Cao v Stuff Limited - [2023] NZHC 3703

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-196

[2023] NZHC 3703

BETWEEN
DONG (ANNIE) CAO

First Plaintiff

AND

PAUL OULTON

Second Plaintiff

AND

STUFF LIMITED

First Defendant

AND

GARY JAMES FARROW

Second Defendant

Hearing: 11 December 2023

Counsel:

No appearance for parties

Judgment:

14 December 2023

JUDGMENT OF JOHNSTONE J

(Juror fine – Contempt of Court Act 2019)

This judgment was delivered by me on 14 December 2023 at 2pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

CAO v FARROW [2023] NZHC 3703 [14 December 2023]

[1] In this case, Dong Cao and Paul Oulton claimed that Stuff Limited and Gary Farrow defamed them. The trial commenced on 30 October 2023, and concluded on 10 November 2023 when I reserved my judgment. I will deliver my judgment in the new year. In the meantime, another issue has required attention.

[2] During most of the trial, I sat with a jury. But on 6 November 2023, I discharged one of the jurors. I did so because I had received information indicating that he had undertaken research into Stuff’s code of ethics, and might be liable to a fine under the Contempt of Court Act 2019.1

[3] Shortly before discharging the juror, I explained to him why I was doing so. Later, I arranged for him to be served with a notice further explaining my concern, providing him with an opportunity to take legal advice, and requiring his attendance before me, so that I might receive from him any evidence or statement he considers relevant.

[4] The juror appeared in Court before me on 11 December 2023. I heard his account, and details of his personal circumstances. I also heard from him on the question of suppression of his identity.

[5]At the conclusion of the hearing on 11 December 2023, I advised that:

(a)I was satisfied the juror had, during the trial period, intentionally researched information relevant to the trial.

(b)I would impose a fine of $250.

(c)I would suppression publication of the juror’s identity, except in respect
of his role as a juror in this trial.

(d)My reasons would follow.

[6]My reasons are set out below.

1 Contempt of Court Act 2019, s 13(1). Section 13(4).

Background

The trial

[7] Ms Cao and Mr Oulton brought their claim as the promoters of a festival run annually at their home on the outskirts of Hamilton, under the banner of the Waikato Cherry Tree Festival. They alleged that a series of online and print articles published on the Stuff website and in the Waikato Times newspaper, and a podcast created and broadcast by Mr Farrow, were defamatory. They sought a declaration that Stuff and Mr Farrow were liable to them in defamation.

The juror’s discharge

[8] At around 10 am on 6 November 2023, the jury foreperson sent the Court the following communication:

The jury would like the defendants to state the code of ethics that they work to,…

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 [2023] NZHC 3703
Case: [2023] NZHC 3703
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case of Dong (Annie) Cao and Paul Oulton versus Stuff Limited and Gary James Farrow, the plaintiffs alleged that they were defamed by publications and a podcast. The trial took place from October 30, 2023, to November 10, 2023, and the court reserved judgment until the new year. However, during the trial, the court had to address a juror's conduct, who researched Stuff's code of ethics, potentially breaching the Contempt of Court Act 2019. The juror was discharged, and the court had to decide whether to impose a fine and suppress the juror's identity. The court found the juror intentionally researched information relevant to the trial, despite warnings, and imposed a $250 fine while suppressing the juror's identity.

The court had to determine whether the juror's actions constituted a breach of the Contempt of Court Act 2019 and, if so, whether to impose a fine. The juror's research on Stuff's code of ethics was deemed relevant to the trial as it pertained to the defendant. The court found that the juror intentionally researched information relevant to the trial, despite specific warnings against such conduct. The court assessed the seriousness of the conduct as falling towards the lower end of the scale, given the circumstances of the case and the juror's acceptance of his error and expression of regret. The court imposed a $250 fine, considering the juror's personal circumstances and the potential financial burden on him and his wife. The court also decided to suppress the juror's identity to protect his privacy while allowing the public interest in reporting on apparent breaches of jury members' responsibilities to be addressed.

The final orders of the court included the imposition of a $250 fine on the juror, the suppression of the juror's identity except in respect of his role as a juror in the trial, and the provision of reasons for the decision. The court found the juror guilty of intentionally researching information relevant to the trial and imposed a fine, while also considering the public interest in reporting on jury misconduct and the juror's privacy. The court's decision aimed to balance the need for deterrence with the interests of justice and the juror's personal circumstances.

Orders