Nicol v Douglas - [2024] NZHC 763

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-230

[2024] NZHC 763

BETWEEN
ANDREW MICHAEL NICOL

Plaintiff

AND

CRAIG DOUGLAS

First Defendant

JIMMIE KEVIN McNICHOLL

Second Defendant

Hearing: On the papers

Appearances:

D M Salmon KC and S M U Lee for Plaintiff G E Slevin for First Defendant

No appearance for Second Defendant

Judgment:

11 April 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 11 April 2024 at 11.45 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

NICOL v DOUGLAS [2024] NZHC 763 [11 April 2024]

[1] The plaintiff has sued the defendants in defamation. In a judgment of 21 February 2024 I dismissed applications made by the plaintiff and first defendant for summary judgment and strike out.1

[2] The plaintiff and the first defendant have now agreed on terms of a consent judgment and have requested that the Court issue a judgment making the following declaration under s 24 of the Defamation Act 1993 (the Act):

This Court declares that Mr Craig Douglas is liable to Mr Andrew Michael Nicol in defamation for making the following false statement about Mr Nicol (the Statement) in text messages to Mr Rowan Robinson:

I had lunch yesterday with a chap who had a very powerful job. I asked him directly about Nicole [sic] and the rape allegations. He confirmed that he is at the centre and that he is 90% facing jail time.

Andrew Nicol.

…

Date rape. 88 charges by 34 woman [sic] over 3 years. 2015 – 2018 it’s the development of the mumma [sic] hooch saga

The Jury trial starts Feb 23.

[3] The plaintiff and the first defendant have agreed that the judgment can appropriately record the following:

(a)The parties agree that the summary at [6] – [20] of my judgment dated 21 February 2024 is accurate and appropriate.2

(b)The Statement falsely alleged that Mr Nicol was at the centre of the Mama Hooch offending and was almost certain to be imprisoned as a prolific serial rapist and sexual offender. Mr Douglas admits the falsity of the Statement he made about Mr Nicol.

(c)Mr Douglas raised an affirmative defence in relation to the Statement that it did not amount to a “real and substantial tort” because of its

1 Nicol v Douglas [2024] NZHC 250.
2 Nicol v Douglas, above n 1.

limited publication but now accepts it was highly defamatory, in order to bring the proceeding to an end.

(d)Mr Douglas has apologised to Mr Nicol in the form contained in Schedule 1 to this judgment.

[4]I am satisfied that the order sought in [2] above is appropriate.

[5] As far as costs of the proceeding are concerned, the plaintiff and first defendant agree that the issue of costs as between them is to be reserved under s 24 of the Act with submissions and supporting affidavits to follow.

[6] As far as the…

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 Nicol v Douglas

Details

AGLC: Nicol v Douglas [2024] NZHC 763
Case: [2024] NZHC 763
Decision Date: 11 April 2024

CaseChat Overview and Summary

Nicol v Douglas involved a defamation claim by Andrew Michael Nicol against Craig Douglas and Jimmie Kevin McNicholl. Nicol alleged that Douglas defamed him in text messages, falsely claiming Nicol was at the centre of serious criminal activities and facing imprisonment. McNicholl did not participate in the proceedings. Nicol sought a declaration of liability and damages, while Douglas raised a defence of limited publication which he later conceded was inadequate. The case was initially dismissed for summary judgment but later resolved through a consent judgment. The court agreed to declare that Douglas was liable for defamation and that his statements were false and highly defamatory. Douglas admitted the falsity and issued an apology to Nicol. The court also reserved the issue of costs between Nicol and Douglas for further submissions, while Nicol agreed to discontinue the claim against McNicholl without costs. The final orders included a declaration of liability, a reserved costs issue between Nicol and Douglas, and the dismissal of Nicol’s claim against McNicholl without costs.

Orders