Kang v Immigration News Pty Ltd

The hearing on 28 April 2016

1. Mr Goldsmith appeared for Mr Kang on 28 April 2016. He apologised to the court for failure to comply with the direction to file a Notice of Appearance, as he had effectively only received instructions that morning. Leave was granted to file a Notice of Appearance.
2. Mr Goldsmith told the court that his instructions, sent shortly after midnight the night before and read by him at 7 am, were to apply for an adjournment of all the applications listed for hearing on behalf of the defendants. He had "no instructions whatever" about the plaintiff's proposed application for interim preservation of material.
3. Mr Goldsmith agreed that the statement of claim in its current form could not stand, and that major redrafting would be required. He conceded the following errors: 1. The claim is out of time on its face, in that it was commenced more than a year after the date of the matter complained of, 19 February 2015. Even if the publication is electronically available (a matter about which there is some doubt), the claim would have to be repleaded to exclude material outside the limitation period. 2. The particulars of publication, which state that the matter complained of is accessible on a website at www.australiavisa.com, is acknowledged to be incorrect. The matter complained of was emailed to members on a subscription list on 19 February 2016, and is not available on the Internet. This means that the particulars of publication must be completely repleaded. 3. If the claim is electronically accessible, particulars of downloading must be provided, as otherwise there is no cause of action: Bleyer v Google Inc [2014] NSWSC 897 at [16]. There are currently no particulars of downloading at all. 4. The particulars of who published the matter complained of, as set out in the statement of claim, are incorrect. Paragraphs one to three of the statement of claim refer to the "fourth and fifth defendants", when there are in fact only two defendants. 5. The matter complained of is unhelpfully described as "the third matter complained of". However, this is a minor problem. The real difficulty for the plaintiff is that not only were proceedings commenced against the first defendant in the Supreme Court of New South Wales for a series of publications which appear to include this same publication, but those proceedings were struck out and dismissed by McCallum J in a show cause application: Kang v Australian Broadcasting Corporation [2015] NSWSC 893; [2015] NSWCA 375. A further problem arose after I heard argument in this matter and reserved my decision. Mr Goldsmith, who had originally conceded that these proceedings formed part of the Supreme Court claim against Mr Konrad, and that an application for leave under s 23 Defamation Act 2005 (NSW) was required, withdrew that concession by email after the hearing, stating that the plaintiff was never given leave to file the statement of claim containing this matter complained of, because the proceedings in the Supreme Court which included this proposed amendment were instead struck out. 6. There are other errors of form, such as the inadequately pleaded claim for "loss and damage to [the plaintiff's] reputation" in paragraph 7 and the unhelpfully framed assertion that "the third matter complained of was of and concerning the plaintiff", pleaded separately to the paragraph containing the imputations.
4. Mr Goldsmith was aware the defendants were seeking summary dismissal of the proceedings. His preliminary application was, however, for an adjournment.

The plaintiff's reasons for seeking an adjournment

1. Mr Goldsmith gave four reasons for seeking an adjournment: 1. He needed to find out from the plaintiff where the plaintiff had obtained the matter complained of, so that he could determine whether it was electronically readable or merely a one-off email. 2. He needed to replead the whole of the statement of claim, and in particular consider the limitation period (a submission very similar to (a) above). 3. He needed to advise his client to make an application under s 23 Defamation Act 2005 (NSW). 4. He had only just received instructions shortly after midnight and was not in a position to answer the defendants' arguments.
2. Mr Konrad submitted in reply: 1. Whether or not Mr Goldsmith had read them, he had certainly received the defendants' written submissions on the due date of 21 April, because the plaintiff had included Mr Goldsmith's email address in reply. 2. Mr Goldsmith had acted for Mr Kang in the Supreme Court, where Mr Konrad as well as the Australian Broadcasting Corporation had been a defendant. The claim against Mr Konrad was based on a series of issues of newsletters, of which the matter complained of was one. That meant that Mr Goldsmith not only should be familiar with the content and format of the newsletter, but that he had had this matter complained of in his possession for over a year. 3. The limitation and s 23 issues were essentially acknowledged by Mr Goldsmith, and the only issue on which he needed to prepare was the application for summary dismissal or stay under s 61 or s 67. As that application relied heavily on the plaintiff's proceedings against the ABC in the Supreme Court, in which Mr Goldsmith appeared for the plaintiff, these were principles and facts that Mr Goldsmith was well prepared for.
3. Both parties also addressed me on the general principles relevant to adjournment of arguments. Mr Goldsmith submitted that the failure to comply related to only one set of orders, and that any prejudice to the defendants (noting these would essentially be Mr Konrad's costs of coming to Australia) could compensate for any delay or inconvenience arising from the adjournment of the defendants' applications. Mr Konrad submitted that the plaintiff had failed to comply with every single order that I had made on 24 March 2016, and that this failure should be seen against a background of similar conduct in the Supreme Court of New South Wales sufficiently serious to warrant the dismissal of his claim.
4. As to the appropriateness of a costs order as compensation, in Aon Risk Services Australia Limited v Australia National University [2009] HCA 27 ("Aon") the Court warned that, where a party sought an adjournment, leave to amend or both, compensation in the form of costs is often not a sufficient solution: "96. An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power."
5. Nor should the compensating of a party be sufficient, as the interests of the court should also be taken into account. The achievement of a just but timely and cost-effective resolution of a dispute has a flow-on effect upon the court and other litigants. In Sali v SPC Ltd [1993] HCA 47 Toohey and Gaudron JJ explained that case management reflected: "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ..."
6. Finally, there is no explanation offered for the lateness of the application (cf Aon at [98] - [102]). Mr Goldsmith stated that "I cannot give any explanation to Your Honour as to why these orders were not complied with. He had no instructions about whether the plaintiff proposed to proceed with the application for interim orders.
7. Individually, each of these problems would be troubling, and in total they are "very concerning" (to use McCallum J's word in Kang v Australian Broadcasting Corporation at [25]) in terms of the likelihood that the plaintiff can conduct this litigation in an efficient manner. Taken as a whole, they paint a picture of a plaintiff who is just as likely to be unready on the next occasion as he is on this occasion.
8. In those circumstances, no adjournment of this specially fixed argument should be granted, and I note these as my reasons for making that order and permitting the defendants to proceed with their applications.

Application for dismissal of proceedings under s 61 and 67 and UCPR Pt 12 r 12.7

1. Mr Konrad relied upon the general statements of principle set out in Kang v Australian Broadcasting Corporation [2015] NSWSC 893, where McCallum J stated her reasons for dismissing Mr Kang's earlier proceedings against both the Australian Broadcasting Corporation ("ABC") and Mr Kang as follows: "[22] The response required in the case of a "reluctant gladiator" referred to by Young AJ in Bi v Mourad must, a fortiori, be the response required in the case of a gladiator who has been less than frank both in seeking directions from the Court and in his explanation for his subsequent failure to comply with those very directions. [23] Mr Goldsmith appears to have acted promptly at first to seek to have the proceedings relisted but, even then, the amended statement of claim was not served for a further month; was served only on one defendant and was served the day before the proceedings were in Court for the show cause hearing. [24] The events I have recited are very concerning and give me no confidence that Mr Kang has any intention of complying with the duty imposed upon him by s 56. His affidavit sets out his determination "moving forward" to adhere to directions of the Court but there is no basis for accepting that assurance. [25] In my view, the dictates of justice require that the proceedings now be dismissed."
2. These observations were accepted as correct in Kang v Australian Broadcasting Corporation [2015] NSWCA 375.
3. Mr Goldsmith's submissions were that the delay was extremely short, and related to only one order, which meant that no court would consider striking out the whole claim. He submitted that the delays in this case fell far short of the delays in his client's Supreme Court case against the ABC and Mr Konrad.
4. Is this correct? A comparison of the facts in this case to the plaintiff's defamation claims against Mr Konrad and the ABC in the Supreme Court demonstrate the following: 1. Late commencement of proceedings: In the Supreme Court, the plaintiff commenced proceedings against Mr Konrad and the Australian Broadcasting Corporation on the last day of the limitation period for at least one of the publications. In these proceedings, Mr Goldsmith acknowledges that proceedings were commenced after the limitation period had expired and that the claim would have to be amended to remove the part which was now time-barred. 2. Length of delay: Mr Goldsmith submitted that the period of delay and failure to comply was longer in the Supreme Court, in that the plaintiff was unready on what appear to have been three occasions before the proceedings were struck out, while there has only been one failure to comply in this court. However, analysis of the directions hearings in the Supreme Court reveals that the proceedings were stood over on the first return date because the claim had not been served and on the second date because the plaintiff failed to appear. The period of delay, in those circumstances, is only superficially more in the Supreme Court. 3. Seriousness of non-compliance Mr Goldsmith submitted that the conduct of the proceedings in the Supreme Court was much more serious, in that there were failures to serve, a failure by the plaintiff on one occasion to appear, a failure to provide amended pleadings and a generally unacceptable level of conduct of litigation. Mr Konrad submits, however, that the delay in these proceedings is much more serious, in that the plaintiff failed to comply with every order I made (even in relation to the filing of a Notice of Address for the solicitors), came to a specially fixed hearing seeking an adjournment at the last minute, provided a hopelessly drafted and time-barred statement of claim, and sent an abusive reply to the defendants when served with their submissions.
5. Taking the above into account, I am satisfied that the delay by the plaintiff in these proceedings is at least comparable to his delay in the Supreme Court proceedings.
6. One aspect of the delay, however, puts this application into a special category, namely that the plaintiff had already suffered the loss of other claims against Mr Konrad by reason of delay, yet displays exactly the same disregard of his obligations to the defendants and to the court in these proceedings. In other words, McCallum J's lack of confidence in the plaintiff complying with the obligations placed on him by s 56 Civil Procedure Act 2005 (NSW) is entirely justified.
7. In Kang v Australian Broadcasting Corporation at [18], Basten JA noted the discussion of the relevant principles to apply in a series of recent judgments of that court, and in particular Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334. His Honour also noted (at [17]) that the dismissal of proceedings is a remedy of last resort and an extreme measure. I expressly recognise this consideration and respectfully adopt the approach to these issues taken by the Court of Appeal.
8. What puts this case into the category of proceedings which should be struck out are, in my view, the circumstances in which the plaintiff has shown the same disregard for the defendants and for this court that he showed to the Supreme Court. This point was made very simply, but powerfully, by Mr Konrad, when he opened his submissions by referring to the need for there to be "respect for the court" as well as for opponents. He submitted that the whole of the plaintiff's conduct was in contravention not only of court rules (even such simple requirements as filing a Notice of Appearance) but of the rules of politeness for dealing with opponents in litigation. That rule was broken when the plaintiff responded to the defendants' written submissions, not with their own submissions, but with the plaintiff's angry threat of further litigation (an email which Mr Konrad pointed out was also sent by the plaintiff to Mr Goldsmith, whether Mr Goldsmith was retained or not).
9. These observations, coming from a member of the community rather than a legal representative, are all the more commanding of attention, as well as being a timely reminder of the role that courts play in our community in providing dispute resolution which is "just, cheap and quick".
10. I am satisfied that, on the exceptional facts in these proceedings, the very high test for the dismissal of proceedings is made out. Accordingly, the proceedings are dismissed with a special costs order to reflect the fact that the defendants, who are litigants in person, are entitled only to disbursements of a limited nature.

Application for leave under s 23 Defamation Act 2005 (NSW)

1. Section 23 of the Defamation Act 2005 (NSW) provides: "If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."
2. There is no doubt that the present proceedings relate to "the same publication of the same matter", namely the tenth matter complained of in the Supreme Court "Amended Statement of Claim" which is attached to the defendants' written submissions (Exhibit A). The question is whether, on the revised facts as asserted by Mr Goldsmith, the plaintiff's failed application before McCallum J to amend the statement of claim and sue on these proceedings amounts to having "brought" proceedings against the defendants.
3. In Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136, McCallum J noted the acknowledgement of senior counsel for the plaintiff that the commencement of proceedings which were never served amounted to proceedings having been "brought". However, that is a very different fact scenario to the present, if Mr Goldsmith's contention that the application to amend was refused without the claim actually ever being filed.
4. What was the status of Mr Konrad and his company in the proceedings commenced by Mr Kang against the Australian Broadcasting Corporation? An analysis of McCallum J's judgment shows: 1. Mr Konrad was both the second defendant (at [1]) and the respondent to the appeal in the Court of Appeal, and I note confirmation of this from the contents of the original statement of claim as set out in Exhibit A. Immigration News was not, however, a defendant. 2. Mr Konrad was present on the two relevant occasions when the Supreme Court orders were made and he was given a copy of the amended statement of claim by Ms Chou, a solicitor employed by Mr Goldsmith. McCallum J adds (at [9]): "At the time of handing that document to him, according to Mr Konrad's uncontested affidavit, she said, "We didn't provide you with a copy as we didn't expect you to be here today." In any event Mr Konrad was, in due course, afforded an opportunity to consider that document, since the show cause hearing did not proceed until a later date." 1. The version of the amended statement of claim provided by Mr Konrad includes the matter complained of in these proceedings as the tenth matter complained of in those proceedings.
5. Analysis of the Court of Appeal's summary of the facts confirms that "an amended statement of claim was served on the first respondent the day before the directions hearing on 10 April 2015" and that "a copy was given to the second respondent, Mr Konrad" (at [5]). I note that Mr Konrad attaches page 326 of the White Book in support of his claim that this was the amended statement of claim filed by the plaintiff.
6. Proceeding on the facts as claimed by Mr Goldsmith, namely that a claim on this publication was proposed but not permitted, is that sufficient for the court to regard the claim as being "brought"?
7. The answer, in my view, lies in the entitlement to costs of a party who appears in such an application. If a party has an entitlement to a costs order in relation to a claim before the court, on the basis that the non-party is the "effective litigant" Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 188), then that claim may be taken to have been "brought". Mr Konrad was already a party to the proceedings, and he was fighting against the addition of the claim the subject of these proceedings being "brought" against him.
8. The situation of the first defendant is considerably more difficult, in that while it is a joint tortfeasor, it was not a party to the proceedings "brought" in the Supreme Court. I was not addressed on this issue by either party.
9. Those findings are made on the basis of the facts being as stated by Mr Goldsmith. If the fact scenario is as claimed by Mr Konrad, namely that the statement of claim he attaches to his submissions was in fact filed, then there can be no doubt that leave would be required under s 23, as Mr Goldsmith conceded, at least in relation to himself.
10. The purpose of s 23, Mr Konrad submitted, was to prevent abuse of process, and the exercise of discretion to grant leave under s 23 should be viewed in this regard. He urged me to approach the exercise of that discretion in the same way as McCallum J had done in Carey v Australian Broadcasting Corporation, although conceding that the factors to take into account where proceedings were already commenced were not argued before the Court of Appeal (at [47] per Beazley JA) and that her Honour's view that leave could not be granted nunc pro tunc had been rejected on appeal.
11. The circumstances in which Mr Goldsmith effectively conceded this point before me but after argument was concluded changed his position makes my position in determining the matter difficult, particularly since the defendants are self-represented, and may not have appreciated the significance of his change of position.
12. As I am of the view that the proceedings should be dismissed for other reasons, I shall simply note that, if the circumstances in which the matter complained of in these proceedings came before the Supreme Court as proceedings "brought" in that court and an application under s 23 would have to be brought, I would not grant leave under s 23 Defamation Act 2005. My reasons for refusing leave would take into account the hopelessness of the pleading of the statement of claim, the obvious limitation problems and the plaintiff's unacceptable conduct of these proceedings to date. I would have to hear submissions in relation to the first defendant before coming to any conclusion as to its entitlement to rely upon failure to seek leave under s 23.

Limitation issues

1. Mr Goldsmith concedes that the statement of claim is self-evidently out of time, but argues that it is capable of amendment. He pointed to several features of the printed copy of the newsletter which appeared to suggest it was electronically searchable (such as the reference to archives which can be searched), and he may be correct, but in the absence of evidence I decline to speculate.
2. The issue of whether this is an electronic publication capable of being downloaded and searched is thus not possible to determine given the inadequacy of the pleading and absence of evidence. That is an unsatisfactory position where the defendants have filed a defence reliant upon the limitation provisions, and bring an application for dismissal on the basis that the claim is time-barred, where the plaintiff has failed to comply with a timetable to file evidence in reply. A party who conducts proceedings in this way may be confined to the limitations of the case so presented: Nau v Kemp (2010) 77 NSWLR 687 at [7].
3. In its present form, the pleading is liable to be struck out because there is no evidence of publication within the limitation period. It is not simply that the claim is out of time on its face, but because there is no evidence of downloading. Accordingly, I am satisfied that the proceedings are time-barred and should be struck out. Orders 1. Statement of claim struck out and dismissed. 2. Plaintiff pays such of the defendants' costs and disbursements as they are entitled to as litigants in person.

Schedule A IMMIGRATIONews [sic] Thursday the 19th of February 2015 EDDIE KANG ARRESTED Eddie Kang was arrested today on Fraud charges under the Crimes Act and Misleading Conduct under Australian Consumer Law. He has been bailed to appear in court on the 20th March. View the news of this on Channel 7. As readers of IMMIGRATIONews know it has been a long time coming for any action to be taken against Kang. The Department of Fair Trading has done what the Department of Immigration could not and what the NSW Police thought was all too hard to tackle. The Principle Investigator at Fair Trading and has been working on gathering evidence to charge Kang for a number of months. We understand that he has put off taking annual leave until the task force had secured Kang's arrest. Congratulations to Fair Trading for making something happen where many of Kang's victims had given up hope Eddie Kang would ever be stopped.

IMMIGRATIONews have been investigating Kang now for nearly 2 years. It wasn't until we sent someone to Singapore to visit the office of Singapore Oil, one of Kang's companies, that we discovered it was just a rented postal address. From that moment on we knew what type of person Kang was. He is a master of illusion, setting up impressive web sites of large companies that don't really exist, except on paper. He has allegedly used this skill to trick hundreds of innocent job seekers out of millions of dollars. I have had numerous meeting with the Immigration Department and NSW Police on what they planned to do about Eddie Kang. The NSW Police gave up and left it to the DIBP to do something about him but in the end they failed. Seven News has informed me that Kang is associated with around 800 visa refusals. That must be some kind of record. Initially the DIBP told me the number was 200. It goes to show he has been busy in the last 18 months. I calculated based on this number that would mean the DIBP has pocketed an estimated 8 Million dollars from Kang's organised doomed applications. Knowing they would refuse any application associated with Kang, the DIBP were happy to take the money anyway. DIBP going [sic] to return all of that money to visa applicants Kang allegedly defrauded? As Kang goes to court next month no doubt more information will come to light regarding the manner in which he operated.

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: 13 May 2016