Alkazaz v Deloitte Limited - [2023] NZHC 1592

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-002070

[2023] NZHC 1592

BETWEEN
AHMED ALKAZAZ

Plaintiff

AND

DELOITTE LIMITED

Defendant

CAREY WONG
Second Defendant

MICHAEL ENDERBY

Third Defendant

Hearing: 29 May 2023

Appearances:

Plaintiff in Person

S Armstrong / R J Gordon for the Defendants

Judgment:

26 June 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 26 June 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Minter Ellison, Auckland

ALKAZAZ v DELOITTE LTD [2023] NZHC 1592 [26 June 2023]

Introduction

[1] The defendants apply to strike-out Ahmed AlKazaz’s statement of claim, in which he alleges that they made defamatory statements about him in April 2018 and at other unspecified times.

[2] The defendants say that any cause of action in defamation against them in relation to the April 2018 statements is untenable on limitation grounds. Furthermore, that as Mr AlKazaz has not provided particulars of the other alleged defamatory statements, this part of his pleading is an abuse of process.

[3]The issues to be determined are:

(a)Is there no reasonable possibility that Mr AlKazaz’s claim has been brought within time?

(b)Is Mr AlKazaz’s allegation of other defamatory statements at para 19 of his statement of claim an abuse of process?

Background

[4] Mr AlKazaz was employed by a Deloitte1 subsidiary, DeloitteAsparona Limited, from September 2013. After a restructuring process affected Mr AlKazaz’s employment, he and the employer entered into a “Record of Settlement” on 7 July 2016, and the employment relationship came to an end on 29 August 2016.

[5] Nearly two years later, on 20 April 2018, a recruitment agency retained by Mr AlKazaz (Halcyon Knights) forwarded his curriculum vitae (CV) to Deloitte for consideration for another role. It is out of this contact by the recruitment agency that the allegedly defamatory publication now in issue arose.

[6] On 20 April 2018, Halcyon Knights sent an email to Carey Wong, Senior Recruitment Advisor at Deloitte:

1 Deloitte Ltd uses the name Deloitte as its trading name.

Please find Ahmed’s CV attached for the Technical Consultant role in Auckland. Ahmed comes well-recommended from our network, and has indicated an interest in Deloitte & requested for his details to be presented to you … Would you be keen to see him?

[7] Mr Wong asked Michael Enderby, then a Senior Specialist in Deloitte’s Oracle practice, and Selwyn Brunston for their thoughts. Dr Enderby spoke with Mr Wong about his experience of Mr AlKazaz when they worked together at DeloitteAsparona, indicating that Mr AlKazaz’s CV did not accurately reflect the work Mr AlKazaz performed during that time. He followed up with an email to Mr Wong confirming that Deloitte was not interested in Mr AlKazaz.

[8]Mr Wong replied to Halcyon Knights:

No, thank you, the team has declined to proceed.

[9]That same day, Halcyon Knights responded to Deloitte:

Thanks, Carey. Would be helpful to get some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1592
Decision Date: 26 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Ahmed AlKazaz, brought a defamation claim against Deloitte Limited, Carey Wong, and Michael Enderby. AlKazaz alleged that defamatory statements were made about him in April 2018 and at other unspecified times by Wong and Enderby. The defendants sought to have AlKazaz's statement of claim struck out, arguing that the claim was time-barred and that AlKazaz had not provided particulars of the other alleged defamatory statements, which amounted to an abuse of process.

The court was required to decide two main issues. First, whether there was no reasonable possibility that AlKazaz's claim had been brought within the statutory limitation period. Second, whether AlKazaz's allegation of other defamatory statements at para 19 of his statement of claim constituted an abuse of process.

In its judgment, the court found that AlKazaz's defamation claim concerning Wong's email to Halcyon Knights on 20 April 2018 was time-barred. AlKazaz had become aware of this email by 2 July 2018 at the latest, but he did not commence his proceeding until 20 October 2022, well outside the two-year limitation period. As for Enderby's statements, the court found that AlKazaz had become aware of them by July 2019 at the latest, when he filed a Notice Requiring Disclosure in the Employment Court, and thus his claim was also time-barred.

Regarding the second issue, the court held that AlKazaz's allegation of other defamatory statements at para 19 of his statement of claim was an abuse of process. A plaintiff in a defamation proceeding must specify the statements they allege to be defamatory and untrue, and a general allegation without particulars fails to comply with this mandatory requirement. As AlKazaz did not have any other specific allegedly defamatory statements in mind, there was no purpose in directing him to particularise the statements to which he refers.

As a result, the court ordered that AlKazaz's statement of claim dated 9 October 2022 be struck out in its entirety. The court also indicated that, as the unsuccessful party, AlKazaz should pay the defendants' costs on a scale 2B basis and reasonable disbursements.

Orders