Wislang v Makinson - [2021] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-13

[2021] NZHC 1586

UNDER the Defamation Act 1992

BETWEEN

MILES ROGER WISLANG

Plaintiff

AND

THOMAS BRENDON MAKINSON

Defendant

Hearing: 24 June 2021

Appearances:

Plaintiff in person

D J More for Defendant

Judgment:

30 June 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 30 June 2021 at 3.30 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 June 2021

WISLANG v MAKINSON [2021] NZHC 1586 [30 June 2021]

[1] The defendant, Mr Makinson, applies to strike out this defamation proceeding on the ground that the statement of claim discloses no reasonably arguable cause of action against the defendant.

[2] The application relies both on limitation and on the basis that the pleading does not identify a publication by the defendant.

Strike out principles

[3] The application to strike out is brought in reliance of r 15.1 of the High Court Rules 2016 (the Rules). The principles are well known. Pleaded facts are assumed to be true. The cause of action must be clearly untenable before it will be struck out. The jurisdiction is to be exercised sparingly and only in clear cases and should not be exercised where a pleading can be saved by amendment.1

The plaintiff’s claim

[4] In 2019 the plaintiff, Dr Wislang, and the defendant were flatmates, along with two other people.

[5] On 4 March 2019, Mr Makinson visited a Ms Christine Manning who was the manager of the real estate agency which managed the property rented by the parties.

[6] On 5 March 2019, Ms Manning sent Dr Wislang an email which features in Dr Wislang’s statement of claim.

[7]Dr Wislang, in his statement of claim pleads:

3.Ms Manning’s said email was addressed to Mr Wilson and me and had as its subject-line “Re Police Complaint”. Its first paragraph claimed

“It has come to my attention through the police that there have been issues with the current tenancy in regards to a trespass notice and harassment of one of the current tenants friends and also intimidation towards other tenants”.

1 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.

[8] Dr Wislang says the “other tenants” referred to by Ms Manning could only be the two other flatmates, that is, Mr Makinson and another person. Mr Makinson acknowledges meeting with Ms Manning on 4 March 2019. Mr Makinson does not detail what he said to Ms Manning during that meeting.

[9]The statement of claim later reads as follows::

6.Ms Manning’s transmission to me by her said email, of Mr Makinson’s so falsely and likely maliciously reporting to her concerning Mr Wilson and myself, was doubly dismaying and distressing for me.

[10] The statement of claim runs to some 12 pages but the cause of action is found at page 10.

[11]The cause of action against Mr Makinson is pleaded…

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 Wislang v Makinson

Details

AGLC: Wislang v Makinson [2021] NZHC 1586
Case: [2021] NZHC 1586
Decision Date: 30 June 2021

CaseChat Overview and Summary

In Wislang v Makinson, the plaintiff, Dr Miles Roger Wislang, brought a defamation claim against the defendant, Thomas Brendon Makinson. The basis of the claim was an email sent by Ms Christine Manning, the manager of the real estate agency managing the property rented by the parties, to Dr Wislang on 5 March 2019. The email, which referred to a "police complaint" concerning the tenancy, included allegations of intimidation and harassment by Dr Wislang and another flatmate, Mr Wilson. Dr Wislang alleged that these statements were false and defamatory, and that they were based on information provided by Mr Makinson. The defendant applied to strike out the claim on the grounds that the statement of claim did not disclose a reasonably arguable cause of action and that it was statute-barred under the Limitation Act 2010.

The court considered whether the statement of claim sufficiently identified a defamatory publication by Mr Makinson. The claim was based on the content of Ms Manning's email, rather than on any statements allegedly made by Mr Makinson. The court held that the statement of claim did not disclose a cause of action against Mr Makinson because it did not plead a defamatory publication by him. Moreover, the court found that any amendment to the pleading to include a statement by Mr Makinson would introduce a new cause of action that would be statute-barred. The occasion of the allegedly defamatory statement was a key material fact, and an amendment to include this fact would change the essence of the claim. Therefore, the statement of claim was struck out as it did not disclose a reasonably arguable cause of action and could not be amended to avoid the limitation period.

In conclusion, the court struck out the defamation claim against Mr Makinson as the statement of claim did not disclose a reasonably arguable cause of action and could not be amended to avoid the limitation period. The court did not hear from the parties on the question of costs, but indicated that if no memorandum was filed within five working days, the costs order would be that there is an award of costs and disbursements in favour of Mr Makinson on a 2B basis.

Orders