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." 7 The plaintiff argues that the matter complained of being a "newspaper article" is not amenable to such a defence. Only in exceptional cases can the reciprocity of duty and interest exist between a newspaper and its readers to found the occasion of privilege: Deren v State of New South Wales (1998) Aust Torts Rep 81-463 and (1999) Aust Torts Rep 81-502 –Court of Appeal. That proposition must be accepted to be correct subject to the exceptional circumstances. 8 The publication complained upon is in a foreign language community newspaper of limited circulation and purpose, so it seems to me. In Assaf v Skalkos [2000] NSWSC 418 (26 May 2000) Carruthers J was confronted with a similar situation in relation to a publication in the community journal "Novosti". Carruthers J at paragraph 197-205 (importantly after the trial and the consideration of evidence) reviewed the issue particularly in the light of the judgment of McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 considering that the communication of appropriate information in that journal would fall within the category of privilege identified by his Honour in the High Court. Upon this authority for the purposes of this application the defendant relies, as he does on Bowin Designs Pty Ltd and Joyce v Australian Consumers Association [1996] A Def R 52,078 and Toyne v Everingham (1993) 114 FLR 299. 9 It seems to me that by virtue of the subject matter, and especially the nature of the publication, that on a question of leave it would be inappropriate to refuse the same on the basis that it cannot now be argued that any defence is unavailable. As in Assaf v Skalkos it might well be that the trial judge will be in a position, upon the hearing of evidence, to determine the availability of the defence of privilege at common law in the special circumstances of this litigation. I decline to refuse leave on that basis. 10 Complaint is next made by the plaintiff of the proposed defence pursuant to s22 of the Defamation Act, 1974 which has been particularised as follows: "(i) The Defendant repeats paragraph 3(i) to 3(vi). (ii) The Defendant invited the Plaintiff to comment or respond prior to the publication of the matter complained of. (iii) The Defendant published the response of Mr San Ki Jin. (iv) At the time of the publication of the matter complained of, the defendant had been informed by Mr Choi of the contents of the telephone calls between the Plaintiff and Mr Choi and of Mr Choi's belief that the men who assaulted him had been set on to do so by the Plaintiff. (v) The Defendant had been given a copy of Mr Choi's press release of 19 May 1999. (vi) The Defendant had interviewed Mr Yong Jae Lee, who was the person in charge of the Plaintiff's campaign for election as President of the Korean Society and who was the man who actually handed over the payment of $10,000 to Mr Choi on behalf of the Plaintiff (see paragraph 2(vii)) and the Defendant had been told by Mr Yong Jae Lee of the circumstances of that payment. (vii) The defendant did not intend to convey the imputation in question. (viii) However, because of sub-paragraphs (iv) to (vi) above, the Defendant honestly believed the imputation in question to be a matter of substantial truth. (ix) The Defendant intended to convey the imputation that allegations had been made that the Plaintiff had procured the assault of Mr Choi. (x) Because of sub-paragraphs (iv) to (vi) above the Defendant honestly believed the intended imputation to be a matter of substantial truth." 11 By reference to what are often described as the criteria in Morgan v Mirror Newspapers Ltd (1991) 23 NSWLR 374 at 387, the plaintiff contends that these particulars point to an impossible case. The jury's finding that the pleaded imputation was conveyed, it is submitted, entails that it as "reasonably foreseeable" by the defendant that the matter complained of would convey it. The defendant does not claim that he considered the possibility or that since he did not intend to convey it he took any step to prevent the matter complained of from being understood as conveying it. The "impossible case", it is argued, is that the defendant did not intend to convey the imputation but believed it to be true and conveyed what he believed but did not intend to convey. He believed in the truth of the lesser imputation that there were allegations that the plaintiff had arranged assault of the victim. All these are very interesting propositions but I am disinclined to prevent a defendant from pleading a case which I am not persuaded is embarrassing to the point of it being required to be excluded. Again, and particularly after the administration of interrogatories, it might well be that the issue raised for the plaintiff can be revisited; otherwise it is quintessentially a matter for trial. 12 The next objection is taken to the Defence pleaded pursuant to s16 of the Defamation Act (contextual truth). 13 The defendant contends that the matter complained of carries the following defamatory imputations: "(i) The Plaintiff is an associate of thugs. (ii) The Plaintiff is a violent person. (iii) The Plaintiff's violent nature caused Mr Hyun Sung Choi to accuse him of the attack on him. (iv) The Plaintiff has such a close relationship with violence that he is reasonably suspected of being the instigator of violence in some cases". 14 The Particulars in support of the contextual truth defence are as follows: "(i) On 30 July 1989, the Defendant was assaulted by the plaintiff's secretary, Mr Tae Il Kang, and his brother, Mr Seung Sam Kang, another associate of the Plaintiff. (ii) Mr Tae Il Kang and Mr Seung Sam Kang were convicted for that assault at Burwood Local Court. (iii) When the two offenders were arrested by police for that assault, the Plaintiff so sought to hinder the police in making the arrest that he was himself arrested. (iv) Also in 1989, the Plaintiff's secretary, Mr Tae Il Kang, assaulted Mr Won Bong Ko, breaking several of his ribs. (v) On 22 June 2001 at the conclusion of the s7A trial in this matter, the Defendant, an interpreter, the Defendant's counsel and the Defendant's then solicitor, Mr Darryl Barlow, had a conference in a conference room at the Supreme Court. (vi) In the course of the conference, Mr Barlow asked the Defendant to give his current home address. (vii) As soon as the interpreter realised what was about to happen, she put her fingers into her ears and ran from the room in apparent fear at becoming privy to the Defendant's address. (viii) A little later the interpreter called from outside the room to check that the Defendant had finished giving his address before she would agree to return to the room." 15 With respect to proposed contextual imputations (i) and (iv) they do not differ in substance one from the other and I will not grant leave to plead contextual imputation 5(i). 16 In relation to contextual imputation 5(ii) that means no more and no less than the imputation in fact found by the jury. It is not a meaning (assuming it to be capable of being carried) carried at the same time and in addition to the imputation found by the jury, I will refuse leave to file a defence pleading contextual imputation 5(ii). 17 As to contextual imputation 5(iii) I have read the translation of the matter complained of and simply cannot understand how it could be found as a matter of fact that this imputation is capable of being carried. Assuming it is capable, it "adds nothing" to the imputation in fact found by the jury. I will refuse leave to file an amended defence containing contextual imputation 5(iii). 18 As to contextual imputation 5(iv) I have given this a great deal of thought particularly in the light of the contents from lines 7 to 32 on page 5 of the matter complained of which includes the words "there would unfortunately be a special relationship between Mr Jae Kyung Lee (the plaintiff) and violence". 19 I find that the matter complained of is capable of carrying contextual imputation 5(iv). I am not persuaded that leave should be refused to plead it in terms of all the requirements of s16. This will be a matter of fact for the trial judge and indeed a matter of law. The imputation found by the jury is incident specific and grave. The proposed contextual imputation 5(iv) is generalised, grave and is carried at the same time and in addition to the found imputation. It should go to trial. 20 As to the Particulars in support of contextual truth, again, not unlike those in those Particulars in support of the s15 Defence, these on their face point to a circumstantial case. However the plaintiff is entitled to further and better and very clear particulars that amplify Particular 6(iii) as to his "hindering the police". 21 As to particulars 6(v) to 6(viii) these on their face are incomprehensible but I gather from submissions made that they point to a situation said to be that the plaintiff has such a standing in terms of inducing fear in the community that even a Korean interpreter would not wish to know the details of the defendant's address. This is an allegation of a set of facts absolutely beyond reason in terms of connection with the plaintiff and leave will be refused to include them in the proposed Defence. 22 Finally an issue has been indicated as likely to explode in relation to the plaintiff amending his Statement of Claim on 22 June 2001 pursuant to leave granted by Badgery-Parker AJ inter alia to plead publication in other States and Territories. The defendant seeks to have that part of the Pleading struck out and the plaintiff seeks to have the defendant's purported interstate Defences struck out. 23 I do not consider it appropriate to strike out, at this stage, an allegation made by the plaintiff in an Amended Pleading in respect of which leave to file was granted. Further I am not inclined to strike out the Defences of the defendant. 24 It is appropriate here to remark that a plaintiff and his or her advisers should give very serious consideration to the desirability of making an allegation as to interstate publication. Cases involving for example "Four Corners", "The Australian", " The Financial Review" or nationally telecast or broadcast television or radio programmes may be one thing. A small community foreign language newspaper is another. The plaintiff should exercise caution because that plaintiff will be confronted not only by interstate defences but, on the probabilities, applications or the need to make an application of the most complex kind, prior to trial, to deal with the relevant law in relation to such defences. If the publication complained of is in every real sense purely local to or within New South Wales, the vindication that the plaintiff receives for publication in that State or for publication in the community within that State should be sufficient, even if it may be capable of being proved that the publication "dribbled" outside the State. A proper sense of proportion and reality should be sustained in this regard. 25 The plaintiff has indicated that the defendant has sought particulars of publication of the matter outside New South Wales. The plaintiff has said he will supply them shortly. The plaintiff must particularise a case, especially in the instant litigation, with precision as to interstate publication. If necessary the plaintiff can move the court for leave to administer interrogatories. I see no point on embarking on the complex matter of the availability of "Polly Peck defences and similar issues when there is aserious question whether there was any interstate publication at all. 26 It seems to me that the appropriate course is to leave the proposed interstate defences in place in the proposed pleading until the plaintiff's case on interstate publication is clarified. I will order the plaintiff within 21 days to provide full and proper Particulars of the allegation of interstate publications. If the plaintiff does not do so the defendant can have that part of the pleading struck out or the plaintiff can seek leave to administer interrogatories. 27 Otherwise the outcome of the applications heard by me is evenly balanced and each party will pay their own costs. 28 The formal orders are: 1. The defendant has leave to file an Amended Defence as to non-7A issues within 21 days. 2. Such Amended Defence is not to include contextual imputations 5(i), (ii) and (iii). 3. The defendant, within 21 days, is to provide further and better particulars of the allegation, previously particularised as particular 6(ii) of "hindering police". 4. Each party is to pay his own costs. 5. The matter is to be listed in the Registrar's Defamation Directions list on 31 May 2002. ********** Last Modified: 05/02/2002 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.