Kung Fu Fighting – plaintiff not as fast as lightning: Jin-Song Han v Australian Kung Fu Federation Inc [2011] VSC 498

This was an application to strike out 3 claims for defamation on the basis that they were statute barred. Under the Defamation Act 2005 (Vic), a person has 1 year from the date of publication to sue. If they do not, they can only get an extension of that period if they satisfy the court that it was not reasonable in the circumstances for the plaintiff to have commenced an action within that time. This is hard.

the way this matter should have been resolved
alternative dispute resolution?

The plaintiff is a Kung Fu instructor who says he was wrongfully expelled from the Australian Kung Fu Federation. He was expelled after 13 complaints were lodged against him alleging financial and administrative wrongdoing, and those complaints were heard by the Ethics Committee of the Federation. Basically, the plaintiff alleged that this process was infected by various administrative law type errors.

On 30 June 2011, the plaintiff filed a 34-page statement of claim with a relatively small defamation claim at the end of it.

The relevant dates are these:

  • 21.2.09: President prepared a report to the Ethics Committee about the plaintiff;
  • 22.2.09: Ethics Committee received the report and heard the charges;
  • 19.4.09: Special General Meeting held, upholding the decision of the Ethics Committee;

The plaintiff asserts three claims of defamation:

  1. 15.10.08: President sent an email to the Technical Committee of the International Kung Fu Federation, requesting that the plaintiff be suspended and falsely stating that the plaintiff engaged in financial and administrative misconduct;
  2. 22.2.09: Publication of the Report to the Ethics Committee.
  3. 19.4.09: The plaintiff appealed to the Special General Meeting and during that meeting, the President stated that the plaintiff (a married man) had sexual intercourse with a different lady who appeared to be involved with the Federation.

The defendants sought summary judgment on the grounds that these claims were statute barred. On the 1st claim, the plaintiff contended that he did not know of the October 2008 email until May 2011, and despite some concerns, Associate Justice Mukhtar accepted that. The plaintiff did not know of it, so the time had to be extended. Fair enough.

However, not so much luck on the other 2 claims. For the 2nd, the plaintiff knew about the Report when it was sent to him on 30.11.09 and thereupon he knew it was published on 22.2.09. The plaintiff did not sue for another 18 months. Counsel for the plaintiff submitted that the plaintiff had been occupied with other matters and that there would be no prejudice to the defendants if time were extended, but the Associate Judge said no, these were not relevant factors. Second claim struck out.

As for the 3rd, Counsel for the plaintiff had to concede on that one. The plaintiff was present at the Special General Meeting, he heard the allegation and he did not sue for more than 2 years. Struck out.

So the plaintiff gets leave to re-plead on the 1st claim, he can’t run the other two claims, and he can pursue the rest of his other claims, seeking to be reinstated as a Member and the Secretary General of the Kung Fu Federation, which he now sues.

Perhaps the better way to resolve this one is in the ring …