Murray v Wishart

• Jurisdiction: New Zealand
• Judge: Ellen France J,O'Regan P
• Judgment Date: 19 September 2014
• Neutral Citation: [2014] NZCA 461
• Court: Court of Appeal
• Docket Number: CA222/2013
• Date: 19 September 2014

BETWEEN

Christopher Robert Murray

First Appellant

Kerri Maree Murray

Second Appellant

and

Ian Wishart

Respondent

and

Dimension Data New Zealand Limited

Interested Party

[2014] NZCA 461

Court:

O'Regan P, Ellen France and French JJ

CA222/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against the High Court's refusal to strike out the respondent's claim for defamation — respondent wrote a book about a mother and the non-accidental death of her twins — father had been tried for murder of twins but acquitted and finger had been pointed at mother in that trial — mother collaborated on the book but did not receive any money — appellant had established a Facebook page together with an information statement on the page which said appellant was trying to organise a boycott of the book so that mother would not profit from the book — appellant made comments about author, the book and the mother on Twitter and hyperlinked to the Facebook page through his Twitter account — other Facebook users also posted critical statements on the Facebook page — whether the information statement on the Facebook page could be used as context for determining the meaning of the Twitter statements — whether the “actual knowledge” test or the “ought to know” test should be applied in determining if a Facebook host was a publisher.

Counsel:

D Nilsson for Appellants

Respondent in person

H B Rennie QC and E M S Cox for Interested Party

• A The appeal is allowed in part.

• B he High Court decision in relation to the fifth cause of action in the amended statement of claim relating to third party statements on the Facebook page hosted by the first appellant is quashed and replaced with a ruling that this aspect of the fifth cause of action is not a tenableclaim. We do not strike out the claim but order that the respondent must file in the High Court and serve an amended statement of claim within 30 days of the date of delivery of this judgment (or such other period allowed by the High Court) omitting the present claims relating to third party statements and limiting any renewed claims in relation to any third party statement to claims that the first appellant knew of any such statement and failed to remove it within a reasonable time in circumstances that give rise to an inference that he was taking responsibility for such statement.

• C In all other respects the High Court decision stands.

• D We make no award of costs in this Court.

• E Costs in the High Court must now be determined in light of this decision.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by O'Regan P and Ellen France J)

Table of Contents

	Para No
Introduction	[1]
Facts	[5]
Procedural history	[8]
Issues	[13]
Were the statements capable of bearing the pleaded defamatory meaning?	[17]
The first cause of action: the Twitter statements	[20]
The issues arising under the first cause of action	[24]
The second cause of action: the Facebook statements	[42]
The Information Statement	[43]
Our analysis	[46]
The “McDonald's” statement	[52]
The appeal	[54]
The opportunism statement	[56]
The appeal	[58]
The facts statement	[62]
The appeal	[64]
Joint meanings	[66]
The appeal	[68]
The third cause of action - the Radio Live statements	[71]
The fourth cause of action - the Kerri Murray statement	[75]
The approach in the High Court	[78]
The appeal	[79]
Third party statements: is Mr Murray a publisher?
The test applied by the Judge	[81]
The appellants' case	[83]
How the Facebook page worked	[84]
High Court approach	[87]
Emmens v Pottle	[93]
Our analysis	[99]
Byrne v Deane	[100]
Urbanchich v Drummoyne Municipal Council	[102]
Sadiq v Baycorp (NZ) Ltd	[105]
United States cases	[109]
English cases	[115]
Trkulja v Google Inc LLC (No 5)	[123]
Oriental Press Group Ltd v Fevaworks Solutions Ltd	[124]
Application to the present facts	[125]
Our concerns about the ought to know test	[136]
Mr Wishart's statement of claim	[147]
Security for costs	[156]
Costs in the High Court	[167]
Result	[170]
Costs in this Court	[172]

Introduction

1 This is an appeal against a decision of Courtney J dealing with an application by the appellants, Mr Chris Murray and Mrs Kerri Murray, to strike out the statement of claim filed in the High Court at Auckland by the respondent, Mr Wishart, claiming damages for defamation. 1

2 Dimension Data New Zealand Ltd (DDNZ) is the third defendant in Mr Wishart's High Court claim. DDNZ was, at the relevanttime, Mr Murray's employer. It was not a participant in the hearing from which the present appeal arises. But it has an interest in the outcome on the issue relating to publication of third party comments. Its counsel, Mr Rennie QC, was given leave to make written and oral submissions on that issue.

3 The appellants were partly successful in the High Court, but although the Judge struck out parts of the statement of claim, much of it survived the strike-out application. The appellants appeal against the Judge's refusal to strike out those other aspects of the statement of claim and also appeal against her decisions not to order that Mr Wishart pay security for costs and not to make a costs award against Mr Wishart.

4 It is necessary to traverse some of the background in order to provide the necessary context for a discussion of the issues raised by the appeal. So we will set out the factual background first, and then outline the issues before us.

Facts

5 Mr Wishart is the author of a book called Breaking Silence, about a woman named Macsyna King. Ms King collaborated with him on the book. She did not, however, ask for or receive any money from the proceeds of the book.

6 The background to the book is that Ms King was the mother of Chris and Cru Kahui, who were twins. They died at the age of three months in 2006 from non-accidental injuries. Their father, Chris Kahui, was charged with their murder but acquitted. During his trial, he suggested that Ms King had inflicted the fatal injuries. A subsequent coroner's report found that the twins had died while in Mr Kahui's sole care. Nevertheless, suggestions implicating Ms King retained some currency in the public arena. The trial of Chris Kahui for the murder of the twins generated considerable public interest.

7 Mr Murray learned of the impending publication of Mr Wishart's book in June 2011. He established a Facebook page called “Boycott the Macsyna King book” (which we will refer to from now on as the “Facebook page”). He used his Twitter account to publicise the Facebook page. He posted comments on Twitter and on the Facebook page criticising both Mr Wishart and Ms King. Mrs Murray posted comments on the Facebook page, as did numerous other people. Mr Murray also made comments about both Mr Wishart and Ms King during radio interviews.

Procedural history

8 Mr Wishart claims damages from Mr and Mrs Murray and from DDNZ as Mr Murray's employer, alleging that many of the comments made on Twitter, on Facebook, and during the radio interview defamed him. At the time of the High Court hearing he was claiming $8 million in damages. This figure has now been reduced to $2 million.

9 Mr Wishart's claims are:

• (a) the first cause of action is a claim against Mr Murray and DDNZ in relation to allegedly defamatory statements made by Mr Murray on his Twitter account;

• (b)the second cause of action was a claim against Mr Murray and DDNZ in relation to statements made by Mr Murray on the Facebook page and in relation to posts by Mr Murray on his Twitter account directing readers to the Facebook page;

• (c) the third cause of action relates to allegedly defamatory statements made by Mr Murray during radio interviews on Radio Live; and

• (d) the fourth cause of action is a claim against Mrs Murray for statements she made on the Facebook page. The fourth cause of action also includes a claim against Mr Murray and DDNZ in relation to the third party statements made by persons posting comments on the Facebook page. 2

10 Mr and Mrs Murray applied to strike out the claim in its entirety. As noted above, 3 they were only partially successfulin the High Court. As an alternative, they sought orders that Mr Wishart give security for costs and that the proceeding be stayed until the security was given. Courtney J refused to make these orders.

11 DDNZ also sought both defendant summary judgment and an order striking out the claims against it, but decided to withdraw those claims after late disclosure of certain information. That is why it was not a party to the High Court hearing that led to the present appeal.

12 The application for strike-out was made on the basis that the statements by Mr Murray (on his Twitter account, the Facebook page and during the Radio Live interviews) were incapable of bearing the pleaded meanings. In relation to the third party statements on the Facebook page, the strike-out application was based on the argument that Mr Murray was not a publisher of those statements. In addition it was argued that the statement of claim did not comply with the High Court Rules and/or amounted to an abuse of process.

Issues

13 Courtney J struck out a number of the pleaded meanings either wholly or in part and also struck out significant parts of the statement of claim for non-compliance with the High Court Rules. However, she did not accept that a number of the statements in the statement of claim were incapable of bearing their pleaded meanings. The first issue is whether the Judge was correct that the statements surviving the strike-out application were capable of bearing their pleaded meanings. Addressing that...