Smallbone v London [2012] NZHC 2990 (9 November 2012)

Last Updated: 10 December 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-482 [2012] NZHC 2990

IN THE MATTER OF the Defamation Act 1992

BETWEEN LINDSAY JAMES TREVOR SMALLBONE

Plaintiff

AND GEORGE PAUL LONDON First Defendant

AND IAN NEVILLE WISHART Second Defendant

AND HOWLING AT THE MOON PUBLISHING LIMITED Third Defendant

AND PAULETTE MERLE LONDON Fourth Defendant

Hearing: 1 November 2012

Counsel: P A McKnight for Plaintiff

C J Tennet for First and Fourth Defendants

I N Wishart in person and representing Third Defendant

Judgment: 9 November 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.30pm on the 9th day of November 2012.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] There are four interlocutory applications currently before the Court in this

_{defamation proceeding:}

SMALLBONE V LONDON HC WN CIV-2012-485-482 [9 November 2012]

(a) the plaintiff’s amended application dated 25 June 2012 to strike out and/or amend the second and third defendants’ statement of defence;

(b) the plaintiff’s application dated 4 October 2012 to strike out and/or to

have amended the first and fourth defendants’ statement of defence;

(c) the second and third defendants’ interlocutory application for security

for costs and/or disbursements dated 11 October 2012;

(d) the second defendant’s interlocutory application for leave to appear on behalf of the third defendant dated 11 October 2012.

[2] As to (b), Mr Tennet has advised that an amended statement of defence is being prepared. That will address the issues raised in the plaintiff’s application to strike out or amend the statement of defence in a way which it is anticipated will make it unnecessary to decide that application. Mr Tennet was given leave to withdraw from the hearing.

[3] As to (c), the parties have agreed that the application for security for costs should be deferred pending further discussions which will also address the question of possible security for costs for the first and fourth defendants. That application is accordingly adjourned, to be brought on for hearing if necessary.

[4] As to (d), the application for leave for the second defendant to appear on behalf of the third defendant was not opposed. I made an order at the hearing.

[5] The sole matter argued at the hearing, and which this judgment addresses, is the application at (a), the plaintiff’s amended application to strike out or amend the second and third defendants’ statement of defence.

[6] The statement of defence extends to 69 paragraphs. The plaintiff’s application relates to a large number of those. The issues can be conveniently dealt with under the headings used by Mr McKnight in his submissions.

Pleading an alternative meaning

[7] In his written submissions under this heading, Mr McKnight addressed paragraphs 15, 22, 30, 33 and 34. Paragraph 15 pleads an alternative meaning, to that alleged by the plaintiff, for the words complained of. That follows a denial, in paragraph 14, of the defamatory meaning alleged. In APN New Zealand Ltd v Simunovich Fisheries Ltd the Supreme Court recorded a difference between the common law principles applying to defamation in England and those applying in

New Zealand on this point.1 In New Zealand, a defendant cannot plead and attempt

to prove a defamatory meaning of less gravity than that alleged by the plaintiff.2 The way in which paragraph 15 of the statement of defence is drafted suggests an intention to challenge that position, at appellate level.

[8] In his written submissions, Mr Wishart indicated that the defendants agreed to delete paragraph 15, and the last sentence of paragraph 22. In his oral submissions, Mr Wishart made it clear that the second and third defendants do not seek to mount the challenge foreshadowed by the pleading. In those circumstances the agreement to delete paragraph 15, and the last sentence in paragraph 22, is a responsible one.

[9] In the light of that agreement, Mr McKnight did not pursue his objection, on this ground, to paragraphs 30, 33 and 34.

The plaintiff ’s reputation

[10] The second ground of objection to the statement of defence is that it pleads a lack of reputation of the plaintiff on aspects when there is no reasonable factual basis for that pleading. The plaintiff’s concerns relate to paragraphs 19, 20, 22, 35 and 64. The statement of defence challenges the reputation of the plaintiff in, broadly speaking, two ways:

(a) the plaintiff’s honesty and probity in relation to certain business

dealings; and

(b) the plaintiff’s alleged involvement in the supply and consumption of

illegal narcotic drugs.

[11] Shortly stated, the essence of the objection is that those aspects of the

plaintiff’s reputation are not relevant in this proceeding.

[12] The law on this issue is succinctly stated in s 30 of the Defamation Act 1992 (the Act). That provides:

Misconduct of plaintiff in mitigation of damages

In any proceedings for defamation, the defendant may prove, in mitigation of damages, specific instances of misconduct by the plaintiff in order to establish that the plaintiff is a person whose reputation is generally bad in the aspect to which the proceedings relate.

[13] Section 30 mirrors the common law rule that particulars of bad reputation should be limited to the “relevant sector” of the plaintiff’s life, as determined by the pleaded imputations of the defamatory statements.3 It is for the Judge to rule what is the relevant sector.4 Both parties have, in their written submissions, helpfully traversed the authorities on this point. I need not discuss them in detail. The

essential issue, on this application, is whether or not the matters pleaded relate to the reputation of the plaintiff in the relevant sector of his life.

[14] The first category, in [10](a) above, relates to the plaintiff’s business reputation. The words complained of by the plaintiff are pleaded in paragraph 8 of the amended statement of claim. In essence, they relate to the plaintiff ’s personal life, with particular regard to sexual matters. There is nothing in the words pleaded which relates to the plaintiff’s business or professional dealings. The alleged imputations of the words complained of are pleaded in paragraph 12 of the amended statement of claim. It is said that, in their natural and ordinary meaning, the words complained of mean or are understood to mean that the plaintiff:

(a) is perverted;

(b) is a sexual deviant; (c) is a voyeur;

(d) is obsessed with sex;

(e) is of a weak character and immoral; (f) is a loathsome and shady person;

(g) abused the fourth defendant.

[15] The matters pleaded in paragraphs (a) to (d), and (g), are limited to the plaintiff’s private and personal life, and relate primarily to his reputation on sexual matters. Mr Wishart submits that the matters pleaded in (e) and (f) are not confined to sexual matters only but are generalised across the whole of the plaintiff’s character. I do not consider that those two paragraphs are, in the context of the pleaded imputations as a whole, sufficient to extend the relevant aspect of the plaintiff’s life to include his business dealings. The pleadings as to the natural and ordinary meaning of the words complained of must be read in the light of the words complained of. When they are so read, they do not make relevant the plaintiff’s character or probity in respect of business dealings.

[16] In paragraph 13 of the amended statement of claim, the plaintiff pleads injury “in his professional and personal reputation”. For the reasons set out in [15] above, I consider that the words complained of, and the allegations as to the natural and ordinary meaning of the words, do not support the proposition that the plaintiff has been injured in his professional reputation. Mr McKnight raised the possibility of the removal of the reference to his professional reputation. I consider that is appropriate.

[17] For these reasons, and on the assumption that paragraph 13 of the amended statement of claim will be amended as signalled, I consider that the allegations

concerning the plaintiff’s business dealings relate to an aspect of his reputation

which is not put in issue by the statement of claim, and must be removed.

[18] That ruling applies to paragraph 20, and also to paragraphs 45.20 to 45.38,

56.21 to 56.39, 64 and 65.5. It also applies to the words “any further than he has already harmed it himself” in paragraph 35.

[19] The next category, in [10](b) above, relates to the plaintiff’s involvement with drugs.

[20] The pleading in the statement of defence which is complained of is that the plaintiff purchased or consumed illegal narcotic drugs in the presence of his wife, and supplied illegal narcotic drugs to guests at dinner parties hosted by him and his wife. Those allegations are pleaded in several contexts:

(a) As part of the facts and circumstances on which the defendants formed, wrote and published the opinions which are particularised in the statement of defence (paragraphs 45.18 and 45.19).

(b) As part of the facts and circumstances supporting the pleading that the imputations set out at [13] above are true or not materially different from the truth (paragraphs 56.19, 56.20, 58.15 and 58.16).

[21] I consider that these matters may properly be pleaded. The pleadings are based upon statements which are made in the book. As s 8(2) of the Act makes clear, the defendants are entitled to allege and prove any facts contained in the whole of the publication, whether or not those are complained of by the plaintiff. These pleadings deal with an aspect of the plaintiff’s reputation to which the pleadings relate, in terms of s 30.

Hearsay statements

[22] The plaintiff’s objection to a number of paragraphs in the statement of

defence is that these include hearsay references which do not relate to objectively

provable primary facts. The plaintiff objects on this ground to paragraphs 26 to 30,

31, 32, 43.16, 43.17, 45.16, 45.17, 47.13, 54.16, 54.17, 56.16 and 56.17. [23] These paragraphs fall into several categories for present purposes:

(a) quotations from the book;

(b) a pleading “that the fourth defendant’s experiences at the hands of the plaintiff became the subject of exaggerated and false testimony in privileged Court proceedings between 1976 and 1981”. That pleading appears in the statement of defence in several different places, in the context of several of the specific defences raised; and

(c) a pleading “that studies have shown a large majority of men and a significant number of women have experienced similar sexual fantasies to those outlined in the book”. Again, that pleading appears in the statement of defence in several different places in the context of several of the specific defences raised.

[24] Paragraphs 26 to 32 contain quotations from the book. I consider that the defendants may, in referring to the whole publication as they are entitled to do, plead the relevant parts of the publication on which they intend to rely. That pleading does not infringe the relevant principles of pleading stated in King v Telegraph Group Ltd.5 The statements in the book, pleaded in that way, are not hearsay, as they are not tendered as evidence of the truth of their contents.

[25] The Court proceedings between 1976 and 1981 referred to in the pleadings involved a custody dispute between the fourth defendant and her second husband over the custody of their two children. The husband adduced evidence concerning the character of the fourth defendant and her fitness to have custody of the children. Some of that evidence related to facts and circumstances which were alleged to involve the plaintiff, who is the fourth defendant’s first husband. The defendants plead that the evidence of some witnesses called by the second husband was

exaggerated and false. They further plead that the passages in the book of which the plaintiff complains describe the true position on those facts and circumstances.

[26] On that basis, and for that purpose, the pleading as to the testimony in the custody proceedings is not a pleading of hearsay statements. The testimony in the custody proceedings is not relied upon for the truth of what is testified. The defendants’ case is not that the testimony is true, but that it is exaggerated or false. The pleading therefore does not attempt to establish the truth of any fact by means of a hearsay statement, in the way discussed in APN New Zealand Ltd v Simunovich

Fisheries Ltd.6 If the fact that testimony was given in the earlier proceedings is

relevant, then the substance of the testimony can be adduced, not as evidence of the truth of its contents, but as evidence of the fact that it was given. On that basis, it may properly be pleaded. This ruling applies to paragraphs 43.16, 45.16, 54.16 and

56.16. In making this ruling, I do not rule upon the relevance of that evidence. That will be a matter for later consideration. Issues of the relevance of evidence should not generally be resolved at the pleading stage.

[27] The third category, of what the plaintiff submits are pleadings of hearsay statements, consists of allegations about studies as to sexual fantasies. The defendants plead that the words complained of in the book, so far as they deal with the plaintiff’s sexual conduct, are not defamatory. In essence, they assert that the plaintiff’s sexual conduct or sexual preferences would not be regarded as deviant or unnatural so as to bring him into disrepute. The defendants submit that the pleading about studies as to sexual fantasies is relevant to that defence.

[28] The plaintiff’s objection is that the studies pleaded are hearsay statements. If the defendants sought to adduce, as evidence of the sexual fantasies of a large majority of men and a significant number of women, articles or other literature describing the results of studies, then that literature would be likely to constitute hearsay evidence, admissible only if the conditions in s 18 of the Evidence Act 2006 were met. If the defendants were to call an expert with relevant expertise, such studies might well be admissible to support an opinion expressed by that expert. That involves evidential issues which cannot be decided at this stage. I consider

that, as a matter of pleading, the allegations may properly remain. This ruling applies to paragraphs 43.17, 45.17, 47.13, 54.17, 56.17 and 58.17.

Honest opinion

[29] In giving particulars in support of a pleading that the words complained of are an expression of the honest opinion of the defendants, the statement of defence sets out, by quotation from the book, passages which are said to be expressions of opinion by the second defendant and the fourth defendant. The plaintiff objects to many of those particulars, on two grounds:

(a) That some of them (paragraphs 42.2, 42.4, 42.5, 42.8, 42.9.2 and

42.9.3) are statements of fact rather than opinion; and

(b) that some of them (paragraphs 42.3, 42.7 and 42.9.8 to 42.9.11, 43.2 and 46.7) are not words about which the plaintiff made complaint nor are they meanings pleaded by the plaintiff.

[30] As to the first ground, the distinction between a statement of fact, and a statement of opinion or comment, is not a bright line one. The defendants’ contention that the words quoted constitute statements of opinion is not so clearly untenable that these pleadings should be struck out at this stage.

[31] As to the second ground, the fact that the opinions alleged to have been expressed do not form part of the plaintiff’s complaint does not preclude the defendants from pleading those matters. The defendants may properly raise other opinions expressed in the book in support of a defence of honest opinion in respect of the words complained of by the plaintiff.

[32] In their notice of opposition the defendants refer to “statements of opinion in the traditional style of the author and in the context of the ‘honest opinion’ warning at the start of the book”. Counsel for the plaintiff submits that these matters are not relevant to the defence of honest opinion.

[33] The defendants may, in referring to the whole of the publication, refer to the warning at the beginning of the book. The relevance of that warning, and of the style of the author, to the defence of honest opinion will be a matter for later consideration if necessary.

Facts in support of honest opinion and defence of truth

[34] The plaintiff submits that the way in which the defence of honest opinion has been pleaded is inadequate in that it does not identify the opinion with the meanings pleaded nor does it sufficiently plead the facts that give rise to the opinion and the evidence that will also be called in relation to those facts.

[35] The statement of defence, under the heading “particulars, honest opinion”, specifies which of the words complained of is said to be “an expression of the honest opinion of the defendants based on their analysis of true facts and circumstances ...”. It then sets out the particular passages which are said to constitute statements of opinion by the second defendant and the fourth defendant respectively, and then particularises the facts and circumstances on which those opinions were based. I consider that the statement of defence does comply with the relevant principles as to pleading.

[36] The plaintiff submits, in relation to paragraphs 43.1 to 43.15, that more detail of the facts and circumstances “such as dates venues and/or items” must be provided. Those paragraphs make allegations about the plaintiff’s conduct on sexual matters between 1967 and 1976. The conduct alleged is sufficiently specific to meet the requirements of pleading. The details given do not extend to particularising the dates and places on which that conduct is alleged to have occurred, beyond pleading that it occurred while the plaintiff was married to the fourth defendant, between 1967 and

1976. The terms in which those facts and circumstances are pleaded make it clear that the evidence to support those allegations will be given by the fourth defendant. In the circumstances, particularly the length of time since the relevant events, it might be unrealistic to expect that precise occasions be identified, by date and venue, for such conduct. That is not an issue to be decided on this application.

[37] As to the particularisation of the defence of truth, the statement of defence, in the paragraphs under the heading “particulars, truth” follows a similar pattern to that for the defence of honest opinion. For similar reasons, I consider that the pleading is permissible and adequate.

Miscellaneous provisions

[38] Mr McKnight submits that paragraphs 63 to 69 are inappropriate and should be struck out. I accept that submission in respect of paragraphs 65.5, and 66 to 69. These paragraphs raise matters which, if they are to be pursued, must be the subject of an interlocutory application. That reasoning applies also to paragraphs 16 and 17, which Mr McKnight submits are no longer necessary. Paragraph 19, which is also said to be unnecessary, will require amendment if paragraph 13 of the amended statement of claim is amended as I have discussed at [16].

Result

[39] Both the statement of claim and the statement of defence will require amendment to reflect the rulings in this judgment. I consider that it is preferable to allow the parties an opportunity to make the necessary amendments, and that a formal order is not appropriate at this stage. Leave is reserved to all parties to apply further if necessary.

[40] Costs on this application are to lie where they fall. Both parties have had a measure of success.

_{Solicitors: Langford Law, Wellington for Plaintiff}

“A D MacKenzie J”

Treadwell Gordon, Solicitors, Wanganui for First and Fourth Defendants

Counsel Acting: Mr Tennet, Wellington

Copy to: Mr Wishart, Auckland.