Hagaman v Little - [2017] NZCA 447

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA206/2017
[2017] NZCA 447

BETWEEN	EARL RAYMOND HAGAMAN Appellant
AND	ANDREW JAMES LITTLE Respondent

Hearing:	28 September 2017
Court:	Kós P, Miller and Winkelmann JJ
Counsel:	R J B Fowler QC and S J Price for Appellant J W Tizard for Respondent
Judgment:	2 November 2017 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Does the late Mr Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survive his death? That is the question this judgment is concerned with.

Background

Mr and Mrs Hagaman owned a large New Zealand hotel chain. In 2014 Mr Hagaman made a substantial donation to the governing National Party of New Zealand. The Hagamans’ hotel chain later received Niue Government funding to upgrade a hotel in that country. The ultimate source of that funding was New Zealand Government aid assistance. The Leader of the Opposition Labour Party of New Zealand, Mr Little, drew a connection between these events in a series of six public statements.
The Hagamans issued proceedings in defamation against Mr Little in June 2016. Trial commenced in April 2017. During the trial Clark J ruled that the six statements were protected by qualified privilege.[1] The jury were agreed that Mrs Hagaman’s claims failed. They also agreed that two of Mr Hagaman’s six claims failed. But they could not agree on the other four. Judgment was entered in the High Court for Mr Little against Mrs Hagaman. No judgment was entered in relation to Mr Hagaman’s claim.
[1]Hagaman v Little HC Wellington CIV-2016-485-414, 12 April 2017. Reasons were subsequently given in Hagaman v Little [2017] NZHC 813, [2017] 3 NZLR 413.
The present appeal against the Judge’s ruling concerns one only of those four disagreed claims — the second cause of action. The appeal was filed in April 2017. Mr Hagaman died in May 2017. Although his personal representatives have not yet been substituted as appellants, they are responsible for the present conduct of the appeal and accept responsibility for any costs ordered on it.
The question trail on the second cause of action given to the jury by the Judge, and the answers they gave, 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 first named plaintiff (Earl Hagaman) or, did the defendant…

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 [2017] NZCA 447
Case: [2017] NZCA 447
Decision Date: 2 November 2017 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to determine whether the late Earl Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survives his death. The appeal was filed in April 2017, but Mr Hagaman died in May 2017. The question the Court was required to decide was whether the jury answers on the second cause of action amount to a verdict for Mr Hagaman. The Court found that the jury’s work was incomplete as they could not agree on the third question of the second cause of action, meaning that no verdict was given on it. It follows that no appeal may now be advanced upon it. As the whole of the appeal was confined to that cause of action, it also follows that the appeal itself must be dismissed. The appeal was dismissed and the appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

The Court of Appeal considered the issue of whether a defamation claim abates with death or not ultimately depends on the stage the proceeding has reached. This is best demonstrated by reference to the High Court of Australia’s decision in Ryan v Davies Brothers Ltd. The Court found that upon entry of judgment the cause of action merges with judgment. Where the decision is that of a jury, it is the entry of a verdict, rather than the subsequent formal entry of judgment by the trial judge, that precludes application of the rule. The Court concluded that in this case the jury was asked by the Judge to respond to a series of questions, the intended result of which would be a special verdict on each cause of action. However, the jury’s work was incomplete as they could not agree on the third question of the second cause of action, meaning that no verdict was given on it. Therefore, the appeal itself must be dismissed.

Orders