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

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.
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.
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.
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…

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: [2015] NSWCA 375
Decision Date: 25 November 2015

CaseChat Overview and Summary

The applicants, Mr. Kang and others, sought leave to appeal from a judgment of McCallum J in the Common Law Division of the Supreme Court of New South Wales, which had dismissed their defamation proceedings. The dismissal occurred at a "show cause" hearing after the plaintiffs failed to file and serve an amended statement of claim. The applicants also sought to adduce fresh evidence on appeal.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, and in particular, whether the proposed fresh evidence could have affected the outcome of the original proceedings, thereby justifying its admission in the exercise of the court's discretion. The court also considered whether the appeal raised an issue of principle, as contemplated by section 61 of the *Civil Procedure Act 2005* (NSW).

Basten JA and Bergin CJ in Eq, in dismissing the application for leave to appeal, reasoned that the proposed fresh evidence was unlikely to have altered the outcome of the original decision. They found that the applicants had not demonstrated that the evidence could not have been obtained with reasonable diligence for use at trial, nor that it was compelling enough to warrant admission on appeal. The court concluded that the appeal did not raise a significant issue of principle that would justify granting leave.

Consequently, the Court of Appeal ordered that the summons filed on 3 September 2015 seeking leave to appeal be dismissed, and that the applicants pay the respondents’ costs of the application.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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