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,…

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 Brash v Hooton

Details

AGLC: Brash v Hooton [2025] NZHC 2195
Case: [2025] NZHC 2195
Decision Date: 6 August 2025

CaseChat Overview and Summary

In the case of Brash v Hooton, the plaintiff, Donald Thomas Brash, sought to hold the defendant, Matthew Owen Hooton, liable for defamation. The defendant had applied to the High Court for an order to strike out the defamation proceeding, which was declined by Associate Judge Brittain. The defendant now seeks leave to appeal this interlocutory decision to the Court of Appeal. The primary legal issue in this case is whether the defendant can appeal the decision declining to strike out the defamation proceeding. The Court must consider whether the defendant has identified an arguable error of law or fact, whether the alleged error is of general or public importance, and whether the interests of justice are served by granting leave to appeal.

The Court found that the grounds for striking out a defamation proceeding are an evolving area of law, particularly in the context of a defendant's apology. The application of these principles in such situations is of general importance, and the outcome of the strike-out application is significant for the parties involved. Given these factors, the Court concluded that the interests of justice are served by granting leave to appeal. The Court also preliminarily determined that the plaintiff should pay the defendant’s costs on the application on a 2A basis, and set out a process for determining these costs if the parties could not agree.

The Court granted the defendant's application for leave to appeal, and outlined the process for determining costs if the parties could not agree. This decision allows the defendant to challenge the interlocutory decision, ensuring that the evolving principles of defamation law are properly considered and applied.

Orders