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Opai v Culpan

Opai v Culpan

Case [2017] NZHC 1036 18 May 2017

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-092-1026 [2017] NZHC 1036

BETWEEN
MELISSA JEAN OPAI

Plaintiff

AND

LAURIE CULPAN Former First Defendant

THE ATTORNEY-GENERAL OF NEW ZEALAND

Second Defendant

Hearing: 28 March 2017

Counsel:

N W Woods for plaintiff
H B Rennie QC for former first defendant
M F McClelland QC and Ms N Ridder for second defendant

Judgment:

18 May 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 18 May 2017 at 3.30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Law Office, Wellington
Rice Craig, Auckland
Thomas Dewar Sziranyi Letts, Auckland

Counsel: H B Rennie QC, Harbour Chambers, Wellington
M F McClelland QC, Wellington

Opai v Culpan & Anor [2017] NZHC 1036 [18 May 2017]

Table of Contents Paragraph
Number Introduction [1] Background [4]

The performance appraisal document [7]
The briefing paper [9] The 258 report form [11] Diary notes [14]

The Jameel decision and subsequent developments in the
United Kingdom

[16]

The Jameel decision [16]

Legislative reform – the Defamation Act 2013 (UK) [20]

Judicial consideration of the Jameel principle in New
Zealand

[22]

The decision under review [30]

Does the Jameel principle apply in New Zealand? [36]

Do the High Court Rules place less emphasis on litigation proportionality than the Civil Procedure Rules (UK)?

Does New Zealand’s differing human rights framework make the application of Jameel inapt?

Is the Jameel principle inconsistent with the presumption of damage in defamation cases?

Conclusion on whether the Jameel principle applies in
New Zealand

Is it appropriate to apply the Jameel principle in a stay or strike-out context?

Can part of a claim be struck out as an abuse of process in reliance on the Jameel principle?

Did the Judge err in concluding that it was appropriate to apply the Jameel principle in this case?

Did the Judge err in striking out the claims against
Mr Culpan?

Did the Judge err in striking out the claim relating to the performance appraisal?

[39]

[49] [54] [59] [65] [69] [71] [72]

[84]

Summary and conclusions [88]

Result [94]

Introduction

[1] Melissa Opai seeks to review a decision of Associate Judge Bell in which he struck out aspects of her claims as an abuse of process.1 At its heart, this application raises the issue of whether the concept of abuse of process, in a defamation context, extends to situations where the resources necessary to determine a claim are likely to be out of all proportion to the interests at stake.

[2] Associate Judge Bell found that the Court did have the power to stay a defamation proceeding (or part of it) in such circumstances.2 In reaching that conclusion he relied on principles espoused by the English Court of Appeal in Jameel v Dow Jones & Co Ltd.3 Associate Judge Bell’s decision is the first case in which the High Court has applied what is commonly referred to as “the Jameel principle”.4 He struck out Ms Opai’s defamation claim against Senior Sergeant Laurie…

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.

Continue reading Opai v Culpan

Details

AGLC: Opai v Culpan [2017] NZHC 1036
Case: [2017] NZHC 1036
Decision Date: 18 May 2017

CaseChat Overview and Summary

In Opai v Culpan, the plaintiff, Melissa Jean Opai, sought to review a decision of Associate Judge Bell who had struck out parts of her defamation claims against the defendant, Laurie Culpan, as an abuse of process. The plaintiff’s claims related to four occasions over a one year period when Culpan was Opai’s manager during which he allegedly defamed her by providing a draft performance appraisal document, preparing and issuing an internal review paper for a proposed restructuring of Opai’s work area, actioning an internal complaint about Opai, and providing two brief diary notes regarding Opai to his successor. The defendants argued that the allegedly defamatory documents were made solely in the performance of Culpan’s workplace duties and read (if at all) by persons within that workplace as part of their duties. The defences included that the words complained of were not published (in one case), were not defamatory of Opai, were published on occasions of qualified privilege, and were not of such seriousness as to engage a defamation remedy. Associate Judge Bell found that the Court did have the power to stay a defamation proceeding (or part of it) in such circumstances. In reaching that conclusion, he relied on principles espoused by the English Court of Appeal in Jameel v Dow Jones & Co Ltd. Associate Judge Bell’s decision is the first case in which the High Court has applied what is commonly referred to as “the Jameel principle”. He struck out Opai’s defamation claim against Culpan as an abuse of process. He held that it was disproportionate for Opai to sue both Culpan and the Attorney-General when she could obtain the full redress she seeks from the Attorney-General alone. Aspects of Opai’s remaining claims against the Attorney-General were also struck out as disproportionate. Opai seeks to review the Judge’s decision. She argues that he was wrong to strike out parts of her claims as an abuse of process. Her application raises the following key issues: (a) Does the Jameel principle apply in New Zealand? (b) Can the Jameel principle be advanced on a strike-out or stay application? (c) Can the Jameel principle be used to strike out only part of a plaintiff’s claim? (d) If the Jameel principle does apply in New Zealand, was it appropriate to apply it in the particular circumstances of this case? The court held that the Jameel principle does apply in New Zealand. It found that Associate Judge Bell was correct to conclude that the Jameel principle applies in New Zealand. The court held that it was appropriate to apply the Jameel principle in this case. The court found that it was appropriate to strike out the entire claim against Culpan as Jameel disproportionate. The court found that the Judge did err in striking out the aspect of Opai’s claim relating to the performance appraisal. The application to quash the order made at [128](b) of the judgment under review (removing Culpan as a defendant and striking out the proceeding against him) was dismissed. The application to quash the order made at [128](c) of the judgment under review (striking out Opai’s claim regarding the performance appraisal) was granted and that aspect of the claim was reinstated accordingly. Leave was reserved to file memoranda on costs, if agreement cannot be reached between counsel.

Orders