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Filipino basketball enthusiast wins defamation claim against no-show former colleague

13 Jul 2023

| Author: Fiona Wu

Formal proof hearing – Defamation Act 1992 – natural and ordinary meaning of statement – plaintiff’s own translation of statement accepted – no defences available – declaration of liability

Castillo v Ybanez [2023] NZHC 1723 per Becroft J.

Neil Castillo and Jerald Ybanez are Filipino New Zealanders and passionate about basketball. They set up the Auckland United Basketball (AUB) organisation for South Auckland children and young people. But the pair have fallen out. Castillo claims Ybanez defamed him on three separate occasions in July 2022 (each occasion forming a separate cause of action):

  • In a series of messages sent to more than two dozen members in the AUB Facebook group chat, Ybanez implied Castillo misappropriated AUB money. The messages were removed within half an hour;
  • in a Facebook message to a prospective sponsor, Ybanez implied Castillo had dishonest intentions when seeking sponsorship; and
  • in a phone conversation between Ybanez and the same prospective sponsor, Ybanez said AUB had dissolved because Castillo was using AUB to profit from money provided by parents.

The matter proceeded by way of formal proof. Having been properly served, Ybanez did not engage with the proceedings in any way.

The threefold test for defamation asks whether:

  • a defamatory statement has been made;
  • the statement was about the plaintiff; and
  • the statement was published by the defendant.

The test was easily satisfied for all three causes of action. The messages followed a similar pattern where Ybanez suggested or implied Castillo was misappropriating or stealing AUB funds. Even though the first lot of messages were removed from the group chat relatively quickly, the allegations had already spread among members and there was no doubt the statements were “published”.

As there was no truth to any of Ybanez’s claims, the defence of truth was not made out. There was no basis for Ybanez to assert any privilege. Nor was there any suggestion of honest opinion – particularly given the “strong positive assertions” Ybanez made, which were not subject to any qualification.

For the second cause of action, the relevant Facebook messages were sent in the Filipino language of Tagalog, which Castillo later translated himself. On oath in court, Castillo said he could speak English and Tagalog fluently.

While Becroft J was initially hesitant about accepting a plaintiff’s translation without independent verification, the judge concluded, on the balance of probabilities, he could rely on Castillo for several reasons, including the lack of dispute about the translation by Ybanez, the compelling nature of Castillo’s evidence, and the consistency between this statement and other statements proved to have been made by Ybanez.

 

Held: All three causes of action succeed. Formal declaration made under s 24 of the Defamation Act 1992 that Ybanez is liable to Castillo in defamation.

Castillo v Ybanez [2023] NZHC 1723

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