Craig v Stringer - [2016] NZHC 768

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000575 [2016] NZHC 768

UNDER the Defamation Act 1992

BETWEEN

COLIN GRAEME CRAIG Plaintiff

AND

JOHN CHARLES STRINGER Defendant

Hearing: (by telephone) 13 April 2016

Appearances:

C G Craig (applicant in this matter) in person
J C Stringer (opposing) in person
A Ferguson and R Baillie for non-party, Vodafone New Zealand
Ltd, in opposition

Judgment:

22 April 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on non-party discovery application

[1] In this proceeding Mr Craig sues Mr Stringer in defamation. He pursues

31 causes of action for various publications occurring between June and August

2015.

[2] Discovery and inspection are taking place between the parties to the proceeding pursuant to Court directions.

This application

[3] This judgment concerns Mr Craig’s application for non-party discovery by Vodafone New Zealand Limited (Vodafone). The requested order would require Vodafone to search both its online and off-line storage and determine whether it has control of any email correspondence which has been sent to or from Mr Stringer’s
email account between the dates of 1 November 2014 and 26 February 2016.

CRAIG v STRINGER [2016] NZHC 768 [22 April 2016]

The grounds of the application

[4] I summarise below the grounds of the application (which Mr Craig particularised in 19 paragraphs). Both Mr Stringer and Vodafone filed succinct notices of opposition raising points which I take into account in the following findings. I am satisfied that none of the grounds individually or collectively would justify the making of an order. I will identify against each point (my numbering) the valid grounds of objection.

[5] Mr Craig’s application was supported by affidavits from himself and his wife. Additionally there were supporting affidavits of five individuals who had been asked by Mr Craig whether they had received or sent any email correspondence to Mr Stringer’s email account in the period 1 November 2014 to 26 February 2016. Each of the deponents had had such correspondence and produced from that correspondence “sample illustrations” (their words) in which Mr Stringer discussed Mr Craig. Additionally Mr Craig filed an affidavit of an expert from the information technology industry who deposed that Vodafone would have retained copies of emails sent through its servers (including those involving Mr Stringer’s email account) for two years.

[6] Vodafone’s notice of opposition was supported by an affidavit of a delivery manager employed by Vodafone. He deposed that it was incorrect to assert that Vodafone, as a matter of practice, keeps copies of customers’ emails for two years. He deposes that Vodafone can only retrieve such emails if they have not been removed from the server. But in that situation the customer can also access the emails. Therefore, Vodafone does not have access to emails that the customers cannot also access.

Ground (a) – Refusal of Mr Stringer to provide email correspondence

[7] An order for non-party discovery will be made only if it is reasonably necessary. The first source should always be the party to the litigation if…

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 Craig v Stringer

Details

AGLC: Craig v Stringer [2016] NZHC 768
Case: [2016] NZHC 768
Decision Date: 22 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, Colin Graeme Craig sued John Charles Stringer for defamation. The claim included 31 causes of action arising from publications between June and August 2015. Craig sought non-party discovery from Vodafone New Zealand Limited, requesting that it search both its online and offline storage to determine if it held any emails sent to or from Stringer's email account between 1 November 2014 and 26 February 2016. The primary legal issue was whether the court should order Vodafone to provide the requested discovery. The court had to consider whether such an order was reasonably necessary, given that Stringer, as a party to the litigation, could be compelled to provide relevant documents. The court also had to assess whether the proposed discovery was proportionate to the subject matter of the proceeding and whether other sources of evidence were sufficient.

The court found that the application for non-party discovery was not reasonably necessary. Craig had other means to obtain the documents from the five individuals who had corresponded with Stringer. Furthermore, the court concluded that Stringer still had access to his records through his service provider, despite the loss of his computer equipment. The court also noted that the discovery process had been slow but did not conclude that Stringer would stubbornly refuse to comply with the court's directions. The scope of the discovery request was overly broad and resembled a "fishing expedition." The court could not resolve the conflict between the evidence provided by Vodafone and Craig's expert regarding the retention of emails by Vodafone. Ultimately, the court held that the need for the order had not been demonstrated and dismissed the application. Costs were awarded to Vodafone and Stringer.

The court ordered that the application for non-party discovery was dismissed, and Craig was to pay the reasonable costs and disbursements incurred by Vodafone and Stringer in opposing the application.

Orders