NBR asks for $1.5m defamation action to be thrown out

Auckland Mayor Dick Hubbard abused the legal process when he went public to further his claim against weekly newspaper the National Business Review, the Auckland High Court was told yesterday.

Julian Miles QC, appearing for the NBR, urged Justice Geoffrey Venning to grant an indefinite stay, or strike off altogether, a defamation claim filed by Mr Hubbard against the paper in September last year.

Mr Hubbard - then an Auckland mayoral candidate - claimed an NBR story accusing him of lying during a television interview about his company's reporting on social, environmental and financial performance was defamatory. As well as filing the claim, Mr Hubbard publicly lambasted the paper for "gutter journalism" and carrying out a "hatchet job".

But Mr Miles argued yesterday the resulting wide spread publicity - which included Mr Hubbard claiming his case was "watertight and simple" would prejudice the NBR at trial.

He also said Mr Hubbard's $1.5 million claim, and subsequent public comments about it, showed a disregard for legal process, and could also act to influence any future jury against the NBR.

"Either independently or together, the process is not only an abuse ... but amounts to contempt as well."

The "potency" of Mr Hubbard's actions had to be met with some type of sanction, as they had been designed to shut down publicity during a mayoral campaign, he said.

But Mr Hubbard's counsel, Grant Illingworth QC, urged Justice Venning to take into account the situation his client was in when he made the comments.

He rejected a contention by Mr Miles that defamation could be answered in one of two ways: either by defending oneself publicly, or by seeking legal remedy.

"[The] court allows a generous degree of latitude when somebody is replying to an attack," Mr Illingworth said.

Mr Hubbard was justified in defending the allegations, he said.

Mr Illingworth conceded his client was wrong to state publicly - and file specifically - the $1.5 million claim, but said it would not be prejudicial to the NBR in the case of a judge-alone trial.

A trial would not be likely any time soon, so it was arguable what effect the publicity would have on a jury pool.

Though the original claim - including specified damages - was amended days after being filed, remedy for the original breach could be punished by way of costs, Mr Illingworth said.

Further public comments by Mr Hubbard that he would give his court winnings to charity were not prejudicial, and could be sorted out by way of a judge's direction to a jury.

To strike off, or grant a stay of, the matter would be "a draconian remedy", he said.

Justice Venning reserved his decision for two weeks.