Kim v Lee - [2011] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA77/2011
[2011] NZCA 256

BETWEEN YOUNG KWAN KIM
Appellant

AND JUNG NAM LEE
Respondent

Court: Arnold, Stevens and Wild JJ

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

Judgment: 3 June 2011 at 3pm

JUDGMENT OF THE COURT

The application for an extension of time within which to appeal is granted.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

This is an application for an extension of time within which to file an appeal, which is opposed by the respondent, Mr Lee.

Background

The background is that the applicant, Mr Kim, donated some $50,000 to help establish a Korean language newspaper in New Zealand. Mr Yoo was the editor of the newspaper, the New Korean Herald, and a director of the company which published it, The New Korea Herald Ltd (the company). In recognition of his donation, Mr Yoo gave Mr Kim a shareholding in the company and made him a director. Mr Kim says that he took no part in the operations of the company (including the publication of the newspaper).
The newspaper published a number of stories about Mr Lee. He considered that these stories were defamatory and issued proceedings against the company, Mr Yoo and Mr Kim. These proceedings were served on Mr Kim on 11 September 2008.
Mr Yoo arranged for a firm of solicitors, Kenton Chambers Lawyers, to act for all three defendants in the litigation. Mr Kim signed a document addressed to the firm, dated 29 September 2008, in which he acknowledged and declared that:
(a)I am not personally involved in the operation of The New Korea Herald Limited and the publication of the New Korea Herald (“The Korea Herald”);
(b)I am not personally involved in the preparation of articles, publication or distribution of the Korea Herald;
...
(g)I hereby delegate my full authority in relation to the defending of the Case for myself as the Third Defendant and for The New Korea Herald Limited as the first defendant to [Mr Yoo], co-director of The New Korea Herald Limited;
(h)I understand that [Mr Yoo] on behalf of himself and The New Korea Herald Limited have decided to use Kenton Chambers Lawyers as the counsel in defending the case for the three defendants;
...
That same day Mr Kim had a telephone conversation with a solicitor from Kenton Chambers Lawyers. The lawyer told Mr Kim about an upcoming telephone conference in relation to the proceedings and said that the firm would update him constantly on the progress of the proceedings. This is confirmed in a contemporaneous file note made by the solicitor. Mr Kim says that he heard nothing further from Kenton Chambers Lawyers about the litigation until he learnt of the judgment which he now wishes to appeal. He says that he did not attempt to follow up with the firm because his son, who is a lawyer in the United States of America, told him that litigation often…

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 [2011] NZCA 256
Case: [2011] NZCA 256
Decision Date: 3 June 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Kim v Lee was heard by Arnold, Stevens, and Wild JJ. The appellant, Young Kwan Kim, applied for an extension of time to appeal against a judgment entered by Heath J in the High Court. The application was opposed by the respondent, Jung Nam Lee. The background of the case involves Mr Kim donating $50,000 to help establish a Korean language newspaper in New Zealand. In recognition of his donation, he was given a shareholding in the company and made a director. Mr Kim claimed that he took no part in the operations of the company. Mr Lee considered stories published about him to be defamatory and issued proceedings against the company, the editor, and Mr Kim. Mr Kim claimed he was unaware of the trial or the decision until December 2010.

The legal issues in the case involved whether Mr Kim suffered a serious injustice due to not being properly represented in the High Court proceedings and if an extension of time to file an appeal should be granted. The Court of Appeal held that Mr Kim had suffered a serious injustice due to the non-compliance with the rules in removing the solicitor on the record for Mr Kim. As a result, Mr Kim did not have an opportunity to address his particular position by leading further evidence to support his claim of non-involvement in the operations of the newspaper. The Court of Appeal granted the application for an extension of time to file an appeal and suggested that the matter could be referred back to the High Court for determination of Mr Kim's non-involvement defence as a separate question.

Orders