The plaintiff commenced proceedings for defamation for words allegedly spoken by the defendant in the Korean language with a Korean journalist, Mr Sang Jin Kwoun, on Wednesday 28 January 2015 and for Mr Kwoun's republication of those words to three friends at a lunch at another restaurant on 4 February 2015.
The background facts, as reported in the Korean media, were as follows. The plaintiff, a businessman, managed a Korean/Australian baseball team and travelled with them to China for a match several times in 2014. He arranged for a baseball team from Guangzhou to come to Australia for a match in late December 2014, but remained in Australia himself. It is not in dispute that, as the news reports set out below confirm, members of that baseball team were detained at Guangzhou Airport on 30 December 2014 after a significant quantity of illicit drugs was found in some team members' luggage. This was widely reported in the overseas media and by SBS but not by Korean news organisations in Australia. The plaintiff, who was not connected with any of these criminal activities, made a statement to the Australian Federal Police with the assistance of a solicitor (Mr Chong) who was also a baseball contact of his.
Although the plaintiff says he spoke about these events only to Mr Chong, it is apparent from the evidence that other members of the Korean community who saw the Korean language internet reports of the arrests associated the plaintiff with these events. One was the plaintiff's accountant, Mr Moon, who telephoned the plaintiff early in January because he was "concerned" about whether the plaintiff was one of those arrested or involved, to which the plaintiff replied that he was not involved (T 42).
Others who discussed these events included the three full-time journalists who worked for a Sydney-based Korean language newspaper, Hoju Dong A (T 9). Mr Kwoun, the person to whom the matter complained of was allegedly published by the defendant, was one of these three journalists.
The subject of the baseball team arrests also came up at Mr Kwoun's regular Wednesday lunches with three fellow members of the Korean community who had all attended the same university in Korea. One of these three was Mr Moon (the accountant referred to above). When they had their weekly lunch (on the date I am satisfied it occurred, namely Wednesday 28 January 2015), the ongoing story in the Korean newspapers about these arrests was one of the topics of conversation. Mr Kwoun told the court:
"I don't think it was me who brought it up first. One of the three I believe could have said that Korean Australians may have been involved in the incident that had the Koreans arrested on suspicion of drugs. And in the process the name of Mr Ick Hee Gim was mentioned. The reason for that was the three of - the four of us knew Mr Ick Hee Gim and were also aware that Ick Hee Gim was a baseball player himself. So we went on to talk about the possibility of Mr Ick Hee Gim being involved in the incident." (T 11)
All four of these persons knew the plaintiff and knew of his involvement in baseball, which was why they were discussing his potential involvement in what was clearly a significant and developing story, as the 14 or so persons arrested were, according to the reports set out below, still in jail, and three Koreans had recently been executed for drug offences in China.
As already noted, Mr Moon had been sufficiently concerned, after reading about these events, to contact the plaintiff by telephone early in January 2015 to see if he was involved in these arrests, and had been assured that this was not the case. Whether Mr Moon volunteered this information to Mr Kwoun or to his fellow diners at the 28 January 2015 lunch when these arrests were being discussed has not been the subject of evidence, but he certainly took that view at their lunch the following week, when the topic came up again..
This brings me to one of the problems with the plaintiff's version of the chronology of events in this litigation. Mr Kwoun could not have been having lunch at the defendant's restaurant on 28 January 2015 (the date given in the statement of claim as the date when the matter complained of was published) if that was the day he was having his regular Wednesday lunch with his friends at another restaurant.
The revised date given by Mr Rollinson (in closing submissions) for the lunch at which the defendant allegedly published the matter complained of is now either 29 or 30 January 2015 (most probably the latter) either at or shortly after taking Mr Kwoun's lunch order of sashimi don (T 99, 111). What is asserted to have been said by the defendant (there being several versions of this conversation) is set out below.
Mr Kwoun had his next Wednesday lunch with his three other friends on the following Wednesday, 4 February 2015, which was five days later. In the course of this lunch, Mr Kwoun claims he told his friends (who again included Mr Moon) "that according to an owner of a restaurant in Eastwood that it is true that Mr Ick Hee Gim was one of those involved in the drug arrest" (T 14).
This upset Mr Moon and resulted in "an argument" (T 14). Mr Kwoun told the court that:
"[S]ome people said "Yes" and the others "No". Then Mr Jinwook Moon made the suggestion that we call Mr Ick Hee Gim directly just to confirm what was true, the words that I had said. Then straight after he said it, Mr Jinwook Moon made a call to Mr Gim on the spot and he got him to confirm that. Then Jinwook, Mr Jinwook Moon reported to us a[ll], after the phone call, saying he denied it."
Mr Moon was not called to give evidence, and neither were any of the other persons present at these two lunches.
The plaintiff gave evidence of a telephone call and a visit from Mr Moon in which the arrests were discussed, the first being because of Mr Moon's concern and the second being because of Mr Kwoun's statements. The plaintiff's evidence on these issues was confused, in that he appeared to conflate his early January telephone call with a visit Mr Moon made to his office on 6 February 2015 (T 48 - 49), but he was certain about one issue, namely that no mention whatsoever was made of the defendant:
"Q. What did he say to you?
A. INTERPRETER: After he dealt with my business Moon told me that he can't understand why Mr Sunjin Kwoun is saying that Mr Ick Hee Gim is involved in the drug case as one of the Australians.
Q. The way it was conveyed to you is that Mr Kwoun was saying that you were involved in the drug case?
A. WITNESS: Yeah.
A. INTERPRETER: Yes.
Q. There was no mention, was there, by Mr Moon of anything that had been said by Mr Byeon?
A. WITNESS: Yeah.
A. INTERPRETER: Correct.
Q. The information that you were told on 6 February was Mr Kwoun was stating that you were involved in the drug case?
A. WITNESS: Yeah.
A. INTERPRETER: Yes."
It is not in dispute that the plaintiff and defendant barely knew each other. The plaintiff had only been to the defendant's restaurant once or twice and knew nothing more about him than his surname (T 49). The defendant knew the plaintiff was involved in baseball but did not know his name until prompted by Mr Kwoun.
The defendant's name only came up when the plaintiff rang Mr Kwoun on about 6 February 2015. The plaintiff described this conversation as follows:
"[T]wo or three days later I rang Sunjin Kwoun and asked him, "Why you talk about - why are you saying those things? Have you got any evidence? On what basis are you - what convinced you that you could say such serious things, serious allegations about me recklessly?" He then replied saying that "I'm only talking about all these things because I had heard from Mr Byeon, the owner of the Torin Restaurant." See, it's just that I didn't know Mr Byeon personally and I was not his friend either and then it wasn't something that I could bring it up with him, I decided to contact the Australian Federal Police." (T 50)
An Australian Federal Police officer did contact the defendant, who said that he did not know the plaintiff, but that he had read about the baseball team arrests on the internet.
The plaintiff then instructed his solicitors to send a concerns notice to Mr Kwoun, seeking an apology, the sum of $355,000 in damages, and his resignation from his position as a journalist. Mr Kwoun provided a statement setting out that the defendant, and not Mr Kwoun, had been the origin of these allegations. The plaintiff then sent a concerns notice to the defendant and when that was not complied with, commenced these proceedings.
[2]
The issues
The defendant denies speaking the words complained of, and the usual defences are not pleaded. The issues are:
1. Whether the defendant published the matter complained of to Mr Kwoun;
2. Whether the matter complained of, either in its natural and ordinary meaning or by reason of extrinsic facts, conveyed the imputations pleaded;
3. Whether the defendant is liable for an asserted republication of the matter complained of by Mr Kwoun to four friends with whom he had lunch about five days later;
4. Damages; and
5. The credit of Mr Kwoun and of the defendant.
[3]
The matter complained of
The contents of what was said by Mr Kwoun have been set out in a statement he made on 12 June 2015 (Exhibit 2), in the statement of claim and in evidence in this court. As the statement is the first in time, I shall start by setting out its contents.
The relevant conversation is set out in Exhibit 2:
"Defendant: There is a baseball team involved with a drug smuggling incident. How come the Korean community media is not reporting in [sic] the news? That baseball team is the Korean baseball team in Australia. Who is the person got involved? Who is the person?
Kwoun: You mean Ick Hee Gim, perhaps?
Defendant: Yes, that is right.
Me: Are you sure? Are you sure?
Defendant: Yes I am sure." (Paragraph 4 of Exhibit 2)
The statement goes on to note that both parties understood that the plaintiff was "a part of the baseball team" (paragraph 5).
The content of the conversation between the defendant and Mr Kwoun in the statement of claim was as follows:
"[Translation of a dialogue in Korean]
Jong Yoon Byeon: I know that there is a drug case of the baseball club, but why don't the Korean community media in Australia release anything?
The baseball club is the Korean baseball club in Australia.
Who did they say he/she was (I can't remember…)?
Sang Jin Kwoun: Isn't he/she Ick Hee Gim, perhaps?
Jong Yoon Byeon: That's right.
Sang Jin Kwoun: Are you sure? Are you sure?
Jong Yoon Byeon: I am sure." (A2 to statement of claim)
In his evidence at T 12 - 13 Mr Kwoun described the conversation rather differently:
"Q. Doing the best you can, what was the conversation - who started the conversation?
A. INTERPRETER: It was Mr Byeon who started the conversation who brought up the issue of the, the news of the baseball club arrested in China.
Q. Do you remember - sorry, had you finished your answer? I cut you off there.
A. INTERPRETER: So would you like me to continue?
Q. I'll put a question now. What did Mr Byeon say about the baseball? The baseball matter you mentioned.
A. INTERPRETER: He said to me that the incident was a major one. Why isn't your Australian, Korean‑Australian media not covering it? Well, I replied to him saying that, well, it happened a long time ago and it was already covered by the major Korean media outlets so why would it be necessary for us to cover it here?
Q. Did Mr Byeon reply to that?
A. INTERPRETER: Then, Mr Byeon told me that, well, those who were involved in the drug arrest, the, arrested over the drug, turned out to be the Korean‑Australians. Then he tried to recall a name.
OBJECTION
…
Q. You said a moment ago that Mr Byeon said that Mr Byeon made reference to Korean‑Australians.
A. INTERPRETER: Yes.
Q. What was the next thing he said?
A. INTERPRETER: He said "Who was it? Who was it?" while he was trying to recall the name so he tried a few times. So I asked him "You think it could have been Mr Ick Hee Gim?". He then replied "Yes". And I asked him "Okay, you sure?" he said "I'm positive". And I asked him again "Are you really sure?" he said "Yes, definitely".
Q. Anything else said?
A. INTERPRETER: Apart from that, I can't really recall anything else because I just went on to finish my lunch and then left."
Mr Kwoun says that, in a lunch he had with three friends on 4 February 2015, he repeated the gist of this conversation, namely:
"Q. Did you say to anybody else what Mr Jong Yoon Byeon had said to you?
A. INTERPRETER: Well, the following Wednesday, when I met with my friends who went to the same university we organised to have lunch together. I told them about what Mr Byeon said to me." (T 13)
The defendant's version of the conversation is set out below.
[4]
The pleadings in relation to publication and republication and the imputations
The plaintiff pleads (paragraph 3 of the amended statement of claim) that, in the context of the words spoken by Mr Kwoun, in their natural and ordinary meaning to persons able to understand the Korean language, the defendant conveyed the following imputations of and concerning the plaintiff:
"(a) The Plaintiff was a party to a criminal offence involving illegal drugs.
(b) The Plaintiff was a party to a criminal offence involving illegal drugs and the Korean-Australian baseball club in Australia." (Statement of claim paragraph 3)
Alternatively, or in addition, the plaintiff pleads that, in the context of Mr Kwoun's words, and by reason of the extrinsic facts set out below, the defendant conveyed the following imputations of and concerning the plaintiff:
"(a) The Plaintiff was a party to a criminal attempt to smuggle illegal drugs from China to himself in Australia.
(b) The Plaintiff was a party to a criminal attempt to smuggle illegal drugs from China to some person or persons in Australia." (Statement of claim paragraph 4)
The extrinsic facts pleaded are as follows:
"(a) At all material times the Plaintiff has been the manager of Sydney Twins Baseball Club, Inc., a Korean-Australian baseball team.
(b) In or about February 2014 and in or about September 2014, the Plaintiff and the team toured the People's Republic of China.
(c) In or about May 2014 it was arranged that a Chinese baseball team should tour Australia.
(d) On or about 27 or 28 December 2014, the Chinese baseball team was prevented by law enforcement authorities from departing Guangzhou International Airport on its flight to Australia, on the ground that illegal drugs had allegedly been detected in luggage which was to accompany the team to Australia.
(e) It was alleged that this had been an attempt to smuggle the drugs to some unidentified person or persons in Australia.
(f) Facts (d) and (e) were reported in the news media in Korea shortly afterwards.
(g) Those reports had become widely known among persons of Korean origin in Australia before 28 January 2015, including the Defendant and Kwoun.
Persons by whom extrinsic facts known
Sang Jin Kwoun of Suite 2, Level 1, 570 Blaxland Road, Eastwood.
Particulars of reports in news media in Korea
(h) Report dated 31 December 2014 on YTN website under heading (translated) "14 Koreans arrested for drug possession in China".
(i) Report dated 30 December 2014 on SBS News website under heading (translated) "14 Koreans arrested altogether in China with charge of 'suspicious drug smuggling'".
(j) Report dated 30 December 2014 on MBC News desk website under heading (translated) "14 Koreans under detention, for drug transportation charge in China … appealing not guilty".
(k) Report dated 31 December 2014 on Jtbc website under heading (translated) "Baseball society received bags thoughtlessly … ending up drug transportation crime"." (Statement of claim paragraph 4)
The plaintiff further pleads that it was the natural and probable consequence of the defendant's publication that Mr Kwoun, a journalist, would republish the substance of the matter to third parties, which in fact occurred. That republication was made by Mr Kwoun to Mr John Jin Wook Moon and Mr Wonkyo Seo, who are persons able to understand the Korean language, in that he told each of these persons on that date:
"Ick Hee Gim is the person who is involved with drug smugglers on the Australian side in relation to the drug smuggling incident at Guangzhou International Airport." (Statement of claim paragraph 5)
I note that the fourth person Mr Kwoun said was at this lunch is not referred to in the Statement of Claim and not identified in the concerns notice other than as a "businessman".
I shall first set out the online reports of the arrests which the parties agree triggered the conversation between the defendant and Mr Kwoun. The issue is whether the defendant spoke the words Mr Kwoun attributed to him, or whether the defendant spoke the words to Mr Kwoun which he claims to have spoken.
[5]
Korean Baseball Club members are arrested in China
The plaintiff tendered a series of reports, all of them in the Korean language, concerning the arrest of 14 Korean baseball players at Guangzhou Airport in China on 28 December 2014 for drug possession. These reports, the tender of which was restricted to the fact of there being reports, were as follows:
1. A report on News Home International YTN which noted that Koreans in China who were members of a baseball club were arrested when their travel bags were found to contain more than 30kg of methamphetamine. The report stated that "it was known before the event, a Korean living in Australia had contacted them in China and invited them into Australia and asked them to bring the person's luggage by dividing it".
2. A report on the Korean news program on SBS News, the headline of which was "14 Koreans arrested altogether in China with charge of "suspicious drug smuggling"". This report states that 22 members of a Korean Baseball Society were "urgently arrested at Guangzhou Airport China with suspicion of drug transportation". It was reported that they were arrested when they got onto the plane in Australia and that they "intended to join the goodwill match in Australia". The report goes on to say:
"It was revealed that a Korean living in Australia, who had been close to them at usual time [sic] distributed the drugs to the members of the Baseball Society at the local site of Guangzhou. It is said that the Korean handed down the clothes bags that contained drugs to them, asking them to bring the luggage, with reward for free accommodation when they arrived in Australia."
1. MB News Desk on 30 December 2014 published a broadcast entitled "14 Koreans under detention for drug transportation charge in China … appearing not guilty [sic]". This broadcast provided slightly different information about the baseball players, stating they were Koreans but "residents in China and members of a Baseball Society in China". It went on to state that "they were invited by a Korean Australian with whom they had been interacting", and that they were about to leave Australia to participate in a goodwill match.
2. The report went on to quote a colleague of one of the arrested Koreans as follows:
"It is said that a Korean is running a big business in Australia. That person wanted to play baseball, he/she likes, and invited us this year."
1. The report concludes by noting that those who had been arrested intended to rely on a defence that the Korean Australian who had invited them had asked them to bring his luggage with them "saying that his luggage was big".
2. A report by JTBC headed "Baseball Society received bags thoughtlessly - … ending up drug transportation crime" again states that the Koreans who were arrested "said that they were invited by an Australian Korean baseball team, and were travelling for the goodwill match, and were asked to bring luggage of the person who invited them". It states that they were pleading not guilty and that they were "not doubtful about the luggage because they had also been in Australia in April last year". This report went on to state that there had been a similar request made of them when they had toured Australia in April of the previous year and at that time there had been "no problem with immigration". It was because of this prior trip that they accepted the bags.
The defendant referred to another news site, Bada, an internet site providing news and drama in the Korean language. Precisely which of the items in Exhibit B (if any) the defendant saw on this internet site is unclear. He described the report he saw as follows:
"Q. Did you see something about something‑‑
A. Yes.
Q. What was that as you recall it?
A. I seen the baseball team come to Australia and then they been to - arrested by the drug relate.
Q. Where did that happen as you recall it?
A. Just China.
Q. Was there something in particular that made you think about that? Was there some connection that you thought well that's interesting? What interested you?
A. Because the, because the word using Australia, that makes interesting.
Q. Because you're an Australian and a Korean, it was the connection of the two that‑‑
A. That's right yeah.
Q. Sometime in late January, do you recall‑‑
HER HONOUR: Just before you get there, can you perhaps ask this gentleman if he's got any specific interest in baseball or knowledge about it?
YOUNG
Q. Do you actually have any particular interest in the sport of baseball?
A. No.
HER HONOUR
Q. What about sport generally?
A. I more like rugby, just cricket." (T 97.47-98.29)
It was common ground between the parties that, while these events had been broadcast on Korean television and internet networks, as well as by SBS, none of the Korean newspapers, including the Korean newspaper which employed Mr Kwoun, had published any reports of these events.
The nature of the newspaper for which Mr Kwoun worked should briefly be noted. Mr Kwoun said that the newspaper for which he worked was a free newspaper distributed at Korean groceries and similar locations. It is one of several similar such publications.
[6]
The evidence of Mr Kwoun
Mr Kwoun provided a statement on 12 June 2015 which is Exhibit A. He says that he went to Torin Japanese Restaurant in Eastwood by himself for lunch at or about 1.00pm, and that he was "a regular customer". He was attending the restaurant in his personal capacity and not to carry out any newspaper reporting enquiries. The defendant greeted him and came to the table where Mr Kwoun was eating.
Mr Kwoun was aware at the time of this conversation that the plaintiff was what he called "a part of the baseball team" and said that to the best of his knowledge, the defendant also understood this to be the case.
Mr Kwoun said that he knew the defendant "in my capacity as a reporter":
"A. INTERPRETER: Well I was in the habit of browsing the articles or the news that would appear in major newspapers and broadcasting companies pretty much on a daily basis because I was a reporter.
Q. You're referring to newspapers and broadcasting companies in Korea, am I correct?
A. WITNESS: Yeah.
A. INTERPRETER: That's right.
Q. The material that you viewed was in Korean, correct?
A. INTERPRETER: That's right." (T 7 lines 31-41)
Mr Kwoun had logged into a news portal called Naver in the last few days of 2014, just before New Year (although he later, wrongly, corrected this to "somewhere in early or middle of December 2014" (T 8)), when he read an article about "a group of Korean baseball players arrested at a Chinese international airport on suspicion of possession of drugs" (T 8). In fact the arrests occurred on or about 30 December 2014.
Mr Kwoun noted that the report said that the baseball club was about to leave for Australia at an international airport in China. He had a discussion with the other full-time reporters who worked for the same newspaper (T 9) and, as is already noted above, these events were discussed at that lunch.
Mr Kwoun's lunch in the defendant's restaurant was a mere two days later. The conversation went for "just over five minutes." As is noted above, he said that the defendant started the conversation and wanted to know why the Australian Korean media were not covering this "major" story:
"A. INTERPRETER: He said to me that the incident was a major one. Why isn't your Australian, Korean‑Australian media not covering it? Well, I replied to him saying that, well, it happened a long time ago and it was already covered by the major Korean media outlets so why would it be necessary for us to cover it here?
Q. Did Mr Byeon reply to that?
A. INTERPRETER: Then, Mr Byeon told me that, well, those who were involved in the drug arrest, the, arrested over the drug, turned out to be the Korean‑Australians. Then he tried to recall a name." (T12.32-13.3)
He described the giving of this name as follows:
"Q. You said a moment ago that Mr Byeon said that Mr Byeon made reference to Korean‑Australians.
A. INTERPRETER: Yes.
Q. What was the next thing he said?
A. INTERPRETER: He said "Who was it? Who was it?" while he was trying to recall the name so he tried a few times. So I asked him "You think it could have been Mr Ick Hee Gim?". He then replied "Yes". And I asked him "Okay, you sure?" he said "I'm positive". And I asked him again "Are you really sure?" he said "Yes, definitely".
In cross-examination, Mr Kwoun conceded that he had said he remembered details of the conversation only "vaguely", and that this was a fair description of this conversation with his friends on a later date:
"Q. You've given evidence about three conversations, the middle one of which is a conversation that took place at the Torin Restaurant.
A. INTERPRETER: Yes, that's right.
Q. In relation to that conversation, that is, a conversation that took place around about late January 2015 you said you remembered the details of that conversation vaguely.
A. INTERPRETER: Yes.
Q. Is that also a fair description of your memory of the other two conversations, those conversations involving your friends who you met on a regular basis?
A. INTERPRETER: Yes.
Q. It is fair to say that you do not have a very good recollection of any of those conversations?
A. INTERPRETER: Well, the crux of the matter I remember very clearly.
Q. You did say that in relation to the conversation at the Torin Restaurant that you only remembered it vaguely?
A. INTERPRETER: But I do remember very clearly the key points that related to Mr Ick Hee Gim." (T 16 - 17)
Mr Kwoun described the first of the three conversations he had concerning these allegations as occurring as follows:
"Q. Now can you recall what the conversation was that brought up this subject of the baseball club and the arrest at Guangzhou?
A. INTERPRETER: Yeah one of - one of the four of us I think brought up the topic.
Q. How was it brought up? How did the conversation turn to this subject?
A. INTERPRETER: I don't really recall exactly who brought it up but somebody brought up the - brought up the subject about which we started talking about amongst ourselves.
Q. What was said about the plaintiff Mr Gim?
A. INTERPRETER: Well, when the - the incident of the Korean baseball club being arrested was brought up and someone said, "Well Mr Ick Hee Gim likes baseball" and then the conversation went on to touch on the possibility of him being involved in it.
Q. Him being arrested?
A. INTERPRETER: No, not him being arrested no just got involved in it.
Q. Because he likes baseball?
A. INTERPRETER: Yes.
Q. Baseball is one of the most popular sports in Korea is it not?
A. INTERPRETER: That's correct.
Q. Korean/Australians play baseball a lot.
A. INTERPRETER: No, I think although it's very popular in Korea it's not that popular in Australia.
Q. The suggestion of baseballers being arrested at Guangzhou airport brought up the name of Mr Gim as you recall it?
A. INTERPRETER: Well yes that's what happened.
Q. As a journalist didn't you feel the need to enquire as to why they were mentioning the name of Mr Gim as a person who could be involved in this?
A. INTERPRETER: I didn't have any particular intention to report on that incident. And then there was no clear information that Mr Ick Hee Gim was involved in it." (T 18 - 19)
Mr Kwoun went on to agree that by the time he went to the defendant's restaurant towards the end of January he had firmly in his mind the idea that the plaintiff's name had been mentioned in relation to the arrest at Guangzhou Airport (T 19 line 35). This is only one of the reasons why his sudden claim, in the middle of cross-examination, that he made a second visit to the defendant's restaurant to check what he had heard from the defendant seems surprising:
"Q. Between the time that he brought the water and the time that he brought the meal you were waiting for your meal?
A. INTERPRETER: Yeah.
Q. He came over to your table and started a conversation.
A. INTERPRETER: Yes.
Q. He said to you that he had read about drug related arrests in China in Bada.
A. INTERPRETER: In sorry?
Q. In Bada.
A. INTERPRETER: No he didn't mention Bada. I actually went back to the restaurant the following week directly to check if that was the case. Oh, just to check where he had obtained that information. I think it was then that he mentioned Bada to me in relation--
Q. Are you saying you had a second conversation with Mr Byeon?
A. INTERPRETER: Yes that's right. I made the second - I made - I paid the second visit just to confirm the detail.
Q. I'm sorry you've just given evidence at length in relation to this matter and you said that you had a conversation with Mr Byeon on 28 January and then about a week later you had a conversation with some friends. When do you say this second conversation took place with Mr Byeon?
A. INTERPRETER: Sir I'm sorry I can't remember exactly when that conversation occurred, whether it was before or after the conversation I had with my friends." (T 20 - 21; emphasis added)
It was put to Mr Kwoun that this second visit had never been mentioned before, and any and all conversations he had both with the defendant in late January and his subsequent meal with his friends should be firmly in his mind because he received a concerns notice from the solicitors for the plaintiff shortly afterwards. He repeated that he had gone back to see Mr Byeon a second time to ask for more details:
"Q. Yet do you say you can't say whether this second conversation that you're telling us about with Mr Byeon happened before or after that conversation?
A. INTERPRETER: Yeah I really can't remember the exact time when that took place.
Q. Why did you go back to Mr Byeon and ask him more questions about what was a very short conversation that took place in late January as you waited for your lunch?
A. INTERPRETER: Well it dawned on me later that why didn't I ask him more questions about it as a reporter?
Q. Why didn't you?
A. INTERPRETER: Well in hindsight yes I have to - I asked myself the same question, why didn't I ask him on the spot? But had I intended to write an article about it I would have asked him the questions." (T 21 - 22)
This was only one of a series of inconsistencies in Mr Kwoun's evidence. Mr Young asked:
"He said to you that as he understood it a baseball team was coming to Australia?
A. INTERPRETER: Yeah they were about to depart for Australia, the baseball team.
Q. He asked you if you knew anything about it?
A. INTERPRETER: You mean Mr Byeon asked me?
Q. Mr Byeon said to you these words or words to this effect "Do you, Mr Kwoun know anything about it?
A. INTERPRETER: Yes I told him that yes I am aware of it.
Q. You then said "Do you know Gim Ick Hee, doesn't he manage a baseball team in Sydney"?
A. INTERPRETER: You mean me ask him that question?
Q. You said to Mr Byeon "Do you know Gim Ick Hee, doesn't he manage a baseball team in Sydney"?
A. INTERPRETER: I don't remember that.
Q. Might you have said that?
A. INTERPRETER: No.
Q. Mr Byeon said "I don't know him"?
A. INTERPRETER: I don't remember that either.
Q. You said "He's from Gyeongsang Province and runs a business in Campsie"?
A. INTERPRETER: I might have said that.
Q. That was so he could perhaps place in his mind who Mr Gim was because he had just said that he didn't know him?
INTERPRETER: Would you mind just repeating yourself?
YOUNG
Q. I'll withdraw that question. The issue of where people come from, which province they come from, in Korea is an important identifying characteristic isn't it?
A. INTERPRETER: That's correct.
Q. A bit like the Irish if you don't feel too insulted?
A. INTERPRETER: I would say so.
Q. You are from this province or that province is an important matter in saying something about people so that you might be able to identify them because if you say Mr Gim from this province it might identify it in your mind which Mr Gim you're talking about?
A. INTERPRETER: It helps yes.
Q. I'd suggest to you that you said on that day that he is from Gyeongsang Province and runs a business in Campsie?
A. INTERPRETER: I might have said that.
Q. Mr Byeon said "There was a man who came to my restaurant a few times; he mentioned that he took his baseball team to China"?
A. INTERPRETER: I don't remember hearing that.
Q. You said just conversationally "He should be okay I guess"?
INTERPRETER: He should be okay?
YOUNG
Q. "He should be okay I guess"?
A. WITNESS: I don't understand.
Q. You're just talking about this Mr Gim Ick Hee who you'd mentioned and you were just saying "He should be okay I guess", in other words "I don't think he's going to be in any real trouble"?
A. INTERPRETER: I don't remember that.
Q. Mr Byeon said something non-committal like "I suppose" or "I hope so" or something like that?
A. INTERPRETER: Really." (T 22 - 23)
Mr Young put to Mr Kwoun that the conversation set out in the transcript extract above was "the sum total of the conversation which happened" (T 23) and Mr Kwoun agreed:
"Q. Is the total, the complete conversation that happened?
A. INTERPRETER: Yeah I only remember part of it but the other part I can't really remember at all.
Q. Which part do you say that you remember?
A. INTERPRETER: Well as you just said I might have said that yes he's from Gyeongsang Province and he runs a business in Campsie. The rest I can't remember.
Q. I suggest to you that he never said anything to indicate that he thought it was Mr Gim who was involved in some way?
A. INTERPRETER: Well that completely contradicts my memory.
Q. What do you say the specific conversation was about Mr Gim?
A. INTERPRETER: See as I told you earlier when Mr Byeon tried hard to recall I suggested to him that "Could it be Mr Ick Hee Gim", he said "Yes" and I checked with him twice if that's the case, and he said "Definitely, that's what I told you". That I remember clearly.
Q. What do you say that he said that when you say he was trying to recall, what did he say that he was trying to recall?
A. INTERPRETER: After he said it is, it is true that it was the Australian Korean baseball team, then he asked ‑ kept asking himself, what was it? What was it? Well, I'm not really sure whether he was trying to recall the name of the baseball team or the name of a person who was involved, and then I suggested ‑ I, I proposed the name of Ick Hee Gim.
Q. Yes, and what do you say he said?
A. INTERPRETER: He said, "Yes, it is him."
Q. I suggest to you that that just did not happen.
A. INTERPRETER: That's what I clearly remember.
Q. Isn't this the case, that Mr Byeon told you quite clearly in that conversation that he did not know Ick Hee Gim?
A. INTERPRETER: I don't remember that.
Q. Isn't the reason why you mentioned the province and also that he ran a business in Campsie so that, having said he didn't know him, he might think about the person who you were mentioning?
A. INTERPRETER: Well, that conversation could have ensued as we were trying to identify who Mr Ick Hee Gim was, as I tried ‑ in my recollection.
Q. Did he ask, as you recall it, who the media had said was involved? Did he say something like, "Who did they say he was?"
A. INTERPRETER: No, I don't think he asked that question." (T 23 - 24)
Mr Young put to Mr Kwoun that the media had not named any person in Australia at that point, or indeed at any point, to which Mr Kwoun agrees (T 24). He also put to him that if Mr Kwoun, as a journalist, received confirmation of information he was already given by someone else, he would ask that second person how he knew this information to be correct (T 24 - 25):
"Q. You accept that prior to going to the Torin Restaurant other people had said to you that Mr Kim was involved?
A. INTERPRETER: No, it is not that he was involved but that he may have been involved, or maybe not.
Q. Maybe, let's just go with the maybe, he may be involved. A second person was telling you ‑ according to you ‑ that he was involved.
A. WITNESS: Yeah.
Q. As a journalist, is not the first thing you do say, how do you know this?
A. INTERPRETER: Yes. See, even myself wonder why I didn't ‑ why, why I didn't ask that question back then.
Q. But you felt so confident about the correctness of the information you say that you had been given that around about a week later at a restaurant you told people that Mr Kim was involved.
A. INTERPRETER: Well, I didn't, I didn't say the report was accurate, but I simply conveyed what Mr Byeon had told me about it.
Q. What did you say?
A. INTERPRETER: Well, I told them that an owner of a restaurant in Eastwood had told me that definitely Mr Ick Hee Gim was involved the baseball team incident.
Q. Did you say words to this effect, "Ick Hee Gim is the person who is involved with drug smugglers on the Australian side in relation to the drug smuggling incident at Guangzhou International Airport"?
A. INTERPRETER: What ‑ well, what Mr Byeon told me about the incident pretty much coincides with that version, yes.
Q. Mr Byeon didn't say that he was the person involved with drug smugglers on the Australian side in relation to the drug smuggling incident at Guangzhou International Airport, did he?
A. INTERPRETER: Although he didn't specifically mention that, but he told me that it is definitely Mr Ick Hee Gim who was involved." (T 25)
At T 27 Mr Kwoun was asked about this newly mentioned second meeting with the defendant when Mr Kwoun said he went back to the restaurant to check some details with him:
"Q. What was the purpose of you going back there?
A. INTERPRETER: Well, in my opinion I think back then I felt the need to ask him about the source of the information he had passed onto me, that is, where he'd heard it or where he saw it so I think I was curious about it.
Q. You had a second conversation, you say. Was that at the restaurant?
A. INTERPRETER: Yes.
Q. This was not for your own curiosity; this was for a journalistic purpose? This was for the purpose of journalism, maybe writing a story?
A. INTERPRETER: No, it wasn't with the intention of writing a story but I was curious as a journalist.
Q. Possibly writing a story?
A. INTERPRETER: Well, if I had the intention of writing a story I would have asked him in the first instance.
Q. Isn't what you said that you said to yourself - you almost kicked yourself and said, "Why didn't I ask him about what the source of his information was?"
A. INTERPRETER: I would agree with you, yes, to an extent.
Q. When you went back there it was at least a possibility that you were going to be writing a story as a result of what he told you?
A. INTERPRETER: No, I don't think I had the intention of writing a story even then.
Q. Did you take a notebook or a tape recorder with you?
A. WITNESS: No.
A. INTERPRETER: No.
Q. What do you say was the conversation you had with Mr Byeon on this second occasion?
A. INTERPRETER: I think I asked him, "Where you had heard the information you told me about the other day?"
Q. Yes.
A. INTERPRETER: Then in reply I think Mr Byeon told me that he had seen the story somewhere called "Bada Sori" on the Internet. (T 27 - 28)
Mr Kwoun agreed that he had not carried out any searches on Google or any Korean site to see if the plaintiff's name had been mentioned on any site anywhere in the world in relation to this incident (T 28), although, according to Mr Kwoun, Mr Byeon told him he had read about this:
"Q. You go back there, is this right, you go back to see Mr Byeon, he tells you he's read about the source of his information about Mr Gim; is that right? You understood he was saying about his source of information about Mr Gim or something called "Bada"?
A. INTERPRETER: Yes.
Q. You don't find out what "Bada" is?
A. INTERPRETER: I think I went on to check on Naver what "Bada" was but since there was nothing really particular that was all." (T 29)
It was put to Mr Kwoun that this alleged second meeting "just didn't happen" (T 29), but he denied this.
It was never identified if this unexpected second visit to the defendant's restaurant was to have lunch or whether Mr Kwoun just walked in to the restaurant and started to talk to the defendant.
The third (or possibly fourth) lunch Mr Kwoun had, like the first lunch, involved a meeting with his own friends and colleagues. He agreed that he had regular lunches with his friends every Wednesday at 1.00pm. They all came from the same province, Gyeongsang Province, and had all attended the same university although they were different ages. During this lunch, which I note from the plaintiff's solicitor's letter of 27 March 2015 described as occurring on or about 4 February 2015, the topic of the plaintiff's possible involvement in the events in China came up again:
"Q. Before the Torin Restaurant you've discussed the possible involved, maybe involvement, of Mr Ick Hee Gim?
A. WITNESS: Yeah.
A. INTERPRETER: Yes.
Q. What were you adding to that conversation by saying what a restaurateur, an owner of a Japanese restaurant, had said about Mr Ick Hee Gim?
INTERPRETER: Could you just repeat that?
YOUNG
Q. You've already discussed the subject and people have expressed their views saying that they thought that Mr Ick Hee Gim may be involved. That was before the Torin Restaurant.
A. INTERPRETER: Yes.
Q. Why did you raise the subject of what the opinion of an owner of a Japanese restaurant at Eastwood on that subject?
A. INTERPRETER: You're referring to Mr Byeon?
Q. You say that you told them what Mr Byeon had said and you said that it was according to him.
A. INTERPRETER: Well, because in the first conversation we were arguing whether Mr Gim may have been involved or may not have been involved and so after that, since I heard from Mr Byeon, who was, who was confident that Mr Gim was involved, so I conveyed what he said ‑ had said to me, to my friends." (T 26.21-.48)
After clarifying that the people Mr Kwoun was meeting with in the last of a series of lunch meetings was the same as the group he had spoken to before he went to the defendant's restaurant (T 29), he repeated what he said the defendant had told him:
"Q. What did you say you said to that group of people?
A. INTERPRETER: Well, there and then I told them that an owner of a restaurant at Eastwood had told me that it was definitely Mr Ick Hee Gim who got involved in it, the drug arrest.
Q. Why did you think that your friends would be interested in the views of a Japanese restaurant owner?
A. INTERPRETER: Well because we - because we had talked about it amongst ourselves the previous week when we met.
Q. Do you agree with this description of that lunch; you were telling Mr Moon that Mr Gim was involved in the drug smuggling incident on the Australian side and Mr Moon told you that Mr Gim was not involved with the drug smuggling incident at Guangzhou International Airport. Do you agree with that?
A. INTERPRETER: I don't agree with you.
Q. See I suggest to you that you didn't say a word at that meeting about anything that Mr Byeon had said.
A. INTERPRETER: He just asked me to repeat it. I did mention it - because I mentioned it again and we again started arguing amongst us which is right and which is wrong that sort of thing.
Q. What is there to argue about? You said that the restaurateur had said Mr Gim was involved. What is there to argue about?
A. INTERPRETER: Well what the argument was some say what that could happen, while others are say no it could not have happened. That's the argument.
Q. What you say is that all you said was that the owner of a restaurant had said that it was Mr Gim.
A. INTERPRETER: Yes. Yes that's what I told them at the outset. Then others joined in starting to argue about the story.
Q. What position did you take?
A. INTERPRETER: My position was that yes it could have happened.
Q. Your position was that he was involved with the drug smuggling incident on the Australian side isn't it?
A. INTERPRETER: No, he might have been involved.
Q. That had been your position from prior to you talking to Mr Byeon wasn't it?
A. INTERPRETER: No I had - I was not in a position to form a view whether he was involved or not back then." (T 29 - 30)
Mr Kwoun was asked about the concerns notice of 27 March 2015 sent to him by Messrs Teddington, the plaintiff's solicitors, the contents of which make no reference whatever to the defendant. That letter (Exhibit 1) sets out what Mr Kwoun said about the plaintiff in terms of Mr Kwoun having said the plaintiff was a suspect or criminal in the incident at Guangzhou and was involved with drug smugglers in Australia:
"Q. That refers to this meeting on 4 February 2015 at a Korean restaurant at Eastwood, correct?
A. INTERPRETER: That's correct.
Q. It says that you made comments that Mr Gim was the person who was involved with the drug smugglers on the Australian side.
A. INTERPRETER: Well I would say so.
Q. It also says that you specifically pointed out Mr Gim as a suspect or criminal in relation to the drug smuggling incident at Guangzhou International Airport.
A. INTERPRETER: That's what the letter alleged yes.
Q. Proceedings did not commence against you did they?
A. INTERPRETER: No.
Q. Did you apologise to Mr Gim for what you'd said on 4 February?
A. INTERPRETER: Yes I did and we reconciled.
Q. And you also said to him did you not that you would say that it was Mr Byeon who had given you the information.
A. INTERPRETER: Yes." (T 31)
In re-examination the affidavit of Mr Kwoun, which is Exhibit A, the text of which is set out above, was tendered to re-establish credit, in response to the assertions, in cross-examination, that he was making up his evidence of a second visit to the defendant's restaurant. As already noted, that affidavit does not refer to any second meeting. As such, it is damaging to Mr Kwoun's credibility, as are the statements about the publication set out in the concerns notice, which do not refer to the defendant either.
As is clear from a number of the extracts of the evidence above, Mr Kwoun acknowledged that his recollection was vague. That vagueness extended to the date of the meeting. It was acknowledged that the weekly Wednesday lunches he had with his friends must have included Wednesday 28 January 2015, which meant that the date given for the matter complained of was wrong.
This is not an error of an insignificant nature. This was a date which should have been fixed firmly in Mr Kwoun's memory, just as any recollection of a second visit to the defendant's restaurant should have been. Not only did his repetition of these claims about the plaintiff lead to an "argument" from Mr Moon and to a telephone call and/or visit from the plaintiff, but he received a telephone call from an Australian Federal Police officer, Mr Gale (who rang both Mr Kwoun and the defendant on the plaintiff's behalf) all within a matter of days. He then received a Concerns Notice on or about 27 March 2015. In those circumstances, the gaps and inconsistencies in his evidence about such essential matters is a significant credit problem.
Before considering the evidence in relation to the asserted republication claim, I propose to set out and compare the defendant's evidence as to the conversation in his restaurant.
[7]
The evidence of the defendant
The defendant gave his evidence in English. He said that he read Korean language websites for information about Korea, but that his interests lay in Australia. He only noted the reports of the arrest for their references to Australia. He was only interested in Australian sports such as football and cricket, and not in baseball.
The defendant's evidence was that Mr Kwoun came into Torin, the Eastwood Japanese restaurant owned by the defendant, at about 2.00pm for what he called "a very late lunch" in late January 2015 (T 98). The only person in the restaurant who was serving was the defendant; he took last orders at 2.30 and closed the restaurant at 3.00pm. The defendant said, and Mr Kwoun similarly acknowledged, that there were no other patrons in the restaurant at that time.
Mr Kwoun, while not a frequent visitor to the restaurant, in that he came approximately once a month, was known to the defendant, and he accordingly greeted Mr Kwoun in Korean and took his order to get it into the kitchen staff before the kitchen closed (T 99). He described the conversation which occurred as follows:
"Q. So what happens after you greet him, what then happens?
A. He ordered so I just get the order through as I told you, then I give to him - just 'cause the day was summer time so I gave it to him - serving to - you know the water and while I just waiting, I just chat to him.
Q. Doing the best you can, and I want you to try and use the exact words you said. Do you understand‑‑
A. Yeah.
Q. "I said", and the exact words you said, and then he said, what did you say to him?
A. I said, "Mr Kwoun, have you heard about to baseball team arrested in China and I seen it through the Bada." That's what I ask him.
Q. Did you say anything about Australia?
A. Yes, that the team come to Australia, yeah.
Q. Did Mr Kwoun reply to that?
A. Yes.
Q. What did he say?
A. He said he knew about that, yeah.
Q. What else did he say?
A. Then we just said - because pretty short time I said - he just mentioned about there's some business man and he's coming from the Gyeongsang-do.
Q. Did he say the name of the business man?
A. Yes.
Q. What name did he say of the business man?
A. He said Ick Hee Gim.
Q. At that point did he say anything about what you knew about Ick Hee Gim?
A. That I said to him - I don't know particular name person because there is so many - the customer coming, I said - he trying to ask to me that is Ick Hee Gim is about ..(not transcribable).. he's about, about Gim. So he said to me he learning [sic: probably 'running'] the business in Campsie, he's coming from the Gyeongsang-do." (T 99 - 100; emphasis added)
The defendant explained that Gyeongsang-do was a region in Korea and went on to describe the rest of the conversation:
"Q. What else did he say about Mr Ick Hee Gim?
A. He played baseball.
Q. Did he say anything about any connection of Mr Gim in Sydney in terms of business?
A. I don't know that, that's just three things he trying to me to‑‑
Q. You said he said he was from Gyeongsang-do?
A. Yeah.
Q. You said he played baseball, what was the third thing?
A. Baseball - he played baseball.
Q. Yes, and what was the other one?
A. What do you mean? The‑‑
Q. He said he was from Gyeongsang-do?
A. Yeah.
Q. And you said he played baseball?
A. Yeah.
Q. But you said he said three things?
A. He, he had a business in Campsie.
Q. He had a business in Campsie yeah.
A. Campsie, yeah."
The defendant explained how he put these three pieces of information together:
"Q. Firstly, before you said anything, did those three things connect you with any patron who had been into the restaurant? Did you think of somebody who had been into the restaurant who fitted any of those three things, any one or more of them?
A. I'm trying to remember because there is so many - the people coming and also the customer coming, I said somebody said play baseball and Campsie business, that's what I said, that's what I said - he is the - he is the person that he asking, I said I just trying to remember that's all, yeah.
Q. What did you actually say to him?
A. (No verbal reply)
Q. What did you say to Mr Kwoun?
A. "I don't know who is Ick Hee Gim."
Q. But after he said that he said that he's from Gyeongsang-do and ran a business in Campsie and took a team to play in China, what did you say in response to that?
A. I said to him‑‑
HER HONOUR
Q. Well you're doing this with your hands.
A. Yeah, same like - I don't, I don't - just, you know. I can't exactly - he - what he's saying but I can't agree but - because I don't know his name, that's what I trying to remember, that's - because I got the so many customers coming. So I just trying to remember that's all yeah.
YOUNG
Q. Was there any further conversation that Mr Kwoun had about Ick Hee Gim? Did he say anything else about him?
A. He said, "He's been okay."
Q. "He's been okay"?
A. Yeah.
Q. What was your understanding of what he meant by that?
A. Then I just - the meal - the conversation is finished and the meal coming and I just‑‑
Q. No, no, just go back a second. When he said, "He's been okay," what did you understand he meant by that? What did you understand he was saying?
A. My understanding is he said to me he's not, he's not relating with the - that's all to the drug incident in China yeah.
Q. All of this conversation took place in Korean?
A. Yeah." (T 100 - 102)
The defendant said that he knew the plaintiff as someone who had come to his restaurant once or twice for dinner. The reference to the province of Gyeongsang-do was important because Koreans can be identified reasonably quickly by reason of regional accents, and this was an identifying factor.
The next the defendant heard about this conversation was when an Australian Federal Police Officer named David Gale contacted him later in February 2015. Mr Gale's report of that conversation is set out below.
The defendant was asked about his prior association with both Mr Kwoun and the plaintiff:
"Q. Well, what year did you start operating the restaurant?
A. 2011.
Q. You had known Mr Kwoun since 2011?
A. Yeah.
Q. Mr Gim, Mr Ick Hee Gim, he had come to your restaurant for meals on a few occasions?
A. Yes.
Q. Lunch and dinner?
A. He normally - he - I remember he comes just dinner.
Q. He told you on one occasion that he played baseball, correct?
A. Yes, yeah.
Q. Did he tell you that he was a manager of a baseball team?
A. I don't know. He just - I just only know he's playing baseball.
Q. He had told you that he had gone to China once with a baseball team, correct?
A. Yes. Once he told me but I just - yeah.
Q. This is before January 2015 he told you that he had been to China on one occasion with a baseball team of Australia?
A. Yes." (T 105 - 106)
The defendant adhered to his version of the conversation in cross-examination (at T 108):
"Q. Now, the conversation started when you said to Mr Kwoun, "There's news of a baseball club [sic] arrested in China," correct?
A. Yeah.
Q. You said to him, "This incident is a major one." Do you remember saying that?
A. I didn't say that.
Q. Didn't you say to Mr Kwoun, "This incident is a major one. Why is it not in the Korean Australian media?"?
A. I didn't say that.
Q. You were surprised, weren't you, at that time when you had this conversation that there had been nothing in the Korean media in Australia about this baseball team?
A. I'm not interesting about that.
Q. But you had read it on Bada, correct?
A. Yeah.
Q. You were the one who said to him, "There's news of a baseball team arrested in China", correct?
A. Yeah.
Q. You were interested in that because they were Koreans arrested in China, correct?
A. I'm not interesting because arrest in - come to Australia. That, that's what I just ask him.
Q. You were interested in him because according to Bada, they were Koreans, baseball players travelling to Australia. Correct?
A. I - that's sort to question is because he is the reporter. I'm just a normal conversation, not only that date particularly, other issues coming, I asked him.
Q. You asked him why there was nothing in the Korean-Australian media about this?
A. I didn't say that.
Q. You're sure you didn't say that?
A. I didn't say that.
Q. The fact was that you hadn't seen anything in the Korean media in Australia about this, had you?
A. I haven't seen it.
Q. You were wondering why it was not in the Korean-Australian media, weren't you?
A. I'm not interesting with the wonderings of the - I just ask him the incident.
Q. You wanted to know from Mr Kwoun what he might know about it. So--
A. I'm not interesting about his - what he's about. I just, just normal conversation of - when a customer come in. He's reporter.
Q. You said to Mr Kwoun words like this, "The ones involved in the drug arrest in China - they turned out to be Korean-Australians."
HER HONOUR
Q. Do you agree or disagree that you said that?
A. I - I'm disagree.
ROLLINSON
Q. You didn't say that?
A. I disagree.
Q. Did you not say to Mr Kwoun, "What's the name of the person connected with that?"
A. I didn't ask.
Q. You said several times to Mr Kwoun, "Who was the person connected with that?"
A. No, I didn't say that. I - the reporter Kwoun, Sunjin Kwoun asked me, asked me about the person's name and also he tried for me to remember. That's why I trying to remember who is, who is actually baseball, who is ..(not transcribable).. That's why he try to ask me but I just trying to think about that thing.
Q. You said he asked you to try to remember what was the person? Is that right?
A. That's what I think he's asking to me.
Q. He said to you words to this effect, "Do you think it could have been Mr Ick Hee Gim?"
A. (No verbal reply).
HER HONOUR
Q. Do you agree or disagree?
A. I disagree.
ROLLINSON
Q. I'm suggesting that he asked you these words, "Do you think it could have been Ick Hee Gim?" Is that right?
A. I didn't ask him anything.
Q. He asked you that question. He asked you, "Do you think it could have been Ick Hee Gim?"
HER HONOUR
Q. Do you agree or disagree?
A. I disagree, yeah.
ROLLINSON
Q. I suggest you replied, "Yes, it is Ick Hee Gim."
A. I didn't say that.
Q. He said, "Are you sure?" He asked you whether you were sure, is that right?
HER HONOUR
Q. You have to say if you agree or disagree with this version of the conversation.
A. I said to him - because he trying to ask me the name but I was not sure but I said to him he's doing the business in Campsie - Gyeongsang-do - that's what I said I, I agree with that two sort of things.
ROLLINSON
Q. He didn't say anything about business at Campsie, did he?
A. He said.
Q. What happened was he asked you whether it was Ick Hee Gim, is that right?
A. He mentioned the name.
Q. Your reply to him was, "Yes, it was."
A. No, I didn't say yes.
HER HONOUR
Q. What did you say?
A. I said one of the customer coming from Gyeongsang-do, having business in Campsie, that person is playing baseball. I knew him because he's coming my restaurant.
Q. You said to him that you knew the person who was connected with the drugs in China.
A. I didn't say to him I knew him. I said to him one of the customer. That's what I said to him." (T 108 - 111)
Mr Rollinson put it to the defendant that Mr Kwoun asked more than once whether he was sure that the person was Mr Ick Hee Gim, but the defendant disagreed (T 111). He denied saying "I'm sure, I'm positive" or "Definitely it is Ick Hee Gim".
Mr Rollinson challenged the defendant's recollection of these events and (at T 111 - 112) his ability to remember even today the dish that Mr Kwoun ordered (T 111). Having observed the defendant's demeanour and the straightforward and quick way that he answered these questions, I accept this evidence. I am satisfied that the defendant's version of these events in general, and of his conversation with Mr Kwoun in particular, are reliable and truthful.
[8]
The further visit by Mr Kwoun
The defendant stated categorically that Mr Kwoun never returned to his restaurant and never asked him again about this conversation (T 112). He also repeated in cross-examination that he was sure the plaintiff had not been to his restaurant on more than a couple of occasions (T 119-120). He denied that Mr Kwoun ever discussed with him again the matter of the plaintiff and the drugs (T 122). He repeated that he was merely making conversation with a customer in the restaurant, something he called "normal conversation" (T 124).
Again, I prefer the defendant's answers in this regard, not least because they are consistent with the pleadings and Mr Kwoun's statement. All of the evidence points to this claim of a further visit in the five days between Mr Kwoun's visit to the defendant's restaurant and his lunch with his friends as a reconstruction invented by Mr Kwoun on the spur of the moment, in the witness box.
[9]
The defendant's answers to interrogatories
The defendant's answers to interrogatories were tendered (Exhibit E). No submissions were made that these answers were inconsistent with the defendant's answers in evidence. They confirm the defendant's limited knowledge of the plaintiff as someone who came to his restaurant a few times, and that the plaintiff had said to the defendant during one of those visits that he played baseball.
[10]
The defendant's conversation with Mr David Gale
The defendant said that he received a telephone call from a Mr Gale of the Australian Federal Police and that he had thought the call might be a hoax. He had told the caller he did not make the statements attributed to him.
An email from David Gale to Mr Gim of Monday 9 March 2015 (Exhibit D) states the following:
"Dear Mr GIM,
I have called Mr Kwon and Mr Byeon and told them both that you are not a suspect or a criminal and that they should not spread malicious gossip.
Mr Kwon said that he had just been talking with friends and was not spreading rumours, Mr Byeon claimed to not know who you were but that he had read about the arrests in China.
You may find that the calls have stirred thing [sic] up, however there is not much else I can do about rumours. If you have any further issues it may be nest [sic] to contact a solicitor.
Hopefully the calls have set the record straight.
I would like to obtain a written statement from you in the new few weeks concerning your dealings with JUNG and I will contact you to arrange a time.
Regards"
Mr Gale's statement that the defendant claimed not to know who the plaintiff was needs to be read in context of the agreed limited knowledge the plaintiff and defendant had of each other, not even knowing each other's names properly. Even on the evidence of Mr Kwoun, he had to be told the plaintiff's name. The statement about having read about the arrests in China is consistent. The contents of this letter do not detract from or contradict the evidence of the defendant.
[11]
Comparison of the evidence of Mr Kwoun and the defendant
The defendant's case is that he was making small talk with a restaurant customer whom he knew to be a journalist by referring to a story he had seen on the Bada website. He had no knowledge of the plaintiff other than as a person who had come to his restaurant a couple of times for dinner. The defendant's evidence is that Mr Kwoun introduced the name of Ick Hee Gim and that he told Mr Kwoun that he did not know this person. The defendant had no knowledge of or interest in baseball; as someone who had lived in Australia since 1980, he considered himself Australian, and his interest in the story was because it was about the events relating to Australia.
By comparison, Mr Kwoun knew the plaintiff quite well. He and the plaintiff were both members of an association of people from Gyeongbuk (or Kyoungbuk) Province (T 11) and his knowledge of the plaintiff's involvement in baseball included that the plaintiff had taught baseball at a university. In addition, Mr Kwoun had already read about the arrest in China on the Naver website, and had already discussed this arrest and its Australian connections at the first of the three lunches the subject of these proceedings, namely the lunch he had with his four friends on Wednesday 28 January 2015 where the name of the plaintiff was first mentioned, as well as discussing the arrests with his journalist colleagues at the office beforehand.
Mr Kwoun's evidence was that "we went on to talk" about the possibility of "Mr Ick Hee Gim being involved in the incident", from which I infer that it is more likely than not that each of his friends had some knowledge not only of Ick Hee Gim personally and of his involvement in baseball but also of the arrests.
Mr Kwoun's evidence demonstrates that at the time he went to the defendant's restaurant for lunch in between his two meetings with his friends, he already had it in his mind that Mr Ick Hee Gim's name had been mentioned in relation to the arrest at Guangzhou International Airport (T 19). However, Mr Kwoun went on to say that the defendant had not mentioned Bada as his news source at this meeting and that he had to return to the restaurant the following week to check if it was the case, or alternatively "just to check where he had obtained that information", and that it was only then that he mentioned Bada (T 20 lines 40 - 43).
There are three problems with this evidence:
1. If such a conversation occurred, it should have been pleaded as a further matter complained of;
2. No such second conversation was mentioned in his evidence in chief;
3. Although Exhibit A was tendered in re-examination to restore his credit in relation to the second meeting, that statement merely confirms that there is no reference to this second visit by Mr Kwoun to the defendant's restaurant in that statement.
Mr Kwoun was employed full-time as a journalist. Information about the identification of a Korean living in Australia as a person involved, whether actually or potentially, in a very significant drug arrest would have been big news. He agreed that the first thing a journalist would do would be to find out the source of the defendant's knowledge if such information was provided (T 25). Although Mr Kwoun dismissed the arrests as an old story, it was clearly being discussed in the Korean community, as the evidence demonstrates, and was clearly a story of some significance, given the large number of arrests and the connection with Australia.
What was the date of this second meeting? Only a weekend and two working days separate the Torin lunch and the second group of friends lunch. Did Mr Kwoun visit on the weekend or on a working day? Did he visit the restaurant again for lunch, or did he go to the restaurant to ask to speak to the defendant while he was serving other customers? Whatever the circumstances of this purported second visit, Mr Kwoun's evidence is wholly implausible, especially since, despite being told that the defendant had seen this information on Bada, he made no checks to find if there were in fact reports on Bada to see if any additional information could be found there.
Finally, Mr Kwoun's version of the 4 February 2015 discussion is inconsistent with paragraph 5 of the amended statement of claim, the asserted occasion of republication.
[12]
The occasion of republication
On Wednesday 4 February 2015 Mr Kwoun told his friends as follows:
"Q. Do you remember, as exactly as you can, what you said to them the other--
A. INTERPRETER: I told them that according to an owner of a restaurant in Eastwood that it is true that Mr Ick Hee Gim was one of those involved in the drug arrest.
INTERPRETER: I should have said - sorry, your Honour, those who got - the baseball players who got arrested over drug charges." (T 14)
Mr Kwoun acknowledged that this immediately led to an argument and Mr Moon, who was present, rang the plaintiff immediately, in front of everyone. Mr Moon then reported to the group after speaking to the plaintiff that the plaintiff denied it:
"ROLLINSON
Q. Do you remember what your companions said in reply to that?
A. INTERPRETER: An argument arose which got, some people said "Yes" and the others "No". Then Mr Jinwook Moon made the suggestion that we call Mr Ick Hee Gim directly just to confirm what was true, the words that I had said. Then straight after he said it, Mr Jinwook Moon made a call to Mr Gim on the spot and he got him to confirm that. Then Jinwook, Mr Jinwook Moon reported to us a, after the phone call, saying he denied it." (T 14)
One of the problems with this evidence, for the plaintiff, is that the plaintiff's version of Mr Moon's telephone call (or visit, as the plaintiff thought it was a visit) is that there was no mention of the defendant in it. It was not until the plaintiff telephoned Mr Kwoun that Mr Kwoun volunteered the information that the defendant was his source.
Mr Rollinson, in submissions, put that Mr Kwoun, a journalist, was protecting his source and that this was why he did not mention the defendant's name. That cannot be so. Mr Kwoun was not planning to write a story, and the defendant was not a source, but merely someone who Mr Kwoun claimed had volunteered information without any request for secrecy. Mr Kwoun's description of the defendant as a Korean restaurant owner in Eastwood would have identified the defendant in a very short time in any event.
For the reasons noted in relation to the evidence as set out above, Mr Kwoun's evidence on all issues in this case is so unreliable that it could not be accepted without corroboration. This brings me to the submissions of the defendant concerning the plaintiff's failure to call any of the persons present on the occasion of republication (Mr Moon, the accountant, and the two "business owners" referred to in Teddington's letter of 27 March 2015).
[13]
The failure to call Mr Moon and those present at the lunch
Mr Young submits that if Mr Kwoun's version of the 4 February 2015 conversation were true, Mr Moon would have told the plaintiff that Mr Kwoun claimed to have been quoting the defendant. That is not the case, but more importantly, the plaintiff failed to call Mr Moon or any of the other persons present at the 4 February 2015 lunch. Mr Young submits that this must raise a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298).
It is acknowledged that all three of these persons, and particularly Mr Moon, knew the plaintiff. They are referred to in Messrs Teddington's letter of 27 March 2015, which identifies to them by profession. (Curiously, the concerns notice sent to the defendant on 12 June 2015, does not refer to the republication by Mr Kwoun or to these persons). There is no evidence that any of these witnesses is dead or unavailable.
The failure to call any of these witnesses, and particularly Mr Moon, warrants the drawing of a Jones v Dunkel inference.
This brings me to a consideration of the plaintiff's evidence as to what he understood the defendant's role in the conversation at the Torin restaurant to be.
[14]
The plaintiff's evidence
The plaintiff's evidence contained a number of inconsistencies, He said that he received Mr Moon's telephone call in early January 2015 (T 47), not in late January, and that he heard Mr Moon tell the other people in the room that he (namely the plaintiff) was in Sydney and thus not in any difficulties. He also said that there was only one telephone conversation, and that he did not hear from Mr Moon again until Mr Moon visited his office on about 6 February 2015 to report Mr Kwoun was making statements about him. Significantly, he agreed that there was no mention of the defendant's name.
The plaintiff said that he did not understand why Mr Kwoun (and I note the correction of the name in the transcript, which was the subject of some now resolved debate) was still talking about this in light of his earlier confirmation to Mr Moon. The first he knew of any claim that the defendant had said anything was when Mr Kwoun volunteered this when the plaintiff telephoned him. As the plaintiff did not know the defendant, he asked Mr Gale to ring him. Mr Gale's report appears to have satisfied him, as his solicitors then sent a concerns notice to Mr Kwoun which does not refer to the defendant at all. It was only after Mr Kwoun provided a statement that, three months after the concerns notice was sent to Mr Kwoun, a concerns notice was sent to the defendant.
Mr Young submits, and I agree, that these inconsistencies in the plaintiff's evidence must completely undermine the evidence of Mr Kwoun. The plaintiff's evidence simply confirms that Mr Kwoun's claim that the defendant made these statements is an allegation made after the event by Mr Kwoun in order to extricate himself from liability for his statements about the plaintiff to Mr Moon and his other friends at the 4 February 2015 lunch.
[15]
Conclusions as to liability for publication and the republication
As Warby J notes in Umeyor v Ibe [2016] EWHC 862 at [1], slander cases are rare, in part due to "the difficulties sometimes encountered in proving the exact words spoken". The facts in this case indicate these difficulties, where not only the date and subject matter may be challenged but findings of credibility play a significant role.
The defendant gave his evidence in a straightforward and frank matter, making concessions where appropriate. By comparison, Mr Kwoun's claim during cross-examination of a second visit to the defendant's restaurant for the purpose of asking where the defendant obtained this information is clearly false.
In McGlen-McLeod v Galloway [2012] NSWCA 368 Tobias A-JA cited with approval the observations of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] concerning findings of credit of witnesses:
"[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not:
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
[74] Lord Bingham then added these observations:
"In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented … so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."
The evidence of Mr Kwoun fails in each of these five factors. His evidence is neither internally consistent nor consistent with others, and he has made errors in relation to matters which should not have been the subject of doubt, such as the date on which the matter complained of was published. As to demeanour, I find that he took refuge behind claims of his recollection being vague as a form of excuse for the inadequacies in his evidence.
All of the evidence points to Mr Kwoun discussing the potential involvement of the plaintiff in the drug arrests with his work colleagues and friends before he spoke to the defendant and as having his own sources of information and views based upon that. I am satisfied that he did not rely upon the defendant for this information in any way.
I am satisfied that the defendant made restaurant small talk with Mr Kwoun about why this story was not being covered by the Australian Korean media, but that he did not say that the plaintiff was involved or play any role in these events.
The result is that I am satisfied that, while a conversation between Mr Kwoun and the defendant occurred, the variance between the words alleged and the words proved amounts to "fatal variance" (R. Parkes QC, A. Mullis, G. Busuttil, A. Speker & A. Scot, Gatley on Libel and Slander (Sweet & Maxwell, United Kingdom, 12th ed.) at [32.15]). The conversation which occurred was that which is described by the defendant, from which the defamatory imputations are incapable of arising.
As the plaintiff has failed to establish that the matter complained of was published, judgment will be entered for the defendant. I will make some brief observations as to other issues of liability and as to quantum.
[16]
The capacity of the imputations and extrinsic facts
It is difficult to express a view as to capacity where the text of the matter complained of is uncertain, and I shall refrain from doing so, beyond noting that, if the text of the matter complained of is as set out at T 12 - 13, the imputation would seem to be that the plaintiff was arrested, which is not an imputation of guilt.
Where the matter complained of is published to one person, it is difficult to see how a case in relation to that person can be pleaded in relation to the ordinary and natural meaning at the same time as arising by reason of extrinsic facts. Where all of the persons in the class are also all of the persons knowing the extrinsic facts, the natural and ordinary meaning claim would fall away. Unfortunately, since the text of the matter complained of is so uncertain, it is difficult to ascertain just what those extrinsic facts were.
The basis upon which the defendant is asserted to be liable for Mr Kwoun's republication (Speight v Gosnay (1891) 60 LJQB 231;Slipper v British Broadcasting Corporation [1991] 1 QB 283;Timms v Clift [1998] 2 Qd R 100; Richards v State of New South Wales [2004] VSC 198;Sims v Wran [1984] 1 NSWLR 317) is difficult to understand. While this was a statement to a journalist (see Milne v Ell [2017] NSWSC 555 at [61] - [65]), it is clear from Mr Kwoun's evidence that he was not acting in his capacity as a journalist at any relevant time. The defendant was not proffering new information, but asking Mr Kwoun questions based on what the defendant had seen on the internet. It was, at best, restaurant small talk. While repetition as part of a grapevine effect might have been a possible claim, the factual circumstances do not support a claim for republication.
I am satisfied, on the facts as I have found them, that Mr Kwoun's repetition of his claims about the plaintiff were made for his own personal reasons rather than by reason of any publication by the defendant. Mr Kwoun had been discussing the plaintiff's potential involvement in these events before he spoke to the defendant, and the defendant would not have been able even to name the plaintiff but for Mr Kwoun's help. In those circumstances, no claim for republication could succeed, whatever the text of what was said.
[17]
Damages issues
As I have found in favour of the defendant, my observations will be brief.
The plaintiff is a successful businessman whose involvement in baseball led to his having to provide information to Australian police about a very serious drug arrest in China. According to the material tendered, 20 baseball team members and support staff were arrested and 14 were charged in relation to a very substantial drug smuggling attempt. The team arrested was about to play his Sydney team. Members of the Korean Australian community had already made the connection between him and this incident (such as his accountant, Mr Moon). Mr Moon rang him from a restaurant in circumstances where others were talking about this. He later discovered that Mr Kwoun, a journalist who should have known better, was discussing his involvement with these events. He was shocked and upset (T 44 - 45).
Section 34 Defamation Act 2005 (NSW) requires that any damages awarded have an appropriate and rational relationship to the harm actually suffered. The relevant factors to take into account when awarding damages in accordance with the principles of the uniform law are helpfully set out by McCallum J in Carolan v Fairfax Media Pty Ltd [2016] NSWSC 1091 at [122] and following, and I shall not repeat them. I note the statutory cap and agree with her Honour as to how it should be applied. I also note and agree with her Honour's approach to issues of general damages and aggravated compensatory damages.
The facts of the present case are very different. This was not a publication viewed by tens of thousands of people, but words spoken informally by way of small talk in a restaurant, in terms where, but for Mr Kwoun "filling in the gaps" by naming the plaintiff, the matter complained of may never have been published at all.
One factor of particular relevance in the present application is the very limited extent of publication. Although the concerns notice sent to the plaintiff suggests that the statements made by the defendant were made in a crowded restaurant, I am satisfied by the evidence of the defendant that Mr Kwoun in fact came to the restaurant at the end of the lunch period and that the restaurant was not only devoid of other patrons but that only the defendant was still serving the customers. That means that the matter complained of was published to one person only, namely Mr Kwoun.
As to the republication, if Mr Moon did telephone the plaintiff following the "argument", this is suggestive that the damage was confined to publication to Mr Moon (who knew the truth) and Mr Seo, the only other person named in the statement of claim. Any claim for damages for this publication to three persons should take this into account, although noting the warnings in Jones v Sutton (2004) 61 NSWLR 614 as to the limited impact knowing the truth and/or hearing the contrary view put will have on damages.
The range of damages for an oral publications generally tend to be small by reason of the lack of permanence in oral publications as well as the likely limited extent of publication: Umeyor v Ibe at [1]. Recent awards for slander to one person or to a small group of persons made under the uniform legislation include Ritson v Burns [2014] NSWSC 272 ($7,500); Luke v Richardson [2014] WADC 27 ($6,500); Allen v Lloyd-Jones (No 6) [2014] NSWDC 40 ($6,000). I note the award of $5,000 for a slander to a small group repeated to one person (factually similar to the present case) was not the subject of criticism on appeal in Jones v Sutton, although in the context of the repealed legislation, where there was no cap on damages.
A more helpful guide is Luke v Richardson, where the allegations (which were comparatively serious to those made in this litigation) included a claim for republication. Those damages were assessed at $7,500 but reduced by $1,000 because of the circumstances of publication, which included the conduct of the other party triggering the publication. No such submission was made in these proceedings (despite Mr Kwoun's contribution to the matter complained of) so I make no such deduction, but the observations of the trial judge concerning damages for slander generally are compelling. As for the failure to apologise, this was reasonable by the defendant in circumstances where he denied to Mr Gale saying the words and where the plaintiff waited nearly five months before sending a concerns notice, a factor considered relevant in Jones v Sutton (No 2) [2005] NSWCA 203.
In the present case, the seriousness of the allegation warrants the award of a higher sum, and an appropriate amount would be $15,000 if the defendant were also liable for the republication. If not, the sum of $10,000 should be awarded.
Taking into account the circumstances of publication and the total absence of any aggravating factors beyond the asserted additional hurt to feelings by reason of knowledge of the falsity, the facts of the case would not warrant any award for aggravated damages, on any version of the matter complained of.
There are indemnity costs orders outstanding by reason of the plaintiff's unreadiness for trial on a previous occasion. There may also be applications under s 40 Defamation Act 2005 (NSW). I shall reserve the issue of costs with liberty to apply.
[18]
Orders
1. Judgment for the defendant.
2. Costs reserved with liberty to apply.
3. Exhibits retained until further order.
[19]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 June 2017