Fam v Nguyen

[2025] NZCA 352

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA628/2024
 [2025] NZCA 352

BETWEEN	JULIE FAM Applicant
AND	NGUYEN THI THANH HA First Respondent
AND	DANG SON DINH Second Respondent
AND	MAI THI PHUONG PHAM Third Respondent
AND	MINH NGUYEN Fourth Respondent

Court:	Courtney and Palmer JJ
Counsel:	Applicant in person F E Geiringer and S J Price for First Respondent No appearance for Second, Third and Fourth Respondents
Judgment: (On the papers)	23 July 2025 at 3 pm

JUDGMENT OF THE COURT

The application for an extension of time is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

What happened?

1. On 4 May 2022, Ms Julie Fam republished a social media post accusing Ms Nguyen Thi Thanh Ha (known as Ha Nguyen) of being responsible for cyberattacks against Facebook pages and groups belonging to New Zealand’s Vietnamese Community in 2021 and 2022.  She also accused Ms Nguyen of flirting with a teenage hacker, questioning whether it was appropriate for her to be teaching children.  The accusations were based on falsified documents which Ms Fam and others eventually accepted were fabricated. 

2. Ms Nguyen sued Ms Fam and other defendants in defamation.  No steps were taken in defence.  The matter proceeded in the High Court by way of formal proof.  On 23 August 2024, the High Court held the repost was defamatory and awarded damages of $100,000 against Ms Fam.[1]  Ms Fam has not sought to have the judgment set aside under r 15.10 of the High Court Rules 2016. 

   [1]Nguyen v Dinh [2024] NZHC 2358 at [57], [77] and [177].

3. On 23 September 2024, Ms Fam filed a notice of appeal on the basis that the High Court failed to give sufficient weight to her retraction, the damages were excessive, and the decision had a devastating effect on her household and her mental health and wellbeing. 

4. On 27 November 2024, a Deputy Registrar informed Ms Fam that she had until 23 December 2024 to file the case on appeal, otherwise her appeal would be automatically deemed abandoned under r 43(1) of the Court of Appeal (Civil) Rules 2005.  On 23 December 2024, Ms Fam sought an extension of time, saying she needed to have documents affirmed by a solicitor and she aimed to have the task completed the next day.  A Deputy Registrar granted an extension of time until 22 January 2025.  Ms Fam did not make further contact with the Registry or the respondents by that date.  Nor did she file the case on appeal or apply for allocation of a hearing date.  The appeal was deemed abandoned on 23 January 2025 and a notice of result issued. 

5. On 3 February 2025, Ms Fam applied for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules.

Submissions

1. Ms Fam submits the High Court decision exacerbated her mental and physical health issues, forcing her to resign from her job and temporarily relocate to Vietnam for intensive treatment.  This prevented her from monitoring her communications or responding but she is now fully committed to complying with all court requirements.  Refusing the extension of time would result in manifest injustice.  That she had not taken steps in the High Court proceeding cannot now be held against her.  She was denied the opportunity to present a defence.  It is in the interests of justice for this appeal to proceed together with a related appeal she has on foot in this Court.

2. Mr Geiringer and Mr Price, for Ms Nguyen, submit it was made clear to Ms Fam that if she took no steps in the High Court, judgment may be given in her absence.  Yet she still took no steps.  She has already twice received extensions of time for her proposed appeal, and on 23 December 2024 anticipated the relevant documents could be affirmed the next day.  The appeal lacks merit on its face, does not contest the essential aspects of the High Court decision, and appears intent on raising issues that are irrelevant to the appeal.  The application for a further indefinite extension lacks necessary details and is unsupported by evidence.  There are strong reasons to believe the appeal would not be progressed even if an extension of time were granted.

Should an extension of time be granted?

1. In Almond v Read, the Supreme Court summarised the principles, and identified the considerations, relevant to decisions on extending time to appeal.[2]   The ultimate question is what the interests of justice require, in the particular circumstances of the case.[3]   The merits of a proposed appeal may be relevant, particularly because there will be “occasions on which the court will risk facilitating unjustifiable delaying tactics on the part of dilatory or recalcitrant litigants if it does not consider the merits”.[4]  But the merits are not relevant, generally, where there has been an insignificant delay, and an extension should only be refused for lack of merit where the appeal is hopeless.[5]

   [2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]. The considerations informing the exercise of the discretion under r 29A of the Court of Appeal (Civil) Rules 2005, as set out in Almond v Read, apply to an interlocutory application for an extension of time where there is an appeal as of right: Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

   [3]Almond v Read, above n 2, at [38].

   [4]At [39].

   [5]At [39(b)–(c)]. 

2. First, the delays, considered in total, are relatively significant and Ms Fam has already received indulgences from the Court.  Her notice of appeal was accepted for filing even though it was a few days out of time.  She was granted a much greater extension of time to file the case on appeal than she had asked for, but she still did not meet the extended deadline.  She has not provided any indication of when she could meet it now.  Despite her indication in December 2024, it does not seem that the case on appeal is ready for filing.  The reasons for delay are unpersuasive.  Her affidavit attesting to having a health issue that prevented her giving the matter her full attention is substantially less compelling than her assertions in submission.  The receipts and invoices she has exhibited to her affidavit do not support her asserted claims. 

3. Second, the merits of Ms Fam’s proposed appeal appear to be hopeless.  She does not raise any issues which would imperil the High Court judgment.  She does not contest the meaning of the defamatory statements or claim they were true.  She does not deny the width of publication or the nature of the audience or advance any other affirmative defence.  The only issue she does raise, that the judge did not give sufficient weight to her retraction, is not correct on the face of the High Court judgment.[6]  And she raises a number of irrelevancies. 

   [6]Nguyen v Dinh, above n 1, at [174]­–[176].

4. The High Court judgment was issued almost a year ago.  Ms Nguyen has a strong interest in finality.  She would be prejudiced by yet another delay to allow Ms Fam to appeal a judgment in a proceeding she did not defend.  The existence of another appeal proceeding is not relevant to the issue of whether to grant an extension of time in this one.

5. In these circumstances, it is not in the interests of justice to extend time.

Result

1. The application for an extension of time is declined.

Solicitors:
Bennion Law, Wellington for First Respondent