Chen v Carter - [2013] NZHC 869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002046 [2013] NZHC 869

UNDER the Defamation Act 1992

IN THE MATTER OF
an interlocutory application under Rules

7.23 and 7.53 of the High Court Rules

BETWEEN

JOHN CHUNG CHING CHEN Plaintiff

AND

JOHN NORMAN CARTER First Defendant

AND

ROGER BERNARD APPERLEY Second Defendant

AND

DAVID LLOYD BURGESS Third Defendant

AND

PETER FRANCIS Fourth Defendant

AND

JOHN LEONARD MORRIS Fifth Defendant

AND

SALLY LEONARD SYNNOTT Sixth Defendant

AND

CROCKERS BODY CORPORATE MANAGEMENT LIMITED Seventh Defendant

AND

ROCHELLE WILLIAMS Eighth Defendant

Hearing:

23 April 2013

Counsel: J G Miles QC with A J Lloyd and D M Cross for Plaintiff
A S McIntyre and M J Francis for Defendants

Judgment: 3 May 2013

CHEN V CARTER HC AK CIV-2013-404-002046 [3 May 2013]

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12 noon on the 3rd day of May 2013.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] On 23 April 2013 I heard an application for an interim injunction in which Mr Chen sought orders prohibiting the defendants from repeating what he pleads are defamatory statements made about him.

[2] Soon after the conclusion of the hearing I issued a judgment in which I very briefly said:

(1)that an ex parte interim injunction issued by Keane J on 19 April 2013 was set aside;

(2) that Mr Chen’s application for an interim injunction was dismissed;

and

(3)that my reasons for this judgment would be delivered as soon as possible.

[3] I was required to make my decision and issue a judgment on 23 April 2013 because a meeting of affected persons was scheduled to commence approximately three hours after the conclusion of the oral hearing. The parties needed to know before that meeting whether or not the existing ex parte interim injunction was to continue, be varied, or be set aside.

Context

[4] Mr Chen seeks an interim injunction against the first to sixth defendants who are members of the management committee of the Body Corporate of the Metropolis

apartment complex in Auckland and the seventh and eighth defendants, who are the Body Corporate secretariat and an employee of the secretariat. For convenience I will refer to all defendants as the Body Corporate committee.

[5] On 19 April 2013 Mr Chen applied for an ex parte interim injunction to prevent the Body Corporate committee from further publishing a communication which comprised:

(1)a three-page email dated 12 April 2013 from the Body Corporate committee to all owners of the Metropolis Body Corporate (the email), which I have annexed to this judgment (Annexure A);

(2)a two-page attachment to the email containing a “summary” of cases in which Mr Chen had been involved (case summary), which I have also annexed to this judgment (Annexure B);

(3)a three-page attachment to the email comprising part of a deed of lease;

(4)a one-page attachment to the email being a list of seven cases from the judicial decisions on-line database;

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: [2013] NZHC 869
Decision Date: 3 May 2013

CaseChat Overview and Summary

John Chung Ching Chen brought an interlocutory application for an interim injunction against the first to sixth defendants who are members of the management committee of the Metropolis Body Corporate, and the seventh and eighth defendants, who are the Body Corporate secretariat and an employee of the secretariat (collectively, the Body Corporate committee). The Body Corporate committee had sent an email to all owners of the Metropolis Body Corporate. Mr Chen sought an interim injunction preventing the Body Corporate committee from further publishing the email. Mr Chen alleged the email contained defamatory statements about him. The Body Corporate committee argued the statements were true and were protected by qualified privilege. The court set aside the ex parte interim injunction issued by Keane J on 19 April 2013 and dismissed Mr Chen’s application for an interim injunction. The court was not satisfied Mr Chen had demonstrated there was no reasonable possibility of a defence to an action in defamation if the statements complained of were republished. The court was also not satisfied the circumstances of this case warranted the issuing of an interim injunction. The court considered it futile to prohibit the Body Corporate committee from repeating their belief that Mr Chen was litigious and obdurate. The court held the words complained of had already been published, therefore any damage had, in all likelihood, already been done. The court was not satisfied it was appropriate to issue an interim injunction in the circumstances of this case.

Orders