Wu v Moncur - [2014] NZHC 2776

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003456 [2014] NZHC 2776

BETWEEN
YI WU, alias dictus EASTER WU

Plaintiff

AND

MAY MONCUR First Defendant

STEPHEN COOK Second Defendant

DERMOTT MALLEY Third Defendant

TRUTH WEEKENDER LIMITED (IN LIQUIDATION)

Fourth Defendant

BOB KERRIDGE Fifth Defendant

Hearing: 7 November 2014

Appearances:

F Deliu for Plaintiff
M Moncur in Person

Judgment:

7 November 2014

ORAL JUDGMENT OF VENNING J

Solicitors: WRMK Lawyers, Whangarei
Minter Ellison Rudd Watts, Auckland
Chapman Tripp, Auckland

Copy to: F C Deliu, Auckland
R Zhao, Auckland
First Defendant

WU v MONCUR [2014] NZHC 2776 [7 November 2014]

[1] The plaintiff sues the defendants in defamation. The case is scheduled for a three day trial to commence on Monday 17 November 2014.

[2] The first defendant applies for leave to file a statement of defence out of time. The application is opposed by the plaintiff. Only the third and fifth defendant are actively opposing the proceeding at present. Both of them have filed statements of defence and will be defending the matter at trial.

[3] Although the proceedings were served on the first defendant in July 2013 she failed to file a statement of defence with the Court. When her attention was drawn to the proceedings again this year she purported to file a statement of defence with the Court on 15 September. That was not accepted as it was out of time.

[4] On 5 November the assigned trial Judge convened a telephone conference directing the first defendant to file an affidavit explaining in full the reasons for her delay in taking steps in the proceeding together with a formal application seeking leave to file the statement of defence out of time and after the setting down date. The application and affidavit have now been filed, although Mr Deliu has made the point that papers were only served on him very late last evening.

[5] The application falls to be considered under r 7.7, which provides that no statement of defence may be filed after the close of pleadings date without leave. It is necessary for a defendant such as Ms Moncur to surmount the formidable hurdles of showing that to allow her to file a statement of defence would be in the interests of justice and will not significantly prejudice other parties or cause significant delay.

[6] The Court will often consider on such applications the length of the delay, the reasons for the delay, the prejudice to other parties, whether the proposed defence is substantial, and the overall justice of the case.

[7] In the present case the length of delay is substantial. From July 2013 until at least September this year the defendant failed to take any steps to file a defence and indeed, even after September, did not seek leave to file a defence until the last few days, less than two weeks out from the fixture.

[8] Ms Moncur’s explanation in her affidavit for the delay is that she attended a case management…

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.

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Details

Case: [2014] NZHC 2776
Decision Date: 7 November 2014

CaseChat Overview and Summary

The case of Wu v Moncur involves a defamation action brought by the plaintiff, Yi Wu, against multiple defendants, including May Moncur, Stephen Cook, Dermott Malley, Truth Weekender Limited (in liquidation), and Bob Kerridge. The plaintiff is seeking damages for defamation arising from statements published in the Truth newspaper and on its website. The case was scheduled for a three-day trial starting on November 17, 2014. The first defendant, May Moncur, applied for leave to file a statement of defence out of time, which was opposed by the plaintiff. The third and fifth defendants were the only ones actively opposing the proceeding and had already filed statements of defence. Moncur failed to file a timely statement of defence despite being served in July 2013. She later attempted to file one on September 15, which was rejected as being out of time. The assigned trial judge convened a telephone conference and directed Moncur to file an affidavit explaining her delay and a formal application seeking leave to file a statement of defence out of time.

The legal issues the court needed to decide were whether Moncur could surmount the hurdles of showing that allowing her to file a statement of defence would be in the interests of justice and would not significantly prejudice other parties or cause significant delay. The court considered the length of the delay, the reasons for the delay, the prejudice to other parties, whether the proposed defence was substantial, and the overall justice of the case. The court found the delay to be substantial, and Moncur's reasons unconvincing. However, it did not find that granting leave would seriously prejudice the plaintiff as the party opposing the application. The court also found that Moncur had a substantial ground of defence, which was relevant to the determination of the application.

The court granted Moncur leave to file a statement of defence out of time but subject to strict conditions and orders. The conditions included striking out the proposed defence of notice of evidence of bad reputation, limiting the statement of defence to the defence as pleaded with only honest opinion and truth as affirmative defences, and requiring Moncur to file and serve an amended statement of defence with particulars of honest opinion, evidence, and documents by a specific date. The court also ordered Moncur to pay the plaintiff's costs associated with preparing for and attending the hearing, which were fixed at $3,482.50. These costs were payable immediately and were not costs in the cause.

Orders