The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482

District Court New South Wales

Medium Neutral Citation: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482 Hearing dates: 20 August 2019 Date of orders: 11 September 2019 Decision date: 11 September 2019 Jurisdiction: Civil Before: Gibson DCJ Decision: (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. Catchwords: TORT – defamation – plaintiffs bring proceedings for defamation against four individuals for multiple statements made in the course of a 24-hour series of posts on WeChat – challenge to identification and to the form of each publication pleaded - applications to strike-in material and to strike out the claim – estoppel – whether statements by a litigant in person in correspondence and to the court amounted to issue estoppel in relation to the defendants' challenges to the pleadings - no estoppel – leave to amend granted Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 and 65 Motor Accidents Compensation Act 1999 (NSW), s 109 Uniform Civil Procedure Rules 2005 (NSW), rr 14.22 and 14.24 Cases Cited: Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113 Al-Shennag v Woodcock [2013] NSWSC 696 Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605 Bajramovic v Calubaquib [2015] NSWCA 139 Bi v Mourad [2010] NSWCA 17 Blair v Curran (1939) 62 CLR 464 Budu v British Broadcasting Corporation [2010] EWHC 616 Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998, unreported) Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Castillon v P&O Ports Ltd [2007] QCA 364; [2008] 2 Qd R 219 Charleston v News Group Newspapers [1995] 2 AC 65 Daniels v State of New South Wales (No 2) [2014] NSWSC 1934 Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 Duffy v Google Inc (2015) 125 SASR 437 Inasmuch Community Inc v Bright [2006] NSWCA 99 Jenman v McIntyre [2013] NSWSC 1100 Katschke v Gray [2010] EWHC 690 Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 Kuligowski v Metrobus (2004) 220 CLR 363 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Liu v The Age Company Limited [2016] NSWCA 115 Makhoul v Barnes (1995) 60 FCR 572 Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130 Ramsay v Pigram (1968) 118 CLR 271 Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies [2011] NSWSC 1445 Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB) Smith v ADVNPic [2008] EWHC 1797 Templar v Britton [2013] NSWSC 1827 The Age Corporation Ltd v Beran [2005] NSWCA 289 The Buddhist Society of Western Australia Inc v Bristile Ltd & Anor [2000] WASCA 210 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2017] NSWSC 1658 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 823 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 4) (Supreme Court of New South Wales, McCallum J, 8 June 2018, unreported) Trkulja v Google Inc (2018) 356 ALR 178 Waterhouse v The Age Company Ltd [2011] NSWSC 159 Wollongong City Council v Papadopoulos [2019] NSWCA 178 Texts Cited: Ireland, J., "Defamation 2.0: Facebook and Twitter" (2012) 17 MALR 53 Roopani, D., "The scope and content of a 'publication' on the internet for the purposes of defamation law" (2015) 20 MALR 33 Category: Procedural and other rulings Parties: First Plaintiff: The Sydney Cosmetic Specialist Clinic Pty Ltd Second Plaintiff: Lee Siew Yi First Defendant: Yiwen Hu Second Defendant: Valgrow 1 Pty Ltd trading as LJ Hooker (Burwood) Third Defendant: Lijue Ma Fourth Defendant: Qiong Yan Representation: Counsel: Plaintiffs: Ms G Rubagotti First Defendant: In person Second Defendant: Mr R Potter Third Defendant: Mr M Polden Fourth Defendant: No appearance