Taylor v J & D Stephens Pty Ltd

Case [2018] NSWCA 287


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Un v Chow [2018] NSWCA 287
Hearing dates: 20 November 2018
Decision date: 28 November 2018
Before: Basten JA at [1];
Leeming JA at [2];
Barrett AJA at [27]
Decision:

1. To the extent necessary, grant leave to appeal against the second respondent.

 2. Appeal dismissed, with costs.
Catchwords: DEFAMATION – appellant maintained imputations were true – no defence of truth raised at trial – appeal dismissed
Legislation Cited: Associations Incorporation Act 1984 (NSW)
Defamation Act 2005 (NSW), ss 30, 40
District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), s 75A(8)
Cases Cited: Chen v State of New South Wales [2016] NSWCA 177
Chow v Un [2017] NSWDC 254
Chow v Un (No 2) [2017] NSWDC 301
Hall v van der Poel [2009] NSWCA 436
Lan v Kaymet Corporation Pty Ltd [2017] NSWCA 52
NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210
Category:Principal judgment
Parties: Chi Keong Un (Appellant, in person)
Sum Chow (First Respondent)
Colin Chiu Kwan Chau (Second Respondent)
Representation:

Counsel:
R Rasmussen (Respondents)
K P Smark SC (Amicus Curiae)

  Solicitors:
Pancific Legal (Respondents)
File Number(s): 2017/302171
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Civil
Citation:
[2017] NSWDC 254
Date of Decision:
15 September 2017
Before:
Gibson DCJ
File Number(s):
2014/362714

Judgment

  1. BASTEN JA: I agree with Leeming JA.

  2. LEEMING JA: Mr Chi Keong Un appeals from judgments obtained in the District Court by the plaintiffs, Mr Sum Chow and Mr Colin Chiu Kwan Chow, in the amounts of $105,588 and $72,244 respectively. The trial lasted six days before the primary judge (Gibson DCJ) sitting without a jury. At that trial, Mr Un was represented by solicitor and counsel.

  3. The plaintiffs sued for defamation based on written material said to have been published by Mr Un. The publication was said to have occurred when Mr Un distributed a pamphlet in the foyer of a building in Chinatown in Sydney, to persons who attended a Chinese restaurant within that building. The pamphlet was written in Traditional Chinese. The article itself, and a translation, are contained in the reasons for judgment of the primary judge at [3] and [4] respectively: see Chow v Un [2017] NSWDC 254, and there is no need for them to be repeated in these reasons.

  4. The imputations which the plaintiffs alleged arose from the publication of the article were as follows (as formulated in [5] of the reasons of the primary judge):

“(a)   The first plaintiff [Sum Chow] is a bankrupt in Hong Kong (paragraph 4 of the matter complained of);

(b)   The first plaintiff concealed his bankruptcy from the department of immigration (paragraphs 1, 4 and 16 of the matter complained of);

(c)   The first plaintiff concealed his bankruptcy from the members of Goon Yee Tong after he migrated to Sydney (paragraph 4 of the matter complained of);

(d)   The first plaintiff engaged in…

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Details
AGLC
Un v Chow [2018] NSWCA 287
Case
[2018] NSWCA 287
Decision Date

CaseChat Overview and Summary

The appellant, Taylor, brought proceedings against the respondents, J & D Stephens Pty Ltd and another, alleging defamation. The core of the dispute concerned imputations made by the appellant which were maintained to be true. The appeal was heard by Basten and Leeming JJA, and Barrett AJA.

The primary legal issue before the court was whether the appellant could succeed on appeal, given that the defence of truth, which the appellant maintained was available, had not been raised at the trial. The court was required to consider the implications of this failure to plead and rely on the defence of truth at the initial hearing.

The court reasoned that the appellant's assertion that the imputations were true, without having formally pleaded or relied upon the defence of truth at trial, was insufficient to establish grounds for appeal. The failure to raise this defence at the appropriate stage meant that the trial court had not had the opportunity to consider it. Consequently, the appeal was dismissed.

Leave to appeal against the second respondent was granted to the extent necessary, and the appeal was dismissed with costs.

Orders

Orders of the court

1. To the extent necessary, grant leave to appeal against the second respondent.

2. Appeal dismissed, with costs.

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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