Sellman v Slater
| Jurisdiction | New Zealand |
| Judge | Palmer J |
| Judgment Date | 17 July 2019 |
| Neutral Citation | [2019] NZHC 1666 |
| Date | 17 July 2019 |
| Court | High Court |
| Docket Number | CIV-2016-404-1312 |
[2019] NZHC 1666
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-1312
J P Cundy for the Plaintiffs
B P Henry for the first defendant
E J Grove for the second and third defendants
J W S Baigent and W Akel for the fourth and fifth defendants
Civil Procedure, Tort — defamation — defendant failed to comply with discovery orders — whether bankruptcy negated the defendant's obligations to comply with Court orders — Insolvency Act 2006
Application by the plaintiffs for orders that Slater (“S”) comply with High Court (“HC”) orders for discovery and oral examination or be held in contempt of court. The three plaintiffs were medical professionals and were suing S and others in defamation. S argued he was no longer a party to the proceeding or able to engage a solicitor, because he was bankrupt and suffered from medical issues. The HC ordered the proceeding to continue against S despite his bankruptcy, under s76(2) Insolvency Act 2006 (“IA”).
The issue was whether S should be compelled to comply with the Court orders.
The Court held S' bankruptcy had not negated the need to comply with previous Court orders.
Section 76(2) IA provided that “on the application by any creditor or other person interested in the bankruptcy, the court may allow proceedings that had already begun before the date of adjudication to continue on the terms and conditions that the court thought appropriate in the predecessor section which was characterised by the HC as wide.
It was implicit term of the order that the proceedings continue, that S comply with the orders, the HC now made it explicit under that discretion and/or under the inherent jurisdiction of the HC to supervise proceedings before it. S must comply with the orders personally if the Official Assignee (“OA”) could not do so through the exercise of the OA's powers over S' property. If S wished to oppose the plaintiffs' application he needed to file a notice of opposition, and any supporting affidavits including any medical evidence. If he was not able to give instructions a litigation guardian would be appointed for him. The order to be examined orally must be complied with by S personally, subject to what the HC said about his medical condition. If the OA had possession of, and control over, S' documents sufficient to discharge his obligations under the discovery order then the OA was requested to arrange compliance with that order. Otherwise, S would need to comply with that obligation personally too.
If required to facilitate compliance with the Court's orders, the HC would consider exercising the discretion in r4.50 High Court Rules (“HCR”) (procedure on death, bankruptcy, and devolution) to order that a successor to S' interest in the proceeding be made a party on specified terms, or to order S make third party discovery under the HCR's or to make any other orders required under the HC's inherent jurisdiction to supervise the conduct of legal proceedings before it
If S was able to give instructions but was not medically able to provide discovery and/or be orally examined or if S was able to give instructions, provide discovery and be orally examined but did not want to do so, the HC required an affidavit explaining the basis of such a statement and its consistency with the various statements made to me to date and the HC would consider appointing a litigation guardian under r4.35 HCR (Appointment of litigation guardian).
This judgment is delivered by me on 17 July 2019 at 12 noon pursuant to r 11.5 of the High Court Rules.
Registrar / Deputy Registrar
In this proceeding, three medical professionals sue Mr Cameron Slater, and other defendants, for defamation. In an interlocutory judgment of 23 November 2018, I ordered Mr Slater to provide further particular discovery and to attend court to be orally examined. Since then, Mr Henry, for Mr Slater, has: applied for a temporary stay on the basis Mr Slater's medical condition prevented him giving instructions; foreshadowed an intention to apply for appointment of a litigation guardian; advised of Mr Slater's bankruptcy; and advised that he has instructions to oppose new applications but that Mr Slater no longer defends the substantive proceeding.
The plaintiffs have applied for orders that Mr Slater comply with the court orders for discovery and oral examination or be held in contempt of court. Mr Henry now submits, on Mr Slater's instructions, that Mr Slater is no longer a party to the proceeding or able to engage a solicitor, because he is bankrupt, and he seeks a formal hearing on that issue. Mr Henry also says there are medical reports from February 2019 confirming Mr Slater is unable to give evidence in court.
On 20 March 2019, I ordered this proceeding to continue against Mr Slater despite his bankruptcy, under a wide discretion in s 76(2) of the Insolvency Act 2006 (the Act). I consider an implicit term of that order is that Mr Slater must comply with the orders made against him in the proceeding, which was one of the reasons why the plaintiffs sought continuation of the proceeding. If that was not sufficiently implicit, I now make it explicit under that discretion and/or under the inherent jurisdiction of the High Court to supervise proceedings before it. That means Mr Slater must comply with the court orders irrespective of Mr Henry's argument about the effect of his bankruptcy. Further argument is not required. Mr Slater must comply with the orders personally if the Official Assignee cannot do so through the exercise of the Assignee's powers over Mr Slater's property. If Mr Slater is able to give instructions, and wishes to oppose the plaintiffs' application to be heard on 26 July 2019, he needs to file a notice of opposition, and any supporting affidavits including any medical evidence. If he is not able to give instructions I will consider appointing a litigation guardian for him.
I would not ordinarily set out the context of a decision such as this one in so much detail, but it may be useful if the issue determined in this judgment is considered on appeal, as Mr Henry has intimated might be sought.
This proceeding was commenced three years ago, in mid-2016. The plaintiffs are three medical professionals, Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane Bradbrook. They sue Mr Slater who they allege defamed them in a series of blog posts on his Whale Oil website. They also sue Mr Carrick Graham and his company Facilitate Communications Ltd (FCL) for defaming them in comments on the posts. And they sue Mrs Katherine Rich and the New Zealand Food and Grocery Council Ltd (NZFGC) for allegedly procuring Mr Slater, Mr Graham and FCL to publish the substance and sting of the alleged defamation. I am case-managing the proceeding to trial.
On 2 October 2017, I decided a number of interlocutory applications brought by the defendants to strike out the proceeding or specific aspects of it. 1 I struck out 21 pleaded meanings of defamatory statements but did not strike out the proceeding. On 23 November 2018, I decided a number of further interlocutory applications. 2 Relevantly, I granted the plaintiffs' applications for: 3
(a) Mr Slater to provide further particular discovery to the plaintiffs and other defendants, because there were grounds for believing he had not discovered relevant documents. He was ordered to provide discovery, within 15 working days, by 14 December 2018, of:
(i) documents passing between him and Mr Graham and FCL and between him and third parties including any of NZFGC's members, relating to:
(1) any of the plaintiffs or Te Reo Marama;
(2) publication of the blog posts, comments or other material on Whale Oil that are the subject of this proceeding and/or that concern the plaintiffs;
(3) the services provided by Mr Slater, Social Media Consultants Ltd, Mr Graham or FCL (including invoices for the services) including in relation to the alcohol, food and beverage or tobacco industries, which relate to the subjects of the blog posts or comments that are the subject of this proceeding;
(ii) documents and data that are or have been in Mr Slater's control, concerning numbers of downloads of each blog post, details of user comments and any requests under the Official Information Act 1982 or Privacy Act 1993 and responses; and
(b) Mr Slater and Mr Graham will attend court to be orally examined for up to one day because I considered they had made insufficient answers to interrogatories, particularly about whether blog posts were posted on the Whale Oil website for reward. That was to be on a date determined by the Registrar after 15 working days of 23 November 2018. The Registrar set the date to be 4 February 2019.
On 14 December 2018, the last day by which Mr Slater's discovery was due, his counsel Mr Henry applied for a temporary stay of the proceeding on the basis of Mr Slater's medical condition. 4 He also applied for suppression of Mr Slater's medical details, of which he provided evidence, which I granted. Mr Henry told me he had been unable to get instructions from Mr Slater due to his lack of concentration. He stated his intention to have Mr Slater's condition completely assessed at the end of January 2019. The plaintiffs opposed the stay, on the basis of their own expert medical opinion evidence. I stated that, without testing...
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