Fourth Estate Holdings (2012) Ltd v Joyce - [2020] NZCA 479

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA55/2020
CA381/2020
[2020] NZCA 479

BETWEEN	FOURTH ESTATE HOLDINGS (2012) LIMITED First Appellant TODD ALLEN SCOTT Second Appellant
AND	STEVEN LEONARD JOYCE Respondent

Hearing:	1 September 2020
Court:	Miller, Brown and Goddard JJ
Counsel:	P A McKnight and A J Romanos for First and Second Appellants Z G Kennedy and H M Jaques for Respondent
Judgment:	9 October 2020 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The High Court judgment is set aside.

CThe respondent must pay costs to the appellants for a standard appeal on a band A basis with usual disbursements. We certify for second counsel.

____________________________________________________________________

TABLE OF CONTENTS

Para No

Background

The proceedings

The initial claim against Fourth Estate

The s 35 conference

The amended claim against Fourth Estate and Mr Scott

The pleaded defences

High Court judgment

Claim against Fourth Estate

Claim against Mr Scott

Remedies

Costs judgment

Issues on appeal

The meaning of the relevant passages

Is a plaintiff confined to their pleaded meaning(s)?

The implications of the Judge’s approach to the passages’ meanings

Did the passages convey the meanings pleaded and/or found by the Judge?

Was it open to the Judge to adopt a meaning different from the pleaded meaning, if the difference was not material?

Were the meanings found by the Judge defamatory?

The claim against Mr Scott

Remedies

Result

REASONS OF THE COURT

(Given by Goddard J)

On 2 March 2018 an article written by Mr Matthew Hooton was published in the National Business Review (NBR) newspaper in its print and website formats. The article was highly critical of the respondent (Mr Joyce), who was at the time a Member of Parliament (MP), a member of the National Party, and a former Cabinet Minister. The first appellant, Fourth Estate Holdings (2012) Ltd (Fourth Estate), is the publisher of NBR. The second appellant (Mr Scott) is Fourth Estate’s sole director and shareholder, who describes himself as NBR’s “publisher”.
Mr Joyce brought proceedings against Mr Hooton and Fourth Estate in relation to two specific passages in the article (the passages). Mr Joyce did not claim damages. Rather, he made a claim under s 24 of the Defamation Act 1992 for a declaration that the defendants were liable to him in defamation, and for an award of solicitor and client costs.
Mr Hooton settled the claim against him and apologised to Mr Joyce. The claim against him was discontinued. Mr Joyce continued the claim against Fourth Estate. He also added Mr Scott as a defendant, alleging that three tweets published by Mr Scott had the effect of republishing the article and the defamatory statements in it.
Mr Joyce’s claims against Fourth Estate and Mr Scott succeeded in the High Court.[1] Jagose J considered that the passages did not convey the particular imputations against Mr Joyce that had been pleaded. But the Judge found…

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.

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Details

Case: [2020] NZCA 479
Decision Date: 9 October 2020 at 3.00 pm

CaseChat Overview and Summary

Fourth Estate Holdings (2012) Limited and Todd Allen Scott appeal against the High Court's judgment that they were liable to pay damages to Steven Leonard Joyce for defamatory statements made in an article published in the National Business Review. The article contained two passages that Mr Joyce complained about. Mr Joyce did not claim damages but sought a declaration under section 24 of the Defamation Act 1992 that the statements were defamatory and an award of costs. The appeal raises issues about the meaning of the two passages and whether they were defamatory. The Court found that the passages did not convey the meanings pleaded by Mr Joyce or the meanings found by the High Court. The appeal is allowed and the High Court's judgment is set aside. The respondent must pay costs to the appellants for a standard appeal on a band A basis with usual disbursements.

Orders