Currie v Doe
[2022] NZHC 1547
•30 June 2022
JUDGMENT FOR PUBLICATION: SEE ADDENDUM IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-1805
[2022] NZHC 1547
UNDER the Defamation Act 1992 and Part 18 of the High Court Rules IN THE MATTER OF
a declaration under section 24 Defamation Act 1992 concerning the nature and status of certain web publications
BETWEEN
ELIZABETH MAY CURRIE
Plaintiff
AND
JOHN DOE AND/OR JANE DOE
First Defendant
DERMOT NOTTINGHAM
Second Defendant
Hearing: 26 April 2022 Appearances:
K M Muller for Plaintiff
No appearance for First Defendants Second Defendant in person
Judgment:
30 June 2022
JUDGMENT OF HINTON J
[Redacted version]
This judgment was delivered by me on 30 June 2022 at 5.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
ELIZABETH MAY CURRIE v DOE [2022] NZHC 1547 [30 June 2022]
[1] This judgment addresses an application (and various other unrelated applications) by the second defendant, Mr Nottingham, to strike out the amended statement of claim and an application by the plaintiff, Ms Currie, to strike out the statement of defence. The plaintiff also applies for consequential orders debarring the second defendant from defending the proceeding, removing him as a party and listing the proceeding for formal proof. She seeks costs.
Background
[2] In 2016 Ms Currie and two co-plaintiffs issued this proceeding under the Defamation Act 1992 and Part 18 of the High Court Rules against unnamed publishers cited as John and/or Jane Doe.
[3]The proceeding seeks only declaratory relief (and costs), not damages.
[4][Redacted]
[5] GoDaddy.com LLC, the Arizona company hosting the website, refused to take down the publications without a Court order. Mr Nottingham was one of the parties served with the proceeding because of a possible interest in it. Unusually it was Mr Nottingham who then applied to be joined as a party and his joinder was opposed by the plaintiffs.
[6] Before me Mr Nottingham advised that he came to know of Ms Currie and her former partner, Mr Crann because, where he considers it appropriate, he steps in to assist a party to a dispute.1 In this case, a cousin of Mr Crann asked him to investigate matters following a separation between Mr Crann and Ms Currie. Mr Nottingham was satisfied that Mr Crann needed assistance. It seems the publication followed Mr Nottingham’s “investigations”.
1 He advised that in other cases he has assisted parties charged with murder and rape where he considered that appropriate.
[7] Since the proceeding was issued, the two co-plaintiffs have discontinued leaving Ms Currie as the sole plaintiff. The only party served who has taken any steps in the proceeding seems to have been Mr Nottingham. The amended statement of claim now makes specific allegations of defamation against him as the owner of or a publisher on the Lauda Finem website.
[8] Although Mr Nottingham was joined as a defendant on 18 November 2016, the various interlocutory applications and appeals taken primarily by him over the next five years have had the consequence that his first statement of defence was only filed on 10 December 2021.
[9] In 2016 and 2017 Mr Nottingham filed two applications to strike out on grounds with much the same tenor as his application presently before me, namely that the plaintiff has committed perjury and the proceeding is time-barred. The 2017 application also contained applications for various other orders which Courtney J described as “premature and/or unnecessary”. Courtney J directed that no further interlocutory applications be filed by either party after 24 April 2017 without leave.
[10] Mr Nottingham’s 2016 and 2017 strike-out applications were addressed together by Fogarty J but in two consecutive judgments dated 14 and 25 July 2017. In his first judgment, Fogarty J noted that Mr Nottingham had filed “hundreds of pages of documents” including so-called “affidavits” which were “argumentative and replete with hearsay”.2 The Judge described this filing strategy as “tak[ing] advantage of Part 18 of the High Court Rules”. He then addressed Mr Nottingham’s “applications”, noting: “I say ‘applications’ in quotes as there is no formal application, [compliant] with the High Court Rules”.3 Fogarty J dismissed several of the “applications” as they were not proper interlocutory applications and were “an abuse of a Part 18 hearing”.4
[11] In terms of Mr Nottingham’s earlier application to hold the plaintiffs in contempt for perjury, Fogarty J said “[i]t is premature for this Court prior to the substantive hearing to make any findings of perjury”.5
2 Maltese Cat Ltd v Doe [2017] NZHC 1634 at [14]–[15].
3 At [25].
4 At [28].
5 At [38].
[12] Fogarty J also rejected Mr Nottingham’s argument that the defamation claim was time-barred by ss 11 and 15 of the Limitation Act 2010 (the limitation ground). Sections 11 and 15 provide that a money claim in relation to defamation proceedings has to be brought within two years. Fogarty J found that there was no money claim in this case and the claim was not barred by the Limitation Act. Mr Nottingham appealed, including reissuing a new argument that the claim for costs amounted to a money claim. The appeal was dismissed by the Court of Appeal in a judgment dated 12 December 2019.6
[13] Mr Nottingham applied for a recall of the Court of Appeal judgment.7 That was unsuccessful. Then, he appealed to the Supreme Court.8 The Court declined leave to appeal.
[14] Mr Nottingham has four outstanding costs orders against him in favour of Ms Currie:
(a)On 11 April 2017, Courtney J ordered costs against Mr Nottingham for three case management conferences. On 11 May 2017 these costs were fixed at $2,057.9 This order was made before Mr Nottingham was adjudicated bankrupt which occurred on 11 September 2018.
(b)On 12 December 2019, the Court of Appeal ordered costs of $10,277 against Mr Nottingham for his failed appeal.
(c)On 28 February 2020, the Court of Appeal ordered costs of $478 against Mr Nottingham for his unsuccessful recall application.
(d)On 17 April 2020, the Supreme Court ordered Mr Nottingham to pay
$2,500 in costs for his unsuccessful appeal of the 12 December 2019 Court of Appeal decision.
6 Nottingham v Maltese Cat Ltd [2019] NZCA 641.
7 Nottingham v Maltese Cat Ltd [2020] NZCA 31 (28 February 2020).
8 Nottingham v Maltese Cat Ltd [2020] NZSC 36.
9 On 9 June 2017, Fogarty J confirmed there is interest running on this costs award under s 87 of the Judicature Act 1908 at a rate of 7.5% per annum.
[15][Redacted], after a jury trial, Mr Nottingham was found guilty [Redacted].10
Law on strike-out applications
[16]Rule 15.1 of the High Court Rules relevantly provides:
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[17]Also relevant is r 7.48, which provides in relevant part:
(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.
(2)The Judge may, for example, order—
(a)that any pleading of the party in default be struck out in whole or in part:
…
[18] Rules 7.48 and 15.1 are supported by the Court’s inherent jurisdiction to control its processes to the extent necessary to protect them from abuse, especially in a manner that is manifestly unjust to another party or that brings the justice system into disrepute.11
[19] Rule 7.48 and the inherent jurisdiction of the Court allow a Judge to debar a defendant.12
10 [Redacted]
11 See Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA), citing Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
12 See Hodgson v Siemer HC Auckland CIV 2005-404-1808, 9 July 2007 at [68]–[69]; SM v LFDB
[2014] NZCA 326, [2014] 3 NZLR 494; and LFDB v SM [2014] NZSC 197 at [24].
[20] Rule 15.1(1)(d) includes the power to strike out if proceedings are being conducted in a personally abusive manner, such as making “scandalous and unsubstantiated allegations that are personally abusive in nature”.13
[21] Applications to strike out based on limitation defences fall into r 15.1(1)(c). If a defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for by the Limitation Act 1950 or Limitation Act 2010, the defendant will be entitled to an order striking out the proceeding on the ground that it is frivolous, vexatious or an abuse of process, unless the plaintiff shows that there is an arguable case for an extension or postponement of time.14
Mr Nottingham’s application to strike out
[22] Mr Nottingham’s current application to strike out the amended statement of claim is made on the grounds that: (a) the proceeding is time-barred under s 9 of the Limitation Act; (b) the multiple publication rule is not good law; (c) the proceeding is caught by perjury and conspiracy to defeat the course of justice; and (d) Ms Currie allegedly consented to publication, engaging the defence in s 22 of the Defamation Act.
[23] Mr Nottingham’s application also seeks further orders, not consequential on or connected to his application to strike out. These separate applications were referred to in the plaintiff’s submissions but not orally addressed by Mr Nottingham and referred to only fleetingly, if at all, in his written submissions. These additional applications include:
(a)an application for sanctions against Ms Currie and her counsel, and purportedly against the previous co-plaintiffs, for contempt of Court;
(b)an application for an order that Ms Currie be cross-examined on affidavits she has filed in the proceeding;
13 O’Neill v New Zealand Law Society [2021] NZHC 607 at [11].
14 Murray v Morel & Co Ltd [2007] 3 NZLR 721, [2007] NZSC 27 at [33].
(c)an application that Mr Nottingham be allowed “to make investigations” of certain witnesses; and
(d)an application for discovery by Ms Currie of her banking records, for orders that costs orders against him be rescinded, and for an order that Ms Currie’s counsel identify the funders of her litigation.
[24] Ms Muller advises me that leave was granted for Mr Nottingham’s current applications. I can find no clear record of that on the file. However, I proceed on that basis.
[25] Much like his approach in the applications before Fogarty J, the second defendant has filed a voluminous quantity of material canvassing his arguments. This includes at least 10 memoranda, most of which contain lengthy annexures, and three affidavits, one of which runs to 171 pages. He filed 24 pages of submissions on 29 April 2022 and further submissions (38 pages) the day of the hearing.15 Mr Nottingham also indicated he would hand up further submissions prior to the lunch adjournment but did not do so.
Limitation ground
[26]Mr Nottingham’s oral submissions on the limitation ground were brief.
[27] In his 2016/2017 applications, Mr Nottingham did not rely on s 9 of the Limitation Act, the provision on which he now relies, but raised it belatedly before the Supreme Court. The Court said they did not need to consider the point because it had not been addressed in the lower courts, and in any event, there was to be an argument in terms of multiple publication in the substantive hearing. Although the Court does not say so, that would make any limitation finding moot. Mr Nottingham says he also raised s 9 before then by forwarding to the Court of Appeal (after the hearing in that Court) a copy of the decision of Clark J in Driver v Radio New Zealand on which he
15 Mr Nottingham was reading from the later submissions and I requested he forward them to the Court.
now bases his s 9 argument.16 Not surprisingly, the Court of Appeal made no reference to any post-hearing email in its judgment.
[28] Arguably, Fogarty J’s findings on the earlier limitation argument were wide enough to preclude the current argument under s 9, including as follows:17
[16] I am satisfied that s 11 of the Limitation Act 2010 does not contemplate a time-bar to declaratory relief. The question then turns on whether any other part of that Act, or other statute, provides Mr Nottingham with a limitation defence to the declarations sought.
[17] I am reinforced in my view that the Limitation Act does not contemplate time-barring declaratory judgments, by s 43 of that Act. Located beneath a heading titled “Pleading, and effect of establishing, defences”, s 43 provides:
43 Established defence bars relief, not underlying right
If the defendant establishes a defence under this Act against a claim, and no order under section 17, 35(5), 36(4), or 50 applies to the claim,—
(a)a court or tribunal must not grant the relief sought by the claim; but
(b)the establishment by the defendant of the defence does not extinguish, as against the defendant or any other person, any entitlement, interest, right, or title of the claimant on which the claim is based.
[18] The effect of this section is to provide that, even where a limitation defence may be established, the rights upon which the claim is based are not extinguished. The Act provides for defences where the plaintiff has not been sufficiently prompt in claiming, inter alia, the monetary relief they seek. The defence does not, however, pronounce on the validity or otherwise of the claim that, but for the limitation defence, the plaintiff may have established.
[19] That analysis is particularly applicable to pleadings for declaratory relief, where it is simply the rights of the claimant that are pronounced upon. Section 43 reinforces the view that the Act is not intended to curtail any pronouncement on the underlying rights; it is merely intended to prevent tardiness in obtaining executory relief.
…
[22] As the pleaded limitation defence does not apply to applications for a declaration, I am satisfied that the plaintiffs’ statement of claim was filed in time and is not affected by the Limitation Act 2010.
16 Driver v Radio New Zealand [2019] NZHC 3275 at [75]–[83].
17 Maltese Cat Ltd v Doe [2017] NZHC 1728 (emphasis added).
[29] In any event, it is an abuse of process for Mr Nottingham to re-argue the Limitation Act but on a different basis. It also runs contrary to the way the Supreme Court disposed of the point as set out at [27] above.
[30] For completeness, I also consider Mr Nottingham’s argument under s 9 to be wrong or premature.
[31]Section 9 of the Limitation Act provides:
9 Act may be applied by analogy to equitable claims
Nothing in this Act prevents it from being applied by analogy to a claim in equity to which no defence prescribed by this Act applies.
[32]For s 9 to apply, this proceeding would have to be a claim in equity.
[33] Mr Nottingham says that Ms Currie’s claim for declaratory relief is an equitable claim based on the proceedings being commenced under Part 18 of the High Court Rules. He says that in Driver, Clark J said claims for declaratory relief were “equitable in origin”.18 In that case, Clark J found that the claim for declaratory relief under s 24(1) of the Limitation Act so closely resembled the monetary claim made in that proceeding that it would be inequitable for the plaintiff to proceed with her declaratory claim when the Judge had already found the monetary claim was statute-barred. For those reasons Clark J found that the claim for declaratory relief was also statute-barred, applying s 9 of the Limitation Act.
[34] Ms Muller submits that the claim for a declaration is not an equitable claim. She says, rather, it is a claim for a remedy provided for particularly by statute, namely s 24(2) of the Defamation Act.
[35] Ms Muller also points out that even if s 9 were applicable and the Limitation Act could be applied by analogy to a claim under s 24 of the Defamation Act, it was still necessary, as set out by the Court of Appeal in Johns v Johns, to examine the underlying facts, the nature of the relationship between the
18 Driver v Radio New Zealand [2019] NZHC 3275 at [79].
parties, or the policy and purpose of the different causes of action,19 which Clark J should have done but did not do in Driver.
[36] This submission seems to me to have some force. Clark J did not squarely address whether she considered a declaration under s 24 of the Defamation Act was an equitable remedy. The Judge rather stated in general terms that claims for declaratory relief are “equitable in origin”.20 She then quoted with apparent approval the view of Professor Ursula Cheer that “it would be appropriate to apply the Limitation Act by analogy to an ‘unusual claim seeking only a statutory remedy such as declaration, correction, or retraction and reply under the Defamation Act’”.21 None of this provides authority for the proposition that a declaration sought under s 24 of the Defamatory Act is a claim in equity.
[37] In any event, as Ms Muller points out, in Johns the Court of Appeal explained that the doctrine of limitation by analogy is far from automatic and involves a relatively rigorous exercise:22
There will be a bar by analogy only when the [equitable] claim parallels the statute-barred claim so closely that it would be inequitable to allow the statutory bar to be outflanked by the [equitable] claim. In order to determine how close the parallel is the Court must examine not only the underlying facts but also the nature of the relationship between the parties and the policy and purpose of the different causes of action. If there is a sufficient difference in any material respect, the suggested parallel is unlikely to be close enough to make it appropriate in equity to apply an analogous bar.
[38] It is difficult to see what statute-barred claim is said to be so closely analogous to a claim for declaratory relief in light of the finding that in this particular case the time-bars under ss 11 and 15 do not apply. I note the following paragraph from the decision of Johnston AJ, in the context of declarations under the New Zealand Bill of Rights Act 1990, in Taylor v Attorney-General:23
It is therefore insufficient to invoke the doctrine of limitation by analogy that declaratory relief is equitable in origin. It must be shown that the particular declaration sought would so closely resemble another form of relief that is time-barred by the Limitation Act that it would be inequitable to allow it. It is
19 Johns v Johns [2004] NZLR 202 (CA) at [80].
20 Driver v Radio New Zealand [2019] NZHC 3275 at [79].
21 At [82] (emphasis added).
22 At [80].
23 Taylor v Attorney-General [2019] NZHC 2767 at [20] (citations omitted).
not obvious to me that there is any other form of relief addressed in the Limitation Act that resembles a declaration on a breach of a right protected by NZBORA. Monetary relief for a breach of NZBORA is quite distinct from declaratory relief. Monetary relief is focussed on compensation, while a declaration is purely vindicatory. For this reason alone, there are no grounds for this Court to apply the Limitation Act by analogy.
[39] It is arguable that the declaratory relief provided for under s 24 of the Defamation Act does not have a parallel with any other form of relief addressed in the Limitation Act. The remedy provided by s 24 is purely vindicatory unlike a claim for damages which is compensatory. The right to protect your reputation by a declaration is an important right. The very reason for s 24 is to encourage parties to not use defamation proceedings as a money-making exercise and to resort to such proceedings only where protection of their reputation is important and/or justified. Given the nature of the publications here I consider this prima facie to be a case where the protection of reputation is important.
[40] The effect of Clark J’s decision, applying it on its face, would be that in any defamation case the application of s 9 would necessarily time-bar a claim for a declaration under the Defamation Act after two years. Further, contrary to Ms Muller’s tentative admission, I cannot see any basis for distinguishing between defamation cases that seek a declaration and damages (such as Driver) and cases seeking only a declaration (like this one). If Parliament intended to time-bar claims under s 24 of the Defamation Act it would have been a relatively easy matter to simply provide in s 15 of the Limitation Act that not only are money claims in defamation proceedings barred after two years but so also are claims for declarations.
[41] There may be some cases where s 9 might apply to declaratory relief on the specific facts. However, the doctrine of limitation by analogy should, as the Court of Appeal said in Johns and Johnston AJ reiterated in Taylor v Attorney-General, be far from automatic and involve a relatively rigorous exercise. I note that the application of s 9 is discretionary.24
24 See McLachlan v Meyers (2009) 10 NZCPR 625 (HC) at [44]–[45].
[42] In my view any argument under s 9 in this case, if allowed at all, would have to be made at a substantive hearing.25 I do not consider this is a clear-cut case for application of the doctrine by analogy: to the contrary. I am not persuaded that the plaintiff’s claim is so clearly barred by the Limitation Act that it can be regarded as frivolous, vexatious or an abuse of process. In fact, I consider it most unlikely to ultimately be found to be so.
[43] Finally, in relation to his limitation argument Mr Nottingham claims in his application that the proceedings should be struck out because the multiple publication rule is not good law. For present purposes anyway, the plaintiff does not need to rely on that rule, given the findings of Fogarty J and the findings in this judgment on Mr Nottingham’s limitation points.26 Even if those findings are wrong, the possible application of the multiple publication rule would mean a strike-out of the plaintiff’s claim was unjustified. Overall, this is a matter that should be left for trial.
Ground of perjury/conspiracy to defeat justice/breaches of duties of counsel engaged in litigation/defence under s 22 Defamation Act
[44] Mr Nottingham’s second ground for strike-out (perjury) is the ground he stressed most in his oral submissions and it occupied the bulk of his written submissions.
[45] Perjury is not a defence to a defamation proceeding. It is an offence of wilfully telling an untruth or making a misrepresentation under oath. No charge of perjury has been laid. Where brought, such a charge has to be proved beyond reasonable doubt. Truth is a defence to defamation but there is no evidence before me that all of the matters alleged in the publication are true or for that matter any of them. In any event that would clearly be a matter for trial as would allegations of perjury, falsehood or similar as Fogarty J has already held. Nothing more needs to be said on this account
25 See Johns v Johns [2004] NZLR 202 (CA) at [2]: Causes of action or aspects thereof should only be struck out before trial on the basis that they are statute or otherwise barred, if the defendant can establish that proposition conclusively. If there is any real doubt about the matter, the case should be allowed to go to trial where all issues of fact and law can be fully explored.
26 The Court of Appeal similarly did not consider it necessary to address the multiple publication argument given it found there was no money claim: Nottingham v Maltese Cat Ltd [2019] NZCA 641 at [16].
but I go on to consider Mr Nottingham’s submissions briefly nonetheless, so that the futility and error of his argument is reasonably clear.
[46] Mr Nottingham says he has provided proof the plaintiff has perjured herself in some key respects. He further says that in fact she has effectively consented to publication of the statements she claims to be defamatory, bringing in a complete defence for Mr Nottingham under s 22 of the Defamation Act 1992.
[47] I asked Mr Nottingham for his key points in this regard because it was very difficult to draw them out from the lengthy submissions and other material filed, including a 67-page memorandum with 29 attachments dealing specifically with purported issues of dishonesty.
[48] Mr Nottingham’s first key point was that in an affidavit apparently sworn by Ms Currie in the Family Court on 16 June 2014 she said:
Since last December 2013, the respondent and associated respondent have not harassed me. I am aware that Lauda Finem have not published any more new articles about me since 1 November 2013. Accordingly, currently there are no articles on the web site making false and defamatory allegations against me.
[49] Mr Nottingham says this paragraph on its own demonstrates both that Ms Currie has committed perjury and that she has discontinued the defamation proceeding.
[50] I disagree. The contents of this paragraph cannot possibly be said to amount to consent to publication, bringing into play s 22 of the Defamation Act. The statement, assuming it was made in a Family Court proceeding, does not change the fact of publication, nor remotely amount to a discontinuance of a defamation proceeding, nor support Mr Nottingham’s claim of perjury.
[51] It seems there is some confusion or uncertainty over whether the articles are still on the website or elsewhere. That is a matter that can be resolved if necessary at a substantive hearing. It would not change the right to a declaration, just the terms of it.
[52] Mr Nottingham heavily relied on his second key point. He says Ms Currie gave sworn testimony (in some previous proceeding) that she did not [Redacted]. Mr Nottingham took me through a number of documents, including statements which would be hearsay in this proceeding, which he said clearly demonstrated that Ms Currie was lying when she made the statement that she did not [Redacted]. He asserts that she was also lying in connection with associated statements relating to [Redacted].
[53] I asked Mr Nottingham what the relevance of this particular issue was, and he said he had no idea but Ms Currie expressly pleads that she did not [Redacted] and that she did not [Redacted]. Therefore, she must think it is relevant. He says both of these matters are clearly wrong, based on the various documents to which he took me. He acknowledged that this did not establish (on its own) that the entire defamation proceeding should be struck out. But he says these elements of perjury combined with the failure of Ms Currie’s counsel to follow up and disclose the correct position to the Court, or withdraw as counsel, amount to a conspiracy, on the basis of which in any event the claim should be struck out.
[54] This argument is without substance. It is quite clear on the face of the pleaded defamatory publications that they go very far beyond any specific matter relating to [Redacted]. Even if those matters were proven, as Mr Nottingham alleges, against Ms Currie (and I do not accept they are by the odd collection of documents he points to), they would in no way justify a strike-out of the defamation proceedings.
[55] Furthermore, the argument regarding counsel being involved in a conspiracy is misconceived and entirely improper. Counsel do not have an obligation in civil proceedings to hold their clients to account, nor do I consider there is anything to account for. There is no basis for finding any conspiracy, nor any basis for a strike- out on that footing.
[56] Mr Nottingham’s third key point for his perjury argument is based on Ms Currie denying [Redacted]. Mr Nottingham says that an affidavit by a Mr McKinnon proves they were not fabricated and that they came from Ms Currie and were sent to [Redacted]. Mr Nottingham says again in this regard that Ms Currie’s
counsel had an obligation to follow up on these allegations and to inquire into the evidence he has filed. Again, he asserts that failure to do so means counsel are party to a conspiracy to “defraud” the Court and to “defeat justice”.
[57] This argument is answered along the same lines as Mr Nottingham’s second key point. It in no way provides grounds for strike-out and is an improper submission.
[58] Mr Nottingham’s fourth point relates to what he says was the theft of a spa pool by Ms Currie from Mr Crann in 2012. This point occupied substantial space in Mr Nottingham’s materials. His point here is that Ms Currie said a spa pool had been taken by Mr Crann’s mother or brother, whereas Mr Nottingham alleges that in fact Ms Currie sold the spa pool “for a good price”. According to Mr Nottingham, the evidence he points to establishes theft by Ms Currie. Again, even if that were proven to be so, it would in no way justify a strike out of the much more extensive defamation pleaded in this case. In fact, it seems a relatively minor and irrelevant point arising out of a dispute over chattels between Ms Currie and her former partner following their separation. It is absurd and abusive that these points are being raised in this context.
[59] By this point in Mr Nottingham’s argument, it was after 1.00 pm in the one- day hearing and Ms Muller needed to be heard after lunch. Mr Nottingham said he had one more important point to raise. I suggested he identify this in his written submissions so that I could be sure to place appropriate emphasis on it. However, he said he could not do that as the point had only occurred to him over the weekend. I said he could file a summary – even handwritten pages of submissions – over the lunch adjournment, which he did not do. He said he would do so a little later (and visibly on AVL he had at least one individual there assisting him) but he did not. I therefore treat the points noted above as being Mr Nottingham’s summary of the key matters on which he relies in terms of his perjury and related arguments. None has any substance.
[60]The application to strike out fails.
Mr Nottingham’s other applications
[61] The documents filed refer to various other forms of relief and orders sought by Mr Nottingham, but these were not addressed by him (or addressed only fleetingly) in his written or oral submissions.
[62] The first of these is a purported application for sanctions against Ms Currie, the previous co-plaintiffs and counsel for the plaintiffs, for contempt of Court. This application is entirely spurious. Mr Nottingham says that because of the time-bar, admissions, perjury, conspiracy, and so on, Ms Currie and counsel should be held in contempt. I have already rejected all of Mr Nottingham’s arguments, as set out above. There is no conduct or circumstance that would justify a finding of contempt that has been brought to my attention. The application is not even properly made. No authority is cited. The application is dismissed.
[63] Mr Nottingham also sought an order that Ms Currie be cross-examined on affidavits she has filed in the proceeding. Cross-examination of deponents is available at trial. While on rare occasions that may occur earlier, there are no grounds for that here, nor were any actually advanced by Mr Nottingham. That application is dismissed.
[64] Mr Nottingham also sought that he be allowed to “make investigations” of certain witnesses. The question of Mr Nottingham’s contacting witnesses was canvassed [Redacted]. Given the orders I make below, any question of Mr Nottingham’s contacting witnesses becomes otiose. But I wish to make it clear, he would not be entitled in any event to “make investigations of witnesses”, nor are any such people under any obligation whatsoever to even respond to any inquiry by him. [Redacted], he is cautioned to take great care should he endeavour to contact anyone involved in this case.
[65] Mr Nottingham also made an application for discovery by Ms Currie of her banking records to establish she is not funding the litigation, and for an order that her counsel identify the funders. There is no relevance to either application. Ms Currie has already said the litigation is being funded by Mr McLean’s family members, not herself. Both applications are dismissed.
[66] Finally, Mr Nottingham applies to rescind costs orders made against him. He does not specify which of the orders and provides no basis for rescinding any. There would be no prospect of any of the costs orders being rescinded. That application is also dismissed.
Plaintiff’s application to strike out
Strike-out of defence
[67] The plaintiff’s application to strike out the statement of defence is made on the grounds that the defence is defective in numerous ways including being unnecessarily prolix, unintelligible, not properly replying to the statement of claim and failing to plead defences as required by the Defamation Act. The plaintiff also says that the pleading is in substantial part scandalous and/or irrelevant. As noted, the plaintiff also seeks orders to (a) debar Mr Nottingham from defending the proceeding, (b) remove him as a party to the proceeding, and (c) list the proceeding for formal proof. She also seeks costs. I note that these orders are consequential at least in part on the plaintiff’s application to strike out. They are not distinct applications, as are the applications by Mr Nottingham referred to above.
[68] At the time Courtney J made her direction that no further interlocutory applications be filed without leave, the then plaintiffs had done no more than file a statement of claim and a conventional application for directions as to service. Mr Nottingham had filed two non-complying interlocutory applications. It is unclear why Courtney J made her order on a blanket basis rather than against Mr Nottingham only.
[69] As noted earlier, although the plaintiffs filed their statement of claim on 11 April 2017, the various steps taken by Mr Nottingham since then have meant that he did not file a statement of defence until 14 December 2020. I accept that in those circumstances, the plaintiff’s application to strike out was made at the first opportunity and I accept for the reasons set out below that there is strong merit in the application. Leave is therefore granted.
[70] The plaintiff’s application to strike out the statement of defence is made under r 15.1, set out at [16] above.
[71] The judgment of the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd provides useful guidance on the requirements for pleadings and the application of r 15.1.27
[72] I agree with Ms Muller that the pleading here falls foul of those requirements in many ways.
[73] First, it is unnecessarily prolix and unintelligible. The statement of defence comprises 58 pages purportedly responding to a 13-page amended statement of claim. It is expressed in a way that is difficult, in fact almost impossible, to follow. The same applies to Mr Nottingham’s submissions.
[74] Rule 5.14 requires documents presented for filing to be divided into paragraphs numbered consecutively, with each paragraph confined to a single topic. Much of the content of the statement of defence is unnumbered and repeated elsewhere in the document.
[75] Rule 5.48(1) requires the statement of defence to either admit or deny allegations of fact and r 5.48(2) requires a denial not to be evasive. I agree with Ms Muller that the pleadings in response to [1] and [2] of the amended claim, including a lengthy extract from Clark J’s decision in Driver and legal submissions, are generally evasive. Similarly problematic are paragraphs 5, 6, 11, 12, 19 and 25 of the statement of defence. These are examples only. A good illustration of formulaic evasiveness is the pleading at [7.10], repeated in other places throughout the document:
The second defendant denies any defamation and he repeats all preceding paragraphs as and when they are relevant, and relies on all following paragraphs as and when they are relevant, and that the allegations made in the articles the subject of these proceedings are prima facie established as being
27 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 (Chesterfields). These requirements apply, alongside additional requirements, to statements of defence: Craig v Stringer [2016] NZHC 362 at [16].
completely true, or otherwise protected by sections 9, 11, 13 to 16, 22, and 23 of the Defamation Act 1992.
[76] In a number of instances such generalised pleadings are followed by discursive, scandalous, argumentative and “evidentiary” statements of opinion. One good example of this is at subparas 13.2(a) and 13.2(b) which occupy pages 26 to 28 of the statement of defence.28
[77] Rule 5.17(1) requires distinct grounds of defence to be stated separately and clearly if possible. This is breached in a significant number of respects.
[78] Given this is a defamation proceeding, insofar as the pleading raises statutory defences of truth and honest opinion under ss 8 and 9 of the Defamation Act, it fails to comply with s 40 of the Act which requires a defendant intending to rely on the defence of truth and of honest opinion to plead each separately. This also means that Mr Nottingham has failed to comply with s 38 of the Act.
[79] The pleading also contains scandalous and irrelevant material to a significant degree. This also is a ground for strike-out under r 15.1(1)(b).29 In this case, the statement of defence contains a large number of scandalous allegations of wrongdoing made not only against Ms Currie but against others, including her counsel. The appendix is one example of this. Other examples taken from Mr Nottingham’s statement of defence are as follows:
30
31
32
33
34
28 This paragraph is attached as an appendix to this judgment for reference.
29 Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC); Chesterfields [2013] NZCA 53 at
[91] and [95]; and O’Neill v New Zealand Law Society [2021] NZHC 607 at [11].
30 [Redacted]
31 [Redacted]
32 [Redacted]
33 [Redacted]
34 [Redacted]
35
36
37
38
[80] Other examples of this are contained in the unnumbered content on pages 24– 25 and repetitions of that content on pages 35–36, 43, 51–52 and 58.
[81] The statement of defence includes allegations of wrongdoing against former plaintiffs, the plaintiff’s counsel and various other persons. The attacks on counsel and other parties are of great concern.
[82] Of significance are the number of sweeping allegations pleaded apparently by way of defence, but which have no place by way of defence, including champerty, [Redacted] involving the plaintiff and numerous others. As stated above such allegations are not available as defences and would need to be pleaded, and pleaded properly as counterclaims, if they were to remain at all. Counterclaims, as Ms Muller points out, are then amendable to applications for security for costs and so forth.
[83] There is no question but that the statement of defence must be struck out under r 15.1. Mr Nottingham’s “defence” of this case is a travesty of justice.
Debarring Mr Nottingham from defending
[84] The plaintiff also seeks orders that Mr Nottingham be debarred from defending, be removed as a party to the proceedings, and that the matter be set down for formal proof.
[85] A debarring order is reserved for extreme circumstances.39 This must be particularly so where an order is sought against a defendant. However, in this case, Mr Nottingham applied to be joined, the plaintiffs opposing.
35 [Redacted]
36 [Redacted]
37 [Redacted]
38 [Redacted]
39 Stephens v Cribb (1991) 4 PRNZ 337.
[86] A debarring order was made against a defendant in LFDB v SM in circumstances where “unless orders” with regard to payment of costs had been deliberately flouted.40 And similarly in Hodgson v Siemer, Mr Siemer had been found in contempt of Court, had continued to deliberately breach an injunction and then refused to pay costs despite having effectively admitted he was financially able to do so.41 Mr Siemer was debarred until further order of the Court.
[87] I consider that, although different, the plaintiff’s argument in the present case is more compelling.
[88]The plaintiff points to:
(a)The hopeless and scandalous nature of the defence as filed, including unsupported and irrelevant allegations against the plaintiff’s counsel.
(b)Mr Nottingham’s conduct of this proceeding in general, including the repetitive and hopeless applications to strike out the claim.
(c)The outstanding costs orders noted above, which go back to May 2017. Mr Nottingham was adjudicated bankrupt on 11 September 2018 and as I understand it has still not been discharged from bankruptcy. He clearly has no intention of meeting any costs order. Indeed, part of his current application was to rescind them. That leaves him in significant default and the plaintiff and the Court with no effective means of sanctioning him.
[89]All arguments advanced by Ms Muller are clearly correct, if not understated.
[90] Mr Nottingham is not only misusing Court processes by filing documents with irrelevant, scandalous and unsupported statements about the plaintiff, not to mention documents that are wholly non-compliant, but he is also using his involvement in this case to continue to harass her, [Redacted], and to harass and intimidate her counsel.
40 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
41 Hodgson v Siemer HC Auckland CIV 2005-404-1808, 9 July 2007.
[91] In my view, Mr Nottingham’s conduct of the case and his defence are not only an abuse of the court process, they amount to an abuse of Ms Currie and of her counsel. The conduct of his defence is entirely vexatious and scandalous. Further, I see nothing in the voluminous material put forward to indicate there is any real defence: to the contrary. Presumably his application to strike out the statement of claim puts his case at its highest and that not only did not support a strike-out, it fell well short of an arguable defence.
[92] There can be no question that Mr Nottingham’s actions and statements are deliberate. He is not operating out of ignorance. As noted above, he has considerable familiarity with legal and Court processes.
[93] There are long outstanding costs awards of which Mr Nottingham is in significant default. There is no evidence he is able to pay them, although I note he is well able to meet at least the disbursements of apparently numerous court appearances, including in the Supreme Court. However, I do not consider his ability to pay is material in a case such as this. What is relevant is that Mr Nottingham has been in default for a long period of time and it is clear that costs orders impose no control whatsoever on him.
[94] Ms Muller did not rely on [Redacted]. However, I consider it important to record the relevant details here because I consider Mr Nottingham’s “defence” of this proceeding is nothing more than ongoing harassment of Ms Currie arising out of the same facts [Redacted].42
[95] 43
[96] [Redacted] made findings of fact that Mr Nottingham published numerous articles on Lauda Finem and was either the leading mind of that blog or was “so intimately related to it that it is proper to conclude that he provided information and draft articles to that blog site knowing and intending that they would be published”.44
42 [Redacted]
43 [Redacted]
44 [Redacted]
[97][Redacted]45
[98]In relation to the effect on Ms Currie, [Redacted]:46
[Redacted]
[99] In all of the above circumstances, it would be farcical and seriously unjust for this Court to countenance anything other than an order to debar Mr Nottingham from defending. I consider there are clear grounds to make such an order, both under r 7.48 and in terms of this Court’s inherent jurisdiction.
[100] Ms Muller said that if the matter were set down for formal proof, the plaintiff would not pursue an order for indemnity costs against Mr Nottingham (presumably as against ordinary costs). That is not material to my decision. The plaintiff is free to proceed in such a way as is considered appropriate, including as to costs.
Result
[101] The second defendant’s applications dated 29 January 2021 including his application to strike out the amended statement of claim, are all dismissed.
[102]All other applications by the second defendant are dismissed.
[103]The plaintiff’s application to strike-out the statement of defence is granted.
[104] The plaintiff’s applications for removal of Mr Nottingham as a party and to set the proceeding down for formal proof are also granted.
[105] The plaintiff has succeeded on all applications filed by her and by Mr Nottingham. She sought costs on all applications. Mr Nottingham did not make submissions in reply. Costs are clearly due. I fix costs on all applications before me on a 2B basis. I would fix them on an indemnity basis which is clearly justified, but see no point. Mr Nottingham is to pay the costs within one month of the order being sealed.
45 [Redacted]
46 [Redacted]
Addendum
[106] This judgment has been redacted pursuant to the inherent jurisdiction of this Court in order to:
(a)be as consistent as possible with the purpose of an order for permanent name suppression of the plaintiff made by Judge Down in the District Court on 26 July 2018 in connection with related proceedings; and
(b)remove from the judgment defamatory, scandalous and associated personal statements made in respect of the plaintiff by Mr Nottingham.
Hinton J
Counsel/Solicitors:
K Muller, Barrister, Auckland D B Law, Auckland
Copy to:
Second Defendant
Appendix
[13.2] The second defendant denies any defamation and he repeats all preceding paragraphs as and when they are relevant, and relies on all following paragraphs as and when they are relevant, and that the allegations made in the articles the subject of these proceedings are prima facie established as being completely true, or otherwise protected by sections 9, 11, 13 to 16, 22, and 23 of the Defamation Act 1992.
a)[Redacted]
b)[Redacted]
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