Cha v Oh (No. 22) (Part 1)
[2009] NSWDC 299
•8 December 2009
CITATION: Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 HEARING DATE(S): 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 2009JURISDICTION: 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, 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.CATCHWORDS: TORT - defamation - publication in Korean language newspapers allege misappropriation and personal misconduct by chairman of Australia Korean 2000 Sydney Olympics Supporting Committee - plaintiff brings proceedings for defamation against seven defendants for 14 publications in Korean newspapers - defences of truth, contextual truth, qualified privilege at common law and pursuant to s 22 Defamation Act 1974 pleaded by remaining two defendants - justification of imputations of misappropriation - whether proof of 'contextual misappropriation' sufficient evidence to establish truth - imputations of personal failings such as self-righteousness - whether evidence of specific acts of conduct required - whether imputations fact or comment - whether defence of comment should be pleaded to imputations or to matter complained of - whether defences of qualified privilege available for documents asserted to be audit reports, and to the newspaper which published these reports - whether published on a protected occasion and, if so, whether malice established - damages - limited publication - lack of specific evidence concerning individual publications due to lapse of time since publication - impact of substantial settlement with third defendant - impact of similarity of imputations in multiple publications - practice and procedure - substantial amendment of particulars of justification throughout the trial - application by defendants to amend defence after evidence concluded - application by defendants for right of reply on issues on which the plaintiff bears the onus - case management issues - "mega-litigation" LEGISLATION CITED: Access to Justice (Civil Litigation Reform) Amendment Bill 2009 (Cth)
Associations Incorporation Act 1984 (NSW), s 70
Charitable Fundraising Act 1991 (NSW)
Charitable Fundraising Act Regulations 1998 (NSW)
Civil Procedure Act 2005 (NSW), s 56
Corporations Law (Cth), s 189
Crimes Act 1900 (NSW), ss 175 and 178A
Defamation Act 1974 (NSW), ss 7A, 15, 22, 30, 32, 33, 34, 46A, 48 and 48A
Defamation Act 2005(NSW), s 40
Evidence Act 1995 (NSW), ss 46, 79, 84, 135 and 140
Financial Management and Accountability Act 1997 (Cth), s 5
Public Finance and Audit Act 1983 (NSW), s 4
Uniform Civil Procedure Rules 2005 (NSW), Pt 14 r 14.31(3), Pt 17 r 17.2(2), Pt 29 r 29.6 and Pt 47 Div 2CASES CITED: Ainsworth v Burden [2005] NSWCA 174
Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Allen v Tobias (1958) 98 CLR 367
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Abadee J, 5 February 1996, unreported)
Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 18 February 1997, unreported)
Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported)
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27
ASIC v Rich [2005] NSWSC 149
ASIC v Rich [2009] NSWSC 1229
Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450
Australia and New Zealand Banking Group Ltd v Bechely-Crundell (Supreme Court of NSW, Sperling J, 11 June 1996 unreported)
Australian Securities Investments Commission; re Richstar Enterprises P/L v Carey (No. 13) [2007] FCA 57
Australian Securities and Investments Commission (ASIC) v MacDonald (No 11) [2009] NSWSC 287
Bacon v Pianta (1966) 114 CLR 634
Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5
Bell Group Limited (in liquidation) v Westpac Banking Corporation (No. 9) [2008] WASC 239
Bennette v Cohen [2009] NSWCA 60
Blacktown City Council v Hocking [2008] NSWCA 144
Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Carson v John Fairfax & Sons Ltd (1992 - 3) 178 CLR 44
Celestino v Celestino [1990] FCA 299
Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported)
Cha v Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported)
Cha v Oh (No. 21) [2009] NSWDC 130
Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300
Chakravarti v Advertiser (1998) 154 ALR 294
Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (Supreme Court of NSW, Levine J, 13 December 1996)
Clark v Ryan (1960) 103 CLR 486
Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1
Commonwealth of Australia v Davis Samuel Pty Ltd (No 6) [2009] ACTSC 12
Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738
Cornwall & Ors v Rowan [2004] SASC 384
Crampton v Nugawela (1996) 41 NSWLR 176
Croll v McRae (1930) 30 SR (NSW) 137
Cropper v Smith (1884) 26 Ch D 700
Cross v Queensland Newspapers Pty Ltd [2006] NSWCA 80
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Digby v Financial News Ltd [1907] 1 KB 502
Dingle v Associated Newspapers [1964] AC 371
Drabsch v Switzerland General Insurance Company Limited (Supreme Court of New South Wales, Santow J, 16 October 1996, unreported)
Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127
Egger v Viscount Chelmsford [1965] 1 QB 248
French v United Telecasters (1986) 5 NSWLR 425
Galloway v Telegraph Group Ltd [2004] EWHC 2786 QB
Gli-Don Pty Ltd v Nominal Defendant [2002] NSWCA 308
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
Goyan v Motyka (2008) Aust Torts Reports ¶81-939; [2008] NSWCA 28
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Greig v Win Television NSW Pty Ltd [2009] NSWSC 632
Guise v Kouvelis (1947) 74 CLR 102
Habib v Nationwide News Pty Ltd [2007] NSWCA 91
Habib v Nationwide News Pty Ltd (2008) Aust Torts Reports ¶81-938; [2008] NSWSC 181
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
Hobbs v Tinling [1929] 2 KB 1
IOL Petroleum Ltd v O’Neill (Supreme Court of NSW, Young J, 17 November 1995, unreported)
Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13
Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327
John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706
John Fairfax & Sons Pty Ltd v O’Shane [2005] NSWCA 164
John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Jones v Dunkel (1959) 101 CLR 298
Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA 375
Keramianakis v Regional Publishers Pty Ltd (No 2) [2008] NSWCA 3
Ketteman v Hansel Properties Ltd [1987] AC 189
King v Telegraph Group [2004] EWCA Civ 613; [2005] 1 WLR 2282
Kuligowski v Metrobus (2004) 220 CLR 363
Lane v Reid [2005] NSWCA 198
Lee v Cha [2006] HCA Trans 132
Mair v Public Accountants Registration Board (Supreme Court of NSW, Hunt J, 2 February 1989, unreported)
Maisel v Financial Times Ltd [1915] 3 KB 336
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Marsden v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, Levine J, 17 December 1996, unreported)
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1120
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186
Martin v Bruce [2007] NSWDC 264
McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759
McCombie v Bennett (1886) NSWR 151
Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501
MindShare Communications Limited v Orleans Investments Pty Ltd (2007) NSWSC 637
Mobileciti v Vodaphone Pty Ltd [2009] NSWSC 891
Morgan v John Fairfax Pty Ltd (1990) 23 NSWLR 374
Musgrave v Commonwealth (1937) 57 CLR 514
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Obeid v John Fairfax Group Pty Ltd [2006] NSWSC 1059
Obeid v Australian Broadcasting Corporation [2007] NSWDC 26
Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29
Page v Vanker [1990] NSWCA 142
Papakosmos v R (1990) 196 CLR 297
Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177
Price v Manning (1889) 43 Ch. D 372
Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505
R v Logue (NSW Court of Criminal Appeal, 31 March 1994, Gleeson CJ, McInerney and Mathews JJ, unreported)
Re Nottage; Jones v Palmer [1895] 2 Ch 649
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rose v Boxing NSW Incorporated [2007] NSWSC 20
Rowan v Cornwall [2002] SASC 160
Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486
Rural and General Insurance Broking Pty Ltd (ACN 093483928) v Australian Prudential Regulation Authority [2009] ACTSC 67
Seary v Molomby (1999) Aust Torts Reports 81-536; [1999] NSWSC 981
Seven Network Limited v News Ltd [2007] FCA 1062
Seven Network Limited v News Ltd [2009] FCAFC 166
Silver v Dome Resources NL (2005) NSWSC 265
Sims v Wran [1984] 1 NSWLR 317
Singleton v Ffrench (1986) 5 NSWLR 425
Skalkos v Assaf [2002] NSWCA 14
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 60 ALR 588
Suzy David v David Tiglath Chibo [2006] NSWSC 1257
Tahche v Abboud [2002] VSC 42
Tasmania v Lee [2006] TASSC 58
TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682
Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994, unreported)
The Nominal Defendant v Kostic [2007] NSWCA 14
The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146
The State of Western Australia v Colin Maxwell Watson (Supreme Court of Western Australia Full Court, Malcolm CJ, Brinsden & Seaman JJ, 4 November 1988, unreported)
Trantum v McDowell [2007] NSWCA 138
TVNZ Ltd v Ah Koy [2002] 2 NZLR 616
Urban Traders Pty Ltd v Proceris Pty Ltd [2005] NSWSC 1192
Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986)
Weaver v Lloyd [1824] 2 B & C 678
Webb v Bloch (1928) 41 CLR 331
Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279TEXTS CITED: Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994)
Gatley on Libel and Slander, 10th Edition (London: Sweet and Maxwell, 2008)
Greenhow, A, “The Statutory Business Judgment Rule: Putting the Wind into Director's Sails” [1999] BondLRev 3; (1999) 11(1) Bond Law Review 33
The Honourable Justice Hayne, “The Vanishing Trial” (2008) The Judicial Review 33
The Honourable Justice Heydon, “Practical impediments to the fulfilment of judicial duties” in “The Role of the Judge”, Judicial Commission of New South Wales, 2004
The Honourable Justice Ipp, “Problems with Fact-finding” (2 September 2006) Lawlink, Supreme Court of New South Wales
The Honourable Justice McHugh, “What is an actionable defamation?”, Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990
The Honourable Justice Pagone, “Lost in Translation: The Judge From Provider to Consumer of Legal Services” in “The Art of Judging”, Southern Cross University Law Review, Vol. 12, 2008
The Honourable Justice Sackville in “Meeting the Challenges of Complex Litigation: Some Further Questions” (2009) The Judicial Review 197
Tobin & Sexton, Australian Defamation Law & Practice (Butterworths, Sydney, looseleaf)
Odgers, Uniform Evidence Law (8th ed, 2009), Lawbook CoPARTIES: Plaintiff / First Cross-Defendant: 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 Cho
Second Cross-Defendant: Chung Yup KimFILE NUMBER(S): 5376 of 2002 COUNSEL: Plaintiff / First Cross-Defendant: Mr C Dibb (s 7A jury trial); Mr C A Evatt / Mr C Dibb / Ms L Evans
First Defendant: No appearance
Second Defendant: Mr T D F Hughes (s 7A jury trial); Mr J S Wheelhouse SC / Mr T D F Hughes / Mr M Richardson
Third Defendant: Mr J S Wheelhouse SC (s 7A jury trial); Mr J S Wheelhouse SC
Fourth Defendant: Mr R Weaver (s 7A jury trial); Mr M Seck
Fifth Defendant: Mr R Weaver (s 7A jury trial)
Sixth Defendant: No appearance
Seventh Defendant: Mr R Weaver (s 7A jury trial)
Second Cross-Defendant: Mr C Dibb (s 7A jury trial)SOLICITORS: Plaintiff / First Cross-Defendant: Strathfield Law (until 24/6/2002); Youngs Attorney (2/9/2003 - 28/6/04); Darryl Barlow & Co (29/6/04 - 17/4/05); Strathfield Law (18/4/05 - 2/5/07); CM Lawyers (3/5/07 - 5/5/08); Bilias & Associates (6/5/08 - 9/6/08); Hans Kim Lawyer (10/6/08 - 12/8/08); thereafter Schweizer Kobras Lawyers & Notaries
First Defendant: Gilbert & Tobin Lawyers
Second Defendant: Gilbert & Tobin Lawyers (up until 23/8/06); thereafter Gray & Perkins Lawyers
Third Defendant: Corrs Chambers Westgarth (up until 2/8/05); thereafter Banki Haddock Fiora
Fourth Defendant: David Geddes up to 17/1/07; self-represented until 2/5/08; thereafter Mr M Seck of Counsel
Fifth Defendant: David Geddes up until 17/1/07; thereafter self-represented
Sixth Defendant: No appearance
Seventh Defendant: David Geddes (s 7A jury trial)
Second Cross-Defendant: Mr C Dibb of Counsel (s 7A jury trial); thereafter self-represented
PART 1 - The Parties and the Factual Background - [1] - [583] PART 2 - Evidence and Credit issues - [584] - [753] PART 3 - The Defences of Comment and Qualified Privilege - [754] - [1073] PART 4 - The Defences of Justification and Contextual Truth – Sections 15 and 16 Defamation Act 1974 (NSW) - [1074] - [1694] PART 5 - Damages - [1695] - [1855] PART 6 - Orders PART 7 - Annexure A - Matters Complained of and s 7A Jury Answers to Questions PART 7 - Annexure B - Matters Complained of in the Cross-Claim and s 7A Jury Answers to Questions
PART 1 – THE PARTIES AND THE FACTUAL BACKGROUND
[1] These are defamation proceedings brought by Mr Chae-Sang Cha, the Chairman of the Aus-Kor Olympic Supporting Committee (“the Supporting Committee”), concerning publications in Korean language newspapers between January – March 2001. The Supporting Committee, an unincorporated association, was set up in May 1998 to play what its Constitution called a “channelling role” (Exhibit 1, Article 2 of the Constitution “Objectives of establishment”) in conjunction with the Korean Sports Council, an incorporated association in New South Wales, funded by the South Korean Government. The aim was to ensure that the 2000 Sydney Olympic Games were a success, not only for the Korean athletes and Korean community in Australia, but from the point of view of the North and South Korean governments, who had made the momentous decision that the teams of both countries should march into the stadium together under one flag.
The nature of these proceedings
[2] The plaintiff initially commenced proceedings for defamation against seven defendants for 14 publications in four Korean language newspapers (Hoju Dong-A, TOP, the Sydney Korean Herald and Korean Community Magazine, also known as Kyo Min Jap Ji). (These are the four main Korean language newspapers in Sydney: Daily Transcript 1477 – 1478, 20 May 2008, Day 39). A s 7A jury found that the publications of certain of the imputations by the first six defendants defamed the plaintiff, but found in favour of the second and seventh defendant on one publication.
[3] These imputations are:
[3.1] Exhibit D: Publication 26 January, 2001 by the second defendant in TOP:
* That the plaintiff managed the affairs of the Committee so incompetently that while he was the Committee’s President $102,000 of the Committee’s money was spent without proper documentation being kept (“imputation 36(d)”);
[3.2] Exhibit H: Publication 9 February, 2001 by the second defendant in TOP:
* That the plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee’s money was spent (“imputation 38(c)):
[3.3] Exhibit J: Publication 23 February 2001 by the second defendant in TOP:
* That the plaintiff failed to account for approximately $56,000 of money donated to the Committee (“imputation 39(a)”);
* That the plaintiff failed in his duty as President to ensure the Committee kept proper accounts (“imputation 39(c)”);
[3.4] Exhibit M: Publication 1 March 2001 by the second defendant in TOP and by the fourth and fifth defendants in TOP and two other Korean language newspapers, Honjudonga-Ilbo (published by the first defendant) and the Korean Weekly Times (the third defendant):
* That the plaintiff managed the affairs of the Committee in a way that brought shame on the Korean community in Australia (“imputation 40(a)”);
* That the plaintiff impeded the working of the Committee through his self-righteous and self-indulgent behaviour (“imputation 40(d)”);
* That the plaintiff failed to ensure proper records were kept of the Committee’s financial affairs (“imputation 40(e)”);
* That the plaintiff misused his position as President of the Committee to gain a directorship for himself (imputation 40(h)”);
* That the plaintiff’s arrogant and self-righteous behaviour caused distress to the Committee’s staff (imputation 40(k)”);
[3.5] Exhibit N: Publication 9 March 2001 by the second, fourth and fifth defendants in TOP and by the fourth and fifth defendants in the Korean language newspapers Hojudonga-Ilbo and the Korean Weekly:
* That there was [sic] reasonable grounds for the Auditors to suspect the plaintiff of making a false claim for business expenses of $9,121.40 (“imputation 41(b)”);
* That the plaintiff misappropriated to his own use, money belonging to the Committee (“imputation 41(d)”);
* That the plaintiff misused his position as President to favour an associate as a supplier of gifts to the Committee (“imputation 41(f)”);
[3.6] Exhibit P: Publication 16 March 2001 by the second, fourth and fifth defendants in TOP and by the fourth and fifth defendants in the Korean language newspapers Hojudonga and the Korean Weekly:
* That the plaintiff falsely claimed that the Committee had provided support of $1,100 to the Uniting Church but really the plaintiff kept $700 of that money for himself (“imputation 42(d)”);
* That the plaintiff misappropriated public money (“imputation 43(a)”).[3.7] Exhibit S: Publication 30 March 2001 by the second defendant in TOP:
[4] The publications in Exhibit M, N and P consist of identical publications in three different Korean newspapers. The copies of these newspaper articles for the first and second defendants have never been discovered or tendered. However, it is not in dispute that the fourth and fifth defendants published the same article in the first and second defendants’ newspapers as was published in the third defendant’s newspaper, as these three newspaper articles were in fact their auditors’ reports.
[5] The fourth and fifth defendants also brought proceedings for defamation against the plaintiff and against the publisher of a different Korean language publication, The Korea-Oceania Business Review. The same s 7A jury found that three of these four publications published imputations defamatory of the fourth and fifth defendants.
[6] During the trial, the plaintiff entered judgment against the fifth defendant, who filed a defence identical to the fourth defendant, but failed to attend the trial to defend himself or prosecute his cross-claim. The cross-claim brought by the fifth defendant was dismissed. The cross-claim brought by the fourth defendant was discontinued. It has not been necessary to deal with the cross-claim in this judgment.
[7] In addition, the plaintiff settled the proceedings against the third defendant and obtained an order for judgment against the sixth defendant, and as the first defendant died, proceedings against him have abated. All of these publications, and the imputations the s 7A jury found were conveyed, is set out in chronological order in Schedule A to this judgment.
[8] The second defendant’s amended defence of 5 February 2007 asserted the following defences:
(b) defences of comment, comment of a stranger and unlikelihood of harm (paragraphs 11 – 13).(a) justification, contextual justification and qualified privilege in relation to imputations 39(a), 39(c), 40(a), 40(d), 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) (paragraphs 9 and 10 of the Amended Defence); and
[9] The fourth defendant’s second further amended defence filed on 7 May 2008 asserts the following defences:
(b) qualified privilege, comment and unlikelihood of harm (paragraphs 7 – 8).(a) justification and contextual justification in relation to imputations 40(e), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(b) (paragraphs 6 and 6A);
[10] It should be noted that these three publications were each made in three separate newspapers, making a total of nine publications.
[11] At the end of the trial the second defendant by Notice of Motion sought leave to rely on a further amended defence as follows:
(b) The second defendant now seeks to plead the defences of justification and contextual justification to imputations 36(d), 38(b), 40(h) and 43(a), abandoning the defence of qualified privilege in relation to imputations 36(d), 38(b), 39(c) and 43(a) – in other words, to the four publications which were not made jointly with the fourth and fifth defendants. In addition, the defence of unlikelihood of harm is abandoned. This is not opposed by the plaintiff (submissions paragraph 2.5.4(a) upon certain terms, including indemnity costs and the right to file a Reply. The plaintiff does, however, point to considerable prejudice caused by reason of both the amendments and the application to amend, noting the plaintiff framed and prepared his case and adduced evidence in accordance with the pleadings as they were before the trial and is deprived of the opportunity to adduce further evidence or to run the case differently, particularly in relation to the pleading of the Reply, drawing my attention to AON Risk Services Australia Ltd v Australian National University [2009] HCA 27.(a) the second defendant does not now admit to publication and defamatory meaning of imputations 36(d), 38(b), 39(a), 40(a), 40(e), 40(h), 40(k), 41(b), 41(d), 41(f), 42(d) and 43(a). In its previous defences of 6 December 2004 and 13 February 2007, the second defendant had failed to traverse these imputations. No explanation for this proposed amendment is set out in the affidavit is support of 30 April 2009, nor was it referred to when the application came before me on 1 May 2009.
[12] I have dealt with this application in more detail below. I shall now set out the background events leading to the publication of the matters complained of.
Background
[13] The civil war between North and South Korea, in which millions died, is a matter of public record (Daily Transcript 941-943, 9 October 2007, Day 24). North and South Korea signed an armistice in 1959, but are still technically at war today. This affects every aspect of their dealings with each other, including sport. When the 1988 Olympic Games were held in Seoul, North Korea boycotted them.
[14] By the time of the 2000 Olympics, a different approach, one of peaceful reunification, was the policy of the South Korean government. The 2000 Olympic Games in Sydney coincided with the 50th anniversary of the war between North and South. Olympic officials in both North and South Korea decided that, for the first time, teams from North and South Korea would enter the Olympic Stadium together, and under a neutral Korean Peninsula flag.
[15] Members of the Korean community in Australia, especially sporting organisations supported or funded by the South Korean Government, were asked to help make not only the South Korean but also the North Korean Olympic team welcome. For this plan to succeed, local support and assistance by the Korean community in Australia would be important. As the Supporting Committee’s activities show, this included finding and interviewing Korean-speaking volunteers for the Sydney Australian Olympic Organising Committee (“SOCOG”) and for torch relays (Expenditure Resolution 388, Exhibit 56), providing “homestay” accommodation and transport for Koreans attending the Games, entertaining a stream of Korean officials and media representatives, and providing a cheer squad and commemorative flags and welcome banners for the two Koreas under one flag. This also included holding rallies and social functions, and paying special attention to Korean community groups such as war veterans and retiree associations and Korean sporting associations around Australia. The Korean media, visitors and officials came from Korea to check on progress and give advice.
[16] The Supporting Committee had six subcommittees as well as the Executive and met in regular weekly meetings with the Korean Sports Council, which initially jointly ran these activities and later contributed volunteers, snacks and general assistance. These meetings were generally held outside office hours or on weekends; some volunteers, as well as the plaintiff, put aside their businesses for a while, such as Mr Choi, whose job was to look after the stream of journalists and broadcasters from Korea (Daily Transcript 1787, 30 May 2008, Day 45). A regular feature of these committee meetings was that committee members and volunteers would have a meal at a local Korean restaurant, which would be paid for out of Supporting Committee funds.
[17] What was the Korean Sports Council’s role? This is one of the disputed issues of fact in this trial. The South Korean Government had funded sports societies outside Korea for some time. One of these organisations was the Korean Sports Council. Mr Jung Hyun Park, a Sports Council member, explained (at Daily Transcript 1698, 28 May 2008, Day 43) that the Sports Council in Korea “tells us what to do”. There were regular sports meets in Korea at which these Korean Sports organisations from around the world, including Australia, participated. The plaintiff, in his capacity as president of Korean Sports Council, attended these games in 1997, 1998, 1999 and 2000 (Daily Transcript 301 - 302, 13 June 2007, Day 10).
[18] It was the Korean Sports Council’s former presidents and its sports association members who played an important role in setting up the Aus-Kor Olympic Supporting Committee (“the Supporting Committee”) with which the Sports Council was to participate in this “channelling role” to ensure the success of this new policy of “peaceful reunification”, as it was called in the Supporting Committee’s Resolutions dated 18 March 2000 (Exhibit 70, Tab 4) which were published in the newspapers of the first to third defendants prior to the Olympics.
[19] The seventh defendant, who held senior positions in the Sports Council and the Korean Society (Daily Transcript 2251, 23 March 2009, Day 55), including auditor and treasurer (as well as being a former owner of TOP, the Korean language newspaper he either sold or gave to the second defendant), chaired a meeting on 1 May 1998 to set up the Supporting Committee. He also prepared a Constitution and was in charge of supervising the voting for the offices of chairman and auditors.
[20] There were two candidates for chairman: the plaintiff and the second defendant. The plaintiff was the current head of the Sports Council. A golfer with a handicap of six, he had been the Sports Council president since 1997. The second defendant was a former chairman of the Sports Council as well as being the owner of TOP and of a supermarket cleaning business. They made speeches, the sports and community association representatives voted, and the plaintiff was elected the chairman. Although he lost the election, the second defendant was still asked to be the “honorary” chairman: Daily Transcript 2079, 12 June 2008, Day 51. It is the second defendant’s name, not the plaintiff’s, which appears at the top of the lists of officials circulated to committee members and others for most of the life of the Supporting Committee.
[21] The seventh defendant also played an important role in the Supporting Committee. He supervised bookkeeping with Mr Sung Joo Sung as his assistant until November 1998, and even after Mr Sung Joo Sung took over this role (Daily Transcript 199 and 231, 8 June 2007, Day 8; Daily Transcript 913, 8 October 2007, Day 23; Daily Transcript 2168, 17 June 2008, Day 53) he continued to visit regularly (Daily Transcript 3068, 7 April 2009, Day 65; Exhibit 52 (see for example 17, 18 and 24 January and 4 and 17 February entries)). The seventh defendant watched the activities of the Supporting Committee “with a lot of great interest” (Daily Transcript 2168, 17 June 2008, Day 53). From February 2000 had his own desk in the Supporting Committee office (Exhibit 52 p. 8, 29 February 2000 entry), resuming the position of Secretary-General in August 2000 and keeping the accounts after Mr Sung Joo Sung left (Daily Transcript 75, 4 June 2007, Day 4). After the second defendant became president of the Korean Society, in or about June 1999 (Daily Transcript 83-84, 5 June 2007, Day 5), he remained a director, and had “many occasions” (Daily Transcript 2193, 17 June 2008, Day 53) to meet with the second defendant, who also shared his involvement in the Volleyball Association.
[22] In November 1999, Mr Sung Joo Sung and the plaintiff had a disagreement after Mr Sung Joo Sung put a loan from Vice President Paek into his own bank account and a disputed issue of fact is how long Mr Sung Joo Sung remained involved in the Supporting Committee afterwards. Just before the Olympics, at about the time the seventh defendant (who had had a desk in the office since February) was appointed as Secretary-General, the plaintiff also asked a Mr Won Kang to fill this role. He did so from 11 August 2000 (Exhibit 64, paragraph 13; Exhibit 51), although the seventh defendant also held this role at the time, according to the Minutes (Exhibit 51). Mr Kang visited Korea on 28 August at the Committee’s expense. After he returned from Korea on 5 September, he had an argument with the plaintiff (the substance of which is an issue in dispute) and resigned.
[23] Between 1 May 1998 and the commencement of the Olympics in September 2000, the plaintiff and his Executive set up the Supporting Committee’s office, appointed officials, set up six subcommittees, found volunteer staff and a series of three bookkeepers who, under the supervision of Committee members with accounting expertise, kept the books for $200 per week. He was in charge of a large organization of volunteers who processed hundreds of applications and offers for volunteer work, homestay, cheerleading and transport. A website was also set up. The main problem was a constant shortage of funds, so the plaintiff funded the Supporting Committee from his company’s account for the first half of its life, assisted by loans and donations from other Committee members (such as Vice-President Paek, who loaned $15,000), members of the Korean community and, in mid-2000, generous donations from some sponsors in Korea.
[24] Was the Committee successful in its endeavours? Were they ready when the Olympic teams arrived? Did anything go wrong during or after the Olympics? Those are not claims that were made in this litigation. The unchallenged evidence is that the Committee did everything that was expected of it, and that its activities were such a success the Korean Government indicated it would provide the Sports Council with $100,000 extra funding (an indication of the Sports Council’s joint role in these successful activities: Daily Transcript 1790, 30 May 2008, Day 45). On 30 October 2000, as the Committee wound up its affairs, it inserted an advertisement in the Korean newspapers congratulating President Kim of South Korea for being awarded the Nobel Peace Prize for his peaceful unification policy of bringing North and South Korea together (Expenditure Resolution 285) during this momentous year in Korean peninsular politics.
[25] A number of the witnesses spoke about the successful activities of the Supporting Committee. Mr Choi, the Supporting Committee officer who from 1999 dealt with the many Korean journalists and media organisations who visited Sydney, said (Daily Transcript 1790, 30 May 2008, Day 45):
“A. Everybody from the Korean national team members is helping the committee is the what it done in - during the Olympics. Especially they, the athletes, thank him about what his good job for the Olympic period.
Q. Did they thank him publicly?
A. Definitely, yeah, by address.Q. Do you recall what was said in that address?
A. I'm not particular [sic] remember, but the leader, the team leader, says "This is first time, to like this good helping. We have many Olympics in overseas, but Sydney Olympics during we have a great help from the community, Korean community. So really health, from the bottom of my heart." That's what he said.…
Q. How do you know that he had a good reputation overseas as well?Q. What was his reputation in the Korean community?
A. It was great. Not only in local community, but also in South Korea. In political level or government level, was very appreciated to the Korean community, which is mentioning of a Olympic Committee. It's great help for the athletes in one way or another.
A. I understand - not clearly, but the country and tourism ministry promised about $100,000 for the development of the Sports Council, because Cha had such a good position. Because of the good job for the Olympic Committee, they promised the support of $100,000 for the development of the Sports Council. So it's very good news for the Korean community, for the diplomat of the community.”
[26] Mr Choi was not cross-examined on these statements, nor was Mrs Michelle Bae, a member of the Korean community, when she gave the following evidence:
“A. INTERPRETER: Before he become the chairman of Olympic Committee, Mr Cha was the chairman of Sports Council. I would describe him as someone who was honest and very hard-working. And he wouldn't even look after his own business to devote to working for Korean Supporting Committee. And he has given - he has had a lot of burden to carry, if I can say.
Q. Concentrating on the period before the Olympics, is there anything else you'd like to say about his reputation in that period, in your opinion?
A. INTERPRETER: Yes, as I said, he was the chairman of the Sports Council, and he will do whatever he can to look after people from Korea and once he fell off the ladder and he, sort of, done some damage to his brain - not, sorry, brain, his head.…
Q. Could you explain why you were giving us that example in response to that question?Q. Could you explain what you mean by falling off the ladder - that, just for—
A. INTERPRETER: He was trying to put banners on the wall, and on the ceiling and that sort of things. And he could have asked somebody else to do, but he was doing most of these things by himself, and he fell off the ladder.
A. INTERPRETER: What I mean is that, to be a chairman of Sports Council, you have to give a lot of yourself as a volunteer, and sacrifice yourself. So, it's not a job that you are paid money - is paid for. So, but he has given - he has given his own money and he's worked really hard for this job.” (Daily Transcript 1701-1702, 28 May 2008, Day 43)
[27] Mr Lee, president of the Tennis Association and a member of the Sports Council, described not only some of the meetings followed by dinners, but the importance of the North and South Korean teams being together at the Sydney Olympics:
Also, the team leaders also give their thanks, and I remember that very - that's one of the things I remember in detail. Also, it was the first time - it was the time when the South and the North team of the Korean team were together at the Sydney Olympics, so it was a very - something that we were as a one, and it was one of those that was left in the history with the Olympics, so it was something that had a big meaning and big thing that we remember from the Olympics.” (Daily Transcript 1879, 2 June 2008, Day 46)“A. INTERPRETER: Yes, my Tennis Association and the teams we were there to support, and with that, you know, we had meetings. Through that, we would have dinners. Towards the end of the Olympics, I remember the athletes - the Korean athletes that won medals in areas - would get together with the Olympic Committee and Mr Cha, the president, and with also the Sports Council members. We all got together and I remember having a congratulation party. I remember - I recall about 100 people or so attended this party. Within those people, there was gold medallist, and silver medallist and otherwise, and each other - congratulated each other, and also thanked each parties and associations.
[28] SOCOG also showed its appreciation by providing plaques and an award for the volunteers: (Daily Transcript 168-169, 7 June 2007, Day 7). There was to be a farewell function, with presentation of awards and plaques. However, this never occurred, because on 24 November 2000 the plaintiff published the Supporting Committee’s financial accounts in the Korean newspapers, and this caused so much upset and concern to certain members of the Korean community (and in particular to the fourth and fifth defendants, who were the auditors appointed at the May 1998 meeting) that these volunteers never received their plaques, or had their farewell dinner. Mr Choi commented at Daily Transcript 1804 (30 May 2008, Day 45):
“Lots of volunteers work very hard. I understand that as the president, chairman of the Olympics, Mr Bob Cha, wants to have some closing ceremony for the volunteers, giving us thank you letters, everything, some party put on, but he just, there no time to think about that kind of things. I'm still waiting. I did a lot of things to do, but I ought to get some thank you letter or something from him. But he never send it. Still people waiting. There's no closing ceremony for the Olympic committee. They did a lot of good things, we are still waiting for Mr Cha, simply have no idea about, because of this kind of turmoil last seven years. I am sad to see that”.
[29] Why did the plaintiff publish the Supporting Committee’s accounts in the Korean newspapers? He told the court that the Supporting Committee accounts were kept by bookkeepers under the supervision of the seventh defendant (until November 1998), Mr Sung Joo Sung until March 2000, and by the seventh defendant until November 2000 (Daily Transcript 591-592, 25 September 2007, Day 18; Daily Transcript 770 and 782-784, 4 October 2007, Day 21), with the help of a financial director appointed in December 1999. However, the plaintiff and Mr Sung Joo Sung had a disagreement when Mr Sung Joo Sung banked a loan made to the Supporting Committee (by the Supporting Committee’s Vice-President, Mr Nam Yoon Paek) into his own personal account. The plaintiff demanded its return but Mr Sung Joo Sung kept $1,000 of it. Two weeks later, according to the Minutes for 1 December 1999 (Exhibit 51) the plaintiff appointed the treasurer of the Korean Sports Council, Mr Joo Yong Jo, as financial director of the Supporting Committee, and gave Mr Sung Joo Sung another position, that of vice chairman (see 17 and 25 January 2000 entry in Exhibit 52, Committee Activities Diary, page 2 and 3). Mr Sung Joo Sung continued to keep records until 21 December, and in his statement says he prepared financial statements “until he resigned” (Exhibit 72, paragraph 16) but inconsistently claimed to have completed financial records up to April 2000. When he left the Supporting Committee, he took with him the financial records Miss Chae, the bookkeeper, had maintained.
[30] After the Games ended, accounts had to be prepared for the auditors to check, and for presentation to the Supporting Committee. The plaintiff asked Mr Sung Joo Sung to return the Supporting Committee accounts book but he refused (Daily Transcript 85, 5 June 2007, Day 5; Daily Transcript 969, 9 October 2007, Day 24). In his evidence, Mr Sung Joo Sung said when he resigned, he returned “everything” (see also Daily Transcript 3062, 7 April 2009, Day 65). However, he considered the green book to be his “personal record book as in evidence” (Daily Transcript 3071 and 3076, 7 April 2009, Day 65). The plaintiff asked the seventh defendant to prepare these accounts, but he refused (Daily Transcript 782-783 and 804, 4 October 2007, Day 21). The current bookkeeper, Miss Yoo, had, between 26 September and 12 October 2000, prepared a summary of all expenses from the Committee’s chequebooks (Exhibit 7). The plaintiff decided to prepare the financial accounts himself, and to publish the accounts in the Korean newspapers, with the telephone numbers of the Supporting Committee and one of the auditors (the fifth defendant) so that donors whose names were omitted (because he had prepared these records without Mr Sung Joo Sung’s book or the seventh defendant’s assistance) could ring up if there was a problem (Daily Transcript 86, 5 June 2007, Day 5).
[31] The fourth and fifth defendants did not accept this explanation. Their evidence is that the plaintiff should have called a meeting of the Supporting Committee and presented the financial report to the Supporting Committee only, not published the financial report in the paper as if the audit was a fait accompli. The fourth defendant’s written submissions state that as a result of the plaintiff’s “peremptory” decision to publish this information the false impression was created that the financial affairs had been audited when they had not been, and that the fourth and fifth defendants were unwillingly thrust into the public position of being held to account by persons whose donations to the Supporting Committee had been omitted (written submissions of the fourth defendant, paragraph 37).
[32] The defendants assert that the plaintiff, and only the plaintiff (not the Supporting Committee, the bookkeepers, the seventh defendant, Mr Sung Joo Sung, or the financial director Mr Joo Yong Jo) is not only responsible for poor accounting practices, but is guilty of misappropriation and also of what the defendants call in their submissions “contextual misappropriation”.
[33] In particular, the many payments for meals for committee members after meetings, and for visiting Koreans, were considered excessive and unauthorised, as receipts were often not obtained from the modestly priced Korean restaurants and grocery stores from which they purchased their meals. To cite a typical example, on 26 September 2000, during the Olympic Games, the seventh defendant made a claim for 6 volunteer’s lunches in the office for $52, a claim rejected by the auditors and marked “evidence required” (Expenditure Resolution 244).
[34] How much money do the defendants say the plaintiff misappropriated? This figure changed before, during and after the trial. The particulars of justification served before the trial (12 February 2007, Exhibit 81) assert the plaintiff misappropriating the sum of $184,712.00 and spent $53,315.45 for functions outside those of the Committee’s purposes. Particulars served on 3 October 2007 (at the end of the plaintiff’s cross-examination) put the amount misappropriated at over $500,000, although this includes some overlapping claims and far exceeds the amounts of money ever handled by the Committee. The plaintiff, the defendants claim, was responsible for everything the Committee did because the Constitution said so, and because his personality and in particular his self-righteous conduct impeded the working of the Supporting Committee.
[35] The circumstances leading to the publication of the thirteen publications the subject of these proceedings are as follows. Following meetings with the plaintiff up to 17 December 2000, at which he handed over certain Supporting Committee financial and administrative records, the auditors prepared three final reports which were published in each of the three main Korean newspapers (Exhibits M, N and P, dated 1, 16 and 30 March 2001). Their findings include allegations of misappropriation, responsibility for the failure to keep proper records and personal failings of a serious nature. These three audit reports, and four other articles published in the second defendant’s newspaper (Exhibits D, H, J and S), constitute the matters complained of which form the subject of this litigation.
[36] When I call the fourth and fifth defendant’s “auditors”, I should note that that they had no accountancy training or prior experience in auditing. The fourth defendant is a cleaner, and the fifth defendant, who managed a sushi restaurant at the time, now lives in Korea. The Supporting Committee’s records for the period 1998 – 2000 have never been audited by a certified public accountant.
The structure of this judgment
[37] This is a long judgment, because the hearing took many weeks. It falls into five parts:
(a) An overview of the cause of action and the parties and description of the Supporting Committee and its activities over the Olympic period, followed by a summary of the events leading to the publication of a series of Korean language newspaper articles in New South Wales by the defendants;
(b) A consideration of the defendants’ attack on the credibility of the plaintiff and related issues of witness credit;
(c) A consideration of the defences of comment and comment of a stranger (ss 32 – 4 Defamation Act 1974 (NSW) (“the Act”)) and of qualified privilege at common law and pursuant to s 22 of the Act;
(d) A consideration of the principal defences, namely justification and contextual truth (sections 15 and 16 of the Act); and
(e) Damages and costs.
[38] I have set out, as a schedule to this judgment, not only the matters complained of that are the subject of these proceedings, but all publications which were considered by the s 7A jury, and the imputations the jury found were conveyed and defamatory.
[39] Prior to and during the trial I handed down a series of 21 judgments, and these can be found at Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300, together with the text of the Supporting Committee’s Constitution and Minutes. The limitations of the District Court Caselaw website make it impractical to publish these judgments in any different format.
The nature of proceedings for defamation
[40] The law of defamation is designed to resolve the conflict between two co-existent rights: the right of every citizen to enjoy a good reputation and the right of freedom of speech: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 (“Marsden”).
[41] What is defamation, and how have these defamation proceedings come about? An actionable defamation is a publication which is not excused, protected or justified by one or more of the defences available to defendants (McHugh J, “What is an actionable defamation?”, Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990, p. xi.).
[42] If all the defences fail, the plaintiff brings a claim for damages. The purposes of an award of damages in defamation is described by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] as follows:
“The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation.”
[43] Section 46(2) Defamation Act 1974 (NSW) provides that:
“Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm.”
[44] During the trial, one of the witnesses gave a layman’s description of the impact of defamatory publications on the plaintiff:
“Ten years ago, there were two people. They were white people, both of them were white, but today as I sit in the witness box, one of them was [sic] white and one of them black. What I mean by that is that the person who is black, he has taken all the blame on him and his arms and legs were amputated, and that means he’s not – yes, he’s not normal any more. He’s a disabled person. That’s what I meant. And I wonder how that person is going to live the rest of his life in Australia normally”. (Daily Transcript 1693-1694, 28 May 2008, Day 43)
[45] While this description does not accurately reflect the elements in damages in defamation, it is an indication of the kind of evidence I received concerning the damage to the plaintiff’s reputation following the publications.
The Issues
[46] The principal question I must determine is whether the plaintiff is entitled to any remedy in relation to each of the seven publications made in the State of New South Wales by the second, fourth and fifth defendants.
[47] The second and fourth defendants defend these proceedings and assert that the plaintiff is not entitled to any remedy. They rely upon defences of justification (including a defence of contextual justification), qualified privilege (at common law and pursuant to s 22 Defamation Act (1974) NSW) and comment. In addition, if these defences fail, the second defendant (from who damages are sought) claims the plaintiff should only be entitled to small or nominal damages.
[48] I have received submissions from the fourth defendant on damages. The plaintiff does not seek an award of damages against the fourth, fifth and sixth defendants on the basis that they have no assets. For reasons I have explained in the section of this judgment on damages, I have not acceded to the plaintiff’s request in relation to the fourth and fifth defendants.
[49] Although only the second and fourth defendants still contest this litigation, it is important to understand who all the parties to this litigation are, because they all played an important role in the events described.
The former and present parties to this litigation
[50] I shall now set out some brief information about each of the parties to this litigation. By reason of the similarity in surname of many of the parties and witnesses, I have referred to the parties hereafter as “the plaintiff”, “the first defendant” and so on.
The plaintiff – Mr Bob Chae-Sang Cha
[51] The plaintiff was born in Korea in 1946. He fought in Vietnam alongside Australian and American troops between 1965 – 8, leaving the army with the rank of staff sergeant (Daily Transcript 47, 4 June 2007, Day 4) then working for an American company in Korea before immigrating to Australia in 1973. He worked in Australia for Comalco and for McFee Engineering, studying hydraulic mechanical consulting. While he was at McFee he met the second defendant.
[52] In 1976 the plaintiff married, became an Australian citizen and started work at ANI, where he remained until starting his own business CFM (“Cha Family Maintenance”) (Daily Transcript 50, 4 June 2007, Day 4). He took up golf and had a handicap of six. He was made the chairman of the Korean golf club in 1991 and in 1997 became the sixth (in line) president of the Korean Sports Council, a position he held until the circumstances described in the seventh matter complained of published by the second defendant on 31 March 2001. From 1997 onwards he attended the Korean Games on behalf of the Korean Sports Council, and received plaques of appreciation for his services to Korean sport in Australia.
[53] On 1 May 1998 the plaintiff stood as a candidate for election for the new role of chairman of the Olympic Sports Committee. He won by 33 votes to 11.
[54] Between 1 May 1998 and the end of the Sydney 2000 Olympic Games, the plaintiff carried out the roles and duties of chairman of the Supporting Committee. This included arranging and attending meetings, dealing with SOCOG, arranging social functions and fundraisers, and supervising a wide range of committee activities including the six sub-committees for Olympic transport and the like. There were frequent visitors, including media and government officials, from Korea. These activities, as described in the Minutes of Meeting and Activities Book, (Exhibits 51 and 52; tendered on Day 17, Daily Transcript 521-522, 24 September 2009) , are set out in more detail below.
The first defendant – Mr Jik Il Oh
[55] The first defendant, Mr Oh, was the president of the Korean Journalists Association in Australia, according to a letter from the Association dated 30 September 2000 (Exhibit 56). He wrote the first, third, sixth, seventh, eighth, eleventh, twelfth and fourteenth matters complained of which went before the s 7A jury, which appeared in “Hojudonga”, a Korean language newspaper. His article of 22 December 2000 (the first matter complained of) summarises the interim audit results provided to the Australian Korean Journalists Association by the fourth and fifth defendants on 21 December. Mr Park, the fourth defendant, disputes this, and says that Mr Oh came to his desk and stole documents from him (Daily Transcript 2638, 30 March 2009, Day 59). The “interim audit results” Mr Oh wrote about were not produced at the trial, nor were they provided to the plaintiff or the cross-defendant in response to their requests at the time (Daily Transcript 1767, 30 May 2008, Day 45); Mr Park says this report was mislaid (Daily Transcript 2793-2795, 1 April 2009, Day 61).
[56] Mr Oh never contested these proceedings. After the s 7A jury found imputations were conveyed by each of these publications (a schedule is set out in Part 2 of this judgment), he failed to comply with peremptory orders to file a defence. Judgment was entered against him. He died after judgment was entered. Defamation actions do not survive death, so the action abates. This is an important exception to the general rule of survivorship of actions, and is one of the reasons why delay in defamation actions should be regarded with concern by the courts.
The second defendant – Mr Jae Kyung Lee
[57] The second defendant was the other candidate for election at the meeting of 1 May 1998. He is described in the List of Persons present at this meeting, prepared by the seventh defendant (Exhibit 1), as “adviser & second president of Sports Council”. The other three ex-presidents of the Sports Council are listed as “Counsellors” (Exhibit S) but Mr Jae Kyung Lee occupied a more important role. This is because, although he lost the election to the plaintiff, he was appointed (without election) to the most senior role in this committee, namely the position of Honorary Chairman. His name appears at the top of every list of members of the Supporting Committee (Exhibit SS, Exhibit 1 and Exhibit 51, page 65) except the last. His name is above the plaintiff’s on all but one of these documents. He participated in Committee activities such as meeting the Korean Olympics team at the airport.
[58] The second defendant was also the publisher of TOP Weekly (“TOP”), the Korean language newspaper which published seven of the fourteen publications sued upon by the plaintiff. He was given TOP by the seventh defendant at an unknown date (Daily Transcript 2228, 19 June 2008, Day 54). TOP had its 8th anniversary of publishing in April 1999; the Supporting Committee and the Sports Council jointly sent a celebratory garland at the time (Expenditure Resolution 2 – 301). The seventh defendant said the second defendant was not interested in running a newspaper, and took it over only because the seventh defendant begged him to do so (Daily Transcript 2228, 19 June 2008, Day 54). The second defendant said that he had bought this publication (Daily Transcript 2082, 12 June 2008, Day 51) but that his visits to the newspaper office were “[n]ot even once a year, sometimes” (Daily Transcript 2086, 12 June 2008, Day 51).
[59] As well as being successive owners of TOP, the second and seventh defendants had many occasions to meet when the second defendant became chairman of the Korean Society, as the seventh defendant remained as a director (Daily Transcript 2193, 17 June 2008, Day 53). This was in addition to their contact at the Sports Council (of which the second defendant was immediate vice-president), the Volleyball Association (of which they were successively the presidents: Daily Transcript 2193, 17 June 2008, Day 53) as well as their activities concerning the Supporting Committee and their membership of the Korean Veterans Association of which the seventh defendant was the president at the time of trial.
[60] The Korean Society had given the Supporting Committee free office space when they started up. When the second defendant became the president of the Korean Society in mid-1999, the fourth defendant (who was appointed the Korean Society’s Secretary-General at about this time) told Mr Sung Joo Sung, the Supporting Committee Secretary-General, that they should pay $150 per week rent (Daily Transcript 2985-2986, 6 April 2009, Day 64). The Committee had started paying $50 per week in April 1999 but this was considered insufficient and the fourth defendant told the court “we said [they should] leave” (Daily Transcript 84-85, 5 June 2007, Day 5; Daily Transcript 2745, 31 March 2009, Day 60; Daily Transcript 2985-2986, 6 April 2009, Day 64). The question of the second defendant’s role in this was an issue at the trial. Counsel for the fourth defendant said no receipts were available for any rent payments, or a written lease, but asked me to infer that rent of $150 was payable (Daily Transcript 3219-3220, 15 April 2009, Day 67).
[61] Over Mr Wheelhouse SC’s objections (cf Price v Manning (1889) 43 Ch. D 372), the second defendant was called to give evidence by the plaintiff (Daily Transcript 2030, 11 June 2008, Day 50). He told the court that “they” asked me to be “honorary chairman” and that “basically the honorary chairman is to help them and assist them” (Daily Transcript 2079, 12 June 2008, Day 51). He “had no responsibility for the Committee”, but “could be called upon from time to time to do things.” (Daily Transcript 2098, 12 June 2008, Day 51).
[62] The second defendant’s defence prior to the amended defence of 13 February 2007 initially pleaded a limited plea of justification to imputations 39(c) and 40(e), namely that the plaintiff failed to keep proper accounting records. An application to amend the plea of justification to 11 of the 14 imputations was made on 5 February 2007, and on 8 February 2007 I made a peremptory order for service of particulars of justification or partial justification by 13 February 2007. There were further particulars supplied at the commencement of and during the trial and by the end of the trial these particulars were in excess of 160 pages.
[63] The second defendant was consulted by the fourth and fifth defendants, in their capacity as auditors, because he was Honorary Chairman of the Supporting Committee and Chairman of the Korean Society, according to the 1 March 2001 matter complained of. He also presided over the meeting to consider the fourth and fifth defendants’ audit report (Exhibit J) and attended the Sports Council meeting at which the plaintiff was forced to resign. This is the subject matter of the 30 March 2001 publication.
The third defendant – Mr Yoon Shin Lee
[64] The third defendant publishes the Sydney Korean Herald (“Korean Herald”) which, like TOP and Hojudonga, is published weekly on Fridays. The edition for 8 – 14 May 1998 (exhibit 1) shows that it was a substantial newspaper of more than 50 pages, with offices in both Campsie in New South Wales and Fortitude Valley in Queensland, devoted to news stories as well as advertising not only from Korean businesses but also stores like Brescia furniture and government bodies like Landcom. No copy of the second defendant’s newspaper was discovered or tendered but descriptions of the advertising and content show they must have some similarities. The plaintiff commenced proceedings against the Korean Herald in relation to the same three publications on the same three dates (1, 9 and 16 March 2001 as the publications in TOP and Hojudonga. The Korean Herald did not publish any other articles about these events.
[65] Part way through the s 7A jury trial, on the application of counsel for the plaintiff, during the address to the jury of Mr Wheelhouse SC (counsel for the third defendants at the time), I discharged the jury. Appeals to the Court of Appeal and High Court were unsuccessful: Lee v Cha [2006] HCA Trans 132; Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279. There was a further s 7A trial at which the jury found all imputations pleaded against this defendant were conveyed for the three publications for which it was responsible. This delayed the litigation between the plaintiff and the other parties for two years. It was to avoid further delay that on 25 August 2006 I set the matter down for hearing as a four-week trial commencing 28 May 2007.
[66] In a defence filed on 10 August 2006, the third defendant pleaded a defence of justification to all imputations in these three publications (unlike the second defendant, who pleaded this defence to only two imputations). However, before the trial commenced, the third defendant settled the proceedings for $60,000 plus costs and published an apology.
The fourth defendant – Mr Hak Joo Park
[67] The fourth defendant trained in Korea at a college as a physical education teacher. He had knowledge of bookkeeping from his activities as a sports teacher in Korea, but had no prior knowledge or experience of auditing. He was the basketball association representative on the Supporting Committee. In addition, he participated in Supporting Committee social activities such as the SK Security dinner (Statement, page 108; Daily Transcript 2573-2574, 26 March 2009, Day 58; Daily Transcript 2996, 6 April 2009, Day 64).
[68] The second defendant did not tell the court what his occupation was on 1 May 1998, when he volunteered to become one of the Committee’s auditors (Exhibit 70, Supplementary Statement, paragraphs 1 and 2). The plaintiff said he learned the fourth defendant had been the Korean Society’s cleaner at that time after the second defendant was elected the president of the Korean Society (Daily Transcript 71, 4 June 2007, Day 4; Daily Transcript 2673, 31 March 2009, Day 60). The fourth defendant was appointed Secretary-General of the Korean Society during 1999, in which capacity he visited and contacted the Supporting Committee to obtain information and documents, according to the Activities Diary and Minutes of Meeting (exhibits 51 and 52). At or about the time when the second defendant's four-year term as president of the Korean Society ended, the fourth defendant's employment with the Korean Society ended. Since that time he has worked as a supermarket cleaner for companies owned by the second defendant (Daily Transcript 2672-2673, 31 March 2009, Day 60).
[69] In his capacity as general secretary of the Korean Society, the fourth defendant took an active role requesting information from the Committee (Minutes of 6 March 2000, Exhibit 51, page 41; Activities Diary, 31 August 2000, Exhibit 52) and asking the Committee to pay more rent (Daily Transcript 1691, 28 May 2008, Day 43) and asking them to leave when they refused.
[70] There is a disputed issue of fact as to whether the fourth and fifth defendants commenced the audit on 21 August 2000 (as recorded in Exhibit 51, the Committee Activities Diary) or on or about 10 December 2000, the date given by the fourth and fifth defendants as the date when they received the Committee records from the plaintiff.
[71] During the cross-examination of the plaintiff it was put to him that the fourth defendant was responsible for checking all the Expenditure Resolutions and that his signature and red seal appear on them (Daily Transcript 81, 4 June 2007, Day 4; Daily Transcript 194, 7 June 2007, Day 7; Daily Transcript 200-209, 8 June 2007, Day 8; Daily Transcript 270, 12 June 2007, Day 8; Daily Transcript 933, 9 October 2007, Day 24; Daily Transcript 1014, 10 October 2007, Day 25; Daily Transcript 1459, 19 May 2008, Day 38; Daily Transcript 1664, 28 May 2008, Day 43). In fact this was not the case. Mr Wheelhouse SC advised on Day 60 that the fourth defendant had “picked up” an error in the translation of his affidavit and that in fact the signatures and red seals on the Expenditure Resolutions were those of the fifth defendant. (Daily Transcript 2731, 31 March 2009, Day 60).
The fifth defendant – Mr Han Yong Lee
[72] Mr Han Yong Lee, the fifth defendant, was a vice-chairman of the Korean Sports Council (Daily Transcript 1548, 26 May 2008, Day 41). He was the president of the Judo Association (Daily Transcript 2901, 3 April 2009, Day 63)). At the time of his appointment as auditor he ran a sushi restaurant. He had no training or knowledge in accounting or auditing.
[73] The fifth defendant was represented by counsel and a solicitor at the s 7A hearing and filed a defence in the same form as the fourth defendant, pleading a defence of truth to the two imputations of failing to keep proper accounts, and providing the same three short paragraphs of particulars of truth.
[74] The fourth and fifth defendants’ solicitors filed a Notice of Ceasing to Act on 17 January 2007. They attended court in person in February 2007 in response to a request from the plaintiff for production of the Supporting Committee’s accounting records. These documents were then uplifted by the second defendant (Daily Transcript 151-154, 6 June 2007, Day 6).
[75] Although he filed a defence, the fifth defendant did not attend the trial to defend these proceedings. He was called to give evidence by the second defendant. Each time I asked the fourth defendant and Mr Wheelhouse about him I was told he was in Korea (Daily Transcript 25-26, 28 May 2007, Day 1; Daily Transcript 41, 4 June 2007, Day 4; Daily Transcript 108, 5 June 2007, Day 5; Daily Transcript 1426, 12 May 2008, Day 36). I severed the cross-claim on Day 36 (Daily Transcript 1425, 12 May 2008) and made directions for him to be notified (see orders dated 12 May 2008). On the application of Mr Evatt I struck out the defence of the fifth defendant and entered judgment for the plaintiff. In addition, I entered judgment in the cross-defendants’ favour (plus costs) on the fifth defendant’s cross-claim against Mr Kim and the plaintiff.
[76] Mr Lee did come to Australia to give evidence for the second defendant. His cross-examination was restricted because he was only able to remain in Australia for a few days (Daily Transcript 2803 and 2821-2822, 2 April 2009, Day 62).
The sixth defendant – Mr Duk In Kim
[77] The sixth defendant was the publisher of the Korean Community magazine and published the thirteenth matter complained of on 6 July 2001. He did not participate in the s 7A trial and the plaintiff entered judgment against him after he failed to file any defence in relation to the imputations found by the s 7A jury.
The seventh defendant – Mr Hak Soo Cho
[78] The seventh defendant is the former owner of the newspaper TOP, which published all of the newspaper articles the subject of these proceedings. He gave this newspaper to Mr Lee, the second defendant. He was the director of the Korean Society (Daily Transcript 2193, 17 June 2008, Day 53) and is currently the vice-president of the Korean War Veterans Association (Daily Transcript 2164, 17 June 2008, Day 53). The seventh defendant presided over the meeting on 1 May 1998 at which the plaintiff and the second defendant were candidates (Daily Transcript 156; 7 June 2007, Day 7). He published the result of the meeting in the newspaper (Daily Transcript 146, 6 June 2007, Day 6; and Exhibit 1) and prepared the list of officials who were at the meeting and also the Constitution. At the top of this list was the second defendant, who was the Honorary Chairman (Exhibit SS).
[79] The seventh defendant was Vice Chairman of the Supporting Committee at various times, keeping financial records between May – November 1998 and between April – October 2000, according to the plaintiff, who identified the seventh defendant’s handwriting in the Committee’s accounts for this latter period. He had his own desk in the Supporting Committee’s office according to the Activities Diary, which records him as attending frequently between January and October 2000. The seventh defendant said there was no Activities Diary and that entries shown to him were “falsified” (Daily Transcript 2211-2212 and 2214, 19 June 2008, Day 54).
[80] The seventh defendant answered interrogatories denying that he made statements to TOP denying he made statements attributed to him concerning the $3,000 left over after the purchase tickets (Exhibit U) and saying he could not recall what he did say “given the passage of time”. The jury found in favour of both the second and seventh defendants in relation to this publication (S 7A transcript 626 3 August 2004).
The cross-defendant – Mr Chung Yup Kim
[81] Mr Kim, an engineer, was the publisher of the Korean-Oceanic Business Review (“the Oceanic Review”). He came to Australia in 1973 and worked for the Australian Bureau of Agricultural Research and Economics in Canberra, obtaining a Master of Economics degree in agricultural economics from the University of New England. In 1988 he moved to Sydney and started publishing the Korean-Oceanic Business Review, in which he translated into Korean items of interest from English newspapers. In addition to writing articles about education, immigration and law and order issues, he also reported on the activities of Korean community organisations.
[82] The cross-defendant played no role in the Supporting Committee’s activities and wrote no articles about the Supporting Committee until March 2001. He said he was asked by the plaintiff not to publish articles or participate, because the second defendant, who had him expelled from the Korean Society after attaining the presidency, objected to him being there (Daily Transcript 1765-1766, 30 May 2008, Day 45).
[83] The cross-defendant published articles in the Korean Oceanic Review early in 2001 questioning the accuracy of the facts set out in matters complained of and published an interview with the plaintiff. This resulted in defamation proceedings being brought against him, and also against the plaintiff, by the fourth and fifth defendant, as a cross-claim in these proceedings. The cross-defendant gave evidence in the s 7A proceedings and in this trial.
[84] After conclusion of the s 7A jury trial, the fourth and fifth defendants never prosecuted their cross-claim against the cross-defendants. I severed it from the main action on Day 36 of the trial (12 May 2008). The fourth defendant later discontinued the cross-claim and on the application of counsel for the plaintiff and Mr Kim I gave judgment in their favour against the cross-claimant Mr Lee, who is the fifth defendant in these proceedings.
[85] It is not in dispute that when the cross-defendant and Mr Jae Sung Hwang, the editor of the Oceanic Review, attended the Sports Council meeting of 30 March 2001, the fourth defendant assaulted Mr Hwang and knocked his glasses to the ground (Daily Transcript 1770-1772, 30 May 2008, Day 45; Exhibit S – The ninth matter complained of). The matter complained of dated 30 March 2001 refers to this altercation, although it does not mention the assault. The explanation given both in this publication and by the cross-defendant in cross-examination is that the cross-defendant was expelled from the Korean Society following the election of the second defendant, which meant he was not welcome at any Korean function, including the Sports Council (Daily Transcript 1768, 30 May 2008, Day 45).
Some procedural issues
[86] Now that I have identified the parties and the issues, I should identify some procedural matters relevant to the determination of issues in this judgment.
(a) The burden and standard of proof for imputations of criminal conduct
[87] Imputations 39(a), 41(b), 41(d), 42(d) and 43(a) each identify conduct of an arguably criminal nature, such as misappropriation or failure to account.
[88] In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [24] – [38] Levine J sets out the relevant law concerning the standard of proof for imputations of conduct capable of amounting to the commission of a crime. The issue in this case, as in Marsden, is a fact-finding one of whether, on the balance of probabilities but to the level of satisfaction of proof required, the evidence establishes the truth of imputations of Levine J calls “grave misconduct” (at [38]).
[89] The parties agree (plaintiff’s written submissions, 5.1.5) that the burden of proof in relation to the justification concerning the elements of each of these imputations which lies upon the defendants must be discharged on the balance of probabilities to the level of satisfaction of proof as required in Briginshaw v Briginshaw (1938) 60 CLR 336. Clear, cogent or strict proof is necessary where allegations of a serious nature such as fraud are made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
[90] This standard of proof is not met if the evidence gives rise to conflicting inferences of equal degree of probability so that the choice between them is a matter of conjecture: Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20]. Where it is not possible to reach a conclusion either way, the court is not bound to do so, but may take the third course of finding that the party with the burden of proof has not discharged it: Kuligowski v Metrobus (2004) 220 CLR 363.
[91] Defendants in defamation proceedings are required to provide particulars of the plea of justification before the trial.
(b) Admissions by conduct
[92] At [39] – [54] in Marsden, Levine J explained the nature of admissions by conduct, including evidence in relation to the preparation of the case. I propose to approach, in the same way, the question of whether the conduct of the plaintiff complained of by the defendant amounts to evidence of this kind.
(c) Jones v Dunkel (1959) 101 CLR 298; Browne v Dunn (1893) 6 R 67; Allen v Tobias (1958) 98 CLR 367
[93] The parties have not referred to Jones v Dunkel (1959) 101 CLR 298 issues in their submissions, but if there is any question of witnesses who were not called, I propose to approach the issue in the same “common sense” way that Levine J employed in Marsden at [93] (citing Jones v Dunkel at 321 per Windeyer J).
[94] Both the plaintiff and the second and fourth defendants assert that many disputed issues of fact were not put to the relevant witnesses in accordance with the rule in Browne v Dunn (1893) 6 R 67.
[95] In some cases these problems arose because the defendants’ particulars of truth were substantially enlarged throughout the trial.
[96] Because of the length of the trial, counsel for the plaintiff sensibly suggested that all the defendant’s witnesses could give evidence by affidavit or statement. In their affidavits they stated evidence in reply to matters raised by the plaintiff and his witnesses. Counsel for the defendants (“defendants” in this judgment refers to the second and fourth defendants) asserted that where witnesses were not cross-examined about these allegations, the rule in Browne v Dunn had not been complied with and that the approach I should take on all these occasions should be to accept the evidence of the defendants.
[97] Once a witness has given evidence about the allegations against him or her, it is not necessary for his/her counsel to go through the exhaustive process of putting formally to all other witnesses questions designed to make them confirm or deny that evidence: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 23. In addition, the provisions of s 46 Evidence Act 1995 (NSW) give a number of alternatives to a trial judge when dealing with evidence which is asserted not to have been challenged or led.
Like current mixed up Korean political circle and Korean community’s scandalous incidents are result of ugly greed for big ambitions. The Korean politicians clinging to presidency and news on irrationality of head of some organisations taking advantage of organisations for their personal interests were all originated from that greed wanting to be a big man. These people cause disadvantages to good hearted little people. The report on donations for Korean Olympic team without knowing whereabouts of the money and misused by Olympic Supporting Committee is humiliating and such a thing should never happened at all.
The supporting donations were made in good faith but if it has been spent to maintain his dignity to become a gimcrack it must be clarified very clearly not buried in oblivion. When these greedy people take advantage of Korean community disappear our community will be a bright and honest society. I hope that our Australian – Korean Community becomes a place full of people with big ambitions but accomplish from little wishes and faithful people to their present not lost in wild fancies.
It reminds me of a biblical expression, serve other before to be served.
Byung Tae Qark (free lancer)
Published by Kyo Min Jap Ji 2001/07/06
47(a) That the plaintiff had misused money donated to the Committee.
Text of the publication:
A Letter to our Community
I am writing this to all of you to share the pains of 30 years of Korean migration history in Australia.
It has been 6 months since Sydney Olympic Games has ended. It was the celebration of everyone in the whole world, the most organised and most systematic Olympic ever held so far. To keep upon this, Aus-Kor Olympic Supporting Committee (Committee) was formed. Who was the Committee for? Lies, dissolute life and arrogant behaviours. As I read the newspaper, it gave me a heartache and made a so furious.
What a disgraceful behaviour it is. Without having to check items one by one. There is so obvious difference in cash expenses, cost of gifts specially cost of food (karaoke & alcohol). Specially, when we look at details of cash expenses with no particulars of expenses, it looks as if it is a personal business activity statement. But I guess you all know that it is mischief of the Committee. It is pretty much right that they ran the Committee to benefit for their own and attain distinction for themselves. I would like to ask them is it right to sneer our community like that. If feels like some politicians, back in Korea who used to be so corrupt and injustice to take the governing power, are here to live.
Our Korean community people work so hard day or night they live very hard life. The donation was raised by those hard working people with their best wishes and it was wasted extravagantly by one particular person. I would like to tell everyone in this column in the name of our community.
This particular issue on committee must be cleared through responsible discussions of the heads of various organisations like Korean Society, General Consulate & etc. Get to the bottom of the faults the relevant person must be punished & prosecute criminally if applicable. Try to recover the wasted fund at the same time. I wish that a systematic and responsible person would take over Sports Council to represent our community so that we do not repeat ourselves with such a drama. Specially, why is our current President of Korean Society taking a wait and see attitude, even if he starts being in charge of it now and start to get towards the solution of the problem.
I feel so for the committee members worked so hard but they lost their dignity because of insincere organisation. I hope that this issue gets settled as soon as possible and our community get over the heartache soon as well. If this issue cannot be settled by community organisations, all of us can participate positively. We could form some kind of civil society, let Korean Government and Australian Government and devote ourselves to work to take care of this matter.
Dear fellows!
I expect to have a lot of people’s attention to settle this matter as soon as possible. Finally, I would like to wish all of our community health & plentiful always.
Published by Hoju Dong A
48(a) That the plaintiff misused his position with the Committee for his own benefit.
48(b) That the plaintiff spent on himself money that had been donated to the Committee.
48(c) That the plaintiff wasted money that had been donated to the Committee.
48(d) That the plaintiff deserved punishment for his actions while President of the Committee.
Text of the publication:
March 2001 The Korea-Oceania Business Review
Page 10 & 11
Interview
This Paper: On the 16th March, ‘Hoju Dongah’, ‘Hankuk Newspaper’ and ‘Top’ have published ‘The 3rd Additional Audit Report of the Australia Korea Support Committee for Olympic Games’ with the signature of Han Yong Lee, financial auditor and Hak Ju Park, administrative auditor.
First, the auditors, Han Yong Lee and Hak Ju Park claim that $300 from Sejong Hoekwan and $200 from Won Kang have been missing from the list of support funds.
Chairman Cha: Donation of $200 from Mr Won Kang to the support committee is a total lie. (Showing the advertisement paper of Hoju Dongah.) $300 from Sejong Hoekwan was presented in the list of Guide Map Advertisement Supporters for Aus-Kor Support Committee for 2000 Olympic Games, which was published in Hoju Dongah on 10th November last year.
This paper: In the interview with this paper, Sejong Heokwan has not mentioned anything about the contents published in the Hoju Dongah as you have just mentioned. It said it gave $300 to Mr Won Kang and did not know whether the money was for the Map Advertisement or for the Olympic Support fund. It also stated that it did not want to mention anything further since this was a matter between the chairman, Cha and Mr Won Kang.
Chairman Cha: Sejong Hoekwan and Mr Won Kang are in close relation with each other and it is true that the money has been passed to Mr Won Kang. As mentioned earlier, it was advertised to the Korean community that the money was spent for the Map cost. Despite this, the auditors and Mr Won Kang talked about the innocent Sejong Hoekwan in Korean community papers causing them problems in their business. They are really doing wrong things.
Again, the claim that $200 was donated by Mr Won Kang and was missed in the list of supporters is a complete lie. The allegation by Mr Won Kang of donating $200 is like accusing an innocent virgin of being pregnant.
This paper: Second, the Honam Friendship Association claims that they have not received $300 from the support committee saying “these are false documents of expenditure of the support fund”.
Chairman Cha: On 16th November 1998, a Westpac cheque (cheque number 403108) of $300 was given to Mr Won Kang, the chairman of the Honam Friendship Association. After seeing the article that said the money was not received from the support committee, I took the time to find the cheque butt. I would like to ask you to include this in your paper if you have room.
In order to prevent such an unfortunate incident like the Support Committee for the Olympics reoccurring in the Korean community in Sydney, the whole Korean community should be aware of how much these two auditors have been lying.
This paper: What’s the story with the Korean flag incident?
Chairman Cha: Well, please read this letter from Soon Hyung Kwon, the publisher of the Christian Review. You can have a copy as evidence. On 10th June 2000, at Homebush Olympic Stadium, there was the Global Jesus March 2000 by Australian Christians who were wishing for a successful Olympic Games. The Korean Uniting Choir of 2,500 people took part. They needed 5000 Korean flags and two comma-patterned fans urgently. The publisher, Soon Hyung Kwon of the Christian Review asked the Consulate and Embassy for support but he was refused because of their short budget. As a last resort, he asked the support committee. Therefore, $1,000 for the purchase of 3000 Korean flags was given. How silly would we be if we could not give $1,000 for the public promotion of our country in the precious 2000 Olympic festival?
This paper: According to the auditors report, it is alleged that apart from $1,000 to the Christian Review for the purchase of the Korean flags, a record has been falsely made up that $1,000 was paid to the same place for the same purpose without any receipt.
Chairman Cha: Well, I am not clear on this since the auditors still hold all the materials. However, as far as I remember, there was no such thing. I want the Dae Yang Chu News (The Korea-Oceania Business Review) to ask the auditors to submit the evidence.
This paper: It is alleged that you withdrew $2,788 with a fake receipt after you sent $2,200 for the Korean flags to Bumyang Industries through the Foreign Exchange Bank.
Chairman Cha: This also can be explained after looking at the books that are kept by the auditors. Tell them to show the evidence rather than placing advertisements saying this and that.
This paper: It is alleged that $1,100 was paid by you to the Korean Uniting Church for usage of their church for cheer practice and only $400 was claimed to be received by the church.
Chairman Cha: I knew that $50 a week for 3 months was to be paid for the use of the church. By this calculation, it is only $600. I do not know how I made the mistake of publishing that $1,100 was paid for that. When I look at the books and documents that the auditors are holding, I will be in a better position to explain.
This paper: What is the story about the LG, SK wrist watches?
Chairman Cha:
They were given to the North Korean athletes for the Olympic Games and all the Korean athletes at the Sydney Paralympic Games. I am told that no one has seen these watches being given to them but this is not true.
(Showing two letters) There are two witnesses, the publisher, Soon Hyung Kwon of the Christian Review (phone 9457 0055) and Mr Jae Jin Park (phone 0011 822 4162596, fax 412 0463) of the Korean Disabled Persons Welfare Association sports promotion team.
There are letters which have been written by them that are reliable evidence and they can be contacted if anyone does not believe these letters.
What happened to the total amount of $38,000 operated by Sung Ju Sung, Hak Su Cho, Dae Hun Kang?
Even before I say this, I thought that the auditors, Hak Ju Park, Han Yong Lee would point this out. However, they have not done so. I would like to say more in the ope that they themselves make it clear.
First, as I published in the newspaper, the Secretary General, Sung Ju Sung spent $10,000 of the support fund received in cash and has not submitted a receipt regarding where and how the money was spent. The Korean community as well as I have to know where the money has spent.
Second, it was published that the total of $27,702 was spent for the 10% support of Olympic event tickets for Korean residents. The person who was in charge of the ticket purchase was Mr Hak Su Cho. He said that he put $5,000 of this money towards the Volleyball account which was used whenever he purchased the tickets.
Dae Il Kang, the System chief was told to give tickets to the organisation leaders and elders of the Korean community to ask Korean athletes to inform the Korean community. However, Mr Hak Su Cho and Dae Won Kang have not brought any receipts relating to $27,702 and I have not touched a single ticket.
In other words, this money has been paid to Mr Hak Su Cho by the Support committee’s cheque, however, as there is no receipt there is no way of knowing where the money has gone.
In fact, the problem of receipts and ticket distribution was expected to be sorted out by the auditors during the auditing process and I also thought they would do that. On the contrary, they were in the lead to denounce me in this unlawful temporary general meeting.
I urge them to reveal about how the $40,000 that was spent by them and the distribution of the tickets.
This paper: Then, do you think that the execution of the support fund has been carried out justifiably without any shame?
Chairman Cha: Of course, I am the head of a family with children. Even for the honour of my family, how could I embezzle public money?
I acknowledge that we spent excessive amounts of money for entertainment because we had to collect support funds at an early stage. But in dealing with Koreans, is it possible to do anything at first sight without getting to know each other? To some extent, it is the same with Australians. In order to do anything, it is important to get to know each other.
It is obvious there is no receipt for the fabricated amount of approximately $100,000.
The auditors said that there was much expenditure without receipts but that is not true. Everyone knows that it is not easy to collect receipts all the time. Often we forget to obtain receipts.
Moreover, at the time of meeting important guests who could be very helpful, we often forget to obtain receipts because we get so involved in entertaining them. I am just giving this as an example…
Mr Min Gu Cho, the former Korean Society Chairman also said once that it was no big deal if one did not have some receipts.
However, because two auditors published the fabrication that the support fund was $450,000 or rather $500,000 it is obvious that there cannot be any receipts for the approximate $100,000 or $200,000 being the difference from the actual collected funds of approx. $300,000 to the Olympic Committee.
The auditors, Hak Ju Park and Han Yong Lee claim that the collection for the support fund was $500,000 and $127,000 out of this had no receipts. They ask me to make up for it. The $127,000 was either fabricated by the auditors that I embezzled this money. Otherwise it had no basis or it could be a double calculation. Therefore, how could I possibly have the receipts?
In fact, I donated approximately $23,000 to the Support Committee. I was, of course, the chairman of the Support Committee but this big amount could not be compared with any donations from a Korean resident although I do not wish to show off.
Now, as a result of calculation, I rather have to receive approximately $20,000 from the Support committee. But they ask me to return approximate $40,000 to the Korean Society and accuse me of being a swindler who has embezzled public money. It is so unfair that I am accused of being a swindler after sacrificing the last 2 years or so of my life for the Support Committee, leaving aside my own business.
My family cannot even sleep because they feel mortified.
5(a) That the cross-claimants lied in the course of their conduct of an audit into the Committee.
Text of the publication:
March 2001 The Korea-Oceania Business Review
News
Confusion instigated by elastic audit
Irresponsible auditors, Hak Ju Park, Han Yong Lee of the Olympic Support Committee
For the matter involving the collection of funds by the Aus-Kor Support Committee for 2000 Sydney Olympic Games, Hoju Dongah (publisher, Jik Il Oh), Hankuk Newspaper (publisher, Yoon Sin Lee) and Top Newspaper (publisher, Jae Kyung Lee) have continuously published articles for the last 3 months as if there are big secrets behind them. Leaving aside what exactly happened, the honour of chairman Jae Sang Cha as well as his family and the Korean community of Australia have been constantly defamed.
In the most extreme cases, this paper has heard that the Sydney Korean residents who visit Korea are ashamed to say that they came from Australia and often hide their identities.
The reason is that the Sydney Korean community is known to people in Korea for occupying the Korean society building by force and rejecting police orders, and the chairman of the Korean Society paying members fees by proxy without shame.
Whenever there was an election for the chairman of the Sports Council or Korean Society, someone’s nose or ribs were broken. Despite this, they walk the street without shame. It is well known for being an insensible society which cannot be found anywhere in the world.
For example, people talk… “In Sydney, although a person becomes a chairman by proxy-paying members’ fees, a Consul General comes to the inauguration ceremony and offers congratulatory words without any condition. Although a person took away the Miss Korea beauty contest which has been raised by someone else who invested everything over the past 10 years, he lives without feeling any shame.”
If one wants to solve these kinds of unfair matters by law, one faces the problems of English and the enormous costs for lawyers. Therefore, the Sydney Korean society has become really unfair for the victims.
This paper has already reported that the collection amount for the Olympic Support committee published in January, the February issue of Hoju Dongah, Hankuk Newspaper and Top by the auditors Hak Ju Park and Han Yong Lee, was false. This is possible only in the Sydney Korean community where sham, plagiarising newspapers and people like rag pickers run about wildly.
However, although the Korea-Oceania Business Review reports the true state of things, these plagiarising newspapers have constantly reported as if there was a big secret in the support fund. Again the following letter was sent to the auditors Hak Ju Park and Han Yong Lee on 11th March asking them to reply by 15th March 2001.
To: Auditors, Hak Ju Park and Han Yong Lee of the Sydney Olympic Support Committee
1. After seeing the article in Hoju Dongah on 22nd December last year that the income amount of the support fund of the Sydney Olympic Support Committee (chairman, Jae Sang Cha, hereafter called ‘Support Committee’) amounted to $450,000, this paper has pointed out that there was $100,000 approx. difference with $350,000 approx. that was reported by Chairman Cha in November last year. Also on 16th January, this paper sent you, Hak Ju Park and Han Yong Lee a fax to ask you to inform us of the contents of the difference.
On 8th December, before this paper reported the matter involving the Support Committee, the editorial of Hoju Dongah published the support fund amount being $400,000.
2. In relation to the enquiring fax by this paper, the auditor Hak Ju Park phoned this paper on 17th January and said that he never gave any information regarding $450,000 to the publisher, Jik Il Oh of Hoju Dongah.
3. Thereafter, on 17th January, this paper sent a fax to the publisher, Jil Il Oh of Hoju Dongah, asking him to report the basis of $450,000 to the Korean Society. But there was no reply until the present time.
4. However, on 9th February, the auditors, Hak Ju Park and Han Yong Lee again reported in Hoju Dongah, Hankuk Newspaper and Top that the collection of the support fund was approx. $500,000.
5. They again published that it was approx. $310,000, a reduced amount which appeared to be the same as what Chairman Cha reported on 2nd March.
6. The auditors, Hak Ju Park and Han Yong Lee said they always did their auditing based on the document they received from the operation section of Chairman Cha. An explanation is then required for the Korean community as to why the support fund has such a big difference every time there is a report, like how it was reduced from $500,000 approx. to $300,000 approx. even with the same materials.
7. On 9th March, all of sudden you published in Hoju Dongah, Hankuk Newspaper and Top, “Although the result of the audit of the Support committee has to be reported by the General Meeting, because the operation section refused to convene the General Meeting we had to report directly to the community.”
Doesn’t this mean that you have realised your advertisements regarding the suspicions of the support fund several times were illegal and accept this by yourself?
According to the Constitution, “Article 7 Member’s Responsibility”, it clearly states that, “The auditors shall audit the accounts and business affairs of the committee and report to the General Meeting.”
Don’t you think that your actions of advertising the committee’s notched audit result relating to the collection amount of the committee are in breach of the Constitution?
8. Reply to the above questions in requested by 15th March 2001. If there is no reply, it will be regarded that you have abused the power of an auditor of the Support Committee and are selling the operation section of the committee as well as Chairman Cha and the Korean community in Australia to the whole world as well as to Korea as fraudulent organisations that have embezzled public money.
The auditors, Hak Ju Park and Han Yong Lee have not answered to the above questions until the last moment of editing of this paper.
7(a) That the cross-claimants in breach of their duty caused to be published false details of their audit of the Committee.
7(c) That the cross-claimants abused their position as auditors of the Committee by portraying its Chairman as fraudulent.
Text of the publication:
July 2001 (The Korea Oceania Business Review) page 19
Olympic Support Committee incident interspersed as a witch hunt (6)
This paper: On 7th June, in the article, “To the Korean Residents” advertised by the Counter Measure Committee in regards to the incident of the Aus-Kor Support Committee for the Olympic Games, Chairman Cha expressed that a re-audit by a public accountant be carried out as he insisted from December. After that, has there been any progress in the past month?
Chairman Cha: Nothing has progressed. As they cajoled the Korean residents with false figures that the Olympic Support Committee’s collection was $450,000 or $500,000, the last advertisement saying that they would leave the audit to a public accountant was also a mere cajolement of the Korean residents.
Why would chairman, Jong Gap Kim and secretary, Yong Jae Lee have said in the phone interview with the Korea-Oceania Business Review that they did not know who placed the advertisement!
As far as the incident involving the Support Committee, Hoju Donga, Hankuk Newspaper, Top Newspaper who have reported the lies by the auditor Hak Ju Park and others, have continuously cajoled the Korean community in Australia. The relevant newspapers are also responsible for their advertisements.
This paper: Then, how are you going to solve this matter involving the Olympic Support Committee?
Chairman Cha: As I mentioned in the last interview, my solicitor has written letters to the relevant parties asking for an apology and went to obtain the cheque books and deposit books but they only handed in the falsely made materials.
I have already spent approximately $200,000 on the matter without any result. I have waited with all my patience but I cannot endure any longer as they are doing things like placing false advertisements.
Therefore, all the articles which have falsely reported the matter involving the Support Committee have been collected and are being translated according to my barrister’s instruction.
Because there are so many articles plotting against me without any reliable evidence that I have embezzled the public fund saying the Support Committee’s fund was $450,000 or $500,000, it will take about 2-3 weeks to translate them.
This paper: I understand that many people wonder whether you, Chairman Cha will really take a defamation action against Hoju Dongah, Hankuk Newspaper and Top since it has been awhile after the Olympic Games.
Chairman Cha:
I also have hard that a lot. In particular, some leaders of the
Sports Council urge me to pursue this soon. Haven’t I suggested for audit by the public accountant appointed by Hak Ju Park and Han Yong Lee from the last December or January because I did not want to go ahead with the legal action for the sake of the unity of the Korean community in the meantime?
But I cannot wait any longer or trust them.
.
Schedule D – Fourth matter complained of in the Cross-Claim
Text of the publication:
June 2002 The Korea-Oceania Business Review, page 15
Honourable Korean residents of Australia!
I have been feeling very sorry for troubling the Korean community due to the fabrication by the auditors of the Aus-Kor Support Committee for Olympic Games, which is still unresolved even after almost 2 years from the 2000 Sydney Olympic Games.
The auditors, Hak Ju Park and Han Yong Lee have calculated the Support Committee’s income as approximately $500,000 and expenditure as $350,000 approx. Accordingly, they published that I took $150,000 approx. and other Korean community newspapers have continuously published this. The auditors, Hak Ju Park and Han Yong Lee published the items of entertainment for the Korean Government Officials. This caused some concern among the Korean community in Australia as well as the relevant authority. In particular, I published the entertainment for the Government officials as other costs bearing in mind the characteristics of such an organisation.
However, some Korean residents said they were aware of the Government officials after the Kim Dae-jung Government did not want to cause a public nuisance by being entertained, therefore, it could be that Chairman Cha embezzled the public money while giving the excuse of entertainment for Korean Government officials. This news has started to spread in the Korean community.
At the time, the Consul, Kwang Yong Park who was the residing consul in the Sydney Consulate advised us that it would be helpful to obtain Olympic entry tickets for the cheer squad if we entertained the Government officials from Seoul who were in Sydney for the preparation of the Sydney 2000 Olympic Games. After discussions with Nak Yoon Paek, Byung Doo Choi (two vice chairmen), Hak Su Cho the planning chief, and Dae Won Kang the organisation chief, I entertained the Korean Government officials with the Support Committee’s executives present at a restaurant in Epping at the Support Committee’s expense.
Therefore, in order to clear the false accusation that I embezzled the meal money, I sent a letter to the Consul General, Young Hyun Lee in January and the Chief of the Government office, Kun Shin on 12th February asking them to confirm whether the despatch officer from the Korean Government at the Sydney Consulate, Mr Kwang Yong Park had paid the meal money or whether the Support Committee had paid.
I have been waiting patiently for the publisher of Top Newspaper, Jae Kyung Lee and other Korean community papers that have published the fabricated auditing incidents of the support fund for the Aus-Kor Support Committee for 2000 Sydney Olympic and the auditors, Hak Ju Park, Han Yong Lee and other related people to ask for my forgiveness after their repentance.
However, Kun Shin the chief of Government office, Young Hyun Lee the Consul General and the auditors Hak Ju Park, Han Yong Lee have not said anything to this day, and the Korean Press Association (Chairman Jik Il Oh, Secretary General Yang Jung Joo) and their companies who have struck off my honour and human rights by supporting and publishing the fabricated story of the support fund by the auditors Hak Ju Park and Han Yong Lee without showing any repentance.
Also, on 21st June, Mr Jong Sang Ha, the self-claimed chairman of the Korean Sports Council in Australia invited the Consul General, Young Hyun Lee to a function centre in Lakemba inaugurating Mr Jin Min Chang as chairman and again caused a lot of confusion in the Korean community with the matter involving the Korean Sports Council. In other words, the current Korean community in Australia is no different from the 1980s Korean culture when Chun Doo-hwan unlawfully overthrew the government calling it Samchung Training Army while brandishing swords and spears and living in splendour of wealth.
I could no longer just watch the Korean community in Australia become a lawless world. In order to restore the Korean community in Sydney to one where people abide by laws, and respect and cooperate with each other. For the honour of my family and relatives I have taken a legal action against the Top Newspaper, its publisher, Jae Kyung Lee, other papers who are members of the Korean Press Association and the two auditors although it went against my heart to do so.
From Jae Sang Cha
July 2002
11(a) The cross-claimants fabricated the findings of their audit of the Committee.
I certify the above 1855 paragraphs and 10 orders
to be a true copy of her Honour Judge J C Gibson’s
reasons for decision dated 8 December 2009
……………………………………………………….
Associate to her Honour Judge J C Gibson
102
13