| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA233/2012 [2013] NZCA 428 |
| BETWEEN | RAYMOND BRUCE SMITH |
| AND | FRANCIS THOMAS DOOLEY |
| AND | MOHAMMED SHAHADAT |
| Hearing: | 3 July 2013 |
Court: | O'Regan P, Stevens and Wild JJ |
Counsel: | P A McKnight and A J Romanos for Appellant |
Judgment: | 13 September 2013 at 10 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe declaration made by the High Court is set aside.
CThe first respondent is to pay the appellant’s costs for a standard appeal on a band A basis plus usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Table of Contents
| Para No | |
| Introduction | [1] |
| Background | [6] |
| Events leading to Mr Dooley suing Mr Smith for defamation | [9] |
| Issues | |
| On Mr Smith’s appeal | [36] |
| On Mr Dooley’s cross-appeal | [37] |
| ISSUES ON MR SMITH’S APPEAL The six alleged meanings | [38] |
| The defence of truth | [57] |
| The defence of qualified privilege: ill will | [73] |
| Improper advantage: recklessness | [83] |
| Discretion to grant a declaration | [92] |
| Second cause of action | [106] |
| ISSUES ON MR DOOLEY’S CROSS-APPEAL Mr Dooley bearing some responsibility | [113] |
| Finding about a telephone call | [118] |
| Award of solicitor and client costs | [123] |
| Only 70 per cent? | [124] |
| Joint and several liability for costs? | [130] |
| 30 per cent of the costs awarded apportioned to Mr Smith? | [133] |
| Taxation of costs? | [135] |
| Result | [137] |
| Costs | [140] |
Introduction
The appellant, Raymond Smith, appeals against a judgment of the High Court declaring that he had defamed the first respondent, Francis Dooley. Mr Dooley cross-appeals.
The judgment was delivered by Lang J in the High Court at Greymouth on 26 March 2012.[1] The Judge gave a judgment on costs on 2 July 2012.[2]
[1]Dooley v Smith [2012] NZHC 529 [High Court judgment].
[2]Dooley v Smith [2012] NZHC 1553 [High Court costs judgment].
Mr Smith applied on 10 July 2012 to adduce further evidence on his appeal. Then, on 3 May 2013, he applied for leave to file a second amended notice of appeal. The latter application caused Mr Dooley also to apply, on 27 May, for leave to adduce further evidence on the appeal.
In a minute issued on 2 July this Court granted the application further to amend the notice of appeal. It advised counsel that the applications to adduce further evidence would be ruled on in the substantive judgment. We give those rulings in [86] (Mr Smith’s application) and [71]–[72] (Mr Dooley’s application) below.
We have set out the issues on the appeal and cross-appeal in [36]–[37] below. They are best understood if we first outline the background, and detail the events that led to Mr Dooley suing Mr Smith for defamation.
Background
The case arises out of concerns about the leadership of the Development West Coast trust (DWC). The DWC was established in 2001 to manage the investment and expenditure of the $92 million the Government allocated to…
Continue reading Smith v Dooley
Sign in free to access the full text
- AGLC
- Smith v Dooley [2013] NZCA 428
- Case
- [2013] NZCA 428
- Decision Date
CaseChat Overview and Summary
The key legal issues were whether the Judge had properly exercised his discretion in granting a declaration under section 24 of the Act and whether the significant delay in bringing the proceedings justified withholding the declaration. The Court had to consider whether the discretionary nature of declaratory relief was correctly applied and whether the delay impacted the appropriateness of the declaration. The Court also had to examine the reasoning behind the Judge's decision and the relevance of the delay in this context.
In delivering the judgment, the Court found that the Judge had erred in not recognising the discretionary nature of the relief sought under section 24. The Court held that section 24 does not automatically entitle a successful plaintiff to a declaration, but rather grants the court the discretion to decide whether to make such a declaration. The delay in bringing the proceedings was highlighted as a relevant factor in the exercise of this discretion, particularly in light of the need for expeditious resolution to maintain the effectiveness of the remedy. The Court concluded that the Judge's failure to properly exercise his discretion constituted an error in law.
The Court ordered that the decision be remitted to the Judge for reconsideration of the declaration in light of the discretionary nature of the relief and the relevant considerations, including the delay in bringing the proceedings. The Court emphasised that the Judge should now properly exercise his discretion, taking into account all relevant factors, before making a decision on whether to grant the declaration.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Did the Judge err in exercising his discretion to grant a declaration under s 24 of the Act? Section 24 provides:24 Declarations(1)In any proceedings for defamation, the plaintiff may seek a declaration that the defendant is liable to the plaintiff in defamation.(2) Where, in any proceedings for defamation,—(a) the plaintiff seeks only a declaration and costs; and(b) the court makes the declaration sought,—the plaintiff shall be awarded solicitor and client costs against the defendant in the proceedings, unless the court orders otherwise. Lang J dealt with relief in this way:Result[275] Mr Dooley has established his claim against both Mr Smith and Mr Shahadat. They have not been able to establish any of the affirmative defences upon which they rely.Declaration[276] I make a declaration under s 24(1) of the Act that Mr Smith and Mr Shahadat are liable to Mr Dooley in defamation. Lang J clearly thought a declaration followed as a matter of course from his upholding of Mr Dooley’s claims. Because he did not view the granting of relief as a discretionary decision, he did not weigh up the relevant considerations. Declaratory relief is always discretionary. In the defamation context this Court held in Salmon v McKinnon: “Section 24 does not give a successful plaintiff an entitlement to a declaration. Such relief is discretionary”.[32][32]Salmon v McKinnon [2007] NZCA 516 at [47]. It follows that the Judge erred in that he did not exercise his discretion. Was the Judge’s decision to make a declaration nevertheless correct? Mr McKnight listed 16 reasons why the Judge should have exercised his discretion by declining to make a declaration. Without suggesting that the other reasons lack merit, we need refer only to Mr McKnight’s 13th and 14th reasons: Although Mr Stewart accepted that delay was relevant to damages, had Mr Dooley sought them, he submitted it was not relevant to the issue of relief when only a declaration was sought. A chronology of events is a necessary basis for the exercise of the s 24 discretion. It is: Thus, just under two years elapsed from the alleged defamation to the filing of the proceeding, and just over three years before the proceeding was set down for hearing. Mr Dooley is not to blame for the regrettable further 14 or so months delay before the proceeding was tried. Section 24 was included in the Act upon the recommendation of the Committee on Defamation (the so-called McKay Committee). The Committee pointed out that a plaintiff who sought only a declaration to clear his name could avoid allegations that his claim “was simply a gold-digging one”.[33] The Committee explained that it was recommending the s 24(2)(b) entitlement to solicitor and client costs “to further enhance the attractiveness of this avenue for plaintiffs who are not particularly interested in damages”.[34] But the important point was the Committee’s comment:403. The efficacy of this remedy is dependent to some extent on the speed with which it can be heard in court. …[33]Committee on Defamation Recommendations on the Law of Defamation (1977) at [401].[34]At [402].