Collins seeks a declaration, not damages

May 30th, 2012 at 4:00 pm by David Farrar

Vernon Small at Stuff reports:

Justice Minister is not seeking damages, but wants the court to declare she was defamed and to award her costs in her case against two Labour MPs.

This is a very smart move. It means that Mallard and Little can’t claim she is seeking to make money out of her lawsuit – she just want their (alleged) lies to be found to be false and defamatory. They had the choice of withdrawing their comments at no cost early on, or doing it at a later stage by which time there will be considerable costs (but not damages) attached to it.

Canterbury University law Professor Ursula Cheer said it was unusual not to seek damages.

“The most common remedies sought are an apology and damages.”

The provisions allowing a declaration had hardly ever been taken up, but they were a symbolic way to clear your reputation.

That was the point of including them in the law.

One could say that no one believes anything Trevor says anyway, so there was no point in taking proceedings. but it is possible there are some acolytes out there who do take his talk of anonymous e-mails proving his allegations, as literally true.

Collins has filed her claim in the High Court at Auckland despite the MPs being based in Wellington and the alleged defamatory comments being made in Wellington. As justice minister, Collins knew Auckland had the longest waiting list for civil hearings, Little said.

Umm Judith is an Auckland MP, and lives there most of the time. Where the comments were made has little bearing as they were broadcast on national radio. It seems pretty clear the ones trying to delay the case and Little and Mallard with their unsuccessful attempts to avoid being served.

Again, I look forward to their statements of defence. I hope Trevor especially refers to the anonymous e-mail he seems to be relying on, as I am sure the Judge will find that definitely constitutes proof.

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99 Responses to “Collins seeks a declaration, not damages”

  1. sthn.jeff (101 comments) says:

    Will be interesting to see if Mallard is prepared to stand by his “will not reveal my sources” line when he is under the blowtorch of Crushers Lawyer and he has to risk a finding against him.

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  2. gazzmaniac (2,307 comments) says:

    I say it again. Nobody outside Wellington gives a shit. It makes Crusher look petty, and make the two idiots from Labour look like clowns.

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  3. anonymouse (722 comments) says:

    The fact she was a past president of the ADLS is probably another good reason she decided to file it there :)

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  4. Manolo (14,081 comments) says:

    Neither Mallard nor Little understand the meaning of integrity or honour, so they will continue this farce.

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  5. jaba (2,146 comments) says:

    Collins is toying with them .. the more they cry to the media the sillier they look. I don’t think Collins is being petty, she is taking two nasty people to task over a lie

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  6. ross69 (3,652 comments) says:

    “Mallard said when former NZ First MP Tukuroirangi Morgan took a defamation action him ‘Tuku Morgan valued his reputation at more than $1m. Mrs Collins has placed no value on hers, whatsoever. That seems strangely appropriate.'”

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  7. ross69 (3,652 comments) says:

    jaba,

    What lie would that be?

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  8. Pete George (23,687 comments) says:

    ross69 – maybe Collins places more value on getting Mallard to tell the truth (or admit false or speculative accusations) than dollars.

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  9. Alan Johnstone (1,087 comments) says:

    None of us know the truth of the matter.

    Only those involved in the process.

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  10. RRM (10,034 comments) says:

    Crusher: I don’t want damages, just an apology.

    [Stamps foot]

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  11. jaba (2,146 comments) says:

    “The legal action centres on Ms Collins’s claim that the pair defamed her on Radio New Zealand over comments about who leaked details about ACC claimant Bronwyn Pullar to the media”. have you been away ross96

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  12. Ross12 (1,456 comments) says:

    I agree with Manolo and jaba.

    As for Mallard with “….reputation at more than $1m. Mrs Collins has placed no value on hers, whatsoever. That seems strangely appropriate.” it just shows he has no clue at all about principles. Pete George is right with his response to Ross 69.

    It is interesting that Mallard and Little are the ones continuing to squeal in public about this. Meanwhile Judith Collins just gets on with her job. Mallard and Little perhaps need to remember they are also in Parliament being paid to do some work .

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  13. jaba (2,146 comments) says:

    maybe David knows but I’m sure I read on a blog (here or Whaleoil) that Trev has had to make more retractions in Parlnament than any other .. maybe he just gets confused more

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  14. Nigel Ng (13 comments) says:

    @ross69 4:22

    Perhaps unlike Mallard’s, Collins’s reputation is priceless, therefore no amount of $$$ can pay :).

    I’m not sure why Mallard want to measure one’s reputation in term of $$$ – How much was his ? $0.02 – or already sold on trademe ?

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  15. Alan Johnstone (1,087 comments) says:

    It’s a high stakes game she’s playing, if the judgement goes against her, I think it finishes her career. Certainly she can forget about leading the party.

    I’m sure there are plenty of people in National *cough* Steven Joyce *cough*, that would be delighted to see her go down in flames here.

    On that basis alone I’m pretty sure she’s got the goods.

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  16. Wayne91 (142 comments) says:

    Ross69 “Mallard said when former NZ First MP Tukuroirangi Morgan took a defamation action him ‘Tuku Morgan valued his reputation at more than $1m. Mrs Collins has placed no value on hers, whatsoever. That seems strangely appropriate.’”

    I think that the fact that Collins values her reputation ahead of money only enhances her reputation.

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  17. jaba (2,146 comments) says:

    It’s sad, so sad
    It’s a sad, sad situation
    And it’s getting more and more absurd
    It’s sad, so sad
    Why can’t we talk it over
    Oh it seems to me
    That sorry seems to be the hardest word

    good old Elton John

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  18. KH (695 comments) says:

    My estimation of Judith Collins is going up by the day.
    And the boys are turning out to be real little boys.
    But I think we knew that already.
    Keep it going Judith.

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  19. Nookin (3,471 comments) says:

    This in fact is a very smart strategic move. If she gets her declaration, she is entitled to costs unless the court orders otherwise. There is no question of paying money into Court with a denial of liability. Mallard and Little are either in or out and are therefore at risk.

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  20. Mark (1,493 comments) says:

    gazzmaniac (1,244) Says:
    May 30th, 2012 at 4:15 pm
    I say it again. Nobody outside Wellington gives a shit. It makes Crusher look petty, and make the two idiots from Labour look like clowns.

    gazzmaniac only one slight correction, I’m from Wellington and don’t give a shit either. Collins is being as much of a dick over this as Mallard and Little. All of them come out of this with significantly diminished reputations and on that point Mallard and Little gain a slight edge because neither of them had much of one to start with.

    What is Collins thinking. When everyone has forgotton what Mallard and Little were even supposed to have said she is trying to keep this in the limelight. Pathetic really, she needs to do a little growing up.

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  21. adze (2,129 comments) says:

    Maybe Collins should have offered Little and Mallard a few rounds in the ring, as an alternative. To compensate for the obvious mismatch in physical strength, Collins could offer to box them with one arm tied behind her back :)

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  22. Monty (980 comments) says:

    She should sue the pants off them and send them destitute, but after costs allocate any funds to a charity

    Mallard is a tosser and Little is worse. I hope they resign once the case is over. But being Labour this is unlikely

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  23. Steve (North Shore) (4,591 comments) says:

    @jaba
    Good song.
    What will they do when lightning strikes them, and wake up to find they’re not there

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  24. Matthew Hooton (134 comments) says:

    Not seeking damages is also smart because it avoids the risk of the court awarding her contemptuous damages.

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  25. peterwn (3,312 comments) says:

    ross69 – “Mrs Collins has placed no value on hers, whatsoever.”
    If Judith tries to put a value on her reputation, it would be as futile as the curator at the Louvre trying to put a value on the Mona Lisa.

    Alan – on what basis would an adverse judgment finish her career? Her fans will still love her.

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  26. Roflcopter (466 comments) says:

    Collins should seek to have Mallard’s bike crushed :)

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  27. Northland Wahine (667 comments) says:

    Collins should teach them both how to piss standing up, because it’s apparent her balls are bigger than theirs.

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  28. ross69 (3,652 comments) says:

    > have you been away ross96

    Way to avoid my question. I’ll try again: what lie are you referring to?

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  29. ross69 (3,652 comments) says:

    > I think that the fact that Collins values her reputation ahead of money only enhances her reputation.

    That could be the next Tui ad…

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  30. orewa1 (410 comments) says:

    Gazzmaniac – “I say it again. Nobody outside Wellington gives a shit. It makes Crusher look petty, and make the two idiots from Labour look like clowns.”

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  31. orewa1 (410 comments) says:

    Oops – my previous comment went prematurely!

    I meant to say that Gazzmaniac said it beautifully at the start of this thread. This is a clash of a handful of inflated egos that 99.9% of Kiwis don’t give a shit about – a plague upon them all.

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  32. cows4me (248 comments) says:

    How much would costs be in a case like this? Went to court the other day and the judge said court costs would set me back about $180. i guess something like this would be a bit more.

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  33. jaba (2,146 comments) says:

    “In the latest twist to the Pullar affair, ACC Minister Judith Collins says she intends to sue them for defamation over “untrue and defamatory” statements”.
    I’m not avoiding anything ross .. “my interpretation of “Untrue and defamatory” can be reduced to lie .. what about you?
    now, if I missed out the word alleged then .. well there you go

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  34. wynkie (86 comments) says:

    Collins in only asking for the judge to make a Declaration (Section 24) that she’s been defamed in order to seek vindication. This is the option you take when you DON’T want to loose any money by taking a case to Court and you don’t want to have to fight it all the way.

    Had Collins gone for damages and had to go to court, yet without an intention of every proceeding to trial, then the Judge could rule Collins action as vexatious under Section 45.

    So I find it interesting she has deliberately avoided court over the matter in her approach.

    Julian Miles would have warned Collins of the high risk she faces of an unsuccessful outcome, given the fact that 75% of defamation cases actually go in favour of the defendant, and the aggravating effect a defamation case would have upon her character. He would have advised her of an approach to limit her costs given the low likelihood of success, and yet where she might get what she wants – vindication.

    (This above is all from information received from a defamation law conference by Julian Miles, Daniel McLellan and Jeremy Atkinson in May last year.)

    Her subsequent three desperate attempts to get apologies out of Little and Mallard BEFORE filing indicates she knows her chances of success in her case were of not good (only 25% or less).

    What is also interesting though is that Collins is apparently no longer using QC Julian Miles as she was initially so is not spending big bucks ($1000-$1500/hour) defending her position. She is using Morrison Kent to do the grunt work – probably at about $300-$350/hour. I’d suggest the fact that Collins quickly switched to Morrison Kent AFTER receiving advice from Julian Miles is quite telling.

    In my view I believe Collins is only now becoming fully aware of the stupid mess she has created for herself and I expect she is wishing there was a way to extricate herself all of this with as little fan fair as possible.

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  35. thedavincimode (6,877 comments) says:

    She isn’t being petty at all. In fact, she’s shoving it right up them. Very clever – makes them look like even bigger dicks. Bear in mind that even getting costs will inevitably leave her significantly out of pocket. Maybe the legal beagles around here might care to opine as to whether the circs are now such that any continued refusal to apologise will make the costs award a little better than it might otherwise have been (ie cost these odious little irks more money).

    This approach makes it quite clear to these shitheads that she’s prepared to spend money to make them spend money. How will they react? One thing about pinkos is that they hate spending their own money; its easier to spend someone else’s – even if it means passing a law to legitimise the theft. The problem now for the dickheads is that they are in opposition.

    DPF:

    One could say that no one believes anything Trevor says anyway

    If there is one thing that would be more amusing that Collins winning and getting a healthy wack of costs, it would be Collins losing because nobody believes anything the tosser mallard says.

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  36. Nostalgia-NZ (5,281 comments) says:

    wynkie
    7.17

    That’s how I thought it had unfolded. Collin’s zipped her lips after taking legal advice, to that point she had been pushing the matter through the media in what could have been seen as aggravating her own position. I think the reputation she has cultivated as ‘crusher’ is another difficulty and this latest situation could be futile as well. Her best position might be a ‘political’ one now, saying something to the effect that the public have seen the defendant’s concerted efforts not to ‘front up’ and really it is futile to persevere against those unwilling to support false allegations.

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  37. ross69 (3,652 comments) says:

    jaba

    You continue to avoid the question. Maybe third time lucky. What lie have they allegedly said? Maybe you can provide a link…or maybe not.

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  38. ross69 (3,652 comments) says:

    One can only hope that Collins is more forthcoming with the Judge than she has been with voters. Hopefully she will explain why she printed a copy of the Boag email, who had access to it, why she forwarded the email to others (despite the email being confidential), and how she can be 100% certain that her office didn’t leak the email.

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  39. tvb (4,518 comments) says:

    Ms Collins has taken advice from on of NZs top lawyers on defamation. I would place my money on her. It is an interesting move simply to get a declaration plus costs from Little and Mallard. They would not be able to pay an award that is of any worth anyway. I think Ms Collins move is a smart one from one of the smartest lawyers in the business.

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  40. Yvette (2,851 comments) says:

    ross69 – jaba, seemed to refer to the ‘lie’ or statement that is the subject of the action, which is why Radio NZ were originally dragged into the mess – they repeated the ‘lie’.
    So if you don’t know, apart from hearing an original statement, or what RNZ said, you should not be told by anyone, unless they wish to risk action too.

    This is why half the country is like a bunch of mushrooms – kept in the dark but waiting for the next load of horse-manure to arrive.
    The rest of us don’t even know why the lights are out.

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  41. F E Smith (3,307 comments) says:

    Wynkie,

    I don’t understand what you are saying: a Declaration is a remedy under the Act. To obtain that remedy, a trial must first take place, or an admission made (or no defence filed) by the defendants. I don’t see how seeking a remedy available under the Act means that Collins is avoiding Court. Indeed, by filing a claim with the court and serving the defendants, she pretty much has already put it in court.

    With regards s45, that is correct, but what do you use to say that she is trying to avoid going to trial? In my view, that appears to be exactly what she is after.

    And don’t forget that to have a barrister represent her, the client must first instruct a solicitor. Now,it is much cheaper to get the solicitor to do most of the work and only use the QC when necessary, so that might be happening here. Or has she definitely sacked her QC?

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  42. peterwn (3,312 comments) says:

    Wynkie – ‘three desperate attempts to get apologies’ – Nothing desperate here – it is quite normal for the aggrieved person to endeavour to get things sorted out before commencing court action. It would be wrong and irresponsible to throw a writ at someone out of the blue and without warning.

    ‘What is also interesting though is that Collins is apparently no longer using QC Julian Miles as she was initially so is not spending big bucks ($1000-$1500/hour) defending her position. She is using Morrison Kent to do the grunt work… ‘

    Which is quite normal. The formal process is you hire a solicitor to take such legal action and the solicitor hires a barrister on your behalf – even if you specify the barrister you want. Julian Miles QC would have been involved to give an opinion as to the likelihood of success and general strategy. Once you decide to proceed with or defend a suit, your solicitors do the donkey work such as preparing and arranging service of writs, organising evidence, witnesses, etc. Julian would be consulted as need be and would handle any judicial conferences, hearings, etc.

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  43. Nostalgia-NZ (5,281 comments) says:

    By crikey, the barrel is getting scrapped here.

    We’ve gone from apologise or I’ll sue.
    To suing.
    Then, I’ll stop suing if you say you were naughty and we won’t mention the costs in public.

    Compare to recent Bob Jones case, just a few left hooks at the end and a substantial payout.
    Or another where we simply saw the apology published.

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  44. Alan Johnstone (1,087 comments) says:

    “Alan – on what basis would an adverse judgment finish her career? Her fans will still love her.”

    Really ? Her fans may still love her, but a high court decision that calls her a liar will finish her.

    She could possibly hang on as a back bench mp, but a minister of the crown ?

    No.

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  45. OneTrack (3,235 comments) says:

    Alan – And what about Mallard and Little if they lose. Or aren’t Labour’s standards that high so it won’t be an issue?

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  46. Nostalgia-NZ (5,281 comments) says:

    They’ve got nothing to lose while Collins keeps supporting their credibility with a public plea to settle.
    Ask your self OneTrack, why would she do that in a position of strength?

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  47. PaulL (6,048 comments) says:

    Nostalgia-NZ: she’d do that because she acutally wants an apology. She’ll take one willingly given, or she’ll go to court to get it. Only someone who’d lived in Labour circles for too long would be looking for deeper meaning than that.

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  48. Kimble (4,443 comments) says:

    The only way for Collins to lose out of this, is if she got damages from Little and Mallard.

    If Little or Mallard could back up what they said, they would have done it immediately. That sort of Gotcha! is too good to sit on. They wouldnt risk Collins letting the issue fade away, and there was no way they could predict that she would take it this far.

    If Mallard and Little DO have evidence to support their accusations, the question will be “why did they wait this long to present it?”

    They are paying the price for following Clarks “lets just make shit up” and “I’m never wrong” philosophy. It lost her the election, and it should cost them their careers.

    Collins just played the winning move. Little and Mallard are fucked.

    And all of you will still pay their pensions.

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  49. kiwi in america (2,511 comments) says:

    Wynkie
    The truth is pretty much the opposite of your waffling. Collins (a lawyer herself) would know how difficult it is to bring successful defamation case under NZ law. Her situation is compounded by her very high profile position as a senior Cabinet Minister suing prominent Opposition MPs over a matter involving parties well versed in manipulating the media (Pillar and Boag). You don’t move forward into a minefield like this unless you know yor position is rock solid. Furthermore if John Key felt that her case was a flimsy try on he’d have put an end to it without hesitation. Whilst he has publicly stayed out if it, you can bet that he has had a very close look at the evidence Collins has to back her case.

    Others have pointed out that, contrary to your assertions of her backing down from using Julian Miles QC, Collins is following proper legal protocol in having her solicitor do the leg work. Having instructed a QC myself (and his Barrister partner in his chambers) I am well versed in how Solicitor, Barrister and then QC all work together. Collins seems to be following the normal process in the matter.

    Mallard and Little played a silly game of chicken on the assumption that almost all threats of defamation never see a court docket because the threshold for success is so high. They have badly miscalculated. Collins didn’t get her nickname Crusher for nothing and these muppets are about to find out the ultimate consequences of “making shit up” as a political strategy.

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  50. kaykaybee (154 comments) says:

    “Making shit up” has been a valuable hammer in Duck’s tool box. To give the man his dues it’s served him very well politically. He’s been responsible for a good deal of often pivotal public perception manipulation. His ilk and their gutter politics MO defined the Helen Clark reign. In my opinion, he is an odious man, and he is one who for far too long has largely got away with his thuggish and bullying ways. I can think of nothing better than Ms Collins succeeding in her action against him. As for the other bloke – Little by name and small by nature – a salutary bit of early perch knocking-off is in order.
    Go the crusher.

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  51. Mobile Michael (464 comments) says:

    Did Chris Hipkins PQs all come back negative? Maybe that should be added to the costs.

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  52. Mark (1,493 comments) says:

    If Collins loses will she resign?

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  53. Nostalgia-NZ (5,281 comments) says:

    All the talk in the world doesn’t get past the facts that Collins highlighted an issue that otherwise had largely passed by, not only that she has willingly cultivated an image of herself as impervious to criticism, in fact revelling in her toughness – then rather than get legal advice she played the situation out in the media.

    How she anticipates ‘forcing’ somebody to apologise actually working is bewildering, equally as much as ‘announcing’ all her ‘moves’ in advance. The common denominator is that she looks as silly as the two she is suing in a country where ‘Ministers’ of the Crown are no longer seen as unimpeachable.

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  54. Mark (1,493 comments) says:

    KIA you say mallard and little are playing a silly game but presumably they have taken legal advice that suggests Collin case is weak and they are prepared to take her on. It’s now piss or get off the pot stuff. I would not be bold enough to presume that Collins has got the only good legal advice here.

    But as I have said before either way Collins reputation suffers more than Mallard and Little whether it not she succeeds because she simply looks likensomeone who is having an oh fuck moment. I made the threat and if I don’t follow up I’m no longer a crusher like a want the world to think I am. It’s all rather pathetic.

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  55. Alan Johnstone (1,087 comments) says:

    Alan – And what about Mallard and Little if they lose. Or aren’t Labour’s standards that high so it won’t be an issue?

    They are opposition mps, not ministers of the crown with leadership ambitions.

    Neither Mallard or Little has a serious political future anyway. Littles leadership ambitions died last year in NP. At best Trev will end up mayor of a new Wellington super city.

    They can always claim that it turns out that they were wrong, but they thought they were right. Misinformed if you will.

    There is no such “out” for Collins. She clearly has much more riding on this verdict than them, they can afford to treat the process a bit flippantly, for her it’s become deadly serious.

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  56. kiwi in america (2,511 comments) says:

    Mark
    If Little and Mallard were so comfortable that their case was watertight they’d be jumping at the chance to have their day in court. I’ve been a plaintoff and defendent in commercial litigation and I learned alot about the respective strengths of each party by their conduct once papers are served. Their conduct shows the opposite – ducking (excuse the pun), diving and hiding like petulant Uni students. Parties in a strong position don’t avoid being served. If I had to place a bet on who will win my money would be on Collins every day of the week.

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  57. m@tt (632 comments) says:

    It’s nailed above. Collins has already lost. The whole issue would be history except for Collins dragging it out and out and out. She should have turned the other cheek, she would have looked better for it.

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  58. Kimble (4,443 comments) says:

    … either way Collins reputation suffers more than Mallard and Little …

    You are a fucking moron if you really believe that.

    Little and Mallard will lose and will be marked as liars.
    Little and Mallard acted like children in avoiding being served.
    Little and Mallard abused process servers.
    Little and Mallard treated our legal system as a joke, a game, not giving it the respect it deserves.

    Collins has called liars on their lies.
    Collins has said she would do something.
    Collins then did that thing.
    Collins has acted seriously all throughout.

    Little and Mallard have acted exactly the way that turned people off the last Labour government.

    How many votes do you think they have won by acting like this?

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  59. wynkie (86 comments) says:

    Collins went off half cocked and hot headed blabbing on about defamation BEFORE she even took advice. Just because she’s a lawyer doesn’t mean she’s an expert in defamation law.

    This was only yet another sideshow designed to deflect attention from ACC and prevent chat about Collins role in the leak. But it’s a side show that Key hasn’t endorsed as he’s refused to pay her legal fees.

    Yet the defamation action is having more adverse consequences for Collins reputation than the comments that were made by Mallard and Little, which any good defamation lawyer would have advised their client before pursuing a defamation case.

    However it was too late…Collins had mouthed off to the media about defamation and now had to follow through. After all she has her reputation (ego) and alter ego “Crusher Collins” that had to be protected.

    Collins was advised by Miles no doubt that:
    * 75% of defendants win. That means statistically Collins chances of winning are slim. 25% at best.
    * most settlements for damages is under $15K. That means Collins would get bugger all if she’d gone for damages anyway.

    Therefore Miles probably advised her to try and get an apology first, and failing that he suggested she seek a declaration to minimise any losses from her taking action. Under Section 24 the provision of award of solicitor and clients costs ONLY applies where a declaration is the only remedy sought. If damages are sought the normal cost rules will apply.

    Kiwi in America says that “Parties in strong positions don’t avoid being served” Really?

    One could equally say if Collins was in such a strong position she wouldn’t have wasted time trying to get an apology THREE times from Mallard and Little. She would have been assertive and just filed after the first NO. Why get rejected three times? What doesn’t she get about “NO” the first time? NO means NO surely?

    In my view these delaying tactics proves Collins’ position is not strong. In fact she has a 75% chance of loosing. Of course she’d try and extract an apology before going to court and wasting her money. Defamation is not easy to win even if you think you have a concrete case.

    Then you have to consider the mountains of avenues available to Mallard and Little to defend their position:
    * Boag confirms Collins email address was private and confidential – and gets reassurance of that before sending a private and confidential memo to Collins.
    * The email went to Judith Collins and a member of staff – Megan Wallace
    * The memo advised Pullar’s tracked emails. Were these emails from Boag tracked perhaps?
    * Collins then printed the email. Why?
    * Anyone wanting to leak with this knowledge of tracking would know the leak had to happen via a hard copy print of the memo, not electronically from the original email in order to be safe. But then you would need to do it via a printed copy anyway – regardless due to computer forensics and back up computer systems which retain everything.
    * Only Collins appears to have printed the email.
    * Collins instructed Wallace what to do with the email – who to distribute it to etc – John Judge and ACC. In doing so Collins breaches the undertaken given to Boag that the information would remain private and confidential.
    * John Judge was out of the country at the time of the leak
    * The Minister would have taken over the CEO’s Ralph Stewarts office at the time of the exposure of the privacy breach
    * Stewart is new to the job and comes from private insurance company where confidentiality is imperative.
    * Collins has ultimate control over herself, her office, the Board and ACC. She was in control of all parties who received the memo. None of those other parties would dream of leaking a memo sent to them by the Minister.
    * Collins motivation to leak is high compared to others
    * There is a history of leaks from Parliament. It’s a deliberate PR strategy when under fire.
    * Mallard and Little have jobs as opposition MP’s – and therefore qualified privilege may apply. That is, this is a matter of public interest for all New Zealanders where a private and confidential memo sent exclusively to the Minister and her private secretary is subsequently leaked from the Minister’s office or from a Crown entity. No one can argue with that. Whether Collins likes it or not, Mallard and Little have a job to do. This leak raised concerns about Collins handling of the strictly personal, private and confidential memo got leaked and made public, along with the breaches of privacy already happen at ACC. This raises concerns over how anyone could trust Collins or ACC with handling of any private information of clients.
    * Collins was very confident both inside and outside the house about the fact she hadn’t leaked it. This degree of absolute 100% confidence is unusual for anybody. Collins carefully articulated responses to parliamentary questions about how it wasn’t leaked, raises serious doubts as to how much she did know about the leaks, and tends to suggest she has knowledge of how it was leaked.

    Collins:
    “I did not sent it to anyone else”
    “My staff member sent it to the chief executive of ACC and the chairman of the board, as I requested her to.”
    “It was not sent anywhere else from my office”
    “It is not for me to speculate as to who released it.”
    “I am simply saying that I am 100 percent certain that it was neither me nor anyone in my office – 100 percent certain; absolutely”
    “people who send me information about ACC can expect that I will send it straight to ACC”

    All this does is confirm Collins didn’t leak it by ‘sending’ it somewhere, and it was not ‘sent’ anywhere else from her office, other than to the CEO of ACC and Chairman of the Board; and that neither she nor her office released it to the media!

    However, Collins responses in Parliament does not eliminate:
    * a paper copy being physically collected and removed from Collins office by a third party within Parliament (which would have to be done by arrangement by Collins office), with that third party (outside the Minister’s office) arranging for the memo to go to the media, possibly via another third party.
    * a paper copy being physically passed onto a third party outside her office (which would also have to be done by arrangement), with that third party (outside the Minister’s office) arranging for the memo to go to the media, possibly via another third party.

    Collins responses in Parliament make it very clear she gave very specific instructions about what was to happen to the memo – to her secretary Megan Wallace. Why?!

    Apparently Boag discussed with Collins the security of the email address and sought reassurance the memo would remain private and confidential BEFORE sending the memo, which was given. Yet Collins’ upon receiving it instructed the private and confidential memo to be forwarded to the Board and CEO. Why did Collins misled Boag?

    Then Collins turns around and says in Parliament that anyone sending an email to her would ‘expect’ it to be on forwarded! Really? Boag didn’t – otherwise Boag probably would not have sent the memo in the first place.

    Any why would you forward a private and confidential email, when you said you wouldn’t? Possibly because you wanted to broaden exposure to the memo to create doubt and to avoid either you or your office being blamed for the leak. In fact you had to forward the memo so you it could leak it without being squarely blamed.

    Most factual evidence easily supports Mallard and Little’s honestly held opinion, which is also held by the majority of NZ’ers, that Collins was the driving force behind the leaking of the memo. It just that the memo wasn’t ‘sent’ from Collins office and her office didn’t actually leak it directly to the media. Someone else did.

    It’s all very cute really.

    At the end of the day the buck stops with Collins when it comes to the failures in ACC if anyone remembers what all this is about.

    Collins had plenty of motivation and ability to leak – to protect her ACC Ministerial job and to create a diversion from the negative media coverage of ACC which reflects poorly upon her etc, and to prevent her being questioned in Parliament about her role in the leaks.

    It will be interesting to see what additional info Mallard and Little have.

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  60. Pete George (23,687 comments) says:

    Collins has already lost.

    No she hasn’t. There’s been no proof produced to prove her wrong, and no proof produced to prove Mallard and Little right.

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  61. Kimble (4,443 comments) says:

    One could equally say if Collins was in such a strong position she wouldn’t have wasted time trying to get an apology THREE times from Mallard and Little.

    One can equally SAY that, but that doesnt mean the two things are equivalent.

    The most likely inference to be drawn from observing someone seek an apology before taking legal action, is that they are willing to accept an apology. This is only emphasised when they ask for the apology on multiple occasions. And then the question is put beyond ALL doubt when the person declines the opportunity to seek damages, preferring a correction AND AN APOLOGY!

    The most likely inference from Little and Mallard making a claim and then not producing any evidence when it is called a lie? That they’re liars.

    It will be interesting to see what additional info Mallard and Little have.

    It will be interesting to see if they have any evidence at all.

    Then it will be interesting to see why they did everything they could to avoid the court case, except present that evidence.

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  62. kiwi in america (2,511 comments) says:

    wynkie
    You forget that there’s both a police AND Privacy Commission inquiry into the leak. If Collins was the source of the leak (as your mini Agatha Christie novel proclaims) that would undoubtedly come out in those inquiries so why run the risk of being proven wrong by other agencies. Many people in the public domain make threats to sue and almost all never carry out their threat. It would’ve been little skin off Collins’ nose to let her threat die the same death of other threats. She pressed ahead even after getting the advice from her QC who invariably err on the side of caution in their advice. From a political point of view she would’ve been better to drop it. Her legal background and other lawyer friends close to her would’ve also fully appraised her of the risks. That she still went ahead has more to do with how she perceives the strength of her case than any impetuous backing herself into a corner as you allege.

    Asking for apologies on three occaisons is not a sign of weakness and merely underscores her desire to have Mallard and Little restore her honour. When that was not forthcoming she filed her claim – actually pretty standard procedure in these sorts of cases. Knowing that she was going to bear all the costs (at a minimum $50k) herself she was prudent to seek the lowest cost restoration of her position – that of an apology.

    Mallard will never apologize – even when he’s wrong he thinks he’s right. He and Little think that they can milk public sympathy on the way knowing full well that the hearing of the case will be many months after the event and most but the inside the beltway types will have forgotten the details of the case – that is the basis of their strategy not some smoking gun that will appear in court. By the time they are forced to apologize people will say “what was that about”. They are doing what alpha males do to save face. Collins’ likely vindication may be delayed and buried by a lazy and disinterested media but Labour will think twice about “making shit up” at least about her.

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  63. Nostalgia-NZ (5,281 comments) says:

    Good summary wynkie. Particularly about the movement of the document and the way JC is hedging her bets seemingly unaware that she’s isolated herself.

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  64. F E Smith (3,307 comments) says:

    Wynkie,

    You still haven’t really answered my questions from last night, your novel notwithstanding.

    Also, don’t forget that the courts expect you to do as much as possible to settle without resorting to filing a claim, so asking for an apology three times seems like Collins was just trying to meet those expectations. I don’t think it should be seen as a sign if weakness. Indeed, I think it goes more toward guaranteeing costs in her favour if she wins.

    I must say that NZers don’t sue for defamation nearly enough. It really is an under utilised resource.

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  65. Luc Hansen (4,573 comments) says:

    I agree, F.E. Smith, but then lawyers need to be well fed, and most of us prefer to feed ourselves.

    By the way, you still haven’t replied to my request for your evidence that I am an anti-Semite. I’m genuinely interested in what, specifically, I have written here or elsewhere that you base you potentially defamatory statement on.

    Of course, I don’t really expect a serious reply – just more unsubstantiated smears from you and all the usual supporters of the Zionist project.

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  66. Luc Hansen (4,573 comments) says:

    Also F.E. Smith, are you just pretending to be a lawyer on here? I couldn’t find you on the register. Just asking.

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  67. Kimble (4,443 comments) says:

    By the way, you still haven’t replied to my request for your evidence that I am an anti-Semite.

    Gosh. Imagine if you guys were in the public eye, and he had called you an anti-semite. Then you asked for proof or an apology and he simply repeated his claim. Lets say this isnt the first time he had made up things like this. You give him 3 chances to prove it or apologise, and each time he laughs it off.

    You threaten him with defamation, and he laughs it off. You actually file for defamation and he dodges the servers.

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  68. Nostalgia-NZ (5,281 comments) says:

    F E Smith
    8.52

    Can there be any increase on seeking an apology by doing so 3 times, rather than once?
    If JC had any confidence in her position she would have sent a letter, rather than advertising it in public.

    I think wynkie sets out a good summary of the events, while on the other hand Collins repeats ‘apology’ as though it is shelter.
    If the dear minister is being positive, perhaps she should front up with the details of the passage of the leaked document and put an end to all this. After all, it is within her knowledge.

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  69. Nookin (3,471 comments) says:

    Wynkie,

    You conclude that the fact that Collins demanded an apology on three occasions illustrates a weakness in her case. Had she been applying for damages, the fact of an apology is something that the Court can take into account in mitigation of damages. Mallard and little refused on three occasions to apologise. Assuming that Collins can establish that the comments were defamatory and that Mallard and Little cannot establish that they are true, there would be no mitigating factors decreasing quantum of damages.

    Since she demanded the apologies, she has decided to apply for a declaratory judgment only. The court has to determine whether she was wrongfully defamed. This is a discretionary remedy and I suspect that the absence of any apology would be likely to be considered by the Judge when deciding whether to make the declaration (assuming the legal justification for making the order is there). If the court decides to make the declaration then, in all likelihood, Collins will recover her costs.
    Although you have made a thorough presentation, I am not sure whether your conclusions are all together sound. We can only store the popcorn and wait.

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  70. wynkie (86 comments) says:

    Kimble, is the best you can come up with – Mallard and Little are onto a hiding cos they tried to avoid court because they dodged the servers? Did they? Nope- they just made them work to get their fee. They are Labour boys remember – not polite blue bloods who do things in a civilized manner with class like you Kimble.

    But this is just fun and games for then – part of the media circus to make Collins look stupid.

    If they were really SO desperate to avoid court action like you claim Mallard and Little would have simply apologized to Colllins. Instead they said – f**k you, bring it on baby!

    And Collins has forgotten the defence of privilege which Collins has to refute with ‘malice’ which is simply impossible when Mallard and Little are simply doing the public duty.

    Collins is on a hiding to nothing. Collins needs to get out more – heartland NZ can see right thru what she is doing – she can’t fool NZer’s. She ain’t a PM in waiting.

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  71. Nookin (3,471 comments) says:

    wynkie

    What is the basis for your view that the statements carry privilege?

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  72. Kimble (4,443 comments) says:

    Did they [dodge being served]?

    Yes.

    If they were really SO desperate to avoid court action like you claim Mallard and Little would have simply apologized to Colllins.

    They are incapable of 1) admitting they were wrong, 2) apologising for anything.

    … heartland NZ can see right thru what she is doing…

    Which is? Oh yeah, call out two liars for lying. Give them 3 chances to repent. Then laid the smack down when they didnt. Laid out like that, the story has an Old Testament feel to it.

    I am sure your vision of “heartland NZ” is that it only includes Labour supporters. There is something desperately pathetic in that.

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  73. wynkie (86 comments) says:

    Little and Collins have no need to apologize cos they can defend their position easily. Why should they succumb to crusher?

    How can Collins prove their comments were defamatory? So what if she leaked – its run of the mill in parliament – happens everyday – its part of the territory. So does that ‘impugn’ her character? Nope – normal.

    And then she already has the negative reputation of ‘crusher’, she has already f**ked over Barry Matthews and is already perceived negatively by NZ for this. She never filed Efor defamation for those titles – so she has set precedence – negative things that impugn her character are ok. She shot herself in the foot. Another defence strategy for Mallard and Collins – if she was coIncerned about her fine reputation why not bother on those occasions?

    So why is Collins so sensitive about leaking of the Boag memo? Why react only now?

    Cos she knows the truth …

    Collins has zero chance of winning, regardless of whether or not Mallard & Collins can prove she leaked – they just have to have a defence & there are 1001 ways to defend their position and that is why 75% of defendants win and why Collins is so screwed.

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  74. wynkie (86 comments) says:

    Nookin, Collins hasn’t applied for damages. Therefore irrelevant!

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  75. Kimble (4,443 comments) says:

    Little and Collins have no need to apologize cos they can defend their position easily.[Citation needed]

    There we go, I fixed your post.

    If Little and Mallard actually had evidence, the best time to bring it out would be when the issue was fresh. They could have said, LOOK the minister lied to everyone, she doesnt even know what is happening in her own department!

    Instead they are leaving it until the issue has become them lying, and thinking they could get away with it.

    They had no way to know Collins would take this course of action, so had absolutely no reason to withhold the information. The value of the information would normally decrease over time, and holding on to it ran the risk of Collins letting the issue go.

    Even if they had the evidence back then (and arent desperately trying to invent it now) Collins now has plausible deniability. If she knew there was evidence, that there could even BE evidence, there is no way she would be taking it to court. She would be letting the issue die.

    Refute every single one of these points or fuck off.

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  76. Luc Hansen (4,573 comments) says:

    Poor Kimble resorts to foul language again.

    Such a loser.

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  77. Kimble (4,443 comments) says:

    And what does that make you, Luc?

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  78. wynkie (86 comments) says:

    Heartland… Practical people- Farmers, self employed business people, provincial folks, taxpayers who pay $1000’s in ACC levies & taxes- who see Collins as just another prissy Aucklander Wwho needs to get over herself & focus on doing the bloody job she was elected to do.

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  79. Kimble (4,443 comments) says:

    So just your basic salt-of-the-earth types, wynkie?

    Your romantic notions of a “heartland”, like most romantic notions, is just wishful thinking on your part.

    Question: you think you are better than some other people simply because they are from Auckland and you are not, right?

    Your provincialism is as pathetic as the worst nationalism.

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  80. Nostalgia-NZ (5,281 comments) says:

    Kimble

    ‘the best time to bring out the evidence’ best for who?

    So what if they knew or didn’t know she might take action, they realised they were making the comments outside Parliament.

    There’s no reason to accept that if ‘she knew’ they had evidence she wouldn’t be taking them to Court, she’s plainly spat the dummy on this and painted herself into a corner.

    Overall, she was the Minister it was her office where it was down loaded, the buck stops with her.

    I’m no fan of Collins but she has chosen to personalise it out of proportion, all this noise from a Minister under whose watch ACC clients details were leaked, then a document ‘leaked’ from her office bothers me. Particularly so because she is apparently so up herself she can’t focus on the broader picture and is crying over accusations made against her that have somehow penetrated her ‘crusher’ armour plating. Give her a hanky.

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  81. Nookin (3,471 comments) says:

    Wynkie

    Read my post again. It is probably relevant to the courts discretion to make the declaration. It was probably relevant when she asked for the apology because it is likely that she had not determined the relief she was seeking.

    Can you refer me to the relevant section that says that they can plead qualified privilege?

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  82. wynkie (86 comments) says:

    Got it Nookin. However none of this is irrelevant because it’s not about proving defamation – it’s about the defence.

    Yeah Nostaglgia – i agree – someone should give her a glass a milk and a cuddle. She is very precious.

    Kimble, not wishful – reality. Collins needs to get out more and listen to the people. But then the people would be too intimidated to tell her the truth about what they think as she might slap them with a defamation case! Kind of screws her effectiveness as an MP if people will only tell you what you want to hear. Yes Minister!

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  83. F E Smith (3,307 comments) says:

    Very funny, Luc, bringing up that stuff in a defamation thread!

    But before you go and get all prissy about it, I suggest you read s10 of the Defamation Act. My opinion regarding you being an anti-Semite is one that is honestly and genuinely held based, as I said the other day, on what I have read of your comments here on KB since you began commenting here. It is not a malicious opinion, I don’t say it to smear your name, but I genuinely hold it as my opinion.

    And if course you won’t find F E Smith on the register of lawyers. Rest assured that I am one; in fact, I am admitted as a lawyer in two jurisdictions and have even practiced in a third. That said, you don’t really bother me with those sorts of comments, so go for it.

    Wynkie,

    I may have missed it, but did you answers questions from the other day?

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  84. Kimble (4,443 comments) says:

    ‘the best time to bring out the evidence’ best for who?

    The best time for Little and Mallard and the Labour Party.

    So what if they knew or didn’t know she might take action, they realised they were making the comments outside Parliament.

    This matters because if these two politicians had something so politically valuable, they would want to use for political reasons before the value diminished. Assuming they had the goods, as far as they were concerned, the greatest political return would be from releasing it when it would do the most damage to Collins and National.

    Do you get it now? It was in Little’s and Mallard’s political interests to release the information if they had it. We are operating on the assumption that Little and Mallard would follow their own interests. The assumption that they wouldnt is not sustainable in the face of decades of evidence and the revealed nature of the two men.

    There’s no reason to accept that if ‘she knew’ they had evidence she wouldn’t be taking them to Court

    There IS a reason to believe that. Collins had the option to let the issue die. If there was evidence it would be revealed in court. By taking it to court Collins makes it more likely that the evidence will surface (should it even exist). It is against Collins self interest to take this matter to court IF she believes the evidence exists.

    So on my side is the assumption of the pursuit of self-interest by Little and Mallard and Collins. A very safe assumption.

    On your side is the assumption that these two Labour politicians would let a very valuable opportunity to hurt the Government pass them by, something wholly unsupported by all other evidence. On your side is also the assumption that someone who knows they are guilty would pursue a public court case that increases their chances of being caught.

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  85. Michael Mckee (1,091 comments) says:

    F E Smith (1,762) Says:
    June 1st, 2012 at 11:10 am

    As for LUC’s anti-semitism I concur on the same basis.

    As for Little and Mallard doing the right thing and making the service quick so we can get to court.
    They have behaved poorly and brought Parliament into disrepute in my eyes.

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  86. Michael Mckee (1,091 comments) says:

    Nostalgia-NZ (982) Says:
    June 1st, 2012 at 7:24 am

    I am hoping that Mallard and Little will be undone a little by Crusher, for if she can’t do it, what hope is there for us little guys?

    Mallard because he uses bullying behaviour from within parliament and Little because he needs a check up from the neck up before he gets going in his parliamentary career, and to ensure he doesn’t get into the habit of making things up as Mallard has if so many other of the commentators are correct.

    I thought he should resign over the Setchell affair at the very least, his behaviour was atrocious and undeserving of Parliament & an MP, let alone a Minister.

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  87. Kimble (4,443 comments) says:

    Now why do I think we would have never heard wynkie say, “Kind of screws her effectiveness as a Prime Minister if people only tell her what she wants to hear. Yes Prime Minister!”

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  88. Nostalgia-NZ (5,281 comments) says:

    Kimble

    If they have those goods there is no shelf life for them because the potency would remain alive for a long time. So no need for them to have rushed for fear of losing the moment. In fact they could have been taking a ‘chain of command’ view to which Collins is at the top. As I said earlier the scenarios wynkie has fowarded give JC little chance of success. I’d saying bluffing at this level was highly hazardous and JC has had the opportunity to clear her name and still proceed if she felt the need.

    As for the 2nd part re if the evidence exists, I don’t think a narrow view can be taken of that. There may be only an interpretation of evidence that ‘exists’ from which the bovver boys were able to form a ‘honestly held opinion’ and all the other interpretations of robust debate, public perception, public interest and so on until the cup of tea is cold.

    On your last point I think she harms herself.

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  89. Nostalgia-NZ (5,281 comments) says:

    Michael McKee

    I agree to some extent but the question remains as to who gets laughed at the most, or is seen as the most disliked. I can’t see any of the 3 benefiting long term from this, while unfortunately the sideshow has over shadowed the series of leaks and taken the importance away from that – maybe that was the design, then it turned into a game for 3 not very mature politicians.

    Most recently all we hear from each of the individuals are personal attacks, maybe we should ask for a fast forward to the trial and hope that it is screened live

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  90. Kimble (4,443 comments) says:

    If they have those goods there is no shelf life for them because the potency would remain alive for a long time.

    That is such lame bullshit, so easily refuted. Compare:

    The Minister just lied!!! These documents prove that she doesn’t know what’s going on in her department right now!!! She is incompetent and this evidence means that the PM has a duty to act and remove her at once!

    VS

    The former Minister of ACC lied 4 years ago! She didn’t know what went on in her department well before the last election, back before she had retired! She was incompetent and this evidence (which we only reveal now for some reason) show that, had the PM known about them (which we cant prove right now) he should have acted to strip her of the portfolio!

    The value of the evidence would be at its peak when the issue was freshest. QED.

    The evidence has changed from being a weapon with which to bash the government, to a shield to protect the opposition. Your position is only defensible if you hold that the opposition is politically inept. You have said nothing along those lines, so your position remains illogical.

    Either step up your game, or piss off.

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  91. Nostalgia-NZ (5,281 comments) says:

    Kimble

    I can understand your frustration and need for spin.

    But they already said she leaked it, and she’s squealed no I didn’t I’ll sue you. By not withdrawing, they’re effectively saying that she’s lying. And it’s not 4 years ago, it’s present.

    Isn’t she already in a bad position, out on a limb with her law suit that she, rather than having financial support from her own party? The message is clear if you just listen. She built the ‘offence’ she took at the comments but generally I’d say the public don’t care. Maybe she needs two hankys.

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  92. Luc Hansen (4,573 comments) says:

    I see F E Smith has deflected again from the point of my question: on what basis does he label me anti-Semite?

    Since you are a lawyer – that was questioned by a commenter, hence my question on it to you – surely you, of all people, should be able to string together enough words for a clear expression of actual evidence for your “honesty held opinion.”

    My position is clear: I have never, to the best of my ability, expressed any sentiments that could be interpreted as anti-Semite. I recoil from all racism or discrimination – and field many objections here to that very stance.

    Of course, for many, simply objecting to the behaviour of one of the world’s leading rogue states, Israel, is enough to utilise that smear. It sure beats reasoned argument, I suppose. I trust you can rise above that particularly elevated level of risibility.

    Again, I look forward to your reply.

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  93. Kimble (4,443 comments) says:

    By not withdrawing, they’re effectively saying that she’s lying.

    Why just SAY that she’s wrong, when they can prove it?

    Thats why your opinion is so absurd. Where is the value for them in having people think they are lying, when they can prove they arent?

    You will not even entertain the POSSIBILITY that they lied, that Collins is right, or that there is no evidence. I think it is because you CANNOT.

    It is really sad how your political biases are forcing you to corrupt your perception of reality. Its as pathetic as a creationist insisting that the world is 5,000 years old.

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  94. Kimble (4,443 comments) says:

    I recoil from all racism or discrimination…

    Bullshit. You discriminate just as much as anyone else. You just think the focus of discrimination is more just than anyone else’s.

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  95. Luc Hansen (4,573 comments) says:

    I’m not quite with you Kimble.

    Do you mean I have cognitive biases? Of course I do. The difference between me and F E Smith and others here is that I can think my way through my childhood conditioning.

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  96. Kimble (4,443 comments) says:

    Luc, your biases are based on wealth. Rich people are like this, poor people are like that. Zionists are bad, Palestinians are good.

    Everyone discriminates and, whether or not you are an anti-semite, you do too. Saying you recoil from ALL discrimination is bullshit.

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  97. Kimble (4,443 comments) says:

    I wouldnt be surprised if you DID discriminate on race, just reversing the roles. You seem the sort who would apply a lower standard to particular people, you know, because you cant expect them to act any other way.

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  98. jupiter (8 comments) says:

    I have always accepted the principles of open government and this issue makes a mockery of Collins and our Nation, as NZ sinks further into the mire and our hapless Minister throws her dollies and spits out her dummy.

    Pathetic, immature and very very adolescent.

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  99. bhudson (4,741 comments) says:

    Pathetic, immature and very very adolescent.

    Perfect descriptors of the behaviour of Little and Mallard. (Of course the longer they keep it up, the longer we will have the strong, stable leadership of a National-led government.)

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