Kim v Lee & Ors (No 2) [2006] NSWSC 1212

Kim v Lee & Ors (No 2) [2006] NSWSC 1212

Because the only evidence of the 3rd defendant's alleged authority was his own statements and a document appointing him only as representative for District Court proceeding no. 2403 of 2003, there was no sufficient basis to admit the plaintiff's affidavit evidence of conversations against the 1st and 2nd and 4th to 32nd defendants; the same evidence was admissible against the 3rd defendant on the alternative claim, but hearsay was limited to proving that the conversations occurred and not the truth of the representations.

Jurisdiction
Australia
Judgment Date
13 November 2006
Procedural Posture
Equity Division Proceedings Concerning Declarations About Alleged Settlement of District Court Defamation Proceedings / Ex Tempore Evidentiary Ruling on Admissibility and Relevance of Affidavit Evidence
Outcome
Evidence struck out against the 1st and 2nd and 4th to 32nd defendants; evidence admitted against the 3rd defendant with a hearsay limitation.
Legal Topics
['admissibility and Relevance' 'hearsay' 'actual or Ostensible Authority' 'settlement Authority' 'affidavit Evidence']
['evidence' 'agency' 'civil Procedure' 'defamation'] ['admissibility and Relevance' 'hearsay' 'actual or Ostensible Authority' 'settlement Authority' 'affidavit Evidence']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Declarations About Alleged Settlement of District Court Defamation Proceedings / Ex Tempore Evidentiary Ruling on Admissibility and Relevance of Affidavit Evidence

Legal Issues

  1. 1 ['Whether conversations between the plaintiff and the 3rd defendant were admissible against the 1st and 2nd and 4th to 32nd defendants as evidence of an alleged settlement made by the 3rd defendant as agent.' 'Whether the evidence established actual or ostensible authority of the 3rd defendant to bind the other defendants.' "Whether the conversations were admissible against the 3rd defendant under the plaintiff's alternative claim." "Whether hearsay in the plaintiff's affidavit could be admitted other than as evidence that conversations took place."]

Ratio Decidendi

Because the only evidence of the 3rd defendant's alleged authority was his own statements and a document appointing him only as representative for District Court proceeding no. 2403 of 2003, there was no sufficient basis to admit the plaintiff's affidavit evidence of conversations against the 1st and 2nd and 4th to 32nd defendants; the same evidence was admissible against the 3rd defendant on the alternative claim, but hearsay was limited to proving that the conversations occurred and not the truth of the representations.

Court Disposition

Evidence struck out against the 1st and 2nd and 4th to 32nd defendants; evidence admitted against the 3rd defendant with a hearsay limitation.

Orders

  • ["Paragraphs 18 to 20 of Mr Kim's affidavit are struck out as against the 1st and 2nd and 4th to 32nd defendants." 'The plaintiff has leave to re-tender paragraphs 18 to 20 should an appropriate basis of authority of Mr Yun Hwa Lee be established.' 'Paragraphs 18 to 20 are allowed against the 3rd defendant under the...