Ha v Cho (No. 2)

[2015] NSWDC 210

District Court

New South Wales

Medium Neutral Citation:	Ha v Cho (No. 2) [2015] NSWDC 210
Hearing dates:	10 September 2015
Date of orders:	10 September 2015
Decision date:	10 September 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Note the parties’ agreement that issues of capacity are reserved to the trial, as these are proceedings for slander. (2) Pursuant to UCPR r 14.28, imputation (b) be repleaded as a fall-back to imputation (a). (3) Plaintiff pay defendants’ costs. (4) Plaintiff’s amended statement of claim in 7 days. (5) Defences 21 days thereafter. (6) Matter stood over for further directions to Thursday 8 October 2015.
Catchwords:	TORT – defamation – slander – form of imputations –fall-back imputations
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] QSC 196 Ha v Cho [2015] NSWDC 169 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 Provost v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, Levine J, 18 September 1998)
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. These are proceedings for defamation, in which the form of the matter complained of had already been the subject of a ruling: Ha v Cho [2015] NSWDC 169. This judgment contains short reasons for the orders I made on 10 September 2015 concerning the pleading of imputation (b) as a fall-back to imputation (a).

2. The imputations the subject of this ruling are:

1. The plaintiff took part in an assault on the first defendant.

2. The plaintiff helped Horim Song to assault the first defendant.

3. The parties agree that the question at the hearing will be whether the words spoken conveyed imputation (a), namely that the plaintiff took part in an assault, or the lesser imputation (imputation (b)), namely that he helped Mr Song to assault the first defendant without actually taking part in that assault. The question is the form in which those imputations should go before the tribunal of fact. Should the plaintiff be forced to choose between the two imputations, or to plead imputation (b) (which is agreed to be of lesser seriousness) as a “fall-back” to imputation (a)?

4. The circumstances in which a party may plead “fall-back” imputations of lesser seriousness is set out in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [75]-[81], [88] and [132] per Hunt AJA. Santow JA stated at [7]:

“Finally, I agree generally with the observations of Hunt AJA on…