Hagaman v Little - [2018] NZSC 13

IN THE SUPREME COURT OF NEW ZEALAND

SC 121/2017
[2018] NZSC 13

BETWEEN	EARL RAYMOND HAGAMAN Applicant
AND	ANDREW JAMES LITTLE Respondent

Court:	Elias CJ, OʼRegan and Ellen France JJ
Counsel:	R J B Fowler QC for Applicant J W Tizard for Respondent
Judgment:	13 February 2018

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe personal representatives of Mr Hagaman must pay costs of $2,500 to the respondent.

____________________________________________________________________

REASONS

The late Earl Hagaman and his wife, Lianna‑Merie, sued the respondent, the Hon Andrew Little MP, for defamation in relation to statements made by Mr Little when he was Leader of the Opposition. The matter went to trial before Clark J and a jury in April 2017. Clark J ruled that the statements that were alleged to have defamed Mr and Mrs Hagaman were protected by qualified privilege.[1] The jury agreed that all of Mrs Hagaman’s claims failed and that two of the six claims made by Mr Hagaman failed. They could not agree on the other four of Mr Hagaman’s claims.
[1]Hagaman v Little [2017] NZHC 813, [2017] 3 NZLR 413.
No judgment was entered in the High Court in relation to Mr Hagaman’s claims. Mr Hagaman appealed to the Court of Appeal against the qualified privilege ruling made by Clark J. The appeal related only to one of the four undecided causes of action, namely the second cause of action. The appeal was filed in April 2017, but Mr Hagaman died in May 2017. Although formal steps were not taken to substitute Mr Hagaman’s personal representatives as appellants, they were responsible for the conduct of his appeal in the Court of Appeal and the same applies in relation to the present application.
The parties agreed that the Court of Appeal would deal with the preliminary issue of whether the appeal survived Mr Hagaman’s death. The Court of Appeal found it did not.[2] Mr Hagaman’s personal representatives (the applicants) seek leave to appeal against that decision.
[2]Hagaman v Little [2017] NZCA 447, [2018] 2 NZLR 140 (Kós P, Miller and Winkelmann JJ).
In the High Court, the jury was provided with a question trail. In relation to the second cause of action, the questions and answers were as follows:
First named plaintiff (Earl Hagaman): Second cause of action
5.Do the words set out in paragraph 10 of the second amended Statement of Claim carry any of the meanings set out in paragraph 11?   [YES]
6.If the answer to any of issue 5 is “Yes”, is that meaning defamatory of the first named plaintiff (Earl Hagaman)?        [YES]
7.If the answer to issue 6 is “Yes” was the defendant (Andrew Little) motivated by ill-will towards the fist named plaintiff (Earl Hagaman) or, did the defendant take improper advantage of the occasion of publication?  [NO ANSWER]
8.If the answer to issue 7 is “Yes”, then assess:    [NO ANSWER]
(iii)General damages $
(iv)     Exemplary damages $
The applicants wish to argue on appeal that…

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 Hagaman v Little

Details

AGLC: Hagaman v Little [2018] NZSC 13
Case: [2018] NZSC 13
Decision Date: 13 February 2018

CaseChat Overview and Summary

In the case of Hagaman v Little, the applicant Earl Hagaman, represented by his personal representatives, sought leave to appeal against a decision of the Court of Appeal that the appeal in a defamation case against the respondent, Andrew James Little, abated with Hagaman’s death. The Court of Appeal had previously held that the appeal did not survive Hagaman's death because the jury's answers to questions posed in the question trail did not amount to a special verdict, and thus the cause of action had not been determined. The applicants argued that the Court of Appeal erred in its interpretation of special verdicts and in its conclusion that the appeal abated with Hagaman’s death.

The legal issues before the Supreme Court included whether the Court of Appeal erred in its assessment of the jury's answers to the question trail as not amounting to a special verdict, and whether the proviso in section 3(1) of the Law Reform Act 1936, which excludes defamation from the survival of causes of action after the death of the plaintiff, should be interpreted to allow appeals in defamation cases to continue. The Court also considered whether the common law rule that personal actions die with the person should be refashioned to permit the continuation of an appeal in such circumstances.

The Supreme Court held that the Court of Appeal's decision was not erroneous, as the intensely factual nature of the assessment did not indicate a miscarriage of justice. The Court found that the Law Reform Act's exclusion of defamation from the survival of causes of action demonstrated Parliament's clear intention to maintain the common law rule in this context. Consequently, the application for leave to appeal was dismissed.

The Court ordered that the applicants pay the respondent’s costs of $2,500. This judgment underscores the importance of adhering to statutory provisions and the settled common law principles concerning the survival of causes of action in defamation cases following the death of the plaintiff.

Orders