District Court New South Wales Medium Neutral Citation: The Sydney Cosmetic Specialist Clinic Pty Ltd (ACN 151 319 032) v Hu [2020] NSWDC 786 Hearing dates: 13, 14 and 25 August 2020 Date of orders: 29 October 2020 Decision date: 29 October 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to UCPR r 14.28 paragraphs 6, 8, 9 (particulars of identification), 11(a), 12(a) – (vii), 14 (particulars of extrinsic facts), 15 (particulars of identification), 17, 18 (particulars of identification) and 20 (particulars of extrinsic facts) are struck out without leave to replead. (2) Pursuant to UCPR r 13.4 proceedings against the first and third defendants are dismissed. (3) Plaintiffs pay defendants' costs, with liberty to apply. Catchwords: TORT – defamation – WeChat group publication comments over a one-day period - adequacy of particulars of identification, downloading and extrinsic facts – seventh iteration of pleadings over three years of case management in the Supreme and District Courts – particulars still in need of revision – whether leave to amend should be granted Legislation Cited: Uniform Civil Procedure Rules ("UCPR") rr 14.28, 13.4, 15.19(d), 28.2 Cases Cited: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Crookes v Newtown [2011] 3 SCR 269 David Syme & Co v Canavan (1918) 25 CLR 234 Davis v Resources for Human Developments Inc., 770 A 2d 353 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398 Fregnan v Stanizzo [2020] NSWSC 402 Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Massarani v Kriz [2020] NSWCA 252 Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 Plymouth Brethren Christian Church v The Age Company Ltd (2016) 97 NSWLR 739 Scelfo v Rutgers University (1971) 282 A 2d 445 Templar v Britton [2013] NSWSC 1827 Sims v Jooste [2016] WASCA 83 Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2017] NSWSC 1858 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 2) [2018] NSWSC 114 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 3) [2018] NSWSC The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 4) (Supreme Court of New South Wales, McCallum J, 8 June 2018, unreported) Toomey v John Fairfax (1985) NSWLR 291 Trantum v McDowell [2007] NSWCA 138 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Maxwell-Smith v Warren & Anor [2007] NSWCA 270 Texts Cited: Tobin & Sexton, Australian Defamation Law and Practice, LexisNexis, Category: Procedural and other rulings Parties: Plaintiffs: The Sydney Cosmetic Specialist Clinic Pty Ltd (First Plaintiff) Siew Yi Lee(Second Plaintiff) Defendant: Yiwen Hu (First Defendant) Lijue Ma (Third Defendant) Representation: Counsel: Plaintiffs: Mr J Young Third Defendant: Mr M Polden Solicitor: Plaintiffs: Chi Wah Francis Lau, Solicitor & Barrister Third Defendant: United Lawyers File Number(s): 2017/180689 Publication restriction: None Judgment The applications before the court 1. The third defendant brings an application, by notice of motion filed on 26 February 2020, to strike out particulars of identification in paragraphs 6, 8, 15 and 17 of the third further amended statement of claim filed on 24 October 2019, pursuant to Uniform Civil Procedure Rules ("UCPR") r 14.28. Additionally, as opposed to leave to replead being granted, the third defendant seeks orders for the dismissal of these proceedings under UCPR r 13.4 and for judgment to be entered in favour of the third defendant. The first defendant, who represents himself, seeks the same order on the same basis. 2. In the course of argument it became clear that the portions of the pleadings the subject of challenge are paragraphs 6, 8, 9 (particulars of identification), 11(a), 12(a) – (vii), 14 (particulars of extrinsic facts), 15 (particulars of identification), 17, 18 (particulars of identification) and 20 (particulars of extrinsic facts). In the course of my judgment, I have identified the challenges in groups, depending upon whether the challenge was to identification particulars or some other basis. I did so because this was the approach taken by the parties. 3. This is not the first time the defendants have complained about the inadequacy of particulars of identification and publication. The defendants' previous application was refused, on the basis that the plaintiffs should be given one more opportunity to provide these particulars: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482. In that judgment I granted leave to file a third further amended statement of claim, but on conditions: (1) The second further amended statement of claim is struck out with leave to replead. (2) The third further amended statement of claim to be filed and served in 28 days, such pleading is to identify in relation to each of the matter(s) complained of the names of each of the persons to whom the matter complained of is alleged to have been published and full particulars of the basis upon which each of the plaintiffs is identified by each such reader, giving references where applicable to the text of the WeChat conversation, such particulars to be contained in the amended pleading and to be verified by the second plaintiff and by an authorised officer of the first plaintiff. (3) The application to strike in further material into the proposed publications is deferred until the revised text of the matter(s) complained of is provided. (4) Upon receipt of the proposed third further amended statement of claim, the parties are to provide the court with a list of outstanding issues for determination, including but not limited to the adequacy of translations, strike in applications and other pleading issues. (5) The plaintiffs are to pay the defendants' costs of the application. (6) The plaintiffs are to notify the fourth defendant of these orders and to file and serve in 28 days all relevant affidavits of service in relation to notification of the fourth defendant of these proceedings and this application. (7) Liberty to relist these proceedings in the Defamation List on 12 September 2019 for further timetabling orders. 1. The process of verification as set out in the orders above was the result of the deficiencies not only in relation to adequacy but also as the failure to identify the persons who identified the plaintiffs (and, in particular, the second plaintiff): Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192 ("Lazarus"); Templar v Britton [2013] NSWSC 1827. 2. The defendants say that, despite being given that opportunity, the plaintiffs have failed to provide such particulars of publication as are necessary for them to know the case they have to meet and that, for the reasons set out by Hunt J in Lazarus at 192, the plaintiffs should, in the words of Hunt J at 194, "suffer the loss of [their] action" for the reasons explained by Hunt J at 192: The identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of had a legitimate interest in the matter so published. The difference between substantial or trivial damages (Fullam v Newcastle Chronicle and Journal Ltd (at 659; 39)) and the application of the defence of unlikelihood of harm afforded by the Defamation Act 1974, s 13 (Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reporter 80-691), will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published. 1. The plaintiffs acknowledge that, despite being given extensions of time to comply with the orders made, they have neither challenged my ruling on appeal nor provided the precise form of particulars ordered. They argue that the particulars they do provide are sufficient for trial and that these are issues which should be determined at trial, and not on an interlocutory application. They also submit that it is not appropriate for a court to order a plaintiff to provide detailed particulars of material which is "merely…background or context to the central allegations in a statement of claim" (Fregnan v Stanizzo [2020] NSWSC 402 at [15]) and that the defendants' claims are "a mere complaint about particulars" and are "technical and unreal" (submissions (21 August 2020, paragraphs 2 and 15). They expect the first and third defendants to plead to the current statement of claim, although acknowledging that some areas of the particularisation may benefit from further addition. The publications in question 1. The defamation claims arise out of five remarks made in the course of a lengthy series of posts by a WeChat group called the Sydney General Housing Rental Association, over the period 18 – 19 June 2016. This WeChat group (which had a maximum number of 500 persons under WeChat rules and had 495 members at the time the conversation started) was formed for real estate agents and investors to discuss real estate and related business matters. Membership of the group was a simple application process, but the purpose of the group was to exchange information about real estate. 2. To the annoyance of the WeChat group members, an advertisement stub from "Sydney Today" (a Chinese language newspaper) for cosmetic surgery, headed "After a nose job, you still do not look good on camera because of a short chin", was posted on their real estate chat site at 11:36 am on 18 June 2016. 3. No names appear in this stub; it is necessary to click onto the website to discover the names of both the first and second plaintiffs. Significantly, the name of the second plaintiff does not appear in the advertisement even when clicked on. It must be searched for on the first plaintiff's website, where it appears only in simplified Chinese characters ("李小瑜"), and not in any anglicised form, and certainly not in the form of English name under which she received her qualifications. The relevance of this is that when the third defendant says that when he saw "that ad above about plastic surgeries", he checked the qualifications of "Li Xiao Yu" in pinyin and found that "there is no one called "Li Xiao Yu", with this name "Li Xiao Yu" written in Chinese standardised phonetic pinyin and not in characters. 4. Although there is an agreed transcript and translation for the WeChat publication (Exhibit B), which occurred over more than a day, the precise passages relied upon and the manner in which the plaintiffs claim to be identified (as well as to whom) have all varied significantly in the iterations of the plaintiffs' pleadings both in the Supreme Court and this court. Currently there are five matters complained of, but these are confusingly set out as Annexures A and C – F of the current pleading. The relevant text sued upon is as follows: 1. Publication A: 2. Rachel: I have checked, Australia does not have a registered doctor by the name Li Xiao Lu. This is a conman. (18 June 2016 at 12:23 pm) 3. Untitled publication (there is no Publication B): 4. Z.: Rachel, did you meet a conman [emoticon]? 5. Hu: Who invited this cosmetic clinic into the group? 6. Rachel: No me, I looked at the advertisement, checked this "doctor's" qualifications in the entire registration in Australia, there is no doctor by the name of "Li Xiao Yu". 7. Another person: Anybody have a single room for rent in Bankstown [emoticon]?" (18 June 2016 at 1:19 pm, almost an hour after the previous publication sued upon.) 8. Note: It is unclear whether the whole of this publication is sued upon, or only the statement by Rachel, or is in some way just context. This publication is not identified in the pleading as publication B. The court was told that only the bracketed material was sued upon, and there are no brackets in this publication. 9. There is then a six-hour gap to the next matter complained of, Publication C: 10. Hu: @Rachel, no licence to do cosmetic procedures at all. (18 June 2016 at 7:43 pm) 11. Note: Additional text is provided, apparently as context. 12. Publication D: 13. Hu: @Rachel, without qualifications, she is going to harm people. (18 June 2016 at 7:46 pm) 14. Note: Additional text is provided, apparently as context. 15. Publication E: 16. Rachel: @Richard-LJHooker have [sic] checked from multiple channels, no registration, not even a doctor, checked the so-called Royal College of Surgeons, she is not a member. Her advertisement is very fake." (18 June 2016, 7:46 pm) 17. Note: Additional text is provided, apparently as context. 18. Publication F: 19. Hu: This is a criminal case. (18 June 2016 at 7:46 pm) 20. Note: Additional text is provided, apparently as context. It is unclear why these two publications have been split up this way although they were made at 7:46 pm. A brief summary of the other relevant portions of the WeChat entries 1. As Exhibit B's translation confirms, the document posted at 11:36 am is an advertisement from "Sydney Today", described by the translator as "an online Chinese media"; the email address in the link clearly says "sydney.jinriaozhou.com/", which is that online site's address, not that of the first plaintiff. All that appears in the stub is the heading "After a nose job, you still do not look good on camera because of a short chin". By clicking on this link, the reader comes to the heading "a Sydney Plastic and Cosmetic Clinic", with the first plaintiff's website and office address at the end. There is no reference to any doctor; no doctors' names of any kind appear; further clicking on links is necessary. 2. At 12:29, nearly an hour later, the first matter complained of appears, with the third defendant going on to add (outside the one-line first matter complained of) that she checked the advertisement and that there is no "Li Xiao Yu" (a name she spells out in the Chinese text in English lettering, conformably with standardized pinyin) registered as a plastic surgeon. 3. At 1:19 pm, the first and third defendants exchange chats about a screenshot from the APHRA website Register of Practitioners showing there is no practitioner named Li Xiao Lu. This page does not include any reference to either plaintiff. It is in this context the second matter complained of is published. 4. There is then a very substantial gap in time until the third to fifth publications. Over this period there is a lot of discussion between the parties. A crucial entry is made by the second plaintiff at 2:20 pm where she uses the spelling "li xiao yu" in English letters in the first of her many posts, at 2:20 pm. Page Questions by whom Reply by Second plaintiff 18 June 2016 How do you know her name is "li xiao yu"? [written in pinyin] Too arbitrary. 11(2:20pm) Alan, you must be good looking. You don't understand how hurtful it is to look ugly. 4th defendant Everyone can have one's own opinion. If you guys don't like plastic surgery ads, you can tell that person not to post any more. The second plaintiff adds at 2:25 pm: But it is not right to attack people behind that person's back. 11 (2:25 pm) @Sunshine [the second plaintiff] is that you who added her into this group? I found such information in her ads. I did not make up stories. 3rd defendant It was not me who added her into this group. Chinese Pinyin is used by mainland Chinese. There are over 20 million Chinese people overseas. Overseas Chinese do not use such spelling. 12 - 13 There is a web address in the ad. I found the information through that website. 3rd defendant Is there? There is no "li xiao yu" [again, this name is typed by the second plaintiff in English alphabet characters.] (2:30 pm) 12 (2:30pm) I think there is nothing wrong with Rachel checking out the information. It's made convenient for the public Member 6 You are too arbitrary. 13 (2:30pm) After further conversation, the second plaintiff says "It is certainly not right if you practice medicine without a licence", adding "But it is not this clinic. You don't even know that person's English name. You are nonsensing." 13 (2:30pm) The third defendant publishes the original "Sydney Today" link and a screenshot of the first plaintiff's webpage with the Chinese characters for "Li Xiao Yu". 3rd defendant And used the Chinese Pinyin for that person's Chinese name directly. It's ridiculous. 14 (2:30 pm) Member 6: It's very easy to prove whether it is true or not; 3rd defendant and There are too many, sister. 3rd defendant: @Sunshine [second plaintiff] Check on the medical practitioners with the surname of 'Li" and registered in NSW. How many are there in total? You can count yourself. Member 6; 14 (2:30pm) Yes, I will report. 3rd defendant Moreover, many Chinese doctors are not from mainland China. So the Medical Board will have their English names. 15 (2:34pm) Unless the surname is not 'Li' 3rd defendant Not according to Chinese pinyin 1. It is at this stage that the third defendant says "I did not find such person with surname "Li" or "Lee"; both these names are spelled in English. 2. It is in this context that the third defendant and member 6 asked the second plaintiff about whether she knew, or was, the doctor "Li Xiao Yu". The angry and disdainful non-responses of the second plaintiff speak for themselves. Here are some of the examples: Page Questions by whom Reply by Plaintiff 18 June 2016 15 (2:34pm) Let's ask Classmate Li to show us her practice licence. Isn't it simple? 3rd Defendant Have you been to that clinic? Do you know how her English name is spelt? 17 (2:38pm) Can you give us evidence. 3rd Defendant You are better asked [sic] by yourself. 18 (2:41pm) Agree. If a license is produced, we will be fine here. 3rd Defendant So Rachel, please go to the clinic yourself to investigate. 20 (2:41pm) Do not argue with me. If you can post a practice license here, there should be no problems any more. 3rd Defendant You also need evidence to question. 30 (2:58pm) Why do I have to go to the clinic myself? Why don't you show your license directly? Member 6 You are talking nonsense when you don't know a thing. 31 (3:02pm) Indeed, how difficult is it to show your license? 3rd Defendant You have no logic in your talk. Forget it. I will delete you from my contact 31 (3:02pm) Wow you should have already shown your evidence since you have plenty of time… There is no need to do it in private, right? Member 6 You have no logic in your talk. Forget it. I will delete you from my contact 36 (3:07pm) Hasn't she posted it already? Member 6 You must go and check by yourself. Do not ask other people to check for you. 39-40 (3:14pm) We have talked this much, why don't you show us a license. 3rd Defendant You must work on it harder. You need to check by yourself. I am not going to help you. 42 (3:17pm) We are asking her to show us her license. Why are you following her words. Member 3 No Reply 45 (3:24pm) I want to laugh to death. I have met the very "Dr Li" before. How she looked like you! 4th Defendant No Reply 45 (3:24pm) Yes I feel the same as an onlooker, the alternative account is a bit jumpy. Member 13 No Reply 46 (3:24pm) Excuse me, the so-called Dr Li, your chin is so sharp that it can stab people to death, and your forehead is so wide like a triangle upside down. Whoever sees that face would dare to ask her to do the job? 4th Defendant Oh I see, Dr Li looks like that. It looks like you have some opinion on her. (p52) 47 (3:24pm) Later Dr Li Kept sending me Wechat messages asking me if I would go back to have botox injections. 4th Defendant No Reply 49 (3:24pm) That women has stopped talking. Member 3 No Reply 49 (3:24pm) I immediately recognise her as soon as I looked at her profile picture. 4th Defendant No Reply 52 (3:34pm) She really looks like you 4th Defendant No Reply 60 (3:47pm) Actually I think is she showed her license as a proof, all the problems could have been solved but she used offensive language towards the end. Member 3 You should go to their clinic to check the real license. A license posted online can be photoshopped. 63 (3:57pm) Have you seen Dr Li? 1st Defendant No Reply 63 (3:57pm) Yes In person I have even been to that so-called clinic in Chatswood. 4th Defendant No Reply 64 (3:57pm) I heard that this person doing micro-plastic surgeries had been requesting to add people as contact. 1st Defendant No Reply 64 (3:57pm) Yes She has requested to add me for three times, I ignored [sic], 3rd Defendant No Reply 66 (4:02pm) I can only say that the person really looks like Dr Li. 4th Defendant So @4th def Erica Chan There are many people doing micro -plastic surgeries in the Central Park apartments. 68 (4:07pm) This person is together with the person who posted the ad. She is still advertising here! Member 3 No Reply 78 (5:13pm) If you have a licence, show us all then everything is ok. If you don't want to show us, just show it to the Group admin and that's all fine. Coincidentally these days I have difficulty in finding practices that are trustworthy. A person who cannot even prove his/her own identity is trying to discuss on breeding? Member 18 You are ill-bred. You cannot tell what is right and what is wrong. You are arbitrary in saying that someone is a fraud. 103 (7:31pm) You sound so angry is it because you have been the victim of the malpractice or you are the boss there? 1st Plaintiff You need evidence to say it. 106 (7:37pm) They have a Doctor Li, who really looks like this woman. member 18 No Reply 114 (8:43pm) This 'sunshine' must be Siew yi Lee ie Li xiao yu herself. You can check this name. member 37 No reply 114 (8:43pm) No wonder she was so agitated to argue with all the group member 3rd defendant No Reply 114 (8:43pm) Screenshot from a webpage of AHPRA; Thank you then That's easy. Look at the "Search Result", the last three lines of the page. That person is not found. 3rd defendant No Reply 117 (9:04pm) I want to see if she would claim that's her name. The description of the clinic being dirty and messy was not made up. 3rd defendant No Reply 119 (10:22pm) I don't believe it. The real Dr Li would have such quality that she has spent the whole afternoon arguing with group members, calling them 'idiots' and 'ill-bred'. 3rd defendant No Reply 119 (10:30pm) When everyone including our Group Admin Asked her if she was Li herself, she never answered the question upfront. She always talked as a third party. If she was Dr Li herself, what did she have to hide? Plus, it cannot be explained why she could not produce her license for medical practice. 3rd defendant No Reply 19 June 2016 125 (9:29am) True, they are using that doctor's name. If that's a real doctor, would she leave her patients unattended, and argue in the group for the whole afternoon and night? And go around everywhere to ask for the name of the person who was fighting against counterfeit. 3rd defendant No Reply 131 (10:34am) Ok I will reveal some information. The real Dr Siew yi Lorna Lee is a specialist in urology, a bit far from cosmetic field. 1st Defendant No Reply 1. By 5:46 pm, member 4 notes that the second plaintiff has "attempted to make herself the target of attack". Member 23 asks what should be done (page 88) and recommends removing "the trouble-maker" from the group. However, the group admin is not at home (p. 89). Member 4 notes that the second plaintiff was indeed trying to make herself the target of attack but adds she cannot do any more if she shows up again. The second plaintiff's response is to lodge a sarcastic emoji with the message "I don't get this group" (p. 90, 5:56 pm). The third defendant checks the registration documents again (p. 92) and the second plaintiff comes back with a repetition of her complaint that the English name has to be found out, adding "this is the last time I tell you this" (at p. 95). 2. At p. 97, the other members raise this with the administrator. The second plaintiff is still arguing at 7:31pm, saying "I don't protect anyone. What is fake won't be true. What is true won't be fake. Let the Government check it out" (p. 102). She adds (Exhibit B at p. 105) that the other members "can do whatever you like to do, I am going to have dinner." 3. At 7:43 pm, presumably while the second plaintiff is having dinner, the third matter complained of is published. The remaining two are published at 7:46 pm. These are conversations between the first and third defendants referring generally to the searches they made earlier. There is further discussion until 2:20 pm the next day about the removal of the second plaintiff from the WeChat group. The issues for determination in the hearing on 13 and 14 August 2020 1. The defendants complain that the third further amended statement of claim (hereafter "the current pleading" or "the current statement of claim"), despite being the plaintiffs' seventh attempt over the past three years, merely repeats vices in the previous pleading, and that the time has come to strike out the claim without leave to replead. 2. In particular, they complain: 1. They do not know the name of any person who read any of the matters complained of, let alone whether those persons read any particular combinations of those publications and, if so, what identifying material was in their possession at the time (submissions, 7 April 2020). The only way to make sense of the particulars is to assume someone read the whole of the WeChat entries, because particulars of identification for publications hours afterward (or worse, before) cannot otherwise be relied upon. 2. Although the plaintiffs assert that Taiwanese readers would have known that the second plaintiff was entitled to translate her name as "Siew Yi Lee", there is no evidence that any of the readers knew this dialect issue arose and the only phonetic spellings of her name at the relevant times of publication (including one from the second plaintiff herself) are "Li Xiao Yu". 3. The defendants complain that, although not referred to at all in the particulars of identification, the lion's share of "identification" evidence comes from the second plaintiff herself, whose angry refusals to answer questions as to whether she is this person and is possessed of the relevant medical qualifications take up many minutes and perhaps hours of the debate. Mr Polden, noting the difficulties of identification where a person is directly asked who they are and gives a misleading answer (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30), submitted that the second plaintiff's refusal to admit who she was is a key part of the identification and that identification of this kind is fatal to her case, in that she brought about the publication by herself. However, this has not been particularised. 4. The defendants also submit that, if the extent of publication proved is merely between the defendants themselves (including the former fourth defendant), that should not be actionable (Davis v Resources for Human Developments Inc., 770 A 2d 353 (Pa Super. 2001, discussed in Trantum v McDowell [2007] NSWCA 138)). 1. The defendants identify the issues as follows: 1. Does the current statement of claim identify a reasonable cause of action appropriate to the nature of the pleading? 2. Does the current statement of claim have a tendency to cause prejudice, embarrassment of delay? 3. Is the current statement otherwise an abuse of process, by reason of the delay, multiple pleadings and significant changes to the matters complained of? 1. To answer the third of these questions it is necessary to set out a brief procedural history in the Supreme Court as well as in this court. Proceedings are commenced in the Supreme Court 1. The plaintiffs commenced proceedings for defamation in the Supreme Court of New South Wales by statement of claim filed on 16 June 2017, a matter of days before expiry of the limitation period. 2. As is noted in my previous judgment (at [2] – [15]), there were procedural problems from the start. The plaintiffs' legal representatives brought a series of applications before the Supreme Court in 2017 and 2018, largely on administrative issues, correcting errors in the pleadings and attending to service: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2017] NSWSC 1858; The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 2) [2018] NSWSC 114; The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 3) [2018] NSWSC; The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 4) (Supreme Court of New South Wales, McCallum J, 8 June 2018, unreported). The parties also took part in a court-ordered mediation. 3. At all relevant times in the Supreme Court, including at the time of this mediation, the plaintiffs had a substantial claim for special damages, arising from "cancellation of bookings and downturn of further appointment bookings" (see paragraph 55(i) of the further amended statement of claim, which pleaded a total of 23 causes of action arising from the WeChat posts). These claims for lost bookings as a result of the publications, now abandoned, are significant because despite making a claim of such substance, the plaintiffs remain unable to comply with orders to provide particulars of persons who read any of the matters complained of. It is this continued failure to do so which has triggered the applications now before the court. 4. How large was this claim for special damages? Transcript provided from the Supreme Court (which I handed down during this application) demonstrates that, on 22 February 2019, Hoeben CJ at CL asked the parties why the claim should not be transferred to the District Court: "HIS HONOUR: Are you in a position today to tell me why this matter should stay in the Supreme Court? MACK: I am not. The only reason I put on the table at this stage is the special damages claim which hasn't been quantified yet which may exceed the jurisdictional limit of the District Court. HIS HONOUR: I would be amazed if it got within a bull's roar of that, with great respect. MACK: That is the only issue I can point to- HIS HONOUR: Would you like that to be dealt with on 8 March?" 1. As Mr Mack was not available on that date, the application requiring the plaintiffs to show cause was listed for 22 March 2019. An order for provision of submissions three days beforehand was also made. 2. No submissions were provided. Instead, on 22 March 2019, Mr Mack noted that his client's concerns about damages exceeding the jurisdiction would not constitute a bar to the transfer, as damages above the jurisdictional limit of $750,000 could still be awarded if the proceedings were transferred to this court. However, the fact that any such claim for cancelled bookings was made would indicate that some form of inquiry into the nature and extent of publication must have been made. While those who cancelled the bookings may not necessarily have read the matter complained of, the persons the source of the information may have done so. This information has never been included in the challenged particulars. The proceedings are transferred to the District Court 1. The first return date of the claim in this court was 22 May 2019. As noted in my previous judgment (at [16] – [23]), I told the parties I shared McCallum J's concerns about the lack of progress in getting the matter ready for hearing and set aside a special hearing date for case management issues to be considered in detail. 2. The third defendant filed a notice of motion on 30 July 2019, which was supported by the other active defendants, seeking the striking out of part or the whole of the statement of claim and summary dismissal as against the third defendant. I heard argument on 20 August 2019 and handed down judgment on 20 September 2019 striking out the statement of claim in its entirety and made the orders which led to the current challenged pleading. 3. The plaintiffs were unable to provide the amended particulars and pleadings by the agreed date in the timetable. An extension was granted, first on 12 September and again on 28 November 2019. 4. The plaintiffs did not comply and the orders I made on 12 September 2019 were as follows: (1) Extend time for the plaintiffs to provide the particulars set out in my judgment (The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482) from 28 days to 42 days. (2) Matter stood over to the Defamation List on Thursday 28 November 2019 for further directions. (3) Costs of today reserved. (4) Note the plaintiffs have not informed the fourth defendant of the matter being listed today. (5) The plaintiffs are to provide the fourth defendant with a copy of my judgment of 11 September 2019 and a copy of these orders by serving the fourth defendant on the email address given for substituted service. 1. The plaintiffs again did not comply and the orders I made on 28 November were as follows: (1) Extended time is granted for the plaintiffs to comply with order (2) of the orders made by her Honour Judge Gibson on 11 September 2019 to 24 October 2019 (Extended Date) nunc pro tunc. (2) The plaintiffs must not file, serve or rely upon any further amended statement of claim after the Extended Date without the leave of the court. (3) The plaintiffs are to pay the third defendant's costs occasioned and thrown away by the plaintiff's amendment to the statement of claim, and application for extension of time. (4) Proceedings discontinued against the fourth defendant, with the consent of the first, second and third defendants. (6) Defendants to serve on plaintiffs and file with the court a list of outstanding issues for determination including but not limited to the adequacy of translations, strike in applications and other pleading issues on or before 12 December 2019. (6) Plaintiffs to serve on defendants and file with the court any response to any lists of outstanding issues served by the defendants in accordance with order (5) by 24 December 2019. (7) Matter stood over to the Defamation List on Thursday 6 February 2020 for further directions. 1. On the next directions date, the two remaining defendants told the court that the plaintiffs had still not attended to the outstanding issues identified in order 6. 2. It was in these circumstances that the third defendant, by notice of motion filed on 26 February 2020, sought orders that the proceedings be dismissed. Mr Polden points to the unsatisfactory history of multiple pleadings, failure to comply with timetables and extensive delay as being of significance to the exercise of discretion as to whether the claim in its current form should be permitted to stand. 3. The proceedings were listed on 23 April 2020 for directions or argument in accordance with my orders of 26 March 2020, which were as follows: (1) The defendants file and serve submissions and evidence on or before 7 April 2020 in reply to the submission filed on 20 March 2020 by the plaintiff. (2) Matter stood over to the Defamation List on Thursday 23 April 2020 for directions or argument. (3) The parties are to provide the court with the following by 2:00pm on Tuesday 21 April 2020: (a) A list of issues for determination and a timetable for comprehensive submissions if the argument can be disposed of "on the papers". (b) A joint email indicating if argument is to proceed on 23 April 2020; in which case, her Honour Judge Gibson will determine if this application can be deal with via AVL on 23 April 2020 or if a future listing may be more suited for this argument. 1. The first defendant, who appeared for himself, supported this application. 2. The plaintiffs were still not ready on 23 April 2020 and the defendants' applications were adjourned to 4 June 2020. On that date, a special fixture was fixed for 13 August 2020. 3. Even after this hearing date was set, fresh applications were brought by the plaintiffs for an extension of time to comply and for an adjournment (although these were abandoned). 4. The hearing eventually took place over two days (13 and 14 August 2020) and was supplemented by written submissions up to 25 August 2020. There were acknowledgements as to problems with the particulars and as to the absence of verification. Which of the 23 original claims still remain on foot, and against which defendants? 1. The original statement of claim filed 16 June 2017 pleaded a series of one-line statements made by the first and second defendants in paragraph 10 and a similar series of publications made by the third defendant in paragraph 17. A similar claim was made against the fourth defendant (since discontinued) in paragraph 23. There were also claims for "republications" set out in paragraph 27-30. It was a hopelessly drafted pleading. At one stage there appears to have been 24 or more claims but I have proceeded on the basis that the 23 claims still on foot when the proceedings came to this court are those which were the claims still being pursued in this jurisdiction. 2. The plaintiff does not identify, in the amended pleadings, which of these 23 pre-existing claims is still on foot, so I have prepared my own table. This identifies the five remaining publications still the subject of claim (identified from the pleading rather than the confusing Annexures A and C – F set out above) as being the following: Time Current Pleading Initial Statement of Claim 8/06/2016 12:29pm First Matter complained of Paragraph 17(a) in relation to 3rd Defendant 18/06/2016 1:19pm Second Matter complained of Paragraph 10 (a) in relation to 1st and 2nd Defendant 18/06/2016 7:43pm Third Matter complained of Paragraph 10 (b) in relation to 1st and 2nd Defendant 18/06/2016 7:46pm Fourth Matter complained of Paragraph 17(m) in relation to 3rd Defendant 18/06/2016 7:46pm Fifth Matter complained of Paragraph 10 (h) in relation to 1st and 2nd Defendant 1. It is immediately apparent, from the times of these publications, that there is a considerable gap between the first two and the last three, and that the last two occur within a minute of each other. 2. The other portions of the lengthy WeChat conversation containing these extracts no longer appear to be the subject of any claim (although they are relevant to identification). In addition, claims against all but the first and third defendants have been discontinued or the subject of settlement. 3. How do these current claims correlate with the 23 claims in the original statement of claim? The same exercise of comparison between these two pleadings shows as follows: Current Amended Statement of Claim From Judgment 2019 NSWDC 482 First Matter complained of First Matter complained of Second Matter complained of Third Matter complained of Third Matter complained of Fourteenth Matter complained of Fourth Matter complained of Fifteenth Matter complained of Fifth Matter complained of Eighteenth Matter complained of What particulars have been provided in the statement of claim? 1. As is noted above, the first two publications occur at 12:29 and 1:19 pm and the last three between 7:43 and 7:46. In between, there is extensive discussion, nearly all of it between the second plaintiff and the defendants, about the medical qualifications issue, starting at 2:20 pm and ending at 7:36 pm, according to the text of the WeChat group tendered at marked Exhibit B. 2. In the current statement of claim, the plaintiffs appear to plead two sets of particulars of identification. At first blush, this would appear to be an attempt to plead particulars for the earlier two publications and a separate set for the remaining three, but this is illusory, as one is a "cut and paste" of the other: 1. The first set of particulars, set out at paragraph 6 (confusingly, the second set of particulars pleaded therein), is pleaded to the first matter complained of at 12:29 pm. At paragraph 9 pf the current pleading, these particulars are relied upon for the second matter complained of (at 1:19 pm). 2. The second set of particulars is set out at paragraph 12 and relates to the third matter complained of (published at 7:43 pm, occurring shortly after the second plaintiff leaves the chat group at 7:31 pm). Although they are essentially the same particulars, as a "cut and paste", the fourth (see paragraph 16) and fifth (see paragraph 18) matters complained of rely on paragraph 12, not paragraph 6. Adequacy of identification particulars 1. Where a plaintiff claims to be identified in a publication, but is not named (as the defendants submit is the case here), there is a clear distinction from cases where a plaintiff is named, in terms of requirement to plead the relevant identifying facts. In Tobin & Sexton, Australian Defamation Law and Practice, LexisNexis, the learned authors state at [6000]: "It is essential to the plaintiff's case to prove that the defamatory matter was about him or, in the language of the pleadings, that the matter complained of was published "of and concerning the plaintiff". There will be clear distinction where the plaintiff is named and where he is not." 1. The plaintiff bears the onus of proof (Tobin & Sexton at [6015]) and it is an objective test (at [6025]). 2. The provision of such particulars is a requirement under the rules: UCPR r 15.19(d). 3. The question of identification is one which may be suitable for determination as a separate issue (at [6075]; see also Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845). However, the present application is neither a separate trial under UCPR r 28.2 nor a summary application to strike out the statement of claim on the basis that lack of identification (cf Plymouth Brethren Christian Church v The Age Company Ltd (2016) 97 NSWLR 739 ("Plymouth Brethren"). If it were, great caution would be needed before making such a determination in order to determine that such a matter is beyond argument, as whether it is reasonable to identify a plaintiff from the matter complained of is a matter for evidence gleaned from the surrounding circumstances: David Syme & Co v Canavan (1918) 25 CLR 234. 4. The difficulty in the present case is that, despite these proceedings being on foot for more than three years, the number of matters complained of going from 23 (or more) to 5 and the statement of claim going through seven drafts, precisely what those surrounding circumstances are has yet to be delineated with any clarity. 5. It is necessary for courts to take a generous approach to particulars of identification, because they are generally better left to the trial for determination. In addition, the court should be cautious about being overly pedantic in requiring correct identification. Evidence of identification can include mistaken premises; as is noted in Plymouth Brethren, erroneous belief can be relied upon for the purposes of identification, where that belief is the product of the matter complained of (at [63]-[68]). The Court of Appeal went on to add that a mistaken identification may be drawn by a reasonable reader, as long as it is a product of the matter complained of; although not expressly referred to, this appears to be an acknowledgement that earlier statements to the contrary such as Maxwell-Smith v Warren & Anor [2007] NSWCA 270 at [18] – [53] (where one of the plaintiffs worked at the firm of solicitors at the time of publication but not at the time of the conduct impugned in the litigation) should be regarded as turning on their facts. 6. However, different principles apply where the adequacy of particulars of identification apply: Templar v Britton [2013] NSWSC 1827. This is particularly the case where the particulars provided self-evidently fail to reflect the content of the matter complained of: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 ("Palace Films"). 7. There is no "one size fits all" in relation to the extent of particulars to be provided. Different levels of proof may apply in different cases; once again, these issues turn generally on the facts of the case. Not all identification evidence requires the same extent of particularisation, as was noted by Hodgson JA in Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398 at [35] – [36], in relation to a visual image of a person: "35 I accept Mr. Evatt's submission that the approach that has been taken in previous cases in relation to words which might or might not be taken as referring to the plaintiff, as in Canavan and Knupffer and Morgan, may not be the best approach in a case where there is a visual image which is in fact an image of the plaintiff, and the only issue on identification is whether the image conveys enough information for persons acquainted with the plaintiff reasonably to reach the correct conclusion that it is the plaintiff who is depicted. 36 When there is a question of recognition of a plaintiff from a visual image rather than from words, it is not possible adequately to put into words what are the matters known by people acquainted with the plaintiff that enable them to identify the plaintiff from an image. Furthermore, mere acquaintance with a plaintiff is not really an adequate description of the qualification of the persons who must reasonably be able to identify the plaintiff. There are degrees of acquaintance, and plainly people who know a plaintiff very well indeed may reasonably identify that plaintiff from an image which would be inadequate for such identification by other persons who are merely acquainted with the plaintiff. Persons who know a plaintiff very well indeed may be the very persons in relation to whom the plaintiff's reputation is most precious to the plaintiff; and in my opinion, the law of defamation does protect a plaintiff's reputation with such people. Accordingly, in my opinion where a visual image of a plaintiff is such that it can reasonably be identified as being of the plaintiff by even a very few people who know the plaintiff extremely well, albeit not by others who are mere acquaintances, and there has been publication to at least one such person, that is sufficient identification." 1. The requirements where a plaintiff is a company which is referred to in an apparently informal manner should also be noted. In Palace Films, McCallum J dismissed as inadequately pleaded a claim by a company despite it being referred to, for the following reasons: "16 The threshold question is whether reference to "Palace Films" without the full corporate title (including the words "Pty Ltd") adequately named the first plaintiff so as to sustain the pleading that there was a defamatory publication "of and concerning" the first plaintiff without resort to the particulars of identification. In submitting that the first plaintiff was not named, the defendants relied upon the decision of the Court of Appeal in Channel Seven Pty Ltd v Parras [2002] NSWCA 202 particularly at [31] and [33] per Mason P; Handley JA and Ipp AJA. That case, however, did not determine this threshold question. 17 In Parras, the matter complained of referred only to the name of a club in fact operated by the corporate plaintiff. There was no reference to the name of the company at all. 18 The present case is different to the extent that part of the name of the plaintiff company does appear in the matter complained of. Nonetheless I accept, as submitted on behalf of the defendants, that the incompleteness of the company's proper title produces uncertainty, giving rise to the need for the first plaintiff to establish that at least one person to whom each matter complained of was published understood from extrinsic facts that the article referred to Palace Films Pty Ltd. 19 The case has some analogy with the circumstances considered in the decision of the High Court in Lee v Wilson & MacKinnon (1934) 51 CLR 276. In that case, a newspaper article reported that "Detective Lee" had accepted corrupt payments. Two Victorian detectives, Arthur Lonsdale Lee and Clifford Lee, each brought an action for defamation against the proprietors of the newspaper. Neither was the detective involved in the events reported in the article. The High Court held that, since the words were reasonably understood to refer to each of them, the two plaintiffs could each maintain an action. 20 In my view, in the absence of any reference to Palace Films Pty Ltd by its full title (including the words Pty Ltd), it cannot be said that the matters complained of identify the first plaintiff without resort to knowledge of extrinsic facts. The reference to "Palace Films" does not indicate that the entity referred to is a company. That is significant in the context that, as already explained, it is clear enough that the articles were concerned with the business in fact conducted by Palace Enterprises Pty Ltd trading as Palace Films. The fact that there existed a company carrying the name Palace Films Pty Ltd (which does not trade) brings the matter into the category of cases such as Lee where an unintended target of the same name is reasonably understood as having been referred to. However, without the full corporate title, I accept that the first plaintiff was not named in terms. 21 Accordingly, I am satisfied that, in order to maintain the claim, it is necessary for the first plaintiff to establish that it was identified by readers with knowledge of extrinsic facts at the time of publication. 22 The difficulty with the particulars relied upon by the first plaintiff is that they demonstrate, unequivocally, that any person who knew the facts particularised (that Palace Films Pty Ltd permitted the name "Palace Films" to be used in connection with film distribution by Palace Enterprises Pty Ltd) must necessarily also have known that it was Palace Enterprises Pty Ltd, and not Palace Films Pty Ltd, which conducted the film distribution business discussed in the matters complained of. 23 The circumstances are similar to those that arose in Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2003] NSWSC 124. In that case the first plaintiff, Craftsman Homes Australia Pty Ltd, carried on the business of franchising. It was not engaged in building work. The broadcast sued on was concerned only with the building works of another entity in the same corporate group. Kirby J directed a verdict against the first plaintiff on the basis that the ordinary reasonable viewer knowing the extrinsic facts would relevantly also know that Craftsman Homes Australia Pty Ltd does no building work and, accordingly, could not reasonably derive any of the defamatory imputations relied upon as referring to the first plaintiff: at [30] to [31]. 24 Accordingly, I am satisfied that the particulars provided are not capable of identifying the first plaintiff. The claim pleaded by the first plaintiff is liable to be struck out on that basis." 1. The next problem is that, where extrinsic facts are pleaded, the persons with knowledge of those extrinsic facts must be identified, generally by provisions of names and addresses. In the present case, the participants are all anonymous and use avatars, an increasingly common problem in social media publications. However, this is not an excuse for making no attempt to discover who they are, particularly where orders for verification of the kind made her have been imposed. The reality is that it is now probably too late to do so, which is prejudicial to the defendants, as Mr Polden pointed out. 2. Particulars of downloading must also be provided. While the court may make presumptions from a "like" or retweet, the mere fact that a website has readers, or a chat group has members, will not, without more, amount to evidence of downloading. The unique scrolling-down nature of chat must be taken into account, as well as the immediacy of social media. 3. As noted above, a key problem in the present case is the extraordinary role the second plaintiff herself plays in relation to identification of both herself and her company. I am not referring to the fact that the plaintiffs themselves started the ball rolling by placing the advertisement onto the chat group website, but to the hours of acrimonious exchanges between the second plaintiff, the defendants and others in the course of the discussion, in terms where she was also identifying herself under two avatars as the doctor in question. 4. This creates two problems. First, has the second plaintiff herself been responsible for not only identifying both plaintiffs but also in defaming them? Tobin and Sexton (at [6090]) note that, where the relevant extrinsic facts are those provided by the plaintiff to the readers who would not otherwise have made the identification, that will not be sufficient: Scelfo v Rutgers University (1971) 282 A 2d 445. In the present case, one of the defendants' complaints is that, although the defendants repeatedly asked the second plaintiff to reveal who "Li Xiao Yu" was (and whether this person was behind the two avatars) and whether she was qualified, she refused to do so and give insulting responses. 5. The second problem is that although these statements clearly relate to identification of both plaintiffs, the defendants complain that this identification "bane" (or possibly "antidote") is not addressed in the particulars. 6. Finally, it should be noted that, where a foreign language is pleaded, there should be particularisation that a reader would be able to understand it. In the present case, the plaintiffs claim that the defendants should have understood that the translation of the second plaintiff's name on her registration documentation was in the form of Chinese spoken in Malaysia (Siew Yi Lee) rather than standard Chinese Putonghua pinyin (Li Xiao Yu). How are identification and downloading for each of these publications pleaded? 1. The defendants liable for each of these publications are asserted to have published them in the following circumstances: (a) The first matter complained of: "a. The Third Defendant was the author of the first matter complained of and posted the first matter complained of. b. The first matter complained of was uploaded at about 12:29 pm on 18 June 2016 and then downloaded and read by many or all of the 500 persons who were members of the We Chat Group, including the First Defendant and Qiong Yan (Erica Chen Cheng) and other members who read and participated in the thread. c. The Plaintiffs do not know in which jurisdiction the first matter complained of was downloaded. At least the First and Third Defendants and Qiong Yan downloaded the material in Australia. User "Mika Kate" also confirms that she is in Australia in a post at 2:50pm on 18 June 2015. Given the name of the We Chat Group was "Sydney General Housing Rental Association" the inference should be that most or the vast majority of the readers lived in Sydney and downloaded the chat in Sydney. d. The first matter complained of remains online. e. Further particulars of publication will be supplied following discovery and interrogatories." 1. Identification is, in this paragraph, limited to other defendants (the first and fourth defendants). The inference that "many or all" of the other chat members read this should not be accepted as evidence of downloading: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [56]; Sims v Jooste [2016] WASCA 83 at [18] – [20]. 2. The reference to "Mika Kate" being in Australia is irrelevant to this issue of identification; this person's identity is relevant only to the question of whether the matter complained of was read by anybody in the jurisdiction. The claim that the material is still online appears to be acknowledged to be wrong. (b) The second matter complained of: "a. The First Defendant was the author of the second matter complained of and posted the second matter complained of. b. The Second Defendant is vicariously liable for the conduct of the First Defendant. c. The second matter complained of was uploaded at about 1:19 pm on 18 June 2016 and then downloaded and read by many or all of the 500 persons who were members of the We Chat Group, including the Third Defendant and Qiong Yan (Erica Chen Cheng) and other members who read and participated in the thread. d. The Plaintiffs do not know in which jurisdiction the second matter complained of was downloaded. At least the First and Third Defendants and Qiong Yan downloaded the material in Australia. User "Mika Kate" also confirms that she is in Australia in a post at 2:50pm on 18 June 2015. Given the name of the We Chat Group was "Sydney General Housing Rental Association" the inference should be that most or the vast majority of the readers lived in Sydney and downloaded the chat in Sydney. e. The second matter complained of remains online. f. Further particulars of publication will be supplied following discovery and interrogatories." 1. Once again, only the first and fourth defendants are identified in this part of the particulars, as opposed to paragraph 6. (c) The third matter complained of: "a. The First Defendant was the author of the third matter complained of and posted the third matter complained of. b. The Second Defendant is vicariously liable for the conduct of the First Defendant. c. The third matter complained of was uploaded at about 7:43 pm on 18 June 2016 and then downloaded and read by many or all of the 500 persons who were members of the We Chat Group, including the Third Defendant and other members who read and participated in the thread. d. The Plaintiffs do not know in which jurisdiction the third matter complained of was downloaded. At least the First and Third Defendants and Qiong Yan (Erica Chen Cheng) downloaded the material in Australia. User "Mika Kate" also confirms that she is in Australia in a post at 2:50pm on 18 June 2015. Given the name of the We Chat Group was "Sydney General Housing Rental Association" the inference should be that most or the vast majority of the readers lived in Sydney and downloaded the chat in Sydney. e. The third matter complained of remains online. f. Further, particulars of publication will be supplied following discovery and interrogatories." 1. Once again, only the third defendant is identified and the only persons identified as downloading are the first, third and fourth (i.e. Ms Cheng) defendants. Compare this to paragraph 12 (the "cut and paste" version of the paragraph 6 particulars of the particulars of identification relied on for the third matter complained of). (d) The fourth matter complained of: "a. The Third Defendant was the author of the fourth matter complained of and posted the fourth matter complained of. b. The fourth matter complained of was uploaded at about 7:46 pm on 18 June 2016 and then downloaded and read by many or all of the 500 persons who were members of the We Chat Group, including the First Defendant and other members who read and participated in the thread. c. The Plaintiffs do not know in which jurisdiction the fourth matter complained of was downloaded. At least the First and Third Defendants and Qiong Yan (Erica Chen Cheng) downloaded the material in Australia. User "Mika Kate" also confirms that she is in Australia in a post at 2:50pm on 18 June 2015. Given the name of the We Chat Group was "Sydney General Housing Rental Association" the inference should be that most or the vast majority of the readers lived in Sydney and downloaded the chat in Sydney. d. The fourth matter complained of remains online. e. Further particulars of publication will be supplied following discovery and interrogatories." 1. Once again, only the defendants are identified and the impermissible "many or all" claim for downloading is made, and these particulars are very different from the claims set out in paragraph 12. (e) The fifth matter complained of: "a. The First Defendant was the author of the fifth matter complained of and posted the fifth matter complained of. b. The Second Defendant is vicariously liable for the conduct of the First Defendant. c. The fifth matter complained of was uploaded at about 7:46 pm on 18 June 2016 and then downloaded and read by many or all of the 500 persons who were members of the We Chat Group, including the Third Defendant and other members who read and participated in the thread. d. The Plaintiffs do not know in which jurisdiction the fifth matter complained of was downloaded. At least the First and Third Defendants and Qiong Yan (Erica Chen Cheng) downloaded the material in Australia. User "Mika Kate" also confirms that she is in Australia in a post at 2:50pm on 18 June 2015. Given the name of the We Chat Group was "Sydney General Housing Rental Association" the inference should be that most or the vast majority of the readers lived in Sydney and downloaded the chat in Sydney. e. The fifth matter complained of remains online. Further particulars of publication will be supplied following discovery and interrogatories." 1. Once again, in these "cut and paste" particulars, only the defendants are named as readers and/or downloaders of the actual publications. 2. The adequacy of these particulars needs to be seen in the context of the identification material these persons had in relation to each of the plaintiffs. The particulars of identification for the first plaintiff 1. First, the identity of the plaintiffs and their relationship to each other is pleaded as follows: "The First Plaintiff is and has at all material times: (a) been a corporation duly incorporated and entitled to sue in and by its corporate name and style; (b) been an excluded corporation within the meaning of section 9(2)(b) of the Defamation Act 2005 (NSW), in that it: (i) employed fewer than 10 persons; and (ii) is not related to another corporation within the meaning of the Corporation Act 2001(Cth). (c) Carried on a medical practice from rooms situated at Suite 16, Level 1, 369 Victoria Avenue, Chatswood NSW 2067 utilising the services of the Second Plaintiff." The Second Plaintiff is and has at all material times been: (a) a qualified medical practitioner registered with the Medical Board of Australia; (b) a member of the Royal College of Surgeons in Ireland; (c) the principal medical practitioner for the business operated by the First Plaintiff; and (d) is a director of the First Plaintiff." 1. This brings me to paragraphs 6 and 12. 2. The first problem is that particulars of identification relied upon start with the claim that an advertisement "was posted" onto the WeChat group site (paragraph 6(a) at the bottom of page 4 of the current statement of claim. What this pleading does not say is that the plaintiffs were the authors of this post. The reader of the pleading could easily assume that one or more of the defendants did this. Although Mr Young would not say who did post the advertisement, he acknowledged it was not the defendants but some person in the first plaintiff's employ. If the plaintiffs are seeking to imply that the defendants are somehow responsible for this stub, such a claim is misconceived. 3. The next, and far more serious, error is in 6(a)(i)-(iv). The claim that the first plaintiff is "named" in this stub is completely wrong. What was published was in fact a "stub" to an advertisement in the Chinese-language online publication "Sydney Today". What is set out in the stub is Sydney Today's website address, and not that of the first plaintiff, and certainly not the address and telephone number. Only by clicking on the Sydney Today link and reading the lengthy advertisement there (with discussion of beauty issues and the like) is the name of the first plaintiff and its address revealed. The name of the second plaintiff does not appear at all. That refers further clicking on further (unspecified) websites. 4. The identifying factors listed in the particulars would only have become known to persons clicking onto the "Sydney Today" link and from there clicking onto further sites. These are not contained in the stub, as claimed in the particulars. 5. These portions of the particulars must be completely repleaded. The complex question of liability for what is contained in a hyperlink need not be addressed at this juncture (as to which see the differing approach taken to Crookes v Newtown [2011] 3 SCR 269 in a number of recent interstate judgments), but they are considerable, particularly in the case of the second plaintiff; the hyperlink issue can be addressed only when this particularisation occurs. 6. The next challenged portion of the particulars, in relation to both plaintiffs, relates to paragraph 6(e) (and its cognate in paragraph 12). Who read the matters complained of? 1. The plaintiff relies, for evidence of publication, upon statements made by the defendants, including the former fourth defendant, Erica Chen Cheng. The difficulties of reliance upon defamatory statements contained in joint conversations between defendants need to be taken into account: Trantum v McDowell [2007] NSWCA 138 at [14]. 2. The particulars at 6(e) of the current pleading suffer from the following defects: 1. It is asserted that any person visiting the website would see that the only doctor was Li Xiao Lu (to use the pinyin spelling). However, that is the problem, not a particular of identification. 2. Between 2:20 and 7:31 pm, the second plaintiff made observations under a new avatar "siew-yi" (previously she had used "sunshine") and showing her photograph. The inference is that the other parties in the chat should have guessed this was her. The trouble is, as is set out in some detail above, they did ask her and she denied it. While this might then be an issue for the jury, the problem is that the pleader has excluded from the particulars the second plaintiff's repeated refusals to admit she is the second plaintiff and to provide the group chat members with her qualifications or her non-standard spelling for her name. The identification particulars must faithfully set out all the evidence of identification, not pick and choose in order to exclude material going against a plaintiff's case. In addition, the passages relied on by the plaintiffs in relation to these discussions occur after the first two matters complained of; how can these be relied upon by the plaintiffs in relation to those two publications? 3. The publication by Quinsy at 8:43 pm refers to "Siew Yi Lee". This is well after the publications in question. The same is the case with the publications at 8:49 and 9:20 pm. I asked Mr Young if "Quinsy" was someone associated with the plaintiffs, as I recalled this being acknowledged during the earlier hearing, but he told me that he thought this was not the case. I note the comment of "Quinsy" at 8:37 pm that "I finally finished reading the conversations, it is awesome". What that means is unclear; was she reading the first and second matters complained of, or the debate between the second plaintiff and the defendants and/or the recent conversations? 4. The publications by the fourth defendant between 3:24 pm and 4:02 are not only several hours after the first two publications but must be read in context with the second plaintiff's responses effectively denying this. Again, these particulars do not reflect the entries in the chat group conversation. 5. The particulars at (iv) and (v) are framed on the basis that at least some persons read the whole of the chat and can be taken to have read all the matters complained of as a result. This is, however, supposition. If the identity of the avatars is unknown, an application to identify them should have been brought in 2017. 1. For the reasons set out above, the whole of the current pleading of identification is not sustainable and must be struck out. It is not possible to unscramble the omelette by identifying those particulars which survive. 2. An additional issue to consider is whether particulars should be pleaded for each publication and in particular whether the two largely identical sets of particulars for each of the two groups of publications (in terms of timing) are sufficient. Are separate particulars of identification and/or readership required for each of the publications? 1. As is set out at paragraph 9(f) and following, the same particulars are provided for each publication. This is lazy pleading. It is also unacceptable where the publications are hours apart and where the concept of knowing particulars of identification made after publication is nonsensical. The particulars should be struck out for this reason alone. Conflating identification, publication and downloading 1. The next problem is the absence of proper particulars of other persons downloading each of the matters complained of as well as identifying each of the plaintiffs: Massarani v Kriz [2020] NSWCA 252. The parties, publications and identifying factors have simply been lumped together. Additionally there is extensive identifying material from the second plaintiff herself, creating additional problems (Toomey v John Fairfax (1985) NSWLR 291), as noted by McCallum JA at [13]). 2. As set out below, the majority of identification-related material (in terms of time spent discussing who Li Xiao Lu is) comes from the plaintiff's own contributions to the chat, principally in refusing to answer questions as to whether she is the Dr Li in question in terms which make the other participants suspicious as to the identity of the doctor performing the operation. These are clearly relevant to the issue of identification in relation to the three publications between 7:43 and 7:46. It defies credibility that any reader scrolling back to see the original advertisement the plaintiffs put online at 11:36 would simply ignore the five intervening hours of debate (between 2:20 pm and 7:31 pm) between the second plaintiff and the defendants about whether Li Xiao Yu had qualifications or not. This would have to be included in the particulars in detail for these three publications. "Li Xiao Yu" or "Siew Yi Lee"? 1. The next problem is the "Li Xiao Yu" problem, where expert evidence was led as to what to make of the Chinese characters and their translation into English. 2. It is clear from the text of the WeChat conversations that, whatever the experts called by both parties say, none of the participants in the debate appear to have known about or participated in any discussion of alternative pronunciations or spellings for this name. The only party volunteering this potential explanation is the second plaintiff herself, but she then goes on to repeat that if the others in the chat really want to know, they have to visit the clinic personally. 3. The defendants do follow up, at 8.43 pm, whether or not Siew Yu Lee is the right name, after the intervention of a new member to the discussion, Quinsy (page 114 – 5 of the WeChat transcript). This is not only news to the debate participants, but it is well after the matters complained of are published. This is discussed in more detail below. Continuing identification of the plaintiffs 1. Finally, I also note that the pleading claims that each of the matters complained of "remains online" (paragraphs 6(d), 9(e), 12(e), 15(d) and 18(e) of the Statement of claim) but this is conceded not to be the case. 2. The parties agree that, unlike other forms of social media, these WeChat conversations are now no longer accessible. That is one of the reasons why Exhibit B was prepared. 3. This is significant for the defences, because the pool of persons likely to have read the chat remains very small. If it is the case, this particular should be amended or deleted. The extrinsic facts claim 1. The imputations are alternatively argued to arise by true innuendo. This is pleaded as follows: (a) The first matter complained of: The fact of the publication of the advertisement naming the First Plaintiff. At about 11:36 am. Readers of the first matter complained of knew that doctor to whom the Third Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread. (b) The second matter complained of: The fact of the publication of the advertisement naming the First Plaintiff at about 11:36 am. Readers of the second matter complained of knew that doctor to whom the First Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread. (c) The third matter complained of: The fact of the publication of the advertisement naming the First Plaintiff at about 11:36 am. Readers of the third matter complained of who had been following the chat knew that doctor to whom the First Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread. (d) The fourth matter complained of: The fact of the publication of the advertisement naming the First Plaintiff at about 11:36 am. Readers of the fourth matter complained of who had been following the chat knew that doctor to whom the Third Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread. (e) The fifth matter complained of: The fact of the publication of the advertisement naming the First Plaintiff at about 11:36 am. Readers of the fifth matter complained of who had been following the chat knew that doctor to whom the First Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread. 1. These particulars are deficient firstly because the publication at 11:36 am does not name the first plaintiff (it is a link that must be clicked on), and because of the significant time gap between the 11:36 am publication and the remaining publications and because of the wealth of conflicting material in the interim, principally coming from the second plaintiff. Mr Young acknowledged that repleading was required. Relevant portions of the conversation identifying the second plaintiff 1. I have set out above the reasons why particularisation in relation to the first plaintiff needs to be repleaded. This includes correction of the claim of being identified in the "Sydney Today" stub and the reference to the advertisement being "posted" when the plaintiffs in fact posted this. 2. The identifying factors in relation to each of the matters complained of need to be set out and then correlated to each of the separate publications. 3. The second plaintiff needs to reparticularise the identifying factors to include: 1. The advertisement from "Sydney Today" placed on the WeChat group chat feed (note that this advertisement does not identify either of the plaintiffs; it is necessary to click onto the link to obtain this information). 2. The subsequent lodgement of this advertisement during the WeChat conversation. 3. The references to Li Xiao Yu by any of the participants other than the second plaintiff. 4. The second plaintiff's statements about herself and the first plaintiff including the use of two avatars. 5. The fourth defendant's statements about consulting the plaintiff, whom she says she recognises from her avatar. The parties' submissions 1. The defendants complain that the plaintiffs bring proceedings for defamation for half a dozen sentences spoken in the course of a debate going over a 24-hour period, during which the most potent evidence of identification was given by the second plaintiff herself, in the form of refusals to admit that she was the doctor in question, that she spelled her name differently to the standard pinyin spelling and that she in fact had the necessary qualifications. 2. The extent of the publication to persons other than the defendants, in terms where the plaintiffs can identify an avatar, is at most 7 persons, and there is considerable doubt that anyone other than the defendants (including the former fourth defendant) read one or more of the five matters complained of. 3. The existing pleading is acknowledged to require repleading in relation to a number of issues, such as the extrinsic facts and advertisement pleadings, reconciling inconsistent claims about downloading and agreed changes to the translation. There remains a dispute about the Chinese language translation for "cosmetic" and "plastic" surgery. 4. Mr Polden points out that the statement of claim has had seven versions so far, that the proceedings have been on foot for four years and that they were commenced at the end of the limitation period, which is a relevant factor as to discretion: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. 5. Mr Hu, the first defendant, acknowledges and supports these submissions. 6. Mr Young submits that this is a very serious defamation of a doctor and her clinic, who were entitled to wait until the end of the limitation period to commence proceedings. This is a clear case of defamation where the arguments about particulars are trivial. Nor is it the case that the plaintiffs should be required to provide particulars of identification and downloading for each publication as they all occurred during the same day, although there was a gap of about 7 hours between the first two and the remaining three. The defendants were playing Russian Roulette by making the statements that they did without checking for other spellings for the Chinese characters in the plaintiff's name when they looked at the Royal College of Surgeons and other official websites (submissions 21 August 2020, paragraph 27). The case was "really very simple", as the plaintiffs had provided particulars "in painstaking detail" and the court should make orders to progress this matter to a hearing. 7. Neither the plaintiffs nor the defendants sought to separate the claims brought by the company from the second plaintiff. Both adopted an "all or nothing" approach. I have, however, carefully considered each of the plaintiffs' claims separately. As the analysis of the pleading problems shows, each of those claims has defects, but they are different in terms of content and severity. Conclusions 1. I gratefully adopt and repeat the concerns expressed by McCallum J (as her Honour then was) and Hoeben CJ at CL concerning the conduct of these proceedings in the Supreme Court, conduct which has continued in this court. At all relevant times, as Hoeben CJ at CL noted, this was a claim within modest parameters arising out of half a dozen sentences in a chat room. His Honour's observations as to the range of damages to be awarded are particularly apt, as Exhibit B shows that the plaintiffs could readily have resolved the argument by answering the requests for information made by the defendants during the chat, instead of the second plaintiff engaging in a lengthy and acrimonious exchange. 2. Having commenced proceedings at the last minute, the plaintiffs then involved themselves in a long series of applications in the Supreme Court, in a claim notable for its poor pleading, overblown special damages claim and wrongly named defendants. After seven attempts over the past four years (which Mr Polden noted was one more than in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37), the plaintiffs still have not produced a pleading which can go forward. As Mr Young has acknowledged, certain portions must be revised; in addition, in the course of this judgment, I have indicated rulings I would make which would require a complete recasting of the particulars of identification, downloading and extrinsic facts for both plaintiffs, in relation to each of the publications. 3. The unhappy history of these proceedings, the length of time it has taken for these issues to be able to be dealt with by the court and the potential unfairness for both parties in dealing with events of more than four years ago are relevant to the exercise of discretion in granting leave to amend one more time: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. 4. An additional difficulty is that these proceedings are, to use Hunt J's expression in Lazarus, "a tempest in a teacup" in circumstances where after so long a delay, the plaintiffs' failure to find any identifiable person who read the matters complained of is a significant factor of unfairness not only for the defendants but for the plaintiffs themselves. 5. Every case management technique that the courts have been able to offer has been made available to the plaintiffs. The careful assistance of McCallum J included a referral to mediation and a number of judgments. Hoeben CJ at CL similarly endeavoured to draw the parties' attention to the relevant issues. 6. The case management systems used in this court included a special fixture to try to bring the parties up to speed. There is already a very lengthy judgment on pleading issues, handed down in 2019. Unfortunately, after a series of adjournments and extensions to accommodate them, a year later, the plaintiffs still put a pleading before the court which contains not only factual inaccuracies and poor pleadings but a claim which, when it is looked at objectively, is half a dozen sentences from a two-sided argument, participated in by very few people, and occurring over four years ago. 7. There must come a time when no further leave to amend can be granted. The plaintiffs are not in fact even seeking leave to amend. Their position is that the amendments they acknowledge are a mere tidy-up, that the claim should go forward to a hearing and that if there are any problems with the next set of pleadings, these issues can be dealt with at the trial. 8. The defects of pleading are clearer in the case brought by the second plaintiff, but the particulars of the first plaintiff (notably relating to the claim that the Sydney Today stub names the first plaintiff and gives its address and telephone number), must be revised. Given the procedural history, the likelihood is that, if I were to make orders striking out the particulars I have identified as defective, further defective particulars would appear in their place. Without these essential particulars in relation to publication issues on which they bear the onus, the plaintiffs cannot establish a cause of action. 9. Taking all of the above matters into account, and noting the central importance of a properly pleaded case on identification and downloading by persons with knowledge of the relevant extrinsic facts, I consider that the first and third defendants have made out their case not only for the striking out of the challenged particulars but also for the dismissal of the proceedings. 10. Costs should follow the event. I grant liberty to apply. Orders 1. Pursuant to UCPR r 14.28 paragraphs 6, 8, 9 (particulars of identification), 11(a), 12(a) – (vii), 14 (particulars of extrinsic facts), 15 (particulars of identification), 17, 18 (particulars of identification) and 20 (particulars of extrinsic facts) are struck out without leave to replead. 2. Pursuant to UCPR r 13.4 proceedings against the first and third defendants are dismissed. 3. Plaintiffs pay defendants' costs, with liberty to apply. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2021