Smith v Black
[2025] NZHC 1493
•9 June 2025
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 dated 28 June 2023 that stated:
2 Matthew Casey and others Sim’s Court Practice (online ed, LexisNexis) at [60.6], citing Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346–347; Snee v Snee (1999) 13 PRNZ 609 (CA) at [15]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
The application so far as it relates to perjury is one that should be dealt with by way of private prosecution under s 26 of the Criminal Procedure Act 2011.
There is no arguable error of law on this ground.
[8] Ms Black also notes that Ms Smith was in 2023 put on notice by Judge Tuohy of the procedural and substantive difficulties of her claim, the costs implications and Judge Tuohy suggested that legal advice should be taken before they proceeded further.3
[9] In terms of factual errors, Ms Smith alleges that I erred by addressing four allegedly defamatory statements when she has only ever made three distinct allegations,4 namely oral defamation on 24 February 2022, written defamation on 15 September 2022 and perjury and false statements on 20 May 2022. I do not consider there is any appealable error on these grounds. I do not consider it was unreasonable to consider, as part of Ms Smith’s allegations, the 28 February 2022 email to counsel for the child that recorded Ms Black’s account of the 24 February 2022 incident involving the alleged oral defamation. Nor do I consider it unreasonable to have assessed whether the 20 May 2022 email from Ms Black to counsel for the child was capable of being defamatory when it is alleged to have been a false statement that damaged Ms Smith’s reputation.5 Further, any error is inconsequential, as including statements that were not in fact alleged to be defamatory could not have impacted on the tenability of the statements that were allegedly defamatory.
[10] I also accept Ms Black’s submissions that Ms Smith’s private interests in the outcome of this case do not have sufficient importance to outweigh the cost and delay of the further appeal.
[11] I therefore conclude that Ms Smith has not raised a question of law or fact capable of bona fide and serious argument involving some interest of sufficient importance to outweigh the cost and delay of a further appeal.
3 Direction of Judge Tuohy in the Hutt Valley District Court, 11 July 2023.
4 Substantive judgment, above n 1, at [6]–[7].
5 Ms Smith acknowledged in oral submissions that she alleges that the purportedly false statement lowered her reputation. She could not satisfactorily explain why, in those circumstances, she disavows any allegation of defamation in respect of it.
[12]Accordingly, the application for leave to appeal is declined.
Costs
[13] I ordered 2B costs in the sum of $12,960 on the substantive appeal. I further ordered that the $9,560 in security for costs paid by Ms Smith be released to the respondent and that Ms Smith is to pay the respondent the balance of the costs order, being $3,346. I have been informed that that balance has not been paid, nor has the costs award in the District Court, which means the current total of outstanding costs is
$10,896.
[14] Ms Black has filed a memorandum indicating that her actual costs on the application for leave to appeal ($5,511.50) are less than costs calculated on a 2B basis ($5,616.50). I consider there is no basis for departing from the principle that costs should follow the event. I therefore order that Ms Smith pay Ms Black’s costs on this application for leave to appeal in the sum of $5,511.50 (in addition to the costs that remain outstanding).
La Hood J
Solicitors:
Wotton Kearney, Wellington for Respondent