Blomfield v Slater - [2018] NZHC 1099

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-5218

[2018] NZHC 1099

BETWEEN
MATTHEW JOHN BLOMFIELD

Plaintiff

AND

CAMERON JOHN SLATER

Defendant

Hearing: 14 and 15 May 2018

Appearances:

F Geiringer for Plaintiff Defendant in person

Judgment:

18 May 2018

JUDGMENT OF LANG J

[on application by plaintiff for summary judgment and/or strike out]

This judgment was delivered by me on 18 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

BLOMFIELD v SLATER [2018] NZHC 1099 [18 May 2018]

[1] In this proceeding Mr Blomfield sues Mr Slater in defamation. At issue in the proceeding are 13 blogs published by Mr Slater on the website commonly known as Whaleoil.1 The trial of the proceeding is scheduled to commence on 8 October 2018. Six weeks have been allocated for the trial.

[2] Mr Slater is defending the claims on several bases. First, he will argue that, taken in context, the blogs were not defamatory of Mr Blomfield. Secondly, he will rely on the affirmative defences of truth and honest opinion.

[3] Mr Blomfield now applies for summary judgment as to liability in relation to each of the impugned publications. In the alternative, he seeks an order that the defence to each be struck out on the basis that it has been improperly pleaded and / or discloses no tenable defence.

The application for summary judgment

Relevant principles

[4] The principles that apply to an application for summary judgment have been clearly established through decisions of the Court of Appeal such as Pemberton v Chappell, Grant v NZMC Ltd, Westpac Banking Corporation v MM Kembla New Zealand Ltd and Krukziener v Hanover Finance Ltd.2

[5] I therefore propose to apply the following general principles, which apply to all applications for summary judgment:

(a)Mr Blomfield must satisfy the Court that Mr Slater has no arguable defence to the claims brought against him. The issue is whether there is a real question to be tried.

(b)It is generally not possible to determine disputed issues of fact based on affidavit evidence alone, particularly when issues of credibility

1 Whale Oil Beef Hooked < v Chappell [1987] 1 NZLR 1 (CA); Grant v NZMC Ltd [1989] 1 NZLR 8 (CA); Westpac Banking Corporation v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) and Krukziener v Hanover Finance Ltd [2008] NZCA 187 [2010], NZAR 307 at [26].

arise. Issues of law, even though they may be complex, can, however, be determined in an application for summary judgment.

(c)Although the Court should adopt a robust approach, nevertheless summary judgment may be inappropriate where the ultimate determination turns on a judgment that can only properly be reached after a full hearing of all the evidence.

The publications

[6] Each of the blogs was published between 3 May and 6 June 2012. They occurred after Mr Slater came into possession of a hard drive containing emails sent…

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 1099
Case: [2018] NZHC 1099
Decision Date: 18 May 2018

CaseChat Overview and Summary

Blomfield sued Slater in defamation over 13 blogs published on the Whaleoil website. Slater defended the claims on several bases, including that the blogs were not defamatory of Blomfield, and that they were expressions of truth and honest opinion. Blomfield applied for summary judgment as to liability in relation to each of the impugned publications. In the alternative, he sought an order that the defence to each be struck out on the basis that it had been improperly pleaded and / or discloses no tenable defence. The court considered the application for summary judgment as it related to individual publications and determined that summary judgment was not justified because it was arguable that an ordinary person reading the publication would not take the meanings from it for which Blomfield contends. The court also considered the application to strike out and dismissed it, noting that the defences of truth and honest opinion must be pleaded separately and that the particulars provided by Slater in support of the defences of truth and honest opinion were inadequate. The court granted Slater a final opportunity to re-plead his defences separately.

Orders