Online criticisms cost man $100,000

The High Court has ordered a man to pay $100,000 for repeatedly defaming a man in charge of regulating the country's hot rods, sports and vintage cars.

John Brett, who once certified the vehicles himself, targeted the Low Volume Vehicle Technical Association and its chief executive on his website with a stream of criticism of its competence and integrity.

After settling an earlier defamation action by agreeing to stop such criticism, Brett continued, resulting in the case before Justice Matthew Palmer in the High Court at Auckland.

The judge found Brett's criticisms of the Association were protected by qualified privilege - meaning there was a legitimate interest in such an entity as it perfomed a public function, was bound by the Bill of Rights Act and therefore could be subject to "generally published public criticism which is properly of public concern."

However he warned Brett that had the Association tried to defeat that qualified privilege by claiming he was "motivated by ill will towards it" his defence might not have succeeded. The judge doubted qualified privilege would apply to defamatory statements about the individuals who worked for such a private organisation, even one performing a public function.

It was on the defamatory statements against the association's chief executive, Anthony Johnson, that Brett was found liable and ordered to pay $100,000 in damages.

Justice Palmer found Brett had defamed Johnson in 12 statements and made a permanent injunction stopping him from repeating the defamations.

The judge said Brett had presented in court as "an opinionated individual who has difficulty accepting he is wrong."

The case had its origin in the revocation of Brett's authority to certify the low volume vehicles which make up the nation's hot rod, sports, vintage car, 4WD, and motorsport fleets.

Certifiers are appointed by the Transport Agency to handle the 6500 special registration plates issued a year to allow such vehicles to use public roads.

"There is no public interest attacking the person rather than the institution."

The association became concerned about Brett's performance as a certifier, telling the court he ranked worst in the country in both 2011 and 2012 for technical, administrative and procedural errors.

Brett told the court new LVV standards had been dangerous and could have led to unsafe outcomes.

The Transport Agency had revoked his authorisation as a certifier in late 2012 but he had started a website with an address similar to that of the association's attracting about 100 visits a day. 

The association took legal action twice over statements on the site, and Brett gave undertakings to the High Court that he would remove some claims. Disputes over what he would and would not remove continued until the formal defamation case. 

Justice Palmer found Brett's defence in court that his views were honest opinion failed in all but one instance, as they would not appear to a reasonable person that he was merely expressing his comment or opinion.

To Brett's defence of qualified privilege, he ruled it could not apply to the association's officials, who were "not elected by the public or accountable to the public other than by agreement with the NZTA".

"They are members of private incorporated societies who volunteer to govern a club of such societies which has agreed to take on public functions. It is not reasonable to expect such individual office-holders to give up the right to sue for untrue defamatory statements made about them personally.

"There is no public interest attacking the person rather than the institution. I note the same logic does not necessarily apply to officials of public entities," Justice Palmer said.

"The defence is not available to protect Mr Brett against defamatory statements he made about Mr Johnson personally.."

He also found that the attempted settlement agreements between the parties before this case - in which the association sought "to impose sanctions on criticisms of its performance of public functions" -- were inconsistent in several clauses with the Bill of Rights.

Brett's "right to freedom of expression includes the freedom to be wrong - to express incorrect statements unless they are defamatory or otherwise unlawful. It also includes the freedom not to be compelled to express information. These clauses limit those freedoms without rational justification."

However, after severing the clauses that were in breach, the judge found Brett had broken the settlement agreement in making 12 statements about Johnson, failing to take some down and posting further defamatory claims.

"Given Mr Brett's proclivity to repeatedly defame the plaintiffs, in the face of threats of legal action and after signing the settlement agreement undertaking not to do so, I also consider a permanent injunction against [him] making the statements I have found to be defamatory is required."

Justice Palmer said a "modest damages award" was required for the claims over three years that Johnson was incompetent and put public safety at risk.

Comparing previous defamation awards, he noted: "The defamation here is less serious than those involving allegations of criminal complicity with the Mr Asia drugs syndicate and the Black Power gang for which $125,000 was awarded in compensatory damages." He set the damages award for Johnson at $100,000.

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