Moodie v Strachan - [2013] NZHC 2951

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007-485-2212 [2013] NZHC 2951

BETWEEN ROBERT ALEXANDER MOODIE Plaintiff

ANDELIZABETH GRACE STRACHAN Defendant

Hearing: 31 October 2013

Counsel: Plaintiff in person (in opposition)
J O Upton QC for Defendant (in support) Judgment: 8 November 2013
JUDGMENT OF THE HON JUSTICE KÓS (Partial strike out application)

[1] This is an application to strike out parts of a defamation claim on the basis that they are prejudicial, vexatious or an abuse of process.

Background

[2] The general circumstances of this proceeding are set out in detail in Mallon J’s judgment of 21 May 2010.1 They need not, therefore, be repeated in great detail here.

[3] Fully six and a half years ago, on 17 March 2007, the New Zealand Listener magazine published an article called “Moodie Blues”. It gave an account of a falling out between the plaintiff, Mr Moodie (a solicitor practising in Fielding) and a Mr Tony Ellis (a barrister practising in Wellington). Mr Moodie had retained Mr Ellis to appear for him in contempt proceedings. Irreconcilable differences
emerged, including as to fees. In the article Mr Ellis is quoted as referring to a

1 Moodie v Strachan HC Wellington CIV-2007-485-2212, 21 May 2010.

number of complaints about Mr Moodie’s work by the defendant, Ms Strachan. She was a part-time lawyer who worked with Mr Moodie. Ms Strachan is also quoted directly towards the end of the article.

[4] In October 2007 Mr Moodie filed these defamation proceedings against Mr Ellis, Ms Strachan and APN Specialist Publications NZ Limited (APN) (the publisher of the New Zealand Listener). Two years later, in October 2009,2 Mr Moodie settled with the defendants, other than Ms Strachan. Ms Strachan then sought, successfully, further particulars of Mr Moodie’s claim. That required a fifth amended statement of claim (against Ms Strachan only) to be filed.

[5] That claim advanced two causes of action against Ms Strachan. Mallon J

described them thus:

[11] The first cause of action sues on the publication made by Ms Strachan to Ms Black. The pleading identifies the statements from Ms Strachan to Ms Black that are relied on and then sets out the alleged natural and ordinary meaning of those words which are said to be defamatory.

[12] The second cause of action sues on the publication of the article in the New Zealand Listener on the basis that Ms Strachan caused the publication of defamatory statements. The pleading (at paragraph 43) sets out the words in the article which are attributed to Ms Strachan. It pleads (at paragraph 44) the alleged defamatory meanings of those words.

[6] This judgment now deals with the sixth amended statement of claim filed on

30 July 2013.

Three earlier judgments

Judgment of Mallon J (21 May 2010)

[7] One of the things Mallon J had to deal with was an application by Ms Strachan to strike out 26 paragraphs of the fifth amended statement of claim, as well as parts of two further…

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 [2013] NZHC 2951
Case: [2013] NZHC 2951
Decision Date: 8 November 2013

CaseChat Overview and Summary

This case involves a defamation claim filed by Robert Alexander Moodie against Elizabeth Grace Strachan. The dispute stems from comments allegedly made by Strachan that were published in an article in the New Zealand Listener magazine. Strachan has applied to strike out certain parts of Moodie's defamation claim, arguing they are prejudicial, vexatious, or an abuse of process. The court must decide whether the specific paragraphs and annexures in question should be struck out under the relevant rules. The court finds that several paragraphs and annexures in Moodie's statement of claim are irrelevant, otiose, or improperly included evidential material. Specifically, paragraphs 4, 5, 9, 13, and 18, as well as parts of paragraphs 7, 8, 15, 16, and 17, are struck out. The annexures attached to the statement of claim are also struck out as they contain evidential material that does not belong in a pleading. The remainder of Strachan's application to strike out is dismissed. The court emphasizes the importance of proper pleading principles and notes that the pleadings, once amended in accordance with this judgment, will be fit for trial.

Orders