Nottingham v Maltese Cat Limited - [2019] NZCA 246

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA571/2017
CA572/2017
[2019] NZCA 246

BETWEEN	DERMOT NOTTINGHAM Appellant
AND	MALTESE CAT LIMITED First Respondent CLYDE ALEXANDER MACLEAN Second Respondent ELIZABETH MAY CURRIE Third Respondent JOHN DOE AND/OR JANE DOE Fourth Respondent

Counsel:	Appellant in person D M Connor for Respondents
Judgment: (On the papers)	24 June 2019 at 10.30 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

AThe application to review the Deputy Registrar’s decision declining to dispense with security for costs in CA571/2017 is declined. Security for costs of $6,600 is payable by 15 July 2019.
BThe application to review the Deputy Registrar’s decision declining to dispense with security for costs in CA572/2017 is granted. Security for costs is dispensed with in respect of CA572/2017.

____________________________________________________________________

REASONS

Introduction

Mr Nottingham is a defendant in a defamation proceeding in the High Court at Auckland being CIV-2016-404-1805. In that proceeding the plaintiffs seek judgment that certain published websites contain content defaming them. It is unclear who published that content and therefore the first defendant, John Doe, is fictional. Mr Nottingham is also a defendant because the plaintiffs suspect he is the author of the defamation. The proceeding was commenced by originating application since only declaratory relief, and not damages, is sought.
On 14 July 2017 and 25 July 2017 Fogarty J delivered judgments on interlocutory aspects of that litigation.[1] On 17 August 2017 Mr Nottingham filed notices of appeal against those decisions, being CA571/2017 and CA572/2017 respectively.[2] Security for costs was set at $6,600 for each appeal. He filed an application for dispensation from security for costs under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. In a decision dated 16 April 2019 the Deputy Registrar declined the applications for security for costs and directed that security in each appeal be paid by 17 May 2019. Mr Nottingham seeks a review of that decision.

Relevant principles

[1]Maltese Cat Ltd v Doe [2017] NZHC 1634 and Maltese Cat Ltd v Doe [2017] NZHC 1728 respectively.

[2]On 2 October 2017 Cooper J directed that the appeals were accepted for filing as at 17 August 2017.

The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[3] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[4] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would…

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

Case: [2019] NZCA 246
Decision Date: 24 June 2019 at 10.30 am

CaseChat Overview and Summary

The case of Nottingham v Maltese Cat Limited concerns two appeals from decisions of Fogarty J in defamation proceedings in the High Court at Auckland. The appellant, Mr Nottingham, sought to appeal the interlocutory decisions made by Fogarty J in relation to the defamation proceedings. The respondents, Maltese Cat Limited and others, opposed the appeals on the basis of the requirement for security for costs. The appeals were heard by the Court of Appeal of New Zealand, where the appellant sought a review of the Deputy Registrar's decision to not dispense with the security for costs.

The legal issues before the Court of Appeal were whether the Deputy Registrar's decision to decline to dispense with security for costs in CA571/2017 and CA572/2017 was correct. The Court had to consider the principles applicable to dispensation from security for costs, as outlined in Reekie v Attorney-General, and whether the appeals met the criteria for dispensation.

The Court of Appeal found that the Deputy Registrar's decision in relation to CA571/2017 was correct, as the appeal did not meet the criteria for dispensation as it had little or no merit and did not raise any issues of public interest. However, in relation to CA572/2017, the Court granted the application to review the Deputy Registrar's decision and dispensed with the requirement for security for costs. The Court found that a solvent appellant would reasonably wish to pursue the limitation issue because if successful, it would provide a defence to the respondents' claim.

In conclusion, the Court of Appeal dismissed the application to review the Deputy Registrar's decision declining to dispense with security for costs in CA571/2017, and the appellant was required to pay security for costs of $6,600 by 15 July 2019. However, the Court granted the application to review the Deputy Registrar's decision declining to dispense with security for costs in CA572/2017, and security for costs was dispensed with in respect of CA572/2017.

Orders