Borrowdale application to transfer judicial review to Court of Appeal declined

Andrew Borrowdale had issued a proceeding for a judicial review the Director-General of Health over Covid-19 lockdown restrictions in the High Court at Wellington.

He then applied to have the proceeding transferred to the Court of Appeal to try to speed up the process, anticipating the likelihood the Crown would appeal if ruled against. But this transfer application has been declined by the High Court, who say that the matter is best dealt with in the first instant by a trial court rather than an appeal court.

Borrowdale is appearing in person (not represented by another lawyer).

The Court of Appeal judgment gives some details about the judicial review.

Mr Borrowdale has issued a proceeding for judicial review against theDirector-General of Health in the High Court at Wellington. He alleges three lockdown orders made by the Director-Generalare ultra vires. That is, he saysthey exceed the powers vested in medical officers of health to make quarantine, isolation, non-association and closure orders under s 70 of theHealth Act 1956. He alleges theorders are unlawful, ineffective and should be quashed by the High Court.

The three orders challenged (andthe basis of challenge in each case) are as follows.

First, there is the initial “Level 4”non-association and closure order of 25 March 2020, made purportedly pursuant to s 70(1)(m)of the Health Act. This required premises in all districts of New Zealand to be closed, other than certain essential businesses defined in an appendix. Mr Borrowdale alleges the order exceeded the power within s70(1)(m)(i) of the Health Act enabling closure of “all premises within the district … of any stated kind or description” by failing to refer to premises of a stated kind or description,and in purporting to define premises negatively by reference to all premises (other than those essential). Mr Borrowdale makes a related argument in relation to the prohibition on congregation inoutdoor places of amusement or recreation. He further alleges that the order’s definition of “essential businesses” amounted to an unlawful delegation to unnamed officials to decide which premises should be closed, and that the definition of “congregate” purports to vary the primary legislation

Secondly, Mr Borrowdale challenges the further “Level 4” isolation and quarantine order of 3 April 2020,made purportedly pursuant to s 70(1)(f)of the Health Act. This required all persons in all districts of New Zealand to be isolated or quarantined by remaining at their current place of residence, other than for certain “essential personal movement”. Mr Borrowdale alleges th eorder is ultra vires s70(1)(f)because that provision does not empower orders of a general nature. Rather,he says it only empowers a medical officer of health to require particular individuals to be isolated, quarantined or disinfected.Mr Borrowdale further alleges that the Director-General exceeded his powers by purporting to act nationally in exercising the functions of medical officers of health in their health districts, without considering the needs of each health district separately.

Thirdly, Mr Borrowdale challenges the “Level 3” orderof24 April 2020,made purportedly pursuant to s 70(1)(f) and (m)of the Health Act.1He says the third orderis ultra vires for the same reasons as the second order.

But level 4 is past (hopefully for good) so is sort of irrelevant now.

It should be noted that thefirst and second orders were revoked by the thirdorder and are no longer in force. Any urgency therefore relates to the operative effect of the third (“Level 3”) order only.

And that needs to be heard urgently if it is to be dealt with before the middle of next week, when we may be dropping to Level 2.

The law may be changed for Level 2 anyway – see Covid-19 response: New legal framework as move to Alert Level 2 considered

Mr Borrowdale relies on s 59(3)(b). He submits that this proceeding raises issues of considerable public importance. The orders affect the whole population in a variety of ways, “by confining virtually the whole of the population of New Zealand to their homes and requiring businesses to close”.

Mr Borrowdale submits the orders continue in force and are likely to be replaced by similar orders using the same powers under scrutiny in the proceeding. Potentially these the orders may be spent by the time his application has run its full course through both the High Court and Court of Appeal. He submits that he is unlikely to have resources sufficient to take a protracted proceeding through potentially three levels of court,with cumulative exposure to costs.

He submits, “[t]here is a real possibility that, if the matter proceeds in the High Court without removal, it may not reach the Court of Appeal at all.”

For the Director-General, Ms Casey QC and Mr Powell oppose removal and transfer to this Court. They submit that it is of critical importance that the resolution of this proceeding be progressed in a manner that allows for a fully informed and considered determination of the issues before the Court.

They submit that urgencyshould not displace the respondent’s right to properly prepare his defence and to be heard fairly, nor the public interest in achieving an appropriate outcome,both in terms of the legality of the orders and the remedies sought by the applicant.

I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.

I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.

As this Court observed last week during the hearing of the habeas corpus applications in A v Ardern, questions raised concerning legality of theDirector-General’s various lockdown orders are complex.3They are not merely questions of statutory interpretation, or law, but mixed questions of law and fact. It may be assumed the Crown may need to call evidence of process,contexta nd history. It is not inconceivable there will need to be cross-examination. These are forensic processes far more amenable to resolution in a trial court. It would not be right for this Court to make orders now which limit the parties’ reasonable freedom of action in both proving and defending this proceeding.The burden of the mandatory considerations in s 59(4) lies firmly against removal and transfer

While the restrictions under lockdown are considerable and affect everyone in New Zealand, a quick process that ruled lockdown restrictions illegal would also potentially have a big effect on many people. It could have a life or death effect.

I am not persuaded,in these circumstances, that the proceeding is unlikely to be determined urgently if heard first in the High Court.

The question this application begs is whether this Court should now limit theavailable judicial steps to two (Court of Appeal, and perhaps Supreme Court) rather than three (High Court, Court of Appeal and perhaps Supreme Court).

And behind that lies another question, which is whether we should thereby deny parties’ordinary constitutional entitlement to a first appeal as of right (any appeal to the Supreme Court being by leave only). While leave might be anticipated, that is still a step this Court should be reluctant to take, especially where the issues are ones of such fundamental importance as these.

The application for transfer of the proceeding to the Court of Appeal, under s59 of the Senior Courts Act 2016, is declined.

There is likely to only be time and need for this matter to be heard once anyway due to law changes indicated by the Government for the near future. If the Government loses then they are more likely to get the law right (to suit their purposes) rather than appeal the decision.

Click to access CA2392020.pdf

 

Habeas Corpus lockdown appeal by A and B dismissed

A and B failed in the High Court of their claim of habeas corpus illegal detention under Covid-19 lockdowns. The Court of Appeal has dismissed an appeal and has ruled that interim name suppression is not appropriate – but have extended suppression until 4 pm Friday to allow for a possible Supreme Court appeal.

The respondents were named as JACINDA ARDERN, ASHLEY BLOOMFIELD AND SARAH STUARTBLACK but the Court advised:

A and B have referred to the respondents in person. In doing so, A has engaged in political comments of a personalised nature, particularly against the Prime Minister. Respondents in applications for habeas corpus should be referred to by the office they hold or by naming the Attorney-General as the respondent. If the matter proceeds further, that correction should be made by A and B.

So using the Court to engage in political attacks is not appropriate.

A and B also tried to represent others but lay litigants can’t do that.

A and B chose not to be represented by a lawyer. A purported however, to represent himself and unnamed members of his family. B purported to bring his application on behalf of his fellow “bubble” members. A’s family and B’s “bubble” members are not parties to their respective proceedings and A and B cannot represent them. We will therefore treat each appellant’s proceeding as being limited to the appellant alone.

They claimed to be detained but admitted some freedom of movement.

For example, they were free to exercise, go to a supermarket, talk to anyone and access the internet.

Subject to A’s [redacted], he and B can continue to communicate with whomsoever they wish, and they may continue to have unrestricted access to the internet. They have taken advantage of many of these opportunities.

The restrictions on movement imposed by the COVD-19 Alert Level 3 order do not involve restrictions upon the liberty of A and B as Parliament intended liberty to be understood in the Act. A and B have not therefore been detained for the purposes of the Act.

There are legal issues but they haven’t been appropriately raised with this action.

As has been noted by the Regulations Review Committee and two of New Zealand’s leading public law academics,29 there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.

Those questions, cannot, however, be appropriately addressed in the context of an application for habeas corpus. Our reasons for this conclusion are:

(a) The questions raise complex legal issues that are not amenable to the truncated procedures prescribed in the Act.

(b) If unsuccessful, the Crown has no right concerning the lawfulness of the notices issued under s 70 of
the Health Act were answered against the Crown.

(c) An expedited application for judicial review seeking declarations in the High Court is the only appropriate procedure in the circumstances of this case.

(d) Applications for habeas corpus should not be entertained in circumstances where they are really being used as a substitute for judicial review.

Even if A and B are detained we would, if it were necessary to do so, decline to issue a writ of habeas corpus without requiring the Crown to justify the legality of their detention because habeas corpus is not the appropriate procedure for considering their allegations.

So it was a misconceived attempt to claim illegal detention.

A and B also failed again on name suppression:

A and B have also appealed the decision of Peters J declining their applications for name suppression. Orders were made in the High Court to continue interim name suppression for 20 working days following the High Court’s judgment, subject to further order of the Court. Before us, A and B sought interim name suppression for six months. This is because they say they are concerned about their safety, and in the case of A, the safety of his family. They claim they are likely to be subject to physical danger from other New Zealanders, who may take issue with their challenge to the lawfulness of the Government’s measures to combat the risks of the COVID-19 virus.

On that basis anyone initiating court proceedings could claim possible future attacks. But that’s obvious nonsense.

The starting point is the application of the principle of open justice, which normally requires parties in civil proceedings to be identified.

There are, however, circumstances in which the principle of open justice should yield to a party’s concerns in order to ensure justice is achieved in individual cases.

The present case, is however, far removed from the types of circumstance which justify departure from the principle of open justice.

There is no factual basis upon which we can conclude that A, his family, or B will suffer physical harm if the public knows they are the individuals who have initiated these proceedings. It is possible they may receive some unwelcome comments and that they may be upset by what others have to say. Those are, however, not proper grounds for granting them name suppression, even on an interim basis.

In effect they seem to want to protect themselves from ridicule for a fairly ridiculous attempt to attack the Prime Minister through the courts, and to not be restricted from doing whatever they like under lockdown.

The appeals are dismissed.

Order continuing interim name suppression until 4.00 pm on 8 May 2020 or such other date as may be ordered by the Supreme Court.

My guess is they will try to take both the habeas corpus claim and name suppression as far as they can. Maybe they will argue at the Supreme Court that more wasting of court time risks even more unwelcome comments.

No order for costs – not sure why as that is one of the few ways of deterring time wasting lay litigants.

Judgment: A v Ardern

Court of Appeal rejects habeas corpus lockdown arguments but “questions needed answers”

The Court of Appeal has ruled out an appeal by two mean claiming they were detained under lockdown, saying the men had gone about it the wrong way, but suggested “extraordinarily complex questions needed answers” and could be dealt via urgent hearings .

On 17 April the High Court rejected two writs for habeas corpus, finding that two associated persons were not detained illegally under the Covid-19 Level 4 lockdown. See:

On Friday the Court of Appeal also found that the two men, now in Level 3 lockdown, did not amount to detention.

My guess is that the two applicants are not up to dealing with extraordinarily complex legal questions. It didn’t help that they included lame political arguments, like the lockdown was put in place to help Jacinda Ardern’s re-election.

Stuff:  Lockdown legal appeal gains traction

That headline is odd – it isn’t yet clear how the appeal may get traction.

Two people who sued Jacinda Ardern, claiming the coronavirus lockdown was an illegal detention, have lost their case but gained support for their concerns about the legal basis for the lockdown.

The Court of Appeal on Friday decided the men’s circumstances now, in lockdown level 3, did not amount to detention.

But the three judges said the case had raised issues that that could be examined in separate proceedings, perhaps in an urgent hearing.

The two laymen arguing the case had gone about it the wrong way, the court said.

The pair used an ancient legal process called habeas corpus to challenge what was alleged was an unlawful detention.

What the two men were really trying to do was challenge the reasons for making the lockdown order, and habeas corpus wasn’t the right process to do that, the judge said.

Success would have meant the entire population would have been released from the restrictions.

A finding of no legal restrictions could have a very risky impact on dealing with Covid-19, and I would expect the Government to try to urgently find a legal way to continue some restrictions.

President of the Court of Appeal, Justice Stephen Kos, said extraordinarily complex questions needed answers. He referred to an article academics Andrew Geddis and Claudia Geiringer wrote on The Spinoff and a report of Parliament’s regulations review committee looking at government powers in emergencies, which he said was “hardly approving”.

The two laymen arguing the case had gone about it the wrong way, the court said. Its full reasons are expected next week.

…the three judges said the case had raised issues that that could be examined in separate proceedings, perhaps in an urgent hearing.

Perhaps the court’s full reasons will explain how the questions can be dealt with from here.


Some more detail from NZ Herald: Duo’s appeal dismissed in lawsuit against Jacinda Ardern over lockdown ‘detention’

Court of Appeal president Justice Stephen Kós quizzed both men on whether they were able to exercise outside and visit a supermarket, which they had, before making an oral ruling on behalf of himself, Justice Christine French and Justice David Collins.

He said the panel of judges were satisfied “that in the circumstances they are not detained for the purposes of the Habeas Corpus Act 2001”.

“This is the case which the lawfulness of the Crown’s actions call to be determined not in a habeas corpus matter but more appropriately in the context of a judicial review proceeding in the High Court,” Justice Kós said.

The conclusions of the Court of Appeal, the judge added, were also without prejudice in the determination of the lawfulness of the Crown’s actions in any potential judicial review.

During their case, A and B have made claims that modelling predicting up to 80,000 Kiwi deaths and the growing economic cost, when compared with the relatively low number of Covid-19 related deaths, was part of wider political conspiracy.

“The Prime Minister made the wrong decision … all for her political gain,” one of the men said in the High Court.

It was also alleged Ardern had conspired with Sir Stephen Tindall to ruin the economy and the United Nations Secretary-General should have been consulted.

The High Court judge who originally rejected their writ also said that a judicial review was the correct legal process to challenge the lockdown restrictions.

Justice Kós also dismissed the two men’s bids for continued name suppression, saying the public has a right to know who sued the Prime Minister.

He extended the current suppression order until next Friday to allow the men, known only as A and B, to seek leave to appeal the decision to the Supreme Court.

It could become farcical if people could anonymously sue the Prime Minister.

Court of Appeal: “no constitutional right to bear arms”

A political party (Kiwi Party) has failed in a legal claim that the Magna Cart and Treaty of Waitangi provide for a  constitutional right to bear arms.

Immediately following the Christchurch mosque massacre in March 2019 New Zealand firearms laws were tightened.

The Kiwi Party was formed and tried to oppose restrictions of ownership of semi-automatic weapons with high capacity magazines through the courts. The Crown applied to the High Court to have their 12 causes of action to be struck out and succeeded on claims 2-12.

The Kiwi Party took it to the Court of Appeal and amongst other things “argued that New Zealanders need access to semi-automatic weapons in order to match police fire power should the police resort to unlawful use of firearms against New Zealand citizens”

The Court of found these claims “were untenable and cannot possibly succeed”.

The Arms (Military Style Semi-automatic Firearms) Order 2019 (theOrder), was passed by the Executive on 21 March 2019 pursuant to s 74A(c) of the Arms Act 1983 (the Act) and remained in place for 21 days

The Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019 (the Amendment Act) took effect from 12 April 2019.

In addition to revoking the Order, the Amendment Act imposed restrictions on licensed arms dealers, amended the endorsement provisions under the Act and made it an offence to sell, supply or possess any prohibited firearms, magazines or gun parts, including semi-automatic firearms. The Amendment Act put in place a Government buy-back arrangement for the prohibited firearms, magazines and gun parts.

The legislature’s response to the events of 15 March 2019 was not, however, universally approved. The Kiwi Party was formed by a group of licensed firearms holders with the aim of challenging the lawfulness of the Order and Amendment Act.

Statement of Claim

Twelve causes of action are pleaded in the statement of claim filed in the High Court by the Kiwi Party. Those causes of action seek declarations and orders for, amongst other pronouncements, that the Amendment Act has “no force of law until validated by a subsequent general election or by referendum”.

A fundamental part of their claim was:

The Amendment Act breaches the Treaty of Waitangi, rights to private property, the Bill of Rights 1688; and is “unconstitutional” because it contravenes the “right to bear arms [which] is coincident with the balance of powers in English society”.

Does New Zealand recognise a constitutional right to bear arms?

Underpinning almost all aspects of the Kiwi Party’s case is the claim that New Zealand citizens have a constitutional right to bear arms and in particular, weapons, magazines and gun parts that have been prohibited by the Amendment Act.

This so-called constitutional right is said to be derived from ancient custom, which evolved into a common law right and was affirmed by Magna Carta, the Bill of Rights 1688 and the Treaty of Waitangi. In his supplementary submissions filed on 20 March Mr Minchin, counsel for the Kiwi Party, maintained ‘the right to bear arms is the practical application of the legal principles that ‘no power is unfettered’ and is the mark of a free society”.

Mr Minchin, submitted that New Zealanders need to be able to exercise their “constitutional right” to access semi-automatic weapons and large capacity magazines in order to be able to effectively defend themselves against any unlawful use of arms by agents of the Crown or Executive.

In particular, he argued that New Zealanders need access to semi-automatic weapons in order to match police fire power should the police resort to unlawful use of firearms against New Zealand citizens.

Mr Minchin acknowledged the “ugliness” of the proposition he was advancing.

But:

An examination of the constitutional instruments relied upon by Mr Minchin quickly exposes the fallacy of his argument that New Zealanders have a constitutional right to bear arms.

The obvious lacuna in this aspect of the case advanced for the Kiwi Party is that it assumes British subjects had an unbridled right to bear arms. As we have already noted, there was no such right. Any ability for a citizen to bear arms has, at least since 1689, been able to be regulated by laws passed by Parliament.

The court points out that the UK, Canada and Australia all have significant firearms regulations and limitations.

It is striking that the so-called right to bear arms is not referred to in any international human rights instrument, such as the International Covenant on Civil and Political Rights or the European Convention on Human Rights. Of the 190 countries that have a written constitution, only the constitutions of Guatemala, Mexico and the United States refer to a right to bear arms.

The relevant parts of the constitutions of Guatemala and Mexico are modelled on the Second Amendment of the United States Constitution but expressly provide for limits according to law. Thus, it can be fairly said that the right to bear arms is an example of American constitutional exceptionalism.

Even in the United States, the ability of a citizen to possess and use firearms may be subject to legislative control. Thus, assault weapons have been banned by seven State legislatures, including those in California and New York.

The Court’s conclusions:

Our examination of the arguments advanced by Mr Minchin leads to the following conclusions:

(a) The so-called right to bear arms is not supported by any constitutional instruments that apply in New Zealand.

(b) In this country, as in almost all countries, a citizen’s ability to possess, own and use firearms is regulated by legislation.

(c) There are only three countries which have some form of constitutional right to bear arms.

(d) There is no constitutional right to bear arms in New Zealand let alone the arms that are prohibited by the Amendment Act.

Conclusion

The second to twelfth causes of action are untenable and cannot possibly succeed. The High Court therefore correctly struck out those causes of action.

The appeal is dismissed.

Judgment: THE KIWI PARTY INC v ATTORNEY-GENERAL [2020] NZCA 80 [24 March 2020]

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.

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).

Nottingham conviction and sentence appeal – judgment

The Court of Appeal judgment of Dermot Nottingham’s unsuccessful appeals against conviction and sentence (and the successful Crown appeal calling for a harsher sentence) is now online – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019].

The judgment found that there was strong evidence linking Nottingham with harassing and defamatory posts on the Lauda Finem website – I will cover this in more detail in another post.

Nottingham’s argument in his defence were in part self-defeating. He claimed:

  • Posts on an overseas based blog (Lauda Finem) were not covered by New Zealand law.
  • There was no evidence that he was responsible for the posts.
  • The posts were truthful so could not be deemed to be harassment or breaches of suppression.
  • The five people he was found guilty of harassing “started it” and deserved to be attacked.

The trial jury, the trial judge and the three Court of Appeal judges disagreed with him on all these claims.

His sentence was increased to 31 months in prison, but as he had already served three and a half months home detention this still qualified him for a home detention sentence. While the offences were judged to be serious he was largely spared time in prison due to serious health problems. He was re-sentenced to a further 12 months home detention (including a ban on using the internet), 100 hours commununity service, plus a further six month ban on using the internet after home detention finishes.

He was originally charged in 2015 and went to trial last year after a number of delays.

Following a five-week jury trial before Judge Down, Mr Nottingham was convicted in May 2018 of five charges of criminal harassment and two charges of publishing information in breach of a suppression order. He was subsequently
sentenced by the Judge to 12 months’ home detention and 100 hours of community work. He appeals both his conviction and sentence. The Solicitor-General also appeals the sentence, on the grounds of manifest inadequacy and error in principle.

The suppression charges:

In his summing-up, Judge Down directed that publication of the brothers’ names had occurred in New Zealand in breach of the suppression order. The key issues for the jury were, therefore, whether Mr Nottingham was the publisher or a party to the publication, and whether he had done so knowingly or recklessly in breach of the suppression order

The criminal harassment charges:

In the course of investigating the breaches of name suppression, the police identified a number of LF articles which they considered amounted to criminal harassment. Charges were laid in respect of five complainants, all of whom have been granted permanent name suppression and who we will refer to as T, C, H, B and M. The common denominator between them all was that they had at some stage crossed Mr Nottingham’s path in circumstances he took issue with.

In respect of each complainant, articles appeared on the LF website containing material the Crown alleged was “offensive” in terms of the Harassment Act 1997.

The articles included names, photographs and other personal details indicating extensive background research on each of the targets. It was alleged that some of the photographs had been obtained by Mr Nottingham or by one of his associates at Mr Nottingham’s direction. It was common for Mr Nottingham to ensure that articles were drawn to his complainants’ attention by providing them with the electronic links. The Crown also alleged various other acts of harassment — including “following” and in one case initiating a private prosecution.

At the same time he was being prosecuted for those offences Nottingham and associates continued act in a similar manner, as the many ongoing attack posts on LF show. He also unsuccessfully attempted four other private prosecutions, including one against myself. Two of these went to trial and were dismissed and described as vexatious.

As he attempted several times in my case he applied to adduce new evidence, usually a last minute stunt (the morning of hearings and in two cases during a hearing).

Mr Nottingham filed four affidavits, including one of 333 paragraphs by his brother, P R Nottingham. We assume the premise to be that they represent fresh or relevant new evidence.

We do not regard any of this material as meeting the test for admission in Lundy v R. It is neither fresh, nor (in most cases) relevant.

That sounds very familiar.

The breach of suppression order charges:

Mr Nottingham pursues two arguments:

(a) LF is overseas domiciled and “you cannot be a party to a crime that never occurred in an overseas jurisdiction”.

In his summing-up, the Judge directed that, as a matter of law, publication occurs where material is comprehended and downloaded and that accordingly there was publication in New Zealand irrespective of LF’s domicile. He said that this was a function of “Judge-made” law and that it was also a feature of s 7 of the Crimes Act 1961.

We identify no error in that direction. It did not involve any assumption of extra-territorial jurisdiction. It stated what we regard as a now uncontentious proposition: that a blog available to New Zealand internet users is regarded as published in New Zealand.

They make it clear that using an overseas based website (like WordPress) does not exempt you from New Zealand law if  it is directed at a New Zealand audience.

Physical location of the LF server was, in that context, irrelevant. What was required was proof either of direct publication (that Mr Nottingham was LF), indirect publication (that Mr Nottingham was a co-principal with LF, working directly with it to effect publication in New Zealand) or that he was a party to LF’s publication. That is exactly as the trial Judge put it to the jury, supported by an accurate description of the “party” requirements. Mr Krebs is correct that the question of whether Mr Nottingham “caused” the publication (in any of the legal senses relevant) was a matter of fact for the jury. No error of law was made by the trial Judge.

(b) The Crown failed to establish to the criminal standard that he was either the publisher of the material or a party to its publication.

The Crown advanced a circumstantial case. As Mr Nottingham reminded us, there was no “smoking gun” in the sense of an email attaching a final draft of the articles sent to LF. Nor was there any “electronic footprint” on any of the computers searched by the police which demonstrated that the article, as published, had originated from Mr Nottingham.

…Turning then to the circumstantial evidence relied on by the Crown to establish publication, we agree with Ms Brook that it was very strong, if not overwhelming.

I will cover this more detail in the next post,

We are not therefore satisfied that the verdicts on the breach of suppression charges were unreasonable or that the convictions resulted from a miscarriage of justice.

In Nottingham’s hapless attempt at prosecuting me (and three others) he claimed that we had in some convoluted way enabled people to find their way to suppression breach posts on LF – posts that he has been found guilty of posting.

Conviction appeal — the criminal harassment charges

Again, both the Crown and Mr Krebs submit that the appropriate approach is to treat Mr Nottingham’s appeal as essentially a challenge to the reasonableness of the jury verdicts. We agree, although noting that the main focus of Mr Nottingham’s second set of written submissions (filed on the morning of the appeal hearing), and of his oral submissions, was on the proposition that he ought not to have been convicted because the statements made in the articles (whether by him or not) were true or, alternatively, opinions based in truth.

…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. We start with that issue, because of its relevance also to the breach of suppression convictions.

We do not consider it necessary to set out all of the circumstantial evidence relied on by the Crown to establish identity in respect of each of the harassment charges. We agree that the jury’s conclusion on the facts was one reasonably available to it. Indeed, we consider it almost inevitable.

In the case of T, Mr Nottingham sent her a link to the first article immediately after it was published and a draft, created two days before publication, was found on a computer to which he had access. In addition, images appearing in the other articles were found on the same computer.

In the case of C, word versions of all three articles were found on a computer to which Mr Nottingham had access together with images from the articles. Likewise, drafts of other unpublished articles were also found.

In the case of B, although no draft of the principal article (published on 24 April 2013) was identified, the draft of another “unpublished” article (prepared approximately a year later) was found, and this contained very similar references to the 2013 publication. For example, the published article interposed the description “belted” between the complainant’s first and last names, and the draft contained the phrase “Beat Me”. The published article described her as “a stupid troll”, the draft as a “dumb cow” and “complete fuckwit”.

In the case of H, a word version of the first article was found on one of the computers, together with photographic images which were included in the articles and a screen shot of H’s Facebook profile. Likewise, screenshots of images in the third article were identified, as was the draft of another unpublished article in a similar vein.

And in respect of M, a word version of the first article was found on a computer to which Mr Nottingham had access together with the image of H which appeared in the same article.

In addition to this specific evidence, there was also a body of general evidence establishing either that Mr Nottingham was LF, a co-principal of LF or was, at a minimum, a party to the publications.

Although much was made of the fact that others had access to the computers at Mr Nottingham’s Hillsborough residence, particularly his brothers Anthony and Phillip, there was ample evidence that Mr Nottingham had overall responsibility and control. For example, there was an email in which Anthony told Mr Nottingham to stop treating him “like one of your fucking employees”.

Funny. While the Nottinghams, and other associatess like Earle McKinney, Marc Spring and Cameron Slater, where all involved in various ways in various campaigns of attack and harassment, they didn’t always get along with each other. very well.

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.

Nottingham has tried to claim or imply it wasn’t him, but if it was it didn’t matter anyway.

Mr Nottingham cast the prosecution as an attack on his unalienable rights of free speech and as having a “chilling effect” on his “legitimate exercise of natural and legal rights”. He said that truth is a complete answer to any allegation that material given to any person or placed on electronic media was offensive within the terms of the Harassment Act.

Except that as is made clear later while posts at LF may have been based on skerricks of truth they were substantially embellished and bolstered by false claims.

The trial judge is quoted:

It has been pointed out already that given the highly inflammatory and abusive language used to impart the truth in some of these Lauda Finem articles, the Crown says that claim of truth is something of a red herring. It is also fair to say that even truthful allegations can be made and repeated in ways that are intended to and do in fact harass.

You might remember [C] in cross-examination saying effectively that these things are not true (was her response) but, even if they were, it does not mean that they can be repeated and presented in this way, in a way that makes me feel harassed and frightened.

The Court of Appeal:

We do not consider the trial Judge to have erred in his approach to this issue. The jury was legitimately entitled to take into account truth or falsity in its assessment of offensiveness, but it was only one part of a composite of considerations relevant in that respect.

Much of what was published could at best be described as virulent opinion with only a tangential connection to anything arguably true. And in respect of many of the comments, we regard even that description as excessively generous.

As the Crown said in closing, the posts were littered with “hate-filled [invective]” and were strongly misogynistic.
T was, for example, described as a “useless fucktard” and “scum of scum of scum and then some scum”. It was said that she wanted an identified person dead and was operating “in a similar fashion to the manner in which the [Nazis] singled out the Jewish community”. In respect of C, her surname was predicated by the sobriquet “cumsac”. And it was said she needed to be “brought to justice before she commits very serious offending such as murder”.

M was described as a “bent ex-cop” with the suggestion he was “on the take” (allegations vehemently denied and never established).

I have seen Nottingham claim many things (in court documents) as truth and evidence that has not been backed up with any actual evidence.

Anyone who has read through posts on LF will recognise this style of attack that bears very little semblance to “truth”.

It was not unreasonable for the jury to identify such material as offensive.

Now the bit where Nottingham claims he was justified in doing what he also tried to claim he didn’t do.

We also note that the “lawful purpose” which Mr Nottingham asserted at trial was his ability to respond to actions by the complainants which he considered to be unlawful or unjust.

(H was alleged to have been complicit in her husband’s operation of a website Mr Nottingham considered to be fraudulent; M was alleged to havemisconducted himself in office in a way which resulted in financial loss to
Mr Nottingham; C had made a police complaint about an associate of Mr Nottingham’s he alleged to be false; T had made accusations he considered baseless and B had assisted H’s husband).

A similar point appears in his written submissions on appeal, where he refers to “the issue as to whether the complainants had contributed to their problems”, albeit in a paragraph which combines submissions in relation to both conviction and sentencing. In oral submissions he further urged on us the fact that “they started it”.

We note the inconsistency of that argument with his underlying proposition that there was inadequate proof he was either the publisher of the LF articles or a party thereto.

However, that aside, the proposition that “they deserved it” was self-evidently not a defence to the charges Mr Nottingham faced.

We are also satisfied that the jury’s verdict was not unreasonable in its implicit acceptance that the intention/knowledge requirements in s 8 of the Harassment Act were proven.

The Crown case was that anyone who discovered they were a target of LF would reasonably fear for, among other things, their mental wellbeing and that this was plainly intended by Mr Nottingham, or at least he knew that it was a likely result.

As previously stated, attacks along similar lines continued on LF at the same time that Nottingham was being prosecuted – and he was protected from public exposure with name suppression.

T’s concerns included to her physical wellbeing. This was because of photographs posted to the site from someone who had clearly been tracking her movements and because the phrase “two head shots to be sure”, had been inserted  between her first and last names in the 29 April 2013 article. Her fears were compounded by the fact that the article was forwarded to her with a link to a scene from the Quentin Tarantino film “Pulp Fiction” which showed a person being shot in the head.

Although Mr Nottingham suggested that this was a reference to T’s treatment of certain people, we agree with the Judge that “it is not unreasonable and should have been foreseeable that those statements would be read as a threat towards [T]”.

I had implied death threats directed at myself on LF and Twitter, but I suspect it more likely to be via associates.

Nottingham submitted that the trial judge:

… did not fairly sum up the competing evidence, effectively casting aside the evidence that established that [the complainants] were not telling the truth, when the prosecution was alleging defamation.

But:

In this case, we regard as compelling the following exchange between the Judge and Mr Nottingham which occurred in chambers immediately after the summing-up:

The Court: All right, now any matters arising?

Mr Nottingham: Sir, may I comment that that was a very fair summing up.

The Court: Thank you. I tried very hard to ensure that it was.

Mr Nottingham: It was.

A number of other complaints were dissected and overruled.

Accordingly, Mr Nottingham’s appeal against conviction is dismissed.

The sentence appeals

The sentence was premised on the following findings of fact which we agree were consistent with the jury’s verdicts:

(a) Mr Nottingham either was LF (in other words the leading mind of that blog) or he was so intimately related to it that it was proper to conclude that he provided information and draft articles to that blog knowing and intending that they would be published.

(b) Publication and other intimidating and harassing conduct was either carried out by Mr Nottingham himself or at his direction and he knew his conduct was likely to cause the individuals involved to fear for their safety or that of family members.

(c) Although Mr Nottingham may, at least initially, have reasonably believed he had legitimate grievances in respect of the complainants, he elected to pursue these, not by lawful and reasonable means, but by personal attacks on an “anything goes” basis.

The trial judge on the harassment charges…

…it went “without saying” that all of the offences were sufficiently serious to justify a starting point of imprisonment.

CoA:

In respect of the breach of non-publication orders, the Judge noted the Crown submission that the maximum penalty of six months’ imprisonment be adopted as the start point. The Judge categorised these breaches as blatant and contemptuous and noted Mr Nottingham showed no remorse.

In respect of the combined total starting point of two years and four months’ imprisonment, he then gave a four-month discount to reflect what he described as Mr Nottingham’s “multi-faceted and complex” health problems, which in the Judge’s view meant that a sentence of imprisonment would be much harder for him than for an average middle-aged man in reasonable health. He identified this as the only mitigating factor resulting in a provisional end sentence of two years’ imprisonment. That required that the Judge give consideration to home detention which, consistent with authority, he recognised as having a general and specific deterrence value.

He said he regarded home detention as an appropriate and sufficient response.

The indicated months’ home detention sentence was then apportioned in the way we have previously indicated. Special conditions were imposed including that Mr Nottingham attend counselling or treatment programmes as directed by a probation officer and that he not use any electronic device capable of accessing the internet without prior approval from
a probation officer.

Again Nottingham seems to be speaking on behalf of whoever posted at LF:

Mr Nottingham said that the sentences should be commuted to time served (three and a half months home detention) and without the requirement for community work on the primary ground that the LF articles on which the harassment charges were based were “not designed to make anyone fear for their safety”.

How would he know what the design of the posts was if he wasn’t involved?

By contrast, the Crown submitted the sentence was manifestly inadequate and that nothing less than a custodial sentence is sufficient to capture the level of denunciation and deterrence required for what it says was an egregious breach of non-publication orders and malicious and misogynistic attacks on members of the public.

Ms Brook submitted that manifest inadequacy arises primarily from the wayin which the sentences were structured, and in particular, what she says was an excessive discount for totality. She submitted that the final sentence should have been in the region of three years five months’ imprisonment, made up of cumulative sentences, save that the sentences for the two breaches of the suppression order were properly imposed concurrently with each other and cumulatively on the sentences for criminal harassment.

…Ms Brook therefore submitted that the Judge’s sentence should be quashed and a new sentence imposed in the region of two years and 10 months’ imprisonment.

We accept Ms Brook’s submission that the offending against C and T justified a 12-month starting point for each.
The language used was particularly demeaning and offensive and the fact that a photograph was taken of T without her knowledge and subsequently published must have been calculated to add to her insecurity.

The offending against B, H and M was not as serious, although there were strongly misogynistic elements in the articles about B and H and the implication that M was corrupt was clearly a very damaging one given the nature of his employment.

We consider cumulative sentences of six months (in relation to the offending against B), five months (in relation to the offending against H) and five months (in relation to the offending against M) appropriate.

In respect of the breach of suppression offences, we agree with the Judge that they were sufficiently interconnected and similar in kind to attract concurrent.

Discount for poor health

In respect of the Judge’s four-month discount for ill health, we consider that he was particularly well placed to make the necessary assessment.

We agree with the Judge that Mr Nottingham presented with a complex combination of physical and mental health problems. Several reports identify him as suffering from Post Traumatic Stress Disorder (PTSD) attributable to childhood
trauma and although Dr Skipworth says this diagnosis “is controversial in cases of life-long trauma such as Mr Nottingham describes”, nevertheless he accepts it is one way clinicians choose to diagnose and understand “long-term personality dysfunction, interpersonal relational difficulties, cognitive impairment and mood dysregulation in presentations such as Mr Nottingham’s”.

We also note a diagnosis of a traumatic brain injury sustained in a high-speed motorcycle accident in 1996 and a further serious motorcycle accident in 2016 which Dr Walls was concerned had “significantly aggravated the old traumatic brain injury”.

Likewise, Mr Nottingham suffers from a significant number of physical impairments, principal among them recurrent and serious atrial fibrillation. This condition in turn compounds the congestive heart failure from which he also suffers. Multiple hospital admissions have resulted.

Overall, we are not persuaded that the Judge was wrong to make the allowance he did.

There’s not doubt there are serious health issues (and more than what is stated here), and that prison would impose more hardship than normal.

With such a dire health report I wonder that there would be far better and more important things to do than harass people and get bogged down in lengthy court procedures.

Combining the totality and health discounts, we therefore arrive at a sentence of 31 months’ imprisonment which is approximately 30 per cent higher than the Judge’s end point.

In re-sentencing Mr Nottingham we are, however, obliged to take into account the three and a half months of home detention he has already served. Allowing a seven-month discount in this respect again brings Mr Nottingham’s sentence to a level where the Court is obliged to consider home detention. We consider that to be an appropriate sentence, particularly having regard to:

(a) Mr Nottingham’s physical and mental health, which we consider would make the consequences of imprisonment disproportionately severe;

(b) the opportunity to direct participation in rehabilitative programmes, as recognised by the Judge; and

(c) the ability to protect the interests of the complainants and the community by the imposition of restrictive conditions of internet access, again as recognised and directed by the Judge.

I hope the complainants and other victims are adequately protected.

With no sign of acceptance of responsibility nor remorse I have doubts about the prospects of rehabilitative programmes having much impact.

Our approach is therefore to impose concurrent sentences, as follows:

(a) in respect of the offending against C, 12 months’ home detention, concurrent with all other sentences;

(b) in respect of the offending against T, 12 months’ home detention, concurrent with all other sentences;

(c) in respect of the offending against B, eight months’ home detention, concurrent with all other sentences;

(d) in respect of the offending against H, six months’ home detention, concurrent with all other sentences;

(e) in respect of the offending against M, six months’ home detention, concurrent with all other sentences; and

(f) in respect of each breach of suppression, five months’ home detention concurrent with all other sentences.

The existing (part-served) sentence of home detention is quashed.

A new sentence of 12 months’ home detention (with identified concurrent home detention sentences) plus 100 hours’ community work is imposed, subject to the same conditions as imposed by the District Court.

That’s additional to the three and a half months home detention already served.

I’m aware there are some people who claim to have been badly affected by attacks by Nottingham and his cronies think that prison is deserved, but (and I haven’t been as severely affected) I don’t have a problem with the end sentence, despite him continuing with attacks and harassment while facing the charges this sentence applies to.

However if Nottingham offends again he would deserve what Court should then deal him.

I note that Nottingham tried to get a judge to put me “in prison by Christmas” in 2015 – for (allegedly and incorrectly) enabling people to find his posts at LF. But as with his double standards on name suppression – abusing and breaching it for others but claiming it for himself (as did Cameron Slater), what he wanted to inflict on others was something he tried to weasel out of for himself.

Full judgment: NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Dermot Nottingham appeals fail, sentence increased

The original 12 month home detention sentence (three and a half of which has been served) and 100 hours community work has been quashed, and replaced with a new sentence of 12 months home detention presumably beginning from the appeal judgment made last week. He has been banned again from using the Internet for 18 months.

After being charged in 2015 and following numerous delays Dermot Nottingham went to trial last year and was found guilty by a jury of five criminal harassment charges and two breaches of court suppression orders.  He was sentenced in July 2018.

Nottingham appealed both the conviction and sentence, and the Crown also appealed the sentence, claiming it was ‘manifestly inadequate’.  Nottingham has lost both of his appeals, and the sentence has been increased, but again by a judicial whisker he has avoided a prison sentence.

NZ Herald: Blogger’s convictions for ‘malicious and misogynistic attacks’ on former MP, business people stick

Auckland’s Crown Solicitor Brian Dickey said at Nottingham’s sentencing the breaches were an “attack on the High Court”.

Judge Jonathan Down also categorised the breaches as “blatant and contemptuous” and noted Nottingham showed no remorse.

In one instance he sent one of his victims a scene from the Quentin Tarantino film Pulp Fiction, which showed a person being shot in the head.

He can be very nasty, and has attacked many people over the last decade. The charges were laid were deemed representative of the worst examples, but that’s debatable, I have heard claims of despicable attacks (disclosure –  Nottingham has attacked me extensively including trying unsuccessfully to prosecute and imprison me, which was part vindictiveness, part an attempt to concoct a defence for the charges he faced).

All of Nottingham’s harassment victims have been granted permanent name suppression.

The Crown also alleged various other acts of harassment, including “following”, and in one case initiating a private prosecution.

I’m ware of private prosecutions against seven people or companies. These all failed, and after hundreds of thousands of dollars of court costs were awarded against him Nottingham with no attempt made to pay them Nottingham was adjudicated bankrupt in September 2018.

Nottingham, who represented himself, had also called former Whale Oil blogger Cameron Slater to give evidence and argued at his trial that his “articles” were covered by freedom of expression rights.

Slater has also been implicated in making use of the notorious attack website that Nottingham was found to have been the main user of. From his sentencing notes last year “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. He makes the concession…that he has never denied that he has supplied information to the website…” – see “Either Dermot Nottingham is Lauda Finem…or he is so intimately related to it…”

Nottingham and Slater have been associated in a number of legal proceedings (including the attempted prosecution of myself and three others), but others have also been involved and aided and abetted, including his brothers Phillip and Antony, Marc Spring and Earle McKinney.

During his appeal, Nottingham argued his convictions should be quashed because the blog site was based overseas.

“You cannot be a party to a crime that never occurred in an overseas jurisdiction,” he said.

So he didn’t deny attacking and defaming people on the website, he just claimed he was immune from new Zealand law.

However, in his summing-up at the trial, Judge Down said: “Even if the main parts of a crime are committed abroad, if you do something to further that crime, and you have done it in New Zealand, that crime, the whole thing can be prosecuted in New Zealand.”

The Court of Appeal judges, Justice John Wild, Justice Susan Thomas and Justice Matthew Muir, agreed.

“We identify no error in that direction,” they said.

Slater’s “unambiguous position” was it was impossible to do anything online which did not leave “footprints everywhere”, the Court of Appeal decision reads.

Despite this, the Court of Appeal sided with the Crown’s position that the circumstantial evidence relied on was “very strong, if not overwhelming”.

It included text messages and internet history showing Nottingham was trying to obtain and research information about the Dudley case, particularly the names of the defendants.

While a police search of computers Nottingham had access to identified several key court documents, including the judge’s sentencing notes, witness statements and a witness list.

Seven hours before publication of the blog, Nottingham also wrote to the police officer heading the inquiry with the subject line: “Report I Am authoring on the Dudley killing”.

The Court of Appeal said much of the harassment material “could at best be described as virulent opinion with only a tangential connection to anything arguably true”.

In other words, Nottingham attacked people making false accusations and assertions, something I have seen a lot of in emails and court documents.

“As the Crown said in closing, the posts were littered with ‘hate-filled [invective]’ and were strongly misogynistic,” the judges said.

In calculating the sentence the Court of Appeal judges arrived at 31 months’ imprisonment – about 30 per cent higher than Judge Down’s end point.

However, in re-sentencing Nottingham, the trio of judges was “obliged” to take into account the three and a half months of home detention he had already served.

“Allowing a seven-month discount in this respect again brings Mr Nottingham’s sentence to a level where the court is obliged to consider home detention.”

If that had been the original sentence last year Nottingham would have ended up in prison.

The court quashed the existing, part-served, sentence and imposed a new 12 months’ home detention term, plus the 100 hours of community work for the suppression breach.

Nottingham’s special conditions also remained, and include not using any electronic device capable of accessing the internet without prior approval from a probation officer.

I take from this that the new 12 months home detention term begins from last week’s appeal judgment. And I presume there remains a further 6 month Internet ban after that, which would run through to early 2021.

At least this and his bankruptcy (after he took nearly a year to file a statement of affairs he is due to be discharged from bankruptcy on 11 September 2022) should limit his capability to attack and harass people online should also restrict his habit of vexatious litigation.

Nottingham and his gang of online thugs remain unrepentant and a lot of defamatory attack material remains online, but that poses more risks to him than anyone. I think at least one legal proceeding continues against Nottingham for posts done years ago.

Will Nottingham try to appeal this new sentence in the Supreme Court? On past behaviour he may like to try, but the Official Assignee may make that difficult if not impossible. I need to find out, because bizarrely suppression on aspects of the failed case against me continues until his case has reached a final resolution.

When more details are available online in the judgment I will do a post on that.


Many judgments with suppression involved or from the District are not published online, but here is a reference to some of those that are:

Nottingham v Maltese Cat Limited [2019] NZCA 246 (24 June 2019)

That is just back to 2015, Nottingham has a long legal history.

I think in all but one of those Nottingham lost his case.

There is one appeal he won, where a High Court judge supported a District Court judge ruling that Nottingham was in contempt of Court, but due to the judge not following procedures correctly the finding was set aside.

Nottingham fails in court again

Dermot Nottingham has failed in another application to the Court of Appeal, this time seeking further Crown disclosure before an appeal against his conviction and sentence last year. The CoA ruled out “evidence neither before nor capable of being before the Court, or the background motives of those who did or did not give evidence, to the extent that was not already put in evidence”.

Nottingham must have been involved in more court proceedings than most over the last decade, with a very high failure rate. He used to describe himself as ‘justice campaigner’, but I think more appropriate descriptions are ‘hopeless’  and ‘vexatious’.

The latest judgment – NOTTINGHAM v R [2019] NZCA 188 [30 May 2019] – follows a hearing in 20 May – that was supposed to be an appeal hearing but was delayed until later this month as that date was reassigned to hear his application for discovery.

[1] After a lengthy jury trial in Auckland, the appellant was found guilty of two charges of breaching non-publication orders and five charges of criminal harassment. He was sentenced to 12 months’ home detention and 100 hours’ community work.

[2] The Solicitor-General has appealed Mr Nottingham’s sentence on the basis it is, she says, manifestly inadequate. Mr Nottingham has appealed both conviction and sentence. These appeals are to be heard by Criminal Appeal Division on 25 June 2019.

[3] On 13 March 2019 Mr Nottingham filed an application seeking orders for further disclosure from non-parties and the Crown pursuant to “the salient provisions of the Criminal Procedure Act 2011”.

Very ironic. In Nottingham’s private prosecution of myself and three others he repeatedly failed to provide proper disclosure, and never provided adequate disclosure, ignoring a number of legal requirements, requests and orders of the court.

[4] The non-party disclosure application was considered by this Court and declined in a judgment dated 14 May 2019…

See Nottingham refused fishing expedition by Court of Appeal.

Continued from the latest judgment:

…This judgment deals with the application against the Crown.

[7] Mr Nottingham contends that this information is relevant and necessary to due consideration of the appeals on 25 June because the police did not properly investigate the complaints made against him and there was a conspiracy including police officers to “fit [him] up”. The documents will assist him “build layers to show how the investigative process went awry”.

This is not unusual. He claimed a conspiracy involving police and court officials and media in his failed private prosecutions of APN, Prentice and Allied Press, George, but never provided any evidence.

Also “The appellants’ allegations of bias and conspiracy have been rejected by the High Court and Court of Appeal on the basis that they are not supported by the evidence.” – DERMOT GREGORY NOTTINGHAM, PHILLIP NOTTINGHAM AND ROBERT EARLE MCKINNEY V THE REAL ESTATE AGENTS AUTHORITY [2017] NZCA 145 [28 April 2017]

“Gilbert J struck out Mr Nottingham’s statement of claim in a judicial review proceeding brought against the District Court at Auckland and the second respondents alleging a criminal conspiracy to pervert the course of justice. Gilbert J found the claim was “replete with scandalous and outrageous allegations” and that no attempt was made to provide factual particulars of the various allegations of dishonesty.” – DERMOT GREGORY NOTTINGHAM v DISTRICT COURT AT AUCKLAND [2018] NZSC 110 [20 November 2018]

Earlier in the prosecution proceedings currently being appealed Nottingham accused a judge of misconduct and ‘tampering with evidence’.

[10] In open Court, Mr Nottingham raised the issue of whether or not Judge Collins should preside at the mentions hearing. He stated as follows:

I’ve filed a judicial review of your decision and of Judge Paul’s decisions in the prosecution of Mr Honey, where I was prosecutor, I’m alleging that you misconducted yourself in relation to the legal finding that a person who is a
accused cannot be cross examined on an affidavit they have produced in support of an application for the continuing name suppression. Serious allegations are made against you, the High Court is to hear those allegations, there is a strike out being (inaudible) which we are confident of getting rid of, so it’s submitted Sir, with your knowledge of that, the allegations against you will be improper for you to continue to make any directions and that this matter of a callover should be adjourned to another date where another Judge can read that, my submissions on a memoranda …

A little later Mr Nottingham said as follows:

Sir, you’re aware of the allegations against you. The allegations include you tampering with the transcript. …
If you consider it’s fit for you to stand here when there’s a prima facie case that you tampered with the transcript. To remove the very material that proves that you made a decision –

The Judge then said as follows:

Are you in Court saying to me that I have tampered with a transcript?

Mr Nottingham replied:

I am saying there is a prima facie case for it, yes …

Well a Judge cannot sit with a prima facia case of him tampering with evidence on a factually related matter and that he’s aware of the allegations and they are [laid] before the supervisory Court of this Court. I can have a judicial review filed within four weeks.

The Judge went on to say as follows:

Do not interrupt and I’m going to give a judgment for a ruling in a moment on a question of contempt of Court.

 – NOTTINGHAM v SOLICITOR-GENERAL [2017] NZHC 1325 [15 June 2017]

Back to the latest judgment:

[9] As noted earlier, the Crown submission is substantive and substantial. It is also compelling. If the material now sought was relevant to culpability, it should have been sought and obtained before or at trial. If relevant to penalty, it should have been sought and obtained before sentencing. Be that as it may, what matters most here is its utility (if any) to the appeals pending in this Court.

[10] As to that, Mr Nottingham has entirely failed to persuade us that any of the material now sought is necessary for the due conduct of the appeals.

[12] This application is, therefore, an ill-assessed distraction from the issues on appeal. These must focus on the admissibility of the evidence adduced, the inferences properly to be drawn from that evidence and the directions given by the trial Judge, rather than on evidence neither before nor capable of being before the Court, or the background motives of those who did or did not give evidence, to the extent that was not already put in evidence. There is a limit. It has long since been crossed in this application.

Result

[13] The application is declined

So next up is the actual appeals in two weeks on 25th June, unless Nottingham finds another way to divert or delay.

The courts sound like they have had enough of his stunts, but I wouldn’t rule out more urgent memorandums – he has often filed or tried to file those right up to and during hearings. In one of my appeal proceedings he filed a memorandum just hours before a hearing applying to adduce new evidence, despite the case having never made it to trial.

Like then, the latest failed application sounds like Nottingham is trying to relitigate his prosecution, but in this case it was him being prosecuted. And the Court is not allowing him to re-write criminal procedures.

Nottingham refused fishing expedition by Court of Appeal

Dermot Nottingham’s appeal against his conviction and sentence is on the Court of Appeal fixture list for next Monday. He has already been to the court trying to get cellphone records, emails and medical notes of three of his criminal harassment victims, claiming they lied at his trial, but the court refused that, calling it a fishing expedition.

NZ Herald: ‘Malicious and nasty’ blogger accuses former MP of perjury, asks court to release their emails

A “malicious and nasty” blogger, who was convicted of criminal harassment and breaching court orders, has now accused a former parliamentarian of perjury.

Dermot Gregory Nottingham was found guilty of five criminal harassment charges and two breaches of court suppression orders following a lengthy trial, in which he represented himself, during April and May last year.

He was then sentenced to 12 months’ home detention and 100 hours’ community work for what Judge Jonathan Down described as a blatant and contemptuous breach of court orders and an arrogant view of right and wrong.

Nottingham was targeting business people, civil servants and a former member of Parliament.

He had taken and published photos of them, their homes and was making false claims of drug abuse and corruption.

One of the five victims, all of whom have permanent name suppression, said they had been stalked and photographed, with their images appearing on the blog page.

The sentencing judge said they were the five worst cases of harassment, but that’s debatable. There were many victims of attacks from Nottingham and associates – including myself and others participating here at Your NZ.

Now, however, Nottingham wants the cellphone records, emails and medical notes of three of his victims.

He claims they are guilty of perjury, having testified at his trial.

This isn’t the first time he has made claims like that when court judgments haven’t gone his way (he has been a frequent visitor to courts over the past ten years, unsuccessfully most of the time).

In an application for a non-party disclosure hearing, Nottingham asked the Court of Appeal for the emails sent and received by the then-MP about himself.

Nottingham claimed this would prove they lied at his trial.

He also sought the cellphone records for the past six months from a second victim and the medical records of a third.

He has made a number of accusations in the past without having evidence, including in his failed prosecution of me.

But as in the past the Court of Appeal ruled against him.

“We are neither satisfied that those persons are likely to hold the information Mr Nottingham seeks nor, even if we thought that was likely, that all or part of it appears to be relevant,” Justices Stephen Kos, Brendan Brown and Denis Clifford ruled.

“The open-ended and speculative nature of the reasons on which Mr Nottingham based his application reflect the almost inevitability of that conclusion.”

The three judges said the application is “in reality, a fishing expedition”.

“Moreover, and most importantly, each of [the victims] gave evidence at Mr Nottingham’s trial and were cross-examined at considerable length.

“That cross-examination was an opportunity to test their evidence, both as to its credibility and its reliability.”

The Court of Appeal judges said because those being asked to divulge personal information were victims of Nottingham’s criminal harassment, it was further reason not to put them through the invasive process that a hearing would occasion.

Court of appeal judges referring to “victims of Nottingham’s criminal harassment” suggests it will be challenging for Nottingham to get the convictions overturned.

Nottingham, meanwhile, also appealed both his convictions and his sentence.

He had tried to argue at trial that his “articles” were covered by freedom of expression rights.

He has admitted writing “articles” on ‘that blog’ which will be nameless here, and I think that many who have read articles there, especially about themselves, will suggest Nottingham abused freedom of expression rights.

The prosecution against him, he claims, was a “false case” and the police had created evidence to “fit him up”.

That sounds like what he tried to do with me and others. Court costs awarded against him in those failed cases led to him being declared bankrupt last September.

Brian Dickey, Auckland’s crown solicitor, said Nottingham’s harassment was at the high end of the criminal spectrum, calling it “so malicious, so nasty”.

“He shows absolutely no insight into his offending, no remorse,” he said at the blogger’s sentencing.

The Crown had asked for a prison sentence after Nottingham’s conviction and is appealing the sentence. That will be heard at the same time as Nottingham’s appeals.

See Dermot Nottingham sentenced for criminal harassment, suppression breaches