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Cha v Oh (No. 22) (Part 2)

Cha v Oh (No. 22) (Part 2)

Case [2009] NSWDC 300 8 December 2009

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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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cha v Oh (No. 22) (Part 2)

Details

AGLC: Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300
Case: [2009] NSWDC 300
Decision Date: 8 December 2009

CaseChat Overview and Summary

In the matter of Cha v Oh (No. 22) (Part 2), the parties involved were Cha, the plaintiff, and Oh and others, the defendants, engaged in a defamation case. The court was tasked with resolving various interlocutory issues related to the defamation claim, including the form and capacity of imputations, the conduct of the trial, and the handling of costs and other procedural matters. The case involved numerous applications and rulings, including the form of the section 7A jury trial, applications to withdraw admissions, to discharge the jury, to disqualify the judge, to strike out defence particulars, and to amend defences.

The legal issues that the court had to decide involved the procedural aspects of the defamation trial, such as the form of the trial, the capacity of imputations, and the handling of costs. The court also had to consider applications to withdraw admissions, to discharge the jury, to disqualify the judge, and to strike out defence particulars. Additionally, the court had to determine the appropriate costs to be awarded to the plaintiff and the appropriate interest on those costs.

The court granted leave to the second defendant to amend his defence in accordance with the proposed Further Amended Defence. The court also awarded judgment for the plaintiff for a total of $240,000 against each of the second, fourth, and fifth defendants for each of the complained-of publications. The court directed the Registrar to forward a copy of the judgment to the Director of Public Prosecutions 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. The court also directed that both parties were to serve outlines of interest calculations and any copies of offers relied upon by 4.00 p.m. 10 December 2009. These proceedings were 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. The exhibits were retained for 28 days, save for Exhibit 27, which will remain in the custody of the Registrar of the District Court until further order.

Orders

Orders of the court

(1) Leave granted to the second defendant to amend his defence in accordance paragraphs 9, 10, 11 and 13 of the proposed Further Amended Defence.

(2) Second defendant pay costs thrown away by reason of the amendment but with liberty to apply for any application to vary this order in accordance with the timetable set out in order 6 below.

(3) Judgment for the plaintiff for a total of $240,000 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums:

(a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000;

(b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000;

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

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

Most Recent Citation

R v Stott [2017] ACTSC 126

Cases citing this decision · 2 of 2 shown

R v Stott
[2017] ACTSC 126 Para 1

…re the warrant could be issued ( Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302; 6 DCLR (NSW) 122 at [18]-[19]; Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300 at [10]). None of this material is helpful in the task of considering whether the existence of s 70A has implications for other cases where warrants…
Cha v Oh (No. 22) (Part 1)
[2009] NSWDC 299

…Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported) Cha v Oh (No. 21) [2009] NSWDC 130 Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300 Chakravarti v Advertiser (1998) 154 ALR 294 Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (Supreme Court of NSW, Levine J, 13 December 1996) Clark…

View all 2 citing cases →

Cases cited in this decision · 27 of 27 shown

Cha v Oh (No. 13)
[2009] NSWDC 130

…Cha v Oh (No. 21) [2009] NSWDC 130 (11 June 2009)…
Lee v Cha
[2008] NSWCA 13

…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.…
Photi v Target Australia Pty Ltd (No. 2)
[2007] NSWDC 302

…aken 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, th…
Super 1000 Pty Ltd v Pacific General Securities Ltd
[2007] NSWSC 171

…ere 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 concer…
Kallinicos v Hunt
[2006] NSWSC 723

…y 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 h…
Lee v Cha
[2006] HCATrans 132

…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 succe…
A and N Holding NSW Pty Limited v Andell Pty Limited
[2006] NSWSC 55

…. 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 admin…
Kallinicos v Hunt
[2005] NSWSC 1181

…l. 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 onl…
Yoon Shin Lee v Bob Chae-Sang Cha
[2005] NSWCA 279

…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 entere…
Pavy v John Fairfax Publications Pty Ltd
[2004] NSWCA 177

…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 dr…
Moselmane v Jones
[2002] NSWDC 1

…s 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 pr…
Pavy v John Fairfax Publications Pty Ltd
[2002] NSWCA 46

…d 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 identi…
Marsden v Amalgamated Television Services Pty Ltd
[2001] NSWSC 510

…nterlocutory 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.…
Lepore v State of New South Wales
[2001] NSWCA 112

…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 t…
Tepko Pty Ltd v Water Board
[2001] HCA 19

…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…
Cinevest Ltd v Yirandi Productions Ltd
[2001] NSWCA 68

…e 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 cur…
Vella v John Fairfax Publications Pty Ltd
[2000] NSWSC 615

…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 preci…
Wentworth v Rogers
[1999] NSWCA 403

…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.…
Perre v Apand Pty Ltd
[1999] HCA 36

…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]:…
Crampton v Nugawela
[1996] NSWCA 128

…utations, 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 embarke…
Morgan v John Fairfax & Sons Limited
[1991] HCATrans 51

…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 quan…
Marsden v Amalgamated Television Services Pty Ltd
[1996] HCATrans 149

…ach 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…
There was also objection that there has been failure to comply with Harrigan v Jones
[2000] NSWCA 814

…im 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 con…
Jones v Skelton
(1963) 1 WLR 1362

…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.…
Pty Ltd v Sprowles
636 F Supp 1419

…rtaking 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.…
Tepko Pty Ltd v Water Board
[2000] 1 QB 288

…“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 Callina…
Singleton v Ffrench
125 ER 1034

…ble 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.…

Legislation cited in this decision · 6

Uniform Civil Procedure Rules 2005 (NSW)
7.29 2 mentions
Defamation Act 1974 (NSW)
1 mention
Defamation Amendment Act 2002 (NSW)
1 mention
District Court Act 1973 (NSW)
1 mention
Evidence Act 1995 (Cth)
1 mention
Supreme Court Act 1970 (NSW)
1 mention

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,…