Kim v Lee & Ors (No 2)

[2006] NSWSC 1212

CITATION:	Kim v Lee & Ors (No 2) [2006] NSWSC 1212
HEARING DATE(S):	13/11/06, 14/11/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	11/13/2006
DECISION:	Evidence struck out agaisnt 1st and 2nd and 4th to 32nd defendants. Evidence admitted against 3rd defendant but hearsay admitted solely as evidence that conversations took place but not as to truth of representations therein.
CATCHWORDS:	EVIDENCE - Admissiibility and Relevancy - Declaration sought that 3rd defendant as agent for 1st and 3rd to 32nd defendants settled District Court defamation actions - Affidavit of plaintiff contained details of conversations between plaintiff and 3rd defendant - Only evidence of actual or ostensible authority of 3rd defendant were statements by him and a signed document authorising him as representative for the purposes of one District Court proceeding only - Whether evidence admissible against 1st and 2nd and 4th to 32nd defendants - Alternative plea for declaration that 3rd defendant agreed to pay the plaintiff and agreed to indemnify for any damages awarded in District Court proceedings - Whether evidence admissible against 3rd defendant
PARTIES:	Chung-Yup Kim - Plaintiff Jae Kyung Lee - 1st Defendant Mi Jin Lee - 2nd Defendant Yun Hwa Lee - 3rd Defendant Woon Tack Sim - 4th Defendant Young Sun Park - 5th Defendant Jin Soo Kang - 6th Defendant Tae Hwa Lee - 7th Defendant Tae Hong Kim - 8th Defendant In Guk Kim - 9th Defendant Jae Kuk Cho - 10th Defendant Bok Kil Lee - 11th Defendant Sang Ki Jin - 12th Defendant Seung Yeul Park - 13th Defendant Ho Sung Lee - 14th Defendant Jong Sang Ahn - 15th Defendant Sung Ho Kim - 16th Defendant Bo Young Woo - 17th Defendant Seok Ro Baek - 18th Defendant Bae Jin Han - 19th Defendant Kang Woo Lee - 20th Defendant Hyung Gu Choi - 21st Defendant Hak Joo Park - 22nd Defendant Sang Doo Ok - 23rd Defendant Hye Ryun Lee - 24th Defendant Bong Jae Sin - 25th Defendant Yun Sik Hong - 26th Defendant Sang Min Lee - 27th Defendant Geun Choi - 28th Defendant Yeon Hyung Lee - 29th Defendant Ki Seon Lee - 30th Defendant Myung Ho Park - 31st Defendant Nae Yeon Mun - 32nd Defendant
FILE NUMBER(S):	SC 2199/05
COUNSEL:	Christopher Dibb - Plaintiff Nigel Cotman SC - Defendants
SOLICITORS:	Breene & Breen Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 13 NOVEMBER 2006

2199/05 CHUNG-YUP KIM v JAE KYUNG LEE & ORS (No 2)

EX TEMPORE JUDGMENT

1 The pleading alleges that the 3rd defendant was the agent of the 1st and 3rd to 32nd defendants with respect to the first of the two agreements upon which the plaintiff relies.

2 The particulars of actual or ostensible authority are limited to statements made by the 3rd defendant. They do not contain any particular of any statement or writing on behalf of any of the 1st and 4th to 32nd defendants establishing the 3rd defendant as agent.

3 The actual or ostensible authority is thus limited. Reliance is placed on an affidavit Yun Hwa Lee sworn on 28 February 2006 that the defendants have given notice they intend to read. Paragraph 6 of that affidavit is in the following terms:

“At this time I was part of a Legal Committee of members of the Korean Society which had been formed in relation to legal proceedings no. 2403 of 2003 commenced by Mr Kim in the District Court of New South Wales. The members of the committee are the defendants in the proceedings no. 2403 of 2003 and include the Fourth to Thirty-Second Defendants in these proceedings. At this time (November/December 2004) I had been appointed as the representative or spokesman of the committee responsible for communicating with the solicitors acting for the members in the District Court proceedings. Annexed marked “A” is a copy of the document appointing me as a representative of the committee…”

4 I digress. The document annexure “A” contains the signatures of a number of people. Its translation is as follows:

“The undersigned hereby delegate Mr Yun Hwa Lee to act as our representative to do all that is required to proceed with the defamation legal proceedings (District Court: Defamation List File No. 2403/03) which were commenced by the publisher of the Dae Yang Chu News, Chung Yup Kim against all directors and committee members of the 22nd administrative body of the Korean Society.”

5 I go back to par 6 of Mr Lee’s affidavit. It continues:

“…I am not aware of any document appointing me as representative of the committee in relation to the District Court proceedings no. 2573 of 2004 brought against Mr Kim in defamation, in which myself and the Fourth to Thirty Second Defendants in these proceedings were plaintiffs. I did not have any authority on behalf of any members of the committee to compromise their rights in either of the District Court proceedings referred to above with Mr Kim. One reason I understood this to be the case was that there are differences in the claims brought by the members of the committee in proceedings no. 2573 of 2004 and there are differences amongst the members as to how seriously they view the defamation alleged against Mr Kim and Mr Kim himself. Accordingly I did not consider it was possible to negotiate a “blanket” settlement on behalf of the members.”

6 In par 18 to par 20 of the affidavit of Mr Kim, reference is made to conversations by Mr Yun Hwa Lee in respect of a proposed compromise of the proceedings. Objection is taken that those conversations cannot bind the 4th to 32nd defendants, nor the 1st and 2nd defendants for that matter, because there is no evidence establishing Mr Lee as the agent of any of those persons for the purpose of reaching the agreement upon which the plaintiff relies.

7 As I have said, the only basis apart from an assertion by the 3rd defendant himself upon which reliance is placed by the plaintiff is the document constituting Mr Yun Hwa Lee an agent for the limited purpose of acting as a representative for the purpose of proceeding numbered 2403 of 2003 in the District Court.

8 I, therefore, strike out par 18 to par 20 of the affidavit as against the 1st and 2nd and 4th to 32nd defendants. But I give the plaintiff leave to re-tender should an appropriate basis of authority of Mr Yun Hwa Lee be established. I allow par 18 to par 20 against the 3rd defendant under the alternative claim against him in par 2 of the statement of claim. But the hearsay evidence in those paragraphs will be admitted as evidence that conversations took place but not as to the truth of the representations therein.

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