Noe v Hollister - [2024] NZHC 1791

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2501 [2024] NZHC 1791

UNDER the Defamation Act 1992

BETWEEN

ROBERT GRAHAM NOE

Plaintiff/Respondent

AND

GUY CHRISTIAN HOLLISTER

First Defendant/Applicant

GARY ARTHUR HINDS

Second Defendant/Applicant

Hearing: 24 June 2024

Appearances:

D J G Cox for Plaintiff (by AVL)

J E G San Diego for First Defendant (by AVL) W A McCartney for Second Defendant (by AVL)

Judgment:

3 July 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 3 July 2024 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

……………………………….

NOE v HOLLISTER [2024] NZHC 1791 [3 July 2024]

[1] On 8 November 2019, the plaintiff, Mr Noe, issued defamation proceedings against the first defendant, Mr Hollister, and the second defendant, Mr Hinds. The proceedings related to nine allegedly defamatory statements Mr Noe says Mr Hollister and Mr Hinds were responsible for and made during the period 12 June 2018 to 5 July 2019.

[2] Mr Hinds filed a statement of defence on 14 February 2020. Mr Noe was not able to serve Mr Hollister personally and so he obtained an order for substituted service pursuant to which Mr Hollister was served on 11 March 2020.

[3] After Mr Noe undertook substituted service (through his legal team), he took no other step in this proceeding until 1 November 2023 — nearly 44 months after substituted service.

[4] Mr Cox, counsel for Mr Noe, filed a memorandum on 1 November 2023 which noted the proceeding had been set down for mention in the Chambers List on Friday 3 November 2023. The Court took that step, because no formal step had been taken in the Court since 28 February 2020, when the application for substituted service was filed. In Mr Cox’s words, the matter had “stalled”.

[5] Mr Cox, in his 1 November 2023 memorandum says: “Counsel now has instructions from the plaintiff to progress THE proceeding ….” (emphasis ADDED), having said in the same memorandum he had been without instructions “… for a lengthy period”. Mr Cox, in his memorandum of 1 November 2023, also foreshadowed an application to seek judgment by default as to liability.

[6]A statement of defence was not filed by Mr Hollister until 2 November 2023.

[7] It is apparent that but for the Court’s enquiry, nothing further would have happened in this proceeding. The fact that Mr Noe has indicated he wishes to continue with the proceeding has prompted Messrs Hollister and Hinds to apply for the proceeding to be struck out for want of prosecution under r 15.2 of the High Court

Rules 2016 (the Rules) and pursuant to s 50 of the Defamation Act 1992 (the Act) which provides:

50 Striking out for want of prosecution

(1)In any proceedings for defamation, unless the court in its discretion orders otherwise, the court shall, on the application of the defendant, order the proceedings to…

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 Noe v Hollister

Details

AGLC: Noe v Hollister [2024] NZHC 1791
Case: [2024] NZHC 1791
Decision Date: 3 July 2024

CaseChat Overview and Summary

Robert Graham Noe issued defamation proceedings against Guy Christian Hollister and Gary Arthur Hinds in November 2019. The proceedings related to nine allegedly defamatory statements made by the defendants between June 2018 and July 2019. Mr Noe was unable to serve Mr Hollister personally and thus obtained an order for substituted service in March 2020. Mr Noe did not take any further steps in the proceeding until November 2023, nearly 44 months after substituted service. The defendants applied to have the proceeding struck out for want of prosecution.

The court considered whether the delay in pursuing the proceeding was inordinate, inexcusable and prejudicial. The court found the 44-month delay was inordinate. Mr Noe did not provide an adequate explanation for the delay, particularly since Mr Hollister did not file a defence until November 2023. The defendants argued prejudice had arisen as witnesses they would have called had died. The court found the delay prejudiced the defendants more than Mr Noe since his case was based on written statements.

The court also considered whether the proceeding was commenced for a collateral purpose, namely to obtain a stay of enforcement of a separate judgment. The timing of the proceeding and Mr Noe's inaction after the stay was declined supported this inference. The court found it was not in the interests of justice to allow Mr Noe to continue a proceeding commenced for tactical reasons. The application to strike out the proceeding was granted and Mr Noe ordered to pay the defendants' costs.

In summary, the court found the excessive delay in pursuing the proceeding, lack of explanation for the delay, significant prejudice to the defendants and the collateral purpose of the proceeding weighed in favour of striking out the proceeding for want of prosecution. The apparent strength of Mr Noe's claim against Mr Hollister was not enough to counter these factors.

Orders