ROMANA V MCKENZIE & ANOR HC AK CIV 2008-425-000210 [2009] NZHC 665 (3 June 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                    CIV 2008-425-000210



                BETWEEN                      SIMON ROMANA
                                             Plaintiff

           
    AND                          HAMISH MCKENZIE
                                             First Defendant

                AND
                         APN HOLDINGS NZ LIMITED
                                             Second Defendant


Hearing:       
3 June 2009

Counsel:        B D Gray QC and A L Ringwood for defendants
                S Romana in person

Judgment:       3 June
2009


             ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT




Solicitors:
Bell Gully, PO Box 4199, Auckland 1140

Mr S Romana,
20 Alana Place, Mt Wellington, Auckland 1606 by email [e-mail]



ROMANA V MCKENZIE & ANOR HC AK CIV 2008-425-000210 3 June
2009
[1]    This proceeding involves a claim by Mr Romana for very substantial
damages for alleged defamation. The claim is in relation
to an article written by the
first defendant (a freelance journalist) and published by the second defendant in its
publication, the
New Zealand Listener, in May 2006.


[2]    The plaintiff commenced his claim on 13 May 2008. The defendants take
issue with several
aspects of the pleading and with the plaintiff's failure to comply
with discovery orders. They applied in October 2008 for orders
striking out the
proceeding for failing to comply with a discovery order, for striking out of various
paragraphs of the statement
of claim for failure to provide proper particulars, for
proper pleading of the damages sought, and for security for costs.


[3]
   The plaintiff initially represented himself. In the latter part of last year he
engaged a solicitor who filed memoranda for case
management purposes on the
plaintiff's behalf and then appeared for him at a case management conference in
February 2009. The plaintiff
has resumed acting for himself in more recent time and
appears in person at today's hearing.


[4]    It is apparent from the pleading
of the statement of claim that the plaintiff
does not have the knowledge or skills to present this claim on his own behalf. It is
also apparent from the Court minutes that the plaintiff is equally unskilled in, and
possibly unaware of, the requirements of the
High Court Rules and the processes that
he, as plaintiff, is required by those rules to follow. He has no understanding of the
requirements
for discovery.


[5]    These are not new observations. The file has been before Associate Judge
Doogue on at least three occasions
for case management conferences.           He has
impressed on the plaintiff the difficulties he faces in attempting to conduct this
litigation in person. He has also extended discovery orders on two occasions after
non-compliance by the plaintiff.
[6]    The plaintiff
has raised medical difficulties in the past as part of the reason
for non-compliance with orders. This led to a direction at the
last case management
conference that he file a medical certificate so that the Court could assess whether he
had the capacity to
conduct this litigation on his own. That is a matter I will come
back to. In the course of the hearing today, the plaintiff informs
me that he has
resolved his health problems and believes that he is now capable of giving
instructions for the future conduct of
the proceeding.


[7]    The defendants have been relatively long suffering, and have to date accepted
further indulgences being
granted to the plaintiff. However, they have brought their
application to hearing today, and seek to have the proceeding struck out,
on the basis
that these indulgences have come to nought, and the proceeding is essentially in as
poor state today as it was when
the application was first filed. It is appropriate that I
identify the principle objections at this point.


Pleading


[8]    The
plaintiff pleads the article in question in full in paragraph 12 of the
statement of claim. In paragraphs 13 and 14 the plaintiff pleads that the entire article
is defamatory
in its natural and ordinary meaning. In paragraph 13 the plaintiff
follows his general pleading (that the entire article is defamatory
in its natural and
ordinary meaning) by identifying various passages which are said to be defamatory.
The particular passages are
then followed by what counsel for the defendants quite
reasonably describes as submissions and argument. Paragraph 14 largely repeats
the
general pleading of paragraph 13, but then alleges a meaning to be taken from the
article as a whole.


[9]    The defendants
take issue with this pleading on a number of bases. First, it is
impermissible to plead the whole article: Karam v Australia Consolidated
Press NZ
Limited (HC AK CIV 2003-404-000497 12 September 2003 Chambers J). Secondly,
the pleading fails to identify clearly the particular
words said to be defamatory, and
the basis on which it is said that they are so (in other words the imputation to be
taken from the
particular words). Thirdly, the defendants say that a number of the
phrases or words that are said to be defamatory (in the break
out of the article under
paragraph 13) are not capable of defamatory meaning, or have meanings attributed
that are not defamatory.
The defendants say they are embarrassed by this pleading
and are unable to determine the case that they are being asked to answer.


[10]   The defendants additionally take issue with paragraphs 13 and 14 on the
grounds that they contain unparticularised allegations
of malice in several places.
They contend that such allegations should only be made with care and with sufficient
particulars to
establish that there is a proper basis for the pleading. They say that
there is no such pleading to support the allegations.


[11]
  In paragraph 15 of the statement of claim the plaintiff pleads special damage
in the form of financial loss through lost business
opportunities. He identifies nine
business opportunities and two instances of personal financial loss apparently
flowing from them,
without providing any particulars.         In paragraph 16 in the
statement of claim the plaintiff seeks damages in the sum of $50
million in respect of
lost business opportunities and personal losses identified in paragraph 15, but fails to
show how that sum
is derived from the $3,356 billion worth of lost opportunities
identified in paragraph 15.


[12]   The defendants also take issue
with a pleading in paragraph 15 that the
plaintiff has lost mana as a consequence of the article. They say that this can only be
a pleading in support of general damages, and are unclear as to whether it is being
alleged that there are factors which put the
plaintiff apart from any other person
facing a defamation claim. If so, they say that those factors should be pleaded
specifically.


[13]   I do not intend the foregoing summary to necessarily be exhaustive of the
points raised by the defendants. It is indicative,
however, of the far-reaching nature
of the deficiencies in the statement of claim. I accept the submission of counsel for
the defendants
that it is unreasonable that a claim of this magnitude should be
pleaded as poorly as this one. It is unreasonable for the claim
to be left hanging over
the first defendant (an individual) or over the second defendant (a publicly listed
company with responsibility
for reporting which it cannot meet fairly without being
able to understand the claim against it).
[14]   I accept that the statement
of claim as pleaded does not comply with the
requirements of s 37 of the Defamation Act 1992 or the requirements for pleadings
of
malice and special damage.


Discovery


[15]   Discovery orders were made in a case management conference on
1 September 2008. Under
those orders the parties were to file and serve affidavits of
documents by 22 September 2008. On 21 September 2008 the plaintiff
faxed a
document to the Court described as an affidavit of discovery. The Court record
shows that it was not accepted for filing because it was a faxed document.
The
original has never been filed. The document on the Court file also shows that it was
not in proper format and clearly did not
comply with the plaintiff's obligations.
Counsel for the defendants had helpfully identified the categories of documents that
it
was wishing to see in the plaintiff's discovery in a memorandum filed on
27 August 2008 for the first case management conference.
The plaintiff does not
appear to have addressed those categories of documents.


[16]   The issue over discovery came before the
Court in a case management
conference on 4 February 2009. The plaintiff was represented by counsel at that
conference. Associate
Judge Doogue noted that the plaintiff had still to provide
discovery. He took into account advice from the plaintiff's counsel that
the plaintiff
was suffering from a health condition and accepted that as a possible reason for non-
compliance. A further order was
made that the plaintiff file and serve his affidavit of
documents by 11 March 2009. He did not do so, but on 31 March 2009 the plaintiff
faxed further documents to the Court, including another non-complying affidavit.
Again that document was not accepted for registration.
The matter was revisited at a
case management conference on 2 April 2009.               At that point Associate Judge
Doogue noted
that there were serious breaches of the timetable orders. His minute
records the following:

       [3]      There have been serious
breaches of the timetable orders in this case.
       I have explained to Mr Romana that if the position is that he is not under
any
       disability then there is no excuse for not complying exactly with the
       timetable orders that the Court makes. I
have also told him that if he does
       not comply he will expose himself to sanctions from the Court. One form
       that those
sanctions can take is that his case may be halted or may even be
       struck out for non-obedience of the Court orders. I hope
it will not come to
       that. I also suggest that in order to carry out the steps that he needs to, Mr
       Romana really should
be assisted by legal counsel. Whether he acts on that
       suggestion or not is a matter for him, but I do have real concerns about
his
       ability to manage this litigation unless he instructs a solicitor and makes
       satisfactory arrangements with the
solicitor to ensure that the solicitor will
       continue acting for him. He is not going to be greatly assisted by having
   
   solicitors acting on a `start-stop' basis.

[17]   Counsel for the defendants informs me today that the plaintiff provided the
defendants with a further non-complying affidavit on 22 April 2009. There is no
record of that document on the file. Counsel for
the defendants tells me, however,
that the documents really fails to advance the matter at all. The defendants rely on
the decision
of this Court in Simunovich Fisheries Limited & Ors v Television New
Zealand Limited & Ors (HC AK CIV 2004-404-3903 3 August 2007,
Allan J), and
particularly the comments at paragraph [27] of that judgment:

       In my opinion plaintiffs who mount claims of
this character and magnitude
       must expect to be faced with demands for detailed and comprehensive
       discovery and indeed
the plaintiffs accept their discovery obligations. There
       are, however, fundamental differences between the parties about the
extent
       of those obligations. In resolving them it is necessary to keep in mind the
       breadth of the Peruvian Guano relevance
test as well as the provisions of r
       300.

[18]   Counsel for the defendants also submitted that what was involved here was
in
substance an application for further general discovery rather than an order for further
and better discovery pursuant to r 300.
I accept that that is the case.


[19]   Counsel for the defendants submitted that the plaintiff had had more than
enough opportunity to comply with the Court orders, and that it was
time to sanction
the plaintiff's non-compliance with strike out. He pointed out that the plaintiff had
been warned of this possibility
on 2 April 2009. He emphasised the very real effect
of the proceeding on both defendants.
Assessment of application


[20]   I have
already indicated that I consider that the present statement of claim is
inadequate in its pleading of defamatory words and meanings,
and its pleading of
damages. The plaintiff is also clearly in breach of discovery orders, and it appears
from the documents that
he has submitted to the Court (which are not yet filed) that
what he has proposed by way of an affidavit of documents clearly does
not meet his
obligations under the High Court Rules.


[21]   The plaintiff says to me today that the non-compliance is not deliberate.
Although he now says that his health has recovered, I understand him to put his
previous poor health forward as at least part of
the reason for non-compliance. I can
accept that that may be so, but not that he could not have engaged counsel with
appropriate
knowledge and expertise in defamation to assist him with this matter.
Further, any solicitor would have been able to advise him on
his obligations for
discovery. There is nothing to stop a person representing himself in litigation, but
that decision does not give
a litigant person licence to ignore the rules for the proper
conduct of the litigation. As I have explained to the plaintiff today,
the rules are to
ensure that both sides have a fair opportunity to present their respective cases. The
plaintiff's actions to date
do not afford the defendants that opportunity.


[22]   The plaintiff accepted these criticisms when put to him in the hearing today.
He informs me he wishes to have the opportunity to instruct counsel with proper
expertise and skill in defamation cases. He informs
me that he has approached
counsel with that experience and can complete those instructions within the next few
days. He also informs
me that he has most documents with him here in New
Zealand (in electronic form on his computer) or that they are otherwise available
to
him electronically (from storage in Canada). He believes that it will be possible to
have properly drafted amended pleadings,
and a comprehensive affidavit of
documents, filed and served within the next 3 to 4 weeks.


[23]   The extravagant nature of this
claim, and the non-compliance with rules of
pleading and orders of the Court would justify an order striking the proceeding out
today.
However, I accept that there have been health issues for the plaintiff in recent
time and that those could have contributed to his
failure to advance his case properly.
I accept the submission of counsel for the defendants that he has been given
warnings and ample
opportunity to correct the deficiencies. However, I intend to
give him one final opportunity, but it will be on the basis that the
proceeding will be
struck out unless the plaintiff complies with the timetable orders I intend to make.


Application for security
for costs


[24]   The plaintiff is permanently resident in Canada. The defendants seek an
order that he provide security for costs,
on a staged basis. They point to evidence to
the effect that the plaintiff has no ascertainable property within New Zealand. They
say that the plaintiff's case is weak, but that does not mean that it should be taken
any less seriously. This inevitably means that
they will have to incur costs of
significant amounts. The defendants seek an order by way of security in the sum of
$15,000 each.


[25]   The plaintiff did not challenge the defendants' arguments. He advised that he
was prepared and in a position to provide
the security sought.


[26]   I am satisfied that the sum being sought by the defendants is reasonable for
the likely costs up to
the end of the interlocutory stage of the proceeding.


General matters


[27]   In the case management conference on 2 April 2009 Associate Judge Doogue
invited the plaintiff
to authorise his doctor to provide a medical certificate to the
Registrar, addressing the plaintiff's capacity to conduct this litigation.
The plaintiff
has arranged for that document to be provided to the Court. It is currently in a sealed
envelope in the Court file.
In light of the plaintiff's indication today that he is now
in good health, I do not see the need to open the envelope and read that
certificate.
The plaintiff has agreed with counsel for the defendant that the letter or certificate be
left in the sealed envelope,
for use at a later date if necessary. I have informed the
plaintiff that, if it is to be used, in the absence of any ruling to the
contrary it should
also be made available at least to counsel for the defendants.


[28]   Counsel for the defendants has also taken
issue with the plaintiff's production
of a without prejudice letter in a memorandum tendered to the Court for this hearing
(the memorandum
is entitled as a letter to the Court). Counsel for the defendants
advises that this letter is part of a chain of without prejudice
correspondence, and in
itself contains reference to information that was provided to the plaintiff on a without
prejudice basis.
He seeks removal of the letter from the Court file. The plaintiff has
accepted that. I direct that the letter be removed from the
plaintiff's memorandum
and returned to the plaintiff at the conclusion of this hearing.


Decision


[29]   The plaintiff's claim
is to be struck out unless the plaintiff files and serves the
following documents by 3 July 2009:


       a)      an amended statement
of claim addressing the deficiencies I identified
               in the course of this judgment, and particularly complying with
s 37 of
               the Defamation Act 1992 and the High Court Rules in relation to
               pleading of malice and special
damages (particularly r 5.33); and


       b)      an affidavit of documents complying with the High Court Rules, and
         
     addressing in particular the categories of documents identified in
               paragraph 15 of the memorandum of counsel
for the defendants dated
               27 August 2008.


[30]   The plaintiff is to provide security for the costs of the defendants
up to the
completion of the interlocutory stages of the proceeding (in other words prior to
preparation and exchange of briefs of
evidence and preparation for any pre-trial
conference) in the sum of $15,000 per defendant. These amounts are to be lodged
with Registrar
of the Court on an interest bearing account, or are to be secured in a
manner acceptable to the Registrar.
[31]   As the defendants
have been successful on this application they are entitled to
costs. The plaintiff is to pay the defendants (together) the costs
of and incidental to
this application on a 2B basis, together with disbursements as fixed by the Registrar.




                
                                            ____________________
                                                             Associate
Judge Abbott