Lee v Kim

Case [2006] NSWCA 384
Reported Decision: 68 NSWLR 433

Court of Appeal


CITATION: Lee & Anor v Kim [2006] NSWCA 384
HEARING DATE(S): 24 August 2006
 
JUDGMENT DATE: 
20 December 2006
JUDGMENT OF: Handley JA at 1; Beazley JA at 38; Santow JA at 39
DECISION: 1. Appeal allowed with costs.; 2. Orders of the District Court of 25 August 2005 set aside.; 3. In lieu thereof order that there be judgment for the defendants in action 219/05 with costs.; 4. The plaintiff Chung Yup Kim is to pay the defendants’ costs of the notice of motion of 30 May 2005.; 5. The respondent is to have a certificate under the Suitors’ Fund Act 1951.
CATCHWORDS: DEFAMATION – successive actions – same publications - DEFAMATION – 1974 Act – s 9(3) – leave to bring second action – principles – leave refused - RES JUDICATA – successive actions – same publications – cause of action estoppel
LEGISLATION CITED: Defamation Act 1974
CASES CITED: Arnold v National Westminster Bank plc [1991] 2 AC 93
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Emanuele v ASC (1999) 188 CLR 114
Green v Weatherill [1929] 2 Ch 213
Henderson v Henderson (1843) 3 Hare 100 [67 ER 313]
Macdougall v Knight (1890) 25 QBD 1
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38
Spautz v Kirby (1989) 21 NSWLR 27
Trawl Industries of Australia v Effem Foods Pty Ltd (1992) 36 FCR 406
PARTIES: Yoon Shin Lee (First Claimant)
The Sydney Korean Herald Pty Ltd (Second Claimant)
Chung Yup Kim (Opponent)
FILE NUMBER(S): CA 40759 of 2005
COUNSEL: J S Wheelhouse SC/D Jay (Claimants)
C J Dibb (Opponent)
SOLICITORS: Banki Haddock Fiora (Claimants)
N/A (Opponent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 219 of 2005
LOWER COURT JUDICIAL OFFICER: Rein DCJ
LOWER COURT DATE OF DECISION: 25 August 2005



                          CA 40759 of 2005

                          HANDLEY JA
                          BEAZLEY JA
                          SANTOW JA

                          20 DECEMBER 2006
YOON SHIN LEE & ANOR v CHUNG YUP KIM
CATCHWORDS

DEFAMATION – successive actions – same publications

DEFAMATION – 1974 Act – s 9(3) – leave to bring second action – principles – leave refused

RES JUDICATA – successive actions – same publications – cause of action estoppel


FACTS

The appellant was the publisher of the Sydney Korean Herald, a weekly newspaper in the Korean language. The respondent brought successive actions in defamation against the appellant for republishing statements about the respondent by the Board and Management of the Sydney Korean Society. At a 7A trial with a jury, the respondent applied for and was denied leave to amend to rely on the material actually published rather than material published in another Korean newspaper and the jury were directed to return a verdict for the defendant. A second action was then brought in respect of the same defamatory imputations based on the…

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AGLC
Lee v Kim [2006] NSWCA 384
Case
[2006] NSWCA 384
Decision Date

CaseChat Overview and Summary

The plaintiff, Lee, commenced a defamation action against the defendants, Kim and others. This was the second defamation action brought by the plaintiff concerning the same publications. The defendants sought to have the second action stayed or dismissed on the grounds of *res judicata* and cause of action estoppel, and alternatively, sought leave to bring the second action under section 9(3) of the *Defamation Act 1974* (NSW). The primary judge refused to grant leave, and the plaintiff appealed to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the second defamation action was barred by the doctrine of *res judicata* or cause of action estoppel, and if not, whether leave should be granted under section 9(3) of the *Defamation Act 1974* (NSW) to commence the second action. Section 9(3) requires a plaintiff to obtain leave of the court to bring a second or subsequent action for defamation based on the same publications as a previous action.

The Court of Appeal held that the second action was not barred by *res judicata* or cause of action estoppel because the first action had been dismissed for want of prosecution, not on its merits. However, the Court found that the plaintiff had failed to establish sufficient grounds to warrant the grant of leave under section 9(3) of the *Defamation Act 1974* (NSW). The Court noted that the plaintiff had not provided a satisfactory explanation for the delay in prosecuting the first action and had not demonstrated that the second action was being brought in good faith or that there were special circumstances justifying a second proceeding.

The Court of Appeal allowed the appeal, set aside the orders of the District Court, and entered judgment for the defendants in the second action with costs. The plaintiff was also ordered to pay the defendants' costs of the notice of motion and was granted a certificate under the *Suitors' Fund Act 1951*.

Orders

Orders of the court

1. Appeal allowed with costs.; 2. Orders of the District Court of 25 August 2005 set aside.; 3. In lieu thereof order that there be judgment for the defendants in action 219/05 with costs.; 4. The plaintiff Chung Yup Kim is to pay the defendants' costs of the notice of motion of 30 May 2005.; 5. The respondent is to have a certificate under the Suitors' Fund Act 1951.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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