Osmose v Smith
January 24th, 2010 at 10:00 am by David FarrarThe Nelson Mail report:
Nelson MP and Government minister Nick Smith faces trial later this year in a significant defamation case.
A six-week hearing in the High Court at Auckland is scheduled to start on June 8, but Dr Smith hopes it can be resolved out of court before then.
Timber preservatives producer Osmose New Zealand began legal action in December 2005 against timber preservation scientist Robin Wakeling and Dr Smith over statements they made in July 2005 about one of its timber treatments.
The company is seeking nearly $15 million in damages.
The legal costs to date alone has been massive for Nick, let alone what the trial will cost, and if Osmose are sucessful, any damages.
Dr Wakeling published an article critical of the Building Industry Authority (BIA), now the Department of Building and Housing, for approving the use of the treatment in timber framing of houses in 2004.
Dr Smith issued a press release later the same day critical of the then-Government and BIA, along with a copy of Dr Wakeling’s article. He was interviewed on the issue on radio and television.
Osmose’s statement of claim pleaded 11 causes of action. Five were directed at Dr Wakeling – two in defamation, two for injurious falsehood and one for breach of the Fair Trading Act.
The other six were against Dr Smith for defamation and injurious falsehood but did not include an alleged breach of the FTA.
Dr Smith said yesterday the legal action had become more complex with six other parties added to the action.
“That takes a little bit of the pressure off in that there are more people to fund the defence,” he said.
The legal costs of the various parties would be well over $500,000, he said.
Ouch.
January 24th, 2010 at 10:17 am
Good to see Osmose ‘formenting happy mischief’.
Can we contribute to their legal fund?
Vote:January 24th, 2010 at 10:30 am
Poor Nick more legal costs. He just got done over by the corrupt judicial system when the Family Court held him for contempt. Contess – Maggy Wilson was Attorney General then I think. Crown Law done him good. Ouch.
Vote:January 24th, 2010 at 10:37 am
That sort of claim hurts. Even if you win you loose as the cost recovery will not cover actual costs, only about half to two thirds of actual. And if Osmose win, then what will they get? Neither Dr Wakleing or Dr Smith will have the amount claimed.
Vote:The only problem for Osmose is that DR Wakeling is very well known scientist and an expert whom I’ve instructed from time time. He knows his stuff so any thing he said will have been carefully considered.
January 24th, 2010 at 10:37 am
Poor Nick.
I hope.
Smith should resign and put all his energy into defending this action to the best of his ability – and then to paying the substantial damages from the action.
Vote:January 24th, 2010 at 10:58 am
The Family court didnt ‘do him over’ it was two judges of the high Court who convicted him of contempt over matters in the Family Court.
Of course the District Court had previously found him ‘not a credible witness’ for an employment dispute that he was party to.
Nick Smith is a complete dick head who should have stuck to landslides.
Vote:January 24th, 2010 at 11:16 am
Some days you’re the windscreen and some days you’re the bug.
Vote:January 24th, 2010 at 11:36 am
The humane thing for Neville Key to do is relieve Smith of his ministerial duties so he can fight this case.
Actually, he should also suggest Smith resigns from Parliament.
It really is a win/win situation.
Vote:January 24th, 2010 at 11:54 am
No support from his own party, or the opposition. No credibility with the Green Movement. Why is he still around- yes . He has the spport of ONE person who counts – Key.
He really should have got the job that went to Simon Upton, as head of the OECDs environment arm- in Paris no less.
Vote:January 24th, 2010 at 11:54 am
When it comes to defamation cases, only the lawyers win. Courts rarely award 100% of costs, so even if you win, you can still lose. Only the lawyers come out smiling.
Vote:January 24th, 2010 at 11:58 am
Lawyers thrive on civil litigation.
Vote:January 24th, 2010 at 12:13 pm
Actually Countess, Nick Smith has more than the support of one person. He was re-elected to the formerly Labour stronghold of Nelson at the last election, with a majority of almost eight and a half thousand. That is larger than Mr Goff’s majority in his seat.
Vote:January 24th, 2010 at 12:35 pm
I’m just wondering in what circumstances it becomes sensible from Smith to publicly say you are hoping to settle? Is he trying to bluff his opponents into court because he thinks they’ll lose by enough to pay his additional expenses for going to court?
Vote:January 24th, 2010 at 12:49 pm
I do hope Osmose wins and Smith is found guilty. It would be further proof of his incompetence and flawed, gullible personality.
And this clown is a minister of the Crown?
Vote:January 24th, 2010 at 1:11 pm
Much as we dislike Smiths politics he was acting in the interests of NZer’s and I believe will be found to be correct in this case.
Vote:We are talking the use of fairly toxic product that caused health issues within the building industry. And don’t forget he was criticizing one of Helen’s lot who failed to fix the issue. Got to give him points for that alone.
No doubt there is considerable stress on him and stress tends to screw up ones thinking.
As Tim Ellis says he was well supported in his electorate.
January 24th, 2010 at 4:54 pm
If there is one thing that will result in a ‘sea change’ of defamation laws in NZ this would be it. A bit like the Chiropractors v Singh case in England (although IMO if the incident occurred in NZ the chiropractors would have lost hands down by now). Incidentally the NZ chiropractors have threatened to sue the NZ Medical Journal but apart from some warlike mumblings on the chiropractors’ web site nothing has happened so far.
IMO, the Lange v Atkinson decision should be just as applicable to corporates as it is to politicians.
The only way Nick Smith will be leaving Parliament over this is via the bankrupcy court. If it came to that National should ram through legislation to allow him to retain his seat. I know it is anti-democratic etc but he was streets (excuse the pun) ahead in the last election and it would be quite inappropriate for him to be forced out of Parliament for doing his job (even though he might have been misguided). Labour would not have a leg to stand on over this (remember Harry Duynhoven).
Vote:January 24th, 2010 at 6:20 pm
The legal costs to date alone has been massive for Nick, let alone what the trial will cost, and if Osmose are sucessful, any damages.
All MPs should automatically have the right to Legal Aid. Call it a perk. They should also HAVE to take it. If it is good enough for those prosecuted by the State to run a defence on legal aid then it has to be good enough for those running the State, surely?
Save Nick a lot of money. Legal aid might even shell out close to $20k for such a big case.
Vote:January 24th, 2010 at 7:26 pm
I think that Osmose are involved with Light Organic Solvents to preserve wood.
Vote:I thought an organic solvent was like military intelligence; a contradiction of terms.
January 24th, 2010 at 7:53 pm
To try and find out more I did a search on ‘nick smith’ on:
http://jdo.justice.govt.nz/jdo/Search.jsp
and came up with two preliminary hearings on the matter:
http://jdo.justice.govt.nz/jdo/GetJudgment/?judgmentID=117172 (19 December 2006)
http://jdo.justice.govt.nz/jdo/GetJudgment/?judgmentID=148668 (3 December 2008)
The case is essentially a commercial spat between Osmose and Dr Wakeling (who is associated with competing interests). There are 6 other parties involved which probably includes 3 other timber firms and a PR outfit.
It would seem to me that Nick Smith is the only defendant who is not commercially involved.
The gist of the case against Nick can be found in paragraphs 22 and 24 of the first preliminary judgment. Nick defends his statement as fair comment, etc and the plaintiff argues that the defence is defeated because of ill-will etc mainly because Nick was just trying to score cheap political points.
The judge in paragraph 36 of the second preliminary judgment said:
“Osmose should give careful consideration to whether or not it seeks to pursue its
FTA claim against any of the defendants other than Dr Wakeling. The proliferation
of causes of action will not advance resolution of Osmose’s case against any of the
defendants.”
This to me is a strong indication that the judge was not too impressed with the case against Nick and was pretty well advising Osmose to drop it.
IMO Osmose should be assessing from a broad perspective where it is heading over this and this means taking proper strategic, political and PR advice and not just relying on lawyers for advice. Otherwise it could have a sort of McLibel on its hands (where McDonalds sued some protestors in London, had some legal success but wound up with a PR disaster).
It seems what Nick said was not too much out of the ordinary for what a politician would say in similar circumstances.
Thus it seems quite inappropriate to try and ‘pass judgment’ on Nick with respect to this claim at this stage, I would give him a 80 – 90% chance of successfully defending the claim and if he does, then he is totally vindicated.
Big bruv – there is not much that Nick can personally do at persent to fight the case, especially as much of the overall case has nothing to do with him personally.
Those who criticise Nick – OK he may have made some bad calls, but would his critics be the sort of battler in politics that he is. No, they would probably chicken out at the first hint of trouble.
Vote:January 24th, 2010 at 7:57 pm
peterwn
Years ago, when working at the Ashley in Greymouth I met Nick Smith.
I’m sorry.
Vote:January 3rd, 2012 at 9:50 am
Of course, when the shoe is on the other foot,. the government is only too happy to exercise a touch of judicial retribution of their own;
“The Attorney-General’s demand for nearly $14,000 in court costs from the cameraman over the ”teapot tape” could ruin the freelancer’s business, his lawyer claims.
Bradley Ambrose said he inadvertently taped a conversation between Prime Minister John Key and ACT Epsom candidate, now MP, John Banks at a media-staged event during the election campaign.
Key complained to police that the taping was illegal and Ambrose went to the High Court asking for the conversation to be declared public, meaning it would avoid police action.
Chief High Court Judge, Justice Helen Winkelmann, rejected Ambrose’s request saying she would not interfere with a police inquiry.
Now the Attorney-General has filed a memorandum in the Auckland High Court seeking $13,669.45 in costs from Ambrose for his attempt to get a High Court declaration. ”
http://www.stuff.co.nz/national/politics/6197407/Worry-over-14-000-tea-tape-costs-claim
Coffee pot, tea kettle.
Vote: