Wiremu v Ashby - [2019] NZHC 558

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000548

[2019] NZHC 558

BETWEEN
DION MOHI WIREMU

Plaintiff

AND

BRIAN ASHBY

Defendant

Trial: 11, 12 March 2019

Appearances:

T J Mackenzie for Plaintiff

P N Allan and A McKenzie for Defendant

Judgment:

25 March 2019

JUDGMENT OF OSBORNE J

[1] The plaintiff, Dion Wiremu, and the defendant, Brian Ashby, are involved with motocross riding and racing. Mr Wiremu has been particularly involved with the Canterbury Mini Motocross Club Inc (“CMMC”), of which he has served for some years as president.

[2] On 8 July 2017 Mr Ashby posted a collage of photographs to his Grassroots MX page and his Tex MX personal Facebook profile which showed the plaintiff at a motocross event. The photographs carried annotations stating (in a number of ways) that Mr Wiremu was a cheat.

[3] Mr Wiremu promptly sought an apology and a retraction of the allegations. Mr Ashby took down the post but did not apologise or retract the allegations.

[4]Mr Wiremu brings this claim in defamation.

WIREMU v ASHBY [2019] NZHC 558 [25 March 2019]

The claims and defences

[5] Mr Wiremu identifies the following statements made by Mr Ashby as annotations to the published photographs:

(a)I’m in shock Dion is a cheater.

(b)Cheat.

(c)Here’s a cheat.

(d)Cheater returned to the uncheating zone.

(e)“I’m so delusional” … who condones cheating?

(f) Dion was docked points for cheating… (collectively “the Statements”).

[6] Mr Ashby pleads that the Statements in their natural and ordinary meanings would have been understood to mean that:

(a)Mr Wiremu engages in cheating behaviour at sports events;

(b)Mr Wiremu is dishonest and lacks integrity; and

(c)Mr Wiremu is deceitful and fraudulent.

[7] Mr Wiremu seeks a declaration that Mr Ashby is liable to him in defamation. He seeks general damages of $50,000.

[8] Mr Ashby by his statement of defence accepted that Mr Wiremu’s first pleaded meaning (that Mr Wiremu engages in cheating behaviour at sports events) is not materially different from the words’ natural and ordinary meaning and how they would have been understood. Mr Ashby denies the other pleaded meanings.

[9] Mr Ashby accepts that the Statements themselves were defamatory of Mr Wiremu.

[10] He pleads that he removed the post from Facebook on or about 9 July 2017, within one or two days of Mr Wiremu’s requesting removal.

[11]Mr Ashby pleads three affirmative defences:

(a)Under s 8 Defamation Act 1992, he says that the Statements were true or not materially different from the truth.

(b)Under s 9 of the Act, he says that the Statements were his honest and genuine opinion and were reasonably based on the facts presented in the accompanying photographs.

(c)Under s 16 of the Act, he says that the Statements complained of meet the criteria for a defence of qualified privilege because they were a defence against attack.

[12]He particularises the qualified privilege pleading:

Particulars [of qualified privilege]

(a)On 7 July 2018, in the plaintiff’s Facebook page…

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 Wiremu v Ashby

Details

AGLC: Wiremu v Ashby [2019] NZHC 558
Case: [2019] NZHC 558
Decision Date: 25 March 2019

CaseChat Overview and Summary

Dion Wiremu sued Brian Ashby for defamation after Ashby posted comments on his Facebook page alleging that Wiremu was a cheat. Wiremu sought a declaration of liability and damages for defamation. Ashby denied that the comments were defamatory and argued that they were true, honest opinion, or qualified privileged. The High Court of New Zealand found that the comments were defamatory as they conveyed that Wiremu was dishonest and lacked integrity. The comments were not true as they went beyond Wiremu's breach of racing rules to allege fraudulent and deceitful conduct. They were also not honest opinion because they were presented as statements of fact rather than opinion. Finally, they were not qualified privileged as Ashby's response was unreasonable and disproportionate. The Court ordered Ashby to pay Wiremu $10,000 in damages and the costs of the proceeding.

Orders