Syed v Malik - [2020] NZHC 1303

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-404-000530

[2020] NZHC 1303

BETWEEN
ZAINULABIDIN SYED

Plaintiff

AND

AMIR FAZAL MALIK

First Defendant

AND

TRINITY JOAN WILSON

Second Defendant

Hearing: 3 June 2020

Appearances:

D Jacques for Plaintiff

G A Paine for Defendants

Judgment:

11 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 11 June 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SYED v MALIK [2020] NZHC 1303 [11 June 2020]

[1] The plaintiff sues the defendants in defamation. On 30 August 2018, Churchman J entered judgment against the defendants as to liability.1 There has yet to be a hearing to assess damages.

[2] Since judgment was entered, there have been procedural skirmishes. This ruling concerns the most recent of those. The defendants apply for particular discovery of financial records of the plaintiff, companies with which the plaintiff is associated and his family trust. The application is advanced on the basis the discovery is required to prove instances of misconduct by the plaintiff in mitigation of damages in reliance upon s 30 of the Defamation Act 1992 (s 30).

[3] The application for particular discovery is misconceived. The discovery sought is not relevant to any inquiry the court may make under s 30 and is a collateral attack upon the judgment entered against the defendants. To order discovery in those circumstances would be oppressive and disproportionate and the application is an abuse of process.

Some background

[4] Zainulabidin Syed (Mr Syed) and Amir Malik (Mr Malik) had business dealings. Their relationship soured. There were court proceedings between Mr Malik and one of Mr Syed’s companies, Syed Family Ltd.2 Mr Malik was unsuccessful. Those proceedings were a catalyst for the defendants to begin a campaign to discredit Mr Syed.

[5] From around October 2016, the defendants began distributing defamatory material about Mr Syed on social media which caused him to issue this proceeding. Something of the scope and tenor of the defendants’ campaign can be discerned from the fact the statement of claim comprised 20 causes of action in 170 paragraphs and sought damages of more than $12,000,000. The content of the material was extreme. It was plainly intended to damage Mr Syed’s reputation as a businessman, family man, member of the community and follower of Islam.

1 Syed v Malik [2018] NZHC 2278.
2 Syed Family Ltd v Malik [2017] NZHC 1022.

[6] In their statement of defence, the defendants admitted their statements were defamatory of the plaintiff 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.

[7] In the same judgment, Churchman J dismissed the plaintiff’s application to strike out the defendants’ counterclaim but required them to file an amended statement of counterclaim complying with the High Court Rules.3 The defendants…

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 1303
Case: [2020] NZHC 1303
Decision Date: 11 June 2020

CaseChat Overview and Summary

In Syed v Malik, the defendants sought particular discovery of the plaintiff’s financial records, those of companies he controlled, and his family trust. The defendants contended the discovery was relevant to prove instances of misconduct by the plaintiff in mitigation of damages in reliance upon s 30 of the Defamation Act 1992 (s 30). The defendants had been found liable for defamation but had not pled the defence of truth. The defendants sought to use the discovery to prove the truth of their defamatory statements. The court held that the defendants’ application was an abuse of process. The defendants were estopped from alleging their defamatory statements were true. The matters they relied upon in support of the statutory defence could not be considered. To order the discovery would be both disproportionate and oppressive and would serve no useful purpose. The application was dismissed. Costs were reserved.

Orders