Who pays?

April 2nd, 2012 at 6:24 am by David Farrar

Adam Bennett at NZ Herald reports:

A spokeswoman for Ms Collins was unable to say whether the minister had asked for Crown funding but did say the matter would cost the taxpayer nothing if Mr Mallard apologised or backed up his remarks with evidence.

Wellington lawyer Graeme Edgeler said that while there were instances of the Crown paying legal costs for ministers who were the target of proceedings, he could not recall ministers receiving taxpayer funding when they were the plaintiffs.

Furthermore, “this doesn’t really seem government-related at all”.

“This is an offence to ’ personal reputation.”

Even though any damages and costs awarded if the suit was successful would go back to the Crown, the case was “really for her personal benefit”.

My view is that when the Minister is a defendant, then the Crown should pay the legal costs. But I am uneasy with the notion of the Crown paying legal costs for a Minister as a plaintiff to sue other MPs and a media outlet. It may be permissable within the Cabinet Manual rules, but that doesn’t make it a good idea.

Apart from anything else it would allow Mallard and Little to portray themselves as martyrs with the resources of the state being used to try and silence them.

If it is privately funded, then it is a very different matter in terms of how the public will view it.

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39 Responses to “Who pays?”

  1. Pete George (22,768 comments) says:

    If it was publicly funded it might also encourage more defamation proceedings frfom politicians. They should be carefully considered exceptions, not just another normal political weapon funded by us.

    I agree that it is more of a personal issue. Collins could choose to just ignore it, like many politicians do. It could even be argued that NAtional would benefit from putting this one behind them as soon and as quietly as possible.

    So it is Collins versus Mallard/Little/Radio NZ.

    But if there’s a good argument for Collins to self fund, why shouldn’t Mallard and Little? They have chosen to make accusations and to not withdraw them. If their defence is publicly funded, against Collins’ private funding, that will hardly casue them to worry about doing this sort of thing frivously simple to try and win political points.

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  2. mikenmild (10,625 comments) says:

    Why would you think that Mallard and Little have public funds to defend this suit?

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  3. Linda Reid (396 comments) says:

    I’m quite pleased Judith Collins is standing up to the lies from Labour. For too long some Labour party MPs have been making shit up and then trying to pretend it’s true – and it’s good to call them to account.

    However, you’re right – it’s a personal reputation issue for Collins.

    I do take issue with this statement though: “If it is privately funded, then it is a very different matter in terms of how the public will view it.”

    I’d have a lot more respect for politicians who did what was right (and were prepared to defend it from a place of principle) rather than gave top priority to what they thought they could get away with.

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  4. nasska (10,622 comments) says:

    I admit to being 50/50 on this. On one hand it is, as already pointed out, a matter of an attack on Ms Collin’s personal integrity & therefore not directly related to Parliamentary business.

    On the other hand the electorate could benefit greatly if Mallard/Little/RadioRed were taken to the cleaners by a huge defamation award going against them. It might make the politicians & media stop & think before attacking an opposing member’s reputation rather than their policies.

    In this instance public good would justify state expenditure.

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  5. mikenmild (10,625 comments) says:

    It could be a step towards Singaporean politics, where defamation is used to silence opposition dissent.

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  6. Mark (1,360 comments) says:

    I am not 50/50 at all. Collins has made a dick of herself over this and National will not want this ACC debacle dragged through the media for the next 12 months in the form of a defamation suit. She has placed cabinet in the position of “back me or else” which I am sure thrills them no end.

    Not one cent of public money should back this nor should it be spent on Mallard’s or Little’s Defence.

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  7. mikenmild (10,625 comments) says:

    I’m sure that one of Kiwiblog’s resident legal personages will correct me if I’m wrong, but Little and Mallard cannot access public funds to defend such an action.

    [DPF: They could be funded from within the Labour's Leader budget. However this then means Labour can't spend that money on staff, advertising, comms material, research etc]

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  8. nasska (10,622 comments) says:

    mikenmild

    It could also realign the focus of all MPs. After all Parliamentary protection will still exist……a win in any defamation case would only affect over the top statements from MP’s to a sycophantic media looking for a good headline.

    Presently much is said with scant regard for truth. Rather the emphasis is on party politics & the next poll results.

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  9. tvb (4,197 comments) says:

    We need more information before a judgment can be made. Is there any precedent, what are the prospects of success, does this action relate to Miss Collins ability to perform her duties as a Minister. I am not convinced there is a defamation. If the Crown is to pay then any proceeds of success is paid to the Crown as will no doubt be any costs.

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  10. orewa1 (428 comments) says:

    Spot on, Mark. Collins put mouth into gear before thinking through the consequences. Now Key is in a spot, having to choose between seeming to dump on a Minister, or spending public money in a way that will be highly inflammatory to the vast majority of the public.

    Personally I’d rather see the money spent on a few hip operations, some computers for schools, or some roading improvements. Feeding inflated political egos, or silencing political opponents, is not what I pay taxes for.

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  11. burt (7,794 comments) says:

    … but did say the matter would cost the taxpayer nothing if Mr Mallard apologised or backed up his remarks with evidence.

    Two things:

    1) Mallard is trained in the Clark method of being an MP – never admit fault.
    2) Mallard is a socialist – he has no idea what evidence is because he has faith in his ideology and to do so requires complete denial of all evidence otherwise he would be forced to acknowledge his ideology has never worked anywhere – ever.

    So that’s it then – one way track on this one I’m sorry.

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  12. mikenmild (10,625 comments) says:

    You must have a pretty loose definition of a socialist if Trever Mallard qualifies as one in your eyes.

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  13. hmmokrightitis (1,506 comments) says:

    orewa1, not quite sure where you think Collins put mouth into gear etc. She responded to an accusation, and has maintained her position from the start – not loudly, but strongly. And good on her for doing so. Too many pollys shot from the hip, and if it bites them, when they decide to do it outside of the protection of the house, they should be taught a lesson.

    JK will back Crusher for a simple reason – she is an effective MP who does what she says she is going to do, when she said she was going to do it. And ask anyone who has worked for her as well – they would walk over hot coals for her. Not too many of that lot who you can say that about. If she did release the email, then she will get what she deserves. But if the duck and the little one get nailed, you will hear me laughing a long way off.

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  14. Chuck Bird (4,668 comments) says:

    I would be happy to fund Judith Collins provided she does not personally benefit if she wins. MPs have Parliamentary privilege therefore MPs like Mallard and Little should pay personally. BTW does anyone know who decides on a defamation case – a judge or a jury?

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  15. joana (1,983 comments) says:

    Collins is not as popular as she would like to think. She has a certain gang appeal; others are repulsed by her. Others think she is joke.
    She would be dragging this ”scandal” out for a very long time which would hardly be in the interests of the party.

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  16. joana (1,983 comments) says:

    On the herald poll , very few are happy for her battle to be publicly funded.

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  17. Graeme Edgeler (3,262 comments) says:

    Chuck – if the taxpayer funds Judith Collins claim, and she wins, the taxpayer keeps any damages, and is (partially) reimbursed for the costs.

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  18. ross69 (3,652 comments) says:

    I suspect Collins will want public funding of her defamation case. She has been quite happy for taxpayers to pay for her petrol for her publicly funded car, on top of her chauffered limousine. So much for her reputation that she’s apparently trying to protect.

    http://www.3news.co.nz/Collins-taxpayer-funded-petrol-bills-top-11000/tabid/419/articleID/209944/Default.aspx

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  19. ross69 (3,652 comments) says:

    > I’m quite pleased Judith Collins is standing up to the lies from Labour.

    In other words, you’re quite happy to see private information leaked. Nice. I’d like to see all National MPs come out and say they’re appalled at the leaking of private information, but I think I have a better chance of winning Lotto.

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  20. Elaycee (4,298 comments) says:

    The solution is simple: If Mallard and Little ‘put up’ and were found to be correct, then Collins would be buried.

    But with the passing of time, it appears more and more likely that Mallard and Little have shot from the lip and their claims lack veracity. Because, if they had proof, then logically they would have tabled it – simply because it could / would put Collins in an untenable situation.

    Interesting that Collins said she welcomed any forensic investigation into the use of computers. I may be wrong, but I think this ‘story’ has traction – but not in the manner intended by Mallard and Little.

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  21. Mark (1,360 comments) says:

    @hmmokrightitis (323)
    April 2nd, 2012 at 8:43 am

    Collins problem is that she believes this bullshit about the motif “Crusher Collins”. In this case she has simply been foolish and has shown a spectacular lack of judgement. Politicians are attacked, often unfairly, by other politicians and they give it back and move on. The longer this ACC issue drags on the more damaging it becomes and there are a number of National party people who look more than a bit foolish. Pullar, Boag, Smith and now Collins have hardly covered themselves in political glory.

    Key has already shown that he is prepared to cut his ministers loose when the pressure comes on. Collins may need to tread carefully.

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  22. eszett (2,332 comments) says:

    I’m quite pleased Judith Collins is standing up to the lies from Labour.

    What lies? Have you actually listened to the piece on NZ radio? It’s beyond me what she considers defamation there, both Mallard and Little were very careful in what and how they said things.

    This is all but a smokescreen. Wouldn’t be at all surprised if cabinet blows this all off for some obscure reason. Collins then then still claim she would have sued, but she was put on a short leash.

    I’d be very surprised if this goes ahead.

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  23. Chuck Bird (4,668 comments) says:

    “Chuck – if the taxpayer funds Judith Collins claim, and she wins, the taxpayer keeps any damages, and is (partially) reimbursed for the costs.”

    Thanks Graeme. Would you be able to let me know about the jury please. If such thing went to a jury I think it would be very hard to get agreement.

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  24. Nick R (497 comments) says:

    I still don’t think Judith Collins should go ahead with this. The Govt is still battling media resentment after calling in the Police over the teapot tapes, and won’t really want to make that worse.

    Also, there is considerable scope for defamation proceedings to backfire, even on a successful plaintiff. McDonalds won the famous “McLibel” case in England, but all most people remember is the embarrassingly large number of claims the defendants proved were basically true. There have been other cases where a plaintiff succeeded but only got damages of $1 or so. And then there is the nuclear option of mounting a defence based on the argument that the plaintiff has such a bad reputation anyway that he or she suffered no further damage as a consequence of the defamatory statement. Radio NZ would not run a defence like that, but Labour might.

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  25. Nick R (497 comments) says:

    @ Chuck – most High Court defamation cases are heard by juries, although it doesn’t have to be that way. There was no jury, for example, in the Buchanan v Jennings case, which was largely concerned with Parliamentary privilege.

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  26. Pete George (22,768 comments) says:

    ross69: > I’m quite pleased Judith Collins is standing up to the lies from Labour.

    In other words, you’re quite happy to see private information leaked.

    Are you suggesting that Collins is lying and that she leaked the ACC email?

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  27. hmmokrightitis (1,506 comments) says:

    Pete, ross is sugegsting that as she is on the ‘blue’ team, she is by default, lying. Do keep up. :)

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  28. grumpyoldhori (2,410 comments) says:

    Very stupid of Collins if she as a minister gets we tax payers to foot the bill for what seems a personal legal fight.
    And what comes around goes around, when Labour are back in power you Nat types will not whine if some Labour minister does the same thing will you ?

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  29. ross69 (3,652 comments) says:

    > Are you suggesting that Collins is lying and that she leaked the ACC email?

    I’m suggesting that Collins is more concerned about her tarnished reputation than she is about the leaking of private information. But yes, I wouldn’t be surprised if Collins is lying.

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  30. Chuck Bird (4,668 comments) says:

    @Nick R

    In criminal court the defendant get to usually choose on a serious charge. Does the defendant also get to choose in a defamation case? That could be handy to know if I might want to say something unkind about a politician.

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  31. Chuck Bird (4,668 comments) says:

    Breaking News – We have an example of an MP with principle. Judith Collins has just announced that she will fund her own legal costs although she is entitled to ask cabinet for funding.

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  32. Nookin (3,033 comments) says:

    Convoluted logic. A accuses B of unsavoury conduct. B takes offence and sues A for defamation and, by doing so is deemed by Ross 69 to have endorsed the behaviour attributed to B and of which B complains. Suggests that somebody’s head is in a very dark place. Is that the significance of 69?

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  33. ross69 (3,652 comments) says:

    > We have an example of an MP with principle.

    That wouldn’t be Collins, Chuck. An MP with principle wouldn’t be throwing her weight around and certainly wouldn’t be racking up thousands of dollars of petrol for god knows what, paid by taxpayers. An MP with principle would be paying that out of her own pocket. Like Bill English, she has a perverse sense of entitlement.

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  34. Nick R (497 comments) says:

    @ Chuck – If the proceeding is in the High Court, either party can file a jury notice, although often the Court directs that there will be a jury trial without either party filing a notice. If one of the parties wants the case heard by a judge alone, he or she actually has to apply to set aside the jury notice on grounds set out in the Judicature Act 1908. In practice, cases are usually heard by a jury unless all parties agree that the trial should be before a judge alone.

    The District Court has no civil juries, so if you sue there it is always judge alone.

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  35. Chuck Bird (4,668 comments) says:

    Thanks Nick. I have no intention of suing but I would think if some MPs sued me it would hard for a jury to agree. Judging by this blog there could be the same problem if Judith sues. It would only take a couple of unionist or someone who hated National or may Judith and there would be no agreement.

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  36. tarrant (35 comments) says:

    Principle? Maybe, maybe not.

    Surely, to fund a defamation action, for a personal slight against her reputation, with taxpayer funds would be political suicide.

    Politically, this decision was always a no-brainer.

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  37. Nigel Kearney (864 comments) says:

    I don’t understand the logic that this is not government-related because it is only Collin’s personal reputation at risk. If she was the defendant in a defamation action, it is only her personal bank balance at risk. Here, the damage to her personal reputation has occurred as a consequence of her duties as a government minister.

    I would rather not fund it because I think it should be hard or impossible for a public figure such as a politician to bring these actions at all. But the connection with government is equally strong, whether she is the plaintiff or defendant.

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  38. mikenmild (10,625 comments) says:

    I think the announcement from Collins may be a bit disingenuous. As I understand it, she did not follow the accepted protocol before launching her action – a minister is supposed to consult the Attorney-General and the PM first, before seeking Cabinet approval to fund a case. We will never know what the answer would have been had she asked before acting.

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  39. eszett (2,332 comments) says:

    Breaking News – We have an example of an MP with principle. Judith Collins has just announced that she will fund her own legal costs although she is entitled to ask cabinet for funding.

    She had no choice, as the cabinet would not have approved the action. So she pre-empted it by announcing that she will pay for it instead.

    Not a minister with principle, but a minister saving face. Not only hers, but the governments.

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