District Court
New South Wales
Medium Neutral Citation: Sum Yuen v Justin Yat-kun Chan [2018] NSWDC 274 Hearing dates: 25 June 2018 – 27 June 2018 Decision date: 27 September 2018 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the defendant. For Orders see [138]
Catchwords: Defamation; Words spoken at meetings held by incorporated association; defence of qualified privilege upheld Legislation Cited: Defamation Act 2005 Cases Cited: Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Enders v Erbas & Associates Pty Limited [2014] NSWCA 70
Gross v Western [2007] 69 NSWLR 279
Guise v Kouvelis (1946) SR (NSW) 419
Horrocks v Lowe [1975] AC 135
Lindholdt v Hyer (2008) 251 ALR 514
Radio 2UE Sydney Pty Limited v Chesterton (2009) 238 CLR 460
Roberts v Bass [2002] 212 CLR 1Texts Cited: Gatley on Liable and Slander 12th Ed Category: Principal judgment Parties: Sum Yuen (Plaintiff)
Justin Yat-kun Chan (Defendant)Representation: Counsel:
Solicitors:
R Potter with H Elachkar (Plaintiff)
R Rasmussen (Defendant)
Rydge Evans Lawyers
Pancific Legal
File Number(s): 16/45042 Publication restriction: Nil
Judgment
The plaintiff’s claim
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By a Further Amended Statement of Claim (“FASOC”) filed on 13 October 2016, the plaintiff claims damages, including aggravated damages, interest and costs for defamation which he said occurred when the defendant published defamatory statements of the plaintiff at two meetings of an incorporated association known as Goon Yee Tong (“GYT”) on 15 September 2015 and on 13 December 2015. GYT was formed well over a century ago as an unincorporated association for the purpose of providing welfare and assistance to individuals and their families originally from the Chinese county of Dongguan, within the province of Guangdong.
Background to the dispute
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In 1990 GYT was incorporated as an incorporated association, pursuant to the Incorporated Associations Act 1984.
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GYT had a sister society known as Luen Fook Tong (“LFT”), which had been formed for a similar purpose to assist individuals and families coming from a neighbouring county in China.
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In 1917, GYT and LFT agreed to buy vacant land in Dixon Street, Sydney, upon which they built two properties. The title to those properties was held by four trustees from time to time, two from each society. Two three-storey buildings were subsequently erected on the land which still exists today at 50 and 52 Dixon Street, Sydney. The plaintiff contends that they have a value somewhere in the region of $7.5 million.
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In 1995, the title of those two properties was transferred to a third incorporated association called Luen Yee Tong (“LYT”). It was incorporated on 1 February 1995, following which, it was managed by a committee of 14 people comprising seven representatives from each of GYT and LFT.
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In January 2008, an annual general meeting of GYT was held, in which two resolutions were adopted by the members. The first was for a new constitution. The second resolution was to “legally separate the ownership of properties at 50 and 52 Dixon Street”. Problems had arisen with the management…
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- Case
- [2018] NSWDC 274
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the words spoken by Chan were defamatory, which involved assessing the ordinary meaning of the words and their impact on Yuen's reputation. Additionally, the court had to evaluate whether Chan's statements were protected by the defence of qualified privilege, considering the circumstances under which the statements were made and the relationship between the parties involved. The court had to decide if the occasion demanded a duty to make the statements and if the statements were made honestly, without malice, and within the bounds of a legitimate interest or duty.
The Federal Circuit Court found that the words spoken by Chan were indeed defamatory, but upheld the defence of qualified privilege. The court reasoned that the context of the meetings, held for the purpose of governance and decision-making within the association, provided a setting where such communications were necessary. The judge concluded that Chan had a legitimate interest in communicating the statements, and they were made without malice, thus satisfying the requirements for qualified privilege. Consequently, the court ruled in favour of Chan, dismissing Yuen's claim for defamation.
Orders
Orders of the court
Verdict for the defendant. For Orders see [138]
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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