Wu v Moncur - [2014] NZHC 391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003456 [2014] NZHC 391

BETWEEN YI WU Plaintiff

ANDMAY MONCUR First Defendant

STEPHEN COOK Second Defendant

DERMOTT MALLEY Third Defendant

TRUTH WEEKENDER LIMITED (IN LIQUIDATION)
Fourth Defendant

BOB KERRIDGE Fifth Defendant

Hearing: 4 March 2014

Counsel: F Deliu for Plaintiff
D M Grindle for Third Defendant

Judgment: 7 March 2014

JUDGMENT OF WILLIAMS J

Introduction

[1] The plaintiff sues the Truth Weekender newspaper (currently in liquidation) and a number of other individuals associated either with that newspaper or the stories the subject of current complaint.

[2] The plaintiff claims to have been defamed by comments published on four separate occasions in April and May 2013. Two of the stories were contained in the

WU v MONCUR & ORS [2014] NZHC 391 [7 March 2014]

company’s hard copy newspaper editions of 18-24 April 2013 and 24 April-1 May

2013. Two further stories were published on the Truth’s website on 24 May 2013 and 1 May 2013. The details of the publications need not detain us. I must for present purposes assume that the comments complained of were indeed defamatory.

[3] There is, as I understand it, an application for leave to proceed against the Fourth Defendant (that defendant being in liquidation as I have said), but I will not be dealing with that. The application I must address is that of the Third Defendant, Dermott Malley, for summary judgment against the plaintiff.

[4] Mr Malley was a director of the Truth Weekender at the time of the publications in question. He argues that the plaintiff’s claim cannot succeed, should be struck out, and the applicant removed from the proceedings.

[5] The case for the applicant is that:

(a) he had no personal or active involvement with the publication complained of; and

(b) his directorship of the company cannot alone render him liable.

[6] HCR12.2(2) provides that:

The Court may give summary judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[7] The principles applicable to a defendant’s summary judgment application are well understood and not in dispute here. The summary judgment procedure mandates a “robust and realistic judicial attitude when that is called for by the particular facts of the case.”1 But I must be satisfied that the plaintiff cannot succeed because the defendant has a clear answer which cannot be contradicted and which amounts to a complete defence.2 As the Privy Council noted in Jones v Attorney- General, the test for summary judgment is an exacting one since it is a serious step

to prevent a plaintiff from bringing his or her claim to trial.3 The claim must be clearly hopeless.

[8] Mr Grindle relied essentially on two New Zealand cases in support of his application: the first by analogy and the second more directly on point but less fully reasoned. Wishart v Murray related to allegedly defamatory statements being made by contributors to…

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 Wu v Moncur

Details

AGLC: Wu v Moncur [2014] NZHC 391
Case: [2014] NZHC 391
Decision Date: 7 March 2014

CaseChat Overview and Summary

The plaintiff, Yi Wu, brought a defamation claim against several defendants, including Dermott Malley, who was a director of the Truth Weekender newspaper at the time of the allegedly defamatory publications. Malley applied for summary judgment, arguing that he had no personal involvement with the publications in question and that his directorship alone could not render him liable. The court had to determine whether Malley's application for summary judgment should be granted, based on the principle that a plaintiff's claim is clearly hopeless.

The court found that the question of Malley's potential liability depended on his level of involvement in the impugned publications, which raised questions of fact, context, and degree. The court noted that the test for summary judgment is exacting and that it is not suited to defamation cases where the likelihood of disputes of fact and reliance on credibility are high. The court dismissed Malley's application for summary judgment, stating that there were too many areas to be explored by the plaintiff, and that it was not satisfied that the plaintiff's claim was so bereft of hope that his day in court should be denied him.

The court ordered that the plaintiff would be entitled to costs, which it fixed on a 2A basis.

Orders