N W Woods and P Amaranathan for Plaintiff H Rennie QC for First Defendant M McClelland QC and N Ridder for Second Defendant
Judgment:
13 December 2016
JUDGMENT (1) OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 13 December 2016 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
Solicitors:
Rice Craig (Neville Woods/Rani Amaranathan), Papakura, for Plaintiff Thomas Dewar Sziranyi Letts (D Gerard Dewar), Wellington, for First Defendant
Crown Law Office (Alison Todd), Wellington, for Second Defendant
Copy for:
Hugh Rennie QC, wellington, for First Defendant
Matthew F McClelland QC, Wellington, for Second Defendant
New Zealand Police (Nicola Ridder), Wellington, for Second Defendant
OPAI v CULPAN [2016] NZHC 3004 [13 December 2016]
TABLE OF CONTENTS
Some procedural history [3]
The pleadings [10]
The performance appraisal of July 2013 [15] Extent of publication [20] The meaning of the performance appraisal [25] Do the statements arguably defame Ms Opai? [32]
Briefing paper [34]
Do the statements refer to Ms Opai? [38] Meaning [40] Do the words defame Ms Opai? [42]
The 258 report form [43]
Meaning [49]
Diary notes[54] Meaning [57] Are the words defamatory? [59]
Allegation of malevolent campaign to vilify [60] Claim for exemplary damages [62] Mr Culpan’s stay application [66] Jameel [74] Form of amended statement of claim [93]
The Attorney-General’s objection to Ms Opai’s
notice under s 39 of the Defamation Act [101]
The Attorney-General’s objection to Ms Opai’s
notice under s 41 of the Defamation Act [110]
Ms Opai’s application against Attorney-General’s pleading [114] Pleading of the 258 report [115] Pleading of qualified privilege on performance appraisal [122]
Outcome [126]
[1] This decision deals with some of the interlocutory applications in this workplace defamation proceeding. Ms Opai works in the Counties Manukau District Headquarters of the Police but is not a sworn officer. She was formerly a watch house officer (supervisor), but now has another administrative job. Mr Culpan is a senior sergeant also based at Counties Manukau. Ms Opai reported to him, while he was O/C Station (Counties Manukau) from 3 February 2013 to 13 January 2014. She sues him for allegedly defamatory statements made in four documents:
(a) a performance appraisal in July 2013; (b) a briefing paper of November 2013;
(c) a 258 report of 5 November 2013; and
(d) diary notes made in 2013.
Her current statement of claim seeks damages of $280,000 (including aggravated damages) from Mr Culpan for all the statements. She sues the Attorney-General on behalf of the Commissioner of Police for his vicarious liability for the statements made by Mr Culpan. In addition to compensatory damages of $280,000, she seeks punitive damages from the Attorney-General.
[2] The…
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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AGLC
Opai v Culpan [2016] NZHC 3004
Case
[2016] NZHC 3004
Decision Date
CaseChat Overview and Summary
Melissa Jean Opai sued Laurie Culpan and the Attorney-General on behalf of the Commissioner of Police for defamatory statements made in four documents: a performance appraisal, a briefing paper, a 258 report and diary notes. Opai seeks damages of $280,000 from Culpan and punitive damages from the Attorney-General. This judgment deals with interlocutory applications. The Court dismissed Culpan's application to strike out the proceeding generally or against him in particular, to stay the proceeding while Opai's employment grievances were heard in the employment institutions and for a preliminary determination of the meanings of the alleged defamatory statements. The Court also dismissed the Attorney-General's application to strike out Opai's claim in its entirety, to strike out certain alleged meanings in the statement of claim and to strike out Opai's notices under ss 39 and 41 of the Defamation Act 1992. The Court found that Opai's claim in respect of the 2013 performance appraisal was struck out as Jameel disproportionate. While Opai generally has an arguable case for the briefing paper, the statements were not reasonably capable of meaning that she was unfit to hold office. Opai may amend that part of her claim to allege an alternative meaning. The 258 report did not arguably mean that Opai committed a crime of stealing time, but Opai may amend to plead another meaning. Her claim in respect of the report was otherwise arguable. The diary note as to her scuttling enrolments was not reasonably capable of meaning that she generally acts maliciously towards others, but may support a lesser meaning which Opai may set out in an amended pleading. Opai's claim in respect of "complaints about timekeeping" was Jameel disproportionate. Opai's claim for exemplary damages against the Attorney-General was not arguable. Opai did not need to plead separate causes of action for each publication she sues on. The Attorney-General had misconceived his honest opinion defences. He would need to plead and prove that Culpan genuinely held the opinions he expressed. His own beliefs were irrelevant. Opai may rebut the Attorney-General's qualified privilege defence by showing ill use or improper use of the occasion by Culpan. She did not need to prove malice by the Attorney-General. The Attorney-General had not put truth in issue in its defence (except to the extent required for any honest opinion defence) and was not required to give particulars of a truth defence.