Case not water-tight enough in a democracy

Phil Campbell

Rob Kent thought he had a water-tight case to issue defamation proceedings against a political opponent.

At last week’s full meeting of the Rotorua Lakes Council he gave reasons why he could or should.

He was able to counter claims of favouritism to prove he had not been rewarded as a sop for standing against a mayoral candidate opponent in the 2016.

The allegation was that Kent had been rewarded with an appointment to the RMA committee since the 2016 local body elections. Kent said he had been a qualified RMA commissioner since 2014, before the 2016 elections.

The opponent, academic Reynold Macpherson, also treasurer of the Rotorua District Ratepayers and Residents group, contested the mayoralty with sitting mayor Steve Chadwick, Kent and councillor Mark Gould. Macpherson claims Kent had helped split the vote for Chadwick.

A Facebook posting by Macpherson last week criticising councillor Tania Tapsell, with an introduction likening her to the Pied Piper of Hamelin luring children from their parents, inflamed Rotorua councillors.

Kent also took exception to an earlier post by Macpherson whom he accused of “deliberate lies”.

Like Tapsell, who has been the focus of intense media, he said “enough was enough” at this week’s meeting.

He disported himself to an appointment with a senior barrister. For his – or Macpherson’s – sins he had missed the May 16 meeting of a council sub-committee.

Two messages emerged from the meeting: Kent was not charged by the barrister for his time and, unless he was well heeled, the cost of $200,000 and length of time to prepare for the case was prohibitive.

And Kent also learned, as he conveyed to councillors, that little public sympathy lies with the argie-bargie in the democratic process. In other words, the political system allows that anything goes, that they can do and say what they like because they can.

This does not excuse Macpherson’s expostulations – he has insulted everyone in or outside politics with whom he disagrees – but it means the public on polling day is privileged as judge and executioner, or it can give clemency.

To prove his point, Kent says he has voted against many resolutions over the last three years (many more in the previous three, but that is another story). In each case he insisted his “disagreements” are recorded for the public record.

Thus, he says, Macpherson’s claim that Kent’s “voting record over the last three years shows that he is a fully paid-up member of the Mayor’s power block” to be a figment of his “fertile” imagination.

Kent sympathises with Tania Tapsell. She is “already 10 times the politician he (Macpherson) will ever be”.

Politics aside, Kent then details his meeting with the barrister, whom he did not name.

He told the meeting he wanted to share the opinion since they may, at some time, be faced with a similar situation.

“To pursue a case for defamation in New Zealand it is necessary for the plaintiff to firstly prove that the statements that have been made against them are untrue.  In my case there is no doubt that I can prove that several of Macpherson’s statements are untrue.

“Secondly, it must be proven that the effect of those untrue statements has been to lower the reputation and standing of the plaintiff in the minds of ordinary unbiased people, and here context is relevant. 

“Most people have become so used to politicians’ mud-slinging against one another that ordinary unbiased people’s reactions would likely just dismiss the defamation as politicians being ‘at it again’ and of little consequence. 

“The courts recognise this, and the tests required to prove defamation being of consequence between politicians is therefore much higher than for other circumstances.

“It is very difficult to prove that there has been any lasting lowering of the reputation and standing of a politician amongst ordinary unbiased people.  Most have probably forgotten the politician’s name a few months later.

“Even if that could be proven, the final hurdle is almost insurmountable. 

“You must be able to quantify and measure the amount of lowering of reputation and standing, otherwise the courts have nothing to go on to award compensation, and the case will fail because it is without purpose. 

“You cannot award compensation for damage that you cannot measure.

“Finally, if all of the above could be successfully proved, you need to have a couple of hundred thousand dollars you are prepared to gamble on legal fees, and be prepared to wait a year of two for your case to come to trial.

“In short a case for defamation, in the case of politicians, is virtually impossible to pursue successfully through the legal system, no matter how obviously defamatory the statements are.”

Kent says he has been defamed and that there is no doubt.

His only logical recourse, therefore?  “To state publicly what has happened, which I have just done, and let the voters decide the verdict in October.”


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