Lawyers for Don Brash say he was defamed by Matthew Hooton’s suggestion he was dishonest.
It wasn’t the fact that Matthew Hooton’s fiery monologue described Don Brash as a “fundamentally bad person” and his infamous Ōrewa speech as “despicably racist” that prompted Brash to file defamation proceedings. It was the suggestion the former National and Act leader was too intelligent to honestly believe what he and his advocacy group Hobson’s Pledge say about Māori.
This story starts two years ago, in a room where controversy is often invited. During a four-minute tirade in August 2024 on the now-defunct political podcast The Working Group, Hooton launched an abundance of affronts against his former National Party colleague. But there was one remark in particular that saw Brash call in the lawyers: the assertion that Brash was “certainly intelligent enough to know the things he says are not true” and that his advocacy group Hobson’s Pledge was “profoundly dishonest”.
Despite Hooton providing an apology – albeit four weeks after the broadcast – Brash’s lawyers have argued his “attacks” damaged their client’s reputation and are seeking $750,000 in compensation. The high court last year refused Hooton’s request to strike out the claim, although associate judge Grant Brittain granted leave to appeal.
So on Tuesday morning in Wellington, lawyers continued to fight it out in front of the court of appeal’s president Christine French and judges Sarah Katz and Matthew Palmer. But only the men’s lawyers and a handful of reporters were in court to watch the proceedings – Hooton is in Auckland getting his feet under the desk as the new editor of The Post and Sunday Star-Times, while Brash was elsewhere.
Hooton’s lawyer, Brian Dickey KC, told the court his client “did go too far” in the personalisation of his comments and his claim of Brash’s views being “dishonest”. However, the apology provided in 2024 should have made for an efficient remedy, especially given it was republished in “more widely read media than which his remarks were first made”, including “reputable forum” The Spinoff. Hobson’s Pledge had also shared “the gist” of the apology on X.
“All that can be done has been done,” Dickey said.
While Dickey conceded Hooton’s actions likely exceeded the “more than minor” harm threshold, he leaned on the Jameel principle, a doctrine which allows cases to be struck out if reputational harm is minimal. It comes from the UK court of appeal decision in Jameel Yousef v Dow Jones – the claimant had issued legal proceedings against a US publication, but the court had found that three of the five subscribers who accessed the article in England had come from the claimant’s camp.
Hooton wasn’t the only party who had made “disparaging” remarks about Brash on the podcast, Dickey said. The fact that Martyn Bradbury had also said “unpleasant things about Dr Brash” but had come out unscathed indicated that the comments made in the “non-serious broadcast” were “somewhat water off a duck’s back”.
“The respondent has poured fuel on the fire deliberately, to make this as public as it could be,” Dickey said.
A ‘relentless attack on Dr Brash’s honesty’
On Brash’s side of the court, two of the country’s most experienced defamation lawyers – Peter McKnight and Ali Romanos – spoke of the “distressed and injured feelings” Hooton’s comments had caused their client. McKnight is no stranger to high-profile clients – he represented Taxpayers’ Union co-founder Jordan Williams in his defamation case against former Conservative Party leader Colin Craig, and former Invercargill councillor Karen Arnold in her defamation case against late mayor Tim Shadbolt.
When McKnight rose for his submission, he labelled this an “unorthodox defamation case”. Hooton had launched a “scathing attack on [Brash’s] honesty”, which had “evidence of significant republication” online. Hooton’s new role as editor of The Post put his comments in a new light: “He has influence.”
“The appellant has attacked the integrity of Dr Brash in many ways,” McKnight said. “An apology without payment has far less force. That is why many apologies will record that an apology has been accompanied by payment for damages. It remains to be explained by the appellant why he has refused to pay costs.”
The court is still deliberating on whether to strike out the claim. Justice French told lawyers a decision may take some time.