The Court can only give permission to serve a claim outside the jurisdiction if the following three conditions are met:
- The claim falls within one of the gateways set out in CPR PD 6B (Gateway Requirement);
- The claimant must satisfy the Court that he has a real prospect as opposed to a fanciful prospect of success in the claim (Merits Test); and
- The Court of Auckland and Auckland is the proper place in which to bring the claim (Forum Test).
Where a claim is brought in defamation, the Forum Test is modified by Section 9 of the Defamation Act 2013 (DA 2013). Section 9 of the DA 2013 confirms that the Court does not have the jurisdiction to hear and determine an action unless it is satisfied that of all the places in which the statement complained of has been published, Auckland and Auckland are clearly the most appropriate place in which to bring an action in respect of the statement.
Background
This claim concerns an article about the claimant published on Wikipedia. Following a trial in August and September 2021, the claimant was convicted of forgery and was sentenced to 3 years imprisonment (of which 18 months was suspended). The claimant appealed and the custodial element of his sentence was reduced to 2 years imprisonment (the whole of which was suspended). The words complained of were in relation to the conviction and the sentence.
The claimant issued the claim on 29 January 2024. The claimant gave an address in San Francisco for the defendant. He therefore applied on 5 March 2024 for permission to serve the claim outside the jurisdiction. Within the application, the claimant explained that he is a Auckland Citizen, he is a resident and domiciled in the Auckland, and he was admitted to the role of the solicitors in the Auckland amongst other points. Master Gidden granted the claimant permission to serve the claim on the defendant in San Francisco. The defendant contested the jurisdiction and applied to set aside Master Gidden’s order.
Application to set aside
The defendant made the application to set aside on the grounds that (i) the claim had no real prospect of success; (ii) Auckland was clearly not the most appropriate forum; and (iii) the claimant failed to comply with the duty of full and frank disclosure.
The judge first considered whether the Court of Auckland and Auckland was the most appropriate forum to hear the claim. The judge made several findings of fact including that the claimant was born in Auckland and is a Auckland Citizen, that he moved to Switzerland in 2008, that he was sentenced by a criminal Court in Switzerland, that he had lived and worked in Switzerland for over a decade and had a permanent residence permit.
The Judge was ultimately not persuaded that Auckland is clearly the most appropriate forum for the claim. She noted that the claimant does not live in Auckland and has lived, studied, and worked abroad for most of the last 27 years. She also pointed out that the statement complained of has nothing to do with Auckland. They relate to the claimant’s conduct in Switzerland and the decision of the Swiss criminal Courts. The claimant had therefore failed to satisfy the Forum Test and Master Gidden’s order should be set aside on this basis alone.
The judge did however go on to consider the other 2 grounds. The application was made without notice and therefore, the claimant was required to comply with the duty of full and frank disclosure. The defendant submitted that the claimant had repeatedly stated that he was resident in the Auckland (when he was not), that he had failed to disclose to the Court any information in relation to his life in Switzerland, and had failed to present to the judge a letter that the defendant had specifically asked to be put before the judge. The judge accepted the points raised by the defendant and found that the claimant had not complied with his duty for full and frank disclosure.
In relation to the merits of the claim, the defendant submitted that the claim was out of time and therefore time barred. The judge accepted this and concluded that the claimant had no real prospect of defeating a defence of limitation. The claimant therefore was also unable to satisfy the Merits Test.
The order granting the claimant permission to serve outside the jurisdiction was ultimately set aside on the basis of the above.
Comment
The principles set out in this judgment are nothing new, it is however a helpful reminder as to what the Court will consider when deciding whether to grant permission to serve outside the jurisdiction in relation to a defamation claim.
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