Mutingwende v Petersen-Hodge - [2023] NZHC 488

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-386

[2023] NZHC 488

BETWEEN
TAFARA MUTINGWENDE

Plaintiff

AND

MADELEINE PETERSEN-HODGE

Defendant

Hearing: 13 February 2023

Appearances:

J J Pietras and B H Woodhouse for Plaintiff A C Singleton for Defendant

Judgment:

13 March 2023

Reissued:

15 March 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1] This is an application by the plaintiff, Tafara Mutingwende, for an order pursuant to r 15.1(1)(a) of the High Court Rules 2016 striking out aspects of a statement of defence entered by the defendant, Madeleine Petersen-Hodge.

[2] Mr Mutingwende is a musician. His stage name is “Theo Outlandish”. He is a hip hop artist. He performs rap music.

[3] Ms Petersen-Hodge is also a musician. Her stage name is “Baby Lane”. Like the plaintiff, she is a hip hop artist.

[4] Between 17 October 2020 and 4 February 2021, the defendant published eight tranches of material on the social media site known as “Instagram”.

MUTINGWENDE v PETERSEN-HODGE [2023] NZHC 488 [13 March 2023]

[5] In this proceeding, Mr Mutingwende is alleging that, in those publications, Ms Petersen-Hodge defamed him. He pleads eight causes of action — one related to each publication. He is claiming injunctive relief and substantial damages.

[6]The plaintiff has amended his claim twice. The most recent statement of claim

— the second amended statement of claim — is dated 15 August 2022. The defendant has entered a defence to the second amended statement of claim dated 20 September 2022.

[7] On 30 September 2022 the plaintiff filed and served this interlocutory application. The defendant filed and served a notice of opposition on 21 October 2022. On 9 February 2023, immediately prior to the hearing, the plaintiff filed and served an amended application.

[8]It is this amended application that is before the Court for determination.

Strike out applications

[9] The principles that apply to applications pursuant to r 15.1(1)(a) are well settled. The Court’s starting point is an assumption that the factual allegations in the impugned pleading will be established at trial. It then asks whether, on that assumption, there is a reasonably arguable claim, or defence, as the case may be. It follows that in most cases there is no evidence before the Court as to the facts — given the Court’s starting point, there is no need for evidence. The Courts do, however, recognise that there is a need for some flexibility, and, if, for example, a party can categorically dispose of a factual issue with evidence, then affidavits will be permitted.

[10] In this case, there is more affidavit evidence than one would normally expect to see.

Scope of application

[11] By the time that the matter came on for hearing, the aspects of the defence that remained under attack had been reduced to the following:

(a)one aspect of the affirmative defence of truth, that is to say the defendant’s signalled intention to establish the truth of the alleged…

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 Mutingwende v Petersen-Hodge

Details

AGLC: Mutingwende v Petersen-Hodge [2023] NZHC 488
Case: [2023] NZHC 488
Decision Date: 13 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Tafara Mutingwende, a musician known as "Theo Outlandish", brought a defamation case against Madeleine Petersen-Hodge, also a musician known as "Baby Lane". Mutingwende alleged that Petersen-Hodge defamed him through eight publications on Instagram between October 2020 and February 2021. He sought injunctive relief and substantial damages. The case centred on the legal issues of truth, honest opinion, and qualified privilege as defences against the defamation claims. The Court had to decide whether certain aspects of the defence could be struck out before trial.

Regarding the defence of truth, the Court concluded that the terms "underage" and "minor" in the defamatory statements could only reasonably be interpreted as referring to the statutory age of consent, which is 16. Therefore, the Court struck out the parts of the defence that relied on the women involved being over 16 at the time of the alleged incidents. On the defence of honest opinion, the Court found that it was premature to determine whether the statements were opinions or facts, as this would depend on the evidence presented at trial. The Court also declined to strike out the defence of qualified privilege, reasoning that it was too early to assess whether the communications were responsible and related to matters of public interest without considering all the evidence.

The Court's final order was to strike out certain parts of the defence related to the truth defence but dismissed the rest of the plaintiff's application. The Court reserved the decision on costs, allowing the parties to attempt to agree on them first.

Orders