Brash v Hooton

[2025] NZHC 2195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2574

[2025] NZHC 2195

UNDER

the Defamation Act 1992

BETWEEN

DONALD THOMAS BRASH

Plaintiff

AND

MATTHEW OWEN HOOTON

Defendant

Hearing:	On the papers
Counsel:	P A McKnight / A J Romanos for the Plaintiff B H Dickey / C S A Jordan for the Defendant
Judgment:	6 August 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[leave to appeal]

This judgment was delivered by me on 6 August 2025 at 11 am.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors:

Franks Ogilvie, Wellington Meredith Connell, Auckland

B H Dickey, Auckland

P A McKnight, Wellington A J Romanos, Wellington

BRASH v HOOTON [2025] NZHC 2195 [6 August 2025]

Introduction

[1]                 On 11 June 2025, I gave judgment for the plaintiff declining the defendant’s application for an order striking out this defamation proceeding.1 The defendant applies for leave to appeal to the Court of Appeal.

Legal principles — leave to appeal

[2]                 Pursuant to s 56(3) of the Senior Courts Act 2016, the defendant is required to obtain the leave of this Court to pursue an appeal against my interlocutory decision.

[3]                 The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders are made.2

[4]                 The approach to an application for leave, and the principles governing its grant or refusal, are well-established:3

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

1      Brash v Hooton [2025] NZHC 1530.

2      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

3      Tomar v Tomar [2021] NZCA 419 at [6].

The judgment

[5]                 I held that, in most cases, strike-out of a plaintiff’s defamation claim now depends on a defendant establishing that the actual reputational harm to the plaintiff was minor, so that the threshold of seriousness is not met, and the cause of action has not accrued.4

[6]                 I held that there remains a further limited role for the principle of proportionality in New Zealand defamation law where a cause of action has accrued because the claimant has suffered more than minor harm. An abuse of process may still occur in that situation where factors exist that will result in only nominal damages being awarded, and the vindication the claimant can achieve from the proceeding is disproportionate to the costs and burden of the proceeding.5

[7]I held that the existence of an apology can be relevant in two respects:6

(a)First, in determining whether the claimant has suffered more than minor harm. For example, a comprehensive apology that is published quickly and broadly might be a factor relevant to an assessment of whether the claimant has suffered, or will suffer, more than minor harm.

(b)Secondly, where the claimant has suffered more than minor harm, in determining whether the vindication the claimant might achieve from the proceeding is disproportionate to the costs and burden of the proceeding. For example, an apology could sufficiently mitigate damages for the plaintiff’s more than minor harm to a point that damages would be nominal.

[8]                 I reviewed the context and nature of the alleged defamatory statements in question, the extent of publication, and the apology made by the defendant, concluding that it is arguable that the elements of the tort of defamation are made out, and it was

4      Brash v Hooton, above n 1, at [29].

5 At [30].

6 At [36].

not open to the Court at a summary stage of the proceeding to make a finding that the plaintiff had suffered only minor harm.7

[9]                 I stated the legal principles applicable when assessing whether a plaintiff has brought a proceeding for an improper purpose.8 I reviewed the evidence relied on by the defendant, concluding that the plaintiff was not bringing this proceeding for a predominant improper purpose.9

[10]              Finally, having found that the threshold of seriousness was met, I determined that the effectiveness of the defendant’s apology should be considered at trial in the context of all evidence relevant to damages. I held that it was not possible at a summary stage of the proceeding to rule that any award of damages to the plaintiff would be nominal, justifying a strike-out.10

The proposed grounds of appeal

[11]The defendant argues that:

(a)I erred in finding that there was insufficient evidence to determine that the threshold of seriousness was not met;

(b)I failed to have regard to the evidence that supported a finding that the plaintiff is bringing the proceeding for an improper purpose;

(c)I made an error of law in holding that a defamation claim where all elements of the tort are made out might nonetheless be struck out, without properly articulating what the threshold for a strike-out in those circumstances should be; and

(d)there was sufficient evidence to support a finding that the proceeding should be struck out on an application of the proportionality principle, even if the threshold of seriousness was met.

7      At [40]–[60].

8      At [61]–[64].

9      At [65]–[79].

10     At [80]–[96].

Analysis

[12]              The grounds on which a court may strike out a defamation proceeding by applying the threshold of seriousness and/or the principle of proportionality is an area of the law that is continuing to evolve. There is no New Zealand authority on how the principles should be applied in a situation where a defendant has made an apology. It is arguable that my statement of the principles, and application of those principles, involved errors of law.

[13]              Given that this area of the law is evolving, the enunciation and application of the principles is of general importance.

[14]              The outcome of the application for strike-out is significant to the parties. If I was wrong to decline the application, and it is subsequently granted on appeal, then this will bring the proceeding to an end and save both parties significant costs.

[15]              Overall, I am satisfied that the interests of justice are served by granting leave to appeal.

Costs

[16]              My preliminary view is that the plaintiff should pay the defendant’s costs on the application on a 2A basis, for the following reasons:

(a)the interlocutory application was straightforward, and not supported by an affidavit;

(b)distillation of the grounds of appeal is work that will be utilised on the appeal; and

(c)relatively limited submissions were required and the application was determined on the papers.

[17]That would result in an award of costs of $1,912 for the following steps:

(a)filing the interlocutory application — 0.3 days; and

(b)preparation of written submissions — 0.5 days.

Orders

[18]              The defendant’s application for leave to appeal to the Court of Appeal is granted.

[19]If the parties are unable to agree on costs, then:

(a)the defendant may file and serve written submissions on costs, of no more than three pages, by 13 August 2025;

(b)the plaintiff may file and serve written submissions on costs, of no more than three pages, by 20 August 2025; and

(c)I will then determine costs on the papers.

Associate Judge Brittain