Newton v Dunn - [2015] NZHC 3126

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2012-406-000272 [2015] NZHC 3126

BETWEEN
LORETTA ANNE NEWTON

Plaintiff

AND

SUSAN DUNN First Defendant

FAYE COLLEEN LEOV and BERNARD LESLIE LEOV Second Defendants

Hearing: 1 December 2015

Appearances:

R J B Fowler QC for Plaintiff
P B Churchman QC for Second Defendants
No appearance for the First Defendant

Judgment:

10 December 2015

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] Mrs Newton initially issued this proceeding against the first defendant, Ms Dunn, alleging defamation in three separate publications, a letter dated 10
September 2012, an email dated 1 October 2012, and a further email dated 8 October

2012. She also alleges harassment under the Harassment Act 1997.

[2] After discovery of documents Mrs Newton learned the involvement of the second defendants, Mr and Mrs Leov, in relation to the alleged actions of the first defendant. This led to her joining Mr and Mrs Leov as second defendants, and to amended pleadings. Mrs Newton says that Mr and Mrs Leov provided to Ms Dunn material which she used in making the publications on which she relies in her claim against Ms Dunn. Until 20 October 2015, the current pleading was the second amended statement of claim. On that day Mrs Newton filed a third amended
statement of claim in identical terms to the second amended statement of claim, save

Newton v Dunn & Leov [2015] NZHC 3126 [10 December 2015]

that in the sole cause of action against Mr and Mrs Leov, she added a prayer for relief in the following terms:

A recommendation by the Court pursuant to Section 26 of the Defamation Act 1992 that the Second Defendants publish or cause to be published a correction of the matter that is the subject of this Proceeding and that in making such a recommendation the Court include recommendations in terms of Section 27 of the Act.

[3] Section 26 of the Defamation Act provides:

26. Court may recommend correction –

(1) In any proceedings for defamation, the plaintiff may seek a recommendation from the Court that the defendant publish or cause to be published a correction of the matter that is the subject of the proceedings, and the Court may make such a recommendation.

(2) Where, in any proceedings for defamation, -

(a) The Court recommends that the defendant publish or cause to be published a correction of the matter that is the subject of the proceedings; and

(b) The defendant publishes or causes to be published a correction in accordance with the terms of that recommendation, -

then –

(c) The plaintiff shall be awarded solicitor and client costs against the defendant in the proceedings, unless the Court orders otherwise; and

(d) The plaintiff shall be entitled to no other relief or remedy against that defendant in those proceedings; and

(e) The proceedings, so far as they relate to that defendant, shall be deemed to be finally determined by virtue of this section.

(3) Where, in any proceedings for defamation, -

(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 Newton v Dunn

Details

AGLC: Newton v Dunn [2015] NZHC 3126
Case: [2015] NZHC 3126
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Loretta Newton filed a defamation claim against Susan Dunn and subsequently added Faye and Bernard Leov as defendants. Newton alleged defamation from three publications by Dunn and that the Leovs provided material used in those publications. Newton sought a recommendation for a correction under s 26 of the Defamation Act 1992 against all defendants. The Leovs argued that the request for a recommendation under s 26 was an abuse of process, intended to prevent their right to a trial by jury under s 19A of the Judicature Act 1908. The court found that while the timing of the third amended statement of claim suggested an intention to deprive the defendants of their right to a jury trial, this did not constitute an abuse of process. The court also determined that a plaintiff may seek a recommendation under s 26 at any time before a close of pleadings date, and that the court may make a recommendation once disputes on factual matters have been resolved. The court found that relief under s 26 is available to Newton in relation to her claim against the Leovs, and dismissed the application to strike out the prayer for relief. Costs will follow the event, with the Leovs to pay costs on a 2B basis with disbursements fixed by the Registrar. Newton is not permitted to delete the prayer for relief.

Orders