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Nicol v Douglas

Nicol v Douglas

Case [2024] NZHC 250 21 February 2024

Defamation

Threshold of Seriousness

More than Minor Harm

Abuse of Process

Defamation Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-230

[2024] NZHC 250

BETWEEN
ANDREW MICHAEL NICOL

Plaintiff

AND

CRAIG DOUGLAS

First Defendant

JIMMIE KEVIN McNICHOLL

Second Defendant

Hearing: 5 December 2023

Appearances:

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

No appearance for Second Defendant

Judgment:

21 February 2024

Reissued:

8 April 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 21 February 2024 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

NICOL v DOUGLAS [2024] NZHC 250 [21 February 2024]

[1] The plaintiff (Mr Nicol) sues the first defendant (Mr Douglas) and the second defendant (Mr McNicholl) in defamation in respect of statements they made to the effect that he is a serial rapist. Mr Nicol seeks declarations that Mr Douglas and Mr McNicholl are liable to him in defamation along with indemnity costs but not damages.

[2] There is no dispute that Mr Douglas and Mr McNicholl made the statements, that the statements were extremely serious, and that they were untrue. Notwithstanding that, Mr Douglas applied for summary judgment and/or for an order striking out the claim as an abuse of process. His counsel abandoned the application for summary judgment at the hearing but maintains that Mr Nicol’s claim should be struck out.

[3] Mr Nicol has responded with his own application for summary judgment, for which he requires leave under r 12.4(2) of the High Court Rules 2016.

[4]This judgment deals with three applications:

(a)Mr Douglas’ application that Mr Nicol’s claim be struck out;

(b)Mr Nicol’s application for leave to apply for summary judgment; and

(c)Mr Nicol’s application for summary judgment.

[5] In broad terms, the principal issues that arise on the competing applications are:

(a)whether Mr Nicol’s claim should be struck out as an abuse of process because:

(i)there has been no real or significant tort committed; and

(ii)it would be a disproportionate use of resources to allow the claim to proceed;1 and

(b)whether Mr Nicol has satisfied the Court that Mr Douglas has no arguable defence to the claim, which turns upon whether the minimum threshold of seriousness requirement recognised in recent case law as an element of an actionable claim in defamation has been met.2

Context

[6] Mr Nicol is a property developer and managing director and shareholder of the Opes Partners group (Opes Group) of companies which are concerned with property investment.

[7] Mr Douglas is a businessman and company director with several businesses, including a building company.

[8]Mr McNicholl describes himself as a commercial cleaner.

[9] Mr Nicol considers that Mr Douglas and Mr McNicholl are both friends and associates. The extent to which this is the case is one of several issues in dispute.

[10] Opes Group publishes podcasts and on 2 October 2021 and 7 February 2023 the podcasts included material Mr Douglas considers was defamatory of him. Mr Nicol suspects…

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 250
Case: [2024] NZHC 250
Decision Date: 21 February 2024

CaseChat Overview and Summary

The case of Nicol v Douglas concerns a defamation claim brought by Andrew Nicol against Craig Douglas and Jimmie McNicholl for statements made to the effect that Nicol is a serial rapist. Nicol seeks declarations of liability and indemnity costs but not damages. Douglas applied for summary judgment and/or for an order striking out the claim as an abuse of process. Nicol responded with his own application for summary judgment, which requires leave under r 12.4(2) of the High Court Rules 2016. This judgment deals with three applications: Douglas’ application for the claim to be struck out, Nicol’s application for leave to apply for summary judgment, and Nicol’s application for summary judgment. The principal issues are whether Nicol’s claim should be struck out as an abuse of process, and whether Nicol has satisfied the court that Douglas has no arguable defence to the claim, which turns upon whether the minimum threshold of seriousness requirement recognised in recent case law as an element of an actionable claim in defamation has been met. The court considers that the strike out application cannot succeed due to factual disputes. There are plainly factual disputes that mean the strike out application cannot succeed. The court considers that the statement has a tendency to do very significant damage to Nicol’s reputation. However, the court finds that the statement was sent to Robinson who does business with Nicol. Despite reliance upon Prasad v Raj, there were clearly several factors in play in that case that led Powell J to conclude the proceeding should be struck out. However, there are cases where publication of a defamatory statement to just one or very few persons has been held to be sufficient. The court considers that the substantive application for summary judgment ought to be dismissed, and it serves little purpose in those circumstances to spend time considering the leave application. The court considers that the tendency of the statement to defame Nicol is an important matter that the Court must consider but so too are other matters such as the extent of publication, the method of publication, the identity of the person to whom the statement is published, and the existence of any evidence of actual damage. The court considers that the evidence of Douglas, McNicholl and Robinson is not so lacking in credibility or inherently improbable that it can be satisfied Douglas does not have an arguable defence to the claim. Therefore, Nicol’s summary judgment application must also be dismissed.

Orders