Solomon v Prater - [2019] NZHC 1711

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-132

[2019] NZHC 1711

BETWEEN
MAUI ASHLEY SOLOMON

Plaintiff/Applicant

AND

DAVID JAMES PRATER

Defendant/Respondent

Hearing: 15 July 2019

Appearances:

A Romanos for plaintiff/applicant

No appearance by or for defendant/respondent

Judgment:

19 July 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

This judgment was delivered by me on 19 July 2019 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

SOLOMON v PRATER [2019] NZHC 1711 [19 July 2019]

Introduction

[1] The plaintiff, Mr Maui Solomon, sues the defendant, Mr David Prater, alleging that Mr Prater was a party to the publication of a letter dated 31 August 2018 that Mr Solomon alleges was defamatory of him. Mr Solomon commenced proceedings by filing and serving a notice of proceeding and statement of claim dated 8 March 2019. At the same time, he provided initial disclosure pursuant to r 8.4 of the High Court Rules 2016. Mr Prater filed and served a statement of defence, dated 14 April 2019, but did not provide initial disclosure. He then filed and served an amended statement of defence dated 10 May 2019. His amended statement of defence pleads two affirmative defences; truth and honest opinion.

[2] By application dated 1 July 2019, Mr Solomon seeks an order striking out these affirmative defences. Mr Solomon’s solicitor, Mr John Langford, has sworn an affidavit in support dated 17 June 2019.

[3] Mr Prater has not filed a notice of opposition, and nor did he appear at the hearing of Mr Solomon’s application. From the Court’s file, it is apparent that Mr Prater attempted to file a document of some sort but that the Registrar declined to accept this for filing as it did not comply with the High Court Rules. The Registrar informed Mr Prater of the details of the hearing, and explained to him what he would need to do if he wished to oppose Mr Solomon’s application. Mr Prater has taken no further steps.

[4] Relying on Palmer J’s judgment in Mihinui v Attorney-General,1 the authors of McGechan on Procedure explain that the failure to file a notice of opposition in compliance with r 7.24 of the High Court Rules:2
… has no formal legal effect although, ordinarily, the failure to do so will be a factor counting in favour of the application being granted. The Court must still assess any application on its merits, according to law — failure to file a notice of opposition will not guarantee an application’s success…

1 Mihinui v Attorney-General [2017] NZHC 654 at [13].
2 McGechan on Procedure (online ed, Thompson Reuters) at [HR7.24.03].

[5] Accordingly, when the matter was called, Mr Romanos developed the argument in full.

Principles relating to the striking out of pleadings

[6]Rule 15.1 of the High Court Rules provides:

The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or…

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 Solomon v Prater

Details

AGLC: Solomon v Prater [2019] NZHC 1711
Case: [2019] NZHC 1711
Decision Date: 19 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Maui Ashley Solomon sued David James Prater for defamation based on a letter dated 31 August 2018 that Solomon claimed was defamatory. Prater filed an amended statement of defence asserting the defences of truth and honest opinion. Solomon sought an order to strike out these affirmative defences. The court was required to determine whether the defences of truth and honest opinion were valid and properly pleaded according to the Defamation Act 1992 and the High Court Rules 2016. The court examined Prater's pleadings and found that they were fundamentally flawed and likely to prejudice Solomon. The defence of truth was insufficient because it did not address Solomon's allegations about the natural and ordinary meaning of the letter. The defence of honest opinion was also inadequate because it did not identify which of the three categories of honest opinion defence it was relying on. The court ordered that the affirmative defences would be struck out unless Prater filed a second amended statement of defence that complied with the Defamation Act and the High Court Rules by 9 August 2019. Costs were reserved.

Orders