7 The plaintiff argues that the matter complained of being a "newspaper article" is not amenable to such a defence. Only in exceptional cases can the reciprocity of duty and interest exist between a newspaper and its readers to found the occasion of privilege: Deren v State of New South Wales (1998) Aust Torts Rep 81-463 and (1999) Aust Torts Rep 81-502 -Court of Appeal. That proposition must be accepted to be correct subject to the exceptional circumstances.
8 The publication complained upon is in a foreign language community newspaper of limited circulation and purpose, so it seems to me. In Assaf v Skalkos [2000] NSWSC 418 (26 May 2000) Carruthers J was confronted with a similar situation in relation to a publication in the community journal "Novosti". Carruthers J at paragraph 197-205 (importantly after the trial and the consideration of evidence) reviewed the issue particularly in the light of the judgment of McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 considering that the communication of appropriate information in that journal would fall within the category of privilege identified by his Honour in the High Court. Upon this authority for the purposes of this application the defendant relies, as he does on Bowin Designs Pty Ltd and Joyce v Australian Consumers Association [1996] A Def R 52,078 and Toyne v Everingham (1993) 114 FLR 299.
9 It seems to me that by virtue of the subject matter, and especially the nature of the publication, that on a question of leave it would be inappropriate to refuse the same on the basis that it cannot now be argued that any defence is unavailable. As in Assaf v Skalkos it might well be that the trial judge will be in a position, upon the hearing of evidence, to determine the availability of the defence of privilege at common law in the special circumstances of this litigation. I decline to refuse leave on that basis.
10 Complaint is next made by the plaintiff of the proposed defence pursuant to s22 of the Defamation Act, 1974 which has been particularised as follows:
"(i) The Defendant repeats paragraph 3(i) to 3(vi).
(ii) The Defendant invited the Plaintiff to comment or respond prior to the publication of the matter complained of.
(iii) The Defendant published the response of Mr San Ki Jin.
(iv) At the time of the publication of the matter complained of, the defendant had been informed by Mr Choi of the contents of the telephone calls between the Plaintiff and Mr Choi and of Mr Choi's belief that the men who assaulted him had been set on to do so by the Plaintiff.
(v) The Defendant had been given a copy of Mr Choi's press release of 19 May 1999.
(vi) The Defendant had interviewed Mr Yong Jae Lee, who was the person in charge of the Plaintiff's campaign for election as President of the Korean Society and who was the man who actually handed over the payment of $10,000 to Mr Choi on behalf of the Plaintiff (see paragraph 2(vii)) and the Defendant had been told by Mr Yong Jae Lee of the circumstances of that payment.
(vii) The defendant did not intend to convey the imputation in question.
(viii) However, because of sub-paragraphs (iv) to (vi) above, the Defendant honestly believed the imputation in question to be a matter of substantial truth.
(ix) The Defendant intended to convey the imputation that allegations had been made that the Plaintiff had procured the assault of Mr Choi.
(x) Because of sub-paragraphs (iv) to (vi) above the Defendant honestly believed the intended imputation to be a matter of substantial truth."
11 By reference to what are often described as the criteria in Morgan v Mirror Newspapers Ltd (1991) 23 NSWLR 374 at 387, the plaintiff contends that these particulars point to an impossible case. The jury's finding that the pleaded imputation was conveyed, it is submitted, entails that it as "reasonably foreseeable" by the defendant that the matter complained of would convey it. The defendant does not claim that he considered the possibility or that since he did not intend to convey it he took any step to prevent the matter complained of from being understood as conveying it. The "impossible case", it is argued, is that the defendant did not intend to convey the imputation but believed it to be true and conveyed what he believed but did not intend to convey. He believed in the truth of the lesser imputation that there were allegations that the plaintiff had arranged assault of the victim. All these are very interesting propositions but I am disinclined to prevent a defendant from pleading a case which I am not persuaded is embarrassing to the point of it being required to be excluded. Again, and particularly after the administration of interrogatories, it might well be that the issue raised for the plaintiff can be revisited; otherwise it is quintessentially a matter for trial.
12 The next objection is taken to the Defence pleaded pursuant to s16 of the Defamation Act (contextual truth).
13 The defendant contends that the matter complained of carries the following defamatory imputations:
"(i) The Plaintiff is an associate of thugs.
(ii) The Plaintiff is a violent person.
(iii) The Plaintiff's violent nature caused Mr Hyun Sung Choi to accuse him of the attack on him.
(iv) The Plaintiff has such a close relationship with violence that he is reasonably suspected of being the instigator of violence in some cases".
14 The Particulars in support of the contextual truth defence are as follows:
"(i) On 30 July 1989, the Defendant was assaulted by the plaintiff's secretary, Mr Tae Il Kang, and his brother, Mr Seung Sam Kang, another associate of the Plaintiff.
(ii) Mr Tae Il Kang and Mr Seung Sam Kang were convicted for that assault at Burwood Local Court.
(iii) When the two offenders were arrested by police for that assault, the Plaintiff so sought to hinder the police in making the arrest that he was himself arrested.
(iv) Also in 1989, the Plaintiff's secretary, Mr Tae Il Kang, assaulted Mr Won Bong Ko, breaking several of his ribs.
(v) On 22 June 2001 at the conclusion of the s7A trial in this matter, the Defendant, an interpreter, the Defendant's counsel and the Defendant's then solicitor, Mr Darryl Barlow, had a conference in a conference room at the Supreme Court.
(vi) In the course of the conference, Mr Barlow asked the Defendant to give his current home address.
(vii) As soon as the interpreter realised what was about to happen, she put her fingers into her ears and ran from the room in apparent fear at becoming privy to the Defendant's address.
(viii) A little later the interpreter called from outside the room to check that the Defendant had finished giving his address before she would agree to return to the room."