District Court New South Wales Medium Neutral Citation: Yuen v Chan [2016] NSWDC 157 Hearing dates: On the papers Date of orders: 04 August 2016 Decision date: 04 August 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Imputations 9.1, 9.12, 13.4, 13.7, 13.9, 13.15, 13.16, 13.17. 13.19 will go to the jury. (2) Imputations 9.3, 9.6, 9.7, 9.13, 9.15, 13.3, 13.18, 13.20 are struck out. (3) Imputations 9.2, 9.4, 9.5, 13.1 and 13.8 are struck out with leave to replead. (4) Imputations 13.2, 13.5 and 13.6 are struck out with leave to replead as one imputation. (5) Imputations 13.10, 13.11 and 13.12 are struck out with leave to replead as one imputation. (6) Imputations 13.13 and 13.14 are struck out with leave to replead as one imputation. (7) Costs reserved. (8) The plaintiff is to file and serve an Amended Statement of Claim in 14 days. (9) Matter stood over for further directions in the Defamation List on Thursday 25 August 2016. Catchwords: TORT – imputations – form and capacity Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2 Cases Cited: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 18 Morris v Newcastle Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 28 March 1985) Singleton v Ffrench (1986) 5 NSWLR 425 Category: Procedural and other rulings Parties: Plaintiff: Sum Yuen Defendant: Justin Yat-Kun Chan Representation: Counsel: Plaintiff: Mr M Karam Defendant: Mr R Rasmussen Solicitors: Plaintiff: O'Neill Partners Commercial Lawyers Defendant: Pancific Legal File Number(s): 2016/45042 Publication restriction: None Judgment 1. Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") the parties seek rulings on the capacity of imputations in relation to the two publications the subject of these proceedings. The defendant also makes challenges to the form of certain of the imputations under r 14.28 UCPR. 2. The parties exchanged objections to imputations and, due to the number of imputations the subject of objections, asked me to determine these issues on the basis of those submissions rather than by oral argument, which the parties feared could have taken several hours. The relevant principles 1. As to capacity, the relevant test in which courts will strike out an imputation on the basis that the matter complained of is not capable, at a threshold level, of conveying an imputation is set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity at the threshold level is "an exercise in generosity not parsimony", as well as being a "matter of impression… the impression is not of what the words mean but of what a jury could sensibly think they meant". 2. Where issues of the form of the imputation arise (such as failure to differ in substance or asserted use of impermissible words) I have had regard to the relevant principles set out in r 14.28 UCPR. The parties' submissions 1. The reasons given by the solicitors for the defendant for their challenges to the capacity of imputations are scant. In a letter dated 31 May 2016, the defendant's solicitors provided a list of objections to ten of the fifteen imputations in the first matter complained of and to all of the imputations in the second matter complained of, on the basis that each of those imputations "does not arise". This submission was made either without explanation at all, or by restating that the matter complained of does not make this particular claim. 2. Objection is also made (principally in relation to four of the imputations in the second matter complained of) that certain imputations do not differ in substance, and to particular words in imputations 13.14 and 13.15 (but not to the use of the word "properly" in imputation 13.8, as to which see the comments about "improperly" and "proper" in decisions such as Morris v Newcastle Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 28 March 1985). Although some additional comment is provided by way of assistance for some of the imputations, the majority of the submissions provide no further identification of the issues of concern to the defendant. 3. The plaintiff's counsel's replies are similarly scant, consisting generally of the statement that the relevant imputation is "pressed" as capable of arising by application of the principles in Corby v Allen & Unwin Pty Ltd or Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 18, or because it would be "parsimony" to exclude it. 4. Having been given these very general instructions with somewhat limited and unhelpful material, I propose to apply the relevant tests as to form and capacity to the imputations under challenge as best I can in the circumstances. Preliminary observations 1. The first issue requiring amendment is that the plaintiff should set out each of these publications in chronological order. They clearly follow on from each other and it only causes confusion to have them back to front. The amended pleading I shall require the plaintiff to file should not only set out these publications in chronological order but also number the imputations (a) and (b) in the usual way, so as to avoid confusion with contextual imputations if any are to be pleaded by the defendant. 2. Additionally, the contents of paragraphs 1 to 5 contain historical narrative (for example, that the Goon Yee Tong was established in the nineteenth century, and that the plaintiff held a Fiji Government scholarship) which is unnecessary in defamation pleadings. 3. Finally, as noted in relation to certain of the imputations below, some footnotes to the translation to assist with Chinese sayings and the translation of particular terms (such as the word "generation") would greatly assist any jury determining the issues in this case. The first matter complained of – 15 February 2015 1. By way of general observation, the form of drafting undertaken by the pleader in this matter, as well as in the second matter complained of, has been to extract every possible meaning rather than to aim for the sting of what is said. This has resulted in a number of the imputations being of very similar nature and, at times, in certain of the imputations failing to differ in substance. Imputation 9.1 – That he falsely claims to be the trustee for Loong Yee Tong 1. At page 9 line 27, Mr Chan says that "there is someone who is saying all the time that he is the trustee" (namely that the plaintiff claims to be the trustee for Loong Yee Tong), adding: "I do not know what his intentions are. All of you know in your heart what it is all about." 1. The defendant challenges this imputation on the basis that there is no evidence that the plaintiff falsely claimed this. Additionally, whether he said he was the trustee of Loong Yee Tong or the property in dispute is challenged. 2. I am satisfied that Mr Chan's additional words (set out in the quotation in paragraph 13 of my judgment above) suggest a motive capable of amounting to a false claim of being a trustee. He is saying to the listeners "you know what the plaintiff really means when he says this". 3. As to the defendant's second objection, on page 2 at lines 17 to 18 of the transcript, Mr Chan is recorded as saying that Mr Yuen "says he is the trustee for Loong Yee Tong", and not the property in dispute. 4. This imputation is capable of being conveyed and will go to the jury. Imputation 9.2 – That he has brought groundless and unnecessary court proceedings against Goon Yee Tong 1. The defendant complains of the use of "groundless and unnecessary" and the plaintiff responds by suggesting two imputations. However, the real problem with these words is that there is a high degree of similarity between them. The plaintiff is entitled to one imputation and should select which adjective he wishes to use. The issue of capacity, if still pursued, should await the repleading of this imputation. 2. This imputation is struck out with leave to replead. Imputation 9.3 – That he falsely claims that Goon Yee Tong bought a property illegally 1. At page 2 lines 10 to 11 Mr Chan says that the plaintiff is suing Gong Yee Tong in his own name "saying that we bought the property illegally". However, no passage asserting that the plaintiff falsely brings this claim is identified by the plaintiff's submissions. The assertion that the plaintiff's contention is incorrect is "in other words false" is of no assistance. 2. This imputation is struck out. Imputation 9.4 – That he is causing problems for Goon Yee Tong by taking it to court 1. See reasons for imputation 9.5 below. Imputation 9.5 – That he is causing unnecessary expense to Goon Yee Tong by taking it to court 1. Imputations 9.4 and 9.5 both fail to capture the sting of the matter complained of. The portions of the matter complained of giving rise to imputations 9.4 and 9.5 clearly are the same. Both relate to the difficulties of having to go to court which is said to be a waste of money. In that sense, these imputations do not differ in substance. 2. Imputations 9.4 and 9.5 are both struck out with leave to replead one imputation arising from these passages of the matter complained of. Imputation 9.6 – That he pretends to be a gweilo 1. No translation footnotes were provided for gweilo (鬼佬; Cantonese; pronunciation [kwɐ̌ɪ lə̌ʊ]), but I note its pejorative meaning as Cantonese slang for "foreigner". It might be helpful to add this in, even though this term is widely known. 2. The defendant complains that this imputation "does not arise in the general sense pleaded" and is "specific to that meeting". The plaintiff's answer is that the general sense is justifiable by statements on page 3 to 4 of the matter complained of, namely that "he understands Chinese but he does not speak Chinese today. He pretends to be a gweilo today." 3. There are a number of other references to the plaintiff speaking in English at the meeting although the majority of attenders do not understand English and several of those present ask him not to (see particularly page 2, line 26, page 3, line 25). The plaintiff's explanation is that the matter may go to court and the judge in court does not understand Chinese. This is said in response to the defendant who has just said: "Bully us, we do not understand English". 4. This imputation and imputation 9.7 both attempt, unsuccessfully, to capture the sting of a Chinese person speaking English at a meeting despite the wishes of the members. It is not literally true that the defendant pretends to be a "gweilo"; the use of the word "gweilo", like "bully", conveys a sting of conduct which those who cannot understand English find intimidating. That is conveyed by imputation 9.10. In those circumstances, imputations 9.6 and 9.7 are surplusage and will be struck out. Imputation 9.7 – That he speaks English at association meetings in order to make things difficult for members 1. See reasons for imputation 9.6 above. Imputation 9.12 – That he did not follow Goon Yee Tong's constitution when he was its president 1. This imputation is capable of being conveyed for the reasons set out in relation to imputation 9.13 below, and will go to the jury. Imputation 9.13 – That he has unconscionable motives for bringing legal proceedings against Goon Yee Tong 1. This is asserted to arise from the statements on page 7 lines 10, which refers to "conscience". This portion actually starts earlier, from the statement that now some people are "trying to find a bone in an egg", making things difficult by suing (which was why the meeting was called), followed by the statement at lines 8 to 12: "I hope the members understand what has happened in the heart [sic]. People do things and the God [sic] is watching, isn't that the case? One should live by conscience. Sum Yuen has been president before. When he was President, a lot of things were not done according to the rules. Ok, later when the court case finishes, I will write a report telling you all what has happened." 1. The use of the word "unconscionable", a word with specific legal meaning, creates ambiguity for the reasons explained in Singleton v Ffrench (1986) 5 NSWLR 425 at 428-429 and 435, where the term "breach of trust" created a similar problem. 2. Additionally, the sting of what is conveyed is not that the plaintiff had unconscionable motives, but that he was requiring a higher standard of conduct from others than that which he had shown when he was the President. The reference in the translation to "trying to find a bone in an egg" 雞蛋裡挑骨頭) should contain a translator's note to explain what this (admittedly well-known) Chinese saying means, namely "nitpicking", a sting which is underlined by the plaintiff having himself, when President, failed to do a lot of things according to the rules. That is in fact what imputation 9.12 says. 3. This imputation is both ambiguous in form and incapable of being conveyed, and is accordingly struck out. Imputation 9.15 – That he has dishonest intentions for claiming he is the Trustee of Loong Yee Tong 1. This is asserted to arise from the same portion of the matter complained of as the imputation of behaving unconscionably. 2. For the same reasons as those set out above, I am satisfied that this conduct is captured by imputation 9.12 and that an imputation of dishonesty cannot arise from such generalised comments, the sting of which is that the plaintiff is complaining of the conduct of others when he himself did not follow the constitution. That is not conduct capable of amounting to dishonesty. The second matter complained of – 13 December 2015 1. The defendant objects to all of the imputations pleaded, in much the same unhelpful manner as the objections to the first matter complained of. The plaintiff's replies generally fail to identify the page or line number of the portions of the text referred to, which I found unhelpful. Imputation 13.1 – That he will cause significant problems for the next generation of members of Goon Yee Tong by taking it to court 1. This is a good example of the literal use of words of the matter complained of as opposed to identifying the defamatory sting. However, the defendant's objection that there is no accusation of giving rise to "difficulties for future generations" is a wilful misreading of the translation from Cantonese, as the word "generation" is referring to the next board, not future human generations. 2. The problem under discussion at this time is that the plaintiff has gone to court to say that "we are not the owners of Loong Yee Tong", so they have to be split. The trouble was that the plaintiff "knew that we could not split the properties" and this was why he sued (pages 7 to 8). This was the problem facing this board, and was one which had to be resolved by them or the next "generation" of boards would have even more problems. 3. The language of this part of the translation contains a series of references to ancestors and the next generation which in my view require clarification in the text, to avoid confusion by the jury when considering meaning. In the amended statement of claim the plaintiff should clarify what is meant by "generation" on the three occasions on page 7 where this word occurs. It would also help if the translator checked for other words or sayings requiring explanation (such as "trying to find a bone in an egg" referred to above) and footnoted them in the text. 4. This imputation is struck out with leave to replead, which will hopefully be easier to do when a replacement for "generation" can be found. Imputation 13.2 – That, contrary to the terms of the constitution, he caused the constitution of Loong Yee Tong to be changed without obtaining approval of members 1. See reasons for imputation 13.6 below. Imputation 13.3 – That he has dishonest intentions for bringing legal proceedings against Goon Yee Tong 1. The defendant submits that "the alleged dishonesty of the action is not alleged or inferred". The plaintiff submits that the defendant "is again squarely calling the plaintiff's motives into question" and refers to the submissions made in relation to imputation 9.15. 2. I reject these submissions for the same reason as I rejected the submissions in relation to imputation 9.15. For an imputation of dishonesty to arise, there must be a degree of specificity in relation to the conduct or motives identified in the matter complained of. That is not the case here. Imputation 13.4 – That he has caused unnecessary problems and expense for the Goon Yee Tong by changing the constitution 1. See reasons for imputation 13.6 below. Imputation 13.5 – That he engaged in illegal conduct by changing the constitution of Loong Yee Tong without following due process 1. See reasons for imputation 13.6 below. Imputation 13.6 – That he had dishonest motives for changing the constitution of Loong Yee Tong 1. Imputations 13.2, 13.4, 13.5 and 13.6 set out a series of superficially different acts to the plaintiff in relation to the plaintiff's conduct in changing the constitution – that he had dishonest motives, engaged in illegal conduct by not following due process and failed to advise members as well as causing unnecessary problems and expense. 2. Imputations 13.2 and 13.5 clearly relate to the same conduct (i.e. changing the constitution without telling the members) and do not differ in substance. The use of the word "illegally" is a weasel word and it should be avoided ("due process" is not much better). The same conduct is also asserted to be "dishonest" in imputation 13.6. These three imputations should be struck out with leave to replead one imputation in their place. 3. An imputation that the plaintiff caused unnecessary problems and expense for the Goon Yee Tong by changing the constitution (imputation 13.4) is capable of being conveyed as well as differing in substance, and will go to the jury. Imputation 13.7 – That he managed Loong Yee Tong's affairs incompetently 1. The defendant's objection is that none of this conduct is alleged to have occurred under the stewardship of the plaintiff. The plaintiff's submission is that these difficulties arise due to the past actions of the defendant, a submission arguable given the interwoven nature of the past actions of the plaintiff with the situation that the organisation of which he was once President now finds itself. This is an issue for determination of the tribunal of fact and this imputation, which I am satisfied is capable of being conveyed, will go to the jury. Imputation 13.8 – That he failed to properly manage Loong Yee Tong's property portfolio, resulting in a debt of $260,000 for land tax and Council rates and exposing the properties to confiscation 1. This is an act for which imputation 13.7 is the corresponding condition, and for the same reasons will go to the jury, but the word "properly" is both ambiguous and a weasel word (Morris v Newcastle Newspapers Pty Ltd) and the imputation should be redrafted to avoid it. 2. This imputation is struck out with leave to replead. Imputation 13.9 – That he stirs up trouble within Goon Yee Tong to waste its time and money 1. While I accept the defendant's submission that the portions of the matter complained of giving rise to this imputation are general in nature, it is arguable that they are capable of referring to the plaintiff. Whether or not they do so will be a matter for the tribunal of fact. 2. Imputation 13.9 will go to the jury. Imputation 13.10 – That he causes trouble within Goon Yee Tong due to his jealousy 1. See reasons for imputation 13.11 below. Imputation 13.11 – That he causes trouble within Goon Yee Tong due to his selfishness 1. There is very little difference between jealousy, selfishness and not wanting members of the present committee to do well (which is presumably attributable to jealousy, selfishness or both). 2. Each of imputations 13.10, 13.11 and 13.12 is struck out as not differing in substance, with leave to replead one imputation in their place. Imputation 13.12 – That he causes trouble within Goon Yee Tong because he does not want the present committee to do well 1. See reasons for imputation 13.11 above. Imputation 13.13 – That by bringing unnecessary proceedings against Loong Yee Tong and Goon Yee Tong he has prevented members' activities from taking place 1. See reasons for imputation 13.14 below. Imputation 13.14 – That by bringing unnecessary proceedings against Loong Yee Tong and Goon Yee Tong he is causing damage and messing up activities of members 1. This imputation is rolled up (i.e. causing damage and messing up activities), and additionally does not differ in substance from imputation 13.13. Both of these imputations are struck out with leave to replead one imputation in their place. 2. The defendant additionally objects to the word "unnecessary", and I should formally record, in case it occurs in the repleaded imputation, that this word is in fact necessary to encapsulate the sting. Imputation 13.15 – That due to his actions, Goon Yee Tong only has two title deeds instead of three 1. The defendant submits that the word "actions" should be replaced by "court actions". I do not consider this necessary as the plaintiff's actions generally, whether in court or not, have had this effect. Imputation 13.16 – That he causes trouble within Goon Yee Tong because he is crazy 1. This word occurs in a series of adjectives used to describe the plaintiff's motivation, namely that he is "very selfish, jealous and crazy" and "couldn't stand you doing well". While selfishness, jealousy and resentment of the new committee doing well amount to much the same conduct, "crazy" falls into a different category and is capable of giving rise to a separate imputation. Accordingly this imputation will go to the jury. Imputation 13.17 – That he is motivated to break up Goon Yee Tong 1. The defendant submits that this is a reference to scrutinising and challenging a particular ballot and that the plaintiff cannot extend that reference ("better that the association breaks up") to general conduct. However, the matter complained of goes on to say that the plaintiff "challenges so that we cannot pass and the association will break up" (page 11). 2. This imputation is capable of being conveyed and will go to the jury. Imputation 13.18 – That he falsely claims to be the trustee for Loong Yee Tong and has prevented Goon Yee Tong from obtaining its title deeds 1. While the defendant clearly says, in the matter complained of, that the plaintiff wrote a letter saying "I am the trustee, you cannot give them the title deeds" (at page 12) he did not say that the plaintiff falsely claimed to be the trustee, either in the passage at page 12 or elsewhere. 2. This imputation is struck out. Imputation 13.19 – That he has caused unnecessary expense to Goon Yee Tong by bringing frivolous legal proceedings 1. While this imputation is very close in content to other imputations pleaded, I am satisfied that it is sufficiently different to be able to be relied upon. The whole of the matter complained of is to the effect that the plaintiff has brought proceedings which are as expensive as they are unmeritorious. 2. This imputation will go to the jury. Imputation 13.20 – That he is not deserving of [sic] remaining as a member of Goon Yee Tong 1. While the striking out of imputations which are asserted to be rhetorical is a practice which has fallen out of use, the requirement that a plaintiff plead an imputation of sufficient clarity that the defendant should know the evidence upon which to rely to justify the imputation is still an important issue in the determination of the form of imputations. 2. The phrase "not deserving of" is so wide in its import as to be impossible of definition without more information. If that information were provided, it may well be that the act or condition identified would not differ in substance from one or more of the other imputations pleaded. 3. In those circumstances, this imputation is deficient in form for lack of clarity and is struck out. Costs 1. I reserve the issue of costs. Orders 1. Imputations 9.1, 9.12, 13.4, 13.7, 13.9, 13.15, 13.16, 13.17. 13.19 will go to the jury. 2. Imputations 9.3, 9.6, 9.7, 9.13, 9.15, 13.3, 13.18, 13.20 are struck out. 3. Imputations 9.2, 9.4, 9.5, 13.1 and 13.8 are struck out with leave to replead. 4. Imputations 13.2, 13.5 and 13.6 are struck out with leave to replead as one imputation. 5. Imputations 13.10, 13.11 and 13.12 are struck out with leave to replead as one imputation. 6. Imputations 13.13 and 13.14 are struck out with leave to replead as one imputation. 7. Costs reserved. 8. The plaintiff is to file and serve an Amended Statement of Claim in 14 days. 9. Matter stood over for further directions in the Defamation List on Thursday 25 August 2016. ********** 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: 04 August 2016