Cao v Stuff Limited - [2024] NZHC 1367

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-196

[2024] NZHC 1367

BETWEEN
DONG ANNE CAO

First Plaintiff

AND

PAUL OULTON

Second Plaintiff

AND

STUFF LIMITED

First Defendant

AND

GARY JAMES FARROW

Second Defendant

Hearing: on the papers

Counsel:

K J Crossland & J K Boparoy for plaintiffs

R K P Stewart & P K J Roycroft for defendants

Judgment:

28 May 2024

COSTS JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 28 May 2024 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Sheiff Angland, Auckland Darroch Forrest, Wellington

CAO & ANOR v STUFF LTD & ANOR [2024] NZHC 1367 [28 May 2024]

[1] Most years since 2017, Dong (Anne) Cao and Paul Oulton have run the Waikato Cherry Tree Festival at their semi-rural home on the outskirts of Hamilton. Prior to and during the period of the planned 2019 festival, a media organisation, Stuff Ltd, published a series of news articles written by its reporter Gary Farrow. Stuff also published news articles, and Mr Farrow published an online broadcast, after the planned 2019 festival. Ms Cao and Mr Oulton were unhappy with the news articles and broadcast. They sued, seeking declarations that Stuff and Mr Farrow were liable to them in defamation.

[2]I heard the case with a jury. The jury found that:

(a)An online article first published on 15 September 2019 defamed Ms Cao and Mr Oulton, by asserting that they operated their 2017 and 2018 festivals without the resource consent that was required for those festivals to have operated lawfully.

(b)The entire balance of Ms Cao and Mr Oulton’s case, relating largely to what the articles said about the planned 2019 festival, was not made out. The articles did not mean what was alleged, or if they did those meanings were not defamatory, or if they were such defamation caused no more than minor harm.

[3] In respect of the defamatory aspect of the 15 September 2019 article, I found that Stuff and Mr Farrow were not protected by the modern defence of responsible publication on a matter of public interest. Accordingly, I granted the declaration sought in respect of that article.1

[4] Stuff and Mr Farrow now seek an award of costs, on the basis that before the trial they made various written offers to Ms Cao and Mr Farrow, stated to be without prejudice except as to costs. As required by r 14.10 of the High Court Rules 2016, the offers were not communicated to the Court until the question of costs arose. Stuff and Mr Farrow say that the offers, and the consequent effect of r 14.11, in combination entitle them to costs.

1 Cao v Stuff Ltd [2024] NZHC 44.

Written offers without prejudice except as to costs

The general rules

[5] Rule 14.10 provides that parties to proceedings may make written offers except as to costs. Under r 14.11:

(1)The effect (if any)…

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 Cao v Stuff Limited

Details

AGLC: Cao v Stuff Limited [2024] NZHC 1367
Case: [2024] NZHC 1367
Decision Date: 28 May 2024

CaseChat Overview and Summary

Dong Anne Cao and Paul Oulton, organisers of the Waikato Cherry Tree Festival, sued media organisation Stuff Limited and its reporter Gary Farrow for defamation over a series of news articles and a broadcast. The jury found one article defamatory, but rejected the remainder of the plaintiffs' case. The plaintiffs sought a declaration of liability, but not damages. Stuff and Farrow sought costs, arguing that their pre-trial offers without prejudice, except as to costs, entitled them to an award of costs. The court had to decide whether the pre-trial offers were more beneficial to the plaintiffs than the judgment they obtained, and if so, whether the costs consequences of rule 14.11 applied. The court found that the plaintiffs' success was limited and that the 31 August 2023 offer, if accepted, would have been more beneficial to them than the judgment they obtained. The offer included an apology, removal of an article from Stuff's news website, and a contribution to the plaintiffs' costs of $75,000. The court ordered that Cao and Oulton pay Stuff and Farrow's costs for steps taken after 31 August 2023, assessed under costs category 2B with two counsel certified as $54,970.00, plus $15,868.74 in disbursements comprised of travel and accommodation costs of counsel, and jury fees.

Orders