Lawyers argued the wealthy NZME director was the real mastermind behind a failed defamation action and should be forced to pay up.

The costs hearing for a case supposedly taken in the name of free speech began with a call for enforced silence. Chris Patterson, a lawyer acting for the billionaire NZME director Jim Grenon, argued his client’s reputation could be unduly harmed by the journalists from TVNZ, Stuff, NZME and The Spinoff lined up with their laptops in the back row of Auckland District Court’s public gallery. He asked judge David Clark to suppress reporting on Grenon’s involvement in the case. “My main concern is to make sure that the non-party [Grenon] isn’t attacked today,” he said.

It was an interesting request. Reporters were only in the courtroom because Grenon had funded anti co-governance campaigner Julian Batchelor’s unsuccessful defamation action against TVNZ and academic Sanjaya Hattotuwa. Neither Grenon nor Batchelor were in court, but in an affidavit, Grenon claimed he’d financed the case because he’d seen Hattotuwa taking aim at Batchelor’s “racist rhetoric” in a news item by Te Aniwa Hurihanganui and felt the criticism amounted to attempted censorship.

But here he was advocating for reporting on his involvement in the case to be suppressed. Judge David Clark was having none of it. “It’s Mr Grenon who decided to fund the litigation of Mr Batchelor’s. That’s not a disputed issue,” he said. “It’s Mr Grenon’s risk that in making that decision, he gets criticised for doing so.” Patterson tried to argue further, but Clark didn’t want to spend any more time debating the issue. “Media are entitled to be here. They will report. That’s my ruling. Grab a seat,” he said.

It wasn’t the only time Grenon’s innovative approach to free speech came up during the half-day hearing at Auckland District Court. Though he’d already ruled against Batchelor’s defamation claim, Clark was there to hear arguments on whether he and his funder, Grenon, should have to pay their opponents’ legal bills. Hattotuwa sought $107,137. TVNZ’s claim was for $125,818.65.

Their applications centred around a host of allegations about improper legal conduct. Hattotuwa’s lawyer Davey Salmon summed it up. “At every turn the litigation was conducted in a problematic way,” he said. “At every point there was an irresponsible approach taken to key issues.”

It was a passionate argument, and Salmon was clearly vexed by the situation. “This is the worst conduct by a plaintiff that I’ve seen in a civil case,” he said. “I don’t say that lightly.” He accused Batchelor of leaving out huge amounts of relevant material in discovery thanks to his reliance on an obscure 60-year-old dictionary definition of racism. He complained that the lawyer supplied to Batchelor by Grenon, Matthew Hague, had also failed to disclose relevant material. Batchelor, he said, had been evasive and refused to answer questions on the stand.

But if there was a chief complaint, it was over what he saw as Grenon’s covert actions. The billionaire’s involvement in the case was only revealed when Batchelor confessed to it under cross-examination. Salmon described the moment as a “bombshell”. He argued Batchelor’s case had advanced under false pretences that disadvantaged his client and TVNZ. They might have asked for the case to be struck out if they’d known about the arrangement from the outset.

Salmon saw the case as a “Trojan horse” for an agenda Grenon was pushing. He didn’t spell out exactly what that alleged agenda was. But he was scathing of the idea that the action was about protecting free speech. “The claims of believing in free speech and not having people silenced in the open sharing of ideas is at odds with the very purpose of this litigation,” he said.

Judge Clark didn’t often interject, preferring to fix the lawyers before him with an impassive unbroken stare. But on that, he felt compelled to concur. He noted that Grenon’s pro-free speech position was ironic given he had funded a case against Hattotuwa for expressing his views. “He was doing exactly what I understand Mr Grenon is saying is a position he supports.”

The real litigant?

Salmon and TVNZ’s lawyer Daniel Nilsson were focused on Grenon, partly because they believed he was the real driving force behind the court action. But more than that, he was the only guy involved who they were confident had the money to actually pay their costs claim.

Thanks to a discovery process, they had sourced an email exchange where Batchelor repeatedly asked Grenon for guarantees that he wouldn’t be left financially exposed by the defamation action. “I am not in a position to pay for any costs,” he’d written. “Really any kind of costs. The campaign I’m running is using all of my resources.” In another he’d added that “if there is a possibility that I will be liable for costs of some kind, then I will withdraw now”. Batchelor had received assurances from Grenon and Hague that he wouldn’t be left in the lurch.

Salmon and Nilsson asked Clark to make Grenon honour that “indemnity” he’d offered to Batchelor. They were essentially urging him to make Grenon pay for the entire court case, and as a result, spare Batchelor what they believed would be a financially crippling court order.

In an eyebrow-raising twist, Batchelor’s own lawyer argued against that action. Hague argued his client potentially did have the resources to pay costs, urging the judge to take a different view of Batchelor’s email about his campaign sucking up his resources. “Mr Batchelor clearly said ‘I’ve got these resources, they’re being consumed by my campaign and other activities,” Hague said. “He had resources. He made decisions about where they should be allocated.”

Salmon saw this as a lawyer potentially arguing against his own client’s best interests, worrying that Batchelor might not be aware of the argument being advanced in his name.

Hague went on to defend Grenon’s financial intervention, saying rather than being nefarious, it was an altruistic attempt to help someone he believed had suffered wrongdoing. Without Grenon’s intervention, Batchelor might not have been able to claim his rightful access to the courts, he argued. “Outside funding is increasingly common. It is proper and it is noble,” he said. 

Grenon’s own lawyer argued along similar lines. Patterson compared his client’s legal funding to his own annual donation to Forest and Bird. “I know they bring [legal] proceedings and I know that money goes to them to enable them to do that,” he said. “Should I be suddenly liable because I think that what Forest and Bird are doing is the right thing?” His point was that just because Grenon paid for the legal case, it didn’t mean he was controlling it or responsible for it.

Salmon drew a distinction between Forest and Bird donations and what Grenon did, saying the latter was an “active donor”. “The case wouldn’t have proceeded without him.”

Soon after, Clark closed proceedings, reserving his decision, and left. Patterson stuck around in the courtroom for a while. Hague rushed off to a court hearing on the North Shore. TVNZ and Hattotuwa’s legal teams went together to the Shakespeare tavern for a drink. They seemed to be in good spirits.