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Low Volume Vehicle Technical Association Inc v Brett

Low Volume Vehicle Technical Association Inc v Brett

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Case Copied 26 March 2019 43 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA725/2017
[2019] NZCA 67

BETWEEN	LOW VOLUME VEHICLE TECHNICAL ASSOCIATION INCORPORATED Appellant
AND	JOHN BERNARD BRETT First Respondent ANTHONY PETER JOHNSON Second Respondent

Hearing:	20 September 2018
Court:	Kós P, Clifford and Williams JJ
Counsel:	R J Gordon and D P MacKenzie for Appellant and Second Respondent P A McKnight for First Respondent
Judgment:	26 March 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe cross-appeal is dismissed.
CA permanent injunction is granted to the Association prohibiting Mr Brett from any further breach of the June 2014 settlement agreement.
DThe case is remitted to the High Court for reconsideration in accordance with [76].
EThe first respondent is to pay the appellant costs for a standard appeal on a band A basis together with usual disbursements.

__________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr Brett formerly was an approved certifier of low volume vehicles.[1] The Low Volume Vehicle Technical Association is the body responsible for setting standards and procedures for certification of low volume vehicles.[2] Mr Johnson is chief executive of the Association. Mr Brett’s certification was revoked by the New Zealand Transport Agency in December 2012. A District Court appeal against revocation failed.[3] Mr Brett then embarked on a campaign of public criticism of both the Association and Mr Johnson on his website.[4]
[1]The meaning of low volume vehicles is explained at [3] below.
[2]The Association is also referred to as “the LVVTA”.
[3]Brett v New Zealand Transport Agency, DC Manukau CIV-2013-055-93, 27 December 2013 [District Court judgment].
[4]Mr Johnson is nominally a respondent, but as one of the two plaintiffs, his interests align with those of the Association.
After legal action was threatened, a settlement agreement was entered between the Association and Mr Brett. After further statements were published by Mr Brett, the Association and Mr Johnson brought defamation proceedings against him, and the Association also claimed for breach of the settlement agreement. These claims were determined in the High Court by Palmer J.[5] This appeal and cross-appeal concern the Judge’s determinations that:
(a)As to the settlement agreement: (1) portions of the agreement should be struck out for inconsistency with the New Zealand Bill of Rights Act 1990; but (2) Mr Brett had otherwise breached that agreement.[6]
(b)As to defamation: (1) Mr Brett had defamed both the Association and Mr Johnson; (2) there was no defence of truth available on the facts; (3) a defence of honest opinion was available in relation to one statement only; and (4) all defamatory statements concerning the Association only were protected by qualified privilege.[7]
(c)As to remedy: (1) declaring that Mr Brett was liable to Mr Johnson for 12 defamatory statements; (2) granting Mr Johnson a permanent injunction against further publication of the defamatory statements; and (3) ordering that Mr Brett pay Mr Johnson $100,000 in compensation,…

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] NZCA 67
Decision Date: 26 March 2019 at 9.30 am

CaseChat Overview and Summary

The case between the Low Volume Vehicle Technical Association Incorporated (the Association) and Mr Brett concerned a settlement agreement between the parties and subsequent breaches of that agreement, as well as defamation proceedings. The Association, which sets standards and procedures for certification of low volume vehicles, and Mr Brett, a former certifier, had entered into a settlement agreement in June 2014. Mr Brett had been a certifier from April 1999 until his revocation in December 2012. The revocation was upheld on appeal. After the revocation, Mr Brett published numerous attacks on the Association and Mr Johnson, the chief executive of the Association, on his website. After legal action was threatened, a settlement agreement was entered into between the parties. However, Mr Brett continued to make defamatory statements about the Association and Mr Johnson on his website. The Association and Mr Johnson brought defamation proceedings against Mr Brett, and the Association also claimed for breach of the settlement agreement. The High Court found that Mr Brett had breached the settlement agreement and had defamed both the Association and Mr Johnson. The court also found that there was no defence of truth available on the facts, and a defence of honest opinion was available in relation to one statement only. All defamatory statements concerning the Association only were protected by qualified privilege. The appeal and cross-appeal concern the Judge’s determinations that portions of the agreement should be struck out for inconsistency with the New Zealand Bill of Rights Act 1990; that Mr Brett had otherwise breached the agreement; that Mr Brett had defamed both the Association and Mr Johnson; that there was no defence of truth available on the facts; that a defence of honest opinion was available in relation to one statement only; and that all defamatory statements concerning the Association only were protected by qualified privilege. The court found that the contractual abrogation of Mr Brett’s protected right of freedom of expression was lawful and granted a permanent injunction in favour of the Association prohibiting Mr Brett from further breach of that agreement. The court also found that the Judge was correct to find that qualified privilege protected defamatory statements concerning the Association, but not Mr Johnson. The court remitted the case to the High Court for reconsideration in accordance with the judgment. The first respondent is to pay the appellant costs on a standard appeal on a band A basis together with usual disbursements.

Orders