Kerr v The Dominion Post HC WN CIV 2009-485-1233

[2010] NZHC 49

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2009-485-1233

UNDER  the Defamation Act 1992

IN THE MATTER OF     interlocutory application for summary judgment

BETWEEN  VONRICK CHRISFORD KERR Plaintiff

ANDTHE DOMINION POST Defendant

Hearing:         27 January 2010

Counsel:         Plaintiff in person

R K P Stewart for defendant

Judgment:      11 February 2010

RESERVED JUDGMENT OF DOBSON J

[1]      This is an application by the plaintiff for rescission of the order striking out

these proceedings made by me in a reserved judgment dated 20 November 2009.

[2]      The present proceedings (the  2009  proceedings)  are  the  second  issued  by

Mr Kerr in relation to two articles, originally published by the defendant newspaper,

in  its  circulated  paper  form,  in  October  2007. Essentially the  same  content has subsequently been electronically re-published by  virtue of internet access to the electronic version of the newspapers. The articles referred to Mr Kerr’s application

to run his own taxi company, in circumstances where the newspaper reported him as

having certain criminal convictions.

KERR V THE DOMINION POST HC WN CIV-2009-485-1233  11 February 2010

[3]      The first proceedings in respect of these  publications  were  commenced  in October  2007. In January 2008, Associate Judge Gendall ordered  Mr Kerr  to  pay security for costs in the sum of $30,000, and stayed the 2007 proceedings pending payment in full of that security. I determined an application to review that decision.

In  a  judgment  delivered  on  13  March  2008,  I  dismissed  Mr Kerr’s  application  for review of the Associate Judge’s orders.   I also dismissed an application for leave to further appeal and in August 2008 Mr Kerr’s application for special leave to appeal to the Court of Appeal was also dismissed.   Mr Kerr acknowledges he is unable to meet the order for security for costs  and accordingly the 2007 proceedings remain stayed.

[4]      In  June  2009,  Mr Kerr  commenced  the  2009  proceedings. They  focus  on separate  republication  of  the  content  by  electronic  means. There  were  minor differences  in  the  allegations  as  to  the  content  alleged  to  be  defamatory  and  the innuendoes  pleaded  as  arising  from  the  words  used. All  such  differences  were within   the   parameters   of   what   might   reasonably  be   expected   by  way  of   an amendment to the 2007 pleading.

[5]      For   reasons   set   out   in   my   20 November   2009   judgment,   I   found commencement of a second set of proceedings in relation to publication of the same words  by  the  Dominion  Post  to  amount  to  an  abuse  of  process,  in  circumstances where  the  original  proceedings  were  stayed. On  that  basis,  I  struck  the  2009 proceedings out.

[6]      The Court’s jurisdiction under r 7.49 to rescind an interlocutory order depends on the Court being satisfied that the order is wrong. Mr Kerr purported to accept that there was an onus on him, either to establish that the relevant issues were not fully argued at the original hearing, or that there is new evidence or a change of

circumstances that would justify a reconsideration of the order.[1]

[1] Wrightson NMA Ltd v McConnell [1989] 2 NZLR 77 at 82-83; Arkley v Fraser Mill Properties Ltd [1989] 2 NZLR 57

[7]      A number of documents were  filed  in  support  of  the  present  application. First, an affidavit from a friend of Mr Kerr, Claudia Scheidegger.   This confirmed

that she had, in the course of overseas travel, accessed the electronic version of the articles  in  Switzerland  and  Trinidad  and  Tobago.                 Since  the  striking  out  order, Mr Kerr  has  also  purported  to  file  an  application  for  leave  to  file  an  Amended Statement of Claim, and the terms of such an Amended Statement of Claim.   That document pleads six discrete publications of one or other of the articles by persons known  to  Mr Kerr  accessing  the  defendant’s  website. The  document  also  claims punitive  damages  from  the  defendant  on  the  basis  of  what  Mr Kerr  treats  as continued  publication  (via  the  electronic  version  of  the  newspapers)  after  what  he treats as the incorrect reporting about his criminal convictions having been drawn to the defendant’s attention.

[8]      As to the nature of the previous hearing which resulted in my 20 November

2009 judgment striking out the proceedings, Mr Kerr argued that certain matters he had addressed were not dealt with in the judgment, and therefore the matter was not “fully argued”.  He submitted that the process for the hearing had also been unfair in that the  Court  declined  to  hear,  at  the  same  time  as  the  defendant’s  strike  out application, an interlocutory application Mr Kerr  had earlier  filed seeking to strike out certain of the defences pleaded for the Dominion Post.

[9]      I  remain  satisfied  that  the  issues  on  the  strike  out  were  fully argued  in  the sense contemplated as a circumstance relevant to consideration of an application to rescind.  Indeed, variants of the vast majority of the points Mr Kerr urged upon me at the present hearing had been traversed by him on the last occasion.

[10]     Mr Kerr also argued that the more recent instances of electronic republication constitute a change of circumstances.  This is because each individual publication of

a defamatory statement gives rise to a separate cause  of  action,  subject  to  its own limitation period. On this point he cited Loutchansky v Times Newspapers Ltd & ors (No 2)[2]and The Law of Torts in New Zealand[3]). Accordingly, Mr Kerr claims that

[2] [2002] 1 All ER 672 at [57].

[3] Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington 2009) at [759].

the further instances of electronic publication constitute a change of circumstances, particularly as he treated  the continued availability of the electronic version of the

articles as being in flagrant or contemptuous  breach  of  his  rights.  Thus,  Mr Kerr

argued that these further publications, as deposed to by Ms Scheidegger, could each justify  a  separate  case  because  each  publication  is  a  separate  cause  of  action. Accordingly, Mr Kerr submits that the occurrence of new “cases” since the hearing in November 2009 justified the Court taking a fresh look at the appropriateness of staying or striking out the 2009 proceedings.

[11]     The practical position remains as it appeared in November last year.   All of the  complaints  of  further  publication  by  electronic  means  would  inevitably  be combined within a single set of proceedings.   So too would any other additions or refinements  to  Mr Kerr’s  case  against  the  Dominion Post  in  respect  of  the  two articles  that  originally  appeared  in  October  2007,  and  their  subsequent  electronic republication since then.

[12]     For the Dominion Post, Mr  Stewart  accepted  unequivocally that  that  would

be the case. He further acknowledged  that  if  and  when  the  stay  of  the  2007

proceedings is lifted by Mr Kerr meeting the outstanding order for security for costs

in  relation  to  them,  the  Dominion Post  would  not  oppose  amendment  of  the Statement of Claim in the 2007 proceedings to incorporate all of the allegations that are presently contemplated by Mr Kerr.

[13]     I    am    accordingly    not    persuaded   that   the    identification   of    further republications,  all  of  which  could  be  accommodated  by  amendment  to  the  2007 proceedings,   constitutes   the   type   of   change   in   circumstances   that   justifies   a reconsideration  of  the  decision  to  strike  out  the  2009  proceedings,  rescission  of which is presently sought.

[14]     Nor do I accept that the existence, and prospect, of on-going re-publications can be treated as “aggravating conduct” on behalf of the defendant that could justify reconsideration of the grounds on which it achieved a  strike  out  of  the  2009 proceedings in November 2009. As I discussed with Mr Kerr, in order to accept his proposition  that  the  continued  availability of the electronic version of the  articles constituted some aggravated breach of his rights, it would be necessary to make a finding that his claims for defamation are made out. If the Dominion Post elects not

to remove the articles from the electronic versions made available via its website, it

is likely to be taken to have done so, in the full knowledge of the matters raised by Mr Kerr as justifying his   claims   that   the   items   are   defamatory.                  In those circumstances, its on-going conduct would likely leave the newspaper vulnerable to

an aggravated measure of damages. However,  in  the  present  context,  if  the defendant elects to run that risk, it is  not  a   circumstance  that  could  justify reconsideration of the appropriateness of the striking out of the 2009 proceedings.

[15]     Accordingly,  I  am  not  persuaded  that  there  are  any  material  changes  in circumstances that would justify reconsidering the correctness of the decision made in November 2009.

[16]     Although  Mr Kerr  denied  that  he  was  in  effect  attempting  to  re-argue  the merits  of  the  original  order  made  against  him  for  security  for  costs,  the  thrust  of much of what he said to me was addressed to that topic.  He suggested that the Court could  treat  the  procedural  opportunity  afforded  by  further  publications  in  2009  as sufficient to warrant the commencement of another set of proceedings, even if they would  eventually  be  consolidated  with  the  claims  previously  made  and  which  are now subject to stay.  He argued that the balance of interests on the security for costs application could now be reconsidered because the conduct of the Dominion Post in continuing to make the electronic version of its newspaper available on its website, once  on  notice  of  the  factual  and  defamatory  errors  in  its  articles  (in  Mr Kerr’s view), demonstrated that the well-resourced defendant was itself abusing the Court processes by keeping “the little guy” from his day in Court on the merits.  Mr Kerr’s final plea was that the Court ought to recognise the injustice in what had occurred, and avoid the injustice created by the stay of the earlier proceedings, by rescinding the order that had struck out the 2009 proceedings.

[17]     The difficulty with these pleas is that they overlook the fully reasoned basis

on which the Associate Judge was originally persuaded to order security for costs in the 2007 proceedings. I was not persuaded that there was any error in that, and the Court of Appeal declined to grant special leave for a further appeal. The Dominion Post cannot have held against it in this context the election implicit in its conduct  that  it  can  justify  the  use  of  the  words  in  the  articles  complained  of,  and would  be  able  to  do  so  if  and when the matter is substantively tried. If  the

newspaper is wrong in that judgement, then the quantum of damages for which it is liable  is  likely  to  be  greater  than  it  would  otherwise  be  because  of  the  electronic republications.   In the meantime, however, that does not warrant a revisiting of the decision made last year in respect of the future of the 2009 proceedings.

[18]     I accordingly dismiss the application to rescind the order.

[19]     The  Dominion Post  sought  costs  and  it  is  entitled  to  them  on  the  present application, on a 2B basis.

Dobson J

Solicitors:
V C Kerr, 22 Warwick Street, Wilton, Wellington

Izard Weston, Wellington for defendant