Un v Chow

BASTEN JA: I agree with Leeming JA.

LEEMING JA: Mr Chi Keong Un appeals from judgments obtained in the District Court by the plaintiffs, Mr Sum Chow and Mr Colin Chiu Kwan Chow, in the amounts of $105,588 and $72,244 respectively. The trial lasted six days before the primary judge (Gibson DCJ) sitting without a jury. At that trial, Mr Un was represented by solicitor and counsel.

The plaintiffs sued for defamation based on written material said to have been published by Mr Un. The publication was said to have occurred when Mr Un distributed a pamphlet in the foyer of a building in Chinatown in Sydney, to persons who attended a Chinese restaurant within that building. The pamphlet was written in Traditional Chinese. The article itself, and a translation, are contained in the reasons for judgment of the primary judge at [3] and [4] respectively: see Chow v Un [2017] NSWDC 254, and there is no need for them to be repeated in these reasons.

The imputations which the plaintiffs alleged arose from the publication of the article were as follows (as formulated in [5] of the reasons of the primary judge):

The references to Goon Yee Tong are to an organisation which appears to have been incorporated under the (former) Associations Incorporation Act 1984 (NSW). Mr Un contends that it is a charitable organisation whose purposes include assisting people born in the Dongguan region in southern China but which has come to be controlled by members of the Chinese Communist Party. The defamation is said to have occurred on the day of the Annual General Meeting of Goon Yee Tong, in the building where that meeting took place.

In his Further Amended Defence, which had been executed by the solicitor then acting for him and certified by a translator who stated that she had “truly interpreted to the deponent the contents of this Further Amended Defence”, Mr Un denied that the imputations were conveyed by the publication. He denied the plaintiffs’ allegation of publication, namely, that he had “handed the material complained of indiscriminately to persons who entered the foyer of” the building in Chinatown in Sydney. However, he positively alleged that he attended the Annual General Meeting of the Goon Yee Tong Association of 29 December 2013, when he “took with him to the AGM one copy of the [pamphlet] and he handed that lone copy to the first plaintiff and invited his response” but that “he did not provide a copy of the document to any other person at the [restaurant] either at the AGM or on any other occasion”.

Significantly for the purposes of this appeal, Mr Un’s Further Amended Defence identified defences of common law qualified privilege and statutory qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW) as the only complete defences. Paragraph 14 of the Further Amended Defence was headed “Mitigation of Damages”, and it provided that:

Accordingly, there were live issues on the pleadings as to:

As much was reflected in the issues which were identified by the parties at trial and reflected in [2] of the reasons for judgment of the primary judge:

Significantly for the purposes of this appeal, it will be seen that Mr Un did not rely on truth as a defence.

The primary judge found that all save one of the imputations had been conveyed by the document: at [16]-[57]. Her Honour then dealt at length with the issue of publication. Much of the trial was occupied with the respondents’ evidence from six witnesses who said they saw Mr Un distributing the pamphlet in the foyer area, each of whom was cross-examined by counsel then appearing for Mr Un (in the hearing in this Court Mr Un stated that they had appeared for him pro bono). The primary judge dealt with this at [58]-[152], over some 32 pages. Her conclusion at [152] was as follows:

The primary judge then rejected the defences of qualified privilege at common law and under statute, and assessed damages.

In a separate judgment delivered on 2 November 2017, the primary judge dealt with costs and interest. In light of a series of offers (one of which was merely to apologise, without any payment of damages or costs) pursuant to s 40(3) of the Act, she ordered that Mr Un pay the plaintiffs’ costs of the proceedings on an indemnity basis: Chow v Un (No 2) [2017] NSWDC 301.

Mr Un’s appeal against the judgment in favour of the first plaintiff is as of right, having regard to the size of the judgment entered against him: District Court Act 1973 (NSW), s 127. The separate judgment in favour of the second plaintiff taken in isolation required leave, but no issue was raised as to the form of the proceeding in this Court. It is not necessary to determine whether leave was required. The point has been raised but not resolved in a variety of procedural contexts: see NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [23]-[25]; Hall v van der Poel [2009] NSWCA 436 at [1]-[3]; Chen v State of New South Wales [2016] NSWCA 177 at [8]-[15]; Lan v Kaymet Corporation Pty Ltd [2017] NSWCA 52 at [4]-[6]. As the orders had a common substratum as to liability, leave, to the extent necessary, should be granted to appeal from the judgment in favour of the second plaintiff.

The notice of appeal, unlike his pleadings at trial, appears to have been drafted by the appellant without the benefit of representation. It contains five appeal grounds, written in Chinese characters, which have been translated in the documents in the appeal books as follows:

By way of submissions in support, Mr Un provided a document of five paragraphs, again prepared in Chinese characters, which was translated in the documents in the appeal books. (The translations of the document and the grounds of appeal were not, on their face, authenticated, but there was no objection from the respondents to their accuracy.)

Paragraphs 1-5 of that document comprise a narrative of events involving Mr Un and members of the Association between 26 December 2012 and leading up to 29 December 2013 (the date of publication). They included complaints made by him as to irregularities in the administration of Goon Yee Tong, a conversation he had taped concerning those allegations, threats which he said had been made to him which were reported to the police, and his expulsion from a venue following his making a public speech regarding amendments to the articles of association. The document then contained his account of what occurred towards the end of the meeting on 29 December 2013, namely, that he handed a single copy of the pamphlet to the first respondent. The concluding paragraph addressed complaints he had made in the following two years to the Department of Fair Trading concerning Goon Yee Tong, and his views about the “invasion” by the Chinese Communist Party of Australian-Chinese organisations.

Consistently with his grounds of appeal, and the written submissions summarised above, Mr Un’s oral submissions, which were made without the assistance of a lawyer and through a translator, focussed upon (a) his claims that he never distributed the pamphlet on 29 December 2013 (or at all), (b) his claims that the witnesses whose evidence had been accepted by the primary judge had perjured themselves and were under the influence of the Chinese Communist Party, and (c) the ongoing embezzlement and other illegal conduct by the Association. At no stage did he refer to any particular paragraph of the judgment of the primary judge in order to say that it contained error.

Mr Un maintained that what was said in the pamphlet was true and repeatedly invited counsel for the respondents to engage with him in relation to any aspect of which they said was untrue.

For example, a deal of the oral submissions were directed to whether or not in fact Mr Chow Sum was bankrupt (being the first imputation), and whether that bankruptcy had been concealed from the Department of Immigration or from members of Goon Yee Tong (being the second and third imputations). But whether or not Mr Chow Sum had been made bankrupt in Hong Kong, and, if so, whether that had been concealed from anyone, did not arise as an issue for determination before the primary judge, nor did her Honour purport to determine any such issue, the defence not having raised truth. The only questions for her Honour, given Mr Un’s pleadings, and the way his case was conducted, was whether the pamphlet carried the imputations relating to Mr Chow Sum’s bankruptcy, whether the pamphlet was published by Mr Un, and whether any of the defences were made out. The primary judge made no finding that Mr Chow Sum was bankrupt, and, given the nature of the issues, there was no occasion for her to do so. In any event this issue fell outside the grounds of appeal.

Counsel for the respondents, with respect correctly, submitted that truth had not been relied upon at the trial and that the documentary material contained in the appeal books had been tendered as relevant to qualified privilege.

In light of the way in which Mr Un’s appeal had been prepared, a direction was made for an amicus to appear on the appeal. The Court is grateful for the submissions made by Mr K Smark SC who accepted that brief.

Appeal grounds 1, 2 and 4 seek to challenge the factual findings that the primary judge made, namely, that Mr Un distributed the pamphlet on 29 December 2013. Her Honour’s finding was based on observing the testimony of six witnesses called by the plaintiffs, and Mr Un’s own testimony, of which she formed an unfavourable opinion. Her Honour also relied upon Mr Un’s failure to call two witnesses who, so it was said, had accompanied him to court. No appellable error has been shown in the findings made by her Honour.

Appeal grounds 3 and 5 do not relate to any of the issues determined by the primary judge. They are also scandalous, insofar as they use the court’s processes to make allegations of serious criminality against the respondents and other members of the Association.

Mr Un also sought to tender a volume of fresh evidence in support of his appeal. The fresh evidence amounted to some 108 pages of documents. A small minority of those documents post-dated the trial, but many preceded it, and no attempt was made to explain why they should be admitted on appeal when they had not been tendered at first instance. (One document included in the bundle (at pages 544-45) had in fact been tendered as Exhibit 4 at trial.) The tender was not opposed by the respondents. However, in the absence of any explanation for why the documents were not tendered at trial, the requisite “special grounds” required by s 75A(8) of the Supreme Court Act 1970 (NSW) have not been made out in respect of any of the documents which pre-dated the trial. But even if that were wrong, none of the documents was shown to be relevant to any issue arising on the appeal. The tender of the documents comprising pages 501-607 of the Blue Folder must be rejected.

For those reasons, the appeal must be dismissed, with costs.

BARRETT AJA: I also agree.