YOON CHEOL HONG V DUK SEUNG AHN HC AK CIV-2008-404-008240 [2009] NZHC 209 (24 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                    CIV-2008-404-008240


                      IN THE MATTER OF         an appeal against a decision of the District
                                  
            Court at Auckland dated 25 November
                                               2008

                      BETWEEN
                 YOON CHEOL HONG
                                               Appellant

                      AND            
         DUK SEUNG AHN
                                               Respondent


Hearing:              24 February 2009

Appearances:
Appellant in Person
             N Tabb and H J Lee for Respondent

Judgment:             24 February 2009 at 4.30 p.m.


      
                    JUDGMENT OF VENNING J
                 ON APPLICATION TO ADDUCE FURTHER EVIDENCE




This judgment was delivered
by me on 24 February 2009 at 4.30 pm, pursuant to Rule 11.5 of the
High Court Rules.


Registrar/Deputy Registrar

Date...............




Solicitors:           Sorensen Law, Auckland
Copy to:              N Tabb, Auckland
                      Y C Hong, Auckland




YOON CHEOL HONG V DUK SEUNG AHN HC AK CIV-2008-404-008240 24 February 2009

Introduction


[1]    The appeal against Judge Hubble's
decision finding that Mr Hong had
defamed the respondent and entering judgment in the sum of $85,000 together with
costs is scheduled
for hearing on 8 April 2009 at 11.45 a.m. (half day allocated).


[2]    Mr Hong has sought leave to adduce further evidence for
that appeal. The
application is opposed.


[3]    The further evidence Mr Hong seeks to adduce falls into two categories.
First,
two Notarial Certificates containing two South Korean lawyers' legal opinion
on the definition of "stay of prosecution" under the
South Korean criminal law.
Second, a hard copy printout of an item run by TVNZ One News on Saturday 14
February 2009 relating to
the activities of Wasan International Limited.


Principles


[4]    Rule 20.16 now deals with the admission of further evidence.
The principles,
however, have not altered. I accept for present purposes the authorities referred to
by Mr Hong of Comalco NZ Ltd
v TVNZ Ltd  (1996) 10 PRNZ 573; Power NZ Ltd v
Mercury Energy Ltd [1996] 1 NZLR 106; NZ Co-op Dairy Co Ltd v Commerce
Commission  (1991) 3 PRNZ 262.


The South Korean lawyers' evidence


[5]    Mr Hong complained first that the Notarial Certificates confirming the
evidence of
the South Korean lawyers had not been included in the agreed bundle of
documents for the District Court hearing. There is nothing
in that complaint. The
short point is that the respondent did not agree to the inclusion of those documents in
the bundle. They were
therefore not, by definition, "agreed documents" and were
not put before the Court that way, even though that was Mr Hong's wish.

[6]    Mr Hong sought to introduce the documents in Court but the District Court
Judge declined to allow him to do that. Mr Hong
argued that the documents were
admissible as business records that s 19 of the Evidence Act 2006 applied. He
repeats that argument
in support of his application that the documents be adduced as
further evidence for the purposes of the appeal.


[7]    But Mr Hong
has misunderstood the application of s 19 of the Evidence Act
2006 and the nature of the evidence in issue. Mr Hong sought to introduce
the
evidence as conclusive evidence of the effect of a stay of prosecution in Korea in
certain circumstances. Clearly the evidence
was intended by him to be accepted by
the Court as expert opinion evidence.


[8]    Section 19 of the Evidence Act 2006 does not
apply in such a case. It relates
to the admission of business records. The evidence was not contained in a business
record(s). Section
16 defines a business record as a document:

       (a)     that is made--

               (i) to comply with a duty; or

      
        (ii) in the course of a business, and as a record or part of a record of
                   that business; ...

[9]    The
expert evidence of the Korean solicitors was not made to comply with a
duty or in the course of a business and as a record or part
of a record of a business.
The reports were obtained by Mr Hong specifically for the purposes of providing
expert evidence for the
case he was involved in.              Section 19 simply has no
application.


[10]   Mr Hong submitted that the Court should have
regard to the provisions of the
Evidence Amendment Act (No 2) 1980. I presume he was referring to s 3 of that Act
which provided
that in certain circumstances a statement made by a person in a
document tending to establish that fact or opinion could be admissible
if the maker
of the statement was unavailable to give evidence. Whatever the force of that
section it no longer applies.

[11] 
 The relevant sections in relation to opinion evidence in the 2006 Act, are in
subpart 2 of the Evidence Act 2006. The default position
is that a statement of
opinion is not admissible except as provided by s 24 or 25. Section 24 provides for
circumstances that a witness
may state an opinion. But "witness" is defined as a
person who gives evidence and is able to be cross-examined. It does not apply
to the
South Korean lawyers. Section 25 provides generally for the admissibility of expert
opinion evidence but again contemplates
the witness will be present and, in any
event, must be read with s 26 which provides that experts must give expert evidence
in accordance
with the applicable rules of Court. There is no evidence that the South
Korean lawyers in this case did so. In that case the evidence
would only have been
admissible with permission of the Judge. It was a discretionary decision for the
Judge whether to accept the
opinion evidence or not.


[12]   The short point is that the evidence was not admissible as a business record.
The Judge was quite
entitled to reject Mr Hong's application it be admitted as
opinion expert evidence.


[13]   Finally, the evidence was, in any event,
of limited relevance to the hearing.
As Ms Tabb correctly pointed out, even if the evidence bore on the issue of truth, the
Court
of Appeal have confirmed in New Zealand Magazines Limited v Hadley
CA74/96, 24 October 1996 the Court is not concerned with the literal
meaning of the
words or the meaning, which might be extracted on close analysis by a lawyer or
academic linguist. What matters is the meaning, which the ordinary reasonable
person would, as a matter of impression carry away in his or her head after reading
the publication. That includes what the ordinary
reasonable person would infer. The
focus is on the sting of the words. The opinion of the south Korean lawyers was
directed at the
literal or legal meaning of the words.


The TVNZ article


[14]   Mr Hong submitted that the TVNZ article was admissible as evidence
to
address the District Court Judge's "perception of the appellant's state of mind
towards Wasan" which the District Court Judge
described as malicious.

[15]     The issue before the Court was whether the advertisement run by Mr Hong
and referring to the respondent
Mr Ang was defamatory or not. Mr Hong refused to
make an apology. As the Judge recorded the case for Mr Hong was conducted on
the
basis that the contents of the publication were true. In the circumstances the
activities of Wasan International, Mr Ahn's employers,
were not particularly
relevant.


[16]     Although the TVNZ article was published after the decision in the District
Court, it is
not and could not be relevant to determination of the appeal. Mr Ahn is
not referred to in the article. None of the comments in the
article establish the truth
of the defamatory statements made by Mr Hong about the respondent.


Result


[17]     The application
to adduce the further evidence at the appeal is dismissed with
costs to the respondent on a 2B basis.


                        
                     __________________________
                                              Venning J