Rafiq v Yahoo! New Zealand Limited

[2014] NZHC 3196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1893 [2014] NZHC 3196

BETWEEN	RAZDAN RAFIQ Plaintiff
AND	YAHOO! NEW ZEALAND LIMITED Defendant

Hearing:	3 December 2014
Appearances:	Plaintiff in person B Thomson appearing for Defendant
Judgment:	12 December 2013

JUDGMENT OF TOOGOOD J [Application to review decision of Associate Judge]

This judgment was delivered by me on 12 December at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

RAFIQ v YAHOO! NEW ZEALAND LIMITED [2014] NZHC 3196 [12 December 2013]

Introduction

[1]      In  this  proceeding  the  plaintiff,  Razdan  Rafiq,  claims  damages  for  the publication of allegedly defamatory statements about him made by contributors to the “Comments” section of a website allegedly controlled by the defendant.   He seeks  compensatory damages  of  $30 million  (reduced  from  $100  million  in  the amended  statement  of  claim  dated  4  September  2014);  aggravated  damages  of

$5 million;  exemplary  damages  of  $5 million;  and  an  injunction  requiring  the

defendant to remove “all the impugned website statements.”

[2]      The defendant applied for security for costs, which application was dealt with by Christiansen AJ in an oral judgment delivered on 25 November 2014 after a hearing that day.1   The Associate Judge concluded that an order for security for costs should be made and directed Mr Rafiq to provide security in the sum of $9,949 for costs up to the point where a statement of defence is to be filed, such security to be provided to the Registrar of the High Court by 30 January 2015.   The Associate Judge fixed costs on the application for security on a 2B basis, together with disbursements approved by the Registrar.

[3]      On the day of the judgment, Mr Rafiq made an interlocutory application under s 26P(1) of the Judicature Act 1908 for a review of the Associate Judge’s decision.  Counsel for the defendant filed a comprehensive and helpful notice of opposition to the application for review and I heard Mr Rafiq’s oral submissions in support of the application on 3 December 2014.

The grounds for review of the Associate Judge’s decision

[4]      Mr Rafiq’s application for review is based on the following grounds specified in the application:

2.1At the onset of hearing the plaintiff protested against the Associate Judge from these proceedings and requested for a hearing in December before another Judge but he refused.

1      Rafiq v Yahoo! New Zealand Limited [2014] NZHC 2955.

2.2The Associate  Judge  elected  to  conduct  the  hearing  without  the plaintiff.   The plaintiff was not able to contest the defendant’s application for security for costs.

2.3      The  Associate  Judge  failed  to  consider  the  plaintiff’s  notice  of

opposition.

2.4The submissions filed by the defendant to support the security for costs application did not reflect the matters raised by the plaintiff in his second amended statement of claim.

2.5The Associate Judge erred in its decision by concluding that the plaintiff was suing in respect to the allegations made in the article.

2.6The Associate Judge failed to consider that the plaintiff was only attempting to sue the defendant in respect to the statements made in the comments box.

2.7It appears that the Associate Judge tailored its judgment to support the application made by the Attorney General to declare the plaintiff as a vexatious litigant which shall never succeed.

2.8It appears that is a High Court’s strategies to preclude the plaintiff from appealing to Supreme Court via Court of Appeal by allowing an Associate Judge make decision in chambers.

2.9The  plaintiff  is  not  prohibited  from  specifying  the  amount  of damages  unless  it  is  a  newsmedia  as  per  section 43  of  the Defamation Act 1992.  Therefore, the Associate Judge cannot critic the plaintiff amount of respective damages.

[5]      In his oral submissions, Mr Rafiq emphasised the argument that the Judge had misunderstood the nature of his claim and had not realised that Mr Rafiq was wishing to sue the defendant only in respect of the statements made in the Comments section of the website, rather than allegations made in an article posted on the website.  He also explained that he did not object to the Associate Judge hearing the application for security but rather that he suggested that the issues were too complex for him.  The plaintiff also explained the basis for the substantive claim and argued that if the claims for damages were excessive they could be overridden by the Court.

Discussion

[6]      The application for security for costs fell to be determined under r 5.45 of the

High Court Rules.  Before exercising his discretion to order the giving of security for

costs,2 the Associate Judge was required to be satisfied that there is reason to believe that the plaintiff will be unable to pay the defendant’s costs if the plaintiff is unsuccessful in the proceeding.3

[7]     Associate Judge Christiansen concluded that because Mr Rafiq is an undischarged bankrupt there were no reasonable grounds to believe that he could pay costs if his claim was unsuccessful.  He was entitled to reach that view.

[8]      Christiansen AJ  then  turned  to  consider  whether  he  should  exercise  his discretion in favour of making the order sought.  On a review of the exercise of a discretion to order security for costs under r 5.45(2), the party seeking review must

satisfy the Court:

(a)	that the Associate Judge’s decision was wrong in that it rested on unsupportable findings of fact and/or that wrong principles of law had
been applied;4 or
(b)	that the Judge’s decision was wrong in principle or that it failed to
take into account some relevant matter or that it took into account some irrelevant matter.5
[9]	It is	not correct that Christiansen AJ prevented Mr Rafiq from contesting the

defendant’s application for security for costs.  Mr Rafiq chose to leave the courtroom when the Associate Judge declined to adjourn the hearing so that it could be conducted by another Judge.  The application was within the jurisdiction of an Associate Judge and properly heard by him.  In the judgment under review, the Associate Judge noted that he had read the written submission filed by Mr Rafiq in opposition to the application for security and I infer that he had also considered the

notice of opposition.

2      Rule 5.45(2).

3      Rule 5.45(1)(b).

4      Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd (2002) 16 PRNZ 107 (HC) at

[13].

5      Alex Harvey Industries Ltd v Commissioner of Inland Revenue (2001) 15 PRNZ 361 (CA) at

[12]-[15].

[10]     There is no basis for Mr Rafiq’s claim that the Associate Judge’s decision was “tailored … to support the application made by the Attorney General to declare … (him) a vexatious litigant”, nor is there anything in the judgment to suggest that it was designed to preclude Mr Rafiq from exercising any available rights of appeal.

[11]     The Associate Judge was right to make an attempt to assess the merits of Mr Rafiq’s proceeding.  He took an expansive view of the basis for the claim which, necessarily, he was in a position only to summarise as best he could from the pleading.  The Associate Judge considered the pleaded defences and, in respect of the  allegations  regarding  statements  made  by  third  parties  in  the  “Comments” section, addressed particularly the defendant’s available defence of honest opinion under s 10(2)(b)(ii) of the Defamation Act 1992.  He was entitled to conclude that Mr Rafiq’s claim has little or no merit.

[12]     In any event, the Associate Judge dealt with the issue of whether the granting of security for costs would have the effect of stifling the proceeding by ordering security to be paid in a sum limited to an amount which was appropriate up to the point where a statement of defence is to be filed, rather than burdening Mr Rafiq with security in a sum relative to the costs of the entire proceeding.

[13]     So far as the quantum of the plaintiff’s claim is concerned, Christiansen AJ did no more than recite the various iterations of the claim as pleaded from time to time.   He made no comment, adverse or otherwise, on the amounts of the sums sought.

Conclusions and decision

[14]     I am not persuaded that the order made by the Associate Judge was outside his jurisdiction or that he erred in the exercise of his discretion.

[15]     I dismiss the application for a review of the order for security for costs made on 25 November 2014.

Costs

[16]     If the defendant wishes to apply for costs in respect of this application, it shall do so by memorandum filed and served not later than 19 December 2014. Mr Rafiq shall have until 16 January 2015 to respond by memorandum.  Costs shall then be dealt with on the papers unless the Court directs otherwise.

……………………………..

Toogood J