Sellman v Slater - [2019] NZHC 467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1312

[2019] NZHC 467

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

Cont’d …/2

Hearing: On the papers

Counsel

J P Cundy for the Plaintiffs

B P Henry and S S Singh for the First Defendant E J Grove for the Second and Third Defendants

W Akel and J W S Baigent for Fourth and Fifth Defendants

Judgment:

18 March 2019

JUDGMENT No 7 OF PALMER J

[Costs]

This judgment is delivered by me on 18 March 2019 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Counsel/Solicitors:

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

Lee Salmon Long, Auckland (plaintiffs)
Brian Henry, Barrister, Auckland (1st defendant)
Shanahans Law Ltd, New Lynn, Auckland (1st defendant) Chris Patterson Barrister Ltd, Auckland (2nd & 3rd defendants) Andrew Walter Graham & Co, Auckland (2nd & 3rd defendants) William Akel, Barrister, Auckland (4th & 5th defendants) Simpson Grierson, Auckland (4th & 5th defendants)

SELLMAN v SLATER NO 7 [2019] NZHC 467 [18 March 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

November 2018 interlocutory judgment

[1] On 23 November 2018, I issued judgment no 6 in this proceeding, on interlocutory issues.1 The summary was:

[1] Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook sue Mr Cameron Slater, Mr Carrick Graham and Mr Graham’s company Facilitate Communications Ltd (FCL) for defamation and Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for procuring defamation. In this judgment I determine a second set of interlocutory applications:

(a)I decline Mr Slater’s application to exclude hacked documents obtained by the plaintiffs from Mr Nicky Hager at this stage of the proceeding because the evidence does not satisfy me they are inauthentic and they appear relevant to the applications about discovery.

(b)I grant a narrower version of the plaintiffs’ applications for particular discovery by Mr Slater, Mr Graham and FCL because there are grounds for believing they have not discovered relevant documents but the original applications were too broadly framed.

(c)I grant the plaintiffs’ applications for particular discovery by Mrs Rich and the NZFGC but only to a limited extent, for the avoidance of doubt and for updating purposes.

(d)I decline Mrs Rich’s and the NZFGC’s application for particular discovery by the plaintiffs because:

(i)The court’s ability to strike out a proceeding for abuse of process is not a parameter for discovery for the purposes of its trial.

(ii)Defamation law presumes a defamatory statement damages a plaintiff’s reputation in the eyes of those who may read it. The presumption cannot be rebutted by evidence of lack of consequences of harm to the plaintiff’s reputation in the eyes of groups of people who may or may…

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 467
Case: [2019] NZHC 467
Decision Date: 18 March 2019

CaseChat Overview and Summary

This proceeding is an interlocutory application for costs between Dr Doug Sellman, Dr Boyd Swinburn, Mr Shane Bradbrook, Mr Cameron Slater, Mr Carrick Graham, Facilitate Communications Ltd, Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd. The court must decide what costs, if any, are to be awarded to the plaintiffs in relation to the interlocutory applications heard on 23 November 2018. The plaintiffs seek costs of their successful applications and costs of the unsuccessful applications of Mr Slater, Mrs Rich and the NZFGC. Mr Henry, counsel for Mr Slater, submits that a hearing would not have been necessary if the scope of the discovery orders sought had been limited to those ultimately granted against Mr Slater. He submits costs should be reserved until the outcome of the oral examination of Mr Slater is determined. Mr Grove, counsel for Mr Graham and FCL, does not oppose an award of costs in favour of the plaintiffs for their applications against them. Mr Akel, counsel for Mrs Rich and the NZFGC, submits costs should lie where they fall between them and the plaintiffs. The court considered that the plaintiffs succeeded substantially or completely in relation to four of the five issues: three applications in relation to Mr Slater; two applications in relation to Mr Graham and/or FCL; and one application in relation to Mrs Rich and the NZFGC. They succeeded only to a limited extent in relation to one issue and application relating to Mrs Rich and the NZFGC. The court awarded costs, as sought, to the plaintiffs, to be borne: 50 per cent by Mr Slater; 33 per cent by Mr Graham and FCL; and 17 per cent by Mrs Rich and the NZFGC.

The court orders that the plaintiffs recover 50 per cent of their costs from Mr Slater; 33 per cent of their costs from Mr Graham and Facilitate Communications Ltd; and 17 per cent of their costs from Mrs Rich and the NZFGC. The plaintiffs are to file a costs memorandum no later than 10 working days from the date of this judgment. The memorandum is to include submissions about the effect of bankruptcy on costs.

Orders