Legal Research
Cases
Wishart v Murray

Wishart v Murray

Case [2016] NZHC 3132 19 December 2016

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-001701

[2016] NZHC 3132

BETWEEN
IAN WISHART

Plaintiff

AND

CHRISTOPHER ROBERT MURRAY

First Defendant

KERRI MAREE MURRAY
Second Defendant

DIMENSION DATA NEW ZEALAND LIMITED

Third Defendant

Hearing: 4 August 2016

Appearances:

Plaintiff in person

D M Salmon and E D Nilsson for First and Second Defendants H B Rennie QC for Third Defendants

Judgment:

19 December 2016

JUDGMENT OF COURTNEY J

[Security for costs]

This judgment was delivered by Justice Courtney on 19 December 2016 at 2.40 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

WISHART v MURRAY & ORS (NO 2) [2016] NZHC 3132 [19 December 2016]

Introduction

[1] The defendants have applied for security for costs. It is the second such application by the first and second defendants and the first by the third defendant in a case that has a long and unsatisfactory history.

[2] Ian Wishart commenced the proceedings in 2012. He alleges that he was defamed on a Facebook page created by the first defendant, Christopher Murray, for the purpose of encouraging the public to boycott a book written by Mr Wishart about the now notorious Kahui murder case. Mr Wishart alleges that Mr Murray is liable, not only for statements he made personally in tweets and on the Facebook page, but also for statements posted by non-parties. The second defendant, who is Mr Murray’s wife, is sued in respect of statements that she made on the Facebook page. The third defendant, Dimension Data NZ Limited (DDNZ), was Mr Murray’s employer at the relevant time and is sued on the basis that is vicariously liable for Mr Murray’s own actions and directly liable for having endorsed or adopted the defamatory statements.

[3] From time to time Mr Wishart has had the assistance of counsel but for the most part he has been unrepresented. His ongoing struggle to produce a pleading that complies with the High Court Rules and the Defamation Act 1992 has created significant cost and inconvenience to the defendants. Not all of the cost and delay in the case have been due to Mr Wishart’s inept pleading, however; aspects of his case have thrown up novel issues for which there was no settled law in New Zealand.1

[4] In 2013 I declined the first and second defendants’ application for security for costs. On appeal the Court of Appeal did not interfere with that decision, though it did express reservations about the evidential basis for one of my findings. The present applications are brought mainly on the basis that Mr Wishart does not own any substantial asset against which judgment could be enforced and has failed or refused

1 Some of these issues have been resolved by the Court of Appeal in Murray v Wishart [2014] 3 NZLR 722.

to procure a guarantee from the companies that he controls or the trusts of which he is a beneficiary to meet any costs order.

Relevant principles

[5] Rule…

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 Wishart v Murray

Details

AGLC: Wishart v Murray [2016] NZHC 3132
Case: [2016] NZHC 3132
Decision Date: 19 December 2016

CaseChat Overview and Summary

The defendants in this case have applied for security for costs, a request previously denied by the Court. The plaintiff, Ian Wishart, commenced the proceedings in 2012, alleging defamation by the first defendant, Christopher Murray, on a Facebook page created to encourage a boycott of a book written by Mr Wishart about the Kahui murder case. The second defendant, Murray's wife, is sued for statements made on the Facebook page, while the third defendant, Dimension Data NZ Limited, is sued on the basis of vicarious and direct liability for the defamatory statements. The defendants argue that Mr Wishart lacks substantial assets to enforce a judgment and has refused to provide guarantees.

The court considered the threshold question of whether there was reason to believe that the plaintiff would be unable to pay costs if unsuccessful. The court noted Mr Wishart's substantial earnings from his work as a writer and investigative journalist, his ability to meet previous costs awards, and his commitment to ensuring costs would be paid. However, the court also considered the high costs incurred by the defendants due to Mr Wishart's inept pleading and the novel legal issues in the case. The court concluded that, while there was no reason to believe Mr Wishart would be unable to pay costs, it would not have been just to require security for costs, given the bona fide nature of the case, the novel legal issues, and the potential financial hardship caused by the defendants' conduct.

Ultimately, the court refused the application for security for costs, finding it would not have been just to require security given the circumstances of the case.

Orders