Kim v The Korean Times Pty Ltd
[2013] NSWDC 230
•15 November 2013
District Court
New South Wales
Medium Neutral Citation: Kim v The Korean Times Pty Ltd & Anor [2013] NSWDC 230 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 the defendant.
(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.
(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 - repeated failures to file defence - peremptory order to file defence made Legislation Cited: Defamation Act 2005 (NSW), s 23
Uniform Civil Procedure Rules 2005 (NSW), Pt 13 r 13.4Cases Cited: - Texts Cited: - Category: Procedural and other rulings Parties: Plaintiff: Tae Hong Kim
First Defendant: The Korean Times Pty Ltd
Second Defendant: Joshua NamRepresentation: Plaintiff: Mr W Van Ede
Defendants: No appearance
Plaintiff: Emil Ford Lawyers
Defendants: No appearance
File Number(s): 2012/188657 Publication restriction: None
Judgment
The plaintiff commenced these proceedings by statement of claim on 15 June 2012 in relation to a publication on 17 June 2011 by the defendants asserted to give rise to the following imputations:
(a) The plaintiff lied about his payment of $9,000 compulsory donation to the Association during the 2010 presidential campaign;
(b) The plaintiff lied to the members of the Association in order to be elected the president of the Association;
(c) The plaintiff committed acts of dishonesty by using the Association's fund for personal gain.
The proceedings were stood over on 6 July, 3 August and 7 September 2012. The defendants brought an application on 12 September 2012 for these proceedings to be dismissed pursuant to s 23 Defamation Act 2005 (NSW) and Pt 13 r 13.4 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), on the basis that these proceedings sought damages against the same defendants in respect of issues that had already been dealt with, namely proceedings 2011/257775. The statement of claim filed in those proceedings, on 10 August 2011, were settled but, according to the judgment of Elkaim SC DCJ of 21 September 2012 dismissing the motion, the imputations were different and the two publications differed in nature, form and intent. The defendants' application was dismissed with costs.
The defendants then brought an application for consolidation which was heard on 30 November 2012. Orders were made for these proceedings to be heard together. On Monday 15 April 2013 Elkaim SC DCJ revisited his ruling of 30 November 2012 by reason of one of the parties requisitioning a jury. The defendants were directed to file a defence by 5 April 2013 and on 15 April 2013 the defendants were given a "last opportunity" to file a defence by Elkaim SC DCJ.
These proceedings were listed before me on 14 June 2013. Mr Roest appeared for the first defendant. I extended time for the filing of a defence and made directions about the translation disputes and proposed imputations arguments. I gave a further extension of time to file a defence when these proceedings were next before me on 16 August 2013, when the defendants were represented by Mr Maxwell.
No defence was filed and, on 4 October 2013, Elkaim SC DCJ ordered Mr Nam, the second defendant, to pay the costs of the plaintiff, and additionally noted that his solicitor proposed to file a Notice of Ceasing to Act. This Notice has now been filed, and relates to both defendants.
On 25 October 2013 Elkaim SC DCJ directed the plaintiff to notify the defendants that "if a Defence is not filed then judgment may be entered for the plaintiff on the next directions hearing date".
Following this order, the solicitors for the plaintiff wrote to both defendants on 8 November 2013 (who I note are also the defendants in proceedings 2011/88507) advising that if they did not appear and/or no defence is filed by 14 November 2013, "the court may make orders against you", including an order for judgment to be entered.
When these proceedings came before me today, both defendants were called outside the court three times. There was no appearance in either these proceedings or in proceedings 2011/88507.
The plaintiff seeks an order for judgment to be entered. For the reasons set out in my judgment in proceedings 2011/88507, I am not prepared to do so today. The facts in these proceedings are considerably more compelling than those in proceedings 2011/88507. These proceedings were commenced only in June 2012 and the defendants have actively participated in them. In addition, while these proceedings have been listed 15 times without a defence being filed, that is more a product of the listing system than failures of the defendants to comply.
Given the number of times that the defendants have failed to file a defence I shall, however, make a peremptory order and relist the matter specially before me in order to ensure that any failure to comply can be monitored.
The court is to fax a copy of this judgment to the first defendant and to post a copy to the second defendant. If there is no compliance with the peremptory order on the next return date, then the next step would be the entry of judgment and the listing of these proceedings for assessment of damages. The defendants are warned that this really is their last chance to file a defence, or at least to appear and to indicate good reason for non-compliance with such an order.
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 the defendant.
(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.
(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
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