Failure to stretch Lange defence for foreign language papers: The Korean Times Pty Ltd & Anor v Un Dok Pak [2011] NSWCA 365

The plaintiff was born in Korea and moved to Australia when she was 15. She studied Economics and Law, became a solicitor and also married another solicitor (Ki Beom Kwon). She and her husband were heavily involved in the Korean community and in politics. Her husband was a Councillor on the Strathfield Council for 6 years and at one stage, Mayor.

Meanwhile, the plaintiff held positions in numerous voluntary bodies, including the Korean Australian Women’s Forum and the Korean Australian Chamber of Commerce and Industry. In 2007, she was appointed a part-time Commissioner of the Community Relations Commission, having been invited by Ms Virgina Judge MP to consider an appointment some months earlier.

Virginia Judge MP

The plaintiff and her husband were members of the ALP and first met Ms Virgina Judge in 2000 or 2001, when she was Mayor of the Council. After that, they made contributions of $21,000 to “Friends of Virginia Judge” and subsequently, $15,000 to the Strathmore Branch of the ALP. These donations were at the heart of the defamation claim.

On 27 February 2009, “Hojuilbo”, a Korean language newspaper also known as The Korean Times and with a circulation of 6,000, published an article about the plaintiff. In effect, it sought to report from what had appeared in the Sydney Morning Herald and the heading of the article was “Political Donation Investigation into Un Dok Pak/ Judge MP Mayor Ki Beom Kwon couple donated $35,506 in total”.

The plaintiff sued the Korean Times and claimed the following imputations:

  •  The plaintiff is being investigated by the Independent Commission against Corruption for a political donation to Judge MP, the Minister for Fair Trading and Citizenship;
  • the plaintiff was suspected by the Independent Commission Against Corruption of improper conduct;
  • the plaintiff is suspected by the Independent Commission Against Corruption of soliciting Judge MP to use her influence to have the plaintiff appointed president of the Community Relations Commission.
  • the plaintiff has so conducted herself by making a political donation to Judge MP the Minister for Fair Trading and Citizenship that she warranted investigation by the Independent Commission Against Corruption.

 The Korean Times claimed the imputations did not arise and ran the usual gamut of justification and qualified privilege defences.

However, it was admitted by the Korean Times that they published the article without having sought any comment from the plaintiff. The plaintiff had already given comment to the Sydney Morning Herald, which had been published.

In any event, this meant that it almost had to concede that it had not acted reasonably, and so, the Lange defence for the publication of government and political matter, was not available. The Korean Times lost at trial in the NSW District Court ($100,000, including aggravated damages, plus interest and indemnity costs) and went to the Court of Appeal.

On appeal, the Korean Times sought to expand the government and political matter defence to cases that involved the communication of material to people who could not speak English and could not get their information elsewhere, whereby publication need not be reasonable, but could be protected if there was an honesty of purpose. The Korean Times argued that there was a reciprocity duty- interest defence, regardless of reasonableness, because the readers did not understand English and could not find their information elsewhere.

The Court of Appeal dismissed that argument and dismissed most of the other arguments put by the appellant, but the Korean Times had some degree of success in the appeal because damages were reduced from $100,000 to $80,000. Mind you, it still had to pay 80% of the plaintiff’s costs of the appeal, so all in all, a big win for the plaintiff.

It is not clear from the judgment if she sued the Sydney Morning Herald. Might be interesting to know…