Kang v Australian Broadcasting Corporation - [2015] NSWSC 893

Supreme Court

New South Wales

Medium Neutral Citation: Kang v Australian Broadcasting Corporation [2015] NSWSC 893
Hearing dates: 29 May 2015
Date of orders: 05 June 2015
Decision date: 05 June 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Proceedings dismissed

Catchwords: PROCEDURE – summary disposal – want of due despatch – purpose of Civil Procedure Act and UCPR – purpose of Practice Note SC CL 4 – where plaintiffs failed to comply with directions of the Court – requirements of dictates of justice
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61
Uniform Civil Procedure Rules 2010 (NSW), r 12.7
Cases Cited: Bi v Mourad [2010] NSWCA 17
Browne v Dunn [1989] VR 845
Category: Procedural and other rulings
Parties: Edward Kang (First Plaintiff)
Singapore Oil Pte Ltd (Second Plaintiff)
CWK M & D Pty Ltd (Third Plaintiff)
Australian Broadcasting Corporation (First Defendant)
Karl Konrad (Second Defendant)
Representation:
Counsel:
B Goldsmith (Plaintiffs)
ATS Dawson (First Defendant)
Second Defendant in person
Solicitors:
Goldsmiths Lawyers (Plaintiffs)
Australian Broadcasting Corporation (First Defendant)
Second defendant unrepresented

File Number(s): 2014/301836
Publication restriction: None

Judgment – Ex Tempore

HER HONOUR: These are proceedings for defamation commenced by Mr Edward Kang and two companies against the Australian Broadcasting Corporation and Mr Karl Konrad. The practice note which governs proceedings in the Defamation List provides that if a party fails to comply with a direction of the Court, the party in default may be called upon to show cause why the proceedings should not be dismissed under s 61 of the Civil Procedure Act 2005 (NSW) or r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW): see cl 21 of SC CL 4. The plaintiffs fell within the terms of that clause on 6 March 2015 when they failed to file an amended statement of claim in accordance with a direction made 6 February 2015.
The “show cause” hearing was held on 29 May 2015. This judgment determines the issues raised in that application.
The background to the proceedings is as follows. The statement of claim relates to a programme broadcast on ABC television on 14 October 2013. It appears the first complaint in respect of that broadcast was a letter dated 14 August 2014 sent on behalf of the plaintiffs by a solicitor. However, as at the time the proceedings were commenced, that solicitor was no longer acting for the plaintiffs. The statement of claim was filed by Mr Kang personally on 14 October 2014, the last day of the limitation period.
Upon the first return of that statement of claim, Mr Kang appeared in person. Neither defendant appeared on that occasion, for the simple reason that the statement of claim had not been served. Mr Kang informed the Court that his legal representatives, whom he named as Mr Hale of senior counsel, Mr Nagle and Mr Kelvin (both solicitors), wished to redraft the statement of claim as it had been drafted by himself (Mr Kang). I directed the plaintiffs to file and serve…

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] NSWSC 893
Decision Date: 05 June 2015

CaseChat Overview and Summary

The plaintiffs, Kang, brought an action against the Australian Broadcasting Corporation for defamation. The matter was initially filed in the Federal Court of Australia, but it was transferred to the Supreme Court of New South Wales. The plaintiffs sought summary disposal of the case under the Civil Procedure Act 2005 (Cth) and the Uniform Civil Procedure Rules 2005 (NSW). The defendants, the Australian Broadcasting Corporation, opposed the application on the basis that the plaintiffs had not acted with due despatch and had failed to comply with several directions of the Court. The defendants also contended that the plaintiffs' application was an abuse of process and that the requirements of the dictates of justice had not been satisfied.

The primary legal issue before the Court was whether the plaintiffs' application for summary disposal should be granted. This required the Court to consider the purpose of the Civil Procedure Act and the UCPR, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court also needed to consider the purpose of Practice Note SC CL 4, which sets out the circumstances in which summary disposal may be appropriate. Additionally, the Court had to consider the requirements of the dictates of justice, which includes consideration of factors such as the conduct of the parties, the delay in bringing the application, and any prejudice that may be caused to either party.

The Court held that the plaintiffs' application for summary disposal should be refused. The Court found that the plaintiffs had not acted with due despatch and had failed to comply with several directions of the Court. The Court also found that the plaintiffs' application was an abuse of process and that the requirements of the dictates of justice had not been satisfied. The Court noted that the plaintiffs' delay in bringing the application and their failure to comply with the directions of the Court had caused significant prejudice to the defendants. The Court held that it was not just and equitable to grant the plaintiffs' application for summary disposal.

The Court refused the plaintiffs' application for summary disposal and ordered the plaintiffs to pay the defendants' costs of the application.

Orders