Low Vehicle Technical Association Inc v Brett - [2019] NZHC 2936

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1925

[2019] NZHC 2936

BETWEEN LOW VOLUME VEHICLE TECHNICAL ASSOCIATION INC
First Plaintiff

AND

ANTHONY PETER JOHNSON

Second Plaintiff

AND

JOHN BERNARD BRETT

Defendant

Hearing: 11 November 2019

Appearances:

D P MacKenzie for the plaintiffs J B Brett in person

Judgment:

11 November 2019

ORAL JUDGMENT (NO 3) OF PALMER J

Solicitors/Parties:
MinterEllisonRuddWatts, Wellington J B Brett in person

LOW VOLUME VEHICLE TECHNICAL ASSOCIATION INC v BRETT (NO 3) [2019] NZHC 2936 [11
November 2019]

What happened?

[1] On 20 November 2017, I issued judgment in this proceeding.1 In summary, I held that Mr Brett defamed the Low Volume Vehicle Technical Association (LVVTA) but succeeded in a defence of qualified privilege. I held Mr Brett also defamed Mr Anthony Johnson and had no defences for that. I ordered Mr Brett to pay Mr Johnson $100,000 in damages as well as costs and issued a permanent injunction that Mr Brett not repeat the defamatory statements.

[2] The LVVTA appealed. Mr Brett appealed in relation to Mr Johnson. Mr Johnson did not appeal. On 26 March 2019, the Court of Appeal upheld the LVVTA’s appeal in part and dismissed Mr Brett’s appeal.2 Relevantly, the Court:
(a)overturned the finding that Mr Brett succeeded in his defence of qualified privilege against the LVVTA;3

(b)remitted to the High Court the issue of whether Mr Brett’s defence of qualified privilege was defeated by ill will;4 and

(c)declined to determine Mr Brett’s cross-appeal that the defence of qualified privilege did not apply to Mr Johnson, dismissing it.5

[3] On remission of the proceedings to the High Court, the parties repleaded. Mr Brett’s amended statement of claim of 5 June 2019 included a pleading of the new defence of public interest in relation to Mr Johnson’s claim. He also made a counterclaim. The plaintiffs applied to strike out the counterclaim and the pleading of the public interest defence against Mr Johnson and they sought costs. Mr Brett eventually discontinued his counterclaim but resists the strike-out of the public interest defence against Mr Johnson and resists paying any costs.

1 Low Volume Vehicle Technical Association Inc v Brett [2017] NZHC 2846, [2018] 2 NZLR 587.
2 Low Volume Vehicle Technical Association Inc v Brett [2019] NZCA 67, [2019] 2 NZLR 808.
3 At [74].
4 At [75].
5 At [80].

Law of strike-out

[4] Under r 15.1(1) of the High Court Rules 2016 (the Rules), the Court may strike out part of a pleading if it discloses no reasonably arguable defence, is likely to cause prejudice or delay, is frivolous or vexatious or otherwise an abuse of process. The defence must be so untenable that I must be certain it cannot possibly succeed.6

Submissions

[5] Mr MacKenzie, for the plaintiffs, submits Mr Johnson has already succeeded in his defamation claim against Mr Brett, and the High Court expressly rejected his defence of qualified privilege. He submits the…

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.

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Details

Case: [2019] NZHC 2936
Decision Date: 11 November 2019

CaseChat Overview and Summary

In the case of Low Volume Vehicle Technical Association Inc v Brett, the High Court was called upon to address the defamation claims brought forth by the Low Volume Vehicle Technical Association (LVVTA) and Mr. Anthony Johnson against Mr. John Bernard Brett. The court had previously ruled that Mr. Brett had defamed both the LVVTA and Mr. Johnson, with the former claim being defended by Mr. Brett through a plea of qualified privilege, which was ultimately rejected. The court had ordered Mr. Brett to pay Mr. Johnson $100,000 in damages and had issued a permanent injunction prohibiting Mr. Brett from repeating the defamatory statements. The LVVTA's appeal against the dismissal of their defamation claim was partially successful, while Mr. Brett's appeal in relation to Mr. Johnson's claim was dismissed. On the remission of the case back to the High Court, Mr. Brett pled the defence of public interest in relation to Mr. Johnson's claim and filed a counterclaim, which the plaintiffs sought to have struck out, along with the public interest defence, and sought costs.

The central legal issue before the court was whether Mr. Brett's pleading of the defence of public interest against Mr. Johnson's defamation claim should be struck out. The court also considered the costs that Mr. Brett should be liable for, given his discontinuance of the counterclaim and his unsuccessful opposition to the strike-out of the public interest defence against Mr. Johnson. Under the High Court Rules, the court has the discretion to strike out part of a pleading if it discloses no reasonably arguable defence, is likely to cause prejudice or delay, is frivolous or vexatious or otherwise an abuse of process. The court held that Mr. Brett's public interest defence against Mr. Johnson was so untenable that it could not possibly succeed, and therefore struck it out. The court further ruled that Mr. Brett should pay costs on a 2B basis for his discontinuance of the counterclaim, uplifted by 50 per cent, and costs on a 2B basis for his unsuccessful opposition to the strike-out, as sought by the plaintiffs.

Orders