“There’s no evidence to support the submission that Mr Grenon has assumed control of these proceedings or that the cause of action has been assigned.”
Julian Batchelor speaks at an anti-co-governance meeting in 2023.
Judge David Clark has reserved his decision following a four-day civil hearing in the Auckland District Court. He indicated he would deliver a decision after the Christmas break.
Subject to that decision, lawyers for TVNZ and academic Dr Sanjana Hattotuwa believe they have a case for indemnity costs for what they say is a matter that should never have made it to court.
“Something seriously rotten sat behind this claim,” said Davey Salmon KC, in his closing submission.
“If this is not a case for indemnity costs, then respectfully, what is? Billionaires should not be allowed to play with litigation behind a cloak of invisibility.”
The story
Batchelor is suing TVNZ and Hattotuwa for a 1 News website article in August 2023, focused on a ‘stop co-governance’ pamphlet distributed by Batchelor.
The article quoted Hattotuwa, then a research director for The Disinformation Project, as saying: “It is what you would call dangerous speech. It incites hate, and it instigates harm offline. This is racist rhetoric. This is colonialism’s long shadow.”
Batchelor said his reputation was harmed by what Hague described today as “serious allegations”.
The Stop Co-Governance pamphlet which was the centre of focus of a TVNZ story in August 2023.
TVNZ and Hattotuwa are defending their actions on several points of defamation law, including honest opinion, truth and responsible communication in the public interest.
Earlier in the trial, and under cross-examination, Batchelor revealed that his legal costs were being funded by Grenon, who is a shareholder and director of NZ Herald publisher NZME.
Batchelor told the court that Grenon had called him after seeing the TVNZ story, offering his help. Batchelor later met him at Grenon’s home.
Batchelor told the court that Grenon said to him, “I’ve been following you, I don’t think you’re a racist. I think we should sue TVNZ.”
Businessman and NZME director and shareholder Jim Grenon. Photo / Dean Purcell
In court today, Salmon asserted that, “Mr Grenon kept his involvement secret from this court”.
“So that is bad, and it is an abuse, and I don’t say that lightly at all.”
Judge Clark said Grenon had not been in court, and his side of the story was not known.
In terms of natural justice, both the judge and Salmon said Grenon had a right to be heard.
‘A bad state of affairs’
Salmon opened his closing address by outlining “a bad state of affairs”.
“It’s bad substantively. It’s bad procedurally in the sense that the case appears to be an abuse.”
Later, Salmon said it was “abundantly clear” that Batchelor had not planned to sue.
“It wasn’t really his idea.
“These weren’t his targets, and we can see that he’s not the guy who was naturally suing other people for things.
“He had been called terrible things by others and didn’t care.
“He was barely across key aspects of his own case. He didn’t know whether he’d ever paid the lawyer anything, but Mr Grenon was paying for all of this.”
He described the case as “a Trojan Horse for someone else to have a tilt at the state broadcaster and an academic”.
“Why would Mr Grenon do this? We don’t know. He needs natural justice and a chance to be heard on that.
“Were there ulterior motives that need to be investigated? We don’t know – natural justice again.
“What we do know here is that this has been a tortious claim.”
Grenon is travelling overseas and declined to comment to the Herald earlier this week.
Batchelor’s position
Matthew Hague, acting for Batchelor, said today his client accepted and had given evidence that he received support from Grenon.
However, he said it was Batchelor who had wanted to take legal action.
“Mr Batchelor said, ‘I was shocked by the article. I was very hurt by it.’ This confirms Mr Batchelor’s motivation to sue. I don’t think there can be any question about Mr Batchelor’s desire to bring these proceedings.
“It was personal, albeit shared, but it was not imposed, and it was not abdicated to Mr Grenon.
“He gave evidence that Mr Grenon, in his words, was picking up the bills, but Mr Batchelor also gave evidence that he had paid for part of the matter.
“There’s no detail about what parts, but Mr Batchelor’s clear evidence was that there were some parts that he paid for, so it wasn’t entirely paid by Mr Grenon.”
Judge Clark said there were various scenarios.
“There’s an interpretation which can go from one end of the spectrum, which is that these proceedings, in terms of the claim, were controlled and conducted by a third-party funder, which falls outside the auspices of this court.
“And that’s just a hard no – that should never happen.
“Through to there’s a person who just wants to help with the litigation because they generally feel that this is a person who has been grievously wronged by the defendants and can’t afford the cost of a lawyer, and is prepared to help.
“Where we land on that, I just don’t know. I’m slightly uncomfortable about where we try to land on it at this early stage because one, I haven’t made a decision in the case, and two, the funder himself has not been heard in this court.
“We’ve heard someone say this person is funding it. We haven’t heard from him saying, ‘Well, hang on. It’s not quite right.’… or, ‘Yes, it’s absolutely right, but I still don’t think I’ve done anything wrong here’.”
Salmon also criticised the way that Batchelor had refused to reveal during the trial the names of the key funders of the pamphlet.
During the hearing the judge considered several options, including taking an adverse inference out of Batchelor’s refusal, holding him in contempt, or striking out the proceeding.
He rejected the latter two options as draconian at that stage of the trial.
The defamation case
Lawyers Davey Salmon KC (left) and Daniel Nilsson. File photo / Dean Purcell
The lawyers for TVNZ and Hattotuwa said their defence on the principles of truth, responsible communication in the public interest and honest opinion were all made out.
Lawyer Daniel Nilsson defended TVNZ’s story, saying it was an illustration of good public-interest journalism. “We shouldn’t have been here in the first place.”
He said the article was carefully written and balanced and did not accuse Batchelor of being racist. It focused on his rhetoric and statements, not a direct attack on his character.
He said TVNZ’s Māori Affairs correspondent Te Aniwa Hurihanganui, was “clear, calm and compelling” on the witness stand; Batchelor, he said, was “combative”.
However, Hague argued that the sentence devoted to Batchelor’s denial in the article was “bland” and “inadequate”, and lacked detail and nuance.
Former TVNZ presenter Peter Williams and (inset) anti-co-governance campaigner Julian Batchelor. Photos / TVNZ, NZME
An expert witness for Batchelor, former TVNZ host Peter Williams, earlier testified that Hattotuwa’s comments took up more than 200 words in the 600-word article; Batchelor’s position was outlined in 10 words.
Hague said his client did not recall the reporter putting to him any of the specific claims and assertions made by Hattotuwa.
He said the reporter also should have sent to Batchelor a document that Hattotuwa had written in which he outlined his concerns about Batchelor’s position and comments.
“The tone of the article was unbalanced. It presented Dr Hattotuwa’s assertions as authoritative conclusions, whereas the plaintiff was framed as being under investigation [by the Electoral Commission].
“And this is in the context as well of the word ‘unfounded’ to describe the plaintiff’s political views in the pamphlet. All of this tone was weighted against Mr Batchelor.”
Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME including Managing Editor, NZ Herald Editor and Herald on Sunday Editor and has a small shareholding in NZME.