Kim v Lee - [2012] NZCA 600

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/2012
[2012] NZCA 600

BETWEEN YOUNG KWAN KIM
Appellant

AND JUNG NAM LEE
Respondent

Hearing: 12 and 13 November 2012

Court: Ellen France, Stevens and Asher JJ

Counsel: M W Ryan and S J Corlett for Appellant
G J Kohler for Respondent

Judgment: 19 December 2012 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe judgment in the High Court against the appellant is set aside. The claim against the appellant is remitted to the High Court for a rehearing.
CThe respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No
Introduction  [1]
Background  [6]
Has there been a procedural error?  [13]
     The rules about withdrawal of a solicitor  [14]
     Application of the rules to this case  [20]
Should there be a remedy?  [24]
     The evidence about representation  [27]
The proposed defences  [38]
Costs  [46]
Postscript  [50]
Result  [55]

Introduction

In 1994, the appellant, Young Kwan Kim, donated $50,000 to help set up a Korean language newspaper in New Zealand. The newspaper was called The New Korea Herald. Jong Ok Yoo was the editor of the paper and a director of The New Korea Herald Ltd (NKHL), the company that published the newspaper. Mr Yoo gave Mr Kim a shareholding in the company and made him a director to recognise the donation. It was Mr Kim’s evidence that he has had nothing to do with the running of the paper.
In 2008, the newspaper published a number of articles about the respondent, Jung Nam Lee. Mr Lee brought defamation proceedings in relation to these articles in the High Court against NKHL, Mr Yoo and Mr Kim.
The case in the High Court proceeded against Mr Kim by way of formal proof. That position came about because the lawyers who were to represent Mr Yoo and Mr Kim withdrew at the last minute. As we shall discuss however, they did so without complying with r 5.41 of the High Court Rules dealing with the withdrawal of counsel. The failure to comply with r 5.41 meant Mr Kim had no notice of the solicitors’ withdrawal. He therefore had no idea that a hearing of the defamation claim would proceed without him being represented or present.
Heath J found that the articles were defamatory.[1] He awarded Mr Lee $250,000 in damages plus costs and disbursements. Mr Kim, NKHL and Mr Yoo were held jointly and severally liable for payment of the judgment sum. An injunction was granted requiring that the articles be removed from the newspaper’s website.
[1]Lee v The New Korea Herald Ltd HC Auckland CIV-2008-404-5072, 9 November 2010 [Lee v NKHL].
Mr Kim appeals against the High Court decision on the basis a miscarriage of justice has resulted from the way in which the case proceeded in the High Court in his absence.…

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 Lee

Details

AGLC: Kim v Lee [2012] NZCA 600
Case: [2012] NZCA 600
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the case of Kim v Lee, the Court of Appeal of New Zealand considered an appeal brought by Young Kwan Kim against the decision of the High Court, which had found him liable for defamation. The central issue was whether Kim was granted a fair hearing in the High Court, given that his lawyers had withdrawn without proper notification, leading to a formal proof hearing in his absence. The Court of Appeal found that the lawyers' withdrawal had indeed breached procedural rules, depriving Kim of the right to be heard. Despite this procedural error, the Court of Appeal concluded that Kim had arguable defences which should be heard, thus allowing the appeal and remitting the case back to the High Court for a rehearing. The Court also ruled that the respondent, Jung Nam Lee, must pay Kim's costs for the appeal.

Orders