A common question we are asked is what can be done if, during the course of litigation, the other party has made false allegations or untrue statements about our client’s character. A common follow-up question is – can I sue them for defamation?
Defamation is an area of law intended to protect people from unfair or untrue public attacks to their reputation. If the threshold of a ‘defamatory statement’ is met, an individual can sue another person or organisation in Court under the Defamation Act 1992. The Court will then decide if the criteria are met (and that the defendant has no defence to the claim).
What Happens If The Statements Are Made In The Context Of Court Proceedings?
Section 14 sets out a defence to a claim of defamation if the alleged defamatory statement was made in the context of the proceedings. New Zealand law does not permit defamation proceedings to be brought against judges, counsel, juries, witnesses, or parties for words spoken in the ordinary course of any proceedings before a court or tribunal recognised by law.
That is, anything that is said, written or done in these Court proceedings, or by a party, representative, or witness, is protected by absolute privilege. Absolute privilege extends to proceedings before tribunals or authorities that have judicial powers. A client’s communications with a barrister or a solicitor for the purpose of seeking or obtaining legal advice are also protected by absolute privilege, together with a solicitor’s communications with a barrister in order to provide the client with legal advice.
There is no case for defamation if the occasion is absolutely privileged, regardless of whether the defendant acted maliciously.
Why Is This?
As a matter of public interest, those in certain positions, including judges, advocates, and witnesses in court proceedings, should be permitted to express themselves with complete freedom. To ensure their independence, their acts and words are given absolute privilege as a defence in defamation lawsuits.
about the author
Amy Chesnutt
PARTNER
Amy has extensive litigation experience, representing clients in the Family, District and High Courts District of New Zealand and the Magistrates Court, District of Queensland, Federal Circuit Court of Australia and Family Court of Australia.
about the author
Alisha Castle
SENIOR ASSOCIATE
Alisha has appeared in the Family Court, the Māori Land Court, the Māori Appellate Court, the High Court and in various inquiries before the Waitangi Tribunal for a number of Treaty of Waitangi claimants.
about the author
Rose Gallon
SOLICITOR
Prior to working at Dixon & Co Lawyers, Rose worked for the Ministry of Justice as a Court Registry Support Officer for the Manukau District Court.
