Ha v Cho

[2015] NSWDC 169

District Court

New South Wales

Medium Neutral Citation:

Ha v Cho [2015] NSWDC 169

Hearing dates:

13 August 2015

Date of orders:

13 August 2015

Decision date:

13 August 2015

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Statement of Claim struck out with leave to replead.

(2) Matter stood over to the Defamation List on Thursday 17 September 2015 at 9:00am (imputations argument).

(3) Costs of the imputation argument are reserved.

(4) Grant leave to the plaintiff to file a Second Further Amended Statement of Claim in 14 days.

(5) Plaintiff to pay the first defendant’s costs of the application to strike out the statement of claim (including the prior applications) on an indemnity basis.

Catchwords:

TORT - defamation - nature and extent of liability for publication of statements to a journalist - claim against first defendant for publication of certain statements in their republished form in a newspaper article rather than for the words he spoke to the journalist - publication struck out with leave to replead

Cases Cited:

Bracks v Smyth-Kirk [2009] NSWCA 401
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Day v Harness Racing New South Wales [2015] NSWSC 836
De Jong v Victoria [2006] VSC 274
Hyprescon Inc v Ipex Inc [2007] OJ No. 1327
Kaiser v George Laurens (NSW) Pty Ltd [1980] 1 NSWLR 294
Sims v Wran [1984] 1 NSWLR 317
Zeccola v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1007

Texts Cited:

R Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (Carswell)

Category:

Procedural and other rulings

Parties:

Plaintiff: Jim Jeeu Ha
First Defendant: Kiu Nam Cho
Second Defendant: The Hoju Hankook Ilbo Pty Ltd
Third Defendant: Jik Soon Koh

Representation:

Counsel:
Plaintiff: Mr M K Rollinson
First Defendant: Mr M Richardson
Second and Third Defendants: Mr R Rasmussen

Solicitors:
Plaintiff: Teddington Legal
First Defendant: Hayashi & Hong Lawyers
Second and Third Defendants: M Legal

File Number(s):

2015/118393

Publication restriction:

None

Judgment

1. The plaintiff commenced proceedings against the defendant, Kiu Nam Cho, by statement of claim filed on 21 April 2015. The plaintiff claimed that the defendant “caused to be published” two articles in the Korean Times Australia and in Topnews . The matters complained of consisted only of two sentences published in the first newspaper article and four sentences published in the second article.

2. As the defendant was not sued for what he said to the journalist, but for two sentences plucked out from a longer interview, the plaintiff was granted leave to amend. The amended statement of claim, instead of pleading the slander published by the defendant to each of these newspapers, relied upon the whole of the newspaper publications, in circumstances where the defendant was asserted to be liable for the whole of both publications, in circumstances where it is clear both newspapers interviewed a series of persons in an attempt to portray both sides of the story. Counsel for the plaintiff acknowledged the force of the line of authority set out by McCallum J in Zeccola v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1007 and a third amended pleading was then served.

3. The current statement of claim, which supersedes two earlier versions, was filed on 30 June 2015 and repeats the errors of the first two versions, in that all that is done is to identify (by line references) extracts from the first and second publications for which it is asserted the defendant (hereafter referred to as “the first defendant”, as the publishers of the first matter complained of have also been joined). In the course of argument, Mr Rollinson, for the plaintiff, has explained that the claim is not for the publication of the slander by the defendant to the journalist, but for liability for those parts of that conversation that the journalist elected to place in the newspaper, and that this is the explanation for the artificiality of the disjointed statements upon which the plaintiff is sued. The issue before the court is whether the plaintiff is entitled to do so.

4. There is also an application before the court by the first defendant for the plaintiff to pay the costs thrown away by reason of these amendments, which followed careful explanations of the relevant principles in correspondence from the solicitors for the defendants, on an indemnity basis. Additionally, there is an application for costs in relation to the deferring of the argument as to the form and capacity of the imputations (joined in by the second and third defendants).

5. These are my reasons for my rulings on 13 August 2015. I shall first set out the current pleading by the plaintiff of his cause of action.

The pleading

6. Paragraphs 5 to 8 of the statement of claim are pleaded as follows:

“5. On or before 5 December 2014, the exact date being unknown to the Plaintiff, the First Defendant communicated to the Third Defendant, and/or to other employees or agents of the KTA, matter defamatory of the Plaintiff:

a. With the intention that the substance of the defamatory matter should be published in the KTA; and/or

b. In circumstances such that it was a natural and probable consequence that the substance of the matter should be published in the KTA.

The Plaintiff relies in particular on lines 4, 5, 7, 34, 36, 38-45, 47, 49-52, 54-57, 59, 60, and 62-70 of Article A. Further particulars will be given after discovery, interrogatories and issue of subpoenas.

6. The substance of the defamatory matter so communicated by the First Defendant was published by the Second Defendant and the Third Defendant in the KTA in Article ‘A’.

7. Article ‘A’ was so published to persons capable of reading and understanding the Korean language including the persons named Joseph Seo and Horim Song.

8. Article ‘A’ in its natural and ordinary meaning conveyed the following imputations of and concerning the Plaintiff, and defamatory of him:

a. The Plaintiff took part in an assault on the First Defendant.

b. The Plaintiff helped Horim Song to assault the First Defendant.

c. After assaulting the First Defendant, the Plaintiff ran away from the scene.

Particulars

The Plaintiff relies on the whole of Article A, but particularly lines 1-5, 24-28, 34-45, 49-50, 103-108, 114-124.”

7. The whole of the newspaper article then appears. As it is a long article, I shall not set it out in full, but it includes lengthy quotations from the plaintiff, the first defendant, the Mr Song referred to in imputation (b), a lawyer, members of the Korean community, “sports people” and eye witnesses to the assault. The journalist expresses opinions, such as that the Korean community has been “disgraced by the shameful incident” and that one of the parties must be giving a false account of events.

8. As to the second cause of action, paragraphs 9 to 12 of the statement of claim are pleaded as follows:

“9. On or about 13 February 2015, an article was published in the Korean language in Topnews, a newspaper published in both print and online formats and distributed throughout Australia by Top Media Group Pty Ltd (‘Topnews’). A copy of the article and of a translation into English are at annexure B (Article ‘B’).

10. On or before 13 February 2015, the exact date being unknown to the Plaintiff, the First Defendant communicated to Seung Hoon Lee, a reporter engaged by Topnews, and/or to other employees or agents of Topnews, matter defamatory of the Plaintiff:

a. With the intention that the substance of the defamatory matter should be published in the Topnews, and/or

b. In circumstances such that it was a natural and probable consequence that the matter should be published in the Topnews.

Particulars

The Plaintiff relies in particular on the fact that a general meeting of the Korean Sports Council was held on 7 February 2015; and that Article B purports to be a report of events at that meeting; and on the words reported as having been spoken at the meeting by the First Defendant at lines 74-82 of Article B. Further particulars will be given after discovery, interrogatories and issue of subpoenas.

11. The substance of the defamatory matter so communicated by the First Defendant was published in Topnews in Article B.

12. Article B was so published to persons capable of reading and understanding the Korean language including the persons named Joseph Seo and Horim Song.

13. Article B, in its natural and ordinary meaning conveyed the following imputations of and concerning the Plaintiff, and defamatory of him:

a. The Plaintiff took part in an assault on the First Defendant.

b. The Plaintiff was lying when he said that he did not take part in an assault on the First Defendant.

c. When the First Defendant had fallen to the ground covered in blood after being assaulted, the Plaintiff did nothing to care for him.

Particulars

The Plaintiff relies on the whole of Article B, but particularly lines 17-22, 43-48, 74-82.”

9. The second matter complained of is a similarly long description of statements made at a meeting (nearly all in first person). The description of the relevant lines is of little help. For example, lines 17 – 22 is a reference to the “violent incident” written by the journalist which does not refer to information supporting any of the imputations; lines 43 – 48 are part of a long statement attributed to Chairman Ha (the plaintiff, not the first defendant) about the assault; lines 74 – 82 contain a statement in response to Chairman Ha’s address, referring to the fact that on the occasion the plaintiff referred to, he (the first defendant, Mr Cho) had fallen to the floor covered in blood, following which “nobody” had cared for him (line 82). This is followed by an apology from Mr Song that such a regrettable incident occurred and, it would appear, the replacement of the plaintiff by a temporary chairman “to restore the Sports Council to normalcy” (lines 83 – 109), some of which appears to relate to the conveying of the imputations in circumstances where the words of the first defendant play no part.

The parties’ submissions

10. The plaintiff’s answer to these complaints is, firstly, that he is not bringing a claim based on what was said by the first defendant to the newspaper publishers, but for that portion of what was said which has been published in the newspaper.

11. Secondly, it is submitted that the plaintiff has provided enough information as to publication for a cause of action to be established and that is it is “therefore legitimate for him to reserve the right to supply further particulars after discovery, interrogatories and issue of subpoenas, should applications for any of these provide necessary: Kaiser v George Laurens (NSW) Pty Ltd [1980] 1 NSWLR 294. After the defendants have pleaded their defences, the plaintiff “may” bring such an application if so advised (written submissions, paragraph 6) but, as long as the plaintiff can establish the “gist” of such a publication having been made, that is all that the plaintiff is required to do.

12. Mr Richardson, for the first defendant, submits that the current form of the pleading suffers from the same vice of failing to separate the matter complained of which was published in the two newspapers from the information the first defendant provided to journalists employed by the newspapers as part of the information used to compile those newspaper reports. The difficulty remains, as was the case with earlier pleadings, that the primary publication (namely the slander published to the journalist) is not identified in its entirety, in haec verba. All that the plaintiff does is to identify some line numbers from the newspaper articles, which Mr Richardson submits is “not good enough”. The plaintiff must set out the words spoken to the journalist in order for the sense and substance of this publication to be clear, and for the relevant imputations to be identified. He can only plead the publication the plaintiff actually made to the journalist, and not some artificially constructed publication fashioned out of extracts from the matter complained of.

13. As to the issue of interrogatories as to publication, Mr Richardson submits that, in relation to the second, the plaintiff’s claim that he does not know what was said is particularly disingenuous, since he was present at the meeting (as its Chairman) when the words were spoken, and must have heard all that was said.

14. This brings me to a consideration of the relevant legal principles.

The relevant principles

15. The relevant principles for liability for publication are helpfully set out in Zeccola v Fairfax Media Publications Pty Ltd (No 3) at [11] – [19] as follows:

“[11]I turn then to the merit of the defendants’ application. It is helpful to begin with a consideration of some of the older authorities referred to in the well-known passage from the judgment of Isaacs J in Webb v Bloch in order to gain an understanding of precisely what principle that decision stands for. In 1846, in the English decision of R v Cooper (1846) 8 QB 533, it was said by Lord Denman CJ at 536:

If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as principal. He takes his chance of what is to be published.

[12]In that case, the parties held liable for a defamatory publication in a newspaper had expressly requested the editor of the newspaper to “shew K up” (at 533). The libel is reported (at 533) as having:

imputed that the myrmidons of the prosecutor had poisoned some foxes, in the country hunted over by the hounds of Sir W.M. Stanley and had hung their bodies up by the neck; and that the tenantry of Sir W. M. Stanley, by way of retaliation, had hung up effigies of the prosecutor and his brother, with foxes’ tails appended. Some comments were added, exhibiting the prosecutor in a ludicrous light with respect to those transactions.

[13]Critical to an understanding of the basis on which liability was attributed in that case is the fact that there was a specific request by the defendants to the journalist or editor to publish the libel, combined with the fact that the libel was substantially that which had been communicated to the editor by those persons.

[14]The next authority which warrants consideration is the decision of Parkes v Prescott (1869) LR. 4 EX 169. That was a case with some similarity to R v Cooper. In particular, two people had, at a meeting, expressly requested journalists to make a report of what was referred to as “this very scandalous case” concerning the plaintiff. The chairman of the meeting had called upon another participant of the meeting to tell the story and each had expressly invited the local press to take notice of the story, one saying, “I am glad gentlemen of the press are in the room and I hope they will take notice of it.” The other had responded, “And so do I” The report of the decision states that the reporters (journalists) had given evidence at the trial that what was published in the newspaper was “a correct summary of what took place” at the meeting.

[15]The trial judge directed the jury to enter a verdict for the defendants on the ground that there was insufficient evidence for their consideration of the publication of the libels by the two men who had attended the meeting. That was held by a majority of three to two to have been a misdirection, importantly in light of the following two considerations: first, the fact that there had been an express request at the meeting to publish the proceedings of the meeting relating to the plaintiff’s conduct; and secondly, the evidence of the journalists that the reports contained a correct account of the proceedings “as the defendants meant it should appear“.

[16]Webb v Bloch is the Australian decision frequently cited as stating the extent of liability for participation in the publication of a libel, and those authorities are referred to in that decision. It is common in this jurisdiction for parties to cite portions of the judgment of Isaacs J in Webb v Bloch at 364 as the point in the judgment at which the relevant principle is stated. Interestingly, one of the passage of his Honour’s judgment often cited is a quote from the report of Parkes v Prescott, but what is quoted is the argument of Giffard QC who, in turn, is quoting from the second edition of Starkie on Libel. In other words, one of the often-cited passages from Webb v Bloch is a passage from a text book cited in argument by Giffard QC in Parkes v Prescott.

[17]That passage states:

All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication : thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amendable for the act of publication when it has been so effected.

[18]The import of that discrete statement must be understood in the context of what Parkes v Prescott decided, and also with regard to what Webb v Bloch decided. Webb v Bloch was, again, a case of publication at the request of the defendants. The defendants had instructed a solicitor to prepare the circular which was ultimately sued on. It may be accepted, as argued by Mr Rasmussen in the present case, that in the case of some of the defendants ultimately held liable for the publication of the circular, they had not even seen it in its final form. The relevant facts are set out at 355 of the judgment of the Chief Justice as follows:

The draft circular was sent by Norman to the defendant Bloch, and, so far as appears from the evidence, he was the only person who saw it. On 16th February 1926 the defendant Bloch telegraphed to Norman : “Issue circulars best way you think advisable forward us some copies.” At a meeting of the Victorian Committee held on 22nd February Bloch reported what he had done with regard to the circular, and it was resolved that his action in instructing Norman to issue circulars be confirmed. At this time none of the defendants except Bloch had seen the circular or knew what it contained, but the defendant Crocker was supplied with a copy on the following day, and the defendant Pratt saw a copy on 23rd or 24th February 1926. It does not appear from the evidence that the defendant Murphy ever saw the circular.

[19]However, what is significant about the facts of Webb v Bloch is that each of the defendants was a member of a committee that had condoned or joined in the instruction to the solicitor Nolan to issue the circular. Upon analysis, it can readily be seen that each of the decisions in R v Cooper, Parkes v Prescott and Webb v Bloch is ultimately a decision turning on the principles of agency. What is critical to each case is the fact that there was a request to publish combined with the fact that what was ultimately published was either a correct account of what was requested to be published or was authorised without the defendants having or exercising the opportunity to confirm that it was a correct account.”

16. The first problem is the form of the pleading. Before a party can be fixed with liability for the publication (see, for example, De Jong v Victoria [2006] VSC 274), there must be certainty as to what the publication was. The current version of the statement of claim does not identify what the publication consists of beyond referring to lines in the newspaper articles, at least some of which are clearly wrong.

17. Where each republication of a defamatory statement is asserted to constitute a separate cause of action, each publication must be set out in a separate count in the pleading (Brown on Defamation, at 19-130. Where more than one defendant is sued, “it is not proper to lump them together without first identifying what each of them said” (Brown on Defamation, at 19-125, citing Hyprescon Inc v Ipex Inc [2007] OJ No. 1327). Where the statement made by one defendant is republished by another, and one or both are sued for that republication, the plaintiff must set out the specific language of the republication separately for each. In Sims v Wran [1984] 1 NSWLR 317 at 320, Hunt J stated that “if the plaintiff intends to complain separately of that republication, he must plead each such republication in haec verba as a separate paragraph of in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication”.

16. Hunt J’s statement has been referred to with approval by the NSW Court of Appeal in Bracks v Smyth-Kirk [2009] NSWCA 401 at [53]; see also Day v Harness Racing New South Wales [2015] NSWSC 836 at [14].

17. The plaintiff’s continued failure to set out precisely what the first defendant said is only the first problem. The second problem is that the plaintiff has a choice between pleading the words spoken to the journalist in circumstances where republication was the natural and probable consequence, or the newspaper article itself, or both. What the plaintiff cannot do is to construct, artificially, a matter complained of consisting only of those parts which the journalist decided to include in the newspaper article.

18. Precision as to what was said is important, particularly in relation to the second matter complained of, where it is clear that other imputations may arise from what the first defendant said at the meeting which, if the publication is set out in full, give rise to contextual imputations. Additionally, the parameters of other defences (including any claim of reply to attack) can only be established when the precise text of the matter complained of is pleaded.

19. Nor is it open to the plaintiff to plead only some part of the matter complained of on the basis that he can, after the defences are pleaded, revisit and embroider the text of the publication by use of the principles enunciated in Kaiser v George Laurens (NSW) Pty Ltd. A plaintiff who is in doubt as to what was said should bring such an application expeditiously, or run the risk of orders of the kind made in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288. Given the circumstances in which the plaintiff was present at the meeting about which the journalist was reporting, and in fact was its chairman, there would need to be compelling reasons for the granting of such an application.

20. Although Mr Richardson formally submitted that the whole claim should be struck out against his client, he acknowledged that it was “early days” to do so, and accordingly the plaintiff has been granted leave to replead. However, this will be the fourth amended statement, and liberty to replead may be more difficult to obtain if the next pleading does not set out the relevant publications sued upon in haec verba.

21. The plaintiff should also take into account, when repleading his claim, the objections raised in relation to the imputations pleaded, although whether these are to be amended as a result will be an issue for determination by the pleader.

Costs

24. Mr Richardson tendered correspondence in which his instructing solicitors had carefully and fairly set out the relevant principles of law. The first defendant’s representatives had previously raised these issues informally in court, in the expectation that a pleading in proper form would result. The solicitors for the plaintiff do not appear to have replied to these letters or to the discussion of the problem informally in court, beyond agreeing to ament, but the plaintiff’s pleading has barely been improved upon since the first of his solicitors’ three attempts.

25. While the power to award indemnity costs must be used sparingly, I am satisfied, from the very reasonable approach taken by the solicitors for the first defendant, that the delay caused to this litigation by the plaintiff’s series of defective pleadings is both considerable and unwarranted. Accordingly, an order for indemnity costs has been included in my orders. I have, however, reserved the costs of the imputations argument which could not take place today.

Orders

1. Statement of Claim struck out with leave to replead.

2. Matter stood over to the Defamation List on Thursday 17 September 2015 at 9:00am (imputations argument).

3. Costs of the imputation argument are reserved.

4. Grant leave to the plaintiff to file a Second Further Amended Statement of Claim in 14 days.

5. Plaintiff to pay the first defendant’s costs of the application to strike out the statement of claim (including the prior applications) on an indemnity basis.

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Decision last updated: 18 August 2015