Lee v Korean Society of Victoria (No. 3)
[2016] VSC 210
•28 APRIL 2016 (revised 4 May 2016)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 06474
| SIMON SPENCER REYNER LEE | Plaintiff / Defendant by Counterclaim |
| v | |
| KOREAN SOCIETY OF VICTORIA AUSTRALIA INC (ACN A0026816E) & ORS | Defendants / Plaintiffs by Counterclaim |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 28 APRIL 2016 |
DATE OF RULING: | 28 APRIL 2016 (revised 4 May 2016) |
CASE MAY BE CITED AS: | LEE v KOREAN SOCIETY OF VICTORIA (No. 3) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 210 |
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DEFAMATION – Pleadings – Alternate Hore-Lacey imputations – Whether defendants’ alternate pleaded imputations not substantially different from plaintiff’s imputations – Defences – Contextual truth – Substantial truth – Further particulars of justification
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff / Defendant by Counterclaim | Mr C Truong | Spencer Reyner Law Office Pty Ltd |
| For the First and Second Defendants / First and Second Plaintiffs by Counterclaim | Mr S Wilson QC | Mills Oakley |
| For the Third, Fourth and Fifth Defendants / Third, Fourth and Fifth Defendants by Counterclaim | No appearance. |
HIS HONOUR:
In this application the plaintiff seeks to challenge re-pleaded Hore-Lacy imputations contained in paragraph 11 of the defendants’ proposed amended defence and counterclaim dated 12 April 2016. Further, the defendants seek leave to amend their proposed amended defence and counterclaim by adding additional paragraphs in two ways, firstly by adding a new paragraph 14A that advances the plea of contextual truth; and, secondly, by adding a further particular of justification in relation to imputations that are set out in their defence of substantial truth under paragraph 11A of their pleading.
From Setka v Abbott & Anor[1] the following principles that assist in resolving the plaintiff’s application can be drawn:
[1] (2014) 44 VR 352.
(a) A defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he or she is seeking to set up and must accordingly state clearly and explicitly the meaning that is sought to be justified if it differs from that pleaded by the plaintiff.[2] That is because if the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined to the benefit of the court and the parties.
(b) Accordingly a defendant is able to plead a defamatory meaning which, viewed from the plaintiff's standpoint, and though not pleaded by the plaintiff, would be a permissible variant of the pleaded meaning.[3]
(c) To succeed at trial on a meaning which had not been pleaded, the alternate meaning alleged by the defendant must be ‘not substantially different from and not more injurious than’ the pleaded meanings.[4]
[2] Ibid, 368 [54].
[3] Ibid, 368 [56].
[4] Ibid.
The first imputations, as pleaded by the plaintiff in paragraph 11 of his Amended Statement of Claim, that are in issue are these:
(a) the Plaintiff lied about an incident at the end of year party on 15 December 2012 concerning the Korean Society and Mr Kwak, the Vice President of the Korean Society (‘the Incident’); or alternatively
(b) the Plaintiff deliberately distorted the truth about the Incident.
The defendants’ re-pleaded Hore-Lacy imputation that the plaintiff now challenges is in these terms:
The Plaintiff, who was in charge of the Legal Advisory Committee of the Korean Society had published on his own Facebook and Internet a distorted version of events favouring himself and which thereby did not present an accurate or fair account of the relevant circumstances.
The plaintiff submits that the pleaded alternative meaning does not identify whether this want of accuracy and fairness on his behalf was deliberate, careless or entirely accidental. Essentially for that reason the plaintiff submits that the alternative formulation does not plead a defamatory meaning and is substantially different to his pleaded imputation. By failing to properly address the concept of lying or the concept of deliberate distortion of the truth, the plaintiff contends that the defendants' imputation creates a different and false issue.
The defendants respond that the crux of the repeated imputation relates to the presentation of an inaccurate or unfair account of the relevant circumstances that favoured the plaintiff and thereby produced a distorted version of events. The proposed pleading is therefore a pleading of an imputation that is not more injurious than that pleaded by the plaintiff. The defendants contends that it is a lesser imputation and that it is not substantially different from that pleaded by the plaintiff.
I am not persuaded by the defendants' submission in respect of this particular imputation. In my view the defendants' imputation is substantially different from that which has been pleaded by the plaintiff.
The sting of the plaintiff's imputation is that what was said about the incident was a lie or a deliberate distortion of the truth. Whether there be any difference between those two concepts is a matter that can be resolved at trial. On the other hand, the defendants' imputation fails to address the nature of the plaintiff's conduct in stating the version of events, but rather suggests that his version of events was distorted because it was inaccurate or unfair in that it favoured the plaintiff.
The change of emphasis from the concept of the plaintiff himself acting to distort events, to the fact that the events are distorted, in my view, creates a meaning that is substantially different from the plaintiff's allegation and accordingly sub-paragraphs (a) and (b) of paragraph 11 of the defendants’ pleading will be struck out, apart from the general denial: “They deny the allegations contained in sub paragraphs (a) and (b) thereof”.
The next imputation in issue between the parties is put by the plaintiff as follows in sub-paragraph 11(f) of his pleading:
The Plaintiff was incompetent as a lawyer in that he provided wrong and extreme legal advice to the Korean Society concerning the Incident.
The defendants’ re-pleaded Hore-Lacy imputation is in these terms:
The Plaintiff had provided the Korean Society with inappropriate and extreme advice that the Vice President had committed a serious crime deserving to go to prison, and should resign his position of Vice President, and that the Korean Society should apologise in public in circumstances where the witnesses had different statements, and there was at that stage no legal prosecution.
The distinctions that arise here are firstly, that the re-pleaded Hore-Lacy imputation does not directly address the concept that the plaintiff was incompetent, and secondly that instead of referring to the provision of ‘wrong and extreme legal advice’ it refers to ‘inappropriate and extreme advice’. In my view the words that follow in the defendants' re-pleaded imputation are particulars that explain the nature of the material allegation that has been made. I do not say that their incorporation was inappropriate for that reason, but in order to identify the key distinction between the allegations they can be ignored. The plaintiff has suggested that the addition of those extra words is more in the nature of a vague commentary rather than a defamatory imputation, and raises a false issue by substituting the relevant message and reducing the sting.
The difference between these two imputations lies in the change from the concept of wrong advice to inappropriate advice. In that sense I consider that the re-pleaded Hore-Lacy imputation is either, effectively the same as the plaintiff's imputation or, alternatively, it is attempting to raise some other and different issue that is incorporated into the concept of what would be considered ‘inappropriate’, that is otherwise not to be found in the concept of ‘wrong’. Whatever that might be is not disclosed by the pleading in its present form.
I am not persuaded that the defendants’ re-pleaded imputation is a permissible variant of the plaintiff's pleaded meaning and accordingly I will strike out sub-paragraph (f) of paragraph 11 of the defendants’ pleading, apart from the general denial: “They deny the allegations contained in subparagraph (f) thereof”.
The plaintiff's third pleaded imputation in issue is in these terms:
The Plaintiff engaged in unjustified behaviour by helping the victim and not fulfilling his obligation as a lawyer of the Korean Society to mediate the dispute.
The defendants’ corresponding re-pleaded Hore-Lacy imputation is as follows:
The Plaintiff, as an advisory lawyer to the Korean Society had engaged in unjustifiable behaviour and acting in conflict of interest by becoming a witness in favour of the victim and going to the police, and not mediating between the parties.
The crux of the plaintiff's objection to this re‑pleaded imputation is the inclusion of the reference to acting in conflict of interest, which he submits does not arise in either of the two translated versions of the publication in question, cannot be reasonably read into the translated text, and is substantially different to the plaintiff's pleaded imputation. It is also said to be more injurious than the plaintiff's pleaded imputation.
These submissions return the focus to the plaintiff's pleaded imputation. In substance, two imputations are raised. Firstly that the plaintiff engaged in unjustifiable behaviour; and secondly, that he did not fulfil his obligations as a lawyer, referring to conduct involved in mediating the dispute.
In my view these concepts are not sufficiently defined by the plaintiff to permit him to maintain his objection that there is no substantial reference to the concept of acting in conflict of interest. The allegation that there was a conflict of interest is no more injurious than the allegation that the plaintiff acted in an unjustifiable way or was guilty of unjustifiable behaviour.
The defamatory meaning that the defendants have pleaded, if viewed from the plaintiff's standpoint, is a permissible variant of the pleaded meaning, having regard to the text of the articles. Accordingly I refuse the plaintiff's application to strike out sub-paragraph (g) to paragraph 11 of the defendants’ proposed amended claim.
Turning to the proposed amendments to the defendant's amended defence, I will deal firstly with the proposed addition of a new paragraph 14A, which raises a defence of contextual truth. There was some dispute between the parties about the timing of this application, however in all of the circumstances I am not persuaded that I need further concern myself with that aspect of the matter. Although the trial is only a couple of weeks away, it is clear that the substantive allegations that the plaintiff, as a solicitor, acted in a conflict between his interests and his duties in the circumstances, is already a live issue in the proceeding, identified between the parties for some time.
I am not persuaded that apart from some further pleading amendments by the plaintiff in response and some limited further discovery, there is a serious issue of prejudice that arises for the plaintiff were I to permit this amendment. On the other hand it is clear that the overarching purpose in civil litigation involves ensuring that the dispute is justly resolved between the parties by the determination by the court of all of the real issues that are in dispute between them.
Some particular issues were taken by the plaintiff in relation to sub‑paragraph (c) of the proposed amendment. I do not accept the plaintiff's submission that it would not be open to the tribunal of fact to identify a conflict between interest and duty arising out of the matters that are raised in that sub-paragraph. Likewise, I do not accept that the plaintiff's submission that the prospect of a conflict could not be found on the matters that are raised in sub‑paragraph (d).
I consider that the material allegation is sufficiently identified to enable the plaintiff to understand what is the issue being raised at trial, and accordingly I will permit the defendants to amend their defence by adding a new paragraph 14A in the form that is set out in the defendant's outline of submissions, save that the words, “Sunwood Industries Pty Ltd” in sub-paragraph (c) shall be replaced by the words, “a company of his father's”.
Counsel for the defendants did not press for the inclusion of sub-paragraph (d) in the form contained in their outline of submissions. Accordingly, this sub-paragraph is deleted from the proposed form of the amendment and what was formerly sub-paragraph (e) is moved up in its place.
The final issue was the defendants' application to add further particulars of justification to the defence of substantial truth. These further particulars are responsive to the plaintiff's allegations that the defendant had imputed that he had breached his ethical obligations as a lawyer by disclosing confidential client information concerning the incident, and that the plaintiff was not trustworthy as a lawyer because he had released confidential client information about the incident on the Internet.
The further particulars that the defendants seek to add refer to a separate and unrelated incident that occurred at a committee meeting of the Korean Society, when the defendants allege that the plaintiff breached client confidentiality owed to another person, who was not involved in the end of year party incident, in the circumstances that are set out in the particulars. The crux of the plaintiff’s objection was that the particulars advanced had nothing to do with the incident in question, when the imputation alleged by the plaintiff is confined to breaches by disclosure of confidential information concerning that incident only.
I accept the submission put for the defendants that a breach of client confidentiality is substantially the sting and that the existence of other circumstances that would constitute a breach of a client confidentiality, albeit that are unrelated to that particular incident, may be pleaded by the defendants in their defence of substantial truth. It is a particular of a circumstance that may establish that the plaintiff breached ethical obligations by disclosing client information concerning the incident.
The extent to which that matter may ultimately be relevant will be a matter for the trial judge, nevertheless I will permit that amendment in the form that is set out in the defendant's outline of submissions.
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