Appeal from High Court decision striking out bad reputation pleading in defence to defamation claim – test for establishing harm to reputation as an element of the tort of defamation – relevance of previous bad reputation – applicability of common law restriction on raising specific matters
Television New Zealand Ltd v Talley’s Group Ltd [2024] NZCA 502
Between July 2021 and May 2022, TVNZ broadcast a series of stories about Talley’s, AFFCO, and South Pacific Meats (collectively, the Talley’s Group) on its 1News at Six program. The stories contained investigative reports concerning the health and safety standards at Talley’s Group sites, and the way in which the Talley’s Group handled claims by injured workers. The broadcasts were accompanied by articles published on the 1News website.
The Talley’s Group sued TVNZ and one of its journalists, Thomas Mead, in defamation, asserting that the overriding message of the publications was that work conditions at their factories were needlessly unsafe, management was turning a blind eye and the businesses were being run in a manner detrimental to the employees. The relief sought by the Talley’s Group were declarations that it had been defamed and indemnity costs.
As part of its defence, TVNZ pleaded that the Talley’s Group already had a bad reputation, such that the publications did not cause the requisite level of harm to reputation to succeed with a defamation claim (the bad reputation pleading).
TVNZ identified a series of specific instances of alleged misconduct by the Talley’s Group in relation to workplace health and safety issues going back to 2001. TVNZ sought to use the bad reputation pleading as an affirmative defence to the claims for declarations and indemnity costs.
The Talley’s Group successfully applied to the High Court to strike out the bad reputation pleading. The High Court concluded that the bad reputation pleading was not relevant to the reputational harm element of the cause of action or as an affirmative defence and that it was inconceivable that any previous bad reputation was an answer to the Talley’s Group’s allegations.
TVNZ appealed from the High Court decision, seeking orders reinstating its bad reputation pleading.
Applicable principles: Defamation Act 1992, ss 24, 30, 42 – what is the test for establishing harm to reputation as an element of the tort of defamation? (‘more than minor’ harm) – is bad reputation relevant to an element of the cause of action, or as an affirmative defence? (relevant to an element of the cause of action, but not in relation to affirmative defences) – is the bad reputation pleading subject to the common law restriction on raising specific matters? (no) – do the pleaded instances of bad reputation relate to the area of the Talley’s Group’s reputation at issue in the proceedings? (yes)
Held: The appeal is allowed in part. The decision of the High Court striking out the appellants’ bad reputation pleadings is set aside and the relevant paragraphs of the statement of defence are restored.
The decision of the High Court striking out the third and fourth affirmative defences – which pleaded that no declaratory relief should be given and no award of indemnity costs awarded, because of the pre-existing bad reputation – is upheld.
Note: The court observed that because reputational harm is an element of the tort, a defendant can put in issue whether the publication had no actual impact, or only a minor impact on the plaintiff’s reputation because it was already so poor and that no financial loss was likely.
The bad reputation plea is only, however, relevant to the reputational harm element of the cause of action. If that element is satisfied, a declaration and the award of indemnity costs ought not to be withheld as a matter of discretion because of existing bad reputation.
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