Lee & Anor v Kim [2006] NSWCA 384

Lee & Anor v Kim [2006] NSWCA 384

The overlap between the first and second statements of claim was almost complete: both actions concerned the same defamatory imputations in the same articles in the same issues, and the texts were very similar. The respondent should have brought forward his whole case in the first action. Cause of action estoppels were established and barred the second action. Section 9(3) of the Defamation Act 1974 applied because the second action concerned the same publications of like matter, and the primary judge's discretion miscarried by giving decisive weight to the absence of a determination on the merits while devaluing the principles in Henderson v Henderson. Leave under s 9(3) should be refused.

Jurisdiction
Australia
Judgment Date
20 December 2006
Procedural Posture
Defamation Appeal / Application for Leave to Appeal From an Interlocutory Decision of the District Court; Leave to Appeal Granted and Appeal Determined
Outcome
Appeal allowed with costs; District Court orders set aside; judgment entered for the defendants in action 219/05 with costs.
Legal Topics
['successive Defamation Actions' 'same Publications' 'defamation Act 1974 S 9(3) Leave' 'cause of Action Estoppel' 'abuse of Process' 'anshun Estoppel']
['defamation' 'civil Procedure' 'res Judicata'] ['successive Defamation Actions' 'same Publications' 'defamation Act 1974 S 9(3) Leave' 'cause of Action Estoppel' 'abuse of Process' 'anshun Estoppel']

Case Brief

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Procedural Posture

Defamation Appeal / Application for Leave to Appeal From an Interlocutory Decision of the District Court; Leave to Appeal Granted and Appeal Determined

Legal Issues

  1. 1 ["Whether the respondent's second defamation action in respect of articles in the same issues of the Sydney Korean Herald was barred by cause of action estoppel or other estoppels." 'Whether the second action was vexatious or an abuse of process.' 'Whether s 9(3) of the Defamation Act 1974 applied and, if so, whether leave to bring the second action should be granted.']

Ratio Decidendi

The overlap between the first and second statements of claim was almost complete: both actions concerned the same defamatory imputations in the same articles in the same issues, and the texts were very similar. The respondent should have brought forward his whole case in the first action. Cause of action estoppels were established and barred the second action. Section 9(3) of the Defamation Act 1974 applied because the second action concerned the same publications of like matter, and the primary judge's discretion miscarried by giving decisive weight to the absence of a determination on the merits while devaluing the principles in Henderson v Henderson. Leave under s 9(3) should be refused.

Court Disposition

Appeal allowed with costs; District Court orders set aside; judgment entered for the defendants in action 219/05 with costs.

Orders

  • ['Appeal allowed with costs.' 'Orders of the District Court of 25 August 2005 set aside.' 'In lieu thereof order that there be judgment for the defendants in action 219/05 with costs.' "The plaintiff Chung Yup Kim is to pay the defendants' costs of the notice of motion of 30 May 2005." "The respondent is to have a...