Deliu v Hong
[2013] NZHC 736
•12 April 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-006349 [2013] NZHC 736
BETWEEN FRANCISC CATALIN DELIU Plaintiff
ANDBOON GUNN HONG Defendant
Hearing: 5 & 6 October 2012 (Heard at Auckland)
Appearances: F C Deliu (Plaintiff/Applicant) in Person
A D Banbrook for Defendant/Respondent
Judgment: 12 April 2013
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
[as to plaintiff ’s application for a strike out order or further particulars]
This judgment was delivered by Associate Judge Osborne on 12 April 2013 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
DELIU V HONG HC AK CIV-2010-404-006349 [12 April 2013]
Introduction
[1] Mr Deliu sues Mr Hong in tort for things said and done in mid-2010. Mr Deliu is a barrister. Mr Hong is a conveyancing solicitor. Since mid-2010 a substantial body of litigation has grown out of the issues between them. The background is captured at the start of the judgment of Winkelmann J in a judicial review proceeding, Deliu v Hong1 which records:
[1] In May 2010 two junior barristers in Mr Deliu’s chambers, were retained as counsel in proceedings issued against a conveyancing solicitor, Mr Hong. Mr Hong responded to service of those proceedings upon him by sending a letter to the two barristers asserting that the proceedings were without merit, and threatening he would take various steps if they did not withdraw the action against him. Mr Deliu regards himself as the senior member of the chambers, and so took it upon himself to respond to Mr Hong, and to lay a complaint with the New Zealand Law Society (the Law Society) about the contents of Mr Hong’s letter. Sometime later, Mr Hong laid a complaint with the Law Society about Mr Deliu.
[2] There ensued a period of months during which Mr Deliu and Mr Hong exchanged insults and threats in correspondence with each other, often copying the Law Society into their correspondence and seeking to enlarge the scope of their respective complaints. The Law Society continued to receive the correspondence and, on occasion, forward it to the other party to other party for comment.
[2] In a judgment also delivered today, I have dismissed an application by Mr
Hong as defendant to strike out Mr Deliu’s statement of claim.2
[3] In this judgment, I determine an application by Mr Deliu for an order striking
out Mr Hong’s defence or, alternatively, requiring Mr Hong to re-plead.
The statement of claim and the statement of defence
[4] What I will refer to as the statement of claim and the statement of defence are each in their second amended versions.
[5] Mr Deliu’s second amended statement of claim runs to 27 pages of pleadings with an additional 16 pages of particulars attached. In the claim, Mr Deliu sues Mr
1 Deliu v Hong [2012] NZHC 158.
2 Deliu v Hong [2013] NZHC 735.
Hong in tort on four causes of action, namely abuse of process, malicious prosecution, intentional infliction of emotional distress and defamation or malicious falsehood.
[6] Mr Hong’s somewhat briefer statement of defence is attached to this judgment as Schedule A. In it, he pleads to the paragraphs in the statement of claim individually, separately and in order. In the last paragraph of the statement of defence, Mr Hong pleads four alternative defences (all in relation to the defamation/malicious falsehood claim).
Overview
[7] It is fair to say that in the course of early case management and even in the context of trial, the Court sees pleadings which are less comprehensible than this statement of defence. That is not to say that a frequent occurrence of poor pleading in other litigation justifies poor pleading in this. But the immediate impression given by this statement of defence is that it is a genuine endeavour to identify for the Court and the other parties the matters that are not in issue and the matters that are in issue. It is against that background that I elect in this judgment to deal with Mr Deliu’s specific criticisms of specific paragraphs before arriving at my conclusion, which is that the appropriate order in relation to these applications is that Mr Hong file and serve a further amended statement of defence dealing with some defects in the current pleading. To the credit of Mr Banbrook, who appeared for Mr Hong, most of the points at which I consider additional or clearer pleading should be provided were accepted by Mr Banbrook, in the course of his submissions, as improvements that can be made to the pleading.
[8] Mr Deliu, in making a strike out application, rather than simply seeking further and better particulars, had apparently drawn some confidence from observations in the judgment of Associate Judge Bell on 17 June 2011. His Honour
described Mr Hong’s pleadings (at the time, his original statement of defence) as leaving a lot to be desired.3 Associate Judge Bell added:
… In Marshall Futures Ltd v Marshall, Tipping J, rather colloquially, drew a distinction between pleadings that were a total wreck compared with those which might be the subject of effective repair. I will not go into full details as to the defects of Mr Hong’s pleadings, but they are a total wreck and if Mr Hong were to continue, he would have to start completely afresh.4
[9] The pleaded defence before me is, when compared to the original pleading, completely fresh. I deal with it on its current merits.
Correct pleading – the requirements
[10] Specific requirements for the correct pleading of a defence are contained in r 5.48 High Court Rules which provides:
5.48 Requirements of statement of defence
(1) The statement of defence must either admit or deny the allegations of fact in the statement of claim, but a defendant does not have to plead to an allegation that does not affect that defendant.
(2) A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.
(3) An allegation not denied is treated as being admitted. (4) An affirmative defence must be pleaded.
(5) The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant's defence.
3 Deliu v Hong HC Auckland CIV-2010-404-6349, 17 June 2011 at [11] (under heading “The
Applications Today).
4 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 324.
[11] Further requirements for the pleading of a defence are to be found in r 5.17 which provides:
5.17 Distinct matters to be stated separately
(1) Distinct causes of action and distinct grounds of defence, founded on separate and distinct facts, must if possible be stated separately and clearly.
(2) If a party alleges a state of mind of a person, that party must give particulars of the facts relied on in alleging that state of mind.
(3) A state of mind includes a mental disorder or disability, malice, or fraudulent intention but does not include mere knowledge.
[12] In relation to defamation proceedings. s 38 Defamation Act 1992 provides for particulars in relation to defences of truth and honest opinion in this way:
38 Particulars in defence of truth
In any proceedings for defamation, where the defendant alleges that, in so far as the matter that is the subject of the proceedings consists of statements of fact, it is true in substance and in fact, and, so far as it consists of an expression of opinion, it is honest opinion, the defendant shall give particulars specifying—
(a) The statements that the defendant alleges are statements of fact; and
(b) The facts and circumstances on which the defendant relies in support of the allegation that those statements are true.
[13] For reasons I come to, I find in this case that Mr Hong’s pleading is not the “total write-off” referred to by Tipping J in Marshall Futures but rather in the category his Honour described as “one which is deficient but is capable of effective repair”.
The particular pleadings objected to by Mr Deliu
[14] Mr Deliu maintained in his submissions that the statement of defence as a whole was a wreck and should be struck out on that basis. That said, he identified particular paragraphs in the defence as examples of defective pleading. I will now examine in order the paragraph in the statement of defence which Mr Deliu asserts to be defective.
[15] Mr Hong is responding to an allegation as to Mr Deliu’s writing a letter urging Mr Hong to retract his threats contained in the correspondence sent to Mr Deliu and others.
[16] Mr Deliu’s complaint in essence is that the pleading in response contains more than it should and goes beyond a proper response to the statement of claim.
[17] I find (as Mr Banbrook accepted) that the single defective aspect of the paragraph 3 pleading is the final clause:
… and on that ground cannot support any of the pleaded causes of action.
[18] I note that that is a formula which Mr Banbrook elected to reproduce throughout the statement of defence. I accept the thrust of Mr Deliu’s submission that this is a formula that does not belong in a statement of claim, either singly or repeatedly. The assertion that pleaded facts do not support a pleaded cause of action can be viewed as either an argument or a statement of law, or both. The pleading is not the place for that.
[19] Mr Banbrook, in his submissions, offered to better particularise the reasons that the particular facts do not support a particular cause of action. In my judgment, to do so would only exacerbate a situation whereby legal submissions or arguments has been introduced into pleading of fact.
[20] I will accordingly be directing that the words in question be deleted from paragraph 3 and all other paragraphs in which that formula occurs.
Paragraph 5
[21] In paragraph 5 of the statement of claim, Mr Deliu pleads that Mr Hong wrote to him (Mr Deliu), and to three others, and also lodged a cross-complaint and/or request for the Law Society’s urgent intervention if possible against Mr Deliu and his company, Amicus Lawyers Ltd, with the Law Society. Mr Deliu then
pleaded a number of particulars of alleged scandalous allegations and alleged scurrilous behaviour.
[22] Mr Deliu objects to that part of Mr Hong’s pleading to paragraph 5 in which Mr Hong alleges that his letter was privileged under s 14 Defamation Act as it was part of the Law Society complaint process. In his written submissions, Mr Deliu submitted that Mr Hong had provided no particular as to how a limited absolute judicial privilege attaches to Law Society processes. Mr Deliu submits that Mr Hong’s failure to provide particulars or explanation in relation to the allegation means that it is not possible for Mr Deliu to formulate and file the reply which is required to be made to an affirmative defence by reason of r 5.62 High Court Rules. My reading of Mr Hong’s paragraph 5 is that he has stated the fact upon which he relies in order to invoke the privilege under s 14 of the Act, namely that his letter was written as part of the complaint process. The reasoning by which he will at trial submit that that fact leads to the claimed privilege is a matter for argument, rather than pleading. If, on the other hand, Mr Hong intends at trial to rely on any other facts relating to his correspondence in the disciplinary proceedings, then those have to be stated if they are to be relied on at trial. For now, Mr Deliu has received through paragraph 5 of the defence a pleading of fact which factually explains (whether or not it legally justifies) the claim of privilege. Mr Deliu is able to file a reply on that basis. There is not a requirement for further particulars.
Paragraph 6
[23] Paragraph 6 of the statement of claim deals with further correspondence from Mr Hong to the Law Society. The complaint of Mr Deliu is parallel to that of paragraph 5. In his defence in paragraph 6, Mr Hong identifies the letter as having been written “in further respond (sic) to the Plaintiff’s further complaint ...”, explaining the claim of privilege.
[24] My conclusion in relation to paragraph 5 applies equally to paragraph 6.
[25] In paragraph 7 of the statement of claim, Mr Deliu alleges that Mr Hong wrote to him and to others and without cause advised them that they should reconsider their high regard of Mr Deliu, that Mr Deliu was unfit to be a head of a barrister’s chambers and without cause threatened Law Society complaints against them.
[26] Mr Hong’s pleading admits that he wrote the letter to Mr Deliu and copied it to the Mas’ counsel and instructing solicitor. (This is an apparent identification of the positions occupied by the other people referred to in the statement of claim). Mr Hong adds in his pleading that the letter was written in the context of the Mas’ action, is therefore privileged and cannot support any of the pleaded causes of action.
[27] Mr Deliu’s objection to this pleading is that it does not respond fully to the allegation. He said that what is missing is a specific response to the allegation as to the advice that was contained in the letter and as to the allegation that the advice was without cause. Given that Mr Deliu seeks a specific answer to the pleading and that other particulars will be ordered, I will include an order in relation to paragraph 7 in the order to be made. There is an argument that such a direction may not be strictly necessary. That is because it is at least arguable that r 5.48(3) of the High Court Rules specifically deals with the concern raised by Mr Deliu. As Mr Hong’s pleading at present stands, he is taken to have admitted the allegations which he has not specifically responded to. But, with Mr Deliu’s focus perhaps more on r 5.48(2) which requires a fair and substantial answer to be given, I am prepared in the context of the range of particulars required in this case to encompass paragraph 7 within the order.
Paragraph 10
[28] In paragraph 10 of the statement of claim, Mr Deliu alleges that Amicus Lawyers Ltd had received instructions from a named solicitor to commence another set of proceedings against Mr Hong (the Wang proceedings). The pleading adds that
on 5 August 2010 Mr Hong wrote to Mr Deliu, Mrs Chu and Mr Ram and without cause accused Mr Deliu of not being a good lawyer.
[29] Mr Deliu had two objections to Mr Hong’s pleading in his statement of defence. In Mr Deliu’s written submissions he suggested that paragraph 10 of the statement of defence does not plead to the allegation in the claim. In his oral submissions, Mr Deliu submitted that paragraph 10 of the statement of defence should be struck out or required to be amended because it is prolix.
[30] While prolixity may be a valid objection in appropriate cases, I do not find Mr Hong’s pleading at paragraph 10 to be prolix. Mr Hong does plead in relation to the allegation which involves him, namely the correspondence of 5 August 2010. He then adds factual material apparently to put the correspondence in context (from which base he will presumably make submissions at trial). At most, there is a failure to plead to the first sentence of paragraph 10 of the claim in which reference is made to instructions received by Amicus Lawyers Ltd from another solicitor. By reason of r 5.48(3), that allegation is taken to be admitted.
Paragraph 11
[31] In his pleading to paragraph 11, Mr Hong states that he has been unable to locate an item of correspondence pleaded in paragraph 11 of the statement of claim and says that he has no knowledge of it. He goes on to state that in the event the letter was written, it is part of the complaints process and is therefore privileged under s 14 of the Defamation Act.
[32] Mr Deliu submits that this pleading improperly contains evidence. I took him to mean that the statement that Mr Hong had not been able to locate the correspondence was unnecessary. In traditional pleading formulation, it would have been sufficient for Mr Hong to simply plead that he had no knowledge of the item. It would then be for Mr Hong to deny the allegation on that basis, if he wished to. Mr Hong has not denied the allegation and it is again therefore taken to be admitted by r
5.48(3).
[33] In the context of the other orders I intend to make, it is convenient to have Mr Hong delete the reference to his inability to locate correspondence, although in the normal course, I would have viewed this as a trifling departure from pleading rules.
Paragraph 12
[34] Paragraph 12 of the statement of claim reads:
On or about 24 August 2010, the defendant e-mailed Messrs Zhao, Ram and
Baker, Ms Cato and NZLS.
PARTICULARS OF ALLEGED SCURRILOUS BEHAVIOUR
the defendant without cause, said he laughed at the first plaintiff ’s work.
[35] Mr Hong’s pleading to paragraph 12 contains an admission that he wrote the correspondence and then goes on to place it in a factual context, in parallel with his pleading to paragraph 10.
[36] Mr Deliu’s written submission, framed in inappropriate terms, was that paragraph 12 suffered from a chronic inability to admit, deny or otherwise not plead to a matter as required. Mr Deliu did not further develop that point in oral submission.
[37] I do not find Mr Hong’s paragraph 12 to be defective.
Paragraph 13
[38] At paragraph 13, Mr Deliu pleads that on or about 15 September 2010, Mr Hong wrote to Mr Deliu, Messrs Zhao and Ram, Mrs Chu and further complained to the Law Society about the plaintiffs (with numerous particulars of alleged scandalous and scurrilous behaviour then given).
[39] Mr Hong’s pleading to paragraph 13 is lengthy. It begins with his admission that he wrote the correspondence. It then, in a similar way to his pleadings at paragraph 6 and 10, makes statements as to the context of the 15 September 2010 letter including in relation to two of the persons identified in Mr Deliu’s paragraph
13. It then concludes by stating that the letter was written in the context of the complaints process with the Law Society and is therefore privileged under s 14 of the Defamation Act.
[40] In his written submissions, Mr Deliu criticised the paragraph 13 defence by suggesting that it is impossible to understand, especially when juxtaposed with its simple sister allegation in the claim. In his oral submissions, Mr Deliu suggested that the paragraph 13 pleading could be broken down into specific denials and admissions and particulars could be given in relation to the claim of privilege.
[41] I reject Mr Deliu’s suggestion that paragraph 13 is impossible to understand. While its very length in a single sentence makes it difficult to follow, its various allegations of fact are relatively straightforward. That said, it does not meet the reasonable needs of simplicity of understanding, a criticism which Mr Banbrook accepted in his submissions. There will be an order for this paragraph to be broken down into specific denials and admissions. Where positive allegations are to be stated in defence, they are to be individually identified.
[42] As in relation to my previous conclusions concerning the privilege claim, I observe that there is clearly within paragraph 13 a single allegation of fact supporting the privilege claim, namely that the letter was written in the context of the complaints process. The pleading has stated that particular and it is not for the Court to require the defendant to supplement his case with facts on which he does not intend to rely.
Paragraph 14
[43] At paragraph 14 of the statement of claim, Mr Deliu makes an allegation as to a letter written by Mr Hong to the District Court and copied to other people. The pleading contains an allegation that Mr Deliu was at that point collaterally acting for Messrs Zhao and Ram in a counterclaim that Mr Hong had brought against them in the Ma proceedings. The paragraph goes on to allege that Mr Hong without cause accused Mr Deliu of being unprofessional and threatened that if Mr Deliu did not
withdraw a part of the strike out application, then Mr Hong would “air [Mr Deliu’s]
dirty laundry”.
[44] In his pleading to paragraph 14, Mr Hong admits that he wrote the correspondence, states that it was written to Mr Deliu, and goes on to add his relatively standard pleading as to it having been written in the context of the Mas’ action and therefore privileged.
[45] In his written submission, Mr Deliu asserted that the s 14 defence is manifestly unsustainable when compared with the claim. He added to this in oral submissions by submitting that the paragraph is confusing and needs to be clarified.
[46] I accept Mr Deliu’s latter criticism of the paragraph. By his pleading that the correspondence was written to Mr Deliu, Mr Hong implicitly appears to be saying that he denies that the letter was written to the other named persons or organisations. Admissions and denials should be express. There will be an order to that effect in relation to paragraph 14.
Paragraph 15
[47] Paragraph 15 of the statement of claim is extensive, running to 20 lines. It is somewhat ironic that Mr Deliu objects to Mr Hong’s pleading in defence when Mr Deliu’s paragraph 15 is drafted so unsatisfactorily itself. Mr Deliu’s paragraph, in breach of the expectations of pleading, contains a number of factual assertions including in relation to different dates. The pleading might have elicited a clearer defence response, if it had been clear itself. Mr Banbrook, however, accepted that in some particulars, the paragraph 15 defence could be made clearer. In his oral submissions, Mr Deliu had identified a reference in Mr Hong’s pleading to “that letter” when Mr Deliu’s pleading refers to a “memorandum”. The point is minor and would not normally warrant the Court’s attention, but clarification will be ordered, as Mr Banbrook offered.
[48] In other respects, Mr Hong’s paragraph 15 pleading is succinct and follows
the pattern of earlier paragraphs, admitting that he filed the memorandum as alleged,
before going on to place the memorandum and correspondence in context and raising his privilege claim. I adopt my earlier observations as to that aspect of pleading.
Paragraph 16
[49] Mr Deliu objects to Mr Hong’s pleading to paragraph 16 of the statement of claim. In the claim, it is alleged that Mr Hong without cause made specified statements about Mr Deliu (my emphasis). Mr Deliu’s paragraph 16 then contains in a separate sentence an allegation that on the same day, Mr Hong stated that he (Mr Hong) had obtained Mr Deliu’s credit report.
[50] In Mr Hong’s defence pleading, he admits that he issued the email correspondence identified. He then, in a parallel way to previous paragraphs, places the correspondence in context and asserts privilege.
[51] The paragraph is open to a similar criticism to some of Mr Hong’s earlier pleadings in that although he has expressly admitted one matter (the issuing of the correspondence and copying it to one named person), he has not expressly admitted or denied other aspects of the paragraph. Thus, there is no specific pleading to the “without cause” allegation which in the circumstances should be pleaded to.
[52] It appears the second sentence in Mr Deliu’s paragraph 16 allegations was
simply overlooked and there will be a direction to plead to that.
Paragraph 17
[53] At paragraph 17 of his claim, Mr Deliu pleads the detail of a letter or memorandum by Mr Hong addressed to the High Court on 27 September 2010 which was never filed. It was however sent to Mr Deliu and to other people. Mr Deliu alleges that without cause Mr Hong, in the letter, accused Mr Deliu of being a criminal.
[54] Mr Hong’s pleading in defence admits that he did issue the email to his
counsel, copied to Mr Deliu, enclosing a memorandum to the High Court in relation
to the injunction proceeding which his counsel did not file. Mr Hong adds that the communication was between client and counsel in the context of the litigation and was therefore privileged.
[55] Mr Deliu criticises the paragraph 17 pleading. His written submission asserts that any lawyer/client privilege was waived if the communication was released to a third party, so the pleading is unsustainable in law. By its nature, this criticism requests the Court to strike out part of the statement of defence, rather than to order further and better particulars. In his oral submissions, Mr Deliu added the observation that the claim of privilege makes no sense on the pleaded facts.
[56] Mr Banbrook accepted that the paragraph 17 defence requires clarification as to the precise circumstances which are said to give rise to the privilege claim.
[57] In the context of a hearing which focused primarily on having the defendant better particularise its claim, with little argument developed as to the precise requirements of solicitor/client privilege, I view the more appropriate course as being to order Mr Hong to provide further and better particulars of the privilege claim.
Paragraph 18
[58] In paragraph 18 of the statement of claim, Mr Deliu alleges that as a result of Mr Hong’s unprivileged publication to third parties of allegations against Mr Deliu, his personal, business and/or professional reputation have been harmed and he has suffered damage.
[59] In his paragraph 18 pleading, Mr Hong states the identity of the persons or bodies to whom correspondence was sent and in relation to what proceeding or transaction it was sent. He asserts that, in any event, correspondence complained of is privileged.
[60] Mr Deliu criticises this pleading for not identifying the kind of privilege which is asserted to exist.
[61] Mr Banbrook accepts that the kind of privilege claimed needs to be particularised and that will be ordered.
Paragraphs 20 and 21
[62] In paragraphs 20 and 21 respectively, Mr Deliu repeats his prior allegations and says (paragraph 20) that Mr Hong has committed the tort of abuse of process and (paragraph 21) that Mr Hong has committed the tort of malicious prosecution. In relation to each pleading, he identifies elements of the relevant tort which he alleges have existed.
[63] In his defence to paragraphs 20 and 21, Mr Hong repeats his pleading in relation to the earlier paragraphs. He submits (for stated reasons) that the particular tort claimed is untenable in law.
[64] Mr Deliu’s criticism of the defence pleading is that while Mr Deliu as plaintiff pleads factually the various ingredients of each tort, Mr Hong does not plead a specific response to each aspect. So, for instance, in relation to the tort of abuse of process, Mr Deliu begins by saying that it was “by filing and pursuing frivolous and/or vexatious Law Society complaints …” and that it was “for ulterior motives”. While it may be possible to read the earlier pleadings in relation to earlier paragraphs and to infer from that Mr Hong’s response, the appropriate course is for Mr Hong, as well as adopting his reply to earlier paragraphs, to plead specifically to what is contained in paragraph 20 and 21. There will be directions accordingly.
Paragraph 22
[65] Paragraph 22 contains Mr Deliu’s pleading of the tort of intentional infliction of emotional distress. He pleads that Mr Hong committed the tort by intentionally or recklessly engaging in specified conduct (my emphasis).
[66] Mr Hong’s response contains one specific denial of allegations (namely a denial that the correspondence was intended to cause, or did cause Mr Deliu emotional distress), but does not plead specifically to the allegation of recklessness.
[67] In his defence (at paragraph 22(b)) Mr Hong, having denied an intention to cause emotional distress and having denied causation, asserts:
On the contrary, the conduct of the Plaintiff has at all material times been belligerent, forceful and threatening to the Defendant.
[68] Mr Deliu makes two criticisms of this pleading. First, while Mr Hong pleads to the allegation of intention, he does not plead to the allegation of recklessness. Such should be pleaded to make Mr Hong’s position clear.
[69] Secondly, Mr Deliu criticises the inclusion of paragraph 22(b) on the basis that it appears to be the pleading of some novel defence which is not sustainable. I accept that paragraph 22(b) should be deleted. I do so on the basis that the allegation is at the very most evidence and is not a matter which requires pleading. Mr Banbrook appeared to accept that in his submissions in response.
[70] To the extent that paragraph 22 contains (in paragraph 22(c)) Mr Hong’s relatively standard assertion that a particular pleading is “untenable on the facts alleged in the pleading of the plaintiff”, that aspect of the pleading will like all the other earlier instances be directed to be omitted.
Paragraph 23
[71] Paragraph 23 of the statement of claim is Mr Deliu’s pleading of his defamation or malicious falsehood cause of action. When the particulars are included, paragraph 23 extends to 10 pages, while the narrative aspect of paragraph
23 occupies 13 lines. As with some of Mr Deliu’s earlier paragraphs, it is a single sentence containing a number of assertions.
[72] Mr Hong’s response to paragraph 23 contains his repeating of his earlier pleadings and two positive allegations. First, he pleads that some correspondence was in a complaints context. He asserts privilege for that correspondence under the Defamation Act. Secondly, he puts other communications in the context of litigation and asserts litigation privilege.
[73] Mr Deliu criticises the paragraph 23 defence for not pleading to the specific allegations in the claim. Mr Deliu’s claim pleads five aspects of Mr Hong’s statements beginning with an allegation that the publications tended to lower Mr Deliu in the estimation of right-thinking members of society and the legal profession. Mr Deliu submits that there ought to be an express pleading by way of defence to each pleaded aspect of paragraph 23.
[74] This raises a similar issue to that which arose in paragraphs 20 and 21, and the elements of the torts there pleaded. It is appropriate that Mr Hong plead to the specific factual elements identified in paragraph 23 of the claim. Such particulars will be directed.
Outcome in relation to particulars
[75] In the order to be made, there will be directions as to the filing of further particulars or the amending of the allegations contained in many of the paragraphs identified by Mr Deliu as inappropriately pleaded. In a few cases, no direction will be made.
Costs
[76] It would normally be appropriate in relation to this application that costs follow the event. However, Mr Deliu has appeared for himself without a solicitor instructed.
[77] In the circumstances, I will reserve costs.
Order
[78] I order:
(a) That the defendant within 15 working days file and serve by way of further and better particulars an amended statement of defence which
addresses the following (with reference to the paragraph numbers in the second amended statement of defence):
(i)Paragraph 3 (and all succeeding paragraphs in which the same wording appears) – deleting the words (or words to similar effect) that “and on that ground cannot support any of the pleaded causes of action”.
(ii)Paragraph 7 – a specific response to the allegations in paragraph 7 of the statement of claim as to the advice that was contained in the letter of 9 June 2010 and as to the allegation that the advice was without cause.
(iii)Paragraph 11 – deleting the reference to an inability to locate correspondence.
(iv)Paragraph 13 – breaking down the pleading into specific denials and admissions and distinctly pleading any positive allegations.
(v)Paragraph 14 – breaking down the pleading into specific denials and admissions.
(vi)Paragraph 15 – breaking down the pleading into specific denials and admissions.
(vii)Paragraph 16 – expressly pleading to the “without cause” allegation in paragraph 16 of the statement of claim and in relation to the allegations contained in the second sentence of paragraph 16 of the statement of claim.
(viii)Paragraph 17 – particularising the precise circumstances which are alleged to give rise to the claim of privilege.
(ix) Paragraph 18 – particularising the kind of privilege claimed.
(x) Paragraphs 20 and 21 – pleading specifically to what is contained in paragraphs 20 and 21 of the statement of claim.
(xi) Paragraph 22 – providing an express response to the allegation of recklessness contained in paragraph 22 of the statement of claim and deleting paragraph 22(b) of the current pleading.
(xii) Paragraph 23 – specifically pleading to the factual elements particularised in paragraph 23 of the statement of claim.
(b) Except to the extent the order at [78](a) requires further particulars,
Mr Deliu’s application is dismissed.
(c) Costs are reserved.
Associate Judge Osborne
Solicitors:
F C Deliu, PO Box 68559, Newton 1145, Auckland
B G Hong Law Firm, PO Box 233, Shortland Street, Auckland 1010
Counsel: A D Banbrook, PO Box 105870, Auckland 1140
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