What happened to the claims this would never go to court?

July 18th, 2012 at 10:00 am by David Farrar

Stuff reports:

ACC Minister begins court action against Labour MPs and for today.

The High Court list for Auckland yesterday named Judith Anne Collins v Trevor Colin Mallard and Another for first call before Justice Geoffrey Venning.

Collins has accused the two MPs of defaming her in relation to a leaked email from former National Party president Michelle Boag.

Boag had emailed Collins about a case involving ACC claimant Bronwyn Pullar, who blew the whistle on ACC inadvertently releasing her details about thousands of ACC claimants.

Defamation cases often take some time to come to court with both sides jockeying to set the terms of the case.

Today’s hearing is a face-to-face conference for lawyers to plot out the case’s timetable and sort out how it is going to be run.

Both sides have retained senior and experienced counsel with Collins being represented by Queen’s Counsel Julian Myles and Mallard and Little represented by Wellington lawyer John Tizard.

Collins is not seeking damages – just a declaration that the statements made were untrue and defamed her, and of course her costs.

UPDATE: The application by Mallard and Little for a stay of proceedings until the report of the Privacy Commissioner is done was declined by the Judge. The settlement hearing is in November (the report is due in September anyway, but could of course be delayed) and the trial in February 2013.

 

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39 Responses to “What happened to the claims this would never go to court?”

  1. peterwn (3,335 comments) says:

    If ‘going to court’ means an actual trial, it is IMO unlikely to go to court. What one is now witnessing is a game of ‘chicken’ between the opposing sides. My guess is it will ‘settle’ just before the actual trial with one side capitulating but trying to save as much face as possible.

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  2. Pete George (23,830 comments) says:

    @TrevorMallard
    Round one to Mallard and Little – next round not till November after privacy comm reports on leak @johnkeypm in court next year

    This is more ‘a game of duck’.

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  3. Keeping Stock (9,381 comments) says:

    It’s still moving very quickly for something that Mallard told 3News was “a vexacious action”…

    http://keepingstock.blogspot.co.nz/2012/07/see-you-in-court-trevor-and-andrew.html

    I reckon that Messrs Mallard and Little have underestimated Ms Collins’ resolve to see this through.

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  4. david (2,194 comments) says:

    Stuff says “Defamation cases often take some time to come to court with both sides jockeying to set the terms of the case.
    Today’s hearing is a face-to-face conference for lawyers to plot out the case’s timetable and sort out how it is going to be run. ”

    Well how about that. mighty cosy for the lawyers it seems. Surely a defamation case is like any other case. One side makes a complaint against the other under the provisions of an act of Parliament and the other side attempts to prove that it is not justified.

    Can someone please tell me in words of one syllable just why “rules need to be set” and “timetables agreed” when the rules of our court system are well established already?

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  5. Tauhei Notts (1,687 comments) says:

    Pedantic possibly;
    but
    is counsel Mr Julian Miles?
    If so then I have much more respect for him than I had for Giblet Miles, a former M.P.
    Gilbert reminded me of a chicken’s offal.

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  6. alex Masterley (1,535 comments) says:

    David,

    This will not be in one sylable.

    Yes there are rules in the court system. What is happening today falls within those rules.

    The case brought by Ms Collins has been placed into an active case management system.

    That means instead of meandering along at the whim of the client or lawyer or both, the court imposes timetable orders on the various steps that are required to be taken before the case goes to trial. If there are failures to meet timetabling orders there can be cost consequences.

    The whole point is about speeding up the process so a hearing date is obtained sooner rather than later.

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  7. Paulus (2,711 comments) says:

    Still gonna be expensive.

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  8. alex Masterley (1,535 comments) says:

    Yes, It will.
    According to the NBR the case will be heard early next year.

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  9. Viking2 (11,680 comments) says:

    And the taxpayer will get suckered again with most of the costs. Costs just are not high enough to deter this crap. Probably they should be.

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  10. Pete George (23,830 comments) says:

    Costs just are not high enough to deter this crap. Probably they should be.

    Isn’t this sort of case uncommon? If so that would suggest most are deterred from taking this sort of action. And the occasional case to test the boundaries – of law and behaviour – should be a good thing.

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

    Viking2,

    in what way will the taxpayer be suckered? The Courts are provided by the Crown as a disputes resolution service. There are fees for filing a claim, and it costs more money in Court fees to progress each step. The fees won’t cover the full cost to the Court, but they aren’t cheap by any means.

    Collins is paying for her own lawyers, at least. I don’t know about Mallard and Little.

    So on what basis do you say that the ‘taxpayer will be suckered’ and how would having higher costs deter the case? Or are you just allowing your hatred of all things to do with the Courts to sway you?

    EDIT: Pete,

    Yes, defamation cases are relatively uncommon in NZ.

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  12. Pete George (23,830 comments) says:

    @GraemeEdgeler
    The APNZ article on the @TrevorMallard defamation claim implies he’s not defending it on the basis that what he said was true. Intriguing.

    The majority of today’s court hearing cannot be reported, other than the directions given by Justice Geoffrey Venning.

    He said the key issues in the case were whether the comments made by Mr Little and Mr Mallard were on an occasion of qualified privilege; whether they were motivated by ill will; and whether they took improper advantage of the circumstances.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10820404

    That does suggest an angle of justified mistruth, and doesn’t mention any claim the statements were or could be true. But…

    @TrevorMallard
    Time yet.

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  13. Pete George (23,830 comments) says:

    I wonder if Mallard has had legal advice on the risks of a running commentary on Twitter about the case. Seems very odd to be saying so much about a case in progress.

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  14. wynkie (86 comments) says:

    My view is there is no way in hell this is going into court as the case has the potential to be very embarrassing to National and has the potential to bring down the Government.

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  15. wynkie (86 comments) says:

    Further Little & Mallard can easily defend their position, and Collins chance of success are slim at best.

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

    wynkie,

    based upon what information? Are you a defamation lawyer? If you are correct, then the Court should obviously severely criticise Collins’ lawyers…

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  17. alex Masterley (1,535 comments) says:

    hmmmm
    wynkie or Julian Miles QC?
    I know who I would rather have on my side.

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  18. Pete George (23,830 comments) says:

    FES – your thoughts on this? Trevor Mallard’s commentary on defamation.

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  19. Pete George (23,830 comments) says:

    The judge is reported: “He said the key issues in the case were whether the comments made by Mr Little and Mr Mallard …whether they were motivated by ill will; ”

    Mallard keeps repeating things like “Very happy with High Court decision to delay next hearing till November and case to next year. Though I’m looking forward to watching Key explain why he had to ask Collins twice about leak.”

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  20. Nookin (3,570 comments) says:

    I think Mallard might get a fright. Key doesn’t have to answer anything unless Mallard calls him. There seems to be no reason why Collins has to call him If the words are defamatory then Mallard has to establish the defence.

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  21. Mark (1,502 comments) says:

    If Collins does not win this she is going to look a complete arse so the stakes are rising for both sides.

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  22. bhudson (4,741 comments) says:

    Perhaps the govt could introduce legislation prohibiting Mallard from ever retiring?

    Or would that be interpreted as rigging the elections (in National’s favour)

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  23. Pete George (23,830 comments) says:

    Mallard suggested recently he is mid-career, so no legislation required. Unless 20% affiliates exert their influence?

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  24. ross69 (3,652 comments) says:

    > Key doesn’t have to answer anything unless Mallard calls him.

    Quite right, Key can say nothing and simply give the appearance that he doesn’t trust Collins as far as he can throw her.

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  25. ross69 (3,652 comments) says:

    > If Collins does not win this she is going to look a complete arse

    She already looks a complete arse. The PM seems to lack confidence in her and of course she has failed to explain why she printed off a copy of the Boag email, why she forwarded the original email to others, and who had access to both the original and copy. But she is 100% certain that the leak didn’t come from her office. I didn’t realise she had ESP.

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

    Pete,

    Well, I am not a defamation lawyer. Alex Masterley would be the better person to ask, I think, but I can point out that a witness cannot be called simply because one side wants to embarrass him/her. The evidence the witness gives has to be relevant to the issue before the Court. I cannot see how John Key could give any evidence on whether Mrs Collins’ office leaked the information or not, and certainly not that could come from a more direct source that the PM.

    But, perhaps he has information on the matter that nobody else has. That said, don’t forget that the defence lawyers in the Diplomatic Protection Service speeding case wanted to call Helen Clark and weren’t allowed to. I think that her evidence would have been far more relevant to that case than John Key’s would be to this, so I would be surprised if he ended up giving evidence, even if he is subpoena’d.

    Stranger things have happened, though!

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  27. Pete George (23,830 comments) says:

    ross69 – I think you’re the one looking an arse there. Have you got ESP? Or do you wipe Mallard’s?

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  28. Nookin (3,570 comments) says:

    Pete

    Ross69 has never made a constructive comment here and you should never expect one. He has no idea of the issues and is content to rely on his intense dislike for Collins, Key etc as proof of anything adverse about them. Mallards tweets (twats?) that Collins will call Key. She has no reason to do so. If the words are defamatory in their ordinary sense then the defense have to prove truth, honest opinion or privilege. If Mallard wants to prove that Key doesn’t trust Collins then he has to call Key or someone else who can give relevant evidence. Pulling it out of own’s backside, as Ross69 is so prone to do, is not generally regarded as relevant evidence.

    He lives under a bridge.

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  29. KH (695 comments) says:

    Judith Collins is going up and up in my estimation. The real world is slowly dawning on Mallard. Or maybe it isn’t.

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  30. joana (1,983 comments) says:

    Collins is just another attention seeker ..Another National party fake female in the tradition of Shipley and Richardson. Do these women actually have any women friends? I seriously doubt it.

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  31. big bruv (14,224 comments) says:

    joana

    “fake female”???

    Does she not have enough hair on her top lip for you?

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  32. ross69 (3,652 comments) says:

    > If Mallard wants to prove that Key doesn’t trust Collins…

    It’s already been proven. Key asked Collins not once but twice if she leaked the email. Didn’t he believe her the first time? Does he believe her now?

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  33. Keeping Stock (9,381 comments) says:

    @ ross69 – do you make this shit up yourself, or do you wait for Trevor to send you the e-mail with the talking points? Just wondering…

    But if Mallard and Little’s sole defence to this defamation suit is that John Key twice sought reassurances from Ms Collins that she didn’t release the Boag letter, they really are in deep schtuck. They should cut their losses now and settle, because any credibility they may have (and it isn’t much) will go out the window in February.

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  34. Pete George (23,830 comments) says:

    ross69, the only thing you have proven is that you are Mallard’s mouthpiece.

    And there could be a major flaw in your/his claim. The case is based on the facts and motivation of Little and Mallard when they made their comments, not on tweeting irrelevant and ridiculous excuses after the fact.

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  35. ross69 (3,652 comments) says:

    KS

    Are you saying you didn’t know that Key twice asked Collins about leaking of the email? Why would Key do that?

    http://www.3news.co.nz/Ministers-computers-part-of-email-inquiry/tabid/1607/articleID/248434/Default.aspx

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  36. ross69 (3,652 comments) says:

    Pete,

    Try adding something of substance, if you can. Maybe you’d like to address the comment I made earlier. Here it is again:

    The PM seems to lack confidence in her and of course she has failed to explain why she printed off a copy of the Boag email, why she forwarded the original email to others, and who had access to both the original and copy. But she is 100% certain that the leak didn’t come from her office. I didn’t realise she had ESP.

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  37. Pete George (23,830 comments) says:

    I’m not an expert on defamation cases, but I’m willing to bet that John Key won’t come on to KB and make a confession that he got the same answer twice. And I think trev69 would do better talking more to his lawyer and less on social media, but maybe he’s searching for anything to defend himself on.

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  38. Nookin (3,570 comments) says:

    Gee. Ross69 believes everything he reads in the paper — so long as it has an anti government lean.

    I interview people all the time. Sometimes I ask the same question more than once or in different ways. It has nothing to do with trust. It’s a way of getting the full picture. There is absolutely nothing unusual about the way Key went about this, based on the report that Ross refers to. Key would have been remiss had he not asked robust questions.

    E-mail that I get is also confidential;. I print just about every one — not because I am going to leak it but because I store hard copies and some documents are a damn sight easier to read and respond to if printed.

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  39. Keeping Stock (9,381 comments) says:

    I’m well aware of what Key asked Collins ross69. It’s what any prudent PM would do.

    And I remember how it panned out with David Benson-Pope. When Helen Clark found out that he had misled her, suddenly Gerry Brownlee was asking a question the the House that was so explicit that Benson-Pope had no alternative but to admit the error of his ways, and resign as a Minister. Have a read of this:

    Environment, Ministry—Communications Manager

    6. GERRY BROWNLEE (National—Ilam) to the Minister for the Environment: Did the Chief Executive of the Ministry for the Environment ever ask him for his opinion on the appointment of Madeleine Setchell as the communications manager of the ministry; if so, what did he say?

    Hon DAVID BENSON-POPE (Minister for the Environment) : No; I had one conversation with the chief executive relating to this matter before it was resolved. That conversation happened when he drew me aside in the context of a meeting about other issues and advised me there was an issue he was dealing with involving the partner of a National Party staff member, and that he had formed a preliminary view that there was a conflict of interest and that he was working with the State Services Commission to manage that issue. I noted two things: first, that this was clearly an employment issue and therefore his responsibility alone to manage, and, secondly, that from the point of view of my office I would likely be less free and frank in meetings with such a person. That was a statement of the obvious.

    Gerry Brownlee: What miraculous events have occurred overnight for the Minister to have this greater recollection of the meetings held on 29 May that he could not remember yesterday, and has he also perhaps forgotten that he did say to Mr Hugh Logan: “I won’t have that woman in my office.”?

    Hon DAVID BENSON-POPE: No miraculous events have occurred and I did not make that statement.

    http://www.parliament.nz/en-NZ/PB/Debates/Debates/a/9/9/48HansD_20070726_00000027-Questions-for-Oral-Answer-Questions-to-Ministers.htm

    The “miraculous events” that Brownlee referred to were of course Benson-Pope’s admission to his boss that he lied, and Heather Simpson’s reaction; telling Brownlee exactly what question to ask to ensure that Benson-Pope had nowhere to hide. Don’t you think that Key may have done something similar had he had any doubts as to Collins’ reassurances?

    Mallard and Little are in a similar position to that in which Benson-Pope found himself on the night of 25 July 2007. They are stuck fast between a rock and a hard place, and all the bluff and bluster in which they specialise won’t impress the Judge who hears the trial one iota. And guess what; it couldn’t happen to two more deserving blokes.

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