Syed v Malik - [2023] NZHC 496

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-404-530

[2023] NZHC 496

BETWEEN
ZAINULABIDIM SYED

Plaintiff

AND

AMER FAZAL MALIK

First Defendant

AND

TRINITY JOAN WILSON

Second Defendant

Hearing: 13 March 2023 (via VMR/AVL)

Counsel:

D A Jacques for Plaintiff G A Paine for Defendants

Judgment:

14 March 2023

JUDGMENT OF ISAC J

[Application for trial by judge alone]

Introduction

[1] This defamation proceeding commenced in March 2018. In a decision of 30 August 2018, Churchman J entered judgment for liability against the defendants, Mr Amer Malik and Ms Trinity Wilson.1 He refused judgment on quantum. The procedural history thereafter has been regrettably protracted.

1 Syed v Malik [2018] NZHC 2278 at [72].

SYED v MALIK & ANOR [2023] NZHC 496 [14 March 2023]

[2] In a Minute of 20 August 2020, Associate Judge Paulsen, on an application by the defendants, set the issue of quantum down for a trial before a jury pursuant to s 16(1) of the Senior Courts Act 2016. It appears at the time the application was made the plaintiff did not oppose it.

[3] As a result, a three day trial will commence in the High Court at Dunedin on 20 March 2023 to determine the question of Mr Syed’s entitlement to damages, if any. I convened a case management conference as the assigned trial Judge on 16 February 2023. As I recorded in a Minute of 17 February 2023:

[4] I raised with counsel a question in relation to whether this is an appropriate matter to proceed before a jury. Unlike most jury trials involving a claim in defamation, the current jury will not be permitted to consider the question of liability, that matter having been conclusively determined by a judgment of the Court. Despite that, it seemed likely that the defendants wished to put in issue facts which might be understood by a jury to go to the question of liability. In particular, Mr Paine has indicated that the defendants consider that no reputational damage has been suffered by the plaintiff in light of his reputation within New Zealand. This prompted Mr Jacques to suggest that there may be significant room for evidential objections during the trial, and the need for me to direct on matters of relevance and admissibility, including any elements of the defence that might be res judicata. In addition, there are questions of the just, expeditious and inexpensive determination of the proceeding given there is a risk that the trial of quantum could take as long as a trial involving both liability and quantum.

[4] I therefore directed the plaintiff to file any application under s 16(4) of the Senior Courts Act to have the issue of quantum tried before a judge alone within two working days. Mr Syed duly made such an application and it was opposed by Mr Malik and Ms Wilson. As the defendants wished to be heard in opposition to the application (rather than have the…

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 Syed v Malik

Details

AGLC: Syed v Malik [2023] NZHC 496
Case: [2023] NZHC 496
Decision Date: 14 March 2023

CaseChat Overview and Summary

In Syed v Malik, the plaintiff, Zainulabidin Syed, brought a defamation proceeding against Amer Malik and Trinity Wilson. Syed had previously obtained judgment for liability against the defendants. The issue of quantum was set for a trial before a jury, but Syed applied for the issue to be tried before a judge alone. The court had to decide whether the trial of the issue of quantum should proceed before a jury or a judge alone. The court considered whether the issue involved mainly the consideration of difficult questions of law or required prolonged examination of documents or an investigation that could not conveniently be made with a jury. The court found that the issue involved mixed questions of fact and law and a prolonged examination of documents, making it inappropriate for a jury trial. The court exercised its discretion under s 16(4) of the Senior Courts Act 2016 and ordered that the issue of quantum shall be determined by a judge without a jury. Costs were reserved, and the jury panel was not to be discharged until further order of the court.

Orders