Hang v Tu [2018] NSWSC 1770

Supreme Court New South Wales

Medium Neutral Citation: Hang v Tu [2018] NSWSC 1770 Hearing dates: 26 October 2018 Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Common Law Before: McCallum J Decision: Pursuant to s 26 of the Civil Procedure Act, refer the proceedings for mediation by a court annexed mediator; I note the obligation of the parties under s 27 to participate in good faith in the mediation; direct the parties to use their best endeavours to hold the mediation before the end of the law term. Catchwords: DEFAMATION – imputations – objections as to form and capacity Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Category: Procedural and other rulings Parties: Pho Quang Hang (first plaintiff) Australian Chinese and Descendants Mutual Association Limited (second plaintiff) John Tu (first defendant) Canh Bang Tran (second defendant) Cam Vinh Tran (third defendant) Representation: Counsel: B Dean (first and second plaintiffs) R Glasson (first, second and third defendants)

Solicitors: Australian Legal and Migration Services (plaintiffs) Gould JP Solicitors (defendants) File Number(s): 2018/213801 Publication restriction: None

EX TEMPORE Judgment - REVISED 1. HER HONOUR: These are proceedings for defamation concerning publications relating to a charitable organisation known as the Australian Chinese & Descendants Mutual Association Limited (ACDMA) and its president, Pho Quang Hang. 2. There are three matters complained of in the proceedings, each of which was a publication in the Chinese language. The publications appear to have been made in the form of leaflets or the like and are alleged to have been published by being distributed to staff and residents of an aged care hostel conducted by the charitable organisation over a period of about seven months from July 2017 to February this year. 3. The proceedings were commenced by statement of claim filed in July this year. Following an exchange of correspondence concerning the form of that pleading, the proceedings came before the Court last Friday for first listing in respect of a proposed amended statement of claim circulated shortly before that date. This judgment gives rulings in respect of the defendants' objections to the proposed amended statement of claim. 4. Before proceeding to give those rulings I should record that there is a potential dispute between the parties as to the current translation of the matters complained of. However, Mr Dean, who appears for the defendants, indicated that he was content to have his objections determined by reference to the most recently distributed translation on the basis that the argument by reference to that translation would reflect the plaintiff's case at its highest. There was one agreed amendment to that translation, which was that the word "chairperson" used at two points in the translation of the first matter complained of should be "president". The defendants otherwise reserve their position as to the translation currently propounded by the plaintiffs. 5. I did give consideration as to whether in those circumstances it was appropriate to determine the objections at all. However, since both parties agreed that the Court could appropriately determine at least some of the objections on the basis indicated by Mr Dean, I determined in accordance with my obligations under Part 6 of the Civil Procedure Act 2005 (NSW) to proceed to hear and determine the objections brought forward. 6. The first matter complained of was distributed in July last year. The article, in short, raised questions as to the financial treatment of certain expenditure of the charitable organisation. 7. The defendants' first objection is to imputation (b), which is: "The plaintiff is not suitable to be president of the ACDMA because he had no involvement and made no contribution to its early development." 8. The defendants contend that imputation is not capable of arising from the matter complained of, specifically because the notion of suitability for the position described (president) as opposed to "complete or total control of the association" is not capable of being carried. 9. The argument concerns the words in the matter complained of where, after a suggestion that certain expenditure recorded in the financial statements has gone missing or passed through "leaking holes", the leaflet states: "How can we now let such a person who had no involvement in and contribution to the early development (of ACDMA) come and take a total control over it?" 1. The argument was that those words say nothing of the plaintiff's capacity to hold the position of president. However, those words are to be read in the context that it is earlier suggested that the plaintiff had registered "two presidents" of the mutual association and subsequently lodged an application for him to be "the permanent president" of the association, questioning his "agenda". In my view, the matter complained of is plainly capable of suggesting that the plaintiff is not suitable for the role of president. The leaflet must be read as a whole. 2. Separately a question might arise as to whether the imputation, as currently formulated, is capable of being defamatory since the element suggested to cast doubt on the plaintiff's suitability for that role is not one which necessarily casts any aspersion on him but rather expresses an opinion as to the kind of attribute appropriately held by the president of the organisation. However, that was not the objection taken. The only ruling required today is that the imputation will go to the jury. 3. The next objection is to imputation (c) which is, "The first plaintiff is not a suitable person to be in total control of the ACDMA, an organisation with tens of millions of dollars in assets." The first objection was that the imputation is bad in form because the phrase "not a suitable person" is imprecise and has various meanings that may or may not be defamatory. 4. In my view, there is force in that submission in the context that the matter complained of does provide greater specificity as to why it is suggested the first plaintiff is not suitable to have control of the organisation. 5. Separately, it was objected that the imputation is not capable of being defamatory as it fails to identify any matter that would reasonably lower the plaintiff's reputation in the minds of ordinary members of the community. I apprehend when the imputation is amended, in accordance with my first ruling, the greater specificity provided will make plain what defamatory condition is attributed to the plaintiff. It is clear enough that the matter complained of is capable of defaming him in a manner not presently captured in the imputation. In any event, the imputation will have to be re-pleaded to address the issue I have explained. 6. The final objection to the first matter complained of so far as it concerns the first plaintiff is to the imputation (e), which is, "The first plaintiff, as president of the ACDMA, has taken large amounts of money from the ACDMA, which were falsely described in the accounts as large increases in expenditure on salaries and sundries." 7. The defendants submit that the imputation is not capable of arising and could only arise from an overly suspicious reading of the matter complained of. I disagree. In my view, the whole tenor of the leaflet is to cast aspersions on the first plaintiff and suggest impropriety on his part. Whether the meaning is in fact conveyed will be a matter for the jury, but I am not persuaded that it is incapable of arising. 8. Separately, the defendants object to the imputations pleaded in respect of the first matter complained of by the organisation, the ACDMA. 9. The first objection is to imputation (a), which is: "Large amounts of money had been fraudulently spent by the ACDMA on wages and sundry expenses in the 2016 financial year." The defendants submit that imputation is not capable of arising. A threshold difficulty with it, in my view, is that the meaning is unclear. Although this is not the objection that was taken, in my view, the assertion that money had been "fraudulently spent" on wages and sundry expenses when the same article indicates that those are the wages and sundry expenses recorded in the accounts is unclear. In particular, it is not clear to me whether it is suggested that the money was not in fact spent on the expenses identified in the accounts; or whether money was spent on those expenses but that the expenditure was fraudulent in some unspecified way. 10. For that reason alone I would strike out imputation (a) with leave to re-plead. 11. Imputation (b) is: "Money falsely described as wages and sundry expenses in the ACDMA accounts in the 2016 financial year has gone missing." Again, the defendants contend that the imputation is not capable of arising. The caution the Court must exercise in taking any imputation from the jury on that basis is well recognised in authorities referred to in the defendants' written submissions. In my assessment, the suggestion that the items identified have been the subject of some misappropriation is clearly capable of being conveyed by the article which, as I have said, is replete with invitation to suspicion. 12. A difficulty, however, with imputation (c) is that, again, it does not clearly attribute any specific act or condition to the company, focusing rather on the proposition that money has gone missing. It would, in my view, be preferable if the imputation were pleaded to ascribe greater specificity in the act or condition allegedly attributed to the company by the matter complained of. 13. Separately, the defendants submitted that imputations (a), (b) and (c) should be alternatives. In my view, the matter complained of is clearly capable of attributing the organisation with three separate acts or conditions; namely, misappropriation of funds, misdescription of certain items in the accounts and waste of certain money. If each of those acts or conditions is separately teased out in three re-pleaded imputations, I do not think those must necessarily be pleaded as alternatives. In any event, it will be necessary to see how the imputations are reformulated, imputation (b) being the only one which is not to be struck out as a result of these rulings. 14. Turning to the second matter complained of, Mr Dean acknowledged that this is the matter in respect of which the Court might encounter difficulty giving rulings having regard to the fact that the matter complained of was published in the Chinese language and is the subject of a disputed translation. 15. The first objection is to imputation (e), which is that the first plaintiff is a coward. The defendants submit that the imputation is not capable of arising. 16. The language of the translation of the second matter complained of is difficult. It includes the following: "Pho Quang Hang bearing a guilty conscience of failure in facing up to the facts and proper rectification tries instead to lever things up through others. The contents of his letter are full of false accusation and nonsense, just like a tail wagging snake with its head off; and, likewise, Pho Quang Hang coils himself up to avoid responsibility. Is this because it is now the best time for him, propped up as a capable and ready man, to usurp public assets, namely ACDMA, and turn them into his own pocket?" 1. It is difficult to make any clear sense of those words, but I am not persuaded that it is appropriate at this stage to take the imputation that the first plaintiff is a coward from the jury, for two reasons. First, even on those words, it may be that some readers would take the sense of cowardice from them in failing to stand up to meet the questions posed of him; but, separately, it seems to me that there is a real possibility that the dispute over the translation might shed further light on that issue. For that reason the objection is refused. 2. The second objection is to imputation (f), which is: "The first plaintiff is attempting to take ACDMA's assets which are public assets for his own benefit", and imputation (g): "The first plaintiff took the property of ACDMA for his own personal benefit." The submission is that those imputations should be pleaded as alternatives as only one can reasonably arise from the matter complained of. In my view, there is force in that submission. The first plaintiff is either attributed with attempting to do an act or achieving that act; both cannot be true at the same time. The plaintiff should re-plead those imputations as alternatives. 3. Finally, the defendants contend that imputations (m), "The first plaintiff is not to be trusted", and (n), "The first plaintiff is treacherous", are the same in substance and that the first plaintiff should elect between those. I do not accept that submission. In my view, there is a difference to be discerned between attributing someone with being incapable of being trusted and being treacherous. Further, it is well established that the sense of a defamatory meaning is to be understood in the context of the content of the matter complained of: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41. The content of the matter complained of which, as I have noted, may be the subject of dispute as to the translation, will inform this question and may indicate that very different meanings are conveyed. 4. Turning to the third matter complained of, the defendants took a global objection as to whether the matter complained of is capable of conveying any meaning attributing the first defendant with actually having stolen funds, as opposed to the proposition that he might reasonably be suspected of having done so. Separately, a global objection was taken based on the fact that the first plaintiff is not named in the third matter complained of. 5. As to the latter, the defendants relied on the decision of Bromwich J in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [82] where his Honour said: "An article about a company alone, and without more, is not an article about its owner, however notorious the fact of that ownership. More is required. The legal entities are separate unless there is something in the publication to bridge that vital and fundamental legal gap." 1. The difficulty is acute in the present case because the third matter complained of does no more than to set out extracts from the financial statements allegedly submitted by the organisation ACDMA with queries or question marks about certain items in those financial statements. There is simply nothing in the matter complained of to link those questions with any criticism or attribution of impropriety to the first plaintiff. 2. During argument, Mr Glasson accepted the need to plead an extrinsic fact in respect of the imputations pleaded in paragraph 13 of the proposed amended statement of claim as relating to the first plaintiff. It might be doubted whether that difficulty can be cured by the pleading of an extrinsic fact. There would need to be something in the matter complained of itself to suggest attribution of impropriety to the first plaintiff, or attribution of authorship or responsibility for the accounts to him. In any event, it will be necessary to determine the issue once the extrinsic fact has been pleaded, if the first plaintiff sees fit to proceed with that course. 3. For present purposes, it is enough to accede to the defendants' second global objection and to indicate that the imputations in paragraph 13 should be struck out. 4. As to the organisation, paragraph 14 of the proposed amended statement of claim pleads two imputations. The first is that the organisation had stolen certain funds from the ATO, presumably a reference to the Australian Taxation Office, and Australian tax payers. The second is that there are reasonable grounds to suspect that the ACDMA has stolen that amount from the ATO and Australian tax payers. The objection as formulated by the defendants was that the notion of actual theft is not capable of being conveyed since it would involve an overly suspicious reading of the matter complained of, whereas the notion of reasonable suspicion is not capable of being conveyed since the publication is not about the suspicion held by any person. 5. In my assessment, the difficulty is not so much one of capacity but ambiguity. The notion of a company stealing money from the ATO and Australian tax payers is nonsensical. The language of the matter complained of is: "There has been grapevine talks that the total expenditure for the expansion project of the seniors hostel is $10 million. ACDMA is liable to report to ATO and the public (the tax payer) explaining the difference." 1. At the conclusion of the first sentence there is a reference to note 13 to the accounts, the content of which is not included in the matter complained of. 2. I do not understand how, from an assertion that certain matters should have been reported to the ATO, it is contended that there has been theft from the ATO and the tax payer. The notion of theft in that context makes no sense. For that reason, I would strike out imputations 14(a) and 14(b) on the grounds that those imputations are bad in form, rather than acceding to the defendants' objection which was that they are not reasonably capable of being carried. 3. As with the other matters complained of, it may be accepted that the article or pamphlet does suggest some impropriety on the part of ACDMA, but it has not been adequately distilled in the present proposed amended pleading. 4. POST SCRIPT: the orders proposed in accordance with these rulings were that imputations (b) and (e) pleaded by the first plaintiff in respect of the first matter complained of will go to the jury; imputation (c) pleaded by the first plaintiff in respect of the first matter complained of struck out with leave to re-plead; imputations (a) and (c) pleaded by the second plaintiff in respect of the first matter complained of struck out with leave to re-plead; imputation (b) pleaded by the second plaintiff in respect of the first matter complained of will go to the jury; I decline to take imputation (e) pleaded by the first plaintiff in respect of the second matter complained from the jury (noting that there may be an issue as to translation); order that imputations (f) and (g) pleaded by the first plaintiff in respect of the second matter complained of be re-pleaded as alternatives; the imputations pleaded by the first plaintiff in paragraph 13 in respect of the third matter complained of struck out with leave to re-plead; the imputations pleaded by the second plaintiff in paragraph 14 in respect of the third matter complained of struck out with leave to re-plead. 5. However, after obtaining these rulings, the parties sought an order referring the proceedings to mediation. Accordingly, that was the only order made.