart,instructing Smart in February 2019 to discontinue tolling and pay the full rate payableunder the Solid Waste Contract. The Judge found that:[63] In the background, but not known to Mr Bain, TCDC's in-housecounsel had written to Smart on 12 February 2019. He pointed out that theconcept of Smart paying a lower rate compared to those paid by others forCommercial Waste disposal was never included within the signed Solid WasteContract. The letter stated that "[o]ur expectation is that Smart willdiscontinue this practice forthwith and pay the full rate until further notice".Smart's response was that TCDC's decision was not based on all the facts,which it was currently gathering, and TCDC ought not take any precipitousaction. The reply was that it was Smart that had taken precipitous action inunilaterally decid[ing] to grant itself a reduced disposal rate for commercialwaste.[46] Around the same time, Mr Bain contacted Mr Valintine again and met with himin Auckland. Mr Valintine went to Thames to be briefed by Messrs Bain and Barlowand then approached NZME to get an expression of interest in publishing.[47] The Judge recounted the steps taken by Mr Valintine to verify the story afterNZME confirmed its interest. We can adopt the following extract from her judgmentbecause the steps taken are not in dispute. (The stance taken by Mr Patterson ratherwas that more ought to have been done having regard to what he characterised asvested interests of many of the people to whom Mr Valintine spoke to verify the story.)The Judge's recounting was:21[65] It was after that briefing session with Messrs Bain and Barlow thatMr Valintine contacted Miriyana Alexander, then Head of Premium Contentfor the New Zealand Herald. On 4 March 2019, Mr Valintine sent through a21 Footnotes omitted.rough outline of what he was investigating to get an indication of interest.Ms Alexander responded confirming the New Zealand Herald's interest.[66] Mr Valintine's first step was a LGOIMA request to TCDC. Heconsulted with Mr Bain about the content and framing of the request to avoidduplication and to get guidance on the most useful information to seek.Mr Valintine specifically advised in the request that he was working on anarticle to be published in the New Zealand Herald and potentially a televisiondocumentary.[67] Mr Valintine coincidentally knew TCDC's communications manager,Laurna White. The first LGOIMA response from TCDC to Mr Valintine wassent by Ms White on 13 March 2019 along with an invitation to call her todiscuss further. TCDC's formal response was that it could not disclose therequested documents because TCDC was in commercial negotiations withSmart. However, based on his telephone call with Ms White, Mr Valintinewas expecting TCDC to be in a position to provide more information in acouple of weeks. He thought that when this further information arrived it maywell avoid any need for a major investigation.[68] That did not prove to be the case. As the two weeks dragged intofurther weeks, Mr Valintine spent more time with Messrs Bain and Barlowworking through their extrapolation of information from the Smart/TCDCdata. At the same time he started interviewing key people face to face. Someof those contacts, such as former Smart drivers and operational personnel wereorganised by Mr Bain. Others were sourced by Mr Valintine. Manyinterviewees sought confidentiality protection. Materially, Mr Valintine alsoestablished a confidential source within TCDC.[69] On 27 March 2019, Mr Valintine emailed a story outline toMs Alexander. He expressed confidence in the story due to the weight ofdocumentation and his "deep throat" within TCDC. He asked for a "ballparkfigure" if she was interested. I take this to mean the freelance fee forMr Valintine. The outline is relatively brief and Mr Valintine includes whathe called a "disclaimer" reiterating that there is bad blood between his "initialsource and main protagonist" and his former boss at Smart.[70] [NZME] responded with queries and pointed out a potential fish-hookin respect of the provenance of the documentary material and videos.Mr Valintine suggested that a public interest argument would protect thedocuments provided by "whistle-blowers". There were further exchangesbetween NZME and Mr Valintine.[72] By this time, the editor/owner of a local newspaper, the Informer, washovering in the background and also looking to publish a story on these issues.I discern that he was in regular contact with Mr Bain although precisely howthat came about was not clear. The editor sent a draft opinion piece to TCDCregarding Smart and copied the draft to both Messrs Valintine and Bain withwhom he had been in contact. He asked TCDC for information to verify theinformation. He specifically queried whether Smart was paying a lower ratefor disposing of third-party waste at TCDC's RTS sites.[73] During this investigative period, Mr Valintine sent to Mr Bain variousdrafts of the Articles. He asked [Mr] Bain and Mr Barlow to fact check thedrafts. He was also communicating with NZME, updating Ms Alexander ashe went and providing drafts. A "first draft" was sent to Ms Alexander on10 April 2019. Mr Valintine described that draft as containing the keyinformation for NZME to begin addressing both editorial and legal issuesbefore he approached Smart and TCDC given the complexity of the subjectmatter. He pointed out that his contact was willing to meet with her and anyexperts to discuss questions or challenges, something which he recommended.He explained that, at that stage, he had not broken the story out into a newsarticle and feature because TCDC and the "company CEO" will form asignificant part of any feature.[74] Ms Alexander responded a few days later. She wrote, "Amazingstorylooking great, and sounds like you have all the corroboration ". Shesuggested that she was happy to meet with him and his "contact" and askedMr Valintine for his view of the optimal timing for publication.[75] The upshot was that Ms Alexander suggested that Mr Valintine forgeon and write it all up without going to Smart or TCDC yet. She added that, atthat point, she would put the news and feature stories "in front of our lawyersand tell them what corroboration we had, and get the all-clear from them".[76] In early May 2019, Mr Valintine reported to NZME that he wasrestructuring and rewriting following receipt of new documents and otherinterviews. He set out some of the developments in his investigation. He alsoreported that his main contact had been in touch with the Auditor-General'soffice which he described as helpful to a news story should that office beginan investigation.[77] On 21 May 2019, Mr Valintine emailed Ms Alexander with a furtherdraft feature and news story. He stated:Obviously there are a number of legals to consider and I am happy tomeet and to provide documentation and sources[.] In all I interviewedover ten people involved mostly existing or former senior managersand staff from both sides. The documentation is literally hundreds ofthousands of spreadsheet lines. It would probably be helpful at somestage for you to meet the main source who with, other former staffmembers took me through the complicated web of documents andextracted the information. He is happy to come up and go throughspreadsheets with any expert you can provide.[78] Mr Valintine added that "we still have to go to the council and thecompany".[79] I pause to interpolate that the various iterative drafts underwent manychanges but the key allegations remained substantially the same from theinitial stages right through to publication.[80] On 12 June 2019, Mr Valintine sought comment from Mr Christian.There was a lengthy text exchange in which Mr Christian vigorously deniedthe allegations. Mr Valintine also emailed Todd McLeay, the new chiefexecutive of Smart. He sent to Mr McLeay a detailed list of questions andfactual assertions and sought comment from Smart. Mr McLeay toldMr Valintine that the Solid Waste Contract prevented him from talking withoutthe approval of TCDC. Mr Valintine's evidence was that Mr McLeayundertook to inquire about a release from TCDC but never came back to him.[81] Around this time, Mr Valintine approached Ms White expressingconcern that TCDC was writing Mr Bain off as a disgruntled former employeeand dismissing his claims as baseless. Mr Valintine urged Ms White to arrangea meeting with the CEO and a manager of the Solid Waste Contract so thatMr Bain could present his evidence to TCDC managers. Mr Valintine madeit clear that meeting was conditional on the CEO of TCDC attending. He saidthat he would bring Mr Bain to take people through the spreadsheets and pivottables.[82] The meeting was scheduled to take place on 12 June 2019. On theway to the meeting, Ms White contacted Mr Valintine to says that the CEO ofTCDC could not and would not meet and that no-one from the Solid WasteContract would attend either. Instead, the meeting would be with Ms Whiteand newly appointed in-house counsel.[83] Although the stipulated condition for meeting had not been met,Messrs Bain and Valintine decided to attend anyway. Neither regarded themeeting as in any way successful. However, Ms White wrote to Mr Valintinethe following day. She described the meeting as productive. She included inthat letter a statement for publication. That statement said, in part:Thank you for the meeting to provide us with specific documentedinformation and evidence that raises some very serious allegations,which will help with us now investigate, analyse and take furtheradvice.We have been working with appropriate authorities for some time toidentify and validate any evidence of whether illegal activity hasoccurred or whether any contractual breaches have become apparent.[84] Mr Valintine reported developments to NZME. Mr Bain meanwhilealso reported on the meeting to Gabrielle Wheddon from the Office of theAuditor-General. He explained that he had taken the TCDC representativesthrough four months of the Smart/TCDC data to show the disparity betweenlandfill tonnes and RTS incoming tonnes; that Smart had only included atransaction report for November and December and the differences in RTS"captured revenue" and the RTS rebate amount paid back to TCDC by Smart.He had also shown to TCDC what he considered was proof of the CommercialWaste drop off rate at $77.05 per tonne plus GST.[85] In early July 2019, Mr Bain was contacted by a private investigatorengaged by TCDC. He met with the investigator, Michael Campbell, alongwith Mr Valintine. According to Mr Valintine this was an off-the-recorddiscussion and not attributable although Mr Campbell would be reporting thediscussion to TCDC.[86] Mr Campbell went on to speak with some of the same sources towhom Mr Valintine had spoken. Mr Valintine was present when some of thosesources were interviewed by Mr Campbell.[48] It is apparent that between February and August 2019 Mr Valintine followed aprocess in which he worked closely with Messrs Bain and Barlow to analyse the dataand asked them to fact-check his drafts. We return to the Judge's findings about thisat [74] below because they are central to her conclusion that Mr Bain was responsiblefor the articles as a joint tortfeasor.22[49] The Judge also stated in the above passage that Mr Valintine interviewed otherpeople to verify the story. Later in her judgment the Judge accepted his evidence thathe had interviewed 13 others.23 Some worked for Smart as drivers or managers, orhad previously done so. Some had been identified by Messrs Bain and Barlow. Otherswere identified by Mr Valintine, and one of those was a confidential source within theTCDC. The Judge later found that Mr Valintine also sought to validate theSmart/TCDC data by obtaining a copy from his confidential TCDC source.24Mr Valintine and Mr Bain also went to industry experts who generally confirmed thereliability of Mr Bain's findings.25 Walker J found that Mr Valintine was justified inhaving confidence that the data had not been tampered with.26[50] It can also be seen from the Judge's recounting that Mr Valintine arranged ameeting between the TCDC and Mr Bain at which it appears Mr Bain took TCDCrepresentatives through the Smart/TCDC data to demonstrate discrepancies inamounts paid. Messrs Bain and Valintine had (separately) made a series of officialinformation requests under the Local Government Official Information and MeetingsAct 1987. The Judge later found that the TCDC's responses generally to informationrequests exhibited two themes: its commercial interests justified withholdinginformation and it would not respond while it was investigating matters itself.27 Shefound it unsurprising that Mr Valintine formed the view that it was almost impossibleto get any useful information from the TCDC and also that what information it didprovide was often ambiguous, confusing and sometimes inaccurate.22 At [203].23 At [296].24 At [299].25 At [309].26 At [318].27 At [325].[51] It will also be seen that NZME was kept informed of the efforts being made toverify the story and was made aware that there was bad blood between Mr Bain andMr Christian. The Judge found that NZME took legal advice.28 NZME also claimedto have a rigorous process for checking stories submitted by freelance journalists. TheJudge found that NZME did not follow the process on this occasion.29 However, shealso found that Mr Bain was given to understand that there would be an independentchecking process which included legal advice.30[52] Further, Mr Valintine sought comment from Mr Christian before publication,receiving vigorous denials. He also emailed the new Chief Executive of Smart with adetailed list of questions and factual assertions. Walker J found that Mr Valintine putthe substance of the allegations to Mr Christian.31 Mr Christian responded but whenMr Valintine sought clarification he was directed to Mr McLeay, the Smart ChiefExecutive. Mr McLeay did not provide any substantive response to the list ofquestions sent by Mr Valintine, and it appears he assumed the story had gone awayuntil Mr Valintine texted him on the eve of publication to tell him publication wasimminent. The Judge found that Smart and Mr Christian had been given a reasonableopportunity to respond.32The Articles[53] The News Article and the Feature Article were published in the same issue ofthe Weekend Herald, one as a lead story and the other as a more detailed inside story.We summarise them briefly, not to attribute meanings but simply to identify passageswhich became the subject of the pleadings.The News Article[54] The News Article stated that Smart was being investigated for "giving itself ahuge discount at council-owned transfer stations it manages". The TCDC wasinvestigating whether the discount was introduced without advising the TCDC. An28 At [89].29 At [358].30 At [357].31 At [373].32 At [372].unnamed former "member of Christian's team" was quoted as saying that the"discount" was introduced after the company failed to get compensation for theChinese ban on taking and paying for recycling, and that the TCDC was not consultedor advised but the information was discoverable in monthly claims.[55] The News Article also stated that Smart was also being probed for "hundredsof tonnes of unaccounted-for waste and allegations of clandestine after-hoursdumping". Smart had keys cut for its commercial drivers who, it was claimed, "couldaccess the transfer stations after hours when weighbridges were not staffed".[56] Mr Bain was identified as a former employee and competitor of Smart andquoted saying that the discounts were a breach of contract and a "rort on ratepayers"which he reckoned had already cost hundreds of thousands of dollars and couldultimately cost as much as a million. He stated that either the TCDC was "utterlyincompetent" or "something very underhanded" had gone on. Mr Christian wasquoted, denying wrongdoing and accusing Mr Bain of running a gutter campaign.Mr Bain conceded there was "bad blood" but said that all Mr Christian had to do was"open the books to experts and it will be very clear who is right and who is wrong".The article recorded that a detailed list of questions had been sent to Smart's new ChiefExecutive, who declined to comment.The Feature Article[57] The Feature Article began with the topic of clandestine dumping, describing aSmart commercial driver pulling up at the Thames refuse transfer station after hoursand unlocking the gate with a key he should not have to tip his load of commercialwaste. It quoted a nearby resident to the effect that it was "yet another clandestineafter-hours load" and stated that it was just one of "hundreds of loads" that Smartwould allegedly dump after hours, avoiding weighbridge systems that are supposed toensure accurate records and payments. It also noted clear evidence of"trashed recycling" and hundreds of tonnes of unaccounted-for waste. A TCDCsource confirmed that by the end of August 2018 Smart had dumped 245 tonnes ofcommercial waste at Thames. Almost two-thirds of Smart commercial loads were notcaptured by weighbridge computers. A Smart driver explained that weights would berecorded by looking at the computer screen through the kiosk window and the weightswould later be uploaded manually, but sometimes he could not see the computerscreen, or it was too dark and he wouldn't bother. TCDC records showed that, inNovember 2018, 63 of 80 commercial loads were not captured by kiosk staff but wereentered manually afterward without independent verification.[58] The Feature Article also stated that even during opening hours when loads wererecorded by weighbridge computers, Smart commercial trucks were paying less thanhalf the price recorded on printouts. A senior Smart manager at the time (not Mr Bain)confirmed that in May 2018 the company altered spreadsheet data, giving itscommercial drivers a large discount, and had not told the TCDC because theinformation was discoverable in monthly claims.[59] Mr Bain was quoted saying that Smart "apparently gave itself a huge discount,which breached its contract, and the council was totally unaware it was being rippedoff for over a year".[60] Mr Christian was quoted, denying after-hours dumping and insisting that Smartwould not engage in clandestine dumping.[61] The Feature Article referred to a video taken by a driver showing kerbsiderecycling from Waipa being tipped at Thames. He stated that he did "30 tonnes in justone month".[62] The Chinese decision in 2018 to ban other countries' recycling was identifiedas a motive. Mr Christian was quoted saying at that time that the decision was costingSmart and very few of its client councils were willing to help.Events after publication[63] NZME deactivated the online articles on 8 August 2019. Mr Christian broughtproceedings a month later.[64] As noted, the TCDC engaged Morrison Low and PwC to investigate.Morrison Low provided a report dated February 2020. Their conclusions were that:(a) Smart had not been paying the full commercial rate for commercialdumping at Tirohia. The shortfall for the year from May 2018 was$267,141.03.(b) Almost 60 per cent of Smart commercial loads at Tirohia in the periodJanuary 2018 to May 2019 had been entered manually as "super"entries. No conclusions could be drawn about the accuracy of theseentries. Presumably for that reason, Morrison Low recommended thatthe practice should not continue.(c) A significant minority — 4,682 or 23.5 per cent — of Smart truckmovements between January 2017 and May 2019 had no associatedweighbridge dockets and 1,897 of these carried commercial loads.(d) There was an unexplained variance between tonnes of waste enteringthe Thames refuse transfer station and tonnes leaving it, indicating thatadditional tonnes were entering without crossing the weighbridge.Over a 23-month period the difference appeared to be aboutnine per cent, but this estimate relied on subjective assumptions madeby Morrison Low. Rubbish illegally dumped at the refuse transferstation gate after hours would account for only a very small proportionof the discrepancy. But there could also be benign explanations, suchas inconsistent recording, loss of weight due to compaction andmoisture loss, and separation of green waste or reusable material fromthe refuse stream at the transfer station. The variance could not bedefinitively explained. Overall, there was no clear indication that thequantity of unaccounted-for tonnes was significant.[65] PwC reported on 16 April 2020. It appears that PwC defined their brief aswhether it could be shown beyond reasonable doubt that Smart had committed fraud.By reference principally to the emails sent by Smart before tolling began, PwCconcluded that Smart could argue that it had an honest belief that it could dumpcommercial waste at an agreed discount rate. PwC stated that Morrison Low hadfound there was no significant unaccounted-for waste. That statement was not strictlyaccurate. Morrison Low did not find that a variation of 9 per cent was insignificant.They found no clear indication that the quantity of unaccounted-for waste wassignificant having regard to available explanations that did not implicate Smart inwrongdoing.[66] Mr Christian settled his claim against NZME and Mr Valintine.On 6 November 2021 NZME published a retraction and apology which included thefollowing statements: NZME has now received documentation which indicates that the MorrisonLow and PWC investigative reports concluded (in summary):a. Smart Environmental Limited engaged in correspondence with the Councilin relation to its commercial waste disposal fees from around April 2018;b. Smart Environmental Limited's tolling fees were charged in reliance onthat 2018 correspondence; andc. While there were discrepancies in relation to the waste tonnages enteringthe Thames-Coromandel RTS sites, based on the information provided to theinvestigators, the discrepancies did not appear to be significant. The Councilpublished its findings in response to the allegations in the articles on11 May 2020.NZME understands that Mr Christian was not interviewed by Morrison Low,PWC or the private investigator in relation to these matters.NZME acknowledges that Mr Christian has enjoyed a justifiable and verygood reputation in the community including as a result of his success inbusiness. NZME also acknowledges and apologises for any damage toMr Christian's and Smart's reputation and distress Mr Christian may havesuffered through publication of the articles.NZME will not be republishing the articles and unreservedly withdraws anyallegations of wrongdoing against Smart and Mr Christian contained withinthem.The issues on appeal[67] The liability issues before Walker J were whether: Mr Bain was liable in lawfor the Articles, they conveyed any of the defamatory ordinary and natural meaningspleaded, Mr Bain could make out the defence of responsible communication on amatter of public interest, and he could make out the defence of honest opinion.33 These33 At [97].issues all remain live on appeal and cross-appeal, along with costs in the High Court,which were the subject of a later judgment.34Mr Bain's liability in law for the ArticlesThe Judge's reasons[68] The Judge found, and it is not now in dispute, that the pleaded claim againstMr Bain was that he was responsible not only for quotes attributed to him in theArticles but also for publication of the Articles as a whole.35 The primary publisherwas NZME, which retained control over the content and the act of publication.36Mr Christian argued that Mr Bain procured and played a substantial part in having theArticles published.37 Trial counsel for Mr Bain responded that the Articles overallwere not based on statements made by Mr Bain, who was only one of more than15 sources.38 Mr Valintine conducted his own investigation and he and/or NZMEmaintained editorial control. It was Mr Valintine who inserted some of the elementsrelied on for the defamatory meanings, such as a reference to the television showThe Sopranos.[69] Walker J began her analysis by citing Gatley on Libel and Slander for theproposition that at common law all those who participated in, secured or authorised adefamatory publication are jointly and severally liable for it.39 She found support forthis proposition in two English decisions, Bunt v Tilley and Bataille v Newland,40 andshe noted that the same approach had been taken in two recent New Zealand decisions:Newton v Dunn and Sellmann v Slater.41 She recognised that most of these decisionswere interlocutory and in none of them was the primary publisher an independent34 Costs judgment, above n 7.35 Liability judgment, above n 1, at [183] and [200]–[203].36 At [100].37 At [115].38 At [117].39 At [119] citing Alastair Mullis and Richard Parkes (eds) Gatley on Libel and Slander (12th ed,Sweet & Maxwell, London, 2013) at [6.10] and [6.11].40 Liability judgment, above n 1, at [121] citing Bunt v Tilley [2006] EWHC 407 (QB), [2007]1 WLR 1234; and Bataille v Newland [2002] EWHC 1692 (QB).41 Liability judgment, above n 1, at [125]–[130] citing Newton v Dunn [2017] NZHC 2083, (2017)14 NZELR 621; and Sellman v Slater [2017] NZHC 2392, [2018] 2 NZLR 218.media organisation.42 She found that NZME was not Mr Bain's agent; specifically, hewas never able to authorise, instruct or direct NZME.43[70] However, the Judge followed Australian authority to the effect that it wassufficient if Mr Bain approved the final form in which the defamatory statements werepublished.44[71] The Judge recognised that while a journalist is sufficiently close todissemination by a commercial publisher to share liability as a joint tortfeasor, thejournalist's source is in a different position.45 Sources are protected by the newspaperrule (a news media organisation which is sued will not be ordered to disclose itssources before trial)46 and s 68 of the Evidence Act 2006 (protecting, within limits,promises of confidentiality made by journalists to their sources). An overly inclusiveapproach could deter sources and have a chilling effect on freedom of expression.47 Amere source is not liable, for they normally lack any control over the final form of thepublication.48 The real question was whether Mr Bain was more than a source.49[72] The Judge surveyed the evidence and answered that question affirmatively.She began by finding that Mr Bain had sought to use the threat of publicity to pressurethe TCDC,50 and when that did not work he tipped off Mr Valintine, seeking to get thestory published.51 However, the tip would not have been enough.52 Nor was hisprovision and analysis of the Smart/TCDC data.53 Nor was his identification of otherpeople whom Mr Valintine might interview and his presence when some of them were42 Liability judgment, above n 1, at [131] and [133].43 At [133].44 At [134]–[140] citing Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 (SC); FairfaxMedia Publications Pty Ltd v Voller [2021] HCA 27, (2021) 392 ALR 540; Google LLC v Defteros[2022] HCA 27, (2022) 403 ALR 434; Zeccola v Fairfax Media Publications Pty Ltd (No 3) [2015]NSWSC 1007; and Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, (2018) 356 ALR564.45 Liability judgment, above n 1, at [144]–[145].46 High Court Rules 2016, r 8.46.47 Liability judgment, above n 1, at [146].48 At [147]–[148] citing Bataille v Newland, above n 40, at [25].49 Liability judgment, above n 1, at [149].50 At [175].51 At [174].52 At [176].53 At [177].interviewed.54 She further accepted that Mr Valintine had many other sources for theArticles.55 Some of the sources gave evidence and, elsewhere in her judgment, she byand large accepted their accounts.56 But they fulfilled a "secondary role—tocorroborate Mr Bain's hypotheses".57 She found their involvement a neutral factor inher assessment of Mr Bain's responsibility.58[73] The decisive considerations for the Judge were that Mr Bain knew andapproved of the entire content of the Articles and actively encouraged Mr Valintine ateach step.59 That sufficed to make him liable as a joint tortfeasor. We set out herfindings:60[184] On 1 March 2019, three days before Mr Valintine pitched a potentialstory to NZME, he sent an email to Mr Bain. There was an exchange ofmessages between the pair:Mr Bain: Lost your call can you email it to meMr Valintine: Will doMr Valintine: SentMr Bain: You covered it wellMr Valintine: What have I missed outadding trucks over xmashold putting rubbish and recycled in same truck to the embarrassmentof driversanything else[185] Neither Mr Bain nor Mr Valintine have discovered the email referredto in this text exchange. But, on 4 March 2019, Mr Valintine emailed MiriyanaAlexander, a senior editor at the Herald to seek an expression of interest inpublishing a story. He referred to "early research" and set out a series ofalleged wrongdoings by Smart. That outline contained the key allegations ofafterhours dumping at transfer stations for no fee; dumping of recycling andTCDC's failure to audit waste management contracts and challenge reportingdiscrepancies. This was undoubtedly the outline Mr Bain had 'approved' theday before.[186] Then, on 24 March 2019, after a few weeks of back and forth, Mr Bainmessaged Mr Valintine saying, " I reckon guns loaded with enough ammonow so pull the trigger when you ready". I infer that this means go ahead andwrite the story.54 At [177].55 At [181].56 See for example [305]–[309] discussing the evidence of industry expert Mr Lindsay, and [333]discussing the evidence of former Smart employee and current Coastal Bins employee Mr Cox.57 At [181].58 At [182].59 At [183].60 Footnote omitted.[187] A few days later, Mr Valintine emailed a story outline to Ms Alexanderat the Herald to gauge her level of interest. The brief story outline was headed"A load of Rubbish". It alleged deliberate contamination of recycling anddumping of recycling; dumping after hours at RTS sites leaving TCDC andratepayers bearing processing costs; issue of keys to Smart drivers forafter-hours access; and unexplained massive volume increases in waste fromRTS sites to landfill.[188] On 10 April 2019, Messrs Bain and Valintine exchanged emails withthe attachment "Herald draft .docx" The attachment as discovered byMr Valintine is headed "Draft Murray". It reads like a very early iteration ofthe news article. It shows Mr Bain's awareness of the contents of the proposedarticle and its various iterations but I do not infer that the draft was composedby Mr Bain.[189] On 12 April 2019, Mr Valintine emailed a draft "feature story" toMr Bain. This was headed "The Ghost Trucks". The email said "Hi Murray– here is some homework you asked for? Can you go through and fact checkthe scenarios". Mr Valintine also said in the email he was thinking of doing a"break out" story on Mr Christian to go on the same pages.[190] On 24 April 2019 Mr Valintine emailed another version of a draftarticle to Mr Bain and invited his contribution. He wrote:Here's the latest draft...remember it will have to include council andsmart so it will be a lot different but have a look and see what else youthink needs to be included. I have dropped the fire in this draft but iam open to putting it back...in any event it will have to be put toChristian.Let's discuss when I get down there.[191] On 11 May 2019, Mr Valintine emailed to Mr Bain a draft of anupdated news story which "still needs a bit of polishing" but is close. Heasked Messrs Bain and Barlow to "fact check it and add stronger commentswhich are more relevant to the new information". He added, "Thankfully wenow have enough material to make both sing".[192] On 17 May 2019, Mr Valintine sent another draft feature article toMr Bain. He wrote, "Hi Murraycan you throw some quotes in". Heindicated with placeholders where he proposed to insert the quotes fromMr Bain. He also indicated the type of comment he was seeking.[193] On 19 May 2019, Mr Bain sent a text to Mr Valintine saying "I'veread your story heaps it is a bloody masterpiece for sure. Can't wait for it togo to print".[194] In his brief, Mr Valintine explained his request in relation to seekingquotes as follows:Murray was at that stage a little impatient with the progress of thestories and asked if he could assist in any way. The quotes were inrelation to specific instances in the draft which referred to him only. Iwasn't asking him to provide quotes for other witnesses, and neitherdid he do that.My request for Murray to "throw some quotes in" was simply to getan indication of what he would likely say in the master interview thatwas always planned towards the end of the investigation. The realitywas Murray's "quotes" demonstrated he had misunderstood thecommunication and the quotes supplied were incredibly long, detailedand read like a formal media statement. They did not meet the brief,were unhelpful and were immediately discarded and never resurfacedin any form.[195] On 21 May 2019, Mr Valintine emailed a further draft and askedMr Bain to "fact check and get back to [him]".[196] On 28 June 2019, Mr Bain was asked Mr Valintine to send him "thelatest draft" after Mr Valintine told him he had sent them to the Herald. Twodays before the Articles were published on 1 August 2019, Mr Valintine textedMr Bain saying he had sent the Articles to him for a "final fact check". Whenthe Articles were published, Mr Bain texted Mr Valintine:Mate the praise is all due to you.I was merely the info supplier and you were the guy who sorted it anddid the hard yards.[74] The Judge concluded that the evidence established Messrs Valintine and Bainhad worked together with the common aim of having the Articles published.61Mr Bain approved the drafts, particularly the final draft on the eve of publication.62That being so, it was not necessary to decide whether he might have been able towithdraw or reposition his quotes or influence changes to the Articles. She added thathe had played the role of a tactical adviser to Mr Valintine and the comments attributedto him in the Articles implicitly affirmed the sting of the underlying allegations.63Submissions[75] Mr Akel argued that Mr Bain was merely one of Mr Valintine's sources, albeitone with industry expertise. In the absence of a vicarious relationship such asemployment or agency, fact-checking should not lead to liability as a publisher.Lacking control over the content of the Articles or their publication, Mr Bain couldnot be liable for them.61 At [202].62 At [198].63 At [199]–[200].[76] Addressing the facts, counsel pointed out that Mr Bain did not decide whatinformation went into the Articles and did not write a single word of them. Nor didhe direct Mr Valintine's investigation. Passages attributed to Mr Bain, as opposed toother sources, took up a small part of the text. He did not see or ratify the final formof the Articles as published and was not involved in the layout or placement orselection of photographs and headlines, he did not determine the editorial stance or"spin", and he did not decide what references would be made to Mr Christian.Contrary to the Judge's findings, Mr Bain was not invited to give feedback on theentire content of the drafts, but rather to check waste industry methodology andterminology, nor did his review amount to active encouragement and involvement inpublication. Mr Bain was not involved in parts of the News and Feature Articles thatwere pleaded as the most directly relevant sources of meanings defamatory ofMr Christian; those parts recorded Mr Christian's denials and set them againstinformation obtained from other sources. Further, Mr Valintine and NZME assumedresponsibility for ensuring the Articles were not defamatory.[77] Before this Court, Mr Akel argued that the authorities, when properlyunderstood, locate Mr Bain at the no liability end of the spectrum, citing Thiess v TCNChannel Nine Pty Ltd (No 5), Zeccola v Fairfax Media Publications Pty Ltd (No 3)and Rush v Nationwide News Pty Ltd (No 2).64[78] Turning to policy considerations, Mr Akel listed three reasons why a source'sliability should be confined to what they actually said:(a) extending liability to a source for the words of other sources (whetherquoted or not) and the journalist would have a chilling effect on freespeech;(b) holding a source liable as a publisher leads to an unacceptably largecircle of liability, encompassing anyone who might have had someinvolvement without any control over the final product; and64 Thiess v TCN Channel Nine, above n 44; Zeccola v Fairfax, above n 44; and Rush v NationwideNews, above n 44.(c) holding a source liable creates tension with the public interest defence,which places the onus on the journalist to check facts and test thecredibility of sources.The authorities[79] The general rule is that all those who participate in a defamatory publicationare jointly liable as principals:65Liability as a principal for publication of defamatory material depends uponparticipation All who are in any degree accessory to the publication of alibel, and by any means whatever conduce to the publication, are to beconsidered as principals in the act of publication: thus if one suggests illegalmatter in order that another may write or print it, and that a third may publishit, all are equally amenable for the act of publication when it has been soeffected[80] The examples given in this passage address the liability of participants in achain of publication of the same defamatory material: one suggesting it, a secondwriting it and a third publishing it. We are here concerned with liability when there issaid to be something different about the material for which each link in the chain isresponsible. Mr Bain says he is liable only for words specifically attributed to him inthe Articles written by Mr Valintine and published by NZME. Mr Christian saysMr Bain is a joint tortfeasor, responsible for all the defamatory meanings to be foundin the Articles.[81] The question in such a case is whether the defendant assumed someresponsibility for the entire publication.66 The publication must reproduce the "senseand substance" of the information provided by the defendant.67 A defendant who hascontributed material but has no control over the publishing process will not ordinarilybe found liable unless they have assented to its final form.6865 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121] (citations omitted).66 Rush v Nationwide News, above n 44, at [119]; and Bunt v Tilley, above n 40, at [21]–[22].67 Rush v Nationwide News, above n 44, at [121] citing Parkes v Prescott (1869) LR 4 Exch 169 at178; and Mohareb v Fairfax Media Publications Pty Ltd (No 3) [2017] NSWSC 645 at [34]–[38].68 Rush v Nationwide News, above n 44, at [124] citing Dank v Whittaker (No 1) [2013] NSWSC1062 at [26]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014]NSWCA 288 at [129]–[137]; and Thiess v TCN Channel Nine, above n 42, at 195.[82] As Mr Akel submitted, some cases in which a source has been found liable foran entire publication are explicable on agency principles.69 That is true, for example,of Webb v Bloch, in which a circular to wheat growers was published by a solicitor oninstructions from a committee whose objective was to obtain compensation fornegligence in handling wheat delivered to the government for sale.70 The defendantwas a member of the committee.71[83] A source who has provided information to a journalist and expressly orimplicitly agreed to having their words published by a media organisation such asNZME ordinarily cannot be held liable for the publication as a whole. Havingappreciated that their words would be reported, the source is responsible forpublication of what they said.72 But that is not to assume responsibility for everythingsaid in the publication.73 Assumption of responsibility is a question of fact. It may besufficient if the source has seen and approved of the publication in advance.74[84] Walker J found that this is not an agency case.75 That conclusion is not indispute. NZME is a media organisation which possesses the expertise andindependence one would expect of a firm in the business of publishing. It tookresponsibility, with Mr Valintine, for verifying the allegations. Mr Bain could neitherdemand nor veto publication.[85] But contrary to the tenor of Mr Akel's submissions, that is not the end of theinquiry. Mr Bain was not a mere source either. Unlike others quoted in the Articles,he did not assume responsibility only for words which he anticipated NZME wouldpublish. He was not extensively quoted, but the Articles as a whole reflected the senseand substance of his allegations of clandestine dumping, underreporting quantities ofwaste tipped, tipping of recycling and underpaying the TCDC. He was an integral partof Mr Valintine's investigation into these practices. To that extent he had some controlover the publishing process. Publication by NZME was not merely a known risk. It69 Zeccola v Fairfax, above n 42, at [18]–[20] citing Webb v Bloch (1928) 41 CLR 331.70 Webb v Block, above n 69.71 At 364 per Isaacs J.72 McManus v Beckham [2002] EWCA Civ 939, [2002] 1 WLR 2982 at [34].73 Thiess v TCN Channel Nine, above n 42, at 195.74 At 195.75 Liability judgment, above n 1, at [133].was his objective from the outset, when he approved Mr Valintine's outline to NZME.And although he did not write the text or ratify the final printed form of the Articles,including headlines and photographs, Mr Bain did see and approve of the text aspublished. He knew what was being said about and by Mr Christian.[86] For these reasons we are satisfied that Mr Bain assumed sufficientresponsibility for the substance of the allegations about Mr Christian. It is no answerthat he did not know the content was defamatory and relied on NZME to ensure it wasnot.76 That merely shows that each participant in the chain of publication had adifferent role to perform. Walker J was correct to find him jointly liable for the Articlesas a whole.Defamatory meaningThe Judge's findings[87] Walker J analysed the Articles by first inquiring whether they made defamatoryallegations about Smart, then considering whether any defamatory imputation waslevelled at Mr Christian. Mr Bain did not engage with the first question. He stood hisground on the second, denying that the Articles had the pleaded meanings vis-à-visMr Christian.77[88] With respect to the News Article, the Judge found that the ordinary reasonablereader would understand that Smart had engaged in a "rort" (in the sense of sharp anddishonest practice) against the TCDC by paying a discounted sum to dump waste atrefuse transfer stations without the TCDC's knowledge or consent, and by having itsdrivers secretly dump commercial waste to avoid dumping charges.78 She recognisedthat the primary focus was on the TCDC and Smart, with Mr Christian beingimplicated partly because the Article included his response.79 She identified aspectsof the article which implicated Mr Christian as involved in Smart's discountingactions:8076 Bunt v Tilley, above n 40, at [23].77 Liability judgment, above n 1, at [235].78 At [252].79 At [254]–[255].80 At [257].(a) the reference to "Christian's team" implying ownership of thecommercial decision by management;(b) the juxtaposition of reference to Mr Christian with the explanationfrom a former senior manager;(c) the former manager's reference to "our position" in connection withthe discoverability of the discount and Mr Christian's own referenceto "my team" and "not how we do business" (emphasis added);(d) Mr Christian's own response emphasises his personal position; and(e) the commercial explanation stated by the former "member ofChristian's team" which links the introduction to the failure to getcompensation for the Chinese ban on taking and paying for recycling.[89] Turning to the longer Feature Article, the Judge found that the overallimpression conveyed was that Smart was ripping off the TCDC by price-discountingin breach of contract, by under-recording waste dumped after hours at transfer stationswhich Smart managed, and by regular dumping of recycling at the transfer stations.81"Rip off" in this context would be understood to mean cheating the TCDC out of feesand dishonestly dumping after hours to avoid weighbridges. As with the News Article,Mr Christian was implicated in Smart's activities in the sense that he directed or wasintimately involved in them.82 This was even more obvious because of the expresslink to "the Chinese situation", reporting that Mr Christian was struggling with "badnews of his own" and had threatened legal action to force Councils to pay forrecycling.83[90] Walker J rejected the argument that Mr Christian's denial and counterattacksupplied an antidote to any defamatory sting on the grounds that the denial was toogeneral, and the fact of bad blood between Mr Christian and Mr Bain was diluted bycorroboration offered by another former manager who was not said to have adishonourable motive.8481 At [272].82 At [273].83 At [274].84 At [258].Submissions[91] Mr Akel accepted that Walker J correctly summarised the law as to defamatorymeaning.85 He focused his argument on the meanings said to be defamingMr Christian, as opposed to Smart, and argued that, because the Articles implicatedMr Christian partly through his denials and counterattack, the bane and antidoteprinciple applies.86[92] As Mr Akel emphasised, almost all the pleaded meanings for each articlefocused on Smart, as if it were the plaintiff. The pleading alleged both tier one(Smart has engaged in misconduct) and tier two (there is reason to believe Smart hasengaged in misconduct) grounds.87 Only one pleaded meaning in respect of eacharticle directly related to Mr Christian; it was that Mr Christian, as founder, formermanaging director and current director of Smart, either directed or was complicit inSmart's actions.[93] Mr Akel contended that the average reasonable reader would not conclude thatMr Christian was implicated in or guilty of any wrongdoing by Smart. There was nodirect suggestion that he instigated the activities, directed them or was intimatelyinvolved; on the contrary, he was identified as a former boss of Smart. Mr Christian'sprominently placed denials and counterattack, in which he vehemently accusedMr Bain of being an aggrieved former employee running a gutter campaign, served asthe antidote to any bane.Discussion[94] We are not persuaded that the Judge was wrong to find that the Articlesimplicated Mr Christian in Smart's actual misconduct. We agree with her that theordinary reasonable reader would take it that Mr Christian was directly responsible forthe decisions that had been taken by his "team" to engage in these practices.85 See the discussion at [204]–[209] following New Zealand Magazines v Hadlee (No 2) [2005]NZAR 621 (CA) at 625.86 As expressed by Baron Alderson in Chalmers v Payne (1835) 2 CM & R 156 at 159, applied inNew Zealand Magazines v Hadlee, above n 85, at 631.87 See APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93, [2010] 1 NZLR 315 at[15] referring to the tiers characterised in Chase v News Group Newspapers Ltd [2003] EMLR 11(CA) at [45]–[46].The Articles conveyed the impression that the decisions were made by seniormanagement. A motive for Smart's actions was located in "bad news of[Mr Christian's] own" — the Chinese decision to ban the processing of importedrecyclables — and the fact he had complained that the TCDC had refused to "comeand help us".[95] The bane and antidote principle was examined in New Zealand Magazines Ltdv Hadlee (No 2), where the defendant had published a magazine article in which aprominent female television presenter denied a rumour that she had been in a sexualrelationship with the female plaintiff. The article did not suggest that the rumour wastrue. On the contrary, it repeated the rumour only to deny it, stating "for the record"that the two women had never met.88 Blanchard J explained that:89What is involved where someone has repeated a rumour, whilst at the sametime saying that it is not so, is a weighing up or comparison of "bane" and"antidote", to adopt Alderson B's expressions in Chalmers v Payne It is aquestion of degree and competing emphasis but it may be easier to arrive atan answer where the publication contains an express disclaimer or "where theantidote consists in a statement of fact destructive of the ingredients fromwhich the bane has been brewed"[96] The essential difference here is that the supposed antidote did not come fromthe publisher or any source independent of Mr Christian. It came from Mr Christianhimself. And as the Judge found, his denials were general. There was no statementof fact which the ordinary reasonable reader would find specifically destructive of theallegations of clandestine dumping, underreporting and underpayment. The readerwould appreciate that Mr Bain had an axe to grind and a full account might not beknown until the books had been opened and official investigations completed. Butother people had corroborated his claims and NZME had chosen to publish them.[97] For these reasons we are not persuaded that Walker J was wrong to find thatthe fair-minded reader would understand the Articles to implicate Mr Christian inSmart's sharp and dishonest practices.88 New Zealand Magazines v Hadlee, above n 85, at 623.89 At 627 citing Chalmers v Payne, above n 86; and Morosi v Broadcasting Station 2GB Pty Ltd[1980] 2 NSWLR 418 (CA) at 420.Responsible communication on a matter of public interestThe defence[98] The defence of responsible communication on a matter of public interest wasrecognised by this Court in 2018, in Durie v Gardiner.90 Its elements are that thesubject matter of the publication was of public interest and the communication wasresponsible.91 The defence is not confined to journalists; rather, it is available toanyone who publishes material of public interest in any medium.92 It is for the trialjudge to decide whether it is made out.93 The onus of proof lies on the defendant.94[99] With respect to the first limb of the defence, the Court explained that:95[64] In determining whether the subject matter of the publication was ofpublic interest, the judge should step back and look at the thrust of thepublication as a whole. It is not necessary to find a separate public interestjustification for each item of information. As already mentioned, publicinterest is not confined to publications on political matters. It is also notnecessary the plaintiff be a public figure.[65] Defining what is a matter of public interest in the abstract with anyprecision is a notoriously difficult exercise. Trial judges are however likely tofind the discussion of public interest in Torstar of assistance. There it wassaid that to be of public interest the subject matter should be one invitingpublic attention, or about which the public or a segment of the public has somesubstantial concern because it affects the welfare of citizens, or one to whichconsiderable public notoriety or controversy has attached.[100] All the relevant circumstances of the publication are to inform the trial judge'sassessment of its responsibility.96 The Court explained that relevant circumstancesmay include:97(a) The seriousness of the allegation – the more serious the allegation, thegreater the degree of diligence to verify it.(b) The degree of public importance.90 Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131.91 At [58].92 At [59].93 At [61]–[62].94 At [59].95 Footnote omitted. Citing Grant v Torstar Corp 2009 SCC 61, [2009] 3 SCR 640 at [99]–[106].96 Durie v Gardiner, above n 90, at [66].97 At [67] (footnotes omitted).(c) The urgency of the matter – did the public's need to know require thedefendant to publish when it did, taking into account that news is oftena perishable commodity.(d) The reliability of any source.(e) Whether comment was sought from the plaintiff and accuratelyreported – this was described in Torstar as a core factor because itspeaks to the essential sense of fairness the defence is intended topromote. In most cases it is inherently unfair to publish defamatoryallegations of fact without giving the target an opportunity to respond.Failure to do so also heightens the risk of inaccuracy. The target maywell be able to offer relevant information beyond bare denial.(f) The tone of the publication.(g) The inclusion of defamatory statements which were not necessary tocommunicate on the matter of public interest.[101] This list is not exhaustive; in any given case other considerations may ariseand some of those listed may not.98 The assessment is to be practical and flexible.The Judge may defer to some extent to the publisher's editorial judgement, particularlyin cases involving professional editors and journalists.[102] As a matter of fact, verification might be undertaken by anyone in the chain ofpublication. In this case, for example, Mr Valintine, NZME's editors and legaladvisors and Mr Bain himself all contributed to verification efforts. Mr Bain did soprincipally by seeking information from the TCDC and identifying sources whomMr Valintine might interview.[103] Mr Patterson accepted that Mr Bain may rely on verification steps taken byNZME before publication. We agree. The subject matter of the publication being ofpublic interest, the availability of the defence turns on whether reasonable steps weretaken to verify the content. If they were, the publication struck the appropriate balancebetween protection of reputation and freedom of expression. We see no reason whythe availability of the defence for any joint tortfeasor in the chain of publication shoulddepend on the verification steps which they took themselves. The appropriate balancehas been struck if the steps taken were collectively sufficient.98 At [68].[104] The publisher's malice does not preclude reliance on the defence.99The defence is not a species of qualified privilege of the publisher which is lost ifabused. It is a new defence which rests on the public interest in the informationpublished.100[105] Mr Patterson took a slightly different point, arguing that a publication cannotpossibly be responsible in fact if the publisher was motivated by malice. In Grant vTorstar Corp the Supreme Court of Canada accepted this,101 but in Durie this Courtpreferred the view that a person who is motivated by malice may nonetheless actproperly by taking objectively reasonable steps to verify the accuracy of apublication.102 It is a question of fact. We agree. We add that, as just noted, in a casesuch as this the defence may be made out by others in the chain of publication.[106] In practice, malice is likely to be subsumed in the analysis of reasonableverification. A publisher who ought reasonably to have known of a source's malicetoward the plaintiff may well need to do more to verify the source's allegations. Inthis case Mr Bain's commercial conflict of interest and his ill-will toward Mr Christianaffected his reliability. NZME and Mr Valintine had to take these matters into accountwhen assessing his allegations and scrutinising the sources that he offered NZME.The Judge's findings[107] Walker J found that the allegations were serious and might cause significantdamage to reputation, requiring correspondingly careful verification.103 She foundthat much of Mr Valintine's research focused on verifying the conclusions of Mr Bain,who was his primary source. We have quoted at [47] above her careful factualnarrative of the verification steps taken and we have summarised at [49]–[52] herfindings about independent sources and the opportunity afforded Mr Christian tocomment.99 At [83] discussing the rationale for the Reynolds defence in English law of responsible journalismon a matter of public interest: Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL).100 Durie v Gardiner, above n 90, at [82], following Grant v Torstar Corp, above n 95, at [88]–[96]and [126].101 Grant v Torstar Corp, above n 95, at [125].102 Durie v Gardiner, above n 90, at [83].103 Liability judgment, above n 1, at [292].Public interest[108] Mr Patterson argued that there can be no public interest in a misleadingpublication. He contended that the Articles were misleading by omission in importantrespects:(a) They did not explain that the TCDC had authorised Smart and others touse refuse transfer stations after public hours but had refused to extendthe same privilege to Coastal Bins.(b) They did not disclose that recycling had been dumped for only onemonth and only because a dual bin truck had broken down; further, thedriver concerned did not allege to Mr Valintine that his instructions todump contaminated recycling came from anyone in senior managementat Smart.(c) They did not disclose that some commercial trucks had for years carriedkeys to refuse transfer stations.(d) They did not disclose that the TCDC had allegedly admitted toMr Valintine that it had authorised Smart to cut keys and distributethem to commercial drivers.(e) They did not disclose that the allegation that waste had been dumpedwithout being weighed rested on Mr Bain's analysis, or that no Smartemployee alleged that anyone at Smart had told them to bypassweighbridges.(f) They did not disclose that there may be legitimate reasons (such asafter-hours dumping at the gate) for disparities between weightsrecorded going into and out of a refuse transfer station.(g) They did not disclose that the alleged losses to the TCDC werecalculated by Mr Bain.(h) They did not disclose that it was likely the same TCDC source whoboth supplied Messrs Bain and Valintine with the data and ostensiblyconfirmed to Mr Valintine that Mr Bain's allegations were true.(i) They did not disclose that Messrs Bain and Valintine were in possessionof an email from Smart to the TCDC advising that Smart wasconsidering invoking its option to toll commercial waste through refusetransfer stations at a reduced rate. Nor did they explain that Mr Bainhad threatened to go to the media unless Coastal Bins got the same rate.(j) They did not disclose the extent of Mr Bain's relationships with thesources relied on by Mr Valintine to verify the allegations.(k) They did not disclose that all of the sources had their information"fact-checked" by Mr Bain before publication.(l) They did not disclose that Mr Bain was more than a mere source butrather was Mr Valintine's "fixer" who, among other things, arrangedthe "purported auditors" on whom Mr Valintine relied forcorroboration.[109] We do not accept the premise of these submissions, which we see as an attemptto circumscribe the defence of responsible communication on a matter of publicinterest by showing that the defamatory imputations were false by omission. The pointof the defence is that the public interest may justify a publication shown to have beeninaccurate, provided reasonable steps were taken to verify it.[110] In this case the subject matter concerned the effective workings of localgovernment and the handling of refuse and recycling. The public interest in thesematters was clear and very strong.[111] We accept that material omissions may affect the seriousness of the allegations.They may also point to a failure of verification.Verification: the data[112] Mr Patterson argued that there was no direct evidence that anyone undertookany pre-publication audit to verify the data and Mr Bain's calculations. One witness,Mr Lindsay, purported to do so but recanted in evidence. Another, Mr Lindale, failedto complete his work and was not called for reasons of alleged ill-health. A third, theunnamed Council source, had checked only one month's figures. Mr Bain revised hiscalculations before publication, producing figures sufficiently different to causeMr Valintine to query why they had changed, but no explanation was ever disclosed.Walker J was wrong to find that that the figures had been corroborated. The TCDCengaged actual experts, PwC and Morrison Cooper, whose analysis contradictedMr Bain.[113] The Judge found that the steps taken were sufficiently robust in all thecircumstances.104 We are not persuaded that she was wrong. Mr Valintine took stepsto authenticate both the data supplied to Mr Bain and the analysis, obtaining a copy ofwhat purported to be the same dataset from his contact at the TCDC.105 He could bereasonably sure Mr Bain had not altered it. Advice was taken from industry experts,Mr Lindale and Mr Lindsay. The latter had previously worked for the TCDC and wasvery familiar with the format of the data. He agreed with the findings of Messrs Bainand Barlow and confirmed his opinion to Mr Valintine. The Judge found him aqualified and reliable witness.106 Mr Valintine also obtained corroboration from hisTCDC source and Terry Kingham, formerly Smart's commercial manager, whoco-operated with some reluctance. Neither was called as a witness.[114] For the reasons given at [64]–[65] above, we are not persuaded that thesubsequent Morrison Low and PwC analyses show that the data was materially wrongor that the allegations of unaccounted-for waste and unauthorised discounting wereincorrect. Walker J reached much the same conclusions.104 At [318].105 At [299].106 At [314].Verification: the TCDC's unwillingness to disclose information[115] Mr Patterson also argued that the Judge was wrong to find that the TCDC wasunwilling to engage with Mr Valintine and Mr Bain while commercial negotiationswith Smart were ongoing and that unwillingness was a factor in their suspicion thattheir allegations were correct. He contended that in fact the TCDC co-operated withthe investigation.[116] We do not accept this submission either. As the Judge found, the TCDC didrespond to some questions. Importantly, it confirmed no tolling agreement was inplace. But the Judge also found that the TCDC took the view that its interests duringprotracted negotiations with Smart justified withholding information requested byMr Valintine and Mr Bain.107 And it also took the view that it would not respond untilits own investigations were complete. She did not criticise the TCDC, conscious thatit was not a party, but she found it unsurprising that Mr Valintine would think he wasbeing given the run-around. Importantly, she was satisfied that Mr Valintine andMr Bain did all they reasonably and responsibly could to extract information from theTCDC.108Verification: other witnesses[117] As the Judge noted, Mr Valintine also sought confirmation from Smart driversand former managers. Some gave evidence. They corroborated allegations aboutdiscounting. The Judge found them honest and generally reliable witnesses.109Verification: the tolling arrangement[118] As Mr Patterson submitted, Mr Valintine and Mr Bain were aware of the Smartemail of 10 April 2018 prior to publication. However, it remained the position that theTCDC said there was no tolling agreement. It is now common ground that the TCDCwas correct. The email did not prove otherwise. As the Judge found, it was no morethan a proposal to allow for tolling in the Solid Waste Contract.110 This is an important107 At [325].108 At [327].109 At [333], [337] and [346]–[347].110 At [351]–[352].finding. As Mr Akel submitted, Mr Christian's claim that Smart had a contractual rightto toll through refuse transfer stations lay at the heart of his attack on the Articles.Verification: involvement of Mr Valintine and NZME[119] The Judge found that Mr Bain understood that Mr Valintine, a very experiencedjournalist, and NZME would check the story and have it "legalled". He was entitledto rely on them to do so.111 In fact, NZME elected to proceed without an independentchecking process but Mr Bain was not to know that.112[120] In written submissions Mr Patterson argued that Mr Bain could not rely onNZME without first satisfying himself that all the requirements of the defence hadbeen met. His duty to do so was said to be non-delegable. The position changed inoral argument, as noted above. Mr Patterson accepted before us that Mr Bain couldrely on verification steps taken by Mr Valintine and NZME. We agree.Verification: malice[121] As noted, Mr Patterson argued that Mr Bain was motivated by malice.The Judge did not agree. When remarking briefly on the defence of honest opinionshe stated that she was "easily satisfied that Mr Bain genuinely believed theimputations in the Articles".113 She accepted that Mr Bain held personal animositytowards Mr Christian which may have spurred him on, but it did not undermine hishonest belief in the accuracy of the imputations.114 The trial Judge's advantages cometo the fore with a finding of this kind. Mr Christian has not persuaded us that she waswrong.[122] We have accepted that the fact that Mr Bain had an axe to grind affectedverification by NZME and Mr Valintine. It was necessary to verify his claims.We agree with the Judge that Mr Valintine recognised this and went to significanteffort to seek corroboration from a variety of sources.115111 At [357].112 At [358].113 At [390].114 At [391].115 At [69], [295] and [379].Verification: Mr Christian's opportunity to comment[123] Mr Patterson argued that Mr Christian was not given an adequate opportunityto respond to the allegations. He was never invited to obtain a confidentiality waiverfrom the TCDC to discuss the issues with Messrs Valintine or Bain. The TCDC reliedon the obligation of confidentiality to withhold information from them.[124] The Judge did not accept these arguments. She found, in the passage quotedat [47] above, that Mr Christian was approached more than six weeks beforepublication.116 The allegations were disclosed to him and Mr McLeay and reduced towriting. Mr Christian was invited to "open the books".117 He opted instead to directMr Valintine to Mr McLeay, who declined for confidentiality reasons to answer a longlist of questions but said he would approach the TCDC about a release. It seemsMr McLeay did not approach the TCDC. As the Judge observed, the TCDC evidentlydid not think that the confidentiality provisions precluded it from confirming that therewas no tolling agreement.118[125] In our view Mr Christian was given an ample opportunity to comment.Publication was not rushed. It appears that, as the Judge found, Mr Christian used theconfidentiality provisions of the Solid Waste Contract as a shield, so assuming a riskthat any inaccuracies would not be corrected before publication.119Verification: conclusions[126] The allegations were serious, but the subject matter was of real publicimportance. All the defamatory imputations related to the subject matter. There wasno urgency to publish but Mr Valintine did not act in haste. Rather, he went toconsiderable effort to corroborate Mr Bain's claims over a period of months. Some ofthe sources he relied upon were independent of Mr Bain and others he reasonablyfound reliable. The allegations were disclosed to Mr Christian, who was given areasonable opportunity to comment in detail.116 At [80]. See also [359].117 At [364].118 At [371].119 At [371].[127] For these reasons we agree with the Judge that the defence of responsiblecommunication on a matter of public interest was made out.[128] This conclusion should not come as a surprise. The allegations stem fromSmart's unilateral decision to commence tolling in April 2018 without, as Mr Christiannow admits, first securing the consent of the TCDC. The single most important detailin the verification process was the TCDC's confirmation that no tolling agreement wasin place. It led inevitably to questions about how Smart was able to tip commercialwaste at refuse transfer stations without paying the Gate Rate.Honest opinion[129] We need not address the honest opinion defence and we are not prepared to doso in circumstances where the trial Judge did not.The costs appealThe costs judgment[130] Walker J ordered Mr Christian to pay costs of $145,670.50 plus disbursementsin respect of the proceeding and trial.120 That was offset by an award of $13,384 toMr Christian in respect of certain interlocutory applications, the costs of which hadbeen reserved pending trial.121[131] The Judge generally set costs on a 2B basis. However, she adopted band C forchallenges to admissibility of the evidence of Messrs Bain and Valintine and for theinspection phase (which involved inspection of documents discovered by third partiesincluding the TCDC).122[132] The Judge declined to discount costs by taking an issue-by-issue approach inwhich deductions would be made for defences which did not succeed and Mr Bain'sconduct of the defence, including the late pleading of the ultimately successful defence120 Costs judgment, above n 7, at [44].121 At [45].122 At [18]–[19].and the non-disclosure of witnesses' names until briefs were exchanged, finding thatnone of these things significantly increased Mr Christian's costs.123[133] The Judge allowed Mr Bain an uplift of 25 per cent on scale costs for stepspreparatory to trial.124 She accepted that the following factors justified an uplift:125(a) the pleadings which straddled conceptually different paths to tortiousliability without clear differentiation.(b) the arcane and technical nature of the law of defamation moregenerally.(c) the novelty of the arguments around publication liability derivingfrom participation.(d) the underlying data or information at the heart of the publication anddefence was spreadsheet data comprising thousands of lines oftechnical data and evidence which introduced complexity.(e) wholesale challenges to Mr Bain's evidence.(f) challenges to the authenticity of the Smart spreadsheet data. AlthoughMr Christian was entitled in an adversarial context to take theapproach he did, this took up trial time and ultimately proved to be ared herring.The appeal[134] On appeal Mr Christian challenged the use of band C for his admissibilitychallenges and Mr Bain's inspection of third party documents. He contended thatdeductions ought to have been made for the failure of Mr Bain's joint tortfeasor andhonest opinion defences, arguing that there was a clear factual bright line which meantthat these matters did add to his own costs. He argued that the late pleading of theresponsible communication defence required that he "re-tool" his defencenotwithstanding that it had been pleaded by NZME and Mr Valintine before theysettled. The late identification of defence witnesses added significantly to theplaintiff's costs. He suggested that he might not have gone to trial had the defencebeen pleaded earlier.123 At [25]–[38].124 At [43].125 At [42] (footnote omitted).[135] Mr Christian also challenged the uplift, arguing that there was nothing novelor technical about the case, that the spreadsheets were effectively ignored during thetrial, and that the Judge had already rewarded Mr Bain for the wholesale challenges toadmissibility by adopting band C and challenges to authenticity of the spreadsheetswere reasonable and did not warrant sanction by way of an uplift.Discussion[136] It is not suggested that Walker J misdirected herself as to the applicableprinciples. She recognised that costs are discretionary, but that they must be awardedon a principled basis and ordinarily follow the result.126 She correctly held, followingWeaver v Auckland Council, that costs are ordinarily assessed "in the round", withoutdetailed analysis of the extent to which each side won or lost on each issue.127[137] When assessing the costs award, it is necessary to bear in mind what the Judgehad to say in the substantive judgment about Mr Christian's approach to the litigation.Under the heading "Preliminary—credibility and reliability of evidence" sheexamined and rejected a series of wholesale challenges made by Mr Patterson to thereliability of Mr Bain's evidence:128(a) The first was that there were signs of collusion in the briefs ofMessrs Bain and Valintine.129 The Judge did not accept that the briefs"line[d] up" and found nothing sinister in the fact that the two men hadseen and commented on one another's briefs.130(b) The second was that an adverse inference should be drawn fromMr Bain's failure to discover as many text messages and emails asmight be expected.131 The Judge found no reason to think there hadbeen a deliberate purge of electronic records.132126 At [8].127 At [30], citing Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [18].128 Liability judgment, above n 1, at [150].129 At [151].130 At [153]–[155].131 At [156].132 At [159].(c) The third was that the TCDC/Smart dataset was unreliable.133 Althoughhe is a director of Smart, Mr Christian denied knowledge of the dataand elected to put Mr Bain to proof. The Judge found that this issuetook up hearing time and was resolved by having a senior person in afinance role at the TCDC provide a sworn affidavit confirming thatMr Bain's dataset matched the TCDC's.134 Nonetheless Mr Pattersonpersisted, turning his focus to the authenticity of the dataset providedto third parties pre-publication for corroboration purposes and arguingthat Mr Bain had failed to prove a chain of custody or eliminate the riskthat someone might have modified the data.135 The Judge acceptedwhat she described as Mr Bain's careful and coherent evidence thatthere had been no corruption of or interference with the data.136[138] The Judge also rejected a collateral attack on Mr Valintine's credibility whichfocused on his use of different dates, given in affidavits sworn before trial, for thecommencement of his investigation.137 The Judge did not accept that Mr Valintine haddeliberately misled the Court. She found he had made a mistake which she attributedto a lack of care.[139] It will be seen that Mr Christian sought by collateral means to show thatMr Bain, and to a lesser extent Mr Valintine, were not honest or reliable witnesses.He failed. The Judge found that the attempts to destroy their credibility had asignificant effect on the costs of trial.138 In particular, there was no reason to doubtthe authenticity of the Smart/TCDC dataset at trial. Given his position at Smart,Mr Christian might easily have verified it himself. Instead, he challenged itsauthenticity and accuracy and needlessly put Mr Bain to proof at trial.[140] We are not persuaded that the Judge was wrong to assess costs in the round,rather than issue by issue. Nor was she wrong to find that the joint tortfeasor defencewas reasonably run and did not contribute significantly to costs. We agree with her133 At [160].134 At [161].135 At [162].136 At [163].137 At [170].138 Costs judgment, above n 7, at [18].that from an evidential perspective there is much overlap between the responsiblecommunication and honest opinion defences.139 She did not dismiss the latter defence,although she expressed reservations about it. She might reasonably find that the latepleading of the responsible communication defence did not add to Mr Christian's costsgiven that NZME and Mr Valintine had pleaded it. She did not accept that witnesseswere called and documents produced unnecessarily,140 and Mr Christian has not shownshe was wrong about that. With respect to the late disclosure of witnesses, the Judgedrew attention to a suggestion that the need to identify the sources resulted fromMr Christian's claim, disclosed in his own brief of evidence, that Mr Bain andMr Valintine had fabricated sources.141 In our view Mr Christian cannot show that theJudge was wrong to find that none of these matters significantly increased his costs soas to justify some deduction from costs awarded to Mr Bain.[141] We turn to the question whether an uplift on costs for preparatory steps waswarranted. Costs related to the dataset and wholesale challenges to Mr Bain'sevidence had already been calculated under band C. Care was necessary not todouble-count when allowing an uplift for the same matters, since the object of costs isnot to punish but to fix a reasonable contribution to costs incurred. But we have beengiven no reason to think that the award exceeded reasonable compensation for costsactually and unnecessarily incurred by Mr Bain.[142] In the end, costs are in the discretion of the trial Judge. We are not persuadedthat Walker J erred in the exercise of her discretion in this case.Disposition[143] The appeals from [2022] NZHC 3394 (liability) and [2023] NZHC 424 (costs)are dismissed[144] The cross-appeal from [2022] NZHC 3394 is dismissed.139 At [29].140 At [34].141 At [37].[145] As Mr Bain has succeeded in substance, Mr Christian must pay costs in thisCourt for a complex appeal on a band A basis with usual disbursements as fixed by theRegistrar. We allow for second counsel.Solicitors:Maxim Legal, Auckland for AppellantEdmonds Judd, Te Awamutu for Respondent