Parker v Owen - [2016] NZHC 342

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-224 [2016] NZHC 342

UNDER the Defamation Act 1992

BETWEEN

PHILIP CHRISTOPHER PARKER Plaintiff

AND

MEGAN ELIZABETH OWEN Defendant

Hearing: 3 March 2016

Appearances:

No appearance of the Plaintiff
GHJ Brant for the Defendant

Judgment:

3 March 2016

ORAL JUDGMENT OF MUIR J

Solicitors:
GHJ Brant, Stace Hammond, Hamilton

Copy to the Plaintiff

PARKER v OWEN [2016] NZHC 342 [3 March 2016]

Background

[1] Mr Parker sues Ms Owen in defamation. In his amended statement of claim dated 9 November 2015 he seeks damages of $325,000 and a permanent mandatory injunction.

[2] Mr Parker is impecunious. He is an undischarged bankrupt. He was adjudicated on 18 February 2001. Discharge by fluxion of time was opposed by the Official Assignee with the result that Mr Parker made an application for discharge for bankruptcy which was heard before Associate Judge Doogue on 28 July 2015 and
2 September 2015.

[3] In his Honour’s judgment delivered on 26 November 2015 he declined to discharge Mr Parker from bankruptcy and ordered that no further application be made before 18 February 2017.1

[4] As a result of the plaintiff’s status the defendant applied on 18 August 2015 for orders that the plaintiff pay security for costs on such terms as the Court thinks fit and that there be a stay of the proceedings until such time as a security was given.

[5] On 8 September 2015 the plaintiff filed a notice of opposition.

[6] The matter first came before the Court on 9 September 2015 when Mr Parker sought an adjournment on the basis that he had, within the previous 24 hours, briefed counsel who was to apply for legal aid. Asher J accordingly adjourned the matter until Tuesday 27 October 2015 for a one hour fixture. He imposed a timetable whereby affidavit evidence in opposition from Mr Parker was to be filed by 29
September 2015 and his submissions filed by 13 October 2015.

[7] On 16 October 2015 Mr Parker applied for a further adjournment of the
application. He said that he was “still processing and therefore awaiting the outcome of his application for legal aid from Legal Services”.

1 Parker (Bankrupt) v Official Assignee [2015] NZHC 2871.

[8] Toogood J convened a telephone conference on 20 October 2015. At that conference Mr Parker said that he had had some difficulty in arranging legal representation but that he was now represented by a Wellington barrister in substitution for the Auckland counsel he had previously identified before Asher J. He said that a legal aid application had not yet been filed but that his solicitor and proposed counsel were working on the matter.

[9] Toogood J said he was satisfied that it would be unreasonable to require Mr Parker to undertake any effective opposition to the application for security for costs without the assistance of counsel, if that could be obtained from a grant of legal aid. Accordingly, he adjourned the matter to Thursday…

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.

Keep reading for free

Create a free CaseChat account to read Parker v Owen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 342
Decision Date: 3 March 2016

CaseChat Overview and Summary

The High Court of New Zealand, in the Hamilton registry, heard a defamation case between Philip Christopher Parker, the plaintiff, and Megan Elizabeth Owen, the defendant. The plaintiff, an undischarged bankrupt, sued the defendant for defamation, seeking damages of $325,000 and a permanent mandatory injunction. The defendant applied for an order that the plaintiff pay security for costs, which was opposed by the plaintiff. The plaintiff's impecuniosity and history of bringing unmeritorious arguments before the court were considered in the court's decision. The court found that the defendant was entitled to have her application for security determined, and that a denial of security would be oppressive to her. The court ordered the plaintiff to give security for costs in the amount of $16,500, and granted leave to the defendant to apply for further security for costs if the matter progressed beyond the procedural step identified in her application. The claim was stayed until such time as security was given, and leave was granted to the plaintiff to bring an application for variation of these orders in the event a grant of legal aid was made in respect of the proceedings.

The court's decision was based on a number of factors, including the plaintiff's impecuniosity, the co-incidence in timing between the initiation of these proceedings and assistance by the defendant to the Official Assignee, and the plaintiff's history of bringing unmeritorious arguments before the court. The court also considered the defendant's entitlement to have her application for security determined, particularly in the context of two previous adjournments and the plaintiff's failure to adhere to the orders made by Toogood J on 20 October 2015. The court's decision was also influenced by the fact that the plaintiff had some history of bringing unmeritorious arguments before the court, as detailed in the defendant's affidavit. The court found that a denial of security would be oppressive to the defendant, and that the plaintiff's impecuniosity and history of bringing unmeritorious arguments before the court warranted the grant of security for costs. The court ordered the plaintiff to give security for costs in the amount of $16,500, and granted leave to the defendant to apply for further security for costs if the matter progressed beyond the procedural step identified in her application. The claim was stayed until such time as security was given, and leave was granted to the plaintiff to bring an application for variation of these orders in the event a grant of legal aid was made in respect of the proceedings.

Orders