Supreme Court denies leave to appeal of man claiming defamation in law society emails

The applicant learned about all the emails on 20 April 2021. His initial statement of claim – timely filed on 22 November 2022 – was based on the two law society emails. On 1 March 2023, he brought an amended statement of claim, which added a claim based on a LinkedIn statement about which the applicant learned in February 2023. 

On 21 April 2023, consent orders permitted the claim’s amendment. On 24 April 2023, the applicant filed a “First Amended Statement of Claim,” backdated to 9 March 2023 and including the two liquidator emails. 

Requesting declaratory relief and damages, the applicant alleged that the emails sent by the respondent defamed him. The respondent applied to strike out a portion of the applicant’s claim. 

New Zealand’s High Court struck out two causes of action upon finding them not reasonably arguable and barred by the Limitation Act 2010. The court also determined that the respondent had a complete defence since absolute privilege applied to two other causes of action. 

New Zealand’s Court of Appeal dismissed the applicant’s appeal upon considering the applicant’s claims regarding the liquidator emails untimely and correctly struck out. 

The appeal court made the following findings: 

• The law society’s role was part of the High Court’s judicial proceedings, specifically court applications seeking admission as a barrister and solicitor 
• An application asking the law society for a certificate of character was the initiating step to an admission application to the High Court 
• The Lawyers and Conveyancers Act 2006 empowered the law society to perform an investigatory role for judicial proceedings 
• Communications to the law society as part of its enquiries were evidence existing for the purpose of judicial proceedings 
• The common law absolute privilege – which applied to witnesses, judges, counsel, parties, and documents during judicial proceedings – protected such communications 

The appeal court deemed these findings consistent with the public policy underlying absolute privilege. 

“In the context of the Law Society’s disciplinary jurisdiction, it is well established that the public policy that the law should provide a remedy to a person who is maliciously defamed should yield to the need for persons to give their testimony about the conduct of a barrister or solicitor without fear of action against them, whether their testimony is true or false,” the appeal court said. 

The applicant requested leave to appeal the appeal court’s decision. 

Appeal ruling upheld

The Supreme Court of New Zealand granted the application for an extension of time to apply for leave to appeal, dismissed the application for leave to appeal, and ordered the applicant to pay the respondent costs of $2,500. 

The Supreme Court found insufficient prospects of success in the applicant’s proposed arguments concerning the Limitation Act and the liquidator emails. The Supreme Court saw no apparent miscarriage of justice and no question of general or public importance or of general commercial significance. 

The Supreme Court noted that the parties accept that the late knowledge period under the Limitation Act expired on 21 April 2023, given the date when the applicant became aware of the liquidator emails. 

Regarding the law society emails, the applicant argued that the appeal court: 

• wrongly struck out the claims based on absolute privilege 
• erroneously considered the law society’s statutory responsibility to decide applications for a certificate of character integrally connected to judicial proceedings 
• failed to analyse whether absolute privilege was necessary or whether qualified privilege was sufficient 

The Supreme Court saw no error in the appeal court’s orthodox approach to interpreting the Lawyers and Conveyancers Act or its assessment of the policy considerations.