Yuen v Chan

[2019] NSWCA 63

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Yuen v Chan [2019] NSWCA 63
Hearing dates:	25 March 2019
Decision date:	25 March 2019
Before:	Gleeson JA at [1] Emmett AJA at [38]
Decision:	Summons seeking leave to appeal is dismissed with costs.
Catchwords:	APPEAL – leave to appeal – whether additional imputations carried and defamatory – whether one imputation relevant to occasion of privilege – whether defendant actuated by malice in publishing the matters complained of – where no issue of principle – challenge to factual findings – whether sufficient case shown for leave – leave refused
Legislation Cited:	Defamation Act 2005 (NSW), ss 6(2), 30 District Court Act 1973 (NSW), s 127(2)(c) Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 Carolan v AMP Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 Daily Examiner Pty Ltd v Mundine Brown v Mundine [2011] NSWCA 126 Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 Gross v Weston (2007) 69 NSWLR 279; [2007] NSWCA 1 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category:	Principal judgment
Parties:	Sum Yuen (Applicant) Justin Yat-kun Chan (Respondent)
Representation:	Counsel: Ms S Chrysanthou / Mr H Elachkar (Applicant) Mr R Rasmussen (Respondent)   Solicitors: R E Lawyers (Applicant) Pancific Legal (Respondent)
File Number(s):	2018/307737
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: District Court, Mahony SC DCJ, 27 September 2018, unrep Date of Decision: 27 September 2018 Before: Mahony SC DCJ File Number(s): 2016/45042

Judgment

1. GLEESON JA: Application is made by Mr Sum Yuen, the plaintiff in the proceedings below, for leave to appeal against a judgment and orders of Mahony SC DCJ given on 27 September 2018 in proceedings for defamation in the District Court. The primary judge found that the defendant, Mr Justin Yat-kun Chan, published four imputations that were defamatory of Mr Yuen, when making oral statements at two meetings of an incorporated association known as Goon Yee Tong (GYT) in February and December 2015. The primary judge upheld the defence of common law qualified privilege and found that this defence was not defeated by malice on the part of Mr Chan. Accordingly, his Honour entered a verdict for Mr Chan and ordered Mr Yuen to pay Mr Chan’s costs of the proceedings: Sum Yuen v Justin Yat-kun Chan (District Court, Mahony SC DCJ, 27 September 2018, unrep).

2. Leave to appeal is required under s 127(2)(c) of the District Court Act 1973 (NSW) because the value of the claim does not exceed $100,000.

3. At the conclusion of argument on 25 March 2019, the Court ordered that the summons seeking leave to appeal be dismissed with costs and reserved its reasons.

4. These are my reasons for joining in those orders.

Background to the proceedings

5. The applicant is and was at the time of the relevant events in 2015, a member of GYT, which became an incorporated association in 1990, under the Associations Incorporation Act 1984 (NSW) (which has since been repealed and replaced by Associations Incorporation Act 2009 (NSW)). GYT is the successor to an unincorporated association by the same name formed well over a century earlier, for the purpose of providing welfare and assistance to individuals and their families who were originally from the Chinese district of Dongguan within the province of Guangdong. The applicant held various official positions within GYT, including that of president in 2009/2010.

6. In October 2014, a dispute arose between the applicant and GYT concerning two properties in Dixon Street, Haymarket, after solicitors acting for the applicant and Ms Lowe, who was president of a sister incorporated association, Luen Fook Tong (LFT), at the time when the applicant was president of GYT, had lodged a caveat on the title of the Dixon Street properties. Title to the two properties had been transferred to another incorporated association known as Luen Yee Tong (LYT) in 1995 by trustees who then held those properties on trust for GYT and LFT. In December 2014, the applicant and Ms Lowe commenced proceedings in the Equity Division against LYT, LFT and GYT seeking injunctive relief to restrain LYT from transferring the two properties, one to LFT and one to GYT.

7. On 15 February 2015, an extraordinary general meeting of GYT was held. The meeting was conducted principally in Cantonese. At trial, the applicant alleged that the respondent made oral statements at that meeting which carried six imputations that were defamatory of the applicant (the first matter complained of). The primary judge found that only three of the imputations were carried and were defamatory of the applicant (imputations 9(a), (d) and (i)).

8. On 13 December 2015, the annual general meeting of GYT was held. Again, the meeting was conducted in Cantonese. At trial, the applicant alleged that the respondent made oral statements at the meeting which carried twelve imputations that were defamatory of the applicant (the second matter complained of). The primary judge found that only one imputation was carried and was defamatory of the applicant (imputation 13(k)).

9. The respondent relied, among others, upon the defence of qualified privilege at common law, in reply to an attack and pursuant to s 30 of the Defamation Act 2005 (NSW). In response to those defences, the applicant pleaded by way of reply to amended defence (par 2) “that the publication of the matters complained of were actuated by express malice in that they were published for the predominant motive of harming the plaintiff”. Various particulars were given. At trial, the plaintiff handed up a schedule of evidence relied upon as supporting a finding of malice based on seven stated facts in the two matters complained of. The plaintiff alleged that the respondent knew these statements to be false or that the respondent was wilfully blind as to their truth or falsity.

10. The primary judge found, in relation to the first meeting of GYT held on 15 February 2015, that the plaintiff’s case rises no higher in evidence than that the defendant did not have a positive belief in the truth of what he had published: Judgment at [127]. In relation to the second meeting of GYT held in December 2015, the primary judge found that the extravagant language employed by the defendant in describing the plaintiff’s motive failed to prove that the defendant was actuated by malice or had an improper motive himself: Judgment at [128].

11. After noting that the defendant did not give evidence and that the plaintiff had tendered certain answers by the defendant to interrogatories, the primary judge found at [131]-[132]:

[131]   Each of the seven matters relied on by the plaintiff as set out in [123] above, falls short of establishing that the defendant’s intention at each meeting was actuated by malice or by an improper purpose. The plaintiff has not established that the defendant’s knowledge of falsity of any of the defamatory material actuated the publication of that material.

[132]   I am therefore not persuaded that the publication of the matters complained of were actuated by express malice so as to defeat the defence of qualified privilege relied on by the defendant, let alone that such malice or improper purpose was the dominant reason for the defendant’s statements.

12. Given the conclusions on common law qualified privilege and malice, the primary judge did not find it necessary to determine the defences of qualified privilege reply to an attack (see Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [74]-[81]), or statutory qualified privilege under the Defamation Act, s 30.

13. However, against the possibility that he was wrong, the primary judge proceeded to assess damages in respect of the four imputations which were found to be carried and defamatory of the applicant. His Honour determined that he would have awarded damages of $75,000 plus interest at 2 per centum for 1.5 years ($2,250).

Issues on proposed appeal

14. The draft notice of appeal contained seven grounds directed to three issues. The first concerned whether the primary judge erred in failing to find that additional imputations were carried and were defamatory of the applicant (grounds 1-4). Counsel for the applicant acknowledged that whether or not these additional imputations were carried does not affect the ultimate outcome of the appeal (AT 1 (18-28), 3 (8-10)).

15. The second issue, as confined in oral argument, concerned whether the primary judge erred in failing to find that imputation 13(k), which his Honour found was carried and was defamatory of the applicant, was relevant to the occasion of qualified privilege (grounds 5-6). Counsel for the appellant submitted that the primary judge had failed to address this issue, but acknowledged that this was a small matter, and again, was not necessarily determinative of the appeal (AT 4 (23-26)).

16. The third issue concerned malice. The applicant sought to challenge the primary judge’s finding that the applicant had failed to demonstrate that the respondent was actuated by malice in publishing the two matters complained of (ground 7).

17. The applicant submitted that the third issue was the most significant and ultimately determinative of the outcome of the proceedings (AT 4 (41-43)). According to the submission, while the primary judge correctly stated the principles with respect to malice, his Honour misapplied those principles.

Disposition of application

18. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, leave will only be granted concerning matters involving issues of principle, questions of general public importance or involving an injustice which is reasonably clear, in the sense of being more than merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (Be Financial) at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

19. There is an additional consideration in matters such as the present where the amount in issue is below the threshold of $100,000. This Court has emphasised the need for restraint in granting applications for leave to appeal in such cases: Daily Examiner Pty Ltd v Mundine Brown v Mundine [2011] NSWCA 126 at [4]-[5]; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at 2-3; and Be Financial at [37]-[39].

20. It is convenient to first address proposed ground 7, which was the focus of the applicant’s oral argument.

Proposed ground 7

21. The applicant submitted that the primary judge’s findings at [127]-[128] revealed error on the issue of malice by limiting his consideration to evidence “in respect of the imputations which [the Court] found to be defamatory”, rather than considering whether each of the publications as a whole were published for a predominantly improper motive. Reference was made to Roberts v Bass (2002) 212 CLR 1 at [76]; [2002] HCA 57

22. As mentioned, the applicant does not complain that the primary judge misstated the principles relating to malice, in referring to the summary of propositions in Gross v Weston (2007) 69 NSWLR 279; [2007] NSWCA 1 at [52] (Hunt AJA, Handley and McColl JJA agreeing), derived from the joint judgment in Roberts v Bass; nor does the applicant complain that the primary judge misstated the test for malice is subjective, meaning that it depends on the defendant’s intention and state of mind when publishing the defamatory material, referring to Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 at [61], in particular, [70] (Tobias AJA, Ward and Leeming JJA agreeing).

23. The applicant submitted that the primary judge misapplied these principles by limiting his consideration to the imputations which were found to be carried and were defamatory and not considering whether the respondent was actuated by malice in publishing the two publications. I do not agree.

24. While his Honour’s consideration of the issue of malice at [127]-[128] was specifically directed to the evidence of the respondent’s recklessness or lack of belief in the truth of the four defamatory imputations, his Honour went on to consider the respondent’s intention “at the time of making the statements during the two meetings” at [130], and made the findings at [131]-[132] which have been set out at [11] above. Those findings addressed, albeit in a compendious manner, all seven matters which were relied upon by the applicant for the contention that each publication was actuated by malice on the part of the respondent.

25. Contrary to the applicant’s submission, nothing turns on the single, infelicitous expression in the second sentence of [131] of his Honour’s reasons. On a fair reading of that sentence, the reference to “the defendant’s knowledge of falsity” is to be understood as a reference to the defendant’s alleged knowledge of falsity.

26. Insofar as the applicant otherwise seeks to challenge the primary judge’s findings on the issue of malice, this proposed ground is concerned wholly with factual findings. The applicant has not demonstrated an injustice which is reasonably clear, in the sense of going beyond a merely arguable error.

Proposed grounds 1-4

27. Proposed grounds 1-4 are related. Grounds 1 and 3 challenge the primary judge’s findings that two imputations (9(f) and (g)) were not carried by the first matter complained of and four imputations (13 (f), (g), (h) and (l)) were not carried by the second matter complained of. Grounds 2 and 4 assert that the primary judge erred in failing to find that one imputation (9(f)) in the first matter complained of and two imputations (13(f) and (l)) in the second matter complained of were not defamatory.

28. As to these grounds, no question of principle or matter of public importance arises. It is not suggested that the primary judge misstated the principles for determining whether the alleged imputations were carried by the publication and were defamatory. These proposed grounds seek to challenge findings of fact. Again, the applicant has not demonstrated that there has been an injustice in the sense of the findings being more than merely arguably wrong.

Proposed grounds 5 and 6

29. Proposed grounds 5 and 6 are connected. As framed, ground 5 asserts that the primary judge erred in failing to consider whether imputations 9(f) and/or (g) were relevant to the occasion of privilege in which the first matter complained of was published. Ground 6 asserts that the primary judge erred in failing to consider whether imputations 13(g), (j) and (k) were relevant to the occasion of privilege in which the second matter complained of was published.

30. These grounds are directed to the defence of qualified privilege at common law which is preserved by the Defamation Act, s 6(2). The applicant conceded at trial that both the first and second matters complained of occurred on an occasion of qualified privilege, but submitted that some of the alleged imputations fell outside of that privilege because they were not relevant to the occasion of privilege.

31. It is not in dispute that there may be limits to what may be said on a subject on an occasion of qualified privilege and those limits are to be tested by the connection of the statement to the subject. Various descriptions have been given of what is “relevant to the occasion”. The essential question is whether the particular statement of which complaint is made is sufficiently relevant, germane, or had a sufficient connection to the occasion: Cush v Dillon (2011) 243 CLR 298 at [19], [22]; [2011] HCA 30.

32. As mentioned, in oral argument the applicant only relied upon imputation 13(k) as being irrelevant to the occasion of privilege. The applicant’s complaint is that the primary judge, having found that imputation 13(k) (that the plaintiff was motivated to break up GYT) was both carried and defamatory, did not expressly consider this imputation and its relevance to the second occasion of privilege. However, the primary judge did consider imputation 13(k) in the context of the issue of malice at [128] and it is implicit that in doing so his Honour accepted that imputation 13(k) was relevant to the second occasion of privilege.

33. As explained in Cush v Dillon at [22], no narrow view should be taken of the pursuit of duty or interest in what was said on an occasion of privilege. In this case, there is much force in the respondent’s submission that it is difficult to see how an imputation, that the applicant is motivated to break up the GYT, published at an annual general meeting at which the effect of the applicant’s continued opposition to the manner in which the executive committee had sought to deal with the assets of GYT, and the applicant’s involvement in Supreme Court proceedings regarding that dispute was discussed, could be irrelevant to the occasion of privilege. In any event, the applicant has not demonstrated an injustice in the sense of the implicit finding being more than merely arguably wrong.

34. I am not satisfied that the proposed appeal has sufficient prospects of success to warrant a grant of leave.

35. There is an additional reason for refusing leave on the ground of proportionality. The hearing before the primary judge occupied four days. Both parties were represented by two counsel. The applicant does not challenge the primary judge’s assessment of damages. Even if the applicant was successful in the appeal, it is most unlikely that this Court would determine the factual questions raised by the issue of malice or the two unresolved issues – the defence of common law qualified privilege (reply to attack) and statutory qualified privilege under s 30 of the Defamation Act. The matter would need to be remitted to the court below for a retrial on those issues, assuming the applicant satisfied the Court that there had been a substantial miscarriage: Uniform Civil Procedure Rules 2005 (NSW), r 51.53.

36. Injustice involves a balancing exercise and the entitlement of parties to justice is not unconditional and must have regard to a number of factors, including the proportionality of the costs involved to the amount in dispute. In this case, the costs of an appeal and a retrial would be disproportionate to the relatively modest amount in issue, approximately $75,000.

37. For the above reasons, leave to appeal was refused with costs.

38. EMMETT AJA: The applicant, the plaintiff in proceedings in the District Court, sought leave to appeal against orders made by the District Court on 27 September 2018 in proceedings brought by the applicant against the respondent for damages for defamation. At the conclusion of the oral submissions on 25 March 2019, the Court ordered that the summons seeking leave to appeal be dismissed with costs. The Court reserved its reasons.

39. I have had the advantage of reading in draft form the reasons proposed by Gleeson JA. His Honour’s reasons reflect my own reasons for joining in the orders made on 25 March 2019. I agree with the observations made by Gleeson JA concerning applications of this nature.

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Decision last updated: 02 April 2019