A civil case against a senior academic accused of being a “transphobic bigot” and “defaming” a student in an email to colleagues has been labelled “weak” and thrown out by a judge.
He said the student’s version of events “is not credible” and they had themselves made “extravagant defamatory claims” about the academic during the process.
Last month the Herald revealed that the court action came after the student was suspended from the institution.
Suppression orders prevent the Herald from publishing any detail that could identify the student or the institution.
The student initiated the defamation proceedings against the academic after an “exchange between the pair” earlier this year.
The academic claimed the student was “aggressive” towards them and “made a file note of [the academic’s] perspective of the exchange in an email which [the academic] sent to four [other employees at the institution]”.
The student alleges the contents of the email were defamatory and told the court the academic “cannot establish that the allegations are true” and is “motivated by malice”.
The student had been seeking general damages of $50,000 and a further $20,000 for “aggravated” damages.
The academic strongly rejects the claim, saying the case against them has been “brought for an improper purpose”.
The student wanted to thrash the matter out at trial, telling the court this month that the matter could not be determined any other way.
“Witnesses must be called, cross-examination would need to be thorough,” they said.
The academic applied to the court for a summary judgment – a final decision made by a judge based on statements and evidence and designed to resolve a matter without a trial.
Judge Chris Tuohy granted that application and provided his reasons for that today in a 14-page decision.
The judge effectively ruled that the academic’s evidence about the initial incident with the student – supported by multiple witnesses – was accepted as true.
“There is no evidence to support [the student’s] description of [their] behaviour except (their) own.
“I consider that in the light of all the evidence relating to the encounter – the factual conflict seemingly facing the court is not genuine but contrived. [The student’s] version of [their] behaviour towards [the academic] is not credible.
“There is no apparent prospect that any further evidence might become available which might support [the student’s] account.”
The judge suspected that if the matter went to trial and the student was cross-examined it may “further damage [their] credibility.”
He further ruled that the academic’s comments in the email to colleagues may not have painted the student in a good light but were covered by the defences of truth and qualified privilege.
“[The academic] considered the encounter raised concerns about the safety of [their] staff and other students,” Judge Tuohy said.
“They most certainly had a legal and moral duty to make a record of it and to make that available to the relevant management of the [institution]. [They] would have been remiss in [their] duties not to have done so.
The judge said the academic sent the file note only to two relevant senior colleagues.
A third colleague received the information later – and that person had “a legitimate and necessary interest in receiving it because she was carrying out an investigation relating to [the student].
“I consider that the defence of qualified privilege must succeed in this case,” the judge said.
“That a report made in that context is false and/or defamatory makes no difference. That is the point of the concept. If qualified privilege exists, it protects the maker of any such report, provided it is not motivated primarily by ill will or made for an improper purpose.”
The student had alleged the file note was “sexist” and an “unlawful discrimination based on [their] transgender identity”.
But Judge Tuohy rejected that.
“I am not able to discern any such unlawful discrimination or ill will against [the student] from the terms of the file note or otherwise,” he ruled.
“It is true that at the beginning of the file note [the student] is referred to on two occasions by [incorrect] pronouns – although thereafter is referred to by gender-neutral plural pronouns.
“I do not think it is reasonably possible to infer from that that [the academic] has some animus against [the student] because of [their] transgender identity.
“This note was obviously written and sent almost immediately after the event. The various grammatical and spelling errors show that it was not carefully scrutinised to ensure perfect language before it was sent … I do not think that the initial use of [incorrect] pronouns … can reasonably imply some sort of malice or ill will towards [the student].
“If anything, the use of plural pronouns indicates an attempt to respect [the student’s] gender identity, even if it might not have been [their] preference.”
Judge Tuohy ruled that there was “no other basis for ascribing any ill will generally” on the part of the academic towards the student.
Further, there was no basis to claims the academic sent the email for any “improper purpose”.
“The repetition of assertions in [the student’s] pleadings that [the academic] was motivated by malice or ill will or acted for some improper purpose does not make those assertions any more persuasive in the absence of any evidence to support them.
“The numerous attacks on [the academic’s] character in [the student’s] affidavit in support of the claim are completely unjustified.”
He said examples of those attacks included the student’s description of the academic as “flagrantly dishonest”, “overtly bigoted”, “inherently unreasonable” and “a morally corrupt transphobic bigot”.
“[The academic’s] pleadings are said to be vexatious and frivolous and ‘reflective of [their] character being entirely devoid of integrity’,” the ruling states.
“No evidence is provided to support these extravagant and defamatory claims. The very fact that they have been made seriously damages [the student’s] credibility.
Judge Tuohy acknowledged that the comments made by the academic in the email “were capable of having a defamatory meaning” and if a “reasonable person” read them they may “think the worse of [the student].
However, the onus was on the academic to satisfy the court that they had a defence of truth, qualified privilege or honest opinion.
The academic had satisfied Judge Tuohy on two of the three.
“I consider that if the case does engage the honest opinion defence, it would have the same outcome as the qualified privilege defence,” he said.
“It is not reasonably arguable that [the academic] was motivated predominantly by ill will … the defence would have to succeed.”
Judge Tuohy finished his ruling by saying the student’s case had “always been weak for reasons which will be obvious from this judgment”.
“Summary judgment is entered for the defendant, [the academic]. [They] are entitled to costs,” he said.
The academic had 15 days to notify the court of any costs sought.
The name suppression for the academic and the institution will be revisited in 2024.
“Whether continuation is sought or not, the suppression orders will be dealt with together with costs. In the meantime, they remain in force,” said the judge.
Anna Leask is a Christchurch-based reporter who covers national crime and justice. She joined the Herald in 2008 and has worked as a journalist for 18 years. She writes, hosts and produces the award-winning podcast A Moment In Crime, released monthly on nzherald.co.nz