Kim v The Korean Times Pty Ltd

[2013] NSWDC 229

District Court

New South Wales

Medium Neutral Citation:

Kim v The Korean Times Pty Ltd & Anor [2013] NSWDC 229

Hearing dates:

15 November 2013

Decision date:

15 November 2013

Before:

Gibson DCJ

Decision:

(1) The Korean Times Pty Ltd and Mr Nam called outside Court 13D three times at 9:37am - No appearance.

(2) Mr Joshua Nam called outside Court 13D three times at 9:37am - No appearance.

(3) Grant leave to the plaintiff to file in court correspondence to both defendants.

(4) Noting the continued failure of the defendants in 2011/88507 and the defendant in 2012/188657 to comply with orders to file a defence, or to appear in court, a self-executing order for any defence to be filed by 4:00pm Wednesday 20 November 2013, noting that failure to comply will result in entry of judgment for the plaintiff, with liberty to apply for an assessment hearing on damages.

(5) The plaintiff is to notify The Korean Times Pty Ltd by fax by 5:00pm today of these orders, and to notify Mr Nam by forwarding a letter to him by close of business today.

(6) Set aside the orders made by Elkaim SC DCJ on 30 November 2012 for these matters to be consolidated or otherwise heard together.

(7) Matter stood over before Gibson DCJ on Thursday 21 November 2013 at 9:30, when if no defence has been filed, judgment will be entered and the plaintiff may apply to the List Judge for a hearing date for assessment of damages.

Catchwords:

TORT - defamation - plaintiff commences proceedings for defamation against a newspaper and publisher - proceedings listed 31 times for directions - defendants fail to comply with a series of orders to file a defence - peremptory order to file defence made

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56 and 61
Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases Cited:

Altarama Ltd v Forsyth [1981] 1 NSWLR 188
Fairey v Fairey (No 2) [2000] NSWCA 173
Hoser v Hartcher [1999] NSWSC 527
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Pacanowski v Wakerman [2009] NSWCA 402
Rivera v State of New South Wales [2012] NSWSC 1360

Texts Cited:

-

Category:

Procedural and other rulings

Parties:

Plaintiff: Tae Hong Kim
First Defendant: The Korean Times Pty Ltd
Second Defendant: Joshua Nam

Representation:

Plaintiff: Mr W Van Ede
Defendants: No appearance
Plaintiff: Emil Ford Lawyers
Defendants: No appearance

File Number(s):

2011/88507

Publication restriction:

None

Judgment

1. HER HONOUR: I set out the reasons for the orders I made in these proceedings this morning.

1. The plaintiff commenced proceedings by statement of claim filed on 18 March 2011 seeking damages for publication in the Korean Times (Hojuilbo) of an article headed "Boiling Rage after Approval by the parent Body of Hyang Goon Election". The imputations pleaded were:

(a)   The plaintiff is a person guilty of shameful and illegal actions;

(b)   The election of the plaintiff as President of the Association was illegitimate;

(c)   The plaintiff as an elected candidate had committed acts of depravity within the organisation;

(d)   The plaintiff as a candidate had committed significant illegal actions;

(e)   The plaintiff had by his actions damaged the image of the Association; and

(f)   The plaintiff had been exposed for his illegitimacy and depraved past.

1. "Hyang Goon" is the Korean Veterans Association. The matter complained of consists of allegations about the plaintiff's conduct as its president, described in colourful metaphor and emotive language.

1. Progress since the first return date of 15 April 2011 has been slow. These proceedings have been listed for a total of 31 times for directions, timetables, mediation, challenges foreshadowed to the imputations, claims the translation is inaccurate, and complaints of delay and non-compliance by both sides.

1. The plaintiff revised the statement of claim on 9 and 23 May 2011, but there are no other pleadings. Despite being listed 31 times, on at least some of which directions hearing dates, orders were made for the filing of a defence, the defendants have never done so. Nor have they sought a hearing of any of their asserted objections to the imputations and translation.

1. The court has from time to time inquired about the delay. On 12 October 2012 the plaintiff told the court that his attention had been diverted by other litigation between the parties, and the defendants were ordered to file a defence by 7 September 2012. They did not do so, on the basis that the issues of the imputations and translation challenges needed to be determined first. The judge hearing the defamation list noted that "this is 18th time in list and parties still in dispute re translation of relevant article."

1. In 2012 the plaintiff commenced two other actions for defamation, one against the same newspaper (2012/188657), and the other against an unrelated party. Orders were made on 30 November 2012 for these proceedings to be heard together with proceedings 2012/112659 (in which the defendants to these proceedings were not a party) and 2012/188657 (to which both the defendants in these proceedings were parties), and for the defendants to file and serve their defences by 4 February 2013. Again, the defendants in these proceedings did not do so.

1. The defendant in proceedings 2012/112659 filed a Jury Requisition as well as a defence, and that matter is now ready to take a hearing date. There is no justification for those proceedings being further delayed by the failure of the defendants in these proceedings, namely the Korean Times and Mr Nam (who have similarly failed to file a defence in proceedings 2012/88507) to file a defence but unless the orders of 30 November 2012 are set aside, the proceedings which are ready for hearing will continue to be prevented from proceeding further.

1. In an attempt to expedite the filing of a defence, on 15 April 2013 the judge hearing the defamation list gave the defendants a "last opportunity" to file a defence. They did not do so.

1. The solicitor for the plaintiff filed a Notice of Ceasing to Act and new solicitors came into the matter. On 14 June and 16 August they sought orders that a defence be filed. No defence was forthcoming and on 4 October 2013 the solicitor for the second defendant advised that he intended to file a Notice of Ceasing to Act.

1. On 25 October 2013 the judge hearing the defamation list directed the plaintiff to inform the defendants in these proceedings, as well as in the 2012 proceedings (2012/188657) that if a defence was not filed in 14 days "judgment may be entered for the plaintiff on the next directions hearing date", and the plaintiff was directed to notify the defendants of this order in writing.

1. When the matter came before me this morning, there was no appearance for either defendant. No defence has been filed. The solicitor for the plaintiff has tendered letters dated 8 November 2013 to each of the defendant, advising the contents of the orders made on 25 October 2013.

1. The plaintiff now seeks an order for judgment. Default judgment is not an appropriate procedure for defamation actions: Altarama Pty Ltd v Forsyth [1981] 1 NSWLR 188. In Altarama, Hunt J indicated that the appropriate step to take, where no defence had been filed, was to seek a peremptory order for the filing of a defence and, if that order was not complied with, to then seek to enter judgment following any failure to comply with this order.

1. Delay in any kind of litigation is unacceptable. In Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [95], McColl JA warned: "The days when the suit of Jarndyce v Jarndyce wound its apocryphal way through the pages of Dickens' "Bleak House" are long gone - if they ever were." However, in Fairey v Fairey (No 2) [2000] NSWCA 173 at [51] - [58], the Court of Appeal warned that dismissal of proceedings was an exceptional order.

1. This concern about delay is particularly relevant for defamation actions, where the cost and complexity of the cause of action is considerable. However, despite the enactment of s 56 Civil Procedure Act 2005 (NSW), the principles for summary dismissal in relation to defamation proceedings which were applicable before this legislation continue to be cited with approval: Pacanowski v Wakerman [2009] NSWCA 402 at [26] - [28], citing Hoser v Hartcher [1999] NSWSC 527.

1. The interaction of ss 56 and 61(3)(a) Civil Procedure Act and the entitlement of the parties to a fair trial process has been the subject of analysis by Johnson J in Rivera v State of New South Wales [2012] NSWSC 1360 at [82] - [86]. Johnson J stated that the courts should not stand by and permit endless opportunities to a litigant, where reasonable and fair opportunities have been provided in the past to progress the litigation (at [85]), noting the amount of court time that such proceedings take up (at [86]). The delay in that case was, however, ten years, which warranted the making of what his Honour called "the exceptional order which is sought" (at [87]) under r 12.7 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). In addition, the causes of action pleaded by the plaintiff did not include a claim for defamation, where the obligation of a defendant to continue to prosecute the action appears to continue to apply (see the NSW Court of Appeal's endorsement of the test in Hoser v Hartcher in Pacanowski, supra, at [26] - [28]).

1. In Hoser v Hartcher the party guilty of the delay was, like Mr Rivera, also the plaintiff. The plaintiff commenced proceedings for defamation but then took no further steps for three years. The fact that a plaintiff delays in defamation proceedings is significant because, in addition to the general principle that courts may be more sympathetic to delay by a defendant, particularly in defamation proceedings, where defendants rarely have insurance, delay by a plaintiff in commencing or prosecuting a defamation action may result in reduction of the damages awarded. The principal reason for Mr Hoser's delay was that, during the three year period of his inactivity, he had been convicted and imprisoned for perjury. The defendant took no steps in the case during this period; the action was allowed to lie dormant. When the plaintiff reactivated the case, the defendant sought summary dismissal. Simpson J dismissed the application, on the basis that the defendant's inaction was fatal; it outweighed complaints of prejudice and what Simpson J accepted were the plaintiff's poor prospects of success at the trial.

1. The plaintiff in these proceedings has certainly had the matter relisted many times - in fact, these proceedings have been listed 31 times - but not much has happened on these occasions. The plaintiff has been content to seek further timetables without seeking peremptory orders, summary dismissal or other case management orders designed to bring the case to finality.

1. In addition, the defendants have been given inadequate notice of any such application, in that the order made on the previous occasion stated only the court "may" enter judgment today.

1. Applying the checklist in Hoser v Hartcher, the plaintiff should not be entitled to the summary striking out of these proceedings today. There is, however, ample basis for the making of a peremptory order for the filing of the defence. The defendants' failure to file defences in accordance with previous timetables, their more recent failure to attend court despite being notified of the court dates and their failure to bring the applications which are the excuse for not complying with these orders are matters which warrant the making of a peremptory order. The defendants have also been warned that, if no defence is filed in accordance with the peremptory order, judgment will be entered when these proceedings are next before the court.

1. Whether or not defences are filed, these proceedings should no longer be listed for hearing together, as proceedings 2012/112659 are now ready for hearing. The parties in those proceedings should not be inconvenienced by the dilatory conduct of the defendants in these proceedings.

1. I have provided these brief reasons for judgment in order to ensure that the defendants are aware of the seriousness of their situation. The court will fax a copy of this judgment to the Korean Times in order to ensure that those who publish this newspaper are aware that no further excuses for delay will be permitted, and that, if no defence is filed, judgment may very well be entered on the date set out in the orders below when the proceedings have been specially listed for that purpose before me.

Orders

(1)   The Korean Times Pty Ltd and Mr Nam called outside Court 13D three times at 9:37am - No appearance.

(2)   Mr Joshua Nam called outside Court 13D three times at 9:37am - No appearance.

(3)   Grant leave to the plaintiff to file in court correspondence to both defendants.

(4)   Noting the continued failure of the defendants in 2011/88507 and the defendant in 2012/188657 to comply with orders to file a defence, or to appear in court, a self-executing order for any defence to be filed by 4:00pm Wednesday 20 November 2013, noting that failure to comply will result in entry of judgment for the plaintiff, with liberty to apply for an assessment hearing on damages.

(5)   The plaintiff is to notify The Korean Times Pty Ltd by fax by 5:00pm today of these orders, and to notify Mr Nam by forwarding a letter to him by close of business today.

(6)   Set aside the orders made by Elkaim SC DCJ on 30 November 2012 for these matters to be consolidated or otherwise heard together.

(7)   Matter stood over before Gibson DCJ on Thursday 21 November 2013 at 9:30, when if no defence has been filed, judgment will be entered and the plaintiff may apply to the List Judge for a hearing date for assessment of damages.

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Decision last updated: 29 November 2013