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Christian v Bain

Christian v Bain

Case [2021] NZHC 3390 10 December 2021

Contractual Interpretation

Defamation Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001818

[2021] NZHC 3390

UNDER the Defamation Act 1992

BETWEEN

GRAHAME CHRISTIAN

Plaintiff

AND

NZME PUBLISHING LIMITED

First Defendant

MICHAEL VALINTINE
Second Defendant

MURRAY IAN BAIN

Third Defendant

Hearing: 3 December 2021

Appearances:

C Patterson for the Plaintiff

W Akel and J Dickson for the Third Defendant

Judgment:

10 December 2021

JUDGMENT OF WALKER J

[Redacted]

This judgment was delivered by me on 10 December 2021 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CHRISTIAN v BAIN [2021] NZHC 3390 [10 December 2021]

Introduction

[1] In what circumstances does settlement with one joint tortfeasor not release another joint tortfeasor? That is the issue before the Court in this defamation proceeding. Mr Christian alleges he has been defamed in articles published by NZME Publishing Limited. He alleges that Mr Bain was the source of the articles. He sues Mr Bain as a joint tortfeasor. That is, he claims that Mr Bain is jointly responsible for the published articles rather than claiming in respect of any statements Mr Bain may have made to the journalist who authored the articles.

[2]A three week trial is scheduled to commence on 8 February 2022.

[3] Mr Christian has settled his claims against the first and second defendants. That settlement included a published retraction. Mr Bain applies to strike out the claim against him on the basis that the settlement between those parties also released Mr Bain from any liability by operation of law. He invokes the “release rule”, the effect of which is that a release in favour of one joint tortfeasor operates in favour of all.1 Mr Christian contends in response that he was entitled to settle with one or more joint tortfeasors without releasing any other joint tortfeasor and did so settle on the expressly negotiated basis that the settlement would not release Mr Bain. In other words, that he reserved rights to continue the proceeding against Mr Bain. If Mr Bain is entitled to rely on the release rule, the proceeding will be at an end.

Preliminary application to set aside settlement privilege

[4] As a prelude to the strike-out application, Mr Christian sought a direction setting aside the settlement privilege protecting the correspondence exchanged in negotiations with the first and second defendants. He claimed that correspondence would support his argument that the settlement agreement was never intended to release Mr Bain from liability. If set aside, the correspondence would then be produced in opposition to the strike-out application provided it is relevant in accordance with the fundamental principle that relevant evidence is admissible save for the exceptions in s 7 of the Evidence Act 2006 (the Act). Mr Christian waived

1 Moodie v Strachan HC Wellington, CIV-2007-485-002212, 26 August 2010 at [12].

privilege in the correspondence, to the extent that he was able, but properly recognised that the privilege belongs to both he and the first and second defendants…

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 Christian v Bain

Details

AGLC: Christian v Bain [2021] NZHC 3390
Case: [2021] NZHC 3390
Decision Date: 10 December 2021

CaseChat Overview and Summary

In Christian v Bain, Grahame Christian sued Michael Valintine and NZME Publishing Limited for defamation. Christian also sued Murray Ian Bain, alleging that Bain was the source of the articles and was jointly responsible for their publication. Christian settled with Valintine and NZME, but continued to pursue Bain. Bain applied to strike out Christian's claims against him, arguing that the settlement with Valintine and NZME released him from liability. Christian opposed the application, arguing that the settlement did not release Bain. The High Court of New Zealand considered the legal principles governing the release of joint tortfeasors, the relevance of settlement negotiations, and the proper construction of the settlement agreement. The Court found that the settlement agreement did not release Bain, and dismissed Bain's application to strike out. The Court also declined to set aside settlement privilege for the correspondence exchanged in negotiations with Valintine and NZME, finding that the intention of the parties was clear from the settlement agreement itself and that producing further contextual material would needlessly prolong the application. The Court reserved the question of costs.

Orders