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Defamation damages to be determined by judge alone

30 Mar 2023

| Author: Nadia Sussman

Senior Courts Act 2016, s 16(4) – trial by judge alone on quantum in defamation proceeding – mixed questions of fact and law – Defamation Act 1992, s 30 – prolonged examination of documents – extensive pleading – interpreter required – relative convenience in administration of justice – damages sought within District Court jurisdiction

Syed v Malik [2023] NZHC 496 (Isac J) 

Section 16(4) provides that a judge may order trial by judge alone if it appears that the trial of a defamation proceeding, or an issue in that proceeding, will: (a) involve mainly the consideration of difficult questions of law; or (b) require a prolonged examination or investigation that cannot conveniently be undertaken with a jury.

In this defamation proceeding, the High Court has already entered judgment on liability: Syed v Malik [2018] NZHC 2278.  The defendants admitted the defamatory nature of the statements they published about the plaintiff when their business relationship soured.

The plaintiff applied under s 16(4) of the Senior Courts Act 2016 to have quantum determined by judge alone.

By way of compensation for some 200 pleaded defamatory statements across 20 publications, the plaintiff seeks $30,000 damages. Notwithstanding the judgment on liability, the intended defence includes an argument based on s 30 of the Defamation Act 1992: that the plaintiff’s reputation is so poor that it was not harmed by the publication of the defamatory statements. The anticipated evidence will go to the six-year business relationship involving 10 companies in Aotearoa New Zealand and Australia.  An Urdu interpreter will likely be required for the trial.

Applicable principles – civil proceedings generally to be tried before a High Court judge sitting alone: Senior Courts Act 2016, s 15 – s 15 subject to s 16 – s 16(4) contemplates a two stage analysis: (1) whether one of the subs (a) or (b) jurisdictional grounds is made out; (2) whether the judge should exercise her or his discretion to grant the order – subs (4)(a) goes to the prospective merging of matters of fact and law to a degree that complicates the task of the jury beyond remedy by standard judicial direction: Guardian Assurance Company Ltd v Lidguard [1961] NZLR 860 (CA) – subs 4(b) goes to convenience – convenience to be assessed in the light of the interests of the parties, the time, competencies and roles of the court and jury, and the administration of justice: Couch v Attorney-General [2012] NZHC 2186 – the court must assess how best the trial process can meet the overall justice of the case: McInroe v Leeks [2000] 2 NZLR 721 (CA) – disproportionate to require jury to hear defamation claim if sum within jurisdiction of District Court, where proceeding could be transferred and where there is no right to trial by jury: Craig v Stiekema [2017] NZHC 614.

Held: The issue of quantum to be determined by a judge alone.  Both jurisdictional grounds made out. Exercise of discretion informed by: lack of prejudice to defendants if tried without a jury; critical jury question (liability) being settled; unclear scope of defendants’ proposed challenge to the plaintiff’s reputation; and quantum sought falling within District Court jurisdiction.

Syed v Malik liability judgment

Syed v Malik [2023] NZHC 496

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