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
[2024] NZHC 3598
IN THE MATTER
of an appeal of Reserved Decision of Judge B Davidson
BETWEEN
SARAH SMITH
Appellant
AND
JENNIFER BLACK
Respondent
Hearing:
29 October 2024
Counsel:
Appellant in person
E C Copeland and I R Black for Respondent
Judgment:
28 November 2024
JUDGMENT OF LA HOOD J
Appeal against strike out of a defamation proceeding
[1] Ms Smith says that Ms Black, the principal of her daughter’s primary school, defamed her by making false statements to the police and to a lawyer appointed to represent her daughter in a Family Court dispute relating to the child’s care.
[2] Ms Smith appeals against the District Court decision striking out her defamation proceedings as untenable and an abuse of process.1
1 [Smith] v [Black] [2024] NZDC 4687 [Decision under appeal]. I have adopted fictitious names to protect the identity of the child.
SMITH v BLACK [2024] NZHC 3598 [28 November 2024]
[3] For the reasons that follow, I consider the appeal should be dismissed. In summary, the Judge did not err striking out the claim because:
(a)The statements made to counsel for the child (Rachael Dewar) in February and May 2022 are not capable of bearing a defamatory meaning about Ms Smith.
(b)While it is reasonably arguable that the statement to Ms Dewar in September 2022 may bear a defamatory meaning about Ms Smith by implying that she is not complying with Court orders, an affirmative defence is unanswerable.
(c)The affirmative defence of absolute privilege is unanswerable in respect of disclosure by Ms Black to Ms Dewar about compliance with the child’s care arrangements and the parents’ behaviours in respect of the child.
(d)In any event, the defence of qualified privilege is unanswerable, and the appellant has failed to establish a reasonably arguable basis for a claim of malice.
The allegedly defamatory statements
[4] Ms Smith and, her ex-partner, Mr Jones’s daughter attends primary school. There is an ongoing Family Court dispute over the child’s care arrangements. Ms Dewar was appointed as lawyer for the child.
[5] In early 2022 there was a parenting order in place under which Mr Jones collected the child from school fortnightly on Thursdays and cared for her until the following Monday morning school drop-off.
[6] On 24 February 2022, Mr Jones was scheduled to collect the child from school. The principal and two staff saw the child running away from the school with a woman they say was unknown to them. The principal, out of concern, informed Mr Jones of this (who was waiting at the other gate to the school), and contacted the police saying,
“a woman dragged [the child] and ran away from the school when school finished …”. The child…
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.
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AGLC
Smith v Black [2024] NZHC 3598
Case
[2024] NZHC 3598
Decision Date
CaseChat Overview and Summary
The High Court considered an appeal by Sarah Smith against the District Court's decision to strike out her defamation proceedings against Jennifer Black, the principal of her daughter's school. Ms Smith alleged that Ms Black defamed her by making false statements to the police and a lawyer appointed to represent her daughter in a Family Court dispute over the child's care. The High Court found that the District Court did not err in striking out the claim. The allegedly defamatory statements made by Ms Black to the police and the lawyer were not capable of bearing a defamatory meaning about Ms Smith. Even if they were, the defences of absolute and qualified privilege were unanswerable. Absolute privilege protected the statements made in the course of the Family Court proceedings, and qualified privilege protected the statements made in the performance of Ms Black's duties as school principal. Additionally, the High Court found that the proceeding was an abuse of process as it was a collateral attack on the Family Court's decisions. The appeal was dismissed, and the High Court ordered that if the parties could not agree on costs, Ms Black would file a memorandum addressing costs, followed by a reply from Ms Smith, and the Court would determine costs on the papers.