Smallbone v London - [2017] NZHC 1223

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 Defendant

Judgment:

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…

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 Smallbone v London

Details

AGLC: Smallbone v London [2017] NZHC 1223
Case: [2017] NZHC 1223
Decision Date: 7 June 2017

CaseChat Overview and Summary

In the case of Lindsay James Trevor Smallbone v George Paul London, the court had to decide whether the plaintiff's defamation proceeding should be struck out for want of prosecution. The defendants argued that the plaintiff had not taken any steps in the matter for 13 months, relying on section 50 of the Defamation Act 1992. The plaintiff, on the other hand, explained the delay as a result of insufficient finances to further prosecute the matter after the appeal process. The court had to balance the interests of both parties and determine whether the delay was justified or if the proceeding should be struck out.

The court considered the purpose of section 50, which is to weed out defamation claims that are not being pursued genuinely. It was noted that the plaintiff had diligently pursued his proceeding through trial and appeal, and the delay was only minor. However, the defendants were entitled to point out the loss of witnesses, their own poor health, and the impact of time delay on witness memory in a 'he said/she said' case. The court ultimately decided that despite the lapse of time, fading memory, the loss of peripheral witnesses, and the Londons' health issues, it was appropriate to make an exception to the rule in s 50. The plaintiff was directed to file a proposed, brisk timetable for the retrial within five working days of the judgment.

The application to strike out this proceeding was dismissed. The application to discharge the extant injunction against further sales of the book in question was also dismissed. While Mr Smallbone had been successful in staving off strike-out, the court was not minded to award him costs in light of his delay. Costs would lie where they fell.

Orders