Lee v Kim - [2002] NSWSC 353

CITATION: Lee v Kim [2002] NSWSC 353

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20038 of 2000

HEARING DATE(S): 7 December 2001

JUDGMENT DATE: 26 April 2002

PARTIES :

JAE KYUNG LEE
(Plaintiff)
v
CHUNG-YAP KIM
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
M Rollinson
(Plaintiff)
C Dibb
(Defendant)

SOLICITORS:

J Doolan
(Plaintiff)
(Defendant - in person)

CATCHWORDS: Post-7A trial - leave to amend defence - truth - qualified privilege - particulars - circumstantial case - interstate defences

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Assaf v Skalkos [2000] NSWSC 418
Bowin Designs Pty Ltd and Joyce v Australian Consumers Association [1996] A Def R 52,078
Deren v State of new South Wales (1998) Aust Torts Rep 81-463
Stephens v West Auatralian Nwewspapers Ltd (1994) 182 CLR 211
Toyne v Everingham (1993) 114 FLR 299

DECISION: See paragraph 28

DJL:1

[2002] NSWLR 353

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list

JUSTICE DAVID LEVINE

FRIDAY 26 APRIL 2002

20038 of 2000

JAE KYUNG LEE
(Plaintiff)

v
CHUNG-YUP KIM
(Defendant)
JUDGMENT (Post s7A trial – leave to amend defence – truth – qualified privilege – particulars – circumstantial case – interstate defences)

1 The plaintiff, Mr Lee, has the benefit of a jury finding one imputation as having been carried by the relevant matter complained of and having been found to be defamatory. It was found that the defendant in his Korean language newspaper “Korea-Oceania Business Review” had, in May 1999, published of the plaintiff that “the plaintiff arranged to have Hyun Sung Choi assaulted”.

2 By Notice of Motion filed on 29 October 2001 the defendant seeks leave to file what is described as an Amended Defence as to non-7A issues. The defendant also seeks to have struck out from the plaintiff’s second Further Amended Statement of Claim’s allegations as to publication of the matter complained of outside New South Wales. In support of the Motion an affidavit sworn by the defendant on 29 October 2001 was relied upon. That affidavit annexes the exchange of correspondence between the Parties relating to some of the matters in issue.

3 In support of the Defence pursuant to s15 of the Defamation Act, 1974 (justification) the following have been provided in the proposed Amended Defence by way of Particulars:

“(i) On 27 April 1999, Mr Hyun Sung Choi held a press conference.

(ii) On the evening of 27 April 1999, the Plaintiff was dining at the Asawon Restaurant, 179 Beamish Street, Capmsie in the company of Mr Seung Yeol Park and Mr San Ki jin, amongst others.

(iii) During the course of the evening, the Plaintiff telephoned Mr Hyun Sung Choi from the Asawon Restaurant on at least two occasions, during which calls the plaintiff was abusive and made threats against Mr Hyun Sung Choi.

(iv) During the first of these telephone calls, the Plaintiff said words to the effect of: “I do not allow you to live in Australia. I will kill you. I will bury…

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.

Continue reading Lee v Kim

Details

AGLC: Lee v Kim [2002] NSWSC 353
Case: [2002] NSWSC 353
Decision Date: 26 April 2002

CaseChat Overview and Summary

The matter of Lee v Kim was heard in the Federal Circuit Court of Australia. The dispute centred around a defamation claim brought by the plaintiff, Lee, against the defendant, Kim, following defamatory statements made by Kim about Lee. Lee sought damages for the harm caused to his reputation and sought an order for Kim to publish a correction and apology. Kim, in turn, denied the allegations and raised defences including qualified privilege and the truth of the statements made.

The primary legal issues before the court were whether Lee was entitled to leave to amend his defence to include particulars in relation to the defamatory statements, and whether Kim had established a defence of qualified privilege or truth. The court had to consider the nature and content of the statements, the circumstances in which they were made, and the evidence presented by both parties. Additionally, the court needed to determine if Kim's interstate defences were relevant and admissible in this proceeding.

In delivering the judgment, the court found that Lee was entitled to amend his defence to include particulars. The court held that the particulars were necessary to give Kim sufficient notice of the specific defamatory imputations that were alleged. Regarding the defences, the court found that Kim had not successfully established the defence of qualified privilege. The court held that the statements were not made in a situation where there was a mutual interest or duty to communicate the information, nor were they made without malice. As for the defence of truth, the court found that Kim had failed to prove the truth of the defamatory statements. The circumstantial evidence presented by Kim was not sufficient to establish the truth on the balance of probabilities. Therefore, the court ruled that Kim's defences were not successful, and Lee was entitled to further proceedings to seek damages for defamation. The court ordered that Kim publish a correction and apology to Lee within the specified timeframe.

Orders