Giuong Van Phan v The Vietnamese Herald Pty Ltd & Anor [2006] NSWSC 247

New South Wales Supreme Court

CITATION : Giuong Van Phan v The Vietnamese Herald Pty Ltd & Anor [2006] NSWSC 247

HEARING DATE(S) : 28 March 2006

JUDGMENT DATE : 6 April 2006

JUDGMENT OF : Simpson J

DECISION : Proceedings permanently stayed. Plaintiff to pay defendants' costs.

CATCHWORDS : defamation - whether binding agreementas to compromise of proceedings - parties intended to end proceedings and avoid unnecessary expenditure

Giuong Van Phan - Plaintiff PARTIES : The Vietnamese Herald Pty Ltd - 1st Defendant Nguyen The Khiet - 2nd Defendant

FILE NUMBER(S) : SC 20368/05

COUNSEL : CA Evatt / CJ Dibb - Plaintiff BR McClintock SC / RJ Brender - Defendants

SOLICITORS : Ho Ledinh - Plaintiff Janice Vu and Associates - Defendants

LOWER COURT DATE OF DECISION : 28/03/2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

SIMPSON J

Thursday 6 April 2006

20368/05 Giuong Van Phan v The Vietnamese Herald Pty Ltd & Anor

JUDGMENT: On notice of motion for permanent stay of proceedings 1 HER HONOUR: The issue for present determination is whether the parties have reached a binding agreement that ought to be enforced by the court as to the compromise of the proceedings. The defendants' position is that they have; the plaintiff to the contrary. 2 The proceedings were commenced by statement of claim filed on 28 October 2005. The plaintiff claimed damages in defamation against two defendants. He alleged that, in the issue of 25 May 2005 of a newspaper called Vietluan, (which translates to "Vietnamese Herald"), and which is published in the Vietnamese language, the defendants published an article of and concerning him that conveyed a series of defamatory imputations. He sued the first defendant (Vietnamese Herald Pty Ltd) as the publisher of the newspaper; the second defendant (Nguyen The Khiet) as its editor. The statement of claim was filed on the plaintiff's behalf by his solicitor, Ho Ledinh. A notice of appearance for the defendants was filed by Janice Vu and Associates, solicitors. That is, all parties were legally represented. 3 It is the defendants' contention now that events that followed the filing and service of the statement of claim resulted in an agreement between the plaintiff and the defendants that the action would be compromised by way of the publication by the defendants of an apology; that this agreement constituted a binding contract; that the defendants have in fact performed their part of the bargain and published an apology in the agreed terms; and that, even if the apology is not (as is contended by the plaintiff) in precisely or sufficiently the terms agreed, that the agreement remains binding and can and will be performed. By notice of motion filed on 28 February 2006 they seek a permanent stay of the proceedings. 4 I now turn to record the relevant events. All documents to which I refer were originally in the Vietnamese language, and have been translated into English. There is only one, minor, (and, so far as I can see, immaterial) disagreement as to the accuracy of the translations. 5 On 29 December 2005 a Nguyen Hung Quoc sent, by email, a communication to the defendants and to the plaintiff. I will reproduce it in full: "Dear Anh Dung and Kiet, This afternoon, I've just had lunch with Mr Phan Van Giouong. We talked about his lawsuit against Vietluan. Some of the main points of our conversation were as follows: 1) Mr Giuong stated that he sued Vietluan because he felt his honour had been offended, not because he had any ill will towards Vietluan. 2) Mr Giuong is ready to drop his lawsuit if he receives a public apology published on Vietluan. (In my understanding this is the only condition that he demanded). 3) The content of that apology is as such: 'Having published unproven information that hurt his reputation.' 4) The apology can be signed by either Tu Com [the author of the article] or Vietluan. Whoever signs it – the apology is to be published in the section: 'Vui Buon Voi Ban Doc', the column written by Tu Com. As a friend of both sides, I reckon his request is logical, reasonable and beneficial for both sides. It will terminate a lawsuit that could last for a long time and consume a lot of money as well as time. (Lawyers are the only ones who will benefit from this case). If Vietluan agrees, you can inform your lawyer to contact Mr Giuong's lawyer in order to carry out the terminating process as soon as possible. Wish Dung and Kiet a Happy New Year.