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Bains v Singh

Bains v Singh

Case [2024] NZCA 581 12 November 2024

Defence of Honest Opinion

Defence of Qualified Privilege

Jurisdiction

Defamation Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA402/2023
[2024] NZCA 581

BETWEEN	GURWINDER SINGH BAINS Appellant
AND	HARNEK SINGH Respondent

Hearing:	5 March 2024
Court:	Courtney, Dunningham and Moore JJ
Counsel:	A J Romanos for Appellant R K P Stewart for Respondent
Judgment:	12 November 2024 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed in part.

BThe decision of the High Court is set aside to the extent specified in [65] of this judgment and the defence of honest opinion is struck out in respect of the first meaning pleaded in relation to each of publications two, three, and four.
CThe question of costs on the strike-out application falls to be considered in the High Court in accordance with this judgment.
DThe respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

In August 2021, Harnek Singh posted comments about Gurwinder Bains to his Facebook page, which Mr Bains alleges defamed him. In proceedings brought by Mr Bains, Mr Singh has pleaded affirmative defences of qualified privilege and honest opinion.[1] Mr Bains applied unsuccessfully to strike out those defences.[2] Now he appeals Associate Judge Taylor’s decision declining the strike-out application.[3]
[1]Mr Singh has also pleaded truth but no issue arises in this appeal in relation to that defence.
[2]Bains v Singh [2023] NZHC 332 [judgment under appeal].
[3]The Judge granted Mr Bains leave to appeal: Bains v Singh [2023] NZHC 1566.
The issues identified by the parties are:[4]
(a)Is it reasonably arguable that any of the publications were published on an occasion of qualified privilege? That is, is it reasonably arguable there existed a requisite relationship between Mr Singh and the publications’ recipients for such publications to have been made on occasions of qualified privilege?
(b)In respect of the affirmative defence of honest opinion:
(i)Is it reasonably arguable that the pleaded meanings in relation to which the defence has been raised are capable of being understood as expressions of opinion conveyed by the relevant publications as a whole?
(ii)If so, is it reasonably arguable that the publication facts relied on by Mr Singh (including any generally known facts) are sufficiently indicated or alluded to in the publications to allow the pleaded meanings to be understood as expressions of opinion?

The background to the proceedings

[4]We have adjusted the phrasing of the issues from the way they were identified by the parties for clarity.

Mr Singh is prominent in the Auckland Sikh community and is a founding member of Sri Guru Singh Sabha Auckland Inc (SGSS), which was established in 2002 and promotes a certain Sikh ideology. Mr Singh is the lead convenor of the SGSS gurudwara (a Sikh temple) in Papatoetoe. He hosts a radio programme on Radio Virsa to publicise his views on Sikh ideology. He also uses his personal Facebook page to share his views.
Mr Singh…

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.

Continue reading Bains v Singh

Details

AGLC: Bains v Singh [2024] NZCA 581
Case: [2024] NZCA 581
Decision Date: 12 November 2024 at 11.30 am

CaseChat Overview and Summary

In Bains v Singh, the appellant, Gurwinder Singh Bains, sought to appeal the decision of the High Court declining to strike out certain defences raised by the respondent, Harnek Singh, in defamation proceedings. The central issue in this appeal was whether the High Court correctly declined to strike out the defences of qualified privilege and honest opinion in relation to four Facebook posts made by Mr Singh that Mr Bains claimed defamed him. The Court of Appeal found in part for Mr Bains, setting aside the High Court's decision regarding the defence of honest opinion for certain meanings pleaded in relation to three of the publications. The Court held that it was reasonably arguable that the publications were made on an occasion of qualified privilege, but the defence of honest opinion was not reasonably arguable for the meaning that Mr Bains had bought his award corruptly, as the fact that he had made charitable donations was not sufficiently indicated in the publications. The Court also held that the issue of costs on the strike-out application was to be determined by the High Court.

Orders