Cha v Oh

4. The only decision on the issue is Jae Kyung Lee v Chung Yup Kim (Supreme Court of NSW, Badgery-Parker AJ, 22 June 2001) where his Honour notes that this provision is mandatory and goes on to wonder: "Whether that means that the Court has an obligation to make such determination, whether or not the defendant contests capacity, or only means that if the defendant raises the issue, it is for the Court to decide, matters not. It is in fact my view that the court has its own responsibility in that regard: Sydney Refractive Surgery Centre Pty Ltd v Beaumont & Ors (Badgery-Parker AJ, 19 April 2001)."

5. Apart from Badgery-Parker AJ, no other judge has expressed such a view, although it was submitted that Nicholas J made such orders on a regular basis in the Supreme Court. However it would appear that there are no judgments as a result of any of these determinations, so it is hard to know what to make of these submissions.

6. The usual situation is that a defendant will challenge the plaintiff's imputations, although applications on the day of the trial tend to receive short shrift for the reasons enunciated by Mahoney P in Crampton v Nugawela (1996) 41 NSWLR 176. However, Mr Wheelhouse for the third defendant asserts that judges have a special role to play in defamation pleadings of the kind not usually embarked upon by a court, namely to make a determination as to the capacity of the matter complained of to convey the imputation, irrespective of whether the imputation is challenged or not.

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.
8. 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.

9. It is my view that the provisions of sections 7A(1) - (3) is a muddled attempt to codify the capacity arguments parties frequently have in defamatory proceedings where a defendant seeks to assert that a plaintiff's imputations are pitched too high or are otherwise objectionable. It is probably only careless drafting which causes the legislation to assert that the court has an obligation to determine such issues in a universal sense.

10. Until I am assisted by clear authority from the Court of Appeal to the effect that I must now determine the capacity and defamatory meaning (see section 7A(3)) of each imputation ever pleaded, I propose to rule only on those imputations the subject of challenge, with one exception. Where a party seeks to challenge only some imputations on a restricted basis and then comes along at a later time to challenge them on another basis, or to challenge additional imputations, the pre-existing ruling should prevent such multiple applications. However, this can be done on the existing law because the provisions of section 159 District Court Act 1973 and the "fresh step" rule mean that a party who keeps up his/her sleeve a defect in an opponent's pleading does so at his/her peril.

11. If I am required to make a determination, I see no reason why I should give reasons in the absence of a request for reasons. As I see it, Mr Wheelhouse is asking for reasons for the five imputations he nominates. Consequently I am prepared to make the determination he seeks but I propose to make it for all imputations in the Second Amended Statement of Claim but give reasons only for the five referred to by Mr Wheelhouse. This will prevent any further applications of this kind by the other parties in these proceedings.

12. I now turn to a consideration of the imputations under challenge. I note that all of them were the subject of my judgment of 18 February 2003 and the assertion that I had missed two of them in my judgment is incorrect.

13. The third defendant submits that it is not defamatory to call someone "self-righteous". In my view this is the quintessential jury question, for the reasons explained in my judgment of 18 February when dealing with the predecessor to this work.

14. As with 40(c), this was repleaded in accordance with my judgment of 18 February. The real objection seems to be that the plaintiff accidentally left in the words "and self-indulgent" which the plaintiff has now agreed to delete.

15. The third defendant submits that this is inadequately drafted and cannot be defamatory unless the basis for the charge is included in the imputation. The Court of Appeal in Nikolopoulos v Greek Herald [2002] NSWCA made it clear that defamatory meaning is obtained by reading the matter complained of and not the imputation in isolation, and in my view this technical argument cannot be made out.

16. Even if I have erred in this regard, the imputation should still go to the jury as it is reasonably capable of being regarded as defamatory.

17. At paragraphs 72-74 of my judgment I dealt with the objections to this imputation, which were form and defamatory meaning (see paragraphs 14.1 and 14.2 of the third defendant's written submissions). The third defendant complains that the fourth, fifth and seventh defendants also objected to this imputation. It is not for the third defendant to be raising alleged deficiencies in a judgment on issues raised by another party, and to do so at such a late date. The fourth, fifth and seventh defendants initially made no complaint at all (see the undated submissions of Mr Weaver) but later appear to have joined with the third defendant and complained that this imputation was not defamatory, an assertion I rejected. However, in light of the objection to capacity being taken, I formally find that this imputation is reasonably capable of being conveyed by lines 161-3 of the matter complained of.

18. I dealt with this imputation (which was the larger imputation to which 41(b) was a fallback) at paragraph 82 of my judgment. This imputation clearly arises from lines 17-26 of the matter complained of.

Orders 1. All imputations as pleaded in the Second Further Amended Statement of Claim and not already the subject of rulings by the jury (i.e. excluding the imputations pleaded to publications A-C) are reasonably capable of being conveyed and of being defamatory. 2. Costs in this application reserved.

Cha v Oh (No. 3) (District Court of NSW, Gibson DCJ, 18 July 2003, unreported)

Judgment on preliminary issues concerning form of s 7A hearing

1. The plaintiff brings proceedings against a total of seven defendants for fourteen publications between 22 December 2000 and 6 July 2001. The publications, which were all in the Korean language, raise allegations about the plaintiff's honesty and competence as an accountant and auditor for the Korean Olympic Committee.

2. When these proceedings were first commenced, there were no statutory provisions for defamation actions to be exempt from the terms of section 76A District Court Act 1973: Moselmane v Jones (2003) Aust Def Rep [53,110]. However, on 17 February 2003 the Defamation Amendment Act 2002 inserted section 76A into the District Court Act 1973 and to provide that juries were not only compulsory for section 7A hearings but also (as I held in Obeid v ABC in my decision of 28 March 2002) necessary in proceedings before the proclaimation date of 17 February 2003.

3. As I set out in my judgment in Obeid, section 76A is a misconceived and inappropriate piece of drafting. It is a direct copy of the equivalent provision in the Supreme Court Act 1970, which is similarly inappropriate because it was enacted to permit judges to separate issues of liability or quantum (or other easily severed issues) so that one or more could, if necessary, be taken from the jury. In practice this provision was never used in defamation trials as courts were never prepared to adopt the risky step of dividing up defamation trials into a series of mini-trials. Even where it would be possible to separate one issue (such as a defence of qualified privilege on a retrial) the courts were generally reluctant to do so: Morgan v John Fairfax (No. 2) (1990) 23 NSWLR 374. However, what little use these provisions had in the Supreme Court Act had prior to the proclamation of section 7A Defamation Act 1974 vanished entirely when the jury's role was restricted to the question of capacity, defamatory meaning, publication, identification and determination of true innuendo. There after the extraordinary artificial procedure of separate trials on these mini-issues came to dominate the defamation trial, and it is a matter of public record that the Court of Appeal has reversed around 10% of these verdicts on appeal (see the decisions collected in Moselmane v Jones, loc. cit.). As a result of defamation trials have doubled in length and complexity, and the public purse has been burdened by these costs because, in what appears to be another legislative oversight, the introduction of compulsory section 7A juries meant that the "user pays" system of requiring anyone requisitioning a jury to pay jury requisition and retention fees has effectively been abolished.

4. The difficulties caused by the conduct of these cases is the subject of a great deal of anecdotal evidence, and no doubt the facts in these proceedings are just another illustration of how artificial and misguided section 7A is.

5. It would take many pages of typing to describe each of the fourteen publications sued upon by the plaintiff, which of the constellation of defendants is a party to each and how these fit in with the cross-claim, so I gratefully attach to this judgment the two-page schedule provided by Mr Wheelhouse of Counsel.

6. Thus this litigation concerns a large number of publications and the circumstances in which more than one defendant is liable for most of them; the bringing of a cross-claim which contains a further four publications; a problem concerning a republication issue in publications H and H1; the stilted nature of the translations due to problems in translating the originals from Korean into English and the need to prove identification and extrinsic facts in relation to some of the publications, which will require some brief oral evidence in the section 7A jury trial.

7. An argument about the capacity of the matters complained of was dealt with by me on written submissions alone, principally because to hear such submissions orally would have taken one to two days. After I handed down my judgment on this issue the plaintiff brought a Notice of Motion seeking an order that a jury be dispensed with for the section 7A trial and such other order or orders as the court sees fit. This application was strenuously opposed by some of the defendants, who were keen to have a jury trial even though on the best estimate available such a jury trial would take, optimistically, around four weeks (to quote Mr Weaver of Counsel's estimate).

The defendants' proposal for the conduct of a section 7A trial

8. When the plaintiff's Notice of Motion was first listed for argument I indicated that in order to determine the plaintiff's application to dispense with a jury I needed to have some indication from the defendants as to how they proposed the section 7A jury trial should be conducted - as one trial, or a series of trials, before one or a series of juries, in chronological order or in groups depending on either the subject matter or the grouping of particular defendants, and whether all the defendants intended to be represented at this very lengthy section 7A trial. Apart from the third defendant, who proposed that all matters involving him should be heard separately (an impractical suggestion given the involvement of all but one of the other defendants in his matters) no suggestions of any kind, useful or otherwise, were made as to how such a trial should be conducted, despite my making orders for written submissions on this point.

9. The matter came before me for argument on 10 July 2003. The first and sixth defendants did not bother to attend. The second defendant, who is currently unrepresented, asked the third defendant to mention the matter on his behalf, although the orders the third defendant was seeking for a separate trial of all publications involving the third defendant was hardly in the plaintiff's interest. The fourth, fifth and seventh defendants, who were represented by Mr Weaver, at first had no suggestions about how such a trial should be conducted, before eventually (after over an hour of argument) suggesting the matter be listed for four weeks before a trial judge who could make decisions about how to conduct this multi-layered trial on the first couple of days of the trial after hearing the suggestions of counsel briefed for the hearing. However, as I indicated to the parties at the time, my duty as Defamation List Judge is to attend to case management of defamation proceedings, and the suggestion that a judge of this court should spend a month looking at how to conduct this case and then endeavour to do so is contrary to the basic principles of case management and likely to be productive of little but hostility and adjournments.

10. It may appear from this summary that I am being critical of the parties' legal representatives, but I am not. These problems are, quite simply, almost insoluble. The difficulty is that if the defendants cannot propose a sensible mode of trial by jury, I will have little alternative other than to make the order sought by the plaintiff on the basis that no jury trial is practical.

11. The first suggestion I will consider is the suggestion put forward by the third defendant that the section 7A jury trial be divided into groups of trials, and in particular that all of the matters involving the third defendant be heard together.

12. The dangers of divided trials have been the subject of a series of appellate decisions; the authority generally referred to on this problem is Perre v Apand Pty Ltd (1999) 198 CLR 180 where Callinan J said at [436]: "[436] Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be."

13. In Walker & Anor v ANZ (2001) NSWSC 765 Austin J noted (at 24) that while orders for determination of separate questions can be a useful means of limiting time and expense in litigation, "appellate courts have time and time again warned of the need for caution in making such orders", noting the warning of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board (2000) 178 ALR 634 that the attractions of trials of issues rather than cases in their totality "are often more chimerical than real". Indeed, Kirby and Callinan J stressed in Tepko at 170 that single issue trials should "only be embarked upon when their utility, economy and fairness to the parties are beyond question." Gaudron J, in her concurring judgment, noted that such divided trials were particularly inappropriate in tort claims.

14. More recently, the Court of Appeal in Lepore v State of NSW & Anor (2001) NSWCA 112 at [95] (per Heydon JA) and [138] per Davies A-JA expressed similar warnings. In NSW v Lepore (2003) HCA 4 at [187] Gummow and Hayne JJ stated that "at the root of all the difficulties presented by this case lies the decision to attempt to sever trial issues of liability from trial issues about damages."

15. Clearly, while it may suit the third defendant to have all its actions heard at the same time, that is not in the interests of any other party to this litigation, whether defendant, plaintiff, cross-claimant or cross-defendant.

16. There are a number of other possibilities. The jury could hear submissions on all of the publications for however long that takes, and then bring in a mass verdict. That sounds like a recipe for disaster; how could a juror recall submissions about article number one tree weeks beforehand as he struggled through cross-claim number four? Mr Dibb pointed out that the very rationale for a jury trial would be lost.

17. Then there is the possibility that the jury could give a series of judgments, one after the other. Although initially plausible, this clearly would have potential for real difficulties if even one of the jury's findings was perverse (resulting in an application under section 126 District Court Act 1973, or a leave to appeal, and/or an application to restrain the trial from continuing to be heard pending the outcome of any such application or appeal) and would result in the same jury burnout, fatigue, problems with inconstant verdicts and other problems that a long trial with mass verdicts at the end would cause.

18. The most practical solution I could think of was one not suggested by any party, and that is the reason for my indicating that I would prepare this short judgment setting out the proposals and my views. It is my view that if these matters are to be heard by a jury, the best and safest way is for each publication to be heard by a different jury (although arguably there is enough commonality amongst the cross-claims for those to be heard together). This would mean fifteen separate jury trials, but at least it would be fairer than any other method proposed. However, if such a method was put into place, the usual rules about costs being reserved in defamation proceedings pending the trial could well be seen as inappropriate given the enormous cost and difficulties inherent in conducting fifteen (or eighteen) trials for 1-2 days each. That would be a matter on which I would wish to hear from the parties.

19. A spanner has been cast into the works by the belated instructions received on the part of the fourth, fifth and seventh defendants to consent to the hearing of the section 7A trial by a judge sitting alone. Given that the first and sixth defendants may not participate in these trials at all, in light of their inactivity since the proceedings were commenced, and given that the first defendant is by far the most prolific publisher, this would mean that the third defendant's wish for a jury trial (and the wishes of the second defendant, whatever they may be) would need to be seen in the context of an active (or passive) intention to the contrary.

20. It is my intention, absent the presentation of a compelling plan of action by the third defendant (and, if he wishes to participate, the second defendant) to make the orders sought by the plaintiff as being the only practical way that a section 7A trial can take place. It is regrettably unclear whether the factual problems in these proceedings fall within the exceptions to the otherwise compulsory jury trial set out in section 76B. Therefore it is my view that it would be preferable to give both the plaintiff and the third defendant the opportunity to address the matters set out in this judgment before proceeding to make such an order, and to make such further submissions concerning the change of position of the fourth, fifth and seventh defendant (and the continued inaction of the first and sixth defendant, despite the service of warning letters following the hearing on 10 July 2003) as are appropriate. The difficulty is, of course, that on the legislation as it is presently drafted, the third defendant can hold all the other defendants and the plaintiff to ransom and force them into a jury trial (or series of trials) which they do not want, since the consent to dispense with a jury trial must be unanimous.

21. I repeat my earlier comments in Obeid concerning the inherent unfairness in the universal application of jury trials to all defamation actions. While there may be a place for the jury importing community standards into a mass media publication, it is difficult to see why a jury should be empanelled in circumstances such as appertain in this case. Similarly, with limited publications such as football club newsletters, neighbourhood wrangles and family squabbles, the need for community input must be questioned unless there is a real argument that the issue of defamatory meaning (as to whether it is still defamatory to call someone a communist, or a homosexual or some similar community-standard term).

22. There is much to be said for the consideration of amendment of section 76A, in this Court at least, to permit the Court to exercise a discretion in limited publications or for other practical reason to dispense with a jury. I earnestly trust that this course will recommend itself to the legislators in this State before this action has to be set down for trial.

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

CROSS CLAIM (filed 13 September 2002): Cross Claim Publications Plaintiff/First Cross Defendant: Bob Chae-Sang Cha Second Cross Defendant: Jung Yup Kim Schedule A Date of alleged publication: An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in March 2001 March 2001 Schedule B Date of alleged publication: An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in March 2001 March 2001 Schedule C Date of alleged publication: An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in July 2001 July 2001 Schedule D Date of alleged publication: An interview with and statements by the First Cross Defendant which was published by the Second Cross Defendant in an edition of the Korean-Oceania Business Review published in June 2001 June 2001

Cha v Oh (No. 4) (District Court of NSW, Gibson DCJ, 30 September 2003, unreported)

On 18 July 2003 I handed down a judgment on preliminary issues concerning the proposed case management of these proceedings. There are fourteen matters complained of in the statement of claim, a further four matters in the cross-claim, seven defendants (some of whom appear disinclined to take any part in these proceedings) as well as a cross-defendant, and the inevitable result is that any s 7A jury trial will be of considerable complexity. The plaintiff accordingly brought a notice of motion seeking orders that the jury be dispensed with at the hearing of the s 7A trial by reason of the complexity.

Section 7A of the Defamation Act provides: " 7A Functions of judge and jury

(1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.

(2) If the court determines that: (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or

(b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded.

(3) If the court determines that (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and

(b) the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.

(4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that it is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and

(b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.

(5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section."

There has been considerable confusion about the interaction of s 7A with the District Court Act and District Court Rules. For many years a jury could be obtained as long as a requisition was filed in time pursuant to Pt 12 r 5 District Court Rules as they then were. Introduction of legislation in early 2002 to remove juries from civil proceedings preserved the right to a jury in the Supreme Court but not in the District Court. This was apparently an oversight and accordingly, s 76B District Court Act was enacted in February 2003.

Section 76B District Court Act provides: " 76B Defamation actions to be tried by jury unless Court orders otherwise

(1) An action in which there are issues of fact on a claim in respect of defamation is to be tried with a jury.

(2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if: (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or

Since the provisions of a jury is a procedure issue, the effect of this amendment is retrospective in nature, as I held in my judgment in Obeid v Australian Broadcasting Corporation (17 March 2003).

In fact, s 76B, like its Supreme Court Act equivalent, is a misconceived amendment. The Supreme Court equivalent of s 76B is a provision which predated the introduction of s 7A (which limited the jury's role to issues relating to publication, identification, capacity of the matter complained of to convey the imputation and defamatory meaning) and was relevant when juries determined all issues, including liability and quantum. These other issues are now the province of the trial judge even though some of these (e.g. republication, contextual imputations and the grapevine effect) are clearly very closely linked to the imputations in the matter complained of. In addition, no mechanism is set up for the parties to consent in some irrevocable fashion to order with the result that parties can and do change their position, as has in fact occurred in this litigation, as my previous judgment notes.

The difficulty that has transpired in the present case is that the third defendant and now the second defendant seek a trial before a jury. The fourth, fifth and seventh defendants, who had originally sought such an order, have now changed their minds and the position of the other defendants is frankly something of a mystery.

There can be no doubt that if the s 7A trial were to be heard by a judge, it could be disposed of in a day, or perhaps even less, since the capacity argument was dealt with by the parties on the basis of written submissions only. This is a factor which in my view may well be relevant on issues as to costs, but is otherwise of no significance to these proceedings.

I accept the submissions of the third defendant that any discretion to be exercised pursuant to s 76B could be exercised only in very limited circumstances. Indeed, the whole concept of "local investigation" (which is clearly a reference to a view) or scientific investigation (which is probably a reference to complex expert evidence) and/or prolonged examination of documents (which clearly relates to extensive discovery or a truth plea) clearly are matters which would really only arise if a jury was hearing the whole case.

In practical terms what is required is for the jury to examine 14 publications of between 1 to 7 pages (the statement of claim) as well as the four publications the subject of the cross-claim. The complex manner in which each of the defendants is responsible for one or more of the publications is such that issues of which defendant is responsible for which publication can only be resolved by reference to a table, which table I note was attached to my previous judgment. Some of the publications require identification evidence. Different parties need to address different issues for each publication. Thus the usual s 7A trial (with the jury considering all 18 publications at once) is an invitation to perverse verdicts.

The second and third defendants have continued to insist that the manner in which the jury attends to its task is a matter for the trial judge, who, the defendant submits, has "exclusive control over the manner in which the trial before him or her is conducted". This cannot be the case in modern case management, because the manner in which the trial is conducted (for example whether there is to be one amorphous trial or fourteen or fifteen separate trials in the manner I canvassed in my previous judgment) will clearly be relevant to issues such as length, the requisitioning of juries and the like.

This Court simply does not have the resources to set a matter down for hearing for some unspecified time on the basis that the judge will spend the first couple of days determining when and in what order the publications will be heard and by how many juries. These issues must be determined by application of proper case management procedures, which is the purpose of the Defamation List.

The second and third defendants now submit that there should be one jury who hears each publication in chronological order determining the imputations in each article separately, and the plaintiff has indicated that if there is to be a jury, the plaintiff will consent to that course.

Essentially, the purpose of all this case management has been to compel the parties to come to some form of agreement as to how the case should be conducted. It is preferable that the parties should choose such a course, rather than have the method of trial forced upon it.

There may well be a problem at the trial in relation to the translations which may lead to the need for translators to be called and cross-examined, given the stilted nature and poor English in some of the translations. This is an issue which will simply have to be dealt with at the trial.

It is, in my view, regrettable that this highly artificial procedure needs to be embarked upon. However, that is the impact of s 76B District Court Act unless and until it is amended to allow for situations such as the present.

There is a real risk that a perverse verdict, particularly if it comes in a publication towards the middle or end of the chain of publications, could result in the discharge of the jury under s 126 District Court Act, which would require a fresh jury in this trial, which I estimate will take at least one working day for each publication plus one working day each for the summing up and the jury to retire (i.e. 20 days).

Similarly, there may well be applications to discharge the jury in the course of the hearing by reason of alleged inflammatory remarks in addresses by counsel. These problems will have to be dealt with as they arise at the trial.

I accept the second and third defendants' contention that this case does not fall into any of the exceptions for which a party is entitled to seek to dispense with trial by jury for a s 7A hearing. I propose to dismiss the plaintiff's notice of motion seeking that the trial proceed without a jury. However, the second and third defendants are on notice that they are at risk as to costs not only in relation to the plaintiff but also in relation to those defendants (such as the fourth, fifth and seventh defendant), who did not oppose the plaintiff's application. They have had a jury forced on them as well.

Finally, I note the submissions of the third defendant as to whether or not the third defendant is a mass media publication or a limited publication. It will not be possible for the third defendant to assert for the purposes of a s 7A jury trial that it is a mass media publication and then assert for the purpose of damages that it is a limited publication.

Whether this publication is a limited publication or a mass media publication is an issue for the determination of the trial judge and has no relevance to the s 7A trial under the terms of s 76B.

Those remaining defendants who have not filed a s 7A defence should be warned that continued failure to do so will mean that they cannot participate in the s 7A trial. I have made a peremptory order for the filing of outstanding defences in 7 days and for service of this judgment on any such defendant by the plaintiff.

I also require all parties within 7 days to notify the plaintiff in writing whether publication is denied and, if so, on what grounds. Failure to do so will result in an admission of publication being inferred.

I do not propose to make a separate order for costs in relation to these case management issues, but to regard them as being costs which are part of the s 7A trial, and which should be the subject of such applications as the parties may wish to bring after the s 7A trial has been held.

Orders (1) Plaintiff's notice of motion dismissed. (2) All costs relating to the plaintiff's notice of motion reserved pending the hearing of the s 7A jury trial. (3) A peremptory order that any defendant who has not filed a s 7A defence within 7 days of receiving a copy of this judgment shall not be permitted to participate in the conduct of the trial of these proceedings. (4) The plaintiff to serve, by registered post, a copy of this judgment on any defendant who has not filed a s 7A defence and filed an affidavit of service establishing when that 7 day period has expired. (5) All defendants to notify the plaintiff within 7 days whether publication has been admitted.

Cha v Oh (No. 5) (District Court of NSW, Gibson DCJ, 20 July 2004, unreported)

On the first day of a four week section 7A trial the second defendant brought a Notice of Motion which is drafted as an application to set aside peremptory orders but which was conducted as an application to withdraw admissions.

This judgment was not able to be delivered orally on the date it was heard (19 July 2004) as the argument went until after 4 pm. As a result it has been delivered on the following day in writing, but it still has the comparative stylistic informality common to interlocutory judgments in long trials due to the time constraints involved.

These are proceedings by way of a section 7A jury trial relating to fourteen publications (in the Second Amended Statement of Claim) and a further 4 publications in a cross-claim. The defendants fall into two groups: several Korean newspapers who published some auditors' reports about the plaintiffs, and the auditors themselves. There was extensive interlocutory argument about the form of this jury trial (for which a conservative time estimate is four weeks) and as a result I made a series of case management orders in a series of three judgments culminating in my judgment of 30 September 2003.

When section 7A trials are set down for hearing, an important issue for the list judge (as well as the parties) to know is whether publication is admitted. Effectively this is the main purpose of the section 7A defence, apart from formally recording the pleading that one or more of the imputations were not conveyed and/or not defamatory and/or not published of and concerning the plaintiff. By reason of the large number of parties and publications, the fact that certain parties never appeared and the pleading of a number of the publications against various differing groupings amongst the defendants, it was necessary to ensure that all matters in issue were identified in the pleadings in advance of the trial so that there would be no delays or surprises in the conduct of this long section 7A trial. Accordingly I made a series of orders to ensure that any arguments about publication were flushed out before a trial date was allocated. These included the raising of any arguments about publication by making peremptory orders about a number of issues.

The second defendant, in a section 7A defence filed on 17 July 2003, pleaded that it did not admit the contents of paragraph 11 of the Second Further Amended Statement of Claim ("the statement of claim") which is currently pleading for determination in this section 7A trial. This led to the plaintiff seeking to interrogate concerning publication of the matters complained of in each Schedules B, D, E, F, G, H, I and J. Accordingly, when the matter came before me on 2 October 2003 I granted the plaintiff leave to administer these interrogatories and directed that in the event of failure to provide verified answers to such interrogatories and further ordered that this order was to be peremptory in nature. There was discussion on this date about how to accommodate such a long trial.

On 7 October 2003 the solicitors for the second defendant sent a short but important letter. Its text, in its entirety, was: "We are instructed to advise that for the purposes of the section 7A hearing in this matter only our client agrees that he was the publisher of Top Korean News as alleged in paragraph 11 of the Further Amended Statement of Claim."

This was confirmed again in the second defendant's solicitors' letter of 8 October 2004. Accordingly the second defendant did not answer the plaintiff's interrogatories.

The matter came before me in Chambers on 9 October 2003 for the purpose of allocating the hearing date agreed to by the parties, namely 19 July 2004.

The plaintiff, however, took the view that this admission was not enough. On 17 October 2003 his solicitor wrote to the second defendant's solicitor saying they still sought the answers to interrogatories and that as there had been failure to comply with the peremptory order "the second defendant would not be permitted to dispute publication at the trial." The plaintiff's solicitor went on to add: "However, in the circumstances, the plaintiff will not seek to rely on the strict terms of that order, provided the second defendant provides the answers sought within a further period of seven days from today's date."

This was a generous offer, but it was not taken up. Instead the second defendant's solicitors sent their third letter confirming publication: "We confirm that… for the purposes of the Section 7A hearing only, our client admits publication of each of the matters complained of against him."

This was no idle promise. Publication is the central issue in defamation, a tort which has often been compared to torts of strict liability. Defences such as comment and qualified privilege could not apply if publication was denied, and the question "did you publish this?" would be one of the first questions any solicitor would ask any defendant, whether or not he/she was a newspaper proprietor. It is not the sort of issue about which there is likely to be the kind of doubt which would exist in other elements of the cause of action.

The second defendant having admitted publication in the clearest of terms, more than once, the plaintiff let the matter rest. However, for the purpose of the hearing, the plaintiff wanted the originals of the matters complained of, and in or about June 2004 issued a subpoena to the company which now publishes the newspaper formerly conducted by the second defendant. The second defendant's daughter is a director of the company that now publishes the newspaper and I was informed during oral submissions that the second defendant's son is one of the company's employees.

On 8 July 2004 the solicitors for the second defendant wrote to the plaintiff's new solicitors the following short letter: "We note that you now act for the plaintiff in this matter.

We refer to our letter to your client's previous solicitors dated 17 October 2003 and advise that our client no longer admits publication of each of the matters complained of as against him."

This letter was replied to promptly by the plaintiff's solicitors on 9 July 2004, objecting to such a course. In addition the plaintiff sought to relist the matter urgently on 13 July 2004. Following this, the second defendant in his solicitor's letter admitted publication of two of the matters complained of (publications B and D).

Because the hearing date was imminent, the court could not allocate any time to hear the plaintiff's application and the plaintiff's application was stood over to the trial date of 19 July 2004. By any objective standard, the timing of the second defendant's claim that publication was no longer admitted was very late indeed, in proceedings where there had already been a great deal of interlocutory skirmishing. I particularly note that the issue of translations of the Korean language were the subject of prolonged debate over this period, and this surely would have focused the mind of the second defendant on which, if any, of the publications he in fact did or did not publish.

It is against this background that the second defendant by way of Notice of Motion filed on 16 July 2004 (returnable on 19 July 2004) seeks orders that self-executing orders made by me on "2 October 2004" [sic] be vacated, costs and such further or other orders as the Court deems fit.

The first question is the source of my power to grant any application for the withdrawal of admissions. Part 15 District Court Rules has been introduced to save time and expense by giving litigants the opportunity of having their opponents admit formal or undisputed matters, as the introductory notes explain, although the purpose of such rules is generally to obviate the need for proof of peripheral matters: see the notes to Part 15 r 2. The parties addressed me on the basis that the law was as set out in Coopers Brewery Ltd v Panfida Foods (1992) 26 NSWLR 738 although that application was brought in reliance upon the Supreme Court's inherent power (which I do not have) and sections 82 and 76A of the Supreme Court Act, 1970. Although this case is referred to in the footnotes to Part 15 r 1, I have doubts as to the applicability of Part 15 to an application to withdraw admissions on an issue as central as publication but as this is an ex tempore judgment I do not have time to deal with legal arguments not raised by the parties and accordingly I merely note my disquiet.

Although the parties assured me that Panfida was settled law I note the warning of Kirby J in Dovuro Pty Ltd v Wilkins [2003] HCA 51 at paragraph 91 that issues of case management and efficiency should not prevail over the consideration of justice, especially in a long trial where a point of law or construction might be "overlooked or mistaken" (see also Deangrove Pty Ltd v Commonwealth Bank [2003] FCA at 268 where Sackville J makes the same point, more strongly). Both Dovuro and Deangrove are examples of cases where the courts have been careful to draw a line between admissions which are inadvertent and admissions which are deliberate and the result of a full opportunity to consider the case.

I note the careful summary by Sackville J of the relevant principles concerning the withdrawal of admissions as set out by Santow J (as his Honour then was) in Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, 16 October 1996) as follows: 1. Where a party under no apparent disability makes a clear and distinct admission which is accepted and acted upon, for reasons of policy, the application should not be freely granted; 2. Good reasons should be provided; 3. Where the concession was made after consideration and advice after a full opportunity to consider its case, admissions made with deliberateness and formality will not ordinarily be permitted to be withdrawn; 4. Leave may be appropriate where the admission was made inadvertently, without due consideration or contrary to the established actual facts; 5. In applications to withdraw admissions, court efficiency should not trump justice.

The discretion conferred upon the court is unfettered (Ridolfi v Rigato Farms Pty Ltd [2000] 2 Qd R 455 at 459 per de Jersey CJ - defendant refused leave to withdraw admissions made by failure to answer Notice to Admit Facts).

This brings me to the application of these principles to the facts of the case.

The circumstances leading to the second defendant's change of position about publication are set out by Mr Lynch, a solicitor in these proceedings, who was briefly cross-examined. He said in cross-examination that he had limited knowledge and that he did not know that the subpoena issued by the plaintiff (which apparently triggered this application in that it brought the inadequacy of the second defendant's records to the attention of his lawyers) at the time he had the conversation with the plaintiff's barrister on 13 July about the proposed withdrawal of the admission referred to in paragraph 25 of his affidavit. I note that in paragraph 24 of his affidavit he refers to being told about this subpoena in a conversation with Mr Svilans on the same day; probably this conversation postdated Mr Lynch's conversation with the plaintiff's barrister. Indeed, Mr Lynch asked the very question that I kept asking, namely why was this admission, made so clearly and so frequently, being withdrawn.

Mr Svilans, the person to whom Mr Lynch addressed this sensible question, is the solicitor with the carriage of the matter for the second defendant. He is unavailable to swear any affidavits as he is in Latvia until 7 August. I accept unreservedly that he is unable to be here as a result.

According to paragraph 24 of Mr Lynch's affidavit, Mr Svilans explained to him the second defendant's change of position about publication as follows. After the plaintiff's subpoena to the current publisher for the originals of the matters complained of was received, the second defendant's son looked through the archives and found "the documents" were lost and destroyed. (I pause here to note that it is unclear if that just means the documents for this case or all the documents but it is clear that, as was the case in Panfida, the second defendant's record keeping was poor.) As a result no documents at all could be produced in answer to the subpoena issued by the plaintiff.

Now, what did an inability to answer a subpoena for the originals of the matters complained of (if that is what "documents" means) have to do with the withdrawal of admissions? It appears that as a result of discovering that the originals were not available Mr Svilans "went through the matters complained of in detail, not with the publisher, but with Jim Lee, the publisher's son". Mr Svilans then makes the cryptic comment to Mr Lynch that "it became clear to me that publication was indeed a live issue in relation to a number of the matters complained of". As a result of this opinion of Mr Svilans, the second defendant's solicitors sought to withdraw the admission of publication which Mr Svilans told Mr Lynch was made "on or about 17 October 2003" (paragraph 24). In fact this admission was made on several occasions, but Mr Svilans and Mr Lynch were having an informal conversation, which explains why these other occasions were not referred to.

In his submissions to me, counsel for the second defendant returned repeatedly to this explanation by Mr Svilans. In Deangrove Sackville J points to the need for a satisfactory explanation for withdrawing an admission, referring to the list of criteria set out by Santow J in Drabsch. Is this explanation the kind of "good reason" referred to by Santow J in Drabsch?

On closer analysis, the explanation offered by the second defendant quickly unravels. First all admissions for all eight publications for which the second defendant is asserted to be the publisher are withdrawn, then admissions are made for publications B and I; then during argument an admission was made for publication D, leaving publications E, F, G, H and J. In addition, I am not told what "documents" are missing, or what information the second defendant's solicitors were acting on when they gave their repeated assurances that publication was admitted, or when the second defendant changed his position about publications B, D and I. The second defendant was not available to give evidence as he is in Korea, although he appears to have had access to telephones and the like for the purposes of giving instructions. Mr Hughes asked for leave to call the second defendant's son, who was sitting in court, but did not explain how this witness could assist in explaining why the second defendant changed his mind about whether his newspapers published one, or two, or three, or all, or none of the matters complained of.

I asked Mr Hughes whether he asserted the admissions were (singly or altogether) made as a result of error or mistake and he answered both yes and no to this, objecting to my questions as amounting to cross-examination of him. However, this is the very question that judges in all these cases (of which Panfida is but one) ask themselves, so it seemed only fair to ask Mr Hughes what he though the answer was. Ultimately, however, Mr Hughes kept coming back to Mr Svilans' statement to Mr Lynch that the discovery there were no copies of these editions of the matters complained of meant that publication had become "a live issue".

The plaintiff submits grave prejudice will result. A subpoena to the newspaper has not resulted in originals of the newspapers bearing the dates on the matters complained of. The first day of the four week trial has been spent arguing this motion. The plaintiff does not himself have the originals of these newspapers, according to Mr Dibb, and an adjournment of some kind would be necessary for further inquiries to be made. I did not hear what further inquiries would be required, but whether this involves some kind of canvassing of newspaper readers or (as some of the correspondence suggested) interrogatories to the parties or subpoenae to newspaper repositories, clearly it would be an adjournment of some substance in a case which was specially fixed ten months ago. The plaintiff also submits that this is an argument which was seized upon by the second defendant when he realised that the plaintiff did not have the original of the matter complained of. While I acquit the second defendant's solicitors of any claim of sharp conduct, it does trouble me a little that the second defendant himself did not provide an explanation on affidavit which could have been tested in cross-examination (and I note that my suggestion that this issue could be dealt with later in the trial was resisted by Mr Hughes although in practical terms this would have meant his client could be cross-examined). As a result, assertions about the state of the second defendant's newspaper records are no higher than recitations of his instructions to his solicitors. If the second defendant had been available to be cross-examined (or for that matter his daughter, who is the director of the company which is now publishing "Top") that might have been of some assistance, but the only witness on office is Mr Lee junior, whose evidence could not be described to me apart from the assertion that he cannot locate "documents" belonging to the second defendant.

The other defendants who are represented submitted that I should accede to the second defendant's application. The third defendant submitted that it would be prejudicial to his case to have the same document tendered as representing the publication the third defendant made, because the third defendant was a separate newspaper. The jury might be misled by seeing the same Korean typeface because issues such as shading and print size might affect whether or not the jury decided the imputations were conveyed and defamatory. Even if that were the case (and I suspect that the jury is more likely to regard the copies of the Korean language publications as meaningless squiggles) that can be cured by appropriate directions if required. The third defendant's other objection, that admissions must be tendered to be of any evidentiary value, is a submission for which no authority was provided. Admissions about circulation and readership of a newspaper are occasionally tendered in answers to interrogatories, although the usual course is to tell the judge the ABC audited figure, but where publication of the matter complained of is not in dispute it would be unnecessary and indeed confusing to require, for example, that the John Fairfax Group tender the appropriate certificate of incorporation, or the relevant paragraph of the defence in which publication is admitted. The purpose of placing evidence before a jury is to enable the jury to determine issues which are contested. To place evidence before the jury of matters which are not contested (and I note that publication has not been contested by any other defendant) could cause the jury confusion.

Mr Weaver of counsel also supported the withdrawal of the admissions on behalf of his clients and submitted that no jury should ever be permitted to read photocopies of newspaper articles. In fact, the practice is to the contrary. Newsprint is a perishable commodity and in section 7A trials the yellowing copy of the increasingly fragile newspaper is often not tendered at all and jury members are each furnished with photocopies of the matter complained of. Juries are sometimes given the original when they retire so that they can compare the copies with the original if there is a photograph or other visual aid required. If there are submissions to be made about the impact of heading size or layout, appropriate directions can be given to the jury if necessary, depending on whether any such assertion is made in these proceedings. I was not however taken to any particular portion of any of the publications which were likely to give rise to any problem as a result of the original not being available.

Both Mr Weaver and Mr Wheelhouse assured me that everyone at the bar table knew that the second defendant had not published these publications. They had only been published by the third defendant. The same Korean typeface could not have appeared in these two newspapers. The publication in the second defendant's newspaper therefore had to be different.

In fact the first defendant (which has never been represented) is also alleged to have published these publications, which consist of a series of auditor's reports and figures. The document to which the second defendant objects will be before the jury in relation to the imputations pleaded by the plaintiff against the first defendant. The orders made against the first defendant by me mean that publication is not an issue in relation to the first defendant.

The pattern emerging from the series of publications in the statement of claim is that of the same publication in a series of different Korean newspapers. Whether this is in fact the case is unknown to me, but there is no glaring inconsistency of fact or inherent legal absurdity in having the same publication in several different newspapers. A good example of a glaring inconsistency would be if the second defendant could produce the newspaper published on the alleged date and show that the matter complained of was not in it, but all I was offered was assurances from the bar table that counsel in the case knew the true facts. I can only wish that the documentary or other evidence which forms the basis upon which these opinions are based had been put before me in evidence. When exercising my discretion I must act judiciously and upon the facts before me and not speculate on what the true facts might be. The evidence in this case falls far short of the reasonable explanation requirement as explained by Santow J and Sackville J, and I respectfully adopt the wise and careful analysis of these judges on these issues.

While I have given some weight to case management factors, that weight has been slight. The real need is to do justice between the parties. The vehemence with which the second defendant repeatedly assured the plaintiff over a long period that publication was admitted has to be compared with the vagueness with which the second defendant claims he did not publish first all, then all but two, then three out of eight, of the matters complained of. The assertion that publication is "a live issue" is essentially Mr Svilans' opinion, and not a fact in this case. The second defendant is not a person under a disability of the kind referred to by Santow J, but the proprietor of a newspaper, and his solicitors are held in the highest respect as solicitors who are as competent as they are reputable. The kinds of error or oversights referred to as grounds for permitting the setting aside of admissions are not appropriate on the facts of this case as Mr Hughes eventually conceded.

I accordingly dismiss the second defendant's application. The second defendant should pay the costs of the plaintiff for today. I reserve the right of the other defendants to seek costs orders if appropriate.

Orders 1. Notice of Motion dismissed. 2. Second defendant pay plaintiff's costs. 3. Other parties costs reserved. Cha v Oh (No. 6) (District Court of NSW, Gibson DCJ, 20 July 2004, unreported)

JUDGMENT - Re application for publications to be heard at once.

1. This is an application by the third defendant for publications in scheduled F, G, H, and H1 to be heard all at once instead of with separate addresses for each publication. Unlike the other publications in this group all of these publications, with the exception of H1 and H, are published by the represented party as well as by Hoju Dong so there is a degree of commonality among the authors. The difference between H and H1 is a relatively small one and it is asserted that the second defendant published one and the third defendant the other. That is not a difficult matter, although it may require some explanation of some care in the questions for the jury.

2. When this matter first came before me, owing to the fact there were 18 publications, it was necessary for me to hand down a series of three judgments in relation to the conduct of the matter. This being a case where essentially the third defendant was insisting on a jury, while others either changed their mind, or, in the case of the plaintiff, didn't want a jury at all, in any event, the mere fact that one party insisted on a jury is tragically enough to trigger provisions of section 76B of the District Court Act. As a result, it is necessary for a jury to hear and determine all of these 18 publications.

3. The concern that I had about the submission of Mr Wheelhouse when it was first put to me last year was that it gave, in my view, a forensic advantage to the third defendant who basically had one lot of cases heard and then went away, over the other six defendants, some of whom were represented at the time, some of whom never bothered to show up, and, essentially, all of whom were opposed to what was Mr Wheelhouse was saying.

4. Then what happened was the second and third defendants made a submission to me, and I note Mr Wheelhouse now vehemently denies that he ever made such a submission, but I recorded in paragraph 13 of my judgment of 30 September, it certainly was never mentioned before commencement of this trial that I got it wrong, although I would have been happy to have revisited it if indeed I had got it wrong.

5. The second and third defendant submitted to me there should be only one jury as opposed to 18 juries, and that only one jury should hear each publication in chronological order determining the imputations in each article separately. The plaintiff indicated if there had to be a jury that would be the course that the plaintiff would consent to. On that basis we set the matter down to start and then Mr Wheelhouse put his application again.

6. It has to be said that anything that would get this case over more quickly and make it easier for the jury and reduce the number of publications is desirable. Indeed, I have dropped what I can only regard as blatant hints to the plaintiff to persuade the plaintiff to try and see the wisdom of this course but those hints were deemed outright bulling on my part and don't seem to have had any effect. The plaintiff continues to insist that he wants to have a separate address on each of these publications.

7. The matters that Mr Wheelhouse points out to me are that, firstly, that the matter should be the subject of a direction by the trial judge, which really is what I would call a phatic application since I am the trial judge, but I was the trial judge when I was making these orders. In any event, this is what the parties agreed to. If the parties agree and come along and tell the trial judge they want to change the agreement, the fact that the trial judge denied it.

8. Secondly, he said he had a distinct and clear forensic advantage of going last. Since he has that already, no matter how many advantages there are, that is a meaningless objection. What he really means is that he has the advantage of going last once. And if that is right, although I note what McHugh J has to say in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; (2003) 77 ALJR 1657; (2003) Aust Torts Reports 81-711; [2003] HCA 50 concerning the value of the first address. But thirdly, and really, this is what it's all about, it's in the interest of justice. It's the usual course for a group of common matters to be heard all at once, and it certainly is in the interests of the third defendant, and, in my view, quite frankly, the plaintiff.

9. The parties who would be or could be disadvantaged would be the perceived prejudice caused to Mr Hughes because by the time Mr Hughes' client comes along, they will have heard him three times because he's going to do scheduled B, D and E. I would imagine that Mr Dibb will be all over Mr Hughes' best arguments by then, unless he's got a special one up his sleeve for this one. Also, perhaps to a lesser extent, Mr Weaver's client because of the cross-claim.

10. The fact that Mr Weaver has to come back for another publication on the 10th, but these gentlemen tell me that they don't really mind either way and that's a concession which I think makes all the difference. Because really, I have to look at the interests of all the parties. If it's not going to cause any problems to the other defendants, I have to ask myself why it is that the plaintiff should not have each part of the proceedings go ahead in the usual fashion.

11. Then too, given the degree of potential for inconsistent verdicts or just plain weariness or boredom that will set in with the jury having to return verdict after verdict, anything involved in rushing up a verdict is desirable. And indeed, I very much hope that the parties will make a similar application in relation to the four matters in the cross-claim. It seems reasonable they should be dealt in the same way.

12. Any prejudice to the plaintiff as to why one group of publications needed to be dealt with in one lot can no doubt be explained by counsel, subject to correction by me if necessary. But it seems to me anything that gets this trial moving and gets matters dealt with is desirable in the extreme.

13. Accordingly I propose to accede to the proposal sought by Mr Wheelhouse. Although I should indicate that I would not have acceded to it had it not been for the important and careful concessions made by the second defendant and by Mr Weaver's clients, since they are the ones who, in my view, would have been the ones who would have most validly objected to this course.

14. Accordingly, I will proceed on the basis that these publications are to be heard together. I direct the parties to provide a revised list of questions to the jury to reflect these orders.

Cha v Oh (No. 7) (District Court of NSW, Gibson DCJ, 28 July and 24 August 2004 2003, unreported)

HER HONOUR: This is an application to discharge the jury in relation to an address made by the third defendant on Tuesday, 27 July 2004. The application is brought by the plaintiff. The factual matters in this judgment were delivered orally by me on 28 July but at the invitation of the parties I publish the issues of law on 24 August 2004 in this reserved judgment. The first half of my judgment consists of my ex tempore reasons of 27 July 2004.

I should commence by noting something unusual about this trial and that is this. There are in fact three represented parties before me, and I am indebted to their respective counsel, Mr Dibb, Mr Hughes and Mr Weaver and including, I should add, since he participated also, Mr Wheelhouse for the very clever suggestion that if I were to discharge the jury, that I need only discharge it in relation to the third defendant since the poison can effectively be cut off at its source by excluding his client from the case by proceeding as against the other defendants.

Having regard to the unusual features of this case, namely, that it involves effectively fifteen (although really only fourteen) publications in the statement of claim and another four in the cross-claim, that the jury has already given their answers to questions in relation to the first five publications, that the jury is currently out considering four more, and there are other publications and the matter has been set down for four weeks, I must say this is an ingenious suggestion and one which would hopefully save time and money when one comes to what orders must be made.

I should firstly set out what the areas of difficulty are. The first is that in addressing the jury, Mr Wheelhouse, for the third defendant, impermissibly, it is alleged, put his case about publication too high. What Mr Wheelhouse said can be seen from the following extracts of the transcript: "Essentially, members of the jury, Mr Lee denies that by each of the reports he made the imputations alleged. He says that each of the imputations that Mr Cha alleges is in effect a direct charge against him, Mr Cha. Mr Lee says he did not by the publication make the charge because the reports or by the reports he did not adopt or endorse in any way the allegations made by others in those reports."

I pause briefly to note the key word "because" and the absolute fashion in which this is put. There is no suggestion of "may". While there is a general rule that a person who publishes will be liable, there may be circumstances in which the ordinary reasonable reader may draw an inference but this is an exception to the general rule.

This submission to the jury is state in language that Mr Dibb called mandatory and although I think that is perhaps overstating it, it is very close to being mandatory.

The next relevant passage in which there is a reference to "endorsement" or "adoption" occurs in the paragraph which commences at the bottom of transcript 433, and the relevant portion is: "To separate it out, as it were, from a report that assists endorsement or adoption of the newspaper."

Mr Wheelhouse said again at transcript 434, line 41: "My client, Mr Lee, submits to you, that the ordinary reasonable reader would not understand that Mr Lee was conveying the imputations by publishing the reports on which he is sued because nothing in any of the publications suggests he endorses or adopts the charges or imputations made by others, if any, in the reports."

Again, one sees the word "because". In the course of argument, I asked Mr Wheelhouse if he agreed that the words "because" and "unless" were much the same thing from the point of view of looking at judgments such as Wake, bearing in mind that this word occurs in the passage that is cited in Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43 at 49-50, as summarised by Samuels JA in Parker v John Fairfax, which is in turn summarised by the Court of Appeal in John Fairfax & Sons Limited v Obeid (1998) NSWLR 720E.

Mr Wheelhouse agreed, and properly agreed, in my view, that these words "because" and "unless" were much the same thing and that of course is the problem. "Because" really does mean the same sort of thing as "unless" or even "only". That is the difficulty that I have.

Then, of course, almost immediately just over the page at the top of transcript page 435 in line 3, the word "only" makes an appearance as well. We are told that the newspaper is "only" a vehicle. Indeed, there are a number of references in the transcript to the newspaper being "only" a vehicle. So the word "only" made an appearance as well.

Mr Wheelhouse took me to some other portions of this address. He notably took me to transcript 432, lines 52 to 58, and to 436, lines 20 to 24. However, nothing in those paragraphs, regrettably, waters down what he said.

It was at this stage that Mr Dibb got to his feet, transcript 437, and made an application to discharge the jury. I heard that application and I handed down a judgment. I said at the beginning of my judgment I was doing it on the run. And, indeed, the transcript makes it quite clear I was cross about having to do it on the run because this is, as Mr Wheelhouse has since agreed, a quite complex and fine issue of law.

Nevertheless, doing the best I could, and drawing largely on my recollection of cases such as Foord and what I recall reading in Professor Brown's encyclopedic textbook, I told Mr Wheelhouse that the question of "endorse" or "adopt" was getting the issue back to front, and that what needs to be determined is what the ordinary reasonable reader makes of the matter complained of having regard, of course, to such matters as form, material and presentation and the like. This is the test of what the publication conveys.

I declined then to discharge the jury but I indicated very clearly to Mr Wheelhouse that it was not the law that a repeater of a defamatory statement of another is not liable because he has not adopted or endorsed it. He continued his address on the basis that I indicated that I would be giving this direction to the jury.

From then on, Mr Wheelhouse was, if you like, given a last chance, or a second chance, to tell the jury in what I call the water-down version, the version that he says he was endeavouring to make, as opposed to the one that he was endeavouring to avoid.

However, at transcript 451, again he said to the jury at line 11: "There is no suggestion to the ordinary reasonable reader of the publication that the auditors' statements are adopted or endorsed in any way (my emphasis) by the newspaper even though it is correct that the actual report is published in the newspaper by Mr Lee."

He goes on to say that the ordinary reasonable reader understands an advertisement as being simply an advertisement and not something that is adopted by the newspaper. He went on to use the example of Crime Stoppers and said that a publication in Crime Stoppers would not be understood by the ordinary reasonable reader as being published by a newspaper making a statement in Crime Stoppers "because the content of the advertisement is not adopted so far as the ordinary reasonable reader appreciating or understand [sic] the material by the newspaper."

Now, once again one sees the emphatic words "is" and "could". He says that, at transcript 452, line 9: "We say, members of the jury, far from having produced a publication that conveys the message of adoption or endorsement of the auditor's imputations, the report makes it plain that the newspaper does not. And it does this in a number of ways, members of the jury."

Now the crucial part is what occurs on transcript page 453: "Plainly, members of the jury, there is a debate going on between the publication of material by the committee and the analysis and determination of the accuracy of that material by the auditors. It says, "We looked at this report, it was very much different to what they announced." And the "we", members of the jury, is quite plainly the persons whose signatures appear four or five lines below. I should indicate, members of the jury, that none of the committee members including my client, Mr Lee, although Han Yong Lee is referred to. My client is a different Mr Lee. I don't think that's a very controversial point. As I have submitted, members of the jury, there is no suggestion anywhere in the report that would lead an ordinary reasonable reader to understand or come to the conclusion that the third defendant has endorsed or adopted or agrees with the views of the auditors, particularly has adopted the views of the auditors as his own."

This portion of the transcript contains several relevant items. First of all, it contains assertions by Mr Wheelhouse that his client, Mr Lee, is a different Mr Lee, something which he refers to as being not "a very controversial point", at line 20, T 453.

Then there is the portion at line 30 to 36, which he referred to as his kernel argument which he says it was "permissible" for the jury to find the arguments now put on behalf of the third defendant meaning that the imputations are not carried to the ordinary reasonable reader.

He goes on to say, "This is not written in rock", at line 39. And the fact that the words "permissible" and "not written in rock" occur is the closest Mr Wheelhouse has been able to take me to any doubt being entertained on this issue.

I note there is another reference to the word "can" but the word "can" is really just another way of saying in the context that it is used, "should". And, indeed, the word "permissible", in my view, having regard to the context in which it appears, does not suggest may or might or anything like that; it effectively suggests that you will, you have my permission, you are able to, or something similar.

Then, of course, there is the further reference to the other Mr Lee, in circumstances where these references to Mr Lee actually started on transcript 452 where Mr Wheelhouse referred to the publication being "signed by the auditors who on the facts of this material plainly had no relationship with the newspaper."

That is an important part because what is in issue is that interspersed with these references to "endorsed" or "adopted", we had these references to the auditors, on the face of the material, "plainly" having "no relationship with the newspaper". The trouble is they may be identified as being the auditors, but to assert that the ordinary reasonable reader has some information that they "plainly" have "no relationship with the newspaper", and to tell the jury that the third defendant is a very different Mr Lee, all of this interspersed with the other passages mean that one confusion, effectively, is heaped upon another.

I included the transcript down to line 31, because that was the passage that Mr Wheelhouse submitted was of assistance to him. But the trouble is, I cannot see that it helps him. I wish it did, but I cannot see that it does.

I now come to the passage on page 455 which Mr Wheelhouse submitted was another passage which helped him.

This is a passage where Mr Wheelhouse is putting the sort of material that one might put if one put it in the appropriate form; in other words, by means of explaining to the jury that there might be something in the fact that this is a report of what another said, where the format had some kind of impact on the content.

The degree to which content is affected by form in terms of the English language (there is no doubt that it can have an impact) needs to be put to the jury carefully and clearly. And, once again, one sees the reference to Mr Lee being "merely the vehicle for which the charges, if they arise at all, being made by others'. That is line 37. And we hear that the ordinary reasonable reader "wouldn't" see the nature, form and content as the newspaper "adopting or endorsing".

Once again, one has the language of almost the mandatory nature that Mr Dibb complained of.

I note Mr Wheelhouse said that he thought that portion of the transcript is wrong. I wish it were, but I am afraid I think it probably is not.

Mr Wheelhouse also took me to the passage on transcript 456, lines 9-18. He did draw my attention to one portion he says that is wrong. He says where the transcript reads "they are correct charges", that should be "direct charges". That may or may not be. But, of course, if it were "correct charges", then that is another problem. I am not going to place much weight on that at all. I would rather assume in Mr Wheelhouse's favour that it says "direct charges". The trouble is that, even in that form, I do not know it assists him very much.

Now another passage that was complained about by Mr Dibb, I should mention, is the passage at 457, where Mr Wheelhouse asked the jury to put out of their mind any issue of truth or falsity. What Mr Dibb submitted was that in addition to these portions to which I have referred, there were interwoven two things. The first was the issue of intention, in that by its very nature, the reference to endorsement implies intention. It certainly is the case I think that one must be very careful when talking about "endorsement" to indicate to the jury that intention is irrelevant, or to make it quite clear that there has been no suggestion of intention. I cannot see anything that Mr Wheelhouse said to that effect.

The other thing is that there was this issue of truth or falsity. By itself, that passage at page 457 is not a problem, but the multiple Mr Lees and the references to that is a difficulty and, of itself, allowing - I know Mr Wheelhouse says that he thinks that I can cure it, but this is an issue which would need very careful handling in front of the jury and, in effect, it would need the most careful of directions in circumstances where I do not think I have that luxury, by reason of the fact that it has occurred on top of - being the icing of the cake effectively - of these other matters that would need correction.

Now, it is always desirable for any trial judge to try and make corrections. I indicated yesterday that I would endeavour to make corrections; and perhaps if Mr Wheelhouse had moderated his language after I gave that very clear indication, I could have done so.

The trouble is that I had the additional problems and then, too, the direction that Mr Wheelhouse asked me to make which he handed up to me, and still puts to me would sufficiently resolve the issue, is effectively a one liner saying it is permissible to make such a finding. This does not cure the ill.

If Mr Wheelhouse had put before me some form of draft address in which he said, "Look, members of the jury, yesterday I said this is. I over-egged the omelet. Members of the jury, I'm only saying "may", and her Honour is going to say this", and put a more helpful submission, for example, that the jury may understand, I may perhaps have been able to deal with it. But it is not appropriate for me to be endeavouring to work out what is appropriate to put to counsel. It is not a drafting exercise where I add in and subtract words.

I did endeavour, I might add, to work out a way of drafting a direction to the jury. I indicated to counsel in the course of address that I had endeavoured to put something together from Wake v John Fairfax. But the point is as Mr Dibb and Mr Wheelhouse developed their arguments and naturally looked at the transcript and noted the total absence of the word "may", although Mr Wheelhouse assured me before the morning tea adjournment that he had said "may", it is clear to me there are difficulties.

This is a difficult case already. This is a jury who have been told that there are a number of issues that they need to be very careful about. And this brings me to the next problem that I have. That is, that in making these addresses to the jury, Mr Wheelhouse has told the jury that they would find that these publications were in the newspaper by reason of a regulation and spent a lot of time on the first publication saying this. Mr Dibb drew my attention to the fact that the second and, in particular, the third publication has no such notation - and, of course, it's essential that the jury keep each article separate, so there has been an impermissible mingling of the three articles.

So when you list all of the problems we have here, we have a mingling of the articles, we have references to Mr lee not being connected to the auditors and these are matters that the ordinary reasonable reader would not have known. For all I know, they might have thought to the contrary with the kind of loose thinking that ordinary reasonable readers have. But then, too, there is this question of whether Mr Wheelhouse has gone beyond the bounds, and that is the difficulty I have.

Now, the law in this matter, bearing in mind that it is 10 past 1 and my staff have got to have a lunch break, I would like to summarise after lunch. If it is acceptable to you gentlemen, if I start looking a bit worn, would you mind if I adjourn for lunch? Is that a problem for you, or do you want me to keep going?

44. What I will do, I indicate the orders that I propose to make are as follows.

45. In relation to the publication for the matter complained of by the third defendant, I propose to direct the jury that they need not answer the separate questions by the third defendant and I will, at 2 o'clock, entertain from counsel for the other defendants what directions, if any, are necessary to the jury in order to determine that the jury understands the basis on which they are to answer the questions, so as to ensure that no poison flows from their receiving this information.

46. I will reserve the issue of costs and I will invite the third defendant and the plaintiff and, indeed, the other defendants, to make such submissions as are appropriate in writing in a timetable that I will hand down after lunch.

47. I will publish my reasons, including the law upon which I rely, in full as soon as I am able to do so and I will excuse Mr Wheelhouse and those who instruct him from attendance this afternoon.

49. Mr Wheelhouse submitted to me written extracts from the authorities which he asserted supported his entitlement to make submissions along the lines that he did: "SOME EXCERPTS FROM ADOPTION CASES 1. Ronald v Harper (1910) 11 CLR 63, at page 77 per Griffith CJ (O'Connor J agreeing): 'It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious to another may be used under such circumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact, and I do not think that, in a case such as this, the jury, in finding that the defendant used these words, intended to find that he meant to re-affirm the charge.'

2. Wake v John Fairfax [1973] 1 NSWLR 43, at page 49G (per the Court): 'There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted.'

3. Ross McConnel Kitchens v John Fairfax [1980] 2 NSWLR 845, at page 848 A-B (per Hunt J): 'The general rule, that the republisher of a libel is responsible as if he had originally published it, is not a rule of invariable application: Ronald v Harper (10a). If the defendant simply repeats the original libel, his liability does not depend upon whether he himself adopted or reaffirmed it: Wake v John Fairfax & Sons Ltd (14a). But the nature and quality of the defamatory publication may vary, depending upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted by the republisher. The apparent purpose of the republication will also have a significant bearing on the meaning con­veyed'

4. Nationwide News v Heggie [2001] NSWCA 257 at para 20 per Hodgson JA: 'in my opinion it might be relevant to consider whether... there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation.'

5. Nationwide News v Heggie at para 22 per Hodgson JA: 'questions concerning the circumstances of the original making of the allegation, the publication of both sides of the matter, and the lack of endorsement by the publisher, are matters which might be relied on, if carefully put as part of a submission that the published words did not make the imputation complained of'."

In fact these extracts do not reflect the precise and clear statements of this issue by Judge in the Court of Appeal and the Federal Courts and in a number of text books in defamation. Counsel for the plaintiff took me to the following extracts from the following decisions: Nationwide News Pty Ltd v Heggie : "What Mr Hale SC, with all respect to him, overlooked is the well-established principle that a re-publication of a defamatory statement is the publication of a fresh defamation. As Gatley on Libel and Slander (6th ed) 1967 says: "Every republication of a libel is a new libel". The same point was made by the Full Court of New South Wales in Wake v John Fairfax and Sons Ltd (1973) 1 NSWLR 43 at 49, when the matter is put in the following way: "There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v Daily Telegraph Ltd (1964) AC 234 at 284: 'For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it'."

This was re-stated by Smithers, Neaves and Pincus JJ in Australian Broadcasting Corp v Comalco Ltd (1986) 68 ALR 259. Mr Hale's fixation on "adoption" of the libel, and his obdurate refusal to recognise that the newspaper article was republishing Mr Watkins's libel, in the light of those authorities, was thus demonstrably provocative ." (My emphasis)

John Fairfax and Sons Pty Limited v Rivkin : "The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper , although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not "a rule of invariable application". The context of the statement may show that it is refuted or undermined by other parts of the publication. In Bik v Mirror Newspapers Ltd , the plaintiff claimed that he was defamed by a report of parliamentary proceedings that disclosed that a witness at a coronial inquiry had alleged that the plaintiff had designed a faulty crane that led to a fatality. But the report also stated that, in answer to a question, the Minister of Justice "completely cleared" the plaintiff. The New South Wales Court of Appeal unanimously held that the report was incapable of a defamatory meaning concerning the plaintiff."

Obeid v John Fairfax Pty Limited [2003] NSWSC 967 " [15] The second matter of complaint relates to what in shorthand throughout the submissions has been described as the "adoption" point. Page 44 of the transcript of yesterday's proceedings records: Now, if you have, as I say, claim and counter claim, allegation and denial, one person says X, the other person says the opposite, and the key ingredient in all of this is whether the allegation is correct, if you're looking, I suggest, to whether or not the article conveys guilt, you need to look to see whether there is any suggestion in the article that the Sydney Morning Herald or John Fairfax or whatever you want to call it, or the journalists actually adopted one side or the other or is it simply a situation where they say one person says this but the other person denies it.

[16] Upon hearing those words spoken yesterday, and upon reading them early this morning and again in court, I could come to no other view than that they could only be understood as suggesting to the jury that it "needs" (the word used by counsel) to look to see whether there is any suggestion in the matter complained of that the paper or its publisher or journalists actually adopted it, before the jury could come to the view that the ordinary reasonable reader would understand the posited imputation as being carried.

[17] That statement, in my respectful view, was reinforced by what was said at line 10 p 45, and compounded in its capacity to confuse, by what was said at lines 35 to 42 on p 45: Putting it another way, if you look at this article, there is no intention on the part of the Herald or the journalists manifest in the article, there is no intention manifest to suggest that Mr Obeid is guilty of anything. Can't point to a single paragraph where such an intention is manifest.

[18] As to the last mentioned quote, the language Mr Reynolds used by itself was not novel. It understandably bears a striking coincidence with certain propositions stated by Hodgson JA in Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 at para [20].

[19] The use by Mr Reynolds of the passage also "resonates" to some extent with what was said by Hunt J, as he then was, in Ainsworth Nominees Pty Ltd v Hanrahan (1982) 2 NSWLR 823 at 830 to 831.

[20] The view I have formed, however, is, if either what Hunt J said in Ainsworth or Hodgson JA said in Heggie , and I stress "if", stands for a proposition to the effect that regard may be had to adoption, repudiation, discounting, purpose, endorsement of the allegation by the publisher, or whether there was an intention manifested by the publisher, constitutes a legitimate mechanism for the jury to determine whether to the ordinary reasonable reader a meaning was conveyed, the manner in which that language is employed in counsel's address in my view removed it from a mechanism and elevated it to a point where absence of such features would compel and must compel a negative conclusion.

[21] To correct that matter in the summing up by itself, but the more so in relation to the presumption point, could only aggravate the danger of prejudice to which I have referred.

[22] I would add very briefly the following observations: that both those principal grounds invited my view, speculation as to knowledge, speculation as to belief, and attention to subjective intention in the publisher, none of which is legitimate and all of which cannot be cured. Accordingly I propose to discharge the jury."

(per Levine J) John Fairfax and Sons Limited v Foord [1998] 12 NSWLR 706 @ 720: "However, for the purposes of determining whether the publications in this case are capable of supporting particular imputations it does not matter whether the journalist published the words as his own or whether he quoted extracts from the publication of another.

The point was dealt with by Samuels JA in Parker v John Fairfax (Court of Appeal, 30 May 1980, unreported at 6-7) in these terms: "The relevant principles are those set out in the 7th ed of Gatley on Libel and Slander (1974) at the commencement of par 261 in these terms: - '"Every re-publication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him." It is no defence to an action for such re-publication that the defendant received the libellous statement from another whose name he disclosed at the time of publication.' The first of these sentences was approved by the Judicial Committee in Holloway ('Truth' [NZ] Ltd v Holloway [1960] 1 WLR 997) at 1002, and the general principles were expressly affirmed by this Court in Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50. At 50, the Court said this: - 'There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v Daily Telegraph Ltd : "For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it."'

It follows that if A publishes that B has said that C is a villain, A may be charged with the imputation that he has said that C is a villain; and if A seeks to justify, he must establish the fact of C's villainy, and not merely the fact of B's statement.""

As the judgment in Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50 makes clear, the nature and quality of the defamatory publication "may" vary dependent upon whether it is a report of what another said and whether that report is commented upon, adopted or repudiated.

In addition there are strong comments concerning this issue in the two most learned textbooks on the subject. In Gatley on Libel and Slander the learned authors note at paragraph 6.29 (and I am quoting from the 9th edition as the 10th edition was not available to me at the time of writing this judgment): "Although in a large number of situations reports of matters of public concern are given the protection of qualified privilege by statute there is no equivalent here of the doctrine of "neutral reportage" which prevails in some American jurisdictions. The fact that the defendant expressed a doubt or disbelief as to the truth of the slander at the time will not relieve him of liability. No character or reputation would be safe, if a mere statement of a persons disbelief of a rumour which the speaker was engaged in circulating could be made to defeat the right of recovery for the slander.

It is not therefore necessary that the defendant should have adopted the statement. Where the defendant publishes an article defamatory of the plaintiff even a contrary statement in the article will not necessarily prevent a claim for defamation. The question is whether, taken as a whole, the article conveys a defamatory imputation and this is for the jury…" [footnotes omitted]

In relation to the statement that it is not necessary that the defendant should have adopted the statement, the authors cite at footnote 15 the case of Wake v John Fairfax, adding:

"The statement of Griffiths CJ in Ronald v Harper (1910) 11 CLR 63 at 77 should not be read as indicating the contrary"

Gatley is pointing out the third defendant's mistake in reading too much into what Griffiths CJ said in Ronald v Harper. The question is whether the article taken as a whole is capable of giving rise to the interpretation. In this regard the jury's attention may be drawn to any part or parts of the matter complained of which would support such a contention, but the jury may not be told that in the absence of there being an adoption of the libel that the imputation cannot be conveyed. This is the very point that Meagher JA made in Nationwide News Pty Ltd v Heggie at para 8 where he noted that counsel for the defendants fixation on "adoption" of the libel, and his "obdurate refusal to recognise that the newspaper article was republishing… [the] libel" was a misconception of the law and that Levine J also made in Obeid (see especially paragraph 20).

The second textbook to which I have had regard is Professor Brown's four-volume loose-leaf publication "The Law of Defamation in Canada". Although rarely referred to in the Australian courts, this publication invariably, with its encyclopaedic coverage of all aspects of the law of defamation, is the last word on any obscure issues not dealt with by other textbooks. At paragraph 7.7 in Volume 1, Professor Brown notes: "It will not avail the defendant to show that he or she did not adopt or embrace the defamatory remark, or expressly disavowed the truth of the statement, or that when originally published it was protected by privilege. Everyone who give currency to a defamatory report circulating about a plaintiff becomes responsible for its truth… however the defamatory quality of what is reported may vary depending upon whether it is commented upon, adopted or repudiated."

On the issue of adopting or embracing the defamatory remark Professor Brown notes at footnote 174: "There can be no such general rule… that the repeater or reporter of the defamatory of another is not liable as for defamation unless he adopts it or reaffirms it ( Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43 at 50). The court quoted the following passage from Griffiths CJ in Ronald v Harper (1910) 11 CLR 63 at 77… the court said that it was not the intent of the Chief Justice to assert that the publisher of defamatory hearsay is in some special position if he or she does not adopt the imputation or re-affirm it. See also Australian Broadcasting Corporation v Comalco (1986) 68 ALR 259."

Professor Brown notes John Fairfax & Sons v Foord (1988) 12 NSWLR 706 as authority for the fact that the defamatory quality of what is reported may vary depending upon whether it is commented upon, adopted or repudiated. Of course where, as is the case here, the identical publication is made by both a newspaper and the commentators, with the newspaper saying absolutely nothing by way of comment, adoption or repudiation, it is the absence of any such comment that is relevant, rather than the obverse proposition, that such a comment is required, that is the more accurate statement of the law.

Although I asked the parties during argument if they had consulted Australian Broadcasting Corporation v Comalco they had not done so, and I was disappointed to find that Mr Wheelhouse's argument had also previously been rejected by Smithers J at 265.

Smithers J sets out in his judgment an attempt by the publisher (the Australian Broadcasting Corporation) to argue that where a defamatory statement is a republication of what another person has said it is not a necessary consequence that the party republishing adopts the defamatory sting. It was submitted that the method of republication may dissociate the publisher from the sting, and that the "republisher" was not conveying the imputations. The manner of republication was argued by the publisher to be such that the viewer understood the republisher is saying nothing at all, but was merely the provider of a forum or "a vehicle by which others put forward their views". (I note with interest that the word "vehicle" was the same word used by Mr Wheelhouse in his submissions to the jury in this case).

Smithers J, having noted the submissions at 265, goes on at 266 to note that the Australian Broadcasting Corporation sought assistance from the very same observations of Griffiths CJ in Ronald v Harper at 77 which are relied upon by Mr Wheelhouse in his almost identical submission to me.

Smithers J had no difficulty rejecting this submission noting at 266 that: "these observations have not been regarded as supporting the kind of submission as that made by Mr Gyles. The observations of the Full Court of New South Wales in Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49 and 50 are in point…"

Pincus J concurred and at 335 noted the decision in Ronald v Harper where Griffith CJ "expressed himself in terms which may be taken to imply that one who repeats defamatory words may not be held liable unless the person repeating the words gives them his own authority or reaffirms the charge." However, as Pincus J immediately goes on to note at 336 that: "the judgment appears not to have been regarded as proper authority for any such rule: see Wake v John Fairfax and Sons Ltd [1973] 1 NSWLR 43 at 49"

His Honour noted that there were some circumstances in which a defendant publishing an accusation made by another would not be treated as having made the accusation himself, such as the statement that a person has been charged with an offence by the police which, without more, does not convey that the person so charged is guilty or probably guilty unless more is said. However, ordinarily the publisher of an accusation made by another must defend himself against the defamation suit "as if he had made the accusation himself" (at 337). This is because those who physically spread a libel are legally responsible for it.

Neaves J in his judgment dealt with the issue of capacity only in the most general terms (at 318 to 319) and did not refer to this argument.

Thus the argument that Mr Wheelhouse advances in support of his proposition is not "novel" (to use the word Levine J uses in Obeid). It is an old argument that has been tried before and has failed every time. It was rejected by the Court of Appeal in Wake v John Fairfax in 1973 and again in 1986 by the Full Court of the Federal Court in Australian Broadcasting Corporation v Comalco. It was rejected by the Court of Appeal in Nationwide News v Heggie and by Levine J in Obeid v John Fairfax and Sons Pty Limited, a case which I understand is currently before the New South Wales Court of Appeal. It has been rejected by two leading textbooks on defamation. It is an argument which goes against every principle of defamation law.

It will be clear from the transcript and from my earlier judgment in which I refused initially to discharge the jury that I regard the circumstances in which a jury could be discharged as being absolutely a matter of the last resort. Mr Wheelhouse was entitled to make a submission in accordance with Wake that the jury "may" form the view from the manner of layout of the matter complained of that his client did not intend to convey these imputations and indeed he put to me that this was what he had said. However, that is not what Mr Wheelhouse said, as the above extracts from the transcript make clear and indeed as he himself conceded.

It is my view that the matter might have been capable of rectification had Mr Wheelhouse, after my initial judgment refusing to discharge the jury, told the jury that there was no actual requirement for adoption or endorsement but that the jury may consider from issues such as layout or the placement of the publication or the headline or the language that the imputations were not conveyed. This was a weak argument, but it was nevertheless an argument which could have been put.

Mr Wheelhouse's persistence in the adoption argument is identical to the persistence referred to by Meagher JA in Nationwide News v Heggie. Mr Wheelhouse attempted to persuade me that Nationwide News v Heggie was bad law because of inadequate argument by the respective counsel in that case. The Court of Appeal in Heggie did not have the benefit of Professor Brown's comments or decision in Comalco, but the court was referred to all other relevant cases. This decision is not only binding upon me but is correct in law.

In the proceedings before me, Mr Wheelhouse elected to put this proposition to the jury in a situation where I had no remedy other than to discharge the jury. In addition to the other issues, the second defendant (who had already addressed) had not put these arguments, and according to the second defendant's submission to me, Mr Wheelhouse's argument would require at the very least a fresh set of questions from the second defendant to the jury, possibly coupled with some form of further address by him on the issue, and the vexed question of whether, in those circumstances the plaintiff should be permitted some form of right of reply. The likelihood of the jury becoming confused by this procedure was but a further reason for my arriving at the conclusion that there was no alterative to a discharge as directions on all these issues would have been impossibly convoluted for this and the following further reasons.

Two s 7A juries have been discharged by reason of submissions along the lines made by Mr Wheelhouse. In the present case, there were additional serious matters which created complications. Quite apart from the difficulties in which the second defendant and the plaintiff found themselves (which are discussed above) the third defendant made other substantial errors in the address to the jury by the most unfortunate remarks about Mr Lee. The ordinary reasonable reader would know nothing about any connection between this Mr Lee (the third defendant) and the Mr Lee referred to in the matter complained of, and in addition another of the other parties to this litigation is also called Mr Lee. Mr Wheelhouse impermissibly brought in issues of truth and falsity and poisoned the minds of the jury in relation to the issue of Mr Lee. It is not clear to me how I could have addressed this issue in my summing up apart from telling the jury in the clearest possible terms to put the matter out of their minds, and I note that there have been a number of jury discharges where issues of truth or falsity were put to the jury which to my reading did not go as far as Mr Wheelhouse's submission on the Mr Lee issue. Then again, in his address on the issue of adoption, Mr Wheelhouse impermissibly elided all of the publications. The reference in the first matter complained of to the official need to publish this report was read as if it applied to all the other publications.

Mr Wheelhouse conceded that the problems of Mr Lee and of the elision of the publications needed correction by me, but attempted to say in relation to the eliding of the publications that he had not yet completed his address and would have tried to fix this up as he went along. However, the portion of his address to which this issue related, namely the issue of adoption, was said by him to have been completed, as he had moved on to the issue of the individual imputations and whether they were conveyed. Accordingly, the poison was already in the jury's minds and this was the difficulty that I then faced.

In addition, the jury had already been confused by the circumstances in which the plaintiff had been obliged to put the issue of publication as between the plaintiff and third defendant before the jury. The third defendant had originally admitted publication, and on the first day of the trial indicated that there would be some submissions made about these admissions. However, when the other parties in the litigation indicated they were prepared for me to deal with all disputed issues of publication and republication so that the jury need not be troubled by these complexities, the third defendant, somewhat to my surprise, agreed. That agreement regrettably did not last long. Mr Wheelhouse informed me firstly that he had never agreed at all and when taken to the relevant page of the transcript said he was a little hard of hearing. When questions were put to the jury to permit for this issue to be dealt with by the jury, Mr Wheelhouse changed his position again and said that he would tell the jury that they could answer "yes" to these questions.

Section 7A trials are complex enough without needing all of these additional problems. That is not to say that a jury cannot be given directions on issues of complexity or upon a number of issues. Juries are much more robust than lawyers and judges give them credit for. Indeed, there has only been one verdict out of the numerous s 7A trials I have conducted which I regarded as being perverse, and as the Court of Appeal disagreed with me on this issue, clearly even that verdict was not perverse.

However, the difficulties caused by Mr Wheelhouse's address to the jury went beyond a correction of wrong statements of law. It required additional questions for the second defendant and possibly some further address from him and in addition there would need to be a careful and possibly lengthy direction in relation to Mr Wheelhouse's impermissible eliding of the three publications and his references to Mr Lee.

It would be hard to imagine a clearer case where there was a requirement for a jury to be discharged. The "adoption" argument by Mr Wheelhouse is totally contrary to the manner in which Ronald v Harper has been interpreted by the Court of Appeal, the Full Court of the Federal Court and the High Court, and his persistence with this line after I had directed his attention in an earlier discharge application to the real issues in the case, was, to use the words chosen by Meager JA in Nationwide News v Heggie, "provocative".

The other defendants in this litigation did not make any submissions as to the legal issues in relation to Mr Wheelhouse's address. They did however propose the alternative of continuing the s 7A trial without Mr Wheelhouse. If I have erred in law discharging the jury, and in accepting the agreement of the parties to continue the jury trial in his absence, this will create some very real problems as to the standing of the jury's answers to questions in relation to the other defendants in these proceedings. For these reasons, I trust that any appeal from my decision to discharge the jury will be dealt with by the Court of Appeal with the utmost expedition. Having regard to the wise and sensible decisions of the Federal Court in Comalco v Australia Broadcasting Corporation and of the Court of Appeal in Wake v John Fairfax and Nationwide News Pty Limited v Heggie I have no doubt that the Court of Appeal can speedily resolve this latest attempt to revive this very old and tired line of argument.

Cha v Oh (No. 8) (District Court of NSW, Gibson DCJ, 9 August 2004, unreported)

1. HER HONOUR: Following on the discharge by me of the jury in relation to the third defendant only on 28 July at 1.13 p.m., an application has been brought by the plaintiff, the second, fourth, fifth and seventh defendants for their costs for a period of one day which Mr Hughes tells me those who instruct him have helpfully computed by noting that Mr Wheelhouse rose to his feet on 12.45 p.m. on 27 July and sat down again at 1.13 p.m when he was discharged from the case by me at 1.13 p.m. the following day.

2. The circumstances leading to that discharge were unusual in that it could have led to a discharge of the entire jury. By agreement between the parties, what happened was that the jury was given directions by me and returned answers to questions in which they provided answers to the questions in accordance with directions from me to as I recall it, from Mr Wheelhouse in a hermetically sealed envelope or something similar. In any event, as a result, it is possible to summarise the area of contamination so to speak in a chronological sense, to one day.

3. The plaintiff brings an application as follows: Firstly, that the third defendant bear his own costs of the s 7A hearing from 19 July to 28 July. The third defendant indicated to me that insofar as the plaintiff was concerned, and I gather also the other defendants, that that having regard to my ruling, such an order was not a matter on which the third defendant wished to be heard.

4. The second order sought is that the third defendant pay the plaintiff's costs thrown away of one hearing day being 27 July 2004; those costs to be assessable and payable forthwith. Mr Wheelhouse asked to be heard in relation to the application under part 39A rule 8, District Court Rules, that the costs be assessable but effectively what he has ended up asking when the other defendants joined in the application was that all costs be reserved.

5. Indeed, I seem to recall that this happened in Supreme Court proceedings at Dennison v Refshauge, a decision of the Supreme Court in February 2003. Now, clearly, it would be unsuitable if a plaintiff was successful in a section 7A trial and then wholly unsuccessful in the defence of the action, and it was for this reason that I set out at great length in my judgment in Jones v Sutton on costs which is a decision of 20 March 2003, the second sentence in which the mere fact of being successful in a particular part of a trial should not mean that the court should sever out issues in this fashion, and indeed that it would be a misconception of the basic principles of defamation law if the section 7A trial was given undue prominence by reason of the awarding of costs.

6. These provisions of course do not apply when a defendant is wholly successful although there may be circumstances in which the court is reluctant to make an order, for example, in Haertsch v Andrews, where there was a wholly successful party wanting a bullock order. Ireland J was reluctant to do so on the basis that the application was premature in the extreme and that section 7A orders are in the way of interlocutory proceedings.

7. It is against this background that the application is brought before me. Although Mr Wheelhouse initially addressed me on the issue of the costs being assessable and payable forthwith, I should first deal with what I saw to be his change of position to effectively ask me to reserve all the costs. The first point is that Mr Wheelhouse draws my attention to a number of other issues in this litigation on which his client was successful, unsuccessful or just plain had to sit there. He submits that all of them should be the subject of costs being reserved.

8. Now, it may well be that Mr Wheelhouse's client is successful in obtaining a costs order at some later date, but it seems to me that it is appropriate, bearing in mind that this is an issue that is capable of being severed in a chronological or temporal sense, that I should regard it as being capable of being separated out and dealt with as a separate issue.

9. It may well be in due course that I take the view in relation to Mr Hughes' application when I come to deal with the costs of this application generally, is a matter of some adjustment but that is a matter for the future because as I have indicated it is my view that the only section 7A matter that I should deal with in relation to the plaintiff's application which is joined by the other defendants is the question of what should happen with the costs of this effective one day hearing in which the application to discharge was ruled and succeeded.

10. Mr Wheelhouse has submitted that I cannot pluck one issue out of a basket but as I see it I can and indeed in my view, I should. The fact that the parties through an agreement which was ingenious and aimed at saving costs were able to save the whole proceedings is not something that should be in my view brought against them. I am entitled, when having regard to a discretion as to costs, to have regard to the factors set out by Chief Justice Bray in Cretazzo v Lombardi (1975) 13 SASR 4 at 11 where the Chief Justice notes the undesirability of fettering the unfettered and absolute discretion of the trial judge.

11. It seems to me that it is appropriate for me to exercise it judicially and not capriciously by regarding it as being a matter that can be separated out and can be the subject of a costs award.

12. Accordingly, I am of the view that the costs of the plaintiff, the second, fourth, fifth and seventh defendants for that one day period should be awarded. That brings me to the question of whether those costs should be assessable forthwith. There is a list in the Supreme Court practice of the kind of factors which can be taken into account. There are two headings which may either be relevant. One is whether there is likely to be a consequent delay in the conclusion of the proceedings which is very likely to be the case here because as I understand the matter is going to the Court of Appeal.

13. The other is that there is likely to be a long delay in the final resolution of the proceedings. Both of those matters were argued by Mr Wheelhouse to be in favour of his client but in fact they go against him. However, in relation to that, I have two things to say as follows: Firstly, that delay is a word that is mentioned only by the brave in the District Court. There will be no delay in these proceedings, long or otherwise. This case will be moving along as quickly as I can make it and if by reason of the matter being in the Court of Appeal, there is some postponement of the hearing or the future conduct of the matter, I have great confidence that appropriate application will be made to the Court of Appeal for expedition and the like and that the Court of Appeal will show, having regard to Practice Note 108 and the many other provisions in the Supreme Court including of course the so-called stopwatch provisions which are designed to effect a speedy conduct of litigation, that the Court of Appeal will deal with the appeal as expeditiously as is necessary.

14. Another factor is whether or not there has been unreasonable or unnecessary conduct on behalf of Mr Wheelhouse. There is no doubt that the submission along the lines of what Mr Wheelhouse was endeavouring to make was open. The trouble is that what Mr Wheelhouse did as I said in my judgment, or was endeavouring to say when he kindly said I could let him go at 1.13 and hand down the rest of judgment in writing later was that he went too far. Rather than using the magic word "may", he spoke in mandatory terms and also that there were other issues which created a problem.

15. There is no doubt it did create a problem. It created a very serious problem for Mr Hughes' client and it created a very serious problem for Mr Weaver's client. It is to the credit of those clients' legal representatives and counsel that they were able to deal with it in the inimitable fashion that they did. Nevertheless, I am of the view that cost orders should be made assessable forthwith only in the circumstances of the kind that are set out in part 39A rule 8.

16. While my discretion must be exercised in a way that is fettered by the provisions of Part 39A rule 8, it seems to me that the undesirability of making an order assessable forthwith in circumstances where there is ongoing litigation, and for all I know, Mr Wheelhouse's client may be ultimately successful or in circumstances where his client may be stifled from proceeding further with the litigation by reason of some large costs order, it seems is to me appropriate that I should not make an order that the costs be assessable and payable forthwith.

17. It is not clear to me whether that application was joined in by the second, fourth, fifth and seventh defendants, but whether it was or was not, it is not an order I am prepared to make.

18. There is one other matter that I should note and it is this: That in earlier judgments I indicated some concerns about the manner in which effectively, although the plaintiff brought a notice of motion seeking that the hearing of this complex series of some 19 publications should be heard by a judge rather than a jury, an application which was joined in effectively by all the other defendants except Mr Wheelhouse's client, that Mr Wheelhouse's client at some stage ought to receive a costs order that is appropriate.

19. A number of these issues were considered by Mr Justice Kirby in Patten v Moffatt [1999] NSWSC 1322 where an otherwise unsuccessful party was able to largely avoid costs in circumstances where the party who had been substantially successful had refused to go to mediation when both the plaintiff and the third party wished to mediate the matter. There can be no doubt that parties insisting on rights may in some circumstances, where there has been an unnecessary waste of time, be entitled to costs orders.

20. Whether that is appropriate in terms of section 7A, where the provision for a jury is mandatory, is a very difficult issue indeed and is not one that I propose to deal with in this judgment. All I did in my previous judgment was to flag this as being an area of concern to me. As it happens, it has transpired that the jury dealt with the publications in record time and we finished the trial almost a week early. So with the jury returning answers to questions that looked to me to be on the whole unexceptionable, certainly were not the subject of any application under section 126 of the District Court Act and wisely so in my view, but in any event, these are matters which I will deal with in due course in the event that I am called upon to hear the action, decide costs or otherwise.

21. Nevertheless, an important factor that I did omit to mention when I was dealing with this costs order is that it is quite possible that I may not hear the section 7A jury trial which takes place which must inevitably take place whatever happens in the Court of Appeal, and in addition, it may be that I do not hear the trial. There is much to be said for the judge who made the order making a costs order that follows the event. It is very difficult for another judge who was not there and did not see the ebb and flow of battle to come to such decisions so really it is appropriate for that reason in addition to the other reasons that I make costs orders.

22. Accordingly, the orders that I make are as follows:

Orders 1. The third defendant bear his own costs of the section 7A hearing, 19 July to 28 July 2004. 2. The third defendant pay the costs of the plaintiff, second, fourth, fifth and seventh defendants for the period 27 July 12.45 p.m. to 28 July 1.13 p.m.

Cha v Oh (No. 9) (District Court of NSW, Gibson DCJ, 21 June 2007, unreported)

JUDGMENT - On application by Mr Evatt that her Honour disqualify herself; see p 512

1. HER HONOUR: On day fifteen of these proceedings at half past 11 following the morning tea adjournment an application has been made by Mr Evatt that I should disqualify myself for bias on the basis of statements that are set out in the transcript in yesterday's proceedings.

2. I should start by setting out some of the context of these statements. This is a trial which has been running and this is the fifteenth day. When the trial commenced there were enormous problems in the readiness of the parties. I do not know if either of them is to blame but, for whatever reason the case was not ready to start on the first day. In fact I made a series of orders for the preparation of this case, and those orders extended over a whole week. The case then finally commenced one week late, and after approximately one week it became clear that it was going to be necessary for the case to be adjourned for what was initially put down as two but finally has been agreed as a further four weeks of hearing.

3. It has been a case in which just about every problem that can arise has arisen and it is a case where there is enormous financial complexity in all of the documentation. In addition it must be said that this is a case where tempers have run hot. Yesterday Mr Wheelhouse complained that he had been so much interrupted by Mr Evatt that Mr Evatt had had about two pages more transcript with interruptions than he had with his actual questions the day before. At one stage yesterday it was necessary for me to ask the plaintiff to stop shouting.

4. All of the parties have complained about the inadequacies of the courtroom, including the fact that it is very stuffy and hot in here, tempers have been frayed and I have at several times had to ask barristers and the plaintiff to stop speaking over each other. It was in this atmosphere of great stress that it was discovered yesterday that there was quite a serious error in the translation made by the translator who was retained by the plaintiff. He had inserted the words "to the committee" and "into a receipt" when in fact those words did not appear. This is a matter of great concern because it was, of course, a key part of the particulars of truth of the defendant that this particular sum of money had been a donation to the committee, meaning to the Olympic Committee, as opposed to the Sports Council. This was a matter where there was some very hot exchanges between Mr Cha and Mr Wheelhouse, and it has to be said that counsel for the plaintiff waded in and tempers were certainly frayed.

5. What happened next was that in my endeavour to work out what the particulars of misappropriation were then going to be I endeavoured to work out by putting to Mr Wheelhouse whether he was going to continue to submit that the $5,000, was in light of what was apparently an error by the translator, a donation to the Sports Council as opposed to the committee, was going to be maintained or whether there was going to be in the alternative a claim that the misappropriation related in some way to the provision of what appears to have been a lunch that was charged to the Olympic Committee. Mr Wheelhouse in fact confirmed at p 469 of the transcript that this was the case.

6. In the course of this I indicated to Mr Evatt that I imagined that Mr Wheelhouse was or would be calling in due course Mrs Kim. I said that for several reasons, first of all because she was referred to as being a woman in the particulars, and secondly, because there is reference in the particulars to this and I imagine that if this was going to be in dispute the identity of the person to whom she gave this donation that she was likely to be a witness. All I was doing was speculating that that would be the evidence as opposed to expressing a view as to whether her evidence was to be accepted or rejected.

7. The parts of the transcript which are objected are as follows; at transcript p 466 I said that "In the event that we hear from this lady" at line 11, and I went on to note "She may well be coming to give evidence and that will resolve the matter." This is said to be an assumption not only that she would be called but that her evidence was to be believed and to be preferred to the plaintiff. Mr Evatt said at line 21, "Are we calling Mrs Kim?" I am recorded as saying "You are not calling Mrs Kim, Mr Evatt." But this is of course the difficulty with transcripts that what I was of course referring to I was referring to my speculation, that "in the event" that she came, and was called by Mr Wheelhouse. Mr Evatt had misunderstood me and had thought that I was saying that he was going to be calling Mrs Kim, and I said "I should imagine though Mr Wheelhouse is." I went on to comment on that it was a disgraceful error by the interpreter, and indeed it is because it led to a lot of confusion.

8. Next there is the fact that I referred to the plaintiff having what I called - I said here at p 467 line 35, that he has had "a big slap up dinner courtesy of the Olympic Support" and then at line 30 "Your client has had a dinner." It can be seen by the transcript that I was interrupted by Mr Evatt, indeed I interrupted him in turn, but the thing is Mr Evatt would not let me finish what I was saying. Certainly it would be ideal if judges did not use words like "slap up", but in the circumstances where I was being continuously interrupted by Mr Evatt I hope that some regard would be had for the circumstances in which judges do not like to be interrupted by counsel when they are endeavouring to explain something.

9. Then there was the reference at the bottom of p 67 where Mr Evatt said that "The two committees are sort of hand in glove, they are Siamese twins." I said to Mr Evatt that they were not hand in glove, and why would they be "hand in glove." Mr Evatt said, "They are Siamese twins" I said, "They are not Siamese twins" and he said, "They are hand in glove." This sounds a little bit like small children saying, "is", "is not", but what it is is that I was pointing out that there is no evidence on this point and I think Mr Evatt has conceded this. There is as yet, as I understand it, no evidence about these organisations being hand in glove or Siamese twins. The plaintiff has given evidence-in-chief and I do not recall him giving any such evidence and certainly Mr Evatt has not taken me to any. What I am doing is pointing out that there is no evidence on this point, there may well be evidence later on, I do not know.

10. Then there is the reference to the coup de grace on page 469 lines 22 to 23. Mr Evatt spent much of the morning complaining about Mr Wheelhouse, whom he unhesitatingly characterised as a coward and as not having the guts to put questions, was not putting questions. This was said not once but many times, and it has to be said that the atmosphere at the Bar table did not look very pleasant to me. All that I was pointing out by saying that was that the matter that Mr Evatt had continuously complained Mr Wheelhouse had not had the guts to put was in fact about to be put. It has to be noted that this was had against the background of Mr Wheelhouse having advised Mr Evatt before the morning started that it may be appropriate for Mr Evatt to consider whether he should ask for a s 128 certificate and this came up during the morning.

11. Mr Evatt has said that I should disqualify myself because the Court of Appeal considered that Adams J should have disqualified himself in the matter of John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79. Mr Evatt did not bring me a copy of Kriss, or indeed any other case, and I am having to work from my memory for the facts of this case.

12. Each application for disqualification must turn on its own facts. However, Meagher JA pointed out in Galea v Galea (1990) 19 NSWLR 263 that a judge is not required to sit in a state of what his Honour was minded to call "ladylike" quietness and say nothing in the course of applications and in the course of conducting hearings. Judges can and do take a fairly lively role in managing court proceedings and sometimes it is necessary to speak reasonably firmly and other times it is the case that things are said which may upset or offend but which are not evidence of prejudgment. What Adams J said in Kriss related to what were obviously strong feelings his Honour had about a long series of newspaper articles that were nothing to do with the case involving Mr Kriss, they were to do with many articles in the newspaper in which comments had been made about high flying barristers who did not pay their tax and the like. Adams J obviously had strong feelings about those articles in the newspaper; they were, however, entirely irrelevant.

13. In the course of endeavouring to cope with what has been a difficult case it has at times been necessary for me to intervene and to, for example, tell Mr Cha that he should answer a question in circumstances where there has been a complaint that he has not answered a question. Those sorts of interventions are necessary because they are a part of ensuring that the case is managed as best as one can with a difficult case such as this with enormously complex facts, with the requirement to have everything translated in Korean, with witnesses have been distressed; only earlier this morning, just before the morning tea break, Mr Park was in tears. This is all very difficult. For the plaintiff to require me to conduct this case in "ladylike serenity", to use Meagher JA's phrase, is to impose a burden on me that in my view is not appropriate. It is not easy for me to conduct this case, it is a case which has very complex factual material which I have been quite frank about not being on top of. I have done my best to deal with the fact that many of the words are in Korean and I do not know what they are, I do not know if they are restaurants or people and indeed I have asked for assistance about this. The fact that I have expressed myself angrily about the circumstances in which it turns out that there has been an incompetent translation and the fact that I have endeavoured to find out from Mr Wheelhouse what impact that is going to have on his particulars of truth is not indicative of prejudgment.

14. It would be regrettable if after four weeks of hearing it was necessary for me to disqualify myself on the basis of apprehended bias. However, that is not a factor that should enter my consideration. If I was of the view that my remarks did indicate bias in accordance with the appropriate test as set out in Livesey v New South Wales Bar Association (1983) 151 CLR 288; (1983) 47 ALR 45; (1983) 57 ALJR 420; (1983) 5 ALN No 197; [1983] HCA 17, in other words the ordinary reasonable bystander sitting down the back of the court, it would be my view that it would be necessary and inevitable whatever the consequences. However, the ordinary reasonable bystander who sat down the back of the court when these comments were made would have it quite clear that what was the problem was dealing with an unforeseen and most unfortunate complication in a case that was already difficult where a matter that had been put to the witness by Mr Wheelhouse on the basis of a translation had turned out to be based on an inaccurate translation provided by the plaintiff's translator, and it was a situation where I was endeavouring to get on top of what Mr Wheelhouse's case was going to be as opposed to expressing a concluded view.

15. Accordingly I am of the view that I should not disqualify myself on the basis of bias and I will ask the court reporter to take out a copy of this judgment in the event that Mr Evatt wishes to approach the Court of Appeal and ask for the Court of Appeal to deal with this matter on an urgent basis.

Cha v Oh (No. 10 & No. 11) (District Court of NSW, Gibson DCJ, 4 October 2007, unreported)

JUDGMENT - application to strike out particulars of defence; and application that the defendant be ordered to file complete document of particulars

HER HONOUR: These are proceedings for defamation, and there are two applications before me. The first is an application put before me by Mr Evatt on 24 September to strike out the particulars of the defence, and indeed the defence of justification, an application that has no longer been proceeded with by reason of the provision of some further schedules, and also by reason of my proposing an alternative course, which Mr Evatt has accepted.

The application that is now before me by Mr Evatt on behalf of the plaintiff is an application that the defendant be ordered to file a complete document containing the complete particulars of true for each of the imputations without reference to any other document or annexure, so that the plaintiff will know the case he has to meet in relation to each of the imputations to which justification or contextual justification is pleaded.

The second application he has to make is that the plaintiff should pay the plaintiff's cost of the trial assessable now in relation to this issue of particulars. I have indicated to Mr Evatt that I do not need to hear from Mr Wheelhouse in relation to this second matter, because in my view it is not appropriate that I should further inflame what is already an unpleasant atmosphere by deciding applications for costs.

The application of the second defendant is to proceed with the cross-examination on the basis of the particulars as supplied. This includes the 147-page document that was delivered on Easter Monday and the document that was delivered overnight after I raised with Mr Wheelhouse yesterday my wish to know precisely what sum it was alleged that the plaintiff had misappropriated or failed to account for, and how many matters would be before me in counsel allegations in relation to that.

Mr Wheelhouse told me yesterday that the sum in question would be approximately 160,000 and the number of counts he thought would be approximately 60. It is apparent from the documents that - and I saw this for the first time this morning - in fact the grand total is $504,634.71. I have added up the counts in the 23 allegations, and I have come to a total of 240.

Mr Wheelhouse has said that he regards a number of these counts as being single matters. But, looking at it from the point of view of the person who has to write the judgment, if there is a list as there is, for example, in allegation 1 of 13 cheques, it is clear that I would need to deal with each of those individually in order to deal with all the matters.

I should first, for the benefit of any appellate court considering this application, set out the history of this matter. The plaintiff in these proceedings seeks damages for defamation for 14 publications in Korean newspapers between 2000 and 2001. Since the proceedings were commenced in 2002, the first defendant has died, the third defendant has settled, the sixth defendant has had judgment entered against him for failing to file a defence and the seventh defendant has had judgment entered in his favour following a three-week section 7A trial concerning the 14 matters published; there is a cross-claim concerning a further four matters.

The remaining defendants are, therefore, the second, fourth and fifth defendants. The fourth and fifth defendants now act for themselves, and they have played no active part in relation to this part of the trial on liability, although one of them has come to court on a regular basis. The conduct of this trial has been essentially in the hands of the second defendant.

The publications relate to the conduct of a committee set up by the Korean community to raise money to support the Korean Olympic team which came to Sydney for the 2000 Olympics. The plaintiff was elected the chairman. The second defendant, Mr Lee, appears to have performed some tasks on this committee as a member, and I gather that the fourth and fifth defendant came into the matter later when they audited the accounts.

The plaintiff has been called to give evidence and has been cross-examined, but it is still a very early stage in the trial, so it should not be taken that any comments I make about the evidence express anything like a concluded view; it is simply my very first impressions of what I have seen from the documents to date.

I do not propose to refer to any of the evidence of the plaintiff for the simple reason that he is under cross-examination. The only documents I wish to refer to as giving a general background to what this case is about are in fact documents tendered by the defendant; namely, some minutes of meeting and an activities diary.

These documents paint a quite vivid picture of the various activities planned for the 2000 Olympics which involved the Korean community. They reflect the ups and downs of what was happening, that there were meetings invariably, it seems, followed by or held during gatherings at local Korean restaurants. Most of the activity seems to have occurred, not surprisingly, in the months leading up to the Olympics in Sydney in September 2000.

I think it is a matter of notorious general knowledge that at an earlier stage Korea was the host for the Olympic Games, and the local Korean community (I assume there will be evidence of this) wanted to get behind their team and give them support.

As would no doubt be expected in a volunteer organisation, no doubt I will be hearing that evidence of disagreements. I do not intend to refer to the evidence of the plaintiff on this. I anticipate that there will be cross-examination about some disputes and perhaps even some resignations of some of the volunteer workers.

There are some other disputes that I have seen referred to in minutes of meeting and the activities diary. I noted there was a claim by the cheerleaders which appeared to be for .43 million dollars. I do not know if that is a feature in this litigation. It is one of the many matters that, no doubt, in due course I will hear about.

The trial is now in its sixth week, and it is against this background that the plaintiff brings this application, and the second defendant seeks to continue its cross-examination of the plaintiff. Effectively, all that has happened in this litigation has been that the plaintiff been examined-in-chief and is in the course of cross-examination.

I should first set out the history of the matter. On 25 August 2006 I set these proceedings down for hearing as a four-week trial commencing on 28 May 2007. I set the matter down almost a year in advance because of the case's history. The matters complained of being 14 publications in the Korean language which were published between 22 December 2000 and 6 April 2001. They were already matters of some antiquity.

Proceedings had been commenced on 20 June 2002 and, thereafter, there were a number of interlocutory disputes of the usual kind about imputations and the like as well as translations, and the matter was not ready for a section 7(a) jury trial until 2004. A number of the defendants asked for a judge-alone section 7A trial, but the third defendant, who was represented by Mr Wheelhouse of senior counsel (who now acts for the second defendant), sought a jury trial and accordingly it was necessary for a jury to be empanelled. The section 7A trial commenced on 19 July 2004. The hearing time was estimated as four weeks. We were very fortunate that a jury very carefully and patiently answered the questions in relation to the 14 publications and a further four publications in the cross-claim with great clarity and speed, and in fact the matter finished in three weeks. However, it was necessary for me to discharge the jury in relation to the third defendant because of some submissions made by Mr Wheelhouse. The third defendant unsuccessfully appealed to the Court of Appeal and then unsuccessfully to the High Court. The third defendant then returned to the District Court where a jury in a second section 7A trial (on 26 and 27 July) returned answers that all the imputations were conveyed and defamatory.

The third defendant failed to file a defence and further orders had to be made on 4 August 2006. The other defendants and the plaintiff had meanwhile had to wait patiently until all these steps were completed. The third defendant then settled the proceedings against the plaintiff.

It was at about this time, or it might have been just before this time, that I set the matter down for hearing. In the interim the second defendant, who had not at the time of my setting the matter down for hearing (as Mr Evatt pointed out) filed a defence, did file a defence. Mr Evatt submitted that it was important that the second defendant did not file a defence which contained the defence of justification. But it was no surprise to anybody, I would have thought, that the second defendant pleaded a defence along similar lines to the defence of the third defendant and also the fourth and fifth defendants.

The second defendant in fact took over carriage of a number of subpoenae issued by the third defendant, and there was extensive case management by me to ensure that the production of documents, the translation of discovered documents, the service of any experts reports, the answering of subpoena, and the administering and answering of interrogatories took place. Notices to admit facts were served on the plaintiff and substantial admissions, as I understand it, were made.

When the parties appeared before Judge Balla on 23 May 2007 they confirmed the hearing date of 28 May and they said they were ready, as I understand her Honour's file note. The original particulars of truth served on 12 February 2007 by the second defendant were set out in a letter which was 21 pages long of which pages 13 to 21 were the particulars of justification. In other words, they were eight pages long. In about May 20007 I received a document which was indexed per particulars of justification which referred to 28 pages and some annexures.

I have a chronology which is before me as a document prepared by the second defendant, and it has been indicated that they wish me to include all of these dates in my judgment. I note that a number of the steps that were being carried out at this time were: (a) on 25 May 2007, the second defendant's answers to interrogatories were served; (b) on 29 May the second defendant's further answers to interrogatories were served; (c) on 29 May they served a report of Mr Warwick Finney. Mr Warwick Finney is the accountant in these proceedings relied upon by the second defendant; (d) on 30 May 2007 Mr Warwick Finney's supplementary report was served; (e) on 30 May a statement of Mr Cho, particulars of justification in the ring binder that I have just referred to, and a further supplementary report of Mr Warwick Finney was served.

Of course, I have just mentioned that the matter was set down for hearing on 28 May. So anyone reading this judgment will wonder what happened on 28 May. What happened was, that the parties appeared before me, and it was clear that the matter was not ready to proceed. This was partly because the second defendant was still waiting for cheques to be produced by the Community First Credit Union in answer to subpoena issued at the beginning of the year.

Some representatives of the Community First Credit Union appeared before me, and I think it would be fair to say that it would not be reasonable to be too critical of the Credit Union since the cheques in question had been issued in 1999 and 2000, and the lateness with which the subpoenae had been issued was an issue. There is no blame on anybody's part; it was part of the long history of the litigation. It meant that some five years had passed before the subpoenas could even be issued for these documents.

When the matter came back before me on 31 May it was still not ready to proceed, and I raised the issue of whether the hearing should be adjourned. The parties told me that they considered the matter would be ready to start the following week, and the consequences of an adjournment would be financially disastrous for plaintiff and defendants alike.

I was told by counsel appearing for the parties that they hoped that they could complete the hearing in the remaining three weeks either in its entirety or at least for the bulk of the evidence. I made further orders about the production of documents and other issues on 1 June, and stood the matter over to 4 June, and I note that in the list of dates provided to me by the second defendant that a statement of Hak Jo Puk was served on 2 June 2007.

The hearing commenced on 4 June. The plaintiff gave his evidence-in-chief and was cross-examined. This cross-examination continued all that week and the following week and the week after that. On 15 June the parties told me it was clear to them that the case would not complete in the remaining three weeks left for the hearing.

Mr Wheelhouse assured me, however, that he was likely to finish his cross-examination of the plaintiff in the next few days on several occasions, although generally adding that the reason he had not been able to do so was the constant interruptions he was having from Mr Evatt, the plaintiff's unwillingness to answer questions and, although he did not say so, probably he had in mind that he felt that he was interrupted by me from time to time.

On 22 June 2007 I stood the matter over part heard for a further four weeks commencing 24 September 2007. I selected the four-week period after consultation with the parties and on their understanding and assurances that the matter was likely to finish in that time.

One of the issues that had become contentious in the last week of trial was the complaints by the plaintiff which Mr Evatt began to make that the second defendant's cross-examination appeared to be very far reaching and not limited to the transactions particularised in the defence or in the revised particulars of justification which had been served on 23 May which, it should be remembered, was a matter of days before the trial.

On 27 June I ordered the second defendant to serve within 28 days an itemised list of each sum of money it alleged the plaintiff had misappropriated, together with a list of all restaurant or entertainment costs charged to the committee which are alleged to be a misuse or misappropriated, specifying which. It was as a result of this that the particulars of justification dated 15 August 2007 were served with a further 36 pages of material.

The matter came before me on 16 August 2007, and I inquired of counsel for the plaintiff on 16 August 2007 whether he could meet this schedule. He said its contents were "all sound and fury signifying nothing", this being a quote from Macbeth.

The second defendant also prepared a spreadsheet which I directed should be served by 5 pm, Friday, 17 August 2007. Mr Hughes has said to me that on this date, when the matter was before me, I indicated my satisfaction with the particulars. It is not my recollection that I did so. If I had done so, it would have been a most improper thing for any trial judge to do. It is not appropriate for a trial judge to indicate satisfaction with particulars. I noted that the particulars should have been served and I asked Mr Dibb if this was so, and whether there was going to be any trouble. My concern has always been from the first to have this case commence and run to its conclusion, and it was really in the interests of ensuring that this occurred that I directed that the particulars in question be served.

The next stage on the list of the second defendant's dates is 16 August 2007. On that date the financial spreadsheet was served, as I have indicated. On 28 August 2007 large copies of the financial spreadsheet were provided to the plaintiff's lawyers. The remaining dates on the list are: (a) on 20 September 2007 - a statement of Patrick Lee was served as well, as a statement of Dae Won Kang, (b) on 21 September 2007 - particulars of justification about the Patrick Lee donation were served.

The following appears on the document that has been handed to me by the junior counsel for the second defendant: "By order of the Court on 16 August 2007, the plaintiff was granted 21 days from receipt of the spreadsheet to raise any objections. It did not do so. At no time, until resumption of the trial on 24 September, did the plaintiff raise any claim as to inadequacy of the particulars served on 15 August 2007. Further, no other concerns have been raised by the plaintiff's solicitors regarding earlier particulars.

The adequacy of the particulars was considered at a directions hearing on 16 August 2007, and had the court or the plaintiff's lawyers raised any concerns at that time, consideration would then have been given to supplementing the particulars. The plaintiff has chosen not to respond to the expert reports of Mr Finney."

It seems to me that this is putting a heavy burden on the court, that it is in some way part of my bailiwick raising concerns about particulars. What troubles me is that when I have raised concerns it has been made quite clear to me that this is outside my bailiwick, so I make the following comments in relation to just what my role is in these proceedings. My role is as the trial judge. My role is to know what case the plaintiff has to meet; not because it is of any interest to me as to whether the plaintiff succeeds or fails but so I know when I have to write my judgment about it. The last thing I want to have happening in this case is to have people complaining that issues have not been dealt with in the judgment.

In a large and complex trial, it is often the case that people complain that some issue that was raised and has not been dealt with. That is my concern as the trial judge, and that is my sole concern, apart from of course the need for justice to be just, cheap and quick in accordance with s 56 of the Civil Procedure Act 2005.

On 24 September 2007, Mr Evatt rose to his feet to bring an application to strike out the particulars of truth and of the 15 August letter. I directed the plaintiff to provide a comprehensive list of all of his objections bearing in mind that this claim was raised for the first time, and for the second defendant to provide any required amended particulars by 9am, 26 September 2007. On 26 September 2007, I directed the second defendant to serve particulars of justification by Friday, 28 September 2007 at 4pm and stood the matter over to Wednesday, 3 October at 10am. This led to the production of an even longer document. Clearly there must have been additions, because particulars that were eight pages long in February 2007 are now 147 pages long.

When I asked Mr Wheelhouse in the course of our discussion how many thousands of examples of alleged misappropriation and failure to account were made against the plaintiff, he was at first unable or unwilling to answer me. He said that the hopeless state of the plaintiff's records meant he could not say. When I invited him to give me some sort of estimate to be going on with, he said that he thought the total sum allegedly misappropriated or failed to account for by the plaintiff was around $160,000 and that there were about 60 separate accounts of misappropriation. I then invited him to assist the court by listing in numerical order a number of these counts and to add them up so I had a total. I have now received a further revised list which I note has been added up by Mr Wheelhouse to the $504,634.71. I have been given a list of 23 "allegations", but it is clear, as I will indicate further in my judgment, that these fall into a number of subsets. Apart from counts 5 and 6, I estimate that there are about 240 individual transactions. Counts 5 and 6 are quite extensive in their compass.

Now, the total for donations recorded in the deposit books and bank statements is $252,976.71. The plaintiff did make an announcement that the committee had received $316,000, although he said at the time that this was an estimate. He published a list of donations and invited people to tell him any he had missed out. There is some evidence before me that there are substantial cash donations; for example, there is a list in particular set out in the 15 August particulars of 12 such items, totalling (and again, this is my calculation, and this has been a continuing complaint of mine, that I have been left to do the sums) $17,500.

It is hard for me to see from these figures how it is that the total of moneys passing through the committee's hands could be more than about $350,000 or thereabouts. Obviously, then, in the $504,634.71 there would have to be some overlap. In fact, there would have be a very considerable overlap. First of all that is about a third again or perhaps a half again as much money as the committee would have ever received and, secondly, it seems to be based on the assumption that the amount spent on the committee's activities was zero, and the amount spent on Olympic activities were zero. So if I were to assume for the purpose of this exercise that this was the kind of committee that would spend between, say, 10 and 30% of the funds received on administration (this being the kind of figure that one sometimes reads in the newspapers for Plan Australia or other such organisations). There would have to be some allowance made for there being some bona fide administrations expenses. There must be some activities that this committee has had that were not a complete fraud. It seems to me that - without expressing any concluded view - something must have been done, if only because the minutes of the meeting and the activities show that there were functions, there were cheer squads, there were flags, there were signs made and the like. There must have been something done by this committee.

Is it asserted that it never did anything, and all it ever did was - like those scams one sometimes reads about - money was sought but nothing was ever done. I do not know, it is too soon to say, but again having regard to the activities diary and the minutes, it would appear that something was done.

In that case, how was the figure of $504,634.71 made up? That is one of the matters that troubles me. Obviously it would be unwise of me to be expecting to see the final page of the detective novel, so to speak, in the particulars. Obviously I can not know what the answer is just by looking at the particulars, but it would be helpful to at least know the basic claim and how it is set out, in particular in relation to each of the imputations.

It should be recalled that these imputations found by the jury include that there was $120,000 spent without proper documentation being kept; a similar sum spent on things which should not have been spent; that the plaintiff failed to account for about $56,000 of the money donated; that there were reasonable grounds to suspect he made a false claim for business expenses of $9,121 and that he kept $700 of the money donated by the Uniting Church.

Now these are all matters which should be put before me in a very simple and straightforward way, it seems to me, bearing in mind that the auditors who prepared the reports that are the matters complained of set out a number of matters. It is not clear to me why it is not those that figure prominently in the list of matters for me to look at. It is of course the defendant's entitlement to range far and wide and to include any other matters. However what troubles me is that there is so much material in these particulars that it looks to me as if the case is going to be difficult to manage.

There are two matters that concern me. The first is the question of what I should do in relation to the 147 pages of particulars which was served on Monday as broken down by the most recent set of particulars that has been received this morning; and the second is whether or not it might be appropriate for me at this stage of the trial to take some sort of step to limit further Cross-examination of the plaintiff.

What I have sought to do is to persuade the parties that we should come to some kind of agreement to try and salvage what is left of the trial, so what I have encouraged them to do is to compromise. I have indicated that if Mr Wheelhouse is able to complete his cross-examination in two days, as he said, then if I give him five days, that should be plenty of time for him to complete his cross-examination, and I have indicated to Mr Evatt his right to object to some part or indeed all of that portion of the cross-examination can then be preserved so that we can deal with any issues of prejudice that arise from a witness being shown a document "cold", or something similar.

I have had a chance to look through some authorities in relation to the circumstances in which courts have expressed concerns about repeated attempts to particularise the defence of truth.

Mr Wheelhouse drew my attention to two decisions of Levine J in Marsden v Amalgamated Television Services Pty Ltd of 20 November 1998 and 17 December 2006. The Marsden litigation is perhaps one of the saddest cases in the history of the defamation litigation in this State. It is certainly the longest-running trial. It certainly occupies the record for the most visits to the Court of Appeal, I think there were 19, and it is in my view a good example of a trial where the attempt to prove justification having failed, it took an enormous amount of time to do so. I can only respect the care with which Levine J case managed that case, but it is a most unusual case and turns on its facts.

There have been a number of statements in English authorities and in Australian authorities about the need for precision in particulars of truth. It is a famous statement by Hunt J in Sims v Wran [1984] 1 NSWLR 317 that particulars of truth need to be pleaded with the precision of an indictment. This is the more so when you have an allegation of fraud. It needs to be looked at in relation to the factors in s 140 of the Evidence Act. As it happened, Levine J looked at this issue also in the Assaf v Skalkos (Supreme Court of NSW, 15 December 1997, 28 January 1998, unreported). In decisions of 15 December 1997 and 28 January 1998 his Honour struck out particulars of a plea of justification which required him to consider what he called in his decision of 28 January 1998 "a mass of material" which was "the more convoluted by reason of cross-referencing". At p 4 of this decision Levine J warned: "It is not to be taken that the defendants are to be given multiple opportunities to 'get it right'; they will be given an opportunity to get to the point, the point being properly to particularise the components of the imputation sought to be justified. The point may well be reached that if defendants do not, it is because they cannot, and the availability of the plea will be seriously in question."

I have drawn the attention of both counsel several times to his Honour's decisions and in my view these are decisions in which his Honour has carefully and correctly set out the way in which a plea of justification needs to be carefully particularised.

The case that is generally referred to on this is McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 where the United Kingdom Court of Appeal faced a similar position where particulars of justification sought to introduce what the court called "an inquisition into the question whether a murder conspiracy was operating in Northern Ireland in 1989 to 1991" (at 785).

In considering whether the trial judge had erred in his rejection of the particulars, the Court of Appeal had regard to what they called "questions of proportionality, case management and delay" (at 790). Lord May went on to note: "As with all actions, libel actions should, by proper case management, be confined within manageable and economic bounds. They should not descend into uncontrolled and wide-ranging investigations akin to public inquiries, where that is not necessary to determine the real issues between the parties. The court will, now as when Eady J made his decision, strive to manage the case so as to minimise the burden on litigants of slender means. This includes excluding all peripheral material which is not essential to the just determination of the real issues between the parties, and whose examination would be disproportionate to its importance to those issues."

Lord Wolfe, who concurred with Lord May in dismissing the appeal from striking out the particulars of justification, questioned whether this scale of expenditure is necessary or desirable, adding that: "Excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification." (at 793)

The new English court rules had been introduced to emphasise the need for proportionality. Lord Wolfe concluded by noting: "While under the rules a party cannot be prevented from putting forward an allegation which is central to his or her defence, the court can control the manner in which this is done and thus limit the costs involved. Both sides should co-operate in enabling this to be done." (at 794)

In Tancic v Times Newspapers (UKCA, 7 December 1999, Brooke Hale LJ, unreported), the Court of Appeal (Civil Division) cited McPhilemy with approval when dismissing an appeal from a decision refusing to permit the fifth amendment of a defence of justification. The court held that the particulars of the defence should be strictly confined to those matters that were essential to the proper disposal of the real issues between the parties.

I have only been able to find one case where McPhilemy has been considered by the courts in Australia and that was in DJS v Channel Seven Adelaide Pty Ltd [2006] SASC 268where an application to strike out particulars of justification succeeded.

Case management was one issue on Burley J's mind in this decision, but the real question was whether the particulars related to the defendant's case and also whether or not the particulars were an attempt to reverse the onus of proof which lies on the defendant for justification. It must be, however, stressed that case management issues can never prevail over justice in this regard as the Court of Appeal stated in Ainsworth v Burden [2005] NSWCA 174 at [56] and following.

However, the courts in this State have long had the power to strike out particulars that are needlessly ambiguous or obscure: see Doherty v Nationwide News Pty Ltd and Anor (1967) 86 WN (NSW) 181. There used to be a special rule about this in defamation proceedings in an Announcement of Hunt J of 14 October 1988, and in fact there is a reference to this insightful Announcement in the Court of Appeal's decision in Jones v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, 10 April 1992, unreported). Hunt J's experience in case management in defamation is really still in my view without peer, and it may be by reason of this Announcement, and his Honour's trial practice, that there are so few decisions in this area today.

Case management principles perhaps occupy a greater position today than they did in the days of Hunt J by reason of s 56 Civil Procedure Act, but the overriding principle must always be justice.

It is that principle of justice which caused me to have careful regard to a proposition put forward by Young J in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15. As a busy trial judge, Young J's ability to control his court and ensure matters were dealt with expeditiously is probably best described as legendary, and his Honour was indeed able to formulate principles of case management aimed at getting to the heart of the matter, and which are very useful indeed.

Cross on Evidence notes at [17,495] that there is a modern tendency for cross-examination to assume an unduly lengthy and repetitive character. While it is rare for courts to impose limitations, the court in appropriate circumstances both can and should intervene, the learned authors say. The judge should intervene to prevent what Cross calls "undue strain on a witness" and "undue prolongation" of expensive procedures. Cross is careful to spell out the limits to this, namely that they should be put on cross-examination of an individual witness only and not made before cross-examination, and I note the cases footnoted in Cross on these principles. I note also that the use of such a brake is exceptional and that otherwise, as Cross sadly notes, the judge just has to sit there.

Young J says, and he uses this word I think advisedly, that the purpose of the break is to avoid the "torture" of witnesses, and certainly it seems to me that that is a word that his Honour must have used having regard to some of the cross-examinations he saw in court before himself.

The simple solution, in my view, to accommodating the concerns of both parties and the need for this case to continue and to be case-managed, is to take Mr Wheelhouse's estimate of two days and double it and then add a bit more time again.

Accordingly, what I propose to do - and I have indicated this to the parties and I am simply recording my reasons and my concerns for so doing - is I propose to indicate to Mr Wheelhouse that by 4pm of Wednesday next week I am hoping that he will be sitting down and saying that that is the end of his cross-examination. I am going to make an order to that effect.

It has been very difficult for me to case-manage this case. There has been a history of non-compliance with orders and, to be frank, that applies to all the parties and not simply the plaintiff and the second defendant. The delay caused by the history of litigation is regrettable. I blame no one. It is the fact, though, that not only are all these documents in Korean, where there have been disputes about their completeness as well as their translation, but they all relate to events in 2000, in circumstances where there has been delay.

It has to be said, and I say it with reluctance, that it is also apparent to me that there is a degree of ongoing hostility at the bar table and I think that all I need to do is refer to what is in the transcript. My concerns at all times have been to try to reduce this case to manageable proportions. That is partly in the interests of the litigants, partly in my own interests because I need to produce a judgment that is not thicker than the Sydney telephone directory, and partly also in the interests of justice for the general public. It is in everybody's interests that justice be just, quick and cheap. That is why I have to, in using case-management techniques, endeavour to accommodate the concerns and the wishes of both parties to ensure that what happens is that justice is not only done but seen to be done.

Accordingly, I have given extempore reasons for judgment to set out these concerns in the event that it is said at a later stage that the reasons for my encouraging the parties to come to this agreement are in some way not clear from the transcript. The last thing I want is for the Court of Appeal to be obliged to parse and analyse my reasons for making this order from the transcript. It puts the Court of Appeal in a difficult position. If they wish to criticise my reasons for so doing, they have my reasons for so doing as opposed to surmise and supposition.

At the conclusion of my giving this judgment Mr Evatt has drawn to my attention that he would like me to formally make a ruling in relation to his order that the defendant be ordered to file a document containing the complete particulars of the defence of truth without reference to any other document or answers thereto. The difficulty that I have with that order is that such an order has already been sought by Mr Evatt, and made, and the objections that he raised in relation to that document have led to further documents in circumstances where it seems to me that it would be a triumph of form over substance if I allowed the particulars of truth to assume so much importance in this case that we should retreat from what the substance of this case is, which is evidence in accordance with witness statements that have been served; evidence in accordance with the outline that is in contained in the particulars of truth to date.

True it is that there are problems with the particulars of truth. I have complained to Mr Wheelhouse about these at some length. Mr Wheelhouse's inability, until today, to add up precisely how much it is asserted the plaintiff has misappropriated is, in my view, regrettable. His inability to set out, in simple and comprehensible form, what it is that the plaintiff failed to account for, in clear and sensible English, is beyond my comprehension.

However, the question is whether or not justice can be seen to be done. It is better, in my view, for the plaintiff's cross-examination, which has already gone for three weeks and two days, to continue until its finality. At least that way we have the plaintiff's cross-examination. It will be a matter for an appellate court to determine this objection to the particulars of truth, which I might add was brought after the plaintiff had been cross-examined for three weeks in circumstances where the person who had raised concern had been myself, after the trial adjourned, and that I was the person who was responsible for orders for the schedules of 15 August.

It seems to me that I should not allow the need to require particularisation to get in the way of completing the cross-examination. Even if everything Mr Evatt says is correct and those particulars are misleading, the individual cases of injustice and unfairness can be looked at, with the benefit of hindsight, by an appellate court in relation to a plaintiff who has already spent three weeks in the witness box.

The last thing I want is to have to abort this trial in circumstances where the plaintiff has to come back and face yet another three weeks in the witness box. Mr Wheelhouse has told me - and I accept it as true - that he can complete his cross-examination in two days. In those circumstances to stop the plaintiff's cross-examination now to require the service of further particulars is, in my view, poor case management.

Cha v Oh (No. 12) (District Court of NSW, Gibson DCJ, 5 October 2007, unreported)

JUDGMENT - application for judge to disqualify herself from the hearing and order retrial

1. HER HONOUR: The plaintiff brings an application for me to disqualify myself from the further hearing of this matter, to order a new trial and to order the defendant to pay costs to date, arising from the circumstances in which an offer was made in open court on the fifth or sixth week of the trial - Mr Evatt being unable to remember which - while the plaintiff is in the witness box, such as to prejudice both the plaintiff and myself.

2. The offer in question, Mr Evatt submitted, was a Calderbank offer. However it should be made clear from the outset that what Mr Evatt has not appreciated is that this was not a Calderbank offer. It was an open offer; a form of offer which is perhaps not as often used as it should be but is quite different from a Calderbank offer. The nature of an open offer is quite succinctly summarised in Halsbury, and I quote: "A party may make an open offer to settle or compromise either in court during the hearing of an action or out of court at any stage of the proceedings before final judgement. In both cases, the court may, in its discretion, take the offer into account on the question of costs. It may also take the offer into account in refusing discretionary leave such as an injunction. The court will have regard to the sufficiency of the offer and time at which it was made. However, once proceedings are instituted, the court may not be prepared to take an informal offer into account where there has been a failure to utilise the procedures for formal offers to be made under the rules of court."

3. An examination by me of the Austlii site revealed at least 45 - or it might have been 50 cases; there were so many, I do not now recall - in which open offers had been made. Many of these open offers were made in court. I did not have a chance to read them during the luncheon adjournment - this matter having been raised at a quarter to 1.00 - but I do particularly refer to the decision of Master McLaughlin in Queensboro Pty Ltd v Butler Pullnow Pty Ltd [1999] NSWSC 198. The circumstances of this case were that Mr John Leslie, who is, of course, well-known as the former Equity Registrar of the Supreme Court; he was a solicitor for the cross-claimants. At the commencement of the hearing stated he had already made an offer to one of the other parties, which he now wished to repeat in open court, as an open offer to the parties, and the crux of that open offer was then made. At the time that this open offer was heard by his opponent and it was apparently rejected.

4. The case was then concluded and Master McLaughlin commenced to give an extempore oral judgment, and very shortly after his Honour had commenced - as you notice in paragraph 4 - the other lawyer jumped to his feet to inform the court that he, on behalf of his client, was prepared to accept the open offer, which had been made by Mr Leslie, and Master McLaughlin then appears to have stopped giving his judgement in mid sentence. That is a good indication of the use of the open offer procedure. It is a well-known procedure and often used. It has particular use in defamation proceedings. For this reason it was not unknown for counsel to get up at the commencement of proceedings and offer to make an apology. This is because offers in defamation cases, which include an offer of an apology, occupy a special role in that defamation would be the one course of action in which a party's willingness to offer to settle by way of an apology is relevant not simply to cost but also to damages. That is important because offers to apologise occupy a special role.

5. 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.

6. I can appreciate Mr Wheelhouse was anxious to ensure that it was done in the hearing of the plaintiff, but it is a bit like people who think it is a good idea to serve statement of claim within the precincts of the court. Certain things should really not be done, and one of them is not making an open offer while someone is in the witness box under cross-examination, particularly in circumstances where that person is not a native English speaker and indeed has limited English and has been giving his evidence through an interpreter, especially where that interpreter has indicated that she has some anxieties of her own and she is perhaps not performing at the usual extremely high standard that all the interpreters have been performing in this very long case. Accordingly, it is my view that it is unfortunate that happened, but that there is nothing further that I can say about that.

7. The other issue to which I wanted to draw Mr Wheelhouse's attention is that an offer of the nature of the kind that he made, namely, "walk-away" offers, are offers which provide what can only be called a limited degree of protection to defendants.

8. There are other reasons why an open offer in a defamation case which does not include an apology might be regarded as being of little value. I note that an attempt to rely upon a walk-away offer in Bishop v New South Wales (Supreme Court of New South Wales, 17 November 2000, Dunford J, unreported) was unsuccessful and indeed, with the greatest of respect to the Court of Appeal, in Leichhardt Municipal Council v Green [2004] NSWCA 341, it seems to me that what the Court of Appeal did not appreciate was the special role an apology plays in that Bishop v New South Wales was a defamation case.

9. Having noted all of that it does seem to me that an unnecessary amount of time has been wasted on this matter. It is now nearly 3 o'clock and we have basically wasted an hour of Mr Wheelhouse's five days that I gave him for cross-examination. Having noted that, it seems to me that at least part of this was brought on Mr Wheelhouse by himself, and I do not propose to be giving him any extensions.

10. One of the things I took into account when giving him five days to cross-examine as opposed to two was his complaint that he was being continually interrupted. He is shortly going to cease being interrupted by me because in approximately 60 seconds I am going to stop speaking. It seems to me that this is an unfortunate incident and the best thing to do is to continue with the cross-examination without any further interruptions.

Cha v Oh (No. 13) (District Court of NSW, Gibson DCJ, 12 October 2007, unreported)

JUDGMENT - on application by second and fourth defendants for her Honour to disqualify herself from proceedings; see transcript p 1109

1. HER HONOUR: This is an application by the second defendant for me to disqualify myself on the basis of apprehended bias, in accordance with the test as set out by the Court of Appeal in John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79.

2. Three bases are put forward: Firstly, in relation to some statements I made about Mr Park being guilty of conduct which was disgraceful, discourteous to the court and that he had lied to the court and had been grossly discourteous. Secondly, there is my demeanour on these occasions, which showed a pre-judgment of the matter. Thirdly, there are the circumstances in which I had looked at some documents, which Mr Wheelhouse himself gave me.

3. Before I go to the law on this issue, I will first briefly list the portions of transcript upon which the second defendant - and I take it the fourth defendant - relies. These are at transcript pages 1019, 36 to 42 and 47 to 50; 1020 line 15; 1020 line 29; 1021 line 24; 1021 line 37; 1022 lines 5 to 10; 1022 line 37; 1023 line 20; 1025 line 14; 1025 line 39; 1026 lines 5 to 10; 1027 lines 25 to 30; 1028 line 15; 1030 lines 17 to 24; 1030 lines 25 to 45 and 1032 line 5.

4. The first matter is the question of the manner in which I have treated Mr Park, and I should emphasise that Mr Wheelhouse says that by inference this is evidence of prejudice in relation to Mr Park which impacts on his case, because Mr Park is an important witness in his case, as well as being a defendant in these proceedings.

5. In relation to my statement referring to Mr Park as being insouciant, I should note that Mr Park has said in his submission to me that the reason that he was laughing at the time that I said this was that he was laughing at the lies of Mr Cha; and he said, in fact, that he was sorry about that. The fact remains that the reason I said that was - and I am grateful to Mr Park for having conceded this - that he was in fact laughing at Mr Cha at the time and he was also sitting at the back of the court. Mr Park has also told me that he was here every day and that he said that the reason he was sitting at the back of the court was he did not understand that he had to sit anywhere else and it was up to me to tell him where to sit.

6. On the first day of trial, (at page 30 of the transcript, Monday, 4 June) I asked what the position was in relation to the fourth and fifth defendants. (It is not in dispute that the fifth defendant, although he is apparently defending these proceedings, has simply never come to court.)

7. As the transcript will reveal, at page 30, when I asked where the fourth defendant, Mr Park, was, Mr Wheelhouse told me that the night before he had spoken to Mr Park, who advised he was a party in these proceedings "and ought to attend this morning. We were anticipating him being here this morning." I then inquired about the first defendant and was told he was deceased.

8. The next thing that happened was the case proceeded. The next reference we have to Mr Park being in court was where he apparently came in during the day and I note at T-108 I said, "The fourth defendant is sitting down the back of the court, do you understand this document is being tendered against you?" The document was then shown to him and I asked the interpreter to tell Mr Park - this is transcript 109 - what this document said.

9. On the sixth day of the trial - Wednesday, 6 June - Mr Park was still sitting down the back of the court, and I had this to say to him at transcript 121: "Sir, would you mind coming down to the bar table. Sir, I need you to look at this document. That document has been tendered as being a fax that was sent to you. Do you have any objection as to its tender?"

10. There was some discussion about the document, then I marked the document exhibit KK.

11. I went on to say to the fourth defendant (transcript 121 line 54): "The other thing, sir, it is very difficult for me if you sit down the back of the court. Is there some reason you are not sitting at the bar table?"

12. Mr Evatt said: "He should be sitting next to Mr Wheelhouse, your Honour."

13. Mr Park said: "Your Honour, this is the first time I am sitting in a legal court so I do not know the rules of court."

14. I then said: "Sir, everyone who is a party is supposed to sit at the bar table, and when you are acting for yourself and you were appearing before me over the last couple of weeks, that what you have done. So it is really making it difficult for me if you sit down the back of the court, and I would prefer you, if you do not mind, to sit at the bar table."

15. The next portion of transcript that is relevant is at 371, and this was in circumstances where it looked like being Mr Park's turn to cross-examine sometime in the near future. I have read out the whole of this transcript and it has been translated for the benefit of Mr Park, and I would ask that court reporter who is transcribing this judgment set out as if I have repeated all of that from the portion that commences at line 21. "HER HONOUR: I understand there is some problem with Mr Park. Is that right?.

WHEELHOUSE: No, there's not. Your Honour, I indicated to Mr Park that if he had any particular questions he thought should be asked, that he was to write it down on a piece of paper. I could ask the questions for him. I explained to Mr Park that often a court doesn't permit two parties with the same interest to cross-examine. He said, 'There are particular matters that have been said by Mr Cha that relate to me about which I'd like to ask my own questions', and I said to him that's a matter completely for him.

HER HONOUR: I can't imagine any court not [sic] regarding his interests as being identical to yours or denying him the right to ask questions, Mr Wheelhouse.

WHEELHOUSE: Your Honour, I said it would depend on what ruling you make on question by question.

HER HONOUR: Look, he's got a right to cross-examine, and all the more so since he's a litigant in person.

HER HONOUR: When do you think you are likely to have finished your cross-examination, Mr Wheelhouse, and we're likely to be faced with this difficult question; namely Mr Park asking questions in cross-examination?

WHEELHOUSE: I would think probably on Monday; I'll finish tomorrow.

HER HONOUR: No, as to the fact that Mr Park intends to ask some questions by way of cross-examination.

HER HONOUR: I can't imagine you would be able to think of any argument as to why he would be prevented from cross-examination, can you?

HER HONOUR: Yes, that's right. Each defendant is entitled to cross-examine whether their interests are the same or different, because each defendant has different matters that they might want to put before the court as to the matters in which litigants in person cross-examine there's some very helpful decisions from the Court of Appeal; all of them I'm happy to say postdating--" 16. [Then there is a reference to the decision about Judge Gibb.]

"HER HONOUR: I think that is [sic] the Moran case is the most recent.

HER HONOUR: They give me an understanding as to what my obligations are, but what I used to do was I used to tell people what was in the bench book for telling unrepresented litigants, but I take it that's not necessary here, because he can ask you for assistance; or for that matter, Mr Dibb, and I'm sure if he has some question he's got he can work it out."

(So you see I raised this with you. I told you what the course was and then--)

"WHEELHOUSE: Mr Park is a reasonably sophisticated person, your Honour, I'm sure he will.

HER HONOUR: Yes, but the thing is, you see, we've got to bear in mind that no matter how sophisticated people are they might not necessarily be neophytes when it comes to the law. So what we need to do then, we need - it's a matter for Mr Park when he approaches this. What's troubling me is the other gentleman who isn't even here.

WHEELHOUSE: Your Honour, could I just ask would you mind having that translated for Mrs Park, Mr Park by Mrs Lombard because he doesn't speak English.

HER HONOUR: Yes. When Mr Wheelhouse is finished asking his questions you can ask questions of this witness in a similar way to the questions you've just been asked.

"HER HONOUR: If Mr Wheelhouse has asked a question in his client's case it is not necessary for you to ask it again. So the only questions you need to ask are new areas about which there have not any questions."

"I would remind you that cross-examination is for the purpose of obtaining admissions about facts that are relevant to the case, so your questions will need to relate to an issue in the case, because if you ask questions about matters that are not in dispute in the case or are irrelevant counsel for the plaintiff will be entitled to object. I should also mention that there are provisions in the Evidence Act which is this book"-- (which I held up--) "and these provisions include a prohibition against asking questions about unnecessarily offensive. So it's a good idea to ensure your questions are about issues in the case and are asked in a calm and objective way. Do you have any questions, Mr Park?

HER HONOUR: Mr Wheelhouse, what's happening about the defendant who isn't here?

WHEELHOUSE: I think probably my instructing solicitor may have had some contact with him.

HER HONOUR: Yes, but I think maybe I should ask Mr Park that. Mr Park, you conducted this audit with the fifth defendant?

HER HONOUR: He has not come to court for this case. He really needs to ask questions in relation to his own case. Were you proposing to ask any questions in relation to the fifth defendant's case?

HER HONOUR: You won't have another opportunity, because once the examination-in-chief is over it is over.

HER HONOUR: Cases that I run in this court are different to cases that are run in your country. There is only one chance to ask questions in cross-examination of the plaintiff unless the court grants permission which is done really only in exceptional cases. Mr Park, do you have a question?

DIBB: Your Honour, do I understand that Mr Park proposes to cross-examine now?

HER HONOUR: No, of course not. Mr Wheelhouse is going to finish on Tuesday and all of this is going to happen on Tuesday.

PARK: Your Honour, I would like to find out whether I would be given a chance to ask questions to the plaintiff individually because I have been preparing all the questions from the beginning to now.

HER HONOUR: Yes. You will be given an opportunity to ask questions of the plaintiff probably next Tuesday, but remember what I said, that you don't ask the same questions as Mr Wheelhouse.

HER HONOUR: You need to understand questions about your own case, and one topic you can particularly consider is the claim which is used by the plaintiff to, if you like, to feed your qualified privilege claim; namely, that there is prior hostility between you; that there is a bad relationship between you and the plaintiff."

17. I am just pausing so that Mrs Lombard can translate that last bit. I note that she has been translating all of this as we go along, and, Mr Wheelhouse, that's why I've been reading this out, so it can be translated for the benefit of Mr Park.

19. HER HONOUR: Going back to the transcript; I'm now on 374.

20. WHEELHOUSE: I think is probably the portion - that's probably the portion that caused me to say, "I think Mr Park intends to cross-examine," I think, your Honour. But I thought there was an earlier occasion when it was discussed.

"HER HONOUR: So if you're going to be submitting to me at the end of the case that you had a good relationship with the plaintiff, or you were motivated only by your own concern about the state of accounts to write what you did, you will need to think about what questions you have to ask on this topic. Another area you might like to consider is the question of just what documents were given to you by the plaintiff when you had your meeting in 2000. However, please do not feel you need to spend many days in cross-examination or I will be impressed by Mr Wheelhouse and not by you. So it is okay just to ask the questions you want and you can sit down again. Thank you."

Mr Wheelhouse told me two things of real importance on that day. The first is that he had indicated to Mr Park that if he had any particular questions he thought should be asked, he could write them down on a piece of paper and he could ask them for him. That is all set out in some detail. So that is what I heard. Mr Wheelhouse then told me - and this is important because it was a vital piece of information on which I have been proceeding to date - he said, "Mr Park is a reasonably sophisticated person." This is at lines 31 to 32 on page 372. I went on to say that notwithstanding that, he might not be too knowledgeable about the law, and I went on to explain to him about some of the matters at 373 and 374 that he needed to take into account.

Notwithstanding my request that Mr Park should sit at the bar table, he did not do so, and he did come and go. At transcript 396 he said he was not well and I said that he could go home and we would make some arrangements for him to be told about what was to happen. This is at transcript 396 at the bottom of the page. I told him he was excused from attending court. I do not have a problem with him saying he was in court for most, if not all, the time. He certainly was in court a lot, but he was in court sitting down the back of the court and it was only on occasions that he actually came before the court, to the bar table, to sit at the bar table.

This creates very real problems for the judge because I have to deal with all of the parties. It is easy to forget somebody if they are not sitting at the bar table. Certainly, as the transcript will show, I did my best to assist Mr Park as a litigant in person who did not have an interpreter. But there are difficulties about what can be done in circumstances such as this where there is an expectation by the court about what would happen.

The other thing that Mr Wheelhouse has said to me was that he had in fact also asked Mr Park to sit at the bar table, and that he was appreciative of my difficulties, but that Mr Park had not sat at the bar table. This occurred after the matter resumed and I note that I inquired about where Mr Park was on transcript 476. But what happened was Mr Wheelhouse told me that he had asked Mr Park to sit at the bar table without success, and he invited me to direct him. I had already directed Mr Park to sit at the bar table and he had not done so. And after I directed him for a second time he then commenced to do so.

It is against that background that it is asserted that I was discourteous in referring to the fact that Mr Park had spent most of the weeks that this matter was in court sitting at the back of the room, and on the occasion when I referred to him laughing on one occasion expressing some emotions about what he had to think about Mr Cha's evidence.

Notwithstanding my having been told that the procedure that Mr Wheelhouse was going to follow was to get Mr Park to write down his questions so he could ask them; when I asked Mr Park at transcript 1017 how long his cross-examination would take, I was told that it would take five days. In an attempt to get to the bottom of what Mr Park was going to ask for five days, I asked him about his defence. It must be noted here that Mr Park's defence, unlike the defence of the second defendant, pleads truth to only one of the imputations and provides some very brief particulars in the defence - about three paragraphs, I think, in relation to that particular. That is an imputation about the plaintiff's incompetence at record keeping, which resulted in the records being in the state that they are in.

Mr Park was not able to tell me, in response to my question, what imputations he had pleaded truth to. Mr Park seems to think - and Mr Wheelhouse does too - that this was some form of cross-examination by me of Mr Park aimed at, in some way, harming him or not assisting him in the conduct of his case.

But, essentially, what I was trying to do was work out how realistic the estimate is, and it became apparent to me, as I said at the time, that if he did not understand the ambit of his defence, in that he did not understand about his plea of truth, then that indicated to me that perhaps his estimate was unrealistic.

I then went on to express myself in fairly forceful terms about the circumstances in which this case had run for four weeks, after I had been assured by counsel I must start it or it would be financial ruin for the parties. Then, after a further four weeks, I had found that we were still hearing the cross-examination of the plaintiff.

Mr Wheelhouse has said that a number of these comments related to Mr Park. However, Mr Wheelhouse has not appreciated that my concern was not Mr Park. Much can be forgiven for litigants in person. My concern was the circumstances in which very senior members of the bar had assured me that this hearing could be completed in four weeks.

Mr Wheelhouse has since told me that, by reason of some statements made by Mr Evatt at the bar table about his client's association with Mr Park, he saw fit not to consult Mr Park when giving that estimate of four weeks.

I do not have a problem with Mr Wheelhouse coming to that conclusion. I do have a problem with his not informing me that when he gave his estimate of four weeks it was without consulting Mr Park, because he was unable to consult with Mr Park because of the allegations made by Mr Evatt.

All I knew when I set this matter down for four weeks was that when Mr Wheelhouse was cross-examining he was going to follow the procedure he had already outlined to me, which is that he was going to ask Mr Park to write down any questions he wanted asked and he, Mr Wheelhouse, was going to ask them. So it was in those circumstances that I made the remarks that I did.

In relation to the demeanour and prejudice issue, I have a real problem with assertions that in some way my manner of saying something will make harmful matters that which, from the transcript, would otherwise appear anodyne. My manner throughout this case has been to try and keep control of a case where I have had a plaintiff who has on occasion made speeches at the witness box, and I note that at transcript pages 92, 100, 172, 177, 258, 283, 413, 546, 625, 865, 870 and 891 I have asked Mr Cha not to make long speeches.

In fact I made so many comments to that effect that counsel for the plaintiff asked me to disqualify myself on the basis of apprehended bias in relation, in particular, to some comments I made about the evidence about the circumstances of a donation by Mrs Kim.

In addition, I have had a problem with particulars of truth which went from eight pages in February 2007 to 147 pages, which was the length of the particulars that were delivered for the second tranche of the trial. I must say, if I had appreciated that that was the case, I would have given serious consideration to not continuing with the trial at all, but to adjourning it to some date in next year rather than attempting to run it for a further four weeks.

What I eventually did, in the interest of at least completing the plaintiff's cross-examination, was to put a sunset clause on Mr Wheelhouse's cross-examination in the hope of somehow reducing the issues in this trial to manageable proportions. But it says a lot for the difficulties that I was having with the plaintiff's particulars of truth that Mr Wheelhouse could tell me one day that he thought that there were 60 allegations for a total of $160,000, only to return the next day that the sum in question which it was asserted that the plaintiff had misappropriated, although there were some cross-overs, was $504,000. Those cross-overs must have existed the day before, and yet Mr Wheelhouse's sum had increased almost threefold, and that in a sense is indicative of the problems that have been a part of this case. This is a long case in the sense that there has been a lengthy cross-examination, I make no criticisms of that. Counsel must cross-examine as he sees fit. However, in circumstances where there is a long case, and there is a need for parties to give fair and accurate estimates of how long a case will take it is, in my view, unrealistic in the extreme for them to assert that, as a result, the fact that a court judge dares to express displeasure at making such a discovery in some way, amounts to not being able to decide the case on its merits as opposed to expressing complaints of the nature that relate to case management, because I have repeatedly made it clear my concern is case management.

In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; (2006) 231 ALR 663; (2006) 81 ALJR 352; (2006) 70 IPR 468; (2007) AIPC 92-241; [2006] HCA 55, Kirby and Crennan JJ and Gummow ACJ agreeing said, at 110: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, which in Ebner is called the second step, it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 at 493."

At paragraph 13, their Honours noted: "At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx ... Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.

In JRL, Re; Ex parte CJL (1986) 161 CLR 342; (1986) 66 ALR 239; (1986) 10 ALN N184; (1986) 10 Fam LR 917; (1986) FLC 91-738; [1986] HCA 39, Mason J said: "It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice rather than that he will decide the case adversely to one party. There may be situations where previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties." ((1986) 161 CLR 342 at 352)

But this does not mean either that he will approach the issues in that case otherwise then with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

In cases of this kind disqualification is only made out by showing there is a reasonable apprehension of bias by reason of prejudgment, and this must be 'firmly established' (R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4; Watson, Re; Ex parte Armstrong (1976) 136 CLR 248 at 258-263; R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 AT 14).

Although it is important that justice must be seen to be done it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of the judge they will have their case tried by someone thought to be more likely to decide the case in their favour.

I note this case was referred to with approval by Austin J in Australian Securities and Investments Commission (ASIC) v Rich [2004] NSWSC 970. In Bienstein v Bienstein (2003) 195 ALR 225; (2003) 24(4) Leg Rep 23; (2003) 30 Fam LR 488; (2003) FLC 93-124; [2003] HCA 7, McHugh, Kirby and Callinan JJ said, at [34]: "This Court held in Re Keely; Ex parte Ansett Transport Industries that the expression by a judge of tentative views during the course of argument as to matters on which the parties are permitted to address full argument manifests no partiality or bias. This approach has been confirmed and applied in many cases."

The high water mark of the appropriate steps to take, including what might be said to be excessive comments by the trial judge, is Galea v Galea (1990) 19 NSWLR 263 at 278, 279, and also at 280, 281, 282. I note that all three of the judges in the Court of Appeal gave very strong warnings that judicial officers should not too readily submit to an application they should disqualify themselves from sitting, such applications being increasingly made because this amounted to calling the judge's bluff, to cite what the Court of Appeal said (at 278): "I first remind myself of Mason J's warning in Re JRL; Ex parte CJL (at 352) that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting. Such applications are increasingly made nowadays: "… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

I take it that this is the kind of consideration that Powell J had in mind when he referred to the "bluff being called". His Honour was making his reaction to the evidence of a witness clear. But he was doing so at an advanced stage in a complex trial involving a serious conflict of facts and clashes of testimony. If every time a judge did this, and the litigant could assert that it led to a reasonable apprehension of bias, the consequence would be silence on the part of the judge. His or her thinking would then remain, sphinx-like, unknown to the parties or their representatives.

It is true that Jacobs J in R v Watson (at 294) expressed the opinion that judicial silence was "a counsel, of perfection". But in Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ said: "… We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown, until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

In the United States it has been suggested that such silence may even represent a denial of natural justice: cf David L Shapiro, "In Defense of Judicial Candor" (1987) 100 Harvard L Rev 731 at 737; cf also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477 at 484; (1989) ATPR 40-974 at 50, 653 (FFC) and Cavanett v Chambers [1968] SASR 97 at 101 (FCSA). It is argued that it may represent a failure of the judicial decision-maker to expose to the party who may be adversely affected (and that party's representatives) preconceptions, opinions and formulating conclusions so that the party has an opportunity, before judgment, to be heard to correct and to persuade. I take considerations of this kind to lie behind Powell J's repeated warnings to the appellant (and through him to his counsel) concerning the inferences he was inclined to draw from the answers given to questions during cross-examination. His Honour was doing no more than to give the appellant (as he earlier did the respondent) the opportunity to know the progress of his thinking and to correct an unfavourable impression if this was the product of passing inattention or inexperience in the giving of evidence.

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.

Notwithstanding the high standards which Vakauta and Grassby restate for Australian courts, I do not believe that Powell J was bound to disqualify himself on the ground that his questions and comments had given rise to a reasonable apprehension of bias. For this reason, the first basis upon which the second claim for relief was sought by the appellant must be rejected.

The appellant, nonetheless, relied upon a second basis for asserting that the trial had miscarried. This was the suggestion that his Honour, in the passages cited (and others) had turned his back on his duties as a judge, assumed instead those of the advocate and had descended from his neutral duties on the bench to the well of the courtroom, thereby depriving the appellant of a trial according to law."

Now, in that case, as is noted, Powell J noted there are five relevant guidelines. The first is whether excessive judicial questioning or pejorative comments can create a real danger that a trial is unfair. But also it should be noted that there is considerable latitude where a judge is sitting alone, as opposed to having a jury trial. This is not a case where there is excessive questioning. To the contrary, as I understand Mr Park's submissions, it is that I have not done enough to challenge Mr Cha.

Fourthly, the matter should be looked at in the context of the whole trial. Fifthly, there is the point at which the judicial interventions occur, and sixthly, the court noted that it is increasingly common for judges to take an active part in the conduct of cases than was previously the case.

Powell J became sarcastic and indeed he spoke very firmly and repeatedly warned, in relation to a witness whose credit he was concerned about, that he had this view. He was in fact putting someone on notice that there was a problem. Meagher JA commented that there is no requirement that a judge must "endure the ordeal with ladylike serenity".

Insofar as it is asserted that there is any animus that I have towards a party or legal representative, this has not been put but I think it might be said to be inherent in some of what is said. It is rare for such an allegation to succeed at all in all but the most obvious and extreme cases of animus towards a party or his or her legal representative. (For examples of cases on this topic, see "Injustice in Tribunals" by JRS Forbes, Federation Press (2006) at 15.67).

In Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 the Court of Appeal at [111] noted that in that particular case the person in question had been polite and had complied with all directions.

In the present case, in relation to Mr Park's conduct in this case, in circumstances where I had directed him, not once but several times, to come forward and sit at the bar table; in circumstances where he was not there at all for much of the first day and where I had great difficulties, I indicated in the transcript, in dealing with somebody who sat at the back of the court, and where Mr Wheelhouse told me that he had tried to have him sit at the bar table; it seems to me that the ordinary reasonable bystander, to quote the test, would see my conduct of the trial as being a case management issue where the ordinary reasonable person sitting at the back of the court would have heard me request Mr Park to come forward and sit at the bar table and would have seen that, notwithstanding that, he had not done so.

In addition, the ordinary reasonable bystander who heard me call Mr Park insouciant would have, because they were sitting at the back of the court, seen Mr Park was in fact laughing at the time, as he in fact himself conceded. In relation to this matter I am confident that the transcript will speak for itself to any appellate court considering the reasons why I have rejected this application.

The test in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, while I note that it establishes a relatively low threshold, still requires that there be some connection between a judge complaining about something such as sitting at the back of the court or laughing, as opposed to hearing a case on the merits. That, of course, is what is missing from this application.

What I have endeavoured to do is to run this case as best I can in circumstances where I have been given estimates on the length which are frankly unacceptably wrong. It is unacceptable to a court, especially the District Court, having regard to the provisions of section 56 of the Civil Procedure Act, that parties should not do their best to comply with their obligations to the court to give accurate estimates. If they cannot give an accurate estimate for some reason, they should tell the judge why they cannot and what the reason is, so that the judge can make further inquiry.

With all due respect to Mr Wheelhouse, some of the matters that he says were criticisms of Mr Park were frankly criticisms of himself. This is a matter which I should have been told about. I should not have been left to guess that Mr Wheelhouse had abandoned his previous plan of getting Mr Park to write down the questions. I note with concern that it was not Mr Wheelhouse who took me to that portion of the transcript. I was given very short warning of this application and left to find it for myself.

The remaining matter is the circumstances in which I look at some documents which Mr Wheelhouse himself gave me. Mr Wheelhouse did not address for very long on this issue. In fact, he really did not address at all. Mr Wheelhouse handed me a volume of documents. At the front there was an original letter from the plaintiff's solicitor addressed to the second defendant's solicitor.

I looked at that document because Mr Wheelhouse gave it to me to look at. It contained other documents. It was news to me that it was not given to me so that I could look at all of the documents. When I handed it back, I handed it back to Mr Dibb because I thought initially that it was Mr Dibb's client's documents since it was his client's documents and his client's letter. The circumstances in which counsel can hand me a document to look at and then later say in some way this is prejudiced my mind it seems to me is extraordinary.

In addition there are the further circumstances in which I said to Mr Dibb that there were documents in that bundle which no doubt he might need to have a look at. That document in question is a document which I have since in fact asked the parties to tender or to tender something similar, namely a list of people who are members of the committee. For the parties to expect me to deal with this case where there were, as I understand it from Mr Cha, 30 people, or some similar number of people, on this committee, where I do not have a list and where they all have surnames which are Korean which, to be quite frank, I have trouble with and repeatedly asked counsel if they would be kind enough to assist me in giving me a list of the names of the committee, it seems to me is extraordinary.

I have no idea what other documents Mr Wheelhouse is referring to that could have possibly have prejudiced myself but in circumstances where what I have done is indicate to the parties I need assistance with the Korean names, asked them to tender the documents that would assist me so I know who is who in this dramatis personae, in rather the way that in long Russian novels you get a list very helpfully at the beginning telling you the Russian names of everybody concerned, I do not know why the parties have continued to fail to honour this request. I address my concerns to both parties in this regard. If that request should have been made to both parties, as opposed to just Mr Dibb, then all I can say is I can only regret that I did not express myself with the clarity to which I would like to feel judges should express themselves.

Really, to be regarding that as being grounds for disqualifying myself after so many weeks of hearing it seems to me is something that the ordinary reasonable listener sitting at the back of the court would frankly find hard to credit.

Finally can I say this. The ordinary reasonable person sitting at the back of the court would not only have expectations in relation to my fair hearing of the case. They would have expectations as to the parties' ability to conduct it. They would expect the parties to be able to get on with the case, to be able to assist the judge by giving reasonable and helpful summaries of the evidence that is likely to be given and for the time that it is likely to take for the trial to be heard.

The ordinary reasonable person sitting down the back of the court might have expectations that people would get on with cases and run them, and run them within the time allotted. They might be agreeably surprised to think that there was an expectation that a judge was in some way obliged to look behind those assertions, in the case of a litigant in person, to see if they were correct. They would, in my view, would be not only surprised but concerned to hear that in circumstances where I received assurances from counsel that a case would take a certain time, that in fact that was not the case. And that is something where I feel that the concerns of the ordinary reasonable bystander would be that the judge (who is endeavouring to case manage the trial) was, as a result of submissions of parties given information about the length of the trial, which, frankly, was not only wrong but should have been known to be wrong to all of them. I feel that the ordinary reasonable listener sitting at the back of the court would be critical, not of the judge trying to case manage the case but of the parties who had obligations to the court, which they had not complied with in not giving a full picture of the problems which I am now told that they were having.

Accordingly, the application by the second and fourth defendant for me to disqualify myself from hearing these proceedings is refused.

Cha v Oh (No. 14) (District Court of NSW, Gibson DCJ, 12 October 2007, unreported)

JUDGMENT - on application for Mr Park to amend his defence; see transcript p 1112

1. HER HONOUR: An application has been made by Mr Park. Mr Park's defence previously pleaded truth only to imputation 40(e). That imputation was, "That the plaintiff failed to ensure proper records were kept of the committee's financial affairs."

2. There are 14 imputations from seven publications. That means that for all but one of these seven publications Mr Park had no defence of truth, and the defence of truth that he did have was to one imputation only.

3. When this case commenced, Mr Wheelhouse cross-examined on behalf of the second defendant who has pleaded truth to all of the imputations, and it would be fair to describe Mr Wheelhouse as having cross-examined up hill and down dale for a matter of many weeks. There will be few questions on the issue of truth that Mr Wheelhouse has not asked. I am not going to say that he has covered the field; it may well be that he has left out some vital matters; I do not know. But he has certainly asked a lot of questions. In relation to that, he has tendered a large number of documents. Not once was the tender limited to the second defendant. This is very much a case where the parties in reality conducted it as if the defence of truth had been pleaded by all parties.

4. Mr Park has come before the court with a defence that clearly does not reflect the evidence. He is not asking to plead a new defence. He is asking to plead a defence which he has partially already pleaded. Essentially what he is seeking to do is to adopt in its entirety all of the evidence of the second defendant. In Dare v Pulham (1982) 148 CLR 658 the High Court noted that a party can particularise their case up until judgment.

5. It has to be said in this case that the second defendant has particularised its case not once but many times in circumstances of increasing dissatisfaction to me, in that particulars of truth which were eight pages in February are now more than 147 pages of more than usual turgidity.

6. Nevertheless, I see no reason why Mr Park should in the circumstances be prevented from seeking to amend his defence so that it is conformable with the evidence to date. That, however, does not dispose of the issue of costs. Where a party amends late, in circumstances where the very late amendment succeeds, but the rest of the case fails, it is often the case that costs follow; Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137; [1994] 4 All ER 464.

7. In addition to it being a late application to amend, it is an application where it is arguable where by reason of the amendment costs should be thrown away. However, I will reserve all issues of costs essentially because Mr Park is a litigant in person and he would need to give careful consideration to any application that is made in relation to costs.

8. Mr Evatt asked to cross-examine Mr Park on the circumstances in which he has made this very late application. I have not given him permission to do so. Mr Evatt has submitted that there should have been a notice of motion and an affidavit filed in accordance with what he called "the rules of court". It has been the practice in the defamation list in the Supreme Court and in this court for many years since Hunt J in 1983 stopped the practice that notices of motion are not filed. And I must say I am not aware of there being any procedure requiring the filing of notices of motion during trials.

9. It is true that the provisions of the Civil Procedure Act 2005 (NSW) indicate that notices of motion should be filed, but it is frankly ridiculous to revoke a requirement of such an onerous nature in the course of a trial running for many weeks; nor is it necessary for a party to put on an affidavit. In my view where a party brings an application of this sort it is appropriate that it should be brought in the usual way, and unfortunately that brings me to something that Mr Evatt has not raised an objection to, and that is the failure of Mr Park to provide an amended defence.

10. What Mr Park is seeking to do in circumstances that put me in a most difficult position is to amend in a very general way where he is not prepared to come before the court with a proper defence in proper form.

11. In the course of conducting this trial, I have had a lot of difficulty because of parties' failure to accord quite basic courtesies to this court. Any party coming before the court seeking leave to amend a pleading ought, as a matter of courtesy, to bring that document so that I can grant leave to file an amended defence in accordance with what that document contains. I should not be left to guess as to its contents; nor should I be required to sit down and draft it myself for Mr Park.

12. It is regrettable that Mr Park comes before the court with a letter that has been written for him on the letterhead of the solicitors for the second defendant, but without the basis courtesy of the proposed amended pleading. It certainly puts the plaintiff in a difficult position and I have considerable sympathy for Mr Cha and those who instruct him in that Mr Park has failed to comply with this most basic requirement, not simply as to the court rules, but of courtesy.

13. Practitioners well know from their training in ethics that they owe five duties. Those duties include not only a duty to their client, but also a duty to the court and also a duty to their opponents. It is a basic courtesy to Mr Cha that Mr Park should have provided an amended defence, and I think it most regrettable that he has not done so. I have no doubt that a lot of the heat and unpleasantness that has been engendered by this application has come about from Mr Park's failure to comply with this basic requirement.

14. Many litigants in person come before this court. It is an ongoing problem that litigants in person who come before the court expect to have entitlements which would never be accorded to litigants who were represented by lawyers. Bryson J in a helpful and perceptive judgment in Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 set out that it is imperative that trial judges should not permit litigants in person to obtain forensic advantages from the failure to comply with orders. The circumstances in which litigants in person should be permitted to come before this court seeking to amend pleadings when they are not prepared to accord not only the court, but their opponents, the courtesy of an amended pleading, and they are left to guess as to what is involved, is regrettable.

15. I can only assume that by pleading truth to all the imputations that this means that an amended document which at the very least closely resembles the defence of the second defendant will at some stage in the future be filed.

16. In practical terms, given Mr Park's attitude to the case to date, I do not know when this can be done. I do not say that in any pejorative sense of Mr Park. The difficulty is that Mr Park is unable to speak English and clearly is in no position to draft such a document. For all I know, he has no access to a computer or typewriter, and would not be able to type it even if he could type in English. I have no way of forcing him to comply with any of the rules, and short of directing my associate to type the document on his behalf I do not know what I can do.

17. Mr Wheelhouse has made it clear that he fears accusations by Mr Evatt of interference, and it is to be assumed from that and from the tone of the letter of 11 October 2007 that no assistance from the second defendant will be forthcoming. I am not going to insult the representatives of the plaintiff by suggesting that they prepare Mr Park's defence. We will obviously have to manage as best we can with no document being provided.

18. I see no point making an order directing him to file a defence in circumstances where such an order is a futility. All I can do is to make an order granting him leave to file a defence on the understanding that it is to be a mirror image of the defence of the second defendant. Even that is fraught with peril, because it would appear that Mr Park who cannot read English may have no idea what is in the defence of the second defendant.

19. It is, however, the best I can do in the circumstances; circumstances in which I might add I have had absolutely no help from the second defendant or the plaintiff as to what to do in this very difficult situation. Accordingly the orders I propose to make are: (1) I grant leave to the fourth defendant to amend his defence to plead truth to the imputations pleaded in paragraph 36C, 38B, 39A, 39C, 40A, 40D, 40H, 40K, 41B, 41D, 41F, 42D and 43A on the understanding that any such amended defence, if ever filed and served, is to be in identical terms to the defence of the second defendant. Secondly, I reserve costs.

Cha v Oh (No. 15) (District Court of NSW, Gibson DCJ, 12 December 2007, unreported)

1. HER HONOUR: This is an application which came before me following the settlement in respect to the third defendant and plaintiff in these proceedings. These are proceedings which were commenced in 2002 arising out of a series of fourteen publications in Korean newspapers between 2000 and 2001. These proceedings have a very long history indeed and indeed in relation to an interlocutory matter following a s 7A jury trial in 2004 there was an application to the Court of Appeal and then to the High Court for leave to appeal. Those applications having failed the matter came back before me for hearing and immediately prior to the hearing commencing in May of this year the third defendant settled these proceedings and entered into a settlement agreement between himself and the plaintiff.

2. Part of that settlement included a notice of apology and it is there where tragically some problems arose because it would appear that there was a great deal of toing and froing between the plaintiff and the third defendant about what amounted to a satisfactory apology. In a long and helpful letter of 5 December 2007 Mr Burke set out some of the history of this matter. He set out that his client had settled the case as a matter of financial necessity. He paid a significant amount, the precise amount I am unaware, pursuant to an agreement to settle the matter and that executed deed was returned on 19 June 2007.

3. An apology was to be proffered and this apology was agreed to. But then there was a request by the plaintiff to change the settlement by demanding the publication of some form of article rather than the agreed apology. Mr Burke and Mr Evert having known each other for many years this was able to be accommodated and accordingly this was done. The material was then sent to the plaintiff but there was an indication in a letter of 27 August 2007 that this material had to be published in six different publications and not simply the third defendant's publication. There was then a request for the apology to be published every week for three months and again that created problems because this was outside the settlement agreement.

4. Finally, what was agreed upon was an apology which was agreed upon and which was to be published. Mr Burke's letter which is MFI 3 in these proceedings sets out the history of that. The next thing that occurred was there was an attack on the Korean translation of the apology and it was in those circumstances that the court received a request to re-list the matter urgently on Thursday 6 December 2007 for orders to be made by this court for "rectification for the notice of apology" (see Ms Menalarkis' letter of 4 December 2007). Mr Burke in his letter said: "Your correspondence threatens to drag my client back into court due to some trifling differences in the translation of this material. The substance is identical. Your translation, so far as I'm informed, is not even accurate in at least one respect. It seems absolutely pointless that there be proceedings over this issue."

5. Mr Burke went on to note, and this is one of the reasons why I am setting all of this out: "My client advised me today that he has checked with NAATI in Canberra and your translator is not even certified to translate from Korean into English, only from English into Korean. So worried was it that this was suggesting a potentially criminal act on the part of your translator that I personally telephoned the head office of NAATI in Canberra. I was advised that Mr Choi does not have any accreditation in translating from Korean into English. I was further advised that he is believed to have altered his stamp to suggest otherwise and that NAATI has sent several letters to him asking him to desist."

6. Mr Burke went on to note that there is no absolute precision in translations between English and Korean and he has set all of this out because his client was distraught at the continuation of these proceedings and the circumstances in which the matter had been brought back before myself.

7. When the matter came before me it was clear that there were problems. One of the problems was that a translation handed up by counsel for the plaintiff containing a stamp for Daniel K Choi, which has a fax date of 2 December 2007 at 4 pm, is different again to the translation. And in these circumstances I was sufficiently concerned to make the following orders: (1) The plaintiff show reason why Judge Gibson should not dismiss this application by filing and serving by 4 pm Monday 10 December 2007 an affidavit from Mr Choi including all words mistranslated in English and Korean and his qualifications and expertise; (2) Matter stood over for argument to Wednesday 12 December 2007 at 9.30am; (3) Costs reserved.

8. In those circumstances when the matter came back before me today there was no affidavit from Mr Choi. I was informed by Mr Dibb and Ms Manolakos, who have behaved entirely responsibly throughout, I should add, as has Mr Rasmussen on the last occasion, that they have been able to obtain another certificate of translation from Language Services at the Community Relations Commission, which is MFI 4 in these proceedings and it is clear that the text of this publication is substantially similar to that which was agreed between the parties, which is MFI 2 in these proceedings. In those circumstances it would appear that the court has been troubled and the parties put to considerable trouble and expense by reason of, among other things, some mischievous claims by Mr Choi whom Mr Dibb said, and I must say I agree, was a charlatan, in that it would appear that he does not have appropriate qualifications and it would appear that his claim that there was a mistranslation was without foundation.

9. This is a very bitter matter and the worst thing that could have happened was for there to be further inflammation of these proceedings by the bringing of such a claim. It is most unfortunate. Mr Burke seeks an order for costs on an indemnity basis. He has drawn to my attention the following matters: first of all, the matters that are set out in his correspondence, to which I have referred earlier; secondly, there has been no compliance with my orders in that there is no affidavit from Mr Choi; thirdly, the conduct by Mr Choi and the plaintiff, which he submits is the kind of high-handed conduct commonly punished by such orders; fourthly, the circumstances in which this matter was brought back to court at very short notice at very great inconvenience in the last weeks and days of term in circumstances where he had no alternative other than to appear for a client who was already distraught, to refer to the word in his letter, and he did not need to have the anxiety of a settlement falling over in circumstances where he had already paid substantial damages.

10. This is the kind of case where indemnity costs in my view are appropriate. It is unfortunate, and I have some sympathy for the plaintiff although most of it is reserved for his legal advisers, because it is always very difficult when an expert gives an opinion not to follow that expert. Mr Burke has noted that the plaintiff is a native speaker of Korean. I have seen the plaintiff giving evidence before me and the plaintiff's English I am aware from the conduct of this case is not good and in fact he has given evidence at all times through an interpreter. Consequently, I am inclined to be a little forgiving in relation to the plaintiff. If someone who is an expert translator says something has been mistranslated in circumstances where the plaintiff's English is not all that good, it is not hard to understand how it is that he might have genuinely believed this to be the case, especially if this expert is someone who has doctored his stamp supplied to him by NAATI. That is a matter of great concern.

11. Nevertheless, in making an order for costs on an indemnity basis as I intend to do I have given these reasons for judgment for two reasons. First of all, to make it clear what has happened and why I am making the order that I am making and secondly, so that the parties can take out of a copy of my reasons for judgment so as to refer it to NAATI in the event that NAATI is considering proceedings to have Mr Choi removed from the list of NAATI accredited interpreters, which I understand may be a course that may be considered by them if they are not satisfied with his conduct. It is my view that I should make an order for costs in Mr Burke's favour in relation to the bringing of this application and essentially this has not been opposed by Mr Dibb. His opposition has been limited to the issue of indemnity costs, which is a very proper attitude for him to take.

12. However, notwithstanding Mr Dibb's able arguments I am of the view that this is a matter where it is appropriate that there should be an order for indemnity costs and accordingly the orders I make are as follows: (1) The plaintiff is to pay the costs of the third defendant in relation to the bringing of this application, including correspondence and court appearances on an indemnity basis; (2) The costs order made between the plaintiff and the third defendant is also made against Mr Daniel Choi, NAATI number 31154, subject to his entitlement should he wish to do so to come before me to make submissions as to why I should not make such order, any such application to be made by Friday 22 February 2008; (3) The plaintiff is to take out a copy of this judgment and serve it upon Mr Choi no later than Friday 2 February 2008 and to advise him that if he does not apply to set the order aside, the costs order may be assessed against him; (4) A copy of this judgment is to be sent by the registrar of the District Court to the NAATI head office in Canberra.

Cha v Oh (No. 16) (District Court of NSW, Gibson DCJ, 5 May 2008, unreported)

JUDGMENT - Application to adjourn hearing; see transcript pp 1411 and 1419

1. HER HONOUR: This is an application by the plaintiff to adjourn the hearing of the proceedings today for one week. I am setting out some short reasons for granting that application:

2. I shall first briefly refer to the history of the matter, which is set out in more detail in my judgement of 4 October 2007.

3. These proceedings were set down for hearing as a four-week trial commencing 28 May 2007. It was not ready to proceed on that day, and all of the parties asked me to adjourn the matter for one week. Regrettably, the matter could not be completed in the remaining three weeks and it was set down for hearing for a further four weeks in September and October. When the matter could not be completed in that further four weeks, I set it down for further hearing on 29 January.

4. I was told by the parties that there was an application for leave to appeal from my refusal to disqualify myself, which is my judgement of 5 October 2007 on or about 11 November 2007. I immediately provided a copy of my decision to the parties in the hope that the Court of Appeal could deal with the matter and the January hearing date could be kept. Unfortunately, it would appear that the matter could not be heard in the Court of Appeal until February 2008, and I am very grateful that the Court of Appeal was able to hand down its decision as quickly as it did, which meant that the matter was then able to be set down by me for directions on 7 March.

5. I required all of the parties to be present on 7 March to ensure that everybody knew what was happening. My orders of 7 March were unfortunately not complied with, and I made further orders on 18 April 2008. Unfortunately, while there has been some compliance with those orders, there are still a number of problems. However, the real problem is that when the matter came before me today, there were significant changes in legal representation, and one of the cross-defendants had not been notified of the hearing date at all, as far as I can ascertain. Ordinarily, this would not have been a problem because previously this particular cross-defendant was represented by the solicitors who are acting for the plaintiff, who was the cross-defendant. However, it would appear that these new solicitors who have come onto the record have done so only recently, and it would seem that they are in no position to tell me at the moment if they are even acting for this particular cross-defendant, Mr Kim. As Mr Kim is not here, that is the first difficulty.

6. Ms Evans, who appears for the plaintiff, did appear on some directions hearings in March and April at the request of Mr Evatt. She tells me that Mr Evatt and Mr Dibb, who have been in the matter since the commencement of the hearing, were no longer briefed and that the solicitors who are on the record are no longer retained. That is the second difficulty.

7. Mr Seck of counsel now appears for the fourth defendant. The fifth defendant's whereabouts remain unknown. By reason of Mr Seck's appearance for the fourth defendant, it is now possible for there to be an amended defence filed and for the list of questions that I asked for in order 9 of my orders of 18 April and order 4 of my orders of 7 March to be specified and translated into Korean.

8. Mr Seck has provided me with a list of topics he seeks leave to re-open the cross-examination about, but it is a general series of headings. The cross-examination, he tells me, will take 3 hours, which creates some real difficulties, not the least of which is that the plaintiff has already been cross-examined in these proceedings for seven weeks between May and October 2007, three and a half days of which was cross-examination by Mr Park in circumstances where a significant amount of the material relevant to his case had already been the subject of cross-examination by Mr Wheelhouse in his cross-examination of the plaintiff.

9. About the only party who appears to be ready for this hearing today - and I do not say that in any critical way - is the second defendant, who is not going ahead with his application to serve further expert evidence. Mr Wheelhouse has very properly informed me that all he can do to assist me is to ask the question how he can assist me and to answer it by saying that his client will accede to whatever order I think is just in the circumstances as long as costs are reserved. I think that is an entirely appropriate submission and it certainly makes my job easier.

10. The circumstances in these proceedings which relate to publications which are now eight years old or thereabouts, are to be further adjourned is unfortunate. However, it would seem to me to be doing an injustice, not simply to the plaintiff who asks for the adjournment but, more importantly, to the defendants, to force the plaintiff on in circumstances such as these. For me to permit case management to prevail over the need for justice is something that the Court of Appeal has repeatedly warned against. I am mindful of the Court of Appeal's recent decision of Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 in that there must come a time when what the Court of Appeal called "the limit" must be reached. However, the plaintiff in these proceedings is entitled to be properly represented just as the defendants in these proceedings - and, for that matter, the cross-defendants - are entitled to conduct their cases as efficiently as possible.

11. Mr Seck has told me that he only came into the case very recently. I think he has probably been retained in this case a few hours longer than Ms Evans, and I suspect that he could probably make good use of a week to get on top of the 1300 pages of transcript, the 59 exhibits of the defendants and the exhibits of the plaintiff, the precise number of which has escaped my memory, but which are considerable.

12. I have made a series of case management orders which are designed to ensure that these proceedings continue in an efficient way. In addition to those orders, I would propose that, since some documents need to be served by the fourth defendant on Wednesday, the matter should come back before me on Thursday for directions only so that I can deal with outstanding matters.

13. In relation to costs, as I have indicated in previous judgments, in the interests of getting on with the issues in the case, I propose to reserve issues of costs. These costs will not be forgotten, but they will not be permitted to prevail over the very real need for these proceedings to be finalised on the substantive issues. I am mindful of the provisions of s 48A and the need for the parties to keep the costs in proportion to the damages claimed, and I note that in the Court of Appeal's judgment there is some reference to this issue.

14. Even if the end result is that the matter cannot be completed by 19 June and has to be adjourned again - a fate which I have been anxious to avoid at all costs - it seems to me appropriate that I should grant the adjournment, noting that Ms Evans has told me that she will be doing her utmost to complete the case during that time, and noting that Mr Wheelhouse has indicated, as I think he did to the Court of Appeal, that he has hopes that the case can be completed in six weeks.

15. On the application of the plaintiff, which is neither consented to nor opposed by the second and fourth defendants, these proceedings have been stood over for hearing to Monday, 12 May at 10am.

Cha v Oh (No. 17) (District Court of NSW, Gibson DCJ, 12 May 2008, unreported)

JUDGMENT - Application to sever from these proceedings cross-claim brought by the fourth and fifth defendants; see transcript p 1426

1. HER HONOUR: The first order I am going to make is: sever from the hearing in these proceedings the cross-claim brought by the fourth and fifth defendants against Mr Cha and Mr Kim. That is the first order I make.

2. Order 2 is: the fourth defendant is to notify the fifth defendant of these orders in English and Korean by service on the fifth defendant in Korea of a copy of these orders and the plaintiff is to notify Mr Kim in the same way, such letter to be posted to any addresses provided to the plaintiff by Mr Burke.

3. The next order I make will be: liberty to apply to relist the cross-claim at any stage of, or at the conclusion of, this litigation.

Cha v Oh (No. 18) (District Court of NSW, Gibson DCJ, 12 May 2008, unreported)

JUDGMENT - Application to cross-examine Mr Cha; see transcript p 1427

HER HONOUR: This is an application by the fourth defendant to further cross-examine the plaintiff following the hearing of this matter for a total of eight weeks during 2007, the matter having been relisted to recommence hearing for a further seven weeks last week.

The fourth defendant acted for himself during 2007 and at the beginning of the trial I explained to him in some detail about the issues in the case, and Mr Wheelhouse indicated that he would get some questions from the fourth defendant and put them to the court. However, it was always made clear that the fourth defendant would have to ask some questions and I particularly drew his attention to the issues of qualified privilege and malice. This was in part because, at the time, the fourth defendant had a defence on which pleaded truth to only one of the imputations.

The relevant portions of the transcript in which these conversations took place are set out in my judgment of 4 October. Mr Cha was cross-examined by Mr Wheelhouse for approximately seven weeks in May, September and October 2007. The fourth defendant then said he wanted to cross-examine the plaintiff for five days. At the time he had only pleaded truth to one imputation and he had been extensively cross-examined by Mr Wheelhouse. There were some amendments that were sought to be made to the fourth defendant's defence, effectively to bring his defence in line with Mr Wheelhouse. On that basis, although the fourth defendant was not able at the time to produce a defence, although this has now been done, he then went ahead and cross-examined.

During this cross-examination it would be fair to say that there were a number of interruptions. The fourth defendant was invited to cross-examine on qualified privilege and on malice on a number of occasions, and I note in particular transcript 1239, 1240, 1302, 1321, 1322 - the list provided by Ms Evans. I also note that on a number of occasions Mr Wheelhouse said that he was attempting to give some assistance to Mr Park, for example transcript 1240 and 1330.

Unfortunately it was very hard to hear some of the evidence because of the interruptions at the bar table, the fact that we were hearing the case in Court 21A, which is a very large court, and there were problems with the manner in which the evidence was being translated, because we unsuccessfully, at the request of the Korean-speaking parties, tried a system of having the parties question and answer in Korean, and there are a number of references in the transcript to people talking over each other.

Consequently, at the conclusion of Mr Park's cross-examination, when I read it, I realised that there were some omissions, principally in relation to issues of malice. I then wrote to the parties, indicating that if there was some difficulty I would invite Mr Park to put the matter to me when the matter was next in court.

It was indicated to me thereafter that the fourth defendant did in fact want to ask more questions. I made orders on 7 March as follows "If the fourth defendant wishes to ask any further questions and cross-examine Mr Cha, he should provide an outline (within 21 days) of the topic or topics. Cross-examination concerning issues of truth which have not been particularised in his pleadings or statement, or in the second defendant's particulars of truth, or which have already been the subject of cross-examination by Mr Wheelhouse may not be permitted."

There was no compliance with this order when the matter came before on 18 April but Mr Crumpton, who had spoken to the fourth defendant, very helpfully advised me that he thought there were about 15 or 20 further questions that the fourth defendant would like to ask. Accordingly, I made order 9 on that day as follows: "Note no compliance by the fourth defendant with order 4 of my orders of 7 March 2008 but Mr Tim Crumpton advises the fourth defendant wishes to ask about 15 to 20 further questions of the plaintiff in cross-examination. I direct Mr Tim Crumpton, on behalf of the fourth defendant, to provide the outline of these questions in English and with Korean translation to the plaintiff by 9.00am, Friday, 2 May 2008.

When the matter came before me, unfortunately there had been some compliance with this order but not full compliance, in that the questions had not been served by 9 o'clock on Friday; they had been served very late and a copy had not been provided to the court. They had not been translated into Korean and they were not questions. The document in question was, although described as - was in fact on "topics", to quote Mr Seck's letter of 2 May, and a list of 12 topics, ten of which I think it would be fair to say would relate to issues of truth, one of which was about qualified privilege - namely, alleged malice in publishing the articles in the Korean newspapers - and one of which was the cross-claim.

Mr Seck advised me he thought this cross-examination would take about 3 hours. Mr Seck helpfully provided me with a list of 59 questions on the following Wednesday, and I have looked through these questions. Mr Seck told me that it was important, on the issue of fairness, to ask these questions in chronological order and that this had not been done. However, having had the advantage of looking at those questions and comparing them to Mr Wheelhouse's very careful cross-examination, I can see that not only did Mr Wheelhouse cross-examine in chronological order but he also told the plaintiff, at transcript 128, that he was going to cross-examine or attempt to cross-examine in this fashion when he said, "Mr Cha, I'm attempting to take you through chronologically the events which happened in 2000 and 2001."

Indeed, commencing at transcript 182 and running for several hundred pages, Mr Wheelhouse went through all of the matters in the questions and, indeed, a comparison of the questions that Mr Seck seeks to ask, with transcript pages 122 and following, shows that that is exactly what Mr Wheelhouse did, and he did so in a very careful and clear fashion in circumstances where I am satisfied that the matters that were set out in Mr Seck's questions were dealt with by Mr Wheelhouse and, in fact, dealt with very fully.

I am spared the problem of going through the transcript pages I had compiled for each of these questions because Mr Seck, following the hearing on Thursday, provided a revised list of questions in which he sought to ask only one question and that was a question in relation to a meeting on 21 February. After some discussion at the bar table it would appear that, since everyone agrees there were two meetings and Mr Park did in fact cross-examine about a second meeting which both he and Mr Wheelhouse said in their cross-examination occurred on 16 February, at transcript 1272, 1274 and 1275, Mr Seck indicated that if that was indeed the meeting, then the date of 21 February which he had drawn from an exhibit may or may not have been a reference, but in those circumstances he indicated that he would not press that question.

That leaves two additional areas of questions. The first of these is the set of questions relating to the cross-claim. In relation to the cross-claim, both the fifth defendant, who is the cross-claimant, and the second cross-defendant, Mr Kim, are not here. They are both litigants in person. It is not clear to me whether they know what is happening in relation to the cross-claim or what their attitude is. We have already lost a lot of time in relation to these proceedings and I have suggested to the parties that what we should do is sever the cross-claim and the parties can be at liberty to restore it any time in the event that it is possible to run it at the same time, failing which it can be heard either at the end of these proceedings or at some other convenient time or even, if the parties wish, it could be heard by another judge. That might be another answer.

Whatever the situation, the parties have accepted and indicated to me that they are content for the cross-claim to be severed, and that is a very practical way to ensure that I am doing justice to everybody, including the cross-claimant, who is not here, and the cross-defendant, who is not here, which of course is most important since both these gentlemen are not able to be in court to tell me what they want, in circumstances where I do not have any evidence before me to indicate that either of them is in hiding or otherwise seeking to avoid the consequences of their conduct.

I note there is some information that has come to me from the bar table about one or both of them being difficult to find. I do not know if that is the case or not. It would be most unjust for me to form an adverse view of either of them because they are not here. For all I know, they are not here because they simply do not know that the proceedings are going on. Nobody has shown me any letters that have been written or other evidence that is able to assist me, so I think the best thing to do is to err on the side of caution and I know that the parties have agreed to this course in any event.

That leaves the set of five questions to be asked on the issue of malice. These questions are as follows: 1. When Mr Park was voted as auditor of the supporting committee, Mr Park never said that he had accounting or auditing qualifications. 2. Mr Park never ever said to you that he had such qualifications. 3. You did not oppose Mr Park's election publicly on the basis that he lacked qualifications. 4. You never asked Mr Park to have an audit performed by a qualified auditor. 5. You knew that Mr Park did not have any accounting qualifications.

In relation to the question of whether Mr Cha should be cross-examined at all, I have received submissions from the plaintiff that there should be no further cross-examination and I have received a request from the fourth defendant's counsel that additional questions should be asked. I should note that the circumstances in which a party will be permitted to ask further questions, particularly where that party seeks to have a new party ask those questions, whether because he is self-represented or not, are limited and I need to take into account a number of matters.

It would be fair to say that the fourth defendant is asking for an indulgence, although I am very conscious of the fact that it is an indulgence that I invited him to ask for. The following matters are matters which, although not exhaustive, are some of the matters that I have had regard to. The first is that the plaintiff has already been cross-examined for nearly eight weeks and that the fourth defendant cross-examined for more than three days. This has been a very long cross-examination; it has lasted a year. The plaintiff was first cross-examined in May of last year.

Secondly, the plaintiff had legal assistance from 2002 up to the hearing, and during the hearing and during the cross-examination he was able, on occasions, to ask for assistance from Mr Wheelhouse. Mr Seck submitted to me that he statement that is referred to by Mr Wheelhouse, which is set out in my judgment of 4 October, was an invitation to help, only it was never taken up. There are, however, a number of references in the transcript to Mr Wheelhouse telling me he had assisted Mr Park with topics, transcription 1330, had had a conference with him or had given him advice about running the case, as was entirely proper as Mr Wheelhouse was showing the kind of assistance that one would expect from members of the bar in those circumstances. I note in the transcript I asked Mr Evatt to provide that similar assistance, although Mr Evatt obviously did not.

The third factor is that Mr Park did fail to comply with two orders I made about providing a list of questions, and when he did apply what was put to me was an attempt to redo the whole of the cross-examination, and Mr Seck said that this would take 3 hours, but I suspect it might have taken a little bit longer.

Fourthly, there is the fact that Mr Seck was seeking to ask questions on Mr Park's behalf, and the circumstances in which court will permit cross-examination by different persons are set out in Phillips v Phillips [1966] 1 NSWR 49; (1966) 7 FLR 456; (1966) 83 WN (Pt 1) (NSW) 445.

Fifthly are the matters addressed by the Court of Appeal in its recent decision of Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 about the "limits" and the role of case management in defamation actions.

Sixthly, the plaintiff has been very seriously handicapped. Ms Evans complains because she has not been able to talk to him because he has been technically under cross-examination or possible cross-examination since if not, last October, certainly for as long as Ms Evans has been in the matter.

Seventhly, there were some new questions which, Ms Evans put to me, were of dubious relevance and I have noted Ms Evans' submissions on this point.

The course that I have proposed to the parties is that rather than put Mr Cha back into the witness box after so many weeks, the questions which have been outlined by Mr Seck which are set out above should be asked by way of interrogatories and answered as if they were interrogatories. Although it is an unusual course, it seems to me that that is the best way for these questions to be asked and answered without having to put the plaintiff back into the witness box, in circumstances where everybody knows what the answer is, and in circumstances where hopefully that will mean that the plaintiff is no longer under cross-examination.

Cha v Oh (No. 19) (District Court of NSW, Gibson DCJ, 12 May 2008, unreported)

JUDGMENT - on application by the plaintiff for a further adjournment; see transcript p 12

1. HER HONOUR: This is an application by the plaintiff for a further adjournment for at least a week by reason of a number of issues, the most important of which being that, in a very complex case, which I think it would be fair to call this, and a very long case, which I think it would also be fair to call this case, the legal representatives for the plaintiff have been at a disadvantage in that, for the period of time that they have been in the case, they have not been able to prepare the case since the plaintiff has been the subject of some orders in relation to further cross-examination by the fourth defendant these being some directions that I made on 7 March and 18 April for the service of some questions.

2. In the first judgment that I gave today, I did two things which made some material changes to the case. The first was I made some orders about some questions being asked of the plaintiff by way of answers to interrogatories to dispose of the issue of malice and the second was to sever the cross-claim.

3. The application for adjournment is opposed by Mr Wheelhouse. Mr Wheelhouse, in the course of opposing it, submitted that the plaintiff had been entirely responsible for the matter not proceeding in the first week by reason of Mr Evatt being in another hearing. This is not the first time I have heard this allegation but I have yet to be given a transcript reference for it. It is my recollection and I think that the transcript makes this clear, that the parties were not ready to proceed and, in fact, what I had to do was to make a series of orders. On 28 May, I made some 20 orders in relation to such things as preparing tender bundles, answering interrogatories, granting access to financial records, standing over compliance with subpoena, and the like.

4. I then, on 31 May, made a further 12 orders extending time for these things to be done since they had not been done and then on 1 June, I made a further eight orders. If the reason the matter had not been ready when it first came before me, was that Mr Evatt was not available, this would have been an application to which I would have given it little or no weight. At all relevant times, Mr Evatt had an extremely able junior, Mr Dibb, who had been in the matter since 2002 and if that had been the reason for the matter not proceeding, or if they had been the basis of the application not proceeding, it would have been an application that would have been rejected. There has been substantial non-compliance with orders in this matter by all parties. I am not going to apportion blame. Not complying with orders is something that happens in every case. It is not the case that parties thereafter should be punished by not being given assistance when they need it and the circumstances in which any court would say to a party if an application was brought of a bona fide nature in circumstances where any prejudice that was occasioned to the other parties could be cured with an order of costs, that the court should say, by reason of failure to comply with other others, that order which might otherwise have been made should be refused.

5. When the Court of Appeal recently considered issues of case management in defamation in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 - they warned of the need to have regard to ss 56 to 62 of the Civil Procedure Act. Section 56 requires that justice should be just, cheap and quick. There is a joke amongst practitioners that sometimes people think there is no comma between "just" and "cheap", and this case is a good example of the importance of that comma. Cases must not only be quick and cheap, they must also be just.

6. When a party comes before the court and tells the court quite frankly in the long and complex matter where there have already been two adjournments, where there has already been a trip to the Court of Appeal, where there is a past history going back to 2002 of a trip not only to the Court of Appeal but to the High Court by another litigant who is no longer a party to this litigation, to be saying that whereas the court was willing to sit by and grant other applications for adjournments when considered necessary, it should lower the boom some eight or nine weeks into the trial and force on a plaintiff who has new counsel, who has financial difficulties, who does not have all of his documents, who until approximately half an hour ago was technically still under cross-examination, would seem to me to be ignoring the comma that is between "just" and "cheap". Justice must not only be done but it must be seen to be done, and it must be seen to be done by the ordinary reasonable bystander sitting at the back of the court who would assume that when a party finds themselves in difficulties, and frankly tells the court about it, that the court listens and gives a degree of understanding to the position - particularly in circumstances where there is no issue of prejudice that cannot be resolved by an appropriate order for costs in due cost. That appropriate order for costs should take into account all factors, and that would include the conduct of other parties and whether or not those parties have contributed to the delay.

7. I express no concluded view as to whether or not the failure to comply by the fourth defendant in relation to some orders for providing questions played any part. It may be that, when I look at this issue and his submissions, I decide that it plays no part at all, it may be that I decide that it has some part. It is not appropriate that I should express any concluded view now. The plaintiff is to answer the five malice questions, with the verification, by 10am 13 May 2008 (see judgment).

8. On the application by the plaintiff for an adjournment to Monday, 19 May, these proceedings are stood over part heard to Monday, 19 May at 10 am; (see judgment). Costs reserved.

Cha v Oh (No. 20) (District Court of NSW, Gibson DCJ, 16 June 2008, unreported)

JUDGMENT - on application to issue warrant to Mr Yun Jin Min see transcript p 2136

1. HER HONOUR: At midday today, Mr Evatt made an application on behalf of the plaintiff to issue a warrant pursuant to s 194 of the Evidence Act 1995 (NSW). Section 194 provides as follows: "(1) If a witness fails to appear when called in any civil or criminal proceeding and is it proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may: (a) order the witness to show cause at those or later proceedings while execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or

(b) if it is proved that the non-appearance is without just cause or reasonable cause and the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give evidence."

2. The history of the matter can be described as follows. At transcript 125, Mr Yun Jin Min is referred to and there was an attempt to elicit evidence from the plaintiff concerning who he was and how it was that this gentleman, who has been described to me variously as a certified public accountant, had prepared a review of the records of the Aus-Kor Committee.

3. The document in question, which is before me, is exhibit 59. This document has been tendered in English and Korean, but parts of it do not seem to have been translated. I note that above the Korean there is a total of 6 lines, which look as if it says something like 'Memorandum to/from/concerning', and provides some short explanation. There is also some handwriting on the document in Korean.

4. The document was tendered at transcript 1294 by Mr Park and Mr Evatt tells me, although I cannot find it in the transcript, that it was his understanding that he gave an undertaking to the court to call Mr Yun Jin Min. Mr Wheelhouse has put it to me that Mr Yun Jin Min is an expert bound by the rules in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, that he is only as good as the primary facts he was given and the like.

5. In my view, it would be wrong to regard Mr Yun Jin Min as being an expert or as being someone who is bound by the usual rules relating to experts in the way of a medico-legal or accounting-legal step for this reason. He is someone who was consulted by the plaintiff at the time. His status is similar to that of a treating doctor, and so, just as the court is concerned about viewing reports of treating doctors with flexibility by reason of the fact that they are not preparing them for the court, so too any documents prepared by Mr Min at the time would be viewed with the same degree of flexibility.

6. The relevance of Mr Min's report is considerable. This was somebody who was consulted at the time, and it may well be that he was someone who could have thrown real light onto what happened. I note, for example, that the translator translated this document on 14 May 2001, and that there is a handwritten note referring to this date as well. This report was clearly contemporaneous with the matters complained of, and as such, Mr Yun Jin Min was someone who had the opportunity to see these documents at the time and to prepare a report.

7. Exhibit WW is an affidavit of service, and I note in the transcript that Mr Evatt indicated in his statements to the court that this gentleman was subpoenaed last year and that there were problems about his attending. In a way, the witness's reluctance to attend - because I am informed that although he has been served with a subpoena, he is reluctant to attend - is something that needs to be seen against the context of this very long-running litigation in circumstances where the events in question started to occur ten years ago - as one of the witnesses reminded me from the witness box when you pointed out he was giving evidence on the tenth anniversary of the appointment of the plaintiff to this position - and the evils of delay in court cases, which McHugh J explained in the Brisbane South Hospital decision that is so often referred to in this court. Decisions relating to delay need also to be noted.

8. Nobody has taken me to any authority on the issue. I note that as it happens, I have looked at this matter previously in Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302, and in the interests of saving time, we will simply refer to my summary there of what is set out in Odgers on this issue. As I said in that case, the circumstances in which the court would issue a warrant to a witness for failing to attend would have to be extreme. I would need to be satisfied that all that could be done had been done, and one of the problems that I have is that, although when Mr Evatt opened his case in May of last year, he told me that this gentleman was a witness, it would now appear that he is no longer keen to give evidence.

9. WHEELHOUSE: Your Honour, could I just have a look at the affidavit of service for a moment? I'm sorry to interrupt your Honour's judgment.

10. The circumstances in which a warrant should be issued for a witness who is reluctant needs to be seen against the context of this litigation. It is regrettable that Mr Min is not available to give evidence. Contrary to what Mr Wheelhouse says, it seems to me that his evidence would have been highly relevant and germane. It would appear that whether he is a certified public accountant or not, he is probably the only person with any kind of accounting background who has ever looked at these documents. Knowing what documents he looked at and hearing his explanations of the documents which have been tendered would, in my view, have been of considerable assistance to me. However, I am not satisfied that I should issue a warrant. I have been provided with insufficient information by Mr Evatt for so doing.

11. WHEELHOUSE: Your Honour, can I return exhibit WW to you. In my respectful submission, that would not be sufficient to establish service for the issue of a warrant. I am sorry to interrupt your Honour's judgment, my learned friend didn't have a copy for me.

12. EVATT: I haven't even read it, what's wrong with it?

13. HER HONOUR: Yes, court reporter, just leave all those interruptions in.

14. For the reasons I have given, I am not satisfied that the plaintiff has made out a case for the issuing of a warrant.

Judgment

1. This is a lengthy and complex defamation trial. The evidence is now complete. Comprehensive submissions are required from the plaintiff in order to answer the many hundreds of pages of written submissions provided by the defendants.

2. The procedural history is as follows. The plaintiff sued for defamation concerning fourteen Korean newspaper publications in May 2002. A s 7A jury in 2004 took nearly four weeks to determine the imputations. There were unsuccessful appeals to the Court of Appeal (Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279) and High Court (Lee v Cha [2006] HCATrans 132) by the third defendant, who subsequently settled. The first defendant died after judgment was entered against him, and a seventh defendant was successful in the s 7A jury trial. Only two of the defendants now contest these proceedings, the plaintiff having obtained judgment against the fifth and sixth defendants.
3. When the matter was finally ready for a hearing date in 2007 the parties gave a hearing estimate of four weeks. There were then amendments to the defences, including substantial enlargement of particulars of justification (from 8 to 140 pages) before, during and after the 68-day hearing, which has been running since May 2007. There was a further delay caused by an unsuccessful application by one of the two remaining defendants to the Court of Appeal during the hearing: Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13.
4. Now that the evidence is finished and this long trial is at the submissions stage, the plaintiff tells the court he can no longer pay his lawyers. He has spent $175,000 this year alone on legal fees. He has endeavoured to borrow money without success. His new solicitors seek leave to file a Notice of Ceasing to Act. I understand that Mr Evatt, who has been counsel in the matter throughout the trial, will not appear without those solicitors.

5. Mr Ricky Lee (of Schweizer Kobras, who makes this application), came into the matter only for the last few weeks of the hearing this year. I have very great sympathy for the position of this hardworking and highly respected member of the profession.

6. The plaintiff has had the same barristers during the trial, namely, Mr Evatt and Mr Dibb. In May 2008 Ms Evans appeared for some weeks for the plaintiff, replacing Mr Dibb. Unfortunately not much progress was made during this time because Ms Evans, having come into the matter at very short notice, had to make a number of requests for adjournments. Mr Evatt came back into the matter and the hearing was able to be completed in two further periods of hearing in May 2008 and March to April 2009.

7. The current stage of the trial is important to this application. The evidence is over and I have made peremptory orders for the provision of written submissions by all parties. I made peremptory orders because of my concern about existing delays in the matter. This was not because the trial went beyond the original four weeks, or the 8-week cross-examination of the plaintiff, but because even what should be a straightforward request by a trial judge, namely for a chronology, was not something that could be supplied by the plaintiff until the beginning of this year. I express no criticism of the lawyers; it is an indication of just how difficult this case has become.

8. The defendants have complied with the orders I made for written submissions. Very comprehensive submissions of many hundreds of pages have been served. As judges do not have time out of court to prepare judgments, I took two weeks of my leave for the purpose of reading them, with the intention of writing a judgment that could be handed down no later than September of this year. The plaintiff must comply with the peremptory orders for submissions by 23 July 2009 and the matter is listed for directions on 24 July so that I can reserve in order to hard down judgment, although the defendants have indicated they will seek a right of reply and further oral submissions, as occurred in the Marsden defamation trial.

9. The plaintiff's solicitor yesterday sought to re-list the matter to seek leave to file a Notice of Ceasing to Act. I understand Mr Evatt also seeks leave to withdraw. Ms Evans is apparently willing to accept a direct access brief. Given her limited involvement in the trial and her statement to me this morning that she did not appreciate that she would be asked to do the submissions until today (and has not commenced any work), and she has obviously been busy in other matters since the trial ended, I am concerned about her ability to perform the enormous task of answering these hundreds of pages from the two defendants left in the case. I have already promised the solicitor who is appearing this morning for the remaining two defendants that the very strict timetable I imposed will be kept.

10. That is not to say that a plaintiff in a long running defamation case is always going to be in such a position of difficulty if funds run out. The same thing happened to Mr Marsden in the Marsden litigation. However, Mr Cha is not in the same position as Mr Marsden, who was a former president of the Law Society and a very experienced trial lawyer. There were periods when Mr Marsden did act for himself, as I understand it, during that lengthy defamation trial which, as I recall, included 212 interlocutory judgments, 12 of which went to the Court of Appeal and a further 3 to the High Court (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510). The written submissions in that case were supplemented by oral submissions lasting 17 days.
11. However, Mr Cha is a Korean motor mechanic with limited English, who can do very little to represent himself. Although I have put a number of questions to him this morning, in my view he does not appreciate the difficulty of the task that he has confidently said he is going to leave to Ms Evans. In fact he appears to have been under the misapprehension that Mr Evatt was going to remain in the matter as well.

12. The relevant rule concerning solicitors is Uniform Civil Procedure Rules 2005 (NSW), r 7.29, which provides that: "(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change: (a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or

(b) in any other case, at least 7 days before doing so. (3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor." 13. There having been insufficient time for this to occur, and by reason of the stage of the litigation, application is made for leave for the solicitor on the record to withdraw and I apprehend that Mr Evatt, although not formally seeking to withdraw from the case, is indicating he intends to withdraw as well.

14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.

20. Law is a profession; it is not just another business. Lawyers who accept instructions from their client owe duties not only to their client but to the court: A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55, and just as importantly, to their opponents. I am entitled to take into account, on an application such as this, the considerations of the due administration of the court, as Gzell J noted in Super 1000 Pty Ltd v Pacific General Securities Ltd at [11]. If hastily prepared and inadequate submissions are served, that puts me as the trial judge in an impossible position. Just as important as the inconvenience caused to me, if not more, is the prejudice caused to the defendants, and, again I note Gzell's J's concerns in Super 1000 Pty Ltd v Pacific General Securities Ltd, to the prejudice caused to other parties when applications of this sort are brought.
21. In addition there are important issues of public policy relating to the obligations that lawyers have. There has been great public concern over the past year about the high cost of lawyers and the disastrous impact this can have upon the provision of justice in our justice system. I can only repeat once again that my concerns do not relate to any personal conduct by Mr Lee. I appreciate the difficulties Mr Lee's firm has. They came into the matter very late. He has performed with the utmost diligence and he has very ably represented the plaintiff on all occasions.

22. It is not my intention, nor have I been asked, to extend the time for completion of written submission of the plaintiff. I appreciate there may be grounds for the exercise of some compassion and it may be that such an application is brought later, but there is no way that I am even going to consider any such request now, as I have already promised the solicitor appearing for the defendants that this will not occur today.

23. Having regard to the exceptional circumstances in which this application is made during the submissions stage, where there is a peremptory order for submissions and where half of the time for providing those submissions by the plaintiff has already expired, in a very long and complex defamation trial, I decline to grant leave to the solicitors for the plaintiff to withdraw. No other lawyers can come in to take this matter over, and if they did the prejudice to the defendants would be enormous. What would they do? Would they seek leave to re-open the case to adduce further evidence? The difficulties are unimaginable. Any further delay must be strictly monitored to ensure that there is no injustice to the defendants who have complied with the timetable.

24. What the lawyers must do if they remain on the record, consistent with their ethical obligations and their duties to their opponents and to the court, is a matter for them to determine, perhaps after consultation with the Law Society of New South Wales, the Office of the Legal Services Commissioner or the New South Wales Bar Association.

25. 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.
26. 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.
27. 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.

28. This application has caused me a great deal of anxiety, but it seems to me that, while I have the utmost compassion for Mr Lee's position, I cannot grant his request to file a Notice of Ceasing to Act.

Orders 29. Accordingly, I make orders as follows: (1) Application to seek leave to file notice of ceasing to act refused. (2) Liberty to apply. (3) Costs reserved. Annexure C - Constitution of the "Kor-Aus Supporting Committee for Sydney 2000 Olympic Games" (Exhibit 1) and Minutes of Monthly & Special Meetings from November 1999 (Exhibit 51)

Kor-Aus Supporting Committee for Sydney 2000 Olympic Games 7 Wairoa St. Canterbury NSW 2193 Tel (02) 9233 7767 Fax (02) 9233 7787

It is announced that Kor-Aus Supporting Committee for Sydney 2000 Olympic Games was lauched as below in 1 May 1998 in the general meeting of the promotional committee attended by representatives from various Korean organizations, in which the constitution was formulated and officials were elected.

• The meeting started with committee chairman Jae Sang Cha's address and honorary chairman Dong Suk Lee's encouragement speech, followed by quorum report and discussion on the agenda.

• As for deliberation and formulation of the constitution, the first agenda, its draft prepared by a 15-member standing sub-committee was adopted without any amendment through article-by-article discussion.

• As for election of officials pursuant to the constitution, the second agenda, Mr. Jae Kyung Lee and Mr. Jae Sang Cha, only candidates recommended, stated their political views before 34 voters including the president of Korean Society of Sydney cast their vote in the secret ballot, electing the latter, the incumbent president of Korean Sports Council of Australia, as Chairman of the Supporting Committee, and as auditors, Han Young Lee (accounting auditor) and Hak Ju Park (administrative auditor).

Dong Suk Lee (president of Korean Society of Sydney) Jong Sang Ahn (adviser & first president of Sports Council) Gi Sung Nam (vice president of Korean Welfare Service) Jae Kyung Lee (adviser & second president of Sports Council) Jung Hyung Park (secretary general of Korean Society) Byung Sil Kim (adviser and third president of Sports Council) Sin Young Im (president of Korean Veterans Association) Jong Sang Ha (adviser & forth [sic] president of Sports Council) Sang Gi Kim (adviser of the Advisory Council on Democratic & Peaceful Unification, Oceania) Yong Jae Lee (president of Korean Welfare Service in Australia) Nak Yoon Paek (president of Southeast Asia Wars Veterans Association) Jae Sang Cha (president of Korean Sports Council in Australia) Chang Yong Kim (president of Vietnam War Veterans Association) Ju Yong Lee (president of Asia-Pacific peace Foundation in Australian branch) Sung Chul Jang (president of Table Tennis Assoc.) Han Yong Lee (president of Korean Judo Assoc.) Hak Su Cho (president of Volleyball Assoc.) Sung Joo Sung (executive director of Baseball Assoc.) Hee Jung Sung (president of Bowling Assoc.) Yang Jae Kim (president of Korean Overseas Students Assoc.) Geum Woo Lee (president of Tennis Assoc.) Tae Hun Lee (president of Korean University Students Assoc.) Bae Jin Han (president of Golf Assoc.) Hyun Jung Choi (president of Korean Students Assoc of Sydney University) Hak Ju Park (president of Basketball Assoc.) Yun Ok Kim (president of Korean Students Assoc of UTS) Hyun In Ahn (president of Korean Students Assoc of Macquarie University) Hae Myung Jung (vice president of Sports Council) Gi Sung Hwang (executive director of Sports Council) Jin Choi (general affairs director of Sports Council) Hee Chul Kang (liaison director of Sports Council) Tae Heung Kim (vice president of Korean Veterans Association) Gwang Guk Na (director of Baseball Assoc.) Gwon Uk Jang (director of Baseball Assoc.)

Won Hong Seung (president of Korean Chamber in Commerce & Industry in Australia) Jung Gil Jo (president of Marine Corps War Veterans Association) Un Sun Baek (president of Korean Divers Assoc.) Dong Hyuk Kim (general affairs manager of Korean Vietnam Comrade Assoc.) Duk Sung Gong (president of Korean Body Builders Assoc.) Gi Duk Kim (ex-president of Korean Welfare Service)

Sin Young Im, Sang Gi Kim, Hae Myung Jung, Yong Jaw Lee, Hak Su Cho, Han Yong Lee, Jong Sang Ahn, Gi Sung Nam, Jung Hyung Park, Chang Yong Kim, Jin Choi, Won Hong Seung, Gi Duk Kim, Nak Yoon Paek, Jae Sang Cha

Constitution of Kor-Aust Supporting Committee for Sydney Olympic Games

Chapter 1 General provisions Article 1 (Title) The committee is named Kor-Aust Supporting Committee for Sydney 2000 Olympic Games.

Article 2 (Objectives of establishment) The objectives of the committee are to provide various assistance for Korean teams in cooperation with Korean Sports Council, and cooperate with Sydney Olympic Games Organizing Committee, playing a channeling role for the unity of the Korean community.

Article 3 (Location) The committee office is located in Sydney. Chapter 2 Membership Article 4 (Qualifications) (1) Those who have agreed to the objectives and joined membership through deliberations. (2) Those who have been recommended by every organization for diverse composition of the committee. (3) Replacing officials of each organization leads to automatic appointment of the new chairman.

Article 5 (Rights and obligations) Members are obligated to observe the constitution and abide by decisions made. Chapter 3 Organization and officials Article 6 The committee has officials and auditors as follows: (1) One chairman (2) Three vice chairman (3) Two auditors (4) No more than 20 executive directors including secretary general and directors for general affairs, finance, public relations and liaison.

Article 7 Duties Chairman - Representing the committee and taking overall charge of affairs on it. Vice chairmen - Assisting the chairman and acting as deputy for him in case of absence owing to unavoidable circumstances. One of them, appointed by the chairman, acts as his deputy, and if none of them nominated by the chairman, the senior takes the role. Auditors - Auditing matters on accounting and affairs of the committee and reporting the results to the general meeting. Secretary general - Taking charge of general office administration of the committee. Executive director - Taking charge of general affairs of the committee.

Article 8 (Term of officials) It expires upon the close of 2000 Olympic Games.

Article 9 (Election of officials) The chairman and the auditors are elected in the plenary session, while vice chairmen, secretary general and executive directors are appointed by the chairman for smooth execution of affairs.

Article 10 (Formation of a special committee) The committee, if required, is formed.

Chapter 4 Meeting Article 11 The general meeting is classified into a regular general meeting and an extraordinary general meeting. (1) The regular general meeting It is summoned by the chairman within one month after the finish of the financial year. (2) The extraordinary general meeting It can be convened, if considered necessary by the chairman, and may be called into session at the request of half of the members or more.

Article 12 (Summoning the general meeting) It may be notified seven days in advance.

Article 13 (Matters for resolution) (1) Constitution amendment (2) Election of chairman and auditors (3) Matters on establishment and operation of business plans (4) Budget approval and settlement (5) Other matters required in the general meeting

Article 14 (Quorum) (1) The meeting constitutes a quorum with the majority of the members. (2) Quorum (a) The chairman and auditors are elected with the majority of the votes. (b) Constitution may be amended with agreement of over two thirds of the members present. (c) Other matters may be resolved with the agreement of the majority of the members present. Chapter 5 Finance Article 15 The committee is financed with the following earnings: (1) Subsidy - Korean Athletic Association (2) Financial supports - public organizations (3) Contributions - fund-raising & donations (4) Business profits (5) Other earnings

The financial year is defined as from 1 Jan. to 31 Dec. of each year, while in the year the Olympics are held it expires one month after the close of the Par-Olympics.

• Supplementary provisions Article 1 Matters not specified in the constitution may conform to the custom.

Article 2 The constitution may take effect from the day it is passed in the general meeting.

8 May 1998 Hak Su Cho Acting Chairman for officials election

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