Cha v Oh (No. 22) (Part 2) - [2009] NSWDC 300

No judgment structure available for this case.

CITATION: Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300

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 2009

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence.
(2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below.
(3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums:
(a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000;
(b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000;
(c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000;
(d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000;
(e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000;
(f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000;
(g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000;
(h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000;
(i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000;
(j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000;
(k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, making a total of $10,000.
(4) At the request of the plaintiff, 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 - 21 judgments on interlocutory, s 7A jury trial and hearing on liability and quantum - rulings on form and capacity of imputations (judgments 1 and 2) - form of section 7A trial (judgments 3 and 4), application by second defendant at jury trial to withdraw admission of publication of matters complained of (judgment 5) - application for s 7A jury to hear addresses on all 14 publications at once (judgment 6) - application to discharge jury following address by counsel for third defendant and concerning the costs thrown away by reason of the jury being discharged (judgments 7 and 8) - application to disqualify judge (judgments 9 and 13) - application to strike out particulars of the defence and for further and better particulars (10 and 11) - application to abort hearing following open offer being made in court (judgment 12) - application to amend defence by fourth defendant (judgment 14) - application concerning settlement of third defendant (judgment 15) - applications by plaintiff for adjournments (judgments 16 and 19) - application to sever cross-claim (judgment 17) - application by fourth defendant for further cross-examination of the plaintiff by counsel (judgment 18) - application for warrant for witness who refused to comply with subpoena (judgment 20) - application by solicitors for plaintiff for leave to withddraw from proceedings (judgment 21)

PARTIES: 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 Kim

FILE 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

Annexure A Judgments before and during the s 7A jury trial

Annexure B Judgments during the hearing

Annexure C Constitution of the “Kor-Aus Supporting Committee for Sydney 2000 Olympic Games” (Exhibit 1) and Minutes of Monthly & Special Meetings from November 1999 (Exhibit 51)

Annexure A – Judgments before and during the s 7A jury trial

Cha v Oh (No. 1) (District Court of NSW, Gibson DCJ, 18 February 2003, unreported)

Judgment on imputations

1. The plaintiff has commenced proceedings against seven defendants for a series of articles which were published over the period 22 December 2000 to 4 May 2001. The plaintiff was the President of the Year 2000 Sydney Olympic Australian-Korean Supporting Committee from its inception until 25 March 2001, when he resigned. The matters complained of are newspaper published auditors’ reports which draw attention to a series of asserted deficiencies in the plaintiff’s management of the Committee in general and his keeping of accounts in particular.

2. Three sets of written objections to the plaintiff’s imputations were provided and these have now been answered in writing by the plaintiff. These submissions are all in writing. Some minor amendments have been conceded by the plaintiff to be necessary but as a general rule I have been left to determine the issue in relation to each of the parties’ written submissions. The first and sixth defendants took no part in the application.

3. Very late submissions in reply were received from the third defendant on 13/2/2003. I dealt with these objections by inviting counsel for the plaintiff to answer these orally.

4. Some of the publications sued upon have not been the subject of any submission and I have provided for this in the event that the remaining defendants wish to challenge the remaining imputations by making appropriate orders in my judgment.

5. I now turn to each of these publications and consider each imputation under challenge. I should note at the commencement that there are serious problems with a number of the translations and I have made orders for the re-translation of two of these schedules because in my view they are not in comprehensible English. I am aware the parties resolved the issues by mediation but that does not mean the Court should place its imprimatur on incomprehensible documents.

SCHEDULE B – Imputations in paragraph 36 of the Statement of Claim

6. The imputations under challenge are as follows:

7. Imputation 36(d) is as follows:

“36(d) 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;”

8. In the plaintiff’s latest submissions it is noted that 36(d) is in the alternative to 36(c). Imputation 36(d) is alleged to arise from line 28.

“36(f) That the Plaintiff managed the affairs of the Committee so incompetently that $175,000 of the Committee’s money was spent on purposes other than the purposes for which the Committee’s money ought to have been spent;”

9. This imputation is alleged to arise from lines 29 to 30.

“36(h) That the Plaintiff managed the affairs of the Committee so incompetently that $50,000 of the Committee’s money was spent on interest payments and servicing for private loans when that money ought not to have been used for that purpose.”

10. This imputation is alleged to arise from line 31.

11. I will deal with each of imputations 36(b), (d), (f) and (h) as follows.

12. Objection is taken to imputation 36(b) on the basis of being incapable of being defamatory and to issues of form and capacity in relation to the others. The issue of form relate to the use of the words “incompetently” and “misconduct”.

13. As it presently stands, imputation 36(b) does not encapsulate an act capable of giving rise to a defamatory sting. Further, the matter complained of does not in fact say that the plaintiff actually failed to deposit the money, but that the money had been confirmed as having been deposited into the Supporting Committee’s bank account.

14. The picture painted by the matter complained of is one of accounts in a muddle and “mistakes” (line 56) being conceded by the plaintiff, who suggests that his own and business accounts be audited “to clear the situation” (lines 57-8). The problems are said to have arisen because no trained bookkeeper was retained and three different (unqualified) people were keeping the books, one of whom was the plaintiff. Indeed, he appears to have kept the records for most of the relevant period.

15. Imputations 36(d), (f) and (h), therefore, do arise. The whole publication paints a picture of incompetent record-keeping, as the extracts quoted above make clear.

16. As to complaints of form, I do not understand the objection to form of section 36(h) as the word “misconduct” (to which objection is taken) does not appear in this objection. (I note it appears in 37(h) and deal with this objection there). This imputation is again capable of arising as a separate act of incompetence for which the plaintiff (according to the context of the matter complained of) is principally to blame by reason of his incompetence in managing the committee’s affair and his inadequate bookkeeping. I do not regard the word “incompetently” as being capable of being ambiguous; its meaning is obvious, particularly in the context of this publication.

SCHEDULE D – Imputations in paragraph 38

17. The imputations under challenge are as follows:

“38(a) That the Plaintiff failed to disclose a large sum of money as having been donated to the Committee;”

18. This imputation is allege to arise from lines 2 to 17 and 41 to 46. Objection is taken on the basis that it is incapable of being defamatory.

“38(c) That the Plaintiff managed the affairs of the Committee so incompetently that $120,000 of the Committee’s money was spent on things on which it should not have been spent.”

19. Objection is taken to this imputation on the basis that it cannot arise.

20. In my view the vice in imputation 38(a) is that it fails to indicate to whom the disclosure should have been made and why. I suspect the pleader really means that these sums were not properly recorded as opposed to not being “disclosed”. I strike out imputation 38(a) with leave to replead. However, imputation 38(c) is conveyed because this article, like the previous publication, is a catalogue of the numerous inadequacies in the Committee’s books and an imputation of incompetent management by the plaintiff is therefore conveyed.

SCHEDULE E – Imputations in paragraph 39

21. The imputations under challenge are as follows:

“39(a) That the Plaintiff failed to account for approximately $56,000 of money donated to the Committee; or alternatively”

22. This imputation is alleged to arise from lines 3 and 11-15.

“39(b) That the Plaintiff so conducted himself as to give reasonable grounds to warrant the suspicion by members of the Korean community in Australia that he had failed to account for approximately $56,000 of money donated to the Committee;”

23. This imputation (which is an alternative to 39(a)) is also alleged to arise from lines 3 and 11-15.

“39(d) That the Plaintiff spent some of the Committee’s money for purposes of his own which he knew were not purposes for which the Committee’s money ought to have been spent;”

24. This imputation is alleged to arise from lines 75 to 78.

“39(e) That there are reasonable grounds for members of the Korean community in Australia to suspect that the Plaintiff spent some of the Committee’s money for purposes of his own which he knew were not purposes for which the Committee’s money ought to have been spent;”

25. This imputation is also alleged to arise from lines 75 to 78.

“39(f) That the Plaintiff’s conduct was a cause for shame for the Korean community in Australia.”

26. This imputation is alleged to arise from lines 70 to 76.

27. Objection is taken on the basis of capacity (apart from 39(a), which it is alleged is incapable of being defamatory).

28. Failure to account for funds is conduct clearly capable of being defamatory. I was troubled by the use of the words “failure to account”, which, like breach of trust, (Singleton and Anor v Ffrench (1986) 5 NSWLR 425) has a special legal meaning; in Singleton this ambiguity resulted in an order for a fresh trial. No objection was taken on this point by the defendants. However, as this will be a non-jury trial the ambiguity can be resolved by having regard to the particulars provided for any defence of qualified privilege or justification.

29. The objection to “members of the Korean community” in imputation 39(b) and (e) are well-founded in that the persons who held these suspicions were the auditors and the 27 persons attending the meeting. I note the plaintiff in written submissions says this reference was inserted to accommodate my interpretation of Sergi v ABC [1983] 2 NSWLR 669 concerning the need to refer to the holder of the suspicion. This is a good example of why the holder of the suspicion must be identified with some precision. These imputations are struck out with leave to replead.

30. The objection to imputation 39(d) is similarly well-founded. The position of the matter complained of alleged to give rise to this imputation consists of Mr Ha saying he felt “shameful” and asking the plaintiff “how much money was it have to come out like black and white” [sic]. I despair when confronted with translations of this poor calibre and trust that these grammatical lapses will be corrected when the next Statement of Claim is filed with amended translations as per my orders.

31. There is a suggestion of intermingling of the plaintiff’s and the committee’s funds at lines 26-9 but this passage is equally ungrammatical and unclear. I note this assertion of intermingling is already contained in imputation 39(e).

32. I strike out imputation 39(d) and order the plaintiff to provide a fresh translation which is in proper grammatical English.

33. Imputation 39(f) is incapable of arising because the person who feels “shameful” [sic] is Mr Ha, not the Korean community. (Once again, the grammar of the translation is hopeless). Imputation 39(f) is struck out with leave to replead.

34. Leave to replead these imputations is conditional upon a proper grammatical translation being provided for this publication. The present publication is not simply ungrammatical but also, in a number of key passages referred to above, incomprehensible.

SCHEDULE F – Imputations pleaded in paragraph 40

35. A preliminary issue raised by Mr Breene on behalf of the third defendant is that no rulings should be made in relation to Schedule F because the whole of the matter complained of has not been included. In submissions delivered to me by email on 13 February 2003 Mr Breene complains that since the ordinary reasonable reader is taken to have read the whole of the matter complained of, the whole must be pleaded, regardless of whether the balance affects the imputations or not.

36. The law on this issue is helpfully summarised in Australian Defamation Law and Practice at [25,035] where the learned authors point out that the plaintiff’s obligation is to set out all words that are capable of materially altering the complexion of the matter complained of. However, a plaintiff is entitled to rely on part only of a publication if the plaintiff so wishes.

37. I do not understand Mr Breene to say that the balance of the article affects the meaning of any imputation (except 40(f)). I have not been provided with a copy of the disputed portion, so I cannot judge whether the balance affects the meaning or not.

38. Mr Breene’s application is, unfortunately, somewhat behind; this matter was raised days before the predetermined date on which I was to hand down my reserved judgment based on submissions provided to me in December (by the defendants) and January (by the plaintiff).

39. On balance, my view is that I should make findings concerning the imputations but grant the third defendant leave to bring a strike-in application. If that is successful, the third defendant will be entitled to a fresh capacity argument in relation to any affected imputations.

40. The imputations under challenge are as follows:

“40(a) That the Plaintiff managed the affairs of the Committee in a shameful way;”

41. This imputation is alleged to arise from lines 45 to 47 and 145 to 149. I note the plaintiff proposes to amend this imputation to “in a way that brought shame on the Korean community in Australia” and as this is conveyed by lines 46, 144 and 162 I will permit this amendment. I note the third defendant’s further objections to this amendment but I am of the view that, on a capacity test, the proposed new imputation is capable of being conveyed.

“40(b) That the Plaintiff failed to appoint persons that he was under a duty to appoint pursuant to the Committee’s Articles of Association;”

42. This imputation is alleged to arise from lines 47 to 50.

“40(c) That the Plaintiff behaved arrogantly in his management of the Committee;”

43. This imputation is alleged to arise from lines 31 to 34; 52 to 54; 59 to 60 and 161 to 165.

“40(d) That the Plaintiff impeded the proper working of the Committee through his arrogant and self-indulgent behaviour;”

44. This imputation is alleged to arise form lines 31 to 34; 50 to 62; and 161 to 172.

“40(e) That the Plaintiff failed in his duty to ensure proper records were kept by the Committee’s financial affairs;”

45. This imputation is alleged to arise from lines 51 to 52 and 180 to 184.

“40(f) That the Plaintiff misappropriated $2,400 of the Committee’s money;”

46. This imputation is alleged to arise from lines 82 to 88.

“40(g) That the Plaintiff spent the Committee’s money on purposes that he knew were purposes on which the Committee’s money ought not to have been spent;”

47. This imputation is alleged to arise from lines 88 to 93; 100 to 103 and 108 to 118.

“40(h) That the Plaintiff misused his position as President of the Committee to gain a directorship for himself;”

48. This imputation is alleged to arise from lines 96 to 98.

“40(i) That the Plaintiff wasted the Committee’s money by borrowing money on the Committee’s behalf at very high rates of interest;”

49. This imputation is alleged to arise from lines 126 to 131.

“40(j) That the Plaintiff’s management of the Committee’s affairs brought disgrace on the Korean community;”

50. This imputation is alleged to arise from lines 146 to 149.

“40(k) That the Plaintiff’s arrogant and self-righteous behaviour caused distress to the Committee’s staff.”

51. This imputation is alleged to arise from lines 161 to 163.

52. Objections is taken by Mr Breene to imputations 40(a) on the basis that the matter complained of refers to the plaintiff’s performance of his role as president, not to his management of the Committee’s affairs.

53. The words “managed” (lines 37, 39 (twice), 53, 191) and “performance” (line 29) both appear in the matter complained of. “Shameful” similarly occurs a lines 46 and 162 and there is a reference to “disgrace on our community and ruining our dignity” at 144.

54. Despite the grammatical inadequacies of the translation, the constant references to the plaintiff’s overall management (and not merely his performance of his duties) of the Committee’s affairs clearly emerge. I reject this objection. Imputation 40(a) (as amended by the plaintiff) is capable of arising and I formally note it is capable of being defamatory. I note I have rejected Mr Breene’s objections to the revised imputation.

55. Objection is taken to imputation 40(b) on the basis that “under a duty to” is ambiguous. Mr Breene asks whether this is a legal or moral duty. However, the imputation clearly says the duty was “pursuant to the Committee’s Articles of Association” and in my view this defines the duty perfectly clearly. The comments of the Court of Appeal in Cinevest Pty Ltd v Yirandi (2001) Aust Torts Rep 81-610 need to be read in the context of the imputation under dispute in that case; each case turns on its facts and on the material before me. I am satisfied the duty is sufficiently defined both by the matter complained of and by the imputation. Indeed, so specific is the matter complained of (and this the imputation) it is hard to conceive of any other duty and the alleged ambiguity or uncertainty is hard to imagine.

56. The objection to “arrogant” in imputation 40(c) is conceded by the plaintiff because the matter complained of says “self-righteous”. I grant leave to replead imputation 40(c). I am puzzled by the plaintiff’s offer to “withdraw” this imputation (in the latest submissions) which appears to have been made on the basis that an act (“this plaintiff stole $10”) and a condition (“the plaintiff is a thief”) cannot both be pleaded. This is incorrect. It is a matter for the plaintiff as to whether or not the leave to replead I have granted is exercised.

57. Objection is taken to imputation 40(d) on the basis that it does not differ in substance from 40(c). I take the view that imputation 40(c), if repleaded as a condition (“the plaintiff is self-righteous”) is capable of differing in substance from the pleading of an act, namely his self-righteous behaviour impeded the Committee’s performance of its duties. However, on the subject of form, the word “proper” (in imputation 40(d)) always causes problems and should be avoided. I reject Mr Breene’s suggestion that there is nothing to suggest the committee was not working properly or that the plaintiff’s attitude did not affect its efficiency; this assertion is clear. Imputation 40(d) is struck out with leave to replead. I note Mr Breene’s objection to the words “through” and “impeded” as being ambiguous; it is my view that these are perfectly clear words in the English language and I reject this objection to form.

58. Objection is taken to imputation 40(e) on the basis that the plaintiff’s “duty” must be specified clearly and that there is nothing in the matter complained of giving rise to the imputation. This imputation would be unobjectionable if the words “in his duty” were excised as the publication clearly asserts the plaintiff failed to ensure proper records were kept, and in my view this is what the plaintiff should do to avoid complaints of ambiguity. In my view the imputation is capable of being conveyed by the specified portion of the matter complained of and I reject the capacity objection.

59. I strike out imputation 40(e) with leave to replead.

60. Objection is taken to imputation 40(f) on the basis that there is no express allegation of misappropriation of $2,400. The matter complained of states that if what Mr Kim (a director) says is true, the plaintiff has misappropriated this sum. However, the context of the matter complained of makes it clear that there is little room for doubt on this subject and this imputation is thus conveyed. If there is further material which has not been included in the matter complained of which negated this, it would be a valid ground for objection but as Mr Breene has not provided me with the additional material I can do no more than grant leave to bring a strike-in and reconsider the issue then.

61. Mr Breene submits that imputation 40(g) is not conveyed because there is nothing to support the contention the plaintiff “knew” he should not have spent the committee’s moneys in the way he did.

62. The matter complained of clearly sets out that the plaintiff knew he should not have spent money on entertaining persons who had nothing to do with the Olympics or on gifts to persons with no connection to the Olympics.

63. The imputation as pleaded is garbled and the pleader appears to be taking refuge in generalities when the simple way to plead such an imputation is to adhere to the text as closely as possible. An imputation that the plaintiff misused committee funds on entertainment and gifts to persons who had nothing to do with the Olympics would be preferable to the garbled imputation pleaded here. (If the plaintiff is trying to avoid a plea of truth, any such imputation can of course be pleaded contextually by the defendants). However, while the pleading is poor in form, the imputation is still capable of being conveyed (on a capacity basis) and will be permitted to remain.

64. As to imputation 40(h) the matter complained of says that the supporting committee gave gifts totalling $13,822.50 to SK Securities and that the plaintiff paid $8,211 for entertaining the company’s representatives. This money came from committee funds even though SK Securities had nothing to do with the Olympics. The matter complained of adds that ‘as a result of all these activities, Mr Cha was appointed as an Hon Director of SK Securities” (97-98).

65. Mr Breene submits that the mere giving of gifts does not amount to “misuse of position” but if gifts are given to a person who is not entitled to them, because the funds for these gifts have been donated for another purpose, that is clearly misuse of one’s position.

66. I reject the assertion that “misuse of position” has a range of meanings and is bad in form. I note no authority is cited for this proposition. The context of the matter complained of makes it clear that the plaintiff received an appointment with a company as a result of substantial gifts and payments for entertainment which should not have been paid for by committee funds. This imputation is clearly conveyed and the language of the imputation is unambiguous.

67. Objection is taken to the word “wasted” in imputation 40(i) because “this word lacks the requisite degree of specificity” (according to Mr Breene) and because the imputation is not capable of being conveyed.

68. The matter complained of refers to the repayment of a private loan by the plaintiff in circumstances where there was no proof as to who the loan was from or what the terms of the loan were.

69. All the auditors could find was a reference to $15,800 as a private loan from Mr Paik and $10,000 from a Mr Kim. The defendant publisher comments:

“When we look at this, it is hard to tell whether Mr Paik and Joon Kim ran a usury business to the committee [sic].”

70. Once again the plaintiff appears to be taking refuge behind obscurities rather than pleading the imputation clearly arising. However, the imputation as framed by the plaintiff is still capable of arising. I am not troubled by any alleged ambiguity in “wasted”; it means what it says.

71. Objection is taken to imputation 40(j) on the basis of lack of specificity and on the basis that it does not differ in substance from 40(i). However, a plaintiff is permitted to plead a Maisel-style broad imputation and I consider this imputation is conveyed, particularly having regard to the broad changes (as well as specific claims) levelled against the plaintiff. The real difficulty is the high degree of similarity between 40(a) and 40(j). I accordingly grant leave to the plaintiff to replead 40(j) as well as 40(a) so that he can differentiate (if possible) how there can be two actions (one of which clearly encompasses the other) bring shame on the Korean community.

72. An objection is made to imputation 40(k) on the basis that it is not capable of being defamatory and is bad in form by reason of use of the word “caused”.

73. Causing distress to staff is clearly conduct which would cause ordinary right-thinking members of the community to think less of a person.

74. I am troubled by the objection to the word “caused”. Again, each imputation must be read against the facts of each case. Here there is a clear cause and effect (arrogant conduct causing distress) whereas in Marsden v Amalgamated Television Services Pty Ltd (1996) 41 NSWLR at 163 the nexus was not clearly defined. I do not see Marsden as being authority for the word “caused” never being able to be used and I reject this late objection by the third defendant.

SCHEDULE G – Imputations in paragraph 41

75. The imputations under challenge are as follows:

41(a) That the Plaintiff falsely maintained that a personal trip was a business trip for the Committee and thereby stole $9,121.40 of the Committee’s money; or alternatively“”

76. This imputation is alleged to arise from lines 17 to 26.

“41(b) That there were reasonable grounds to suspect the Plaintiff of making a false claim for business expenses of $9,121.40;”

77. This imputation is also alleged to arise from lines 17 to 26.

“41(c) That the Plaintiff wasted large amounts of the Committee’s money;”

78. This imputation is alleged to arise from lines 27 to 34.

“41(d) That the Plaintiff misappropriated to his own use money belonging to the Committee;”

79. This imputation is alleged to arise from lines 17 to 37.

“41(e) That the Plaintiff kept for himself 100 wristwatches that had been donated to the Committee;”

80. This imputation is alleged to arise from lines 38 to 44.

“41(f) That the Plaintiff misused his position to favour an associate as a supplier of gifts to the Committee;”

81. This imputation is alleged to arise from lines 45 to 49.

82. I have set out imputations 41(a) and (b) because they are pleaded in the alternative. The objection is that imputation 41(b) fails to specify who held the reasonable grounds for suspicion. I note the submissions of the plaintiff concerning Sergi v ABC [1983] 2 NSWLR 669 but I am of the view that the imputation must reflect with precision the source of the suspicion, which as I note from the matter complained of is the auditors. Indeed, the matter complained of says:

We, as auditors

The auditors

they

Therefore we believe

83. Imputation 41(b) is struck out with leave to replead to identify correctly the party holding the suspicion.

84. Objection is again taken by the third defendant to the use of the word “wasted” in imputation 41(c). I reject this objection for the same reason that I rejected other complains about “wasted”. Objection is also taken to the reference to “large amounts of the Committee’s money” as leading to embarrassing imprecision.

85. The plaintiff in answering these submissions rather confusingly notes that “subject to the Court’s direction, the plaintiff proposes to withdraw this imputation”.

86. If there is one thing that this articles says, it is that the plaintiff wasted large amounts of the Committee’s money. I see no reason why the plaintiff cannot have a general imputation about wasting large amounts of the Committee’s money as opposed to the specific examples of specific sums identified by the auditors in the publication. If the plaintiff chooses for tactical reasons not to plead this imputation that is a matter for the plaintiff, but in my view the imputation is conveyed and defamatory. The plaintiff of course may withdraw it at any time, although the risk remains that any such imputation could be picked up as a contextual imputation by the defendants.

87. The objection to imputation 41(d) is of a different kind, in that it is alleged that not only is it not conveyed, but it does not differ in substance from imputation 41(a). The matter complained of refers in line 17 to “President Cha’s business trip expenses – improper use or misappropriation”; however, whereas imputation 41(a) is limited to the material relating to the specific claim for business trip expenses, imputation 41(d) refers to the second allegation of misappropriation in lines 36 to 37 concerning entertainment and the enormous personal expense account and gifts which moneys it is said should be paid back because “public fund [sic] has been misused or misappropriated”. Thus, there is more than one allegation of misappropriation and this imputation is conveyed in addition to imputation 41(a) which refers to a specific act of $9,121.40 being falsely claimed as a business trip when it was a personal trip. In fact the other sums are considerably bigger and total another $95,953.86. Imputation 41(d) is thus conveyed by these portions of the matter complained of, differs in substance, and is defamatory.

88. Imputation 41(e) refers to “a hundred watches donated by LG Electronic” and asks the question “Whose wrists are they on now?”. We are told that these watches were taken to the plaintiff’s residence and the auditors ask “Please explain where they are”. An imputation that the plaintiff has kept for himself these 100 wrist watches is thus conveyed and defamatory.

89. Objection is taken to imputation 41(f) on the basis that the “position” is not identified. It would be of assistance if the plaintiff were to identify the position in question and to say whether it was his position as President of the Committee or as a member of the Committee. In practical terms this is a minor quibble, but in view of the lengthy and rather garbled contents of the matters complained of, it is a complaint to which I will give some sympathy. Imputation 41(f) is thus struck out with leave to replead so that the “position” is identified.

SCHEDULE H – Imputations in paragraph 42

90. The imputations under challenge are as follows:

“42(a) That the Plaintiff stole money donated to the Committee;”

91. This imputation is alleged to arise from lines 17 to 42.

“42(b) That the Plaintiff made false entries in the Committee’s financial records in order to divert the Committee’s money to himself;”

92. This imputation is also alleged to arise from lines 17 to 42.

“42(c) That the Plaintiff stole 190 wristwatches that had been donated to the Committee;”

93. This imputation is alleged to arise from lines 43 to 47.

“42(d) That the Plaintiff falsely claimed that the Committee had provided support to certain organisations but the Plaintiff really kept the money for himself.”

94. This imputation is alleged to arise from lines 21 to 28 and 38 to 42.

95. I note a preliminary objection to a missing page (the Korean original) in the Statement of Claim. I assume the plaintiff will include this in the amended pleadings. I make no orders to do so.

96. Objection is taken to imputation 42(a) on the basis that it does not differ in substance from 42(b) and 42(d). The third defendant also submits that the imputation is defective in form and incapable of arising. The fourth, fifth and seventh defendants submit that this imputation does not arise.

97. Lines 17 to 42 consist of six headlined allegations of financial misconduct. These are unrecorded donations (line 17), forged book-keeping (line 21), false claiming for two Korean flags when only one was given (lines 29-30), a further double payment for the Korean national flag (line 34), a missing $700 for a Uniting Church fee (line 38), and the wrist watches (line 43). Each of these headings is followed by a summary.

98. Where a long series of allegations is made, in addition to each individual imputation, a plaintiff may plead a general assertion of the imputed conduct as well as the specific allegations. Once again, the difference between an act and a condition is important, the six specific acts are capable of giving rise to an imputation of a general condition. This imputation is capable of being conveyed in addition to the specific examples of dishonesty referred to under each of the six subheadings.

99. Objection is taken to imputation 42(b) on the basis that it does not arise but the reference to “forged book-keeping” in line 21, “forged book” in line 32, and “forged receipts” in line 37 clearly imputes such conduct. This imputation is conveyed and is clearly defamatory. I reject the late submission of the third defendant that (a) and (b) do not differ in substance.

100. Objection is taken by the third defendant to imputation 42(c) on the basis that all the defendants are doing is asking for information. It is worth setting out the matter complained of on this issue in full:

“6. Again, wrist watch [sic] it was wondered [sic] where abouts [sic] the 100 wrist watches donated by LG were last time [sic]. This time 90 SA wrist watches are missing. There are people who gave out watches, but no-one gets them. Please contact us if you saw these watches.”

101. The context of the matter complained of makes it clear that this is no mere enquiry; if anything the matter complained of is sarcastic, or at least it might be sarcastic if I could work out what the English means. Nevertheless, questions are well known as being capable of conveying imputations; the famous “Or is it?” imputation from Jones v Skelton (1963) SR (NSW) 644 is a well-known illustration. This imputation is conveyed and is defamatory.

102. Objection is taken to imputation 42(d) by the third defendant as being not capable of arising. The lines asserted to give rise to this imputation, according to the plaintiff, describe that he gave a sum to the Uniting Church which was less than he was in fact given to donate to them. In my view there are a number of defects with this imputation which do not appear to have been taken by anybody. The first is that if this imputation is a reference to the Uniting Church theft, it should be pleaded with more precision. The second is that the whole of the passage appearing between lines 38 to 42 in the matter complained of is completely incomprehensible. Consequently, I will strike out imputation 42(d) with leave to replead but once again it will be a condition of the leave to replead that the plaintiff provide a comprehensible translation for the whole of this matter complained of. It is to be hoped that any sarcasm arising in the passage on the wrist watches between lines 43 to 47 can also be better translated.

SCHEDULE I – Imputations in paragraph 43

103. The imputations under challenge are as follows:

“43(a) That the Plaintiff misappropriated public money; or alternatively”

104. This imputation is alleged to arise from lines 5 to 7 and 31 to 33.

“43(b) That there are reasonable grounds for members of the Korean community to suspect the Plaintiff of having misappropriated public money.”

105. This imputation is also alleged to arise from lines 5 to 7 and 31 to 33.

106. Objection is taken to the reference to “members of the Korean community”.

107. The objection here is whether or not the Korean community are the persons holding the suspicion. Having regard to the matter complained of it is clear that the persons who held the suspicion were the delegates at the meeting and the auditors. There is no reference in the matter complained of to the Korean community as a whole. Imputation 43(b) is thus struck out with leave to replead. The fact that there is a reference to such a suspicion the matter complained of (a newspaper) does not mean that the persons who hold the suspicion are the readers of the newspaper; what is being reported to these readers are the suspicion of the persons at the meeting.

OTHER ISSUES

The publications in Schedules A, J, K, L, M and N

108. There are other publications (see Schedules A, J, K, L, M and N) which have not been the subject of my ruling because there has been no formal objection made. I direct the second, third, fourth, fifth and seventh defendants to serve a copy of this judgment on the first and sixth defendants to notify them that any request for a ruling concerning imputations being conveyed and defamatory must be made within 28 days of the date of this judgment. Such objections must be made in writing and served on the plaintiff by that date. The plaintiff will then have 14 days to reply in writing and I will make any rulings sought.

Issues relevant to the plea of aggravated compensatory damages

109. I note the complaint by Mr Breene in oral submissions that the claim for aggravated damages has not been particularised and he is unclear as to what claim is made against the third defendant or indeed all defendants. There was also objection that there has been failure to comply with Harrigan v Jones [2000] NSWCA 814. As the parties have not provided me with detailed written submissions on this issue I shall do no more than invite the plaintiff to give careful consideration to the principles of law set down in Harrigan v Jones when providing the redrafted Statement of Claim to ensure that these issues are dealt with. I note Mr Breene in his submissions of 12 February has set out formally that paragraph 52(c) is not a proper particular and the plaintiff would be wise to heed this warning when repleading.

Costs

110. I note the submissions of Mr Breene that the plaintiff’s conduct in this application has been so unreasonable as to warrant a costs order in his favour. There are disputes about late service (or no service) of the latest version of the Statement of Claim, a strike-in application resolved by consent only at the last minute, and the third defendant’s pro-active stance in organising a mediation to resolve translation disputes (which, regrettably, I have overridden by my requests for two further translations).

111. I direct that the plaintiff should bear the costs of the fresh translation but otherwise I am of the view that the best order to make in the circumstances is for each party to pay his or their own costs of the whole application (including 14 November 2002). Given that the plaintiff enjoyed proportionately more success than the defendants, this “evens out” the rights and wrongs of the history of disputes. I should add that nothing in the plaintiff’s conduct to date warrants an order that the plaintiff should pay the costs by reason of any misconduct; the history is one of error and oversight, at best.

Cha v Oh (No. 2) (District Court of NSW, Gibson DCJ, unreported)

Judgment (Further application re imputations)

1. These proceedings arise from 18 publications (4 of which are a cross-claim) concerning the conduct of the plaintiff as the President of a charitable committee, which had the job of raising funds for the Korean Olympic teams when the Olympic Games were held in Australia.

2. On 18 February 2003 I handed down a judgment on objections to many of the imputations pleaded by the plaintiff. No further objection was taken to the amended pleading (which the parties agree, with the exception of one matter which is an oversight, correctly reflects the tenor of my judgment) until the first day of the hearing of these proceedings, when the third defendant submitted that I should formally rule on these imputations by reason of section 7A (1) Defamation Act 1974.

3. Section 7A(1) provides that where a jury is to hear the section 7A trial “the court and not the jury is to determine” capacity to convey. The question is what, if anything, this means.

4. The only decision on the issue is Jae Kyung Lee v Chung Yup Kim (Supreme Court of NSW, Badgery-Parker AJ, 22 June 2001) where his Honour notes that this provision is mandatory and goes on to wonder:

Sydney Refractive Surgery Centre Pty Ltd v Beaumont & Ors

5. Apart from Badgery-Parker AJ, no other judge has expressed such a view, although it was submitted that Nicholas J made such orders on a regular basis in the Supreme Court. However it would appear that there are no judgments as a result of any of these determinations, so it is hard to know what to make of these submissions.

6. The usual situation is that a defendant will challenge the plaintiff’s imputations, although applications on the day of the trial tend to receive short shrift for the reasons enunciated by Mahoney P in Crampton v Nugawela (1996) 41 NSWLR 176. However, Mr Wheelhouse for the third defendant asserts that judges have a special role to play in defamation pleadings of the kind not usually embarked upon by a court, namely to make a determination as to the capacity of the matter complained of to convey the imputation, irrespective of whether the imputation is challenged or not.

7. It can immediately be seen that, if correct, this interpretation of section 7A(1) will lead to problems. A defendant may wish for tactical reasons not to challenge an imputation that is strained or badly drafted. The plaintiff and defendant may be perfectly happy with the Statement of Claim as it is, and may resent judicial intrusion into the party’s pleadings. If the judge changes the imputations over the protests of the plaintiff or the defendant (or both) will the judge end up as the respondent to an application for leave to appeal or if not, why not? Is a plaintiff now entitled to tell the jury that they can be confident the imputations are conveyed because they were determined by the court and not merely drafted by the plaintiff and, if not, why not? Is the judge’s role restricted to settling the existing imputations or is it his/her role to advise the plaintiff of all the imputations that could be pleaded and if so, what happens to the defence of contextual truth? If a judge makes determination (independent of the parties’ submissions and perhaps even against their wishes) does that judge then have to recuse himself from any further hearing of the matter? Should the judge’s role as nursemaid to the plaintiff’s imputations include unwanted and unsought advice about problems of form and defamatory meaning in relation to imputations, which are not the subject of challenge? Who pays the costs of these determinations, particularly if no alterations have to be made to the imputations? These are only some of the problems that have occurred to me if such an interpretation is correct.

8. The history of section 7A since its enactment in 1995 is a sad one. Those who drafted it had never heard of contextual imputations and did not foresee that it would lead to long involved jury trials (the section 7A trial the subject of these proceedings is set down for 4 weeks) which can be completely severed from issues of liability and quantum, with the result that an unscrupulous litigant can force an opponent into multiple hearings and appeals and then, when the lack of merit in the action becomes clear, throw in the towel leaving the opponent to recover what costs it can. There has been appeal upon appeal from perverse verdicts, which appeals were initially allowed but which are now, apparently as a matter of policy, being refused, leading to conflicting decisions (e.g. Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46 and Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177). The courts have bent over backwards to make sense of the provisions concerning identification, including reading words into the section that the drafters left out (Cinevest Pty Ltd v Yirandi [2001] NSWCA 68 at paragraph 21 per Spigelman CJ) and concerning publication. There are doubts about whether it applies to republications and there is litigation currently in the Court of Appeal on this issue.

9. It is my view that the provisions of sections 7A(1) – (3) is a muddled attempt to codify the capacity arguments parties frequently have in defamatory proceedings where a defendant seeks to assert that a plaintiff’s imputations are pitched too high or are otherwise objectionable. It is probably only careless drafting which causes the legislation to assert that the court has an obligation to determine such issues in a universal sense.

10. Until I am assisted by clear authority from the Court of Appeal to the effect that I must now determine the capacity and defamatory meaning (see section 7A(3)) of each imputation ever pleaded, I propose to rule only on those imputations the subject of challenge, with one exception. Where a party seeks to challenge only some imputations on a restricted basis and then comes along at a later time to challenge them on another basis, or to challenge additional imputations, the pre-existing ruling should prevent such multiple applications. However, this can be done on the existing law because the provisions of section 159 District CourtAct 1973 and the “fresh step” rule mean that a party who keeps up his/her sleeve a defect in an opponent’s pleading does so at his/her peril.

11. If I am required to make a determination, I see no reason why I should give reasons in the absence of a request for reasons. As I see it, Mr Wheelhouse is asking for reasons for the five imputations he nominates. Consequently I am prepared to make the determination he seeks but I propose to make it for all imputations in the Second Amended Statement of Claim but give reasons only for the five referred to by Mr Wheelhouse. This will prevent any further applications of this kind by the other parties in these proceedings.

12. I now turn to a consideration of the imputations under challenge. I note that all of them were the subject of my judgment of 18 February 2003 and the assertion that I had missed two of them in my judgment is incorrect.

Imputation 40(c)

13. The third defendant submits that it is not defamatory to call someone “self-righteous”. In my view this is the quintessential jury question, for the reasons explained in my judgment of 18 February when dealing with the predecessor to this work.

Imputation 40(d)

14. As with 40(c), this was repleaded in accordance with my judgment of 18 February. The real objection seems to be that the plaintiff accidentally left in the words “and self-indulgent” which the plaintiff has now agreed to delete.

Imputation 40(e)

15. The third defendant submits that this is inadequately drafted and cannot be defamatory unless the basis for the charge is included in the imputation. The Court of Appeal in Nikolopoulos v Greek Herald [2002] NSWCA made it clear that defamatory meaning is obtained by reading the matter complained of and not the imputation in isolation, and in my view this technical argument cannot be made out.

16. Even if I have erred in this regard, the imputation should still go to the jury as it is reasonably capable of being regarded as defamatory.

Imputation 40(k)

17. At paragraphs 72-74 of my judgment I dealt with the objections to this imputation, which were form and defamatory meaning (see paragraphs 14.1 and 14.2 of the third defendant’s written submissions). The third defendant complains that the fourth, fifth and seventh defendants also objected to this imputation. It is not for the third defendant to be raising alleged deficiencies in a judgment on issues raised by another party, and to do so at such a late date. The fourth, fifth and seventh defendants initially made no complaint at all (see the undated submissions of Mr Weaver) but later appear to have joined with the third defendant and complained that this imputation was not defamatory, an assertion I rejected. However, in light of the objection to capacity being taken, I formally find that this imputation is reasonably capable of being conveyed by lines 161-3 of the matter complained of.

Imputation 41(a)

18. I dealt with this imputation (which was the larger imputation to which 41(b) was a fallback) at paragraph 82 of my judgment. This imputation clearly arises from lines 17-26 of the matter complained of.

Cha v Oh (No. 3) (District Court of NSW, Gibson DCJ, 18 July 2003, unreported)

Judgment on preliminary issues concerning form of s 7A hearing

1. The plaintiff brings proceedings against a total of seven defendants for fourteen publications between 22 December 2000 and 6 July 2001. The publications, which were all in the Korean language, raise allegations about the plaintiff’s honesty and competence as an accountant and auditor for the Korean Olympic Committee.

2. When these proceedings were first commenced, there were no statutory provisions for defamation actions to be exempt from the terms of section 76A District Court Act 1973: Moselmane v Jones (2003) Aust Def Rep [53,110]. However, on 17 February 2003 the Defamation Amendment Act 2002 inserted section 76A into the District Court Act 1973 and to provide that juries were not only compulsory for section 7A hearings but also (as I held in Obeid v ABC in my decision of 28 March 2002) necessary in proceedings before the proclaimation date of 17 February 2003.

3. As I set out in my judgment in Obeid, section 76A is a misconceived and inappropriate piece of drafting. It is a direct copy of the equivalent provision in the Supreme Court Act 1970, which is similarly inappropriate because it was enacted to permit judges to separate issues of liability or quantum (or other easily severed issues) so that one or more could, if necessary, be taken from the jury. In practice this provision was never used in defamation trials as courts were never prepared to adopt the risky step of dividing up defamation trials into a series of mini-trials. Even where it would be possible to separate one issue (such as a defence of qualified privilege on a retrial) the courts were generally reluctant to do so: Morgan v John Fairfax (No. 2) (1990) 23 NSWLR 374. However, what little use these provisions had in the Supreme Court Act had prior to the proclamation of section 7A Defamation Act 1974 vanished entirely when the jury’s role was restricted to the question of capacity, defamatory meaning, publication, identification and determination of true innuendo. There after the extraordinary artificial procedure of separate trials on these mini-issues came to dominate the defamation trial, and it is a matter of public record that the Court of Appeal has reversed around 10% of these verdicts on appeal (see the decisions collected in Moselmane v Jones, loc. cit.). As a result of defamation trials have doubled in length and complexity, and the public purse has been burdened by these costs because, in what appears to be another legislative oversight, the introduction of compulsory section 7A juries meant that the “user pays” system of requiring anyone requisitioning a jury to pay jury requisition and retention fees has effectively been abolished.

4. The difficulties caused by the conduct of these cases is the subject of a great deal of anecdotal evidence, and no doubt the facts in these proceedings are just another illustration of how artificial and misguided section 7A is.

5. It would take many pages of typing to describe each of the fourteen publications sued upon by the plaintiff, which of the constellation of defendants is a party to each and how these fit in with the cross-claim, so I gratefully attach to this judgment the two-page schedule provided by Mr Wheelhouse of Counsel.

6. Thus this litigation concerns a large number of publications and the circumstances in which more than one defendant is liable for most of them; the bringing of a cross-claim which contains a further four publications; a problem concerning a republication issue in publications H and H1; the stilted nature of the translations due to problems in translating the originals from Korean into English and the need to prove identification and extrinsic facts in relation to some of the publications, which will require some brief oral evidence in the section 7A jury trial.

7. An argument about the capacity of the matters complained of was dealt with by me on written submissions alone, principally because to hear such submissions orally would have taken one to two days. After I handed down my judgment on this issue the plaintiff brought a Notice of Motion seeking an order that a jury be dispensed with for the section 7A trial and such other order or orders as the court sees fit. This application was strenuously opposed by some of the defendants, who were keen to have a jury trial even though on the best estimate available such a jury trial would take, optimistically, around four weeks (to quote Mr Weaver of Counsel’s estimate).

The defendants’ proposal for the conduct of a section 7A trial

8. When the plaintiff’s Notice of Motion was first listed for argument I indicated that in order to determine the plaintiff’s application to dispense with a jury I needed to have some indication from the defendants as to how they proposed the section 7A jury trial should be conducted – as one trial, or a series of trials, before one or a series of juries, in chronological order or in groups depending on either the subject matter or the grouping of particular defendants, and whether all the defendants intended to be represented at this very lengthy section 7A trial. Apart from the third defendant, who proposed that all matters involving him should be heard separately (an impractical suggestion given the involvement of all but one of the other defendants in his matters) no suggestions of any kind, useful or otherwise, were made as to how such a trial should be conducted, despite my making orders for written submissions on this point.

9. The matter came before me for argument on 10 July 2003. The first and sixth defendants did not bother to attend. The second defendant, who is currently unrepresented, asked the third defendant to mention the matter on his behalf, although the orders the third defendant was seeking for a separate trial of all publications involving the third defendant was hardly in the plaintiff’s interest. The fourth, fifth and seventh defendants, who were represented by Mr Weaver, at first had no suggestions about how such a trial should be conducted, before eventually (after over an hour of argument) suggesting the matter be listed for four weeks before a trial judge who could make decisions about how to conduct this multi-layered trial on the first couple of days of the trial after hearing the suggestions of counsel briefed for the hearing. However, as I indicated to the parties at the time, my duty as Defamation List Judge is to attend to case management of defamation proceedings, and the suggestion that a judge of this court should spend a month looking at how to conduct this case and then endeavour to do so is contrary to the basic principles of case management and likely to be productive of little but hostility and adjournments.

10. It may appear from this summary that I am being critical of the parties’ legal representatives, but I am not. These problems are, quite simply, almost insoluble. The difficulty is that if the defendants cannot propose a sensible mode of trial by jury, I will have little alternative other than to make the order sought by the plaintiff on the basis that no jury trial is practical.

11. The first suggestion I will consider is the suggestion put forward by the third defendant that the section 7A jury trial be divided into groups of trials, and in particular that all of the matters involving the third defendant be heard together.

The dangers of divided trials

12. The dangers of divided trials have been the subject of a series of appellate decisions; the authority generally referred to on this problem is Perre v Apand Pty Ltd (1999) 198 CLR 180 where Callinan J said at [436]:

“[436] Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be.”

13. In Walker & Anor v ANZ (2001) NSWSC 765 Austin J noted (at 24) that while orders for determination of separate questions can be a useful means of limiting time and expense in litigation, “appellate courts have time and time again warned of the need for caution in making such orders”, noting the warning of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board (2000) 178 ALR 634 that the attractions of trials of issues rather than cases in their totality “are often more chimerical than real”. Indeed, Kirby and Callinan J stressed in Tepko at 170 that single issue trials should “only be embarked upon when their utility, economy and fairness to the parties are beyond question.” Gaudron J, in her concurring judgment, noted that such divided trials were particularly inappropriate in tort claims.

14. More recently, the Court of Appeal in Lepore v State of NSW & Anor (2001) NSWCA 112 at [95] (per Heydon JA) and [138] per Davies A-JA expressed similar warnings. In NSW v Lepore (2003) HCA 4 at [187] Gummow and Hayne JJ stated that “at the root of all the difficulties presented by this case lies the decision to attempt to sever trial issues of liability from trial issues about damages.”

15. Clearly, while it may suit the third defendant to have all its actions heard at the same time, that is not in the interests of any other party to this litigation, whether defendant, plaintiff, cross-claimant or cross-defendant.

Other possibilities

16. There are a number of other possibilities. The jury could hear submissions on all of the publications for however long that takes, and then bring in a mass verdict. That sounds like a recipe for disaster; how could a juror recall submissions about article number one tree weeks beforehand as he struggled through cross-claim number four? Mr Dibb pointed out that the very rationale for a jury trial would be lost.

17. Then there is the possibility that the jury could give a series of judgments, one after the other. Although initially plausible, this clearly would have potential for real difficulties if even one of the jury’s findings was perverse (resulting in an application under section 126 District Court Act 1973, or a leave to appeal, and/or an application to restrain the trial from continuing to be heard pending the outcome of any such application or appeal) and would result in the same jury burnout, fatigue, problems with inconstant verdicts and other problems that a long trial with mass verdicts at the end would cause.

18. The most practical solution I could think of was one not suggested by any party, and that is the reason for my indicating that I would prepare this short judgment setting out the proposals and my views. It is my view that if these matters are to be heard by a jury, the best and safest way is for each publication to be heard by a different jury (although arguably there is enough commonality amongst the cross-claims for those to be heard together). This would mean fifteen separate jury trials, but at least it would be fairer than any other method proposed. However, if such a method was put into place, the usual rules about costs being reserved in defamation proceedings pending the trial could well be seen as inappropriate given the enormous cost and difficulties inherent in conducting fifteen (or eighteen) trials for 1-2 days each. That would be a matter on which I would wish to hear from the parties.

19. A spanner has been cast into the works by the belated instructions received on the part of the fourth, fifth and seventh defendants to consent to the hearing of the section 7A trial by a judge sitting alone. Given that the first and sixth defendants may not participate in these trials at all, in light of their inactivity since the proceedings were commenced, and given that the first defendant is by far the most prolific publisher, this would mean that the third defendant’s wish for a jury trial (and the wishes of the second defendant, whatever they may be) would need to be seen in the context of an active (or passive) intention to the contrary.

The future conduct of the section 7A trial

20. It is my intention, absent the presentation of a compelling plan of action by the third defendant (and, if he wishes to participate, the second defendant) to make the orders sought by the plaintiff as being the only practical way that a section 7A trial can take place. It is regrettably unclear whether the factual problems in these proceedings fall within the exceptions to the otherwise compulsory jury trial set out in section 76B. Therefore it is my view that it would be preferable to give both the plaintiff and the third defendant the opportunity to address the matters set out in this judgment before proceeding to make such an order, and to make such further submissions concerning the change of position of the fourth, fifth and seventh defendant (and the continued inaction of the first and sixth defendant, despite the service of warning letters following the hearing on 10 July 2003) as are appropriate. The difficulty is, of course, that on the legislation as it is presently drafted, the third defendant can hold all the other defendants and the plaintiff to ransom and force them into a jury trial (or series of trials) which they do not want, since the consent to dispense with a jury trial must be unanimous.

Law Reform Issues

21. I repeat my earlier comments in Obeid concerning the inherent unfairness in the universal application of jury trials to all defamation actions. While there may be a place for the jury importing community standards into a mass media publication, it is difficult to see why a jury should be empanelled in circumstances such as appertain in this case. Similarly, with limited publications such as football club newsletters, neighbourhood wrangles and family squabbles, the need for community input must be questioned unless there is a real argument that the issue of defamatory meaning (as to whether it is still defamatory to call someone a communist, or a homosexual or some similar community-standard term).

22. There is much to be said for the consideration of amendment of section 76A, in this Court at least, to permit the Court to exercise a discretion in limited publications or for other practical reason to dispense with a jury. I earnestly trust that this course will recommend itself to the legislators in this State before this action has to be set down for trial.

Schedule Jik Il Oh
First Defendant Jae Kyung Lee
Second Defendant Yoon Shin Lee
Third Defendant Hak Joo Park
Fourth Defendant
(First Cross Claimant) Han Yong Lee
Fifth Defendant
(Second Cross Claimant) Duk In Kim
Sixth Defendant Hak Soo Cho
Seventh Defendant

Schedule A
Date of alleged publication:
22/12/00 Hoju Dong-A

Schedule B
Date of alleged publication:
26/01/01 TOP Korean News (“TOP”)

Schedule C
Date of alleged publication:
02.02.01 Hoju Dong-A

Schedule D
Date of alleged publication:
09.02.01 TOP

Schedule E
Date of alleged publication:
23.02.01 TOP

Schedule F
Date of alleged publication:
01.03.01 Hoju Dong-A TOP Sydney Korean Herald (“SKH”) Author Author

Schedule G
Date of alleged publication:
09.03.01 Hoju Dong-A TOP SKH Author Author

Schedule H
Date of alleged publication:
16.03.01 Hoju Dong-A TOP SKH Author Author

Schedule I
Date of alleged publication:
30.03.01 TOP

Schedule J
Date of alleged publication:
06.04.01 TOP Statements allegedly published to TOP attributed to the Seventh Defendant

Schedule K
Date of alleged publication:
04.05.01 Hoju Dong-A

Schedule L
Date of alleged publication:
04.05.01 Hoju Dong-A

Schedule M
Date of alleged publication:
06.07.01 Korean Community Magazine

Schedule N
Date of alleged publication:
No date pleaded Hoju Dong-A

Cross Claim Publications Plaintiff/First Cross Defendant: Bob Chae-Sang Cha
Second Cross Defendant: Jung Yup Kim

Schedule A
Date of alleged publication:
March 2001 An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in March 2001

Schedule B
Date of alleged publication:
March 2001 An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in March 2001

Schedule C
Date of alleged publication:
July 2001 An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in July 2001

Schedule D
Date of alleged publication:
June 2001 An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in June 2001

Cha v Oh (No. 4) (District Court of NSW, Gibson DCJ, 30 September 2003, unreported)

Judgment

1. On 18 July 2003 I handed down a judgment on preliminary issues concerning the proposed case management of these proceedings. There are fourteen matters complained of in the statement of claim, a further four matters in the cross-claim, seven defendants (some of whom appear disinclined to take any part in these proceedings) as well as a cross-defendant, and the inevitable result is that any s 7A jury trial will be of considerable complexity. The plaintiff accordingly brought a notice of motion seeking orders that the jury be dispensed with at the hearing of the s 7A trial by reason of the complexity.

2. Section 7A of the Defamation Act provides:

“ 7A Functions of judge and jury

(1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.

(a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or

the court is to enter a verdict for the defendant in relation to the imputation pleaded.

(a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and

the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.

(a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and

Supreme Court Act

District Court Act

3. There has been considerable confusion about the interaction of s 7A with the District Court Act and District Court Rules. For many years a jury could be obtained as long as a requisition was filed in time pursuant to Pt 12 r 5 District Court Rules as they then were. Introduction of legislation in early 2002 to remove juries from civil proceedings preserved the right to a jury in the Supreme Court but not in the District Court. This was apparently an oversight and accordingly, s 76B District Court Act was enacted in February 2003.

4. Section 76B District Court Act provides:

“ 76B Defamation actions to be tried by jury unless Court orders otherwise

(1) An action in which there are issues of fact on a claim in respect of defamation is to be tried with a jury.

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or

5. Since the provisions of a jury is a procedure issue, the effect of this amendment is retrospective in nature, as I held in my judgment in Obeid v Australian Broadcasting Corporation (17 March 2003).

6. In fact, s 76B, like its Supreme Court Act equivalent, is a misconceived amendment. The Supreme Court equivalent of s 76B is a provision which predated the introduction of s 7A (which limited the jury’s role to issues relating to publication, identification, capacity of the matter complained of to convey the imputation and defamatory meaning) and was relevant when juries determined all issues, including liability and quantum. These other issues are now the province of the trial judge even though some of these (e.g. republication, contextual imputations and the grapevine effect) are clearly very closely linked to the imputations in the matter complained of. In addition, no mechanism is set up for the parties to consent in some irrevocable fashion to order with the result that parties can and do change their position, as has in fact occurred in this litigation, as my previous judgment notes.

7. The difficulty that has transpired in the present case is that the third defendant and now the second defendant seek a trial before a jury. The fourth, fifth and seventh defendants, who had originally sought such an order, have now changed their minds and the position of the other defendants is frankly something of a mystery.

8. There can be no doubt that if the s 7A trial were to be heard by a judge, it could be disposed of in a day, or perhaps even less, since the capacity argument was dealt with by the parties on the basis of written submissions only. This is a factor which in my view may well be relevant on issues as to costs, but is otherwise of no significance to these proceedings.

9. I accept the submissions of the third defendant that any discretion to be exercised pursuant to s 76B could be exercised only in very limited circumstances. Indeed, the whole concept of “local investigation” (which is clearly a reference to a view) or scientific investigation (which is probably a reference to complex expert evidence) and/or prolonged examination of documents (which clearly relates to extensive discovery or a truth plea) clearly are matters which would really only arise if a jury was hearing the whole case.

8. On the application by the plaintiff for an adjournment to Monday, 19 May, these proceedings are stood over part heard to Monday, 19 May at 10 am; (see judgment). Costs reserved.

Cha v Oh (No. 20) (District Court of NSW, Gibson DCJ, 16 June 2008, unreported)

Monday 16 June 2008

JUDGMENT - on application to issue warrant to Mr Yun Jin Min see transcript p 2136

1. HER HONOUR: At midday today, Mr Evatt made an application on behalf of the plaintiff to issue a warrant pursuant to s 194 of the Evidence Act 1995 (NSW). Section 194 provides as follows:

“(1) If a witness fails to appear when called in any civil or criminal proceeding and is it proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may:

(a) order the witness to show cause at those or later proceedings while execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or
(b) if it is proved that the non-appearance is without just cause or reasonable cause and the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give evidence.”

2. The history of the matter can be described as follows. At transcript 125, Mr Yun Jin Min is referred to and there was an attempt to elicit evidence from the plaintiff concerning who he was and how it was that this gentleman, who has been described to me variously as a certified public accountant, had prepared a review of the records of the Aus-Kor Committee.

3. The document in question, which is before me, is exhibit 59. This document has been tendered in English and Korean, but parts of it do not seem to have been translated. I note that above the Korean there is a total of 6 lines, which look as if it says something like 'Memorandum to/from/concerning', and provides some short explanation. There is also some handwriting on the document in Korean.

4. The document was tendered at transcript 1294 by Mr Park and Mr Evatt tells me, although I cannot find it in the transcript, that it was his understanding that he gave an undertaking to the court to call Mr Yun Jin Min. Mr Wheelhouse has put it to me that Mr Yun Jin Min is an expert bound by the rules in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, that he is only as good as the primary facts he was given and the like.

5. In my view, it would be wrong to regard Mr Yun Jin Min as being an expert or as being someone who is bound by the usual rules relating to experts in the way of a medico-legal or accounting-legal step for this reason. He is someone who was consulted by the plaintiff at the time. His status is similar to that of a treating doctor, and so, just as the court is concerned about viewing reports of treating doctors with flexibility by reason of the fact that they are not preparing them for the court, so too any documents prepared by Mr Min at the time would be viewed with the same degree of flexibility.

6. The relevance of Mr Min's report is considerable. This was somebody who was consulted at the time, and it may well be that he was someone who could have thrown real light onto what happened. I note, for example, that the translator translated this document on 14 May 2001, and that there is a handwritten note referring to this date as well. This report was clearly contemporaneous with the matters complained of, and as such, Mr Yun Jin Min was someone who had the opportunity to see these documents at the time and to prepare a report.

7. Exhibit WW is an affidavit of service, and I note in the transcript that Mr Evatt indicated in his statements to the court that this gentleman was subpoenaed last year and that there were problems about his attending. In a way, the witness's reluctance to attend - because I am informed that although he has been served with a subpoena, he is reluctant to attend - is something that needs to be seen against the context of this very long-running litigation in circumstances where the events in question started to occur ten years ago - as one of the witnesses reminded me from the witness box when you pointed out he was giving evidence on the tenth anniversary of the appointment of the plaintiff to this position - and the evils of delay in court cases, which McHugh J explained in the Brisbane South Hospital decision that is so often referred to in this court. Decisions relating to delay need also to be noted.

8. Nobody has taken me to any authority on the issue. I note that as it happens, I have looked at this matter previously in Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302, and in the interests of saving time, we will simply refer to my summary there of what is set out in Odgers on this issue. As I said in that case, the circumstances in which the court would issue a warrant to a witness for failing to attend would have to be extreme. I would need to be satisfied that all that could be done had been done, and one of the problems that I have is that, although when Mr Evatt opened his case in May of last year, he told me that this gentleman was a witness, it would now appear that he is no longer keen to give evidence.

9. WHEELHOUSE: Your Honour, could I just have a look at the affidavit of service for a moment? I'm sorry to interrupt your Honour's judgment.

10. The circumstances in which a warrant should be issued for a witness who is reluctant needs to be seen against the context of this litigation. It is regrettable that Mr Min is not available to give evidence. Contrary to what Mr Wheelhouse says, it seems to me that his evidence would have been highly relevant and germane. It would appear that whether he is a certified public accountant or not, he is probably the only person with any kind of accounting background who has ever looked at these documents. Knowing what documents he looked at and hearing his explanations of the documents which have been tendered would, in my view, have been of considerable assistance to me. However, I am not satisfied that I should issue a warrant. I have been provided with insufficient information by Mr Evatt for so doing.

11. WHEELHOUSE: Your Honour, can I return exhibit WW to you. In my respectful submission, that would not be sufficient to establish service for the issue of a warrant. I am sorry to interrupt your Honour's judgment, my learned friend didn't have a copy for me.

12. EVATT: I haven't even read it, what's wrong with it?

13. HER HONOUR: Yes, court reporter, just leave all those interruptions in.

14. For the reasons I have given, I am not satisfied that the plaintiff has made out a case for the issuing of a warrant.

Cha v Oh (No. 21) [2009] NSWDC 130 (11 June 2009)

Judgment

1. This is a lengthy and complex defamation trial. The evidence is now complete. Comprehensive submissions are required from the plaintiff in order to answer the many hundreds of pages of written submissions provided by the defendants.

2. The procedural history is as follows. The plaintiff sued for defamation concerning fourteen Korean newspaper publications in May 2002. A s 7A jury in 2004 took nearly four weeks to determine the imputations. There were unsuccessful appeals to the Court of Appeal (Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279) and High Court (Lee v Cha [2006] HCATrans 132) by the third defendant, who subsequently settled. The first defendant died after judgment was entered against him, and a seventh defendant was successful in the s 7A jury trial. Only two of the defendants now contest these proceedings, the plaintiff having obtained judgment against the fifth and sixth defendants.

3. When the matter was finally ready for a hearing date in 2007 the parties gave a hearing estimate of four weeks. There were then amendments to the defences, including substantial enlargement of particulars of justification (from 8 to 140 pages) before, during and after the 68-day hearing, which has been running since May 2007. There was a further delay caused by an unsuccessful application by one of the two remaining defendants to the Court of Appeal during the hearing: Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13.

4. Now that the evidence is finished and this long trial is at the submissions stage, the plaintiff tells the court he can no longer pay his lawyers. He has spent $175,000 this year alone on legal fees. He has endeavoured to borrow money without success. His new solicitors seek leave to file a Notice of Ceasing to Act. I understand that Mr Evatt, who has been counsel in the matter throughout the trial, will not appear without those solicitors.

5. Mr Ricky Lee (of Schweizer Kobras, who makes this application), came into the matter only for the last few weeks of the hearing this year. I have very great sympathy for the position of this hardworking and highly respected member of the profession.

6. The plaintiff has had the same barristers during the trial, namely, Mr Evatt and Mr Dibb. In May 2008 Ms Evans appeared for some weeks for the plaintiff, replacing Mr Dibb. Unfortunately not much progress was made during this time because Ms Evans, having come into the matter at very short notice, had to make a number of requests for adjournments. Mr Evatt came back into the matter and the hearing was able to be completed in two further periods of hearing in May 2008 and March to April 2009.

7. The current stage of the trial is important to this application. The evidence is over and I have made peremptory orders for the provision of written submissions by all parties. I made peremptory orders because of my concern about existing delays in the matter. This was not because the trial went beyond the original four weeks, or the 8-week cross-examination of the plaintiff, but because even what should be a straightforward request by a trial judge, namely for a chronology, was not something that could be supplied by the plaintiff until the beginning of this year. I express no criticism of the lawyers; it is an indication of just how difficult this case has become.

8. The defendants have complied with the orders I made for written submissions. Very comprehensive submissions of many hundreds of pages have been served. As judges do not have time out of court to prepare judgments, I took two weeks of my leave for the purpose of reading them, with the intention of writing a judgment that could be handed down no later than September of this year. The plaintiff must comply with the peremptory orders for submissions by 23 July 2009 and the matter is listed for directions on 24 July so that I can reserve in order to hard down judgment, although the defendants have indicated they will seek a right of reply and further oral submissions, as occurred in the Marsden defamation trial.

9. The plaintiff’s solicitor yesterday sought to re-list the matter to seek leave to file a Notice of Ceasing to Act. I understand Mr Evatt also seeks leave to withdraw. Ms Evans is apparently willing to accept a direct access brief. Given her limited involvement in the trial and her statement to me this morning that she did not appreciate that she would be asked to do the submissions until today (and has not commenced any work), and she has obviously been busy in other matters since the trial ended, I am concerned about her ability to perform the enormous task of answering these hundreds of pages from the two defendants left in the case. I have already promised the solicitor who is appearing this morning for the remaining two defendants that the very strict timetable I imposed will be kept.

10. That is not to say that a plaintiff in a long running defamation case is always going to be in such a position of difficulty if funds run out. The same thing happened to Mr Marsden in the Marsden litigation. However, Mr Cha is not in the same position as Mr Marsden, who was a former president of the Law Society and a very experienced trial lawyer. There were periods when Mr Marsden did act for himself, as I understand it, during that lengthy defamation trial which, as I recall, included 212 interlocutory judgments, 12 of which went to the Court of Appeal and a further 3 to the High Court (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510). The written submissions in that case were supplemented by oral submissions lasting 17 days.

11. However, Mr Cha is a Korean motor mechanic with limited English, who can do very little to represent himself. Although I have put a number of questions to him this morning, in my view he does not appreciate the difficulty of the task that he has confidently said he is going to leave to Ms Evans. In fact he appears to have been under the misapprehension that Mr Evatt was going to remain in the matter as well.

12. The relevant rule concerning solicitors is Uniform Civil Procedure Rules 2005 (NSW), r 7.29, which provides that:

“(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or

(b) in any other case, at least 7 days before doing so.

(3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.”

13. There having been insufficient time for this to occur, and by reason of the stage of the litigation, application is made for leave for the solicitor on the record to withdraw and I apprehend that Mr Evatt, although not formally seeking to withdraw from the case, is indicating he intends to withdraw as well.

14. There is no doubt that failure to provide funds to cover the disbursements may be good cause for termination of a retainer, as the cases noted in the Ritchie's Uniform Civil Procedure NSW at [5,696] made clear. However, the cases set out in Ritchie relate to solicitors who withdraw prior to the trial, not when the evidence is over.

15. In the very brief time I have had since having notification of this application, I have found several cases where the Supreme Court and the Court of Appeal have expressed concern in similar circumstances. In Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 the solicitors for a party sought leave to withdraw on the day that the trial was to start. Gzell J reluctantly let the trial go ahead despite concern about the late timing, but in circumstances where there was another defendant who did have some representation. His Honour’s concerns must apply with even more force to a trial that has been completed and where the timetable for that party’s written submissions is half over.

16. I am indebted to McCallum J for providing me this morning with a copy of her decision in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation (Supreme Court of New South Wales, McCallum J, 28 April 2008, unreported). What happened in that case was as follows. An application was made for an adjournment by the plaintiffs of a defamation hearing before McCallum J. Her Honour refused the application and the solicitor who appeared for the plaintiffs then made an application under r 7.29 Uniform Civil Procedure Rules for an order either dispensing with the obligation to serve notice on the client of his intention to file a Notice of Ceasing to Act or for an abridgment of time for serving that notice. The reason for that application being made was apparently to avoid costs incurred in the hearing of those issues. Mr Dawson, who appeared for the defendant, raised some matters of prejudice that I thought I should consider, bearing in mind that the solicitor who appears for the defendants today is unfamiliar with this matter, and I have been very anxious to protect the position of the defendants in circumstances where she is appearing at short notice. Mr Dawson in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation took the position that if the application to withdraw were granted it would amount to a de facto adjournment because plainly as a matter of fairness it would be necessary to give the plaintiffs an opportunity to obtain new representation.

17. What really troubles me is that that may occur here. How can I be sure that a solicitor will not appear some time during the next month to say he has been retained and needs some more time, especially in circumstances where it would appear that a solicitor recently consulted went to see Mr Evatt with Mr Cha? How can I protect the defendants’ position in this situation, their having been brought here at very short notice with a solicitor unfamiliar with the case (as she very frankly and properly has told the court)? It seems to me that I should have regard to the weight that was put by McCallum J on Mr Dawson’s submissions in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation, and that I should consider protecting the position of the defendants by giving similar weight to the prejudice that is likely to be occasioned to them.

18. The only case that I could find where a solicitor went off the record after evidence was completed was Wentworth v Rogers [1999] NSWCA 403. The Court of Appeal was critical of this solicitor (at [43]), noting that legal practitioners have duties to the court as well as to their clients.

19. In the present case I want to make it absolutely clear that I am more than satisfied that Mr Lee and Ms Evans have been fully cognisant of their duties to the court. The trouble is that by making this application, despite outlining the proposed arrangements that are to be put in place, it seems to me that the prejudice both to the court and to the defendants is simply too high.

20. Law is a profession; it is not just another business. Lawyers who accept instructions from their client owe duties not only to their client but to the court: A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55, and just as importantly, to their opponents. I am entitled to take into account, on an application such as this, the considerations of the due administration of the court, as Gzell J noted in Super 1000 Pty Ltd v Pacific General Securities Ltd at [11]. If hastily prepared and inadequate submissions are served, that puts me as the trial judge in an impossible position. Just as important as the inconvenience caused to me, if not more, is the prejudice caused to the defendants, and, again I note Gzell’s J’s concerns in Super 1000 Pty Ltd v Pacific General Securities Ltd, to the prejudice caused to other parties when applications of this sort are brought.

21. In addition there are important issues of public policy relating to the obligations that lawyers have. There has been great public concern over the past year about the high cost of lawyers and the disastrous impact this can have upon the provision of justice in our justice system. I can only repeat once again that my concerns do not relate to any personal conduct by Mr Lee. I appreciate the difficulties Mr Lee’s firm has. They came into the matter very late. He has performed with the utmost diligence and he has very ably represented the plaintiff on all occasions.

22. It is not my intention, nor have I been asked, to extend the time for completion of written submission of the plaintiff. I appreciate there may be grounds for the exercise of some compassion and it may be that such an application is brought later, but there is no way that I am even going to consider any such request now, as I have already promised the solicitor appearing for the defendants that this will not occur today.

23. Having regard to the exceptional circumstances in which this application is made during the submissions stage, where there is a peremptory order for submissions and where half of the time for providing those submissions by the plaintiff has already expired, in a very long and complex defamation trial, I decline to grant leave to the solicitors for the plaintiff to withdraw. No other lawyers can come in to take this matter over, and if they did the prejudice to the defendants would be enormous. What would they do? Would they seek leave to re-open the case to adduce further evidence? The difficulties are unimaginable. Any further delay must be strictly monitored to ensure that there is no injustice to the defendants who have complied with the timetable.

24. What the lawyers must do if they remain on the record, consistent with their ethical obligations and their duties to their opponents and to the court, is a matter for them to determine, perhaps after consultation with the Law Society of New South Wales, the Office of the Legal Services Commissioner or the New South Wales Bar Association.

25. This brings me to the question of counsel. While courts may have an inherent jurisdiction to supervise the conduct of counsel (for example, the ability to intervene to have counsel removed: Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at [45]), I do not have the same degree of control over Mr Evatt as I do over the solicitors on the record. I can only appeal to his better nature not to leave a junior member of the Bar, especially one to whom he is related, in circumstances which may expose her to any kind of unnecessary stress, complaint or other kinds of action. Ms Evans deserves better, in my view.

26. I cannot force the plaintiff’s legal representatives to prepare helpful submissions. I can tell the plaintiff’s legal representations that if they do not do proper submissions, I am not going to descend into the arena to work out what they should have done. That would be unfair to the defendants. I further warn them that if the plaintiff’s submissions are indeed hopeless or inadequate, it will be open to the defendants to ask me to dismiss the proceedings entirely, rather than to embark upon the lengthy exercise of trying to guess what the plaintiff’s submissions ought to have been, or to ignore them entirely in the manner it was urged upon Bergin J in similar proceedings in A & N Holdings NSW Pty Ltd v Andell Pty Ltd and I gratefully adopt the careful analysis of how matters should be run in specialist lists and how courts should approach such failures as are set out by her Honour in this helpful decision.

27. This is a very difficult position for any trial judge. I have endeavoured to reconcile the competing needs for a party to be properly represented, particularly where that party is a person with limited English and abilities, with the needs that those lawyers have to be paid, the needs of the defendants to have finality in this very long litigation, the need for myself as trial judge to have proper submissions from both sides, and the need for justice to be seen to be done in the public arena.

28. This application has caused me a great deal of anxiety, but it seems to me that, while I have the utmost compassion for Mr Lee’s position, I cannot grant his request to file a Notice of Ceasing to Act.

Orders

29. Accordingly, I make orders as follows:

Annexure C – Constitution of the “Kor-Aus Supporting Committee for Sydney 2000 Olympic Games” (Exhibit 1) and Minutes of Monthly & Special Meetings from November 1999 (Exhibit 51)

Kor-Aus Supporting Committee for Sydney 2000 Olympic Games
7 Wairoa St. Canterbury NSW 2193
Tel (02) 9233 7767
Fax (02) 9233 7787

It is announced that Kor-Aus Supporting Committee for Sydney 2000 Olympic Games was lauched as below in 1 May 1998 in the general meeting of the promotional committee attended by representatives from various Korean organizations, in which the constitution was formulated and officials were elected.

General meeting report

* The meeting started with committee chairman Jae Sang Cha’s address and honorary chairman Dong Suk Lee’s encouragement speech, followed by quorum report and discussion on the agenda.

* As for deliberation and formulation of the constitution, the first agenda, its draft prepared by a 15-member standing sub-committee was adopted without any amendment through article-by-article discussion.

* As for election of officials pursuant to the constitution, the second agenda, Mr. Jae Kyung Lee and Mr. Jae Sang Cha, only candidates recommended, stated their political views before 34 voters including the president of Korean Society of Sydney cast their vote in the secret ballot, electing the latter, the incumbent president of Korean Sports Council of Australia, as Chairman of the Supporting Committee, and as auditors, Han Young Lee (accounting auditor) and Hak Ju Park (administrative auditor).

List of those present

Dong Suk Lee (president of Korean Society of Sydney)
Jong Sang Ahn (adviser & first president of Sports Council)
Gi Sung Nam (vice president of Korean Welfare Service)
Jae Kyung Lee (adviser & second president of Sports Council)
Jung Hyung Park (secretary general of Korean Society)
Byung Sil Kim (adviser and third president of Sports Council)
Sin Young Im (president of Korean Veterans Association)
Jong Sang Ha (adviser & forth [sic] president of Sports Council)
Sang Gi Kim (adviser of the Advisory Council on Democratic & Peaceful Unification, Oceania)
Yong Jae Lee (president of Korean Welfare Service in Australia)
Nak Yoon Paek (president of Southeast Asia Wars Veterans Association)
Jae Sang Cha (president of Korean Sports Council in Australia)
Chang Yong Kim (president of Vietnam War Veterans Association)
Ju Yong Lee (president of Asia-Pacific peace Foundation in Australian branch)
Sung Chul Jang (president of Table Tennis Assoc.)
Han Yong Lee (president of Korean Judo Assoc.)
Hak Su Cho (president of Volleyball Assoc.)
Sung Joo Sung (executive director of Baseball Assoc.)
Hee Jung Sung (president of Bowling Assoc.)
Yang Jae Kim (president of Korean Overseas Students Assoc.)
Geum Woo Lee (president of Tennis Assoc.)
Tae Hun Lee (president of Korean University Students Assoc.)
Bae Jin Han (president of Golf Assoc.)
Hyun Jung Choi (president of Korean Students Assoc of Sydney University)
Hak Ju Park (president of Basketball Assoc.)
Yun Ok Kim (president of Korean Students Assoc of UTS)
Hyun In Ahn (president of Korean Students Assoc of Macquarie University)
Hae Myung Jung (vice president of Sports Council)
Gi Sung Hwang (executive director of Sports Council)
Jin Choi (general affairs director of Sports Council)
Hee Chul Kang (liaison director of Sports Council)
Tae Heung Kim (vice president of Korean Veterans Association)
Gwang Guk Na (director of Baseball Assoc.)
Gwon Uk Jang (director of Baseball Assoc.)

List of those absent

Won Hong Seung (president of Korean Chamber in Commerce & Industry in Australia)
Jung Gil Jo (president of Marine Corps War Veterans Association)
Un Sun Baek (president of Korean Divers Assoc.)
Dong Hyuk Kim (general affairs manager of Korean Vietnam Comrade Assoc.)
Duk Sung Gong (president of Korean Body Builders Assoc.)
Gi Duk Kim (ex-president of Korean Welfare Service)

List of standing sub-committee members

Sin Young Im, Sang Gi Kim, Hae Myung Jung, Yong Jaw Lee, Hak Su Cho, Han Yong Lee, Jong Sang Ahn, Gi Sung Nam, Jung Hyung Park, Chang Yong Kim, Jin Choi, Won Hong Seung, Gi Duk Kim, Nak Yoon Paek, Jae Sang Cha

Constitution of Kor-Aust Supporting Committee for Sydney Olympic Games

Chapter 1 General provisions

Article 1 (Title)
The committee is named Kor-Aust Supporting Committee for Sydney 2000 Olympic Games.

Article 2 (Objectives of establishment)
The objectives of the committee are to provide various assistance for Korean teams in cooperation with Korean Sports Council, and cooperate with Sydney Olympic Games Organizing Committee, playing a channeling role for the unity of the Korean community.

Chapter 2 Membership

Article 4 (Qualifications)
(1) Those who have agreed to the objectives and joined membership through deliberations.
(2) Those who have been recommended by every organization for diverse composition of the committee.
(3) Replacing officials of each organization leads to automatic appointment of the new chairman.

Chapter 3 Organization and officials

Article 6
The committee has officials and auditors as follows:
(1) One chairman
(2) Three vice chairman
(3) Two auditors
(4) No more than 20 executive directors including secretary general and directors for general affairs, finance, public relations and liaison.

Article 7 Duties
Chairman – Representing the committee and taking overall charge of affairs on it.
Vice chairmen – Assisting the chairman and acting as deputy for him in case of absence owing to unavoidable circumstances. One of them, appointed by the chairman, acts as his deputy, and if none of them nominated by the chairman, the senior takes the role.
Auditors – Auditing matters on accounting and affairs of the committee and reporting the results to the general meeting.
Secretary general – Taking charge of general office administration of the committee.
Executive director – Taking charge of general affairs of the committee.

Article 8 (Term of officials)
It expires upon the close of 2000 Olympic Games.

Article 9 (Election of officials)
The chairman and the auditors are elected in the plenary session, while vice chairmen, secretary general and executive directors are appointed by the chairman for smooth execution of affairs.

Chapter 4 Meeting

Article 11
The general meeting is classified into a regular general meeting and an extraordinary general meeting.
(1) The regular general meeting
It is summoned by the chairman within one month after the finish of the financial year.
(2) The extraordinary general meeting
It can be convened, if considered necessary by the chairman, and may be called into session at the request of half of the members or more.

Article 12 (Summoning the general meeting)
It may be notified seven days in advance.

Article 13 (Matters for resolution)
(1) Constitution amendment
(2) Election of chairman and auditors
(3) Matters on establishment and operation of business plans
(4) Budget approval and settlement
(5) Other matters required in the general meeting

Chapter 5 Finance

Article 15
The committee is financed with the following earnings:
(1) Subsidy – Korean Athletic Association
(2) Financial supports – public organizations
(3) Contributions – fund-raising & donations
(4) Business profits
(5) Other earnings

Article 16 (Financial year)

* Supplementary provisions

Article 1
Matters not specified in the constitution may conform to the custom.

8 May 1998
Hak Su Cho
Acting Chairman for officials election

Exhibt 51

******

Citations

Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300

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CITATION:	Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300
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 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence. (2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below. (3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000; (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000; (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000; (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000; (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, making a total of $10,000. (4) At the request of the plaintiff, 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 - 21 judgments on interlocutory, s 7A jury trial and hearing on liability and quantum - rulings on form and capacity of imputations (judgments 1 and 2) - form of section 7A trial (judgments 3 and 4), application by second defendant at jury trial to withdraw admission of publication of matters complained of (judgment 5) - application for s 7A jury to hear addresses on all 14 publications at once (judgment 6) - application to discharge jury following address by counsel for third defendant and concerning the costs thrown away by reason of the jury being discharged (judgments 7 and 8) - application to disqualify judge (judgments 9 and 13) - application to strike out particulars of the defence and for further and better particulars (10 and 11) - application to abort hearing following open offer being made in court (judgment 12) - application to amend defence by fourth defendant (judgment 14) - application concerning settlement of third defendant (judgment 15) - applications by plaintiff for adjournments (judgments 16 and 19) - application to sever cross-claim (judgment 17) - application by fourth defendant for further cross-examination of the plaintiff by counsel (judgment 18) - application for warrant for witness who refused to comply with subpoena (judgment 20) - application by solicitors for plaintiff for leave to withddraw from proceedings (judgment 21)
PARTIES:	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 Kim
FILE 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

Annexure A	Judgments before and during the s 7A jury trial
Annexure B	Judgments during the hearing
Annexure C	Constitution of the “Kor-Aus Supporting Committee for Sydney 2000 Olympic Games” (Exhibit 1) and Minutes of Monthly & Special Meetings from November 1999 (Exhibit 51)

Schedule	Jik Il Oh First Defendant	Jae Kyung Lee Second Defendant	Yoon Shin Lee Third Defendant	Hak Joo Park Fourth Defendant (First Cross Claimant)	Han Yong Lee Fifth Defendant (Second Cross Claimant)	Duk In Kim Sixth Defendant	Hak Soo Cho Seventh Defendant
Schedule A Date of alleged publication: 22/12/00	Hoju Dong-A
Schedule B Date of alleged publication: 26/01/01	TOP Korean News (“TOP”)
Schedule C Date of alleged publication: 02.02.01	Hoju Dong-A
Schedule D Date of alleged publication: 09.02.01	TOP
Schedule E Date of alleged publication: 23.02.01	TOP
Schedule F Date of alleged publication: 01.03.01	Hoju Dong-A	TOP	Sydney Korean Herald (“SKH”)	Author	Author
Schedule G Date of alleged publication: 09.03.01	Hoju Dong-A	TOP	SKH	Author	Author
Schedule H Date of alleged publication: 16.03.01	Hoju Dong-A	TOP	SKH	Author	Author
Schedule I Date of alleged publication: 30.03.01	TOP
Schedule J Date of alleged publication: 06.04.01	TOP	Statements allegedly published to TOP attributed to the Seventh Defendant
Schedule K Date of alleged publication: 04.05.01	Hoju Dong-A
Schedule L Date of alleged publication: 04.05.01	Hoju Dong-A
Schedule M Date of alleged publication: 06.07.01	Korean Community Magazine
Schedule N Date of alleged publication: No date pleaded	Hoju Dong-A

Cross Claim Publications	Plaintiff/First Cross Defendant: Bob Chae-Sang Cha Second Cross Defendant: Jung Yup Kim
Schedule A Date of alleged publication: March 2001	An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in March 2001
Schedule B Date of alleged publication: March 2001	An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in March 2001
Schedule C Date of alleged publication: July 2001	An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in July 2001
Schedule D Date of alleged publication: June 2001	An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in June 2001