Maltese Cat Ltd v Doe - [2017] NZHC 1728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1805 [2017] NZHC 1728

UNDER
the Defamation Act 1992 and Part 18 of

the High Court Rules

IN THE MATTER

of a Declaration under s 24 Defamation Act 1992 concerning the nature and status of certain web publications

BETWEEN

MALTESE CAT LIMITED First Plaintiff

CLYDE ALEXANDER MACLEAN Second Plaintiff

ELIZABETH MAY CURRIE Third Plaintiff

AND

JOHN DOE AND/OR JANE DOE Defendants

DERMOT NOTTINGHAM Second Defendant

Hearing: 24 May 2017

Appearances:

D Huang for Plaintiffs
Second Defendant in Person

Judgment:

25 July 2017

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
25 July 2017 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Solicitors:
Jones Law, Auckland

Registrar/Deputy Registrar

Date:

MALTESE CAT LIMITED v JOHN DOE AND/OR JANE DOE [2017] NZHC 1728 [25 July 2017]

Introduction

[1] The plaintiffs to these defamation proceedings seek judgment from the Court that certain published websites contain content defaming them. It is unclear who published that content and therefore the first defendant, John Doe, is fictional. The plaintiffs suspect, however, that the second defendant, Mr Dermot Nottingham, was the author of the defamation. Without affirming or denying that speculation, Mr Nottingham opposes judgment being entered in favour of the plaintiffs.

[2] One of the grounds on which Mr Nottingham defends this action is limitation. He argues the content was live for more than two years and is therefore unable to be determined by the Court.1 This judgment addresses whether or not the plaintiffs have brought their proceedings within time.

Background

[3] This is my second judgment concerning Maltese Cat Ltd. The first, issued on

14 July 2017, resolved issues around the way in which these proceedings were brought (in a form seeking declaratory judgment) and about the admissibility of several volumes of documents filed by the second defendant, Mr Nottingham.2 I had heard argument on the limitation defence, and was minded to decide against Mr Nottingham and wrote accordingly. I then decided I had not had sufficiently full argument, so I reviewed the reasoning and adjourned the proceedings for further call
before me on 20 July 2017. The judgment then delivered contained in the summary my intended finding on limitation. I recalled the judgment and deleted the finding on limitation. At the following hearing, however, Mr Nottingham advised he would like the limitation point determined without further argument. He informed me he had appealed the first judgment and that he would appeal the limitation point. He also informed me that other cases are pending in the Court of Appeal on the same limitation issue. Mr Nottingham took no issue with the possibility that judgment on the limitation point would be against him — it is his intention to appeal any such finding. He considered that it had been fully argued.

[4] It is against this procedural background that this judgment addresses and determines the limitation point.

The Limitation Point

[5] In late 2013, the plaintiffs were the subject of…

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 Maltese Cat Ltd v Doe

Details

AGLC: Maltese Cat Ltd v Doe [2017] NZHC 1728
Case: [2017] NZHC 1728
Decision Date: 25 July 2017

CaseChat Overview and Summary

Maltese Cat Ltd and others initiated defamation proceedings against John Doe and/or Jane Doe, as well as Dermot Nottingham, seeking a declaration that certain web publications defamed them. The identity of John Doe and Jane Doe is unknown, but the plaintiffs suspect that Nottingham authored the defamatory content. Nottingham denies this and argues that the proceedings are time-barred. The primary legal issue before the court was whether the plaintiffs' claim was subject to a limitation period and, if so, whether it had been brought within that period. Nottingham argued that the proceedings were time-barred under the Limitation Act 2010, as the publications had been online for more than two years. The plaintiffs contended that the "multiple publication rule" applied, which would reset the limitation period each time the website was accessed. The court found that the Limitation Act did not apply to the plaintiffs' claim for a declaration, as declarations are not considered money claims and the Act only limits monetary relief. The court further noted that even if a limitation defence were established, it would not extinguish the underlying rights of the plaintiffs. As a result, the court concluded that the plaintiffs' statement of claim was not time-barred and allowed the proceedings to continue. The court also amended its earlier judgment to correct an error regarding Nottingham's role in the proceedings.

Orders