Lee v Kim

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*.