Kang v Australian Broadcasting Corporation

[2015] NSWCA 375

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kang v Australian Broadcasting Corporation [2015] NSWCA 375
Hearing dates:	25 November 2015
Decision date:	25 November 2015
Before:	Basten JA; Bergin CJ in Eq
Decision:	(1)   Dismiss the summons filed on 3 September 2015 seeking leave to appeal from the judgment of McCallum J in the Common Law Division.  (2)   Order the applicants to pay the respondents’ costs of the application.
Catchwords:	APPEAL – application for leave to appeal – dismissal of proceedings – defamation proceedings dismissed at show cause hearing after plaintiff failed to file and serve amended statement of claim – application to call fresh evidence – whether proposed fresh evidence could have affected outcome – exercise of discretion – Civil Procedure Act 2005 (NSW), s 61 – whether issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 61, Pt 6 Federal Court of Australia Act 1976 (Cth), s 31A Limitation Act 1969 (NSW), ss 14B, 56A
Cases Cited:	Bi v Mourad [2010] NSWCA 17 Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Category:	Procedural and other rulings
Parties:	Edward Kang (First Applicant) Singapore Oil Pte Ltd (Second Applicant) Australian Broadcasting Corporation (First Respondent) Karl Konrad (Second Respondent)
Representation:	Counsel: Mr D C Price (Applicants) Mr A T S Dawson/Ms A Rao (Respondents)   Solicitors: Goldsmiths Lawyers (Applicants) Robert Ian Simpson, Australian Broadcasting Corporation (Respondents)
File Number(s):	2015/192606
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 893 Date of Decision: 5 June 2015 Before: McCallum J File Number(s): 2014/301836

Judgment

1. JUDGMENT of the COURT delivered by BASTEN JA: On 14 October 2014 the applicants filed a statement of claim seeking damages for defamation against the respondents. The plaintiff, Mr Kang, claimed to operate a migration business as a director of the second and third corporate plaintiffs. The statement of claim was filed on the last day available under the Limitation Act 1969 (NSW), s 14B, that is one year after the date of publication of the allegedly defamatory material, which was said to have occurred on 14 October 2013.

2. Although written notice of a complaint about the broadcast was given to the first respondent by letter from the applicants’ then solicitor dated 14 August 2014, the statement of claim was filed only for Mr Kang and was apparently prepared by him.

3. There were hearings before McCallum J in the Common Law Division on 21 November 2014, 6 February 2015, 10 April 2015 and finally 29 May 2015.

4. On 21 November 2014 Mr Kang foreshadowed that he wished to file an amended statement of claim. The Court directed that an amended statement of claim be filed by 19 December 2014. There was no appearance for the applicants at the hearing on 6 February 2015; the original statement of claim was struck out but time for filing an amended pleading was extended to 6 March 2015. No statement of claim was filed by 6 March 2015.

5. It appears that an amended statement of claim was served on the first respondent the day before the directions hearing on 10 April 2015. A copy was given to the second respondent, Mr Konrad, at the directions hearing. The matter was then stood over to 29 May 2015 to allow Mr Kang to show cause why the proceedings should be allowed to continue, such application being in accordance with Practice Note SC CL 4 promulgated on 5 September 2013. By judgment delivered on 5 June 2015, McCallum J ordered that the proceedings be dismissed.

6. On 3 September 2015 the applicants, being Mr Kang and a Singapore company, but not the Australian subsidiary through which it was originally alleged Mr Kang operated his migration business, sought leave to appeal against the order dismissing the proceedings. An amended draft notice of appeal raising a number of additional issues was provided to the Court and the respondents only on 24 November, that is the day before this hearing.

7. The applicants’ written summary of argument identified seven issues which would be involved in the appeal should leave be granted. The seventh issue was whether the Court should receive further evidence as to the applicants’ dealings with their former lawyers. The further evidence was that contained in an affidavit of the applicants’ current solicitor, Mr Barrie Goldsmith, affirmed on 3 September 2015.

8. The affidavit, together with annexures, runs to 135 pages. It is almost entirely devoted to a consideration of the extensive dealings between Mr Kang and his former solicitors. Why the Court would engage in an analysis of that material, mostly affirmed by way of information and belief on instructions from Mr Kang who did not provide that evidence at any stage, is quite unclear.

9. If the material was intended to demonstrate that, if called at an appropriate time, it might have led the primary judge to take a different view of the appropriate order, it was entirely unpersuasive. The four points (presumably the points of substance) relied upon in the written summary of argument may be identified and addressed briefly. First, it was said that the primary judge had been wrong in claiming that Mr Kang “placed much of the blame for the delay on the two named lawyers”, being Mr Kelvin and Mr Nagle, who were then supposedly acting for him. In particular Mr Kang had indeed blamed the lawyers for failing to appear for him on 6 February 2015. The judge noted the evidence given by Mr Kang in his affidavit that so far as he “was aware” one of the lawyers “would be attending at court on behalf of the plaintiffs.” He had further stated that he was “surprised to subsequently find out that they had not attended at court or arranged representation.”

10. The applicants’ submissions stated that the primary judge “evidently considered that” the first applicant had stated that he “had instructed Mr Nagle to appear” on 6 February 2015. This was said to appear from five paragraphs of the judgment. There was evidence before the primary judge to the effect that in late January 2015 Mr Nagle had said to Mr Kang that he would not appear for him. Accordingly the judge concluded “that contrary to para 7 of Mr Kang’s affidavit, Mr Nagle was not instructed by either the plaintiffs or Mr Kelvin to appear at that hearing.”[1] The submission that the judge was in error in inferring from the expectation of Mr Kang that a solicitor would appear for him at a court hearing that he had instructed him to do so is difficult to take seriously. Further, Mr Goldsmith’s fresh evidence was that he had been informed by Mr Kang not that he (Kang) had not instructed anyone to appear for him, but that Mr Kelvin “did not advise the first appellant that he would not be appearing at the hearing on 6 February 2015.” Why a solicitor who had not been instructed to appear would be expected to give such “advice” was unexplained.

    1. Judgment at [16].

11. Further Mr Goldsmith annexed a statement of claim in the Local Court, Small Claims Division, in which Mr Nagle was the plaintiff and Mr Kang the defendant, issued on 11 August 2015 (that is more than two months after the judgment of the primary judge) claiming that he (Nagle) and Mr Kang had entered into a fee agreement to undertake work in the defamation proceedings, on 11 August 2014. Mr Nagle claimed that he had done work for the applicants between August and the end of October 2014. He further recounted meetings from the end of November 2014 to the end of January 2015 when attempts were made to settle a fee dispute. The statement of claim finally asserted that Mr Nagle had withdrawn an offer of settlement and terminated the fee agreement on 6 February 2015. None of this constituted evidence significantly inconsistent with the finding made by the primary judge.

12. Secondly the primary judge inferred that Mr Kang had misled the Court when, on 21 November 2014, he had told the Court that “his lawyers wished to amend the statement of claim because it was poorly written by himself.” The judge inferred from the information before her that “by mid-November [the lawyers] were not acting for him.”[2] That inference was also consistent with the material annexed to Mr Goldsmith’s affidavit, confirming that Mr Kang and his lawyers were in dispute by that time.

    2. Judgment at [13].

13. Thirdly, the applicants’ submissions complained that inadequate notice had been given of a second affidavit relied upon by the respondents, being an affidavit of Mr Grant McAvaney, affirmed on 27 May 2015 and apparently served the day before the show cause hearing before the primary judge. Mr Goldsmith, who had appeared at the show cause hearing, had then identified his primary objections as being that the contents were “seriously inadmissible”, “highly prejudicial, and it does disclose confidential information.” [3] Mr Goldsmith’s objections were dealt with in some detail, with the only relevant material being found in three paragraphs, at which point it appears that Mr Goldsmith no longer pressed his objection. [4] Those paragraphs dealt with the conversations in late January or early February 2015 between Mr Kelvin and Mr Kang, dealt with above.

    3.    Tcpt, 29/05/15, p 4(10).

    4.    Tcpt, p 6(46)-(49).

14. Fourthly, the applicants’ submissions took issue with the finding that Mr Nagle and Mr Kelvin had provided Mr Kang with an amended statement of claim in late January 2015. The evidence relied upon in Mr Goldsmith’s affidavit was again on information and belief that Mr Kang “has thoroughly checked his records and he has no recollection of, or record of, ever having received a draft amended statement of claim from Mr Nagle.” The inappropriateness of seeking to rely on evidence in that form has already been noted. [5] Mr Goldsmith then annexed an affidavit affirmed by Mr Nagle on 8 July 2015 to which Mr Nagle had annexed a copy of an amended statement of claim dated 26 January 2015. Why that document would have persuaded the primary judge that Mr Kang had not been supplied with an amended statement of claim in late January 2015 is obscure. On the basis of information given by Mr Nagle and Mr Kelvin, the affidavit was supplied to Mr Kang by email on 26 January 2015, upon a promise to pay their fees. The judge accepted that evidence. It is most unlikely that the further evidence of Mr Goldsmith would have dissuaded her from that finding.

    5.    At [8] above.

15. The oral submissions took a different turn. Counsel submitted that an issue of principle arose from the reliance by the primary judge on the power to dismiss proceedings, pursuant to s 61 of the Civil Procedure Act 2005 (NSW). The Court was taken to passages in the judgment of the High Court in Spencer v The Commonwealth of Australia,[6] a case in which the power to dismiss was exercised based on the case as pleaded, not addressing a failure of the pleadings. That case was distinguishable from the present case; the judgment dealt with the principles to be applied when determining whether a case as pleaded is sustainable. Furthermore, the case was addressed to the terms of s 31A of the Federal Court of Australia Act 1976 (Cth), which is in significantly different terms from s 61.

    6. (2010) 241 CLR 118; [2010] HCA 28.

16. It was accepted that s 31A does not appear in an equivalent to Pt 6 of the Civil Procedure Act, as does s 61. It is to be noted, however, that apart from dealing with those particular issues, the joint reasons of Hayne, Crennan, Kiefel and Bell JJ noted that the terms of s 31A made it unhelpful to elucidate the meaning of the statutory expression by reference to what had been said in earlier general law cases. [7] The same might be said in respect of s 61.

    7. Spencer at [56].

17. The applicants also sought to rely on the reasoning of this Court in Hans Pet Constructions Pty Ltd v Cassar. [8] It is true that there were statements in that case to the effect that dismissal of proceedings is a remedy of last resort and that it is an extreme measure. [9] That is true because dismissal of proceedings involves a rejection of the plaintiff’s case without the merits being adjudged. McCallum J expressly recognised that consideration.

    8. [2009] NSWCA 230.

    9.    Hans Pet at [52] (Young JA).

18. The question of principle, however, is not one which arises solely from the manner in which McCallum J dealt with the present proceedings. The operation of s 61 (within Pt 6 of the Civil Procedure Act) has been dealt with in numerous cases in this Court, including Bi v Mourad,[10] to which the Court was taken. [11] The matter has been more recently dealt with in Ghosh v NineMSN Pty Ltd [12] by Macfarlan JA, with whom Leeming JA and Adamson J agreed, particularly at [40]-[43]. Earlier extensive consideration had been given to these provisions, including in the reported decision of Halpin v Lumley General Insurance Ltd. [13] Thus, no issue of principle arises through the vehicle of the present case in the circumstances in which the application was addressed.

    10. [2010] NSWCA 17.

    11.    At [33]-[34] (Young JA), [47] (Allsop P).

    12. [2015] NSWCA 334.

    13. (2009) 78 NSWLR 265; [2009] NSWCA 372.

19. An issue of principle might have arisen had it been the case that the trial judge failed to give proper consideration to the possibility that, by dismissing the proceedings, the applicants would be out of court for all purposes in relation to any possible claim. However, this may not be so because, even though there would need to be an extension of time, there is scope under s 56A of the Limitation Act for an extension of the usual limitation period. No doubt such provisions were in the minds of the parties at the show cause hearing and were well known to the trial judge. No reference or reliance was placed upon the possibility that claims could not be re-agitated in a new form hereafter, if these proceedings were dismissed. Accordingly the basis upon which a matter of principle might have arisen does not arise in the present circumstances.

20. The other matters raised by the applicants are not persuasive. No sufficient basis has been identified to raise reasonable prospects that an appeal against the discretionary interlocutory decision to dismiss the proceedings would have reasonable prospects of success. The application for leave to appeal should therefore be refused. The applicants must pay the respondents’ costs of the application.

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Endnotes

Decision last updated: 30 November 2015