Bains v Singh - [2023] NZHC 332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-004-1422

[2023] NZHC 332

BETWEEN
GURWINDER SINGH BAINS

Plaintiff

AND

HARNEK SINGH

Defendant

Hearing: 17 October 2022

Counsel:

P A McKnight and A J Romanos for plaintiff R K P Stewart for defendant

Judgment:

28 February 2023

JUDGMENT OF ASSOCIATE JUDGE TAYLOR

[Application for strike out of defences]

This judgment was delivered by me on 28 February 2023 at 3pm pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Langford Law, Wellington for plaintiff Rice Craig, Papakura for defendant

BAINS v SINGH [2023] NZHC 332 [28 February 2023]

Introduction [1]

Background [3]

Interlocutory application [13]

Affidavit of Gurwinder Bains dated 21 March 2022 [15]

Affidavit of Satnam Sangha dated 5 April 2022 [16]

Opposition [17]

Affidavit of Harnek Singh dated 6 May 2022 [18]

Reply affidavit of Gurwinder Bains dated 30 May 2022 [24]

Mr Bains’ submissions [25]

Mr Singh’s submissions  [28]
Legal principles  [32]
Analysis  [34]
In relation to the defence of honest opinion, whether the meanings of the publications were
incapable of being understood as expressions of opinion?  [36]
Conclusion on publication one  [50]
Publication two  [53]
Conclusion on publication two  [61]
Publications three and four  [63]
Conclusions on publications three and four  [68]
In relation to the defence of qualified privilege, whether Mr Singh had a legally recognisable duty to publish the publications, and whether the recipients had a legally recognisable interest in such
publication?  [70]

Conclusion on qualified privilege [81]

Result [82]

Costs [85]

Introduction

[1] Mr Gurwinder (Gopa) Bains has brought defamation proceedings against Mr Harnek Singh.

[2] This judgment determines an interlocutory application brought by Mr Bains for orders striking out Mr Singh’s affirmative defences of honest opinion and qualified privilege.

Background

[3] Mr Bains is originally from Punjab, India. He emigrated to New Zealand in 2002 and since 2005 has participated in the activities of New Zealand Sikh organisations, including the Supreme Sikh Society of New Zealand (SSSNZ). However, he provides affidavits which make clear he is neither a current nor former member of the SSSNZ.

[4] Mr Singh works at a structural engineering company. He also runs a radio show on Radio Virsa that is prominent in the Sikh community. His personal Facebook page has approximately 5,000 friends and 10,000 followers.

[5] Mr Singh made posts on his personal Facebook page concerning Mr Bains. The parties disagree as to the English interpretation of the posts’ Punjabi text.

[6]Four posts are presently at issue.

[7] The first post (publication one) is a republication of a Facebook post made by Mr S [name redacted]. Mr S’s post refers to Mr Bains having been punched in the eye for saying he wanted to rape Mr S’s partner (the rape post). Mr Singh’s further commentary to the post, according to Mr Bains’ interpretation, suggests Mr Bains has done an indecency and that he is corrupt.

[8] The second post…

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 [2023] NZHC 332
Case: [2023] NZHC 332
Decision Date: 28 February 2023

CaseChat Overview and Summary

The case of Bains v Singh [2023] NZHC 332 involves an interlocutory application by Gurwinder Singh Bains against Harnek Singh. Mr Bains is seeking to strike out Mr Singh's defences of honest opinion and qualified privilege in relation to defamatory publications made on Mr Singh's Facebook page. The High Court of New Zealand was required to determine whether Mr Singh's defences were reasonably arguable and thus should proceed to trial. The court examined the applicability of the defence of honest opinion to the publications, considering whether the meanings could be understood as expressions of opinion and whether there was a sufficient indication of the facts. The court found that the defence of honest opinion was arguable in relation to some of the publications and should not be struck out. Regarding the defence of qualified privilege, the court assessed whether Mr Singh had a legally recognisable duty to publish the statements and whether the recipients had a corresponding interest. The court concluded that there was an arguable case for qualified privilege and that the defence should not be struck out. The application to strike out the defences was dismissed, and costs were reserved.

Orders