Don Brash wants $750,000 in defamation case - Matthew Hooton says apology is enough

Matthew Owen Hooton acknowledges he went too far by personalising his comments and proposing that Don Brash was dishonest during a 2024 podcast.

Hooton’s lawyer Brian Dickey KC conceded this, but says his client’s subsequent apology was enough, particularly as he’s apologised “almost exactly for what he’s being sued for.”

The long-running defamation case between the pair was before a three-person panel at the Court of Appeal in Wellington this morning.

Hooton, a political commentator and recently appointed editor-in-chief of the Post and the Sunday Star Times, wants Brash’s defamation claim struck out in its entirety.

Brash, the former National Party leader and Hobson’s Pledge founder and trustee, wants it to go back to court, where he is seeking $750,000 in damages.

The case centres around comments Hooton made during The Working Group political podcast, hosted by Martyn Bradbury and Damien Grant, in August 2024.

Hooton’s comments about Brash and Hobson’s Pledge were focused on the issue of Māori customary rights to the foreshore and a controversial Hobson’s Pledge advertisement in the NZ Herald.

Court documents outline in detail some of the comments Hooton made in a monologue of more than four minutes, including that Brash was a “fundamentally bad person”; he “divided this country for no apparent reason, despite being certainly intelligent enough to know the things that he says are not true”; and Hobson’s Pledge was a “profoundly dishonest organisation.”

Brash told the court through his lawyers that Hooton’s comments suggested he was dishonest, lacking in integrity, corrupt and fundamentally a bad person of the worst kind.

At today’s hearing, Dickey argued that his client’s apology nullified any damage caused to Brash, and as such, the court can conclude that he should only be entitled to nominal damages, adding that the $750,000 being sought was “outside the realm of what might be available”.

“The argument for the appellant is that, having gone too far and in the reality of the internet age, it must be possible for corrections to be made; he has done that in his apology, which is a virtual overlap to the allegations … so that now there is nothing for vindication on behalf of the respondent", Dickey said.

A central plank of Hooton’s case is that the apology is enough, so there’s no substantial vindication to be gained from a trial.

“So all that can be done has been done, there has been an apology”.

In short, the submitted hat should be the end of the matter.

But Brash’s lawyer Peter McKnight maintains Hooton “had published very serious defamatory meanings about Dr Brash, with a scathing attack on Dr Brash’s honesty.”

That apology mitigated, but didn’t ameliorate the damage. For that and other reasons, he told the court the defamation case should be sent back to court for trial.

Hooton argues that all the material evidence is before the court and hence the case should be struck out.

But Brash says quite the opposite, with “so many issues for trial.”

These include the question of liability and the aggravation of damages, including attacks, it says Hooton has made, “accusing him of bringing this proceeding for political advantage and political fundraising.”

McKnight told the court at a trial that Hooton would also be asked to explain why a payment hadn’t accompanied his apology with a payment and why he’d refused to pay costs.

He contrasted Hooton’s response to his client with that of former National Party minister Steven Joyce, with whom Hooton also settled a defamation case with an apology and agreed to pay his legal costs.

“The appellant has chosen to attack. Amongst so many matters, that is an issue for trial.”

But Dickey said his client hadn’t chosen to attack Brash; he’d merely said what he’d done.

He submitted that there was nothing to be gained from a trial.

“It is said we needed to go to trial to hear from these witnesses. To hear what? No one can contribute to the question of harm.”

Dickey also pointed out that Bradbury had made comments about Brash, but hadn’t been sued.

Dickey also told the court that Brash had effectively republished the negative remarks that had been made about him on Hobson’s Pledge and X, adding his own response to it.

In doing this, Dickey submitted, Brash had “put it out there” and “poured fuel on the fire to make this as public as it could be.”

During today’s hearing, reference was made to the case of Jameel, a landmark English House of Lords decision from 2006.

It established the “Jameel Principle” which allows courts to strike out defamation claims where the harm caused is negligible and only a trivial number of people read the material.

The Court of Appeal has yet to decide a case on Jameel.

Hooton cited Jameel as a ground of appeal, saying that any vindication to be achieved, “will be entirely disproportionate to the cost of continuing the proceeding.”

In response, Brash’s second lawyer Ali Romanos said the court cannot make summary determinations of the apology’s effectiveness, Brash’s conduct or damages.

“Accordingly, the Court cannot summarily conclude the proceeding does not offer Dr Brash any vindicatory benefit,” Romanos said in submissions.

Justice Christine French, Justice Sarah Katz and Justice Matthew Palmer reserved their decision, saying they would endeavour to release it as soon as possible.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.