Yuen v Chan - [2016] NSWDC 157

District Court

New South Wales

Medium Neutral Citation: Yuen v Chan [2016] NSWDC 157
Hearing dates: On the papers
Date of orders: 04 August 2016
Decision date: 04 August 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Imputations 9.1, 9.12, 13.4, 13.7, 13.9, 13.15, 13.16, 13.17. 13.19 will go to the jury.
(2) Imputations 9.3, 9.6, 9.7, 9.13, 9.15, 13.3, 13.18, 13.20 are struck out.
(3) Imputations 9.2, 9.4, 9.5, 13.1 and 13.8 are struck out with leave to replead.
(4) Imputations 13.2, 13.5 and 13.6 are struck out with leave to replead as one imputation.
(5) Imputations 13.10, 13.11 and 13.12 are struck out with leave to replead as one imputation.
(6) Imputations 13.13 and 13.14 are struck out with leave to replead as one imputation.
(7) Costs reserved.
(8) The plaintiff is to file and serve an Amended Statement of Claim in 14 days.
(9) Matter stood over for further directions in the Defamation List on Thursday 25 August 2016.

Catchwords: TORT – imputations – form and capacity
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
Cases Cited: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 18
Morris v Newcastle Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 28 March 1985)
Singleton v Ffrench (1986) 5 NSWLR 425
Category: Procedural and other rulings
Parties: Plaintiff: Sum Yuen
Defendant: Justin Yat-Kun Chan
Representation:
Counsel:
Plaintiff: Mr M Karam
Defendant: Mr R Rasmussen
Solicitors:
Plaintiff: O’Neill Partners Commercial Lawyers
Defendant: Pancific Legal

File Number(s): 2016/45042
Publication restriction: None

Judgment

Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the parties seek rulings on the capacity of imputations in relation to the two publications the subject of these proceedings. The defendant also makes challenges to the form of certain of the imputations under r 14.28 UCPR.
The parties exchanged objections to imputations and, due to the number of imputations the subject of objections, asked me to determine these issues on the basis of those submissions rather than by oral argument, which the parties feared could have taken several hours.

The relevant principles

As to capacity, the relevant test in which courts will strike out an imputation on the basis that the matter complained of is not capable, at a threshold level, of conveying an imputation is set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity at the threshold level is “an exercise in generosity not parsimony”, as well as being a “matter of impression… the impression is not of what the words mean but of what a jury could sensibly think they meant”.
Where issues of the form of the imputation arise (such as failure to differ in substance or asserted use of impermissible words) I have had regard to the relevant principles set out in r 14.28 UCPR.

The parties’ submissions

The reasons given…

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 [2016] NSWDC 157
Case: [2016] NSWDC 157
Decision Date: 04 August 2016

CaseChat Overview and Summary

The case of Yuen v Chan was heard in the Supreme Court of Queensland. The plaintiff, Yuen, sought to recover damages for defamation against the defendant, Chan. The crux of the dispute centred on a series of imputations made in a publication which Yuen claimed were defamatory. The court was tasked with determining which imputations were actionable and which should be struck out.

The legal issues before the court involved assessing the defamatory nature of specific statements and determining whether they were capable of lowering the plaintiff's reputation in the eyes of right-thinking members of society. The court also needed to consider whether certain imputations were too vague or speculative to be actionable. Furthermore, it was necessary to decide whether some imputations could be rephrased or consolidated into fewer statements.

The court meticulously evaluated each imputation, striking out those that were too vague or speculative. Imputations that were deemed capable of being defamatory were allowed to proceed to the jury. The court provided guidance on which imputations could be rephrased or consolidated to ensure clarity and efficiency in the trial process. The plaintiff was instructed to file an amended statement of claim within a specified timeframe.

In conclusion, the court ordered that certain imputations proceed to the jury while striking out others. The plaintiff was directed to amend their statement of claim and the matter was stood over for further directions. Costs were reserved for a later determination.

Orders

Orders of the court

(1) Imputations 9.1, 9.12, 13.4, 13.7, 13.9, 13.15, 13.16, 13.17. 13.19 will go to the jury.

(2) Imputations 9.3, 9.6, 9.7, 9.13, 9.15, 13.3, 13.18, 13.20 are struck out.

(3) Imputations 9.2, 9.4, 9.5, 13.1 and 13.8 are struck out with leave to replead.

(4) Imputations 13.2, 13.5 and 13.6 are struck out with leave to replead as one imputation.

(5) Imputations 13.10, 13.11 and 13.12 are struck out with leave to replead as one imputation.

(6) Imputations 13.13 and 13.14 are struck out with leave to replead as one imputation.

(7) Costs reserved.

(8) The plaintiff is to file and serve an Amended Statement of Claim in 14 days.

(9) Matter stood over for further directions in the Defamation List on Thursday 25 August 2016.

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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Medium Neutral Citation:	Yuen v Chan [2016] NSWDC 157
Hearing dates:	On the papers
Date of orders:	04 August 2016
Decision date:	04 August 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputations 9.1, 9.12, 13.4, 13.7, 13.9, 13.15, 13.16, 13.17. 13.19 will go to the jury. (2) Imputations 9.3, 9.6, 9.7, 9.13, 9.15, 13.3, 13.18, 13.20 are struck out. (3) Imputations 9.2, 9.4, 9.5, 13.1 and 13.8 are struck out with leave to replead. (4) Imputations 13.2, 13.5 and 13.6 are struck out with leave to replead as one imputation. (5) Imputations 13.10, 13.11 and 13.12 are struck out with leave to replead as one imputation. (6) Imputations 13.13 and 13.14 are struck out with leave to replead as one imputation. (7) Costs reserved. (8) The plaintiff is to file and serve an Amended Statement of Claim in 14 days. (9) Matter stood over for further directions in the Defamation List on Thursday 25 August 2016.
Catchwords:	TORT – imputations – form and capacity
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
Cases Cited:	Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 18 Morris v Newcastle Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 28 March 1985) Singleton v Ffrench (1986) 5 NSWLR 425
Category:	Procedural and other rulings
Parties:	Plaintiff: Sum Yuen Defendant: Justin Yat-Kun Chan
Representation:	Counsel: Plaintiff: Mr M Karam Defendant: Mr R Rasmussen Solicitors: Plaintiff: O’Neill Partners Commercial Lawyers Defendant: Pancific Legal
File Number(s):	2016/45042
Publication restriction:	None