Cato v Manaia Media Ltd - [2020] NZHC 1240

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-3091

[2020] NZHC 1240

UNDER the Defamation Act 1992

BETWEEN

KRISTIN PIA CATO

Plaintiff

AND

MANAIA MEDIA LIMITED

Defendant

AND

ROWAN DIXON

Second Defendant

AND

JANE THOMPSON

Third Defendant

Hearing
(by telephone):
13 May 2020

Appearances:

P King and S McKenna for the Plaintiff

S Mills QC and D Nilsson for the Defendants

Judgment:

12 June 2020

JUDGMENT OF HINTON J

[Defendants’ Interlocutory Application for Extension of Time to Elect Trial by Jury]

This judgment was delivered by me on 12 June 2020 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Lee Salmon Long, Auckland S Mills QC, Auckland McKenna King

CATO v MANAIA MEDIA LIMITED [2020] NZHC 1240 [12 June 2020]

[1] The defendants apply for an order granting them leave to elect trial by jury out of time. The plaintiff, Ms Cato, opposes the grant of leave, saying it would prejudice her for leave to be granted and there is no good reason for the late election.

Background: Procedural History

The genesis of the dispute

[2] The proceeding concerns an article published by the defendants on the Horse & Pony Magazine website on 2 December 2017 and promoted by them on social media. The plaintiff alleges the article defamed her. The defendants deny the defamation and say a clarification and apology was attached to the article when they became aware of the plaintiff’s complaint, and the article was then removed from online publication.

[3] It has already been established the article is capable of bearing the defamatory meanings pleaded by Ms Cato.1 Remaining issues arising for determination are whether the article did in fact defame Ms Cato and, if so, the measure of damages.

Chronology

[4] The plaintiff’s claims as to prejudice and overall delay on the part of the defendants make it necessary to detail the lengthy chronology of this proceeding.

[5] Ms Cato filed her statement of claim on 22 December 2017, the defendants filed defences on 20 February 2018 and on 6 March 2018 the plaintiff filed replies and a notice of particulars under ss 39 and 41 of the Defamation Act 1992 (the Act).

[6] On 16 May 2018, the plaintiff filed a first amended statement of claim incorporating a new prayer for a recommendation that a correction be published under s 26. She also filed an interlocutory application seeking determination of whether the article was capable of bearing the defamatory meanings she had pleaded (the meanings application) and for an order for a conference under s 35 of the Act to determine whether a s 26 recommendation should be made (the s 35 conference).

1 Cato v Manaia Media Ltd [2019] NZHC 440, reversed in part [2019] NZCA 661.

The defendants filed a notice of opposition on 30 May 2018 to the meanings application.

[7] A first case management conference was held on 20 June…

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: [2020] NZHC 1240
Decision Date: 12 June 2020

CaseChat Overview and Summary

The defendants apply for an order granting them leave to elect trial by jury out of time. The plaintiff opposes the grant of leave, saying it would prejudice her for leave to be granted and there is no good reason for the late election. The defendants rely on r 1.19 of the High Court Rules 2016, which provides that the court may, in its discretion, extend or shorten the time appointed by the rules for doing any act or taking any step in a proceeding. The plaintiff relies on s 16 of the Senior Courts Act 2016, which provides that a jury trial is available on demand but only if notice is given “in accordance with the High Court Rules.” The plaintiff submits there is a presumption against an extension of time being available for the giving of a jury notice under s 16 and r 7.16. The court considers the jurisdiction to grant an extension of time should be applied using the general principles applicable to applications for an indulgence under r 1.19. The court found the delay in the defendants' giving notice of their election to be technical and excusable. The court also found the plaintiff would not suffer prejudice if an extension is allowed. The court concludes it is just to exercise its discretion to grant an extension of time under r 1.19 in favour of the defendants. The defendants' application for an extension of time is granted, with the result that the defendants' notice given in December 2019, requiring that the trial of the outstanding issues in this proceeding be conducted before a jury, pursuant to s 16 of the Senior Courts Act 2016, is accepted for filing. The defendants are to file a memorandum as to costs within 14 days and the plaintiff any reply within seven days of receipt.

Orders