Manaia Media Limited v Cato - [2025] NZCA 233

Defamation - Public interest defence - Procedure in trials by jury - Admissibility and presentation of evidence 

The appeal is allowed and an order for a retrial is made. The respondent must pay the appellants costs and the High Court costs order is set aside. 

The appellants (Manaia) were the publishers of an equestrian website and magazine, NZ Horse & Pony. In December 2017 they published an article on the NZ Horse & Pony website concerning Equestrian Sports NZ's (ESNZ) handling of complaints made about the conduct of two members of a showjumping tour to Australia (the Article) which NZ Horse & Pony considered could lead to New Zealand's top ranked show jumper and a top coach returning to Australia. The Article set out ESNZ's statements about the matter and a statement released by the parties to the complaints announcing a settlement of the complaint reached at a private mediation that included sanctions accepted by the show jumper at the mediation. Amongst other things, the Article questioned why the parties' statement, released by the lawyer for the complainants (the respondent Ms Cato), had been released to another media outlet but not NZ Horse & Pony. It described the statement as potentially defamatory. It noted that Ms Cato was the daughter of the owner of the media outlet to which the parties' statement was released. 

Ms Cato claimed the Article meant that she had, or there were grounds to suspect that she had, acted unethically, unprofessionally, or otherwise improperly in relation to the resolution of the complaint by: being responsible for releasing a statement that was damaging to the reputations of the show jumper and coach without their consent; misusing her position as a lawyer for the complainants to benefit her family by releasing the statement to her mother's media outlet when wider or more effective publicity for the vindication of her clients would have come from a release to NZ Horse & Pony; and hid that misuse by not identifying herself in a statement disclosing her relationship with that media outlet. 

A jury found the Article was defamatory in the manner alleged and awarded general and aggravated damages of $225,000 and punitive damages of $15,000 against Manaia. Manaia pleaded the defence of responsible communication on matters of public interest. The Judge found this defence was not made out and entered judgment for Ms Cato. 

Manaia appeals in three respects: it says the Judge erred in finding the public interest defence did not apply; that the jury's verdict on meaning was unsafe; and that the damages awarded were excessive. It also says evidence given for Ms Cato was inadmissible or should not have been given before the jury, and that evidence from several of Manaia's proposed witnesses was wrongly ruled inadmissible. 

Issues - Public interest 

Did the Judge err in ruling inadmissible Manaia 's proposed witnesses in relation to the public interest defence? 
Yes, in relation to one witness. The proposed evidence of Richard Sunderland, former chair of the ESNZ showjumping board, would have provided relevant context to the Article on matters covered in the Article about which other witnesses for Ms Cato were critical (such as the minutes of the showjumping board quoted in the Article) and the way he learned of the agreed sanctions and that ESNZ had not ratified them. The Judge was not wrong in the reasons he gave for excluding the evidence of the other witnesses, but the end result was that the jury heard expert evidence from Bill Ralston and evidence from two of the complainants but did not hear the somewhat counterbalancing evidence of any of the witnesses that Manaia intended to call, who would have provided more context as to the circumstances in which it published the Article. 

Did the Judge err in assessing the public interest as being on the low side? 
Yes. The Judge considered the public interest was at the lower end. Manaia submitted the public interest was higher whereas Ms Cato submitted there was no public interest at all. We agree with Manaia that the Judge understated the public interest in the subject matter of the article. ESNZ is the governing body of equestrian sport in New Zealand. It receives public funds for its high performance arm. The fallout from the tour, the way the sanctions came about and how the outcome was communicated to the public were matters of legitimate concern for public discourse and debate. It had relevance not only to those involved in equestrian, but more generally to other sports governing bodies in relation to their complaint procedures and, to the extent it had the potential to impact on New Zealand equestrian success on the world stage, it was of wider public interest and concern. 

Did the Judge err in finding that the communication was not responsible? 
No, albeit it was a more finely balanced case than the Judge considered. Although the Article contained serious defamatory meanings as found by the jury, the thrust of the article was one critical of ESNZ's processes. Steps were taken to verify the matters in the article albeit that Ms Cato and her mother did not respond. The questions NZ Horse & Pony put to ESNZ and its answers were set out in full in the article. It was legitimate for NZ Horse & Pony to publish the Article at a time likely to reach a wide audience amongst the equestrian sector without waiting for further information from ESNZ. Balancing all matters, however, it was unnecessary to implicitly criticise Ms Cato in the manner and tone of the Article and it fell short of being a responsible communication because of this.

Issues - Meaning 

Was the evidence of news media expert Bill Ralston unfairly prejudicial? 
Yes. The evidence of Mr Ralston was intended to respond to the public interest defence, but in the event the jury were not asked to make any determination in relation to that defence. The jury could not have been left with anything other than a negative view of NZ Horse & Pony and the Article from Mr Ralston's evidence, which was heavily critical of it and also strayed into the Article's meaning. The jury should have been directed that Mr Ralston's evidence had no relevance at all in assessing whether the Article bore the pleaded meanings. This was not a case where it was inevitable the jury would find all pleaded meanings established. 

Was the evidence of Paul Collins as to lawyers' professional standards unfairly prejudicial? 
No. The evidence was relevant to the gravity of the harm if the pleaded meanings were found to be made out. The Judge's directions did not refer to Mr Collins evidence when giving directions on meanings. The Judge referred to Mr Collins' evidence when giving directions on whether the meanings were defamatory. The jury would have only got to this point if they had already determined the meanings were established. 

Should the jury have been directed to ignore evidence about the third appellant Ms Thompson altering an email chain in relation to meaning? 
No. The evidence reflected very poorly on Ms Thompson, but counsel for Ms Cato did not rely on it in submissions relating to the meaning of the Article, counsel for Manaia emphasised it had no relevance to meaning, and the Judge gave a general direction on not deciding the case on sympathy or prejudice, and on how they were to determine meaning. 

Was reference to the Court of Appeal's prior decision that the Article was capable of bearing the meanings pleaded by Ms Cato irrelevant and unfairly prejudicial? 
Yes. The jury's verdicts on meaning were potentially tainted given the prominence given at trial to this Court's pre-trial decision that the Article was capable of bearing the pleaded meanings. The Court's ruling that the publication is capable of bearing the pleaded meanings is a filtering exercise and has no relevance in a jury trial to the jury's determination of whether the publication actually does bear those meanings. While a reference to a preliminary decision that a publication is capable of bearing the pleaded meaning(s) should be avoided, it will not necessarily give rise to a substantial miscarriage of justice. In this case, however, there was a real risk of unfair prejudice arising because it was repeatedly referred to during the trial. 

Were other directions on meaning required? 
No. The Judge correctly directed the jury on how to approach meaning in light of having two and a half weeks of hearing considering the Article. Nor did prejudice arise from the absence of a direction that the jury were not to conclude that the Article was likely to have one or more of the meanings because eight alleged meanings were pleaded given that the jury found all eight meanings established. 

Issue - Damages 

Were the damages awarded by the jury excessive? 
Yes. Had we rejected all other grounds of appeal, the damages would have been set aside. The award was significantly out of kilter with other cases referred to. While a wide margin is allowed to the jury, an award of this size has a chilling effect on publishers, particularly a niche one as here with a relatively small readership, that is disproportionate to the harm caused. Although the Court did not have the benefit of submissions on the damages that should have been substituted, the Court indicated that an award of $75,000 would not be unreasonable. Punitive damages should not have been awarded at all. 

Observation - Jury trial procedure 

If a jury trial is elected, it is important that, although it may not be straightforward to do so, the evidence led before the jury should be kept to its proper bounds. Where the public interest defence has not been determined prior to a jury trial, a two-stage trial - wherein evidence relevant to the public interest defence is called or recalled after the jury had given their verdicts - may be an effective mechanism to enforce the boundaries between the evidence that should be before the Judge and jury, and that which should be before the Judge alone.