“Prior to the conference, counsel for the defendants filed a joint memorandum signalling both defendants [TVNZ and Hattotuwa] seek indemnity costs,” said Clark in a minute released on Friday afternoon.
“The costs sought are against Mr Batchelor and also Mr Grenon as a non-party.”
The judge noted a lawyer was appearing for Grenon on the conference call.
NZME director and shareholder Jim Grenon. Photo / Dean Purcell
While lawyers for the defendants suggested the application for costs could proceed by way of memoranda, the judge ruled against that process.
“Although there is merit with this suggestion, given Mr Grenon’s now involvement and that there is a possibility evidence may be given, I decline to proceed down this pathway.
“A more formal process should occur.”
On that basis, the judge said that if costs were sought against Grenon, TVNZ and Hattotuwa should file an application by May 1 seeking non-party costs against him.
“Although an application for costs is strictly unnecessary against Mr Batchelor, the application should also set out the claim against Mr Batchelor.”
The judge said Batchelor and Grenon would have until May 15 to file “any notices of opposition and any affidavit evidence they wish to rely on”.
Submissions would then be received from lawyers at different deadlines over the following 11 days, with a tentative hearing date set down for May 28.
“I acknowledge costs are generally dealt with on the papers,” said the judge in his minute.
“If counsel are in agreement, costs can be dealt with in this manner, then the hearing will be vacated. If there is any disagreement on this issue, the hearing will proceed.”
A TVNZ spokeswoman said: “TVNZ won this litigation and so we’re entitled to our costs. Julian Batchelor hasn’t agreed to pay our costs yet, and so we’re making a formal application to the court for our costs to be met. As you have seen, Jim Grenon asked to be heard, so now he is involved in the process.”
Grenon has also been approached for comment.
The case
Judge Clark ruled last month that Batchelor’s defamation case was “wholly unsuccessful”.
Anti-co-governance campaigner Julian Batchelor unsuccessfully sued TVNZ over an online article in 2023.
Batchelor – the Stop Co-Governance campaigner who was adamant he had been wronged by TVNZ in an August 2023 news report that essentially labelled him as racist – revealed during the hearing that his case was being funded by Grenon.
Grenon is now a director and the largest shareholder of NZME, with a stake of more than 19.90%.
Last year, he led a successful campaign to overhaul the board of the media firm, unhappy with its performance on a number of fronts, including its editorial endeavour.
According to Batchelor, Grenon called him in 2023, after seeing the TVNZ story, which was focused on a Stop Co-Governance pamphlet. Batchelor told the court in December that Grenon said to him: “I’ve been following you, I don’t think you’re a racist. I think we should sue TVNZ.”
While Judge Clark found comments in the TVNZ story were defamatory, the state broadcaster and Hattotuwa successfully defended their position on several points of defamation law, including honest opinion and responsible communication in the public interest. Hattotuwa also successfully employed the truth defence.
Jim Grenon’s involvement and the issue of costs
During the trial, defence lawyer Davey Salmon KC painted Jim Grenon as a puppeteer. “Something seriously rotten sat behind this claim,” Salmon told the court. “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.”
He described the case as “a Trojan Horse for someone else to have a tilt at the state broadcaster and an academic”.
In his decision, Judge Clark grouped various issues under one subheading: “Lack of Discovery; Inadmissibility of Evidence; Who was Paying Mr Batchelor’s Legal Costs? Assignment of the Claim? Abuse of Process?”
He noted: “What occupied some focus during the hearing were issues of [a lack of] discovery by Mr Batchelor; admissibility objections of some evidence; the refusal by Mr Batchelor to answer a question about who funded [the Stop Co-Governance] pamphlet and the discovery Mr Batchelor was not paying his legal costs but instead, they were being paid by a Mr Grenon.
“To a greater or lesser extent, each issue led to the point that in closing, the defendants were highly critical of Mr Batchelor’s conduct, which they say has led to an abuse of the court’s processes.”
The lawyers acting for Sanjana Hattotuwa and TVNZ – Davey Salmon KC (left) and Daniel Nilsson (right). Photo / Dean Purcell, file
However, said the judge, the distractions “had little or no impact on my assessment of the merits of Mr Batchelor’s claim”.
Issues over the lack of discovery, for example, had not “hindered my assessment of the evidence”.
“However, in saying that, I reserve the right for the defendants to refer to this issue again when costs are considered”.
He said that right extended to the issue of Grenon’s involvement in the proceedings.
“His involvement comes in two forms,” Judge Clark said.
“The first is the question of who is the real plaintiff in this proceeding? The second goes to the question of costs. If Mr Grenon is paying the legal costs of Mr Batchelor, then what exposure does Mr Grenon have to an adverse costs award against Mr Batchelor?”
Clearly, said the judge, Grenon’s “presence was unknown until Mr Batchelor was required by the court to answer the question of who was funding his legal costs”.
“But rather than this having any influence on my determinations of the merits of the claim, it is an issue which will go to costs, particularly when, as I commented during the hearing, Mr Grenon has not had an opportunity to address the court.”
The judge noted the issue of costs would not be straightforward. The next step was a telephone conference – this was the call that was held on Friday morning.
“At the conference, timetabling for cost submissions will be discussed as well as whether Mr Grenon wishes to be heard and, if so, how.”
During the case, the judge signalled it was important to note Grenon had not been heard.
“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.
“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’.”
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.