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

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).
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.

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.

Continue reading Yuen v Chan

Details

AGLC: Yuen v Chan [2019] NSWCA 63
Case: [2019] NSWCA 63
Decision Date: 25 March 2019

CaseChat Overview and Summary

The parties to this proceeding were Yuen (the applicant) and Chan (the respondent). The applicant sought leave to appeal a decision of the primary judge. The dispute concerned allegations of defamation, with the applicant contending that certain imputations were carried by the respondent's publications and were defamatory. The applicant also raised issues regarding the relevance of one imputation to an occasion of privilege and whether the respondent was actuated by malice in publishing the defamatory material. The application for leave to appeal was heard by Gleeson JA and Emmett AJA.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that certain additional imputations were not carried by the respondent's publications, whether one particular imputation was relevant to the occasion of privilege, and whether the respondent was actuated by malice. The applicant also sought to challenge the primary judge's factual findings. A key consideration for the Court was whether the applicant had demonstrated a sufficient case for leave to appeal, particularly in the absence of a significant issue of principle.

The Court of Appeal determined that no sufficient case had been shown for leave to appeal. The Court noted that the application did not raise any significant issue of principle and that the grounds of appeal largely involved a challenge to the primary judge's factual findings. Given the nature of the application and the lack of a compelling reason to disturb the primary judge's findings, leave to appeal was refused.

Consequently, the summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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