Craig v Stringer
| Jurisdiction | New Zealand |
| Judge | Palmer J |
| Judgment Date | 17 June 2019 |
| Neutral Citation | [2019] NZHC 1363 |
| Court | High Court |
| Docket Number | CIV-2015-409-575 |
| Date | 17 June 2019 |
[2019] NZHC 1363
CIV-2015-409-575
CIV-2015-404-2524
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Civil Procedure, Defamation — res judicata — issue estoppel — abuse of process
J C Stringer in person
C G Craig, H R Craig and K E Stitt in person
Appearances excused for A M Storr and S D Taylor W Akel, Counsel assisting the Court
The Parties in person
W Akel as Counsel Assisting
JUDGMENT NO 2 OF Palmer J
(Abuse of process and interlocutory issues)
Mr Colin Craig sues Mr John Stringer in defamation for saying Mr Craig sexually harassed Ms Rachel MacGregor. In response, Mr Stringer sues Mr Colin Craig and others in defamation, including for saying Mr Stringer lied about the sexual harassment. There are four other proceedings about the same subject: Mr Craig has defended himself in a defamation suit by Mr Jordan Williams and Mr Craig has brought three separate defamation suits, against Mr Cameron Slater, Mr Williams and Ms MacGregor herself. There have been three trials in these other proceedings in the High Court, in September 2016, May 2017 and September/October 2017. The nature of defamation law means that, on each occasion, to defend themselves, the defendants must call evidence of whether Mr Craig sexually harassed Ms MacGregor.
It cannot be right that a litigant can sue any number of defendants in defamation, in separate proceedings over a period of years, for publishing substantially the same allegations concerning sexual harassment of a person, requiring each of those defendants to call evidence about that alleged harassment in order to defend themselves. Enough is enough. Allowing Mr Craig to pursue the defamation proceeding he initiated against Mr Stringer would either require Ms MacGregor to give evidence and be cross-examined for a fourth time about whether Mr Craig sexually harassed her or would put Mr Stringer at a significant disadvantage in his defence. It would be oppressive to either Ms MacGregor or Mr Stringer. Mr Craig has had, and continues to have, plenty of access to justice on this subject, in other proceedings. I consider it would be an abuse of the High Court's processes for Mr Craig to be able to pursue his defamation proceeding against Mr Stringer. I stay Mr Craig's proceeding against Mr Stringer and the aspect of Mr Stringer's proceeding in response about the same issue.
In addition, Mr Craig makes three applications in relation to the remainder of Mr Stringer's proceeding, in respect of which I order:
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(a) Mr Stringer must make further and better discovery of specified documents.
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(b) In the interests of access to justice and the smooth running of the hearing, I grant Mr Craig's request to have a lawyer as a McKenzie friend, subject to specified conditions. I leave the same option open to Mr Stringer and grant his request for a lay McKenzie friend.
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(c) Mr Stringer must pay security for costs of $5,000.
The context for these proceedings was outlined in a previous interlocutory judgment in November 2018. 1 In summary, in 2015, Mr Stringer made various public allegations against Mr Craig, including that Mr Craig had sexually harassed Ms Rachel MacGregor. Mr Craig denied them and, with his wife Mrs Helen Craig, held a press conference, launched a booklet and made other statements containing allegations against Mr Stringer on 29 July 2015.
On 10 September 2015, in the Christchurch High Court, Mr Craig filed his defamation proceeding against Mr Stringer. That proceeding was settled by consent with judgment being entered for Mr Craig. 2 But on Mr Stringer's application, part of the judgment, relating to the alleged sexual harassment of Ms McGregor, was recalled and re-opened by Associate Judge Osborne, as he then was, on the basis of new
There is a wider context of several other defamation proceedings about the same subject matter. The first to be tried was the suit by Mr Jordan Williams against Mr Craig for allegedly defaming him, including for saying Mr Williams had lied about Mr Craig sexually harassing Ms MacGregor. The jury trial was held over nearly four weeks in September 2016. 5 Ms MacGregor was called to give evidence. Liability and damages are both now subject to a re-trial. 6 Apparently, Mr Williams is now seeking recall of the Supreme Court's judgment ordering that.
In addition to suing Mr Stringer, Mr Craig sued three other defendants, including for saying he had sexually harassed, or had lied about sexually harassing, Ms MacGregor:
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(a) On 19 August 2015, Mr Craig sued Mr Cameron Slater and Social Media Consultants Ltd. The judge-alone trial was held over almost four weeks in May 2017. Ms MacGregor was called to give evidence. That proceeding, and Mr Slater's counter-claim, was determined by Toogood J but is now under appeal to the Court of Appeal. 7.
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(b) On 10 November 2016, Mr Craig sued Ms MacGregor herself. The judge-alone trial was held over two weeks in September/October 2018. Ms MacGregor gave evidence. She also counterclaimed against Mr Craig alleging he defamed her by saying she had brought a false claim of sexual harassment against him and she was a liar. 8 The trial has been held but judgment has yet to issue.
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(c) On 29 May 2017, Mr Craig sued Mr Williams. Associate Judge Smith held issue estoppel and/or abuse of process prevented re-litigation of the conclusive determination in Williams v Craig of whether Mr Craig sexually harassed Ms MacGregor, before the Supreme Court ordered the re-trial. 9
On 2 May 2019, I heard argument about whether any aspects of these two proceedings involving Mr Craig and Mr Stringer are estopped or are an abuse of process, as well as three interlocutory applications by Mr Craig. The parties are all self-represented. I am grateful to counsel assisting the court, Mr Akel, for his valuable assistance.
In a memorandum of 26 February 2019, Mr Stringer raised the question of whether factual findings in other judgments involving Mr Craig raised an issue estoppel against Mr Craig's proceeding against him. I put the issue on the agenda of a conference, held under s 35 of the Defamation Act 1992, between the parties to this proceeding and Mr Craig's proceeding, on 8 March 2019. At that conference, as I subsequently recorded in a minute: 10
[4] Mr Stringer raised the question of whether the Craig proceeding might be estopped by findings in other proceedings regarding the issue of whether Mr Craig sexually harassed Ms Rachel MacGregor and whether he can rely on those facts as proven without calling Ms MacGregor as a witness. 11 He filed and served a will-say statement dated 20 February 2018 that she declined to sign. The defendants in the Stringer proceeding raised the question of whether Mr Stringer's proceeding against Mr Craig and Mr Stitt might be estopped or otherwise impacted by the judgment of Associate Judge Osborne of 19 December 2017. 12 Mr Stringer raised issues about concessions he made that were recorded in that judgment, and their confidentiality.
[5] As I indicated at the conference, these issues will be dealt with as an interlocutory matter …
In preparation for the interlocutory hearing and at my invitation, Mr Akel filed and served a memorandum about the law relating to estoppel and abuse of process which was circulated to the parties. None of the parties sought to make interlocutory applications. However, as I noted in a minute of 16 April 2019, “these issues are close to the core of the integrity of the justice system” so I proposed to consider them at the 2 May 2019 hearing and invited the parties to make submissions about them, if they wished. 13
“Res judicata” is a latin expression used by lawyers to describe a legal doctrine which means “the matter has been adjudicated”. 14 The community needs judicial decisions to be final and conclusive. And individuals need to be protected from repeated law suits for the same cause. There are two forms of res judicata. Cause of action estoppel prevents someone from bringing a cause of action against someone else if precisely the same cause of action has been previously determined between them. Issue estoppel prevents a litigant in one proceeding questioning a necessary legal holding or factual finding about an issue in a previous proceeding between them. Its purpose is “to preclude a party from repeated argument of the same substantive issue”. 15
The effect of res judicata is preserved by s 50 of the Evidence Act 2006 which provides, relevantly:
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(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in … another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given”.
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(2) This section does not affect the operation of—
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(a) a judgment in rem; or
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(b) the law relating to res judicata or issue estoppel; or
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(c) the law relating to an action on, or the enforcement of, a...
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