ELIZABETH MAY CURRIE v DOE [2022] NZHC 1547

ELIZABETH MAY CURRIE v DOE [2022] NZHC 1547 [30 June 2022]JUDGMENT FOR PUBLICATION: SEE ADDENDUMIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-1805[2022] NZHC 1547UNDER the Defamation Act 1992 and Part 18 of theHigh Court RulesIN THE MATTER OF a declaration under section 24 DefamationAct 1992 concerning the nature and status ofcertain web publicationsBETWEEN ELIZABETH MAY CURRIEPlaintiffAND JOHN DOE AND/OR JANE DOEFirst DefendantDERMOT NOTTINGHAMSecond DefendantHearing: 26 April 2022Appearances: K M Muller for PlaintiffNo appearance for First DefendantsSecond Defendant in personJudgment: 30 June 2022JUDGMENT OF HINTON J[Redacted version]This judgment was delivered by me on 30 June 2022 at 5.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .[1] This judgment addresses an application (and various other unrelatedapplications) by the second defendant, Mr Nottingham, to strike out the amendedstatement of claim and an application by the plaintiff, Ms Currie, to strike out thestatement of defence. The plaintiff also applies for consequential orders debarring thesecond defendant from defending the proceeding, removing him as a party and listingthe proceeding for formal proof. She seeks costs.Background[2] In 2016 Ms Currie and two co-plaintiffs issued this proceeding under theDefamation Act 1992 and Part 18 of the High Court Rules against unnamed publisherscited as John and/or Jane Doe.[3] The proceeding seeks only declaratory relief (and costs), not damages.[4] [Redacted][5] GoDaddy.com LLC, the Arizona company hosting the website, refused to takedown the publications without a Court order. Mr Nottingham was one of the partiesserved with the proceeding because of a possible interest in it. Unusually it wasMr Nottingham who then applied to be joined as a party and his joinder was opposedby the plaintiffs.[6] Before me Mr Nottingham advised that he came to know of Ms Currie and herformer partner, Mr Crann because, where he considers it appropriate, he steps in toassist a party to a dispute.1 In this case, a cousin of Mr Crann asked him to investigatematters following a separation between Mr Crann and Ms Currie. Mr Nottingham wassatisfied that Mr Crann needed assistance. It seems the publication followedMr Nottingham's "investigations".1 He advised that in other cases he has assisted parties charged with murder and rape where heconsidered that appropriate.[7] Since the proceeding was issued, the two co-plaintiffs have discontinuedleaving Ms Currie as the sole plaintiff. The only party served who has taken any stepsin the proceeding seems to have been Mr Nottingham. The amended statement ofclaim now makes specific allegations of defamation against him as the owner of or apublisher on the Lauda Finem website.[8] Although Mr Nottingham was joined as a defendant on 18 November 2016,the various interlocutory applications and appeals taken primarily by him over the nextfive years have had the consequence that his first statement of defence was only filedon 10 December 2021.[9] In 2016 and 2017 Mr Nottingham filed two applications to strike out ongrounds with much the same tenor as his application presently before me, namely thatthe plaintiff has committed perjury and the proceeding is time-barred. The 2017application also contained applications for various other orders which Courtney Jdescribed as "premature and/or unnecessary". Courtney J directed that no furtherinterlocutory applications be filed by either party after 24 April 2017 without leave.[10] Mr Nottingham's 2016 and 2017 strike-out applications were addressedtogether by Fogarty J but in two consecutive judgments dated 14 and 25 July 2017. Inhis first judgment, Fogarty J noted that Mr Nottingham had filed "hundreds of pagesof documents" including so-called "affidavits" which were "argumentative and repletewith hearsay".2 The Judge described this filing strategy as "tak[ing] advantage ofPart 18 of the High Court Rules". He then addressed Mr Nottingham's "applications",noting: "I say 'applications' in quotes as there is no formal application, [compliant]with the High Court Rules".3 Fogarty J dismissed several of the "applications" as theywere not proper interlocutory applications and were "an abuse of a Part 18 hearing".4[11] In terms of Mr Nottingham's earlier application to hold the plaintiffs incontempt for perjury, Fogarty J said "[i]t is premature for this Court prior to thesubstantive hearing to make any findings of perjury".52 Maltese Cat Ltd v Doe [2017] NZHC 1634 at [14]–[15].3 At [25].4 At [28].5 At [38].[12] Fogarty J also rejected Mr Nottingham's argument that the defamation claimwas time-barred by ss 11 and 15 of the Limitation Act 2010 (the limitation ground).Sections 11 and 15 provide that a money claim in relation to defamation proceedingshas to be brought within two years. Fogarty J found that there was no money claim inthis case and the claim was not barred by the Limitation Act. Mr Nottinghamappealed, including reissuing a new argument that the claim for costs amounted to amoney claim. The appeal was dismissed by the Court of Appeal in a judgment dated12 December 2019.6[13] Mr Nottingham applied for a recall of the Court of Appeal judgment.7 Thatwas unsuccessful. Then, he appealed to the Supreme Court.8 The Court declined leaveto appeal.[14] Mr Nottingham has four outstanding costs orders against him in favour ofMs Currie:(a) On 11 April 2017, Courtney J ordered costs against Mr Nottingham forthree case management conferences. On 11 May 2017 these costs werefixed at $2,057.9 This order was made before Mr Nottingham wasadjudicated bankrupt which occurred on 11 September 2018.(b) On 12 December 2019, the Court of Appeal ordered costs of $10,277against Mr Nottingham for his failed appeal.(c) On 28 February 2020, the Court of Appeal ordered costs of $478 againstMr Nottingham for his unsuccessful recall application.(d) On 17 April 2020, the Supreme Court ordered Mr Nottingham to pay$2,500 in costs for his unsuccessful appeal of the 12 December 2019Court of Appeal decision.6 Nottingham v Maltese Cat Ltd [2019] NZCA 641.7 Nottingham v Maltese Cat Ltd [2020] NZCA 31 (28 February 2020).8 Nottingham v Maltese Cat Ltd [2020] NZSC 36.9 On 9 June 2017, Fogarty J confirmed there is interest running on this costs award under s 87 ofthe Judicature Act 1908 at a rate of 7.5% per annum.[15] [Redacted], after a jury trial, Mr Nottingham was found guilty [Redacted].10Law on strike-out applications[16] Rule 15.1 of the High Court Rules relevantly provides:(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.[17] Also relevant is r 7.48, which provides in relevant part:(1) If a party (the party in default) fails to comply with an interlocutoryorder or any requirement imposed by or under subpart 1 of Part 7 (casemanagement), a Judge may, subject to any express provision of theserules, make any order that the Judge thinks just.(2) The Judge may, for example, order—(a) that any pleading of the party in default be struck out in wholeor in part:[18] Rules 7.48 and 15.1 are supported by the Court's inherent jurisdiction tocontrol its processes to the extent necessary to protect them from abuse, especially ina manner that is manifestly unjust to another party or that brings the justice systeminto disrepute.11[19] Rule 7.48 and the inherent jurisdiction of the Court allow a Judge to debar adefendant.1210 [Redacted]11 See Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA), citing Hunter v ChiefConstable of the West Midlands Police [1982] AC 529.12 See Hodgson v Siemer HC Auckland CIV 2005-404-1808, 9 July 2007 at [68]–[69]; SM v LFDB[2014] NZCA 326, [2014] 3 NZLR 494; and LFDB v SM [2014] NZSC 197 at [24].[20] Rule 15.1(1)(d) includes the power to strike out if proceedings are beingconducted in a personally abusive manner, such as making "scandalous andunsubstantiated allegations that are personally abusive in nature".13[21] Applications to strike out based on limitation defences fall into r 15.1(1)(c). Ifa defendant demonstrates that the plaintiff's proceeding was commenced after theperiod allowed for by the Limitation Act 1950 or Limitation Act 2010, the defendantwill be entitled to an order striking out the proceeding on the ground that it is frivolous,vexatious or an abuse of process, unless the plaintiff shows that there is an arguablecase for an extension or postponement of time.14Mr Nottingham's application to strike out[22] Mr Nottingham's current application to strike out the amended statement ofclaim is made on the grounds that: (a) the proceeding is time-barred under s 9 of theLimitation Act; (b) the multiple publication rule is not good law; (c) the proceeding iscaught by perjury and conspiracy to defeat the course of justice; and (d) Ms Currieallegedly consented to publication, engaging the defence in s 22 of the DefamationAct.[23] Mr Nottingham's application also seeks further orders, not consequential on orconnected to his application to strike out. These separate applications were referredto in the plaintiff's submissions but not orally addressed by Mr Nottingham andreferred to only fleetingly, if at all, in his written submissions. These additionalapplications include:(a) an application for sanctions against Ms Currie and her counsel, andpurportedly against the previous co-plaintiffs, for contempt of Court;(b) an application for an order that Ms Currie be cross-examined onaffidavits she has filed in the proceeding;13 O'Neill v New Zealand Law Society [2021] NZHC 607 at [11].14 Murray v Morel & Co Ltd [2007] 3 NZLR 721, [2007] NZSC 27 at [33].(c) an application that Mr Nottingham be allowed "to make investigations"of certain witnesses; and(d) an application for discovery by Ms Currie of her banking records, fororders that costs orders against him be rescinded, and for an order thatMs Currie's counsel identify the funders of her litigation.[24] Ms Muller advises me that leave was granted for Mr Nottingham's currentapplications. I can find no clear record of that on the file. However, I proceed on thatbasis.[25] Much like his approach in the applications before Fogarty J, the seconddefendant has filed a voluminous quantity of material canvassing his arguments. Thisincludes at least 10 memoranda, most of which contain lengthy annexures, and threeaffidavits, one of which runs to 171 pages. He filed 24 pages of submissions on29 April 2022 and further submissions (38 pages) the day of the hearing.15Mr Nottingham also indicated he would hand up further submissions prior to the lunchadjournment but did not do so.Limitation ground[26] Mr Nottingham's oral submissions on the limitation ground were brief.[27] In his 2016/2017 applications, Mr Nottingham did not rely on s 9 of theLimitation Act, the provision on which he now relies, but raised it belatedly before theSupreme Court. The Court said they did not need to consider the point because it hadnot been addressed in the lower courts, and in any event, there was to be an argumentin terms of multiple publication in the substantive hearing. Although the Court doesnot say so, that would make any limitation finding moot. Mr Nottingham says he alsoraised s 9 before then by forwarding to the Court of Appeal (after the hearing in thatCourt) a copy of the decision of Clark J in Driver v Radio New Zealand on which he15 Mr Nottingham was reading from the later submissions and I requested he forward them to theCourt.now bases his s 9 argument.16 Not surprisingly, the Court of Appeal made no referenceto any post-hearing email in its judgment.[28] Arguably, Fogarty J's findings on the earlier limitation argument were wideenough to preclude the current argument under s 9, including as follows:17[16] I am satisfied that s 11 of the Limitation Act 2010 does notcontemplate a time-bar to declaratory relief. The question then turns onwhether any other part of that Act, or other statute, provides MrNottingham with a limitation defence to the declarations sought.[17] I am reinforced in my view that the Limitation Act does notcontemplate time-barring declaratory judgments, by s 43 of that Act.Located beneath a heading titled "Pleading, and effect of establishing,defences", s 43 provides:43 Established defence bars relief, not underlying rightIf the defendant establishes a defence under this Act against a claim, and noorder under section 17, 35(5), 36(4), or 50 applies to the claim,—(a) a court or tribunal must not grant the relief sought by the claim; but(b) the establishment by the defendant of the defence does notextinguish, as against the defendant or any other person, anyentitlement, interest, right, or title of the claimant on which the claimis based.[18] The effect of this section is to provide that, even where a limitationdefence may be established, the rights upon which the claim is based are notextinguished. The Act provides for defences where the plaintiff has not beensufficiently prompt in claiming, inter alia, the monetary relief they seek. Thedefence does not, however, pronounce on the validity or otherwise of the claimthat, but for the limitation defence, the plaintiff may have established.[19] That analysis is particularly applicable to pleadings fordeclaratory relief, where it is simply the rights of the claimant that arepronounced upon. Section 43 reinforces the view that the Act is notintended to curtail any pronouncement on the underlying rights; it ismerely intended to prevent tardiness in obtaining executory relief.[22] As the pleaded limitation defence does not apply to applicationsfor a declaration, I am satisfied that the plaintiffs' statement of claim wasfiled in time and is not affected by the Limitation Act 2010.16 Driver v Radio New Zealand [2019] NZHC 3275 at [75]–[83].17 Maltese Cat Ltd v Doe [2017] NZHC 1728 (emphasis added).[29] In any event, it is an abuse of process for Mr Nottingham to re-argue theLimitation Act but on a different basis. It also runs contrary to the way theSupreme Court disposed of the point as set out at [27] above.[30] For completeness, I also consider Mr Nottingham's argument under s 9 to bewrong or premature.[31] Section 9 of the Limitation Act provides:9 Act may be applied by analogy to equitable claimsNothing in this Act prevents it from being applied by analogy to a claim inequity to which no defence prescribed by this Act applies.[32] For s 9 to apply, this proceeding would have to be a claim in equity.[33] Mr Nottingham says that Ms Currie's claim for declaratory relief is anequitable claim based on the proceedings being commenced under Part 18 of theHigh Court Rules. He says that in Driver, Clark J said claims for declaratory reliefwere "equitable in origin".18 In that case, Clark J found that the claim for declaratoryrelief under s 24(1) of the Limitation Act so closely resembled the monetary claimmade in that proceeding that it would be inequitable for the plaintiff to proceed withher declaratory claim when the Judge had already found the monetary claim wasstatute-barred. For those reasons Clark J found that the claim for declaratory reliefwas also statute-barred, applying s 9 of the Limitation Act.[34] Ms Muller submits that the claim for a declaration is not an equitable claim.She says, rather, it is a claim for a remedy provided for particularly by statute, namelys 24(2) of the Defamation Act.[35] Ms Muller also points out that even if s 9 were applicable and theLimitation Act could be applied by analogy to a claim under s 24 of theDefamation Act, it was still necessary, as set out by the Court of Appeal in Johns vJohns, to examine the underlying facts, the nature of the relationship between the18 Driver v Radio New Zealand [2019] NZHC 3275 at [79].parties, or the policy and purpose of the different causes of action,19 which Clark Jshould have done but did not do in Driver.[36] This submission seems to me to have some force. Clark J did not squarelyaddress whether she considered a declaration under s 24 of the Defamation Act wasan equitable remedy. The Judge rather stated in general terms that claims fordeclaratory relief are "equitable in origin".20 She then quoted with apparent approvalthe view of Professor Ursula Cheer that "it would be appropriate to apply theLimitation Act by analogy to an 'unusual claim seeking only a statutory remedy suchas declaration, correction, or retraction and reply under the Defamation Act'".21 Noneof this provides authority for the proposition that a declaration sought under s 24 ofthe Defamatory Act is a claim in equity.[37] In any event, as Ms Muller points out, in Johns the Court of Appeal explainedthat the doctrine of limitation by analogy is far from automatic and involves arelatively rigorous exercise:22There will be a bar by analogy only when the [equitable] claim parallels thestatute-barred claim so closely that it would be inequitable to allow thestatutory bar to be outflanked by the [equitable] claim. In order to determinehow close the parallel is the Court must examine not only the underlying factsbut also the nature of the relationship between the parties and the policy andpurpose of the different causes of action. If there is a sufficient difference inany material respect, the suggested parallel is unlikely to be close enough tomake it appropriate in equity to apply an analogous bar.[38] It is difficult to see what statute-barred claim is said to be so closely analogousto a claim for declaratory relief in light of the finding that in this particular case thetime-bars under ss 11 and 15 do not apply. I note the following paragraph from thedecision of Johnston AJ, in the context of declarations under the New Zealand Bill ofRights Act 1990, in Taylor v Attorney-General:23It is therefore insufficient to invoke the doctrine of limitation by analogy thatdeclaratory relief is equitable in origin. It must be shown that the particulardeclaration sought would so closely resemble another form of relief that istime-barred by the Limitation Act that it would be inequitable to allow it. It is19 Johns v Johns [2004] NZLR 202 (CA) at [80].20 Driver v Radio New Zealand [2019] NZHC 3275 at [79].21 At [82] (emphasis added).22 At [80].23 Taylor v Attorney-General [2019] NZHC 2767 at [20] (citations omitted).not obvious to me that there is any other form of relief addressed in theLimitation Act that resembles a declaration on a breach of a right protected byNZBORA. Monetary relief for a breach of NZBORA is quite distinct fromdeclaratory relief. Monetary relief is focussed on compensation, while adeclaration is purely vindicatory. For this reason alone, there are no groundsfor this Court to apply the Limitation Act by analogy.[39] It is arguable that the declaratory relief provided for under s 24 of theDefamation Act does not have a parallel with any other form of relief addressed in theLimitation Act. The remedy provided by s 24 is purely vindicatory unlike a claim fordamages which is compensatory. The right to protect your reputation by a declarationis an important right. The very reason for s 24 is to encourage parties to not usedefamation proceedings as a money-making exercise and to resort to such proceedingsonly where protection of their reputation is important and/or justified. Given thenature of the publications here I consider this prima facie to be a case where theprotection of reputation is important.[40] The effect of Clark J's decision, applying it on its face, would be that in anydefamation case the application of s 9 would necessarily time-bar a claim for adeclaration under the Defamation Act after two years. Further, contrary toMs Muller's tentative admission, I cannot see any basis for distinguishing betweendefamation cases that seek a declaration and damages (such as Driver) and casesseeking only a declaration (like this one). If Parliament intended to time-bar claimsunder s 24 of the Defamation Act it would have been a relatively easy matter to simplyprovide in s 15 of the Limitation Act that not only are money claims in defamationproceedings barred after two years but so also are claims for declarations.[41] There may be some cases where s 9 might apply to declaratory relief on thespecific facts. However, the doctrine of limitation by analogy should, as the Court ofAppeal said in Johns and Johnston AJ reiterated in Taylor v Attorney-General, be farfrom automatic and involve a relatively rigorous exercise. I note that the applicationof s 9 is discretionary.2424 See McLachlan v Meyers (2009) 10 NZCPR 625 (HC) at [44]–[45].[42] In my view any argument under s 9 in this case, if allowed at all, would haveto be made at a substantive hearing.25 I do not consider this is a clear-cut case forapplication of the doctrine by analogy: to the contrary. I am not persuaded that theplaintiff's claim is so clearly barred by the Limitation Act that it can be regarded asfrivolous, vexatious or an abuse of process. In fact, I consider it most unlikely toultimately be found to be so.[43] Finally, in relation to his limitation argument Mr Nottingham claims in hisapplication that the proceedings should be struck out because the multiple publicationrule is not good law. For present purposes anyway, the plaintiff does not need to relyon that rule, given the findings of Fogarty J and the findings in this judgment onMr Nottingham's limitation points.26 Even if those findings are wrong, the possibleapplication of the multiple publication rule would mean a strike-out of the plaintiff'sclaim was unjustified. Overall, this is a matter that should be left for trial.Ground of perjury/conspiracy to defeat justice/breaches of duties of counsel engagedin litigation/defence under s 22 Defamation Act[44] Mr Nottingham's second ground for strike-out (perjury) is the ground hestressed most in his oral submissions and it occupied the bulk of his writtensubmissions.[45] Perjury is not a defence to a defamation proceeding. It is an offence of wilfullytelling an untruth or making a misrepresentation under oath. No charge of perjury hasbeen laid. Where brought, such a charge has to be proved beyond reasonable doubt.Truth is a defence to defamation but there is no evidence before me that all of thematters alleged in the publication are true or for that matter any of them. In any eventthat would clearly be a matter for trial as would allegations of perjury, falsehood orsimilar as Fogarty J has already held. Nothing more needs to be said on this account25 See Johns v Johns [2004] NZLR 202 (CA) at [2]: Causes of action or aspects thereof should onlybe struck out before trial on the basis that they are statute or otherwise barred, if the defendant canestablish that proposition conclusively. If there is any real doubt about the matter, the case shouldbe allowed to go to trial where all issues of fact and law can be fully explored.26 The Court of Appeal similarly did not consider it necessary to address the multiple publicationargument given it found there was no money claim: Nottingham v Maltese Cat Ltd [2019] NZCA641 at [16].but I go on to consider Mr Nottingham's submissions briefly nonetheless, so that thefutility and error of his argument is reasonably clear.[46] Mr Nottingham says he has provided proof the plaintiff has perjured herself insome key respects. He further says that in fact she has effectively consented topublication of the statements she claims to be defamatory, bringing in a completedefence for Mr Nottingham under s 22 of the Defamation Act 1992.[47] I asked Mr Nottingham for his key points in this regard because it was verydifficult to draw them out from the lengthy submissions and other material filed,including a 67-page memorandum with 29 attachments dealing specifically withpurported issues of dishonesty.[48] Mr Nottingham's first key point was that in an affidavit apparently sworn byMs Currie in the Family Court on 16 June 2014 she said:Since last December 2013, the respondent and associated respondent have notharassed me. I am aware that Lauda Finem have not published any more newarticles about me since 1 November 2013. Accordingly, currently there are noarticles on the web site making false and defamatory allegations against me.[49] Mr Nottingham says this paragraph on its own demonstrates both thatMs Currie has committed perjury and that she has discontinued the defamationproceeding.[50] I disagree. The contents of this paragraph cannot possibly be said to amountto consent to publication, bringing into play s 22 of the Defamation Act. Thestatement, assuming it was made in a Family Court proceeding, does not change thefact of publication, nor remotely amount to a discontinuance of a defamationproceeding, nor support Mr Nottingham's claim of perjury.[51] It seems there is some confusion or uncertainty over whether the articles arestill on the website or elsewhere. That is a matter that can be resolved if necessary ata substantive hearing. It would not change the right to a declaration, just the terms ofit.[52] Mr Nottingham heavily relied on his second key point. He says Ms Curriegave sworn testimony (in some previous proceeding) that she did not [Redacted].Mr Nottingham took me through a number of documents, including statements whichwould be hearsay in this proceeding, which he said clearly demonstrated thatMs Currie was lying when she made the statement that she did not [Redacted]. Heasserts that she was also lying in connection with associated statements relating to[Redacted].[53] I asked Mr Nottingham what the relevance of this particular issue was, and hesaid he had no idea but Ms Currie expressly pleads that she did not [Redacted] andthat she did not [Redacted]. Therefore, she must think it is relevant. He says both ofthese matters are clearly wrong, based on the various documents to which he took me.He acknowledged that this did not establish (on its own) that the entire defamationproceeding should be struck out. But he says these elements of perjury combined withthe failure of Ms Currie's counsel to follow up and disclose the correct position to theCourt, or withdraw as counsel, amount to a conspiracy, on the basis of which in anyevent the claim should be struck out.[54] This argument is without substance. It is quite clear on the face of the pleadeddefamatory publications that they go very far beyond any specific matter relating to[Redacted]. Even if those matters were proven, as Mr Nottingham alleges, againstMs Currie (and I do not accept they are by the odd collection of documents he pointsto), they would in no way justify a strike-out of the defamation proceedings.[55] Furthermore, the argument regarding counsel being involved in a conspiracyis misconceived and entirely improper. Counsel do not have an obligation in civilproceedings to hold their clients to account, nor do I consider there is anything toaccount for. There is no basis for finding any conspiracy, nor any basis for a strike-out on that footing.[56] Mr Nottingham's third key point for his perjury argument is based onMs Currie denying [Redacted]. Mr Nottingham says that an affidavit by aMr McKinnon proves they were not fabricated and that they came from Ms Currie andwere sent to [Redacted]. Mr Nottingham says again in this regard that Ms Currie'scounsel had an obligation to follow up on these allegations and to inquire into theevidence he has filed. Again, he asserts that failure to do so means counsel are partyto a conspiracy to "defraud" the Court and to "defeat justice".[57] This argument is answered along the same lines as Mr Nottingham's secondkey point. It in no way provides grounds for strike-out and is an improper submission.[58] Mr Nottingham's fourth point relates to what he says was the theft of a spapool by Ms Currie from Mr Crann in 2012. This point occupied substantial space inMr Nottingham's materials. His point here is that Ms Currie said a spa pool had beentaken by Mr Crann's mother or brother, whereas Mr Nottingham alleges that in factMs Currie sold the spa pool "for a good price". According to Mr Nottingham, theevidence he points to establishes theft by Ms Currie. Again, even if that were provento be so, it would in no way justify a strike out of the much more extensive defamationpleaded in this case. In fact, it seems a relatively minor and irrelevant point arisingout of a dispute over chattels between Ms Currie and her former partner followingtheir separation. It is absurd and abusive that these points are being raised in thiscontext.[59] By this point in Mr Nottingham's argument, it was after 1.00 pm in the one-day hearing and Ms Muller needed to be heard after lunch. Mr Nottingham said hehad one more important point to raise. I suggested he identify this in his writtensubmissions so that I could be sure to place appropriate emphasis on it. However, hesaid he could not do that as the point had only occurred to him over the weekend. Isaid he could file a summary – even handwritten pages of submissions – over the lunchadjournment, which he did not do. He said he would do so a little later (and visiblyon AVL he had at least one individual there assisting him) but he did not. I thereforetreat the points noted above as being Mr Nottingham's summary of the key matters onwhich he relies in terms of his perjury and related arguments. None has any substance.[60] The application to strike out fails.Mr Nottingham's other applications[61] The documents filed refer to various other forms of relief and orders sought byMr Nottingham, but these were not addressed by him (or addressed only fleetingly) inhis written or oral submissions.[62] The first of these is a purported application for sanctions against Ms Currie,the previous co-plaintiffs and counsel for the plaintiffs, for contempt of Court. Thisapplication is entirely spurious. Mr Nottingham says that because of the time-bar,admissions, perjury, conspiracy, and so on, Ms Currie and counsel should be held incontempt. I have already rejected all of Mr Nottingham's arguments, as set out above.There is no conduct or circumstance that would justify a finding of contempt that hasbeen brought to my attention. The application is not even properly made. No authorityis cited. The application is dismissed.[63] Mr Nottingham also sought an order that Ms Currie be cross-examined onaffidavits she has filed in the proceeding. Cross-examination of deponents is availableat trial. While on rare occasions that may occur earlier, there are no grounds for thathere, nor were any actually advanced by Mr Nottingham. That application isdismissed.[64] Mr Nottingham also sought that he be allowed to "make investigations" ofcertain witnesses. The question of Mr Nottingham's contacting witnesses wascanvassed [Redacted]. Given the orders I make below, any question ofMr Nottingham's contacting witnesses becomes otiose. But I wish to make it clear, hewould not be entitled in any event to "make investigations of witnesses", nor are anysuch people under any obligation whatsoever to even respond to any inquiry by him.[Redacted], he is cautioned to take great care should he endeavour to contact anyoneinvolved in this case.[65] Mr Nottingham also made an application for discovery by Ms Currie of herbanking records to establish she is not funding the litigation, and for an order that hercounsel identify the funders. There is no relevance to either application. Ms Curriehas already said the litigation is being funded by Mr McLean's family members, notherself. Both applications are dismissed.[66] Finally, Mr Nottingham applies to rescind costs orders made against him. Hedoes not specify which of the orders and provides no basis for rescinding any. Therewould be no prospect of any of the costs orders being rescinded. That application isalso dismissed.Plaintiff's application to strike outStrike-out of defence[67] The plaintiff's application to strike out the statement of defence is made on thegrounds that the defence is defective in numerous ways including being unnecessarilyprolix, unintelligible, not properly replying to the statement of claim and failing toplead defences as required by the Defamation Act. The plaintiff also says that thepleading is in substantial part scandalous and/or irrelevant. As noted, the plaintiff alsoseeks orders to (a) debar Mr Nottingham from defending the proceeding, (b) removehim as a party to the proceeding, and (c) list the proceeding for formal proof. She alsoseeks costs. I note that these orders are consequential at least in part on the plaintiff'sapplication to strike out. They are not distinct applications, as are the applications byMr Nottingham referred to above.[68] At the time Courtney J made her direction that no further interlocutoryapplications be filed without leave, the then plaintiffs had done no more than file astatement of claim and a conventional application for directions as to service.Mr Nottingham had filed two non-complying interlocutory applications. It is unclearwhy Courtney J made her order on a blanket basis rather than against Mr Nottinghamonly.[69] As noted earlier, although the plaintiffs filed their statement of claim on11 April 2017, the various steps taken by Mr Nottingham since then have meant thathe did not file a statement of defence until 14 December 2020. I accept that in thosecircumstances, the plaintiff's application to strike out was made at the first opportunityand I accept for the reasons set out below that there is strong merit in the application.Leave is therefore granted.[70] The plaintiff's application to strike out the statement of defence is made underr 15.1, set out at [16] above.[71] The judgment of the Court of Appeal in Commissioner of Inland Revenue vChesterfields Preschools Ltd provides useful guidance on the requirements forpleadings and the application of r 15.1.27[72] I agree with Ms Muller that the pleading here falls foul of those requirementsin many ways.[73] First, it is unnecessarily prolix and unintelligible. The statement of defencecomprises 58 pages purportedly responding to a 13-page amended statement of claim.It is expressed in a way that is difficult, in fact almost impossible, to follow. The sameapplies to Mr Nottingham's submissions.[74] Rule 5.14 requires documents presented for filing to be divided into paragraphsnumbered consecutively, with each paragraph confined to a single topic. Much of thecontent of the statement of defence is unnumbered and repeated elsewhere in thedocument.[75] Rule 5.48(1) requires the statement of defence to either admit or denyallegations of fact and r 5.48(2) requires a denial not to be evasive. I agree withMs Muller that the pleadings in response to [1] and [2] of the amended claim,including a lengthy extract from Clark J's decision in Driver and legal submissions,are generally evasive. Similarly problematic are paragraphs 5, 6, 11, 12, 19 and 25 ofthe statement of defence. These are examples only. A good illustration of formulaicevasiveness is the pleading at [7.10], repeated in other places throughout thedocument:The second defendant denies any defamation and he repeats all precedingparagraphs as and when they are relevant, and relies on all followingparagraphs as and when they are relevant, and that the allegations made in thearticles the subject of these proceedings are prima facie established as being27 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 (Chesterfields).These requirements apply, alongside additional requirements, to statements of defence: Craig vStringer [2016] NZHC 362 at [16].completely true, or otherwise protected by sections 9, 11, 13 to 16, 22, and 23of the Defamation Act 1992.[76] In a number of instances such generalised pleadings are followed by discursive,scandalous, argumentative and "evidentiary" statements of opinion. One goodexample of this is at subparas 13.2(a) and 13.2(b) which occupy pages 26 to 28 of thestatement of defence.28[77] Rule 5.17(1) requires distinct grounds of defence to be stated separately andclearly if possible. This is breached in a significant number of respects.[78] Given this is a defamation proceeding, insofar as the pleading raises statutorydefences of truth and honest opinion under ss 8 and 9 of the Defamation Act, it failsto comply with s 40 of the Act which requires a defendant intending to rely on thedefence of truth and of honest opinion to plead each separately. This also means thatMr Nottingham has failed to comply with s 38 of the Act.[79] The pleading also contains scandalous and irrelevant material to a significantdegree. This also is a ground for strike-out under r 15.1(1)(b).29 In this case, thestatement of defence contains a large number of scandalous allegations of wrongdoingmade not only against Ms Currie but against others, including her counsel. Theappendix is one example of this. Other examples taken from Mr Nottingham'sstatement of defence are as follows:303132333428 This paragraph is attached as an appendix to this judgment for reference.29 Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC); Chesterfields [2013] NZCA 53 at[91] and [95]; and O'Neill v New Zealand Law Society [2021] NZHC 607 at [11].30 [Redacted]31 [Redacted]32 [Redacted]33 [Redacted]34 [Redacted]35363738[80] Other examples of this are contained in the unnumbered content on pages 24–25 and repetitions of that content on pages 35–36, 43, 51–52 and 58.[81] The statement of defence includes allegations of wrongdoing against formerplaintiffs, the plaintiff's counsel and various other persons. The attacks on counsel andother parties are of great concern.[82] Of significance are the number of sweeping allegations pleaded apparently byway of defence, but which have no place by way of defence, including champerty,[Redacted] involving the plaintiff and numerous others. As stated above suchallegations are not available as defences and would need to be pleaded, and pleadedproperly as counterclaims, if they were to remain at all. Counterclaims, as Ms Mullerpoints out, are then amendable to applications for security for costs and so forth.[83] There is no question but that the statement of defence must be struck out underr 15.1. Mr Nottingham's "defence" of this case is a travesty of justice.Debarring Mr Nottingham from defending[84] The plaintiff also seeks orders that Mr Nottingham be debarred fromdefending, be removed as a party to the proceedings, and that the matter be set downfor formal proof.[85] A debarring order is reserved for extreme circumstances.39 This must beparticularly so where an order is sought against a defendant. However, in this case,Mr Nottingham applied to be joined, the plaintiffs opposing.35 [Redacted]36 [Redacted]37 [Redacted]38 [Redacted]39 Stephens v Cribb (1991) 4 PRNZ 337.[86] A debarring order was made against a defendant in LFDB v SM incircumstances where "unless orders" with regard to payment of costs had beendeliberately flouted.40 And similarly in Hodgson v Siemer, Mr Siemer had been foundin contempt of Court, had continued to deliberately breach an injunction and thenrefused to pay costs despite having effectively admitted he was financially able to doso.41 Mr Siemer was debarred until further order of the Court.[87] I consider that, although different, the plaintiff's argument in the present caseis more compelling.[88] The plaintiff points to:(a) The hopeless and scandalous nature of the defence as filed, includingunsupported and irrelevant allegations against the plaintiff's counsel.(b) Mr Nottingham's conduct of this proceeding in general, including therepetitive and hopeless applications to strike out the claim.(c) The outstanding costs orders noted above, which go back to May 2017.Mr Nottingham was adjudicated bankrupt on 11 September 2018 andas I understand it has still not been discharged from bankruptcy. Heclearly has no intention of meeting any costs order. Indeed, part of hiscurrent application was to rescind them. That leaves him in significantdefault and the plaintiff and the Court with no effective means ofsanctioning him.[89] All arguments advanced by Ms Muller are clearly correct, if not understated.[90] Mr Nottingham is not only misusing Court processes by filing documents withirrelevant, scandalous and unsupported statements about the plaintiff, not to mentiondocuments that are wholly non-compliant, but he is also using his involvement in thiscase to continue to harass her, [Redacted], and to harass and intimidate her counsel.40 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.41 Hodgson v Siemer HC Auckland CIV 2005-404-1808, 9 July 2007.[91] In my view, Mr Nottingham's conduct of the case and his defence are not onlyan abuse of the court process, they amount to an abuse of Ms Currie and of her counsel.The conduct of his defence is entirely vexatious and scandalous. Further, I see nothingin the voluminous material put forward to indicate there is any real defence: to thecontrary. Presumably his application to strike out the statement of claim puts his caseat its highest and that not only did not support a strike-out, it fell well short of anarguable defence.[92] There can be no question that Mr Nottingham's actions and statements aredeliberate. He is not operating out of ignorance. As noted above, he has considerablefamiliarity with legal and Court processes.[93] There are long outstanding costs awards of which Mr Nottingham is insignificant default. There is no evidence he is able to pay them, although I note he iswell able to meet at least the disbursements of apparently numerous court appearances,including in the Supreme Court. However, I do not consider his ability to pay ismaterial in a case such as this. What is relevant is that Mr Nottingham has been indefault for a long period of time and it is clear that costs orders impose no controlwhatsoever on him.[94] Ms Muller did not rely on [Redacted]. However, I consider it important torecord the relevant details here because I consider Mr Nottingham's "defence" of thisproceeding is nothing more than ongoing harassment of Ms Currie arising out of thesame facts [Redacted].42[95] 43[96] [Redacted] made findings of fact that Mr Nottingham published numerousarticles on Lauda Finem and was either the leading mind of that blog or was "sointimately related to it that it is proper to conclude that he provided information anddraft articles to that blog site knowing and intending that they would be published".4442 [Redacted]43 [Redacted]44 [Redacted][97] [Redacted]45[98] In relation to the effect on Ms Currie, [Redacted]:46[Redacted][99] In all of the above circumstances, it would be farcical and seriously unjust forthis Court to countenance anything other than an order to debar Mr Nottingham fromdefending. I consider there are clear grounds to make such an order, both under r 7.48and in terms of this Court's inherent jurisdiction.[100] Ms Muller said that if the matter were set down for formal proof, the plaintiffwould not pursue an order for indemnity costs against Mr Nottingham (presumably asagainst ordinary costs). That is not material to my decision. The plaintiff is free toproceed in such a way as is considered appropriate, including as to costs.Result[101] The second defendant's applications dated 29 January 2021 including hisapplication to strike out the amended statement of claim, are all dismissed.[102] All other applications by the second defendant are dismissed.[103] The plaintiff's application to strike-out the statement of defence is granted.[104] The plaintiff's applications for removal of Mr Nottingham as a party and to setthe proceeding down for formal proof are also granted.[105] The plaintiff has succeeded on all applications filed by her and byMr Nottingham. She sought costs on all applications. Mr Nottingham did not makesubmissions in reply. Costs are clearly due. I fix costs on all applications before meon a 2B basis. I would fix them on an indemnity basis which is clearly justified, butsee no point. Mr Nottingham is to pay the costs within one month of the order beingsealed.45 [Redacted]46 [Redacted]Addendum[106] This judgment has been redacted pursuant to the inherent jurisdiction of thisCourt in order to:(a) be as consistent as possible with the purpose of an order for permanentname suppression of the plaintiff made by Judge Down in the DistrictCourt on 26 July 2018 in connection with related proceedings; and(b) remove from the judgment defamatory, scandalous and associatedpersonal statements made in respect of the plaintiff by Mr Nottingham.___________________Hinton JCounsel/Solicitors:K Muller, Barrister, AucklandD B Law, AucklandCopy to:Second DefendantAppendix[13.2] The second defendant denies any defamation and he repeats all precedingparagraphs as and when they are relevant, and relies on all following paragraphs asand when they are relevant, and that the allegations made in the articles the subject ofthese proceedings are prima facie established as being completely true, or otherwiseprotected by sections 9, 11, 13 to 16, 22, and 23 of the Defamation Act 1992.a) [Redacted]b) [Redacted]