Taylor v J & D Stephens Pty Ltd

[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…