Simunovich and the Defence of Truth

Abstract

The Supreme Court judgment in APN New Zealand Ltd v Simunovich Fisheries Ltd and Ors (Simunovich) was a significant defamation law ruling that determined the necessary pleading and evidential requirements to prove a defence of truth. In the biggest defamation claim in New Zealand’s legal history, Simunovich Fisheries claimed it was defamed by media allegations of corruption in the fishing industry. This essay will analyse and assess Simunovich with a focus on its treatment of the defence of truth for a defamation claim. The defence of honest opinion was also discussed in the case, but is outside the scope of this study. Simunovich rules on the requirements for the establishment of a successful defence of truth, and clarifies issues relating to the form of pleadings necessary for the defence in light of the statutory and common law requirements. The Court needed to consider the implications of the common law repetition and conduct rules, and synthesise these principles with the requirements in the Defamation Act 1992 and the Evidence Act 2006. Significantly, Simunovich states that third party statements are inadmissible as evidence for a defence of truth, if such statements cannot be independently proven to be true. Potential particulars and admissible evidence are thus further limited by the case, even if the evidence comes from an objectively reliable source. This essay argues that the Simunovich ruling is too restrictive where a defamatory meaning of reasonable grounds to suspect guilt is pleaded, rather than an allegation of actual guilt. Objectively reliable third party statements, such as those made by the judiciary, may be highly relevant factors in proving the existence of true grounds for suspicion, and should not be excluded as evidence for the defence of truth. The future implications of the ruling in Simunovich for media publishers will also be discussed. Simunovich places a high burden on the media, requiring them to be able to prove the truth of a story that may be defamatory by verifying any third party sources they rely on. This constraint could be desirable as it gives added protection to a defamed plaintiff and will dissuade the media from publishing unreliable stories. However, it will now be harder for defendants to succeed with a defence of truth. It is debatable whether or not the Simunovich ruling is a justifiable restriction on the rights of publishers to freedom of expression. Given that the defence was already considered difficult to establish, Simunovich will lead the media to self-impose further restrictions on what they publish to avoid proceedings where they may fail to make out a defence of truth. The ruling in Simunovich on the establishment of a defence of truth is likely to have considerable repercussions on media reporting. These effects will be especially significant in New Zealand where there is only a limited defence of qualified privilege, unlike in the United Kingdom where a wider defence based on responsible journalism is available. This essay recommends that the rule in Simunovich on third party statements be amended by inserting a specific provision into the Defamation Act 1992 allowing for an evidential exception. Third party particulars should be admissible in support of a defence of truth to a defamation claim alleging reasonable grounds for suspicion, where the statements come from an objectively reliable source.