CA222/2013 [2014] NZCA 461

BETWEEN
CHRISTOPHER ROBERT MURRAY

First Appellant

KERRI MAREE MURRAY Second Appellant

AND

IAN WISHART Respondent

AND

DIMENSION DATA NEW ZEALAND LIMITED

Interested Party

Hearing: 15 May 2014 (last submission received 21 July 2014)

Court:

O’Regan P, Ellen France and French JJ

Counsel:

D Nilsson for Appellants
Respondent in person
H B Rennie QC and E M S Cox for Interested Party

Judgment:

19 September 2014 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed in part.

BThe High Court decision in relation to the fifth cause of action in the amended statement of claim relating to third party statements on the Facebook page hosted by the first appellant is quashed and replaced with a ruling that this aspect of the fifth cause of action is not a tenable claim. We do not strike out the claim but order that the respondent must file in the High Court and serve an amended statement of claim within
30 days of the date of delivery of this judgment (or such other period

allowed by the High Court) omitting the present claims relating to third

MURRAY v WISHART CA222/2013 [2014] NZCA 461 [19 September 2014]

party statements and limiting any renewed claims in relation to any third party statement to claims that the first appellant knew of any such statement and failed to remove it within a reasonable time in circumstances that give rise to an inference that he was taking responsibility for such statement.

C In all other respects the High Court decision stands. D We make no award of costs in this Court.
E Costs in the High Court must now be determined in light of this decision.

REASONS OF THE COURT

(Given by O’Regan P and Ellen France J)

Table of Contents

Para No

Introduction [1] Facts [5] Procedural history [8] Issues [13] Were the statements capable of bearing the pleaded defamatory meaning? [17] The first cause of action: the Twitter statements [20] The issues arising under the first cause of action [24] The second cause of action: the Facebook statements [42] The Information Statement [43] Our analysis [46] The “McDonald’s” statement [52] The appeal [54] The opportunism statement [56] The appeal [58] The facts statement [62] The appeal [64] Joint meanings [66] The appeal [68]

The third cause of action – the Radio Live statements [71] The fourth cause of action – the Kerri Murray statement [75] The approach in the High Court [78]
The appeal [79]

Third party statements: is Mr Murray a publisher?
The test applied by the Judge [81]
The appellants’ case [83] How the Facebook page worked [84] High Court approach [87] Emmens v Pottle [93] Our analysis [99] Byrne v Deane [100] Urbanchich v Drummoyne Municipal Council [102] Sadiq v Baycorp (NZ) Ltd [105] United States cases [109] English cases [115] Trkulja v Google Inc LLC (No…

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 Murray v Wishart

Details

AGLC: Murray v Wishart [2014] NZCA 461
Case: [2014] NZCA 461
Decision Date: 19 September 2014 at 2.30 pm

CaseChat Overview and Summary

- Parties: The appeal was brought by Christopher Robert Murray and Kerri Maree Murray against Ian Wishart, with Dimension Data New Zealand Limited as an interested party.

- Nature of Dispute: This case revolves around a defamation claim filed by Ian Wishart against Chris Murray and Kerri Murray, alleging that numerous comments made by Chris on Twitter, Facebook, and during radio interviews defamed him. Wishart's claim was partially successful in the High Court, leading to this appeal.

- Court: The appeal was heard by the Court of Appeal of New Zealand, with O’Regan P, Ellen France, and French JJ.

- Legal Issues: The primary issues were whether the statements made by Chris Murray were capable of bearing the pleaded defamatory meanings, whether Chris Murray was a publisher of third-party defamatory statements on a Facebook page he created, and whether the High Court was correct in refusing to order security for costs or to make a costs award against Wishart.

- Court's Reasoning and Outcome: The Court allowed the appeal in part. It ruled that the claim regarding third-party statements on the Facebook page was not tenable as Chris Murray was not a publisher of those statements under the actual knowledge test. The Court also expressed concerns about the ought to know test proposed by the High Court Judge, stating that the actual knowledge test should be the only test for determining whether a Facebook page host is a publisher. The Court allowed Wishart to replead the claim relating to third-party statements, provided he properly pleaded that Chris Murray knew of the statements and failed to remove them within a reasonable time. The Court did not make any order for costs in the Court of Appeal but directed that costs in the High Court must now be determined in light of this decision.

Orders