Smith damages action set to go ahead

JOHN BISSET/The Timaru Herald

COURT ACTION: Dr Smith said there was still an element of hope the matter could be settled, but he would continue his ministerial work if the trial proceeded.

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Failure to reach an out-of-court settlement in a $15 million damages action means a trial involving government minister Nick Smith looks set to proceed later this year.

Yesterday in a telephone conference, the parties' lawyers confirmed to Justice Rhys Harrison at the High Court at Auckland that the case had not been settled.

Timber preservatives producer Osmose New Zealand is seeking nearly $15m in damages in an action against eight parties. It follows statements made in 2005 by timber preservation scientist Robin Wakeling and Dr Smith, who was then National's spokesman on building issues, about one of its timber treatments. They are named as first and second defendants.

Dr Smith had hoped the case could be settled before a six-week trial which is due to start on June 8.

Dr Smith, who is now Minister for ACC, Environment, and Climate Changes Issues, said he was disappointed the matter had not been settled.

"I am ramping up the work to provide a robust defence.

"It adds a bit of extra pressure to my ministerial and MP work but it now seems I have no choice but to defend the action before the court."

It is not the first time Dr Smith has faced a High Court trial. In 2004 he was charged with contempt of court for comments and actions relating to a Family Court case, was found guilty and fined $5000.

Justice Harrison noted yesterday that further discussions in the Osmose proceedings were likely but also advised that if the case was to be settled that should happen sooner rather than later. The court had allocated nine weeks of hearing and judgment time. "It will be unacceptable if the case is settled at the last minute given the difficulties of attempting to arrange substitute or standby fixtures for some or all that allocated nine weeks," he said.

The parties are to confirm before May 18 that the case is ready for trial.

Dr Smith said there was still an element of hope the matter could be settled, but he would continue his ministerial work if the trial proceeded. His defence would principally be run by his lawyer, although he would need to be at court some days.

"It is important to understand it is a civil matter. I am a witness and party to the dispute and I stand by the statements I have made and the importance of members of Parliament to be able to freely express views on important issues like leaky homes without the threat of this very expensive and distracting action."

The action came after Dr Wakeling published an article critical of the Building Industry Authority (BIA), now the Department of Building and Housing, for approving the use of the treatment in timber framing of houses in 2004. Osmose is taking action against him for defamation, injurious falsehood and breach of the Fair Trading Act.

Dr Smith issued a press release critical of the then government and BIA, along with a copy of Dr Wakeling's article. He was interviewed on the issue on radio and television. He faces six actions for defamation and injurious falsehood. Dr Smith estimated in January that combined legal costs would be well over $500,000.

Osmose's counsel, Ian Gault, declined to comment.

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