Wishart v Murray - [2016] NZHC 3131

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-001701

[2016] NZHC 3131

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

[Application to set aside stay]

This judgment was delivered by Justice Courtney on 19 December 2016 at 2.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

WISHART v MURRAY & ORS [2016] NZHC 3131 [19 December 2016]

Introduction

[1] In this proceeding Ian Wishart sues Christopher Murray and Kerri Murray (the first and second defendants) and Dimension Data New Zealand Ltd (DDNZ) (the third defendant) in defamation. The claims arise from tweets made by Mr Murray and a Facebook page created by him on which he, Mrs Murray and various non-parties posted statements, all of which Mr Wishart says were defamatory of him.

[2] Mr Wishart has been largely unrepresented throughout. His efforts to produce a coherent statement of claim that complies with the High Court Rules, the Defamation Act 1992 and previous directions of this Court and the Court of Appeal have caused significant inconvenience and cost to the defendants. Last year I stayed the proceeding until Mr Wishart had obtained an order setting aside the stay on the ground that he had produced a draft fifth amended statement of claim (ASOC5) that complied with my judgment of 22 December 2015.1 Mr Wishart has now filed a draft ASOC5 together with an application to set aside the stay. The defendants oppose the application.

Effect of my order

[3] Before I turn to consider the draft ASOC5 I deal with the submission made by Mr Rennie QC, for DDNZ, that my order staying the proceedings on terms operates as an “unless order” with the result that if the draft ASOC5 is not fully compliant the stay must remain permanent.

[4] The principles on which an unless order may be granted and the effect of such an order are summarised in SM v LFDB:2

(a)As an unless order is an order of last resort, it is properly made only where there is a history of failure to comply with earlier orders.

(b)An unless order should be clear as to its terms. That is, it should specify clearly what is to be done, by when and what is the sanction

1 Wishart v Murray [2015] NZHC 3363, [2016] 2 NZLR 565. Initially the requirement for the filing of a compliant ASOC5 was by 31 March 2016 but I subsequently varied that date to 24 June 2016.
2 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.

for non-compliance. That sanction should be proportionate to the default.

(c)The sanction will apply without further order if the party in default does…

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 3131
Case: [2016] NZHC 3131
Decision Date: 19 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Ian Wishart sued Christopher Murray, Kerri Murray, and Dimension Data New Zealand Limited for defamation, stemming from tweets and Facebook posts that Wishart claims were defamatory. The court stayed the proceeding until Wishart complied with previous directions, particularly to file a compliant fifth amended statement of claim. Wishart filed a draft fifth amended statement of claim and applied to set aside the stay. The defendants opposed the application. The court considered whether the stay was an "unless order" and found it was not, as it was not made on the basis of a history of deliberate failure to comply with earlier orders. The court examined the draft fifth amended statement of claim and found it substantially compliant with the High Court Rules and the Defamation Act 1992, requiring only minor changes. The court lifted the stay on the condition that Wishart files a fifth amended statement of claim by 23 January 2017, subject to the specified changes. The court will deal with the issue of costs in a separate decision.

The court's decision in Wishart v Murray addresses the issue of whether the stay imposed on the proceeding was an "unless order," and if not, whether the draft fifth amended statement of claim filed by the plaintiff was substantially compliant. The court found that the stay was not an "unless order" and that the draft fifth amended statement of claim was substantially compliant, requiring only minor changes. The court lifted the stay on the condition that the plaintiff files a fifth amended statement of claim by a specified date, subject to the required changes. The court will address the issue of costs in a separate decision.

Orders