Bright v Town - [2017] NZHC 1027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003194 [2017] NZHC 1027

UNDER the Defamation Act 1992

IN THE MATTER

of a civil claim for damages

BETWEEN

PENELOPE MARY BRIGHT Plaintiff

AND

STEPHEN TOWN Defendant

Hearing: 17 May 2017

Appearances:

No appearance for Plaintiff
W Akel for Defendant

Judgment:

18 May 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 18 May 2017 at 12 noon
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

BRIGHT v TOWN [2017] NZHC 1027 [18 May 2017]

Introduction

[1] Ms Bright commenced these proceedings in 2014 seeking damages against Mr Town in defamation. Mr Town applied for summary judgment on the ground that there was no answer to his defence of qualified privilege. Alternatively he sought an order striking out the proceedings on the ground that Ms Bright’s notices under ss 39 and 41 of the Defamation Act 1992 did not plead sufficient facts or circumstances. Associate Judge Smith granted the summary judgment application.1 In doing so, he made it clear that he was not striking out the statement of claim but rather entering summary judgment in favour of Mr Town.

[2] Ms Bright has applied to review Associate Judge Smith’s decision. Because this proceeding was commenced prior to March 2017 and costs on the summary judgment application are still unresolved Ms Bright’s application for review falls to be determined in accordance with the Judicature Act 1908 rather than the Senior Courts Act 2016.

[3] The matter was listed in the Duty Judge List on 17 May 2017. Mr Akel appeared for Mr Town, prepared to provide oral argument. Ms Bright filed written submissions indicating that she would not appear. In the circumstances I decided that the matter was best dealt with on the papers without hearing oral argument.

Application for review

[4] I am satisfied that the application for review must be dismissed because review is not the permissible method of challenging an Associate Judge’s decision to enter summary judgment. The appropriate course is appeal to the Court of Appeal, for the reasons that I explain next.

[5] Under the Judicature Act 1908 an Associate Judge’s power to determine an application for summary judgment arose under s 26I. The High Court Rules require such applications to be heard in open court.2 Under s 26P(2) any party to a
proceeding may appeal to the Court of Appeal against any order or decision of an

1 Bright v Town [2016] NZHC 411 and Bright v Town [2017] NZHC 141.
2 High Court Rules, r 7.36

Associate Judge in those proceedings “other than on order or decision made in chambers”. Because the summary judgment application must be determined in open court a challenge to summary judgment entered by an Associate Judge must be by way of appeal to the Court of Appeal, not review by a High Court Judge. The Court of Appeal made this clear in Talyancich v Index Development Ltd:3

We…

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 Bright v Town

Details

AGLC: Bright v Town [2017] NZHC 1027
Case: [2017] NZHC 1027
Decision Date: 18 May 2017

CaseChat Overview and Summary

Ms Penelope Mary Bright brought proceedings against Mr Stephen Town, alleging defamation. Mr Town applied for summary judgment, which was granted by Associate Judge Smith. Ms Bright applied for review of that decision. The court was required to determine whether the review application was the correct method for Ms Bright to challenge the Associate Judge's decision to enter summary judgment. The court considered whether the review application was appropriate or whether an appeal to the Court of Appeal was the correct course of action. The court found that the appropriate method was an appeal to the Court of Appeal, not a review by the High Court Judge. Ms Bright's application for review was dismissed and Mr Town was awarded costs on a standard basis for the application.

The court concluded that the review application was not the correct method for Ms Bright to challenge the Associate Judge's decision. The court noted that the Associate Judge's power to determine the summary judgment application arose under section 26I of the Judicature Act 1908, and that such applications must be heard in open court. The High Court Rules require such applications to be heard in open court, and parties may appeal to the Court of Appeal against any order or decision of an Associate Judge in open court proceedings. The court referred to Talyancich v Index Development Ltd, which held that an appeal from a decision of a Master exercising jurisdiction under section 26I of the Judicature Act 1908 lies to the Court of Appeal.

Ms Bright had a right of appeal from the Associate Judge's decision but had to file a notice of appeal within 20 working days of the decision being delivered. Ms Bright did not comply with the requirements of the Court of Appeal (Civil) Rules for filing a notice of appeal, which required delivery by hand or by mail. Ms Bright's failure to comply with the rules meant that her appeal was not properly filed. The court noted that Ms Bright could apply for an extension of time to file an appeal, but this could not affect the current application before the court. The court dismissed Ms Bright's application for review of the Associate Judge's decision to enter summary judgment and awarded Mr Town costs on a standard basis for the application.

Orders