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Jennings v Buchanan (New Zealand)
Factual and Procedural Background
The Plaintiff, a senior official of Company A, alleged that the Defendant, then a Member of Parliament, defamed him during a parliamentary debate on 9 December 1997 by making remarks that impugned the Plaintiff’s personal and professional integrity. Because statements made in Parliament are absolutely privileged, interest in the matter initially subsided.
Seeking to revive public attention, the Defendant issued a press release on 15 February 1998 criticising Company A and, shortly thereafter, confirmed his parliamentary allegations in an interview with a reporter from Company B’s newspaper. The interview was published on 18 February 1998, quoting the Defendant as saying he did not “resile” from his parliamentary claim.
The Plaintiff commenced defamation proceedings anchored on the February 1998 interview, pleading that the Defendant had “adopted, repeated and confirmed” his parliamentary statement. The Defendant responded with bare denials and invoked absolute privilege under article 9 of the Bill of Rights 1688. His strike-out applications failed before a Master, the High Court, and the Court of Appeal (majority). At trial, Judge Heron awarded the Plaintiff NZ$50,000 in damages, a result affirmed by the Court of Appeal majority. The Defendant’s further appeal to the Privy Council is the subject of this opinion.
Legal Issues Presented
- Whether a Member of Parliament who makes a defamatory statement under the absolute privilege of parliamentary proceedings may be held liable in defamation when the Member subsequently affirms that statement—without repeating its precise words—on a non-privileged occasion.
- Whether the Plaintiff’s pleading met the requirement to specify the allegedly defamatory words with sufficient precision.
Arguments of the Parties
Plaintiff's Arguments
- The February 1998 interview constituted a fresh publication for which the Defendant was liable; absolute privilege did not extend beyond Parliament.
- The pleaded words (“did not resile”) accurately conveyed the substance of the Defendant’s confirmation and satisfied pleading requirements despite minor linguistic uncertainty.
Defendant's Arguments
- Article 9 immunised the challenged interview because it merely “affirmed” the privileged parliamentary speech without repeating it, rendering any lawsuit an indirect impeachment of parliamentary proceedings.
- The Plaintiff failed to plead the exact defamatory words; the reporter could not confirm whether the Defendant himself used the word “resile.”
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prebble v Television New Zealand Ltd [1995] 1 AC 321 | Courts may not question parliamentary proceedings; Hansard admissible for historical fact only. | Used as the leading authority on article 9; distinguished because present claim rested on extra-parliamentary statement. |
| Attorney-General of Ceylon v de Livera [1963] AC 103 | “Proceedings in Parliament” must be confined to a Member’s essential functions. | Cited to emphasise that privilege should not cover activities outside a Member’s core parliamentary role. |
| Church of Scientology v Johnson-Smith [1972] 1 QB 522 | Inference of malice cannot be drawn from parliamentary statements. | Illustrated limits on using Hansard to impugn motives; contrasted with present reliance only for historical fact. |
| Hamilton v Al Fayed [2001] 1 AC 395 | Reaffirmed prohibition on courts deciding whether Parliament was misled. | Supported distinction between questioning propriety in Parliament and litigating subsequent statements. |
| Hyams v Peterson [1991] 3 NZLR 648 | Reference to reports of parliamentary proceedings does not infringe article 9 if not questioning propriety. | Demonstrated permissible historical use of Hansard. |
| Beitzel v Crabb [1992] 2 VR 121 | Adoption or repetition outside Parliament is actionable; absolute privilege does not attach. | Treated as persuasive Australian authority supporting liability for “effective repetition.” |
| Laurance v Katter (1996) 141 ALR 447 | Statements outside Parliament incorporating parliamentary speech are not protected by article 9. | Cited to reinforce that extra-parliamentary confirmation attracts no absolute privilege. |
| Peters v Cushing [1999] NZAR 241 | When extra-parliamentary defamation precedes naming in Parliament, plaintiff cannot rely on parliamentary naming. | Distinguished: here the confirmation followed, not preceded, the privileged speech. |
| Burdett v Abbot (1811) 14 East 1; Stockdale v Hansard (1839) 9 Ad & El 1; Bradlaugh v Gossett (1884) 12 QBD 271 | Historic authorities on non-intervention by courts in parliamentary matters. | Provided constitutional context for article 9. |
| Pepper v Hart [1993] AC 593 | Permitted limited judicial use of Hansard. | Illustrated modern acceptance of referring to parliamentary record. |
| R v Abingdon (1794) 1 Esp 226; R v Creevey (1813) 1 M & S 273 | Repetition outside Parliament is actionable. | Formed foundational common-law rule applied by the Board. |
| Stopforth v Goyer (1978) 87 DLR (3d) 373; Hutchinson v Proxmire 443 US 111 (1979) | Foreign decisions confirming no absolute privilege for extra-parliamentary repetition. | Used as comparative support. |
| Meurant v Raubenheimer (1868) 1 Buch AC 87; Spike v Golding (1895) 27 NSR 379; Griffiths v Lewis (1845) 14 LJQB 197; Freeman v Poppe (1905) 25 NZLR 529 | Older authorities on adoption or repetition constituting republication. | Reinforced the concept of “effective repetition.” |
| R v Murphy (1986) 64 ALR 498 | Narrow construction of article 9 criticised in Prebble. | Cited to reject an unduly restrictive view of privilege. |
| Rann v Olsen (2000) 76 SASR 450; R v Theophanous [2003] VSCA 78 | Debate on meaning of Parliamentary Privileges Act 1987 s 16(3). | Referenced when discussing Australian case law; not determinative. |
| R v Secretary of State for the Home Department Ex p Brind [1991] 1 AC 696; R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513; R v Secretary of State for Foreign and Commonwealth Affairs, Ex p World Development Movement Ltd [1995] 1 WLR 386 | Use of ministerial statements in judicial review. | Illustrated modern judicial reliance on Hansard without infringing privilege. |
| A v United Kingdom (2002) 36 EHRR 917 | Parliamentary immunity in the UK is confined to statements within the Houses; none attaches to repetition. | Used to underscore narrow scope of absolute privilege in domestic law. |
Court's Reasoning and Analysis
1. The Board affirmed that absolute privilege under article 9 bars civil liability only for statements made “in the course of parliamentary proceedings.” It does not extend to statements made elsewhere, even if the speaker merely confirms or references what was said in Parliament.
2. Repetition principles: At common law each republication of a defamatory statement constitutes a new cause of action. The Defendant’s February 1998 interview therefore created its own actionable publication.
3. Historical distinction: Authorities from R v Abingdon onward—supported by modern cases such as Beitzel v Crabb and Laurance v Katter—demonstrate that extra-parliamentary repetition (direct or by reference) attracts no absolute privilege. Article 9 is not “whittled away” by recognising this limitation because it still fully protects speech inside Parliament.
4. No constitutional clash: Referring to Hansard solely to prove the historical fact that words were spoken does not “impeach or question” parliamentary proceedings. The Plaintiff relied on the parliamentary record only to establish the content of the original statement; the action challenged the later confirmation.
5. Pleading sufficiency: The Board rejected the Defendant’s technical objection regarding the precise wording (“resile”). Per accepted defamation pleading standards, substantial accuracy suffices where exact words cannot realistically be proved and the meaning remains unchanged.
6. Temporal sequence: Because the Defendant’s unprivileged affirmation followed (rather than preceded) his privileged speech, the Plaintiff’s reliance on the parliamentary record did not raise the identification problem encountered in Peters v Cushing.
7. Policy balance: Protecting reputation where an MP voluntarily re-endorses defamatory remarks outside Parliament does not endanger parliamentary freedom; it simply requires Members to exercise caution when repeating allegations beyond the chamber.
Holding and Implications
Appeal DISMISSED.
The Privy Council upheld the NZ$50,000 damages award in favour of the Plaintiff. The decision confirms that absolute privilege under article 9 does not shield a parliamentarian who effectively republishes defamatory statements outside the House, even by indirect affirmation. The ruling preserves parliamentary freedom of speech while reinforcing that members may be held civilly liable for extra-parliamentary publications; it sets no new doctrinal precedent but clarifies the existing boundary between absolute and qualified privilege.
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