Wills v Stewart - [2021] NZHC 3225

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000427

[2021] NZHC 3225

UNDER the Defamation Act 1992

IN THE MATTER

of defamation

BETWEEN

BLENDDYN FRANCIS WILLS

Plaintiff

AND

LISA DOMINIQUE STEWART

Defendant

Hearing: On the papers

Counsel:

Plaintiff self-represented

T J Mackenzie for Defendant

Judgment:

29 November 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 November 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WILLS v STEWART Costs [2021] NZHC 3225 [29 November 2021]

Background

[1] This judgment concerns an application by the defendant (Ms Stewart) for costs upon the discontinuance of this proceeding by the plaintiff (Mr Wills).

[2] On 6 September 2021, Mr Wills commenced this proceeding seeking, amongst other things, damages for defamation and injurious falsehood. On 28 October 2021, Mr Wills applied for summary judgment. That application was set down to be heard on 25 November 2021.

[3] On 17 November 2021, counsel instructed for Ms Stewart, Mr Mackenzie, sent an email to Mr Wills stating the case was unsuitable for summary judgment and advising that if the summary judgment application was not withdrawn costs would be sought upon its dismissal. Mr Wills was to advise his position by 12 pm on 18 November 2021 failing which the opposition to the summary judgment application would be filed.

[4] On 18 November 2021, Mr Wills’ wife responded stating unequivocally, “We will be proceeding. We can prove our case…” and, “Do not make further contact or respond unless it is in regard to settlement. As I will not respond.”

[5] At 12:04 pm on 18 November 2021, Mr Mackenzie again emailed Mr Wills to clarify that his correspondence was directed towards the withdrawal of the summary judgment application not the substantive proceeding and stating, “Mr Wills needs to be aware that the summary judgment will be dismissed and that costs will be sought against him and any costs order enforced against him.” There was a response to that email at 12:33 pm stating “I will seek advice on this”. The email also asserted that Mr Wills had authority that summary judgment was appropriate based on advice of “defamation experts” that had been consulted.

[6] Having received no advice the summary judgment application was to be withdrawn, Ms Stewart filed a statement of defence, notice of opposition to summary judgment application and affidavits on 19 November 2021.

[7] Later, on 19 November 2021, Mr Wills filed a notice of discontinuance following which Mr Mackenzie advised that Ms Stewart would be seeking costs of the proceeding.

[8] Submissions in relation to costs have been filed on behalf of Mr Wills and Ms Stewart and both have confirmed they are happy for me to deal with the matter on the papers without a hearing.

Relevant principles

[9] All issues of costs are in the Court’s discretion but the discretion must be exercised on a principled basis. Relevant…

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 Wills v Stewart

Details

AGLC: Wills v Stewart [2021] NZHC 3225
Case: [2021] NZHC 3225
Decision Date: 29 November 2021

CaseChat Overview and Summary

Blenddyn Francis Wills, the plaintiff, brought a defamation action against Lisa Dominique Stewart, the defendant, in the High Court of New Zealand. The plaintiff sought damages for defamation and injurious falsehood. The defendant filed a defence and opposed the plaintiff’s application for summary judgment. The plaintiff subsequently discontinued the proceeding and the defendant applied for costs under rule 15.23 of the High Court Rules 2016. The court was required to determine whether the presumption that the plaintiff should pay the defendant’s costs upon discontinuance should be displaced. The court found that the plaintiff had not acted unreasonably in bringing and continuing the proceeding up to the point of discontinuance, and that there were no circumstances which made it just and equitable that the presumption should not apply. The court held that the defendant was entitled to her costs on a 2B basis, without an uplift for costs of preparing her opposition to the summary judgment application.

The court found that the plaintiff had not acted unreasonably in bringing and continuing the proceeding up to the point of discontinuance, and that there were no circumstances which made it just and equitable that the presumption should not apply. The court held that the defendant was entitled to her costs on a 2B basis, without an uplift for costs of preparing her opposition to the summary judgment application. The court found that the plaintiff had not acted reasonably in continuing the proceeding despite being clearly advised by the defendant’s counsel that costs would be sought if the proceeding was not withdrawn. The court found that the plaintiff had not acted reasonably in discontinuing the proceeding because he could not afford legal representation and that the defendant’s conduct had no effect on the plaintiff’s finances. The court found that the plaintiff had not achieved his ends by other means or because of an intervening event or change of circumstances which rendered the proceeding redundant. The court held that the presumption in rule 15.23 was not displaced and that the defendant was entitled to her costs. The court awarded the defendant costs of $6,214 plus disbursements of $220.

The court ordered that the plaintiff pay the defendant’s costs of the proceeding in the amount of $6,214 plus disbursements of $220. The court ordered that the costs be paid within 14 days of the judgment.

Orders