Christian v Bain - [2021] NZHC 2834

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1818

[2021] NZHC 2834

UNDER the Defamation Act 1992

BETWEEN

GRAHAME CHRISTIAN

Plaintiff

AND

MURRAY IAN BAIN

Defendant

Hearing: On the papers

Appearances:

C T Patterson for the Plaintiff Third Defendant in person

Judgment:

22 October 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 22 October 2021 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr C T Patterson and Mr E J Grove, Chris Patterson Barrister Ltd, Auckland Mr R Horsley (plaintiff’s instructing solicitor), Maxim Legal, Auckland
Mr M I Bain

CHRISTIAN v BAIN [2021] NZHC 2834 [22 October 2021]

[1] In this defamation proceeding scheduled for a three week trial before a Judge and jury in the Auckland High Court commencing on 8 February 2022, Mr Christian applies to change the mode of trial to Judge alone.1

[2] I made timetable directions by consent for the filing of submissions in order to determine this issue on the papers, together with an issue as to the costs of Mr Christian’s application for leave to discontinue against other defendants.2

Background

[3] For present purposes, it is sufficient to summarise the factual background briefly. Mr Christian is the founder of a waste disposal and recycling company which, following acquisition, is now Smart Environmental Ltd (Smart). Mr Christian was managing director from incorporation of the predecessor company in 2007 until 2019. He remains a director.

[4] Mr Bain was an employee of Smart until December 2017. In January 2018 Mr Bain founded a commercial waste company, Coastal Bins Ltd, of which he is a director and majority shareholder.

[5] Mr Christian alleges that Mr Bain was the source of information for media articles authored by Mr Valintine and published by NZME Publishing Ltd, the former defendants, on 3 August 2019:

(a)an article entitled “Waste ‘rort’ may cost $1m: Claim”; and

(b)an article entitled “Waste firm’s dirty secret”.

[6] Mr Christian claims that the articles are defamatory of him as each means, and has been understood to mean, that he as founder and former managing director of Smart and as its current director either directed or was complicit in Smart’s environmental action.

1 Mr Bain, the only remaining defendant, has also applied for a change of venue to the Hamilton High Court. That application is not before me.
2 Minutes dated 31 August and 1 September 2021. As a result of leave to discontinue, the intituling now omits the former defendants.

[7] Mr Bain denies the statements attributed to him as insufficiently particularised, denies they were defamatory and also pleads honest opinion.

[8]Mr Christian has settled with and discontinued against the former defendants.3

Mode of trial

[9] On 2 December 2020 Mr Christian gave notice electing to have his claims determined before a Judge and jury.4 On 17 December 2020 the defendants at the time, including Mr Bain, consented 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 Christian v Bain

Details

AGLC: Christian v Bain [2021] NZHC 2834
Case: [2021] NZHC 2834
Decision Date: 22 October 2021

CaseChat Overview and Summary

Grahame Christian has brought a defamation action against Murray Ian Bain in the Auckland High Court. Mr Christian claims that articles published by NZME Publishing Ltd were defamatory of him, as they implied he was complicit in environmental wrongdoing by his company, Smart Environmental Ltd. Mr Bain denies the statements were defamatory and pleads honest opinion. Mr Christian has discontinued his claim against the former defendants. Mr Christian initially elected to have his claims determined by a jury, but now wishes to rescind that election and have the matter heard by a Judge alone. Mr Bain opposes the rescission of the jury notice election and has not made his own election. The issues before the Court were whether Mr Christian can rescind his jury notice election and whether the Court should order that the proceeding be heard before a Judge alone. The Court concluded that the statutory right to elect a jury trial does not preclude a party from withdrawing its own election, at least with leave, and granted Mr Christian leave to withdraw his jury notice on the condition that he consents to an extension of time for Mr Bain to give a jury notice. Since Mr Christian does not pursue his application for a Judge alone trial, the Court makes no order as to costs.

The Court granted Mr Christian leave to withdraw his jury notice on the condition that he consents to an extension of time for Mr Bain to give a jury notice in accordance with r 7.16 by no later than 8 November 2021. The Court makes no order as to costs.

Orders