Maltese Cat Ltd v Doe - [2017] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1805 [2017] NZHC 1634

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:

14 July 2017

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
14 July 2017 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Jones Law, Auckland

MALTESE CAT LIMITED v DOE [2017] NZHC 1634 [14 July 2017]

Introduction and Factual Background

[1] The plaintiffs, Mr MacLean and Ms Currie were at one time in a close personal relationship. While no longer together, they are on amicable terms. The first plaintiff, Maltese Cat Ltd (Maltese Cat), is a family company related to Mr MacLean.

[2] The claim contends that all three were victimised by defamatory publications on the website, (the offending website). The offending website and its domain name, laudafinem, are hosted by GoDaddy LLC (GoDaddy). A related company, Domains by Proxy, LLC (DBP) is the domain name registrant.

[3] Mr MacLean is married to Ms Joanne MacLean. They have been separated since 2011. Their separation was acrimonious. Three separate legal proceedings instituted by Ms MacLean against Mr MacLean or Maltese Cat have been struck out or discontinued.

[4] At around the same time in 2011, Ms Currie was a witness in a police prosecution of her former partner, Matthew Crann, for an alleged domestic violence assault. That prosecution succeeded at first instance before a judge alone. Mr Crann appealed successfully for re-trial before a jury. He was then acquitted.

[5] The plaintiffs claim that near the times of Ms MacLean’s third loss in bringing her legal proceedings and Mr Crann’s successful appeal, Ms MacLean engaged the defendant, Mr Dermot Nottingham, to be, it is submitted, “something of an ‘equaliser’”. He met the lawyer for Mr MacLean and other plaintiffs, Mr Jones, and threatened a “campaign” against them unless they paid money.

[6] The plaintiffs claim that such a campaign was mounted on the offending website in late 2003: the publication of four key articles of defamatory, abusive and obscene materials, victimising Mr MacLean, Ms Currie and Maltese Cat. These four key articles are hereafter called Schedules 1 to 4. They carried the following titles:

Date of First Publication Webpage

Schedule 1
22 September

2013

“The Ugly Face of Intimate Partner Abuse –

Elizabeth May Currie”

Schedule 2
24 September

2013

Judge Ryan Confides – Jury Right on Money

when Assessing Jilted Partners’ Credibility

Schedule 3 31 October 2013
The Maltese Cat and the Polo Pony they came in

from the cold, a scam that sought out LF-Ah
facebook you’ve done it…

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 1634
Case: [2017] NZHC 1634
Decision Date: 14 July 2017

CaseChat Overview and Summary

Maltese Cat Ltd, Clyde Alexander MacLean, and Elizabeth May Currie (plaintiffs) commenced proceedings against John Doe and Jane Doe, and later against Dermot Nottingham, seeking a declaration under s 24 of the Defamation Act 1992 that four articles published on a website were defamatory. The plaintiffs argued that they were the victims of a campaign of defamation by Mr Nottingham, and that the offending articles had been taken down, but they wanted a declaration from the Court to prevent them being re-published. The plaintiffs commenced the proceedings by way of an originating summons under Part 18 of the High Court Rules, arguing that it was the most expeditious way to obtain the declaration. They also sought an order that the summons be served on Mr Nottingham, who they believed to be responsible for the offending articles. The defendants argued that the proceedings should not be heard as an originating summons and that the plaintiffs had not properly joined Mr Nottingham as a party within the limitation period. The court considered that the proceedings had strayed far from the original basis on which they were brought. Mr Nottingham had filed hundreds of pages of documents in an attempt to rely on statements made by other persons in other litigation. The Court considered that it was not possible in interlocutory proceedings to resolve all issues of admissibility of the material. The court also considered that it was inappropriate to hear the matter as an originating summons given the complexity of the issues and the amount of evidence being relied on. The court adjourned the matter to give the parties an opportunity to advise the court whether they wished the proceedings to continue as an originating summons or to be converted to an ordinary action.

Orders