Sellman v Slater - [2018] NZHC 58

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1312 [2018] NZHC 58

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

Hearing: On the papers

Appearances:

E D Nilsson and J P Cundy for Plaintiffs
B P Henry and C S L Foster for First Defendant
C T Patterson and E J Grove for Second and Third Defendants
W Akel and J W S Baigent for Fourth and Fifth Defendants

Judgment:

7 February 2018

JUDGMENT NO 5 OF PALMER J

This judgment is delivered by me on 7 February 2018 1.00 pm pursuant to r 11.5 of the High Court Rules

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

Counsel/Solicitors:
Lee Salmon Long, Auckland
B P Henry, Barrister, Auckland C T Patterson & E J Grove, Barrister, Auckland
Andrew Walter Graham & Co, Auckland Simpson Grierson, Auckland

SELLMAN & ORS v SLATER & ORS NO 5 – COSTS [2018] NZHC 58 [7 February 2018]

Cont …

CARRICK DOUGLAS MONTROSE GRAHAM
Second Defendant

FACILITATE COMMUNICATIONS LIMITED
Third Defendant

KATHERINE RICH Fourth Defendant

NEW ZEALAND FOOD AND GROCERY COUNCIL INC
Fifth Defendant

The substantive interlocutory judgment

[1] My interlocutory judgment of 2 October 2017 dealt with various applications by the defendants and plaintiffs.1 The formal outcomes were:2

(a) the defendants’ applications to strike out the claims as being time- barred were all declined;

(b)the defendants’ applications to strike out the claims as an abuse of process were all declined but a minimum threshold of harm to reputation was applied to the meanings pleaded;

(c) 21 of the 159 pleaded defamatory meanings were struck out in whole or part (12 of the 129 defamatory meanings pleaded against the first defendant and 21 of the 159 meanings pleaded against the second and third defendants);3

(d)the fourth and fifth defendants’ application to strike out the claim against them because it was speculative or false or incapable of founding legal liability was declined;

(e) the defendants’ applications to strike out the ss 39 and 41 notices were declined; and

(f) the plaintiffs’ applications to strike out the first defendant’s affirmative defence and requiring him to give particulars were declined as was the plaintiffs’ application to recall the latter of these decisions.4

[2] At the end of the judgment, I stated:5

1      Sellman v Slater [2017] NZHC 2392.
2      At [2]–[5], [120], [122].
3      The judgment suggested (e.g. at [4]) there were 161 pleaded meanings which was an error.
4      Minute No 8 of 10 October 2017.
5 At [126].

I am inclined to let costs lie where they fall, since each party has had a measure of success. If, despite that indication, any party wishes to apply for costs, they have leave to file submissions within 15 working days and any responses are to be filed within 10 working days of that.

Submissions

Plaintiffs

[3] The plaintiffs submit they were…

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 [2018] NZHC 58
Case: [2018] NZHC 58
Decision Date: 7 February 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Sellman v Slater was heard by Palmer J. The plaintiffs, John Douglas Sellman, Boyd Anthony Swinburn, and Shane Kawenata Frederick Bradbrook, sought damages for defamation against the defendants, Cameron John Slater, Carrick Douglas Montrose Graham, Facilitate Communications Limited, Katherine Rich, and the New Zealand Food and Grocery Council Inc. The plaintiffs argued that the defendants made defamatory statements about them. The defendants filed various applications to strike out the claims, which were denied by the court. The court also struck out certain defamatory meanings pleaded by the plaintiffs but allowed others to proceed. The plaintiffs sought costs for the applications, arguing that they were largely successful, while the defendants argued that costs should lie where they fell as each party had some measure of success.

The court considered the issue of costs and whether they should follow the event, i.e., whether the losing party should pay the winning party's costs. The court noted that determining who had won and lost in relation to the applications was not straightforward. However, the court concluded that the plaintiffs had enjoyed substantive success overall, although they had to replead. The court considered the relative success and failure of the applications to strike out the proceeding and calculated the costs accordingly. The court awarded costs to the plaintiffs in respect of certain aspects of the applications on a 2B basis, meaning the losing party pays the winning party's costs on an indemnity basis. The court also considered the element of duplication in the plaintiffs' response to the applications by the first defendant and the second and third defendants and discounted the awards accordingly. The court concluded that the somewhat complex calculations of costs reflected a fair measure of the success of the plaintiffs regarding the applications dealt with in the judgment.

Orders