Wishart v Murray … Ors

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 22 December 2015
• Neutral Citation: [2015] NZHC 3363
• Docket Number: CIV-2012-404-001701
• Court: High Court
• Date: 22 December 2015

Between

Ian Wishart

Plaintiff

and

Christopher Robert Murray

First Defendant

Kerri Maree Murray

Second Defendant

Dimension Data New Zealand Limited

Third Defendant

[2015] NZHC 3363

judge/s

Courtney J

CIV-2012-404-001701

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application to strike out or stay proceedings on the basis of defects in the statement of claim — the first defendant set up a Facebook page as part of a campaign calling for a boycott of a book written by the plaintiff — the plaintiff sued for defamation relating to statements that were posted on Twitter and on Facebook — plaintiff also claimed that the third defendant (the first defendant's then employer) was also liable on the basis that the first defendant's activities were carried out while he was at work, using his employers communications infrastructure, and that his employer had encouraged the boycott — the plaintiff had grouped the tweets, Facebook statements, and the third party Facebook statements together as single causes of action — whether the statement of claim complied with s7 Defamation Act 1992 (single publication to constitute one cause of action) — whether multiple publications by the same author could be treated as a single cause of action — whether statements by different authors could constitute a single publication — whether the only basis for liability for third party statements was actual knowledge and a failure to remove the statements ( Murray v Wishart (CA)) — whether the claims were time barred — whether time start to run from the first day the comments were published online — what constituted a fresh cause of action as opposed to the further particularisation of an existing cause of action?

Appearances:

Plaintiff in person

E D Nilsson for First and Second Defendant

E M S Cox for Third Defendant

JUDGMENT OF Courtney J

Table of Contents
Para No.
Introduction	[1]
Principles relevant to applications for strike out and stay of proceedings	[6]
The issues for determination	[9]
The current pleadings and the applications	[10]
Compliance with r 5.17 High Court Rules and s 7 Defamation Act 1992
The issue	[14]
General principles	[15]
Multiple publications by the same author as a single cause of action	[18]
Statements by different authors as a single cause of action	[22]
The tweets as a single cause of action	[26]
Mr Murray's Facebook statements as a single cause of action	[29]
The third party Facebook statements as a single cause of action	[32]
Particulars	[34]
First and second causes of action – bases of liability as separate causes of action	[35]
The fifth cause of action – bases of liability as separate causes of action
The issues	[37]
Does Wishart v Murray preclude other bases of liability?	[40]
Third party statements as the natural and probable consequence of Mr Murray's own statements	[47]
Endorsement or adoption of third party statements	[56]
Exemplary damages	[66]
Limitation issues	[71]
When did time start running?	[74]
Do some allegations constitute fresh causes of action that are time barred?	[80]
Summary and conclusion	[88]

Introduction

1 The plaintiff, Ian Wishart, is the author of the book Breaking Silence: The Kahui Case, which concerned the death of infant twins and the subsequent acquittal of their father on charges of murder. The book was written in collaboration with the babies' mother, Macsyna King. It generated a strong reaction on social media. Much of the comment emanated from a Facebook page set up by the first defendant, Christopher Murray, who facilitated a campaign calling for a boycott of the book.

2 Mr Wishart sues Mr Murray in defamation for statements that he posted on Twitter and on the Facebook page and for statements posted on the Facebook page by third parties. He sues Mr Murray's wife, Kerri Murray, for statements that she posted on the Facebook page. He also sues Mr Murray's then employer, Dimension Data New Zealand Ltd (DDNZ), on the basis that Mr Murray's activities were, in large part, carried out while he was at work, using DDNZ's communications infrastructure, and that DDNZ encouraged Mr Murray in his boycott.

3 The current pleading is the fourth amended statement of claim (ASOC4). DDNZ has applied to strike out part of it. Alternatively, it seeks an order staying the proceedings until a proper pleading is provided. DDNZ argues that the Court of Appeal's judgment in Murray v Wishart sets out the only way in which a Facebook page host can be held liable for the comments of third parties. 1 Consequently, it submits the only tenable causes of action against it are those alleging vicarious liability for Mr Murray's Facebook page statements and direct liability for endorsement or adoption of those publications by the actions of one of its employees in linking to the Facebook page from the company intranet. It also asserts that some of the pleaded allegations are time barred and that there are many aspects in which ASOC4 fails to comply with the Defamation Act 1992 and the High Court Rules.

4 Mr Murray was granted leave to be heard in support of DDNZ's application. He did not file an application but at the hearing asked that parts of the claim against him be struck out or the proceeding stayed on conditions, raising similar arguments as those advanced by DDNZ.

5 Mr Wishart resists the applications and maintains that ASOC4 is compliant and capable of being responded to.

Principles relevant to applications for strike out and stay of proceedings

6 A strike out application proceeds on the assumption that the facts pleaded in the statement of claim are true. 2 Before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed. The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material. The fact that applications to strike out raise difficult questions of law and require extensive argument does not exclude jurisdiction but particular care is required in areas where the law is confused or developing. 3

7 The defendants' application for stay of the proceedings is brought in reliance on r 15.1 of the High Court Rules and on the Court's inherent jurisdiction. Rule 15.1 allows for all or part of a pleading to be struck out if it discloses no reasonably arguable cause of action and also provides:

• (3) Instead of striking out all or part of a pleading … the court may stay all or part of the proceeding on such conditions as are considered just.

• (4) This rule does not affect the court's inherent jurisdiction.

8 Given the procedural history of this case I accept that it may be appropriate for the Court to exercise its inherent jurisdiction to stay the proceedings on conditions if the defendants' complaints about the pleadings are made out. Mr Wishart is unrepresented. Pleadings in a defamation case are subject to specific requirements and proper pleadings are especially important to fairly inform the defendants of the case against them. The purpose of the use of the Court's inherent jurisdiction is to ensure that justice is administered according to law in a regular, orderly and effective manner. 4

The issues for determination

9 The applications require determination of the following issues:

• (a) Does ASOC4 comply with s 7 of the Defamation Act 1992? In particular:

  • (i) Can several publications be pleaded as giving rise to a single cause of action?

  • (ii) What are the identifiable bases of liability alleged against each defendant and does each have to be pleaded as its own cause of action?

    • (b) Does ASOC4 comply with r 5.17 of the High Court Rules?

    • (c) Is the fifth cause of action (concerning third party statements on the Facebook page) tenable as pleaded? In particular:

      • (i) Are the grounds on which Mr Murray and DDNZ could be held liable for these statements limited to the circumstances identified by the Court of Appeal in Murray v Wishart?

      • (ii) If not, are the other pleaded bases of liability for third party statements tenable?

        • (d) Is the claim for exemplary damages against DDNZ tenable?

        • (e) Are some causes of action time-barred?

The current pleadings and the applications

10 Mr Wishart filed his original statement of claim in March 2012. The first amended statement of claim was filed in July 2013 following my decision striking out parts of the original statement of claim. 5 After a partially successful appeal on the issue of liability for third party posts on the Facebook page, Mr Wishart filed a second amended statement of claim. Requests by the defendants for clarification resulted in a third amended statement of claim. In March and April 2015 DDNZ filed the present applications to strike out and to stay, which resulted in the ASOC4 being filed in May 2015.

11 ASOC4 pleads five causes of action, though only the first, second and fifth are relevant to the applications:

• (a) The first cause of action concerns five tweets that Mr Murray posted on Twitter on 28 June 2011 (“the tweets”). Four contain links to the Facebook page that was central to the boycott campaign. It is alleged that Mr Murray is liable as the author of his own statements and that DDNZ is vicariously liable for Mr Murray's statements.

• (b) The second cause of action concerns a series of posts made by Mr Murray to the Facebook page between 28 June and 4 July 2011 (“Mr Murray's Facebook statements”). It is alleged that Mr Murray is liable as the author of statements he posted himself and DDNZ is either vicariously liable for Mr Murray's acts...