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Park v Choi

Park v Choi

Case [2019] NSWDC 660 14 November 2019

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District Court

New South Wales

Medium Neutral Citation: Park v Choi [2019] NSWDC 660
Hearing dates: 17 October 2019
Date of orders: 14 November 2019
Decision date: 14 November 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The claim for publication 1 set out in paragraphs 3 – 5A of the statement of claim is struck out, with leave to replead.
(2) The plaintiff is granted leave to replead the imputations in publications 2 – 4 in accordance with my rulings set out above and, where compliance with those rulings impinges upon other imputations, to redraft those imputations as well.
(3) Plaintiff’s amended statement of claim to be filed and served by 4:00pm Wednesday 27 November 2019.
(4) Proceedings relisted in the Defamation List on Thursday 28 November 2019 for further directions for completion of the defendants’ applications, including applications for further rulings.
(5) Costs reserved.

Catchwords: TORT – defamation – imputations – form and capacity – application for summary dismissal of first matter complained of – substantial pleading errors – difficulties of ruling on remaining imputations due to the number of imputations struck out – general leave to amend subject to further challenge granted
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 28.2 and 28.4
Cases Cited: Berezovsky & Anor v Forbes Inc & Anor [2001] EWCA Civ 1251
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
David & Anor v Abdishou & Ors [2007] NSWSC 1195
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Hayward v Thompson [1982] QB 47
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13
NHB Enterprises Pty Ltd (t/as Bova Compounding) v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606
Random House Australia Pty Ltd v Abbott & Anor (1999) 167 ALR 224
Singleton v Ffrench (1986) 5 NSWLR 425
Taylor v Jecks (1993) 10 WALR 309
Woelfl v Australian Broadcasting Corporation [2014] NSWSC 1943
Wong v Aripin [2011] WASC 174
Texts Cited: Rolph, D., Defamation Law, Sydney: Thomson Reuters (2016)
Category: Procedural and other rulings
Parties: Plaintiff: Hee Yeul Park
First Defendant: Dong Hun Choi
Second Defendant: Seung Ju Hong
Third Defendant: Won Hyo Cho
Fourth Defendant: Hyun Pil Moon
Fifth Defendant: Jong Bae Park
Sixth Defendant: Beck Seon Lee
Representation:
Counsel:
Plaintiff: Mr J Manner
Defendants: Mr T Senior
Solicitors:
Plaintiff: Jacobs Legal
Defendants: MinterEllison

File Number(s): 2019/87870
Publication restriction: None

Judgment

The application before the court

Pursuant to…

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 Park v Choi

Details

AGLC: Park v Choi [2019] NSWDC 660
Case: [2019] NSWDC 660
Decision Date: 14 November 2019

CaseChat Overview and Summary

Park brought an action for defamation against Choi in the Supreme Court of Queensland. The plaintiff alleged defamatory statements made by Choi in four publications. Choi applied for summary dismissal of the first matter complained of and for rulings on the remaining imputations. The court had to decide whether the first matter complained of should be struck out due to substantial pleading errors and whether the remaining imputations were capable of being defamatory.

The court held that the first matter complained of should be struck out because the plaintiff had not properly pleaded the imputations. The court also found that it was difficult to rule on the remaining imputations because of the number of imputations struck out. However, the court granted the plaintiff leave to amend the statement of claim and redraft the remaining imputations to comply with the court's rulings. The court also set a deadline for filing and serving the amended statement of claim and relisted the proceedings for further directions.

The court ordered that the claim for publication 1 be struck out, with leave to replead. The plaintiff was granted leave to replead the imputations in publications 2-4, subject to the court's rulings. The plaintiff's amended statement of claim was to be filed and served by a specified time, and the proceedings were relisted for further directions. Costs were reserved.

Orders

Orders of the court

(1) The claim for publication 1 set out in paragraphs 3 – 5A of the statement of claim is struck out, with leave to replead.

(2) The plaintiff is granted leave to replead the imputations in publications 2 – 4 in accordance with my rulings set out above and, where compliance with those rulings impinges upon other imputations, to redraft those imputations as well.

(3) Plaintiff’s amended statement of claim to be filed and served by 4:00pm Wednesday 27 November 2019.

(4) Proceedings relisted in the Defamation List on Thursday 28 November 2019 for further directions for completion of the defendants’ applications, including applications for further rulings.

(5) Costs reserved.

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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Citations

AGLC Citation

Park v Choi [2019] NSWDC 660

Most Recent Citation

Park v Choi (No. 2) [2020] NSWDC 109

Cases citing this decision · 1 of 1 shown

Park v Choi (No. 2)
[2020] NSWDC 109 Para 2

…As is set out in my judgment on those applications ( Park v Choi [2019] NSWDC 660, 14 November 2019) at [5] – [8], the hearing on these issues had to be adjourned part-heard so that the plaintiff could replead his whole case, which by that stage had increased to include four publications. Although some of the error…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

Fairfax Media Publications Pty Ltd v Pedavoli
[2015] NSWCA 237 Para 56

…ntation, rather like reading a notice of motion in light of the affidavits in support: see, for example Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 at [56] – [81]. I am fortified in this regard by the fact that the first matter complained of is also attached to two of the three other matters comp…
Hockey v Fairfax Media Publications Pty Ltd
[2015] FCA 652 Para 92

…g defective imputations in the pleading which then fail at trial are starkly illustrated by the result in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652. There are clearly defamatory meanings in at least three of the four publications and the task of distilling them in the next draft of the statement…
Woelfl v Australian Broadcasting Corporation
[2014] NSWSC 1943 Para 67

…decision is a good example of the undesirability of such issues occurring at trial; see also Woelfl v Australian Broadcasting Corporation [2014] NSWSC 1943.…
Corby v Allen & Unwin Pty Ltd
[2014] NSWCA 227 Para 12

…The relevant principles in relation to capacity for the purpose of a separate trial under UCPR r 28.2 are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [125]-[136] and need not be restated in detail here. The test generally extracted is that the determination of capacity at the threshold level is “an…
Nationwide News Pty Ltd v Hibbert
[2015] NSWCA 13 Para 9

…The procedure for ruling upon the capacity of imputations is explained by Sackville AJA in Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [24]-[25] as follows:…
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd
[2013] HCA 46 Para 10

…In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303, the High Court noted at [39]-[40]:…
NHB Enterprises Pty Ltd v Sydney Magazine Publishers Pty Ltd
[2013] NSWSC 1163 Para 53

…In NHB Enterprises Pty Ltd (t/as Bova Compounding) v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163 at [31], McCallum J cited this passage with approval and added “[r]esort to context cannot supplant that essential pleading requirement”. There must be a defamatory strong which is conveyed “of and concerning th…
Wong v Aripin
[2011] WASC 174 Para 2

…in relation to the meaning (for example, avoiding a “rolled-up” imputation ( Taylor v Jecks (1993) 10 WALR 309 at [320] – [321]; Wong v Aripin [2011] WASC 174 at [20]) and “weasel words”.…
Radio 2UE Sydney Pty Ltd v Chesterton
[2009] HCA 16 Para 28

…ssional, or business qualifications, qualities, competence, dealings, conduct, or status” ( Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at [2]) are challenged. He submits that the imputations pleaded in the publication deprived the plaintiff of public, social and professional position of church Elder and…
Fred David v Youeil Abdishou
[2007] NSWSC 1195 Para 25

…Mr Manner relies upon the following extracts from David & Anor v Abdishou & Ors [2007] NSWSC 1195 at [8]:…
Favell v Queensland Newspapers Pty Ltd
[2005] HCA 52 Para 28

…ons set out by Rolph, D., Defamation Law , Sydney: Thomson Reuters (2016) at 104, citing Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186. The High Court stated in Radio 2UE Sydney Pty Ltd v Chesterton that “disparagement of reputation” is the essence of an action for defamation and the mere statement of inv…
Greek Herald Pty Ltd v Nikolopoulos
[2002] NSWCA 41 Para 52

…determining whether a publication has a defamatory meaning, it is helpful to note the observations of Mason P in Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [28]:…
Random House Australia Pty Ltd v Abbott
[1999] FCA 1538 Para 29

…the main pillars of Mr Manner’s argument is the statement by the Full Court of the Federal Court in Random House Australia Pty Ltd v Abbott & Anor (1999) 167 ALR 224 at [22] that “to attribute to a person a want of capacity as the holder of an office will be defamatory”.…
Chakravarti v Advertiser Newspapers Ltd
[1998] HCA 37

…to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession" (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander , 8th ed (1981), para31). … [24] A defamatory imputation may be made by reliance u…
Reader's Digest Services Pty Ltd v Lamb
[1982] HCA 4

…the words published, or by innuendo (per Brennan J (Gibbs CJ, Stephen, Murphy and Wilson JJ agreeing) in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 (at 505)). Where no (true) innuendo is pleaded, and the published words clearly relate to the plaintiff, the issue of libel or no libel, can be determine…
John Fairfax v Punch
[1980] FCA 123

…fice is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch (1980) 31 ALR 624 at 632 - 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether t…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 15

…ch was the case in Bik v Mirror Newspapers Ltd ), the test to apply is that set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. This is because the judge should not permit “driving the plaintiff from the judgment seat” other than in the clearest of cases.…
(1964) AC 234
(1964) AC 234

…rt of their ordinary and natural meaning (per Brennan CJ and McHugh J in Chakravarti (at 530 - 532) citing Lord Reid in Lewis v Daily Telegraph Ltd (1964) AC 234 (at 258)). Thus, it is said that the courts require plaintiffs to plead false innuendos, if needed to define the issues (per Brennan CJ and McHugh J at…
[1982] QB 47
[1982] QB 47 Para 56

…It may be that the repleading could enable the plaintiff to determine whether, for example, there is a true innuendo of the Hayward v Thompson [1982] QB 47 kind, in terms of the first matter complained of being read in the light of subsequent documentation, rather like reading a notice of motion in light of the…
Drummoyne Municipal Council v Australian Broadcasting Corporation
79 ER 667 Para 5

…ry vague and general nature, such as the well-known example “X is disgusting” ( Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137), where the matter complained of is of similar generality, that will be sufficient. Unfortunately, that is not the case here.…
Singleton v Ffrench
125 ER 1034 Para 67

…, as opposed to argument, is to be pleaded, that must be set out clearly, to avoid problems of the kind which occurred in Singleton v Ffrench (1986) 5 NSWLR 425 due to the ambiguity of “breach of trust”. This decision is a good example of the undesirability of such issues occurring at trial; see also Woelfl v Austral…
Lewis v Daily Telegraph
(1964) AC 264

…that is also regarded as part of their ordinary and natural meaning (per Brennan CJ and McHugh J in Chakravarti (at 530 - 532) citing Lord Reid in Lewis v Daily Telegraph Ltd (1964) AC 234 (at 258)). Thus, it is said that the courts require plaintiffs to plead false innuendos, if needed to define the issues (per Brennan CJ and McHu…
[1892] 1 QB 797
[1892] 1 QB 797

…f immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch (1980) 31 ALR 624 at 632 - 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was…
UE Sydney Pty Ltd v Chesterton
105 ER 536 Para 28

…here “his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status” ( Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at [2]) are challenged. He submits that the imputations pleaded in the publication deprived the plaintiff of public, social and professional position of chur…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 2005 (NSW)
14.30, 28.2, 28.4 4 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention

Medium Neutral Citation:	Park v Choi [2019] NSWDC 660
Hearing dates:	17 October 2019
Date of orders:	14 November 2019
Decision date:	14 November 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The claim for publication 1 set out in paragraphs 3 – 5A of the statement of claim is struck out, with leave to replead. (2) The plaintiff is granted leave to replead the imputations in publications 2 – 4 in accordance with my rulings set out above and, where compliance with those rulings impinges upon other imputations, to redraft those imputations as well. (3) Plaintiff’s amended statement of claim to be filed and served by 4:00pm Wednesday 27 November 2019. (4) Proceedings relisted in the Defamation List on Thursday 28 November 2019 for further directions for completion of the defendants’ applications, including applications for further rulings. (5) Costs reserved.
Catchwords:	TORT – defamation – imputations – form and capacity – application for summary dismissal of first matter complained of – substantial pleading errors – difficulties of ruling on remaining imputations due to the number of imputations struck out – general leave to amend subject to further challenge granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 28.2 and 28.4
Cases Cited:	Berezovsky & Anor v Forbes Inc & Anor [2001] EWCA Civ 1251 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 David & Anor v Abdishou & Ors [2007] NSWSC 1195 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 Hayward v Thompson [1982] QB 47 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 NHB Enterprises Pty Ltd (t/as Bova Compounding) v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 Random House Australia Pty Ltd v Abbott & Anor (1999) 167 ALR 224 Singleton v Ffrench (1986) 5 NSWLR 425 Taylor v Jecks (1993) 10 WALR 309 Woelfl v Australian Broadcasting Corporation [2014] NSWSC 1943 Wong v Aripin [2011] WASC 174
Texts Cited:	Rolph, D., Defamation Law, Sydney: Thomson Reuters (2016)
Category:	Procedural and other rulings
Parties:	Plaintiff: Hee Yeul Park First Defendant: Dong Hun Choi Second Defendant: Seung Ju Hong Third Defendant: Won Hyo Cho Fourth Defendant: Hyun Pil Moon Fifth Defendant: Jong Bae Park Sixth Defendant: Beck Seon Lee
Representation:	Counsel: Plaintiff: Mr J Manner Defendants: Mr T Senior Solicitors: Plaintiff: Jacobs Legal Defendants: MinterEllison
File Number(s):	2019/87870
Publication restriction:	None