D v H - [2024] NZHC 2718

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-31

[2024] NZHC 2718

UNDER the Defamation Act 1992

BETWEEN

[D]

Appellant

AND

[H]

Respondent

Hearing: 18 September 2024 (by AVL)

Counsel:

Appellant in person

J W Cowan for Respondent

Judgment:

19 September 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

[D] v [H] [2024] NZHC 2718 [19 September 2024]

[1] The appellant disputes that the respondent filed a notice of opposition to an interlocutory application within time. With the appellant maintaining that position, the respondent was directed to file an application for leave to file the notice of opposition out of time if leave was required. The reference to “if leave was required” was to address the respondent’s primary submission that her opposition was filed within time. If that submission was not correct, then leave would be required.

[2] If I am satisfied the opposition was filed within time, that will overtake the application for leave.

[3] I am satisfied that the opposition was filed within time and I confirm the opposition was validly served on 26 June 2024. I now explain why I have reached that conclusion.

The significance of a physical address for service

[4] ‘Address for service’ is defined in r 1.3(1) of the High Court Rules 2016 (the Rules) as follows:

address for service, in relation to a party, means the address of a place in New Zealand at which a document may be left for that party, or to which it may be sent by post to that party, under these rules or, …

(The balance of the definition dealing with service in Australia).

[5]Rule 6.20, headed “Failure to give address for service”, provides:

A party to a contentious proceeding who has not given an address for service is not entitled to be served with notice of any step in the proceeding or with copies of any further documents filed in the proceeding or to address the court.

The appellant’s compliance or otherwise with the above Rules

[6]The notice of appeal filed by the appellant concludes as follows:

Documents for service related to this appeal may be emailed to the following email address: [email address given]

[7] On 8 May 2024, Preston J issued a Minute, noting the submission of counsel for the respondent, that the appellant had not filed a physical address for service and

sought a direction that a physical address be provided. The appellant was directed to file a notice of physical address for service by a given date. A document called “notice of physical address” was filed, albeit outside the time limit directed by Preston J, but nothing turns on that.

[8]The document filed by the appellant to meet Preston J’s direction provides:

THIS DOCUMENT NOTIFIES YOU THAT

[1]Pursuant to the direction of the Honourable Justice Preston made this past 8th Day of May, 2024, [D] hereby gives notice of the following physical address:

[physical address given]

Paragraph [2] of that document…

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 D v H

Details

AGLC: D v H [2024] NZHC 2718
Case: [2024] NZHC 2718
Decision Date: 19 September 2024

CaseChat Overview and Summary

The case between D, the appellant, and H, the respondent, involves a dispute concerning the timely filing of a notice of opposition to an interlocutory application. The High Court of New Zealand, Dunedin Registry, presided over by Associate Judge Lester, adjudicated this matter. The appellant contends that the respondent did not file a notice of opposition within the stipulated timeframe, prompting the respondent to seek leave to file the notice out of time. The primary legal issue before the court was whether the respondent's notice of opposition was filed within the required timeframe, and if not, whether leave should be granted to file it out of time.

The court found that the notice of opposition was indeed filed within the required time. Associate Judge Lester began by clarifying the definition of 'address for service' as per the High Court Rules 2016. The court held that the appellant's filing of an email address as the sole method of service did not comply with the rules, which mandate a physical address for service. The appellant had initially provided an email address but failed to confirm a physical address for service until 26 June 2024. Consequently, the appellant was not entitled to be served with any documents until that date. The court noted that the notice of opposition was emailed on 26 June 2024 and acknowledged by the appellant on 3 July 2024, well within the ten-day window specified in Rule 7.24(1) of the High Court Rules 2016. Thus, the court concluded that the notice of opposition was served within the required time frame, and the respondent's application for leave to file the notice out of time was unnecessary.

The court also dismissed the appellant's argument that the respondent's failure to comply with Rule 7.24(1) was intentional and merited an extension of time. The court found that the appellant was only entitled to be served with the notice of opposition from 26 June 2024, making the service on 3 July 2024 valid. Therefore, the respondent's notice of opposition was appropriately timed. In conclusion, the court ruled in favor of the respondent, awarding costs on a 2B basis, and directed that if the appellant did not pay the costs within 15 working days, the appeal would be stayed until payment was made.

Orders