Section 7A jury trial: 19 – 23 July 2004; 26 – 30 July 2004; 2 – 5 August 2004; Liability and damages: 28 May - 1 June 2007; 4-8 June 2007; 12-15 June 2007; 19-22 June 2007; 27 June 2007; 25-26 September 2007; 3-5 October 2007; 8-10 October 2007; 12 October 2007; 15-17 October 2007; 6 December 2007; 12 December 2007; 5 May 2008; 12 May 2008; 15 May 2008; 19-21 May 2008; 26-30 May 2008; 2-4 June 2008; 10-12 June 2008; 16-17 June 2008; 19 June 2008; 23-26 March 2009; 30-31 March 2009; 1-3 April 2009; 6-8 April 2009; 15 April 2009; 1 May 2009, 24 July 2009, 27 August 2009; 10 September and 12 November 2009
JUDGMENT DATE:
8 December 2009
JURISDICTION:
Civil
JUDGMENT OF:
Gibson DCJ
DECISION:
(1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence. (2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below. (3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000; (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000; (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000; (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000; (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, making a total of $10,000. (4) At the request of the plaintiff,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299
Case
[2009] NSWDC 299
Decision Date
CaseChat Overview and Summary
Cha v Oh (No. 22) (Part 1) involved a defamation claim brought by the plaintiff against seven defendants over 14 publications in Korean newspapers. The publications alleged misappropriation and personal misconduct by the chairman of the Australia Korean 2000 Sydney Olympics Supporting Committee. The defendants pleaded various defences, including truth, contextual truth, qualified privilege at common law, and pursuant to s 22 of the Defamation Act 1974. The court was required to determine whether the proof of 'contextual misappropriation' was sufficient evidence to establish truth, whether evidence of specific acts of conduct was required, and whether the defences of qualified privilege were available for the documents and the newspaper which published them.
The court held that the defence of truth was available for the imputations of misappropriation, but not for the imputations of personal failings such as self-righteousness. The court also held that the imputations were fact rather than comment, and that the defences of qualified privilege were available for the documents and the newspaper which published them. The court found that the defences of qualified privilege were not established, and that malice was established. The court awarded the plaintiff $240,000 in damages against the second, fourth and fifth defendants for the 14 publications. The court also granted leave to the second defendant to amend his defence, and ordered the second and fourth defendants to pay the plaintiff's costs.
The court's decision in Cha v Oh (No. 22) (Part 1) provides guidance on the application of the defences of truth and qualified privilege in defamation cases, and the distinction between fact and comment. The court's emphasis on the need for evidence of specific acts of conduct in defamation cases involving imputations of personal failings is also noteworthy. The court's decision also highlights the importance of considering the context in which defamatory publications are made, and the need for careful pleading of defences in defamation cases. The court's decision in Cha v Oh (No. 22) (Part 1) is therefore likely to be of interest to practising lawyers in defamation cases, as well as to those involved in the administration of justice.
Orders
Orders of the court
(1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence.
(2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below.
(3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums:
(a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000;
(b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000;
(c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000;
(d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000;
(e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000;
(f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000;
(g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000;
(h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000;
(i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000;
(j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000;
(k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, making a total of $10,000.
(4) At the request of the plaintiff, no assessment made of damages for publication of Exhibit X (6 July 2001) by the sixth defendant.
(5) The Registrar of this Court is directed to forward a copy of this judgment to the Director of Public Prosecutions, together with a copy of Exhibit 27, for consideration of the conduct of Mr Sung Joo Sung concerning the alteration and dishonest taking of the accounts book or books recording the Supporting Committee’s financial history.
(6) Second and fourth defendants pay plaintiff’s costs with liberty to restore by any party for any applications for costs on any other basis including any application for indemnity costs pursuant to Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) or s 48A Defamation Act 1974, such application to be made no later than 9.00 a.m. 9 December 2009.
(7) In the event of such application being made by the plaintiff, the second and fourth defendants provide written submissions in answer to the plaintiff’s submissions on costs dated 27 August 2009 by 4.00 p.m. 10 December 2009.
(8) Both parties are to serve outlines of interest calculations and any copies of offers relied upon pursuant to Part 47 Div 2 Uniform Civil Procedure Rules 2005 (NSW) or s 48A Defamation Act 1974 (NSW) by 4.00 p.m. 10 December 2009.
(9) These proceedings stood over for further directions, or hearing, in relation to interest, costs and any application for a stay, to the Defamation List on Friday 11 December 2009 at 9.00 a.m.
(10) Exhibits retained for 28 days, save for Exhibit 27, which will remain in the custody of the Registrar of the District Court until further order.