[1] These proceedings involve a claim for defamation. They are set down for a one week civil jury trial commencing on 8 July 2013. The defendants have applied for security for costs.

[2] The application was brought on the basis that there was reason to believe that Mr Stephenson will be unable to pay the defendants’ costs if he is unsuccessful in the proceedings.

[3] The grounds for belief as to Mr Stephenson’s inability to meet a costs order

against him were set out in an affidavit sworn by Mr Lucie-Smith, a solicitor with

STEPHENSON v JONES HC WN CIV-2012-485-1921 [27 March 2013]

the New Zealand Defence Force. He cited as evidence of Mr Stephenson’s impecuniosity an article about Mr Stephenson that appeared in the Waikato Independent newspaper on 15 August 2011. That article included the following:[1]

For all the effort and all the danger, his job is not glamorous and it’s certainly not about the money. The road he has chosen comes with no continuity of income or work. With $1.25 in his bank account at the moment, Stephenson is pausing in Auckland to recoup his finances before heading back to Afghanistan.

[1] Marnie Hallahan “War reporter’s lovely road” The Waikato Independent (online ed, 15 August

2011)

[4] Since Crown Law raised concerns over Mr Stephenson’s impecuniosity with his solicitors in November 2012, Mr Lucie-Smith deposes that they have had no more than a simple denial that Mr Stephenson was impecunious, coupled with the statement that he had regular paid work.

[5] The defendants have calculated that their costs and disbursements in defending the proceedings are likely to be in the vicinity of $75,000 to $125,000, and that scale costs and disbursements likely to be ordered on a successful defence would be not less than $25,000. On top of that, Mr Lucie-Smith assessed Mr Stephenson’s case as “weak and unlikely to succeed”. He raised the prospect that if Mr Stephenson was not in New Zealand, then under the High Court Rules he might need to be treated as an overseas plaintiff.

[6] In relation to the last point, Mr Stephenson’s affirmation in response stated that he is presently based principally in New Zealand, although he is sometimes required to travel outside New Zealand for his work. He is a New Zealand citizen. In light of that, the prospect of his being resident out of New Zealand as a ground for pursuing an application for security for costs[2] was not pursued.

[2] High Court Rules, r 5.45(1)(a)(i).

[7] More generally, Mr Stephenson denied that he was impecunious, affirmed that he was able to meet his debts as they fell…

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 [2013] NZHC 638
Case: [2013] NZHC 638
Decision Date: 27 March 2013

CaseChat Overview and Summary

Jon Stephenson, a freelance journalist, brought defamation proceedings against Richard Rhys Jones, the Chief of the New Zealand Defence Force, and the Attorney-General. The defendants sought security for costs, arguing that Stephenson was impecunious and would be unable to pay the defendants’ costs if he lost the proceedings. The defendants estimated their costs and disbursements to be between $75,000 and $125,000, and that scale costs and disbursements would be not less than $25,000. They also argued that Stephenson's case was weak and unlikely to succeed. Stephenson denied that he was impecunious and offered to lodge $10,000 in his solicitors' trust account, pending resolution of the proceedings, as a sufficient demonstration of his ability to meet an award of costs. The offer was rejected on behalf of the defendants as inadequate, and hence the pursuit of the formal application.
The court found that the defendants had not raised a sufficient spectre of impecuniosity to impose an onus on Stephenson to provide more than a bald assertion of his ability to pay. The court noted that Stephenson's offer to lodge $10,000 in his solicitors' trust account for the duration of the proceedings tended to negate the proposition that he was impecunious in any literal sense, and suggested that there had been a material change in his financial position since mid August 2011. The court also found that the defendants were intent on pursuing security at a level that would represent a substantial portion of the costs they were likely to be awarded if they succeeded at trial. The application was dismissed and Stephenson was entitled to costs on his successful defence of it.

Orders