Opai v Culpan - [2015] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-092-001026 [2015] NZHC 2010

BETWEEN
MELISSA JEAN OPAI

Plaintiff

AND

LAURIE CULPAN Defendant

THE COMMISSIONER OF POLICE Second Defendant

Hearing: 20 August 2015

Appearances:

N W Woods for the Plaintiff
S W B Foote for the First Defendant
M Hodge and H Dymond-Cate for the Second Defendant

Judgment:

24 August 2015

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 25 August 2015 at 2.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Rice Craig, Auckland
Meredith Connell, Auckland
Thomas Dewar Sziranyi Letts, Wellington

S Foote, Auckland

MELISSA JEAN OPAI v LAURIE CULPAN [2015] NZHC 2010 [24 August 2015]

[1] The Commissioner of Police, the second defendant, has applied to strike out a defamation action against him and Mr Culpan, who is a member of the New Zealand Police, as being one that falls within the exclusive jurisdiction of the Employment Relations Authority.1

[2] Ms Opai, the plaintiff, also a member of the New Zealand Police, opposes the application, maintaining that as the action is a claim founded on tort, it does not fall within the Authority’s exclusive jurisdiction.

[3] The first defendant, Mr Culpan, abides the decision of the Court on the strike-out application.

[4] As pleaded the action relates to statements made by the first defendant in his capacity as a senior member of the NZ Police that are allegedly defamatory of the plaintiff as follows:

(a) Comments that were made in a performance appraisal authored by Laurie Culpan for the year 2012/2013, which was “published” around July 2013, and amended and “re-published” in August 2013. Between January-March 2014 the Commissioner edited and “republished” the appraisal. Such publication was allegedly by the report being sent or made available within the Police to HR staff and staff ranked senior sergeant or above in Counties Manukau, and some national-level staff.

(b)A briefing paper authored and published by Laurie Culpan in November 2013 which related to culture problems within the Police, but which the plaintiff says would have been understood by staff to have been targeted at her. This briefing was likewise made available to senior Police staff, the Police Association, and to certain other
Police officers.

1 The Commissioner has also filed an appearance under protest on the same jurisdictional grounds, but the application before me proceeded exclusively on the strike-out application on the understanding that the protest would stand if the strike-out application succeeds.

(c) A “258 report form” authored and widely published by Laurie Culpan by his making it available to HR and senior staff, concerning and incorporating a complaint about the plaintiff, to the effect that she had breached the Police code of conduct by falsifying her timekeeping. The contents of the report are said to carry the meaning that the plaintiff is dishonest. The plaintiff says the complaint was upon investigation “not upheld”, but no apology has been forthcoming.

(d)Reports and diary entries relating to the above, said…

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 [2015] NZHC 2010
Case: [2015] NZHC 2010
Decision Date: 24 August 2015

CaseChat Overview and Summary

Melissa Jean Opai commenced proceedings against Laurie Culpan and the Commissioner of Police, seeking damages for defamation and other related claims. The plaintiff, a member of the New Zealand Police, alleges that the defendants made defamatory comments about her in their capacity as senior members of the Police. The defendants have applied to strike out the action, arguing that it falls within the exclusive jurisdiction of the Employment Relations Authority. The plaintiff opposes the application, asserting that the action is founded on tort and does not fall within the Authority's exclusive jurisdiction. The central issue before the court was whether the plaintiff's claim was within the exclusive jurisdiction of the Employment Relations Authority and the Employment Court. The court considered the legislative history and statutory purpose of the ERA, as well as the range of remedies available under the Act. The court found that the plaintiff's claim was not an action about an employment relationship problem within the meaning of s 161(1)(r) of the Employment Relations Act 2000, and therefore did not fall within the exclusive jurisdiction of the Employment Relations Authority. The court held that the plaintiff's claim was a claim in tort, specifically defamation, which arises independently of the employment relationship between the plaintiff and the Commissioner. The court dismissed the application to strike out the claim, noting that such dismissal was not indicative of the adequacy or otherwise of particulars of the claim or the substantive merits of the claim. The court also awarded the plaintiff 2B costs plus disbursements as fixed by the Registrar.

Orders