Smallbone v London
[2017] NZHC 1223
•7 June 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-482 [2017] NZHC 1223
BETWEEN LINDSAY JAMES TREVOR
SMALLBONE Plaintiff
AND
GEORGE PAUL LONDON First Defendant
IAN NEVILLE WISHART Second Defendant
HOWLING AT THE MOON PUBLISHING LIMITED Third Defendant
PAULETTE MERLE LONDON Fourth Defendant
Hearing: 31 May 2017 Counsel:
P A McKnight for Plaintiff
C J Tennet for First and Fourth Defendants
I N Wishart for Third DefendantJudgment:
7 June 2017
JUDGMENT OF WILLIAMS J
[1] This is an application by the defendants (except the third defendant although that seems to be an oversight) to strike-out the plaintiff’s defamation proceeding because he had not taken steps in it for 13 months by the time the defendants’ applications were filed.
[2] The defendants rely on s 50 of the Defamation Act 1992 to which I will return below.
SMALLBONE v LONDON & ORS [2017] NZHC 1223 [7 June 2017]
[3] There is also an application to discharge the extant injunction preventing further sales of the book in question, but the prospects for that application depend on the success of the strike-out so there is no need to address its merits further.
[4] The procedural history of this litigation is lengthy and has been rehearsed several times in judgments over its course. For present purposes I need only repeat the bare bones of the matter.
[5] In a jury trial before me in 2013, Mr Smallbone met with success in his defamation action against the defendants. The action related to a book about him entitled “The Hunt”. The book described Mr Smallbone as sexually abusive towards Mrs London, his then wife. The jury upheld the claim and awarded Mr Smallbone
$220,000 in general damages and $50,000 in aggravated damages.
[6] On receipt of the verdict, I entered judgment accordingly, but subsequently recalled it in light of r 11.15. I gave the defendants an opportunity to apply to set the verdict aside and/or to revisit quantum. Before the applications could be finalised, the defendants sought an order admitting the affidavit evidence of a new witness, witness Z. This was evidence directed at corroborating the sex abuse evidence of Mrs London, which evidence the jury plainly disbelieved.
[7] In a judgment on 23 April 2014, I set aside the jury’s verdict and ordered a new trial. My judgment focused entirely on the potential effect of witness Z’s evidence.
[8] Mr Smallbone appealed to the Court of Appeal.1 The appeal was dismissed in a judgment dated 26 August 2015. Mr Smallbone then sought leave to appeal to the Supreme Court, and, in a judgment dated 17 December 2015, that application was dismissed.2
[9] Mr Smallbone took no further steps in the matter from the date of that judgment until 20 February this year: the date upon which he filed his notice of
opposition to the defendants’ application and supporting affidavit.
1 Smallbone v London [2015] NZCA 391, (2015) 22 PRNZ 768.
2 Smallbone v London [2015] NZSC 192.
[10] Section 50 of the Act is a want of prosecution provision. It provides as follows:
50 Striking out for want of prosecution
(1) In any proceedings for defamation, unless the court in its discretion orders otherwise, the court shall, on the application of the defendant, order the proceedings to be struck out for want of prosecution if—
(a) no date has been fixed for the trial of the proceedings; and
(b) no other step has been taken in the proceedings within the period of 12 months immediately preceding the date of the defendant’s application.
(2) Where any proceedings are struck out under subsection (1), no further proceedings may be commenced by the plaintiff against any defendant in the proceedings in respect of the same or substantially the same cause of action, except by the leave of the court in which it is sought to commence those proceedings.
(3) Notice of an application for leave under subsection (2) to commence any proceedings for defamation shall be given by the applicant to every person against whom the proceedings are to be commenced.
(4) Nothing in this section limits any other power of a court to order any proceedings to be struck out for want of prosecution.
[11] McGechan J in Mountain Rock Productions Ltd v Wellington Newspapers Ltd
described the s 50 discretion in terms that cannot be improved upon:3
Clearly … there is an onus upon a plaintiff to satisfy the Court the proceeding should not be struck out. The burden involved should not be exaggerated. The section does not impose an express threshold requirement in the nature of “special circumstances” or the like.
[12] It is sufficient, the Judge continued if the reason given for failure to prosecute
is “adequate”. It need not be “compelling”.4
[13] As to the section’s purpose, the Judge noted:5
This is a defamation provision, not a general provision. There has always been a problem in the defamation area with so-called “gagging” writs, hurriedly issued with a view to stifling discussion while an embarrassing point remains topical, then allowed to drift inactive for years to an ultimate
3 Mountain Rock Productions Ltd v Wellington Newspapers Ltd [1997] 3 NZLR 31 (HC) at 38.
4 At 39.
5 At 39. Note s 45, which is not relevant here, declares vexatious any proceedings if at the point of commencement, there is no intention to pursue the matter to trial.
abandonment. Traditional processes for striking out for want of prosecution have proved inadequate. The optimistic enactment of s 45 is not likely to provide any better solution in practice, given problems of proof. I think it is likely s 50 was intended in large part to assist in sorting out proceedings genuinely pursued, albeit temporarily delayed, from those of a gagging character and those where second thoughts have developed. In that light, s 50 should be implemented in a manner which allows cases still genuinely pursued, applying any necessary case management disciplines to expedite, but disposes of cases which are or have become a mere facade.
[14] Interestingly, in that case, the Judge considered that while the delay was not excusable, it was not remarkably long at only two months beyond the 12 month deadline. “Significantly”, the Judge said:6
… it was the plaintiff who ultimately revived proceedings with the memorandum and request to Registrar filed 19 July 1996. It was not the all too familiar situation of sudden action on the part of a plaintiff bestirred by a defendant’s application to strike-out or equivalent.
[15] Section 50 was enacted following the report, Recommendations on the Law of Defamation by the Committee on Defamation in 1977 – generally called the McKay Committee Report. The committee briefly and succinctly outlined its objective in recommending what would eventually become s 50:7
We consider that where no step in the action has been taken by either party for 1 year, the defendant should ordinarily be entitled to have the action dismissed. Judges are generally reluctant to dismiss actions because of delay and we can see some advantage in fixing a period after which a plaintiff must show some adequate reason to justify an exception being made. That plaintiff who is really concerned at an injury to his reputation will not be dilatory.
[16] In this case, the argument for the applicants is that the delay has practical prejudicial implications for them. Some witnesses have passed away. Another cannot now be found. And in the interim since the last step was taken in this matter, Mr and Mrs London have suffered significant health problems, details of which were provided by affidavit but need not be rehearsed here.
[17] The essence of the applicants’ argument is that it is now no longer possible to justly try this matter. Time has now corroded the integrity of the case the applicants
6 At p 39.
7 Committee on Defamation Recommendations on the Law of Defamation (December 1977) at
[479].
would wish to mount in their defence. Mr Wishart, in the same vein, emphasised the fact that the book related to events in the 1960s and 70s. All of the witnesses will be exposed to “memory fade”, now even more than was the case in 2013. Mr Wishart pointed to the phenomenon as it affected both Mr Smallbone and Mrs London during the course of the first trial. It would, he submitted, only get worse given the delay to which Mr Smallbone’s inaction has been a significant contributor.
[18] Further, Mr Wishart suggests that Mr Smallbone has been occupied in the intervening period with trying to dissuade witness Z from giving evidence. He appended to one of his affidavits an email from witness Z giving some detail about these alleged efforts. Mr Wishart submits this is inappropriate and should not be supported by allowing the proceeding to continue.
[19] Mr Smallbone explains the delay in terms of insufficient finances to this point to further prosecute the matter in light of the resources already expended through the appeal process. He indicates that it is his intention to continue with the litigation and that he now has funds in hand to do so. Mr McKnight says the proof of that is in the fact that he is appearing as counsel and is prepared to commit to an expedited timetable.
[20] Mr Wishart, by reference to various Facebook posts of organisations with which Mr Smallbone is connected, challenges the veracity of the claim to impecuniosity. He says Mr Smallbone has been travelling extensively while engaging in his (implicitly expensive) love of polo. He says either Mr Smallbone wanted time to persuade witness Z to stay out of the proceeding, or he had just run out of steam. Either way there was no good reason to re-enliven the proceeding and every good reason to euthenase it.
[21] Of the multiple authorities cited by the parties, there are few in which the Court was required directly to exercise its s 50 discretion in order to resolve the case before it. Mountain Rock for example, was not such a case although the Judge did discuss the section’s purpose. There McGechan J found that the filing of a memorandum seeking directions was a sufficient action to amount to a step in the proceeding within the preceding 12 months. Thus, the principles expressed in
relation to the exercise of the Court’s s 50 discretion were strictly in obiter. Meanwhile, Master Gendall (as he then was) found in Technic Bitumen Pacific Ltd v Shell New Zealand Ltd that s 50 had no application because a step had been taken.8
This finding was not disturbed on review before Goddard J.9 And Woodroffe v
Television New Zealand Ltd (No. 1)10 and Woodroffe v Television New Zealand Ltd (No. 2)11 applied the provisions of rr 426A and 478 of the then applicable High Court Rules not s 50.
[22] Two decisions have applied s 50, but each of them in a proportionately summary way given the undeserving factual background in each case. In Travers v Television New Zealand Ltd, the plaintiff was inactive for two years following an order to pay security for costs in the sum of $20,000 which had not been complied
with.12 The Court readily found that this was sufficient to satisfy the requirements of
s 50 without the need for close analysis of the section’s terms. Venning J took a similar line in New Times Media Ltd v Chinese Herald Ltd.13 This related to defamation proceedings in which (without explanation or excuse), the plaintiff had taken no steps for nearly two years. Unsurprisingly these facts were found to satisfy the requirements of s 50.
[23] For completeness, I note that Mr Wishart referred me to a number of Australian authorities in relation to limitation legislation of general application,14 but I consider the limitations analogy to be inapt. The power to strike-out a claim mid- proceeding is different in character and purpose to a restriction relating to the late commencement of proceedings. The Court’s universally strict approach to the latter does not necessarily apply to the Court’s discretion in relation to the former.
[24] Mountain Rock and the McKay Committee Report lead me inevitably to the conclusion that 12 months’ inaction in a defamation proceeding will mean a
8 Technic Bitumen Pacific Ltd v Shell New Zealand Ltd HC Wellington CP192/99, 23 May 2003.
9 Technic Bitumen Pacific Ltd v Shell New Zealand Ltd HC Wellington CIV-1999-485-54, CP192/99, 11 November 2003.
10 Woodroffe v Television New Zealand Ltd (No. 1) HC Wellington CP656/93, 18 August 1998.
11 Woodroffe v Television New Zealand Ltd (No. 2) HC Auckland CP656/93, 15 December 2000.
12 Travers v Television New Zealand Ltd (2001) 15 PRNZ 530 (HC).
13 New Times Media Ltd v Chinese Herald Ltd HC Auckland CIV-2001-404-2027, 10 August 2006.
14 For example, Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186
CLR 541.
proceeding will be struck out unless there is a good or adequate reason to make an exception to that rule. That does not mean that the reason must be exceptional or compelling. All that is required as a good reason to depart from the rule. It is for the plaintiff to make the case.
[25] Mr McKnight frankly, and rightly in my view, accepted that Mr Smallbone’s claim of impecuniosity following the exhaustion of his appeal pathways is no adequate excuse in terms of s 50. But, he says, the breach of the 12 month period must be seen in its wider and less problematic context.
[26] The Supreme Court decision on Mr Smallbone’s leave application was handed down on 17 December 2015 and the application to strike-out was filed electronically on 13 January 2017 and received in hard copy on 17 January. This meant, in effect, that Mr Smallbone was 12 working days over the 12 month period in practical terms when the application was filed.15 He could not have filed any documents between 23 December 2016 and 14 January 2017, even if he had wanted to. When this limited breach of the 12 month rule in s 50 is combined with the energy with which Mr Smallbone pursued trial and subsequently appealed,
Mr McKnight’s argument is that this is a case in which it is appropriate to make an exception.
[27] On its face, the argument has some cogency especially when this case is compared with the less deserving s 50 cases I have discussed. In this case, Mr Smallbone diligently pursued his proceeding through trial (including to favourable verdicts) and, when the verdicts were vacated, two levels of appeal. It was only when those avenues had been diligently explored without success that he allowed the matter to slumber for nearly 13 months.
[28] This is, in short, not the sort of hopeless case (for one reason or another) that limps its way through the courts until a judge, in an inevitable act of mercy, puts the
proceeding out of its misery.
15 Mr McKnight claimed the application was filed only five working days after expiry of the
12 months, but this is not correct. He assumed, I expect, that the High Court Registry opened on
13 January, when in fact it reopened on 4 January. Setting the actual dates aside however, the underlying point that the breach of the 12 month rule was relatively minor, still has merit.
[29] On the other hand, the defendants are entitled to point to the loss of witnesses, and their own poor health as well as the impact of time delay on witness memory in a ‘he said/she said’ case. The defendants are right to say that any delay is potentially prejudicial.
[30] I do not however consider that such issues put justice out of reach for the defendants in this case. Although Mr London is unwell, his evidence was not particularly germane. He could say nothing about what went on in the relationship between Mr Smallbone and Paulette London. He was not there.
[31] Mrs London too is unwell, but her ailments, I apprehend, are not so significant as to prevent her from giving evidence in due course. It is not uncommon for mode of evidence directions to be given to assist witnesses under disability to be as comfortable as possible when giving evidence. Appropriate applications are likely to be viewed favourably in this case.
[32] There are also, I accept, defence witnesses who have since passed on or are now unreachable but their evidence does not go to the heart of the case. The case, as it turns out, will still be a straight ‘he said/she said’ contest, but with Mrs London’s evidence potentially significantly assisted by a propensity witness who can speak to her own direct experience of similar treatment at the hands of Mr Smallbone.
[33] Mr Wishart then argues that, in the interim, Mr Smallbone has been trying to get at witness Z to discourage her from giving evidence in support of the defendants. He is doing this indirectly, it is suggested, by putting pressure on people who are close to that witness and may be critical of her choice to give evidence against Mr Smallbone. It is unnecessary to set out the detail of this. If it is true, it reflects very badly on Mr Smallbone.
[34] Given the email exchange with witness Z appended to Mr Wishart’s latest affidavit, that witness will no doubt give evidence of this pressurising behaviour when she enters the witness box. The jury may well be influenced by such evidence. It is also a reason for the defendants to seek an early fixture in this matter. I certainly see nothing in Mr Wishart’s evidence on this point to support the idea that witness Z
is now reluctant due to this indirect pressure. On the contrary, she seems committed to staying the course.
[35] Taking all of these matters into account, I am satisfied by a fine but clear margin that it is appropriate in this case to make an exception to the rule in s 50. Despite the lapse of time, fading memory, the loss of peripheral witnesses and the Londons’ health issues, it is significant that the plaintiff prosecuted his claim with diligence to favourable verdicts and that they were only set aside when new evidence was later unearthed by the defence.
[36] The plaintiff then moved to test that decision on appeal with the same diligence. Given the issues raised about this Court’s jurisdiction to set jury verdicts aside and direct a retrial, those appeals were far from hopeless. They raised novel issues of law that were well arguable. And while lack of money after the Supreme Court decision is, seen alone, no excuse at all, I prefer to see this explanation against the considerable resources the plaintiff must already have expended on the proceeding and the fact that his silence was barely 12 months long.
[37] As the McKay Committee said, s 50 is directed at plaintiffs who are unwilling or unable to prosecute their defamation claims. Plaintiffs may sue for strategic reasons (to gag publication) making a verdict beside the point, or they may simply not be committed to bringing the litigation to trial due to a lack of resources, competence or underlying merit. Section 50 is designed to weed those claims out by placing the onus on plaintiffs to prove that their claim is not of that character.
[38] In the end, and despite his post-appeal inaction, I do not consider that Mr Smallbone is either unwilling or unable to see this litigation to a conclusion within a reasonable timeframe. The overall history of this litigation does not bear that suggestion out.
[39] That said, it is now for Mr Smallbone to demonstrate his energetic commitment to bringing this proceeding to a retrial. Mr Smallbone is directed to file a proposed, and brisk, timetable to that end within five working days of this judgment. If this can be done by consent memorandum all to the good. If consent is
not able to be achieved, then the defendants have a further five working days to file their alternative timetables and I will hold a teleconference if the parties wish to be heard on the matter.
[40] Any significant departure by Mr Smallbone from the timetable once directed, is likely to expose him to costs awards and/or this Court giving favourable consideration to an application under r 15.1 for dismissal or stay.
[41] The application to strike-out this proceeding is dismissed. The application to discharge the extant injunction against further sales of the book in question is also dismissed.
[42] While Mr Smallbone has been successful in staving off strike-out, I am not minded to award him costs in light of his delay. Costs will lie where they fall.
Williams J
Solicitors:
Justice Chambers, Wellington for First and Fourth Defendants
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