A Framework for Posthumous Defamation: Ellis v R, tikanga and the impetus for abolishing s 3(1) of the Law Reform Act 1936

Abstract

This paper considers whether the continued existence of the maxim actio personalis moritur cum persona within s 3(1) of the law Reform Act 1936 should be abolished in light of the Supreme Court’s judgment in Ellis v R. It finds that reputational harm in common law and tikanga endure beyond a plaintiff’s death. It explores whether the majority’s judgment offers a legal avenue for justice to be sought in any posthumous action. Furthermore, the paper discovers that the section’s historical use, its rationale and the courts of its jurisdictional neighbours all largely support abolishing the antiquated rule. It is suggested that the Ellis judgment can form a framework which is to be applied in posthumous defamation actions. Overall, it is argued that the judgment is plainly contradictory to the principles beneath s 3(1) and it should be repealed as it no longer is in line with New Zealand’s legal reasoning.