Nottingham v Maltese Cat Limited - [2019] NZCA 641

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA572/2017
[2019] NZCA 641

BETWEEN	DERMOT NOTTINGHAM Appellant
AND	MALTESE CAT LIMITED First Respondent CLYDE ALEXANDER MACLEAN Second Respondent ELIZABETH MAY CURRIE Third Respondent

Hearing:	14 November 2019
Court:	Courtney, Brewer and Gendall JJ
Counsel:	Appellant in Person D M Connor and KCE Chow for Respondents
Judgment:	12 December 2019 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

The issue in this appeal is whether a defamation claim seeking declaratory relief and costs is a money claim for the purposes of s 11 of the Limitation Act 2010.
The respondents brought the proceedings alleging that defamatory statements had been published about them on the website [1] The host of the website, Godaddy.com LLC, has advised that it is contractually entitled to take down defamatory, obscene or lewd material and will abide any order of this Court declaring publications on the laudafinem.com website to fall into those categories.
[1]The proceedings were brought by way of originating application, initially against defendants named as John Doe and/or Jane Doe because of the uncertainty as to the identity of the publisher of the statements. The appellant, Dermot Nottingham, was subsequently joined as a defendant on the basis that he may be the publisher
Mr Nottingham brought a number of interlocutory applications, including an application to strike out the proceeding on the ground that it was time barred. Rule 15.1 of the High Court Rules 2016 permits the court to strike out all or part of a pleading on specified grounds, including that it is an abuse of the process of the court.[2] In order to succeed on a strike-out application brought on the ground that the cause of action is statute-barred, the applicant must show that the claim is properly regarded as frivolous, vexatious or an abuse of process.[3] The threshold for striking out a pleading is a high one; the jurisdiction is to be exercised sparingly and only in clear cases and the cause of action must be clearly untenable.[4]
[2]Although proceedings were filed before the High Court Rules 2016 came into effect, those rules apply to the current proceedings by operation of pt 2, sch 5 of the Senior Courts Act 2016.
[3]Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33].
[4]Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267; and Hobson v Attorney‑General [2007] 1 NZLR 374 (CA) at [55]–[59].
Fogarty J found that the proceedings were not time barred.[5] Mr Nottingham appeals.

The High Court decision

[5]Maltese Cat Ltd v John Doe and/or Jane Doe [2017] NZHC 1728, (2017) 24 PRNZ 254 at [22].

The statement of claim alleges that the defamatory statements were published on 22…

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.

Keep reading for free

Create a free CaseChat account to read Nottingham v Maltese Cat Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZCA 641
Decision Date: 12 December 2019 at 2.30 pm

CaseChat Overview and Summary

The case of Nottingham v Maltese Cat Limited was heard in the Court of Appeal of New Zealand. The appeal was brought by Dermot Nottingham, the appellant, against Maltese Cat Limited, the first respondent, Clyde Alexander Maclean, the second respondent, and Elizabeth May Currie, the third respondent. The respondents had brought proceedings against Nottingham alleging defamation. Nottingham sought to strike out the proceedings on the basis that they were time-barred. The Court of Appeal found that the proceedings were not time-barred and dismissed Nottingham's appeal.

The legal issues before the Court of Appeal were whether the defamation claim seeking declaratory relief and costs was a money claim for the purposes of s 11 of the Limitation Act 2010, and whether the multiple publication rule applied to the claim. The Court of Appeal found that the claim was not a money claim, as it was seeking declaratory relief, which is not a money claim. The Court also found that the multiple publication rule did not apply to the claim, as it was not necessary to consider the merits and application of that rule.

The Court of Appeal dismissed Nottingham's appeal and ordered that he pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

Orders