London v Smallbone - [2018] NZCA 131

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA362/2017
[2018] NZCA 131

BETWEEN	GEORGE PAUL LONDON First Appellant IAN NEVILLE WISHART Second Appellant HOWLING AT THE MOON PUBLISHING LIMITED Third Appellant PAULETTE MERLE LONDON Fourth Appellant
AND	LINDSAY JAMES TREVOR SMALLBONE Respondent

Hearing: Further submissions:	12 April 2018 16, 19 and 27 April 2018
Court:	Gilbert, Dobson and Toogood JJ
Counsel:	C J Tennet for First and Fourth Appellants Second Appellant in Person and as director of Third Appellant A J Romanos for Respondent
Judgment:	2 May 2018 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe second and third appellants are jointly and severally liable to pay the respondent 50 per cent of costs for a standard appeal on a band A basis and usual disbursements.
CIf the first and fourth appellants had not been legally aided, we certify that we would have ordered them to pay the same amount of costs as ordered against the second and third appellants.

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

The principal issue in this appeal turns on the correct interpretation and application of s 50(1) of the Defamation Act 1992 (the Act), which reads:
50 Striking out for want of prosecution
(1) In any proceedings for defamation, unless the court in its discretion orders otherwise, the court shall, on the application of the defendant, order the proceedings to be struck out for want of prosecution if—
(a) no date has been fixed for the trial of the proceedings; and
(b) no other step has been taken in the proceedings within the period of 12 months immediately preceding the date of the defendant’s application.
Is a plaintiff who succeeded with his or her claim in defamation at trial vulnerable to having their proceedings struck out for want of prosecution under s 50 because a retrial was subsequently ordered but no date for the retrial has been set and no other steps have been taken for over 12 months? Does it matter that the close of pleadings date for the proceeding in terms of the High Court Rules passed well before the first trial and the plaintiff was accordingly not entitled to take any further steps without leave? If s 50 does apply in these circumstances, how should the discretion be exercised?

The proceedings

In March 2012, the respondent, Lindsay Smallbone, sued the appellants in defamation following publication in November 2011 of a book jointly authored by the first and second appellants, George London and Ian Wishart, and published by Mr Wishart’s company, Howling at the Moon Publishing Ltd, the third appellant. The statements complained of were made by Mr Smallbone’s first wife, Paulette London, the fourth appellant, who is now married to Mr London. The statements are of a highly personal nature and are relayed in considerable detail in the book. They cover the period dating back to 1967 when Mr Smallbone was married to Mrs London.
Mr Smallbone diligently prosecuted…

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 London v Smallbone

Details

AGLC: London v Smallbone [2018] NZCA 131
Case: [2018] NZCA 131
Decision Date: 2 May 2018 at 9.30 am

CaseChat Overview and Summary

This appeal concerns a defamation proceeding which was pursued to trial and resulted in a successful verdict for the respondent, Lindsay Smallbone. A retrial was ordered after the appellants successfully applied to set aside the jury's verdict on the basis of new evidence. The appellants subsequently applied to have the proceeding struck out for want of prosecution under s 50 of the Defamation Act 1992. The High Court dismissed the applications, holding that the discretion not to strike out the proceeding should be exercised in favour of Mr Smallbone. The appellants appealed, contending that the Judge misinterpreted s 50 and failed to exercise his discretion properly. The Court of Appeal dismissed the appeal and held that s 50 did not apply to proceedings which have been to trial and a retrial has been ordered. The Judge did not err in the exercise of his discretion and the proceeding should not have been struck out under the general provisions in the High Court Rules. The second and third appellants are jointly and severally liable to pay the respondent 50 per cent of the costs for the appeal. If the first and fourth appellants had not been legally aided, they would have been ordered to pay the same amount of costs.

Orders