Stephenson v Jones - [2014] NZHC 1604

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1921 [2014] NZHC 1604

BETWEEN
JON STEPHENSON

Plaintiff

AND

RICHARD RHYS JONES First Defendant

THE ATTORNEY-GENERAL Second Defendant

Hearing: 1 July 2014

Counsel:

E D Nilsson for Plaintiff
H B Rennie QC and H S Hancock for Defendants

Judgment:

9 July 2014

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
3 pm on the 9th day of July 2014.

Solicitors: Lee Salmon Long, Auckland, for plaintiff
Crown Law, Wellington, for defendants

STEPHENSON v JONES [2014] NZHC 1604 [9 July 2014]

[1] This is an application to strike out an allegation in the plaintiff’s second amended statement of claim, namely as to one of the pleaded meanings of the statement upon which the plaintiff sues for defamation.

[2] The plaintiff’s claim for defamation arises from a statement issued by the defendant in response to two magazine articles written by the plaintiff. The action was tried before a jury in July 2013. The jury was unable to agree. The second amended statement of claim was filed in April 2014, preparatory to a retrial. The defendant applies to strike out paragraph 30(b). Paragraph 30 in its entirety reads:

In their natural and ordinary meaning, or by necessary implication, the Statement (including the quoted passages) meant and was understood to mean:

(a) The plaintiff was untruthful when asserting in the SST and Metro
Articles that he had visited the CRU base;

(b) The plaintiff lied in the SST and Metro Articles;

(c) The plaintiff’s journalism in the SST and Metro Articles should not
be trusted.

[3] I address first the submission of counsel for the plaintiff that the issue raised by this application has been finally determined as between the parties, by a ruling given by me at the trial, on 17 July 2013. I ruled that all of the meanings then pleaded, which were set out in paragraph 23 of the first amended statement of claim “are sufficiently capable of being seen as bearing a defamatory meaning that the issue should be left to the jury”. Counsel for the plaintiff submits that the ruling gives rise to an issue estoppel between the parties, so as to prevent the defendant from raising this issue on the present application. Counsel for the plaintiff further submits that r 7.52 of the High Court Rules applies. That requires the leave of a Judge, which may be granted only in special circumstances, before a party who fails on an interlocutory application can apply again for the same or a similar order.

[4] The ruling at the first trial does not give rise to an issue estoppel. The ruling, given in the context of the first trial, was part of the ephemera of that trial and ceased to have effect on the conclusion of that trial. The English Court of Appeal held in Bobolas v Economist Newspaper Ltd that rulings made and issues decided by a Judge in the course of a trial…

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 Stephenson v Jones

Details

AGLC: Stephenson v Jones [2014] NZHC 1604
Case: [2014] NZHC 1604
Decision Date: 9 July 2014

CaseChat Overview and Summary

Stephenson v Jones was a case heard by the High Court of New Zealand. The plaintiff, Jon Stephenson, brought a defamation claim against Richard Rhys Jones and the Attorney-General. The plaintiff sought to strike out a specific allegation in the second amended statement of claim, which was that the defendant's statement implied that the plaintiff had lied in his articles. The defendant argued that the statement was incapable of bearing the pleaded meaning and sought to have it struck out.

The court had to decide whether the pleaded meaning could reasonably be understood by a jury, and if not, whether the application should be struck out. The court considered the principles governing the determination of whether words are capable of bearing a defamatory meaning. It noted that the threshold for excluding a pleaded meaning was high and that the court should be cautious in ruling out meanings.

The court found that while the words complained of may have other possible meanings, the possibility that a jury might read the statement as necessarily implying that the plaintiff lied was not so remote that a jury would be acting perversely in accepting that pleaded meaning. The court concluded that the pleaded meaning was not so incapable of being borne by the words that a jury would be acting perversely in accepting it. Therefore, the application to strike out the pleaded meaning was dismissed.

In conclusion, the court found that the application to strike out the pleaded meaning in the second amended statement of claim was dismissed, and the plaintiff was entitled to costs on a 2B basis.

Orders