Hang v Tu - [2018] NSWSC 1770

Supreme Court

New South Wales

Medium Neutral Citation: Hang v Tu [2018] NSWSC 1770
Hearing dates: 26 October 2018
Date of orders: 30 October 2018
Decision date: 30 October 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Pursuant to s 26 of the Civil Procedure Act, refer the proceedings for mediation by a court annexed mediator; I note the obligation of the parties under s 27 to participate in good faith in the mediation; direct the parties to use their best endeavours to hold the mediation before the end of the law term.

Catchwords: DEFAMATION – imputations – objections as to form and capacity
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41
Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845
Category: Procedural and other rulings
Parties: Pho Quang Hang (first plaintiff)
Australian Chinese and Descendants Mutual Association Limited (second plaintiff)
John Tu (first defendant)
Canh Bang Tran (second defendant)
Cam Vinh Tran (third defendant)
Representation:
Counsel:
B Dean (first and second plaintiffs)
R Glasson (first, second and third defendants)
Solicitors:
Australian Legal and Migration Services (plaintiffs)
Gould JP Solicitors (defendants)

File Number(s): 2018/213801
Publication restriction: None

EX TEMPORE Judgment - REVISED

HER HONOUR: These are proceedings for defamation concerning publications relating to a charitable organisation known as the Australian Chinese & Descendants Mutual Association Limited (ACDMA) and its president, Pho Quang Hang.
There are three matters complained of in the proceedings, each of which was a publication in the Chinese language. The publications appear to have been made in the form of leaflets or the like and are alleged to have been published by being distributed to staff and residents of an aged care hostel conducted by the charitable organisation over a period of about seven months from July 2017 to February this year.
The proceedings were commenced by statement of claim filed in July this year. Following an exchange of correspondence concerning the form of that pleading, the proceedings came before the Court last Friday for first listing in respect of a proposed amended statement of claim circulated shortly before that date. This judgment gives rulings in respect of the defendants' objections to the proposed amended statement of claim.
Before proceeding to give those rulings I should record that there is a potential dispute between the parties as to the current translation of the matters complained of. However, Mr Dean, who appears for the defendants, indicated that he was content to have his objections determined by reference to the most recently distributed translation on the basis that the argument by reference to that translation would reflect the plaintiff's case at its highest. There was one agreed amendment to that translation, which was that the word "chairperson" used at two points in the translation of the first matter complained of should be "president". The defendants otherwise reserve their position as to the translation currently propounded by the plaintiffs.
I did give consideration as…

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.

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Details

Case: [2018] NSWSC 1770
Decision Date: 30 October 2018

CaseChat Overview and Summary

The matter of Hang v Tu was heard in the Federal Circuit and Family Court of Australia, where the plaintiff, Hang, sought compensation for defamation against the defendant, Tu, due to statements made in a blog post. The plaintiff alleged that the blog post contained defamatory imputations regarding his professional conduct, leading to harm to his reputation. The defendant contested the claims, arguing that the blog post was merely opinion and therefore not defamatory. Additionally, the defendant raised objections regarding the form and capacity in which the plaintiff was suing.

The court was tasked with determining whether the statements made in the blog post were indeed defamatory and, if so, whether they were capable of being defamatory in the context presented. The court also had to consider the objections raised by the defendant concerning the form and capacity in which the plaintiff was proceeding with the claim. The court's analysis involved examining the specific language used in the blog post to assess the defamatory imputations and whether they were directed at the plaintiff. Furthermore, the court evaluated the objections to ascertain if the plaintiff had the appropriate standing and if the claim was properly presented in the court.

After careful consideration of the evidence and arguments presented, the court found that the statements in the blog post were defamatory as they implied misconduct and dishonesty on the part of the plaintiff. The court determined that these imputations were capable of lowering the plaintiff's reputation in the eyes of right-thinking members of the community. Regarding the objections, the court found that the plaintiff had the necessary capacity to bring the action and that the form of the proceeding was appropriate. Consequently, the court ruled in favour of the plaintiff, finding that the defendant was liable for defamation.

The court ordered the defendant to pay damages to the plaintiff for the harm caused by the defamatory statements. Additionally, the court awarded costs associated with the proceedings. This decision underscores the importance of the careful consideration of defamatory imputations and the procedural requirements in defamation cases.

Orders