Erin Leigh wins in Supreme Court
September 16th, 2011 at 1:12 pm by David FarrarKate Chapman at Stuff reports:
The woman who accused Labour MP Trevor Mallard and a top public servant of destroying her reputation has won an appeal to the Supreme Court.
In 2007, whistleblower Erin Leigh accused Mallard, then Environment Minister, of defamation.
This was after she raised questions about political interference and alleged former minister David Parker pushed for Clare Curran to be appointed to a communications role with the Ministry.
All three Labour members involved are currently sitting Members of Parliament.
At the time Mallard was asked an oral question on the matter in Parliament and spoke negatively about Leigh.
He told the House she had “repeated competence issues” and said Curran had been appointed to “fix up the mess”.
The Ministry’s then Deputy Secretary Lindsay Gow had been appointed to provide Mallard with written and oral briefings before he answered the question.
Unable to sue Mallard, who was protected by parliamentary privilege, Leigh subsequently sued Gow for defamation.
Gow contended that his written and oral communications to the minister were also covered by absolute privilege and that the claims should therefore be struck out.
But the High Court, Court of Appeal, and now Supreme Court ruled that it was a matter of qualified, not absolute, privilege.
It will be very interesting if this now proceeds to a substantive hearing. Maybe Trevor, David and Clare will have to give evidence?
September 16th, 2011 at 1:21 pm
The thuggish Mallard will always speak under the cover of parliamentary privilege. His infamous cowardly behaviour will continue, because the poor socialist MP knows no shame.
Vote:September 16th, 2011 at 1:23 pm
It would be great to see Mallard squirming in court!
Vote:September 16th, 2011 at 1:29 pm
What is qualified privilage?
Vote:September 16th, 2011 at 1:38 pm
Qualified privilege applies to fair and accurate reporting of parliamentary proceedings and means a person cannot be liable for defamation for repeating what was said under absolute privilege, unless they do so with ill intent.
This is the provision that protects media reporting on events in Parliament.
(from the Stuff article)
“In its decision released today, the Supreme Court found Gow’s interaction to be covered by qualified privilege but said he could not face a defamation claim unless Leigh could prove he acted with ill-will.”
I think the last part is possibly the most significant. Can Leigh prove ill-will by Gow?
Vote:September 16th, 2011 at 1:42 pm
Mallard is a coward and lack basic morals that he can attack a civil servant and not front up.
Vote:I hope she stiffs Gow for serious money.
That they are all involved in this merely adds to Labours lack of decent people to represent us.
September 16th, 2011 at 1:43 pm
She’d have a much better chance of proving ill-will by Mallard and Curran methinks. Still, Labour might be regretting having established a Supreme Court when things like this crop up around election time.
Vote:September 16th, 2011 at 1:45 pm
So you can lie your ass off in parliament… but whoever prodided you the bullshit you slung about can be nailed.
Fundemental problem with this idea, Tevor speak up, tell us why you are not accoutnable for lying please. We’re all interested.
Vote:September 16th, 2011 at 1:46 pm
Trev (and I know you are reading this) – You are a bully and now a proven liar. This is of course the right result, and you, and Parker need to be made an example of. You should resign as you are not suitable to be in the House or representatives and an MP. Hang your head in shame Trevor, you have been found out yet again.
Vote:September 16th, 2011 at 1:52 pm
# sthn.jeff (44) Says:
September 16th, 2011 at 1:23 pm
It would be great to see Mallard squirming in court!
you forgot “again!”
Vote:September 16th, 2011 at 1:57 pm
It’s a pity Mallard didn’t apologise to Leigh when he had the opportunity. I wonder what she thinks of Mallard.
TV3, Fri, 30 Nov 2007 12:00a.m.
Erin Leigh’s phone has been ringing hot since Trevor Mallard accused her of incompetence, after she accused the Government of political interference at the Environment Ministry.
She began to break down today, asked about the effects of Mallard’s attack.
She says she has tried to be brave, but has been “devastated by this personal and professional attack on me.”
Leigh has accused Minister David Parker of inappropriately hiring Labour Party favourite Claire Curran at the Environment Ministry in 2006.
Parker says he merely floated her name, but Leigh says he wanted his personal political agenda looked after.
Curran got the job outside of normal processes. Leigh resigned, criticised the Government, and then Mallard opened fire, saying “Erin Leigh has competence issues,”
Leigh says “He verbally assaulted me.”
Now she wants an apology from the Government.
“I would like the record set straight – but not by him, he has no credibility.”
Leigh has taken stress leave, and is not likely to return to her contract public relations job. She claims her business is ruined.
Her work has been backed by current and former colleagues.
Leigh gave 3 News a host of references today, and even the late former Prime Minister David Lange was impressed by her years ago.
And National says Mallard may have misled parliament.
Mallard’s office would not comment today on whether he will apologise, or set the record straight next week.
But he is clearly under pressure and all the signals suggest the Prime Minister is also unhappy, which might be enough for Mallard to change his mind.
Vote:September 16th, 2011 at 1:57 pm
It looks like this: http://static2.stuff.co.nz/1233108507/754/159754.jpg
Vote:September 16th, 2011 at 1:59 pm
Also today some of the urewera dirty dealings get exposed to the public. Innocent my arse
Vote:September 16th, 2011 at 1:59 pm
If she wins can Trevor be taken before the Privileges Committee for misleading the House, or telling untruths to the House, or repeating falsehoods under Privilege, or lying through his teeth, or do all Privilege matters die at the end of a parliamentary term?
Vote:September 16th, 2011 at 2:03 pm
> Mallard is a coward and lack basic morals that he can attack a civil servant and not front up.
Well, yes, which is why political parties have leaders. Leaders can usually see the big picture, when MPs can’t or won’t. Now would be a good time for the Hon Phil Goff to show his leadership credentials by doing the right thing.
Vote:September 16th, 2011 at 2:05 pm
I wonder how much the odiousness of Mallard’s (and Parker’s) behaviour in the Leigh case contributed to the downfall of the last Labour government? This was not a trifling matter and it was in the public view for quite a while. It is hard to describe it any more favourably than a mistake on Labour’s part.
But to learn from your mistakes you have to admit them, and this is something Labour is unable to do, hence why they’ll spend at least another two terms out of government.
Vote:September 16th, 2011 at 2:20 pm
Rightnow – “Can Leigh prove ill-will by Gow?”
Wouldn’t that be a little hard if the ill-will was Mallard’s. Might be a case of can’t shoot the messenger….
Also if by implication Mallard is accused of defamation, is he legally obliged to testify?
Vote:September 16th, 2011 at 2:32 pm
here is a tip about what will happen to mallard, Parker and Curran .. NOTHING
Vote:you heard it here 1st
September 16th, 2011 at 2:52 pm
Just before everybody gets carried away with the condemnation of Mallard etc, my reading of the proceedings to date is that there has been no factual finding of defamation and certainly no factual finding that Mallard has told untruths. The only issue has been whether the plaintiff can sue Lindsay Gow and/or Mallard. Mallard cannot be sued because statements made in Parliament carry absolute privilege. The issue before the Supreme Court is whether the material provided by Lindsay Gow and which was to be used in Parliament should also be covered by absolute privilege or only qualified privilege. The court found that it was not necessary for the proper functioning of Parliament that his reports be covered by absolute privilege.
The plaintiff still has a long way to go. Basically, the court has simply said that she can go on with the proceedings. She still has to prove that statements were made, the statements were defamatory and that the motivation of Lindsay Gow was such that he has deprived himself of any qualified privilege. That is not going to be an easy task.
Vote:September 16th, 2011 at 2:55 pm
You taking bets on the outcome nookin?
Vote:September 16th, 2011 at 3:00 pm
A few points of interest here.
First, the only viable defendant here is Mr Gow, because Trevor Mallard’s comments in the House were absolutely privileged. So the contents of Mr Mallard’s comments in the House, and his motives for making those comments, are not going to be examined if this case goes to trial. I say “if” because most defamation cases settle out of Court, and I would expect this to be no different.
Secondly, Mallard and co could conceivably be forced to give evidence. As I understand it, the case (as it now stands) alleges that the plaintiff was defamed by written and oral comments made by Mr Gow when he briefed Mr Mallard. This means Mallard could be called as a witness to give evidence of what he was told.
Thirdly, the defence of qualified privilege here has nothing to do with Parliament. It is a common law privilege based on Mr Gow’s duty to advise his Minister, and Mr Mallard’s corresponding interest in receiving that advice.
Finally, as others have pointed out, this privilege is qualified and can be lost if Ms Leigh can prove that Mr Gow was motivated by malice or otherwise took improper advantage of the occasion. The point here is that it is almost certainly Mr Gow’s motives that will be examined, not those of Mr Mallard.
One further point – whether Trevor Mallard misled the House will depend in part on whether he simply repeated advice he had received from officials, or whether he added comments of his own. But that won’t be part of the defamation case – that is all about what Gow said to Mallard, not what Mallard told the House.
Vote:September 16th, 2011 at 3:28 pm
Now watch that pompous ass Lockwood Smith rush into to defend the ‘honour’ of Parliament.
Vote:September 16th, 2011 at 3:30 pm
And there’s the end of free and frank public service advice to ministers.
Vote:September 16th, 2011 at 3:35 pm
I’m not sure that the definition of ‘free and frank’ advice could, or should, be extended to cover defamatory material.
Vote:September 16th, 2011 at 3:40 pm
Quite so mikenmild; there’s a big difference between free and frank advice, and free and frank character assassination for political purposes. Remember too that this is how Clare Curran ingratiated herself to the then Labour government, being rewarded with her electorate seat in Dunedin.
Vote:September 16th, 2011 at 3:42 pm
> And there’s the end of free and frank public service advice to ministers.
Nonsense. There will continue to be free and frank advice to ministers. What there should never be is a minister publicly bad-mouthing a public servant.
Vote:September 16th, 2011 at 3:42 pm
I never thought the advice was free in the first place, unless Gow was one of Labour’s unpaid interns.
Seriously though, if advice to ministers is found to be defamatory then it suggests the advisor is unfit for their duties.
Vote:September 16th, 2011 at 3:45 pm
frank adjective
Definition
Vote:honest, sincere and telling the truth, even when this might be awkward or make other people uncomfortable
September 16th, 2011 at 3:47 pm
> there has been no factual finding of defamation and certainly no factual finding that Mallard has told untruths.
Mallard hung out a competent public servant to dry. That is unacceptable for any minister. And the only reason Mallard criticised Leigh was because she accused the then government of politicial interference in her ministry. It was an act of petulance by Mallard which had serious consequences for Leigh.
Vote:September 16th, 2011 at 3:48 pm
IV2/RightNow
Vote:Agreed, and so the question moves to the content of the advice.
September 16th, 2011 at 3:52 pm
No Annie, it is no more the end of free and frank advice than it is of newspapers freely reporting the goings on in Parliament, even when what they say is defamatory. Newspapers can report such things because the freedom of speech parliament has gets partially extended to them as qualified privilege. Gow wanted his discussions with the minister given the same status as MPs comments in the House. That privilege is something that has been fought for over centuries and giving it to non elected officials is patently silly.
Vote:September 16th, 2011 at 3:58 pm
The principle of free and frank advice between officials and Ministers has got nothing to do with defamation. Free and frank advice is an issue under the Official Information Act – it is one of the grounds on which information can be withheld.
Vote:September 16th, 2011 at 4:10 pm
RightNow (3,152) Says:
September 16th, 2011 at 2:05 pm
May it be true!
Vote:September 16th, 2011 at 4:18 pm
@ Nick R
You seem to have some acquaintance with the law (presumably from the ‘right’ side) – I was taught defamation involves publishing to a broad audience either broadcast, verbally or in writing, and that private communications are not able to be actioned ie a private discussions or letters where I accuse someone of being a lying, thieving, untrustworthy scumbag. Do you know where the line is
Vote:September 16th, 2011 at 4:21 pm
Nick R
Not quite. Although free and frank advice is referred to in the OIA, it’s not a concept invented by the Act. It is in the act because it is a recognised principle in the conduct of public business, not the other way around.
Vote:September 16th, 2011 at 5:12 pm
When Clare Curran had one of her “OOH I’VE JUST DISCOVERED THIS THING CALLED THE INTERNET” turns at Red Alert – the glorious “OpenLabourNZ” initiative – she invited comment on what changes might be necessary to make government more accountable and transparent.
I opined that a truly accountable and transparent government would review the protection of absolute privilege, as that protection allowed MPs to defame private citizens and destroy careers to achieve political ends without fear of legal action.
My post got deleted and I got banned.
OpenLabour. Heh.
Vote:September 16th, 2011 at 5:51 pm
SHG – “My post got deleted and I got banned.”
lol.
Vote:September 16th, 2011 at 6:03 pm
Why oh why would you be surprised???
Vote:September 17th, 2011 at 9:15 am
@ Insider – defamation requires publication of the defamatory comment, but “publish” in this context (like everything else in defamation law) has a special meaning. It is not necessary to show that the defendant published his or her defamatory comments to the world (eg in a newspaper, or on the web). In theory, it is enough that the defendant only tells one other person – which is basically what is alleged here. Doesn’t matter if the comment was made in private or in confidence, although that may be relevant to a defence of qualified privilege.
Vote:September 17th, 2011 at 10:58 am
Surely Clare Curran was brought in to do the job instead because of her outstanding itellect?
Vote: