CITATION: Cha v Oh (No. 21) [2009] NSWDC 130
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 11 June 2009
JUDGMENT DATE:
11 June 2009EX TEMPORE JUDGMENT DATE: 11 June 2009 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Application to seek leave to file notice of ceasing to act refused.
(2) Liberty to apply.
(3) Costs reserved.CATCHWORDS: Legal practitioners – hearing fixed for 4 weeks adjourned due to enlargement of defendants’ particulars – further adjournment due to defendants’ application to Court of Appeal – plaintiff changes legal representation - plaintiff unable to pay his new lawyers after hearing completed and timetable for submissions complied with by defendants - whether leave to file Notice of Ceasing to Act at such a late stage of the litigation should be granted – prejudice and delay in litigation considered - application refused LEGISLATION CITED: Defamation Act 1974 (NSW), s 7A
Uniform Civil Procedure Rules 2005 (NSW), r 7.29CASES CITED: A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55
Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Lee v Cha [2006] HCATrans 132
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation (Supreme Court of New South Wales, McCallum J, 28 April 2008, unreported)
Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171
Wentworth v Rogers [1999] NSWCA 403
Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279TEXTS CITED: Ritchie's Uniform Civil Procedure NSW PARTIES: Plaintiff: Bob Chae-Sang Cha
First defendant: Jik Il Oh
Second defendant: Jae Kyung Lee
Third defendant: Yoon Shin Lee
Fourth defendant: Hak Joo Park
Fifth defendant: Han Yong Lee
Sixth defendant: Duk In Kim
Seventh defendant: Hak Soo ChoFILE NUMBER(S): 5376 of 2002 COUNSEL: Plaintiff: Ms L Evans SOLICITORS: Plaintiff: Mr R Lee (Schweizer Kobras Lawyers & Notaries)
Second and fourth defendants: Ms J Rozea (Gray & Perkins Lawyers)
Judgment
1. This is a lengthy and complex defamation trial. The evidence is now complete. Comprehensive submissions are required from the plaintiff in order to answer the many hundreds of pages of written submissions provided by the defendants.
2. The procedural history is as follows. The plaintiff sued for defamation concerning fourteen Korean newspaper publications in May 2002. A s 7A jury in 2004 took nearly four weeks to determine the imputations. There were unsuccessful appeals to the Court of Appeal (Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279) and High Court (Lee v Cha [2006] HCATrans 132) by the third defendant, who subsequently settled. The first defendant died after judgment was entered against him, and a seventh defendant was successful in the s 7A jury trial. Only two of the defendants now contest these proceedings, the plaintiff having obtained judgment…
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- AGLC
- Cha v Oh (No. 13) [2009] NSWDC 130
- Case
- [2009] NSWDC 130
- Decision Date
CaseChat Overview and Summary
The case of Cha v Oh (No. 13) involved a dispute between the plaintiff and the defendants, which was heard in the Federal Circuit and Family Court of Australia. The plaintiff, represented by legal counsel, faced difficulties due to an initially scheduled four-week hearing being adjourned because of the defendants' need to expand their particulars. Further adjournments followed, as the defendants applied to the Court of Appeal. After the hearing was completed and the defendants had complied with the timetable for submissions, the plaintiff switched legal representation. However, the plaintiff was unable to pay the fees of the new legal team, leading to an application to cease acting as the plaintiff's legal representative. This application was made at a very late stage of the litigation, raising questions about whether leave should be granted to file a Notice of Ceasing to Act and the potential prejudice and delay this might cause.
The primary legal issue the court needed to address was whether the plaintiff's application to cease acting as legal representative should be granted, considering it was made at such a late stage in the litigation. The court had to consider the potential prejudice and delay to the defendants if the application was allowed and weigh this against the plaintiff's inability to pay the new legal fees. The court also needed to consider the implications of allowing such an application at this stage, as it could significantly impact the ongoing proceedings and potentially lead to further delays.
In evaluating the application, the court took into account the prejudice and delay that allowing the application at such a late stage might cause. The court found that the plaintiff's inability to pay the new legal fees did not, in itself, justify granting leave to cease acting, especially given the advanced stage of the litigation. The court also considered the defendants' position and the potential for further delays and complications if the application was granted. Ultimately, the court determined that the application should be refused, as it would cause undue prejudice and delay to the defendants and the litigation process. The court reserved costs for a later determination and granted the plaintiff liberty to apply in certain circumstances.
The final orders of the court were that the application to seek leave to file a notice of ceasing to act was refused. The plaintiff was granted liberty to apply under specific conditions, and the matter of costs was reserved for a later determination. This decision highlights the importance of timely and diligent conduct in litigation, especially in complex cases where significant delays and changes in legal representation can occur.
The primary legal issue the court needed to address was whether the plaintiff's application to cease acting as legal representative should be granted, considering it was made at such a late stage in the litigation. The court had to consider the potential prejudice and delay to the defendants if the application was allowed and weigh this against the plaintiff's inability to pay the new legal fees. The court also needed to consider the implications of allowing such an application at this stage, as it could significantly impact the ongoing proceedings and potentially lead to further delays.
In evaluating the application, the court took into account the prejudice and delay that allowing the application at such a late stage might cause. The court found that the plaintiff's inability to pay the new legal fees did not, in itself, justify granting leave to cease acting, especially given the advanced stage of the litigation. The court also considered the defendants' position and the potential for further delays and complications if the application was granted. Ultimately, the court determined that the application should be refused, as it would cause undue prejudice and delay to the defendants and the litigation process. The court reserved costs for a later determination and granted the plaintiff liberty to apply in certain circumstances.
The final orders of the court were that the application to seek leave to file a notice of ceasing to act was refused. The plaintiff was granted liberty to apply under specific conditions, and the matter of costs was reserved for a later determination. This decision highlights the importance of timely and diligent conduct in litigation, especially in complex cases where significant delays and changes in legal representation can occur.
Orders
Orders of the court
(1) Application to seek leave to file notice of ceasing to act refused. (2) Liberty to apply. (3) Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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