Sellman v Slater - [2019] NZHC 1666

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1312

[2019] NZHC 1666

BETWEEN
JOHN DOUGLAS SELLMAN

First Plaintiff

BOYD ANTHONY SWINBURN
Second Plaintiff

SHANE KAWENATA FREDERICK BRADBROOK

Third Plaintiff

AND

CAMERON JOHN SLATER

First Defendant

Cont’d …/2

Teleconference: 3 July 2019

Appearances:

J P Cundy for the Plaintiffs

B P Henry for the first defendant
E J Grove for the second and third defendants
J W S Baigent and W Akel for the fourth and fifth defendants

Judgment:

17 July 2019

JUDGMENT NO 8 OF PALMER J

This judgment is delivered by me on 17 July 2019 at 12 noon
pursuant to r 11.5 of the High Court Rules.

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

Counsel/Solicitors:
Lee Salmon Long, Auckland
B P Henry, Barrister, Auckland
Shanahans Law Ltd, New Lynn, Auckland Chris Patterson Barrister Ltd, Auckland Andrew Walter Graham & Co, Auckland William Akel, Barrister, Auckland Simpson Grierson, Auckland

SELLMAN v SLATER [2019] NZHC 1666 [17 July 2019]

CIV-2016-404-1312

… /2

CARRICK    DOUGLAS    MONTROSE GRAHAM
Second Defendant
FACILITATE        COMMUNICATIONS LIMITED
Third Defendant
KATHERINE RICH
Fourth Defendant
NEW      ZEALAND      FOOD     AND GROCERY COUNCIL INC
Fifth Defendant

Summary

[1] In this proceeding, three medical professionals sue Mr Cameron Slater, and other defendants, for defamation. In an interlocutory judgment of 23 November 2018, I ordered Mr Slater to provide further particular discovery and to attend court to be orally examined. Since then, Mr Henry, for Mr Slater, has: applied for a temporary stay on the basis Mr Slater’s medical condition prevented him giving instructions; foreshadowed an intention to apply for appointment of a litigation guardian; advised of Mr Slater’s bankruptcy; and advised that he has instructions to oppose new applications but that Mr Slater no longer defends the substantive proceeding.

[2] The plaintiffs have applied for orders that Mr Slater comply with the court orders for discovery and oral examination or be held in contempt of court. Mr Henry now submits, on Mr Slater’s instructions, that Mr Slater is no longer a party to the proceeding or able to engage a solicitor, because he is bankrupt, and he seeks a formal hearing on that issue. Mr Henry also says there are medical reports from February 2019 confirming Mr Slater is unable to give evidence in court.

[3] On 20 March 2019, I ordered this proceeding to continue against Mr Slater despite his bankruptcy, under a wide discretion in s 76(2) of the Insolvency Act 2006 (the Act). I consider an implicit term of that order is that Mr Slater must comply with the orders made against him in the proceeding, which was one of the reasons why the plaintiffs sought continuation of the proceeding. If that was not sufficiently implicit, I now make it explicit under that discretion and/or under the inherent jurisdiction of the High Court to supervise proceedings before it. That means Mr Slater must comply with the court orders irrespective of Mr Henry’s argument about the effect of his bankruptcy. Further…

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 Sellman v Slater

Details

AGLC: Sellman v Slater [2019] NZHC 1666
Case: [2019] NZHC 1666
Decision Date: 17 July 2019

CaseChat Overview and Summary

This proceeding involves a defamation action brought by three medical professionals against Mr Cameron Slater and others. Mr Slater is alleged to have defamed the plaintiffs in blog posts and comments on his Whale Oil website. The case has a complex procedural history, including interlocutory applications and orders for discovery and oral examination. Mr Slater has argued that his medical condition prevents him from complying with these orders, and has sought to stay the proceeding and apply for a litigation guardian. Recently, Mr Slater has also become bankrupt, which his counsel argued should halt the proceeding against him. The plaintiffs applied for orders compelling Mr Slater to comply with the court’s orders or be held in contempt of court. The court considered whether Mr Slater’s bankruptcy meant he no longer needed to comply with the court’s orders. The court found that Mr Slater’s bankruptcy did not exempt him from complying with the court’s orders. The court ordered that Mr Slater must comply with the orders personally if the Official Assignee cannot do so through the exercise of their powers over Mr Slater’s property. The court also considered Mr Slater’s medical condition and whether a litigation guardian should be appointed. The court assumed Mr Slater was not currently incapacitated but noted if his counsel informed the court that he was incapacitated, it would consider appointing a litigation guardian. Finally, the court considered Mr Slater’s representation and declined to grant his counsel leave to withdraw from the proceeding. The court will hear the plaintiffs’ application to compel compliance or sanction for contempt on 26 July 2019.

Orders