The plaintiff, Mr Laws issued proceedings for defamation against the Otago University Students Association (“the Association”) for adverse comments it had published in a student magazine.
Mr Laws applied to strike out the Association’s defences of honest opinion and no causation of damage. The Association in turn sought dismissal of Mr Laws’ application, or summary judgment as an alternative. Neither party was successful in their respective applications.
Mr Laws is a former mayor, MP, and DHB board member. He currently sits as the deputy chair of Otago Regional Council. On 4 September 2018 Mr Laws made a post on his Facebook page commenting on a BBC story on the killing of elephants in Botswana -
"Since I was a small child I’ve always believed that Africa represents the very worst of humanity – that our ancestors walked out of the continent because they were smart enough to make that assessment. Jesus wept."
The Association publish a magazine called Critic, both online and in print. On 6 September 2018 the Association published an article online with the headline:
"Otago Regional Councillor Calls Africa ‘very worst of humanity’"
Critic call Michael Laws a “racist shitbag”
Mr Laws claimed the headline was defamatory of him, and issued proceedings for damages against the Association.
Strike out applications
A District Court has the power to strike out all or part of a proceeding if it determines there is no reasonably arguable cause of action or defence. The Association sought dismissal of Mr Laws’ proceedings, and relied on three defences. The first was the words were not defamatory. The second was they were a genuinely held honest opinion. The third was Mr Laws suffered no loss of reputation as a result of the words.
The Association also applied to strike out Mr Laws’ proceeding on the basis that his statement of claim breached s 43(1) of the Defamation Act 1992 by specifying the amount of damages. Judge Kellar put this issue to one side, and indicated Mr Laws could easily rectify the matter by filing an amended statement of claim.
Were the words defamatory?
The Court had no difficulty in viewing the words “racist shitbag” as capable of being defamatory in its meaning and the circumstances in which it was used.
For a defence of honest opinion to succeed, the opinion expressed must be the defendant’s genuine opinion rather than a statement of fact. Mr Hilton, the author of the article, stated “racist shitbag” was his honest opinion. He claimed people who privileged their own race over others, as he stated Mr Laws had done, are racist enough to be reasonably described as “shitbags”.
Mr Laws asserted the opinion was not genuinely held. The Association had not made a genuine attempt to contact Mr Laws for comment before making the publication. The insulting language further suggested the opinion may not be genuinely held.
The Court held it was at least arguable the words were an expression of opinion rather than an imputation of fact. Because of this, Mr Laws’ application to strike out the defence of honest opinion failed.
No loss of reputation
The Association argued any reasonable reader of Mr Laws’ Facebook post would come to the same conclusion the article reached, minus the critical language it employed. The Court acknowledged Mr Laws’ actions in making the post could have harmed his reputation. Despite this, it was arguable additional harm was caused by Critic Magazine calling him a “racist shitbag”. While Mr Laws’ application to strikeout this defence failed, it was a matter for trial whether the words had caused damage.
As an alternative to the defences it raised, the Association sought summary judgment without further trial. Judge Kellar noted that summary judgment is only appropriate where there is a complete and incontrovertible answer on the facts. In this instance, the Court held the matters before it were sufficiently unclear to require a proper trial. This included a determination of whether Mr Laws was entitled to compensation, and how much he ought to be compensated.
Mr Laws’ application to strike out the defences of honest opinion and no loss of reputation was unsuccessful. The Association also failed in its application to strike out Mr Laws’ claim or seek summary judgment. The Court noted the Association should provide further particulars specifying the facts they intended to rely on when establishing their defences.
Further proceedings will be necessary to determine whether the headline published in Critic magazine is protected by the defence of genuinely held honest opinion or no loss of reputation.