| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA572/2017 [2019] NZCA 641 |
| BETWEEN | DERMOT NOTTINGHAM |
| AND | MALTESE CAT LIMITED |
| Hearing: | 14 November 2019 |
Court: | Courtney, Brewer and Gendall JJ |
Counsel: | Appellant in Person |
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…
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- Case
- [2019] NZCA 641
- Decision Date
CaseChat Overview and Summary
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
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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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