Lee v Kim [2002] NSWSC 353

New South Wales Supreme Court

CITATION : Lee v Kim [2002] NSWSC 353 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20038 of 2000 HEARING DATE(S) : 7 December 2001 JUDGMENT DATE : 26 April 2002

JAE KYUNG LEE (Plaintiff)

PARTIES : v

CHUNG-YAP KIM (Defendant) JUDGMENT OF : Levine J

M Rollinson (Plaintiff) COUNSEL : C Dibb (Defendant)

J Doolan SOLICITORS : (Plaintiff)

(Defendant - in person) CATCHWORDS : Post-7A trial - leave to amend defence - truth - qualified privilege - particulars - circumstantial case - interstate defences LEGISLATION CITED : Defamation Act 1974 Assaf v Skalkos [2000] NSWSC 418 Bowin Designs Pty Ltd and Joyce v Australian Consumers Association [1996] A Def R 52,078 CASES CITED : Deren v State of new South Wales (1998) Aust Torts Rep 81-463 Stephens v West Auatralian Nwewspapers Ltd (1994) 182 CLR 211 Toyne v Everingham (1993) 114 FLR 299 DECISION : See paragraph 28

DJL:1 [2002] NSWLR 353 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list

JUSTICE DAVID LEVINE

FRIDAY 26 APRIL 2002

20038 of 2000

JAE KYUNG LEE (Plaintiff)

v

CHUNG-YUP KIM (Defendant)

JUDGMENT (Post s7A trial – leave to amend defence – truth – qualified privilege – particulars – circumstantial case – interstate defences) 1 The plaintiff, Mr Lee, has the benefit of a jury finding one imputation as having been carried by the relevant matter complained of and having been found to be defamatory. It was found that the defendant in his Korean language newspaper "Korea-Oceania Business Review" had, in May 1999, published of the plaintiff that "the plaintiff arranged to have Hyun Sung Choi assaulted". 2 By Notice of Motion filed on 29 October 2001 the defendant seeks leave to file what is described as an Amended Defence as to non-7A issues. The defendant also seeks to have struck out from the plaintiff's second Further Amended Statement of Claim's allegations as to publication of the matter complained of outside New South Wales. In support of the Motion an affidavit sworn by the defendant on 29 October 2001 was relied upon. That affidavit annexes the exchange of correspondence between the Parties relating to some of the matters in issue. 3 In support of the Defence pursuant to s15 of the Defamation Act, 1974 (justification) the following have been provided in the proposed Amended Defence by way of Particulars: "(i) On 27 April 1999, Mr Hyun Sung Choi held a press conference. (ii) On the evening of 27 April 1999, the Plaintiff was dining at the Asawon Restaurant, 179 Beamish Street, Capmsie in the company of Mr Seung Yeol Park and Mr San Ki jin, amongst others. (iii) During the course of the evening, the Plaintiff telephoned Mr Hyun Sung Choi from the Asawon Restaurant on at least two occasions, during which calls the plaintiff was abusive and made threats against Mr Hyun Sung Choi. (iv) During the first of these telephone calls, the Plaintiff said words to the effect of: "I do not allow you to live in Australia. I will kill you. I will bury you alive. I will remove all your family from Australia." (v) During the second call, the Plaintiff said words to the effect of: "Where are you?" (vi) Mr Choi responded: " I am at Gold Music Studio Belmore. Please Sir, ring me tomorrow." After which he hung up. (vii) Within 30 minutes of the telephone call in (vi) above, Mr San Ki Jin and Mr Seung Yeol Park arrived at the Gold Music Studio and immediately commenced to assault Mr Choi. (viii) Mr Choi had never met Mr San Ki Jin or Mr Seung Yeol Park before. (ix) On or about 30 April 1999, the Plaintiff caused to be paid to Mr Choi the sum of $10,000 in cash by way of apology for the assault. (x) Subsequently, in or around December 2000, the Plaintiff caused to be paid to Mr Choi a further $30,000 in cash by way of apology for the assault." 4 It is submitted on behalf of the plaintiff that the Particulars do not "address" the substance of the imputation namely that the plaintiff arranged to have the victim assaulted. For the defendant it is in effect conceded that the matters particularised would constitute a bare "circumstantial" case: there is a gap in the specification of any fact, matter or circumstance linking the plaintiff to the two aggressors. 5 I am not persuaded that the Particulars are rationally incapable of informing the plaintiff of a case the defendant proposes to bring in support of its plea of truth. Ultimately it will be a matter for the tribunal of fact (a judge) to determine whether or not any of the matters particularised, on the balance of probabilities (bearing in mind the gravity of the charge) amounts to proof of the substance of the imputation. I decline to refuse leave on this basis. 6 The defendant next objects to so much of the proposed Amended Defence as pleads a defence of qualified privilege at common law. The Particulars of qualified privilege under that head are as follows: "(ii) The readership of the Defendant's newspaper comprises solely members of the Korean community in Australia who have a particular interest in receiving information as to the appropriate person to be elected President of the Korean Society, an organisation representing their community. (iii) The Defendant was under a duty to communicate facts and matters relevant to the interest of the readers of the Defendant's newspaper in an appropriate person being elected to the Presidency of the Korean Society. (iv) The Defendant's newspaper is published only in the Korean language and is distributed only through selected Korean places of business. (v) The matter complained of was published in the course of political debate and discussion of the fitness of the Plaintiff for office and was inherently of interest to all readers by reason of their membership of the Korean community in Australia. (vi) The extent of the publication of the matter complained of in the Defendant's newspaper was reasonable in the circumstances."