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Qiang v Hamilton-Hibbard [2023] NZHC 1496 (15 June 2023)

Last Updated: 25 October 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 15 June 2023 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

McElroys, Auckland MC, Auckland

QIANG v HAMILTON-HIBBARD [2023] NZHC 1496 [15 June 2023]

• [1] Li Qiang appeals against Judge AA Sinclair’s judgment (the Judgment), striking out Mr Li’s claims against Sarah Hamilton-Hibbard and Malcolm Heinrich, outlined in a statement of claim dated 21 March 2022.¹

Background

• [2] In April 2021, Mr Li filed a separate claim in the North Shore District Court, alleging in essence that Auckland Council had breached his right to protest, by seizing his protest signs and issuing him with a notice under cl 8(1)(a) and (b) of the Auckland Transport Public Safety and Nuisance Bylaw (Auckland Council proceeding).

• [3] Auckland Council filed a strike-out application in response to Mr Li’s claim, supported by an affidavit from an Auckland Council Compliance Officer, Malcolm Heinrich. Mr Heinrich’s affidavit attached, amongst other things, three emails from Sarah Hamilton-Hibbard, which he described as amounting to complaints to the council.

• [4] Ms Hamilton-Hibbard’s emails referred to her role as Membership and City Management Specialist at Heart of the City, Auckland’s city centre business association. They describe Ms Hamilton-Hibbard observing politically-driven signs placed in the middle of the footpath at 45 Queen Street, Auckland City, and to her attempting without success to persuade the man responsible to move them. In her first email, on 13 January 2021, Ms Hamilton-Hibbard wrote that she “wanted to make sure you’re across it”. In her second email, on 2 February 2021, she wrote:

Just checking to see if you’ve had a chance to take a look at this? He used to pop up from time to time but he’s definitely popping up regularly each day at afternoon peak time.

I had my catchup with CityWatch this afternoon. They are not clear on where this activity sits in relation to the bylaw, and neither do I, but I do know that it is an obstruction of the public space, the free flow of pedestrian traffic at peak time and an obstruction of business windows.

Please let me know when you can about how we approach this matter.

¹ Li v Hamilton-Hibbard [2022] NZDC 950 [Judgment].

• [5] Mr Heinrich responded to Ms Hamilton-Hibbard’s 2 February email that day, referring to having spoken with the man the previous Friday, and outlining the interaction on that occasion. Ms Hamilton-Hibbard’s third email, later on 2 February 2021, thanked Mr Heinrich for the update and concluded: “[l]et me know if you need anything else from me and good luck with forming a new approach.”

• [6] Mr Heinrich’s affidavit goes on to outline what he describes as the circumstances in which on 19 March 2021 he issued Mr Li with the bylaw notice mentioned above, and around 25 minutes later seized Mr Li’s signs.

• [7] As indicated above, Mr Li initiated this proceeding in March 2022. The essence of his claims were that Ms Hamilton-Hibbard and Mr Heinrich lied and defamed Mr Li: Ms Hamilton-Hibbard in her emails; and Mr Heinrich in his affidavit. Mr Li sought orders directing Ms Hamilton-Hibbard and Mr Heinrich to stop defaming him, to apologise publicly, and to pay $150,000 and $199,980 damages, respectively.

• [8] On 23 November 2022, Judge Clarke ordered transfer to this Court of the Auckland Council proceeding, on the basis that Mr Li’s claim in that proceeding fundamentally appears to be one seeking judicial review of the conduct of Auckland Council and Mr Heinrich. The Auckland Council proceeding is awaiting further mention in the Judicial Review List at 9 am on 28 June 2023.

Judge Sinclair’s judgment

• [9] Judge Sinclair’s judgment, dated 23 January 2023, canvasses the procedural background outlined above and refers to rule 15.1 of the District Court Rules 2014, establishing that court’s jurisdiction to strike out pleadings if they disclose no reasonably arguable cause of action, and the “well-established” general principles relating to strike-out applications, citing Attorney-General v Prince and Gardner.²

• [10] The Judgment then observes that Mr Li’s statement of claim is long, discursive, without any structure and unintelligible in large part. It notes that the statement of claim goes through Mr Heinrich’s affidavit at length, commenting on Mr Heinrich’s

² Attorney-General v Prince and Gardiner [1998] 1 NZLR 262 (CA) at 267.

assertions. Judge Sinclair notes that if the intention behind Mr Li’s claim was to oppose the application to strike out the Auckland Council proceeding, he should have done so in that proceeding rather than commence a separate claim.

• [11] On Mr Li’s claim against Ms Hamilton-Hibbard, Judge Sinclair found that it did not disclose any reasonably arguable cause of action, nor one that could be established by amendment. The key findings are that:³

The emails are clear on their face. Ms Hamilton-Hibbard is simply drawing the Council’s attention to the situation which she had observed in Queen Street. She does not identify [Mr Li] in her emails. Moreover, s 8 of the Defamation Act 1992 provides that truth is a complete defence to defamation.

[16] After sending her emails to Mr Heinrich, Ms Hamilton-Hibbard had no further involvement.

• [12] Turning to Mr Li’s claim against Mr Heinrich, Judge Sinclair observed that Mr Li in his written and oral submissions had confirmed the claim against Mr Heinrich was limited to a claim of perjury: in essence, that Mr Heinrich had lied in his affidavit filed in the Auckland Council proceeding. Judge Sinclair observed there is no tort of perjury, that if Mr Li wished to pursue such an allegation, he should do so by way of private prosecution under the Criminal Procedure Act 2011. On this basis, Judge Sinclair was satisfied that the statement of claim disclosed no reasonably arguable cause of action against Mr Heinrich.

• [13] The defamation proceeding was struck out in its entirety. A separate judgment, ordering that Mr Li pay costs, has not been appealed.

Mr Li’s grounds of appeal and submissions

• [14] Mr Li’s notice of appeal is difficult to understand. As I understand it, it alleges that:

(a) The Judgment was not appropriately based on the available evidence.

³ Judgment at [15].

(b) The District Court and Ministry of Justice refused to provide an interpreter for Mr Li, and his own interpreter was unreliable, such that he was deprived of fundamental rights.

(c) Mr Li’s perjury claim was properly filed, as a private prosecution, and should have been determined.

(d) The Judgment is wrong, and did not follow the principles of strike out.

• [15] Justice Robinson directed allocation of the 14 June 2023 fixture following a conference held on 14 March 2023. In doing so, Robinson J noted:⁴

(a) Mr Li is self-represented and does not speak English, but on that occasion had been assisted by an interpreter;

(b) Mr Li asked the Court to appoint (and pay for) an interpreter; but

(c) the Court would not provide Mr Li with an interpreter, this being a civil rather than criminal proceeding.

• [16] Mr Li appeared at today’s fixture without the benefit of an interpreter. It seems, however, that he had provided written submissions, a chronology, and a document described as a “bundle of authority” to counsel for the respondents. Ms Challis provided me with copies of those documents, and I was able to confirm with Mr Li that he understood I had been given them. He did not, in the circumstances, seek to add to the written material he had filed.

• [17] I note that I decided to proceed with the hearing, notwithstanding Mr Li’s obvious difficulty in understanding English. As outlined below, it was Mr Li’s responsibility to ensure he could understand the language being used in court. He had been warned he would need to make his own arrangements. He did not do so. The overall interests of justice required that the appeal not be delayed to accommodate Mr Li’s lack of action.

⁴ Li v Hamilton-Hibberd HC Auckland CIV-2023-404-292, 14 March 2023.

• [18] Mr Li’s documents are difficult to understand. In essence he submits:

(a) The respondents have abused the law of strike out to escape sanction.

(b) The courts have not seen any document signed by Ms Hamilton- Hibbard, a matter that “shows that [she] does not really exists (sic). Therefore [Mr Heinrich] is certainly committing perjury.”

(c) The respondents have not attended court to provide evidence.

Legal principles

• [19] Mr Li appeals to this Court as of right.⁵ The appeal is by way of rehearing.⁶

• [20] Mr Li bears an onus of satisfying me that I should differ from the decision under appeal. But I have a responsibility to arrive at my own assessment of the merits. If I consider the appealed judgment is wrong, I am justified, indeed required, to intervene.⁷

Analysis

• [21] In my view, Judge Sinclair was correct to strike out Mr Li’s claim in this proceeding. I deal with the grounds of appeal I have endeavoured to identify within Mr Li’s notice, in turn, below.

Appropriately based on evidence?

• [22] The respondents’ strike out applications sought leave to rely on Mr Heinrich’s affidavit. Plainly, leave was granted, as the Judgment makes repeated reference to the affidavit. That leave was granted is unsurprising. Mr Li’s claim was founded on Mr Heinrich’s affidavit. The Judgment’s reliance on the affidavit was in my view entirely appropriate.

⁵ District Court Act 2016, s 124(2).

⁶ High Court Rules 2016, r 20.18.

⁷ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].

Interpretation

• [23] The right of persons charged with offences to the free assistance of an interpreter if they cannot understand or speak the language used in court, set out in s 24 of the New Zealand Bill of Rights Act 1990, self-evidently does not apply in civil proceedings. As a plaintiff pursuing civil proceedings, Mr Li bore a responsibility to ensure he could communicate in the language being used in the District Court, providing his own interpreter if necessary. There was no deprivation of fundamental rights.

Determination as a private prosecution

• [24] Mr Li appears to have regarded his claim against Mr Heinrich as a private prosecution for perjury. But he was wrong to do so. As Judge Sinclair pointed out, Mr Li’s claim required to be commenced (if it were to be commenced at all), by filing a charging document under s 14 of the Criminal Procedure Act 2011. Any such action would have had to overcome the requirement for the charging document to be accepted for filing under s 26 of that Act. Instead, Mr Li’s claim against Mr Heinrich was brought as a civil claim.

• [25] Mr Li’s claim should not have been determined as a private prosecution. The corollary of Mr Li’s stance that it was, and should have been determined as, a private prosecution is that, having been accepted for filing as a civil proceeding, it was correctly struck out.

Judgment wrong, not in accordance with strike out principles?

• [26] Turning to the balance of the proceeding, and as noted above, the essence of Mr Li’s claim against Ms Hamilton-Hibbard was that she had lied and defamed him in her complaint emails. To succeed at trial, Mr Li would have needed to establish that statements in Ms Hamilton-Hibbard’s emails carried a defamatory meaning. The defamatory meaning is not clear to me.

• [27] Further, as Judge Sinclair noted, ‘truth’ is a defence to defamation. Ms Challis pointed out that photographs in Mr Heinrich’s affidavit seem to show Mr Li’s signs

obstructing the footpath just as Ms Hamilton-Hibbard wrote. And Mr Li’s claim indicates that he was, as Ms Hamilton-Hibbard also wrote, unwilling to remove his signs when asked. The emails therefore appear to be true.

• [28] But I prefer not to resolve this appeal as it affects Ms Hamilton-Hibbard on either of these bases.

• [29] In my view, Mr Heinrich’s affidavit makes clear, and Mr Li’s claim would have made clear had it been properly pleaded, Ms Hamilton-Hibberd’s emails were clearly protected by a qualified privilege: she had an adequate interest in communicating what she described as her observations of the man on Queen Street with his signs; and her communications were to Mr Heinrich, an Auckland Council official with an adequate interest in receiving them.⁸ Accordingly, whether her observations were or were not correct, no action in defamation would lie, unless Mr Li could prove Ms Hamilton-Hibbard was “predominantly motivated by ill will towards” Mr Li, or “otherwise took improper advantage of the occasion of publication”. There was nothing in Mr Li’s claim documents or other material filed in respect of this proceeding, including the appeal, which suggested any such motivation or improper advantage could responsibly be pleaded.

Result

• [30] Mr Li’s appeal is dismissed.

• [31] I intend to award costs in favour of the respondents. My inclination is to award the amount of $1,190.00 (plus all interest accrued thereon) which Mr Li paid into Court as security for the costs of this appeal.

• [32] If any party has a contrary view, they are to file a memorandum setting out their view within seven days of release of this judgment.

Johnstone J

8. See Adam v Ward [1917] AC 309 (HL) at 334 per Lord Atkinson, and Ursula Cheer “Defamation” in Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2016) at [16.11.01(1)].