Guthrie v Williams
[2025] NZHC 1827
•4 July 2025
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2024-454-95 [2025] NZHC 1827
UNDERthe Trust Act 2019 and the Harmful Digital Communications Act 2015
IN THE MATTER of the breach of ss 45(d), 45(g) and 45(i) of
the Trust Act 2019 and s 19(1)(a) of the Harmful Digital Communications Act 2015
BETWEEN SCOTT STEPHEN GUTHRIE
Plaintiff
AND NICOLA WILLIAMS
First Defendant
ROBERT FINCH
Second Defendant
SUSAN FREEMAN
Third Defendant
Hearing: 5 June 2025 Appearances: Plaintiff In Person
D R Weatherley for Defendants
Judgment 4 July 2025
JUDGMENT OF ASSOCIATE JUDGE SKELTON
Introduction
[1] These proceedings relate to a charitable trust, the Transforming Justice Foundation (the Trust). The plaintiff founded the Trust, and the defendants became trustees. The plaintiff alleges he has suffered loss because of breaches of the Trusts Act 2019 by the defendants. He also alleges that the third defendant committed
GUTHRIE v WILLIAMS [2025] NZHC 1827 [4 July 2025]
perjury, and he seeks an order that all electronic media publications making false allegations or insinuations about him relating to the Trust be removed.
[2] The defendants have applied for strike out of the plaintiff’s claim, and/or summary judgment against the plaintiff on the basis that there is no tenable cause of action pleaded and the plaintiff’s claim cannot succeed. They also apply for orders as to costs.
Background and Procedural History
[3] On 10 July 2019, the plaintiff (Mr Guthrie) established the Trust. The trust deed itself did not identify the trustees, but he was the sole founding trustee.
[4] On 1 September 2019, Mr Guthrie retired as trustee, and appointed the first and second defendants (Ms Williams, then named Ms O’Leary, and Mr Finch, respectively) as trustees in his place. Mr Guthrie remained employed by the Trust, as its CEO. On 18 May 2020, Mr Finch appointed the third defendant (Ms Freeman) as trustee. The trust deed was amended in July 2020.
[5] From 6 June 2020, the Trust employed Christine Rankin as spokesperson on child abuse issues.1 Mr Guthrie did not inform the Trust about Mrs Rankin’s employment, and when she raised concerns with non-payment of her salary, he paid her $10,000 from his personal bank account, listing the name of the Trust and his name in the payment details.2
[6] On 31 January 2021, Mr Finch, in his position as Board Chairperson, terminated Mr Guthrie’s employment and advised him to cease all activities on behalf of the Trust.3 The reason given for this was that Mr Guthrie had engaged Mrs Rankin as an employee without the knowledge of the Board, damaging the image and credibility of the Trust and rendering it liable for remuneration payments, risking it being wound up. In March 2021, the Department of Internal Affairs issued a report
1 As established by Rankin v Transforming Justice Foundation [2023] NZERA 420 [First ERA Determination].
2 Rankin v Transforming Justice Foundation [2024] NZERA 145 [Second ERA Determination] at [50].
3 At [17].
which concluded that the plaintiff had mismanaged finances, but that there had been no serious wrongdoing by the Trust more generally or its other trustees.
[7] On 11 February 2021, Mr Finch emailed the website administrator instructing him to cancel all Trust email addresses, close down the website and, if possible, remove all reference to the Trust on Facebook.4 On 8 April 2021, Mr Finch deregistered the Trust as a charitable trust with the Charities Commission. The Trust has since been dissolved, effective 3 January 2025.
[8] Mr Guthrie has also been involved in two other relevant sets of legal proceedings. The first was a Disputes Tribunal claim brought by Donald Holmes that the plaintiff breached the Fair Trading Act 1986 (FTA) and Consumer Guarantees Act 1993 (CGA) (the Disputes Tribunal matter).5 Mr Holmes’ family had engaged Mr Guthrie’s services to review their criminal and family legal matters and to advocate for them in various ways. On 11 October 2022, the Tribunal found that:
(a)in relation to the FTA claim, Mr Guthrie had engaged in misleading conduct while in trade. He had not made clear that he was acting in his own right and not on behalf of a charitable trust. For example, emails and invoices sent by Mr Guthrie in the matter referred to Justice for Kiwis (JFK), another charitable trust; and the Holmes’ privacy waivers referred to the Trust in these proceedings;6 and
(b)in relation to the CGA claim, Mr Guthrie did not provide his services with reasonable care and skill. For example, the night before Mr Holmes’ son’s sentencing for sexual offending, Mr Guthrie texted the victim on the son’s behalf, intimidating them and putting the sentencing at risk. The Tribunal found that Mr Guthrie was “out of his depth and not in a position to provide care and skill for the services he was invoicing for”, and that the breach of the CGA was “of a substantial character”.7
4 At [26].
5 Holmes v Guthrie Disputes Tribunal Kaikohe CIV-2022-027-000119, 11 October 2022.
6 At [16]–[28].
7 At [29]–[47].
[9] The Tribunal ordered Mr Guthrie to pay Mr Holmes $9,028 for those breaches.8 For at least some of the time Mr Guthrie was engaged by the Holmes family, he was employed by the Trust, but there is no indication that he acted on its behalf.
[10] The second proceeding was a dispute with Mrs Rankin concerning her employment (the ERA matter). On 7 August 2023, the Employment Relations Authority determined that Mrs Rankin and the Trust had entered into an employment agreement.9 On 11 March 2024, the Authority relevantly recorded or determined that:
(a)the Trust did not have the funds to meet any arrears award for missing wages and holiday pay;10
(b)the Trust was to pay Mrs Rankin wage arrears for the period 6 July 2020 to 18 January 2021 based on the terms of her employment agreement;11
(c)during Mrs Rankin’s employment, Mr Guthrie was the only person involved with the Trust who knew she had been employed by the Trust. Mrs Rankin was granted leave to seek a penalty against Mr Guthrie for breaching the employment agreement;12
(d)Mr Finch and Ms Freeman were not involved in any breach of employment standards, as Mr Guthrie was the only person involved with the Trust who knew the essential facts of Mrs Rankin’s employment during the employment.13 Nor were they negligent or wilfully blind to the essential facts;14 and
(e)Mrs Rankin was granted leave to bring a claim against Mr Guthrie if the Trust failed to pay owed arrears of wages and holiday pay (which
8 At [52].
9 First ERA Determination, above n 1, at [18].
10 Second ERA Determination, above n 2, at [2].
11 At [34].
12 At [41]–[42]; and Employment Relations Act 2000, s 134.
13 At [50]–[51].
14 At [52].
was inevitable).15 The Authority did not grant leave for her to bring a claim against Mr Finch or Ms Freeman.16
[11] On 8 November 2024, Mr Guthrie filed his statement of claim in this proceeding. He seems to allege, among other matters, that:
(a)Ms Williams and Ms Freeman never resigned as trustees of the Trust, which required witnessed deeds of resignation;
(b)Ms Freeman committed perjury in relation to the ERA matter when she signed an affidavit stating that she was never a trustee of the Trust, and that this was done to avoid liability in that matter;
(c)Mr Finch’s instructions to the website administrator to delete or remove the Trust’s website were unlawful as he cannot provide the written authorised minutes of the Board meeting he claims was held, breaching ss 45(d) and 47 of the Trusts Act and cl 13 of the trust deed;
(d)the website, including the Microsoft OneDrive account which held all original documents and emails which Mr Guthrie says was also deleted, contained vital information relating to the employment of Mrs Rankin and other matters that was necessary for Mr Guthrie to defend himself from the allegations he has faced. As a result, his reputation has been severely damaged through media reporting, and financial awards have been made against him in the Disputes Tribunal; and
(e)because of the missing information, Mr Guthrie has no option but to seek recourse through litigation.
[12] On 13 December 2024, the defendants sent a letter to Mr Guthrie outlining their position that his claim has no prospect of success. The letter recorded the
15 At [56].
16 At [53], noting the heading of that paragraph reads “can Mrs Rankin recover any defaulted arrears from Mr Guthrie, Mr Finch and/or Ms Freeman?”, and the paragraph only grants leave to bring a claim against Mr Guthrie.
defendants’ intention to apply for orders striking out the application, or alternatively seek summary judgment. On 16 January 2025, the defendants filed their application for strike out and/or summary judgment.
[13] On 23 January 2025, Mr Guthrie applied for summary judgment under r 12.4(3) of the High Court Rules 2016 (HCR), on the basis that the defendants had not filed a statement of defence within 25 working days from the date of service. On 3 March 2025, the defendants filed a memorandum setting out their position that leave of the Court was required to bring the application,17 and that Mr Guthrie actually intended to apply for judgment by default. They also submitted that, given their application for strike out, they do not accept Mr Guthrie’s claim and have taken steps in respect of it.
[14]At a call over on 10 March 2025, Grau J explained to Mr Guthrie that:18
…a defendant can make a strike out application without filing a statement of defence, as one of the reasons for a strike out application is to avoid having to file a statement of defence to a claim that the defendant considers has no grounds.
[15] On 11 March 2025, Mr Guthrie withdrew his application for summary judgment on that basis.
Legal principles
Strike out
[16]Rule 15.1 of the HCR provides:
15.1 Dismissing or staying all or part of proceeding
(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
17 Under r 12.4(2), as the application was made after the statement of claim was served on the defendants.
18 Guthrie v Williams HC Wellington CIV-2024-454-000095, 10 March 2025 at [3].
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4)This rule does not affect the court’s inherent jurisdiction.
[17] The principles pertaining to this provision are well-established. The principles were summarised by the Court of Appeal in Attorney-General v Prince, which has been most recently endorsed by the Supreme Court in Smith v Fonterra Co-operative Group Ltd:19
[38] We [address each cause of action] through the lens of well-established strike out principles. That is to say, we assume the pleaded material facts are true save for those that are entirely speculative and without foundation and we also bear in mind that the strike out jurisdiction is to be exercised sparingly and only in clear cases. We must be certain the claim is so untenable it cannot succeed and slow to strike out claims in any developing area of law. The fact a claim involves a complex question of law which requires extensive argument should be no bar provided we have the requisite materials and assistance to determine the matter. We must also be mindful of the well-established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.
[18] As the Supreme Court in Smith v Fonterra emphasised, a measured approach is appropriate. The Court held that:20
[84] Such an approach is consistent with fully informed access to civil justice by those who have a tenable case that they have been harmed and who will otherwise go without remedy based on a pre-emptive evaluation only. And as was observed in Couch, a refusal to strike out a cause of action “says little about its eventual merit”. That is to say, it is not a commentary on whether or not the claim will ultimately succeed.
[85] Pre-emptive elimination is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail.
19 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at [38] as cited in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 [Smith v Fonterra] at [74]–[75]. See also Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
20 Smith v Fonterra at [84]–[85] citing Couch v Attorney-General at [37] per Elias CJ and Anderson J (footnotes omitted).
[19] In relation to striking out on the basis of the pleading causing prejudice or delay, there must be an element of impropriety and abuse of the Court’s processes.21 Examples include overly lengthy pleadings,22 irrelevant and scandalous material,23 excessive pleading of matters of evidence,24 and unintelligible pleadings.25
Summary judgment
[20]Rule 12.2 of the High Court Rules relevantly provides:
12.2 Judgment when there is no defence or when no cause of action can succeed
…
(2)The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[21] The approach to an application for summary judgment by defendants was discussed in the Court of Appeal’s decision in Westpac Banking Corp v MM Kembla New Zealand Ltd, which was later summarised by the Court of Appeal in Stephens v Barron:26
[9] … Summary judgment may be given under that rule if the defendant satisfies the Court that none of the causes of action in the plaintiff's statement of claim can succeed. This Court's decision in Westpac Banking Corp v M M Kembla New Zealand Ltd makes it clear that a defendant seeking summary judgment has a considerable burden to discharge. Elias CJ delivering the judgment of the Court, made the following points:
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim.
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate
21 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
22 At [90] and [95].
23 Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC).
24 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 21, at [91] and [95].
25 At [90] and [95].
26 Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [9] citing Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [61]–[62], [64], [66] and [68] (footnotes omitted).
determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
[22]As the Privy Council noted in Jones v Attorney-General, summary judgment:27
… should not be given for the defendant unless [the defendant] shows on the balance of probabilities that none of the plaintiff’s claims can succeed. That is an exacting test, and rightly so since it is a serious thing to stop a plaintiff bringing his claim to trial unless it is quite clearly hopeless.
[23] The courts have observed the similarity between a defendant’s application for summary judgment and an application for strike out.28 The applications, however, are not interchangeable. In a summary judgment application, affidavit evidence can be provided and, therefore, judgment can be obtained on the basis of material outside of the pleadings. Further, as Elias CJ noted in Body Corporate No 207624 v North Shore City Council, if the dispute is essentially a legal question, striking out is likely to be the appropriate course of action.29
Issues
[24]The plaintiff’s statement of claim seeks the following relief:
(a)a finding that Ms Freeman was a trustee of the Trust and is liable in any litigation against the Trust;
27 Jones v Attorney-General [2003] UKPC 48, [2004] 1 NZLR 433 at [10].
28 See Ferrymead Tavern Ltd v The Christchurch Press Co Ltd [1999] NZAR 529 (HC) at [10]–[12]; Body Corporate No 2076624 v Northshore City Council [2012] NZSC 83, [2013] 2 NZLR 297 at [4]; and Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA) at [19]–[21].
29 Body Corporate No 207624 v North Shore City Council, above n 9, at [4] as cited in Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR12.2.07].
(b)a finding that Ms Freeman committed perjury;
(c)payment by the defendants of $9,000 to the plaintiff in respect of the award made against him in Disputes Tribunal; and
(d)that all electronic media publications making false allegations or insinuations about the plaintiff relating to the Trust be removed.
[25] The defendants say that the claim against all defendants should be struck out because:
(a)the Trust was dissolved, effective 3 January 2025;
(b)a declaration that Ms Freeman committed perjury, which is a criminal allegation, cannot be resolved in the context of a civil proceeding;
(c)the allegation that the plaintiff has suffered loss as a result of alleged breaches of ss 45 and 47 of the Trusts Act 2019 are unsustainable, as:
(i)the defendants were entitled to take steps in respect of the Trust’s website and internet records;
(ii)there is no casual link between the removal of any documents and the plaintiff’s liability to third parties;
(iii)the plaintiff is not a trustee, beneficiary or employee of the Trust and therefore has no standing to bring the claim;
(d)the allegation that the plaintiff is entitled to reimbursement or contribution to the liabilities pleaded are unsustainable and cannot succeed as:
(i)the awards in the Disputes Tribunal matter and ERA matter made specific findings that the plaintiff was not acting in his
capacity as a trust representative when incurring the liabilities and carrying out the acts and omissions in question;
(ii)the Employment Relations Authority has exclusive jurisdiction to determine the defendants’ liability as employers,30 and have already determined that they are not so liable;
(iii)the Disputes Tribunal award was made in connection with invoices rendered by the plaintiff personally and not in any way connected with the Trust;
(e)there is no jurisdiction for the Court to make blanket suppression orders, much less with retrospective effect. Alternatively, this is a claim that cannot be made against the defendants;
(f)there is no tenable cause of action pleaded that can result in the relief sought; and
(g)the defendants have a complete answer to the plaintiff’s claim against them.
[26]The issues for consideration are:
(a)Ms Freeman’s status as a trustee and the claim for perjury;
(b)the defendants’ alleged liability to reimburse Mr Guthrie for legal liability he has incurred; and
(c)removal of electronic media publications.
Ms Freeman’s status as trustee and the allegation of perjury
[27] After hearing from Mr Weatherley and Mr Guthrie, there no longer appears to be any dispute that Ms Freeman was a trustee of the Trust. Mr Weatherley submits
30 Employment Relations Act, s 161.
that, to the extent Ms Freeman misstated her position in an earlier affidavit before the ERA, it was a genuine mistake based on erroneous legal advice. Therefore, no declaratory order of this Court is required regarding Ms Freeman’s status as a trustee.
[28] Nor can any finding be made that Ms Freeman is liable in her personal capacity (that is, other than as a trustee) in respect of the litigation against the Trust. The ERA found that: 31
[51] The argument is not accepted that Mr Finch and Ms Freeman, if it is correct that Ms Freeman was a trustee, were aware of the essential facts because Mrs Rankin’s employment had ended by the time she had appraised Mr Finch of her employment and the default of payment to her under the employment agreement. They cannot be said to be persons involved because any involvement they could be said to have had with Mrs Rankin’s employment did not occur until after that employment ended.
[52] It is not accepted that they were negligent or wilfully blind to the essential facts. While it is accepted Mr Finch and Ms Freeman knew Mrs Rankin was a spokesperson for TJF and at the May 2020 meeting a contract had been discussed, the outcome of any further discussion as to the detail of that contract was not shared with Mr Finch until some seven months later, and Mrs Freeman only learnt of the situation in the weeks following the revelation as Mr Finch sought to manage TJF’s affairs. Further, their actions (or inactions) must be viewed in light of the known circumstances of TJF, including that everyone involved with TJF was a volunteer, there was very little money in its bank account and, on the evidence before the Authority, there was no real prospect of any significant funds being secured.
[29] The ERA considered whether Mrs Rankin could recover any arrears that the Trust was unable to pay from Mr Guthrie, Mr Finch and/or Ms Freeman. The ERA determined that Mrs Rankin only had leave to bring such a claim against Mr Guthrie.
[30] With regard to the allegation of perjury, Mr Weatherley submits that perjury is exclusively a criminal offence in New Zealand, defined under s 108 of the Crimes Act 1961. He cites Paragon Services Limited v Stiassny, in which the High Court found that “a civil claim based on perjury cannot succeed”.32
[31] Accordingly, Mr Weatherley submits that this aspect of the plaintiff’s claim cannot succeed on either a factual or legal basis and should therefore be struck out. I
31 Second ERA determination, above n 2.
32 Paragon Services Limited v Stiassny HC Auckland CIV-2006-404-593, 9 August 2006 at [31].
agree. This part of Mr Guthrie’s pleading does not disclose any reasonably arguable cause of action and cannot succeed. Mr Guthrie accepted as much during the hearing.
Reimbursement of legal liability
[32] This aspect of the claim appears to proceed on the basis that the trustees took actions, including taking down the Trust’s website, which were not properly documented, and in breach of ss 45 and 47 of the Trusts Act. Mr Guthrie alleges that those actions resulted in him being unable to properly defend himself against the claims brought against him in the Disputes Tribunal matter. Mr Guthrie was ordered to pay approximately $9000 and seeks to recover that sum from the defendants.
[33] Ms Freeman’s affidavit states that Mr Finch was concerned that Mr Guthrie retained access to the Trust’s email servers and other documents stored on the Trust’s servers. She records this as the basis on which the website was taken down. Attached as evidence is the email chain between Mr Finch and the website administrator, which states that the Board had agreed to close the Trust’s business and that Mr Guthrie was no longer representing them. Ms Williams (then named Ms O’Leary) and Ms Freeman are copied in to the email.
[34] Mr Guthrie says that he was greatly affected by the trustees’ decision to take down the website. He says that his claim in this regard is focused on the fact that he could not access documents relevant to his defence before the Tribunal and this was the primary reason he was ordered to pay $9000. Specifically, he says he was not able to provide the documented evidence of the work he had done for the claimant, because that was stored in the OneDrive connected to the Trust’s Microsoft account. He accepts that the defendants were entitled to take down the website, but submits that this needed to be decided properly, through a majority vote of trustees which was then recorded. He submits that Mr Finch’s instructions to take down the website were unlawful as he cannot provide the written minutes of a meeting authorising this action, in breach of cl 13 of the amended trust deed and ss 45(d) and 47 of the Trusts Act.
[35] Clause 13 of the amended trust deed, which Mr Guthrie relies on, required proceedings of board meetings to be recorded in a minute book. There is no indication in the rest of the amended trust deed or in evidence before the Court that taking down
the website needed to be made by the Board, but Mr Finch’s email to the website administrator suggests that the decision to close the Trust’s business was made by the Board. If the decision to take down the website did need to be made by the Board, it is at least arguable that there was a breach of the terms of the amended trust deed, and accordingly also s 24 of the Trusts Act.33 If the decision to take down the website did not need to be made by the Board, the relevant obligation was, under s 45(d), to “keep, so far as is reasonable, the following documents relating to the trust… any records of trustee decisions made during the trustee’s trusteeship”. Arguably, the email exchange between Mr Finch and the website administrator would suffice to comply with s 45(d).
[36] Section 45 of the Trusts Act requires each trustee of a trust to keep, so far as is reasonable, core documents relating to the Trust. Section 47 requires each trustee to keep, so far as is reasonable, the documents for the duration of the trustee’s trusteeship. Although not clearly raised in the statement of claim or Mr Guthrie’s submissions, I understand Mr Guthrie is alleging that, in addition to the alleged failure by the defendants to properly record and keep minutes of any relevant board resolution regarding the website, the defendants breached ss 45 and 47 by taking down the website and not keeping the core documents contained on the website.
[37] In the statement of claim, Mr Guthrie pleads that he sought copies of meeting minutes from Mr Finch and the Trust’s lawyer, including the meeting minutes where it was resolved to take down the Trust’s website. Mr Guthrie does not expressly raise any breach of s 52 of the Trust Act, which raises a presumption that a trustee must within a reasonable period of time give a beneficiary or the representative of a beneficiary the trust information that person has requested. However, Mr Weatherley submits there could not have been any breach by the trustees of s 52. That is because ss 51–55 of the Trusts Act do not apply to charitable trusts, which do not have specific beneficiaries.34
[38] Even if there was a breach of any provisions of the amended trust deed and/or the Trusts Act by the defendants regarding taking down the website, I am satisfied that this aspect of Mr Guthrie’s pleading does not disclose a reasonably arguable cause of
33 Requiring that a trustee must act in accordance with the terms of the trust.
34 Trusts Act 2019, s 50(2).
action and cannot succeed. That is because it is implausible that any breach by the defendants and the fact that Mr Guthrie could not access documentation on the Trust’s website caused Mr Guthrie’s loss, being the $9,028 he was ordered to pay by the Tribunal.
[39] First, Mr Guthrie’s position, recorded by the Tribunal was that he was working “outside the scope of charitable work”. He was not working on behalf of the Trust. This position accords with the fact that, from 31 January 2021, Mr Guthrie’s employment as CEO of the Trust was terminated and he had been advised to cease all activities on behalf of the Trust. In those circumstances, it is difficult to see how or why there would be any documents held by the Trust regarding the work Mr Guthrie did for the Holmes family from late 2020 that could have assisted Mr Guthrie in the defence of the claim against him in the Tribunal. Further, the invoices and other documents before the Tribunal which indicated (wrongly) that he was working under a charitable trust predominantly refer to the JFK Trust rather than the Trust.
[40] Moreover, Mr Guthrie’s contention that the Tribunal made an order against him primarily because he could not provide documentation of the work he had done for the Holmes family is also implausible. Mr Guthrie’s invoices were before the Tribunal. The decision of the Tribunal refers to a range of other documentation put forward by Mr Guthrie, including emails between Mr Guthrie and lawyers who might be able to assist the family, copies of interviews conducted by private investigators (to demonstrate the type of material Mr Guthrie reviewed as part of his services) and Facebook screenshots (to demonstrate travel that he undertook).
[41] On the basis of these documents and other evidence, the Tribunal found that Mr Guthrie engaged in misleading and deceptive conduct.35 The Tribunal also found that Mr Guthrie did not provide the services with reasonable skill and care. A significant factor in this finding was that Mr Guthrie had contacted the victim of Mr Holmes’ son’s sexual offending the night before the sentencing, intimidating the victim and putting the sentencing at risk.36
35 Holmes v Guthrie above n [5] at [15]–[28].
36 Holmes v Guthrie above n [5] at [29]–[47].
[42] Even if there were other documents on the Trust’s website relating to the work Mr Guthrie undertook for the Holmes family, I am not satisfied that any such documents could have led to the Tribunal reversing the findings it made.
Removal of electronic media publications
[43] Mr Weatherley says that Mr Guthrie appears to seek the retrospective removal of all electronic media publications that make (allegedly) false allegations or insinuations about him and the Trust. He notes that the defendants are not publishers and have no control over electronic media publications, so submits that the claim is untenable as it relates to the defendants. He submits that, even if media publishers were joined, such an order could conceivably be made under a cause of action for defamation, but no such claim has been pleaded, established or articulated. Accordingly, he submits that this claim should also be struck out as untenable.
[44] On this issue, Mr Guthrie submits that he does not agree that the Court lacks jurisdiction to make such an order. He submits that the Court has jurisdiction under s 19(1)(a) and (2)(a) of the Harmful Digital Communications Act 2015 to have taken down electronic articles which are factually incorrect and make wrongful insinuations about him.
[45] It is not clear which electronic media publications Mr Guthrie is referring to, but I understand he is referring to various news articles written about him, the Trust and the Tribunal proceeding and published online by, for example, Stuff and Radio New Zealand. I agree with Mr Weatherley that it is difficult to see how this aspect of Mr Guthrie’s claim could ever succeed against the defendants. The defendants have no control over these articles and publications. Any application for an order to take down this material, for example under the Harmful Digital Communications Act, would have to be made against the relevant media company and/or online content host.
[46] This aspect of Mr Guthrie’s pleading does not disclose any reasonably arguable cause of action and cannot succeed.
Result
[47] Mr Guthrie’s statement of claim is struck out and summary judgment is granted against him in favour of the defendants.
[48] I have not heard fully from the parties on costs. My preliminary view is that the defendants have been successful and are entitled to one set of costs in accordance with r 14.15 of the High Court Rules on a 2B basis and reasonable disbursements. The parties should endeavour to agree costs. If costs cannot be agreed, then memoranda may be filed (not exceeding three pages, excluding costs schedules) and costs will be determined on the papers.
Associate Judge Skelton
Solicitors:
Young Hunter, Christchurch for Defendants
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