Nottingham fails again in Court of Appeal, judicial system faltering

Another failed Dermot Nottingham attempt to get leave to appeal from the Court of Appeal, this time against myself and Allied Press Limited.

This follows over three years of two related private prosecution proceedings. Last week Nottingham was also declined leave to appeal in the Court of Appeal versus Lynn Prentice and APN Limited – see Nottingham fails another attempted appeal.

All four parties were originally charged together in July 2015, but the cases against Allied Press and I were moved to Dunedin as they had been incorrectly filed in Auckland.

Prentice and APN went to trial in June 2016 and all charges were dismissed. They were eventually awarded costs. Nottingham unsuccessfully appealed the dismissal and costs in the High Court, and last week failed to get leave to appeal from the Court of Appeal.

The  week after those dismissals at trial Allied Press and I had a hearing seeking dismissal of charges prior to trial. Nottingham had not submitted opposing this. At the hearing Nottingham sought and obtained the Court’s leave to withdraw the charges.

We subsequently applied for costs and these were eventually awarded. In March this year Nottingham lost a High Court appeal against the costs, and has now failed to get leave to appeal from the Court of Appeal. After a hearing before three judges on 9 October 2018 their judgment has just come out.

[5] The private prosecution initiated by Mr Nottingham charged Allied Press Ltd and Mr George with breaching a suppression order by publishing articles on their respective websites in breach of s 211 of the Criminal Procedure Act.

[8] Mr Nottingham’s principal argument in support of his application for leave to appeal is that convictions of Allied Press Ltd and Mr George were inevitable if he had chosen to continue with the prosecution. He submits that Davidson J’s finding that the prosecution was defendable was “inconsistent with the indisputable facts”.

At the time the charges were withdrawn the case was in a hopeless state. The 1000+ page long 3 month+ late initial disclosure was inadequate, a promised expert witness statement was never produced, and Nottingham repeatedly failed to comply with law, court rules and timetables.

Both APN and I had entered not guilty please, legally we were ‘not guilty’ when the charges were withdrawn by the prosecutor, and we both believe we are not guilty in fact and could have defended the charges. Seven judges have agreed that the charges were defendable, but as the cases had never gone to trial could not rule out the possibility that Nottingham could have eventually proved something. he never has.

[9] Mr Nottingham says that the issues of costs against a prosecutor and what published information will breach a suppression order require clarification…

[10] These questions are all fact specific and relate only to this case.

[11] We are of the view that the questions posed are not issues of general principle or of general importance in the administration of the criminal law by the courts.

[12] Nor are we satisfied that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Discontinuation of proceedings will ordinarily have cost consequences. This was not a case where the prosecution would have clearly succeeded but for circumstances unrelated to the merits. We agree with the Judge that the prosecution was defendable. The issues would have included whether the publications contained any suppressed information and whether the requisite mental element was established for charges that are not of strict liability. Further, as the Judge mentioned, if the issue of “hidden computer search tools” had become relevant, then the legal and evidential issues would have been more complex. There were no clear answers to these issues on the untested evidence.

[13] We accordingly decline the application for leave to appeal.

The evidence had never been tested at trial, so despite Nottingham effectively trying to re-litigate the case at four subsequent hearings over costs we remain ‘not guilty’ (and, I believe, not guilty).

Note: there is suppression (Order prohibiting publication of evidence and submissions contained in
this judgment) related to a different prosecution (and conviction), so those details cannot be published at this stage, and the full judgment won’t be published pending the final outcome of the other case.

Prior to the last High Court appeal Nottingham indicated he intended taking the case to both the Court of Appeal and the Supreme Court, so a further legal step is possible. I think this would be futile, and would use up more of the already overstretched court resources.

Nottingham currently has three cases pending before the Supreme Court following other failed appeals – see Case information 2018

Further attempts at appeal would incur further costs. Nottingham has admitted he has been insolvent for some time, has claimed to have debts of about $2 million (about quarter of a million in various court costs awarded against him), and he was adjudicated bankrupt in September – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018].

He seems to have had no intention of paying costs, and no ability to pay costs, yet he continues to force people to incur costs through the courts. In an email in 2015 he said that if various intended litigation took ten years ‘he was up for it”.

Nottingham has incurred all the costs but has not been acting alone.

Robert Earle McKinney has been closely involved with the proceedings against us. He arranged for the initial serving of documents (that was funny, I was photographed being served the documents on a Dunedin street). He shared the same email account as Nottingham, which was associated with his company Advantage Advocacy Limited (now in liquidation – see First Liquidators Report). Nottingham was said to be the sole employee of this company, and the company was registered at his address.

Cameron Slater was named as an informant to the prosecution, and was named as an expert witness (but never provided a witness statement). He appeared as a witness in the Prentice/APN trial. See NOTTINGHAM v APN NEWS & MEDIA LTD [2018] NZHC 596 [29 March 2018]:

  • calling a witness who had not been brief, Mr Slater. The detail and nature of this evidence had not been provided to the defence prior to the presentation of the witness to the Court;

Slater has been named by Nottingham as involved in ongoing attempts at litigation against me. He was also associated with the failed Court Order attempt by Marc Spring.

Marc Spring was also involved in serving court documents for Nottingham, and openly associated himself with @LaudaFinem in a campaign of harassment against me, at one stage suggesting I would be ‘fucked over’ as happens at Whale Oil. He has been involved in a number of ways in trying to trash and take down Your NZ. I believe he was also contributor to content (posts and comments under various pseudonyms) at the now taken down laudafinem.com blog. – see from sentencing notes:

“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.”

There is a lot more on Spring’s involvement in various things but that is for another story. Others have also been involved in various ways.

Due to all of this I have learned a lot about how our judicial system works. I don’t think it has coped well with people who use it to attack and use it to try to cause hardship to others, and who repeatedly abuse processes and fail to comply with laws, rules and conventions that lawyers are bound to adhere to.  They have wasted a large amount of court time and resources.

I think that private prosecutions are an important part of our judicial system, as is the right to represent oneself and act as a lay litigant.

But I think that far less leniency for breaches of laws, rules and timetables would make things more fair for the targets of vexatious litigation.

There are apparently strict requirements for filing court submissions according to defined timetables. In theory this allows for orderly and fair processes.  But Nottingham has been allowed far too much leniency, and due to his frequency of litigation he should not get away with the excuse of lay litigant ignorance. Courts have pointed that out.

Nottingham repeatedly ignored requirements. A few examples (from many) from my proceedings.

“At the commencement of criminal proceedings, or as soon as practicable after that time, and in any event not later than the applicable date, the prosecutor must disclose the following information to the defendant.”

“In this section, applicable date means—

(a) the date that is 15 working days after the commencement of criminal proceedings

That means he should have provided disclosure by mid-August 2015. After he failed disclosure was requested by counsel and instructed by the Court. He still failed to disclose, and at one stage said he was deliberately delaying disclosure. He finally served a 9cm think pile of garbage (that has to be all read in case there is something important, not cheap when you are paying a lawyer to do it) in December 2015, three and a half months late.

When we applied for and submitted on costs Nottingham filed his submission late with the court but failed to serve it on us (the Applicants). When just prior to a scheduled hearing we found out he had submitted but not served the Court directed that he serve, but he failed to do that. I had to spend half a day in Court reading through hundreds of pages just in case there was something in it that was important.

Nottingham failed to appear at the costs hearing, but instead emailed a further submission during the hearing. remarkable the Court gave us copies and the Judge ordered a short adjournment so we could read it (a ridiculous situation to put us in). Then when the hearing resumed another submission arrived in court. At least the judge refused to accept that one.

For the Court of Appeal proceedings Nottingham:

  • filed his application seeking leave to appeal out of time
  • failed to file a submission as directed by a judge to give reasons for applying out of time
  • failed to file his submission as Applicant by the due date
  • after being told he had not filed by the court he set his own timetable
  • he finally filed his submission after both respondents had filed our submissions on time
  • two hours prior to the appeal hearing he filed another submission.

How did the Court deal with all of these transgressions? One of the three appeal judges said he two hour prior to hearing submission was ‘unhelpful’.

I made the point in oral submissions that all of these failures impose severe difficulties on the respondents, and also costs for those who have lawyers having to try and deal with the chaos. But that was not noted in the judgment.

I have been severely inconvenienced and disadvantaged through 3+ years of proceedings due to the actions and failures to comply of Nottingham. Lawyers would not get away with any of this (they wouldn’t attempt to get away with it).

While the various judges and courts have had difficulty dealing with a recidivist abuser of processes I believe hey have in effect aided and abetted these abuses by being so lenient with Nottingham time and time again.

If the courts want to reduce the pressure on time and resources they could help themselves by ensuring that litigants at least mostly comply with requirements.

This has been a huge learning curve for me, being my first experience in litigation and the courts. I found out what I was required to do, and did everything as required, on time. I have been severely disadvantaged by the numerous breaches by Nottingham, unchecked by the courts.

What have I got for this? Some costs awarded, with the likelihood that none of that will be paid. And I have got off cheaply compared to others.

The law is largely not an ass, and court staff and judges generally do good jobs under pressure, but the judicial system could be improved with some simple insistences that basic processes are complied with.

Paying for decent journalism

Strong journalism is essential in a strong democracy, but in some respects at least it appears that serious journalism is going down the gurgler.

Even attempts at serious journalism are questionable. Multiple news organisations put significant resources over the last couple of weeks into trying to analyse and report on the Panama papers.

Newsrooms cried wolf, in collaboration with a political activist, and seemingly in collaboration with opposition parties.

The result was overblown, a public turn off and proved and probably achieved very little.

Big news this week (amongst journalists) was the proposed merger of Fairfax Media and APN. Who knows whether that will turn journalism around or just dump a few more reporters on the scrapheap, reduce choice and impose paywalls (which will probably reduce choice further).

Today’s ODT editorial: Adapt, collaborate, or die?

Now of course, in the digital age, there is the expectation from the public that journalists will be everywhere, at all hours, that news, entertainment and opinion should be accessible at the touch of a screen, on a variety of platforms, online, live and instantaneous.

The mediums have changed. Technology has made news-gathering and presentation exciting, innovative, fast-paced, constantly evolving and challenging. It certainly does not allow for complacency, the enemy of good journalism.

Sadly, what has changed is that today’s “audiences” want and expect everything immediately – and for nothing. If they can’t get it for free, they’ll go somewhere they can.

But if good journalism is not valued, there is a huge cost – to media companies, and ultimately to the public they serve. The public often bemoan what is perceived as dropping standards of journalism, yet it is fuelling the change.

As long as the watchdog role of the fourth estate is undervalued in every sense, the democratic ideals of transparency and accountability are at risk. The ultimate winners of this race to the bottom? Those already at the top, who are striving to stay there: the Government, churches, judiciary, police, army, big business.

If a merger allows the new major entity to put up a paywall for digital content, it may safeguard its future – and that of others seeking to do the same, such as this newspaper.

We all need to go back to the future to a certain extent: back to valuing journalism and the work that goes into producing content – and back to paying for it (on whatever platform). Now more than ever, in an age of spin doctors, gatekeepers and public relations staff, we need a healthy, competent, independent and well-resourced media.

The ODT is keen on paywalled news, I thought they had announced they would have moved to subscription news by now.

How much is decent journalism worth?

I used to subscribe to the ODT but stopped that last year when I realised I was hardly ever reading it. I do most of my reading online.

I guess I pay indirectly by having to navigate a mass of advertising online – but I can’t remember if I have ever bought something prompted by an online advertisement.

I’m very practised at ignoring them and I don’t impulse shop anyway. I’m far more inclined towards research shopping online, comparing products and prices, looking for reviews and opinions.

I have subscribed to Consumer online for this purpose, but occasionally  ponder whether that’s good value for money. I think I probably get a return on that investment.

I have subscribed to a couple of overseas publications but underutilised them and am unlikely to do it again, probably.

The problem for me with paying for a print subscription for online access to the ODT is that it would only be a small part of my news sourcing.

If a joint APN/Fairfax media also paywalled that would be an additional cost – and I would still want to view other news sources.

One of the key things I do is research across multiple sources, and I don’t feel inclined to subscribe to a heap of them. Publicly funded and free (currently) RNZ would get more attractive, but I would want much wider coverage.

I value good journalism and good news, and detest a lot of the media junk food.

I’m an on again off again subscriber to Sky and hate all the crap and self promotion (advertising on a subscription service).

I don’t think a bunch of separate news subscriptions are the answer. Especially when they want print prices for online access, that just doesn’t add up to me.

I would happily pay something for good journalism and good news and analysis, up to a point.

But I have seen nothing yet that attracts my custom.

And I really have no idea what would. I haven’t seen any yet that’s attractive.

I’d really like to hear other opinions on this. I think it’s an important issue with no obvious or easy answers.