BRADY ERROL CHADWICK V DOMINION POST/FAIRFAX MEDIA HC WN CIV 2008-485-2614 [2009] NZHC 511 (8 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                    CIV 2008-485-2614



               BETWEEN                     BRADY ERROL CHADWICK
                                           Plaintiff

       
       AND                         DOMINION POST/FAIRFAX MEDIA
                                           Defendant


Hearing:  
    8 May 2009

Counsel:       No Appearance for Plaintiff
               R K P Stewart for Defendant

Judgment:      8 May 2009


                  ORAL JUDGMENT OF RONALD YOUNG J




Introduction


[1]    In these civil proceedings, which appear to allege
defamation and conspiring
to commit an unidentified crime, the defendant seeks an order for security for costs
and, if successful,
an order staying these proceedings until the security for costs is
paid or appropriately secured. There has been no appearance by
the plaintiff nor any
response documents filed, although the application, supporting affidavits and notice
of today's hearing date
have all been sent to the plaintiff's address for service.


[2]    On 23 November 2007 the Dominion Post newspaper published the
following paragraph in its "Capital Beat" column:

       WANTED

       Brady Errol Chadwick, 33, on charges of common assault,
speaking
       threateningly, receiving stolen property, wilful trespass and six charges of
       failing to answer bail.
BRADY
ERROL CHADWICK V DOMINION POST/FAIRFAX MEDIA HC WN CIV 2008-485-2614 8 May
2009
[3]    Just over twelve months later the plaintiff
issued these proceedings in the
High Court alleging the publication was defamatory. While the pleadings do not
identify what words
were defamatory nor how they were defamatory it seems the
plaintiff relies upon the claim that the charges he faced were subsequently
withdrawn
by the Police to support his proposition.


[4]    Mr Chadwick        seeks     damages        being,   as    he   has
   pleaded,
"collateral/commodities to the value of three billion New Zealand dollars payable as
uranium for use in Atomic Power
Stations" as well as a printed correction.


[5]    In response the defendant in its statement defence says:


       a)       the
statement of claim is defective in a number of ways;


       b)       they admit they publish the Dominion newspaper and that they
                published the column concerning the plaintiff;


       c)       they say that the words and photograph published
were on an occasion
                of qualified privilege; and


       d)       they deny all other allegations.


[6]    Rule
5.45 of the High Court Rules empowers a Court to order security for
costs where there is reason to believe the plaintiff will be
unable to pay costs and an
order may be made if the Court considers it is just in all circumstances.


[7]    As a first step, therefore,
I must be satisfied there is reason to believe that
Mr Chadwick will be unable to pay the defendants costs if Mr Chadwick is
unsuccessful.


[8]    I am satisfied that there is reason to believe that Mr Chadwick will be unable
to pay any costs order against him. As the
defendant's researches establish there is
no record that the plaintiff owns any assets. He is not recorded as owning any land,
or
having any interest in any property by virtue of the Personal Property Securities
Register or as a shareholder in any company.
[9]
   The plaintiff himself self describes as unemployed and of no fixed abode.
His address for service is care of the Downtown Ministry.


[10]   In addition the defendants received no response to a letter sent to the plaintiff
on 6 December 2008 inviting him to provide
information as to how he could pay any
costs award against him.


[11]   Three other factors point strongly towards granting security
in this case:


       a)     Firstly, the merits of the plaintiffs' claim seem modest indeed. In
              similar factual circumstances
in Ferrymead Tavern v Christchurch
              Press Company Limited  (1999) NZAR 529 this Court found for the
              defendants in a summary judgment application in that they had made
              out a defence
of qualified privilege. Currently it seems probable that
              such a defence would be available to the defendants should
this matter
              come to trial.


       b)     The plaintiffs current pleading is wholly inadequate and may not
      
       reveal any cause of action. The claim for damages seems hugely
              inflated and, as to the claim for damages to
be payable in Uranium
              this is, as I have previously pointed out to Mr Chadwick in other
              litigation, simply
beyond this Court's power.


       c)     Thirdly, the plaintiff has recently filed ill considered and speculative
            
 civil   cases    in   the    High    Court    at   Wellington.        See
              Brady Errol Chadwick v The Attorney-General
of New Zealand
              (CIV 2008-485-2701,         CIV 2008-485-2702,      CIV 2008-485-2705,
              CIV 2008-485-2706,
CIV 2008-485-2616) and Brady Errol Chadwick
              v The Superintendent of Rimutaka Prison (CIV 2008-485-762).
          
   These have either been dismissed on the merits or struck out before
              trial. In December 2008 Wild J directed that
the Registrar of this
              Court not accept further new proceedings from Mr Chadwick for
              filing without authorisation
from a High Court Judge.
[12]    As against these failures is the prospect, if an order for security for costs is
made, that this
might effectively prevent Mr Chadwick from continuing this
litigation.   In this case I accept that it is probable that it will do
so unless
Mr Chadwick has access to unidentified funds.


[13]    However, here, given the plaintiff's case is currently ill formed,
the merits
seem to clearly favour the defendant and the plaintiff apparently has neither assets
nor income beyond a state benefit,
justice requires that an order be made.


[14]    As to quantum, the defendants estimate a five-day trial. Given the narrow
compass
of the facts one would hope that might not be required. However, I do
accept that given the complexity of pleading and litigating
defamation especially
where, as here, the plaintiff has no legal assistance it is reasonable to expect
significant interlocutory
hearings.


[15]    The proper course I think is now a staged order for security for costs. The
current order I make reflects all
interlocutory matters to trial. If Mr Chadwick was in
a position to pay security or have a security provided to the satisfaction
of the
Registrar of the High Court, then further application could be made and considered
relating to the trial itself.


[16]  
 I, therefore, make an order for security for costs in the sum of $10,000, as I
have said, to be either paid by Mr Chadwick or appropriately
secured to the
satisfaction of the Registrar of the High Court. I make an order that unless and until
payment or security is provided
these proceedings be stayed.




                                                           __________________________
         
                                                              Ronald Young J

Solicitors:
R K P Stewart, Izard Weston, PO Box 5348,
Wellington, email: [e-mail]