Tucker v Pere - [2024] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000168

[2024] NZHC 3209

BETWEEN
SAMUEL TUCKER

Appellant

AND

NICOLA PERE

Respondent

Hearing: 14 March 2024

Appearances:

S M Kilian for the Appellant K I Bond for the Respondent

Judgment:

31 October 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 31 October 2024 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules 2016.

.…………………………..
Registrar/Deputy Registrar

Solicitors: Killian & Associates, Auckland
Braun Bond & Lomas Limited, Hamilton

TUCKER v PERE [2024] NZHC 3209 [31 October 2024]

Table of Contents

Page No

Introduction[1]

Factual background[6]

Mr Tucker’s posts/website[6]

SPCA investigation[19]

The civil regime under the Act [23]

Interim orders[35]

District Court decision [37]

The appeal[44]

Is Ms Pere an affected individual within s 11(1)(a) of the Act? [45]

The communication principles[53]

Principle 2[55]

Principle 3[64]

Principle 5[66]

Principle 6[68]

Principle 7[74]

Principle 8[76]

Serious or repeated breach [85]

Did Ms Pere suffer the requisite degree of harm?[88]
Does an order unreasonably curtail Mr Tucker’s right to freedom of expression?[96]
Result[106]
Costs[107]

Introduction

[1] Mr Tucker appeals against the decision of Judge A S Menzies who made orders under s 19 of the Harmful Digital Communications Act 2015 (the Act).1

[2] The appeal centres around Facebook posts made and hosted by Mr Tucker following an incident in which he alleges he witnessed animal abuse by two staff at Metro Paws Doggy Daycare and Pet Hotel in Te Rapa, Hamilton on 16 January 2021. The respondent, Ms Pere, is the managing director of the two companies that operate the daycare and hotel.

[3]Mr Tucker was ordered to:

1.1.1To take down and disable:

1.1.1.1His Facebook posts made on 12 and 14 February 2021 and on 22 and 27 March 2021 regarding the plaintiff and her businesses, Metro Paws Doggy Day Care Hamilton Limited and Metro Paws and Claws Pet Hotel Limited (together Metro Paws), and their employees;

1.1.1.2the page on his website at regarding the plaintiff, Metro Paws and their employees;

1.1.2To refrain from making further, similar posts on any website or social media platform regarding the plaintiff, Metro Paws, or their employees (including any posts relating to these proceedings);

1.1.3Not to encourage other persons to engage in similar communications directed at the plaintiff, Metro Paws or their employees.

[4] The orders under appeal were made on 10 June 2021. They relate to events prior to 30 March 2021. For reasons that are not relevant, the appeal was not heard until March 2024. Mr Kilian for Mr Tucker is instructed that Mr Tucker does not intend to now put his posts back up even if his appeal is successful. Mr Tucker says the appeal is a point of principle for him. He also contends that the orders made were too wide.

1 Pere v Tucker [2021] NZDC 11084.

[5] Mr Tucker’s appeal proceeds by way of rehearing.2 Mr Tucker bears the onus of satisfying the appeal court that it should…

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 Tucker v Pere

Details

AGLC: Tucker v Pere [2024] NZHC 3209
Case: [2024] NZHC 3209
Decision Date: 31 October 2024

CaseChat Overview and Summary

The case of Tucker v Pere involved an appeal by Mr Tucker against orders made under the Harmful Digital Communications Act 2015. The orders required Mr Tucker to take down and disable his Facebook posts and website content that accused Ms Pere and her businesses of animal abuse, and to refrain from making further posts. The appeal centred on whether the orders were justified under the Act. The key issues were whether Ms Pere was an affected individual, whether there were breaches of the communication principles, whether Ms Pere suffered sufficient harm, and whether the orders unreasonably curtailed Mr Tucker's right to freedom of expression. The Court found that Ms Pere was an affected individual, as the posts were directed at her as the face of the business. The posts breached multiple communication principles, particularly by being grossly offensive and inciting others to send harmful messages. The Court also found that Ms Pere suffered serious emotional distress, justifying the orders. While Mr Tucker's motive was to highlight animal welfare concerns, the Court concluded that the orders were justified given the harm caused and the disproportionate nature of the posts. The appeal was dismissed and the orders upheld.

Orders