Chow v Un (No. 2)

[2017] NSWDC 301

District Court

New South Wales

Medium Neutral Citation:	Chow v Un (No. 2) [2017] NSWDC 301
Hearing dates:	2 November 2017
Date of orders:	02 November 2017
Decision date:	02 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	As between the first plaintiff and the defendant: (1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $10,587.95. (2) Judgment for the first plaintiff in the sum of $105,587.95. (3) Judgment in the amount referred to in order (2) be as and from 15 September 2017. (4) The defendant to pay the first plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.  As between the second plaintiff and the defendant: (1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $7,244.38. (2) Judgment for the first plaintiff in the sum of $72,244.38. (3) Judgment in the amount referred to in order (2) be as and from 15 September 2017. (4) The defendant to pay the second plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.
Catchwords:	TORT – defamation – application for interest at 3% on judgment sum – application for indemnity costs for the proceedings – no issue of principle
Legislation Cited:	Defamation Act 2005 (NSW), ss 3 and 40 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Chow v Un [2017] NSWDC 254 Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Habib v Radio 2UE Sydney Pty Ltd (No 4) [2012] NSWDC 12
Category:	Costs
Parties:	First Plaintiff: Sum Chow Second Plaintiff: Colin Chiu Kwan Chau Defendant: Chi Keong Un
Representation:	Counsel: Plaintiffs: Mr R Rasmussen Defendant:   Solicitors: Plaintiffs: Pancific Legal Defendant:
File Number(s):	2014/362714
Publication restriction:	None

Judgment

Introduction

1. These are proceedings for defamation. On 15 September 2017 I delivered judgment in these proceedings (Chow v Un [2017] NSWDC 254) and made the following orders:

1. Judgment for the first plaintiff for $95,000.

2. Judgment for the second plaintiff for $65,000.

3. Costs reserved, with liberty to apply concerning interest and costs.

4. Exhibits retained for 28 days.

2. In accordance with order (3), the plaintiffs now seek costs and interest. On 26 October 2017, appearing ex parte in the Defamation List, Mr Rasmussen informed the court that the legal representatives for the defendant has ceased acting on or about 6 October 2017. He sought orders for the relisting of the costs and interest issue. The following orders were made on 26 October 2017:

1. The plaintiffs’ application for interest and indemnity costs is stood over for argument to Thursday 2 November 2017 at 9:00am in Court 13D, John Maddison Tower, 86 Goulburn Street, Sydney before Gibson DCJ.

2. The plaintiffs are to notify the defendant by email and by registered post by 5:00pm today that if the defendant does not attend court to argue his case orders will be made in his absence.

3. A copy of these orders will also be provided by the Court to the parties in the Traditional Chinese language.

3. Mr Rasmussen also drew our attention to the fact that the defendant has limited ability to read English. My associate has translated my orders into Chinese and provided the following translation to the parties:

1. 原告人對有關利息和以彌償基準計算的訟費的申請押後到2017年11月2日上午9時聆訊。地點為法庭13D，John Maddison Tower，86 Goulburn Street，悉尼。

2. 原告人應當在今天下午五點前通過電子郵件及以掛號郵遞方式通知被告人今天法庭的命令，並告知被告人如他在2017年11月2日上午9時未能出席，法庭將在他缺席的情況下作出判決。

3. 法院將把這些法庭命令翻譯成繁體中文及提供給原告人及被告人。

4. The defendant came to court today without an interpreter. He acknowledged receipt of the orders and the plaintiffs’ submissions, but told me that it was the court’s obligation to provide him with an interpreter. That is not the case, as the defendant well knows from prior attendances in this court. However, my associate translated his addresses to the court and Mr Rasmussen’s replies and the hearing proceeded on that basis.

The plaintiffs’ application for costs

5. The plaintiffs seek an order that all costs (including reserved costs should be paid on an indemnity basis, either for the whole of the proceedings or from the date of a Calderbank offer (17 April 2017).

6. The plaintiffs are entitled to their ordered costs on the basis that costs follow the event: r 42.1 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The plaintiffs are also entitled to claim costs on an indemnity basis by reason of s 40 Defamation Act 2005 (NSW) which provides:

“40 Costs in defamation proceedings

(1) In awarding costs in defamation proceedings, the court may have regard to:

(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), and

(b) any other matters that the court considers relevant.

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

(3) In this section: “settlement offer” means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.”

7. The matter complained of was published on 29 December 2013. A Concerns Notice was sent on 21 January 2014. This was followed by a series of letters proposing settlement as follows:

1. 21 January 2014 (soon after publication but prior to commencement of proceedings - Apology and payment of reasonable legal costs.

2. 27 April 2017 - (Calderbank Letters) Discontinuance, apology, payment of reasonable legal costs

3. 12 May 2017 - (open offer) Discontinuance, apology, payment of reasonable legal costs.

4. 15 May 2017 - (During the trial and in open Court) Apology;

5. 5 October 2017 - Letter to the defendant’s solicitors re costs and interest;

6. 12 October 2017 - Letter to the defendant re costs and interest.

8. The defendant has never made any offer, and scoffed at the request for apology made during the hearing, as well as in the application before me today. He stated that the plaintiffs were criminals, that their witnesses were lying about his having published anything, and that the Goon Yee Tong organisation had been taken over by communists from China. He also referred to the Constitution of the Goon Yee Tong, which states that disputes should be resolved by mediation rather than court proceedings. However, mediation has already been attempted with the defendant, not only by the plaintiffs but also in this court, without any success.

9. For the duration of the time that these proceedings have been before the court, the court has made every effort to assist the defendant and to promote non-litigious resolution in accordance with s 3 Defamation Act 2005 (NSW). The court’s free mediation system was offered to both parties (as well as assistance with foreign language problems to the defendant) who was also referred for pro bono assistance. This has included having the orders I made on 26 October 2017 (see above) translated into traditional Chinese now that he is self-represented, so that he is aware of the nature of the application before the court today.

10. The solicitors and counsel who appeared from him at interlocutory proceedings and at the hearing have all worked tirelessly to assist him.

11. Despite this assistance from the court and from the legal profession, the defendant has remained intransigent throughout and, as is set out in the judgment, was angrily dismissive of Mr Rasmussen’s requests to him in court to apologise in lieu of continuing the case. He was, if anything, even angrier and upset in the proceedings before me this morning.

12. The plaintiffs have at all times tried to settle the proceedings on the basis of a public apology and reasonable legal costs. The provisions of s 40(3) of the Act are satisfied. Accordingly the defendant must pay the plaintiffs’ costs of the proceedings on an indemnity basis, including reserved costs.

Interest

13. The Plaintiffs are entitled to interest from the date of publication (29 December 2013) to the date of Judgment (15 September 2017):

14. In Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [20], McClellan CJ at CL stated:

“[20] The proceedings in this case were not unduly delayed. Because I am satisfied that the majority of the damage was occasioned at or about the time of publication, adequate allowance can be made for continuing damage and for the component of aggravation occasioned by the defendant’s conduct at trial by adjusting the conventional rate by a modest amount. Although a rate of 3.5% would not be inappropriate I have determined that interest should be awarded at 3% per annum.”

15. Trial judges generally award 3 – 3.5% interest on damages in defamation awards, although there have been isolated cases where as much as 4% was awarded (Habib v Radio 2UE Sydney Pty Ltd (No 4) [2012] NSWDC 12 at [432]).

16. The plaintiffs seek interest at 3% as follows:

1. The total interest for the first plaintiff from the date of publication (29 December 2013) to the date of judgment (15 September 2017) is therefore $10,587.95.

2. The total interest for the second plaintiff from the date of publication (29 December 2013) to the date of judgment (15 September 2017) is therefore $7,244.38

17. The revised totals for judgment are therefore the sums set out in the orders below.

Orders

18. The orders I make by way of variation of the judgment orders of 15 September 2017 (which is the date for these orders to be entered) are as follows:

As between the first plaintiff and the defendant:

1. Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $10,587.95.

2. Judgment for the first plaintiff in the sum of $105,587.95.

3. Judgment in the amount referred to in order (2) be as and from 15 September 2017.

4. The defendant to pay the first plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.

As between the second plaintiff and the defendant:

1. Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $7,244.38.

2. Judgment for the first plaintiff in the sum of $72,244.38.

3. Judgment in the amount referred to in order (2) be as and from 15 September 2017.

4. The defendant to pay the second plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.

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Decision last updated: 11 May 2018