Kim v Lee - [2012] NZCA 248

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/2012
[2012] NZCA 248

BETWEEN YOUNG KWAN KIM
Appellant

AND JUNG NAM LEE
Respondent

Hearing: 12 June 2012

Court: Glazebrook, Randerson and Wild JJ

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

Judgment: 14 June 2012 at 3 pm

JUDGMENT OF THE COURT

AThe appellant’s application for leave to adduce further evidence is granted: the affidavits detailed in [11] of the Court’s reasons will be received as evidence in support of the appeal.

BThe respondent is to pay the appellant’s costs for a standard application on a band A basis uplifted by 50 per cent with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

By application dated 27 February 2012, the appellant, Mr Kim, applies for leave to adduce further evidence in support of his appeal. The respondent, Mr Lee, opposes the application.
Mr Kim’s appeal is against a judgment of Heath J delivered on 9 November 2010 awarding $250,000 damages for defamation jointly and severally against the New Korea Herald Ltd, Mr Yoo and Mr Kim.[1] Heath J found that a series of articles published in the New Korea Herald newspaper in the early months of 2008 were defamatory of Mr Lee. Mr Yoo was the editor of the newspaper and a director of the Company. Mr Kim was the other director of the Company.
[1]Lee v The New Korea Herald Ltd HC Auckland CIV-2008-404-5072, 9 November 2010.
Mr Kim did not appear and was not represented at the trial. Judgment went against him upon formal proof. Mr Yoo gave evidence that Mr Kim was not involved in the operations of the newspaper or in the publication of the defamatory articles. But Heath J observed:
[67] There is no evidence from Mr Kim to suggest any factual basis for a finding that he did not know of the intended publication or took steps to prevent its publication or, at least, to initiate further inquiries.
The Judge was satisfied on a balance of probabilities that Mr Kim was sufficiently connected to the publications to justify a claim against him, and held that the innocent dissemination defence in s 21 of the Defamation Act 1992 had not been made out by Mr Kim.
In a judgment delivered on 3 June 2011 this Court granted an application by Mr Kim for an extension of time to appeal the judgment of Heath J.[2] It did that because the evidence established two things. First, that Mr Kim had entrusted his defence to his two co-defendants, who had instructed a firm of Auckland solicitors, Kenton Chambers Lawyers, to act for all three defendants. Mr Park of Kenton Chambers Lawyers withdrew as counsel for Mr Kim by memorandum filed the day before the trial began. His memorandum was not in compliance with r 5.41 of the High Court Rules. Notwithstanding that, the Judge treated Mr Kim as having entered no appearance, and the case against Mr Kim…

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 248
Case: [2012] NZCA 248
Decision Date: 14 June 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Kim v Lee was heard, where Young Kwan Kim appealed against a defamation judgment awarded to Jung Nam Lee. The central issue was whether the appellant, Mr Kim, could adduce further evidence to support his appeal against the defamation judgment. Mr Lee opposed this application. The case stemmed from a defamation case where Mr Lee sued the New Korea Herald Ltd, Mr Yoo, and Mr Kim over defamatory articles published in 2008. Heath J awarded Mr Lee $250,000 in damages, finding Mr Kim liable due to his connection to the publications despite not appearing at the trial.

The legal issues before the Court of Appeal were whether the appellant's application for leave to adduce further evidence should be granted and if so, whether the respondent should pay the appellant's costs. The Court acknowledged the appellant's fresh evidence, which he could not provide at the trial as he was unaware of it, and considered the credibility of Mr Kim's and Mr Yoo's evidence. The Court rejected the respondent's argument that the evidence was not credible or relevant and concluded that the availability of the innocent dissemination defence should be assessed based on the new evidence.

The Court granted Mr Kim's application for leave to adduce further evidence, stating that without it, the appeal would be pointless. The Court found the opposition to be ill-founded and ordered Mr Lee to pay Mr Kim's costs for a standard application on a band A basis, uplifted by 50 per cent, with usual disbursements.

Orders