Ha v Kang

[2015] NSWDC 211

District Court

New South Wales

Medium Neutral Citation:	Ha v Kang [2015] NSWDC 211
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, the plaintiff to replead imputation 6(b) as an imputation of “reasonable suspicion” (Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669). (3) Pursuant to UCPR r 14.28, grant leave to the plaintiff to replead imputations 6(c) and 6(d). (4) Plaintiff pay defendant’s costs. (5) Plaintiff’s amended statement of claim in 7 days. (6) Defence 21 days thereafter. (7) Matter stood over for further directions to Thursday 8 October 2015.
Catchwords:	TORT – defamation – form of imputations – matter complained of a slander – capacity of imputations to be determined at the trial
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 28.3
Cases Cited:	Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
Category:	Procedural and other rulings
Parties:	Plaintiff: Jim Jeeu Ha Defendant: Dae Won Kang
Representation:	Counsel: Plaintiff: Mr M K Rollinson Defendant: Mr M Richardson Solicitors: Plaintiff: Teddington Legal Defendant: Hayashi & Hong Lawyers
File Number(s):	2015/118388
Publication restriction:	None

Judgment

1. This is an application pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for rulings in relation to the form of imputations of a slander alleged to have been published on or about 7 February 2015. The imputations pleaded are as follows (paragraph 6 of the statement of claim):

1. The plaintiff took part in an assault on Kiu Nam Cho.

2. The Police have alleged on reasonable grounds that the plaintiff took part in an assault on Kiu Nam Cho.

3. But for a lack of evidence, the Police would have prosecuted the plaintiff for assault.

4. Sooner or later the Police will prosecute the plaintiff for assault.

2. As this is a slander, the parties have agreed that it is inappropriate for there to be a separate trial on capacity pursuant to r 28.3 UCPR and that these issues should await the trial.

3. The plaintiff brings an application pursuant to r 14.28 challenging the form of imputations 6(b), 6(c) and 6(d). These are my reasons for rulings on 10 September 2015.

Imputation 6(b)

4. Mr Richardson submits that the form of the imputation does not accurately capture the sting of the plaintiff being suspected by the police on reasonable grounds of having taken part in the assault. Not only does the form of the imputation failed to specify an act or condition of the plaintiff, but it is capable, Mr Richardson submits, of equally suggesting guilt, as well as suspicion.

5. The manner in which an imputation of being reasonably suspected by the police of having committed a crime should be framed is set out in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671 (per Hutley JA) and 678 (per Glass JA). As Glass JA at 678G to 679B, where the imputation is intended to convey not merely that the police suspicion is reasonably based but that the charge itself is well founded, that is a very different imputation from one of reasonable suspicion.

6. Imputation 6(b) is struck out with leave to replead.

Imputation 6(c)

7. Mr Richardson submits that the sting of imputation 6(c) is that it is only the current lack of evidence (as opposed to absence of reasonable grounds) that has so far prevented the plaintiff from being prosecuted. It amounts to a statement that there is no evidence on which to prosecute the plaintiff for assault and accordingly does not convey an act or condition about the plaintiff with sufficient precision to convey a defamatory sting.

8. Mr Rollinson, in his short written submissions, agreed that the imputation in its current form was intended to convey that lack of evidence was the reason for the plaintiff not being charged with the offence. What, however, is the defamatory sting arising from this imputation?

9. Mr Rollinson stated that the imputation was intended to convey that it was only thanks to chance or good luck that the evidence in question was not available, and that the plaintiff’s days of freedom were numbered. If so, an imputation pleading that act or condition should be formulated with precision. In its current form, the imputation simply fails to capture the meaning for which he is searching.

10. Imputation 6(c) is struck out with leave to replead.

Imputation 6(d)

11. The plaintiff’s failure to formulate an act or condition in relation to this imputation is compounded by its close similarity to imputation 6(c).

12. Mr Rollinson submitted that the defamatory sting was intended to be that the defendant had requested that the police reinvestigate the matter, and that the plaintiff was bound to be prosecuted sooner or later, adding that “the plaintiff has so conducted himself as to warrant the reasonable suspicion which exists”.

13. However, that is not clear in the current form of the imputation, which must specify an act or condition, differentiate between suspicion and guilt, and differ from the other imputations pleaded. Accordingly, this imputation is struck out with leave to replead.

Costs and other issues

14. The defendant had been successful in this application and the plaintiff should pay the defendant’s costs. I note the parties have agreed to defer the issue of capacity to the trial. The words spoken, including the tone of voice, any relevant body language and the context in which the words are spoken will be issues which will be the subject of evidence at the trial. In those circumstances, the decision of the parties to defer those issues to the trial is a sound one, and I note that the rulings on the form of the imputations set out above do not in any way touch upon the issue of capacity.

Orders

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, the plaintiff to replead imputation 6(b) as an imputation of “reasonable suspicion” (Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669).

3. Pursuant to UCPR r 14.28, grant leave to the plaintiff to replead imputations 6(c) and 6(d).

4. Plaintiff pay defendant’s costs.

5. Plaintiff’s amended statement of claim in 7 days.

6. Defence 21 days thereafter.

7. Matter stood over for further directions to Thursday 8 October 2015

**********

Decision last updated: 23 September 2015