Sellman v Slater - [2016] NZHC 2415

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001312 [2016] NZHC 2415

UNDER the Defamation Act 1992

BETWEEN

JOHN DOUGLAS SELLMAN First Plaintiff

BOYD ANTHONY SWINBURN Second Plaintiff

SHANE KAWENATA FREDERICK BRADBROOK

Third Plaintiff

AND

CAMERON JOHN SLATER First Defendant

CARRICK DOUGLAS MONTROSE GRAHAM

Second Defendant

… cont

Hearing: 5 October 2016

Appearances:

D M Salmon and D Nilsson for Plaintiffs
B P Henry for First Defendant
E J Grove for Second Defendant
W Akel for Proposed Fourth and Fifth Defendants

Judgment:

11 October 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 11 October 2016 at 11 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:
Lee Salmon Long, Auckland
B P Henry, Barrister, Auckland
E J Grove, Barrister, Auckland
Simpson Grierson, Auckland

SELLMAN & ORS v SLATER & ORS [2016] NZHC 2415 [11 October 2016]

FACILITATE COMMUNICATIONS LIMITED
Third Defendant
KATHERINE RICH Fourth Defendant
NEW ZEALAND FOOD & GROCERY COUNCIL INCORPORATED
Fifth Defendant

Summary

[1] The three plaintiffs are suing three defendants for defamation. They seek to join two more defendants. New Zealand courts take a liberal approach to joinder. Plaintiffs can generally bring proceedings against all the defendants they wish to sue in relation to the same matters and defendants can apply to strike out proceedings if they wish. I consider the general rule should apply here. The effective administration of this proceeding requires joinder of the proposed two additional defendants. I order accordingly.

Facts

The parties

[2] The plaintiffs, Dr John Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook are medical professionals. They have brought defamation proceedings against Mr Cameron Slater the first defendant, Mr Carrick Graham the second defendant and Facilitate Communications Ltd (FCL) the third defendant.

The claims

[3] An Amended Statement of Claim was filed on 3 August 2016. In it the plaintiffs say that, from 2009 onwards, Mr Slater and Mr Graham published defamatory blog posts and user comments about them on the Whale Oil website. They say Mr Graham was acting on behalf of, and as agent for, FCL. They also say Mr Graham and FCL were paid by Ms Katherine Rich and the New Zealand Food and Grocery Council Inc (FGC), named as the fourth and fifth defendants, to publish the blog posts and comments. The plaintiffs seek general damages and aggravated or punitive damages from the defendants for forty one causes of action.

The proposed joinder of Ms Rich and the FGC

[4] On 12 September 2016, by memorandum of counsel, the plaintiffs sought an order confirming Ms Rich and the FGC were properly added as defendants to the proceedings under r 4.56 of the High Court Rules.

[5] In a memorandum of 13 September 2016 Mr Akel, for Ms Rich and the FGC, pointed out that no formal application for joinder had been made and that the
3 August 2016 Amended Statement of Claim is of no effect until such an order is made. Mr Akel…

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: [2016] NZHC 2415
Decision Date: 11 October 2016

CaseChat Overview and Summary

In the case of Sellman v Slater, the plaintiffs, medical professionals Dr John Sellman, Dr Boyd Swinburn, and Mr Shane Bradbrook, brought defamation proceedings against Mr Cameron Slater, Mr Carrick Graham, and Facilitate Communications Ltd (FCL). They sought to join two additional defendants, Ms Katherine Rich and the New Zealand Food and Grocery Council Inc (FGC). The New Zealand courts adopt a liberal approach to joinder, allowing plaintiffs to sue multiple defendants related to the same subject matter. The court considered whether the effective administration of the proceeding required joinder of the proposed defendants.

The court examined the legal issues surrounding the joinder of the additional defendants. Rule 4.56 of the High Court Rules allows for the addition of parties if their presence is necessary to adjudicate on and settle all questions in the proceeding. The plaintiffs argued that joinder was necessary to avoid shadow litigation and potential prejudice, while the proposed defendants argued that the joinder would be prejudicial and that the proposed cause of action was novel. The court weighed the merits of joinder against the potential prejudice to the proposed defendants.

The court determined that the effective administration of the proceeding required joinder of Ms Rich and FGC as defendants. The interests of all defendants were closely aligned, and separate proceedings would be undesirable. The court found that no useful purpose would be served by further argument on the matter, and the general rule of joinder should apply. The court ordered that Ms Rich and FGC be joined as fourth and fifth defendants, and the Amended Statement of Claim was deemed valid.

The court also directed the parties to submit a joint memorandum proposing a timetable for the proceeding, including a conference under the Defamation Act 1992, a deadline for filing interlocutory applications, a close of pleadings date, and any other useful steps.

Orders