Hang v Nguy

The defendants' evidence

1. Mr Nguy, the first defendant, who was responsible for the English portion of the matter complained of, sets out at paragraphs 2 to 9 the following information: "2. On or about 18 February 2016, I was advised by Mr Liu of Cathay Lawyers, that I have to put the members' complaints in point form for him to prepare the Affidavit to commence legal proceedings against Mr Hang. Attached hereto and marked "A" is a copy of this email conversation between myself and Mr Liu. 3. I did prepare the English portion and showed it to the temple members at the dinner on 23 February 2016. 4. At the dinner, I explained the current situation to the members and they all signed the English portion. 5. I was worried that Mr Hang may not be able to understand English, so after 23rd of February 2016 I went home and prepared a Chinese version. 6. The Chinese version was made so that Mr Hang could understand that the members were not happy with his conduct and expected an explanation. 7. If his explanation was acceptable, the members would settle the dispute without legal proceedings. 8. A few days after the 23rd of February 2016, I provided Mr Hang with the Chinese version. 9. I did not show the Chinese portion of the first matter complained of to anyone at the meeting on 23 February 2016: It did not exist at the time."
2. The first defendant does not explain how he communicated the contents of the English-language petition to the seven persons whose inability to read English meant they were unable to read the petition at all. Nor does he explain how he came to make the mistake of agreeing that the first matter complained of was in English and Chinese when it was in English only, or when or how he discovered this error, or what the significance of this error is. Nor does his explanation of providing a version of this document in Chinese solely for the plaintiff on the basis that the defendants "expected an explanation" sit well with the contents of this document, or with Mr Dibb's submission that the English document was solely prepared in order to give instructions to the defendants' solicitor (who did not speak Chinese and would not have needed any subsequent summary of the document in Chinese) and not for the benefit of the plaintiff (who only spoke Chinese).
3. The evidence of the second to eighteenth defendants is similarly vague. I particularly note: 1. Six of the defendants have not provided any affidavits or evidence at all. 2. The second, fifth, eleventh and fifteen defendants are relatives. The fifth defendant (Mr Michael Chen) says that he "did not see any Chinese version of the matter complained of at the dinner" when he appended his signature. According to the attached notes, when asked by solicitors if he remembered what happened at the dinner, he said "It's been almost a year now", and that he signed a document on that night, but that appears to be all that he could recall, which does not augur well for his ability to recollect whether he saw a Chinese language summary of the petition or not. The affidavits of the other defendants simply rely upon what Mr Chen says. Ms Lam, the second defendant notes that "the four of us were interviewed by Mr Choy simultaneously" (paragraph 3 of the affidavit), which suggests further contamination of the evidence. 3. The third defendant similarly states that he "did not see the Chinese portion of the first matter complained of at the dinner/meeting" (affidavit, paragraph 5). Ms Rubagotti draws to my attention the "pro forma" wording of paragraph 6 and indeed the whole contents of this and the other affidavits. There is certainly a remarkable degree of similarity between the setting out of these affidavits, which detracts from their persuasive value. 4. The fourth defendant states merely that Mr Choy did not mention the Chinese portion of the matter complained of at the interview and that he "did not see the Chinese portion of the first matter complained of at the meeting" (paragraph 7). 5. The sixth defendant told Mr Choy "I don't remember much about it but I remember signing the document" and did not recall Mr Choy "bring any special attention to the Chinese section of the document". Despite not being able to remember much about the events in question, he claims that he did not see any Chinese section of the matter complained of at the dinner on 23 February 2016. The eighteenth defendant, who is his wife, merely stated "I adopt my husband's affidavit" (affidavit, paragraph 2). 6. All that the tenth defendant can say is that at the time he signed the document, he saw the English portion of the matter complained of, but "I did not see the Chinese portion" (paragraph 5 of the affidavit). 7. The fourteenth defendant claims categorically that she had never seen any Chinese version of the matter complained of prior to receipt of the Statement of Claim (paragraph 3). I note, however, in her answers to the questions Mr Choy sought, she said "I did not have the chance to read the document which was given to me to sign but did sign in good faith purely to help the association recoup funds". She goes on to say she was not at the dinner at all (paragraph 11). She had no recall of the contents of the document she signed "because I did not have the chance to read the document" (paragraph 17). That merely suggests that she did not see anything. 8. The sixteenth defendant is the wife of the first defendant. She says she did not attend the dinner and that she signed it when her husband came home from dinner. She says she "did not see the Chinese portion of the first matter complained of", but says nothing about her husband preparing that document later on at home, in the manner described by him.
4. Mr Dibb relied heavily upon the fact that Ms Rubagotti did not seek to cross-examine any of the defendants, submitting that this meant their evidence should be accepted without question as being unchallenged. Ms Rubagotti submitted that their evidence was so hopeless as not to warrant cross-examination.
5. Some relevant aspects of the evidence provided by these witnesses are: 1. Although Mr Dibb submitted that only the English document was circulated at the meeting, there is no evidence as to the language in which the meeting was conducted. It would seem likely that at least some of those attending would not have been able to understand the document in English that they were asked to sign, given the concession in the Defence that seven of them were unable to read English and given the fact that Mr Choy's questionnaire to most of the defendants (which is attached to their respective affidavits) was set out in both in English and Chinese. I also that the Defence refers to other publications in Chinese such as the advertisement in Sing Tao referred to in paragraph 12(iii) of the Defence. All of these factors are suggestive of the matter complained of including the Chinese as well as the English language document. 2. It is acknowledged that the plaintiff is unable to speak or read English sufficiently to have been able to read the English version of the first matter complained of. If a version or summary was prepared for his benefit, why would not this document have been prepared contemporaneously and shown to the persons signing the English version, who clearly had an interest in the resolution of the dispute and in knowing what the plaintiff would be told? 3. What is absent from all of these affidavits, as well as from the affidavit of the first defendant, is any explanation as to how it was that each and every one of these twelve defendants thought that the Chinese language document formed part of the first matter complained of, and was the whole of the second matter complained of, when the original defence was filed. Nor is there any explanation as to the position of the remaining six defendants who have not provided affidavits.
6. The defendants do not provide a proposed Amended Defence deleting the admissions in question. Mr Dibb instead pointed to asserted infelicities of form in the plaintiff's admissions, submitting that as his clients would be bringing a challenge to the form (and possibly the capacity) of the imputations conveyed, issues such as the form of the Defence should await the settling of the plaintiff's pleading.
7. This submission reveals what the defendants are really seeking to do, namely to abandon the defence that was verified by them rather than identify the passages they wish to withdraw. The defendants under no difficulties in terms of pleading a defence to the statement of claim with the currently pleaded imputations; the defence not only pleads defences to the publications but also, in relation to the s 26 defence, pleads contextual imputations. The defence makes a number of factual statements in relation to the ability of the defendants to read Chinese, the particulars of justification and the purpose of preparation of the second matter complained of. What the defendants really want is to have carte blanche to replead the defence anew.

The applicable legislation

1. Rule 12.6 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides: "12.6 Withdrawal of matter in defence or subsequent pleading (1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time. (2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court. (3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal. (4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal."
2. Contrary to r 12.6(3), the defendants have not filed a notice of withdrawal stating the extent of the withdrawal, which means that it is unclear to me: 1. Whether all of the defendants or only some are withdrawing all or only some of their admissions; 2. Although not acknowledged by Mr Dibb, it would appear that if the document in the Chinese language were to be withdrawn, limitation defences would be pleaded to any publication which took its place (as such conversation in the Chinese language at the meeting in question in relation to those defendants who could not read English sufficiently to understand the English document forming part of the first matter complained of).
3. The leave of the Court is required and what must be established is: 1. That the admission was made inadvertently, or contrary to the established facts; 2. There is solid and substantial evidence providing a sensible explanation for the making of the relevant admission; 3. Issues relevant to prejudice.
4. The relevant principles were set out by Rothman J in Karadaghian v Big Beat (Australia) Pty Ltd [2014] NSWSC 496 at [45]-[49] as follows: "45 The exercise of discretion in allowing the withdrawal of admissions has been the subject of significant authority. As his Honour White J commented: "Admissions made formally and deliberately by a party legally advised should not be permitted to be withdrawn unless the party seeking to withdraw them can point to an error when the admissions were made or a relevant change of circumstance" (SLE Worldwide v WGB & Ors [2005] NSWSC 816) 46 His Honour referred to Sangora Holdings Pty Ltd v Dunstan (unreported, Supreme Court of Western Australia, Full Court, 13 April 1999) to the effect that the withdrawal of an admission in a pleading is a serious matter because from that point onwards the admitted fact ceases to be an issue and the action precedes upon that assumption, which, in its absence, may have resulted in a very different proceeding or a proceeding on a very different basis. Moreover, the longer the period during which the admission has stood, the less readily permission will be granted for its withdrawal. 47 Fundamentally, the courts have indicated that the indulgence of granting leave to withdraw an admission may be granted where the applicant can show: (i)That the admission was made inadvertently; or (ii)That the admission was contrary to the established facts. 48 As stated by Santow J (as his Honour then was) in Drabsch v Switzerland General Insurance Company Ltd & Ors (unreported, 16 October 1996, Supreme Court of NSW), where his Honour discussed the principles relating to consent to the withdrawal of particular admissions and said: "I set these principles out as follows: 1. Where a party under no apparent disability makes a clear and distinct admission, which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted; Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 per Rogers CJ Comm D, followed in IOL Petroleum Ltd v O'Neill per Young J (Young J, 17 November 1995, unreported) and Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Supreme Court of Victoria, Full Court, 8 April 1988, unreported), and in that respect not following H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 703. 2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guideline being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded; IOL Petroleum Limited v O'Neill (supra), in the context of withdrawing a concession made before the Registrar. 3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after a full opportunity to consider its case and whether the admissions should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn; Coopers Brewery Ltd v Panfida Foods Ltd (supra) at 745 and 748. Thus a court will not lend its approval to the withdrawal of admissions where, by analogy with the making of amendments, this is actuated by purely tactical reasons; compare Devae Prufcoat Pty Ltd v Altex Industrial Paints Ltd (Cole J, 15 March 1989, unreported). 4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission; H Clark (Doncaster) Ltd v Wilkinson (supra), in that respect not doubted. 5. Following Cohen v McWilliam and Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with cost orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party." 49 The foregoing recitation of principle needs to be understood in the context that his Honour was then dealing with an appeal but, with the necessary changes being made, the principles apply with similar force. Further, the judgment of his Honour was delivered prior to the judgment of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, which confirmed the wider considerations necessary, other than the rights of any individual party, mandated by the provisions of the Civil Procedure Act in order "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and issues of case management. These involve due consideration to the public interest and the efficient management of courts' resources. Notwithstanding those qualifications, the principles enunciated by Santow J in Drabsch, supra, inform the exercise of the Court's jurisdiction and power."
5. I will deal with each of the requirements identified by Rothman J in turn.

The circumstances in which the admissions were made

1. The admissions as to publication made by each of the defendants occurred in the context of a series of meetings with their solicitor, with senior and junior counsel and, it would appear, with each other, given the contents of some of the affidavits. Mr Choy wrote to the plaintiff's solicitors seeking an extension of time with which to file the Defence, noting: "We have just instructed new counsel, Mr Sean O'Brien, who needs time to prepare the matter. In addition, we need to interview each of the 18 defendants who have given us initial instructions."
2. When the Defence was filed on 11 July 2017, it was approximately five months after commencement of the proceedings and the pleading was verified. Ms Rubagotti submits that in those circumstances the admissions were not merely formal and deliberate, but the subject of sworn testimony and that nothing in the affidavits provided to the court suggests any "inadvertent" admission. There is simply a claim that each of the defendants in question did not see the translations.
3. I accept this submission. There is no evidence of inadvertence. These were admissions made after careful consideration over a lengthy period, by all defendants, with the assistance of senior and junior counsel.

The established facts of the case

1. Whether or not the admissions were inadvertent, there would be a strong argument for permitting the withdrawal of the admissions if the admissions were contrary to the established facts.
2. All of the defendants appear to have spoken Chinese as their native tongue; seven of them were so deficient in English that, according to the Defence, they were unable to read the English language document. It is clear from the solicitor's notes and the advertisement in Sing Tao that the dispute between the plaintiff and defendants was conducted in both languages, not least because the plaintiff's English was insufficient for him to be able to understand the petition.
3. The highest that the defendants can put their case is that the first defendant now claims to remember that the Chinese language document was prepared some days subsequent to the petition and only shown to the plaintiff and not to any of the other 17 defendants. This is not a fact objectively capable of being established.
4. The fact that all the defendants were carefully interviewed by experienced members of the legal profession and verified the Defence containing the admission in question confirms that the defendants have failed to establish any alternative facts to the requisite standard or indeed at all.

The requirement for solid and substantial evidence

1. In Maile v Rafiq [2005] NSWCA 410, Tobias JA noted at [76] the obligation of the party wishing to withdraw an admission to place before the court "solid and substantial evidence" for the withdrawal of an admission. The admission in Maile v Rafiq related to breach of duty of care; the court set aside the finding of the trial judge on the basis that the trial judge had erred in holding that the plaintiff would be prejudiced if the amendment was permitted. I note, however, Tobias JA's observations at [101] as to the need for an explanation.
2. As Ms Rubagotti notes in her written submissions, none of the twelve defendants from whom affidavits had been obtained explains the circumstances in which they swore their admissions to be true, or why they now seek to change their position. Six of the defendants had provided no explanation at all. The precise parameters of the withdrawal of the admission are unclear, as no notice of withdrawal has been made. There is a total absence of any explanation, let alone a sensible explanation.

Prejudice

1. The plaintiff commenced proceedings at the end of the limitation period and Mr Dibb submits that if, as a result of the withdrawal of the admission, the plaintiff is met with a limitation argument in relation to that portion of the first matter complained of which is asserted to be in the Chinese language, he has only himself to blame.
2. There can be no doubt that there would be substantial complications if leave to withdraw is granted. The other applications set out at the commencement of this judgment are agreed by the parties to all be surplusage if the application is not granted. Those applications would significantly add to the costs burden on both parties. In relation to any answers to interrogatories resulting in evidence of further publications in Chinese to the same effect as the document in Chinese, the plaintiff would face limitation issues. While I note Mr Dibb's submission that the plaintiff commenced only days before the expiry of the limitation period, that does not justify the withdrawal of an admission as to a document which is central to the plaintiff's two claims.

Conclusion

1. The precise reason for the withdrawal of the admission is not made clear in the submissions. The real purpose seems to be so that the defendants may then, individually or collectively, argue that the subsequent placing of the Chinese language document in the first matter complained of on the Temple noticeboard (which constitutes the second matter complained of) by some anonymous person cannot then be sheeted home to one or more of the defendants.
2. Given the admission of the first defendant that he prepared this document to give to the plaintiff so that he would understand the contents of the English petition signed by the 18 defendants, this is not a promising argument, having regard to the breadth of liability for publication explained by the High Court in Webb v Bloch (1928) 41 CLR 331.
3. A more likely explanation for the application is that what the defendants really wish to do is to withdraw their current defence and replace it with some other document. I assume that this is the reason why the defendants have failed to file the notice of withdrawal contrary to r 12.6(3).
4. Taking all of the above into account, leave to the defendants to withdraw their admissions in relation to the inclusion of the Chinese language document in the first matter complained of should not be granted. The absence of evidence from six defendants, the poor quality of the evidence of the remainder and the failure to file a notice of withdrawal specifying exactly what is to be withdrawn are significant, and the prejudice to the plaintiff is considerable.
5. In addition, having regard to the additional steps it would be necessary to take if leave were granted, the ss 56-62 Civil Procedure Act 2005 (NSW) case management obligations which the court must take into account weigh heavily in favour of the plaintiff in terms of disposing of these proceedings in a "just, quick and cheap" manner.
6. This brings me to the plaintiff's application for costs to be assessed forthwith and on an indemnity basis. This issue was not addressed by Mr Dibb.

Indemnity costs payable forthwith?

1. The matters relied upon by the plaintiff are set out in the written submissions as follows: 1. On the defendants' case all the defendants are asserted to have made false admissions and have sworn false affidavits on oath. 2. The defendants have given no explanation that might explain their conduct. 3. The plaintiff has undertaken considerable work in reliance on the truth of the matters admitted in the defence, including very considerable work preparing submissions seeks to strike out other aspects of the defence. 4. In light of the matters contained in the various affidavits filed by the defendants, the plaintiff has been forced to undertake considerable work in issuing interrogatories and in reframing his case on alternative bases. 5. The plaintiff should not bear the burden of the unexplained joint delinquency of all 18 defendants.
2. The making of indemnity costs orders in the Defamation List is an order which should be reserved only for exceptional cases. However, there are signs that this reluctance may be changing. In Blake-Dyke v Bayard [2017] NSWSC 1474, McCallum J made such an order observing at [18]-[20]: "[18] HER HONOUR: Mr Richardson, having been successful without being called upon, seeks an order of the kind contemplated by cl 25 of the Defamation List Practice Note which provides that, in cases in which it appears to the Court that a party has made or opposed an interlocutory application unreasonably and subject to hearing from the parties the Court will consider making an order under r 42.7(2) of the Uniform Civil Procedure Rules that the opposing party's costs of the application be payable forthwith. [19] For the reasons I have just given in my judgment and as revealed by my exchanges with counsel, I certainly think the application was extremely optimistic. The question whether it was made unreasonably must be informed not only by the strength of the arguments put by counsel but the nature of the proceedings and, in particular, the fact that these are two individuals in dispute over emails written to a disciplinary body that governs the sport each voluntarily plays. [20] With some reluctance I must express my view that the application was unreasonable and I think this is a case of the kind in which an order for payment of costs forthwith should be made. I order that the plaintiff pay the defendant's costs of the application, such costs to be assessable forthwith."
3. The facts of that case are very similar to the present. The bringing of this application can similarly be described as "overly optimistic". In addition, the defendants are, even on their own version of events, and even if successful, seeking an indulgence. They have come to court because of their own mistake, not because of any conduct of the plaintiff. That is a very weighty factor to take into account.
4. The guiding principle, in determining whether to depart from the general rule, is whether the circumstances of the case demonstrates some relevant delinquency on the part of the unsuccessful party: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 962 at [7] and [19]-[21]. Such a costs order is not designed to punish (Hamod v New South Wales (2002) 188 ALR 659 at [20]) but to compensate the successful party for costs where the court takes the view that it was unreasonable for the party against whom the order was made to have subjected the innocent party to the expenditure of costs.
5. This case goes well beyond a complaint of inadequate pleading, excessive prolonging of the case or even bringing an application where there is little chance of success. It amounted to requiring the plaintiff not only to deal with the application but to reconsider a whole range of alternatives aimed at accommodating these (as yet unknown) changes to the defence, such as the administering of interrogatories to discover what was said in the Chinese language and the issuing of subpoenae.
6. Taking all of the above into account, I am satisfied that the costs in question should be paid on an indemnity basis.

Should the costs be payable in a gross sum and payable forthwith?

1. Orders for costs to be payable forthwith are of a particularly draconian nature. They may be applicable where some aspect of the case has been concluded or where there is "much to come" (Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd at [23]), and that is certainly the case here, as the proceedings have not gone beyond the Defence.
2. I take into account, however, that the parties are considering mediation and that there are strong community and cultural reasons why these proceedings should be referred to mediation at the earliest possible opportunity. The making of a gross sum costs order assessable forthwith at this juncture of the litigation may damage the parties' willingness and ability to mediate.
3. Accordingly, I am not prepared to make a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW), or to direct that the costs be assessed forthwith. However, the plaintiff may be able to renew his application in the future if further problems arise and I will grant liberty to apply if future events warrant a revisiting of this part of the costs order.

The translation of "罪行"

1. The parties have come to an agreement as to the translation of a word in the Chinese word "罪行". I note the agreement of the parties concerning the entitlement of the plaintiff to plead alternate meanings of "crime", "sin" and "wrongdoing".
2. Although it would have been easier, from the point of view of case and trial management, for me to make a ruling on this issue, the parties' agreement to plead the imputation as alternatives is understandable. This was a publication which was placed on the wall of a Temple and, in those circumstances, pleading alternate meanings as arising from the word in the Chinese language used in such a context is the appropriate mechanism for the parties to adopt.

Orders 1. Defendants' application to withdraw admissions of "so much of their defence as may constitute an admission to the publication of the portion of the first matter complained of that is in the Chinese language" is dismissed. 2. Defendants pay the plaintiff's costs on an indemnity basis. 3. Plaintiff's application for a gross sum costs order to be assessable forthwith refused. 4. Liberty to the parties to bring in Short Minutes of Order for a timetable for the future conduct of these proceedings.

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 October 2018