District Court New South Wales Medium Neutral Citation: Ha v Cho (No. 2) [2015] NSWDC 210 Hearing dates: 10 September 2015 Date of orders: 10 September 2015 Decision date: 10 September 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Note the parties' agreement that issues of capacity are reserved to the trial, as these are proceedings for slander. (2) Pursuant to UCPR r 14.28, imputation (b) be repleaded as a fall-back to imputation (a). (3) Plaintiff pay defendants' costs. (4) Plaintiff's amended statement of claim in 7 days. (5) Defences 21 days thereafter. (6) Matter stood over for further directions to Thursday 8 October 2015. Catchwords: TORT – defamation – slander – form of imputations –fall-back imputations Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.28 Cases Cited: Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] QSC 196 Ha v Cho [2015] NSWDC 169 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 Provost v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, Levine J, 18 September 1998) Category: Procedural and other rulings Parties: Plaintiff: Jim Jeeu Ha First Defendant: Kiu Nam Cho Second Defendant: The Hoju Hankook Ilbo Pty Ltd Third Defendant: Jik Soon Koh Representation: Counsel: Plaintiff: Mr M K Rollinson First Defendant: Mr M Richardson Second and Third Defendants: Mr R Rasmussen Solicitors: Plaintiff: Teddington Legal First Defendant: Hayashi & Hong Lawyers Second and Third Defendants: M Legal File Number(s): 2015/118393 Publication restriction: None Judgment 1. These are proceedings for defamation, in which the form of the matter complained of had already been the subject of a ruling: Ha v Cho [2015] NSWDC 169. This judgment contains short reasons for the orders I made on 10 September 2015 concerning the pleading of imputation (b) as a fall-back to imputation (a). 2. The imputations the subject of this ruling are: 1. The plaintiff took part in an assault on the first defendant. 2. The plaintiff helped Horim Song to assault the first defendant. 1. The parties agree that the question at the hearing will be whether the words spoken conveyed imputation (a), namely that the plaintiff took part in an assault, or the lesser imputation (imputation (b)), namely that he helped Mr Song to assault the first defendant without actually taking part in that assault. The question is the form in which those imputations should go before the tribunal of fact. Should the plaintiff be forced to choose between the two imputations, or to plead imputation (b) (which is agreed to be of lesser seriousness) as a "fall-back" to imputation (a)? 2. The circumstances in which a party may plead "fall-back" imputations of lesser seriousness is set out in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [75]-[81], [88] and [132] per Hunt AJA. Santow JA stated at [7]: "Finally, I agree generally with the observations of Hunt AJA on the undesirable pleading practice that appears to have arisen more recently in defamation proceedings. While those observations were not necessary for the disposal of the appeal, they were the subject of discussion in these proceedings, and have an underlying bearing upon applications to amend by adding new imputations. If the original pleading of an imputation adequately distils the act or condition attributed to the plaintiff there should be less likelihood of any need to amend by adding new imputations, particularly of the fall-back kind held back for unjustified forensic advantage." 1. However, these reservations about the use of "fall-back" imputations need to be read in context. The plaintiff in those proceedings had pleaded imputations at a higher level at a section 7A jury trial (s 7A Defamation Act 1974 (NSW)) in relation to a written publication and, when the jury rejected those meanings, sought to add additional imputations of lesser seriousness. That is not the case here. Both parties agree (as is reflected in the orders) that as this is a slander case, the nature of the imputations conveyed, and the defamatory sting, will depend very much on what is found to have been said. In those circumstances, it is entirely proper for the plaintiff to plead imputations (a) and (b). However, since it is conceded that they cannot arise at the same time, the preferable course is that submitted by Mr Richardson, namely for the plaintiff to plead imputation (b) as a fall-back to imputation (a). 2. The Court of Appeal's strictures were reserved for cases where too high an imputation is pleaded (for a recent example, see Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750). Nevertheless, fall-back imputations have a role to play in slanders, where an imputation of guilt or reasonable suspicion is pleaded (Provost v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, Levine J, 18 September 1998)) or where imputations of lesser seriousness are clearly capable of arising: Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] QSC 196 at [26]. 3. As the defendants were successful in their application, the plaintiff should pay the defendants' costs. Orders 1. Note the parties' agreement that issues of capacity are reserved to the trial, as these are proceedings for slander. 2. Pursuant to UCPR r 14.28, imputation (b) be repleaded as a fall-back to imputation (a). 3. Plaintiff pay defendants' costs. 4. Plaintiff's amended statement of claim in 7 days. 5. Defences 21 days thereafter. 6. Matter stood over for further directions to Thursday 8 October 2015. ********** 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. Decision last updated: 23 September 2015