Time bar doesn’t apply in defamation case with no damages sought (Nottingham loses another appeal)

The Court of Appeal has confirmed that there is no time bar on filing defamation proceedings if damages are not sought in yet another failed appeal by Dermot Nottingham.

This time it is in a case against brought against him by Maltese Cat Limited and two individuals who are seeking a declaration that articles posted on the Lauda Finem website are defamatory – a legal declaration is necessary to get overseas hosts of websites to take down defamatory material.

This judgment suggests that anyone seeking a declaration from the Court to get material taken down could be able to do so as long as the material remains available online, long after it was first published.

But it does not answer another issue on defamation law – whether or not an online publication is regarded as re-published whenever it is accessed (and not just when first published).

It seems ludicrous to me that individuals need to go to these lengths in the courts. Nottingham has already been found to be largely responsible for posts at Lauda Finem when found guilty of multiple counts of suppression breaches and criminal harassment, yet a lot of material remains accessible.

From sentencing notes:

[22] Now, I make some findings of fact. Consistent with the verdicts of the jury I have concluded that between 2010 and 2015 Dermot Nottingham published or had published numerous articles on the blog site laudafinem.com. Either Dermot Nottingham is Lauda Finem (in other words, the leading mind of that blog) or he is so intimately related to it that it is proper to conclude that he provided information and draft articles to that blog site knowing and intending that they would be published.

[23] During that five year period the defendant undertook numerous campaigns of harassment against a number of individuals, the most egregious and persistent of which were represented by the five complainants in the trial. I concluded that his conduct by publishing said articles, through other intimidating and harassing conduct – including threatening, watching, photographing, following – was either carried out directly by Dermot Nottingham or at his direction and that he knew his conduct was likely to cause the individuals to fear for their safety or the safety of family members.

Despite that finding, and Nottingham losing  subsequent appeal against sentence and conviction in the Court of Appeal (DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]) and another appeal to the Supreme Court (DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]), extensive content is still publicly available online.

The latest judgment NOTTINGHAM v MALTESE CAT LIMITED [2019] NZCA 641 [12 December 2019]:

[1] The issue in this appeal is whether a defamation claim seeking declaratory relief and costs is a money claim for the purposes of s 11 of the Limitation Act 2010.

[2] The respondents brought the proceedings alleging that defamatory statements had been published about them on the website http://www.laudafinem.com. The host of the website, Godaddy.com LLC, has advised that it is contractually entitled to take down defamatory, obscene or lewd material and will abide any order of this Court declaring publications on the laudafinem.com website to fall into those categories.

[3] Mr Nottingham brought a number of interlocutory applications, including an application to strike out the proceeding on the ground that it was time barred…

[4] Fogarty J found that the proceedings were not time barred. Mr Nottingham appeals.

[9] The Judge considered that the limitation issue could be disposed of on the basis that the defence provided under s 11 on which Mr Nottingham relied was not available, because s 11 applies only to “money claim[s]” and the respondents were seeking only declaratory relief, which is not a money claim.

[11] On appeal, Mr Nottingham modified his argument in relation to s 11. He submitted that, because the statement of claim seeks costs (and indeed indemnity costs would likely be payable by virtue of s 24(2) of the Defamation Act 1992), as well as declaratory relief, the proceedings do constitute a “money claim” for the purposes of s 11 of the Limitation Act.

[13] We consider that the Judge was right in his conclusion that the proceeding is not a money claim and that the fact costs are sought makes no difference.

[15] A claim for declaratory relief is clearly not a money claim for the purposes of s 11 and Mr Nottingham did not seek to argue otherwise. Nor is it tenable to argue that a claim for costs could, in itself, constitute a money claim. A claim for costs under the High Court Rules is essentially a claim for a contribution to litigation costs incurred, that being the basis upon which claims are allowed. It is well recognised, however, that proceedings cannot be brought where legal costs are the only relief sought. It is therefore self-evident that a claim for costs cannot transform a claim for declaratory relief, which is not a money claim, into a money claim. We agree with Mr Connor’s point, for the respondents, that treating costs as a form of relief would have the potential to turn virtually every claim into a money claim for the purposes of the Limitation Act.

So this confirms that declaratory relief without damages being sought is not time barred, and costs are not considered a damages ‘money claim’.

[16] Our conclusion that the proceeding in this matter is not a money claim means that whether the publication is to be treated as having occurred on the first day of publication or subsequently, under the multiple publication rule, cannot affect the respondents’ position. It is therefore unnecessary to consider the merits and application of that rule.

So that question appears to remain legally unresolved.

[17] Nor is it necessary to consider the other aspects of Mr Nottingham’s extensive written submissions, which rest on factual matters not before the Court.

Nottingham has a record of making extensive written submissions that are not relevant or admissible. This my be in part legal incompetence, but I suspect that it has also been used as a way of inflicting legal hardship and costs – lawyers have to read all his crap, often hundreds of pages and in some cases over a thousand pages in a single submission (that has happened in a failed case against myself and others).

[18] The appeal is dismissed.

[19] The appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

This is also a bit farcical – in September 2018 Nottingham was adjudicated bankrupt due to not paying hundreds of thousands of dollars in costs accrued in various cases – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018]

One benefit of him being bankrupt is it now limits what new court actions he can take, as the official assignee has a say in anything he does that could incur costs.

But I don’t know why the Police or Courts can’t do something about the extensive amount of material still published online (disclosure – some of this material attacks and defames myself).

Leave a comment

5 Comments

  1. Blazer

     /  18th December 2019

    does Netsafe have any …remedy?

    Reply
    • As far as I know, no. You go to them and they try to work out a solution. if that doesn’t succeed you have to then go to the Police or court.

      Reply
  2. Duker

     /  18th December 2019

    If community magistrates can decide plenty of cases – but not those with imprisonment- so they should be able to handle minor defamation matters. This of course was an appeal , so a bit different , but with a much lower level court handling these sort of issues , so the costs and delays are reduced.
    Andrew Little – get onto it.

    Reply
  3. Kitty Catkin

     /  18th December 2019

    The Maltese Cat owner must be a Kipling lover.

    Reply
  4. Alan Wilkinson

     /  18th December 2019

    Last twitch for a cockroach. Still a few of his mates hiding behind the furniture though.

    Reply

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