Kim v Kim

Catchwords: TORT – defamation – plaintiff brings application for default judgment when defendant fails to comply with timetable orders for filing a defence – whether default judgment available where serious harm is a jurisdictional requirement - defendant brings application for summary dismissal for plaintiff’s failure to provide particulars of serious harm in the concerns notices and in the statement of claim, failure to set out the text of the matters complained of and attach copies and errors in pleading the imputations – statement of claim struck out and dismissed with costs

Legislation Cited: Defamation Act 2005 (NSW) ss 10A, 12A, 12B
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 14.30, 15.19

Cases Cited: Altarama Ltd v Forsyth [1981] 1 NSWLR 188
Amersi v Leslie & Anor [2023] EWHC 1368
Bindel v PinkNews Media Group Ltd & Anor [2021] EWHC 1868 (QB)
Graham v Powell (No 3) [2014] NSWSC 185
Mond v The Age Company Pty Limited [2025] FCA 442

Category: Procedural rulings

Parties: Plaintiff:
Hoon Il Kim
Defendant:
Jae Jung Kim

Representation: Solicitors:
Cambridge Lawyers (Plaintiff)
HIS Lawyers (Defendant)

File Number(s): 2025/00118094

Publication restriction: Nil

Judgment

The claim before the Court

1. These are proceedings for defamation for a series of publications asserted to have been made by the defendant at a time when he and the plaintiff were in dispute about a business investment. Two Concerns Notices were sent. The defendant’s solicitor made a request for particulars of the second of these Concerns Notices, which was not answered prior to the statement of claim being filed on 26 March 2025.

2. The parties did not attend Court on the first return date. Instead, the parties entered into a consent timetable for answers to particulars and the filing of a defence by 29 May 2025. When this did not occur, the parties sought, by consent, to extend the date for filing to 20 June 2025.

3. The defendant’s failure to file a defence in accordance with these consent orders is the basis of the plaintiff’s application for default judgment. The plaintiff’s failure to provide particulars of harm, failure to answer the defendant’s request for particulars before commencing proceedings and failure to identify the imputations arising from each publication are the basis of the defendant’s application for summary dismissal.

The Parties’ Applications

4. The plaintiff seeks the following orders:

5. Default judgment be entered;

6. These proceedings be listed for assessment of damages;

7. The defendant pay the plaintiff’s costs.

8. The defendant seeks the following orders:

9. The concerns notice dated 3 October 2025 be deemed invalid pursuant to Defamation Act 2005 (NSW), s 12A(5);

10. The whole of the statement of claim filed by the plaintiff on 26 March 2025 be struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28(1);

11. That proceedings 2025/00118094 be dismissed; and

12. That the plaintiff pay the defendant’s costs of the proceedings.

The Procedural History of the Claim

6. The plaintiff sent a Concerns Notice on 6 August 2024 and, when that was not replied to, sent a second Concerns Notice on 3 October 2024.

7. Both Concerns Notices failed to comply with the requirements under ss 12A and 12B of the Defamation Act 2005 (NSW) (the “Act”). I particularly note:

(a) Instead of 28 days, only 14 days was given for compliance. (b) There were no particulars of serious harm (ss 10A(1) and 12A(1)(a)(iv)). (c) Although four imputations were claimed to have arisen from the defendant’s “statements”, the full text of each of the matters complained of was not set out, and the relevance of a Shareholder Meeting notice, which was attached to the second Concerns Notice, was unexplained.

8. The solicitors for the defendant answered the second Concerns Notice by an email dated 8 October 2024, seeking further and better particulars of the publications’ contents and the identity of the recipients, as well as noting the failure to provide proper particulars, in breach of s 12A(1) of the Act. The solicitors for the plaintiff were warned that if such particulars were not provided in 14 days, the defendant would challenge the commencement of any proceedings on the basis of a failure to comply with s 12A(5) of the Act.

9. The plaintiff did not answer the request for particulars and instead filed a statement of claim on 27 March 2025. The statement of claim is defective in the following respects:

(a) Outstanding failure to provide particulars: The plaintiff was not entitled to commence proceedings until the request for particulars was answered: s 12A(4) of the Act. (b) Failure to set out the matters complained of: Contrary to the provisions of Uniform Civil Procedure R**ules 2005 (NSW) (“UCPR”) rr 14.30 and 15.19, as well as s 12A(1) of the Act, the full text of each of the matters complained of was not set out. The text of the first matter complained of is clearly made up of excerpts from a longer conversation. The text of the second matter complained of does not accord with the text messages which the plaintiff asserted to be the second matter complained of. It would appear, from the plaintiff’s submissions, that the plaintiff claims that there are other defamatory publications over this period; if so, these have not been included in the statement of claim. (c) Failure to attach the Concerns Notices: Contrary to UCPR r 15.19, the Concerns Notices were not attached. (d) Failure to particularise serious harm: As was the case in the Concerns Notices (s 12A(1)(b)), no particulars of serious harm were set out, or are otherwise ascertainable. (e) Imputations errors: Only one set of imputations was pleaded to have arisen from the “statements” of the defendant asserted to have been made on two or more occasions between 28 March and 2 April 2024. That may be acceptable for a Concerns Notice (Amersi v Leslie & Anor [2023] EWHC 1368 at [150]-[151], cited with approval in Mond v The Age Company Pty Limited [2025] FCA 442), but it is not a proper pleading of the cause of action for defamation. Additionally, the imputations pleaded include imputations not referred to at all in the Concerns Notices, contrary to s 12B(2) of the Act.

10. Individually, each of these defects would amount to a sufficient reason to strike out the statement of claim.

11. The most serious defect is the failure to identify the serious harm, as sub-ss 10A(4) and (5) of the Act require the Court to consider the desirability of determining serious harm early in the case management of the proceedings. The purpose of this reform is to prevent costs piling up in claims where the extent of publication is limited and the damage cannot reach the level of “serious harm”.

12. Particulars of serious harm are essential in a claim such as the present. A consideration of the publications complained of, in accordance with the obligations statutorily placed on the Court, shows that the first matter complained of consists of remarks made at a dinner to a handful of fellow employees, and that the second matter complained of is an exchange of text messages of an even smaller audience, namely one person, being the Blacktown restaurant manager who asked the plaintiff (whom he calls “Boss”) about the allegations the defendant (whom he calls “Big Boss”) made to him. All of those who heard the matter(s) complained of appear to be aware of the mutual hostility between the plaintiff and defendant arising from their joint business ventures.

13. The plaintiff’s failure to provide any particulars of serious harm, or to refer to any damage or loss capable as being viewed as amounting to serious harm, is fatal to his claim for defamation, which must accordingly be struck out. The other defects set out above would also be, singly or jointly, reasons for dismissal.

The Plaintiff’s Application for Default Judgment

14. As the defects in the statement of claim are such that the claim must be dismissed, I will deal with this application only briefly.

15. Proof of serious harm is a jurisdictional requirement. A plaintiff should not be entitled to escape the requirement of proof of this element of the tort of defamation by seeking entry of judgment by default. This has, in fact, been a course the Courts have discouraged for many decades in relation to defamation proceedings (see Altarama Ltd v Forsyth [1981] 1 NSWLR 188).

16. Failure to file a defence, even on two occasions, would rarely, if ever, warrant the extreme step of striking out the whole of the defence. This is particularly the case in defamation proceedings because of the complexity of the cause of action. In Graham v Powell (No 3) [2014] NSWSC 185 at [6], Beech-Jones J warned of the “risk of oppression” in entering default judgment against a litigant in person (or even, I would add, a member of the profession) unfamiliar with the complexities of defamation law.

17. There are additional reasons, under the new legislation, to exercise caution; s 10A(4) refers to the judicial officer’s “own motion” in relation to the determination of serious harm. The same is the case in English law (see Bindel v PinkNews Media Group Ltd & A**nor [2021] EWHC 1868 (QB)). This would require the Court to consider whether serious harm can be established, even where no defence had been filed.

18. Accordingly, even if I had not struck out the statement of claim for the reasons set out above, I would not have entered default judgment.

Concluding Observations and Orders

19. Given that the timetabling orders were made by consent inter partes and thereafter not complied with (see [2] above), the Court was deprived the opportunity to point out to the parties in open Court the very obvious pleading errors set out above. As such, any opportunity for the Court to case-manage these proceedings before these applications were made was lost.

20. The limitation period has expired, and if the plaintiff wishes to recommence, an application for leave to commence proceedings out of time will need to be made.

21. I make the following Orders:

22. Pursuant to rr 13.4 and 14.28 of the U**niform C**ivil P**rocedure R**ules 2005 (NSW), and ss 10A, 12A and 12B of the Defamation Act 2005 (NSW), these proceedings are struck out and dismissed.

23. The plaintiff is to pay the defendant’s costs of these proceedings.

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