Driver v Radio New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: Clark J
• Judgment Date: 12 December 2019
• Neutral Citation: [2019] NZHC 3275
• Court: High Court
• Docket Number: CIV-2017-485-443
• Date: 12 December 2019

UNDER the Defamation Act 1992

Between

Denise Driver

Plaintiff

and

Radio New Zealand Limited

First Defendant

Stuff Limited

Second Defendant

Television New Zealand Limited

Third Defendant

Mediaworks Holdings Limited

Fourth Defendant

Sky Network Television Limited

Fifth Defendant

[2019] NZHC 3275

Clark J

CIV-2017-485-443

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Defamation, Limitation, Tort — limitation period for defamation claims — constructive knowledge for determining a late knowledge date — non-continuing publications — continuing publications — reasonable expectation of privacy after arrest — highly offensive threshold — Defamation Act 1992 — Limitation Act 2010

Appearances:

P A McKnight and A J Romanos for Plaintiff

R K P Stewart and T F Cleary for First, Second and Fourth Defendants

D M Salmon for Third Defendant

L A O'Gorman for Fifth Defendant

JUDGMENT OF Clark J

I direct the delivery time of this judgment is 12:00 pm on 12 December 2019

Table of Contents

	Para No
Introduction	[1]
Background	[3]
Factual background in overview	[3]
Litigation background	[5]
Strike-out application	[12]
Principles relating to strike-out	[17]
What is the limitation period for defamation claims?	[21]
What constitutes constructive knowledge?	[24]
Late knowledge: plaintiff's case	[34]
Late knowledge: defendants' case	[45]
Late knowledge: discussion	[51]
Non-continuing publications	[52]
Continuing publications	[65]
Are the claims for declaratory relief different?	[75]
Summary	[84]
Invasion of privacy claims	[85]
Reasonable expectation of privacy	[93]
Highly offensive threshold	[97]
Fact of arrest and details of the allegations	[99]
Can there ever be a reasonable expectation of privacy in the fact of arrest?	[100]
Do the distinct procedural aspects of the Indian criminal justice system preclude a reasonable expectation of privacy for Ms Driver?	[115]
Was any reasonable expectation of privacy lost following widespread publicity in the Indian media?	[125]
Highly offensive threshold	[130]
Footage of Ms Driver's reaction to being confronted with the allegations in her hotel room	[139]
Passport details and residential address	[144]
Reaction of Ms Driver's family to her arrest	[146]
Result	[148]

Introduction

1 The plaintiff sues all five defendants in defamation and for invasion of privacy. The defendants apply to strike out all causes of action in privacy on the basis the claims are clearly untenable. They also seek to strike out the money claims in defamation on the basis those claims are either barred by the Limitation Act 2010 or because the harm suffered was less than minor.

2 The hearing of those applications proceeded by way of determining, before trial, the question of the late knowledge date for each of the publications relied upon in any claim in defamation against the defendants not otherwise struck out.

Background

Factual background in overview

3 The plaintiff's claims in defamation are said to arise out of the defendants' reporting of her arrest in India in December 2014. The plaintiff's case is that the reports “repeated and further sensationalised, outrageous allegations made by the Indian Police which were then published by the Indian media”.

4 The issues raised by the present interlocutory applications are similar to issues raised by earlier interlocutory applications heard by Ellis J in September 2017. It is convenient, therefore, to set out the background as summarised by her Honour: 1

[3] Ms Driver was born in New Zealand but has spent much of the past 30 years overseas. In late 2014 she was based in Bangalore, India, promoting a multi-level or network marketing scheme called Smart Media. On 3 December 2014, she attended a meeting in a hotel room with potential Smart Media clients, when she and three Indian associates were arrested by local Police on suspicion of “cheating” (which I understand to be an Indian legal term) and being engaged in an illegal money circulation scheme.

[4] The Bangalore Police subsequently issued a statement to the media regarding these events. Between 7 and 9 December 2014 reports of Ms Driver's arrest were published and broadcast by the defendants in New Zealand. On 8 December, it seems that Ms Driver was told by MFAT staff about the media reports. The subsequent chronology of events (as deposed by Ms Driver) is as follows:

• (a) on 15 December Ms Driver was transferred from Police to judicial custody. Two days later she was granted bail, but remained in judicial custody;

• (b) on 28 December 2014 RNZ broadcast a follow up report on the events surrounding Ms Driver's arrest;

• (c) on 24 January 2015 Ms Driver was released from judicial custody, following a modification to her bail terms which included the surrender of her passport;

• (d) on 14 February 2015, Ms Driver contacted a New Zealand defamation lawyer, Mr Stephen Price, about the media reports. The following day he advised her of the two year limitation period for defamation claims;

• (e) Ms Driver remained on bail in India for the rest of 2015. In December, she again contacted Mr Price and advised that she intended to sue five New Zealand media organisations, but took no further steps;

• (f) in June 2016 Ms Driver conducted her own research about the operation of ss 45–46 of the Limitation Act 2010 (the LA);

• (g) in August 2016, she again contacted Mr Price and another New Zealand lawyer (Mr Nilsson) confirming her intention to sue seven New Zealand media organisations. On 14 October 2016 Mr Nilsson reminded Ms driver of the two year limitation period;

• (h) in February 2017 Ms Driver was acquitted on the “cheating” charges and on the 17th of that month she received permission to leave India. She arrived back in New Zealand shortly afterwards.

Litigation background

5 Beyond the factual backdrop, it is necessary also to set out in some detail the litigation history because aspects of it assist in understanding the assertion of abuse of process.

6 The present claims are in defamation and privacy but when the proceeding was commenced on 25 May 2017 the claims were solely in defamation. The seven defendants named at that stage filed an application to strike out. In an amended statement of claim filed on 20 July 2017, Ms Driver joined two further defendants. Prior to the hearing of the strike-out applications, Ms Driver filed a second amended statement of claim expressly pleading various late knowledge dates for the purpose of s 14 of the Limitation Act and sought orders granting those late knowledge dates and extending the primary limitation period for all claims.

7 Following the hearing of the interlocutory applications in September 2017, Ellis J:

• (a) declined Ms Driver's application under s 45 of the Limitation Act for orders extending the primary limitation period for all claims to 17 February 2019;

• (b) except in one respect, dismissed the defendants' application to strike out the statement of claim;

• (c) required amendment of the statement of claim within 20 working days; and

• (d) ordered Ms Driver to pay staged security for costs, the final sum of $40,000 to be paid 10 working days before the commencement of trial.

8 A third amended statement of claim was filed on 25 January 2018 followed by statements of defence and replies to statements of defence were filed. A fourth amended claim filed in July 2018 was the catalyst for a further round of pleadings. There followed an application to strike out, a fifth amended statement of claim, statements of defence and notices of discontinuance against some defendants.

9 The statement of claim has undergone something of a metamorphosis since the defendants filed their application to strike out on 19 September 2018. That application was based on the fourth amended statement of claim. Ms Driver did not respond with a notice of opposition but on 9 October 2018 filed a fifth amended statement of claim adding against each defendant a cause of action for invasion of privacy.

10 On 23 November 2018, the defendants amended their interlocutory application so as to:

• (a) strike out the claim against each defendant; or, in the alternative,

• (b) determine before trial the question of the late knowledge date for each publication relied on by the plaintiff that is not struck out; and

• (c) strike out the causes of action claiming invasion of privacy against each defendant and certain items allegedly broadcast by the third and fourth defendants on 8 and 9 December 2014.

11 On 5 December 2018, the matter was set down to be heard in March 2019. On 31 January 2019, Ms Driver filed a notice of opposition to the defendants' interlocutory application but consented to a pre-trial determination of the question of late knowledge dates in relation to each publication she relies upon. By February 2019, however, the interlocutory issues had expanded. Longer hearing time was needed and the interlocutory matters were set down for hearing in July 2019. On 11 April 2019, Ms Driver filed a sixth amended statement of claim adding further publications and specifying additional late knowledge dates.

Strike-out application

12 The defendants apply to strike out the causes of action in privacy and defamation. In this overview of the strike-out application I deal only with the parties' positions in relation to the defamation causes of action. I discuss the privacy dimension of the application from [85] of this judgment.

13 The defendants say all publications were reasonably discoverable before 25 May 2015 (for the publications relevant to the first to fourth defendants) 2 and 20 July 2015 (for the publication relevant to the fifth...