Rafiq v Yahoo New Zealand Limited [2014] NZHC 2955 (25 November 2014)

Last Updated: 28 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-001893 [2014] NZHC 2955

BETWEEN	RAZDAN RAFIQ Plaintiff
AND	YAHOO NEW ZEALAND LIMITED Defendant

Hearing:	25 November 2014
Appearances:	R Rafiq in person the Plaintiff B Thomson for the Defenant
Judgment:	25 November 2014

_{ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN}

R RAFIQ v YAHOO NEW ZEALAND LIMITED [2014] NZHC 2955 [25 November 2014]

Background

[1] Mr Rafiq has filed a claim against Yahoo New Zealand Ltd (Yahoo). He says a news article published by Yahoo defamed him.

[2] Yahoo have applied for security for costs. This judgment deals with that application.

[3] In his original statement of claim Mr Rafiq claims $2,997 billion, including

$999 billion for compensatory damages, $999 billion for aggravated damages and

$999 billion for exemplary damages. In his first amended statement of claim Mr Rafiq claims $100 million for compensatory damages, $50 million for aggravated damages and $50 million for exemplary damages. In his second amended statement of claim he claims $30 million for compensatory damages and $5 million each for aggravated damages and exemplary damages.

[4] The article Mr Rafiq complains about is a report of the decision of Associate Judge Doogue in Razdan Rafiq v Google New Zealand Ltd [2014] NZHC 551. That article included references to other litigation that Mr Rafiq has been involved in. The report appeared on 3 April 2014 in the Yahoo business and finance page.

The following statements were also contained in the news report:

In 2012, Mr Rafiq was fined $200 for swearing repeatedly at a police officer who was ensuring he was complying with his bail conditions.

That same year his private pilot licence was revoked and he later pleaded guilty to charges under the Civil Aviation Act for lying about information relevant to holding a pilot licence.

Mr Rafiq has also been fined for harassment through correspondence to government departments, according to media reports.

[5] Mr Rafiq complains about the comments thread below the article, by third parties using websites to make their comments.

[6] Mr Rafiq complains also that at the time of publication of that news report Yahoo provided a link below to various website domains on which, he said, inappropriate statements were made about him.

The hearing

[7] When the matter was called this morning at 10:01am before me Mr Rafiq stood up and said words to the effect that he wanted a proper Judge and that he expected the matter to be called in the Supreme Court the next week.

[8] Mr Rafiq then left the Courtroom.

[9] The Court then heard submissions from counsel for Yahoo, the Court having earlier read the written submission that Mr Rafiq had filed. In the outcome the Court concludes:

(a) That the threshold for the grant of an order for security for costs has been met by Yahoo. There are no reasonable grounds to believe that costs could be paid by Mr Rafiq if he did not succeed with his claim. Mr Rafiq is an undischarged bankrupt.

(b) In the exercise of its discretion whether or not to grant security for costs the Court may consider the merits of a plaintiff’s claim. In this Court’s view Mr Rafiq’s claim has little or no merit. In brief the reasons are:

(i) The article appears to be an accurate and fair report of judicial decisions which qualify for protection under s 16 of the Defamation Act 1992.

(ii) Regarding complaints or comments made by third parties in the comments thread under the story on Yahoo’s website it is clear these fall within the protection provided by s 10(2)(b)(ii) of the Defamation Act as honest opinion i.e. that Yahoo has no reasonable cause to believe the opinions are not the genuine

opinions of the authors. Also it is Yahoo’s claim the contents of those comments were not known to it until served with Mr Rafiq’s proceeding on 4 August 2014.

(iii) Regarding Mr Rafiq’s complaints of comments on third party

websites it is clear that Yahoo has no control over those and is not usually liable for them.

Conclusions

[10] There is no evidence Mr Rafiq’s financial position is connected to the Yahoo news report. A claim for defamation based on that news report has little or no merit.

[11] There is sufficient evidence for the Court to infer Mr Rafiq will be unable to pay costs if unsuccessful in this proceeding.

[12] An order for security for costs is appropriate.

[13] The Court proposes taking the same approach as that adopted by Associate Judge Doogue in his aforementioned judgment namely to make provision for security up to the point where a statement of defence is to be filed, in the sum of

$9,949.00 representing the average of 2A and 2B costs allocations.

[14] Mr Rafiq is to provide security in that sum to the Registrar of High Court by

30 January 2015.

[15] Costs upon this application for security are fixed on a 2B basis, together with disbursements approved by the Registrar.

Associate Judge Christiansen