Lincoln v Daws
[2016] NZHC 2900
•1 December 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-003-000025 [2016] NZHC 2900
BETWEEN R LINCOLN
Plaintiff
AND
K DAWS Defendant
Hearing: 28 November 2016 Appearances:
R Lincoln (Plaintiff/Respondent) in person, with D Wood as
McKenzie Friend
P N White for Defendant/ApplicantJudgment:
1 December 2016
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on discovery
Introduction
[1] Richard Lincoln sues Karin Daws, a registered nurse, for what he alleges to be the defamatory content of a written report which Ms Daws made in relation to Mr Lincoln.
[2] The parties have efficiently completed discovery of the modest number of relevant documents which each personally held at the time the proceedings were commenced. Since that time Mr Lincoln has obtained from the New Zealand Police, pursuant to his statutory rights, documents held by the Police which relate to Mr Lincoln’s interactions with the Police on or about 17 September 2015, when Ms
Daws typed her report.
LINCOLN v DAWS [2016] NZHC 2900 [1 December 2016]
The discovery application
[3] Ms Daws applies for an order that Mr Lincoln give particular discovery1 of the documents (obtained from the Police) which relate to and arose from his interactions with the Police on or about 17 September 2015.
[4] Mr Lincoln opposes the application.
The issue
[5] The single significant issue is whether the documents prepared and held by the Police are relevant to the issues in the proceeding.
The relevant issues in the proceeding
[6] In his claim (now in its second amended version), Mr Lincoln, in successive paragraphs, sets out specific statements contained in Ms Daws’ report and identifies in relation to each the meaning of the words. Ms Daws’ words and Mr Lincoln’s pleadings which most directly refer to the Police are contained in two paragraphs of Mr Lincoln’s pleading as follows:
8. [Police] “have arrested Richard Lincoln on an unlawful display of
Firearm charge ...”
The plaintiff contends that these words mean that at the material time –
a.that there were grounds to suspect that the plaintiff committed an offence under section 52 of the Arms Act
1983;
b.that there were grounds to suspect that the plaintiff committed a criminal offence contrary to the Arms Act 1983;
c.that there were grounds to suspect that the plaintiff pointed a gun at a member or members of the public;
d.that there were grounds to suspect that the plaintiff was unlawfully displaying a firearm.
9.“Police advised that Fir arms (sic) licence will be revoked and weapon will not be returned to Richard”
1 Under r 8.19 High Court Rules.
The plaintiff contends that these words mean that at the material time –
a.that a commissioned officer of police had determined that the plaintiff was not a fit and proper person to be licensed for possession of firearms;
b.that the plaintiff is not a fit and proper person to hold a firearms licence;
c.that the plaintiff is not a careful and responsible firearms owner;
d.that the plaintiff cannot be trusted to have possession of a firearm;
e.that the plaintiff had possession of a firearm for the purpose of having possession of a weapon;
f. the meanings set out in paragraph 8.a to 8d in this statement of claim.
[7] In her statement of defence, Ms Daws admits that the pleaded words were used in her report and (with some exceptions) generally denies the meanings contended by Mr Lincoln. She pleads four affirmative defences being honest opinion, qualified privilege in two respects and Mr Lincoln’s consent to the publication.
[8] Ms Daws’ pleading of honest opinion includes these pleadings:
34The opinions expressed in the statement were based on information told to the defendant by the NZ Police and the plaintiff, and what the defendant observed to be true.
Particulars
[Police] “have arrested Richard Lincoln on an unlawful display of firearm charge ...”
a.The defendant was informed of this fact by a member of the New Zealand Police named Scott who called and asked for the plaintiff to be assessed at the Ashburton Police Station.
b.When the defendant arrived at the Ashburton police station she was shown a firearm and informed by a member of the New Zealand Police named Scott that the plaintiff was carrying that firearm when he was arrested.
c.The plaintiff was assessed within the Ashburton police station and appeared to be detained there by the police.
d.When the plaintiff was spoken to he confirmed that he had been carrying a firearm in a public place, and sought to explain the lawfulness of his actions in doing so.
Police advised that Fire arms licence will be revoked and weapon will not be returned to Richard
e. The defendant was informed of this fact by a member of the New
Zealand Police named Scott.
f. The defendant was shown a firearm and informed by a member of the New Zealand Police named Scott that the plaintiff was carrying that firearm when he was arrested.
g. The plaintiff was assessed within the Ashburton police station and appeared to be detained there by the police.
h.When the plaintiff was spoken to he confirmed that he had been carrying a firearm in a public place.
[9] Mr Lincoln filed the required notice of rebuttal and reply to affirmative defences. By that pleading, Mr Lincoln admits that Ms Daws was indeed informed by the Police of the matters of which she pleads she was informed by the Police.
[10] Mr Lincoln pursues a claim for exemplary and/or aggravated damages. In relation to that, he pleads that there are no true probative facts which justify the defendant’s statements which she claims to be honest opinion.
[11] Ms Daws has not pleaded truth as a defence. No issue arises in the proceeding as to the truthfulness of Ms Daws’ statements and meanings.
Honest opinion as the key issue for discovery purposes
[12] Mr White in his written synopsis explained the asserted relevance of the
Police documents in this way:
10.Any documentary material relating to the plaintiff's interaction with Police on 17 September 2015, and the sequelae to that interactions will shed light on the genuineness of the defendant’s expressed opinion. The documents are anticipated to include a charging document, and a caption summary that will give a picture of what the plaintiff’s actions around that time were. They will be clearly relevant to the proceeding in terms of providing context to the statements at issue.
11 . Further, any communications to/from Police around firearms licencing will also be relevant to the statement about the Police advising that plaintiff firearms licence would be revoked and the weapon not returned to the plaintiff.
[13] In other words, Mr White asserted two levels of relevance. First, that the Police documents would be directly relevant to assessing the genuineness of Ms Daws’ alleged honest opinion. Secondly, that the Police documents would “provide context” to Ms Daws’ statements and meanings.
Discussion
[14] The fact that Ms Daws does not plead truth in this case is of fundamental importance to the outcome of her application.
[15] Some significant differences flow from the decision of a defendant to plead (or not) both truth and honest opinion. In APN New Zealand Ltd v Simunovich Fisheries Ltd,2 the Supreme Court identified the difference, adopting a principle stated by Brooke LJ when delivering the judgment of the Court of Appeal in Musa King v Telegraph Group Ltd.3 The Supreme Court stated:4
The first qualification is to be found in the ninth Musa King principle: a defendant who pleads truth may rely on facts of which he was unaware at the time of the publication, whereas a defendant who pleads honest opinion is confined to facts known to him at the time of the publication.
[16] In short, the law precludes Ms Daws from establishing the genuineness or honesty of her opinion by reference to material which may be on the Police file but of which she had no knowledge at the time she wrote her report. As a matter of law, the documents on the Police file cannot “shed light” (to use Mr White’s terminology) on the honesty of her opinion.
[17] To the extent her application for discovery is based on relevance to honest opinion, it must fail.
2 APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93, [2010] 1 NZLR 315.
3 Musa King v Telegraph Group Ltd [2005] 1 WLR 2282 (CA) at [22].
4 At [36].
[18] That leaves for consideration Mr White’s second justification of the application, namely that the Police file might relevantly provide “context” to the statements and to Ms Daws’ statements and meanings.
[19] I do not find the invocation of “context” to be persuasive. It appears to me probable that any “context” which the Police file would provide would lie in simply establishing additional information (which under APN New Zealand Ltd v Simunovich is not available to Ms Daws to support her defence of honest opinion). Alternatively, if there are contextual facts concerning interactions between the Police, Ms Daws and Mr Lincoln which could properly be argued to have influenced the formation of Ms Daws’ alleged honest opinion, then those ought to have been pleaded by her. They have not been. To the extent that documents on the Police file may have established or been relevant to such a pleaded context, discovery might then have become appropriate.
[20] Accordingly, the second limb of Mr White’s submission in relation to relevance (based on “context”) does not establish the need for discovery.
Reliance on Mr Lincoln’s own position and assertions
[21] Mr White then moved away from an argument which focused on the Court’s determination of the relevance of the Police file. In essence he invited me to conclude that the Police file will be relevant to the issues in the proceeding because actions or statements of Mr Lincoln might suggest that to be so. I will discuss these submissions briefly if only to dismiss them. The task of assessing the relevance and the need for discovery remains with the Court, not the parties. Mr Lincoln’s views on the matter may be right or wrong.
[22] Mr White first referred to the fact that an earlier stage of the case management of this proceeding it was common ground that Mr Lincoln would be seeking documents in the possession of the Police. (He subsequently did so and obtained the documents). The potential relevance of the Police documents at that point of the proceeding cannot automatically flow over to this stage of the proceeding when the pleadings have been narrowed and refined. Mr Lincoln’s earlier pleadings contained assertions as to a “fabricated contrivance” which
suggested orchestrated arrangements between Ms Daws and Police. That no longer forms part of his case.
[23] Secondly, Mr White placed weight (as “highly relevant”) upon an emailed comment by Mr Lincoln in early August 2016 (before either the first or second amended statement of claim was filed) in which Mr Lincoln stated:
I would also give you a friendly caution. The reason your client is in her current predicament is because of false statements made to her and dishonest coercion by the Police. Be very careful what you wish for when asking for Police documents. I can tell you now, they will not assist your client at all. You may wish to step back and ask yourself whether it is wise to rely on allegations made by the criminal thugs that procured the wrongdoing from your client in the first place.
[24] As the quoted passage reflects, it was written at a time when Mr Lincoln’s existing pleading referred to a “fabricated contrivance”. It cannot be taken to have contained a consideration of the relevance of documents to the defence of honest opinion, even if one entertained the view that Mr Lincoln’s assessment of relevance might trump the Court’s independent assessment.
Conclusion
[25] Under r 8.19 High Court Rules, the Court may direct particular discovery if there are grounds for believing that a party has not discovered documents which should have been discovered. I am not satisfied that such grounds exist in this case. The application will be dismissed.
Costs
[26] Having indicated to Mr Lincoln and Mr White that I would be reserving my judgment, I heard from both as to costs. Both accepted that in the normal course costs and disbursements would follow the event. I then observed that the long- standing practice of the Courts is not to award costs to a litigant in person. Mr Lincoln indicated that he nevertheless applies for costs in the event he is successful.
[27] Mr Lincoln indicated to me he had as a lay-litigant previously been successful in a costs application. He referred to a judgment of Mallon J. I have
since identified that judgment as Lincoln v New Zealand Police.5 The decision is not applicable to the present application. The present was a straightforward interlocutory application turning on the law and the pleadings. In Lincoln v New Zealand Police, Mallon J awarded Mr Lincoln a sum on account of costs because he had provided the Court, from his considerable knowledge of firearms, very useful research about firearms and the meaning of “military pattern”. Her Honour concluded, “I consider that he can be treated as an expert in this respect”.6 Mallon J in awarding costs in relation to that work expressly distinguished the expert evidence role from the time which Mr Lincoln had spent on legal research and preparation (for which he was not to be compensated).
[28] This is a straightforward case for application of the Court’s usual practice. Mr Lincoln, as a litigant in person, is entitled to his disbursements but not to costs.
Orders
[29] I order:
(a) The defendant’s application dated 29 August 2016 is dismissed;
(b)The defendant is to pay to the plaintiff his reasonable disbursements in relation to the application to be fixed by the Registrar.
Associate Judge Osborne
Solicitors:
Tusk Legal Services, Auckland
Counsel: P White, Barrister, Auckland
Copy to: Mr R Lincoln, Timaru
5 Lincoln v New Zealand Police (2010) 20 PRNZ 19.
6 At [6].
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