Giuong Van Phan v the Vietnamese Herald Pty Ltd and Anor - [2006] NSWSC 247

NEW SOUTH WALES SUPREME COURT

CITATION: Giuong Van Phan v The Vietnamese Herald Pty Ltd & Anor [2006] NSWSC 247

CURRENT JURISDICTION:

FILE NUMBER(S): 20368/05

HEARING DATE{S): 28 March 2006

DECISION DATE: 06/04/2006

PARTIES:
Giuong Van Phan - Plaintiff
The Vietnamese Herald Pty Ltd - 1st Defendant
Nguyen The Khiet - 2nd Defendant

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
CA Evatt / CJ Dibb - Plaintiff
BR McClintock SC / RJ Brender - Defendants

SOLICITORS:
Ho Ledinh - Plaintiff
Janice Vu and Associates - Defendants

CATCHWORDS:
defamation
whether binding agreementas to compromise of proceedings
parties intended to end proceedings and avoid unnecessary expenditure

ACTS CITED:

DECISION:
Proceedings permanently stayed. Plaintiff to pay defendants' costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
SIMPSON J
Thursday 6 April 2006
20368/05 Giuong Van Phan v The Vietnamese Herald Pty Ltd & Anor
JUDGMENT: On notice of motion for permanent stay of proceedings

HER HONOUR: The issue for present determination is whether the parties have reached a binding agreement that ought to be enforced by the court as to the compromise of the proceedings. The defendants’ position is that they have; the plaintiff to the contrary.
The proceedings were commenced by statement of claim filed on 28 October 2005. The plaintiff claimed damages in defamation against two defendants. He alleged that, in the issue of 25 May 2005 of a newspaper called Vietluan, (which translates to “Vietnamese Herald”), and which is published in the Vietnamese language, the defendants published an article of and concerning him that conveyed a series of defamatory imputations. He sued the first defendant (Vietnamese Herald Pty Ltd) as the publisher of the newspaper; the second defendant (Nguyen The Khiet) as its editor. The statement of claim was filed on the plaintiff’s behalf by his solicitor, Ho Ledinh. A notice of appearance for the defendants was filed by Janice Vu and Associates, solicitors. That is, all parties were legally represented.
It is the defendants’ contention now that events that followed the filing and service of the statement of claim resulted in an agreement between the plaintiff and the defendants that the action would be compromised by way of the publication by the defendants of an apology; that this agreement constituted a binding contract; that the defendants have in fact performed their part of the bargain and published an apology in the agreed terms; and that, even if the apology is not (as is contended by the plaintiff) in precisely or sufficiently the terms agreed, that the agreement remains binding and can and will be performed. By notice of motion filed on 28 February 2006 they seek a permanent stay of the proceedings.
I now turn to record the relevant events. All documents to which I refer were originally in the Vietnamese language, and have been translated into English. There is only one, minor, (and, so far as I can see, immaterial) disagreement as to the accuracy of the translations.
On 29 December 2005 a Nguyen Hung Quoc sent, by email, a communication to the defendants and to the plaintiff. I will reproduce it in full:
“Dear Anh Dung and Kiet,
This afternoon, I’ve just had lunch with Mr Phan Van Giouong. We talked about his lawsuit against Vietluan. Some of the main points of our conversation were as follows:
Mr Giuong stated that he sued Vietluan because he felt his honour had been offended, not because he had any ill will towards Vietluan.
2)Mr Giuong is ready to drop his lawsuit if he receives a public apology published on Vietluan. (In my understanding this is the only condition that he demanded).
3)The content of that apology is as such: ‘Having published unproven information that hurt his reputation.’
4)The apology can be signed by either Tu Com [the author of the article] or Vietluan. Whoever signs it – the apology is to be published in the section: ‘Vui Buon Voi Ban Doc’, the column written by Tu Com.
As a friend of both sides, I reckon his request is logical, reasonable and beneficial for both sides. It will terminate a lawsuit that could last for a long time and consume a lot of money as well as time. (Lawyers are the only ones who will benefit from this case).
If Vietluan agrees, you can inform your lawyer to contact Mr Giuong’s lawyer in order to carry out the terminating process as soon as possible.
Wish Dung and Kiet a Happy New Year.
Regards,
Nguyen Hung Quoc”
The response to this was a communication by email directed to the plaintiff over the name of Anh Dung Le, who identified himself/herself as the Managing Director of Vietluan, on 30 December 2005. It was in the following terms:
“Dear Mr Giuong,
I am pleased to have received an email from Mr Nguyen Hung Quoc who shows his goodwill to help settle the conflict between you and Vietluan for what regrettably happened.
We agree with the suggestion to drop the lawsuit and Tu Com will publish his apology in Vietluan.
The content of the apology will be sent to you after lawyers of both sides have contacted each other to carry out the terminating process.
We are waiting for your opinion.
Regards,
Anh Dung Le
Managing Director of Vietluan”
The plaintiff responded to that on 2 January 2006, in the following terms:
“Dear Anh Dung
I agree with your and Mr Nguyen Hung Quoc’s proposal. It is a good, fair and reasonable solution.
Your lawyer needs to contact my lawyer in order to resolve the legal procedure.
I wish you all the best.
Phan Van Giuong”
On 12 January 2006 the defendants’ solicitors wrote a “without prejudice” letter to the plaintiff’s solicitors. This letter was relevantly in the following terms:
“We understand that the Plaintiff and Defendants have now come to an agreement on the above matter without admission as to liability and to costs as follows.
1.Without admission as to liability and costs by either Plaintiff or Defendants
(a) The Plaintiff agrees to discontinue the Claim the subject of these proceedings against the Defendants
(b) The Defendants agree to publish in the Viet Luan newspaper under the Section ‘Vui Buon’ an apology to Giuong Van Phan in respect to the article complained about in the following wording:
‘In the publication titled ‘Tien Thay bo..Lo’ published on 25 March 2005, the writer apologises to Mr Phan Van Giuong for all and any suffering and damages caused as a result of incorrect information published. The writer sincerely regrets this publication and sincerely apologises. Tu Com.’
(c) Each party to pay their own legal costs and any other associated costs for proceedings
Kindly confirm if the Plaintiff agrees upon the above matters so that settlement and discontinuance documents can be prepared and filed. If you have any queries kindly contact Janice Vu direct.”
On 19 January 2006 the plaintiff’s lawyers replied in the following terms:
“We refer to your letter of 12 January 2006 and hereby advise that your proposed offer to settle these proceedings is rejected. Not only is the suggested apology inadequate but we are not prepared to recommend settlement unless our client receives a reasonable amount in damages and our reasonable legal cost (sic) are paid.
In this regard we should point out that the amount of damages and legal costs would be comparatively modest at this stage of the proceedings. However, if the matter proceeds to its conclusion Professor Phan could receive damages in excess of $200,000 and it is anticipated his legal costs could exceed $400,000.
Would you please note there should be no direct communication between the parties. Any communications about this matter should be between the respective solicitors.”
Also on 19 January Le Anh Dung wrote to the plaintiff in the following terms:
“Dear Brother Giuong
We are very surprise (sic) in receiving a letter from your solicitor, Mr Le Dinh Ho dated 19.1.2006 in which Solicitor Ho asked the Viet Herald to pay you the damages as well as to pay the legal costs. We do not know whether before solicitor Ho has consulted you before mailing that letter to us or not. This request is clearly against with what we have agreed during the past weeks through Mr Nguyen Hung Quoc.
We agreed that: The Viet Herald request the author, Tu Com, publicly apologise you on the Viet Herald. In his email sent to you and the Viet Herald dated 29.12.05, Mr Nguyen Gung Quoc emphasised: According to him that is only condition to this agreement. In your email sent to us on 2 Jan 2006 you also agreed that it is a good and reasonable solution, and did not ask for any other condition.
For that reason, we tried to convince the author, Tu Com, to apologise you. We considered it is only a refraining for the purpose of avoiding the prolonged unnecessary litigation and conflict. It does not mean we agree that it is our fault. Moreover, we want to emphasise that: If a draft of this apology were used in evidence against the Viet Herald before the court of law, we would consider such action as a deceiving.
We want to reconfirm the condition of agreement that: we only accept to apologise publicly in the Viet Herald. We are not going to accept any additional condition.
We look forward to receiving your opinion.”
There was further correspondence, but it amounted largely to a dispute about whether the correspondence I have set out above amounted to an agreement to settle the matter between the parties.
On 17 February 2006 an apology appeared in both English and Vietnamese in the newspaper. The English version reads:
“This newspaper, in the section Vui Buon Voi Ban Doc, on 25 March 2005 published an article containing unproven information that hurt the reputation of Mr Phan Van Giuong. The writer, Tu Com, and this newspaper, apologies (sic) to Mr Phan Van Giuong and his family for the publication of this article.
Tu Com”
The competing positions of the parties can be simply put. On behalf of the plaintiff it was contended, for the purpose of establishing that a binding contract had come into existence, that an offer was constituted by the communication of Anh Dung Le of 30 December 2005, incorporating the communication of Nguyen Hung Quoc on 29 December 2005. Acceptance was constituted by the plaintiff’s response of 2 January 2006; an intention to create legal relations could readily be inferred.
It is not essential to the defendants’ argument that the publication of the apology on 17 February constituted performance of the agreement. If it were the case that the agreement existed, but was not fully performed by the publication of the apology in those terms, it remains open to the defendants to perform their part of the agreement.
On behalf of the plaintiff it was contended that the references to involving the lawyers in the communications of 30 December and 2 January are an indication that what the parties between themselves had agreed upon was only tentative, and subject to the advice of, and confirmation by, their lawyers; that the communication amounted to a process of negotiation, but no more, and certainly not finalisation of an agreement; and, further, that the 17 February apology could not amount to performance because of the use of the word “unproven” in place of “incorrect”, the word which appears in the letter of the defendants’ solicitor of 12 January.
This last argument lost much of its force when the plaintiff gave evidence. He agreed that the Vietnamese words which appear in the originals of the documents can be translated either as “unproven” or “incorrect”. In any case, the word “incorrect” appears in correspondence that post-dates what is said to be the agreement, and was introduced by the defendants’ solicitor at a time after which the defendants argue the agreement was made. If the defendants’ position is correct, agreement had already been reached by the time that letter was written.
The plaintiff may also have argued that the fact that the parties were represented by lawyers was an indication that they were not themselves intending to enter into legal relations and I have given consideration to whether that circumstance has any bearing on the present determination. I have concluded that it does not. Such a position would, in my view, be inconsistent with what the parties were doing. Plainly, all parties wanted to bring the proceedings to a speedy (and cost-effective) end, and to do so by by-passing the lawyers, and avoiding unnecessary expenditure.
I have wavered in relation to the questions involved. However, I have come to the view that the references to lawyers in the early correspondence do not have the effect for which the plaintiff contends. In each case the role of the lawyers is expressed in terms of completing the legal formalities: in the defendants’ letter:
“to carry out the terminating process”,
and in the plaintiff’s:
“... to resolve the legal procedure”.
Neither of these expressly reserves any role to the solicitors other than a formal one, or for any purpose other than the mechanics of bringing to an end the legal proceedings; and neither does so implicitly.
In my opinion the plaintiff did not, at the time he agreed to the apology, contemplate questions of damages or costs. He did not appear to envisage the need to receive legal advice.
I have not found this matter free from difficulty, but I am comfortably satisfied that the defendants’ position is correct and the parties have reached a binding agreement.
Accordingly, I order that the proceedings be permanently stayed. The plaintiff must pay the defendants’ costs.

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LAST UPDATED: 10/04/2006