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Wishart v Murray

Wishart v Murray

Case [2015] NZHC 3363 22 December 2015

Defamation Act 1992

Multiple Publications

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001701 [2015] NZHC 3363

BETWEEN
IAN WISHART

Plaintiff

AND

CHRISTOPHER ROBERT MURRAY First Defendant

KERRI MAREE MURRAY Second Defendant

DIMENSION DATA NEW ZEALAND LIMITED

Third Defendant

Hearing: 3 August 2015

Appearances:

Plaintiff in person
E D Nilsson for First and Second Defendant
E M S Cox for Third Defendant

Judgment:

22 December 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 22 December 2015 at 12.00 noon
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

WISHART v MURRAY & ORS [2015] NZHC 3363 [22 December 2015]

Table of Contents

Para No.

Introduction [1]
Principles relevant to applications for strike out and stay of
proceedings [6]

The issues for determination  [9] The current pleadings and the applications  [10] Compliance with r 5.17 High Court Rules and s 7 Defamation
Act 1992
The issue  [14]
General principles  [15]
Multiple publications by the same author as a single cause
of action  [18] Statements by different authors as a single cause of action             [22] The tweets as a single cause of action  [26] Mr Murray’s Facebook statements as a single cause of action        [29] The third party Facebook statements as a single cause of action     [32] Particulars  [34]

First and second causes of action – bases of liability as separate
causes of action  [35]
The fifth cause of action – bases of liability as separate causes of action
The issues  [37]
Does Wishart v Murray preclude other bases of liability?                [40]
Third party statements as the natural and probable consequence
of Mr Murray’s own statements  [47] Endorsement or adoption of third party statements  [56] Exemplary damages  [66] Limitation issues     [71] When did time start running?  [74]

Do some allegations constitute fresh causes of action that

are time barred? [80]

Summary and conclusion [88]

Introduction

[1] The plaintiff, Ian Wishart, is the author of the book Breaking Silence: The Kahui Case, which concerned the death of infant twins and the subsequent acquittal of their father on charges of murder. The book was written in collaboration with the babies’ mother, Macsyna King. It generated a strong reaction on social media. Much of the comment emanated from a Facebook page set up by the first defendant, Christopher Murray, who facilitated a campaign calling for a boycott of the book.

[2] Mr Wishart sues Mr Murray in defamation for statements that he posted on Twitter and on the Facebook page and for statements posted on the Facebook page by third parties. He sues Mr Murray’s wife, Kerri Murray, for statements that she posted on the Facebook page. He also sues Mr Murray’s then employer, Dimension Data New Zealand Ltd (DDNZ), on the basis that Mr Murray’s activities were, in large part, carried out while he was at work, using DDNZ’s communications infrastructure, and that DDNZ encouraged Mr Murray in his boycott.

[3] The current pleading is the…

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 [2015] NZHC 3363
Case: [2015] NZHC 3363
Decision Date: 22 December 2015

CaseChat Overview and Summary

In this case, Ian Wishart, the author of the book Breaking Silence: The Kahui Case, sued Christopher Murray, the administrator of a Facebook page that hosted a boycott campaign against the book, and Dimension Data New Zealand Ltd (DDNZ), Murray's employer, for defamation. Murray and DDNZ applied to strike out or stay the proceedings on the basis that the fourth amended statement of claim was not compliant with the Defamation Act 1992 and the High Court Rules and that some of the allegations were time barred. The court held that although some allegations were time barred and the pleading was not compliant with the Defamation Act and High Court Rules, the pleading was not untenable. The court also held that the Murray v Wishart decision did not preclude other ways in which the defendants could be liable for third party posts. However, some of the causes of action were out of time. The court struck out the claims for exemplary damages against DDNZ and dismissed the applications for strike out in respect of some of the causes of action. The proceedings were stayed until the plaintiff filed a fifth amended statement of claim that complied with the decision. The defendants were awarded costs on a 2B basis.

Orders