NBR wins appeal in Joyce defamation claim

The National Business Review and its publisher Todd Scott have succeeded in their appeal against a High Court ruling on a claim for defamation brought by former MP Steven Joyce.

In a judgment delivered this afternoon the Court of Appeal upheld the appeal by Fourth Estate Holdings (2012) Ltd and Scott, set aside the High Court judgment and ordered Joyce to pay costs.

In a statement, Scott expressed satisfaction with the process.

“Reason is the soul of all law. I owed it to our member subscribers and to my colleagues to challenge the jurisprudence of the High Court ruling.”

The case followed the publication by NBR of a column by political pundit Matthew Hooton in March 2018 titled “Joyce sacking first test of Bridges’ leadership”.

The column discussed the National Party leadership, won the previous week by Simon Bridges in a contest against Amy Adams, Judith Collins and Steven Joyce.

Its content in Hooton's then "Weekly Hit" column was highly critical of Joyce and recommended Bridges act decisively in changing the party’s line-up.

“Mr Bridges will fail quickly if he entertains keeping Mr Joyce in the finance role or even on the front bench. At most, he should present Mr Joyce with the same offer made in 2006 by Mr Key to Don Brash: tertiary education, mid-way along the second row,” wrote Hooton.

Joyce subsequently complained that two passages in the article were defamatory.

One said: “Using Ms Adams as a proxy, he tried and failed to introduce the so-called copper tax to subsidise his friends at Chorus”.

The other said: “It will be a terrible shame if [Mr Bridges] lacks the mettle that Mr Key showed in so brutally despatching Dr Brash and instead bows to blackmail by Mr Joyce.”

Joyce also alleged tweets later made by Scott amounted to republication of the article and were therefore also defamatory.

In the High Court, Justice Pheroze Jagose found the passages did have defamatory meaning, although not the meanings pleaded by Joyce.

His judgment of December last year also found the tweets amounted to an affirmation of the truth of Hooton’s article and were thus defamatory.

He issued a declaration that Fourth Estate Holdings and Scott were separately each liable to Joyce in defamation and ordered costs against each.

Following an Appeal Court hearing last month, Justices Forrie Miller, Brendan Brown and David Goddard found the High Court in error.

“We consider that the passages that Mr Joyce complains about, when read in context, do not convey either the meanings attributed to them by the judge or the meanings pleaded by Mr Joyce. The appeal succeeds on the ground that the passages do not convey the relevant defamatory imputations,” they said.

“It follows that Mr Joyce’s claim against Fourth Estate must fail. The passage (whether standing alone or read in conjunction with the first passage) does not convey the pleaded meaning that Mr Joyce was prepared to engage in improper conduct in pursuit of his political objectives. Nor does it convey the meaning preferred by the Judge: that Mr Joyce was prepared to engage in otherwise improper behaviour in pursuit of his (rather than his party’s) political objectives.”

Having found that neither meaning was defamatory, the Appeal Court said it did not have to consider whether it was open to the High Court to find a different defamatory meaning to that claimed by Joyce.

“This court has recognised that there may be limited circumstances in which it is appropriate for a judge to reformulate the plaintiff’s pleaded meanings, while ensuring fairness to the parties and having due regard to the importance of pleadings in defamation cases. But it seems to us that the scope for any reformulation of pleaded meanings must be narrowly confined.”

Given their findings on the text of the article the tweets were also not defamatory, the Appeal Court said.

However, the judgment did briefly address the relevant considerations.

“Bearing in mind the time that passed between the article and the three tweets (52 days for the first tweet, 96 days for the third), there is some force in the appellants’ submission that a reasonable reader of the tweets would not have remembered the detail of the article,” it said.

“The tweets would at most have been understood by a reasonable person in the relevant subset of readers as endorsing the core themes of the article concerning Mr Joyce’s competence as a Minister and his standing with his colleagues, and the allegation that he garnered only a handful of votes in the leadership contest; not the specific passages complained about and their pleaded meanings.”

The original column is available here.