Alofa v Ethnic Media Group Limited HC Auckland CIV 2011-404-1103
[2011] NZHC 826
•26 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-1103
UNDER The Radiocommunications Act 1989
BETWEEN CANADA ALOFA Plaintiff
ANDETHNIC MEDIA GROUP LIMITED First Defendant
ANDROBERT KHAN Second Defendant
ANDTE PUNI KOKIRI Third Defendant
ANDTHE ATTORNEY-GENERAL Fourth Defendant
Hearing: On the papers
Counsel: MB Wigley for first and second defendants
VL Hardy for third defendant
C Tyson for fourth defendant
Judgment: 26 July 2011 at 4:45 PM
JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for unless order]
Solicitors: Wigley & Company, PO Box 10 842, Wellington 6143
Crown Law, PO Box 2858, Wellington 6140
And to: C Alofa 304/152 Hobson Street, Auckland 1010
ALOFA V ETHNIC MEDIA GROUP LIMITED HC AK CIV 2011-404-1103 26 July 2011
[1] On 28 June 2011, after hearing the plaintiff and counsel for the parties I issued a minute which dealt with non-compliance with orders made by Associate Judge Matthews.
[2] The relevant part of my minute recorded the following:
1.This conference was called to deal with a default in compliance with the orders made by Associate Judge Matthews on 24 May 2011.
2.The plaintiff, who is currently unrepresented but who advises me that he has been in contact with a lawyer who he hopes will accept his brief, assures me that there now can be compliance by him with the orders made by Associate Judge Matthews provided further time is allowed. He has confirmed to me that that compliance can be made within three weeks. On that basis I order as follows:
a.unless the plaintiff files and serves a statement of defence to the counterclaim by 19 July 2011, the first defendant may make application for judgment by default against the plaintiff;
b.unless the plaintiff files and serves an amended statement of claim that provides the particulars which are referred to in paragraphs 16b, 18c, 25b and 32 of the first and second defendants‘ statement of defence by 19 July 2011, the statement of claim shall be struck out.
[3] On 19 July 2011 the plaintiff filed two new pleadings, namely, an amended statement of claim and a statement of defence to the counterclaim by the first defendant.
[4] Counsel for the defendant filed a memorandum on 20 July 2011. In that memorandum he accepted that the plaintiff had met his obligations so far as the filing of a statement of defence to the counterclaim is concerned.
[5] Counsel for the defendant submitted in respect of the amended statement of claim:
(a) It did not provide the particulars which were ordered;
(b)There are no relevant additions or changes to the original statement of claim;
(c) As to the relevant paragraphs, the allegations are pleaded again with the ordered particulars with minimal and generally no change; and
(d)The relevant paragraphs are as follows (to cross-reference, the original is followed, in brackets, by the paragraph in the amended pleading): 16 (16), 18 (18), 25 (30) and 32 (36).
[6] Counsel submitted that there had been a failure to provide the particulars and that therefore the statement of claim must be regarded as already struck out. He further submitted that an administrative step by way of a formal order recording the position is appropriate and that could be undertaken without notice to the plaintiff.
[7] I deal first with the question of whether compliance with the order is an administrative step. I reject that submission. Whether the amended statement of claim complies with the order of the court requires judicial analysis of the pleading measured against the order that was made. That is not something that can be appropriately described as an administrative step or action. The situation before me is quite different from one where there has been a wilful failure to comply and to file anything in response to the court‘s order. Those clear cases may well justify the sealing of an order. That, however, is not the position before me. What is before me is a pleading which purports to comply with the court‘s order.
[8] The court has power under High Court Rules, r 1.19 to enlarge time for compliance, notwithstanding that time has expired and even in the case of an unless order: Franklin v Baycorp Holdings Ltd.[1] In that case Doogue J observed that jurisdiction exists in England to extend the time even where an ―unless‖ order has been made: Samuels v Linzi Dresses Ltd.[2] He further held, again in reliance on the old High Court Rules, r 6, the equivalent of the current r 1.19, that there is jurisdiction to enlarge the time.
[1] Franklin v Baycorp Holdings Ltd (1990) 4 PRNZ 258 (HC).
[2] Samuels v Linzi Dresses Ltd [1981] 1 QB 115; [1980] 1 All ER 803.
[9] Accordingly, I reach the view that the question of compliance and what should be done, having regard to the amended pleading that has been filed in this
case, is not something that can be handled administratively but, in fact, requires judicial analysis.
[10] I am also mindful of the fact that in this case, the consequence of a striking out of the statement of claim may be serious as far as the plaintiff is concerned, having regard to the provisions of the Limitation Act 1950. In Franklin v Baycorp Holdings Ltd the court, when considering the discretionary aspects of the orders under review, took account of the draconian result that would apply in upholding the unless order measured against the minor prejudice to the party seeking to uphold the
order.[3] That reinforces my view that care must be taken, particularly in a case such
as the present one, where there has been some attempt to comply with the order of the court.
[3] Franklin v Baycorp Holdings Ltd, above n 1.
[11] Having set out the general approach I now set out first the particular paragraphs in the defendant‘s statement of defence that raised the objection to the original particularisation given by the plaintiff. I also set out the original provisions pleaded by the plaintiff in his first statement of claim and what has been provided in the amended statement of claim.
[12] The first defendants‘ statement of defence provides:
16(b) I cannot fully plead to paragraph 16(b) until the Plaintiff (i) provides further particulars of the alleged ―commercial licence‖, the actual licence that is said to have existed, and their specific terms, and (ii) provides a copy of the draft MOU referred to in paragraph 16(b). The terms of the commercial licence and the licence said to have existed, and their implications in relation to this claim, are unclear until particulars are provided.
…
18(c) Until the Plaintiff provides further particulars as to which of the alleged terms are written (and in which clause of which document), oral or implied, the First Defendant cannot fully plead to Paragraph
18. It says further that the terms as alleged in paragraph 18 generally do not sufficiently closely reflect the written terms: further
particulars are required to enable the First Defendant to respond;
…
25(b) It cannot fully plead to paragraph 25 until the Plaintiff provides further particulars of the alleged ―non commercial licence‖ and ―non commercial reserved frequency‖ and their specific terms. The terms and their implications in relation to this claim are unclear until particulars are provided.
…
32.It denies the allegations in paragraph 32. It cannot fully plead to paragraph 32 until the Plaintiff provides further particulars of the alleged ―commercial licence‖, the actual licence that is said to have existed, and their specific terms. The terms and their implications in relation to this claim are unclear until particulars are provided.
[13] In the plaintiff ‘s original statement of claim dated 28 February 2011, paragraph 16 provided::
During Alofa‘s meetings with Khan, Khan represented to Alofa that:
(a) Khan owned the radio frequency licence to which the Proposal pertained.
Particulars
The representation was expressly made during discussions with
Alofa.
(b) The licence was a commercial licence.
Particulars
The representation was implied from Khan‘s statements about the advertising revenue which could be generated, during discussions with Alofa and a draft Memorandum of Understanding between Ethnic Media Group NZ Ltd and Brownies-Airtime NZ Ltd emailed from Khan to Alofa on 18 February 2005 (draft MOU).
(c) A licence fee of $38,800 plus GST was a commercially viable fee given the nature of the Samoan broadcasting market and the licence.
Particulars
The representation was partly express and partly implied from
Khan‘s statements during discussions with Alofa and about advertising revenue, and partly implied from the draft MOU.
(d) The licence was available for Samoan broadcasting.
Particulars
The representation was expressly made during discussions with
Alofa, and in a draft Programme and Airtime Agreement emailed from Khan to Alofa on 18 February 2005.
[14] Paragraph 18 provided:
On or about 13-14 March 2005 The Brownies and Alofa as The Brownies‘ director and guarantor, entered into an agreement with Khan‘s company Ethnic Media (the Agreement) in which it was agreed inter alia that:
(a) The applicable radio frequency licence was for the frequency
1179AM (the Licence).
(b) The Brownies would sublease airtime for use between 12pm and
6am Monday to Sunday.
(c) The Brownies would provide Samoan language programming.
(d) The available airtime would be used only for the purposes of broadcasting programmes by The Brownies in a format acceptable to Ethnic Media with Pacific Island Content as determined by The Brownies.
(e) The Brownies would not use the available airtime for any other purposes.
(f) The lease was a commercial lease.
(g) The available airtime could be used for advertising. (h) The Brownies could raise advertising revenue.
(i) There was no cap on the amount of advertising sales The Brownies could make.
(j) The Brownies would pay Ethnic Media a referral fee of 20% commission for any sales revenue referred to The Brownies by Ethnic Media.
(k) The Licence Fee was $38,800 a month plus GST, payable in advance.
(l) The agreement was for a term of one year commencing on 1 March
2005 with one year‘s renewal.
(m) Interest on overdue licence fees was 12% per annum.
Particulars
The agreement was particularly oral, partly implied and partly express and in writing.
Insofar as it was express and in writing it was contained in:
-The Programme and Airtime Agreement dated 1 March 2005 (the Airtime Agreement); and
- The Memorandum of Understanding between Ethnic Media
Group NZ Ltd and Brownies-Airtime NZ Ltd dated 1 March
2005 (the Memorandum of Understanding).
Insofar as it was oral, it was formed during discussions between
Alofa and Khan early in 2005.
Insofar as it was implied, it was implied from discussions between Alofa and Khan in 2005 and from the Memorandum of Understanding.
[15] Paragraph 25 provided:
The Representations were incorrect and were misleading and deceptive in that:
(a) Khan did not own the Licence.
(b) The Licence was a non commercial licence.
(c) The licence fee was not commercially viable given the nature of the
Samoan broadcasting market and the Licence.
(d) The Licence was not available for Samoan broadcasting.
Particulars
The Licence had been issued to Te Runanga O Ngai Whatua (Ngati Whatua) and was a non commercial licence in that it was for a non- commercial reserved frequency for the promotion of Maori language and culture.
[16] Paragraph 32 provided:
When Alofa entered into the Agreement, he understood from the representations that Khan owned the Licence, the Licence was a commercial licence, available for Samoan language broadcasting, and that the licence fee was a commercially viable fee given the nature of the Samoan broadcasting market and the Licence (the facts);
[17] I now consider the specific paragraphs of the amended statement of claim filed on 19 July 2011. Paragraph 16 in that document provides:
During Alofa‘s meetings with Khan, Khan represented to Alofa that:
(a) Khan owned the radio frequency licence to which the Proposal pertained (the Licence).
Particulars
The representation was expressly made during discussions with
Alofa.
(b) The licence was a commercial licence in nature – as there was no cap on how much advertising could be sold.
Particulars
The representation was implied in Khan‘s statements about the
advertising revenue that could be generated, during discussions with Alofa – and a draft Memorandum of Understanding between Ethnic Media and The Brownies emailed from Khan to Alofa on the 18th February 2005. (draft MOU).
(c) A licence fee of $38,800 plus GST was a commercially viable fee given the nature of the Samoan broadcasting market and the Licence.
Particulars
The representation was partly express and partly implied from Khan‘s statements during discussions with Alofa and about advertising revenue, and partly implied from the draft MOU.
(d) The licence was available for Samoan broadcasting.
Particulars
The representation was expressly made during discussions with Alofa, and in a draft Programme and Airtime Agreement emailed from Khan to Alofa on 18th February 2005.
[18] The order made in relation to paragraph 16 required particulars of the alleged commercial licence and the terms of the alleged commercial licence. On its face, the amended statement of claim does not address either matter and, indeed, provides no change whatsoever to that which was pleaded in the original statement of claim.
[19] I next consider paragraph 18 as it is contained in the amended statement of claim, which provides:
On or about 13-14 March 2005 The Brownies and Alofa as The Brownies‘ director and guarantor, entered into an agreement with Khan‘s company Ethnic Media (the Agreement) in which it was agreed inter alia that:
(a) The applicable radio frequency licence was for the frequency
1179AM (the Licence).
(b) The Brownies would sublease airtime for use between 12 noon and
6am Monday to Sunday.
(c) The Brownies would provide Samoan language programming – as stipulated in the Airtime Agreement under ‘WHEREAS’ paragraph (B) and (C).
(d) The available airtime would be used only for the purpose of broadcasting programmes by The Brownies in a format acceptable to Ethnic Media with Pacific Island Content as determined by The Brownies.
(e) The Brownies would not use the available airtime for any other purposes.
(f) The lease was a commercial lease.
(g) The available airtime could be used for advertising. (h) The Brownies could raise advertising revenue.
(i) There was no cap on the amount of advertising sales The Brownies could make.
(j) The Brownies would pay Ethnic Media a referral fee of 20% commission for any sales revenue referred to The Browns by Ethnic Media.
(k) The Licence Fee was $38,800 a month plus GST, payable in advance.
(l) The agreement was for a term of one year commencing on 1 March
2005 with one year‘s renewal.
(m) Interest on overdue licence fees was 12% per annum.
Particulars
The agreement was partly oral, partly implied and partly express and in writing.
Insofar as it was express and in writing it was contained in:
-The Programme and Airtime Agreement dated 1 March 2005 (the Airtime Agreement); and
- The Memorandum of Understanding between Ethnic Media
Group NZ Ltd and Brownies-Airtime NZ Ltd dated 1 March
2005 (the Memorandum of Understanding).
Insofar as it was oral, it was formed during discussions between
Alofa and Khan early in 2005.
Insofar as it was implied, it was implied from discussions between Alofa and Khan in 2005 and from the Memorandum of Understanding.
[20] There is one change only to that which was pleaded in the original statement of claim. It is to paragraph 18(c) where the additional words are added:
As stipulated in the Airtime Agreement under ―WHEREAS paragraph B and
C‖.
This would appear to be a minimal attempt at identifying a document which contained some of the terms which are pleaded in paragraph 18. The order required identification of which of the terms pleaded in the paragraph are written. It also required a determination of which of the terms were oral or implied. However, reference to the Airtime Agreement does give some clue to this when one considers
the particulars that are provided in paragraph 18. I would like to hear further argument as to whether this pleading in fact gives sufficient notice as to the basis of the terms.
[21] I next consider paragraph 30 of the amended statement of claim which counsel for the first defendant identified as the equivalent to the original pleading which was paragraph 25. Paragraph 30 of the amended statement of claim provides:
The Representations were false and misleading and deceptive in that: (a) Khan did not own the Licence.
(b) The Licence was a non commercial licence.
(c) The licence fee was not commercially viable given the nature of the
Samoan broadcasting market and the Licence.
(d) The Licence was not available for Samoan broadcasting.
(e) Khan ignored his legal obligation of revealing the terms of his
Contract with Mai Media Ltd for working and legal purposes.
(f) Khan promises numerous times that he would help in setting up the Plaintiff‘s radio‘s station in the beginning by providing advertisings from his Radio Tarana station, as well as setting up meetings with advertising agencies and the studio productions of adverts and news items. He was always going to be there if Alofa needed help in running his Radio station.
(g) Khan promised the Plaintiff that a Samoan radio station, with his help, will make Alofa the ‗riches‘ Samoan man in Auckland.
Particulars
The Licence had been issued to Te Runanga O Ngati Whatua (Ngati
Whatua) and was a non-commercial licence in that it was for a non- commercial reserved frequency for the promotion of Maori language
and culture.
Khan stated that he had a ‗Contract‘ with Mai Media Ltd (which changed its name to Maitahi Media Ltd on 16 July 2008 having been incorporated on 2 September 1994 as Mai FM Ltd) in terms of the frequency 1179AM – and this contract was never shown to or sighted by the Plaintiff for working and legal purposes. Khan chose to ignore his obligation by not being truthful in revealing any content of this purported contract with Mai Media Ltd.
[22] There are, here, further allegations as to the basis for the claim that the representations were false and misleading. In my view, it would be premature to rule
finally on the adequacy of that pleading and, in particular, its compliance without hearing argument.
[23] Counsel identified paragraph 36 of the amended pleading as being the pleading that provides the further particulars that were sought in relation to paragraph 32 of the original statement of claim. Paragraph 36 provides:
When Alofa entered into the Agreement, he understood from the representations that Khan owned the Licence, and that the Licence was a commercial licence in nature, and was available for Samoan language broadcasting as stipulated in the Airtime Agreement under ‘WHEREAS’ paragraph (B) and (C).
[24] Again, the problem identified here is the particulars of the actual licence and its specific terms. On the material before me, I cannot tell whether the reference to the airtime agreement provides sufficient particularisation of this. What this indicates is that I should be cautious before simply administratively applying the unless order.
[25] My conclusion is, therefore, that more than an administrative step is required. What is required is analysis of the amended statement of claim on an ―on notice‖ basis and at a defended hearing to determine whether there has been compliance. I do not overlook that there may be reasons that justify an extension of time to the unless order that was made in terms of compliance, or even a variation of it, if the result of the analysis discloses that there has been sufficient further particularisation of the statement of claim which complies with the High Court Rules and, in particular, r 5.26(b). The relevant parts of r 5.26(b) provides:
5.26 Statement of claim to show nature of claim
The statement of claim—
…
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff ‘s cause of action …
[26] As I have reached the conclusion that further judicial analysis is required, the possibilities which follow are:
(a) An application by the first defendant relying on one or more of the grounds set out in High Court Rules, r 15.1 for the dismissal or stay of the proceeding and, in particular, declaring that non-compliance with the court orders result in the strike out of the proceeding;
(b)An application by the plaintiff for an order extending the time for compliance with the unless order; and
(c) Such other applications as in the circumstances counsel and the plaintiff consider appropriate to conclude the argument in relation to the pleading.
[27] If the plaintiff and defendants consider that a further interlocutory application is appropriate then I order that the directions for filing same as set out in paragraph 3 of my minute of 28 June 2011 apply.
[28] I rule accordingly.
JA Faire
Associate Judge
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