Durie v Gardiner: Public Libel Law and Stare Non Decisis
| Published date | 01 May 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12524 |
| Date | 01 May 2020 |
| Author | Randall Stephenson |
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Modern Law Review
DOI: 10.1111/1468-2230.12524
CASES
Durie vGardiner: Public Libel Law and Stare Non Decisis
Randall Stephenson∗
This note examines the controversial case of Durie vGardiner, a recent decision of the Court
of Appeal of New Zealand, which radically altered the nation’s public libel jurisprudence. It
argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie
judgments failed to engage in freedom of expression theorising. Second, this undertheorising has
caused significant confusion in Durie, including misinterpretation of material facts, breakdown
of the ‘theory-doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of
Appeal’s settled public libel principles. Third, owing to these difficulties, the Durie courts were
in no position to import a new ‘public interest’ defence from foreign jurisdictions. Aboveall, by
hastening towards wholesale law reform and ignoring its earlier comparative law deliberations,
Durie arguably scuppers public libel law’s best hope for advancement.
INTRODUCTION
Cases seldom arise that plainly expose the risks courts may assume when
refusing to observe the maxim of stare decisis.1Durie vGardiner2(Durie) a recent
decision of the Court of Appeal of New Zealand, is precisely such a case.
In Durie, the Court upheld an interlocutory order substantially restructuring
New Zealand’s public libel law,3replacing its established defence of qualified
privilege for ‘political expression’ (the Lange defence) with an ad hoc ‘public
interest’ defence transplanted from foreign jurisdictions. Despite endorsing
substantial doctrinal change, the Court of Appeal did not engage with free
expression theory or the suitability of its existing defamation law principles.4
∗Senior Researcher, Max Planck Institute for the Study of Crime, Security and Law, Department
of Public Security Law. I would like to thank the anonymous reviewer for helpful comments and
constructive criticisms. All errors and omissions are my own.
1 See generally ‘Stare Decisis’ (1872) 6 Albany LJ 329; W.M. Lile, ‘Some Views on the Rule of
Stare Decisis’ (1916) 4 Virginia LR 95; C.K. Allen, ‘Precedent and Logic’ (1925) 41 LQR 329;
R. Cross and J.W. Harris, Precedent in English Law (Oxford: 4th ed, Clarendon Press, 1991); N.
Duxbury, The Nature and Authority of Precedent (Cambridge: CUP, 2008); B.A. Garner et al, The
Law of Judicial Precedent (St Paul, MN: Thomson Reuters, 2016).
2 [2018] 3 NZCA 278 (Durie CA), affirming in part [2017] 3 NZLR 72 (HC) (Durie HC).
3 See, for example, Vickery vMcLean [2000] NZCA 388; Dooley vSmith [2012] NZHC 529; Karam
vParke r [2014] NZHC 737.
4SeeLange vAtkinson and Australian Consolidated Press NZ Ltd (1997) 2 NZLR 22 (HC) (Atkinson),
affirmed (1998) 3 NZLR 434 (CA) (Lange No 1), reversed [2000] 1 NZLR 257 (PC) (Lange
PC), reversed [2000] 3 NZLR 385 (CA) (Lange No 2).
C2020 The Author. The Modern Law Review C2020 The Modern Law ReviewLimited. (2020)83(3) MLR 637–651
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