Smith v Black - [2025] NZHC 1493

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000210

[2025] NZHC 1493

IN THE MATTER OF an application for leave to appeal

BETWEEN

SARAH SMITH

Applicant

AND

JENNIFER BLACK

Respondent

Hearing: 27 May 2025 (via VMR)

Counsel:

Applicant in person

E C Copeland for Respondent

Judgment:

9 June 2025

JUDGMENT OF LA HOOD J

(Application for leave to appeal)

[1] Ms Smith seeks leave to appeal my decision of 28 November 2024 dismissing her appeal against the District Court’s decision striking out her claim of defamation against Ms Black.1

[2] Ms Black submits that Ms Smith’s application should be declined because she has failed to raise any meritorious ground for leave to be granted.

1 Smith v Black [2024] NZHC 3598 [Substantive judgment]. I have adopted fictitious names to protect the identity of the child.

SMITH v BLACK [2025] NZHC 1493 [9 June 2025]

[3] I do not intend to repeat the background to these proceedings already set out in my substantive judgment.

Applicable legal principles

[4] Although s 60 of the Senior Courts Act 2016 does not prescribe grounds for obtaining leave to appeal, it is well established that an applicant for leave must show that the proposed appeal would raise some question of law or fact capable of bona fide and serious argument in a case involving some interests, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. Not every alleged error of law is sufficiently important, either generally or to the parties, to justify further pursuit of litigation already twice considered and ruled on by a Court.2

Decision

[5] I accept Ms Black’s submission that Ms Smith’s grounds for seeking leave to appeal are effectively a repetition of her case on the substantive appeal. Those grounds have been considered at length in substantive hearings before the District Court and the High Court and her claim has been struck out on both occasions.

[6] I accept Ms Black’s submission that Ms Smith’s claims are untenable. As I held in the substantive appeal, the statements cannot be given the defamatory meaning attributed to them by Ms Smith. Moreover, the defences of absolute or qualified privilege are unanswerable in respect of any statement that is capable of bearing a defamatory meaning.

[7] In terms of any alleged error of law, Ms Smith emphasises that the case was not just about defamation but perjury, and that both the District Court and High Court have failed to address the issue of perjury. I accept Ms Black’s submission that these are civil proceedings alleging defamation and are not the appropriate forum for making criminal findings of perjury. Ms Black put Ms Smith on notice of this in the District Court by a notice of opposition…

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 Smith v Black

Details

AGLC: Smith v Black [2025] NZHC 1493
Case: [2025] NZHC 1493
Decision Date: 9 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand Wellington Registry, Sarah Smith applied for leave to appeal the decision of La Hood J, who dismissed her appeal against the District Court's decision to strike out her defamation claim against Jennifer Black. The application was heard on 27 May 2025 via VMR, and the judgment was delivered on 9 June 2025. Sarah Smith, the applicant, appeared in person, while E C Copeland represented the respondent, Jennifer Black.

The legal issues before the court were whether the applicant had raised a question of law or fact capable of bona fide and serious argument that involved interests of sufficient importance to outweigh the costs and delays of a further appeal. The court also considered whether the applicant's claims were tenable and if there were any errors of law or fact that warranted an appeal.

La Hood J concluded that the applicant's grounds for seeking leave to appeal were effectively a repetition of her case on the substantive appeal, which had already been considered and ruled on by both the District Court and the High Court. The court found that the applicant's claims were untenable, as the statements in question could not be given the defamatory meaning attributed to them by the applicant. Furthermore, the defences of absolute or qualified privilege were unanswerable in respect of any statement that was capable of bearing a defamatory meaning. The court also rejected the applicant's argument that the proceedings should have addressed the issue of perjury, as the case was a civil proceeding alleging defamation, not a criminal matter. The court found that any alleged error of law or fact did not warrant an appeal, as the inclusion of additional statements did not impact the tenability of the allegedly defamatory statements.

The court declined the application for leave to appeal, finding that the applicant had not raised a question of law or fact capable of bona fide and serious argument involving some interest of sufficient importance to outweigh the costs and delays of a further appeal. The court also ordered the applicant to pay the respondent's costs on the application for leave to appeal, in addition to the outstanding costs from the substantive appeal.

Orders