Moodie v Strachan - [2014] NZHC 1090

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007-485-2212 [2014] NZHC 1090

BETWEEN
ROBERT ALEXANDER MOODIE

Plaintiff

AND

ELIZABETH GRACE STRACHAN Defendant

Hearing: 19 May 2014

Counsel:

R A Moodie appearing in person
J Upton QC for the Defendant

Judgment:

21 May 2014

JUDGMENT OF MALLON J

[1] This proceeding is a defamation claim arising out of an article written by Ms Black and published in the New Zealand Listener (the Listener) on 17 March 2007. It has had a lengthy interlocutory phase. For that reason it is subject to case management by Collins J. It is important that the proceeding continues to be case managed in light of the delays resulting from the continued interlocutory applications.

[2] The matter before me is the plaintiff’s application for an order striking out the defendant’s defence and for judgment to be entered in his favour. The basis of that application is the failure to file particulars of the defences of honest opinion and truth despite orders made by me and then Dobson J in 2010. I am satisfied that the application cannot be granted on that basis. Those orders were overtaken by events. Specifically:

(a) Those orders were informally stayed when the defendant applied for a stay and the parties agreed to that stay pending an appeal by the

MOODIE v STRACHAN [2014] NZHC 1090 [21 May 2014]

defendant from a judgment of mine.1 That appeal was deemed abandoned on 14 May 2014.

(b) In the meantime one of the causes of action against the defendant (in respect of the defendant’s responsibility for the statements in the Listener) was struck out because of a settlement reached with the defendant’s joint tortfeasors.2 That judgment was appealed by the plaintiff. That appeal was deemed abandoned on 5 September 2011 although the defendant was not informed of that by the Court of
Appeal until around the middle of 2012.

(c) On 12 June 2013 the Court refused an application by the plaintiff to add new causes of action and refused the defendant’s strike out application in respect of the remaining cause of action against the defendant (for alleged defamatory statements made by the defendant
to Ms Black).3 This judgment was appealed by the defendant. That

appeal is to be heard on 28 July 2014.

(d) On 29 July 2013 the plaintiff filed a sixth amended statement of claim. The defendant applied to strike out that claim. In a judgment given on 8 November 2013 the Judge struck out some paragraphs but not others.4

(e) The seventh amended statement of claim was filed on 12 November

2013. On 30 January 2014 the plaintiff applied for judgment to be entered in his favour. On 20 February 2014 the defendant applied to strike out the seventh amended statement of claim.

[3] Although I am satisfied that the defendant has not defied the orders made in
2010 it is of concern that the plaintiff still does not have a particularised statement of defence to a…

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 [2014] NZHC 1090
Case: [2014] NZHC 1090
Decision Date: 21 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Moodie v Strachan, [2014] NZHC 1090, was heard. The plaintiff, Robert Alexander Moodie, filed a defamation claim against the defendant, Elizabeth Grace Strachan, stemming from an article published in the New Zealand Listener. The plaintiff's application sought an order to strike out the defendant's defence and for judgment to be entered in his favour due to the defendant's failure to file particulars of her defences of honest opinion and truth, despite previous orders by Mallon J and Dobson J in 2010. The court considered the various legal issues involved, including whether the plaintiff's application could be granted based on the defendant's failure to file particulars, and whether the plaintiff's pleading was sufficiently clear to inform the defendant of the case she needed to meet.

The court found that while the defendant had not defied the orders made in 2010, the plaintiff still did not have a particularised statement of defence for a claim that had been ongoing since 2007. The court examined the plaintiff's seventh amended statement of claim, which outlined the specific defamatory statements made by the defendant to Ms. Black and their alleged impact on the plaintiff's reputation. The defendant objected to the pleading, arguing that certain paragraphs were not in accordance with previous directions, that the words were not capable of bearing the alleged meanings, and that the plaintiff's innuendo meanings lacked particulars of the intrinsic facts Ms. Black knew at the time of publication.

The court rejected the defendant's objections, stating that the plaintiff's pleading was clear enough to inform the defendant of the case she needed to meet and that the defendant could respond to the pleaded meanings in her statement of defence. The court also noted that the defendant should not plead to paragraph 5, which had been included in error and was struck out. The court ordered the defendant to file a defence within 25 working days of the judgment and scheduled a telephone conference to further discuss the case management.

In conclusion, the court granted the plaintiff costs on a 2B basis, acknowledging that while the plaintiff had not succeeded in having the defence struck out, the application was necessary to obtain a particularised statement of defence from the defendant.

Orders