Syed v Malik - [2020] NZHC 1854

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-404-000530

[2020] NZHC 1854

BETWEEN
ZAINULABIDIN SYED

Plaintiff

AND

AMIR FAZAL MALIK

First Defendant

AND

TRINITY JOAN WILSON

Second Defendant

Hearing: 27 July 2020

Appearances:

D A Jacques for Plaintiff G A Paine for Defendants

Judgment:

29 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 July 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SYED v MALIK [2020] NZHC 1854 [29 July 2020]

[1] This is a defamation proceeding which has yet to be set down for trial. This ruling concerns the plaintiff’s applications that:

(a)the defendants pay costs on an indemnity basis in relation to their unsuccessful application for further discovery;1 and

(b)the defendants pay the costs of the proceeding on a 2B basis up to 2 June 2020.

[2]The defendants oppose the applications on the bases that:

(a)in relation to the discovery application:

(i)they are legally-aided;

(ii)there are no exceptional circumstances justifying the making of an order of costs against them;

(iii)it would not be reasonable to make an award of costs having regard to all the circumstances;

(b)in relation to the costs of the proceeding to 2 June 2020:

(i)costs have already been dealt with by the court; and

(ii)it is premature for costs to be awarded when the proceeding has yet to be determined.

Background

[3] The plaintiff and the first defendant had business-dealings, but their relationship soured. From around October 2016, the defendants began distributing on social media defamatory material concerning the plaintiff intending to damage his reputation.

1 Syed v Malik [2020] NZHC 1303.

[4] The plaintiff commenced this proceeding for defamation. The defendants admitted their statements were defamatory and did not plead the defence of truth. In a written judgment of 30 August 2018, Churchman J entered judgment for the plaintiff under High Court Rule 15.15 as to liability only.2 He was critical of the plaintiff’s claim in certain respects3 and ordered costs on the application for judgment were to lie where they fell.4

[5] Since Churchman J issued his judgment the case has progressed in fits and starts. One reason for this is the defendants have had difficulty obtaining legal aid. There have been several conferences and various interlocutory applications. Notably, on 13 November 2018, the defendants filed an application to set aside the judgment as to liability. After delays, the application was set down to be heard on 11 December 2019. The defendants chose not to pursue it and the application was dismissed by Associate Judge Lester on 9 December 2019. Costs were reserved pending the hearing as to damages.

[6] At a telephone conference on 5 March 2020, the plaintiff sought directions for the hearing to determine damages. The defendants resisted because they wanted to apply for further discovery. I made a direction for the filing of an application for discovery. The defendants filed the application and…

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 [2020] NZHC 1854
Case: [2020] NZHC 1854
Decision Date: 29 July 2020

CaseChat Overview and Summary

This proceeding concerns a defamation claim brought by Zainulabidin Syed against Amir Fazal Malik and Trinity Joan Wilson. The defendants are the subject of an interlocutory judgment concerning the plaintiff's applications for costs in relation to an unsuccessful application for further discovery and costs of the proceeding up to 2 June 2020. The defendants opposed the applications on the basis that there were no exceptional circumstances justifying an award of costs against them and it would not be reasonable to award costs given their financial circumstances.

The court found that there were exceptional circumstances justifying an award of costs against the defendants in relation to their unsuccessful application for further discovery. The application was misconceived, an abuse of process, oppressively broad and advanced in an unreasonable manner. However, the plaintiff was awarded costs on a 2A basis because there was insufficient information provided to determine the actual costs incurred. The plaintiff's application for costs of the proceeding up to 2 June 2020 was dismissed as it was premature to fix costs while the proceeding was yet to be determined.

The court awarded the plaintiff costs in respect of the defendants' application for particular discovery on a 2A basis. The plaintiff's application for costs of the proceeding up to 2 June 2020 was dismissed. Counsel were directed to file a joint memorandum of the timetable orders sought to trial.

Orders