Cao v Liu [2013] NSWDC 172

District Court New South Wales

Medium Neutral Citation: Cao v Liu [2013] NSWDC 172 Hearing dates: 21, 22, 23, 24, 27, 28, 29, 30, 31 May 2013; 29, 30, 31 July 2013 Decision date: 06 September 2013 Jurisdiction: Civil Before: Judge Walmsley SC Decision: Judgment for the defendant Catchwords: Defamation - publication by email - issue about who sent it - plaintiff failed to prove defendant was the publisher - damages provisionally assessed - triviality defence Legislation Cited: Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW) Evidence Act 1995 (NSW) Cases Cited: Browne v Dunn (1894) 6 R 67 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 Jones v Dunkel (1959) 101 CLR 298 Papaconstuntinos v Holmes a Court [2009] NSWSC 903 Radio 2UE Pty Ltd v Chesterton [2009] HCA 16 Stanton v Fell [2013] NSWSC 1001 Szanto v Melville [2011] VSC 574 Webb v Bloch (1928) 41 CLR 331 Category: Principal judgment Parties: Plaintiff - Ping Cao Defendant - Shengrong Liu Representation: Mr B Goldsmith (solicitor) - Plaintiff Mr R Rasmussen - Defendant Goldsmith Lawyers - Plaintiff Etheringtons Solicitors - Defendant File Number(s): 2012 / 275052 Publication restriction: Nil

Judgment 1This action for damages for defamation was listed for a two day hearing to start on 21 May 2013. In fact the case took 12 days. The plaintiff was represented by Mr B Goldsmith, solicitor. The defendant was represented by Mr R Rasmussen of counsel. The central issue for me to decide is whether the defendant sent an email which is said to have been defamatory. 2Publication of the email (I shall call it 'the email' or 'the matter complained of') occurred on 20 November 2011 when an email in Chinese was received in Sydney by some members of a club established to further the interests of Chinese born Australians. The club was called the Chinese Professional Club of Australia (the club). The email alleged inter alia the plaintiff, a former president of the club, had been disloyal to a friend of his in connection with a club election. The email address used suggested the sender had been the defendant, because it incorporated an anglicised version of her name, and was signed "Nancy", a name by which some knew her. But the plaintiff and several of his friends immediately saw it as the work of the defendant's husband, Mr George Yu, also a former president of the club, a man of forthright views, and a man whose views about modern China were different from those of the plaintiff. Mr Yu controlled the club's email system, pursuant to which many club members would engage in a "chat" group, "chatting" by email about matters of mutual interest. Soon after publication the plaintiff and several of his friends sent an email in which they asserted that Mr Yu had been sending emails using his wife's email address. But a 'concerns notice' (under s 14(2) Defamation Act 2005 ('the Act')) inviting an offer of amends was served personally on the defendant on 10 December 2011, and when that occurred she made some statements which suggested she, rather than her husband, had sent the email. 3There was no pre litigation discovery. These proceedings were commenced nine months later, on 12 September 2012, and only against the defendant. Despite what she had earlier said (and there are conflicting versions of this) suggesting she had sent the email, as soon as the statement of claim was served on her, she wrote to the plaintiff denying she had sent it, asserting the wrong person had been sued, and that he and his solicitor should "double check" who had published the email. Her husband, Mr Yu, prepared, filed and served for her a verified defence in which she swore she had not sent the email. At that time it was less than twelve months since publication of the matter complained of. But no application was then made (and no application has since been made), to join Mr Yu as an alternative defendant. Nor were any interrogatories later delivered to the defendant to ask her on oath if she had sent the email. Since the proceedings have begun, the defendant has consistently denied she sent the email. The case stands or falls on whether the plaintiff has proved the defendant sent or authorised the sending of the email. 4The defendant (as I later conclude) speaks little English, whereas her husband speaks English very well. They did not until shortly before the trial retain lawyers. Mr Yu acted for his wife until then, attending directions hearings and preparing any documents she needed to sign. As I have observed, it was apparent from early in the proceedings that 'publication' was in issue. On 14 February 2013 Judge Gibson directed the plaintiff to serve statements in advance of the hearing, confined to the issue of publication. The plaintiff served two such statements. In one of them there was evidence suggesting the defendant had conceded when receiving the "concerns notice" on 10 December 2011 that she had an email address which her husband did not use and that she had used it to send the email. Although not directed to do this, the defendant responded to the plaintiff's statements by serving two statements, one from her and one from her husband. In hers she agreed she had on 10 December 2011 said words suggesting she had an email address and used emails, and that her husband did not use her email address. But she denied saying she had in fact sent the email or had been the owner of the email address, (liunancy2005@hotmail.com). At about the same time, purporting to act in accordance with a direction or perhaps a suggestion to put on an amended defence, the defendant filed and served a further verified defence in which she again denied having sent the matter complained of. (Mr Yu's statement was not in evidence before me: it was tendered by the plaintiff but I rejected it for reasons I gave at the time. All of the documents filed by the defendant before she retained solicitors were prepared for her by her husband.) 5Throughout the judgment I have quoted verbatim from the documents and transcript, with the obvious errors left in them.