Driver v Radio New Zealand Limited
[2020] NZHC 2903
•11 November 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-443
[2020] NZHC 2903
BETWEEN DENISE DRIVER
Plaintiff
AND
RADIO NEW ZEALAND LIMITED
First Defendant
STUFF LIMITED
Second DefendantTELEVISION NEW ZEALAND LIMITED
Third DefendantMEDIAWORKS HOLDINGS LIMITED
Fourth Defendant
Hearing: 2 November 2020 Appearances:
A Romanos for plaintiff
D Salmon and D Nilsson for defendants
Judgment:
11 November 2020
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
Introduction
[1]The plaintiff, Denise Driver, commenced this proceeding in May 2017.
[2] Since then much has changed. The plaintiff’s statement of claim has gone through no fewer than five further iterations – the extant pleading is the sixth statement of claim (though it is intituled as the seventh amended statement of claim). It is dated 29 May 2020. The defendants have risen from seven to nine and then fallen back to four. Originally the plaintiff sued for defamation only. Subsequently she amended
DRIVER v RADIO NEW ZEALAND LIMITED [2020] NZHC 2903 [11 November 2020]
her claim to sue for defamation and breach of privacy. Now the claim is pleaded as one for breach of privacy only. There have been two significant interlocutory hearings. Following the first, Ellis J delivered a judgment dated 18 December 2017 in which her Honour – amongst other things – ordered that the plaintiff provide security for costs in the sum of $100,000, payable at various marker points in the progress of the case to trial.1 Following the second, Clark J delivered a judgment dated 12 December 2019 in which her Honour struck out the defendants’ defamation causes of action as being time-barred and two out of four breach of privacy causes of action.2 The plaintiff has settled her claims against certain former defendants.
[3] The net result of all this is that, as now pleaded, the plaintiff’s claim is against the four remaining defendants and asserts one cause of action against each of those defendants, that being for breach of privacy.
[4]Before the Court for determination now are three interlocutory applications:
(a)An application by the plaintiff for an order setting aside or varying Ellis J’s order for security for costs;
(b)An application by the plaintiff for an order striking out affirmative defences pleaded by each of the defendants; and
(c)An application by the defendants for further and better, or particular, discovery.
Security for costs
[5] It is common ground that the Court has inherent jurisdiction to review orders for security for costs.
[6] Broadly speaking applications for review of such orders will be made in two circumstances – on the application of a respondent seeking an increase in such an order, and on the application of a claimant seeking to overturn or reduce such an order.
1 Driver v Radio New Zealand and ors [2017] NZHC 3188.
2 Driver v Radio New Zealand and ors [2019] NZHC 3275.
[7] Both parties referred me to Venning J’s judgment in Lawrence v Glynbrook 2001 Ltd,3 a case falling within the first of the two categories, as being the leading case in the area.
[8] One of the circumstances in which the Court will reconsider an order for security for costs is where there has been a significant change in material circumstances or [I would be inclined to substitute the word “and” for the word “or”] where the interests of justice so require.4 In Lawrence, Venning J observed that “the need for a significant change in material circumstances is particularly relevant where the application is effectively to review the existing order rather than for further security”.5 His Honour accepted that in that case there had been a significant change in material circumstances so as to justify a review. The plaintiff had added a further five causes of action to the original two which his Honour concluded materially expanded the scope of the case which the defendants had to meet and would inevitably result in them having to commit more resources to the defence of the proceeding, and increased an existing order for security for costs by a further $7,000.
[9] I am satisfied that there has been a significant change in material circumstances in this case, justifying a reconsideration of Ellis J’s order. The number of defendants has reduced from seven or nine (depending on the iteration of the claim that one takes as the starting point) to four, and a proceeding that started as a defamation claim and then evolved into a defamation and breach of privacy claim, has now become a breach of privacy claim. So, the preliminary threshold – even calibrated to the higher level required in an application for an order overturning or reducing an existing order suggested by Venning J in Lawrence – has been overcome.
[10] Of course it does not necessarily follow that Ellis J’s order should be set aside or reduced.
3 Lawrence v Glynbrook 2001 Ltd and others HC Dunedin CIV-2009-412-713, 21 June 2011.
4 McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR5.45.04] in reliance on Cargill NZ Ltd v Palmerston North Wilco Ltd (1997) 11 PRNZ 52 (HC); Stead v The Ship “Ocean Quest of Arne” [1995] 3 NZLR 415, (1995) 8 PRNZ 610 (HC); and O’Malley v Garden City Helicopters Ltd (1994) 8 PRNZ 182 (HC).
5 Above n 3, at [10].
[11] Mr Romanos for the plaintiff and Mr Salmon and Mr Nilsson for the defendants advanced contrasting submissions as to the approach that should be adopted by the Court, having once concluded – as I have – that this is case in which it is appropriate to reconsider security for costs.
[12] For his part, Mr Romanos suggested that the Court should embark upon an ab initio analysis under r 5.45, putting to one side the earlier analysis carried out by Ellis J.
[13] Mr Salmon and Mr Nilsson on the other hand suggested that the analysis should start with Ellis J’s determination, and pose the question of whether any significant changes to the material circumstances necessitated a different outcome.
[14] The McGechan commentary and the approaches adopted in cases such as Lawrence appear to favour the latter approach. I am not convinced that these different approaches would necessarily result in different outcomes. In any event, I am inclined to the view that a more nuanced approach is called for and that the extent of the significant changes to the material circumstances, which of course, by definition, must be present, will dictate the appropriate approach.
[15] One argument advanced on the plaintiff’s behalf by Mr Romanos can be dealt with straight away. He suggested that the correct approach was to divide the total amount of security for costs ordered by Ellis J ($100,000) by the number of defendants (he elected to use a devisor of nine) giving approximately $11,100 per defendant, and advanced the proposition that the Court should take that as its guide and reduce the security to ($11,100 x 4 = approximately) $40,000, which happens to be the amount of security for costs which the plaintiff has already paid. I reject this analysis as altogether too crude. There is no suggestion in Ellis J’s judgment that her Honour’s assessment was tied in such a direct or mathematical way to the number of defendants involved. The approach adopted by her Honour was the orthodox one.6 Having determined that the threshold test under r 5.45 was met, she analysed the conventional factors such as the apparent merits of the case and other relevant considerations and
6 Her Honour adopted the approach set out in A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
arrived at a figure which she concluded reflected a proper balance of the plaintiff’s interests in being able to pursue her claim and the defendants’ collective interests in not being unfairly exposed to unrecoverable costs of defending the claim.
[16] When Ellis J considered the apparent merits of the plaintiff’s claim as it stood back in late 2017, her Honour was of course considering a defamation claim which is no longer pleaded. Her Honour’s conclusion was not detailed. In fact the judgment says very little about the merits of the claim. Her Honour focussed more on the defences, concluding that these were arguable. It appears to me to be fair to say that her Honour’s conclusion was that this consideration was a neutral one; whilst the claim was not untenable, the defences being put forward to meet it were arguable.
[17] That, as it happens, neatly captures my own assessment of the current – and quite different – claim. It appears to me that the plaintiff’s claim for breach of privacy would – as of course it has – survive an application to strike it out on the ground that it does not disclose a tenable cause of action, but equally the defences that the four remaining defendants say they have available to them appear to me to be arguable.
[18] The other factors to which Ellis J had regard – whether the defendants’ actions prior to the commencement of the proceeding caused the plaintiff’s impecuniosity, delay, and the other matters referred to by Ellis J at [48]-[50] of her Honour’s judgment
– do not appear to me to be decisive.7
[19] The considerations which have caused me the most difficulty in determining whether it would be appropriate to overturn or vary the order made by Ellis J are the change to the scope of the case and the course that the litigation has taken to date.
[20] As to the former, it appears to me that Mr Romanos makes a fair point on the plaintiff’s behalf in submitting that the overall scope of the case that will go to trial has reduced. As already said, the plaintiff’s claim at one point involved two difficult and complex causes of action. Now, effectively as a result of Clark J’s judgment of 12 December 2019, it involves one difficult and complex cause of action. Second, the number of defendants has of course been reduced from a high point of nine to four
7 Driver v Radio New Zealand and ors, above n 1.
and, as Mr Romanos emphasised, whilst it was originally anticipated that this would be a two week trial the parties now estimate that it will take one week. On their face, these factors support the plaintiff’s claim for a reduction of the amount of security for costs.
[21] However, those factors require contexualising. There is a real sense in which the reduction in the scope of the case has been brought about by the parties dealing with a major component of it at the interlocutory stages of the litigation. Had the defendants not applied to strike out the plaintiff’s defamation claims as being time barred, and had that application not been heard by Clark J over four days in July 2019, with the result that I have already described, then precisely that issue would presumably have had to be dealt with at trial which one might safely assume would have required the defendants not only to advance the time bar argument but all other arguments and inevitably have meant that the trial would, as originally predicted, take at least two weeks. That single factor suggests to me that the reduction in the scale of the case on which the plaintiff relies is more apparent than real. What has happened is that part of the case has already been disposed of, and the defendants have incurred the very costs in respect of which Ellis J determined they were entitled to a measure of protection. As to the reduction in the number of defendants, whilst that will no doubt mean the case can be disposed of in less time than it would have required had there been seven or nine defendants, my own assessment is that that reduction will be around the margins.
[22] The defendants submit that if anything Ellis J’s award of security for costs was on the conservative side because party and party (scale) costs to date in this litigation have already exceeded $100,000. I place little weight on this because it assumes that Ellis J’s judgment was intended to protect the defendants for the full amount of their costs which is almost never the purpose of an award of security for costs. Ellis J was obviously mindful of other important factors such as avoiding a prohibitive or stifling costs order on the plaintiff.
[23] Equally, I place little weight on the concluding submission made by Mr Romanos on the plaintiff’s behalf in relation to this issue that, unless this Court makes a radical adjustment to security for costs, the plaintiff’s financial position is
such that she will not be able to proceed. As to that, there is minimal evidence before the Court as to the plaintiff’s financial position and what avenues may or may not be available to her to raise funds for this litigation. Even if the position as described by Mr Romanos from the bar is correct, then that is not an uncommon outcome of orders for security for costs, and, as the defendants say in response, has as much to do with the judgments made by the plaintiff to pursue this claim and pursue it in the way that she has.
[24] In the end, the view I have reached is that the order made by Ellis J continues to strike an appropriate balance between the interests of the parties. I decline to make any adjustment to it. I dismiss the plaintiff’s application.8
Application to strike out affirmative defences
[25] The first defendant, Radio New Zealand, pleads an affirmative defence in paragraph 13.1 of its statement of defence to the plaintiff’s current statement of claim in the following terms:
13.1The plaintiff has received compensation (or has agreed to receive compensation) in respect of the publication of information that is the same or substantially similar to that set out in paragraph 7.1, 7.2 and
7.3 of the Statement of Claim from the following media organisations:
13.1.1NZME Publishing Ltd;
13.1.2Allied Press Ltd;
13.1.3Sun Media Ltd;
13.1.4Sky Network Television Ltd; and
13.1.5Australian Associated Press Pty Ltd.
[26] The second to fourth defendants, Stuff, Television New Zealand and Mediaworks Holdings, all plead affirmative defences in similar, if not identical, terms.
[27]The plaintiff applies for an order striking out these affirmative defences.
8 Since this interlocutory appolication was heard on 2 November 2020, Clark J has released a costs judgment in connection with her Honour’s 12 December 2019 interlocutory judgment (Driver v Radio NZ & Others [2020] NZHC 2907). This costs judgment may alter the landscape of this litigation, but, having considered it, I am satisfied that it does not impact on the matters I need to determine.
[28] On the basis of Mr Romanos’ synopsis of submissions, I had understood the plaintiff’s contention to be that, as was historically the position in defamation proceedings prior to the enactment of what is now s 31 of the Defamation Act – the law should not prohibit double recovery in respect of publications which constitute the tort of breach of privacy where more than one defendant has caused or contributed to the damage complained of.
[29] It is evident from the written submissions filed and served by Mr Salmon and Mr Nilsson on behalf of the defendants prior to the hearing that they were labouring under the same misapprehension as to the plaintiff’s argument.
[30] However, as Mr Romanos developed his oral submissions, it became clear that the plaintiff’s argument was not the ambitious one that I had understood it to be, but somewhat more modest.
[31] Let me see if I can capture it in a paragraph. The starting point is the contention that the drafter or drafters of the affirmative defences took as his, her or their template s 31 of the Defamation Act because the pleading focuses on substantially similar publications as opposed to substantially similar damage. That contention is no doubt correct. Section 31 has no application whatsoever to this proceeding, for the obvious reason that it is no longer a defamation claim, and whether the defendants published material was substantially similar is, as Mr Romanos submits, irrelevant. What matters for the purposes of determining whether the plaintiff has been compensated for part or all of the damage that she has suffered is whether the damage caused by the former defendants who have paid her compensation is the damage in respect of which she now seeks compensation from the remaining defendants. Therefore, it is contended, the pleading as it stands is inapt because it focusses on the publications as opposed to the damage. Mr Romanos argues that that is a proper basis for a strike out application, though he acknowledges – something he did not do in his written submissions – that it would be open to the defendants to plead that the damage for which the plaintiff has been compensated is the same damage in respect of which she sues them.
[32] It is for a plaintiff to prove the damage that she has suffered and any compensation that she may have received in respect of that damage is obviously relevant. It is not necessary for a defendant to raise by way of an affirmative defence that the damage the plaintiff has suffered is less than that claimed. Accordingly, it appears to me that the defendants could have gone to trial without having pleaded this point at all. For that reason alone there is no basis for striking out the defendants’ pleadings.
[33] Even if the question were whether the defendants’ pleadings adequately captured the point, then I would reject the plaintiff’s submission in relation to this. The fundamental purpose of pleadings is to alert the other side (and the Court) to the case that the party whose pleading is in question proposes to advance so as to ensure that there are no surprises. Although Mr Romanos may be correct that the defendants’ pleadings – being based as they are on s 31 of the Defamation Act – focus on the publication rather than the damage, in my judgment, they nevertheless make it quite clear to anybody reading them that the defendants intend to say at trial that the plaintiff has already been compensated for some or all of the damage which she alleges the defendants have caused her and that the maximum she can recover is the difference (if any) between the total amount of the assessed damage and the amount she has already received in compensation for that. Irrespective of any technical infelicities in the language, my view is that that message is clear from the defendants’ pleadings, and I would not have struck the pleadings out even if it were a necessary component of their defences.
[34] I dismiss the plaintiff’s application for an order striking out or requiring amendment of the defendants’ pleadings.
Defendants’ application in relation to discovery
[35] This application too concerns the plaintiff’s settlement of her claim against the former defendants. It seems to be uncontroversial that the plaintiff has settled with the former defendants, that she received compensation from some or all of them, that documentation exists recording the terms of that settlement or those settlements and
that that documentation includes material relevant to the maximum quantum of damages recoverable by the plaintiff if she is successful at trial.
[36] On that basis, the defendants say that any documentation relating to the settlements must by its nature be prima facie discoverable. I agree.
[37] The plaintiff’s response is to say that she can bring the documentation within the definition of material in respect of which she is entitled to an order for confidentiality.9
[38] I am bound to express the Court’s surprise that an issue such as this has got to point where the parties need Court intervention to resolve it. In my experience, the invariable approach when an issue such as this arises is that the party with the relevant documentation discloses its existence and then provides it to counsel on the other side on a confidential basis, proposing various redactions so as to deal with any confidentiality issues, and matters are sorted out on that basis without it going anywhere near the Court.
[39]That lament aside, I must deal with the matter.
[40] In my judgement, the documentation within the above description is prima facie relevant and discoverable. If there are genuine confidentiality issues connected with it – as there may well be – and if counsel cannot sort out between them what if any redactions are justified by the informal process I have described then the documentation in an unredacted form is to be provided to me with the plaintiff’s submission as to what parts are:
(a)irrelevant;
(b)relevant but confidential and the basis for the claim to confidentiality; and
(c)relevant and not confidential;
9 See ss 68 and 69 of the Evidence Act 2000.
and I will then deal with the matter.
Conclusion
[41] The plaintiff’s application for a review of Ellis J’s order concerning security for costs is dismissed.
[42] The plaintiff’s application for an order striking out the defendants’ affirmative defences is dismissed.
[43] The defendants’ application for further and better discovery succeeds and the discovery issue is to be dealt with as indicated in [40] above.
[44] I reserve costs not having heard from counsel as to these. My preliminary view is that the defendants are entitled to costs orders on all three applications on a 2B basis. I expect counsel to be able to resolve costs. But if they are unable to do so they may file and serve memoranda in the usual way.
Associate Judge Johnston
Solicitors:
Langford Law, Wellington for plaintiff LeeSalmonLong, Auckland for defendants
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