Defamation (Anti-Gagging) Amendment Bill 2002
Member’s Bill

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The Parliament of New Zealand enacts as follows:

1                    Title

This Act is the Defamation Amendment Act 2002.

2                    Commencement

This Act comes into force 6 months after the date on which it receives the Royal assent.

3                    Purpose

The purpose of this Act is to ensure that a person who incurs expense investigating and preparing to defend [unmerited?] threats of defamation proceedings can recoup the costs reasonably incurred if those proceedings [appear to have been threatened without proper cause?] [or are not substantiated within 2 years].

4                    New Part inserted

The Defamation Act 1992 is amended by inserting, after Part IV, the following new Part IVA:

“Part IVA”

“Costs of [Unmerited] [or Unsubstantiated?] Defamation Claims

“53A   Definitions

In this Part, unless the context otherwise requires, —

EITHER

[“claim means any demand, request, instruction or other requirement that —

“(a)      reasonably appears to be intended to —

“(i)       result in a target halting or ceasing publication; or

“(ii)      prevent the publication of statements the subject of the claim or demand; or

“(ii)      intended to cause the target to bring pressure on a third person to cease or halt publication of any such statement; and

“(b)      alleges that the target has [or will have if the target [continues with] publication], directly or indirectly, a liability in defamation or for breach of privacy or breach of the Privacy Act 1993]

OR

“claim means any demand, request, instruction or other requirement that, —

“(a)      reasonably appears to be intended to prevent publication, or continued publication, of a statement, by any means; and

“(b)      alleges that the target has [, or will have], directly or indirectly, a liability in defamation or for breach of privacy or breach of the Privacy Act 1993

“claim expenses includes all costs (including reasonable time and overhead costs of a target) incurred in receiving, evaluating, obtaining appropriate advice on, and responding to, the claim

“target means a person who reasonably considers that a liability alleged in a claim will, [if substantiated] [or if successful], be that person’s liability (alone or with others)

“unsubstantiated claim means a claim that has not, within 2 years of the target receiving the claim, been [prosecuted or advanced to the stage of substantive proceedings, with a statement of claim or equivalent and details disclosing good cause, and sufficient evidence to show the claim is advanced in good faith, having regard to the defences and the circumstances known or which ought to be known to the claimant].

OR

“unsubstantiated claim means a claim in respect of which, —

“(a)      no proceedings have been commenced in court within 2 years of the target receiving the claim; or

“(b)      the court proceedings filed in respect of the claim have not, within 2  years of the target receiving the claim, been substantiated with sufficient evidence to satisfy the court that none of the causes of action in the plaintiff’s statement of claim can succeed; or

“(c)      the court proceedings in respect of the claim have struck out for want of prosecution under section 50.

Q: Query courts power to order costs under (b) and (c) under existing law?

“53B    Right to recover expenses of unsubstantiated claims

“(1)      The target of an unsubstantiated claim may require reimbursement of claim expenses from the claimant.

“(2)      To require reimbursement the target must, —

“(a)      advise the claimant in writing, of the target’s intention to require reimbursement under this Part, within 15 working days of receiving the claim; and

“(b)      require reimbursement, in writing to the claimant, not later than 3 months after the claim is deemed to have become unsubstantiated under this Part;

“(3)      The reimbursement amount is payable within 20 working days after receipt of the reimbursement demand, unless the claimant exercises its right under section 53C.

“53C    Determining whether reimbursement demand is reasonable

“A claimant who receives a reimbursement demand may contest either or both of the reasonableness of the requirement for payment, or the amount demanded, only as follows:

“(a)      within 15 working days of having received the reimbursement demand, by filing a copy of the demand in the District Court with a request for appointment of an investigating assessor under this section; and

“(b)      stating with the request the amount, if any, the claimant believes is fair, and is willing to pay forthwith.

“53D    Appointment and role of investigating assessor

“(1)      As soon as is practicable, the District Court must appoint a person or firm to investigate and assesses, —

“(a)      the merits of the allegedly unsubstantiated claim; and

“(b)      the expenses incurred by the target; and

“(c)      the amount of reasonable reimbursement.

“(2)      The Court must appoint only a person who appears to the Court to have-

“(a)      the experience, competence, and integrity required to make that investigation and assessment; and

“(b)      no conflicts of interest in relation to the matter.

“53E    Effect of assessor’s award

“Within 25 working days of appointment, the investigating assessor must advise the District Court and the parties of the amount, if any, that it considers should reasonable be reimbursed as expenses reasonably incurred by the target in relation to the unsubstantiated claim and that amount is to be immediately payable as a judgment debt by the claimant to the target.

“53F    Assessor’s expenses

“(1)      If the investigating assessor notifies the Court and the parties of the reimbursement expense amount payable (if any), it must also advise them of the amount of the fees and expenses of the investigating assessor in determining the amount of the award.

“(2)      The target must pay that fee if the award is less than the amount demanded as reimbursement.

“(3)      The claimant must pay that fee if that award is more than or equal to the reimbursement demanded.

“53G   Voluntary settlements unaffected

“Nothing in this Part invalidates or supersedes any agreement between a claimant and a target about payments of any amounts between them or any other steps taken or to be taken to settle dispute, and an agreement expressed to be in full settlement of any dispute may provide that it precludes exercise by a target or a claimant of rights under this part in relation to a claim so settled.

“53H   Continuing proceedings not affected

“Nothing in this Part applies to any claim which proceeds to substantiation within 2 years of the target receiving the claim whether or not the claim is eventually upheld or is successful or settled in some other way or abandoned.”