Park v Lee

Background

1. The plaintiff, by statement of claim filed on 12 November 2015, brings proceedings for defamation against two defendants who provided witness statements for use in the proceedings between the plaintiff and her former husband in the Family Law division, Uijeongbu District Court, Goyang Branch, South Korea. The first defendant, an accountant who prepared tax returns for the plaintiff and her former husband, provided a witness statement, dated 8 September 2015 containing accounting and other information about their assets, as well as making statements critical of the conduct of the plaintiff in regard to those assets. The second defendant, a friend of the plaintiff's former husband, refers to Family Court proceedings in Australia as well as in Korea.
2. The particulars of publication have never been articulated with precision. The statement of claim refers to the statement as having been "distributed to various third parties" whose identity "will be provided in due course" (paragraphs 5 and 10 of the statement of claim), although acknowledging that the matters complained of were published "in connection with a legal dispute in Korea between the plaintiff and her former husband" (paragraph 9). No hint was given that the matters complained of were published in a foreign language or in a jurisdiction other than Australia, the matters complained of were not attached, and the matter was listed before the Registrar of this court on 18 January 2016 rather than in the Defamation List.
3. The Registrar made orders for the filing of an amended pleading and referred the proceedings to the Defamation List for case management. The amended statement of claim filed on 2 February 2016 attached the matters complained of with an attachment but no attempt was made to provide proper (or indeed any) particulars of publication, which were simply noted as "currently being ascertained" (paragraph 10).
4. A consent timetable was entered into on 10 March 2016. The further amended statement of claim amended the particulars of publication to provide: "The statement was published in [sic] Family law Division, Uijeongbu District Court Branch in South Korea. Further particulars of to whom the statement was distributed are currently being ascertained [sic] will be provided in due course."
5. This is still very limited information. I note that in their letter of 9 March 2016 the solicitors for the defendants add, in terms of recipients of the publication, that publication "was made to the court in Korea, and the legal advisors [sic] of both parties as well as persons who were privy to any judgment in Korea".
6. It is conceded, by the legal representatives of the plaintiff, that the only publication of the matters complained of occurred in South Korea, and that any such publication solely related to the provision of the statements to the court. I was not told whether the reference to "any judgment" means that a judgment has actually been handed down, or that one is likely to be handed down in the future. I have addressed this issue on both scenarios in this judgment.
7. If the relevant law to apply to these publications were the uniform legislation and Australian common law, these proceedings could never survive summary dismissal. Not only are these witness statements, but the extent of publication is only to the court and the legal advisers and to those reading the judgment of the judge who heard the action. There could be no clearer case of the publications being made on occasions protected by absolute privilege: see the authorities collected in Cumberland v Clark (1996) 39 NSWLR 514.
8. The defendants' application is, however, that this court lacks jurisdiction or alternatively is not the proper forum.

The District Court's jurisdiction

1. The defendants' primary submission is that this court has no jurisdiction to hear any claim for a tortious cause of action which occurred outside Australia.
2. Section 9(1) District Court Act 1973 (NSW) provides that the Court shall have civil jurisdiction consisting of its jurisdiction as follows: "9 Jurisdiction of the Court generally (1) The Court shall have a civil jurisdiction, consisting of: (a) its jurisdiction conferred by Part 3, and (b) the jurisdiction conferred by or under any other Act or law on the Court, not being its jurisdiction referred to in subsection (2)."
3. Section 23 Supreme Court Act 1970 (NSW) provides that the Supreme Court has such jurisdiction as may be necessary for the administration of justice in New South Wales and clearly this includes actions for defamation. As to the Supreme Court's power to hear claims which have their basis in a cause of action overseas, the Supreme Court has long had such jurisdiction, for the reasons explained by Basten JA in Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 222 and by Hunt J in Ainsworth v Hanrahan [1982] 2 NSWLR 823 at 825. Rule 6.43 UCPR also provide for the filing of foreign law notices and/or for orders for the commencement of proceedings in a foreign court (UCPR r 6.44).
4. A good example of proceedings being commenced in the Supreme Court of New South Wales for a publication wholly outside the jurisdiction of Australia is Ainsworth v Hanrahan, where the matter complained of was a statement made by the defendant on the telephone to the District Attorney of New Jersey. The publication could be defended under the law of the forum or alternatively under the lex loci delicti, namely the State of Jersey in the United States of America. Hunt J explained the basis for the Supreme Court's jurisdiction as follows: "The defendant's first argument is that, as the publication is alleged to havetaken place in New Jersey in the United States, this Court has no jurisdictionto entertain the proceedings notwithstanding the defendant's ordinaryresidence within this State. No authority was cited for this somewhatsurprising submission. Nor could there be. Quite apart from the uncondition­al appearance filed on behalf of the defendant (who is described therein as a"Police Officer of Penrith Police Station"), it has been settled law for overtwo hundred years that the English courts have jurisdiction to entertainactions based on torts committed abroad if the wrongdoer can be foundwithin the jurisdiction: Mostyn v Fabrigas (1774) 1 Cowp 161, at p 181; 98ER 1021, at p 1032; The "Halley"; Liverpool, Brazil & River Plate SteamNavigation Co Ltd v Benham (1868) LR 2 PC 193, at pp 202, 203; Phillips vEyre (1869) LR 4 QB 225, at p 238; on error: (1870) LR 6 QB 1, at pp 28, 29;Walker v W A Pickles Pty Ltd [1980] 2 NSWLR 281, at p 284, although thequestion of what law is to be applied in such actions could hardly be said tohave been settled even now: Cawley v Australian Consolidated Press Ltd[1981] 1 NSWLR 225, at pp 228, 229; Carleton v Freedom Publishing Co(Kelly J, Australian Capital Territory Supreme Court, 29th October, 1982,unreported). The defendant's submission disputing this Court's jurisdiction isrejected."
5. However, the District Court is a court of inferior jurisdiction, and only possesses such express powers in relation to claims arising in foreign jurisdictions as are statutorily conferred and any incidental powers that can be implied. Section 44(1)(a) District Court Act 1973 (NSW) provides that the court has jurisdiction to hear and dispose of actions which would have been assigned to the Common Law Division of the Supreme Court (subject to jurisdictional limits which are irrelevant here), namely defamation claims, including claims arising outside New South Wales where service has been regularly effected in accordance with s 47 District Court Act 1973 (NSW).
6. What jurisdiction, if any, does the District Court have to hear a defamation action where a defence under foreign law must be pleaded and proved? This is determined by an examination of not only this Court's derived power to hear actions in the Supreme Court Common Law Division, but also the relevant provisions for the pleading and the proving of foreign law.

How foreign law is proved

1. There can be no doubt that the place of publication is South Korea (Dow Jones & Co v Gutnick (2002) 210 CLR 575) and the plaintiff does not suggest otherwise. As no actionable publication can arise in Australia, questions of defences fall to be considered under the lex loci delicti, depending upon whether one, the other or both of the parties chooses to raise this issue.
2. These issues were of concern in Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1; [2002] HCA 10, where the majority applied John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (inter alia, that all questions about the kinds of damage or amount of damages that may be recovered would be treated as substantive issues governed by the lex loci delicti) to a situation where some part of the claim arose in Australia. Their Honours reserved for further consideration, as the occasion arises, whether that proposition should be applied in cases of foreign tort (at [76]). Similarly, in Mills v Commonwealth of Australia (2003) Aust Torts Reports 81-714, Malpass AsJ reserved this question for further consideration, noting that there was "little guidance in the material as to the nature and extent of damages that may be awarded by a Cambodian Court" (at [33]).
3. Some of these issues were resolved by the provision of r 6.43 UCPR, which provides a mechanism for the determining of foreign law, expressly reserved to the Supreme Court, and not referred to as being available in the District Court. Contrary to the submissions of Mr Cohen, the fact that a cause of action arises in a jurisdiction other than Australia does not mean that the court automatically assumes that the relevant foreign law applies; not only must notices be served under r 6.43 UCPR (which may only occur in the Supreme Court), but that foreign law must be established by expert evidence.
4. In Nicholls v Michael Wilson and Partners Limited, Basten JA sets out the correct approach to the pleading and proving of foreign law, and the inferences which are drawn where no such evidence is available: "[321] In Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 ; 223 CLR 331 (Neilson), Gummow and Hayne JJ observed (at [115]): The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. [322] Their Honours referred to "the well-known rule that, absent proof of, or agreement about, foreign law, the law of the forum is to be applied" (at [116]). This is commonly referred to as a "presumption" that where foreign law on a question is to be applied under the choice of law rules of the forum, the foreign law to be applied is the same as the law of the forum. The primary Judge cited numerous authorities for this familiar principle (at [313]). (The learned authors of the eighth edition of Nygh's Conflict of Laws in Australia propose the description "default rule" as preferable to that of "presumption" (at [17.37]).) [323] It follows that the onus is on a party asserting that foreign law is applicable and is different from the law of the forum to plead and prove those matters, including what that foreign law is, and that MWP was entitled to rely on the presumption that the law of the forum would be applied unless the appellants pleaded and proved both the applicability and the content of the relevant part of foreign law: see Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; 210 CLR 491 (Zhang) at [70]-[71] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 per Young CJ in Eq at [49]-[56]; and see Neilson at [125] per Gummow and Hayne JJ."
5. The language of r 6.43 UCPR is clear: such procedures are available in the Supreme Court, and not in this court.
6. Ms Barnett is correct in her submission that any such application would have to be heard in the Supreme Court, and the proceedings transferred to that jurisdiction for that purpose.
7. This argument, of course, depends upon one or the other of the parties seeking to rely upon foreign law. If the law of the forum were applied, these proceedings would be disposed of very speedily, in that the publications were made on admitted occasions of absolute privilege.

Conclusions concerning jurisdiction

1. The statements of the High Court in Dow Jones & Co Inc v Gutnick at [44] do not derogate from the longstanding principles set out by Hunt J in Ainsworth v Hanrahan as to the jurisdiction of the Supreme Court to hear defamation proceedings where the matter complained of was published in a foreign jurisdiction. The question in Dow Jones & Co Inc v Gutnick was whether to set aside service outside the jurisdiction on a foreign defendant, or to stay the proceedings on forum conveniens principles; the defendants in these proceedings reside in New South Wales and have been served in accordance with the relevant UCPR provisions (s 47 District Court Act 1973 (NSW)).
2. This means that the absence of jurisdiction of the District Court by reason of the language of UCPR r 6.43 is not strictly speaking a strike-out point, in that an application could be brought by the plaintiff for the proceedings to be transferred to the Supreme Court for determination of the foreign law expert evidence issue (where, as I read UCPR r 6.43, it would probably have to remain). No such application is before the court, and Mr Cohen has not indicated any such instructions to bring one. It would therefore be open to me to strike out these proceedings on that basis alone.
3. Having regard to the pleading and procedural history of these proceedings, as well as the nature of the publications, I consider that any reluctance the court may feel in striking out a defect curable by amendment (see Ritchie's Uniform Law and Procedure NSW at [14.28.25]) should be put to one side and the proceedings struck out.
4. I have, however, determined the issues of forum conveniens and proportionality as well and, as I have arrived at the same conclusion in relation to all three arguments, propose to dismiss these proceedings on all three bases.

Forum conveniens

1. Although there are court proceedings in Korea, of which the matters complained of form part, this is not a case of lis alibi pendens, as the similarity between the parties and issues is insufficient: Evers v Firth (1986) 10 NSWLR 22. Nevertheless, the fact that there are current (or concluded) court proceedings in Korea reliant upon the testimony which is set out in the matters complained of is of very high significance in relation to the issue of forum conveniens.
2. As noted in Dow Jones & Co Inc v Gutnick at [49] - [54], defamation proceedings have long presented forum conveniens problems by their very nature as multiple torts, independent of additional issues raised by the advent of the Internet. The first of these is that it is an abuse of process for a plaintiff to start defamation proceedings over the same matter in more than one jurisdiction, certainly within Australia, according to Maple v David Syme & Co [1975] 1 NSWLR 97, although the situation may not be so easy to determine where the publications complained of are made in different countries: Lange v Australian Broadcasting Corporation (Supreme Court of New South Wales, Levine J, 6 September 1996), and this raises issues as to the convenient forum.
3. Where the parties live in one jurisdiction and the matter complained of is published in another, what is a plaintiff to do? If the defamation occurs in a foreign country, the action may be brought in the courts of the jurisdiction where the plaintiff resides; in addition to the principles set out by Hunt J in Ainsworth v Hanrahan, see the more recent authorities set out in Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States at [17.3(1.1)(a)], starting with Hart v Gumpach (1872) 9 Moo 241, 17 ER 505. Less charitably, in Eyre v Nationwide News Pty Ltd (1967) NZLR 851 at 854, MacGregor J considered that "loss of reputation (which a plaintiff) has suffered abroad from publication in another country is a matter for the courts exercising jurisdiction in the country of publication". There are helpful checklists for forum conveniens factors in defamation actions set out in a number of cases, notably Muscutt v Courcelles (2002) 13 CCLT (3d)161, 26 CPC (5th) 206, 60 OR (3d) 20 at 45 - 51, but the cases tend to turn on their facts.
4. The difficulties for the interpretation of the defences for the lex fori are also an issue. In Dow Jones & Co Inc v Gutnick at [51] Gleeson CJ, McHugh, Gummow and Hayne JJ noted that these problems included: "[51] Secondly, a case in which it is alleged that the publisher's conduct has all occurred outside the jurisdiction of the forum may invite attention to whether the reasonableness of the publisher's conduct should be given any significance in deciding whether it has a defence to the claim made. In particular, it may invite attention to whether the reasonableness of the publisher's conduct should be judged according to all the circumstances relevant to its conduct, including where that conduct took place, and what rules about defamation applied in that place or those places. Consideration of those issues may suggest that some development of the common law defences in defamation is necessary or appropriate to recognise that the publisher may have acted reasonably before publishing the material of which complaint is made." [Citations omitted]
5. The development of the Jameel principle (Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946) owes much to the perceived difficulties of "libel tourism" (i.e. shopping around for a more plaintiff-friendly forum), which is why the issue of proportionality is of relevance to forum conveniens where there are publications in more than one country, as is discussed further below.
6. The plaintiff can point to the presence not only of the defendants but of their assets in this jurisdiction, as well as her own presence. The courts in New South Wales can provide speedy justice, especially since it would appear that, if the uniform law were applied (as opposed to the lex loci delicti), these proceedings would be likely to be protected by the defence of absolute privilege, since they appear not merely to have been provided to the court for the proceedings but could already be the subject of a judgment. Furthermore, in Australia the content of the matters complained of could not be published outside those parameters because of anti-publication provisions for Family Court proceedings (e.g. s 120 Family Law Act 1975 (Cth)). These are powerful factors to take into consideration.
7. However, there are countervailing arguments. The plaintiff's reputation was damaged in Korea, and it is important for the person defamed to have the proceedings tried in the jurisdiction where his or her reputation was damaged. The defendants would be entitled to rely not only upon the defences of the forum in relation to the circumstances in which they gave their evidence but upon the circumstances in which those publications were made.
8. One factor, in my view, puts all other forum conveniens factors to one side. These are witness statements provided to a court which either have or will result in a judgment of the Korean court. This was considered an important factor in Tyne & Anor v USB AG (No 3) [2016] FCA 5, where a party continued litigation in Australia despite an anti-suit injunction being granted in Singapore. I am satisfied that this fact, and the need for comity between courts determining issues between the parties, trump all other factors.
9. Where the defamation action has been commenced in a jurisdiction which is clearly inappropriate, the moving party may, under the doctrine of forum non conveniens, apply not merely to stay the proceedings but for an anti-suit injunction: Dow Jones & Co Inc v Gutnick at [50] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Amchem Products Inc v British Columbia (Workers Compensation Board) [1993] No 34, 1993 Carswell BC 47, 77 BCLR (2d) 62, 102 CLR (4th) 96. Such an application would be entertained only where "a serious injustice will be occasioned as a result of the failure of a foreign court to decline jurisdiction" (CSR Ltd v New Zealand Insurance Co Ltd (1994) 36 NSWLR 138 at 161).
10. While there is no anti-suit injunction in Korea of the kind identified in Tyne & Anor v USB AG (No 3), the same principles of comity between courts still apply. I specifically note the observations in Tyne & Anor v USB AG (No 3) at [231] that it is not necessary for the proceedings in this jurisdiction to be shown to be vexatious or oppressive (citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538) for a stay to be granted.
11. I am satisfied that New South Wales is not the appropriate forum and the extraordinary circumstances in which defamation proceedings have been brought in this country for a witness statement which forms part of proceedings and apparently also the judgment in Family Court proceedings in Korea, that this would be sufficient for an anti-suit injunction staying these proceedings.
12. Accordingly I am satisfied that New South Wales is not the appropriate forum for these proceedings.

Proportionality

1. The principles enunciated in Jameel (Yousef) v Dow Jones & Co Inc are set out in Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWCA 897, and it is unnecessary for me to repeat them, or to set out the relevant portions of s 61 Civil Procedure Act 2005 (NSW) or UCPR r 12.7.
2. The applicability of proportionality principles to a publication which is made in an overseas jurisdiction is not free from controversy. In Barach v University of New South Wales [2011] NSWSC 431 the defamation claim against one defendant related to three publications he made in the United States, and he brought an application to dismiss the claim on proportionality principles. The issues relied upon were similar to those applicable here: the limited nature of the publications, the strength of the defences, and the financial burdens involved. I note, however, that the strength of the lex loci delicti defences, rather than the lex fori defences, were asserted to be the key issue.
3. Garling J, at [116]-[147], dismissed the relevance of Jameel principles entirely, although noting at [147] that no Reply had been filed, holding that it was inappropriate to deal with the argument at an early stage of the defamation claim. Although not stated expressly, his Honour was clearly considering the disputed issues of fact likely to arise in relation to the defences in the foreign jurisdiction (about which Garling J had very limited evidence). While Mr Cohen says I have no evidence of Korean law's recognition of absolute privilege, that is his client's problem, not the defendants', and I consider I may have regard to the likelihood of dismissal of these proceedings in New South Wales if the law of the forum were exercised, in the absence of any evidence (expert or otherwise) as to the law of South Korea.
4. In Ghosh v Ninemsn Pty Ltd [2015] NSWCA 25 Macfarlan JA stressed that the circumstances where proceedings would be struck out on principles of proportionality would have to be exceptional. I consider that, where a publication is made for the purposes of court proceedings and published only to those concerned, exceptional circumstances are made out (see the judgments to this effect set out in Calabro v Zappia [2010] NSWDC 127). Accordingly these proceedings are also struck out pursuant to s 61 Civil Procedure Act 2005 (NSW) and r 12.7 UCPR as well as pursuant to rr 13.4(1)(b) and 14.28 UCPR.

Costs

1. Mrs Barnett submits that indemnity costs should be awarded for the following reasons: 1. The plaintiff's inability to frame her claim on fundamental issues such as the provision of the matters complained of and proper particulars of identification; 2. The dilatory conduct of these proceedings by the plaintiff thereafter, including failure to answer correspondence or to deal with the issues raised in correspondence expeditiously; 3. The persistence of the plaintiff with the claim despite clear warning of this application.
2. I agree that there has been an unacceptable level of delay and inadequate pleading, and would add that the opacity of the plaintiff's submissions has also created difficulty.
3. Indemnity costs should not be awarded other than in circumstances where the conduct in question is egregious and the defaults of a significant nature.
4. The delays and inadequacies of pleadings, the nature of the cause of action and the manner of presentation of the plaintiff's arguments on this application in my view warrant an order for indemnity costs.

Orders 1. Proceedings dismissed. 2. Plaintiff pay defendants' costs on an indemnity basis.

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