Cha v Oh

Cha v Oh - [2009] NSWDC 300 - NSWDC 2004 case summary — Zoe

[7]

It can immediately be seen that, if correct, this interpretation of section 7A(1) will lead to problems. A defendant may wish for tactical reasons not to challenge an imputation that is strained or badly drafted. The plaintiff and defendant may be perfectly happy with the Statement of Claim as it is, and may resent judicial intrusion into the party's pleadings. If the judge changes the imputations over the protests of the plaintiff or the defendant (or both) will the judge end up as the respondent to an application for leave to appeal or if not, why not? Is a plaintiff now entitled to tell the jury that they can be confident the imputations are conveyed because they were determined by the court and not merely drafted by the plaintiff and, if not, why not? Is the judge's role restricted to settling the existing imputations or is it his/her role to advise the plaintiff of all the imputations that could be pleaded and if so, what happens to the defence of contextual truth? If a judge makes determination (independent of the parties' submissions and perhaps even against their wishes) does that judge then have to recuse himself from any further hearing of the matter? Should the judge's role as nursemaid to the plaintiff's imputations include unwanted and unsought advice about problems of form and defamatory meaning in relation to imputations, which are not the subject of challenge? Who pays the costs of these determinations, particularly if no alterations have to be made to the imputations? These are only some of the problems that have occurred to me if such an interpretation is correct.
The history of section 7A since its enactment in 1995 is a sad one. Those who drafted it had never heard of contextual imputations and did not foresee that it would lead to long involved jury trials (the section 7A trial the subject of these proceedings is set down for 4 weeks) which can be completely severed from issues of liability and quantum, with the result that an unscrupulous litigant can force an opponent into multiple hearings and appeals and then, when the lack of merit in the action becomes clear, throw in the towel leaving the opponent to recover what costs it can. There has been appeal upon appeal from perverse verdicts, which appeals were initially allowed but which are now, apparently as a matter of policy, being refused, leading to conflicting decisions (e.g. Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46 and Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177). The courts have bent over backwards to make sense of the provisions concerning identification, including reading words into the section that the drafters left out (Cinevest Pty Ltd v Yirandi [2001] NSWCA 68 at paragraph 21 per Spigelman CJ) and concerning publication. There are doubts about whether it applies to republications and there is litigation currently in the Court of Appeal on this issue.

[44]

Orders 1. Third defendant (and any other defendant wishing to do so) provide written submissions on appropriate method of trial in 28 days. 2. Plaintiff reply 28 days thereafter. 3. Matter to be relisted on 22 September 2003 at 9:30 am for allocation of a hearing date for further argument. 4. Costs of this Notice of Motion reserved. TABLE OF ALLEGATIONS OF PUBLICATION Jik Il Oh Jae Kyung Lee Yoon Shin Lee Hak Joo Park Han Yong Lee Duk In Kim Hak Soo Cho Schedule First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant (First Cross Claimant) (Second Cross Claimant) Schedule A Date of alleged publication: Hoju Dong-A 22/12/00 Schedule B Date of alleged publication: TOP Korean News ("TOP") 26/01/01 Schedule C Date of alleged publication: Hoju Dong-A 02.02.01 Schedule D Date of alleged publication: TOP 09.02.01 Schedule E Date of alleged publication: TOP 23.02.01 Schedule F Date of alleged publication: Hoju Dong-A TOP Sydney Korean Herald ("SKH") Author Author 01.03.01 Schedule G Date of alleged publication: Hoju Dong-A TOP SKH Author Author 09.03.01 Schedule H Date of alleged publication: Hoju Dong-A TOP SKH Author Author 16.03.01 Schedule I Date of alleged publication: TOP 30.03.01 Schedule J Date of alleged publication: TOP Statements allegedly published to TOP attributed to the Seventh Defendant 06.04.01 Schedule K Date of alleged publication: Hoju Dong-A 04.05.01 Schedule L Date of alleged publication: Hoju Dong-A 04.05.01 Schedule M Date of alleged publication: Korean Community Magazine 06.07.01 Schedule N Date of alleged publication: Hoju Dong-A No date pleaded

[354]

Having noted that, I now come to the question of the circumstances in which the offer was made. One thing that Mr Evatt has said - and this is something that I expressed some concern to Mr Wheelhouse about as well - was that the offer was made at a time when the plaintiff was in the witness box, having been cross-examined for a number of weeks. It was made when we had resumed after the morning tea adjournment, when there had been some problems, and in fact I had to adjourn a second time because there had been some complaints about the translation and the interpreter had indicated that she had some personal worries and was quite distressed. In circumstances where we already knew that the plaintiff's interpreter had some worries and was distressed the plaintiff was in the witness box to be cross-examined, an open offer was made in circumstances where he was in the witness box, he was not sitting next to his lawyers, he was in the witness box where what Mr Wheelhouse was saying was not necessarily being translated. I say "not necessarily" because I do not know if it was or was not. But he was in a position I can only call vulnerable. That concerned me a great deal. To sit in a witness box is a very unpleasant experience and it is not a position from which one should be hearing important information about the conduct of one's case, and in particular it is not the sort of situation that a plaintiff should be in where he is hearing that he could be at risk as to costs and that this offer has been made in open court with the intention of protecting the costs position. Mr Wheelhouse has told me that he was anxious that it should be done in the hearing of the plaintiff. If he was indeed anxious that it should have been done in the hearing of the plaintiff he should have indicated he wished to make this offer in circumstances where it could be translated so that the plaintiff would have had the opportunity to step out of the witness box, to go and sit with his lawyers, to have a translator to translate what was being said. I have to say that I do regard the circumstances in which Mr Wheelhouse did make the open offer while the plaintiff was still in the witness box while he was to my observation looking quite anxious at what was happening, because he did not appear to quite understand, where he could not get out of the witness box without committing contempt of court. He was not able to talk to his lawyers and indeed in my view it would have been very hard for him even to ask his interpreter to translate. What can you do in the witness box? Is he supposed to tap his translator on the shoulder and ask her to explain? It seems to me a most unfortunate situation and it caused me quite considerable concern.

[439]

In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant's prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas. The judgment at great length reviewed the facts and with unusual attention to detail explained, fully and unassailably, the rational bases of the conclusion to which his Honour felt driven.

[582]

There is no doubt that failure to provide funds to cover the disbursements may be good cause for termination of a retainer, as the cases noted in the Ritchie's Uniform Civil Procedure NSW at [5,696] made clear. However, the cases set out in Ritchie relate to solicitors who withdraw prior to the trial, not when the evidence is over.
In the very brief time I have had since having notification of this application, I have found several cases where the Supreme Court and the Court of Appeal have expressed concern in similar circumstances. In Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 the solicitors for a party sought leave to withdraw on the day that the trial was to start. Gzell J reluctantly let the trial go ahead despite concern about the late timing, but in circumstances where there was another defendant who did have some representation. His Honour's concerns must apply with even more force to a trial that has been completed and where the timetable for that party's written submissions is half over.
I am indebted to McCallum J for providing me this morning with a copy of her decision in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation (Supreme Court of New South Wales, McCallum J, 28 April 2008, unreported). What happened in that case was as follows. An application was made for an adjournment by the plaintiffs of a defamation hearing before McCallum J. Her Honour refused the application and the solicitor who appeared for the plaintiffs then made an application under r 7.29 Uniform Civil Procedure Rules for an order either dispensing with the obligation to serve notice on the client of his intention to file a Notice of Ceasing to Act or for an abridgment of time for serving that notice. The reason for that application being made was apparently to avoid costs incurred in the hearing of those issues. Mr Dawson, who appeared for the defendant, raised some matters of prejudice that I thought I should consider, bearing in mind that the solicitor who appears for the defendants today is unfamiliar with this matter, and I have been very anxious to protect the position of the defendants in circumstances where she is appearing at short notice. Mr Dawson in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation took the position that if the application to withdraw were granted it would amount to a de facto adjournment because plainly as a matter of fairness it would be necessary to give the plaintiffs an opportunity to obtain new representation.
What really troubles me is that that may occur here. How can I be sure that a solicitor will not appear some time during the next month to say he has been retained and needs some more time, especially in circumstances where it would appear that a solicitor recently consulted went to see Mr Evatt with Mr Cha? How can I protect the defendants' position in this situation, their having been brought here at very short notice with a solicitor unfamiliar with the case (as she very frankly and properly has told the court)? It seems to me that I should have regard to the weight that was put by McCallum J on Mr Dawson's submissions in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation, and that I should consider protecting the position of the defendants by giving similar weight to the prejudice that is likely to be occasioned to them.
The only case that I could find where a solicitor went off the record after evidence was completed was Wentworth v Rogers [1999] NSWCA 403. The Court of Appeal was critical of this solicitor (at [43]), noting that legal practitioners have duties to the court as well as to their clients.
In the present case I want to make it absolutely clear that I am more than satisfied that Mr Lee and Ms Evans have been fully cognisant of their duties to the court. The trouble is that by making this application, despite outlining the proposed arrangements that are to be put in place, it seems to me that the prejudice both to the court and to the defendants is simply too high.

[587]

This brings me to the question of counsel. While courts may have an inherent jurisdiction to supervise the conduct of counsel (for example, the ability to intervene to have counsel removed: Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at [45]), I do not have the same degree of control over Mr Evatt as I do over the solicitors on the record. I can only appeal to his better nature not to leave a junior member of the Bar, especially one to whom he is related, in circumstances which may expose her to any kind of unnecessary stress, complaint or other kinds of action. Ms Evans deserves better, in my view.
I cannot force the plaintiff's legal representatives to prepare helpful submissions. I can tell the plaintiff's legal representations that if they do not do proper submissions, I am not going to descend into the arena to work out what they should have done. That would be unfair to the defendants. I further warn them that if the plaintiff's submissions are indeed hopeless or inadequate, it will be open to the defendants to ask me to dismiss the proceedings entirely, rather than to embark upon the lengthy exercise of trying to guess what the plaintiff's submissions ought to have been, or to ignore them entirely in the manner it was urged upon Bergin J in similar proceedings in A & N Holdings NSW Pty Ltd v Andell Pty Ltd and I gratefully adopt the careful analysis of how matters should be run in specialist lists and how courts should approach such failures as are set out by her Honour in this helpful decision.
This is a very difficult position for any trial judge. I have endeavoured to reconcile the competing needs for a party to be properly represented, particularly where that party is a person with limited English and abilities, with the needs that those lawyers have to be paid, the needs of the defendants to have finality in this very long litigation, the need for myself as trial judge to have proper submissions from both sides, and the need for justice to be seen to be done in the public arena.

Parties

Applicant/Plaintiff:

Cha

Respondent/Defendant:

Legislation Cited (4)

Defamation Act 1974(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Civil Procedure Act 2005(NSW)

Evidence Act 1995(NSW)

Cases Cited (73)

CITATION: Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300

I note the complaint by Mr Breene in oral submissions that the claim for aggravated damages has not been particularised and he is unclear as to what claim is made against the third defendant or indeed all defendants. There was also objection that there has been failure to comply with Harrigan v Jones [2000] NSWCA 814. As the parties have not provided me with detailed written submissions on this issue I shall do no more than invite the plaintiff to give careful consideration to the principles of law set down in Harrigan v Jones when providing the redrafted Statement of Claim to ensure that these issues are dealt with. I note Mr Breene in his submissions of 12 February has set out formally that paragraph 52(c) is not a proper particular and the plaintiff would be wise to heed this warning when repleading.

[2006] SASC 268

[2006] HCATrans 132

(1986) 5 NSWLR 425

(1996) 41 NSWLR 176

(1990) 23 NSWLR 374

(1999) 198 CLR 180

(2000) 178 ALR 634

(1992) 26 NSWLR 738

(2003) 201 ALR 77

(2003) 77 ALJR 1657

(1910) 11 CLR 63

(1973) 1 NSWLR 43