Nottingham application for recall dismissed by Court of Appeal

Another in long list of failures by Dermot Nottingham with the Court of Appeal dismissing an application for recall of an award of costs in a long running (since 2013) litigation versus Maltese Cat regarding claimed defamatory posts on the Lauda Finem website in 2013.

Nottingham was convicted in 2018 of criminal harassment and suppression breaches where he was found ‘by a wide margin’ to be ‘the driving force’ responsible for numerous posts on the Lauda Finem website.

[38] Identity (in the sense of responsibility for the acts either as principal or party) was therefore in issue on all charges. Again, Mr Nottingham’s position (both at trial and on appeal) was that there was no evidence of information being communicated from computers under his control to the LF website. And again, the Crown case was (and is) the evidence identifying him as the “driving force” behind the harassment was, if not overwhelming, certainly very strong.

[43] The weight to be given to all of these individual pieces of evidence was essentially a jury function. By a wide margin we conclude that on the issue of “identity”, Mr Nottingham fails to satisfy us that the jury’s verdict was unreasonable.

That’s from Nottingham’s failed appeal of conviction and sentence – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]. He tried to appeal that decision inn the Supreme Court –  DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019] – but his application for leave to appeal was dismissed.

No question of general or public importance accordingly arises. Against that factual background, nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment.

Nottingham had argued that he wasn’t responsible, but also that the posts were true, so he was trying defend something he claimed there was no evidence he had done.

This is relevant to the Maltese Cat case because they are claiming Nottingham has some involvement in defamatory posts at Lauda Finem.

From 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. Rule 15.1 of the High Court Rules 2016 permits the court to strike out all or part of a pleading on specified grounds, including that it is an abuse of the process of the court.  In order to succeed on a strike-out application brought on the ground that the cause of action is statute-barred, the applicant must show that the claim is properly regarded as frivolous, vexatious or an abuse of process.  The threshold for striking out a pleading is a high one; the jurisdiction is to be exercised sparingly and only in clear cases and the cause of action must be clearly untenable.

[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.

[12] Mr Nottingham also maintained the argument that the multiple publication rule should not apply and that the proceedings are time barred because they were filed more than two years after the first date of publication and the respondents had knowledge of the publication within that period.

[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.

[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.

[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 history of “extensive written submissions” – often hundreds of pages, sometimes over a thousand – which ‘rest on matters not before the Court’, that is, irrelevant or inadmissible. A problem with this is that lawyers have to read all submissions just in case there is something of legal importance hidden in the dross. This takes time and costs clients money.

Result
[18] The appeal is dismissed.

The latest judgment: Nottingham v Maltese Cat Limited [2020] NZCA 31 (28 February 2020)

[1] Mr Nottingham applied unsuccessfully in the High Court to strike out the respondents’ claim on the basis that it is time-barred. This Court dismissed Mr Nottingham’s appeal against that decision. Mr Nottingham was ordered to pay one set of costs for a standard appeal on a band A basis with usual disbursements. He has now applied for a recall of the judgment and a rehearing of the appeal on various issues.

[3] Mr Nottingham identifies five grounds for his application. They can be broadly summarised as follows:

(a) the costs awarded are punitive and unfair in the circumstances;

(b) in considering costs the Court failed to take into account allegations of perjury by the respondents and the merits of Mr Nottingham’s substantive argument;

(c) there were errors of law by the Court and bias by one of the panel;

(d) there is a history of this Court making decisions adverse to Mr Nottingham; and

(e) Mr Nottingham’s rights under the New Zealand Bill of Rights Act 1990, the International Covenant on Civil and Political Rights and the Declaration of the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms have not been observed.

[5] It is evident from Mr Nottingham’s memorandum that he wishes to reargue a number of matters that were argued at the hearing of the appeal and, moreover, seeks to have this Court take further steps to investigate factual matters in issue between the parties. None of the matters Mr Nottingham raises are within the category of cases appropriate for recall. Mr Nottingham’s proper course is to pursue the application for leave to appeal to the Supreme Court that he filed prior to making the present application.

[6] The respondents have sought costs on a band A basis in respect of this application. Mr Nottingham did not address the issue of costs in his memorandum. We grant costs on the basis sought.

So the application for a recall of a costs award has been dismissed, and further costs awarded against Nottingham.

Nottingham was adjudged bankrupt in 2018 largely due to hundreds of thousands of dollars of unpaid costs in a number of court proceedings (five failed private prosecutions, one against myself).

I think it’s fair to ask whether Nottingham is deliberately inflicting costs through repeated hopeless litigation in which he has no intention nor ability to pay costs.  This makes the risk of costs no deterrent, which puts targets of Nottingham’s prosecutions and appeals at a serious disadvantage. I don’t know if there is anything the courts can do about this, but they could do something about the leniency they have repeatedly given Nottingham over later and prolix filings and repeatedly failing to comply with court rules and timetables.

Nottingham is currently limited from starting new litigation as he is a bankrupt serving home detention and has a ban on Internet access.

But this Maltese Cat proceeding shows that if you only claim a statutory declaration and don’t claim damages there is no time bar. This leaves possible legal recourse to anyone who thinks they have been defamed by posts on Lauda Finem (including myself) to seek a declaration to try to get defamatory posts taken down.

Leave a comment

6 Comments

  1. Alan Wilkinson

     /  8th March 2020

    Writes lies then lies about writing them. Claims costs but won’t pay costs. Hard to defend his continued wretched existence as evidenced by these proceedings.

    Reply
  2. Kitty Catkin

     /  8th March 2020

    I pity the unlucky people who have to read the stuff that he churns out. They really earn their money.

    Reply
  3. Duker

     /  8th March 2020

    Isnt he now the poster boy for exactly the sort of person who should be barred from lodging proceedings in any court and acting as his own lawyer

    Reply
    • Kitty Catkin

       /  8th March 2020

      He personifies the old saying about the person who acts as their own lawyer having a fool for a client.

      Reply

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