[1] Mr Kim and Mr Cho are active members of the Korean community in New Zealand. In March 2015 Mr Kim was the President and Mr Cho the auditor of the Korean Society of Auckland Incorporated (Korean Society). The Department of Internal Affairs – Charities Services had recently completed an investigation and released a report into certain aspects of the Society’s affairs, including transactions involving Mr Kim. Mr Cho published an advertisement in a Korean language newspaper that purported to outline the Department’s findings. Mr Kim has sued Mr Cho, alleging that the article defamed him by conveying that he had acted illegally, including by misappropriating funds for his own benefit.

[2] Substituted service was effected on Mr Cho in October 2015 but he did not take steps to defend the proceeding. As a result, the matter proceeded by way of formal proof.

Formal proof in defamation proceedings

[3] Rule 15.9 of the High Court Rules relevantly provides that if the defendant in a proceeding does not file a statement of defence within the specified time and the plaintiff seeks judgment by default, the proceeding must be listed for formal proof. Under r 15.9(4), before or at the formal proof hearing, the plaintiff must file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages. The standard to which a Judge is required to satisfy himself or herself regarding the plaintiff’s evidence “is much the same as it would be if the
proceeding had gone to trial.”1

[4] It is, however, generally accepted that a judge in formal proof proceedings is not required to engage with any matters of affirmative defences, set-off or counterclaim.2 That is relevant because the evidence advanced in support of Mr Kim’s case suggests that affirmative defences under the Defamation Act 1992
may have been available to Mr Cho in relation to some of the statements sued on.

1 Ferreira v Stockinger [2015] NZHC 2916 at [35].
2 At [36], referring to BBC Technologies Ltd v Sociedad Agricola Topagri Ltd [2014] NZHC 2386 at [5].

However, the Defamation Act requires affirmative defences to be specifically pleaded.3

[5] The objective of r 15.9 is to achieve just, speedy and inexpensive determination of the proceedings.4 Decisions under that rule can be varied or set aside if it appears there may have been a miscarriage of justice5. But there is no indication that a judge considering the formal proof of a claim can consider matters beyond proof of the claim and calculation of damages.

[6] I note that the proposed amended High Court…

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 Kim v Cho

Details

AGLC: Kim v Cho [2016] NZHC 1771
Case: [2016] NZHC 1771
Decision Date: 1 August 2016

CaseChat Overview and Summary

Mr Sung Hyuk Kim sued Kum Nam Cho for defamation in relation to an advertisement published in a Korean language newspaper. Mr Cho did not engage in the court process and the matter proceeded by way of formal proof. The court found that seven of the nine statements in the advertisement were defamatory. Damages of $100,000 were awarded against Mr Cho. The court found that punitive damages were not warranted in this case. Mr Kim is entitled to costs on a 2B basis with reasonable disbursements to be fixed by the Registrar.

Orders