Lee & Anor v Kim

Arnold v National Westminster Bank plc [1991] 2 AC 93 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Emanuele v ASC (1999) 188 CLR 114 Green v Weatherill [1929] 2 Ch 213 Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] CASES CITED: Macdougall v Knight (1890) 25 QBD 1 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38 Spautz v Kirby (1989) 21 NSWLR 27 Trawl Industries of Australia v Effem Foods Pty Ltd (1992) 36 FCR 406

Yoon Shin Lee (First Claimant) PARTIES: The Sydney Korean Herald Pty Ltd (Second Claimant) Chung Yup Kim (Opponent)

COUNSEL: J S Wheelhouse SC/D Jay (Claimants) C J Dibb (Opponent)

SOLICITORS: Banki Haddock Fiora (Claimants) N/A (Opponent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40759 of 2005

HANDLEY JA BEAZLEY JA SANTOW JA

20 DECEMBER 2006 YOON SHIN LEE & ANOR v CHUNG YUP KIM CATCHWORDS

DEFAMATION - successive actions - same publications

DEFAMATION - 1974 Act - s 9(3) - leave to bring second action - principles - leave refused

RES JUDICATA - successive actions - same publications - cause of action estoppel FACTS

The appellant was the publisher of the Sydney Korean Herald, a weekly newspaper in the Korean language. The respondent brought successive actions in defamation against the appellant for republishing statements about the respondent by the Board and Management of the Sydney Korean Society. At a 7A trial with a jury, the respondent applied for and was denied leave to amend to rely on the material actually published rather than material published in another Korean newspaper and the jury were directed to return a verdict for the defendant. A second action was then brought in respect of the same defamatory imputations based on the correct articles in the same issues that had been the subject of the first action. The defendants' motion that the second action be summarily dismissed for res judicata or abuse of process was dismissed. On appeal. HELD: (1) There was an overlap between the causes of action pleaded in the first and second statements of claim; (2) The principles in Henderson v Henderson (1843) 2 Hare 100, 115 require parties to plead their whole case and they are not permitted to bring a second action based on new matter which ought to have been pleaded in the first action; (3) The primary Judge erred in holding that the merits of the respondent's claims had not relevantly been determined in the first action. (4) The Judge's discretion under s 9(3) of the Defamation Act had miscarried and must be re-exercised: Henderson (supra); (5) Cause of action estoppels were established which barred the second action; (6) Leave under s 9(3) to bring a second action should be refused. ORDERS (1) Appeal allowed with costs.

(2) Orders of the District Court of 25 August 2005 set aside.

(3) In lieu thereof order that there be judgment for the defendants in action 219/05 with costs.

(4) The plaintiff Chung Yup Kim is to pay the defendants' costs of the notice of motion of 30 May 2005.

(5) The respondent is to have a certificate under the Suitors' Fund Act 1951.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40759 of 2005

HANDLEY JA BEAZLEY JA SANTOW JA

20 DECEMBER 2006 YOON SHIN LEE & ANOR v CHUNG YUP KIM Judgment 1 HANDLEY JA: The Court heard full argument on this application for leave to appeal from an interlocutory decision of Rein DCJ in a defamation case. At the end of the oral hearing it granted leave to appeal and reserved its decision. The appeal arises out of successive actions for defamation brought by the respondent based on issues of the Sydney Korean Herald (the Herald), a weekly newspaper in the Korean language, published on 14 and 21 April 2000. 2 In the first action (2403/03) the respondent sued the first appellant as publisher of the Herald for republishing statements about the respondent issued by the board and committee of management of the Sydney Korean Society the members of which were also defendants. They were schedules A and B to the statement of claim (the first statement of claim) and translations were attached. 3 It is apparent from English words on the schedules, which are otherwise in the Korean language, that they were copies of matter published in The Weekly Korean Life Review, another defendant in that action. 4 In his statement of grounds of defence dated 14 November 2003 the first appellant denied (paras 7, 11) that he had published schedules A and B and admitted (para 11) that on or about 21 April 2000 he published material in the Korean language "that was not substantially different from the material set out in schedule B". 5 The action came on before Cooper DCJ and a jury for trial of the s 7A issues in March 2004. The respondent obtained leave to amend to annex new translations of schedules A and B. The first appellant then filed amended grounds of defence in which he denied (paras 7, 11) publishing schedules A and B and withdrew his qualified admission about schedule B. 6 The respondent did not have copies of the articles from the Herald of 14 and 21 April 2000 and did not obtain copies until the third day of the trial. In the meantime attempts to adduce oral evidence of their contents got nowhere. 7 The Judge refused the respondent leave to amend to rely on the Herald articles instead of schedules A and B. After a voir dire hearing he rejected the tender of the articles because they were not in the same terms as schedules A and B. Since the respondent had not proved that the first appellant published schedules A and B the Judge directed the jury to return a verdict for the first appellant. 8 The respondent's application for leave to appeal from the refusal of leave to amend was unsuccessful. 9 He brought a second action against the first appellant (219/05) in which the second appellant was also sued. As the commercial publisher of the Herald it was jointly liable with the first appellant for any defamatory material. It was common ground before Rein DCJ and this Court that the appellants were privies and it was not necessary to distinguish between them for any relevant legal purpose. 10 Paragraphs 4 and 5 of the statement of claim in the second action (the second statement of claim) pleaded publication of the articles on 14 and 21 April. Translations were annexed. The four defamatory imputations pleaded in para 6 in respect of the first publication were the same as those pleaded in para 20 of the first statement of claim. 11 The eight defamatory imputations pleaded in para 7 of the second statement of claim in respect of the second publication were the same as eight of the nine pleaded in para 21 of the first statement of claim. The other imputation had been struck out of the first statement of claim. 12 On 30 May 2005 the appellants applied by notice of motion for the second statement of claim to be struck out as an abuse of process and for the action to be dismissed. On 1 June the respondent applied by notice of motion, inter alia, for leave nunc pro tunc under s 9(3) of the Defamation Act 1974 to bring the second action. The appellants relied on cause of action, issue, and Anshun estoppels, s 9(3) and abuse of process. On 25 August Rein DCJ decided that the section did not apply, therefore made no order on the respondent's notice of motion, and dismissed the appellants' notice of motion. This dismissal is challenged in the appeal. 13 Section 9(2) provides: "Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient." 14 Thus, unlike the position at common law, each imputation, in the matter published by the appellants, which was defamatory of the plaintiff gave rise to a separate cause of action: Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174, 189-90; Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38, 41. 15 In the first action the respondent had to prove that the first appellant published schedules A and B in the issues of 14 and 21 April and that they conveyed the defamatory imputations pleaded. The respondent failed to prove that the first appellant published those schedules. At a higher level of abstraction he failed to prove that the first appellant published matter which conveyed the defamatory imputations. At a still higher level of abstraction he failed to prove that the first respondent defamed him in those issues. 16 In the second action the respondent sued the first appellant for publishing other matter in the same issues. However (with an immaterial exception) he sued in respect of the same defamatory imputations conveyed by material published in the same issues. 17 The causes of action were technically different because the matters complained of were different: s 9(1). However as Cooper DCJ held, when he rejected the tender of the articles published by the Herald, the documents were very similar despite differences in their wording and layout. 18 The first question is whether there is a cause of action estoppel. There was no determination in the first action of the integers of the claims in the second, only the dismissal of the action as a whole, and thus there are no relevant issue estoppels. We were not referred to any decision directly in point but Macdougall v Knight (1890) 25 QBD 1 CA dealt with a related question. The plaintiff sued for libel based on particular passages in a pamphlet published by the defendant and failed. His second action in respect of other passages in the pamphlet was held barred by a cause of action estoppel. Lord Esher MR said (8): "… how is it possible to say otherwise than that the subject matter of the two actions is the same, and that the plea of res judicata is an answer to the claim of the plaintiff? It is said that the subject-matter of the two actions is not the same, because the defamation, which is the foundation of one of them, consists of other parts of the [pamphlet] than those relied on in the former action … A plea of res judicata must succeed." 19 Fry LJ said (10): "The question turns on whether the former action between these parties was for the same cause of action as that in the case before us. Both actions are for libel contained in the pamphlet, and therefore, I conclude the cause of action is the same. In my opinion it is impossible that two actions should be properly brought in respect of the same libel. The injustice in allowing a litigant to select one portion of a libel as the ground for one action and another as the ground for a second action, and so on indefinitely, is obvious … I think therefore that a plea of res judicata would succeed." 20 That decision does not cover this case because at common law a defamatory publication gave rise to a single cause of action: Singleton (above) at 41. An analogous situation would arise at common law if an action for slander were brought for defamatory statements at a large meeting. A plaintiff who sued in respect of some statements and failed could not bring a second action for other statements at the same meeting. Macdougall v Knight (above) would be directly in point. 21 A plaintiff suing for slander in respect of statements at such a meeting might fail because the tribunal of fact was not satisfied that the defendant spoke the words complained of. The disappointed plaintiff could not bring a second action in respect of the same or similar words and call different witnesses in the hope that their evidence might be accepted. 22 Although the merits of the claims in the second action were not determined in the first the decision in the first action was one on the merits. The respondent failed because he did not prove that the first appellant published the matters complained of. He could not prove the case he pleaded or plead the case he could prove. This does not exclude a cause of action estoppel. The principles are those stated by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115 [67 ER 313, 319]: "… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 23 This statement has been approved in the highest courts: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 598; Arnold v National Westminster Bank plc [1991] 2 AC 93, 104-5 (Arnold). 24 Although the causes of action in the actions were not strictly the same this does not exclude a cause of action estoppel. In Green v Weatherill [1929] 2 Ch 213, 221 Maugham J said: "… it must be admitted that the cause of action in the two cases is strictly speaking not the same. On the other hand, the plea of res judicata is not a technical doctrine, but a fundamental doctrine based on the view that there must be an end to litigation." 25 This is the law in Australia. In Trawl Industries of Australia v Effem Foods Pty Ltd (1992) 36 FCR 406 Gummow J held that causes of action under s 52 of the Trade Practices Act and in negligence for causing economic loss based on the same events were in substance the same. He said (422): "… this is a case where it can be said that the same evidence would be led to prove the case Trawl propounded in its pleadings in both actions. The one factual matrix has generated the controversy which is given legal form in the two pleadings. As a matter of substance, in this Court Trawl seeks to attack Effem again upon a corresponding cause of action.

In my view Effem has made out its case of cause of action estoppel against Trawl. This is so, even though no claim previously was made in negligence. The substance of the controversy embraces such a claim. The gist of the recovery sought both in negligence and for contravention of the Trade Practices Act is the same." 26 The qualification referred to by Wigram VC in Henderson v Henderson where special circumstances are present does not apply to cause of action estoppel: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 504-5, 510-1, 512; Arnold [1991] 2 AC 93, 104, 108. 27 The overlap between the causes of action pleaded in the first and second statements of claim is almost complete. Both actions relate to the same defamatory imputations in the same articles in the same issues. It has not been suggested that either issue contained other articles referring to the respondent. Despite the terms of the first statement of claim the respondent intended to sue the first appellant in respect of the articles published in the Herald, and not articles published elsewhere for which the first appellant was not responsible. Despite differences which were more than minor the texts of the matters complained of were "very similar". In my judgment cause of action estoppels were established. 28 If for some reason this conclusion is incorrect the second action was in my judgment vexatious and an abuse of the process of the Court and should be summarily dismissed on that ground. 29 Section 9(3) provides: "Where a person has brought proceedings … for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of 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." 30 It refers to proceedings for defamation in respect of the publication of "any matter". Section 9(1) provides: "Where a person publishes any report [or] article … by means of which … and its publication, the publisher makes an imputation defamatory of another person … then for the purposes of this section:

(b) the imputation is made by means of the publication of that matter." 31 In the terms of s 9(3) the first statement of claim alleged that the first appellant published reports or articles in the form of schedules A and B "by means of which … and [their] publication" he made the defamatory imputations pleaded. The second action was not "in respect of the same … publication[s] of the same matter". However the findings of Cooper DCJ in his decision on the tender of the Herald articles establishes that the second action is in respect of the same publications, ie the same issues of the Herald, and of "like matter". 32 That decision was an interlocutory one and the Judge's reasons did not create an issue estoppel and strictly they were not evidence of the facts. However his reasons were tendered without objection and they were treated in argument as evidence of the similarity of the Korean texts. The Court was not taken to the English translations to establish that Cooper DCJ was in error, or to establish that the texts relied on in the second action were not "like" the texts relied on in the first. 33 Rein DCJ held that s 9(3) did not apply but said that if it did he "would have no hesitation in granting leave" subject to a question which is not presently relevant. I differ, with respect, from the Judge's view of the application of the section, and must consider his exercise of the discretion. The Judge considered that leave could be granted under s 9(3), nunc pro tunc but in Spautz v Kirby (1989) 21 NSWLR 27 Hunt J held otherwise. Emanuele v ASC (1999) 188 CLR 114 may require this decision to be reviewed but it is not necessary to do this in the present case. 34 Singleton [1982] 2 NSWLR 38 is the principal reported case on the section but is not directly in point. Following an interlocutory ruling at the first trial, which the plaintiff could not immediately test in the Court of Appeal, he discontinued by leave subject to the payment of the defendant's costs. He did so with a view to bringing a second action and the defendant did not seek the imposition of a condition to prevent this. Hunt J found that the second action was not an abuse of process (p 47) and granted leave. 35 Hunt J referred to the report of the Law Reform Commission which had recommended s 9(3) as part of its proposal that each defamatory imputation be a separate cause of action (p 42). The examples in the report of the circumstances in which leave could properly be granted are remote from the facts of this case. One example was where the first action had been brought for a very limited dissemination of the matter complained of and the other was where the second action was for a later dissemination. 36 The present case is quite different. Rein DCJ was persuaded by the fact that the merits of the respondent's claims based on the articles in the Herald had not been determined in the first action. In giving this consideration decisive weight the Judge devalued or ignored the principles in Henderson v Henderson (above) which undergird the law of res judicata, Anshun estoppel, and the relevant form of abuse of process. As a result the Judge's exercise of the discretion miscarried and this Court must re-exercise it. 37 In my judgment a miscarriage which would not displace a defence of res judicata should not normally be a ground for exercising the discretion under s 9(3) in favour of a plaintiff. If there was strictly no cause of action estoppel in this case and the second proceedings were not an abuse of the process of the Court I would nevertheless refuse leave under s 9(3) to bring the second action for the reasons given in Henderson v Henderson. The appeal should therefore be allowed. I would make the following orders:

(2) Orders of the District Court of 25 August 2005 set aside.

(3) In lieu thereof order that there be judgment for the defendants in action 219/05 with costs.

(4) The plaintiff Chung Yup Kim is to pay the defendants' costs of the notice of motion of 30 May 2005.

(5) The respondent is to have a certificate under the Suitors' Fund Act 1951. 38 BEAZLEY JA: I agree with Handley JA. 39 SANTOW JA: I agree with Handley JA. **********

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