Andrew Young Han v Komipharm International Co Ltd

[2020] NSWSC 1294

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Andrew Young Han v Komipharm International Co Ltd [2020] NSWSC 1294

Hearing dates:

17 September 2020

Decision date:

17 September 2020

Jurisdiction:

Common Law

Before:

Sackar J

Decision:

See para 20

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Whether Supreme Court of Victoria “more appropriate” having regard to the interests of justice — Where civil proceedings already commenced in Victoria — Where criminal proceedings also on foot in Korea — Case management considerations — Need to maintain party’s right to silence

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) pt 44

Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW) s 5(2)

Cases Cited:

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

BHP Billiton Limited v Schultz (2004) 221 CLR 400

Reid v Howard (1995) 184 CLR 1

Texts Cited:

n/a

Category:

Procedural and other rulings

Parties:

Andrew Young Han (first plaintiff)
Bio and Gene Pty Ltd (ACN 103009169) (second plaintiff)
Komipharm International Co Limited (first defendant)
Yong Jin Yang (second defendant)

Representation:

Counsel:
J Young (plaintiff)
M J Lewis (defendants)

Solicitors:
Kim & Associates, Sungho Kim (plaintiff)
Andrew Peter Tragardh, Duxton Hill (defendants)

File Number(s):

2019/93467

Judgment – ex tempore

1. This is an application by way of an amended notice of motion dated 16 September 2020 for an order that pursuant to part 44 of the Uniform Civil Procedure Rules 2005 (NSW) and s 5(2) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW) the proceedings identified as 2019/00093467 be transferred to the Supreme Court of Victoria.

2. The application, therefore, invokes a provision of the cross‑vesting legislation.  In very broad terms, that legislation requires at least two issues to be identified.  First, an interrelationship, as it were, between the two, if there are two, sets of proceedings, and then a qualification; that is, whether it is more appropriate, having regard to the interests of justice, that the relevant proceedings be determined by another court.

3. In this case, paragraph 8.2 of, if I may say so, the very helpful submissions from the plaintiffs, makes a concession as to the interrelationship.  Mr Young, candidly as always, concedes that there is an interrelationship between the proceedings in New South Wales and those in Victoria.  What is truly in issue in this application is whether the Supreme Court of Victoria is more appropriate as the venue for the New South Wales proceedings.

4. The defendants, who make the application, rely upon three affidavits, one of Mr Andrew Tragardh of 4 June 2020, a further affidavit of Mr Tragardh of 10 July 2020 and an affidavit of Ms Rebecca Elphinstone of 16 September 2020.  The plaintiffs rely upon three affidavits, one of Mr Sean Kim of 5 March 2020, a further affidavit of Mr Kim of 19 June 2020 and an affidavit of Mr Andrew Han of 14 December 2019.

5. By way of background, I should briefly, in the first instance, deal with the proceedings in New South Wales.  In point of time, they come second.  In other words, the Victorian proceedings were commenced first, and I shall return to those very briefly in a moment.  The current pleading in New South Wales is an amended statement of claim, or perhaps more accurately, a further amended statement of claim.  It is an action in defamation.

6. There are two matters complained of.  The first is that on 15 February 2019 the first defendant in the proceedings, identified as Komipharm International Co Limited, published certain material on a voluntary publication notice website, available for the publication of notices by corporations incorporated under the laws of the Republic of Korea. As a result, it is pleaded by way of particulars, the website has identified a number of persons, both in Australia, and it is asserted in Korea, who downloaded or accessed that material.

7. That matter complained of, it is alleged in its natural and ordinary meaning to persons having knowledge of the Korean language, gives rise to four imputations (amended statement of claim at [9]).  The first is that the first plaintiff himself and on behalf of the second plaintiff made up, or dishonestly invented, a claim in relation to certain clinical trials. The second is that he committed an evil and dishonest act. The third is that the Supreme Court of Victoria had provisionally frozen assets by reason of his evil and dishonest acts, and the fourth is that the first plaintiff had committed criminal acts.

8. The second matter complained of is said to arise by reason of the first and second defendants publishing on the website of the first defendant a statement over the signature of the second defendant. It is asserted that the statement was also published on 15 February 2019, again in the Korean language, and that it was also accessed by persons in Korea and Australia.  Again, imputations in their natural and ordinary meaning are said to arise. I shall not set them all out, but I will mention very briefly the first few as set out in paragraph 12 of the amended statement of claim. The first is that the plaintiffs made up side effects that never existed in relation to a drug being clinically trialled by the second plaintiff on behalf of the first defendant.  The second is that the first and second plaintiffs sent out a written notice of false side effects in the knowledge it was untrue, and other matters are then pleaded concerning the clinical trials.  Other imputations are said to include, again, that the first plaintiff is evil, that he committed criminal offences, that he created havoc in the development of new medications or the treatment of cancers.

9. The plea is that aggravated damages ought to be awarded on the basis of the defendant's knowledge of the falsity of those imputations and the improper motives of the defendants in publishing the matters, being improperly to harm the plaintiffs and misrepresent matters still progressing in the Supreme Court of Victoria.

10. The Victorian proceedings, on the other hand, arise out of a commercial relationship which arose between the first defendant, Komipharm International, and the first plaintiff’s company, Bio Gene Pty Ltd (“BG”).  In March of 2012, the first plaintiff’s company agreed to sponsor and undertake clinical trials and invoices were issued for that work between 2012 and 2017. It is asserted in the Victorian proceedings that certain representations were made that a number of Australian patients had been treated as part of the clinical trial and had shown some signs of improvement.  There were various activities taking place between the two parties, which eventually, after disputation arose, led to the Komipharm Australia, as opposed to Komipharm International, commencing proceedings on 21 September 2018 in the Supreme Court of Victoria.  Those proceedings are well advanced.  There have been a number of interlocutory steps taken.  The matter is next before a judge of the Supreme Court of Victoria for directions at the end of October this year.

11. By way of contrast, the libel proceedings in New South Wales have only reached the point of a further amended statement of claim, to which I was informed today, further technical objection may be taken, but I think it is common ground that the defendants have intimated they will put defences on of a substantive nature, and have asserted that they intend to plead truth.

12. That said, I should also digress for a moment to indicate that Mr Han (the plaintiff in New South Wales), who returned to Korea at some point at the end of 2019, was the subject of a petition filed in the Republic of Korea Courts, by which certain criminal proceedings were commenced against him.  He presently is still in Korea, and is detained during his trial.  The trial has commenced, and a number of persons on behalf of Komipharm, whether Komipharm Australia or Komipharm International, have given evidence in those proceedings.  It is accepted, however, that those proceedings certainly relate, directly or indirectly, to the clinical trials, and that which arose out of those trials, the subject of the commercial relationship between Mr Han and Komipharm.

13. The principles which govern such an application are well known.  In Bankinvest AG v Seabrook (1988) 14 NSWLR 711, the then Chief Justice of New South Wales, Sir Laurence Street, indicated (at 714) that such an application “calls for what I might describe as a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.”

14. The opposing arguments here, in one sense, differ as to fine detail only.  What is not necessary is precise identity of issues, or even for that matter, parties.  But here, the parties are similar, if not identical. The issues, it has been conceded fairly and candidly by Mr Young, are clearly interrelated.  The question is:  is the Supreme Court of Victoria more appropriate?  It is not necessary in determining such an issue that this Court determine that Victoria is the clearly appropriate forum, nor that New South Wales is clearly an inappropriate forum.  It is a question of the interests of justice, and whether the Victorian court is more appropriate.

15. A court must be more appropriate, and not merely equally appropriate, to the other court in question.  The “interests of justice” captures not just the interests of both of the respective parties, competing or conflicting, but also interests wider than those of either party, and unsurprisingly, each case will turn on its own facts (BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421 [15]).

16. It seems to me that here, as has been fairly conceded, there is a clear interrelationship between the issues.  The party, Mr Han, is obviously very concerned, not only about the progress of the criminal proceedings in Korea and his fate in relation to those proceedings, but obviously he wishes appropriately to defend the proceedings in Victoria.  To that end, he has put on a defence, and he has filed some evidence in the Victorian proceedings.  As far as the New South Wales proceedings go, as I have indicated to date, he has done no more than file a statement of claim.

17. The question, though, of case management is starkly raised in a case such as this.  Where there is such identity of the parties, and such an intertwined factual question between the two pieces of litigation, in my view, it is highly desirable that case management be undertaken in respect of both cases by the one court under the one roof.  Case management in modern litigation environment is essential.  It is essential for numerous reasons.  Most importantly, it is essential for the orderly conduct of the litigation.  It is essential that the court efficiently provide to both sides a timely resolution of their respective cases. Where matters are interrelated such as here, the best way for that to be achieved in my view is for both matters to be managed by the one court.

18. The right to silence is a fundamental right, as was made clear by the High Court in Reid v Howard (1995) 184 CLR 1. Mr Han, rightly, is concerned about the timing of the hearings. Of course, depending upon the outcome in Korea, there may well be a very significant effect on one or both pieces of litigation in Australia. It is pure conjecture at the moment what may occur. At the moment, I would have thought, Mr Han will be concerned to ensure that he does not give up, or at least give up easily, or be forced to give up, any right to silence. No court would be unmindful of his rights in that regard. However, the careful management of the production of documents, access to subpoenaed material, whether or not discovery should be granted, whether or not interrogatories should or should not be provided or even answered at various stages of litigation are quintessential case management issues which, in my view, should be dealt with by one court.

19. For those reasons, in my view, although these pieces of litigation are at varying stages of preparation, the interrelationship between the two, and the respective rights of the parties in both pieces of litigation and the need to manage them effectively, mean they would be best handled by the one court. The court can ensure which case should appropriately proceed first, whether the cases should proceed consecutively, whether evidence in one should be taken as evidence in the other, and matters of that sort which it would be highly undesirable for two courts in two separate States to be considering.

20. For all of those reasons, therefore, the matter in New South Wales should in my view be transferred to the Supreme Court of Victoria.

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Amendments

25 September 2020 - spelling: Sir Laurence Street, [13]

Decision last updated: 25 September 2020