IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-706
[2024] NZHC 3644
UNDER
the Defamation Act 1992
BETWEEN
PHILLIP RAYMOND NOTTINGHAM, ROBERT EARLE MCKINNEY and GEORGE BULLOCK
Plaintiffs
AND
ATTORNEY-GENERAL
First Defendant
PATTERSON HOPKINS LAW, WILLIAM PATTERSON and ROBYN HOPKINS Second Defendants
WARREN ERNEST BEERE
Third Defendant
Hearing:
14 October 2024
Appearances:
Plaintiffs in person (with D Nottingham as McKenzie Friend) D J Watson and R M Fistonich for First Defendant
L G Cox for Second Defendants
Judgment:
3 December 2024
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 3 December 2024 at 10.00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
NOTTINGHAM v ATTORNEY-GENERAL [2024] NZHC 3644 [3 December 2024]
TABLE OF CONTENTS
Post hearing developments – recusal [5]
Recusal [10]
Background [25]
Summary judgment principles [54]
Defences of absolute and qualified privilege and s 235 of the LTA [57]
Absolute immunity [58]
Statutory immunity — s 235 of the Land Transfer Act 2017 [72]
Matters relied on as showing bad faith [85]
Registering the caveats [87]
Failing to remove the caveats [102]
Failing to take action [113]
Qualified privilege [117]
Abuse of process [122]
Strike out principles [123]
Dow Jones & Co Inc v Jameel [125]
Discretion to award summary judgment [132]
Result [135]
[1] The plaintiffs allege they were defamed by the defendants and seek general and punitive damages. The claim relates to registered caveats searchable on the Toitū te Whenua Land Information New Zealand (LINZ) website, which the plaintiffs contend contain defamatory material that they committed “criminal fraud”.
[2] The Attorney-General, named as a party on behalf of the Registrar-General of Land (Registrar), applies to strike out the claim against her or summary judgment. Broadly, the issues that arise are whether the Attorney-General has established her entitlement to the relief sought on the grounds:
(a)she has a defence of absolute privilege; or
(b)no tortious liability can arise in this case against the performance of functions, powers or duties by the Registrar or his delegates under the Land Transfer Act 2017 (LTA);1 or
(c)she has a defence of qualified privilege; or
(d)no real or substantial tort has occurred.
[3] The plaintiffs are self-represented but at the hearing Dermott Nottingham presented submissions on their behalf as a McKenzie Friend.2
[4] Mr Cox made an appearance for the second defendants but made no submissions in support of or in opposition to the application.
Post hearing developments – recusal
[5] Since the hearing the plaintiffs filed what purports to be an application for orders, including that:
1 Land Transfer Act 2017, s 235.
2 Associate Judge Brittain made a direction that Dermott Nottingham could present the plaintiffs’ submissions in Nottingham v Attorney-General [2024] NZHC 2410 at [44]. I refer to Dermott Nottingham to distinguish him from the plaintiff Phillip Nottingham, whom I refer to throughout this judgment as Mr Nottingham.
(a)a Full Court of the High Court be convened to decide…
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.
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Details
AGLC
Nottingham v Attorney-General [2024] NZHC 3644
Case
[2024] NZHC 3644
Decision Date
CaseChat Overview and Summary
The plaintiffs, Phillip Raymond Nottingham, Robert Earle McKinney, and George Bullock, commenced defamation proceedings against the Attorney-General, Patterson Hopkins Law, William Patterson, Robyn Hopkins, and Warren Ernest Beere. The plaintiffs allege that the defendants published defamatory statements against them. The Attorney-General and the other defendants applied for summary judgment or, alternatively, for the claim to be struck out. Associate Judge Paulsen dismissed the plaintiffs' application for the judge to recuse himself. The plaintiffs alleged that the judge was biased and corrupt, which the judge found to be without foundation. The plaintiffs' defamation claim was dismissed on the basis that the Attorney-General enjoyed immunity under s 235 of the Land Transfer Act 2017 and qualified privilege. Judgment was entered in favour of the Attorney-General and the other defendants.