Cato v Manaia Media Limited - [2021] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA690/2020
[2021] NZCA 226

BETWEEN	KRISTIN PIA CATO Appellant
AND	MANAIA MEDIA LIMITED First Respondent ROWAN DIXON Second Respondent JANE THOMPSON Third Respondent

Hearing:	20 May 2021
Court:	Goddard, Venning and Peters JJ
Counsel:	S J Mills QC and E D Nilsson for Appellant F A King and M A Dempster for Respondents
Judgment:	3 June 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondents costs for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.

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Table of contents

Para No

Introduction and summary

The issues before this Court

Summary

Relevant legislation

Background

The proceedings
The jury notice date is fixed as 10 May 2019
Further steps in the proceedings
The respondents decide not to give a jury notice by 10 May 2019
The respondents cease to be represented, then obtain legal representation again
The October 2019 trial date is vacated
Extension of time to give jury notice

High Court extension judgment

High Court leave judgment

Issues on appeal

Ms Cato’s submissions on appeal

Discussion

An extension of time was required
Approach to extension of time application
Should an extension of time be granted in this case?

Result

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

The issues before this Court

The appellant, Ms Cato, has brought defamation proceedings against the respondents. A three-week trial is scheduled to begin on 6 September 2021.
A trial was previously scheduled to take place in October 2019. The High Court made timetable orders on 15 March 2019 leading up to that trial date. Those orders required the respondents to give notice by 10 May 2019 if they sought a trial before a jury, rather than a Judge alone. Under s 16 of the Senior Courts Act 2016 the respondents were entitled to a jury trial, provided they gave a timely notice in accordance with the High Court Rules 2016. The respondents, who at that time expected to be self-represented at the trial, chose not to give a jury notice by the 10 May 2019 deadline.
The October 2019 fixture was subsequently vacated at the parties’ joint request. In December 2019 the respondents, who had obtained legal representation for the trial, applied for an extension of time to give a jury notice. Hinton J granted that application (High Court extension judgment).[1]
[1]Cato v Manaia Media Ltd [2020] NZHC 1240 [High Court extension judgment] at [105]–[106].
Ms Cato applied for leave to appeal to this Court from the High Court extension judgment. The Judge granted leave.[2]
[2]Cato v Manaia Media Ltd [2020] NZHC 2961 [High Court leave judgment] at [51].
Ms Cato argues that an extension of time should not have been granted to file a jury notice. The respondents say that an extension of time was not required. Alternatively, if they did need an extension of time, the…

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.

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Details

Case: [2021] NZCA 226
Decision Date: 3 June 2021 at 11.00 am

CaseChat Overview and Summary

The appellant, Ms Cato, sought to appeal against the decision of the High Court to grant an extension of time to the respondents to file a jury notice. Ms Cato argued that the extension should not have been granted, and that granting it would result in additional costs and delay in the proceedings. The respondents argued that the extension was not required, or alternatively that it was proper to grant the extension. The Court of Appeal dismissed the appeal, finding that the High Court did not err in granting an extension of time to file a jury notice. The Court found that the delay in giving the jury notice was not material, as the original reasons for setting the deadline had fallen away. The respondents' change of tack was deliberate, but not unreasonable given their change in circumstances. The delay did not cause any relevant prejudice to Ms Cato, and it was in the interests of justice to extend the time within which the respondents could exercise their right to require a jury trial.

Orders