Peter Williams
Writer and broadcaster for half a century. Now watching from the sidelines although verbalising thoughts on www.reality check.radio three days a week.
We first heard the term judicial activism in 1987. Justice Robin Cooke, in his opinion for New Zealand Māori Council v Attorney-General, said the Treaty of Waitangi was “akin to a partnership”. It is one of the most famous lines in this country’s jurisprudence and was the first enunciation of the concept of partnership as a principle of the Treaty.
In more recent years Supreme Court Justice Susan Glazebrook, writing in the Peter Ellis tikanga case, said, “it is the function of this court to declare the law of Aotearoa/New Zealand and we must do so mindful of the values that in combination give us our own sense of community and common identity”.
Then there was High Court Justice Peter Churchman in the Edwards case regarding customary Māori rights under the Marine and Coastal Areas Act coming up with the oxymoronic and linguistically impossible concept of “shared exclusivity”.
But at least those statements and opinions were issued in judgements at the end of a case, after hearing all the evidence, and they were not presumed to have been decided before the cases began.
Now though, this activism has taken on a new face with judicial pre-determination laid bare. It concerns a defamation case involving independent broadcaster and journalist Chantelle Baker and the hard-left media organisation Stuff.
(If Stuff can call Chantelle Baker a right-wing activist, I can call it a hard-left media outlet!)
Baker claims that Stuff, in its video production Fire and Fury, defamed her and wants to have her claims heard in court.
She is also suing Kate Hannah, the founder and former director of The Disinformation Project.
Associate Judge Peter Skelton has said the case can go ahead but has ordered Ms Baker to pay a $100,000 bond in three installments before the trial, as security for any costs that may be awarded against her. This was after Stuff filed the application for security for costs.
In his decision Judge Skelton said, “while acknowledging the case is at an early stage, my assessment is that Ms Baker will face difficulties establishing her claims against the defendants”.
He then went on to say there was a reasonable likelihood that costs may ultimately be ordered against her.
Remember these words have been uttered from the bench before a substantive hearing of the case.
Stuff and Kate Hannah both admit they made the statements that Ms Baker has taken issue with but deny they were defamatory. Ms Baker was not approached for comment in Fire and Fury but Stuff said it “relied on expert views on appropriate reporting on disseminators of mis- and disinformation”.
In other words, we don’t like what Chantelle Baker is saying and here’s someone (Hannah) who has credibility to say that.
Not mentioned in the Stuff article about the defamation claim is that Chantelle Baker has already received an out of court settlement from NZME, publishers of the New Zealand Herald, for an article in 2023 in which they quoted Kate Hannah calling Baker “a useful idiot” and naming her as part of the “Disinformation Dozen”.
That law suit was settled when the Herald implicitly agreed they couldn’t rely on Kate Hannah’s critique as expert opinion. The Herald had to retract the statements and pay Baker a settlement.
Apart from a cursory statement saying how the Herald regretted Baker experiencing distress as a result of the article, there was no apology and no mention of the financial settlement.
That was a comprehensive victory to Baker and now she’s going again.
It was a victory where any skerrick of credibility that Kate Hannah ever had just evaporated.
Whether or not Baker still has the support of the Centrist, formerly owned by new NZME board member Jim Grenon, is not known. The Centrist backed her in the battle against NZME.
Judge Skelton has also made known his thoughts on Chantelle Baker’s bank account. According to a report in Stuff he’s satisfied there is “sufficient evidential basis” to infer that Baker will be unable to pay an adverse costs award.
Putting aside the obvious bias in a Stuff article about itself, the comments from the judge are disturbing.
For him to say, before all the evidence and expert witness statements are presented to the court, that Chantelle Baker will “face difficulties establishing her claims against the defendants” sounds very much like a pre-determination of the case.
I’m reminded of my friend, the retired District Court Judge David Harvey stating on a podcast panel that I appeared with him on that every day he went to every case with a completely open mind and no pre-hearing bias. To do otherwise, he said, would not allow justice to be dispensed fairly.
From what she’s said subsequent to Judge Skelton’s decision, it appears Ms Baker will still proceed with the case, which is unlikely to be heard until next year.
But in the interests of justice let us hope that Associate Judge Peter Skelton is nowhere to be seen when the defamation suit is brought to a full hearing.
The very least Chantelle Baker deserves is a judge with the open mind of a David Harvey.
This article was originally published on the author’s Substack.
