Nottingham v Attorney-General

Case [2024] NZHC 2410


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-706

[2024] NZHC 2410

UNDER the Defamation Act 1992

BETWEEN

PHILLIP RAYMOND NOTTINGHAM, ROBERT EARLE MCKINNEY and GEORGE BULLOCK

Plaintiffs

AND

THE ATTORNEY-GENERAL

First Defendant

PATTERSON HOPKINS LAW, WILLIAM PATTERSON and ROBYN HOPKINS
Second Defendants

WARREN ERNEST BEERE

Third Defendant

Hearing: On the papers

Counsel:

Plaintiffs in person, D Nottingham as McKenzie Friend R Fistonich / D Watson for the First Defendant

L G Cox for the Second Defendants Third defendant in person

Judgment:

27 August 2024


JUDGMENT OF ASSOCIATE JUDGE BRITTAIN


This judgment was delivered by me on 27 August 2024 at 12 Midday.

Pursuant to r 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel: Crown Law, Wellington Morgan Coakle, Auckland

NOTTINGHAM v THE ATTORNEY-GENERAL [2024] NZHC 2410 [27 August 2024]

Introduction

[1]        The plaintiffs sue the defendants for defamation, pleading that registration of two caveats on several records of title amounted to publication of defamatory statements.

[2]        The Attorney-General is named as the first defendant on behalf of the Registrar-General of Land and/or his delegates. The Attorney-General has applied for an order striking out the claim against her, or alternatively, for summary judgment. That application is opposed by the plaintiffs and set down for hearing on 14 October 2024.

[3]        The Registrar-General of Land, Robert Muir (Mr Muir), has filed an affidavit in support of the application for strike out/summary judgment, giving brief background evidence regarding the functions and processes of the Office of the Registrar-General under the Land Transfer Act 2017 (LTA), particularly in respect of the registration of caveats.

[4]        The plaintiffs are self-represented. In this judgment, I determine interlocutory applications made informally by the plaintiffs for orders:

(a)rescinding or varying the directions made in my minutes dated 12 and 30 July 2024;

(b)for discovery from the Attorney-General before the Attorney-General’s application for strike out/summary judgment is determined;

(c)that I recuse myself;

(d)that this proceeding be dealt with by a full bench of the High Court and counsel be appointed to assist the Court;

(e)for an order requiring Mr Muir to attend the hearing on 14 October 2024 to be cross-examined; and

(f)for permission for Dermot Nottingham, the plaintiffs’ McKenzie Friend, to present the plaintiffs’ oral and written submissions at the hearing on 14 October 2024.

Background

[5]         The plaintiffs take issue with the Registrar-General’s registration of caveats lodged by the third defendant, which assert a beneficial interest in the subject properties under a cestui que trust. There is a related proceeding involving the plaintiffs and the third defendant and the affairs of the Beere Family Trust.

[6]The Attorney-General relies on the following defences:

(a)qualified privilege, which is not available if the plaintiffs establish that the Registrar-General was predominantly motivated by ill-will towards the plaintiffs or otherwise took improper advantage of the occasion of publication;1

(b)absolute privilege; and

(c)a statutory defence of Crown immunity under s 6 of the Crown Proceedings Act 1950 and s 235…

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Nottingham v Attorney-General [2024] NZHC 2410
Case
[2024] NZHC 2410
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CaseChat Overview and Summary

The plaintiffs, Phillip Raymond Nottingham, Robert Earle McKinney, and George Bullock, are suing the Attorney-General, Patterson Hopkins Law, William Patterson, Robyn Hopkins, and Warren Ernest Beere for defamation. They claim that the registration of two caveats on several records of title amounted to defamatory publication. The Attorney-General, representing the Registrar-General of Land, has applied for an order to strike out the claim against her or for summary judgment. The plaintiffs oppose this application and it is set down for hearing on 14 October 2024.

The court considered several interlocutory applications made by the plaintiffs, including requests to rescind or vary certain directions, for discovery from the Attorney-General, for the judge to recuse themselves, for the proceeding to be dealt with by a full bench of the High Court and counsel to be appointed, for an order requiring Robert Muir to attend the hearing to be cross-examined, and for permission for Dermot Nottingham, the plaintiffs' McKenzie Friend, to present the plaintiffs' oral and written submissions at the hearing. The court provided detailed reasoning for each application, ultimately declining most of them. The court noted that the proceeding is solely for defamation, and the plaintiffs' submissions suggested an intention to amend their pleadings to include a breach of the International Covenant on Civil and Political Rights, which is not relevant to the defamation claim. The court also found that the plaintiffs' complaint about the timing of discovery was unfounded, as the onus would be on the Attorney-General to satisfy the court that the plaintiffs' claim cannot succeed.

The court declined to recuse themselves, finding that there was no reasonable apprehension of bias. The court also found that the proceeding did not warrant consideration by a full bench of the High Court or the appointment of counsel to assist the court. The court declined the application for leave to cross-examine Robert Muir, finding that cross-examination would not elicit relevant and admissible evidence that would assist in determining the Attorney-General's application for strike out/summary judgment. However, the court permitted Dermot Nottingham to attend the hearing on 14 October 2024 as the plaintiffs' McKenzie Friend and to present the plaintiffs' written and oral submissions, subject to certain conditions.

The court confirmed the following extant directions in respect of the hearing: (a) the plaintiffs shall file and serve any amended notice of opposition to the first defendant's application for strike out/summary judgment, and any supporting affidavits, by 6 September 2024; (b) the first defendant shall file and serve written submissions and authorities, and a bundle of the relevant pleadings and affidavits, 10 working days before the hearing of the application for strike out/summary judgment; and (c) the plaintiffs shall file and serve written submissions 5 working days before the hearing. Costs are reserved.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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