Craig v Stringer - [2017] NZHC 3221

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-409-000575 [2017] NZHC 3221

UNDER the Defamation Act 1992

BETWEEN

COLIN GRAEME CRAIG Plaintiff

AND

JOHN CHARLES STRINGER Defendant

Hearing: 16 October 2017

Appearances:

C G Craig (Plaintiff/Respondent) in person
J C Stringer (Defendant/Applicant) in person

Judgment:

19 December 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to application for recall]

Introduction

[1] The plaintiff, Colin Craig, sued the defendant, John Stringer, in defamation. The claim was settled by the parties on 31 January 2017 with the Court giving judgment by consent.1 In addition to recording orders made by consent, the Court recorded at the request of the parties three matters contained in their settlement agreement, including that Mr Stringer had “settled the litigation by payment of a confidential
sum”. The orders contained in the judgment were sealed on 3 February 2017.

1 Craig v Stringer [2017] NZHC 50.

This application

[2] Mr Stringer applies for an order that “the judgment be recalled, set aside on the basis of fraud and that the proceeding be struck out”. Alternatively, he seeks an order that the judgment be recalled and reworded.

[3] Mr Craig opposes both aspects of the application.

[4] In support of his application, Mr Stringer had asserted that confidential aspects of the parties’ settlement had been breached by Mr Craig. In an amended application, Mr Stringer asserted, as an additional ground of application, that Mr Craig had deliberately falsified a document discovered in this proceeding.

[5] The parties filed affidavit evidence. Mr Craig denied a breach of confidentiality and the allegation of falsifying a document.

The consent judgment and the parties’s settlement agreement

[6] The operative terms of the consent judgment were:2

[2] I order by consent:

(a) There is judgment for the plaintiff against the defendant in relation to the following publications alleging:

(i) that the plaintiff sexually harassed Rachel
MacGregor;

(ii) that the plaintiff sexually harassed another woman or other women;

(iii) that the plaintiff has been fraudulent in his business dealings; and

(iv) that the plaintiff committed electoral fraud. (b) The plaintiff’s claims are otherwise dismissed.

…

[4] There is no order as to costs and directions as to costs or disbursements previously made or reserved are rescinded.

2 Craig v Stringer, above n 1, at [2]–[4].

[7] The judgment also recorded some matters of agreement between the parties

(albeit not as orders of the Court):

[3] By their agreement the parties recorded that:

(a) The defendant retracts in full his statements as to the matters set out at paragraph [2](a) above;

(b) The defendant has apologised to the plaintiff; and

(c) The defendant has settled the litigation by payment of a confidential sum.

[8] As the judgment indicated, the parties had recorded a settlement agreement. Save for the recording of three matters in the consent judgment, they did not file in the Court a copy of their agreement to make it part of the Court record. Nonetheless, it…

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 [2017] NZHC 3221
Case: [2017] NZHC 3221
Decision Date: 19 December 2017

CaseChat Overview and Summary

The plaintiff, Colin Craig, sued the defendant, John Stringer, for defamation. The parties settled the case on 31 January 2017, and the Court gave judgment by consent. The judgment recorded that Mr Stringer defamed Mr Craig in various publications by alleging that Mr Craig sexually harassed Rachel MacGregor, Mr Craig sexually harassed another woman or other women, Mr Craig had been fraudulent in his business dealings, and Mr Craig committed electoral fraud. Mr Stringer applied for the judgment to be recalled, set aside on the basis of fraud, and for the proceeding to be struck out. Alternatively, he sought an order that the judgment be recalled and reworded. Mr Craig opposed both aspects of the application.

Mr Stringer asked for the judgment to be recalled to re-word the clause stating that he settled the litigation by payment of a confidential sum. He submitted that the clause was now a misnomer and wrong in fact due to the verification process. Mr Craig did not argue that the clause accurately reflected the position between the parties. The Court found that the consent judgment adopted the parties' incorrect description of the financial aspect of their settlement agreement. It was appropriate to correct the mis-statement through the recall of the judgment.

The consent judgment came about as a result of the parties concluding a settlement agreement at a judicial settlement conference convened in this proceeding. The parties had been required to make discovery of relevant documents. It is common ground that correspondence between Mr Craig and Rachel MacGregor concerning any matters of relationship between them was relevant. Mr Craig discovered an item which was stated to be of 21/11/2011 and recorded to have been put by Mr Craig on a file. Mr Stringer received a copy of the file note by way of inspection. Mr Stringer viewed the half-page file note as a fabricated or falsified version of the 12-page letter not so discovered. The vast majority of what Mr Craig had written to Ms MacGregor was not included in the file note. The context of this litigation was that Mr Craig’s defamation claims were based on statements made by Mr Stringer on a number of topics including allegations that Mr Craig had sexually harassed Ms MacGregor and/or engaged in "abhorrent behaviour". The 12-page letter was one such document. The differences between the 12-page letter, the full version on the final page, and the abbreviated file note were of themselves also capable of constituting valuable material for cross-examination. The parties, at a time when Mr Craig was represented by counsel, agreed that standard discovery was appropriate in this proceeding. It was ordered. Under r 8.7 High Court Rules, Mr Craig was required to list all documents which adversely affected his case or supported Mr Stringer’s case. The original of the letter sent by the party to another person is therefore a document which is required to be listed. The non-discovery of the document meant that Mr Stringer was deprived of the opportunity to himself pursue production of the letter for the structuring of his defence and/or consideration in the context of the pending settlement conference. The Court found that the judgment was obtained by consent and fresh evidence has become available to Mr Stringer which is material to the outcome of the case but was previously unknown to him. It would be inappropriate to apply the principle of finality of litigation in this case.

The Court ordered that the judgment of this Court in this proceeding dated 31 January 2017 is recalled. The wording of the judgment is amended to now read: There is judgment for the plaintiff against the defendant in relation to the following publications alleging: (i) The plaintiff sexually harassed one or more women other than Rachel MacGregor; (ii) that the plaintiff has been fraudulent in his business dealings; and (iii) that the plaintiff committed electoral fraud. The plaintiff's claims, save his claims in relation to publications alleging that the plaintiff sexually harassed Rachel MacGregor, are otherwise dismissed. By their agreement the parties recorded that: (i) The defendant retracts in full his statements as to the matters set out at para [2](a) above; (ii) The defendant has apologised to the plaintiffs; and (iii) The parties' agreement to settle the litigation involved agreement by the defendant to pay an agreed sum which sum was subsequently written off by the plaintiff upon an agreed financial audit of the defendant's financial position. The plaintiff is to pay to the defendant his reasonable disbursements incurred in the filing of his application for recall.

Orders