Lee v Hwang; Hwang v Lee

[2022] NSWDC 182

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 Claimants v News Group Newspapers Ltd & Mulcaire [2012] EWHC 2692 (Ch)

Yeo v Australian Securities and Investments Commission, in the matter of Ji Woo International Education Centre Pty Ltd (deregistered) [2017] FCA 1480

Yeo v Australian Securities and Investments Commission, in the matter of Ji Woo International Education Centre Pty Ltd (No 4) [2019] FCA 1119

Category:

Procedural rulings

Parties:

2017/00307536:
Plaintiffs:
First Plaintiff:
Bo Hyun Lee also known as Scott Lee
Fourth Plaintiff:
IBN Global Pty Ltd (ACN 166 098 157)

Defendants:
First Defendant:
Je Hun Hwang also known as Jason Hwang
Second Defendant:
Uhak Station Pty Ltd (ACN 152 583 518)

2018/00195738:
Plaintiff:
Je Hun Hwang

Defendants:
First Defendant:
Bo Hyun Lee
Second Defendant:
IBN Global Pty Ltd

Representation:

Counsel:
Lee parties:
Mr R Rasmussen

Hwang parties:
Mr J Young

Solicitors:
Lee parties: H & H Lawyers

Hwang parties: Kim & Associates

File Number(s):

2017/00307536;
2018/00195738

Judgment

The proceedings and the parties

1. These are two actions for defamation. The first in time of these, 2017/00307536, was originally brought by four parties, but only the first and fourth plaintiffs (Mr Lee and his company) remain. The first and fourth plaintiffs are also the first and second defendants in 2018/00195738, the second set of proceedings, which are brought by Mr Hwang, the first defendant in the first proceedings. Without meaning any disrespect to the parties, I shall call the 2017 proceedings “the Lee proceedings” and the 2018 proceedings “the Hwang proceedings”.

2. The fourth plaintiff in the Lee proceedings was engaged in the business of assisting Korean nationals who are intending to study at Australian universities and other institutions. This included obtaining visas from the Australian Department of Immigration (Department of Home Affair after 2017) to enter Australia and associated issues such as obtaining health insurance. The first plaintiff is the majority and controlling shareholder of the fourth plaintiff. The company has agreements with Australian universities and, to use Mr Rasmussen’s term, “touts for business” in Korea on this basis.

3. Mr Hwang is the director of Ukak Station Pty Ltd, which carries on business in the same field.

4. The plaintiffs in 2017 proceedings and defendants in 2018 are referred as “Lee parties”. The defendants in 2017 proceedings and plaintiff in 2018 are referred as “Hwang parties”.

5. Before they became competitors, Mr Lee and Mr Hwang had many business activities in this field together. Mr Rasmussen and Mr Young agree that there was a very long history of such dealings and that this was a case of former business associates having a falling out, following which there was a lengthy process of litigation both in Australia and in Korea. Some of the earlier history in the Supreme Court of New South Wales is set out in In the matter of Ji Woo International Education Centre Pty Ltd [2016] NSWSC 1060. Litigation concerning this company appears to have gone on for some years (In the matter of JI Woo International Education Centre Pty Limited (in liquidation) (deregistered) [2019] NSWSC 30).

6. A summary of the proceedings in Korea shows that the parties have participated in civil and criminal proceedings against each other from approximately October 2016 onwards. (It is possible that some of those proceedings include claims of defamation brought under the criminal law in Korea by the parties against each other; if so, that may give rise to issues under s 23 of the Defamation Act 2000 (NSW), but that is not an issue of concern in this application). A schedule of those proceedings is set out as an annexure to this judgment.

7. The relevance of this long history of litigation is that, as a result of the documentation provided and the evidence given, both the Lee and the Hwang parties have had extensive access to each other’s documentation. The Lists of Documents for both parties contain some of this documentation (CB 129, CB 251 - 263, CB 279 - 298, CB 503). This includes judgments recording the ultimate dismissal of all criminal proceedings against both parties (CB 129, CB 251 - 263). It would appear that a person named Myounghwa Yeo was convicted for offences of dishonesty in Korea (CB 282 - 283) and also in Australia (Yeo v Australian Securities and Investments Commission, in the matter of Ji Woo International Education Centre Pty Ltd (deregistered) [2017] FCA 1480 at [33]), but whether she is associated with the Lee parties (see In the matter of Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93) or the Hwang parties (as Mr Hwang appears to admit in his cross-examination in Korea) is an issue hotly in contest. The interaction between these proceedings in Australia, Ms Yeo and the proceedings in Korea is referred to in Yeo v Australian Securities and Investments Commission, in the matter of Ji Woo International Education Centre Pty Ltd (No 4) [2019] FCA 1119.

8. The relevance of the documentation from Korean courts is to demonstrate that the Lee and the Hwang parties have been so intently focussed upon each other’s activities that it is hard to believe that any document, no matter how small, could escape consideration. Nevertheless, the Lee parties now complain that a vital document, namely a list of email addresses to which the sixth matter complained of in the Lee proceedings was sent (CB 412), was not provided until shortly before a vacated hearing in July 2021, and that the failure to provide this document earlier (in a context of generally unsatisfactory discovery) nearly a year ago now warrants the striking out not only of the Hwang parties’ defence but also a separate claim for defamation brought by the Hwang parties against the Lee parties.

The procedural history of these claims

9. The Lee parties’ proceedings were commenced on 11 October 2017. On 25 June 2018, Mr Hwang brought proceedings for defamation against the Lee parties. The proceedings were case-managed together in the Defamation List without any interlocutory applications being brought by either party. Both parties were represented by experienced counsel and there were no pleading issues. On 1 August 2019, both proceedings were listed for hearing on 13 July 2020, with an estimate of 5 days plus. The parties later agreed (in orders made on 12 March 2020) that, given the overlap of issues in the proceedings, the evidence in one should be the evidence in the other.

10. The parties continued to seek timetables for discovery and interrogatories issues during 2019 and early 2020, always by consent timetables. Parties are entitled to seek interlocutory rulings either in the Defamation List or before the trial judge (if one has been allocated) after a hearing date is allocated, but no such applications were made.

11. The impact of the pandemic on hearings in this court in 2020 varied depending upon issues such as trial length, complexity of issues and location of witnesses. A number of defamation trials fell into this category, including these proceedings. On 9 April 2020 the parties advised the court that by reason of the problems with overseas travel, the hearing would need to be vacated, as many of the relevant witnesses were overseas and preparation for trial was difficult. The hearing date was vacated and the proceedings were stood over to 6 August 2020.

12. By 6 August 2020 the parties were ready to take a fresh hearing date, and were sent to the List Judge, who listed the trials for hearing commencing on 19 July 2021 with a five day estimate.

13. Between August 2020 and July 2021 there was no application to the court for any orders. The only change of direction during this period appears to have been that the plaintiff briefed Mr Rasmussen in the place of Mr Richardson.

14. New South Wales went into lockdown because of the pandemic on Friday 25 June 2021. This created difficulties for the court. On Friday 16 July 2021 the trial judge, Strathdee DCJ, vacated the hearing date (Monday 19 July 2021) due to pandemic issues.

15. In the ordinary course of events, a fresh hearing date would have been allocated after the problems about conducting hearings during the lockdown were resolved. That did not occur. Instead, late production of discovery material by the Hwang parties in the days before the trial, and suspicions about the adequacy of the Hwang discovery, led to an exchange of acrimonious correspondence. This led to the bringing of an application (on 13 October 2021) by the Lee parties for summary dismissal.

16. That application was set down for hearing on 2 December 2021 but was vacated and a fresh hearing date of 24 March 2022 allocated. That date had to be vacated and a fresh hearing date of 31 March allocated after the Lee parties relisted the matter complaining of non-compliance by the Hwang parties. Once again, the hearing of the application was vacated, when it became clear that the parties had not dealt with all the issues in their submissions. The hearing was adjourned for a third time, to 20 May 2022.

The plaintiffs’ applications

17. The application for determination is the Lee application for summary dismissal of the proceedings. Mr Rasmussen, for Mr Lee, submits that the failure of the Defendants in the Lee proceedings to comply with orders, including self-executing orders, to provide discovery documents and translations into English is so unsatisfactory that the Hwang proceedings should be summarily dismissed. In the course of the hearing, Mr Rasmussen also expressed dissatisfaction with discovery and interrogatories, but orders made by me for such complaints to be particularised by 9 December 2021 did not result in any identification of the complaints in question (I note that Mr Rasmussen sought, and was granted, leave to supply details of a further asserted complaint about answers to interrogatories, but his submissions do not specify any such failure).

18. An important part of the determination of complaints of delay is the degree to which failure to comply with timetables has resulted in the making of costs orders. Although Mr Rasmussen submits that there has been a long history of non-compliance by the Hwang parties, examination of the court file revealed only one costs order made against Lee parties, namely on 12 April 2018, when they were ordered to pay the costs of the defendant thrown away by reason of amendment of the statement of claim. Costs were reserved on another two occasions (3 May and 17 May 2018). Costs were also reserved on one occasion in the Hwang proceedings (on 20 September 2018).

19. The application for summary dismissal is also based upon the asserted failure of the Hwang parties to provide NAATI–accredited translations of four Korean court documents until after the deadline given in a self-executing order made by consent between the parties, after negotiation as to how to deal with this issue, as part of case management by the court. Mr Rasmussen submitted that failure to comply with any self-executing order meant that the party in default should have its pleadings all struck out.

20. The Hwang parties oppose the application for dismissal. Mr Young responds that there have been similar defaults by the Lee parties, that his own medical problems (including his significant health issues in 2021) were explained to the Lee parties and that his clients’ defaults have not resulted in any show cause or peremptory orders, or indeed any costs orders other than those set out in the previous paragraph. He submits that any asserted failure to provide the document at CB 412 should be seen in the context of the difficulties of conducting a hearing where the matters complained of are not in English, the witnesses and events involved are outside Australia. He also submits the court should take into account the impact of two trial dates cancelled through no fault of the parties, which are exceptional features warranting a show of generosity rather than striking out the whole proceedings.

21. Mr Young further submitted that to strike out both his clients’ defences to the 2017 proceedings and Mr Hwang’s 2018 proceedings because of the late production of one document and/or translations of four documents in Korean was wholly disproportionate and contrary to the principles in s 56 of the Civil Procedure Act 2005 (NSW). He points out, in his submissions in reply, that failure to comply with a self-executing order to take a step by a certain date does not result in the whole case being struck out unless the order clearly referred to Uniform Civil Procedure Rules 2005 r 5.21. He adds, in his final submissions, that counsel for the Lee parties “would have known that the Korean Court documents and documents from prosecutors would not be able to be tendered” in any event (submissions, 26 May 2022).

22. I first set out a summary of the claims for defamation.

The Lee proceedings

23. By second further amended statement of claim filed on 10 August 2018, the plaintiffs bring proceedings for defamation for the following publications, all of them in the Korean language:

1. The first matter complained of: A publication by the first defendant on 12 October 2016 on the TV Chosun channel on free to air television in the Republic of Korea, and simultaneously on the associated Internet site, Google Australia and YouTube, of a news item in the Korean language on the subject of overseas student health cover fraud.

2. The second matter complained of: A publication by the first defendant on 5 May 2017 on an Internet website accessible in Australia named “Hojunara” asserting that the first and fourth plaintiffs had been found guilty of fraud by a Korean court for overseas student health fraud.

3. The third matter complained of: A publication by the first defendant on “an unknown date” (but available as at October 2017) on an Internet website accessible in Australia named “Kozean” that the first and fourth defendants are guilty of embezzlement of funds belonging to a partnership between Mr Lee and Mr Hwang.

4. The fourth matter complained of: A publication by the first defendant on before April 2017 on thepost.naver.com Internet website, in his blog, of allegations that the first and fourth plaintiffs had dishonestly prosecuted him for revealing their forward and were guilty of defrauding hundreds of victims.

5. The fifth matter complained of: A publication on 18 May 2017, described only as “further matter in Korean” on the Internet, of allegations that the first and fourth plaintiffs had cheated hundreds of Korean students in relation to health, and had instructed their lawyer to murder persons who are informing the police that the plaintiffs had committed fraud.

6. The sixth matter complained of: An email dated 3 October 2017 to Mr Ricky Lee and other persons containing allegations that the first and fourth plaintiffs were guilty of criminal conduct and had spread lies about the first defendant to try and cover up a criminal investigation being conducted into their affairs by the Korean police.

24. The imputations, which are very serious, are pleaded to have resulted in loss of business contracts with universities and other institutions exceeding $400,000 to date.

25. The defence filed on 3 July 2018 challenges the capacity of the imputations pleaded, identification of the plaintiffs and pleads justification to most (but not all) of the imputations pleaded, as well as a defence of statutory qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW).

26. A Reply filed on 3 September 2018 particular rises malice, and includes a claim of malicious motivation caused by commercial rivalry.

The Hwang proceedings

27. By amended statement of claim, filed on 15 August 2019, the plaintiff brings proceedings for an email dated 12 September 2017 to educational institutions in Australia including the University of Sydney, containing allegations that the plaintiff was involved in criminal, immoral and unethical conduct, is dishonest and acted in concert with a person who had been convicted of the offences of embezzlement and forgery. There is no claim for special damages.

28. The defence filed on 11 December 2019 pleads defences of justification, contextual truth, qualified privilege at common law and pursuant to s 30 of the Defamation Act 2005 and honest opinion, as well as a plea of mitigation.

29. A Reply has been filed.

The Lee parties’ application for summary judgment and for dismissal of the Hwang proceedings

30. Part of the asserted justification for bringing an application for summary dismissal arises from the circumstances in which I made some self-executing orders for the answering of interrogatories and provision of translations. It is necessary to set out the background.

31. Mr Rasmussen initiated the summary dismissal process by sending an email to the Court on 13 October 2021 advising that he proposed to seek orders to strike out Mr Hwang’s defence in the Lee proceedings and enter judgment, as well as to strike out the Hwang Proceedings against the Lee parties, on the basis of failure to comply with orders made by the Court.

30. On 14 October 2021, I made orders in both the Lee and Hwang proceedings as follows:

“Orders:

(1) The plaintiffs in proceedings number [2017] and defendants in proceedings number [2018] file and serve affidavit evidence in respect of their application to strike out on or before 1 November 2021;

(2) The defendants in proceedings number [2017] and plaintiffs in proceedings number [2018] file and serve affidavit evidence in response by 18 November 2021;

(3) Parties file and serve written submissions on or before 25 November 2021;

(4) These proceedings be set down for argument with an estimate of 2 hour matter on 2 December 2021, if there is no compliance with the timetable, the argument will not take place.”

33. There was non-compliance by the Hwang parties, in part because of health problems for Mr Young. It was by reason of that non-compliance that, on 02 December 2021, I made orders as follows in proceedings 2017/00307536:

Orders:

The following orders are all self-executing in nature:

(1) The defendants are to provide a verified supplementary List of Documents clarifying that the documents listed in part 2 are listed in error.

(2) The plaintiffs’ challenge to the authenticity of the documents 1, 7, 8 and 10 is listed for argument on 24 March 2022

(3) For the purpose of the hearing in order 2 above, the plaintiffs are to serve all affidavit evidence (including certified translation) by Tuesday 1 March 2022.

(4) Any affidavits in reply are to be served by Tuesday 15 March 2022.

(5) The plaintiffs are to provide a list of challenge to the translation of the discovery documents by 14 January 2022 and the defendants are to respond with a corrected translation or expert evidence to the contrary by 25 February 2022.

(6) All translation issues outstanding as at 24 March 2022 will be determined by Gibson DCJ during the hearing on that day.

(7) The plaintiffs are to notify the defendants in 7 days all objections to the answers to interrogatories sent on 12 October 2021, and the defendants are to re-answer those interrogatories (if appropriate) by 4 February 2022.

(8) Any interrogatories issue outstanding as at 24 March 2022 will be determined by Gibson DCJ during the hearing on that day.

Noted the applications in both proceedings are listed for argument on 24 March 2021 as a 2Hour+ matter, with costs reserved to be dealt with on that day.

34. The following orders were similarly made in 2018/00195738:

“Orders:

The following orders are all self-executing in nature:

(1) Plaintiff’s verified List of Documents in accordance to the categories served on 10 Jan 2020 and 13 January 2020, by 17 December 2021.

(2) Any challenge to the adequacy of the plaintiff’s discovery is to be subject of evidence and submissions to be served by 21 February 2022, with submissions and evidence in reply by 4 March 2022, and will be the subject of argument on 24 March 2022.

(3) Defendants to answer plaintiff’s interrogatories by 21 February 2022.

(4) Any challenge to the adequacy of defendants’ answers to interrogatories is to be the subject of submissions by 4 March 2022 and will be the subject of argument on 24 March 2022.

(5) The defendants are to notify the plaintiff in 7 days all objections to the answers to interrogatories received 12 Oct 2021, and the plaintiff is to re-answer those interrogatories (if appropriate) by 4 February 2022.

(6) Any interrogatories issue outstanding as at 24 March 2022 will be determined by Gibson DCJ during the hearing on that day.

Noted the applications in both proceedings are listed for argument on 24 March 2021 as a 2 Hour+ matter, with costs reserved to be dealt with on that day.”

35. The Lee parties complied with all these orders, save the orders for translations. However, both parties complained of failures to comply when the matter was next before the court.

36. On 10 March 2022, I made orders for both the Lee and Hwang proceedings as follows:

“2017/00307536 & 2018/00195738:

Orders:

(1) Lee parties to write informing the Hwang parties of the non-compliance with orders and setting out issues for interlocutory determination on or before 16 March 2022;

(2) Hwang parties to respond to that letter by 23 March 2022;

(3) Set the matter down for argument on 31 March 2022;

(4) Costs reserved.”

The Lee parties’ submissions

37. In his submissions of 30 March 2022, Mr Rasmussen submits that the Lee parties have been “seriously prejudiced” (paragraph 9) by the Hwang parties’ continuous delays and non-compliance with court orders were, which have resulted in unnecessary and significant costs in relation to the bringing of this application. He submits that it is disrespectful of the weighing parties not to have given forewarning that they were not complying with the orders.

38. The following specific submissions were made about explanations of ill health:

1. Mr Rasmussen complains of the inadequacy of a description of the solicitor as having been in close contact with a COVID case in terms of explaining delay in providing discovery.

2. As to the failure to comply with the orders of 5 August 2021, Mr Rasmussen complains of the inadequacy and lateness of an explanation that their counsel, Mr Young, was undergoing surgery.

3. As to the failure to comply with the self-executing orders made by me, Mr Rasmussen complains of the explanation being that the solicitor for the Hwang parties was ill with Covid19 and with the lateness of this explanation.

39. Mr Rasmussen went on to state:

“The Lee parties are sympathetic to Messrs Young and Kim’s unfortunate circumstances. What the Lee parties are not sympathetic to, however, is the quaint parties repeated failure to extend the Lee parties and the court the courtesy in advance so that the Lee parties have suffered significant prejudice whether Hwang parties are aware of the serious consequences of non-compliance with the orders.”

40. Mr Rasmussen added that, whereas his clients had behaved in a courteous fashion by sending letters when the Hwang parties were in default, the Lee parties had relisted the matter on the one occasion that the matters were in dispute.

41. Mr Rasmussen provided further written submissions on 16 May 2022. He sets out (at paragraphs 28 -29) his clients’ current complaints as follows:

“The Lee parties are gravely concerned that they will not receive a fair trial because the Hwang parties continue to thumb their noses at orders made by the Court - only producing answers to interrogatories and discovered documents at the last minute. There is also serious prejudice being occasioned to the Lee parties in the proper preparation of this case for trial.

The Hwang parties are either [sic] evincing an intention to ambush at every opportunity (rather than comply with their obligations pursuant to the Civil Procedure Act), or are paying no attention to their obligations until the last possible moment. Either way it is productive of delay, unnecessary costs and prejudice to the Lee parties”.

42. Mr Rasmussen gives five “telling” examples of this:

1. Failure to provide discovery in the 2017 proceedings until the Thursday before the trial was due to commence on 15 July 2021, despite “many requests”.

2. Production on 15 July 2021 of documents referred to in Part 2 of the List of Documents in the 2017 proceedings.

3. Production on 9 July 2021 of a previously undiscovered “screen shot of a mobile telephone” (CB 412) the authenticity of which is challenged.

4. Failure to answer interrogatories until 14 October 2021.

5. Non-compliance with court orders of a self-executing nature in relation to the provision of certain translations. Mr Rasmussen acknowledges that “purported NAATI translations” (submissions, paragraph 34) were provided on 9 March 2022 but responds that “the Lee Parties, however, do not accept those [sic] being accurate to the extent that it fails to attach the original Korean documents” (submissions, paragraph 34) and are, additionally, provided late without explanation. In addition, the Lee parties are concerned that the Hwang parties have stated that, while they have discovered these documents, they do not intend to tender them at the hearing.

43. In the course of the hearing, Mr Rasmussen also complained about the adequacy of answers to interrogatories, and was granted leave to provide further written submissions identifying these issues. His further submissions of 23 May 2022 essentially repeat the very generalised complaints of delay and failure to answer correspondence already made in these proceedings (there is also a repetition of his earlier complaint about the failure to provide translations of certain documents until after the deadline in my self-executing orders).

44. These complaints are, essentially, failure to provide discovery and interrogatories in a timely manner (although it now appears to be conceded that these steps are completed), a challenge to the authenticity of a document served on 9 July 2021 and failure to provide the translations sought by the Lee parties of NAATI–accredited translations of four documents.

45. The first and third of these complaints can be determined in a relatively brief fashion. As to the first complaint, the documents in question have been in the Lee parties’ possession for many months. As to the third of these complaints, translations have been provided and the Lee parties’ entitlement to translations of any kind (let alone the additional material sought) is not one of right. The principle issue of concern is the late-discovered screenshot.

The screenshot

46. The screenshot in question was produced on 9 July 2021 and is set out at CB 412. It consists of a list of email addresses for persons at universities in Australia and appears to be dated 3 October 2017 at 2:19.

47. Mr Rasmussen submits that not only is there no explanation for the production of the screenshot of the mobile telephone on 9 July 2021 but that its production is “highly prejudicial” in circumstances where the “authenticity and completeness” of this screenshot is disputed (submissions dated 16 May 2022, paragraph 41). Mr Rasmussen submits (at paragraphs 42 - 43):

“The Lee parties have been deprived of the opportunity to investigate the screenshot because the Hwang parties no longer possess the telephone from which it was taken (see: affidavit of Sean Kim sworn 18 November 2021 at [34] and [37]). There is as yet no explanation provided as to why the email that the screenshot appears to represent has not been produced and why it is that only one page was able to be produced. That would be independent of the possession of the telephone and the reason for its destruction.

Conduct such as the above, in respect to discovery and non-compliance with court orders, has had serious consequence in other cases (see: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [31], [35], [37], [38], [49], [55], [68], [72] - [73]).”

Failure to discover and documents of doubtful authenticity

48. Two issues arise in relation to the screenshot: first, the failure to provide it earlier as part of discovery and, second, the question of its authenticity.

49. As to the first of these, in addition to Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, Mr Rasmussen also relied upon Palavi v Queensland Newspapers Pty Ltd [2011] NSWCA 264 and Clark v State of New South Wales [2012] NSWCA 139. In both the Palavi decisions, the plaintiff had deliberately destroyed two mobile phones belonging to her that were discoverable and relevant to a defence of truth pleaded in her claim for damages for defamation. In Clark v State of New South Wales, the plaintiff had destroyed a cassette which would have been determinative of an allegation by the plaintiff that a policeman had solicited a bribe from him in order to refrain from charging Mr Clark. The issues discussed in this case, which relate to a destroyed document, are also applicable to documents where the authenticity is challenged.

50. An important feature of both Palavi decisions and Clark is that the principles set out in ss 56 - 62 of the Civil Procedure Act 2005 (NSW) are now acknowledged to apply. Prior to that time, Australian courts had been reluctant to strike out claims because of misconduct by a party, even where that misconduct is very serious. The view that such an order should be made “sparingly” at best has nevertheless continued after these case management principles were added, as is set out Clark v State of New South Wales at [46] - [47]:

“Johnson J approached the matter on the basis that the provisions of the CPA and UCPR were to be applied, i.e. Pt 13 r13.4 UCPR, s61(3)(a) and s67 CPA. His Honour reviewed the authorities as to what amounted to an abuse of court process, particularly where those authorities related to the destruction of evidence. The authorities to which his Honour referred were: Batistatos v Roads and Traffic Authority of New South Wales and Newcastle City Council [2006] HCA 27; 226 CLR 256; Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524; Arrow Nominees Inc v Blackledge [2000] EWCA Civ 2000; All ER (D) 854; Logicrose Ltd v Southend United Football Company Ltd (No 1) (1998) 132 SJ 1591; Times, March 5, 1988 (Chancery Division); Allen v Tobias [1958] HCA 13; 98 CLR 367 ; Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; and Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510.

His Honour then summarised the relevant principles as follows:

"100 The principles surrounding the consequences of destruction of potential evidence by a party have emerged largely from cases where destruction has occurred before the commencement of proceedings.

101 Applications for a stay or dismissal of proceedings (Fuji) or entry of a verdict for the defendant (British American Tobacco Australia Services Limited v Cowell) have not been granted. Where destruction of potential evidence or fabrication of evidence has occurred after proceedings have commenced (Arrow Nominees), dismissal of proceedings has been ordered. In cases where material is intentionally suppressed but is finally produced (Logicrose), the Court has taken the view that the Court's processes have not been defeated and that the proceedings should be allowed to proceed.

102 In other cases, the issue has been left to the drawing of inferences adverse to the party who has destroyed the material prior to trial, applying the principles in Allen v Tobias and Katsilis. Whether an adverse inference will be drawn, and the strength of the inference, will depend upon the particular circumstances of the case. In a clear case of conscious destruction of material which was likely to be used in evidence, a strong inference adverse to the destroying party may be drawn with the ultimate inference being of the type referred to in Marsden v Amalgamated Television Services Pty Limited.

103 However, the remedies available in such circumstances are not confined to the drawing of appropriate inferences. If the conduct of the destroying party may be characterised as an abuse of process, then the power of the court to stay or dismiss proceedings may be utilised in an appropriate case. This power is to be exercised sparingly.

104 Ordinarily, a party is entitled to initiate and continue proceedings with the court determining those proceedings on their merits. Where, however, a party to proceedings intentionally destroys material which is significant to the determination of the proceedings, and such destruction occurs after the proceedings have been commenced, then a clear foundation would appear to exist for the court to call in aid its power to stay or dismiss the proceedings. The court will have in mind the interests of the individual parties to the civil proceedings, but also the protection of the administration of justice and the integrity of the courts and the system of justice generally. Resolution of an application for a stay or dismissal of the proceedings will consider the question whether a fair trial may take place in the absence of the destroyed material even where an appropriate inference may be drawn adverse to the destroying party."

His Honour's statement of principle was approved in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [93].”

51. This is the case in other common law jurisdictions as well. In Powell v Boladz [2003] All E R 131; Powell v UK (2000) 30 EHRR CD 362 the court considered it was irrelevant that police had evidence that there had been destruction of documents and forgery by medical staff to defeat claims for medical negligence and defamation (at [33] - [34]); these were issues for the trial (at [52]). This is a helpful example, as it brings into the equation the second of Mr Rasmussen’s complaints, namely that the screenshot’s authenticity is open to challenge, in circumstances where the lateness of its discovery means that the phone in question is unavailable and there appear to be further pages to the document which have not been discovered.

52. Applications of this kind are generally made where a document has been destroyed or otherwise tampered with. However, even in clear cases of destruction of documents, court proceedings have still not been struck out. Although the Palavi decisions have been cited in several such applications, Mr Rasmussen was unable to point to any other action (defamation or otherwise) which had been struck out on the basis that a discovery document had been destroyed outright, as opposed to being partially produced, as is the case here.

53. The court’s reluctance to strike out actions has also been demonstrated even where the behaviour of a party has been much worse than the mere destruction of a document. In Raja v Van Hoogstraten [2002] All E R 74, the defendant’s employees were convicted of murdering the plaintiff in reprisal after he commenced proceedings (the defendant’s conviction for manslaughter was overturned on appeal). Even where the hearing itself had to be adjourned due to courtroom violence and bloodshed in Allen v Mathews [2007] EWCA Civ 216 (see the description of blood smears on the courtroom walls in Hunt v Times Newspapers Pty Ltd [2013] EWHC 1868 (QB) at [64]), the court went ahead and concluded the hearing, although Lawrence Collins LJ observed on appeal that he feared neither party had told the court the full story.

54. Hunt v Times Newspapers is itself a similar story of threats made during and after litigation, as the particulars of justification demonstrate. It is also an early example of conduct more recently described as “oligarch litigation”, namely where a party uses its superior financial resources to crush criticism. Courts are alert to the potential for abuse of this kind, but not to the point of striking such claims out. In Rinehart v Rinehart [2022] NSWCA 66 at [3], Leeming JA noted that litigation “between parties who possess considerable wealth and large appetites for litigation, has the capacity to expand beyond the limits mandated by s 56 of the Civil Procedure Act 2005 (NSW)”. However, the circumstances in which expansion beyond the limits of s 56 might result in the proceedings being dismissed have yet to receive any consideration.

55. The reason for this reluctance is that the purpose of the courts is to hear actions on their merits, as opposed to striking out proceedings on the basis of allegations of misconduct of the Palavi kind.

56. This is particularly the case where the proceedings are at an interlocutory stage, as is the case here. In Nitopi v Nitopi [2021] NSWSC 669, an application was brought for summary dismissal pursuant to UCPR r 14.28 after the plaintiff (the defendant’s mother) was convicted of breaking into the defendant’s home and stealing documents from his filing cabinets which were asserted to be relevant to the proceedings. The plaintiff, relying upon the Palavi and Clark decisions as well as UCPR r 14.28, brought an application for dismissal of the proceedings on the basis of his mother’s criminal conviction and also her asserted delay in the conduct of the litigation.

51. Harrison J declined to do so, stating at [17]:

“Fundamentally, Mr Nitopi has not established that his mother’s criminal convictions equate to the destruction of his documents by her, even assuming favourably to him that he has satisfied me what those documents are and that they are critical or relevant to him in these proceedings. More generally, particularly considering the cautious approach adopted by the Court of Appeal in 2019, it is not appropriate at an interlocutory stage to strike out Mrs Nitopi’s pleadings or dismiss the proceedings. Such a course should only be contemplated in the clearest of cases, of which the present case is not an example.”

58. In addition, his Honour considered (at [20]) that the defendant’s reliance on UCPR r 14.28 was misplaced:

“It also seems to me that Mr Nitopi’s reliance on UCPR 14.28 is misplaced. He does not attack the adequacy of the current version of the statement of claim or contend that the pleading discloses no reasonable cause of action or that the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings. He also does not claim that the pleading is otherwise an abuse of the process of the court. Mr Nitopi is really asking for a stay of the proceedings upon the basis that his mother’s criminal conduct, yet finally to be determined by a foreshadowed appeal and allegedly involving the destruction of documents that are essential to his position in this litigation, even though not identified with any precision, parcelled up as an application for dismissal for want of due despatch.”

59. Similarly, in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2019] FCA 802 (affirmed on this point on appeal: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2021] FCAFC 77 at [239], Nye Perram J, in an application for a permanent stay following failure to produce documents on discovery, observed at [158]:

“Nevertheless, it does not follow that the failure of the Russian Federation voluntarily to produce the documents in response to the invitation justifies the permanent stay of the Cross-Claimants’ entire proceeding. Where the abuse of process has arisen from the failure of a party to produce evidence, the appropriate response must be determined against the particular circumstances of the proceeding. For example, in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, Allsop P (with Macfarlan JA agreeing) considered a strike out of the entire pleading in a defamation suit to be a disproportionate response to an abuse of process occasioned by the applicant’s destruction of evidence where the destroyed evidence only affected a limited number of the alleged imputations.”

60. Perhaps because of the lack of success in the handful of applications brought following the Palavi judgments, applications for interlocutory summary dismissals are rare. In Lunt v Victoria International Container Terminal Limited (No 2) [2019] FCA 1016, where the proceedings were struck out as an abuse of process on other grounds, the court specifically noted at [92] that the application was not brought on the basis of destruction of documents, despite the high factual similarity with Palavi; what was sought instead was that adverse inferences should be drawn from the conduct in question.

61. Do different issues arise where the information about false, destroyed or withheld documentation is not discovered until the trial is about to commence or has actually commenced? These proceedings have, after all, been listed for hearing twice.

62. In Moroney v Zegers [2018] VSC 446, the defendant denied publication of the matters complained of. On the third day of the trial, Dixon J inquired why no interlocutory step had been taken to inspect the defendant’s computer and arrangements were made for an expert to be retained and to report to the court (at [30]). Shortly afterwards, that expert came into the courtroom to report directly to the judge and to the parties that the hard drive was missing. Notwithstanding this problem, there was still enough evidence that the defendant had published the matters complained of and the defendant admitted that his sworn evidence to the contrary was dishonest and untrue. The trial had to be adjourned but was nevertheless completed at a later date. Adverse credit findings were made against the defendant (at [55]), substantial damages were awarded to all of the plaintiffs (at [3]) and the matter referred to the Director of Public Prosecutions (at [61]).

63. At no stage was any submission made that the trial should stop and summary judgment be entered, although Dixon J noted (at [68]) that the Court of Appeal of the Supreme Court of Victoria had referred to Palavi v Queensland Newspapers Pty Ltd with approval in Chong v CC Containers Pty Ltd (2015) 49 VR 402 at [184]. That is generally the case in trials: Michaud v Stefanovski [2016] WASCA 85; The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63.

64. A fact situation very similar to the present occurred in Massoud v Radio 2GB Sydney Pty Ltd & Ors [2021] NSWDC 336 at [470(j)], where counsel for the plaintiff cross-examined a trial witness about a screenshot of a text message which had similarly not been discovered beforehand, and for which the phone was no longer available. Its authenticity was also challenged and, following this, its tender was withdrawn and an apology offered to the witness. The defendants in those proceedings sought only adverse credit findings and not dismissal of the proceedings.

65. As is the case here, the document under challenge was only one document, not a series of documents arising in circumstances of some kind of sustained fraud. It is difficult to see how failure to explain late production of a list of email addresses and four translations could result in a step as extreme as summary dismissal. Mr Rasmussen hints that there are no doubt many other missing documents but even if there were, the evidence of their importance would need to be established and their contents compelling. I am unaware of decisions concerning allegations of destruction or withholding of large numbers of documents and/or mobile phones in Australia (although I have seen newspaper accounts of a recent defamation action in the Supreme Court alleging missing phones and 4,000 documents), but the destruction of phones and phone-generated material was a feature of the so-called “phone hacking” damages claims (see, for example, Various Claimants v News Group Newspapers Ltd & Mulcaire [2012] EWHC 2692 (Ch) at [42], [91], [101] and [103]). Those complaints do not appear to have distracted the courts from dealing with the actions other than on their merits.

Conclusions concerning the screenshot

66. Although Mr Rasmussen limits his challenges as to authenticity to the screenshot at CB 412, he makes the submission that the unreliability of this document must cast real doubt upon the adequacy of discovery generally and the authenticity of other material. For the reasons set out above, I reject that submission.

67. In the present case, there is no expert evidence as to the authenticity of the screenshot. Nor is there any evidence as to its significance to the proceedings. Its contents should not come as a surprise, in that this is a list of persons to whom the sixth matter complained of was sent, in circumstances where the likely recipients of this publication would not have been a surprise to anybody in general and the Lee parties in particular. The likelihood is that Mr Hwang’s and Mr Lee’s knowledge of each other and their respective businesses over the past decade of mutual recrimination is close to encyclopaedic.

68. The other basis for seeking dismissal of the Hwang parties’ pleadings is the asserted failure to provide translations of four documents by the due date in self-executing orders.

The self-executing orders and the translations

69. The other basis for summary dismissal is the asserted failure of the Hwang parties to comply with a self-executing order in relation to the failure to provide translations of four documents prior to a set date (these have since been provided).

70. The relevant principles for the making and setting aside of self-executing orders are set out in Douglas & Anor v John Fairfax & Sons Ltd [1983] 3 NSWLR 126, as is noted by Basten JA in Barakat v Goritsas [2012] NSWCA 8 at [30], adding that the power to do so also derived from s 67 of the Civil Procedure Act. However, the self-executing order did not mean the end of the litigation unless that was a specific proviso; it just meant that the party in default could not raise the issue later in the litigation.

71. This is illustrated by the facts in Douglas & Anor v John Fairfax & Sons Ltd. The plaintiffs had been directed to supply particulars of a claim for special damages and to give discovery by a due date with the proviso that if this was not done, the plaintiffs would not be entitled, at the trial of their defamation action, to seek to prove the claim for special damages pleaded. The plaintiffs failed to provide the material by the due date and sought an extension for provision of the documents. Despite the absence of an “acceptable explanation” (at 131), Hunt J held that the court’s power to vary an interlocutory order applied even where the order in question was a self-executing order that had not been complied with.

72. Douglas & Anor v John Fairfax & Sons Ltd is instructive for two reasons: first, it demonstrates the use of a self-executing order for a purpose other than summary dismissal of the whole claim and, second, it is clear that non-compliance does not prevent the bringing of an application for extension (which was granted in those proceedings).

73. Mr Young refers to rule 5.21 of the Federal Court Rules 2011 (Cth), which specifically provides for the entry of summary judgment or dismissal in the event of non-compliance. However, that rule has no equivalent in this court. Self-executing orders are dealt with in this Court on basic case management principles both at common law and pursuant to ss 56 - 62 and 67 of the Civil Procedure Act as explained by Basten JA in Barakat v Goritsas at [30].

74. How does the court identify the conduct the subject of the order and deal with alleged default? In Pentridge Village Pty Ltd v CFMEU [2021] VSC 848 at [37], Ierodiaconou J summarised the caselaw as follows:

“In summary, the cases establish the following propositions. First, the terms of a self-executing order should state with precision the act to be done in order to comply with the order. Second, where the act specified in the self-executing order involves the provision of information within a specified time, a document filed within that time and which constitutes a good faith attempt to provide that information will comply with the order. Third, where the self-executing order has been complied with but the information supplied is in fact deficient in some way, the Court retains the power to make further orders for the supply of the information. Fourth, where a self-executing order has not been complied with, the Court will vary or set aside the self-executing order where, in all the circumstances, it would be unjust to deprive the party adversely affected of the right to a trial on the merits of the proceeding.”

75. In the present case, the self-executing order required the Hwang parties to provide translations by a certain date, but did not set out the penalty to flow from failure to comply. The order could have set out the consequences of non-compliance but did not do so. The reality was that if the translations had been produced for tender at the trial, failure to comply would have required an application, which would have proceeded on the usual basis of the requirements of ss 56, 58 and 67 of the Civil Procedure Act. Failure to comply with such an order could not, absent express provisions to permit this (of the kind made in Armin v Harbour Radio Pty Ltd [2018] NSWDC 321 at [23]), result in the proceedings in their entirety being struck out, either now or at the trial.

76. The translations in question have now been provided and have been prepared by a NAATI–accredited translator. No challenge to their adequacy was raised and Mr Young states that his client has no intention of tendering them. That ought, in my view, to be an end of the matter. If any application for an extension of time had been made, and I had been satisfied that translations were required (which I am not, for the reasons set out below), I would have granted such an extension.

77. In conclusion, I consider that the Lee parties’ complaints of dilatory conduct in relation to the provision of translations are a trivial issue in the circumstances of this case. The parties and their solicitors all speak Korean and they have been locked in litigation in Korea, in the Korean language, for the past six years. They would have had a great deal of familiarity with the Korean proceedings set out in the schedule attached to this judgment.

78. However, there is another reason for regarding this asserted failure to comply as serious, namely whether the Lee parties are entitled to a translation at all.

When is an accredited translation required?

79. In what circumstances is a party entitled to require an opponent to translate documents? In Ovchinnikov v Russian Sports and Social Club Inc [2012] NSWSC 828, White J said at [20]-[24]:

“The plaintiffs also seek an order that there be provided a translation with a proper certificate by a duly accredited translator. There is no such requirement under the Act. The question then is whether pursuant to s 61 of the Civil Procedure Act I should require the provision of a translation which has been certified by a duly accredited translator, and whether I should require provision of a translation of other documents the subject of the plaintiffs' request.

There is no evidence that the plaintiffs are not themselves fluent in the Russian language. As the second plaintiff was the president of the Club, I would assume, in the absence of evidence to the contrary, that he is so fluent. I do not consider that the interests of speedy determination of the real issues in a way that is just, quick and cheap should require the defendants to go to the expense of providing a certified translation of documents, nor requiring a translation of documents that are not required to be translated by reason of s 50 of the Associations Incorporation Act.

Mr Lelekov has provided a translation of some parts of documents that are in Russian that are exhibited to his affidavit. It will be a matter for the trial judge to decide whether the absence of a certified translation by a duly accredited translator means that the documents exhibited to Mr Lelekov's affidavit are inadmissible.

Likewise, it will be a matter for the trial judge to decide whether the fact that only parts of the document in the exhibits have been translated means that the documents are inadmissible, or should be excluded pursuant to s 135 of the Evidence Act 1995, or whether orders should be made under s 136 as to the use to be made of the evidence.

There is no evidence that the plaintiffs are not themselves able to understand and, indeed, to translate the documents exhibited to Mr Lelekov's affidavit and provide such translation to their solicitor. I do not think that the defendants can be compelled to incur the costs of such a translation. If there is a risk that without such a translation the exhibit or parts of it may be inadmissible, that is a risk the defendants run.”

80. The facts in the present case are similar. The parties are well able to understand the documents in question. The provision of a translation, if sought, would not have been ordered.

81. In the ten years that have passed since White J’s observations, instantaneous translation has become commonplace. Requirements for production of translations by an opponent should, in my view, be limited to clear cases where the document is not only essential but asserted to be ambiguous. Although Mr Rasmussen complained of the adequacies of the translations, he did not draw any specific errors to my attention by providing expert evidence and/or reports setting out the defects.

82. Mr Young also points to the likely inadmissibility of these documents, in that these are court documents from another jurisdiction (although it is an interesting question whether they may be admissible for the purposes of a s 23 application). That, however, will be an issue for the trial: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [3] - [10] per Beazley JA, [253] - [254] per McColl JA.

Conclusions and costs

83. The past nine months, since the vacation of the second hearing date, have been spent by the parties exchanging impolite correspondence about failure to reply to correspondence promptly and generalised allegations of impropriety as well as dilatoriness in relation to discovery material. The Lee parties have seized upon two of these complaints to bring an application for relief of a disproportionate kind, and for which there was very little justification, even if there had been some substance in their complaints.

84. There have been delays, but these have occurred on both sides. Additionally, the parties have been litigating with each other for years and these delays need to be seen in that context. I also take into account the impact of the pandemic, which resulted in two lost hearing dates, and the fact of Mr Young’s serious illness in 2021.

85. In addition, this application was not ready to proceed on at least two occasions when it was listed for hearing. The result was more wasted time, both for the parties and for the court.

86. At the conclusion of submissions, the parties agreed that these proceedings are otherwise ready to take a hearing date. They were ready on two prior occasions. They are even more ready now.

87. As I do not propose to strike out any of the Hwang parties’ pleadings (or indeed make any other orders about asserted non-compliance with orders, there being no actual evidence of such non-compliance), I propose to dismiss the Lee parties’ applications with costs and to direct the parties to approach the List Judge to obtain a hearing date as a seven day plus non-jury trial.

88. I was not addressed as to costs, but they should follow the event. The parties may apply if some differing costs order is to be sought.

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.

**********

KOREAN PROCEEDINGS

Tab	Matters	Date	Documents	Description
Defamation charges and etc. against LEE & CHOI
Seoul Central District Court Case No.: 2018NO3476 Claim: Appeal from the decision on 1) False Accusation, 2) Defamation, 3) Obstruction of Business (2018GODAN1361) Appellants LEE, Bo Hyun, CHOI, Chi Hoon Respondent N/A	16 Jan 2020	▪ Judgment [ENG(NAATI)/ KOR]	LEE appealed against the decision of the lower court on the defamation and obstruction of business charges. The appeal court held that LEE is not guilty on the basis that the prosecutor fails to sufficiently prove that LEE knew that the contents of emails sent to Australian education institution were false. 1) False Accusation against LEE & CHOI: Not guilty 2) Defamation against LEE: Not guilty 3) Obstruction of business against LEE: Not guilty
Seoul Central District Court Case No.: 2018NO3476 Charge: 1) False Accusation, 2) Defamation, 3) Obstruction of Business Prosecution Defendant LEE, Bo Hyun	17 Dec 2018	▪ Reasons for Appeal (LEE) [KOR only]	LEE’s counsel, KANHO, appealed to the Seoul Central District Court.
Seoul Central District Court Case No.: 2018GODAN1361 (merged with 2018GODAN2541) Charge: 1) False Accusation, 2) Defamation, 3) Obstruction of Business Prosecution Defendants LEE, Bo Hyun CHOI, Chi Hoon	6 Nov 2018	▪ Judgment [KOR only]	The court held that LEE is guilty of defamation and obstruction of business. 1) False Accusation against LEE & CHOI: Not guilty 2) Defamation against LEE: Guilty 3) Obstruction of business against LEE: Guilty
	28 Oct 2018	▪ Summary of Argument (LEE and CHOI) [KOR only]	LEE & CHOI and their counsel submitted the Summary of Argument and the Statement of Opinion to the Seoul Central District Court.
	11 Sep 2018	▪ Statement of Opinion (LEE’s counsel) [KOR only]
Seoul Central District Prosecutors’ Office Case No.: 2017HYEONGJE105774 Charge: 1) Defamation, 2) Obstruction of Business Accusers HWANG, Je Hun UHAK Station Defendant LEE Bo Hyun	27 April 2018	▪ Notice of Indictment [ENG(NAATI) only]	HWANG submitted a complaint against LEE for defamation and obstruction of business on 27 Nov 2017, and LEE received the Notice of Indictment from Prosecutor’s Office on 27 April 2018.
	27 Nov 2017	▪ Complaint Form [ENG(NAATI:partly translated)/KOR]

Unjust enrichment claim against LEE
Seoul Supreme Court (Civil division) Case No.: 2016NA2076689 Claim: Appeal against the decision on unjust enrichment claim (2015GAHAP1223) Appellant HWANG, Je Hun Respondent LEE, Bo Hyun	27 Oct 2017	▪ Judgment [ENG(NAATI:Cover page only/KOR]	HWANG appealed against the decision on its claim for unjust enrichment, held on 20 Oct 2016. The court dismissed the appeal on the basis of: 1) lack of evidence to support existence of profits from UHAK Station; and 2) same reasons with prior judgment (and further comments)
Seoul Southern District Court (Civil division) Case No.: 2015GAHAP1223 Claim: Unjust enrichment Plaintiff HWANG, Je Hun Defendant LEE, Bo Hyun	20 Oct 2016	▪ Judgment [ENG(NAATI:Cover page only/KOR]	HWANG brought an action against LEE for unjust enrichment from UHAK Station and Best Cellar Language School. The court decided that HWANG’s claim was groundless by reasons of: 1) lack of evidence; 2) HWANG’s failure to claim for distribution of profits at the time of termination of contract for from UHAK Station; and 3) absence of contract for Best Cellar Language School.
Other criminal matters
Seoul Central District Prosecutors’ Office Case No.: 2018HYEONGJE69162 Charge: Embezzlement Accuser PARK, Jong Hyun Defendant LEE, Bo Hyun	12 Mar 2019	▪ Notification of reasons for non-prosecution [KOR only]	Prosecutors’ Office decided not to proceed with prosecution against LEE, Bo Hyun on the basis of insufficient evidence.
Seoul Central District Prosecutors’ Office Case No.: 2017HYEONGJE4415 Charge: Fraud Prosecution Defendants LEE, Bo Hyun HAN, Hye Young CHOI, Chi Hoon	4 Jul 2017	▪ Notification of reasons for non-prosecution [ENG(NAATI)/KOR]	Prosecutors’ Office decided not to proceed with prosecution against HWANG, HAN and CHOI on the basis of insufficient evidence.
	4 Jul 2017	▪ Criminal Facts [KOR only]
	11 May 2017	▪ Criminal Facts [ENG(NATTI)/KOR]
Seoul Central District Prosecutors’ Office Case No.: 2016HYEONGJE98123 Charge: 1) Obstruction of Business; 2) Contravention of Privacy Act Prosecution Defendant CHOI, Choi Hoon	28 Apr 2017	▪ Notification of reasons for non-prosecution [ENG(informal)/KOR]	Prosecutors’ Office decided not to proceed with prosecution against CHOI on the basis of insufficient evidence.
	3 Jan 2017	▪ Statement of Opinion (CHOI’s counsel) [KOR only]
Seoul Western District Prosecutors’ Office Case No.: 2016HYEONGJE2140 Charge: 1) Embezzlement; 2) Business-related malpractice Accuser HWANG, Je Hun Defendant LEE, Bo Hyun	09 Jun 2016	▪ Notification of reasons for non-prosecution [ENG(NAATI)/KOR]	Prosecutors’ Office decided not to proceed with prosecution against LEE, Bo Hyun on the basis of insufficient evidence.
Seoul Western District Prosecutors’ Office Case No.: 2014 HYEONGJE72027 Charge: 1) Embezzlement; 2) Business-related embezzlement Accuser HWANG, Je Hun Defendant LEE, Bo Hyun	26 Aug 2015	▪ Notification of reasons for non-prosecution [ENG(NAATI)/KOR]	Prosecutors’ Office decided not to proceed with prosecution against LEE, Bo Hyun on the basis of insufficient evidence.
Seoul Central District Prosecutors’ Office Case No.: 2014HYEONGJE45399 Charge: 1) Fraud; 2) Embezzlement and 3) Contravention of Copyright Laws Accuser HWANG, Je Hun Defendants LEE, Bo Hyun	26 Sep 2014	▪ Notification of reasons for non-prosecution [ENG(NAATI)/KOR]	Prosecutors’ Office decided not to proceed with prosecution against LEE, Bo Hyun on the basis of insufficient evidence.
Application for correction report against TV Chosun and others
Seoul Central District Court (Civil division) Case No.: 2017GAHAP503833 Claim: 1) Application for correction report, 2) Defamation Applicants CHOI, Chi Hoon LEE, Bo Hyun Respondents TV Chosun KIM, Do Hyeong	29 Nov 2017	▪ Judgment [ENG(NAATI:partly translated)/KOR]	CHOI and LEE brought an action against TV Chosun and KIM (reporter) for defamation and sought an order that they should deliver the correction report. The court held that the claim for the correction report was groundless; however, the defamation claim was partly proved. As such, the court ordered the damage of KRW1,000,000 in favour of CHOI and LEE.
	21 Nov 2017	▪ Statement of Claim for reference (CHOI & LEE) [KOR only]
	7 Nov 2017	▪ Witness statement transcript (HWANG) [ENG(NAATI:partly translated)/KOR]
Seoul Central District Court (Civil division) Case No.: 2017GAHAP567615 Claim: Application for correction report Applicants CHOI, Chi Hoon LEE, Bo Hyun Respondents TV Chosun MBC OBS Kyungin TV YTN Kookmin Ilbo	20 Nov 2017	▪ Defence (MBC) [ENG(informal)/KOR]	The second defendant lodged a defence for the allocation of the correction report on the basis the: 1) the second defendant reported objective facts in brief news; and 2) the second defendant did not report that the plaintiff deceived the students by introducing expensive insurance premiums. Note: this case might be a separate proceeding from other applications. (need more supporting documents)
Seoul Supreme Court (Civil division) Case No.: 2016LA21461 Claim: Appeal against the decision on the application for injunction to remove the report Appellant CHOI, Chi Hoon Respondent TV Chosun	10 Apr 2017	▪ Judgment [ENG(informal)/KOR]	CHOI appeal against the decision held on 2 Dec 2016 for the application for injunction. But, the court dismissed the appeal on the basis of: 1) same reasons with prior judgment; 2) absence of standard for agent fee calculate; and 3) huge gaps of premiums between insurance companies
	31 Oct 2017 28 Jul 2017 Jun 2017 26 May 2017 23 Mar 2017 28 Feb 2017	▪ 6 copies of Statement of Claim (CHOI) [KOR only]
Seoul Central District Court (Civil division) Case No.: 2016GAHAP81403 Claim: Application for injunction to remove the report Applicant CHOI, Chi Hoon Respondents TV Chosun	2 Dec 2016	▪ Judgment [ENG(informal)/KOR]	CHOI sought an injunction to remove TV Chosun’s report. The court rejected the application on the basis that: 1) It cannot be proved that the contents of the article is not true; and 2) The applicant has not sufficiently proved that his right was infringed.
Compensation claim against LEE and others
Seoul Central District Court (Civil division) Case No.: 2018NA47938 Claim: appeal against the decision on compensation claim Appellants LEE Bo Hyun HAN, Hye Young CHOI, Chi Hoon Respondents PARK, Jong Hyun	7 Oct 2019	▪ Court progress information [KOR only]	PARK claimed compensation from LEE and others for loss incurred from the IBN’s conduct in benefiting from a gap in insurance premiums quoted and charged. As the claim was held to be successful in the lower court, LEE and others appealed against the decision to the appeal court.
	21 May 2019	▪ Defence for preliminary pleading (LEE & others) [KOR only]
	3 Apr 2019	▪ Witness statement transcript [KOR only]
Seoul Central District Court (Civil division) Case No.: 2018GASO7233613 Claim: compensation Plaintiff PARK, Jong Hyun Defendants LEE Bo Hyun HAN, Hye Young CHOI, Chi Hoon	17 Jul 2018	▪ Not found	Note: there must be a judgment in the lower court, which held that LEE and others are liable for the compensation.
Compensation claim against HWANG
Seoul Central District Court Claim: 1) Obstruction of Business, 2) Contravention of Privacy Act, 3) Defamation0 Plaintiff CHOI, Chi Hoon Defendant Unknown	Oct 2016	▪ Complaint Form [KOR only]	CHOI lodged a complaint to Seoul Central District Court for Obstruction of Business, Contravention of Privacy Act and Defamation. Although the Complaint did not specify the defendant, it is inferred that HWANG is a potential defendant.

Decision last updated: 30 May 2022