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Lee v Hwang; Hwang v Lee

Lee v Hwang; Hwang v Lee

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Case Copied 30 May 2022 48 min read

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District Court

New South Wales

Medium Neutral Citation: Lee & Ors v Hwang & Ors; Hwang v Lee & Ors [2022] NSWDC 182
Hearing dates: 31 March and 20 May 2022
Date of orders: 30 May 2022
Decision date: 30 May 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   Applications by the plaintiffs in proceedings 2017/00307536 for the defence in those proceedings to be struck out and for the assessment of damages dismissed; the plaintiffs are to pay the defendants’ costs.
(2)   Application by the defendants in proceedings 2018/00195738 for the statement of claim to be struck out is dismissed; the defendants are to pay the plaintiff’s costs.
(3)   Liberty to the parties to approach the List Judge for allocation of a hearing date as a seven-day non-jury defamation trial of both proceedings 2017/00307536 and 2018/00195738, noting that the evidence in one is to be the evidence in the other of these proceedings.

Catchwords:
TORT - defamation - application for summary dismissal of proceedings on the basis of belated discovery of a suspicious-looking screenshot and failure to comply with a self-executing order to provide four translations - application dismissed with costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56 - 62, 67
Defamation Act 2005 (NSW) s 30
Uniform Civil Procedure Rules 2005 r 14.28

Cases Cited:
Allen v Mathews [2007] EWCA Civ 216
Armin v Harbour Radio Pty Ltd [2018] NSWDC 321
Barakat v Goritsas [2012] NSWCA 8
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
Chong v CC Containers Pty Ltd (2015) 49 VR 402
Clark v State of New South Wales [2012] NSWCA 139
Douglas & Anor v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2019] FCA 802
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2021] FCAFC 77
Hunt v Times Newspapers Pty Ltd [2013] EWHC 1868 (QB)
In the matter of Ji Woo International Education Centre Pty Limited (in liquidation) (deregistered) [2019] NSWSC 30
In the matter of Ji Woo International Education Centre Pty Ltd [2016] NSWSC 1060
In the matter of Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93
Lunt v Victoria International Container Terminal Limited (No 2) [2019] FCA 1016
Massoud v Radio 2GB Sydney Pty Ltd & Ors [2021] NSWDC 336
Michaud v Stefanovski [2016] WASCA 85
Moroney v Zegers [2018] VSC 446
Nitopi v Nitopi [2021] NSWSC 669
Ovchinnikov v Russian Sports and Social Club Inc [2012] NSWSC 828
Palavi v Queensland Newspapers Pty Ltd [2011] NSWCA 264
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Pentridge Village Pty Ltd v CFMEU [2021] VSC 848
Powell v Boladz [2003] All E R 131
Powell v UK (2000) 30 EHRR CD 362
Raja v Van Hoogstraten [2002] All E R 74
Rinehart v Rinehart [2022] NSWCA 66
The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63
Various…

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: [2022] NSWDC 182
Decision Date: 30 May 2022

CaseChat Overview and Summary

The plaintiffs, Lee and the other plaintiffs, initiated proceedings against the defendants, Hwang and the other defendants, alleging defamation. The defendants, Hwang and the other defendants, commenced a separate proceeding against the plaintiffs, Lee and the other plaintiffs, for defamation. The plaintiffs sought summary dismissal of the defendants' proceeding on the basis of belated discovery of a suspicious-looking screenshot and the defendants' failure to comply with a self-executing order to provide four translations. The defendants opposed the application, arguing the plaintiffs' failure to comply with a self-executing order to provide four translations justified the dismissal of their proceeding. The court was required to determine whether the plaintiffs' proceeding should be struck out due to their failure to comply with a self-executing order to provide four translations and whether the defendants' proceeding should be struck out due to the belated discovery of a suspicious-looking screenshot.

The court found that the plaintiffs' proceeding should not be struck out as there was no basis to conclude that the defendants would not suffer injustice if the proceeding was not struck out. The court also found that the defendants' proceeding should not be struck out as the belated discovery of a suspicious-looking screenshot did not justify the dismissal of the proceeding. The court found that the plaintiffs' failure to comply with a self-executing order to provide four translations did not warrant the striking out of their proceeding. The court found that the defendants' proceeding should not be dismissed as the belated discovery of a suspicious-looking screenshot did not prejudice the defendants' case. The court dismissed both applications with costs, noting that the evidence in one proceeding was to be the evidence in the other.

Orders

Orders of the court

Order:

(1) Applications by the plaintiffs in proceedings 2017/00307536 for the defence in those proceedings to be struck out and for the assessment of damages dismissed; the plaintiffs are to pay the defendants’ costs.

(2) Application by the defendants in proceedings 2018/00195738 for the statement of claim to be struck out is dismissed; the defendants are to pay the plaintiff’s costs.

(3) Liberty to the parties to approach the List Judge for allocation of a hearing date as a seven-day non-jury defamation trial of both proceedings 2017/00307536 and 2018/00195738, noting that the evidence in one is to be the evidence in the other of these proceedings.

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:	Lee & Ors v Hwang & Ors; Hwang v Lee & Ors [2022] NSWDC 182
Hearing dates:	31 March and 20 May 2022
Date of orders:	30 May 2022
Decision date:	30 May 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Applications by the plaintiffs in proceedings 2017/00307536 for the defence in those proceedings to be struck out and for the assessment of damages dismissed; the plaintiffs are to pay the defendants’ costs. (2) Application by the defendants in proceedings 2018/00195738 for the statement of claim to be struck out is dismissed; the defendants are to pay the plaintiff’s costs. (3) Liberty to the parties to approach the List Judge for allocation of a hearing date as a seven-day non-jury defamation trial of both proceedings 2017/00307536 and 2018/00195738, noting that the evidence in one is to be the evidence in the other of these proceedings.
Catchwords:	TORT - defamation - application for summary dismissal of proceedings on the basis of belated discovery of a suspicious-looking screenshot and failure to comply with a self-executing order to provide four translations - application dismissed with costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56 - 62, 67 Defamation Act 2005 (NSW) s 30 Uniform Civil Procedure Rules 2005 r 14.28
Cases Cited:	Allen v Mathews [2007] EWCA Civ 216 Armin v Harbour Radio Pty Ltd [2018] NSWDC 321 Barakat v Goritsas [2012] NSWCA 8 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Chong v CC Containers Pty Ltd (2015) 49 VR 402 Clark v State of New South Wales [2012] NSWCA 139 Douglas & Anor v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2019] FCA 802 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2021] FCAFC 77 Hunt v Times Newspapers Pty Ltd [2013] EWHC 1868 (QB) In the matter of Ji Woo International Education Centre Pty Limited (in liquidation) (deregistered) [2019] NSWSC 30 In the matter of Ji Woo International Education Centre Pty Ltd [2016] NSWSC 1060 In the matter of Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93 Lunt v Victoria International Container Terminal Limited (No 2) [2019] FCA 1016 Massoud v Radio 2GB Sydney Pty Ltd & Ors [2021] NSWDC 336 Michaud v Stefanovski [2016] WASCA 85 Moroney v Zegers [2018] VSC 446 Nitopi v Nitopi [2021] NSWSC 669 Ovchinnikov v Russian Sports and Social Club Inc [2012] NSWSC 828 Palavi v Queensland Newspapers Pty Ltd [2011] NSWCA 264 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Pentridge Village Pty Ltd v CFMEU [2021] VSC 848 Powell v Boladz [2003] All E R 131 Powell v UK (2000) 30 EHRR CD 362 Raja v Van Hoogstraten [2002] All E R 74 Rinehart v Rinehart [2022] NSWCA 66 The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63 Various…