New South Wales District Court CITATION: Cha v Oh (No. 23) [2009] NSWDC 336 HEARING DATE(S): 11 December 2009 JUDGMENT DATE: 14 December 2009 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ Interest: (1) Vary order (3) of my judgment dated 8 December 2009 to read: "(3) Judgment for the plaintiff for a total of $303,834.09 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000 plus interest of $5,319.51, making a total of $25,319.51; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000 plus interest of $2,659.75, making a total of $12,659.75; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000 plus interest of $13,298.77, making a total of $63,298.77; (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000 plus interest of $3,989.63, making a total of 18,989.63; (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000 plus interest of $2,659.75, making a total of $12,659.75; DECISION: (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000 plus interest of $1,329.88, making a total of $6,329.88; (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, plus interest of $1,329.88, $797.93 and $531.95 respectively, making a total of $12,659.76." Costs (1) Vary order (6) of my judgment of 8 December to provide that costs of these proceedings for the period 25 September to 12 December 2007 and for 23 March 2009 onwards are to be paid by the second defendant on an indemnity basis. (2) Otherwise dismiss the plaintiff's application for indemnity costs pursuant to s 48A. (3) I certify for representation of the plaintiff by two junior counsel. Stay of proceedings (4) The second defendant's application for a stay (including a stay in relation to legal costs) is granted, but upon compliance with the following steps: (a) The second defendant is to pay the plaintiff (or his solicitors, upon receipt of a signed Authority to Receive) the sum of $100,000.00 within twenty-eight (28) days of the date of making these orders, namely 14 December 2009; and, (b) The second defendant is to file a Holding Summons or Notice of Appeal within twenty-eight days of the date of making these orders, namely 14 December 2009; and, (c) The second defendant undertakes to the court to commence and prosecute the appeal in these proceedings expeditiously. (5) In the event of any failure to comply with any of the above steps, the plaintiff has liberty to apply on 2 days notice to have the stay revoked. (6) The fourth defendant's application for a stay is granted, including a stay of any claim for legal costs. CATCHWORDS: TORT - defamation - interest on judgment - costs - s 48A Defamation Act 1974 (NSW) - application for costs arising from conduct of trial by second defendant - stay of proceedings pending appeal Defamation Act 1974 (NSW), s 48A LEGISLATION CITED: Defamation Act 2005 (NSW) Supreme Court Rules 1970 (NSW), Part 52A r 33 Uniform Civil Procedure Rules 2005 (NSW), Part 47 Div 2 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Andrews v Herald & Weekly Times (Supreme Court of NSW, Begg J, 11 December 1978, unreported) Andrews v John Fairfax & Sons Pty Ltd [1979] 2 NSWLR 184 AON Risk Services Australia Limited v Australian National University [2009] HCA 27 Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported) Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Cha v Oh (No. 21) [2009] NSWDC 130 Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 Cooper v Whittingham (1880) 15 Ch D 501 Coull v Nationwide News Pty Ltd [2008] NTCA 10 Cropper v Smith (1884) 26 Ch D 700 Dare v Pulham (1982) 148 CLR 658 Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Dering v Uris [1964] 2 QB 669 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Evatt v Australian Consolidated Press (1969) 90 WN (NSW) (Pt 1) 384 Goldschmidt v Constable & Co [1937] 4 All ER 293 Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 Hartley v Nationwide News Pty Ltd (Supreme Court of NSW, 4 May 1995, unreported) CASES CITED: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 861 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 Jones v Sutton (No 2) [2005] NSWCA 203 Jones v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Badgery-Parker J, 10 April 1992, unreported) Ketteman v Hansel Properties Ltd [1987] AC 189 Lee v Cha [2008] NSWCA 13 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McGaw v Channel 7 Sydney Pty Ltd [2006] NSWSC 1270 Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501 Morgan v Wallis (1907) 33 TLR 495 Packer v Meagher [1984] 3 NSWLR 486 Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Tedeschi v Franklins Ltd (Supreme Court of NSW, Levine J, 23 September 1994, unreported) The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146 Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986, unreported) Webster & Thompson v Coles Myer Ltd (No 2) [2009] NSWDC 128 Williams v Ward (1886) 55 LJQB 556 Zian Fu v Kiem Dang Investments Pty Ltd [2009] NSWCA 380 Zierenberg v Labouchere [1893] 2 QB 183 Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) TEXTS CITED: T K Tobin QC, "Some Procedural Aspects of the Law of Defamation", Aspects of the Law of Defamation of New South Wales, Law Society, 1990 Tobin & Sexton, Australian Defamation Law & Practice (Butterworths, Sydney, looseleaf) Plaintiff / First Cross-Defendant: Bob Chae-Sang Cha First defendant: Jik Il Oh Second defendant: Jae Kyung Lee Third defendant: Yoon Shin Lee PARTIES: Fourth defendant: Hak Joo Park Fifth defendant: Han Yong Lee Sixth defendant: Duk In Kim Seventh defendant: Hak Soo Cho Second Cross-Defendant: Chung Yup Kim FILE NUMBER(S): 5376 of 2002 Plaintiff: Mr C A Evatt COUNSEL: Second Defendant: Mr M Richardson Fourth Defendant: Mr M Seck SOLICITORS: Plaintiff: Schweizer Kobras Lawyers & Notaries Second Defendant: Gray & Perkins Lawyers Judgment Introduction [1] On 8 December I gave judgment for sums totaling $240,000.00 in favour of the plaintiff against the second and fourth defendant in proceedings for defamation brought by the plaintiff concerning seven publications by the second, and nine by the fourth and fifth defendants: Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299. [2] I made an order that costs follow the event, with liberty to apply, noting the plaintiff had foreshadowed in submissions an application pursuant to s 48A Defamation Act 1974 (NSW) for indemnity costs. I also directed the parties to provide submissions concerning interest calculations and any applications by the second and fourth defendants for a stay. [3] The parties' applications before me on Friday 11 December 2009 sought the following orders: (a) notation of the agreed calculation of interest on damages; (b) the plaintiff's application for indemnity costs pursuant to s 48A Defamation Act 1974 (NSW) against the second and fourth defendants; (c) the second and fourth defendants' application for stay of the final judgment to be entered in the plaintiff's favour pending appeal. [4] I heard these applications on Friday afternoon and made orders as set out below, but as there was insufficient time for me to hand down my judgment orally so late in the day, I advised the parties that I would forward them my reasons for decision by email by Monday 14 December 2009. I thank them for this indulgence. A. Interest on judgment [5] The entitlement of a plaintiff in defamation proceedings to interest is explained in John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142 – 3. The rate awarded has fluctuated between 2% (Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124) and 4% (Coull v Nationwide News Pty Ltd [2008] NTCA 10). The rate of 3% was awarded by Rothman J in McGaw v Channel 7 Sydney Pty Ltd [2006] NSWSC 1270, calculated on the basis of half the award being directed to vindication and initial hurt at the 4% rate but set off against the other half which was subject to a rate spread equally over the same period. The 3% rate was applied by McClellan CJ at CL in proceedings under the Defamation Act 2005 (NSW) in Davis v Nationwide News Pty Ltd [2008] NSWSC 946. [6] The parties have agreed on interest to be calculated at 3% for each of the seven publications of the second defendant and each of the six additional publications of the fourth and fifth defendant as set out in the Schedule below TOP Weekly Published Date Defendants Interest at 3% p.a. 26 January 2001 Second $7,979.26 9 February 2001 Second $7,979.26 23 February 2001 Second $7,979.26 1 March 2001 Second, Fourth and Fifth $7,979.26 9 March 2001 Second, Fourth and Fifth $5,319.51 16 March 2001 Second, Fourth and Fifth $2,659.75 30 March 2001 Second $13,298.77 Hoju Dong-A Published Date Defendants Interest at 3% p.a. 1 March 2001 Fourth and Fifth $3,989.63 9 March 2001 Fourth and Fifth $2,659.75 16 March 2001 Fourth and Fifth $1,329.88 Sydney Korean Herald Published Date Defendants Interest at 3% p.a. 1 March 2001 Fourth and Fifth $1,329.88 9 March 2001 Fourth and Fifth $797.93 16 March 2001 Fourth and Fifth $531.95 Interest payable by the Second Defendant = $37,236.55 Interest payable by the Second, Fourth and Fifth Defendants = $15,958.52 Interest payable by the Fourth and Fifth Defendants = $10,639.01 Total = $63,834.09 [7] I have set out in the orders below the precise totals payable for each of the publications for each of the second and fourth defendants. B. Indemnity costs pursuant to s 48A Defamation Act 1974 (NSW) [8] The plaintiff at [27.1.1 – 27.1.3] in written submissions filed on 27 August 2009 made an application for indemnity costs for the whole of the litigation pursuant to s 48A Defamation Act 1974 on the basis that "the wealthy second defendant and the impecunious fourth defendant were able to use their superior financial position to delay and frustrate the plaintiff and prevent an early resolution of the proceedings" (written submissions [27.1.3]). [9] The general rule for awarding costs in defamation actions prior to the enactment of s 48A was that that costs should not be denied to a successful plaintiff in a defamation action unless there has been some misconduct on his or her part: Cooper v Whittingham (1880) 15 Ch D 501 at 504 per Jessel MR. Examples commonly pointed to include a contemptuous verdict (such as the famous farthing verdict in the 'QBVII' case, Dering v Uris [1964] 2 QB 669, where the plaintiff also unwisely failed to accept a payment into court); where the plaintiff has pursued the action not to vindicate a legitimate interest but for reasons of malice and personal spite: Morgan v Wallis (1907) 33 TLR 495; or where "it appears that it was oppressive to bring the action, or that the action was oppressively conducted." (per Lord Escher MR in Williams v Ward (1886) 55 LJQB 556 at 567.) [10] Applications to vary the usual order for costs that would otherwise follow the event, or for indemnity costs, may now be brought in defamation proceedings pursuant to s 48A Defamation Act 1974, which was enacted to prevent the perceived misuse by litigants of financial advantage to prolong, complicate or refuse to settle defamation proceedings. [11] Section 48A provides: " 48A Costs in proceedings for defamation (1) In awarding costs in respect of proceedings for defamation, the court may have regard to the following matters: (a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), (b) whether the costs in the proceedings may exceed the quantum of damages to be awarded in the proceedings, (c) such other matters as the court considers relevant. (2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise): (a) if proceedings for defamation are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or (b) if proceedings for defamation are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant. (3) In this section: "settlement offer" means any genuine offer to settle the proceedings made before the proceedings are determined and includes an offer to make amends (whether made before or after the proceedings are commenced)." [12] The purpose of s 48A, and its interaction with Part 52A r 33 Supreme Court Rules 1970 (NSW), was explained in the New South Wales Legislative Assembly by Mr Neville Newell MLA (Hansard at page 7134) on 11 March 2004: "While the addition of proposed s 48A(2) will provide greater discretion to a judge in awarding costs in instances where parties have been recalcitrant than currently exists, s 48A(1) makes it abundantly clear that in awarding costs the Court may take account of the way the parties have conducted their case. The Court will be able to take into account such matters as whether either party has used their significantly more powerful financial position in a way that hinders the effective discharge of justice. It is important to keep in mind that the aim of s 48A , which was introduced by the government in December 2002, was to protect ordinary members of the community against potentially ruinous cost implications from defamation actions. Section 48A commenced on 17 February 2003, and I am unaware of any defamation case invoking s 48A having been finalised. While it is too early to tell whether the amendments have achieved their aim and whether there is any need for further amendment along the lines advocated by the Honourable Member for Manly, calls for amendment are premature." [13] Mr Newell MLA noted that the complexity of defamation cases was not always reflected in the size of the verdict, and that the purpose of s 48A was to enable the court to take into account a wide range of matters: "It is important to note, however, that judges will still be required to take into account the matters referred to in s 48A of the Defamation Act , and that judges will have the discretion to make a range of costs orders, including that no costs be payable." [14] In what circumstances should a judge exercise the discretion to make a range of costs orders pursuant to s 48A? Circumstances in which special costs orders are made in defamation [15] Two particular circumstances have been identified by the legislation's drafters as warranting an award of indemnity costs in defamation litigation: (a) Failure to make any offer by the unsuccessful party. That is not the situation here, as three offers were made by the defendants and one of these (an offer of $80,000 plus costs) was a reasonable and sensible offer. (b) Conduct of the matter, including what was called, prior to the enactment of s 48A, "vindictive prosecution of the claim" ( Jones v Sutton (No 2) [2005] NSWCA 203 at [32]). Jones was decided before the enactment of s 48A, but is relevant as the facts of this case were referred to in parliament in the course of consideration of a private member's Bill, as well as the discussion of s 48A in parliament. Mr Barr MLA, the architect of the private member's Bill which led to the enactment of s 48A, had the following to say when it was used as a template for defamation costs in the uniform defamation laws: " Mr DAVID BARR (Manly) [9.35 p.m.]: … For example, the case of Jones v Sutton , in my neck of the woods, went for more than 11 days in a two-part trial. The damages awarded were $5,000 but the costs amounted to well over $1 million between the two parties … The costs were massively out of proportion to the damages. One of my pet issues in the whole defamation debate is costs. All the various royal commissions, inquiries and whatever in many jurisdictions have focused on the complexities of the law — what tests should apply and so on — but none has dealt with costs in any significant manner. I introduced the Defamation Amendment (Costs) Bill 2002 to restrict costs orders comparative with the amount of damages awarded, but the House did not support it. The view of the Government and the Opposition was that it was too prescriptive. My view was that it was one way of discouraging the rich and powerful from engaging in frivolous actions because they would not be able to get costs." Mr Barr MLA went on to urge courts to give full force to these costs provisions, expressing concerns that s 48A was not more widely used: "I had hoped the courts would take [s 48A] on board. It is one way of addressing the disproportionality between damages and costs. The issue is serious because it means that the law, as in so many other areas, is the domain of the wealthy, because even minor matters can involve high costs. That is especially the case now that the Supreme Court rules have been amended and even minor matters go straight to the Supreme Court. I opposed that proposal in this Chamber at that time, but once again I lost out. The Government and the Attorney should monitor costs because it is one area in which the law clearly has not been working the way it should." ( Hansard , p 18518, 12 October 2005) [16] In Jones, the defendant was a widow of slender means, who was financially ruined by expensive defamation proceedings where the judge's assessment of damages for $5,000 for three slanders, two of them to one person, was unchallenged on appeal. [17] The provision may also apply to defendants with significant means, and the introduction of the provision after Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 was seen as a response to concern about defamation proceedings which generated 212 interlocutory judgments and 11 appeals during the trial. Thus, unfair use of an advantage by a wealthy opponent, such as extending the case beyond the financial means of his opponents by amendments, adjournments and other delays, may result in an order for indemnity costs. This may include conduct seen as "poisoning the well of justice" of the kind identified in Packer v Meagher [1984] 3 NSWLR 486. [18] In addition, conduct of the kind that traditionally results in orders for indemnity costs, such as failure to comply with court orders, late amendments and other conduct likely to lead to procedural unfairness, may also be relied upon. Acceptance of an offer of compromise? [19] Section 48A (2)(a) permits the bringing of an application where offers have not been made by the defendant. That is not the case in these proceedings. However, Mr Evatt raised the question of a purported acceptance of an offer of compromise and sought to rely upon the provisions of Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) in support of an application for costs of the hearing on that basis. [20] Mr Evatt told the court that, after the offer of compromise for $80,000 plus costs had expired, he spoke to Mr Wheelhouse SC and said that he now had instructions to accept this offer. He said Mr Wheelhouse SC said he would get back to him, and later said the defendant refused to extend the offer. [21] Mr Wheelhouse SC refutes the contents of this conversation. Mr Evatt asked for Mr Wheelhouse SC to be available for cross-examination. [22] During the trial there were occasions where Mr Evatt and Mr Wheelhouse SC had disagreements (Daily Transcript 353, 356 and 358, 14 June 2007, Day 11; Daily Transcript 453, 20 June 2007, Day 14; Daily Transcript 1216-1222, 16 October 2007, Day 28). This was a combative trial. [23] Taking the bitter history of these proceedings into account, I took the view that one counsel cross-examining the other in the witness box would be of little or no assistance to me. It could potentially put Mr Wheelhouse SC and Mr Evatt in a position where one or both of them had to withdraw from the case, which would make the conduct of the appeal very difficult. [24] If the solicitors who were then acting for the plaintiff did not put this offer in writing, so that it could be produced if the circumstances of this alleged offer were then challenged, they must accept the consequences. [25] Accordingly I am not satisfied the plaintiff did in fact accept the offer of the second defendant as claimed, and I refuse the application of the plaintiff for indemnity costs on the basis of a purported acceptance of an expired offer of compromise. What parts of the hearing would warrant an order for indemnity costs? [26] When considering whether an order should be made for indemnity costs of a trial pursuant to s 48A it is important to identify with some precision the relevant conduct, rather than to make an order for the whole of the costs to be borne in this fashion. [27] During the section 7A part of the trial the second defendant was represented by Mr Hughes of counsel, who ran this part of the proceedings in a very able and expeditious fashion. When the matter was set down for trial as a four-week trial in August 2006, timetables were put into place which took into account the limited nature of the pleas of truth of the second, fourth and fifth defendant. [28] The third defendant, who published the three matters complained of which constitute the "audit reports", pleaded a defence of justification to all imputations and on 7 February 2007 served particulars of justification. As I indicated in my judgment, these were similar to the particulars of the second defendant (who, in a "cut and paste" exercise, copied most of them, including a reference to the "third defendant" instead of the "second defendant"). The third defendant issued some subpoenae to the Community First Credit Union in or about February 2007. [29] The circumstances in which the second defendant sought leave to amend to plead truth to a further nine of the fourteen imputations (making a total of eleven out of fourteen to which truth was pleaded), and was the subject of a peremptory order to supply these particulars by 12 February 2007 because of the lateness of the amendment, is set out in Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 at [62] and [1102] – [1116]. [30] The problem was that, as Mr Richardson conceded in argument before me, neither the second defendant's particulars of 12 February 2007 nor the particulars supplied on 29 May 2007 (the second day of the trial) gave the plaintiff proper particulars of the case the plaintiff had to meet. [31] These problems were compounded by the circumstances in which the discovery documents of the plaintiff and the documents produced in court by the fourth and fifth defendants were uplifted. The second defendant briefed Mr Finney, his expert, in February 2007 and only his first report on 2 May 2007 was able to be served before the trial commenced. [32] When the third defendant (whose particulars of truth had been more or less identical to the second defendant) settled the proceedings just before the trial started in May 2007, his counsel, Mr Wheelhouse SC, came to act for the second defendant. The plaintiff's application [33] The plaintiff's application for indemnity costs is brought on two main grounds: prolixity and repetition in cross-examination of the plaintiff (which lasted 26 trial days and which, with re-examination, lasted for more than a year) and failure to provide timely or proper particulars of justification. I am indebted to Mr Richardson for conceding that there was a lot of repetition in the cross-examination of the plaintiff by Mr Wheelhouse SC, and that this would be immediately apparent to anyone reading the transcript, as this saves me the trouble of setting out examples. Any order for indemnity costs should take into account the prolix cross-examination of the plaintiff for the whole of the first and second tranches of the trial. [34] However, the issues of enlargement and late delivery of particulars of justification are challenged. [35] I shall now consider the matters raised by the second and fourth defendants in the written submissions handed up in court today. Was the plaintiff responsible for the delay because of his own failure to give proper discovery? [36] The first basis upon which the second and fourth defendants resist the order is their assertion that the plaintiff gave late and inadequate discovery and consequently was late with interrogatories (written submissions 3(a) – (c)). Mr Richardson drew my attention to my findings to this effect at [1100], which were based on the plaintiff's List of Documents and correspondence on it, which forms part of Exhibit 77. [37] The affidavit of Mr Crumpton attaches a copy of the plaintiff's List of Documents, which was dated 2 March 2007. I shall deal first with the question of adequacy of the plaintiff's discovery. [38] Mr Wheelhouse SC in cross-examination referred on several occasions to the difficulties in obtaining the plaintiff's CFM cheque butts, tendering the List of Documents and correspondence about particulars in Exhibit 77. [39] On reading Mr Crumpton's affidavit I was immediately struck by the fact that the List of Documents attached to his affidavit was longer than the document tendered and found in Exhibit 77. The explanation is that only the first page of the plaintiff's List of Documents was tendered in Exhibit 77. On the second page, all CFM cheque butts and deposit books are referred to, as are other financial records of the plaintiff, including document 14, which consists of records relating to his trip to Seoul, Korea in March 2000. [40] I am sure it was a simple oversight that led to the second defendant tendering only the first page of this List of Documents, but clearly I was wrong in relying on it to support the claim that the CFM financial records had not been discovered. In addition, discovery document 14 is almost certainly the travel records I was referring to as having been accidentally handed up to me during the trial and which, after I returned them to Mr Wheelhouse SC, were never heard of again. The document management by all the parties in these proceedings has had some unfortunate lapses. [41] The fact remains that the plaintiff's List of Documents was only sworn on 2 March 2007 and his answers to interrogatories were also correspondingly late. Why was there not earlier compliance? [42] The answer is that a plaintiff is not obliged to give any discovery in defamation proceedings where a defendant has pleaded a defence of justification and failed to provide particulars. None of the defendants pleading truth served particulars until February 2007 and it took a peremptory order for the second defendant to provide them. [43] An essential safeguard in defamation proceedings has always been that a party is not entitled to seek discovery and interrogatories before providing particulars of truth. A defendant "is not entitled to discovery for the purpose of finding out if he has a defence or not" (Zierenberg v Labouchere [1893] 2 QB 183 at 188 per Lord Esher MR). The defendant must give full particulars before discovery: Goldschmidt v Constable & Co [1937] 4 All ER 293 at 294; followed in Andrews v Herald & Weekly Times (Supreme Court of NSW, Begg J, 11 December 1978, unreported). Where particulars are not given by the defendant the pleadings are not considered to be complete and there should be no order for production or discovery: Brown, Defamation Law of Canada, 2nd ed., 20.4(2). If such particulars are not provided, the defendant's defence may be liable to be struck out: Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 before the plaintiff is obliged to give discovery. [44] The chronology of events shows clearly that after I set the matter down for trial, and defences of limited justification were pleaded, there was no particularisation of truth. The financial records of Supporting Committee were in the hands of the fourth and fifth defendants, who have never filed a List of Documents in these proceedings. The second defendant's amended defence three months before the trial to increase the number of imputations to which truth was pleaded to 11 out of the 14 imputations was very late, and in circumstances where particulars had not been provided even in relation to the two imputations for which truth had previously been pleaded. [45] Mr Richardson did not have his own client's List of Documents and invited me to check the file. I have done so. The second defendant never discovered any documents other than a statement by his printer. He did not even discover copies of the matters complained of. The Schedule 2 list contains no indication of documents he once had. Given his role in the Supporting Committee, the Korean Society (on behalf of which the fourth defendant requested documentation from the Supporting Committee in August 2000), the Sports Council and the Korean Veterans Association, it is surprising that he has no documents at all. [46] Translating the plaintiff's documents (namely some of the Minutes, the 2000 Activities Diary and the CFM cheque butts) would have made little difference where there was no discovery or translation of essential records by the fourth and fifth defendants. [47] When the plaintiff did produce his documents for discovery, they were uplifted by the second defendant's solicitors two months before the trial and kept by them until the plaintiff was under cross-examination. When the plaintiff's cross-examination commenced, not only was he being cross-examined about the cheque butts and financial records he had not seen since late 2000 or early 2001 because the fourth and fifth defendants had kept them, but he was being cross-examined about financial transactions that had not been particularised prior to his entering the witness box. He had not been given the originals of these cheque butts when he was asked to answer interrogatories about them, and this was the explanation for this delay. [48] I am satisfied that the plaintiff did not contribute to the delay by failing to give timely discovery and to answer interrogatories. This brings me to the next issue for determination, namely whether there was both late and oppressive particularisation of the defence of justification. Failure to particularise the defence of justification before and during the trial [49] Mr Richardson's written submissions, in summary, asserts: (a) The provision "for the first time of very short form particulars of truth in February 2007 only three months prior to the trial is regrettable" (paragraph 1) as is the provision of the "greatly expanded" particulars of 30 May after the scheduled commencement of the trial; (b) The plaintiff made no complaint about the 30 May particulars until September 2007 (paragraph 4); (c) The particulars of 15 August did contain fresh materials but no complaint was made about these until 24 September 2007 when the application to strike out the particulars and defence was brought (paragraphs 5 – 7) and further particulars were supplied in relation to this which "did not" contain fresh material (paragraph 7), nor did the last set of particulars dated 3 October 2007. [50] The requirement for particulars of justification to be given before discovery can take place is an essential safeguard for procedural fairness in defamation. A second, and equally important, safeguard, is that the particulars of justification must be pleaded with precision, and that putting matters that are not particularised is not permitted. [51] I shall briefly summarise the particulars referred to, including some particulars dated 30 June 2007 which Mr Richardson was unable to locate for the purpose of this application. The particulars of truth served pursuant to the 5 February 2007 peremptory order [52] The particulars of truth contained in the letter of 12 February 2007 (Exhibit 81) consisted of the following: (a) identification of the parties (paragraphs A – D); (b) a description of the meetings between the auditors and the plaintiff (paragraphs E – K); (c) a summary of the auditor's report as disclosing $184,712.00 was misappropriated and $53,315.45 spent on Sports Council payments, SK entertaining costs and $1,890 taken by the plaintiff (paragraph L); and (d) a further three pages of particulars for 11 of the 14 imputations (truth was not pleaded to the remaining three). Some additional material set out on pages 18 – 21 for the comment defence are also asserted to be true. [53] I note the fourth and fifth defendants never added to their one-sentence statement in their defences that the plaintiff failed to keep proper records. Further particulars are provided on the second day of the trial [54] The week before the trial was due to commence, the matter was listed for directions before Balla DCJ, The plaintiff foreshadowed an application before Balla DCJ to strike out the particulars of justification, according to the notation on the file. The second defendant agreed to provide further particulars by the second day of the trial, 29 May 2007. [55] The particulars provided on 29 May still related only to 11 of the 14 imputations, and this time were eight pages long, not "greatly expanded" as stated by Mr Richardson in paragraph 1 of his submissions. They were, however, accompanied by an expert's report dated 2 May 2007 together with two supplementary reports. As I have set out in the judgment of 8 December 2009 at [1288] – [1290], the assistance given by these reports, especially the two supplementary reports (which were simply requests for more information) was limited. Particulars after the first adjournment: the 27 June 2007 particulars [56] The trial commenced to run on the basis of these particulars and the expert's reports of 2 and 30 May 2007. In the course of the cross-examination it became apparent that the plaintiff was being cross-examined on matters which were not in the particulars. Further particulars were served on 27 June 2007. These included: (a) for the first time, particulars for all the imputations; (b) entirely new claims, such as that the plaintiff cheated and defrauded the Supporting Committee by falsely claiming reimbursement(2(c)), altered and falsified books of account of the Supporting Committee and of his own company (2(e)) and improperly used his position to gain advantages not only for himself but for his company and the Sports Council (2(f)). These particulars now totalled 36 pages and comprised hundreds of transactions, the majority of them being raised for the first time. The August 2007 particulars [57] As the plaintiff had been cross-examined about a number of matters which were difficult for me to follow, I asked the defendants to provide further particulars. This resulted in particulars which increased from 8 pages (30 May) to 36 pages (30 June) to about 140 pages. [58] After the hearing resumed, on 24 September 2007 Mr Evatt brought an application to strike out defence of justification on the basis that the particulars so prolix and incomprehensible they were an abuse (Daily Transcript 483, 24 September 2007, Day 17; and also Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 at [1469]). Further particulars added in September 2007 [59] After complaints by Mr Evatt that matters were being put to the plaintiff, further particular were added informally during September 2007. An example is a letter dated 21 September 2007 that in about August or September 1999 the plaintiff misappropriated $500 given to him by a Mr Lee. During this time the defendant adopted the habit of writing to the plaintiff to advise of further particulars and sending a copy of the letter to the court. For the purpose of this application I extracted several of these from the file, showed them to Mr Richardson, and had them marked for identification. [60] I have set out in the judgment how on 3 October 2007 Mr Wheelhouse SC told me the amount misappropriated was $160,000 and there were 60 incidents of misappropriation (Daily Transcript 738, 3 October 2007, Day 20) and on 4 October, the following day, he served further particulars which I added up as totalling $504,634.71. Mr Wheelhouse SC did not tell me how many transactions were involved, but I counted more than 240 (Daily Transcript 741 ff, 4 October 2007, Day 21). [61] There were subsequently objections that questions were being put both by Mr Wheelhouse SC and Mr Park concerning matters not in the particulars (Daily Transcript 851, 5 October 2007, Day 22; Daily Transcript 858, 8 October 2007, Day 23; Daily Transcript 937, 9 October 2007, Day 24; Daily Transcript 1043 and 1059, 10 October 2007, Day 25; Daily Transcript 1133, 12 October 2007, Day 26; Daily Transcript 1191, 15 October 2007, Day 27; Daily Transcript 1268-1269, 16 October 2007, Day 28; Daily Transcript 1301-1305, 17 October 2007, Day 29). [62] Mr Evatt initially asked me to "censure" Mr Wheelhouse SC (Daily Transcript 855, 8 October 2007, Day 23) at the time. [63] I have set out this long history of revised particularisation because it contradicts Mr Richardson's statements that the particulars of 30 May were greatly expanded and that after August 2007 there were no fresh matters particularised. [64] The provision of particulars is generally permitted in litigation up until the end of the trial: Dare v Pulham (1982) 148 CLR 658. However restrictions on late amendments to plead truth, and late particularisation, have been the subject of Supreme Court Defamation List case management for over twenty years. Late particularisation and amendment of pleas of truth [65] In an Announcement circulated to practitioners dated 14 October 1988, Hunt J noted that there were two problems which commonly occurred prior to the date fixed for hearing: changes to the imputations and applications to amend the defence. Where a plaintiff could not meet these amendments at the trial on that date, leave to amend would not usually be granted. [66] Hunt J noted that it was common for defendants to claim the amendment occurred because information became known "at the last moment". If so, notice would be taken of whether such information would have been ascertainable if reasonable preparation for trial had been made at the appropriate time. If the information was obtained under subpoena, the defendant may be at fault for failing to seek access to such documents at an earlier stage (e.g. Evatt v Australian Consolidated Press (1969) 90 WN (NSW) (Pt 1) 384). [67] These procedural rules had "a radical effect" on improving pre-trial preparation, according to T K Tobin QC ("Some Procedural Aspects of the Law of Defamation", Aspects of the Law of Defamation of New South Wales, Law Society, 1990, p. 51). [68] In Australian Defamation Law & Practice at [25,175] the learned authors state that courts have been wary of late pleas of justification where they cause the vacating of the hearing date, noting Denning LJ's concerns in Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 at 456, and that an order for costs may not adequately compensate a party for significant delay in the course of litigation (Ketteman v Hansel Properties Ltd [1987] AC 189 at 220). Where there is a late particularisation of justification, the success of the application may require not only an adequate explanation of the lateness and the provision of full particulars, but also either a broad outline of the evidence (Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986, unreported)) or witness statements (Tedeschi v Franklins Ltd (Supreme Court of NSW, Levine J, 23 September 1994, unreported)). [69] However, during the 1990s a series of late applications to amend to plead or particularize justification were successfully made: see for example Jones v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Badgery-Parker J, 10 April 1992, unreported). Some of these were made during the trial; in TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 the Court of Appeal allowed an appeal from the trial judge's refusal to permit an amendment to plead contextual truth even though that meant the trial (which had already endured two jury discharges due to prior conduct by the defendant) would have to be run for the fourth time. [70] The High Court's decision in The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146 significantly shifted the balance in favour of allowing amendments. Dawson, Gaudron and McHugh JJ noted the relevant material was only "recently discovered" (at 152) and cited the passage from Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 701 that in the absence of error or mistake which was fraudulent or "intended to overreach" the Court should allow the amendment. Case management should only "in extreme circumstances" shut a party out from putting a matter that was "fairly arguable" (at 154). [71] The question of what amounts to "extreme circumstances" was one of the issue in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619. The trial in Marsden commenced in February 1999 concerning the 1995 programme conveying imputations the plaintiff was a paedophile. The defendant issued a subpoena for documents outside the particulars of justification and on 12 March 1999, the plaintiff filed a motion to set it aside. The defendant then filed a motion to amend its particulars to include allegations that the plaintiff had sexual relations with a large number of other young persons. Most of these allegations went back many years (at [103]) and none had ever been the subject of charges. The plaintiff particularly objected to six of the claims which he had never heard of before. [72] During an application lasting 38 days, the plaintiff advanced 17 grounds in opposition. Levine J noted the defendant in Marsden had pleaded justification from the first (at [25] and [30]), which is not the case here; the second defendant pleaded justification to imputations of not keeping proper accounts until just three months before the trial, a gap of five and a half years since the commencement of proceedings, and the fourth defendant only did so on day 54 of the trial. In Marsden, there was "no delay, no procrastination, no default" on the part of the defendant (at [31]) and in relation to a number of the particulars no prejudice was asserted (at [32]). The hearing had been expedited and many of the pleadings were not yet in final form (at [42]). The key issue was that the defendant said it was ignorant of these other charges until 11 February when the Police produced material under subpoena (at [34]). While there was subpoenae issued here, the contents of the documents produced is uncontroversial and the cheques and financial record have not been referred to in submissions other than in passing. [73] In addition, the court in Marsden was in a position to give the plaintiff six months to meet these new claims, as the evidence had not yet started (at [87]). This was a lengthy adjournment. [74] Issues the plaintiff raised included that it was the fault of the defendant for issuing subpoenae late (at [115]), referring to Hunt J's announcement (at [146]). However, Levine J held there had been no delay, but importantly his Honour also considered that consistent with J L Holdings, case management principles "should not prevail over the justice of the particular application" (at [142]). [75] Levine J's finding on case management issues in Marsden at [138]-[147] note the "tiresome frequency" (at [142]) of late amendments by defendants to justify, adding that changes to imputations are just as tiresome. At [147], the plaintiff warned that if this amendment was allowed, there would be "almost no situation in which an amendment of this kind will be refused". [76] At [151]-[261], Levine J considered whether the amendment was "intended to overreach", or to deliberately strain the plaintiff's emotional and financial resources and to render any victory financially pyrrhic (at [154]). The plaintiff complained he would have to pay many tens of thousands of dollars to investigate the case, adjourn the hearing and have a trial three times longer, noting the amendment application had taken longer than most defamation trials (at [178]-[179]). Levine J did not consider this was significant. [77] With the benefit of hindsight, Mr Marsden's fears that these were particulars where the defendant had "simply thrown every allegation that it can at the plaintiff", that these allegations are "obviously flawed" and that the defendant should be forced to prune down the particulars to something manageable are chillingly familiar ([178]-[181]). Levine J dismissed these submissions as "somewhat rhetorical and question-begging" (at [178]). He dismissed, at [181], the claim that the reason for pressing all these charges is to string out the plaintiff, noting the defendant is aware of the perils of presenting a weak case but should not be shut out because the defendant is "entitled" to conduct his cross-examination and case as he sees fit (at [182]), a word Mr Wheelhouse SC used during this trial on several occasions (e.g. Daily Transcript 177, 7 June 2007, Day 7 and Daily Transcript 454, 20 June 2007, Day 14). [78] The Marsden trial went ahead with these new particulars because, on the basis of J L Holdings, any application to amend met a very low bar. [79] The attitude of the courts to late and/or repeated amendments began to change with the decision of the NSW Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. Although this decision dealt with multiple alterations of imputations rather than defences, it has been widely interpreted as a warning against late and repeated amendments: Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501. The High Court's landmark decision in AON Risk Services Australia Limited v Australian National University [2009] HCA 27 will be a significant deterrent to this kind of conduct in future. [80] However, was the plaintiff really entitled to have all these particulars? Could he have conducted the trial without them? The question of how late and how inadequate the particulars were for each imputation is best illustrated by addressing each of them individually. All the particulars provided can be found as exhibits in the trial as they are exhibits to the affidavit of Mr Crumpton concerning the application for late amendment, although the 12 February 2007 particulars (which Mr Crumpton did not attach) were tendered separately at Exhibit 82. 1. Imputation 36(d): That the plaintiff managed the affairs of the Committee so incompetently that, while he was the Committee's president, $102,000 of the Committee's money was spent without proper documentation being kept. [81] The second defendant did not provide any particulars for this imputation in the letter of particulars dated 12 February 2007. It was not an imputation to which truth was pleaded. [82] The particulars provided by the second defendant on 30 May 2007 contain seven paragraphs which total slightly more than one page. These particulars assert: (a) while the plaintiff was the chairman he "dominated and controlled all aspects of the Committee's management and activities"; (b) between May 1998 and November 2000 "the plaintiff did not appoint any person to undertake the accounting or management of the Committee's finances, taking control of these finances himself"; (c) he "failed to keep accounts including but not limited to proper books and documentary records" and reference is made to paragraphs 17 – 25 of Mr Finney's report; (d) no books of account were kept during the period 5 May 1998 – 17 February 1999; (e) between 17 February – 31 December 1999 "some books were kept by Mr Sung" which "failed to properly disclose income received and expenditure incurred"; (f) between 31 December 1999 and 31 October 2000, no accounting records were kept; and (g) between 11 March 1999 and 23 November 2000, where "some" books were kept, payments without supporting documentation were made totalling $239,396.06, and a list is attached. [83] In relation to imputations 36(c), 38(b), 39(a), 39(c), 40(e), 40(h), 41(b), 41(d), 41(f) and 43(a) the second defendant, following orders for further and better particulars of truth, served on 30 June 2007 a 36-page narrative of "supplementary particulars" pleaded in an omnibus fashion to all imputations. This is impermissible in defamation proceedings: Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported). A number of the matters set out in this document including misappropriation, altering and falsifying books of account and cheque butts and a false claim of going to Korea on Supporting Committee business when it was in fact a business trip (p. 16). The particulars of fraudulent alteration of cheque butts alone are five pages long. [84] It was not until the 140-page particulars served during August to October that the case the plaintiff had to meet was particularised. Those particulars consisted of long lists of cheque butts and financial information rather than particulars capable of telling the plaintiff the case he had to meet. By this time the plaintiff had been in cross-examination for more than four weeks. Mr Evatt submits that far from being helpful, these particulars were prolix and oppressive. 2. Imputation 38(b): That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee's money was spent on things on which it should not have been spent. [85] No particulars were provided for this imputation in the letter of particulars dated 12 February 2007. It was not an imputation to which justification was pleaded as a defence. [86] Nor were particulars provided for this imputation in the particulars supplied on 30 May 2007 beyond the claim that the second defendant "repeats the particulars to paragraph 11", the significance of which was not explained, and a claim that "further particulars will be supplied" (page 3 of the particulars of truth). [87] As set out above, the service of 36 pages of supplementary particulars following orders for further and better particulars on 27 June resulted in an omnibus set of particulars for ten of the imputations, of which this is one. The second defendant asserts at paragraphs (s) – (u) that the plaintiff's three trips to Korea in October 1999 and February and October 2000 were in the plaintiff's capacity as president of the Sports Council and the trips were for the benefit of the plaintiff or the Sports Council and not for the benefit of the Supporting Committee. There are in addition claims that the plaintiff caused the Supporting Committee to make payments of telephone accounts for the plaintiff and his company, the Sports Council and the Korean amateur Sports Association, the inference being that these things on which the money should not have been spent (paragraph (l) and refers on pages 25 – 35 to payment for entertainment of SK Securities staff (SK Securities donated $100,000 to the Committee with certain conditions attached) and donations for such matters as a commemorative evening for war veterans, the donation of 1,000 Korean flags to the Korean Association of Choirs and to the Christian Review. [88] The particulars served in August 2007 were, again, lengthy lists of cheques and expenditure resolutions which the plaintiff would have difficulty in meeting since the files and records of the Supporting Committee were no longer available or, in the case of his trip to Korea in March 2000, were mislaid during the cross-examination. 3. Imputation 39(a): That the plaintiff failed to account for approximately $56,000 of money donated to the Committee. [89] The particulars supplied for this imputation in the letter of 12 February 2007 were "The second defendant relies upon the facts as set out above", namely the 16 – line summary of the findings of the auditors set out in paragraph L. [90] The particulars provided on 30 May 2007 contained three and a half pages in which the roles of the plaintiff as chairman and the fourth and fifth defendants as auditors are set out (paragraphs 3.1 – 3.4), together with their meetings (3.5 – 3.10) followed by a summary of what was published (3.11 – 3.14). The sums for which the plaintiff failed to account are identified as a donation of $500 from the Korean Veterans Association and $3,000 cash balance after the purchase by the seventh defendant of Olympic Game tickets (3.15 – 3.16). There is then a repetition of the claim that the plaintiff failed to cause the Committee to adopt an accounting system for a receipt to be given to donors and that he drew "numerous" cheques without a co-signatory or to "cash", examples of which are given. [91] I note the reliance upon the $500 donation from the Korean Veterans Association. In fact, as the fourth and fifth defendants probably knew at the time (which is why there was no reference to failure to account for this sum in any of the matters complained of), there was no failure to account by the plaintiff for this donation. This donation had been given to the Korean Sports Council and was banked by the Sports Council cheque account. The claim made in written submissions was that the plaintiff (who made this donation from his own company account, as the Supporting Committee had no money at the time) should not have donated monies to the Korean Veterans Association because it was outside the purposes of the Supporting Committee, and that his seeking reimbursement from the Sports Council for this sum amounted to misappropriation from the Sports Council. Proper particularisation of this claim would have made its hopelessness clear. [92] Although the supplementary particulars served following orders made on 27 June refer to this imputation, I cannot find anything further in these particulars explaining how the sum of $56,000 is arrived at. [93] The particulars served in August consist of a series of names of persons whose names were allegedly omitted from Exhibit A. In fact most of these names were on this list, and those that were not were published on 23 February 2001 by the plaintiff (Exhibit 73). If this matter had been properly particularised, the plaintiff could have tendered this newspaper article and that would have resolved many of the factual issues very quickly. 4. Imputation 39(c): That the plaintiff failed in his duty as President to ensure the Committee kept proper accounts. [94] The particulars provided on 12 February 2007 were: "The plaintiff failed to keep accounts including but not limited to proper books and documentary records which ought to have been kept to ensure that the Committee's records were dealt with in an appropriate and orderly way." [95] These particulars could not tell any opponent the case to be met at trial. [96] The particulars provided on 30 May 2007 were one and a half pages long. They assert (4.1) that the plaintiff "dominated and controlled" all aspects of the Committee and that the Committee did not keep proper records, did not open a bank account until August 1999, did not pass expenditure resolutions for "significant" amounts of expenditure and that the plaintiff "frustrated" attempts by the auditors to prepare audited financial reports after the Olympics by "failing to provided… information concerning expenditure". [97] In addition, particular 4.4 asserts the plaintiff failed to ensure there was evidence in writing of the terms and conditions of loans made to and by the Committee by and to the plaintiff and "other persons" and that the plaintiff signed "numerous" cheques to "cash" with no co-authorising signature; three cheques are identified. [98] The supplementary particulars served on 30 June are omnibus in nature and do not further identify the steps the plaintiff should have taken. The cheques drawn without supporting documentation or an Expenditure Resolution and paid to cash are, however, listed. [99] The particulars served in August, September and October consisted, once again, of lengthy lists which did not tell the plaintiff the case he had to meet. 5. Imputation 40(a): That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia. [100] The particulars supplied by the third defendant on 7 February 2007 referred to three matters: failure to hold an inaugural meeting, the plaintiff's expulsion from two associations during 2002 (the Korean Veterans Association and the Australia-Korea Athletic Association) and the dishonouring of cheques. [101] The particulars supplied by the second defendant dated 12 February 2007 are identical to these particulars (see the schedule to this judgment attaching the second defendant's particulars of truth) and this is generally the case for all three "audit reports" for which the second and third defendants were sued. [102] The particulars provided by the second defendant on 30 May 2007 contained two and a half pages, the first two pages of which are identical to the recital of facts set out for imputation 39(a) and do not refer to the specific issues raised by imputation 40(a). [103] The first claim in the 30 May 2007 particulars is that the plaintiff did not arrange for an inaugural ceremony until "12 months after its formation in or about April 1999" and that "important committee members who had attended the swearing-in refused to attend this ceremony in April 1999" (particulars 5.13 – 5.14). Although the plaintiff was cross-examined for eight weeks and persons who could have been these officials gave evidence, I never heard evidence about these matters. [104] The next matter particularised was that the plaintiff was expelled from the ROKMC Veterans Association Australia Branch on 22 December 2002 and by the Australia-Korean Athletic Association on 27 December 2002. Although the seventh defendant was the chairman of the Veterans Association and I specifically inquired about this evidence it was never given by the defendants and none of these matters figure in their final submissions. The plaintiff's evidence was that these expulsions occurred because of the matters complained of. The evidence is clear, from the letter of 9 December 2000 written by the Korean Veterans Association, that the donation by the plaintiff was within the Committee purposes, and it is clear that the donation by the Korean Veterans Association was in fact banked in the Sports Council account and not misappropriated as alleged. [105] The remaining matters relied upon are the circumstances in which 15 cheques were dishonoured (5.17), failure to keep records, excessive spending on restaurants and entertainment and that "the plaintiff managed the Committee in such a way as to cause the Auditors of the Committee to suspect that the plaintiff had misappropriated funds" (5.20). No particulars are given. Finally there is an assertion that the plaintiff took funds of the Committee "for his own private usage and for the benefit of his own company… as particularised". What particulars are referred to is not explained. [106] The supplementary particulars of justification and contextual justification served following orders made on 27 June 2007 did not contain any further particularisation concerning this imputation (see the particulars behind tab 6 of the affidavit of Mr Crumpton of 30 April 2009). [107] The later particulars in August, September and October referred to the lengthy particulars relied upon for other imputations as being relevant to this imputation. 6. Imputation 40(d): That the plaintiff impeded the working of the Committee through his self-righteous behaviour. [108] The second defendant's particulars of 12 February, 2007 relied on the plaintiff's failure to be present at the time of the Para-Olympics, his failure to "consult appropriately" with other Committee members and staff and his failure to appoint a treasurer. While the plaintiff missed the opening ceremony of the Paralympics, he was present for the rest of the time. There was no evidence led that he failed to "consult appropriately" with any committee member. There were persons appointed to be Finance Director and there were bookkeepers. [109] The revised particulars of 30 May 2007, half a page in length, rely on: (a) the plaintiff's failure to be present at the time of the Para-Olympics; (b) the plaintiff's failure to "consult appropriately" with other committee members and staff; (c) the plaintiff's failure to appoint a treasurer; (d) the plaintiff caused the resignation of Mr Sung who kept the accounts as general secretary between February and December 1999; (e) the plaintiff caused the general secretary Won Kang to resign; (f) the plaintiff's "treatment" of the seventh defendant; (g) the plaintiff's treatment of "Mrs Park"; and (h) the plaintiff's treatment of "various other Committee staff members to their observation". [110] There are obvious factual errors in (a) and (c). The plaintiff was never cross-examined about failure to "consult appropriately" with other committee members and staff. [111] The supplementary particulars of justification and contextual justification of the second defendant served following orders of 27 June 2007 do not contain any further particularisation of this imputation. 7. Imputation 40(e): That the plaintiff failed to ensure proper records were kept of the Committee's financial affairs. [112] No particulars were provided for this imputation in the particulars dated 12 February 2007 apart from the statement that the second defendant repeated the matters set out "above". [113] No particulars were provided for this imputation in the particulars dated 30 May 2007, apart from the claim that the second defendant repeated the matters set out in paragraph 3 of the particulars. References are made in Mr Finney's report to the desirability of receipt books for donations and the keeping of proper records, but there is no explanation as to why or how the plaintiff, as opposed to the paid bookkeeping staff or the persons appointed to supervise these book keepers, had failed in his obligations. [114] The omnibus particulars supplied following orders on 27 June do not further identify these records. [115] The particulars served in August, September and October again consisted of long lists of information rather than particulars in proper form. 8. Imputation 40(h): That the plaintiff misused his position as President of the Committee to gain a directorship for himself. [116] The second defendant's particulars of 12 February 2007 did not provide any particularisation in relation to this imputation, to which a defence of truth was not pleaded in its defence at that time. [117] The further particulars of the second defendant provided on 30 May 2007 simply stated that the plaintiff "caused excessive expenditure of the Committee's funds by entertaining SK Securities for the purpose of obtaining an appointment for himself as Honorary director of the [sic] that company. In total the plaintiff caused [sic] the sum of $27,400 to entertain the representatives of SK Securities". [118] The supplementary particulars of 30 June 2007 concerning justification and contextual justification of the second defendant contain no further particularisation in relation to this imputation. 9. Imputation 40(k): That the plaintiff's arrogant and self-righteous behaviour caused distress to the Committee's staff. [119] The particulars provided by the second defendant of 12 February 2007 refer to: "The plaintiff's behaviour towards the former secretary-general of the Committee, Won Kang, in promising reimbursement for a travelling allowance but failing to do so and in being aggressive when he was given advice distressed Won Kang and lead [sic] to his resignation from the Committee" [120] The other matter particularised was that the plaintiff's manner of treating the Committee's staff members and other office bearer "distressed several of them". [121] The particulars of 30 May 2007, which are half a page long, again refer to the resignations of Mr Won Kang and of Mr Sung, and to the plaintiff's "treatment" of the seventh defendant, Mrs Park and "various other Committee staff members to their observation". [122] No further particulars of this imputation were supplied in the supplementary particulars of justification and contextual justification served on 30 June. [123] References are made in the second defendant's written submissions to other resignations, including evidence from Mr Sung about the resignation of a book keeper. This was never particularised. 10. Imputation 41(b): That there were reasonable grounds for the auditors to suspect the plaintiff of making a false claim for business expenses of $9121.40. [124] The particulars of 12 February 2007 state that the plaintiff withdrew $9,121.40 for a trip to Seoul, Korea from Committee funds "without keeping any receipts or documentation of the expense supportive of any basis [sic] that the monies were used for reasons legitimately connected with the Committee's activities." [125] The particulars of 30 May 2007 repeat the plaintiff withdrew $9,121.40 for a trip to Seoul from Committee funds "without keeping any receipts or documentation of the expense supportive of any basis [sic] that the monies were used for reasons legitimately connected with the Committee's activities", and adds that he failed to cause the Committee to keep proper books and that he misappropriated funds of the Committee "as particularised". The only other difference is that second defendant refers to paragraphs 26 – 32 and 37 – 45 of Mr Finney's 2 May 2007 report in regard to these issues. Mr Finney agreed in evidence he made an error in asserting the plaintiff claimed twice for these expenses. [126] The omnibus particulars served pursuant to orders made on 27 June 2007 refer to three trips to Korea, but do not refer to any information specifically to identify how it is that this claim could be suspected of being false. [127] I note the affidavit of discovery of the plaintiff attached to Mr Crumpton's affidavit contains a category for records of the plaintiff's trip to Seoul. These probably were the travel documents accidentally handed to me during the trial (Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 at [1451] – [1455]) and which I handed to Mr Wheelhouse SC and to which I have referred elsewhere in this judgment. 11. Imputation 41(d): that the plaintiff misappropriated to his own use, money belonging to the Committee [128] The particulars for this imputation supplied on 12 February 2007 (apart from the usual reference to "the facts set out above") consisted of the following sentence: "The plaintiff withdrew and spent significant amounts of the Committee's money and was only able to offer inadequate explanation [sic] and documentation to support the fact that such expenditure was legitimately connected with the business of the Committee." [129] Given the seriousness of an imputation of misappropriation, this lack of particularisation is disgraceful. [130] The particulars of May 2007 contain seven pages identifying the following as being moneys misappropriated funds but do not identify sums with specificity or how these funds were put to his own use. [131] The 36-page particulars served following orders on 27 June assert a massive case of fraud with hundreds of entries relating to claims the plaintiff falsified banking documents to thefts of cash donations. [132] After further attempts by the defendants to particularise misappropriation on 27 August and 2 October, Mr Wheelhouse SC finally provided a list of 23 allegations of misappropriation, described as a reduced list, as follows: 1. The plaintiff drew cheques totalling $40,526.50 with one signatory contrary to Credit Union "directions" for there to be two signatories. This claim was only faintly pressed in the defendants' written submissions. 2. The plaintiff withdrew a cheque for $20,000 on 21 August 2000 without supporting documentation or a second signature. (The allegation of misappropriation concerning this cheque was changed to assert it was associated with the Joon Kim loan). 3. The plaintiff withdrew a cash cheque for $2,000 on 9 February 2000 – see 1 above. 4. The plaintiff withdrew a cash cheque for $2,300 on 14 August 2000 – see 1 above. 5. The plaintiff misappropriated $63,023.29 in cash donations as particularised in the particulars of 2 October 2007. 6. The plaintiff failed to pay into the bank cash donations totalling $96,133.00 7. The plaintiff misappropriated the donation of $200 by Wang Dae Po. 8. The plaintiff misappropriated the donation of $500 by the Korean Veterans Association. 9. The plaintiff misappropriated Mrs Kim's donation of $5,000 by using this money for Sports Council purposes. 10. The plaintiff misappropriated the Korea Telecom donation of $3,000 by using this money for Sports Council purposes. 11. The plaintiff misappropriated $3,000 cash given to him by the seventh defendant. 12. The plaintiff misappropriated a donation by Won Kang of $1,000. 13. The plaintiff misappropriated a donation by Patrick Lee of $500. 14. The plaintiff misappropriated for his own use and falsely claimed reimbursements for $10,459.00. The list of items consists largely of dinners after committee meetings, including a dinner for the second defendant. 15. The plaintiff misappropriated to his own use money to fund Sports Council trips totaling $24,624.31 and $USD1,000. 16. The plaintiff misappropriated money by repaying loans to the Sports Council and Korean Amateur Sports Association totaling $30,810.71. 17. The plaintiff falsely claimed CFM telephone reimbursements of $1,379.13. 18. The plaintiff falsely claimed $28,276.37 out of the claim he brought for reimbursement of $71,423. 19. The plaintiff made three false claims of $1,000, $2,200 and $2,788 for Korean flags, totaling $5.988.30. 20. The plaintiff misappropriated $27,540 of the donation by SK Securities. 21. The plaintiff misappropriated $90,351.77 by using this money for purposes other than Committee purposes. 22. The plaintiff misappropriated $43,591.33 by not including these sums in the list of donations published in the newspaper. [133] Mr Wheelhouse SC did not add these up for me, but the total is $504,634.71 plus $US1,000. [134] This massive particularisation includes almost every financial transaction of the Supporting Committee, which only ever received about $311,000, according to the plaintiff (Exhibit 73). It was never explained how the plaintiff had misappropriated more money than the Committee received, how the Committee was able to perform its duties satisfactorily in such circumstances, how much profit (or loss) was left over and what happened to that profit (or loss). The plaintiff could not meet such oppressive particulars so late in the case. 12. Imputation 41(f): That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee. [135] The particulars supplied on 12 February 2007 refer to the approval of expenditure of Committee funds purchased from Belmore Health Food Shop, a business owned by the vice president of the Committee, Mr Byung Doo Choi, "in circumstances where the Committee had, in March 2000, effectively resolved that its work should not be used to gain personal advantages to its members". [136] The plaintiff was never cross-examined about any such resolution, which does not appear in the Minutes of Meeting of March 2000 (Exhibit 51, p. 40). Mr Byung Doo Choi was at the 9 March meeting. Another person who was at this meeting was Mr Stephen Cho (see his signature on page 46 of the Minutes). He did not give any evidence of any matters being raised of this kind at the meeting. The Resolution is in fact a document about Korean unity which was agreed on at the 18 March Rally. Its text is set out in full elsewhere in this judgment, and it clearly has nothing to do with personal advantages of this kind. This particular of truth was abandoned at the trial. [137] The particulars of 30 May 2007 refer to the purchase of $11,255 worth of gifts from the Belmore Health Foods shop owned by the vice-president, Mr Byung Doo Choi but now the complaint is that these were purchased using "cash" cheques without a co-signatory. [138] The particulars served pursuant to orders on 27 June contain the following claims: (a) The plaintiff falsified cheque butt 165669 for $1,743 to Green Seafood, the inference being that this was not paid to Green Seafood for the purposes of the Supporting Committee or, alternatively, at all. (b) The plaintiff drew a cheque to Green Seafood for $2,177.50 without proper documentation in that Expenditure Resolution 85 does not have receipts for the cheering squad meals and the vice president Yung Suk Kym /SK Securities function. (c) The plaintiff incurred expenditure for the benefit of other organisations, which included Belmore Health Food Shop, Belmore Gifts and Green Seafood, totalling $13,381.00. [139] The omnibus particulars provided following the orders of 27 June also identify a number of other items of expenditure "for the benefit of other organisations, persons and organisations". All of these, except the Veterans Association and Korean Society, relate to the period just prior to or during the Olympic Games: (a) The Veterans Association – it is asserted that $500 paid to them for a commemorative evening on 26 June 1999 for war veterans was for the benefit of another association and not for the benefit of the Supporting Committee. A donation to the Veterans Association of $250 at this time was also objected to (I note that the Veterans Association was a member of the Supporting Committee and made a donation to the Committee) as is a donation of $2,000 to the Korean Society on 1 December 1999. The objection to the Korean Society donation was abandoned. (b) The Korean Association of Choirs – it is asserted that the donation of 3,000 Olympic flags to them on 5 June 2000 (costing $1,000) was not for the benefit of the Supporting Committee. This particular was not pressed at trial concerning this imputation. (c) The Christian Review – it is asserted that the donation of flags (costing $1,000) on 5 July 2000 for a Christian Rally in the Olympic Stadium to celebrate the imminent Olympics was not for the benefit of the Supporting Committee. This particular was not pressed concerning this imputation. (d) The Soccer Association – it is asserted that giving support for preliminary games the Korean Olympic Soccer team played in South Australia in September 2000 just prior to coming to Sydney for the Olympics was for the benefit of an organisation other than the Supporting Committee. It transpired during the evidence that there were Supporting Committee branches in other States. Even the fourth and fifth defendants had considered it was permissible for the Supporting Committee to pay this money, and said so in the matter complained of. This particular was not pressed at trial. (e) The Tennis Association – it is asserted that a donation of $800 made on 3 October 2000 was made for the benefit of an organisation other than the Supporting Committee but this claim was not pressed at the trial concerning this particular. (f) Daeho Travel – it is asserted that a donation of $3,000 for support for Korean Soccer on 3 October 2000 was for the benefit of an organisation other than the Supporting Committee. I never heard any claims about Daeho at the trial. (g) Korean Journalists Association – a donation for the Paralympics of $1,200 was similarly objected to. This assertion appears to have been abandoned in relation to this imputation. (h) National Athletics Meeting, Korea – payment of a bill from CK Tailors for $3,180.90 for sports uniforms was similarly objected to but not raised concerning this imputation. (i) Ilwon Park – a donation of $1,000 on 28 September was similarly objected to. Ilwon Park was the editor of a newsletter for the disabled, and the donation related to the Para Olympics. It was relied upon for other imputations as being a donation outside the purposes of the Supporting Committee, but not for this imputation. (j) Following on from these new matters, on page 30 of these particulars, the Belmore Health Food Shop, Belmore Gifts and Green Seafood matters are listed. [140] No particulars are provided to identify why these items have been singled out, or what the benefit was, and what the plaintiff's role in these transactions was. Apart from the Belmore Health Food claim, these claims were all later abandoned in relation to this imputation. They were asserted to be matters on which the Committee was using funds outside its purposes, which amounted to contextual misappropriation. 13. Imputation 42(d): That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself. [141] The particulars set out in the second defendant's letter of 12 February 2007 consist of one sentence: "The plaintiff claimed that expense of $1,100 for a donation to the Uniting Church for the use of grounds when the Uniting Church only received $400.00 of that alleged donation." [142] The particulars provided following the order on 27 June 2007 do not refer to this imputation at all. Later particularisation is scant and unhelpful. 14. Imputation 43(d): That the plaintiff misappropriated public money. [143] The second defendant did not plead truth to this imputation in the amended defence of 7 February 2007 and provided no particulars for this imputation in the letter of 12 February 2007. Given the different subject matter of this publication, and the seriousness of this imputation, that is unfortunate. [144] Further, the second defendant in the particulars of 30 May 2007 once again did not supply particulars for this imputation, but relied upon "the particulars to paragraph 10 of the particulars of justification". [145] This imputation is not referred to at all in the list of imputations set out at paragraph 1 of the particulars served pursuant to the orders made on 27 June 2007. That is also a serious omission. [146] It was not until the particulars supplied on 27 August 2007 that any particulars were supplied. What was relied upon was the same massive documentation of almost every transaction in the Supporting Committee's history. The defendants did not bring an application to amend the defence to plead justification to this imputation until 30 April 2009, after the evidence in the trial was completed. Conclusions concerning late and inadequate provision of particulars [147] I am of the view this history of failure to supply proper particulars is sufficiently serious to warrant the exercise of my discretion pursuant to s 48A to award indemnity costs for some or all of the hearing time. [148] I again note the concession by Mr Richardson concerning the prolixity of the cross-examination of the plaintiff by Mr Wheelhouse SC. [149] However, what proportion of the trial time should be the subject of the costs order, and what allowance should I make to take into account the plaintiff's unreadiness for the hearing to continue in May 2008, when the hearing resumed after the Court of Appeal judgment (Lee v Cha [2008] NSWCA 13) was handed down? Should costs be awarded for the whole or for part of the trial on liability and quantum? [150] The second defendant's conduct of the litigation prior to February 2007, apart from failure to particularise the two imputations to which truth was pleaded, was unremarkable. There is no basis for awarding costs on an indemnity basis prior to the trial. [151] The matter was set down for a four-week trial. Whether it would have taken longer or shorter is hard to determine, but the parties' estimates at the time should be regarded as a realistic calculation. [152] If the second defendant's defence had been properly particularised, concentrating on the few actual omitted donations and names of donors for which it appeared there was insufficient explanation, rather than pursuing vast claims for "contextual misappropriation" for bona fide donations to handicapped associations, sports associations or Korean choirs, the case could have been conducted within the time estimate of the parties. It was the prolix cross-examination of the plaintiff and enlargement of the particulars (some of them, such as the Korean Veterans Association allegations, hopeless) that made this impossible. [153] Taking the above into account, I consider the extension of trial time beyond the four weeks allotted (subject to the 2008 trial time) should be the subject of an indemnity costs order. This costs order reflects the time wasted, which is a more accurate and less punitive way of determining the s 48A issues. Allowance for delay in the conduct of the trial by the plaintiff's lawyers in 2008 [154] However, I do not consider the plaintiff should be entitled to indemnity costs for the conduct of the trial during 2008. The circumstances in which Miss Evans has to conduct a lengthy, complex part-heard matter, whether Mr Evatt was "sacked" as he asserted or not, was difficult for everyone. Miss Evans was obliged to seek a series of adjournments and to recall witnesses where evidence was overlooked. These comments should not be read as any criticism of Miss Evans, who did the best she could in difficult circumstances, but the defendants should not be penalised for the plaintiff's lawyers' conduct during this period. Accordingly I have allowed for the indemnity costs for the rest of the hearing, but excluded the considerable period of time wasted in 2008. Ancillary costs matters [155] In Webster & Thompson v Coles Myer Ltd (No 2) [2009] NSWDC 128 at [4] – [5] I made an order for costs for two junior counsel in a defamation matter. I am satisfied that the complexity of these proceedings warrants the making of a similar order here. C. Stay of proceedings [156] In support of the application for a stay, the solicitor for the second defendant has filed an affidavit which attaches property searches of a residential property and factory premises at Silverwater which are secured by a mortgage. The plaintiff is the director of a family business in automotive engineering. There was evidence at the trial that this business was adversely affected by publication of the matters complained of, but no claim for special damages was brought. After seven years of combative litigation, including two section 7A trials, a lengthy hearing on liability in four tranches (between May 2007 and April 2009) following by eight months of written submissions, two appeals to the Court of Appeal and one for leave to appeal to the High Court (in which he was successful). During the trial the plaintiff had difficulty paying legal fee. In 2008, following the second appeal to the Court of Appeal, he could not pay his lawyers and changed solicitors several times, and after the evidence was completed his most recent solicitors sought to withdraw from the case: Cha v Oh (No. 21) [2009] NSWDC 130. The second and fourth defendants submit that the plaintiff is impecunious and the risk of the plaintiff being unable to repay funds in the event of a successful appeal is high. [157] In response, counsel for the plaintiff notes the plaintiff's evidence to the court that he paid his lawyers $175,000 this year alone in legal fees, that he had successfully recovered legal fees for the Court of Appeal and High Court proceedings from the defendants, that he was conducting a company business from the factory owned by the company, that he had never made a claim for special damages arising from the publications and that his financial position was only rendered difficult by the conduct of the defendants in this litigation including their prolongation of the case by the prolix cross-examination and end lengthening of the case as set out above.. Principles governing a stay pending appeal [158] A successful party is entitled to the benefit of the fruits of a judgment unless the opposing party can demonstrate a reasonable basis for ordering a stay: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 861; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. These principles apply in defamation proceedings as well: Andrews v John Fairfax & Sons Pty Ltd [1979] 2 NSWLR 184 at 189B per Maxwell J. [159] The appellant must satisfy the court that the appeal "raises serious issues for determination of the appellate court" and that there is "a real risk that the appellant will suffer prejudice or damage if a stay is not granted which will not be redressed by a successful appeal" (Zian Fu v Kiem Dang Investments Pty Ltd [2009] NSWCA 380 at [2] per Hodgson JA, dismissing the appeal. [160] In the present case, the second and fourth defendants were not in any position to tell me the issues of law upon which it will be argued that I have erred in my judgment, because their legal advisors have not yet finished the judgment. The application proceeded on the assumption that there would be serious issues for determination, not because this was conceded by the plaintiff, but because it was the wish of all the parties that this deeply distressing litigation, the trial of which commenced in August 2004, should not go into a sixth year. [161] The evidence of there being a risk of any kind is scant. The plaintiff's home and factory each has a first mortgage of unknown size. The plaintiff runs a family business which has been operating successfully for several decades. [162] The second defendant put forward a number of proposals which Mr Evatt pointed out would deny the plaintiff the benefit of court-ordered interest. He proposed the second defendant pay $100,000 in 28 days as this way the plaintiff would have immediate use of the money. Given the large number of publications and the moderate scale of damages for each, any reduction of damages by the Court of Appeal seems likely to go below this figure and having regard to the orders made by Allen J in Hartley v Nationwide News Pty Ltd (Supreme Court of NSW, 4 May 1995, unreported) I consider this is an appropriate step to take. The plaintiff in Hartley was awarded a record $830,000 damages by the jury and this award was in fact set aside in the NSW Court of Appeal. [163] I have considered the issue of quantum as being of more relevance than liability because in practical terms, given the fact that the imputations are spread over seven publications, the second defendant may have difficulty in succeeding on appeal in relation to all of them. The evidence for the imputations which attacked the plaintiff's character was particularly thin. [164] The second defendant also sought orders in relation to a stay on costs. I have granted this stay, and also a stay of all orders against the fourth defendant. The parties may, of course, apply to the Court of Appeal at any time to vary these orders. [165] The NSW Court of Appeal was quick to hear both appeals brought in these proceedings and in handing down both its decisions, as was the High Court of Australia, but the time involved in preparation of these appeals was the principal reason for the proceedings not being able to commence until May 2007 and for losing a year between the September 2008 and March 2009 hearings, in that the cost and stress of the second appeal appears to have had a devastating impact on the plaintiff's financial and emotional resources. [166] Appeals to the Court of Appeal during the course of defamation trials have become increasingly common following the 11 applications made by the defendant in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510. I am reluctant to suggest that some speedier way be found to deal with these matters as it probably only result in more applications. However, one change that would be beneficial would be for the setting up of a procedure to inform the court below where applications of the kind made in Lee v Cha [2008] NSWCA 13 are brought. The joinder of "the Judges of the NSW District Court" (an unknown legal entity) as a party against whom orders were sought was discovered only by accident, and only the week before the hearing, as no notice was given by the second defendant to this court (or, I understand, to the respondent to the appeal) and no documents served. Orders [167] I make orders concerning interest, costs and the application by the second and fourth defendants for a stay as follows: Interest [168] Interest at the agreed rate of 3% awarded on each of the judgment sums as follows: [169] Vary order (3) of my judgment dated 8 December 2009 to read: "(3) Judgment for the plaintiff for a total of $303,834.09 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000 plus interest of $5,319.51, making a total of $25,319.51; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000 plus interest of $2,659.75, making a total of $12,659.75; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000 plus interest of $13,298.77, making a total of $63,298.77; (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000 plus interest of $3,989.63, making a total of 18,989.63; (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000 plus interest of $2,659.75, making a total of $12,659.75; (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000 plus interest of $1,329.88, making a total of $6,329.88; (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, plus interest of $1,329.88, $797.93 and $531.95 respectively, making a total of $12,659.76." Costs (1) Vary order (6) of my judgment of 8 December to provide that costs of these proceedings for the period 25 September to 12 December 2007 and for 23 March 2009 onwards are to be paid by the second defendant on an indemnity basis. (2) Otherwise dismiss the plaintiff's application for indemnity costs pursuant to s 48A. (3) I certify for representation of the plaintiff by two junior counsel. Stay of proceedings (4) The second defendant's application for a stay (including a stay in relation to legal costs) is granted, but upon compliance with the following steps: (a) The second defendant is to pay the plaintiff (or his solicitors, upon receipt of a signed Authority to Receive) the sum of $100,000.00 within twenty-eight (28) days of the date of making these orders, namely 14 December 2009; and, (b) The second defendant is to file a Holding Summons or Notice of Appeal within twenty-eight days of the date of making these orders, namely 14 December 2009; and, (c) The second defendant undertakes to the court to commence and prosecute the appeal in these proceedings expeditiously. (5) In the event of any failure to comply with any of the above steps, the plaintiff has liberty to apply on 2 days notice to have the stay revoked. (6) The fourth defendant's application for a stay is granted, including a stay of any claim for legal costs. I certify the above judgment to be a true copy of Her Honour Judge J C Gibson's reasons for decision dated 14 December 2009 ………………………………………….. Associate to Judge Gibson ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.