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Hang v Nguy (No. 2)

Hang v Nguy (No. 2)

Case [2018] NSWDC 373 6 December 2018

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District Court

New South Wales

Medium Neutral Citation: Hang v Nguy (No. 2) [2018] NSWDC 373
Hearing dates: 3 December 2018
Date of orders: 06 December 2018
Decision date: 06 December 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s application to set aside the Notice of Intention to Elect Trial by Jury in Defamation Proceedings filed on 12 September 2018 and to dispense with a jury dismissed.
(2) Plaintiff pay defendants’ costs, with liberty to apply.

Catchwords: TORT – defamation – plaintiff brings proceedings against 18 members of a Buddhist temple organisation for publications in English and traditional Chinese – extent of publication limited – defences include justification, contextual truth and qualified privilege – defendant files Notice of Intention to Elect Trial by Jury – plaintiff brings application pursuant to s 21 Defamation Act 2005 (NSW) to dispense with trial by jury – whether factors such as documents in a foreign language, witnesses giving evidence through an interpreter, expert evidence on financial fraud and/or the large number of defendants and of potential witnesses warrant dispensing with trial by jury – application dismissed with costs
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62
Crimes Act 1900 (NSW), ss 192E, 192G and 192H
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW), ss 21, 30
District Court Act 1973 (NSW), s 76B
Supreme Court Act 1970 (NSW), s 86
Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 47.02
Trade Practices Act 1974 (Cth), s 65A
Cases Cited: Ange v Fairfax Media Pty Ltd [2010] NSWSC 1383
Bond v Barry [2008] FCAFC 115
Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315
Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379
David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667
Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79
French v The Herald and Weekly Times Pty Ltd [2010] VSC 127
Goldsworthy v Seven Network Limited [2013] NSWSC 344
Kencian v Watney [2015] QCA 212
Mallik v McGeown [2008] NSWSC 129
NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19
Rayney v Western Australia (No 7) [2016] WASC 288
Setka v Abbott (2014) 44 VR 352
Trantum v McDowell [2007] NSWCA 138
Wagner v Harbour Radio Pty Ltd [2017] QSC 222
Watney v Kencian & Anor [2018] QDC 135
Watney v Kencian & Anor [2018] 1 Qd R 407
Wing v The Australian Broadcasting Corporation [2018] FCA 1340
Category: Procedural and other rulings
Parties: Plaintiff: Phu Tho Hang
First Defendant: David Nguy
Second Defendant: Minh Mai Lam
Third Defendant: Lai Van Tran
Fourth Defendant: Wai Leung Fong
Fifth Defendant: Michael Chen
Sixth Defendant: Trung Hong
Eighth Defendant: Quang Thanh Dang
Ninth Defendant: Sung Boy Heng
Tenth Defendant: Fom Sau Tan
Eleventh Defendant: Thu Xiem Tran
Twelve Defendant: Huynh Tran
Thirteenth Defendant: Kien Tran
Fifteenth Defendant: Minh Le Lam

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hang v Nguy (No. 2)

Details

AGLC: Hang v Nguy (No. 2) [2018] NSWDC 373
Case: [2018] NSWDC 373
Decision Date: 06 December 2018

CaseChat Overview and Summary

In the matter of Hang v Nguy (No. 2), the plaintiff brought proceedings against 18 members of a Buddhist temple organisation, alleging defamation from publications in English and traditional Chinese. The defendants filed a Notice of Intention to Elect Trial by Jury, and the plaintiff subsequently applied to the court to dispense with a jury, citing difficulties such as documents in a foreign language, witnesses giving evidence through an interpreter, expert evidence on financial fraud, and the large number of defendants and potential witnesses. The court was required to decide whether these factors warranted dispensing with a jury under s 21 of the Defamation Act 2005 (NSW).

The court found that while the presence of foreign language documents, interpreters, expert evidence, and the number of defendants and witnesses could present challenges, these factors alone did not justify dispensing with a jury. The court considered that a jury, properly directed, could manage these issues effectively. The court emphasised that the right to trial by jury is a fundamental procedural right, and that the decision to dispense with a jury should only be exercised in exceptional circumstances. Consequently, the plaintiff's application to dispense with a jury was dismissed.

The court ordered that the plaintiff’s application to set aside the Notice of Intention to Elect Trial by Jury and to dispense with a jury was dismissed. Additionally, the court ordered that the plaintiff pay the defendants' costs, with liberty to apply. This decision underscores the importance of the right to trial by jury and the high threshold required to dispense with it, even in complex cases with numerous defendants and potential witnesses.

Orders

Orders of the court

(1) Plaintiff’s application to set aside the Notice of Intention to Elect Trial by Jury in Defamation Proceedings filed on 12 September 2018 and to dispense with a jury dismissed.

(2) Plaintiff pay defendants’ costs, with liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hang v Nguy (No. 2) [2018] NSWDC 373

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 23 of 23 shown

Wing v The Australian Broadcasting Corporation
[2018] FCA 1340 Para 37

…rred to in proceedings brought by a New South Wales resident for defamation in the Federal Court ( Wing v The Australian Broadcasting Corporation [2018] FCA 1340) where defences of this kind were pleaded and were struck out, not because of these disputed views, but because particularisation was inadequate.…
Daunt Watney v Kencian
[2018] QDC 135 Para 35

…on appeal after the jury found for the defendants. However, on the retrial, the second jury also found for the defendants ( Watney v Kencian & Anor [2018] QDC 135), so perhaps the first jury was right after all.…
Wagner v Harbour Radio Pty Ltd
[2017] QSC 222 Para 1

…l Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [42] (McColl JA, Giles JA and Handley AJA agreeing); Wagner v Harbour Radio Pty Ltd [2017] QSC 222 at [7] (Applegarth J).…
Perera v Genworth Financial Mortgage Insurance Pty Ltd
[2017] NSWCA 19 Para 12

…hen it is invoked, unless a judge decides to the contrary. Mr Dibb noted that Leeming JA, in Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19, noted the power of this presumption, even where other causes of action such as negligence (for which no such presumption is pleaded) would also have t…
Rayney v The State of Western Australia [No 7]
[2016] WASC 288 Para 2

…( Channel Seven Sydney Pty Ltd v Fierravanti-Wells at [43]; Ange v Fairfax Media Pty Ltd [2010] NSWSC 1383 at [28]; Rayney v Western Australia (No 7) [2016] WASC 288 at [7]). The discretion must be exercised judicially and in accordance with the objects of the Act.…
Chel v Fairfax Media Publications Pty Ltd (No 2)
[2015] NSWCA 379 Para 21

…td v Fierravanti-Wells) or even by the party which lodged the requisition having a change of heart ( Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379, refusing to follow Kencian v Watney [2015] QCA 212). That right, a feature of uniform legislation created under an inter-governmental agreement, is…
Kencian v Watney
[2015] QCA 212 Para 21

…ged the requisition having a change of heart ( Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379, refusing to follow Kencian v Watney [2015] QCA 212). That right, a feature of uniform legislation created under an inter-governmental agreement, is contained in s 21 rather than in the procedural mech…
Fairfax Media Publications Pty Ltd v Bateman
[2015] NSWCA 154 Para 37

…members of the judiciary. For example, New South Wales no longer recognises the Hore-Lacy defence ( Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79, whereas Victoria continues to do so ( Setka v Abbott (2014) 44 VR 352). To add to the confusion, the Federal Court appears unaware of the debate at all,…
Setka v Abbott
[2014] VSCA 287 Para 37

…ses the Hore-Lacy defence ( Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79, whereas Victoria continues to do so ( Setka v Abbott (2014) 44 VR 352). To add to the confusion, the Federal Court appears unaware of the debate at all, in that neither of these conflicting decisions was referred to in proc…
Goldsworthy v Seven Network Limited
[2013] NSWSC 344 Para 5

…the nature of the burden upon the jury in examining those records: see the abovementioned decisions and also Goldsworthy v Seven Network Limited [2013] NSWSC 344 at [38(d)].…
Channel Seven Sydney Pty Ltd v Fierravanti-Wells
[2011] NSWCA 246 Para 1

…ss 21(1) and 21(3) of the Act empower the Court to dispense with a jury in defamation proceedings ( Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [42] (McColl JA, Giles JA and Handley AJA agreeing); Wagner v Harbour Radio Pty Ltd [2017] QSC 222 at [7] (Applegarth J).…
Con Ange v Fairfax Media Publications Pty Ltd
[2010] NSWSC 1383 Para 2

…s the Court an unfettered discretion to dispense with a jury ( Channel Seven Sydney Pty Ltd v Fierravanti-Wells at [43]; Ange v Fairfax Media Pty Ltd [2010] NSWSC 1383 at [28]; Rayney v Western Australia (No 7) [2016] WASC 288 at [7]). The discretion must be exercised judicially and in accordance with the objects of…
French v The Herald and Weekly Times Pty Limited
[2010] VSC 127 Para 33

…d the “complexity” argument to the evidence of the defence of contextual justification, relying upon French v The Herald and Weekly Times Pty Ltd [2010] VSC 127, where Beach J allowed an application to dispense with the jury on the second day of the trial, after an application to amend the defence on the second d…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27

…ccepted aspect of the system of civil justice administered by courts in Australia: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [92]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, those powers operate in the context that a party has the right t…
Bond v Barry
[2008] FCAFC 115 Para 29

…es Act 1974 (Cth) for misleading or deceptive conduct (defeated by the enactment of s 65A as a “media safe harbour defence”: see Bond v Barry [2008] FCAFC 115 at [1]), and so-called economic torts (D Goodwin, “Lawyers, Gunns and Money: An Australian perspective on environmental claims and the economic torts” (2016)…
Mallik v McGeown
[2008] NSWSC 129 Para 6

…)(b) (“technical, scientific or other issue”), the test is whether the relevant issue/s cannot be conveniently tried by a jury ( Mallik v McGeown [2008] NSWSC 129). “Conveniently”, in this context, means convenient for the effective and efficient administration of justice or without substantial difficulty in compar…
Trantum v McDowell
[2007] NSWCA 138 Para 1

…ed of. The extent of publication is limited to publication between the defendants only (which may still amount to publication: see Trantum v McDowell [2007] NSWCA 138).…
Ferdinands v Commissioner for Public Employment
[2006] HCA 5

…of the 2005 Act should operate: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [18]) per Gummow and Hayne JJ. Their operation can be reconciled by deducing a legislative intention that the general powers…
Western Australian Planning Commission v Temwood Holdings Pty Ltd
[2004] HCA 63

…erally Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (at 440 - 441); Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (at [31]) per McHugh J; Pambula (at 412) per Samuels JA.”…
David Syme & Co Ltd v Hore-Lacy
[2000] VSCA 24 Para 37

…That is not to say that contextual justification and Polly Peck (or “ Hore-Lacy ”: David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667) pleas are not complex; they certainly are for members of the judiciary. For example, New South Wales no longer recognises the Hore-Lacy defence ( Fairfax Media Publications Pty Ltd v…
Esber v the Commonwealth
[1992] HCA 20

…itlement to elect for the proceedings to be tried by a jury, they had a vested or accrued substantive right: see generally Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (at 440 - 441); Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (at [31]) per Mc…
Clyne v New South Wales Bar Association
[1960] HCA 40

…he issue would not need to be presented, as contended by Mr Neil, as one involving considerations of Clyne v NSW Bar Association [1960] 104 CLR 186. It would be enough to say that the advocate made a very serious allegation when he did not have a proper basis for doing so. The assessment of such questions is f…
Saraswati v The Queen
[1991] HCA 21

…issue of juries. It must be assumed that the legislature intended that both s 86 of the CP Act and s 21 of the 2005 Act should operate: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [18]) per Gummow and Ha…

Legislation cited in this decision · 8

Crimes Act 1900 (ACT)
192E, 192G, 192H 4 mentions (from Para 5)
Defamation Act 2005 (TAS)
21, 30 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 21)
Defamation Act 1974 (NSW)
7A 2 mentions (from Para 14)
District Court Act 1973 (NSW)
76B 2 mentions (from Para 14)
Supreme Court (General Civil Procedure) Rules 2005 (Vic)
47.02 2 mentions (from Para 34)
Supreme Court Act 1970 (NSW)
86 2 mentions (from Para 14)
Trade Practices Act 1974 (Cth)
65A 2 mentions (from Para 29)

Medium Neutral Citation:	Hang v Nguy (No. 2) [2018] NSWDC 373
Hearing dates:	3 December 2018
Date of orders:	06 December 2018
Decision date:	06 December 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application to set aside the Notice of Intention to Elect Trial by Jury in Defamation Proceedings filed on 12 September 2018 and to dispense with a jury dismissed. (2) Plaintiff pay defendants’ costs, with liberty to apply.
Catchwords:	TORT – defamation – plaintiff brings proceedings against 18 members of a Buddhist temple organisation for publications in English and traditional Chinese – extent of publication limited – defences include justification, contextual truth and qualified privilege – defendant files Notice of Intention to Elect Trial by Jury – plaintiff brings application pursuant to s 21 Defamation Act 2005 (NSW) to dispense with trial by jury – whether factors such as documents in a foreign language, witnesses giving evidence through an interpreter, expert evidence on financial fraud and/or the large number of defendants and of potential witnesses warrant dispensing with trial by jury – application dismissed with costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Crimes Act 1900 (NSW), ss 192E, 192G and 192H Defamation Act 1974 (NSW), s 7A Defamation Act 2005 (NSW), ss 21, 30 District Court Act 1973 (NSW), s 76B Supreme Court Act 1970 (NSW), s 86 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 47.02 Trade Practices Act 1974 (Cth), s 65A
Cases Cited:	Ange v Fairfax Media Pty Ltd [2010] NSWSC 1383 Bond v Barry [2008] FCAFC 115 Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79 French v The Herald and Weekly Times Pty Ltd [2010] VSC 127 Goldsworthy v Seven Network Limited [2013] NSWSC 344 Kencian v Watney [2015] QCA 212 Mallik v McGeown [2008] NSWSC 129 NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Rayney v Western Australia (No 7) [2016] WASC 288 Setka v Abbott (2014) 44 VR 352 Trantum v McDowell [2007] NSWCA 138 Wagner v Harbour Radio Pty Ltd [2017] QSC 222 Watney v Kencian & Anor [2018] QDC 135 Watney v Kencian & Anor [2018] 1 Qd R 407 Wing v The Australian Broadcasting Corporation [2018] FCA 1340
Category:	Procedural and other rulings
Parties:	Plaintiff: Phu Tho Hang First Defendant: David Nguy Second Defendant: Minh Mai Lam Third Defendant: Lai Van Tran Fourth Defendant: Wai Leung Fong Fifth Defendant: Michael Chen Sixth Defendant: Trung Hong Eighth Defendant: Quang Thanh Dang Ninth Defendant: Sung Boy Heng Tenth Defendant: Fom Sau Tan Eleventh Defendant: Thu Xiem Tran Twelve Defendant: Huynh Tran Thirteenth Defendant: Kien Tran Fifteenth Defendant: Minh Le Lam