Park v Kim

District Court of NSW|2019-10-17|Before: Mr J

Judgment

This is an application pursuant to r 28.4 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") for summary dismissal of proceedings for defamation commenced by statement of claim filed on 19 July 2019. In the alternative, the defendant challenges the capacity of all imputations pleaded pursuant to UCPR r 28.2.

The matter complained of and imputations

The matter complained of is an extract from a church bulletin which is headed "Today's Sermon". Although four publications are pleaded, these are essentially the same, as these relates to the services held at four different times, as follows: 1. The first matter complained of - 8am on 7 April 2019; 2. The second matter complained of - 10am on 7 April 2019; 3. The third matter complained of - 12pm on 7 April 2019; and 4. The fourth matter complained of - 7 April 2019 at a time which is not particularised.
The matter complained of was published in the Korean language. The agreed English translation of the matter complained of is as follows: 1 10. Appeal regarding to Senior Elder Hee Yeul Park's Management Authority. 2 For the last year, there has been an intensive discussion regarding the legitimacy of Hee Yeul Park's management authority. 3 In order to finalise this discussion, church committees have decided to hold a joint meeting. 4 Under our Constitution (Part 3 Chapter 8 Article 47 Section 1), in order to be admitted for the board of elders, there must be a 2/3 consensus of the whole vote.

The imputations pleaded to arise are: 1. The plaintiff is not an Elder of the Church. 2. The plaintiff never was an Elder of the Church. 3. The plaintiff has been exercising an invalid authority in breach of Church rules. 4. There are a number of people whom agree that the plaintiff is not an Elder of the Church. 5. There are a number of people whom agree that the plaintiff never was an Elder of the Church. 6. There are a number of people whom agree that the plaintiff has been exercising an invalid authority in breach of Church rules.
The following alternative plea of innuendo is made (at paragraph 8 of the statement of claim): "8. Further and in the alternative to paragraph 7 herein, the First Defamatory Imputations arise by way of innuendo by reason of the fact that the Plaintiff has, since February, 2008: a. occupied the position of Elder in the Sydney Full Gospel Church; b. further or alternatively, been publicly known and recognised as an Elder in the Church."
The person or persons to whom these particulars are known is/are not identified in the pleading.
The church bulletin is sued upon in its entirety, as opposed to an extract of the portion identified in paragraph 3 above. This is relevant to the context of the meanings.
First, the bulletin sets out the order for the four church services. This is followed by messages of practical import to the local community. Points 1 to 9, preceding the matter complained of, are as follows: "1. Holy Communion Service Today's service will be the Holy Communion Service. Please participate in our Lord Jesus Christ's broken body and his shed blood with sincerity. 2. End of Day Light Savings We commence our service corresponding to the changed time. 3. Children's outing service Today, the children will have service at 9am and move to the outing location at 10am. If you wish to bring your child after 10am, please drop them off to t the direct location. Location: Northcote Park (260 ~ 270 Waterloo Rd. Greenacre) 4. 2019 Sydney Easter United Service: 14th of April (Sunday Evening) Next Sunday evening service, we would have an Easter United Service. Our church would have Bethany Choir, united choir and Deaconess group 3 to be in charge of the announcement. Please come and receive many blessings. When: 14/4/2019 (Sunday) 7pm Location: PLC Theatre (Presbyterian Ladies College) Preacher: Pastor Jungho Oh (Senior Pastor of Saeronam Church) 5. Holy Week Special Dawn Prayer Meeting: 15/4 (Mon) ~ 20/4 (Sat) As the Holy Week is coming, we are going to have a Special Dawn Prayer Meeting from the 15th (Mon) to 20th (Sat). 15th (Monday) Titus 1:1~~4 Our purpose of existence 16th (Tuesday) Titus 1:5~~16 Change of attitude 17th (Wednesday) Titus 2:1~~10 Through holy spirit's fruit 18th (Thursday) Titus 2:11~~15 Church with gospel 19th (Friday) Titus 3:1~~11 Efforts to be holy 20th (Saturday) Titus 3:12~~15 Actionable belief

Do your prayers in your own branch, we will do our last prayer on 20th Saturday in the main branch. 5a.m. for Monday-Friday, 6a.m. for Saturday. 6. Passion Week Friday Prayer: Prayers for North Korea (1) Date: 7:30 p.m., 19th April (Friday) (2) Lecturer: Missionary Joo Eun Lee (Currently managing a church community for North Korean defectors) 7. 38th Bible Study participant recruitment (1) Date: 25th April 2019 (Thursday) ~ 27th (Saturday) (2) Place: Sydney Full Gospel Church Prayer House (3) For inquiry: Pastor Kyung Kook Park - Register at our church office if you want to participate - Volunteers' Prayer: 8th April 7:30 p.m., Jerusalem Chapel 8. Baptism Ceremony: 21th April, 5p.m. On 21st April, there is a baptism ceremony. If you want to be baptised, please apply to the Church office. Applicants should receive 'baptism ceremony question lists' from the office and study the contents. 9. Advertisement for the financials department For 1st July 2019 ~ 30th June 2020, please submit budget lists for our department by 5th May"

Following these nine matters, item 10 (see paragraph 3 above), the matter complained of appears. It is followed by further material of a similar nature, such as a note that the book of Titus would be subject of study for 2018, information about language school holidays and other newsworthy activities, such as the General United Women's Missionary meeting.
The plaintiff is not referred to in any of these other entries, either before or after the matter complained of.
The church bulletin is described in the statement of claim as being "a means by which the church communicates with church members, prospective church members and the public providing current news as to the church events which are of interest and concern to church members, prospective church members and the public" and as being available to be downloaded from a website address.
I will first set out the relevant principles for capacity and summary dismissal applications.

The relevant principles of law concerning the capacity of imputations

The relevant principles for determining defamatory meaning for the purpose of a separate trial under UCPR r 28.2 are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [125]-[136].
The test generally extracted is that the determination of capacity at the threshold level is "an exercise in generosity, not parsimony", as well as being a "matter of impression... the impression is not of what the words mean but of what a jury could sensibly think they meant" (at [135], citing Berezovsky & Anor v Forbes Inc & Anor [2001] EWCA Civ 1251 at [16]).
More recently, in Trkulja v Google LLC [2018] HCA 25 at [30]-[32], the High Court has urged even greater caution in relation to the striking out of imputations prior to the trial.

The test for summary dismissal

Only in the clearest of cases will a court strike out summarily the whole of the proceedings as being incapable of defamatory meaning (Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679). The claim was actually struck out at trial in Bik v Mirror Newspapers Ltd, rather than in an interlocutory ruling, but it is commonly cited in interlocutory rulings as well.
The court's reluctance to dismiss summarily at an interlocutory stage is not, however, restricted to the principles set out in Bik v Mirror Newspapers Ltd, but may be considered on the same general principles as those applicable to summary dismissal generally (see for example Sali v Australian Broadcasting Corporation [2013] VSC 388), namely that summary dismissal basis must be viewed with very great caution.
In Barrow v Herald & Weekly Times Ltd [2015] VSC 263 at [12], Macaulay J summarised these principles as follows: "[12] The principles concerning the pleading and summary dismissal of defamatory imputations are well known and have been conveniently summarised from earlier authorities in several recent cases. Those principles are: (a) the test is whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputation on which the plaintiff relies; (b) in applying this test, a court must reject any strained, forced or utterly unreasonable interpretation of the matter complained of. The exercise of imputation is to a large degree that of forming an impression, not to be obscured by over-elaborate analysis in a search for hidden meanings; (c) a court must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence, who (i) is neither perverse, morbid or suspicious of mind; (ii) is not avid for scandal or unusually suspicious or naïve; (iii) engages in a degree of loose thinking, can and does read between the lines in the light of his or her general knowledge and experience of worldly affairs, and has a capacity for implication that is greater than that of a lawyer; and (d) a court must draw a distinction between the ordinary reasonable reader's understanding of what the matter complained of is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs or prejudices." (Citations omitted)
There is a degree of factual similarity between the matter complained of and that in Barrow v Herald & Weekly Times Ltd: 1. First, both involve a very short publication where, in four sentences, an ongoing dispute between the parties is described. 2. Second, the description of that dispute involves the use of words which cannot be dismissed as anodyne. In Barrow v Herald & Weekly Times Ltd, the publication referred to a "catastrophically expensive" defamation action where there had been a "last ditch effort to have the case mediated" by the judge at the trial. (The imputation pleaded was that the plaintiff "refused to agree to a last ditch effort by Judge [sic] Terence Forrest to have a Supreme Court of Victoria defamation case mediated, and by [the plaintiff's] refusal, unnecessary large costs of a trial were not reasonably avoided through mediation".) The relevant words here are "legitimacy" and "intensive discussion." 3. Third, there was strong reliance upon context (at [20]-[22]), which included the prior history of dispute between the parties, as a basis for the pleaded imputations.
Macaulay J held that to draw the imputation pleaded as arising would require the reader to view the article through the prism of a personal belief that the ordinary reasonable reader would have no cause to hold (at [19]). To infer that the plaintiff must have been the party refusing mediation simply because the news organisation had an interest in the litigation (in that one of its employees was a party to the litigation in question) was simply one step too far. The claim was accordingly struck out.
A similar result occurred in Robertson v Newquest (Sunday Herald) Ltd & Ors [2006] CSOH 97, where the subject matter was a libel case that had settled. Although the plaintiff sued on the whole of the article, the flavour of the dispute may be seen from the encapsulated summary on the front page of the newspaper: "Lord Robertson - Sunday Herald Last week, Lord Robertson settled his defamation claim against the Sunday Herald for a post by an anonymous contributor to our online reader forum in February 2003. (Full story: Business, page seven)."
Lord Robertson, the plaintiff, argued that this introduction, as well as the subsequent article, repeated the false allegation raised in the defamation proceedings.
In dismissing the claim, Lord Reed, (referring to Bik v Mirror Newspapers Ltd at [18]), noted the difficulties where an allegation is mentioned or conveyed by inference in an article whose tenor was destructive of any defamatory imputation, stating at [17]: "[17] The situation might be considered, for example, where a newspaper reports that a person has been acquitted of a criminal charge. An acquittal cannot be reported without conveying (expressly or by implication) that the person was previously charged with a criminal offence; but the report of the acquittal cannot reasonably be understood as impugning the character of the person in question (provided, at least, that he had in fact been charged: cf. Lewis v Daily Telegraph Ltd at p 285, per Lord Devlin)."
Cases of this nature are often of the "bane and antidote" variety, in which case the issue must be resolved at trial. However, the issue in these proceedings is whether any defamatory meaning from the mere reference to an ongoing dispute (as opposed to appearing to endorse one or the other side) is able to be conveyed at all.
The point made by Lord Reed relates not only to "bane and antidote" but also to the difficulty of reporting upon any dispute, or court case, or settlement, in circumstances where some reference to the issue in dispute (in this case, the fact that there is an "appeal" and that the issue in question relates to the two-thirds majority) is referred to as the issue in contention.
Having noted these authorities, I set out my findings in relation to the capacity argument for each of the six imputations.

The plaintiff's submissions concerning capacity

Mr Manner draws to my attention the following portions of the matter complained of as giving rise to one or more of the imputations pleaded: 1. There is an "appeal" in relation to the plaintiff's "management authority"; 2. There has been "an intensive discussion regarding the legitimacy of Hee Yeul Park's management authority" for the last year; 3. It order to finalise this discussion, there will be a "joint meeting"; and 4. There must be a "two-thirds consensus of the whole vote" which the plaintiff submits amounts to a reference to one of the reasons for the challenge to the plaintiff holding a position "on the management authority". (I note that this is not a matter which is set out in the true innuendo pleading.)
Mr Manner relies upon Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 676-677 as to the circumstances in which imputations of suspicion or guilt, and in particular to the passage where Glass JA sets out the following categories of statements in relation to being charged with a criminal offence: "(a) A statement that the plaintiff has been charged so expressed as to be incapable of supporting the imputation that reasonable grounds exist for suspecting he had committed the offence. (b) A statement that the plaintiff has been charged so expressed as to be capable of supporting that further imputation. (c) A statement that the plaintiff has been charged so expressed as to be capable of supporting the further and more damaging imputation that the charge was well founded thereby imputing guilt."
While I note Mr Manner's reliance upon this authority, investigations by the police are of a different nature to disputes between parties, for the reasons outlined by Hutley JA at 671D, namely that the accusation must come from "some authority whose status can make it stick without more".
For this reason, statements that a plaintiff's affairs are being inquired into by, for example, someone who claims to be owed money, or in the context of a disputed position on a committee, will not fall within the same category of intensity of meaning as allegations involving investigations by an appropriate authority. It simply means that there is a dispute. That much is clear from Macaulay J's observations in Barrow v Herald & Weekly Times Ltd.
The next point made by Mr Manner is that the defendant refers to the "intensity of discussion" resulting in a joint meeting, suggesting that there must be something wrong for this intensity of discussion to have taken place. In addition, there is the reference to the material fact which is asserted to summarise the issue, namely that in order to be admitted to the Board of Elders, there must be a two-third consensus of the whole vote.
Mr Manner submits that special rules apply where the plaintiff occupies a high position or respected form of employment. His submission is that "the context of the plaintiff's position is determinative" (written submissions, paragraph 24) in terms of meaning, in that an elder of the church is "a very public and solemn position". This is highlighted by the context in which the matter complained of appears, namely in a church bulletin.
There are two reasons for rejecting this argument. The first is that the imputation must arise from the publication. I note McCallum J's warning about the danger of imputing defamatory meanings from context in NHB Enterprises Pty Ltd (t/as Bova Compounding) v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163 at [31], where her Honour stated, "[r]esort to context cannot supplant that essential pleading requirement". Macaulay J's approach to the matter complained of in Barrow v Herald & Weekly Times Ltd at [19] is another case in point.
The second is that reputation is democratic in nature (Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 at [108]), in that every one of us has a reputation to lose. It is not necessary to be famous or to hold a high position; what must be established is that a defamatory sting in relation to reputation, in the form of an imputation published of and concerning the plaintiff, was to be made out.
While I note the statements made by Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 195 about the high value to be placed upon the reputations of those whose work and life depends upon their honesty, integrity and judgment, such as a solicitor or doctor, those observations need to be viewed in the context of a challenge to the quantum of damages awarded by the jury. These observations should not be interpreted as meaning that where an imputation of an ordinary member of the community were not conveyed, an imputation about a solicitor (or, for that matter, a church official, or a politician) would be conveyed by reason of his or her higher standing.
One relevant aspect of the publication, in relation to context, is the tone and manner of presentation: Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [34]. Where a publication contains insinuation or suggestion or invites the reader to adopt a suspicious approach, an imputation may be more likely to be inferred. Mr Manner's submission is that the tone of the matter complained of is capable of giving rise to defamatory imputations. All that should have been said was that there was to be a meeting, without a reference to an "intensive discussion regarding the legitimacy of Hee Yeul Park's management authority" over the past year, where the issue was the need for a two-thirds consensus of the whole vote.
However, the fact that more information than the meeting date is provided does not mean that the provision of information about the topic to be discussed, such as the main issue or the history of the discussion, is inevitably liable to give rise, without more, to a defamatory sting.
Is it defamatory to say of a person that there has been intensive discussion about the legitimacy of their appointment, and to refer to the principal issue (the two-thirds majority vote)? In order to determine this issue, I shall first consider the imputations pleaded by the plaintiff.

Imputations 7(a) and 7(b)

Imputation 7(a) is that the plaintiff is not an elder of the church, while imputation 7(b) is that the plaintiff has never been an elder of the church. Both these are in direct contradiction of the text. The plaintiff is described in the opening paragraph as "senior elder". There is no statement that the plaintiff is not, or has never been, an elder of the church, but rather that there has been "intensive discussion" about the "legitimacy" of the position he holds and that there has been an "appeal" from one (or possibly both) of the parties to the dispute.
Imputations 7(a) and 7(b) are not reasonably capable of being conveyed, either in their natural and ordinary meaning, or by reason of the true innuendo plea.

Imputation 7(c)

The plaintiff submits that the matter complained of attributes the issue of "legitimacy" to the absence of the two-third consensus of the constitution. That is the asserted breach of church rules. What is being conveyed is that the challenge to the plaintiff's entitlement to sit on the management authority has provoked "intensive discussion", which indicates the plaintiff is aware of this.
However, the matter complained of does not take sides. It reports the subject matter of the dispute only, and the relevant provision in the constitution. It neither states nor infers that the plaintiff's position lacks legitimacy.
The particulars provided for the true innuendo add nothing further to the text capable of giving rise to these imputations. All that is said is that there has been an intensive discussion about the legitimacy of his management authority, without expressing a view one way or the other as to whether that is in fact the case.
By way of analogy, to say that there had been court proceedings where a particular issue is described as being the central fact, or in a more definite example, that the parties have settled their differences or that a person has been acquitted of a crime, or lodged an appeal, does not, without more, amount to a taking of sides of the kind capable of conveying a defamatory meaning.
According, I am satisfied that imputation 7(c) is not reasonably capable of being conveyed, either in its natural and ordinary meaning, or by reason of the true innuendo plea.

Imputation 7(d) to 7(f)

These are mere restatements of the above imputations with the phrase "there are a number of people whom [sic] agree" that this is the case. These imputations fail for the same reasons.
An additional difficulty is that the claim that "there are people" who consider the plaintiff is not and never has been an elder may not, without more, have defamatory meaning. The fact that "people" hold an opinion about a person does not give rise to a defamatory sting about the plaintiff unless there is some specific relating factor (such as, for example, the plaintiff's fellow elders holding such an opinion) from which a sting could arise.
For the same reason that I have rejected imputations 7(a) to 7(c), I reject imputations 7(d) to 7(f) and find that each of these is not reasonably capable of being conveyed. This includes my findings in relation to the true innuendo plea.
By way of general observation, the manner in which the imputations have been cast suggest that the pleader is endeavouring to avoid a justification defence to any imputation to the effect that the "legitimacy" or validity of the plaintiff's appointment to the management authority is in doubt, by reason of the absence of a two-thirds majority vote.

The true innuendo pleading

There are a problems with the true innuendo plea: 1. The true innuendo is asserted to arise by reason of persons knowing that the plaintiff occupied the position of elder and/or "further or alternatively" was "publically known and recognised as an Elder". While I am unaware of any other rulings on innuendo pleadings where facts are pleaded "further" and/or "alternatively", an imputation framed as an alternative, such as "who was and/or is opposed to parliamentary democracy" (Darby v Oxford University Press [2000] NSWSC 948 at [47]) would be struck out as a rolled-up plea. 2. The persons to whom the facts and matters particularised should be set out. This is of all the more importance where the true innuendo facts are not one single set of facts but facts in the alternative.
This plea is, in any event, misconceived. The facts as stated in the matter complained of clearly identify the plaintiff as "Senior Elder Hee Yeul Park" and relate the discussion to events over "the last year", in circumstances where this clearly relates to his position as an elder.
The true innuendo plea fails for these reasons, in addition to my findings as to the imputations and should be struck out, regardless of my findings as to imputations. In the event that I have erred in relation to this ruling, I have set out the findings that I would have made.

Conclusions

Pursuant to UCPR r 28.2, I am satisfied that none of the imputations pleaded is reasonably capable of being conveyed. The true innuendo plea is misconceived in that the particulars set out are already clearly part of the matter complained of and cannot therefore arise; I also note the defects in pleading in that the persons knowing that information are unidentified.
Counsel for the plaintiff sought leave to replead in the event that all the imputations were struck out. This was opposed by Mr Senior, who submitted that if no imputations were conveyed, this was further ammunition for his claim that proceedings should be summarily dismissed due to absence of defamatory meaning.

Summary dismissal

As is noted in the authorities set out above, applications to strike out the statement of claim on the basis of lack of defamatory meaning are rare and are still more rarely successful.
However, this is one of those rare cases where the text of the matter complained of speaks for itself. It is a simple summary of the issues to be discussed at a church meeting, without taking sides one way or the other. What is recorded is that there is a subject which has created intensive discussion, namely whether the plaintiff can continue to sit in circumstances where it is asserted that there is some problem with the two-thirds consensus of the whole vote, this is going to be finalised by the church committees holding a joint meeting. There is no suggestion that one side is in the right (or wrong). There is no suggestion of any conduct on the part of the plaintiff warranting criticism, in that the "intensive discussions" clearly involved both parties. Nor is the language used excessive; it falls well short even of the "catastrophic" costs referred to in Barrow v Herald & Weekly Times Ltd.
The question is whether, given the findings I have made in relation to each of the imputations, leave to amend to plead further imputations which may be capable of arising should be granted, in the hope of finding some other meaning capable of being conveyed. In particular, I must take into account that the plaintiff may be able to put forward some other form of true innuendo particulars, although the hopelessness of the true innuendo plea already pleaded does not augur well for such a course.
In the unusual circumstances of this case, I am satisfied that not only are the imputations pleaded by the plaintiff not reasonably capable of arising, but that the anodyne and balanced nature of the matter complained of means that no imputation defamatory of the plaintiff is reasonably capable of arising and the proceedings should be struck out and dismissed.
While I must exercise caution in summary dismissal of a claim of defamatory meaning involving a true innuendo, the hopelessness of the true innuendo plea currently pleaded is of significance.
As I do not consider that leave to replead should be granted, the appropriate course to take is for the claim to be struck out and dismissed pursuant to UCPR r 28.4. Costs should follow the event.

Orders 1. Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), imputations 7(a) to 7(f) struck out as not reasonably capable of being conveyed. 2. Leave to replead refused. 3. Statement of claim struck out and dismissed pursuant to r 28.4 Uniform Civil Procedure Rules 2005 (NSW). 4. Plaintiff pay defendant's costs. 5. Liberty to apply in relation to costs.

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: 31 October 2019

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (1)

Cases Cited (8)