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Blomfield v Slater

Blomfield v Slater

Case [2018] NZHC 2781 26 October 2018

Breach of Contract

Admissibility of Evidence

Defamatory Statements

Reputation

Defamation Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-5218

[2018] NZHC 2781

BETWEEN
MATTHEW JOHN BLOMFIELD

Plaintiff

AND

CAMERON JOHN SLATER

First Defendant

AND

SOCIAL MEDIA CONSULTANTS LIMITED

Second Defendant

Hearing: 26 September, 8, 10, 11, 12 October 2018

Appearances:

F E Geiringer for Plaintiff

G Little SC & D B Beard for Defendants

Judgment:

26 October 2018

Reissued:

18 February 2019

REASONS JUDGMENT OF PAUL DAVISON J

[Re application by defendants to file fourth and fifth amended affirmative statement of defence, security for costs and admissibility of evidence]

This judgment was reissued by me on 18 February 2019 at 3:30 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Bytalus Legal, Auckland Legal Street, Auckland

BLOMFIELD v SLATER [2018] NZHC 2781 [26 October 2018]

Introduction

[1] The trial of this now longstanding defamation proceeding was scheduled to commence on 8 October 2018. However, commencement of the trial has been delayed by the defendants’ late filing of interlocutory applications, including applications for leave to file first a fourth amended statement of defence, and then a fifth amended statement of defence.

[2] On 26 September 2018, I heard two interlocutory applications by the defendants in which they applied for leave to make a further application for an order for security for costs, and for leave to file a fourth amended affirmative statement of defence. I declined both these applications and issued a results judgment on 27 September 2018.1

[3] On the first day of the scheduled trial on 8 October 2018, and prior to opening the case for the plaintiff, counsel for the plaintiff applied for a ruling as to the admissibility of evidence sought to be introduced by the defendants. He submitted that the defendants’ third amended statement of defence filed on 15 June 2018 did not satisfy the requirements of proper pleading of the defences of truth and honest opinion, and that much of the evidence that the defendants are seeking to adduce is therefore irrelevant and inadmissible. He also made submissions as to other aspects of the defendants’ pleadings and submitted that the defendants should not be permitted to advance a defence based on asserting the truth of the publications taken as a whole, or produce evidence directed at the issue of the plaintiff’s bad reputation. After hearing submissions from both counsel that occupied the first scheduled day of the trial, I reserved my decision on the application and adjourned the commencement of the trial pending release of my reserved judgment.

[4] After the hearing concluded on 8 October, the defendants’ counsel filed an “Urgent Memorandum” stating that the defendants would seek leave to file a fifth amended affirmative statement of defence, and seeking adjournment of the trial for a day to enable counsel time to prepare it. I convened a judicial telephone conference on the morning of 9 October, confirmed that the application was opposed by the

1 Blomfield v Slater [2018] NZHC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blomfield v Slater

Details

AGLC: Blomfield v Slater [2018] NZHC 2781
Case: [2018] NZHC 2781
Decision Date: 26 October 2018

CaseChat Overview and Summary

In Blomfield v Slater, Blomfield sued Slater and Social Media Consultants Limited for defamation, claiming that the defendants published nine articles on the Whale Oil blog website between 3 May 2012 and 6 June 2012 which defamed him. The defendants filed a number of amended statements of defence, and the plaintiff applied to strike out the defences on the basis that they were improperly pleaded and did not disclose a tenable defence. The application was dismissed, and the defendants were granted leave to re-plead their defences. They were warned that it would be their final opportunity to do so. In their third amended statement of defence, the defendants failed to plead particulars in relation to their defences of truth and honest opinion, and instead referred to the contents of affidavits and evidence to be called. Blomfield applied for a ruling as to the admissibility of evidence sought to be introduced by the defendants, submitting that the defences were improperly pleaded and that the evidence was therefore irrelevant and inadmissible. The defendants then applied for leave to file a fourth amended statement of defence, and an application for leave to apply for a further order for security for costs and an order to stay the proceeding. Blomfield opposed the applications. The court held that the defendants’ applications for leave to file the fourth and fifth amended statements of defence should be dismissed. The defendants had been given a final opportunity to replead their defences, and they had failed to comply with that opportunity. The defendants’ applications for leave to file the amended statements of defence were therefore in the interests of justice and would cause substantial prejudice to the plaintiff. The court also dismissed the defendants’ application for leave to apply for a further order for security for costs, holding that the defendants had not identified any special circumstances such as would warrant the court granting leave to bring the application. Finally, the court ruled that the defendants may not adduce any evidence directed at advancing the defences of truth and honest opinion, including the evidence contained in the four affidavits of the first defendant sworn on 15 June and filed on 20 June 2018. Furthermore, as a consequence of the defendants’ failure to comply with the requirement to give notice of any specific instances of misconduct by the plaintiff which are intended to be relied on to show him to be a person of bad reputation, no evidence relating to those matters referred to in the 5ASOD or otherwise shall be admitted as evidence at the trial.

Orders