[1] Dr Moodie practised as a solicitor in the town of Feilding. Ms Strachan was for a time a solicitor employed by him. That employment relationship ended unhappily and in litigation in the Employment Court. Remarks regarding Dr Moodie’s professional conduct as a solicitor were published in the 17 March 2007 issue of The Listener. The article, under the title “Moodie Blues”, was informed by the comments of two particular sources: Mr Tony Ellis, a barrister practising in Wellington, and Ms Strachan.

[2] That same year, 2007, Dr Moodie commenced defamation proceedings against APN Specialist Publications NZ Limited (publishers of The Listener), Mr Ellis, and Ms Strachan.

[3] In 2009, a settlement was reached between Dr Moodie, Mr Ellis and APN.
This left the proceeding live against Ms Strachan only. Ostensibly on the basis of two causes of action. However, the settlement with Mr Ellis and APN barred Dr

MOODIE v STRACHAN [2015] NZHC 327 [2 March 2015]

Moodie from pursuing the second cause of action against Ms Strachan, pursuant to the joint tortfeasor rule.1 This left only the first cause of action alive.

[4] Progress of this proceeding has been profoundly unsatisfactory. It has been attended now by nine interlocutory judgments (by six different Judges).2 A number of the judgments of this Court have expressed concern at the compilation of cost without the achievement of meaningful progress. Delays have not been wholly of the plaintiff’s making, however.3 Young J described the delays in the following terms:4

[65] The delay in this case has been unacceptable, now almost seven years. Part of the responsibility falls to both the litigants in agreeing a “stay” while both appealed interlocutory orders (some three years). However, the delay is not such that currently it is an abuse of process to allow the case to continue. Dr Moodie will, however, understand that this litigation cannot go on forever. As plaintiff, it is his responsibility to get the case now to a speedy hearing. Further, unreasonable delay could justify further consideration as to whether this litigation is an abuse of process.

[5] Trial was due to begin on 1 December 2014. On 9 September 2014, the defendant filed an interlocutory application for a stay of proceeding; alternatively, for further security for costs.

[6] In a memorandum filed on 19 September 2014, Dr Moodie consented to stay. He explained his consent as being motivated by his ill health causing serious mobility, memory, concentration and speech issues. He also points to his age (76 years) as reason to terminate the proceeding. In that memorandum, he sought leave to be excused from the hearing on 29 September 2014 on the basis of those grounds.

[7] Unstated, but also problematically, Dr Moodie faced imminent…

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 Moodie v Strachan

Details

AGLC: Moodie v Strachan [2015] NZHC 327
Case: [2015] NZHC 327
Decision Date: 2 March 2015

CaseChat Overview and Summary

Moodie v Strachan is a defamation case that has been the subject of numerous interlocutory applications and judgments over the course of several years. The plaintiff, Dr. Moodie, a solicitor, brought defamation proceedings against the defendant, Ms. Strachan, who was a former employee, and others, in relation to comments she made about him in an article published in The Listener. The proceeding against the other defendants was settled, leaving only Ms. Strachan as a defendant. The case has been plagued by delays and was ultimately stayed by consent when Dr. Moodie, citing his ill health and age, consented to a stay. The court was required to determine the costs of the proceeding.

The legal issues the court had to decide were whether the plaintiff should be ordered to pay the defendant's costs following the permanent stay of the proceeding and, if so, the appropriate amount of those costs. The court considered the rule that a plaintiff who discontinues a proceeding must pay costs to the defendant up to and including the date of discontinuance, and whether any of the exceptions to that rule applied. The court held that none of the exceptions applied and that the plaintiff must pay the defendant's costs in the usual way.

The court's reasoning was that it was reasonable for Dr. Moodie to bring the proceeding and for Ms. Strachan to defend it. The case was not discontinued due to any vindication of the plaintiff's action, nor were the merits so obvious as to influence the costs outcome. The case had simply ground to a halt due to the plaintiff's lack of capacity to continue and the delays that had attended the proceeding. The court found no basis to challenge the defendant's costs schedule and ordered the plaintiff to pay the defendant's costs of $42,988.

This case highlights the importance of timely and efficient litigation and the consequences that can arise from prolonged delays and the inability of a party to continue with a proceeding. It also demonstrates the court's approach to determining costs following a permanent stay of proceeding and the factors that may influence that determination.

Orders