IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40678/04 DC 5376/02
HANDLEY JA BRYSON JA M W CAMPBELL AJA
Tuesday 30 August 2005
YOON SHIN LEE v BOB CHAE-SANG CHA
Judgment
HANDLEY JA: I have had the benefit of reading the judgment of Campbell AJA in draft and I agree with his reasons and the orders proposed.
The appellant published the first matter complained of, the full text of an auditor’s report into the affairs of the Year 2000 Sydney Olympic/Korean Supporting Committee in its newspaper without comment or qualification. Apart from the bare fact of publication, strictly the republication, of the report in the appellant’s newspaper, there was nothing in the context which could be reasonably considered an adoption of the report but neither was there any material which removed or qualified the imputations it conveyed.
“… the question whether the publisher of defamatory hearsay has ‘adopted’ [it] is irrelevant to … whether the republisher is liable for defamation.”
This principle is deeply embedded in the law of defamation. At common law the judgments of courts attracted absolute privilege and the republisher of such a judgment had the benefit of qualified privilege. In other words the republisher of a court judgment who did not adopt it in any way had nevertheless published any defamatory imputations in it and would be liable in damages for that publication if he was guilty of malice.
For most practical purposes a person who republishes a libel can only escape a finding of publication of the defamatory imputations in it if he…
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.
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Details
AGLC
Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279
Case
[2005] NSWCA 279
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by Bob Chae-Sang Cha against a decision made by a trial judge in a defamation proceeding. The central dispute revolved around the trial judge's decision to discharge the jury during the proceedings.
The legal issues before the appellate court were whether the trial judge had erred in the exercise of their discretion by discharging the jury, and whether counsel's address had been of such a nature as to justify this action. The court was required to consider the principles governing appellate review of decisions to discharge a jury, particularly in the context of alleged misconduct or serious error by counsel.
The court affirmed that a decision to discharge a jury is an exercise of judicial discretion and that appellate courts should approach such reviews with significant caution. Drawing on established principles, the court emphasised the advantages a trial judge has in observing events within the full context of the trial, perceiving factors not always apparent to an appellate court, and the inherently evaluative nature of such discretionary decisions. While acknowledging that appellate courts may, in certain circumstances, intervene if a miscarriage of discretion has occurred and there is a real possibility of injustice, the court indicated a strong reluctance to interfere unless a clear and distinct demonstration of error is provided.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
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
During address Judge Gibson referred to her view that she regarded the discharge of a jury as “the last resort”. (See Kirby P in Morgan at 212). No doubt in acceptance of the Judge’s awareness of the relevant principles no submissions were made to us which require a detailed examination of them.Appellate Review of Decision to Discharge a Jury. As McColl JA observed in Obeid a decision to discharge a jury involves the exercise of judicial discretion in an area of practice and procedure. Appellate review of a decision to discharge a jury must be approached with particular caution: Morgan v John Fairfax & Sons Ltd (1998) 13 NSWLR 208 at 221 per Samuels JA, at 237 per Clarke JA. The principles governing appellate review of such a decision were outlined in Morgan (at 214-215) by Kirby P who said:“1.Where a trial judge has discharged a jury on the ground of misconduct or serious error by counsel, an appellate court should be extremely slow to interfere in the exercise of such a discretion. The reasons for such reluctance are obvious. They include:(a) the advantages which the trial judge has in seeing the suggested offences in the context of the entirety of the trial: see Street CJ in R v George (at 533-534); citing R v Smith (Court of Criminal Appeal, 8 October 1982, unreported) [reported on other grounds [1982] 2 NSWLR 608];(b) the advantages which the trial judge has in perceiving factors that may never be fully apparent to an appellate court and which may be specially relevant in the evaluation of alleged misconduct: see, eg, Brereton J in Wishart v Mirror Newspapers Ltd (at 751; 1571; 236);(c) the recognition of the inescapably opinionative nature of the discretion which the trial judge is called upon to exercise, such decisions being evaluative and not normative in character; and(d) the particular restraint which is generally exercised by appellate courts in reviewing decisions which may be characterised as concerned with matters of practice or procedure: see Jordan CJ in Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 at 179; approved in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.2. These considerations, and doubtless others, provide the basis for the repeated expressions of restraint that appear in judgments of appellate courts called upon to review a decision to discharge or to refuse to discharge a jury for misconduct or serious error by counsel. The formulae differ but the instruction remains the same. The language ranges from the injunction that the discretion is ‘so wide that it would be very difficult indeed for this Court to interfere:’ see Taylor (at 389; 691) to the suggestion that the court will intervene only ‘with reluctance and anxiety’: see Wellington v Lake George Mines Pty Ltd (at 328; 75; 629). It is variously stated that the appellant must provide a clear and distinct demonstration that the ‘order was wrongly made’ (see Wishart v Mirror Newspapers Ltd (at 757; 1576; 242) or that the appellate court will hesitate before taking the ‘grave step’ to ‘stigmatise as plainly unjust and unreasonable’ the exercise of a discretion by a trial judge: see Atkinson v Atkinson [1969] VR 278 at 279; (1968) 13 FLR 322 at 323; see also Wake v John Fairfax & Sons Ltd (Court of Appeal, 27 February 1973, unreported) (reported on another point [1973] 1 NSWLR 43); and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 237. Even in the case of criminal appeals, where liberty is at stake and different ultimate criteria apply, the Court of Criminal Appeal has suggested that such applications will ‘rarely succeed’ and this even in the case of a ‘gross’ situation: see R v George (at 534). 3. Nevertheless, there will be cases where an appellate court, with the benefit of more time for reflection, a transcript and the opportunity to stand back from the whole case and to see the conduct complained of ‘against the entire canvass of the trial’, will be in a better position than the trial judge to evaluate the prejudice complained of: cf Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; Varga (at 18).4. If the appellate court concludes that the trial judge's discretion has indeed miscarried and that there is a real possibility that an injustice has occurred, that court, notwithstanding the inhibitions previously stated, may set aside the order complained of and do so not only to ensure justice to the parties before the court but also to uphold the integrity of the legal process.”