Cooper v Hamilton Pharmacy 2011 Limited - [2016] NZHC 437

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

CIV-2015-470-7

[2016] NZHC 437

UNDER the Defamation Act 1992

BETWEEN

SIMON COOPER

Plaintiff

AND

HAMILTON PHARMACY 2011 LIMITED

First Defendant

GRAHAM BURNETT
Second Defendant

PAPAMOA PINES PHARMACY LIMITED

Third Defendant

BROOKFIELD PHARMACY LIMITED
Fourth Defendant

ELISABETH KATHLEEN CLARE
Fifth Defendant

ANDREA CATHERINE COOMBES

Sixth Defendant

Hearing: 8 March 2016

Appearances:

T Braun and M Brady for Plaintiff A Darroch for Defendants

Judgment:

14 March 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 14 March 2016 at 4:30pm
Pursuant to Rule 11.5 of the High Court Rules

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

COOPER v HAMILTON PHARMACY 2011 LIMITED [2016] NZHC 437 [14 March 2016]

Solicitors:
Whitfield Braun, Hamilton, for Plaintiff
Darroch Forrest Lawyers, Wellington, for Defendants

[1] Mr Cooper worked as pharmacist for Hamilton Pharmacy 2011 Ltd from January 2013 to June 2014. Mr Burnett, Ms Clare, and Ms Coombes, are all directors of Hamilton Pharmacy 2011 Ltd. Papamoa Pines Pharmacy Ltd and Brookfield Pharmacy Ltd operate pharmacies at Papamoa and Brookfield respectively. Mr Cooper sues the defendants for defamation and injurious falsehood.

[2] The defendants apply for orders for Mr Cooper to provide further and better particulars of oral defamation allegations and for further discovery.

Particulars of oral defamation

[3]The pleaded defamatory statements in the latest statement of claim are:

9In or about June 2014 the fifth defendant, with the actual or ostensible authority of the first defendant, advised an employee of the first defendant, Courtney Denise Strong, that the plaintiff had stolen bankings from the first defendant.

11In or about July 2014 the second defendant, with the actual or ostensible authority of the first defendant, telephoned or spoke to other pharmacists in the Waikato/Bay of Plenty area and advised them that:

(a)The plaintiff was caught for the theft of banking at work;

(b)The plaintiff consumed alcohol while on duty as a pharmacist;

(c)The plaintiff “date-raped” a nurse;

(d)The plaintiff used amphetamines/methamphetamines and had tested positive for methamphetamine; and

(e)The plaintiff engaged in sexual intercourse with another person at the premises of the first defendant.

12In the week commencing 21 July 2014 the sixth defendant, with the actual or ostensible authority of the first defendant, advised Julie Bunn, the director of South City Health Pharmacy 2012 Ltd, not to employ the plaintiff as:

(a)The plaintiff had stolen banking from the first defendant; and

(b)The plaintiff “date-raped” a nurse.

13On or about 24 July 2014 the second defendant, with the actual or ostensible authority of the first defendant, sent a facsimile to the fourth defendant which stated that:

(a)The plaintiff was caught for theft of banking;

(b)The plaintiff was drinking cider while on duty as a pharmacist;

(c)The plaintiff possibly stole drugs for personal sale; and

(d)The plaintiff was sacked from the second defendant.

17In or about August 2014 the second defendant with the actual or ostensible authority of the first defendant spoke to Dr Nicholas Binns and read him the complaint he made to 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: [2016] NZHC 437
Decision Date: 14 March 2016

CaseChat Overview and Summary

Simon Cooper filed a lawsuit against Hamilton Pharmacy 2011 Ltd and other defendants, alleging defamation and injurious falsehood. The defendants sought further and better particulars of the oral defamation allegations and further discovery. The court examined the adequacy of the pleadings and the relevance of the requested discovery. The court found that the plaintiff had sufficiently pleaded the defamatory statements in the statement of claim, but suggested that the plaintiff review his pleading to ensure he would be able to prove them at trial. The court also found that the defendants were not entitled to the further discovery they sought, including medical and employment records going back before the start of the plaintiff's employment with the first defendant. The court ordered the plaintiff to make unredacted copies of bank statements available for inspection, but dismissed the defendants' application for discovery of other documents.

The legal issues in the case were whether the plaintiff had adequately pleaded the oral defamation allegations and whether the defendants were entitled to the further discovery they sought. The court found that the plaintiff had sufficiently pleaded the defamatory statements, but suggested that he review his pleading to ensure he would be able to prove them at trial. The court also found that the defendants were not entitled to the further discovery they sought, including medical and employment records going back before the start of the plaintiff's employment with the first defendant. The court ordered the plaintiff to make unredacted copies of bank statements available for inspection, but dismissed the defendants' application for discovery of other documents.

The court's reasoning was based on the legal principles governing defamation pleadings and discovery in New Zealand. The court found that the plaintiff had sufficiently pleaded the defamatory statements, but suggested that he review his pleading to ensure he would be able to prove them at trial. The court also found that the defendants were not entitled to the further discovery they sought, including medical and employment records going back before the start of the plaintiff's employment with the first defendant. The court ordered the plaintiff to make unredacted copies of bank statements available for inspection, but dismissed the defendants' application for discovery of other documents.

The final orders of the court were that the plaintiff was not required to provide the particulars sought by the defendants, but was encouraged to review his pleading of the alleged defamations. The court also found that the plaintiff was not in breach of the requirement to make ongoing discovery of communications with the Pharmacy Council, but was required to make available for inspection copies of bank statements, which had not been redacted. The defendants' application requiring the plaintiff to disclose medical and employment records going back before the start of his employment was dismissed. The parties were invited to confer as to costs, and if they could not agree, memoranda were to be filed. The court directed a further case management conference for 3:00 pm on Wednesday, 13 April 2016.

Orders