Cao v Liu - [2013] NSWDC 172 - NSWDC 2013 case summary — Zoe

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Cao v Liu

[2013] NSWDC 172

District Court of NSW|2013-05-31

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Court

District Court of NSW

Decision date

2013-05-31

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

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, (). 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.

[2]

Summary of the course of the hearing 6Evidence was adduced from two witnesses in the plaintiff's case that the defendant had, at a club function on 10 December 2011, used words amounting to an admission she had composed and sent the email. That evidence was challenged. Several witnesses were also called on reputation and identification. 7The plaintiff and his wife, Ms Jilong Lai, gave evidence as to damage. 8The defendant then gave evidence that she had not sent the email, that she had no email addresses, and had never used email. She agreed she had said some words attributed to her by a Mr Cheng at a club function on 10 December 2011 in which she said she used emails, that her husband did not help her with emails, and that she had her own email account. But she told me that that had not been the truth. She explained that when Mr Cheng asked her about whether she sent emails and whether her husband had used her email address, he had spoken to her in a disrespectful way. I took this to mean his questions to her had suggested that as a woman, she was beholden to her husband for assistance with emails. She used the expression "tit for tat", to describe what she had done, to pay him back, as it were, by pretending she could use emails, because he had been supercilious or patronising with her, when in fact she could not and did not use emails at all. 9It had not been put to Mr Cheng that he had spoken in a disrespectful manner, or talked down to her. Mr Goldsmith initially proposed to recall Mr Cheng in reply, to deny he had acted in that way. That course was opposed. Then this exchange occurred: "RASMUSSEN: Your Honour, this point has taken me by surprise a little bit. I'd like to have a quick look at the evidence to see whether that might have been covered already, in a sense, because what we're talking about of course is the defendant's perception. I mean to say that [?whether] somebody's tone of voice is belittling or not is actually subjective; there's nothing objective about that. For one person to say, I wasn't being belittling; and for someone to say, Well, yes, you were; takes the court nowhere at all. ... I'm prepared to concede, for example, that Mr Chen's view was that he wasn't being belittlingly without making any concession that he was or was not. Because if the defendant, in cross-examination, said that she thought that he was being belittling then how is that-- HIS HONOUR: That was her perception, that he was being supercilious and sexist, I suppose, suggesting that a girl couldn't possibly manage to handle an email. RASMUSSEN: That's right. GOLDSMITH: Your Honour, I will accept that concession." 10Mr Yu then told me he had set up the email address and sent the email. It was suggested to Mr Yu in cross examination that his evidence was false and had been given to shield his wife. He did not accept that. He agreed he had helped his wife with the proceedings, in particular by preparing her statement, and he said she had told him she had used words to Mr Cheng along the lines that she had and used an email account. Mr Yu said however that to his knowledge his wife did not use emails. 11There was no evidence before me from the internet service provider to show for example who had set up the email address, and what other emails had been sent from it. 12After Mr Yu gave evidence that the defendant had not sent the email, (evidence I ultimately accepted), Mr Goldsmith foreshadowed that the plaintiff would join Mr Yu, but for the sole purpose of having a costs order made against him on an indemnity basis, if it were found he had been responsible for the plaintiff's incurring unnecessary costs. Thus far however, no application has been made to join him.

[3]

An adjournment application and an application to amend the pleadings 13I spent the morning of the first day hearing applications to amend pleadings, and for an adjournment. The plaintiff wanted to amend his statement of claim to add an imputation, and to make some minor amendments. The defendant did not oppose that course but wanted an adjournment of the hearing, and wanted to plead qualified privilege. Mr Goldsmith was concerned that if the defendant were to be permitted to plead qualified privilege, the case would have to be adjourned for quite some time, because he would have needed discovery, including, probably, interrogation, in his efforts to deal with malice. 14Ultimately the plaintiff withdrew his application to add the new imputation, when I made it clear that if he persisted with it I would grant an adjournment sought by the defendant. Although the defendant wanted an adjournment regardless of that issue, I refused that application. I said I would deliver reasons later. These are those reasons: (a)The plaintiff wanted to proceed. (b)He had a number of witnesses at court. (c)The statement of claim had been issued in September 2012. (d)The case had been set down for hearing some months before. (e)The defendant had long been unrepresented and had only retained lawyers a week or so before the trial. (f)It was not the plaintiff's fault that the defendant had only at the last minute retained lawyers, and that the need to plead defences such as qualified privilege had only recently become apparent to the defendant. (g)The defendant had been warned several times over the immediately preceding few months when the matter was before the court for directions, that she should have a lawyer and that her defences as previously filed were inadequate. (h)I was not confident the plaintiff would be adequately compensated by any costs order I made if I adjourned the matter. 15I accepted that the defendant, either alone, or with her husband's help, had tried unsuccessfully since the statement of claim had been served, to find solicitors prepared to act for her. But I considered the interests of justice required that the matter proceed. In so doing I took into account the provisions of s 56 Civil Procedure Act 2005. 16At the conclusion of the hearing the plaintiff sought leave to file a further amended statement of claim inter alia reflecting amendments to his claim for aggravated damages. I consider leave should be given for that as it reflects the way the case was ultimately run.

[4]

A dispute about a translation of the matter complained of 17I was asked to decide as a preliminary issue whether the plaintiff had, on the balance of probabilities, proved a particular part of the matter complained of, as to which there was a dispute about the translation. This was said to be important because the third imputation relied on what was said to come from the disputed part. Each party called a translator, and each translator was cross examined. I then received the benefit of submissions. After hearing submissions I ruled that the version of the matter complained of put forward by the plaintiff had not been proved on the balance of probabilities. I ruled that the version put forward by the defendant should be admitted into evidence to prove the contents of the matter complained of. I said I would give reasons for that ruling when giving my judgment on all issues. The following are those reasons. 18The statement of claim had annexed to it an English translation of what was originally Chinese. The dispute only concerned a part of the translation and revolved around four Chinese characters. The part the plaintiff maintained was in the matter complained of was this phrase: " secretly manipulating people making numerous phone calls..." It was the defendant's case that the correct translation of the relevant part of the Chinese was "behind people's backs made numerous phone calls ..." 19Both translators, Ms Tang and Ms Shu, are highly skilled. Each has an impressive curriculum vitae. As I observed each of them I formed the view that each was honest and doing her best to be accurate. Each made appropriate concessions. In the end I preferred Ms Tang's version for these reasons: (a)Ms Tang has an honours degree in arts from the University of Hong Kong in translation, in English literature, and in Chinese language and literature. Although Ms Shu also has university degrees, there is no evidence she has one in any of those disciplines; (b)There was evidence that although the dispute concerned four Chinese characters, Ms Tang did not include in her English version any part of the meaning of the third and fourth characters. She said that was because to have included meaning from the third and fourth characters would have involved introducing superfluous words. Ms Tang was criticised for not translating those two characters and for not making a translator's note about why she had not done so. But her explanation that there would otherwise have been a repetition involved seemed to me logical, and I considered there was a degree of superfluity in Ms Shu's translation. As Ms Tang explained (T73.30): (explaining that the last two of the four characters meant to her "to do" or "conduct"): "when you translate it literally it will be 'to operate behind people's back', and then following that the next sentence would be 'to make numerous phone calls' so to me that is a repetition. 'To operate behind people's back to make numerous phone calls'- actually that operation 'behind people's back' it was to make the numerous phone calls. That's how I interpreted it." (c)Thus she came to the translation "behind people's backs made numerous phone calls." Although Ms Shu had said the word "manipulating" should have been included, Ms Tang said you would not say "manipulating behind people's backs making phone calls": the making of the phone calls was the act of manipulation. So to use that word meant repetition; (d)The English version of the email prepared by Ms Tang (although not without its spelling and grammatical imperfections) seems to me to flow much better than that prepared by Ms Shu. Although I do not mean to be disrespectful to her, I consider there is a slight clumsiness to Ms Shu's English prose which is not present in that of Ms Tang. 20Ms Tang's version of the matter complained of became Exhibit 2.

[5]

The matter complained of 21The plaintiff says he was defamed when the email was sent by the defendant on 20 November 2011 to a number of members of the club, who were also members of the email 'chat' club to which I have earlier referred. The email was sent in the course of a series of emails, all in Chinese, but all translated for the purpose of these proceedings. What began the chain was an email sent by one club member in which he brought attention to the fact that some children had been killed in a bus accident in China, and that the bus had been grossly overloaded. An email from liunancy2005@hotmail.com (the email address said by the plaintiff to be that of the defendant) was then sent in reply which said "Sir: pick a pleasant topic to talk about". It was signed "Nancy". There was then a response from another club member saying "Since when has CPCA had a Queen Mother? Want to listen to nice things? Stay in the palace". An email from "liunancy" then responded: "Don't be so sour and mean when talking, a man must learn to be kind". Another member, Xiang Jian, responded "Hi, Nancy I am with you. This is what I would say as always that CPCA members, past or present, ought to have manners, ought to understand mutual respect". 22There followed some more emails, including from the plaintiff, suggesting there should be more humour and good will and kindness, that it was important that people should enjoy the right to free speech in this country, and that people should lighten up. One email sender was Mr Rupeng Li, a friend of the plaintiff. He was one who asserted (inter alia), the importance of free speech. The final one in the chain before the matter complained of, which was sent by the plaintiff, and which discussed the sender of emails from the "liunancy" address as though she were a female, said: "Dear Sean [the sender of the previous email in the chain] As is said, neither of us know much about this lady. Since she is a member, we don't need to worry much. Frankly, when I saw her speak the first time on TALK 'Sir: talk about something pleasant', I was a bit surprised. Joy, we all know her well. She is warm hearted and has truly helped many CPCA members. Those CPCA traditional activities today, such as balls, badminton, SPORT Day have all had something do to with the involvement and initiation on her part and on JAMES ZHAN's part. All of us know Rupeng even better. Due to personal reasons, though he was not involved in CPCA activities as he used to, he has done his best, such as occasionally posing something just for fun. I still think the line 'since when' has CPCA had a Queen Mother?' was a joke, a little irresponsible plus internet language. Even if she might have felt emphatic (or over sensitive), it does not warrant in saying 'a man must learn to be kind'. Is this line totally inappropriate? Not harsh and mean at all? Lao He, as the former Chairman of CPCA, you've got to uphold fairness and cannot be biased (just joking). Look, I just feel it was overacting to blame Joy for being unkind, a few extra words resulted in being labelled as 'Don't have to rack your brain to fan the flame and sow dissension here, lest CPCA is not in chaos!' It seems I am really a person who does not understand the rules, why have to dig a hole right here? My sins are threefold: one, I should not have undermined the stability and unity of CPCA; two I shouldn't have incited to cause discord between Rupeng and the rest of us; three, should not have shown disrespect. Guilty. I make a public apology here and punish myself privately. The lady has indicated to have possessed many inside stories (seems not an average piece of work 'Something is best left without thorough analysis so as not to hurt feelings." In fact, any conspiracy or scandal should be exposed and 'to hurt feelings' should not be kept at the cost of an individual's integrity and dignity. Bring it on, what do you say, brother He? Conspiracy within CPCA, what a crime should that be called? The crime of instigation for subverting the political power in the Club? Is CPCA really looked at to be that important? What an ironic! In short, agree with Rupeng's comment, 'CPCA TALK should be an open forum platform of letting a hundred flowers blossom and a hundred schools of thought contend. No matter what the topic, discussion should always be allowed'. I'd like to add another point, CPCA, if a registered association in Australia, has got to comply with the relevant Australian Law of Association which is in turn governed by the Australia's Constitution. When CPCA drops its arrogance, more people will naturally like it. Be less emotional with CPCA, arrogance will be dropped and everyone will relax. This is my humble personal opinion, no intention to talk on behalf of anyone else, let alone 'most members'. Regards Ping" (The plaintiff's name) 23It is to be noted that the plaintiff referred to Lao He as "brother He". That was important, because the plaintiff was not referred to by name in the matter complained of and, on the issue of identification, the plaintiff relied on the knowledge readers had of his use of that expression in previous emails including the above. 24Eventually Mr Rupeng Li, who had started the chain by sending the email with the bus crash story, apologised to others in the chain in a light hearted manner, and sought forgiveness, saying he had misunderstood "Nancy", but now accepted she had just made a suggestion. He thanked everyone who had joined in the discussion. 25There was then the following email, sent from the 'liunancy' email address, which was the matter complained of: "Thank you Rupeng I reckon some people are simply too calculating, too good an actor. Just look at his emails to Professor He in which he repeatedly addressed him as Brother He, in such an affectionate manner. However, I recall back in 2008 at the AGM election, how ferociously he stabbed Professor He in the back. Professor He had already been elected into the 2009 CPCA Committee. This person on the one hand sent out copious amount of emails to manufacture public opinions about the election being unfair, while on the other hand behind people's backs made numerous phone calls to some persons concerned, pleading unashamedly for changes to the election results, and to add the name of his friend. This went on and on until Professor He announced his withdrawal from the 2009 CPCA Committee, only then did he stop. To me it is still the same old saying: some things are better left unsaid. Since someone is so cocky as to challenge others to 'bring it on', I will simply oblige. I will give him one and then no more, because I don't want to get other people involved, especially not Professor He. I am sorry! Thank you, Rupeng, once again for your understanding. I respect your, Professor He and Yifei Jiang's opinion of not wanting this argument to go on. On this topic I will say no more, and will not reply to any more email. I do not care what other people might say. Nancy"

[8]

The course of evidence 32The plaintiff took the unusual step of not giving evidence first. Further, he remained in court while other witnesses Mr Goldsmith called gave their evidence. 33The first witness called was Mr Jing Ping Cheng. He is a member of the club. He is a friend of the plaintiff. He knew the defendant and her husband at relevant times and had known them since 2005-2006. He knew the defendant as Nancy Liu and her husband as George Yu. He had read the email and thought it referred to the plaintiff. I took him to say that that was because of the reference to 'brother He', and the plaintiff's earlier use of that expression. There was then a club meeting on 10 December 2011 which he attended. Before the meeting the plaintiff had asked him to give an envelope to the defendant. The envelope contained a notice from the plaintiff's lawyer. He gave the defendant the envelope after the meeting, at about 9.30 pm to 10 pm. He observed her open the envelope. He said she appeared to read it, smile and say: "Mr Cao has gone too far to take this legal action ... if this was happen in China I won't let Mr Cao or Mr Cao go easily." 34Then, referring to the email, he said the defendant had said, words to the effect: "The email complaint was written by herself, not her husband, and her husband didn't have the right to access her mailbox... even within her family she got her privacy, so her husband couldn't access her mailbox." 35He said that at the time of publication the plaintiff had enjoyed a good reputation: a reputation as a decent man. He said people questioned the plaintiff's reputation after publication. When Mr Rasmussen put to him the plaintiff's reputation was the same now as before publication, he said he was not sure: he could not judge. In re examination he said he thought there was still some effect on the plaintiff's reputation from the email. 36In cross examination it was put to Mr Cheng the defendant had not said she had written the email rather than her husband, and he said this: (T 221.42-44) "A. She said that was her own mailbox; the email from her own mailbox; she wrote that by herself; her husband didn't have access to her mailbox; even within her family she had her own privacy." 37At the conclusion of the cross examination some questions were asked on the voir dire. Then Mr Goldsmith re-examined. Insofar as I have not ruled on the issue, my ruling is that all of the evidence on the voir dire should be evidence in the proceedings. Indeed, I took the parties to agree with that ruling.

[9]

Credit of Mr Cheng 38Mr Cheng was subjected to a lengthy and searching cross examination. There were some matters which made me cautious about him. For example although it seemed fairly clear to me that he was a friend of the plaintiff, when it was put to him he was a friend of the plaintiff, he questioned what was meant by "friend", only eventually conceding he was indeed the plaintiff's friend. As he then conceded, it had been he who had been entrusted by the plaintiff with the task of serving the "concerns notice" on the defendant. 39I have earlier observed that although the email was sent on the "liunancy" email account, some club members thought they could see the hand of Mr Yu in emails being sent from that account. It transpired that shortly after publication of the matter complained of Mr Cheng composed and sent an email (to which the plaintiff and others were signatories,) in which they asserted inter alia, Mr Yu had been using the "liunancy" email account. This email was sent shortly after Mr Yu had been instrumental in having one of its signatories, Reagan Li, expelled from club membership. (At the time this was sent Mr Yu had the position of 'adviser' to the club's committee.) An email from the "liunancy" account had been sent to the club's president, Jenny Lei, complaining that Mr Reagan Li had misconducted himself. Shortly before the matter complained of was published, Reagan Li sent two emails as part of the chain, in at least one of which he had been critical of "Nancy's" attitude. It was following "Nancy's" complaint which followed those emails, Jenny Li expelled Mr Reagan Li from the club's membership. Mr Cheng's email (Exhibit 5), sent on 10 December 2011, a few hours before the AGM, said: "... It appears George Yu are operating two email accounts, one in his own, the other in his wife's. Under such intense circumference [?circumstances] and during the process of mediation, Nancy has not publicly expressed her identity, we ought to review those attacking words used by Nancy Liu and by George Yu against Ping Cao, we can see the highly similarity. Furthermore it is reasonable to suppose that George Yu has been using both mailboxes to send email to CPCA members and committee. ... On dealing with Reagan, it can be said that George Yu is both plaintiff and judge. On one hand, he accused Reagan by using Nancy's identification, on the other hand, he manipulated Jenny Lei to punish Reagan with the capacity of advisor, this has severely impacted the legal principle in Australia. Since George Yu's ignorance to the principle of fairness and justice in Australia, actually he has hidden the truth, and gained some CPCA members' sympathy to Nancy and resentment to Reagan. If we overview the whole process from the context, Reagan's language to Nancy does not have substantial offence, and nothing offensive language which is worthy for investigation. Jenny Lei should have known the relationship between Nancy Liu and George Yu, but we don't know if she did not disclose the fact to CPCA members and committee because of under the pressure. But George Yu hid their marriage relationship to the CPCA members and other committee members, make ignorant CPCA members and committee members to misbelieve him for dealing with the issue impartially, this is a serious cheating and misleading behaviour. Ping Cao Jingping Cheng Joy Xia Chongyi Feng Reagan Li" 40When Mr Cheng's attention was drawn to that email in cross examination he told me he had merely had a "suspicion" when he wrote it, that Mr Yu had been the author of emails from the "liunancy" address, and he had merely "guessed" he had been the author of emails from that address. He then conceded, however, he had made accusations of serious cheating and misleading behaviour based on that "guess" (T214). In re-examination he told me he no longer thought Mr Yu had been the author of the matter complained of once the defendant had told him she had sent it. 41In light of his authorship of Exhibit 5, his response when cross examined about it, and my perception of his initial reluctance to concede his friendship with the plaintiff, I have some reservations about Mr Cheng's credit.

[11]

Browne v Dunn submission 43 The plaintiff served a statement from Mr Li on the defendant's advisers during the trial. The defendant then tendered a supplementary statement in which I took her to take issue with Mr Li's evidence as to his conversation with her at the club function, in effect denying she had said what he had attributed to her. She gave no other evidence about Mr Li's statement when she gave evidence in chief, and it was never put to her in cross examination that she had had the above conversation with Mr Li. Mr Goldsmith submitted in his final submissions that I must accept Mr Li's evidence, since he was not cross examined on it. He relied on Jones v Dunkel (1959) 101 CLR 298. The defendant's supplementary statement (Exhibit 6) however, said "Response to Reagan Li Re: Conversation at the 2011 CPCA AGM on 10 December 2011. Referring to paragraph 14 -15 in the statement of Reagan Li regarding the conversation, I deny there was such conversation between Reagan Li and me at the 2011 CPCA AGM held... on 10 December 2011." Further, it was put firmly to him in cross examination that the conversation had never happened. For example: "Q. You have told us already that you went to the AGM on 10 December 2011? A. Yes. ... Q. And you say that you had a very short and unpleasant conversation with Shengrong Liu? Do you agree with that? A. Yes. ... Q. Sir, you never had any conversation at all with the lady that you call Nancy Liu at the AGM? A. I talked with her about the - the emails and she replied. That's all. But your - your second email is - the tone - your has been changed completely. It's not like the same recognise - same people. I said, oh, but just because you're accusation against Ping is so serious I have to use a bit stronger words that's my meaning and we - we talk about that and he said, "Oh, no." But they - they are against me. Attack me. That's about the - the early emails, yes." 44I reject Mr Goldsmith's submission that Jones v Dunkel applies. Although he did not refer to Browne v Dunn (1894) 6 R 67, the position would have been the same. The defendant through her counsel challenged the witness in cross examination, and her statement in evidence also put it in issue.

[12]

Reagan Li's Credit 45To my observation, in evidence in chief, Mr Li was careful and concise, and appeared to have a good memory for events. 46There were some matters however which gave me pause. He had reason to be angry with Mr Yu. As appears above, as a signatory to the email drafted by Mr Cheng, he had expressed the view Mr Yu had been instrumental in having him expelled from the club, being both "plaintiff" and "judge". Yet Mr Li told me the expulsion had been like a joke: he had not been angry, he had merely had "mixed feelings". Although denying he had been angry he then conceded he had sent an email about his expulsion, in which he had said he had been angry. And he conceded he had had quite strong feelings about his expulsion. But he told me in re examination he had been upset because an email sent from the "liunancy" address had associated him with several names associated in China with counter-revolutionaries, such as Falun Gong, and that former Chinese nationals living in Australia feel apprehensive about being associated with organisations disliked by the Chinese government, even though they now live in this country. I took him to say that that had been the source of his anger, rather than Mr Yu's action in having him expelled. 47As with Mr Cheng, when the email (Exhibit 5) was put to him he retreated, asserting that the allegation that Mr Yu had sent the matter complained of had only been "a guess". Then he said he had not drafted the email, and had not checked it before it had been sent. 48Mr Li was not easy to cross examine. At times he would not answer appropriately, but would give a very lengthy and unresponsive answer to a question calling for a yes or no answer. 49It was also put to him, as I find was the fact, that he had been a friend of the plaintiff. 50Because he was a signatory to Exhibit 5, but seemed keen to back away from it and from acknowledging he would have been angry with Mr Yu in December 2011 although Mr Yu had helped to have him expelled from the club, I am cautious about accepting Mr Li's evidence.

[17]

Defendant's evidence 55The defendant, who gave evidence through an interpreter, told me she had come to Australia from China, where she had been born. She had been married to Mr Yu for 23 years. They had a 17 year old son. They had come to Australia in 1996. She said she had never seen the matter complained of until a courier had delivered it to her in September 2012 (I took that to be the version of the matter complained of in the original version of the statement of claim). She denied having the email account liunancy2005@hotmail.com. She denied having written Exhibit E. She said she is not a member of the CPCA, but that her husband is a member. She told me she had had some education, studying what the interpreter called "medication" at Beijing University, but that she had worked in a garment factory in Sydney ever since her arrival in Australia. She said nothing in chief in response to the evidence of Mr Cheng or Mr Li. However as I have noted, she had previously put their evidence in issue. 56Paragraphs 1 and 2 of the statement prepared for her by her husband and signed on 16 April 2013 said: "I am the defendant Response to Statement of Jing Ping Cheng Service of the Concerns Notice dated 5 December 2011 Referring to paragraph 4-6 in the statement of Jing Ping Cheng regarding the service of the Concerns Notice, I did receive an envelop with a letter inside from Jing Ping Cheng on a Christmas Party organised by the Chinese Professionals Club, Australia Incorporated (CPCA) which was held at Inspiration Dance Centre in West Ryde on 10 December 2011. The letter was not addressing to my name (Shengrong Liu) and my home address, so the letter did not appear to be a legal document for me from a lawyer. I just had a quick glance of the letter, but since I could not understand the content of the letter due to my limited English proficiency, so I actually did not read any details in the letter, and I even don't know exactly where the letter went after the crowded and noisy Christmas party. The important legal document like the Concerns Notice should never be delivered to a Christmas party in dance studio. I do not agree that I had been served the Concerns Notice properly, and I did not have the details in the Concerns Notice. 2. Referring to paragraph 7 & 8 in the statement of Jing Ping Cheng regarding the conversation between Jing Ping Cheng and I on the Christmas party, there was a conversation to the following effect: Jing Ping Cheng: "Does your husband help you in writing email message?" I: "No, I always write email by myself, my husband does not help me in writing and posting email, what I've written are all in my own words." Jing Ping Cheng: "Does your husband controls 2 email accounts, including yours?" I: "No, my e-mail account in my account, it is not accessible by anyone else, including my husband. It is my own private account." The conversation above is just a general chat, it did not specifically mention or refer to any particular email message or email account. I did not say that I wrote and sent the email on CPCA Syd Talk@yahoogroups.com at 12.41AM on Sunday, 20 November 2011, and I did not say that I am the owner of the mailbox liunancy 2005@hotmail.com." 57In cross examination the defendant told me she had falsely told Mr Cheng she had an email account and used emails because he had been disrespectful to her, and she had wanted to pay him back for that. 58There was the following in evidence in relation to Exhibit K: "Q. Ms Liu, if you could please go on to page 2 of your statement and you will see the first line. This is what you said in your statement. Jingping Chen said to you "Does your husband control two email accounts including yours?" That's what Jingping Chen said to you, isn't it? A. INTERPRETER: Yes. Q. And you replied, "No. My email account is my account." That was the first part of your reply, wasn't it? A. INTERPRETER: Yes because his tone was belittling me. He thought I couldn't do anything. I need to controlled by my husband so I was to hit him back. Q. Ms Liu, that answer is simply and totally untrue, isn't it? A. INTERPRETER: No I just to hit him back. He couldn't talk to me like that. You don't know what his tone was. Q. Ms Liu, these were very simple questions and you gave direct answers. And I put to you everything you're just telling now to the Court is simply untrue. Do you agree or you don't agree? A. INTERPRETER: What do you mean by untrue? Q. It is untrue. The answers that you've just given to the judge about Jingping Chen's tone, the answers that you've just given are simply untrue. A. INTERPRETER: His tone did belittle me so my answer was just hit him back tit for tat. ... Q. Ms Liu, when you said to Jingping Chen, "No. My email account is my account", are you saying that you lied to Jingping Chen? A. INTERPRETER: He asked me I just hit him back so I don't have email box. I don't have email address. Q. On page 2 at the end of the third line when you said, "It is my own private account", are you now saying that that's not true as well? A. INTERPRETER: That was just a tit for tat." 59I took her to say she was not going to be sneered at for being a woman who could not use email, as Mr Cheng's questions or tone insinuated. 60The defendant was asked why in Exhibit K she had said she had told Mr Peng she used emails, given she told me she had not. There was this evidence, in which that was discussed: (T 551.1 - 554.35) "Q. So in your statement you say, "I always write emails by myself", and you've just told this judge that you don't write emails. Do you agree with me, that's what you've said in the statement and what you've said this morning. A. INTERPRETER: Yes, because the question Jingping asked to me was belittling me, that was a little strange. GOLDSMITH Q. I'm sorry, I missed the middle part of that, would you mind repeating it please. A. INTERPRETER: Yes, the question Jingping asked was belittling me, I found it's a little bit strange so I just hit him back to tell him I can write. Q. Ms Liu, Jingping Chen's question to you was a very simple, very straightforward question, "Does your husband help you in writing email message". It was very simple and straightforward, wasn't it? A. INTERPRETER: Yes. He was belittling me, his tone was not like that. Q. Ms Liu, the conversation you had with Jingping Chen was in Chinese, wasn't it? A. INTERPRETER: Yes. Q. So there was no language difficulty, was there, in understanding Jingping Chen. A. INTERPRETER: No, there wasn't a difficulty but his tone was belittling me. So I was doing that tit for tat. Q. You continued to reply, Ms Liu, did you not, by saying that my husband does not help me in writing posting email. That's how you replied, isn't it? A. INTERPRETER: Yes, just because he was asked me like that. Q. Ms Liu, the answer that you gave to Jingping Chen was a truthful answer, your husband does not help you in writing and posting email, that's correct, isn't it? A. INTERPRETER: I have nothing to day with that conversation because that was just a tit for tat. Q. Ms Liu, you then said to Jingping Chen, very clearly, "What I've written are all in my own words", didn't you. A. INTERPRETER: Because he belittled me at that time so I just hit him back."

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The transcript of a directions hearing 63Mr Goldsmith relied heavily on the transcript of a directions hearing before Judge Gibson on 18 April 2013, where the defendant is recorded as having responded in English to some of her Honour's questions. At page 2 of the transcript her Honour is recorded as having discussed several issues, including that a party may be found liable for a libel sent by someone else on their email address. The transcript which follows is important, as Mr Goldsmith says it shows the defendant had a good knowledge of English. "HER HONOUR: ... All right. Are you going to translate any of this for your wife? Yes. Now Mrs Liu, do you understand any of what I'm saying. Yes or no, respond in English please. DEFENDANT: Yes. HER HONOUR: You understand what I'm saying. DEFENDANT: Yes. HER HONOUR: All right. Now do you understand this case is now going to go for hearing. You have to respond, what do you say. Do you understand that, that it's going to go ahead and be heard? DEFENDANT: Yes. HER HONOUR: Do you understand that you need to have interpreter present at that hearing. I'm sorry, I can't hear you? DEFENDANT: Yes. HER HONOUR: All right. Will you have an interpreter present. I can't hear you speak up. I can't hear you, speak up please. Speak up, Mrs Liu. DEFENDANT: ..(foreign language).. HER HONOUR: No, speak in English please, Mrs Liu, not in Chinese. DEFENDANT: I will have. HER HONOUR: You will have, you will have an interpreter. DEFENDANT: Yes. HER HONOUR: Yes. Do you understand your husband cannot be in the Courtroom while the case is on. You understand that. DEFENDANT: Yes. HER HONOUR: You do understand that, all right. Do you understand that it has to be an accredited interpreter - what's the word for accredited? CHOU [Solicitor then appearing for the plaintiff]: Are you asking me? HER HONOUR: Yes. Sorry, court reporter, I promised court recording I wouldn't say anything in a foreign language. So you've got to have an accredited interpreter, all right. DEFENDANT: Okay. HER HONOUR: Do you know how to get an accredited interpreter, do you know where to find one? DEFENDANT: Yes. HER HONOUR: Well where is that, where do you find an interpreters, do you know. I overhead that, NAATI. DEFENDANT: Yes. HER HONOUR: You have to come to court with your own accredited interpreter and you have to run the case, and your husband can't be in court while you're running the case. Do you understand all of that? DEFENDANT: Yes. HER HONOUR: Are you going to be represented by a lawyer? DEFENDANT: Yes. HER HONOUR: You are. What's the name of the lawyer, please. What's the name of the lawyer, please, Mrs Liu? DEFENDANT: Not yet. HER HONOUR: Not yet. So in other words you're not going to be represented by a lawyer, is that right? DEFENDANT: I will have. HER HONOUR: You will have a lawyer. What's his name? I can't hear you, please speak up. DEFENDANT: Not yet. HER HONOUR: Not yet, that's not a name. So you don't have a lawyer. Well, Mrs Liu, I'm not going to give any adjournment just because a lawyer comes along at the last minute and says he's got problems because of the hopeless defence your husband's drafted. Do you understand that? DEFENDANT: Yes. HER HONOUR: Are you sure? DEFENDANT: Yes." 64The defendant's response when cross examined on this issue was that she really had not understood what her Honour had been saying to her, and that her Honour's associate, who spoke her language, had translated, as had her husband, who had been sitting next to her. Although she was shown the transcript, she said she could not read it. 65It is obvious from the reference to "NAATI" that her Honour heard someone refer to that acronym. Yet the transcript does not record that earlier reference. Mr Rasmussen submitted that it follows the transcript was not accurate. That may be so. On the face of it, however, it seems to be accurate. Assuming it to be accurate, I do not consider it shows what Mr Goldsmith says it shows. So far as I can see, the defendant used a total of eight English words in her exchange with Judge Gibson. Most of her answers to her Honour were monosyllabic. Asked if she understood, she said "yes". That may or may not indicate she knew English. Her Honour did tell her she had to respond in English. It is true, as Mr Goldsmith said, that the transcript did not record the fact that her husband translated for her. But the transcript suggests they were (unsurprisingly) together in the court room. So if he translated for her, and told her what to say, that fact would not necessarily be recorded on the transcript. There is no evidence a court reporter was in the court. (Most recording of proceedings in this court is from a remote office away from the court.) Mr Goldsmith said that either she had lied to Judge Gibson in saying she understood, or to me that she had not understood. 66It may well be that she understood what was put to her by Judge Gibson. If she said "yes" to the question whether she did understand, when she did not in fact, that could be an untruth. But I consider it is not unusual for people in foreign surroundings, such as courts, to say they understand something they do not. I will consider this submission in the context of all the matters I take account of on the defendant's credit. But contrary to the submission of Mr Goldsmith, I consider the transcript gives some support for her assertion that her knowledge of English was limited. See for example the defendant's answer to her Honour's question (on the second occasion she put it) as to the name of her lawyer.

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The 'concerns notice' 70Mr Goldsmith submitted that the fact she apparently did not ask any questions about the "concerns notice" when it was handed to her by Mr Cheng, shows that she then knew of the matter complained of and the fact that the plaintiff had complained she had defamed him. Further, her apparent lack of curiosity about it showed she had previously seen it when it had been emailed to the "liunancy" address on 5 December 2011. 71However, any apparent lack of curiosity was never put to her in cross examination. Even if it had been, I do not think I should draw any conclusion to that effect, given the occasion was a social one after an annual general meeting, and especially if I accept the defendant's evidence of what she said and why on that occasion. That she asked no questions about the document is consistent with the proposition she did not read it or could not. On Mr Cheng's evidence, she said when she got it that the plaintiff had gone "too far". Accepting she said that, it does not follow she had seen it before, although it suggests she knew something was amiss. In fact, that comment would rather suggest she had not seen it before. The following is an extract from some of her cross examination on that issue: "Q. You read - you read the concerns notice, didn't you. A. INTERPRETER: I couldn't understand, I had a look, I couldn't understand. Q. See Ms Liu, I put to you that you read the document titled, "the concerns notice", and that you understood it. Do you agree with that or not? A. INTERPRETER: You are not right. Q. When you said to Jingping Chen, "What I've written are all in my own words", you were referring to what was referred to in the concerns notice, weren't you. A. INTERPRETER: I couldn't understand the way you asked me a question. Q. Ms Liu, when you said to Jingping Chen, "What I've written are all in my own words", you were referring to what was set out in the concerns notice, weren't you. A. INTERPRETER: It's not right the way you said it. Q. Ms Liu, you're telling the Court, are you not today, that you didn't understand what the concerns notice said, is that the case? A. INTERPRETER: When do you refer? Q. You're telling the Court today that you did not understand what the concerns notice, that was in English, you didn't understand what it said. Is that correct? A. INTERPRETER: Yes, I didn't understand at the Christmas party but Tuesday I received that and my husband translated that to me. Q. Ms Liu, when you received the document from Jingping Chen, and you took it out of the envelope, and you looked at it, you didn't say to him any words such as "What's this about?", did you? A. INTERPRETER: Jingping didn't ask. Q. Ms Liu, you didn't ask Jingping Chen, did you? A. INTERPRETER: Yes, he didn't ask me either. Q. Ms Liu, you've been given a document, it looks like a formal document. You're given it at a Christmas document and an annual general meeting. You're given the document. You've looked at it. You didn't say to Jingping Chen anything alone the lines of "What's this document about?", did you? RASMUSSEN: I object your Honour. He shouldn't describe it as a formal document. GOLDSMITH: I said, "looks like a formal document". HIS HONOUR: I just wonder, Mr Goldsmith, and I appreciate the point. But when we've got translation difficulties, I wonder if you got could just make it a little shorter. GOLDSMITH: I assure your Honour I'm trying to. HIS HONOUR: I'm sure you're doing your very best. But I just think if you can think of an alternative way of doing it. GOLDSMITH Q. You didn't ask Jingping Chen anything at all about what the document related to, did you? A. INTERPRETER: Right. He didn't say anything to me. HIS HONOUR Q. No. It was being put to you that [?you] actually said nothing to him. That is, you didn't ask him what it was about. A. INTERPRETER: No because I couldn't understand so I thought I will wait until the end of the party to find someone who can understand English to have a look for me and that day I was doing my job serving food and doing the cleaning so I don't know where to went. GOLDSMITH Q. Ms Liu, the reason you didn't ask Jingping Chen what the document was about was because you were not surprised to receive it, were you? A. INTERPRETER: No it's not like that. I didn't know what that was. So there is no surprising or not surprising. Q. Ms Liu, you didn't ask Jingping Chen any questions about what the document concerned because you were not surprised to receive it because you knew about the email dated 20th November that had been sent, didn't you? INTERPRETER: Sorry, could you please repeat the last sentence? GOLDSMITH Q. Ms Liu you didn't ask any questions of Jingping Chen about what the document concerned because you were not surprised to receive the document because you knew about the email that had been sent on 20th November. Isn't that the case? A. INTERPRETER: You're lying." 72It was put that I should not accept that the defendant could not remember seeing the concerns notice at any time before the case started. Her evidence on this was as follows: (T 543.33 - 545.10) "Q. Ms Liu, you've seen the document titled the "Concerns notice". You've seen it previously, haven't you? HIS HONOUR: You mean previously to today? GOLDSMITH: To today. Yes your Honour. A. INTERPRETER: I saw this one on Tuesday. Q. You saw this on? A. INTERPRETER: Tuesday. Q. Of this week? A. INTERPRETER: Yes. Q. But, Ms Liu, you've seen it before, haven't you? A. INTERPRETER: No. Q. You're telling the Court that you've never seen this document before? A. INTERPRETER: I can't remember. Q. Ms Liu, you cannot remember or you do not want to remember? A. INTERPRETER: I cannot remember." 73Her first answer, that she had not seen the 'concerns notice' before the week she gave evidence, was clearly not correct. But she seemed to correct herself to say she did not remember. Mr Goldsmith may be right: she may have lied to me about her recall of when she had first seen it. He put to me that she had "conveniently changed her evidence to say she could not remember" when she realized her previous answer might be contradicted. But when I observed her give evidence on this and other topics when cross examined I considered she was doing her best. That piece of transcript does not suggest strongly to me she "changed" her evidence in a dishonest way, as opposed to making a correction once she realised she had made an error. 74I agree with Mr Goldsmith that her answers did not sit well with her statement (Exhibit K) which expressly referred to the "concerns notice" in English, and was prepared for her by Mr Yu in April 2013. He may have had a copy of the document with him when preparing Exhibit K. But equally he may not have had it. There was little evidence as to what happened to the "concerns notice" after it was handed to the defendant at the meeting. And the statement being responded to (not in evidence) had, I infer, referred to it by name. The concerns notice itself (Exhibit M) does not mention the defendant's Chinese name. It does say it is addressed to '"Nancy Liu" ("the publisher")'. It is entirely in English. 75Mr Cheng said that she appeared to stare at the concerns notice for a long time when he gave it to her. But if her English was poor, that, if correct, is equivocal. He also said she smiled. That also, I consider, is equivocal. It was said she said the plaintiff had gone too far, and she asked "why these guys always like against the Chinese government", and that if this had happened in China, she would not let the plaintiff go easily. The defendant did not refer to these statements in her evidence in chief. Nor was it put to her in cross examination she had said them. But assuming she said those things it does not follow she could read the document.

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Inappropriate answers 82But then there were times when, as Mr Goldsmith submitted, the defendant would not answer appropriately. For example there was the following evidence: "Q. Ms Liu, you know, do you not, that your husband is actively involved in the Chinese Professionals club? A. INTERPRETER: He is a good man. Q. I'm sure but, Ms Liu, you know that he's actively involved in the activities of the Chinese Professionals club, don't you? A. INTERPRETER: Yes, because he has a kind heart, so he always help people to do something. Q. Ms Liu, he's been involved in the Chinese Professionals club for a number of years, hasn't he? A. INTERPRETER: Yes. Q. He has been involved since before 2011, hasn't he? A. INTERPRETER: Yes. Q. He had an official position in relation to the email group that was conducted by the club, didn't he? INTERPRETER: Sorry, say that again? Q. Ms Liu, he had an official position in the email group conducted by the Chinese Professionals club, didn't he? A. INTERPRETER: I don't know. Q. I'm sorry. A. INTERPRETER: I don't know. Q. Is that the answer? INTERPRETER: Yes, the answer is "I don't know". ... Q. Ms Liu, do you know what your husband did within the Chinese Professionals club? A. INTERPRETER: He has done a lot of things. Q. He's done a lot of things with the email group, hasn't he? A. INTERPRETER: I don't know. Q. But he told you, did he not, about things that he was doing within the Chinese Professionals club? A. INTERPRETER: I don't know, he didn't tell me. ... Q. Ms Liu, how do you know that he was doing good things within the club if he didn't tell you what he had been doing? A. INTERPRETER: Because when there's an event he will go and they have people and I will go to make some food for them as well." 83The last answer the defendant gave was criticised by Mr Goldsmith for being inconsistent with evidence that she had attended club activities of various types, where she was not making food. But I did not understand that answer to be a comprehensive one to a question addressed precisely to the types of club activities she attended. In particular, contrary to Mr Goldsmith's submission, I did not see it as an attempt to distance herself from the idea that she had attended many club functions.

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Mr Yu was her agent? 90On the assumption I did not find the defendant had sent the matter complained of, Mr Goldsmith attempted to have the defendant agree she had 'conduced' her husband to send all the emails. For example there was this evidence: "Q. Ms Liu, the first email which is the one marked with the letter "A", can you see it? A. INTERPRETER: Yes, I see. Q. I put to you that you discussed that email with your husband. Do you agree or you don't agree? A. INTERPRETER: I don't agree. Q. I put to you that you said to your husband that you didn't think that the topic referred to in the email was a pleasant topic. Do you agree or you don't agree? A. INTERPRETER: I didn't say this. Q. I put to you, Ms Liu, that the email which is the one marked with the letter "B", was sent by you or by your husband. Do you agree or you don't agree? A. INTERPRETER: No, its not me. Q. If you could now turn to the next email, which is the one marked with the letter "C". Can you see that email? A. INTERPRETER: Yes, I see. Q. You've seen that before, haven't you? A. INTERPRETER: No. Q. You'll see on the fourth line it's got, "To liunancy2005@hotmail.com. Do you see that? A. INTERPRETER: I see. Q. That was an email account that you used, wasn't it, Ms Liu.? A. INTERPRETER: You're lying, I don't have a email account. Q. Ms Liu, I put to you that you discussed that email with your husband, didn't you? A. INTERPRETER: No. Q. Then if you turn to the next email which is one marked "D". You see that that's an email from the group on behalf of liunancy. Do you see that? A. INTERPRETER: Yes, I see. Q. Yes, and you've seen this email before, haven't you, Ms Liu.? A. INTERPRETER: No. Q. Do you know who sent this email? A. INTERPRETER: No, I don't. ... Q. Ms Liu, I put to you that this email, which is the one marked with the letter "D", was sent by you from the liunancy email address that was operated by you. Do you agree or you don't agree? A. INTERPRETER: I don't have a email box. Q. I put to you, Ms Liu, that you discussed the content of this email with your husband, Mr Yu. Do you agree or you don't agree with that? A. INTERPRETER: No, I don't agree. Q. I put to you, Ms Liu, that this email was sent because you didn't approve of what was said in the email that's marked with the letter "C". Do you agree or you don't agree with that? INTERPRETER: I'm sorry, I have trouble understanding that. Q. I put to you, Ms Liu, that you sent this email, marked with the letter "D", because you didn't approve of what was said in the email marked "C".? A. INTERPRETER: I didn't send email. Q. But you knew it was sent, didn't you, Ms Liu? A. INTERPRETER: I didn't send email. Q. That wasn't my question. Ms Liu, you knew that the email was sent at that time, didn't you? Which was on 18 November 2011, on about that day you knew that the email was sent, didn't you? A. INTERPRETER: No, I didn't know Q. And, Ms Liu, if you could please look at the next email which is marked with the letter "E". You see that that's an email sent by the email group on behalf of Xiang Jang He. Do you see that? A. INTERPRETER: Yes I see. Q. You've seen that before, haven't you? A. INTERPRETER: No. Q. I put to you, Ms Liu, that you saw that on about 19 November 2011. Do you agree or you don't agree? A. INTERPRETER: No I don't. Q. Do you still have exhibit E in front of you Ms Liu? Do you see that email? Now, you've said, Ms Liu, you didn't send that email, that's correct A. INTERPRETER: Yes. Q. And you said you didn't know who sent the email. That's correct? A. INTERPRETER: Yes. Q. I put to you, Ms Liu, you sent it? A. INTERPRETER: No. Q. Alternatively, I put to you, that your husband sent it, following discussions with you. Do you agree or you don't agree? A. INTERPRETER: I don't know who sent it. Q. Ms Liu, I put to you that you sent the email following discussions between you and your husband in the same way that you and your husband discussed your statement about which I asked you this morning. Do you agree or you don't agree? A. INTERPRETER: No I don't agree." 91There is no direct evidence she authorised her husband to send any emails.

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The Netlog document 92On the adjourned hearing Mr Goldsmith produced a document from a social networking site called Netlog. There was no evidence about the site, as to how to join, whether someone can nominate someone else, and the like. On the face of the document an email address is required for someone to join. But there is nothing to suggest any emails are sent to or from the site. This document showed a photograph the defendant agreed was her, listing her hobbies, and her employer's name. The birth year recorded for her was incorrect, making her two years older than her actual age, and the day was also incorrect, although only by one day. 93Mr Yu said he had no knowledge of the site. The defendant could not explain how her photograph had got there. Mr Goldsmith saw great significance in the document. He submitted it proved she had an email account and the email address "liunancy2005" was for her benefit, thus demolishing Mr Yu's evidence that the address was purely for him to receive emails from the email group. 94In the absence of any evidence about how to join, how to send in a photograph and the like, especially given the birth date was wrong and suggested the defendant was two years older, I am reluctant to give the document the significance Mr Goldsmith urged for it. For all I know the site could have been set up by a fellow employee. The fact the day of birth was a day out suggests it may have been set up by a friend or someone who had celebrated her birthday with her. There was no evidence from the internet server to show who had control of the site, and, in particular, nothing directly to show the defendant or her husband had set it up. There was no evidence it had ever been used by the defendant. There was barely evidence anyone had ever gained access to the site. Mr Goldsmith complained when I raised the inaccurate birth date with him that "the plaintiff appears to being subjected to ... precise proof of everything." I do not accept that submission. The two errors, I consider, speak against the proposition that the defendant or her husband set up the site. This was not explored before me, but for all I know it was their Australian educated son. Although even he might be expected to have known his mother's date of birth. In any event it is not an email site, but a social networking site. 95Mr Goldsmith submitted the presence of this account on Netlog, showing a connection with the "liunancy" email address showed she had created it or participated in it or authorised it. Mrs Liu said she does not communicate by email with anyone, including people in China. There was no evidence she did communicate by email with anyone in China or anywhere else, other than her statements to Mr Cheng on 10 December 2011. I do not agree that this document provided any great strength for the proposition that the defendant had sent the matter complained of.

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Would "Liunancy" mislead? 100I did consider Mr Yu was hedging, for no apparently good reason, when asked whether he would expect someone receiving an email from an address with a name on it would assume it was from the person bearing that name. For example there was the following evidence: "Q. And Mr Yu, when you registered your email account in the name of George Yu, obviously you used your own name, that's correct? A. Yes. Q. And you used your own name intending to indicate that this was an email from George Yu the person, that's correct isn't it? A. Not necessarily. Well, the thing is when you create an email account, the registration give you a few minutes, a few seconds, actually whatever you want to give, that's really, that we call that as the email address or mailbox ID. That's just email address, it doesn't mean you have to refract your real identification. Q. But if you receive an email from me and it's got barry.goldsmith, you'll assume that that's an email from Barry Goldsmith? A. It might not, it might not. Q. I'm sorry? A. It might not be. Q. No, but you would assume that it would be wouldn't you? A. Well, it might not. As my, in my position, yes, in my position as email administrator I never trust anything in the email address because, email address is really, you decide how to give the name of email address. So as you are Barry you can really call your email address as say as nancy.goldsmith whatever, I can't really trust them. Q. No, you may not trust it but you would assume that it's an email from Barry Goldsmith wouldn't you? A. It may not be. Q. It may not be-- A. It may not be. Q. --but you would assume that it is, wouldn't you? A. Well, I won't trust that one. Q. And if you receive an email from vanessa.chou@gmail.com you would assume that's an email from Vanessa Chou wouldn't you? A. It might not. Unless this is Vanessa pass me this email address, "Hey, this is my business card, this is my email address," okay, I will trust that one. Q. You see, Mr Yu, I put to you that you're sending emails from George Yu would lead any readers of your email to be believe that it was from a person called George Yu. A. I don't think so because I tell everybody, "This is my email address," and they trust this one. Q. And I put to you Mr Yu, that by your sending out emails in the name of liunancy that it's reasonable to assume that any readers would believe that that email came from a person called Nancy Liu? A. I don't think so. Why not you believe the surname is Liu, why not can be Nancy L-I, surname is L-I, are you certain the surname must be L-I-U instead of L-I?" 101Then there was the following in relation to another email from the "liunancy" address: "Q. Mr Yu, do you agree or not agree that anybody reading this email would reasonably believe it came from a person called Nancy Liu? A. I don't agree with that one. As I mentioned to you, you can't just guess an email's owner's identification from email address. From this email for myself, if I see this email address, I would see this one could be Nancy Liu or could be Nancy Li and could be Nancyli or could be no Nancy. No Nancy at all because this really up to the email creator to give his favourite email address. It could be a person called John or could be a person called Peter. He can give this email address. Because for this club we don't create email address for the user, for a member. It's member, it's up to member that create it - to give the email address and pass to us and we add to the mailing list. So we can't control what's the email address is. We can't control this email address need be matched to the identification of the member. Q. And it's up to the member, as you've said, to create the email address? A. Yes. Q. And you created this and you used this with the intention of misleading the members, didn't you? A. I don't agree with that at all. I mentioned to you I create this email address many years ago. About 10 years ago and I have this one into mailing list at least four years ago. It doesn't make sense at that time I'm planning to plot to deceive your client many years later. It's not convincing. It's totally not in the truth. Q. And then if you please have a look at your email dated 18th November which is the one marked "D". A. Yes. Q. This is another email that you sent in reply to an email from Joy Xia, isn't it? A. Yes. Q. In this one, you say you make negative comments to Joy Xia, don't you? ... A. Well, yes. Maybe yes. Yes. Q. And you considered it to be an appropriate reply, didn't you? A. Yes. I think so. Q. And that was your personal opinion, wasn't it? A. Yes. Q. And you're writing to Joy Xia, a member, pretending to be Liu Nancy expressing your personal opinion, aren't you? A. I disagree with you. I don't have anything to pretending. As I mentioned to you, this is very normal discussion by members. I don't need to pretending anything. You know, from my first email, pick up present topic to talk about. Just very normal discussion. Even the second one in reply to Joy's email. I just say, "Don't be so sour and mean when talking. Just learn to be kind". I think it's quite normal discussion around members. I don't need to pretending anything. Q. If you have at a look at the email that's marked "E". This is an email from Xiang Jang, is it not? A. Yes. Q. It's an email from Xian Jang dated 19th November? A. Yes. Q. And it starts off, "Hi Nancy" doesn't it? A. It Professor - it's what he want to say. Yes. Q. Mr Yu, it starts off "Hi Nancy", doesn't it? Doesn't it? Yes or No? A. Yes. Q. Xian Jang, the very least, formed the view that the emails that we now know you've sent were coming from a person, a lady, called Nancy? A. I'm not sure what he thought. Q. Mr Yu, the email starts off "Hi Nancy". Are you seriously telling the Court that you believe that he didn't know or he wasn't of the opinion that your emails had come from a lady called Nancy? Is that what you're telling the Court? A. No. No. I just say I can't answer on behalf of Professor what his thought. Q. But it's obvious he thought that the emails were coming from Nancy? A. Could be, yes. Q. Yes? A. Yes. Q. It's obvious, isn't it, yes. And at no time, Mr Yu, did you reply to Xiang Jiang saying, "Dear Xiang Jiang, actually the emails are from me George Yu." You never did that, did you? A. As I mentioned, I will not, you know-- HIS HONOUR Q. I think that's a yes or a no? A. No. GOLDSMITH Q. And you continued to conceal the fact that liunancy was really you, didn't you? A. I don't need to conceal anything. Q. You continued to deceive the members, didn't you? A. I don't - I don't agree with you. Nothing to conceal." 102There was the following evidence (concerning the complaint he made about Mr Reagan Li) where I found his answer difficult to accept: "Q. And you used the Liunancy address for the first time to deceive the members into believing that this complaint was from someone else, didn't you? A. I disagree. Totally disagree with you. I mentioned to you yesterday. Well, I don't wish to use in my adviser's position, like, to give the official instruction to members you should change the topics of discussion. I will try to be a bit softer when using as an ordinary member can we change the topic of discussion. So that's why I used the ordinary member's account. ... Q. Mr Yu, do you agree or not agree that anybody reading this email would reasonably believe it came from a person called Nancy Liu? A. I don't agree with that one. As I mentioned to you, you can't just guess an email's owner's identification from email address. From this email for myself, if I see this email address, I would see this one could be Nancy Liu or could be Nancy Li and could be Nancyli or could be no Nancy. No Nancy at all because this really up to the email creator to give his favourite email address. It could be a person called John or could be a person called Peter. He can give this email address. Because for this club we don't create email address for the user, for a member. It's member, it's up to member that create it - to give the email address and pass to us and we add to the mailing list. So we can't control what's the email address is. We can't control this email address need be matched to the identification of the member." 103Mr Yu would not agree he had used the "liunancy" account to disguise the fact that it was he who was sending the emails. But I then took him to concede that he had. There was this evidence: "Q. What you were trying to do when you sent the emails from the Liunancy address, was disguise the fact that it was you who was sending the emails, isn't that correct? A. Not correct. Incorrect. I totally disagree with that. Q. And in case there were any responses or any issues, what you wanted to do was send a message to the members that the email was coming from your wife, that's why you used the email address, wasn't it? A. No. No. No. No. I totally disagree. This mailbox has nothing to do with my wife. And as I just mentioned that email response to Rupeng Zhou is nothing like, you know, offensive or try to using a disguising things. Because they just change topics. Very - what I say, just say, sir, can we talk something about present topics or something like that one. That's very general. I don't need to disguise myself. Q. Mr Yu, if you didn't need to disguise yourself, why did you disguise yourself? A. As I mentioned, I already mentioned to you, I don't wish to change topic in the power of advisor. I will prefer using as a general member of the club. For the club." 104Mr Goldsmith also submitted it was not credible to call the email address generic, as he at one stage did, and Mr Yu's denial it was otherwise was another example of his dishonesty. I agree it is an odd thing to speak of the address as generic, in the sense of referring to a class or group. He did not explain what he meant by generic.

[45]

Mr Yu did not know the plaintiff was keen to discover who sent the email 110Mr Goldsmith submitted that Mr Yu had been dishonest in saying (as he did to me) he had not known until the afternoon of 30 May 2013 that the plaintiff and his lawyers had been keen to find out who had sent the email. He relied on transcript including the following: "Q. Are you seriously saying that you didn't know until this afternoon that my client Ping Cao and we and his lawyers were not very keen to find out who sent the email? A. I don't think so. That is very misleading question. Maybe you are concerned about that one but you never asked me. Q. We never asked you. Are you saying that you never understood until this afternoon that we wanted to know, that is Ping Cao and his lawyers, are you saying that you didn't understand that we wanted to know who was the registered owner or user of that email address? A. This is misleading question, yes. Q. Please answer my question? A. Well okay, if you really want to understand, want to know who is real owner why not go to the club to check the identification. If you go to club and seek permission from the committee and the committee will forward a request two minutes later, we have given this information to you. So why not you follow this procedure, it is quite easy. Q. You were present in Court on 14 February 2013? A. I'm President of? Q. You were in Court on 14 February 2013 when the matter was before her Honour Gibson J, weren't you? A. Yes. ... Q. And there was a discussion with her Honour about the question of publication, who published the email, do you recall that? A. I can't recall that one, not in my memory. Q. On that date her Honour noted that the significant dispute in the case was on the question of publication, do you recall that? A. I can't recall that. There is a reason for that one because at that meeting my request to present my wife was refused by Gibson J so it means I can't stop anything and I just pretty much sit there silently. Q. Her Honour allowed you to speak didn't she? A. Only after permission. In my memory I have to raise my hand, I have to get permission from Gibson J and I can give speech. That is when she is ready for me to do so. Q. On 14 February 2013 her Honour ordered my client, Ping Cao, to serve statements on the question of publication. You recall that don't you? A. Yes. ... Q. Mr Yu, on 14 February her Honour ordered the plaintiff to serve statements limited to the issue of publication because from your wife's point of view the publication issue was the significant issue in the case, wasn't it? A. Not sure. ... Q. Mr Yu, you recall that discussion and you recall her Honour's orders, don't you? A. Some, yes. In my memory I recall - yes, we call the defendant to justify identification, yes, something like that one. Q. Yes. A. Yes. Q. All came back to the basic question, who sent or who published the email. A. Yes. Q. That's been a topic that's been raised many times before her Honour, Judge Gibson, hasn't it? A. That's the first time I saw Judge Gibson, I can't say how many times from her. Q. But it was raised on subsequent occasions, wasn't it, before her Honour? A. I don't think so. As I mentioned in the first few court hearing we just be there for five minutes, and then your assistant just say, "We request to reschedule", and have me to sign on the request, and then we walk away. I don't think we talk about that, those publication thing. Q. Mr Yu, on 14 February, this is after you had already been to court on four occasions to represent your wife. A. I don't agree I have been allowed to represent my wife, even I wished to because my wife's English is no good. I try to represent my wife but never be granted, and only time I've been granted from Judge Gibson say I can sit there and do some translation for my wife. That's all I have been permitted, so I deny I have been granted to represent my wife. If you can show me any order or whatever things to justify. Q. Okay. Let me to this step by step with you, Mr Yu. The first time the proceedings were before the Court was on 28 September 2012, and you represented your wife on that occasion. A. As I mentioned my wife was sick at that time, and I sent an email to the Court to say my wife was sick and I would try to be there on behalf of my wife. I've been there and, you know, it just start - okay. From memory, I didn't go to the Court hearing because your assistant approach me, give me a order sought, say you wish to reschedule, have me to sign on the form. So I agree, because you want to reschedule, okay, no problem from me, I just sign on the order sought, and I didn't go to the Court hearing, your assistant present that order sought to the Court hearing. Q. Mr Yu, you attended a court on 28 September in order to represent your wife and as part of that representation you signed a document of the type that you've described. That's the case, isn't it? A. As I just mentioned, I even didn't go to the Court because it's outside the Court your assistant check with me, try to reschedule the Court hearing. So I agree with that one, so I didn't go to hearing, I trust your assistant to do all the things. So I didn't go to the Court. ... Q. Mr Yu, you then attended a court on 2 November 2012 to represent your wife, didn't you? A. The same, my wife was sick at that time and I sent an email to the Court, I try, request to represent on behalf of my wife, I didn't get any approval or confirmation saying I can represent for my wife. Q. But you attended at court to represent your wife, didn't you? A. I attended court but, as I say, I never receive any confirmation to say I can represent for my wife. Q. Then you attended again on 1 February 2013. Do you recall that? A. Yes. The same situation, I request, I request, I sent an email request to represent on behalf of my wife and I didn't get any confirmation or permission from the Court say I can represent for my wife." 111Mr Yu's answers, while of an uncooperative kind, were not what I would regard as dishonest. 112Mr Yu did seem to me however to regard the enquiry into the identification of the owner of the "liunancy" email account as a form of sport. When he was challenged again about why he had not, when asked, given information about the email account there was this evidence: "Q. But Mr Yu are you seriously telling the judge that if a registered user gives consent to the disclosure of his or her information, that information can't be disclosed? A. That he wish to do himself I have no objection but I won't do this job for him. Q. Because, adopting your answer, you could have consented earlier on when I asked you who owned the email address because this is your email address, isn't it? A. First I can't disclose everyone, including myself. Second he never ask me who own this mail box from my memory. Nobody, including yourself, nobody ask me who own this mail box or who found this message. Q. Are you seriously saying that you didn't know until this afternoon that my client Ping Cao and we and his lawyers were not very keen to find out who sent the email? A. I don't think so. That is very misleading question. Maybe you are concerned about that one but you never asked me. Q. We never asked you. Are you saying that you never understood until this afternoon that we wanted to know, that is Ping Cao and his lawyers, are you saying that you didn't understand that we wanted to know who was the registered owner or user of that email address? A. This is misleading question, yes. Q. Please answer my question? A. Well okay, if you really want to understand, want to know who is real owner why not go to the club to check the identification. If you go to club and seek permission from the committee and the committee will forward a request two minutes later, we have given this information to you. So why not you follow this procedure, it is quite easy."

[48]

The reason for using a different email address 117Mr Goldsmith invited me to disbelieve Mr Yu's evidence that he had started to use the "liunancy" address so he could express views as someone not associated with the club's management, given he had the role of adviser to the committee at the time. He put to Mr Yu a series of emails sent at about the same time as the matter complained of and its predecessors in the chain. In those other emails Mr Yu had expressed strong views about matters to do with China, such as that the western media had given the world a false picture of the number of people killed in Tiananmen Square in 1989. In one at least, (part of Exhibit S) he made it plain he was expressing his views as an ordinary member. Thus Mr Goldsmith submitted he did not need another email address to express views as an ordinary member. Before the contents of Exhibit S came to light, he explained his position as follows: "Q. And you used the Liunancy address for the first time to deceive the members into believing that this complaint was from someone else, didn't you? A. I disagree. Totally disagree with you. I mentioned to you yesterday. Well, I don't wish to use in my adviser's position, like, to give the official instruction to members you should change the topics of discussion. I will try to be a bit softer when using as an ordinary member can we change the topic of discussion. So that's why I used the ordinary member's account." 118After Exhibit S came to light (after the hearing was adjourned) and the apparent contradiction was put to him, this was said: "Q. And what I'm putting to you, Mr Yu, is if that evidence was true, and you wanted to write as an ordinary member, you would have said that in an email from George Yu, from George Yu's email address, and you would have said, "I have comments to add as an ordinary member," I'm putting to you that's what you would have done, because that's what you did do on 13 June didn't you, Mr Yu? A. That's right. Q. So, I put to you again, Mr Yu, that the evidence that you gave to the court in May, that you decided to write from the liunancy address because you didn't want your email to appear to be an instruction from an official is simply nonsense? A. No, I don't agree, that's not contradiction, right, I got your point you said - to say in your - as an ordinary member I can only send from George Yu, and I mentioned that way as an ordinary member, and I can't send from another mailbox ..(not transcribable).. because I can use my own George Yu account and mention that one as an ordinary mail- You make things too absolute. There's no contradiction between this one. I can send from my personal George Yu account and mention that one as ordinary, but it didn't say I can't send from my - another mailbox. There's no contradiction." 119Mr Goldsmith put to me club members would not have paid much regard for the views of an unpaid adviser to the committee, so there was no need for him to disguise himself, (as he at one stage agreed he had), and in any event the first "liunancy" email was polite and inoffensive and not of a type for which any disguise had been needed. That may well be correct. No club members expressed a view on the matter apart from Mr Yu. But I see force in Mr Goldsmith's submission. 120Mr Goldsmith also pointed to what he submitted was contradictory approaches in the emails. The first in the series sent from "liunancy" discouraged discussion. Ones from his own email address (E.g. No 6 in Exhibit 5) encouraged people to express different opinions. Thus different character traits came from the different addresses. Mr Goldsmith submitted this strongly supported the proposition that the "liunancy" emails had not been sent by Mr Yu. I consider there is some force in that argument. But to my observation of him Mr Yu is a man quite capable of being the author of all of the emails from "liunancy" as well as from his own account. Further, the concept of using different "chat" venues on line for political discussion was raised by Mr Yu in an email in Exhibit S of 13 June 2011, where he said, inter alia: " CPCA will continue to protect it's members' speech freedom. CPCA_SYD_TALK is used ... as a discussion forum, but it has many limitations. It is not the best solution to keep using group email as a forum. Now that CPCA has built its dedicated forum ... it would be more appropriate to move the debating topics like political discussion to CPCA forum..." 121Mr Goldsmith also made the point that whereas those sent in Mr Yu's name had a political or military context, those from "liunancy" did not. That is also a point I take heed of.

[50]

Some additional submissions 123Mr Goldsmith submitted that if I found, contrary to his submission, that Mr Yu had sent the emails from the "liunancy" account, I would nonetheless find he had sent them for his wife. The first in the chain expressed the wish that some topic other than one reflecting poorly on China would be discussed: the defendant did not like people criticizing China: that is where her heart lay, she was protective of her birth country: thus there was a good explanation for her to have asked him to send the email for her. 124Mr Yu agreed when cross examined he was very protective of his wife, and Mr Goldsmith submitted that had he really been the author of the matter complained of it is unlikely he would not have conceded at one or other of the interlocutory hearings that he had been its author. That would have helped his wife. There is force in that argument. But equally, if he knew the wrong defendant had been sued, he was, I think, entitled on her behalf to take advantage of that fact. 125Mr Goldsmith submitted that I would find they had discussed the first email, that he had sent it for her, and all the later ones too they had then discussed, and they were also sent by him for her, including the matter complained of. He submitted I would find they had been joint efforts. Given Mr Yu's evidence that he had prepared a statement for his wife for the proceedings, and the two defences, and had worked with his wife on these documents, putting her words into them but doing so at her request, it would be consistent that the emails from "liunancy" were prepared in the same way. However I do not think it necessarily follows from the fact that there had been a joint effort in preparing defence documents that there was a joint effort to send the email. Certainly, the defence documents which her husband prepared were written in English, a language I have found the defendant does not know. Whereas the emails were written in Chinese. However, it is of course possible.

[55]

Consideration of the evidence as to who sent the email 131Mr Yu said he had registered the email address nearly ten years ago. I have observed that there was no evidence from any service provider, or from any of the club's records, to contradict that. What those records would have shown is a matter of speculation. 132As I have observed, I found the defendant an impressive, highly credible, witness. 133As unsatisfactory as Mr Yu was in the various ways I have described, I consider he is far more likely to be the author, by reason of his involvement in club activities, especially club politics: he is a past president and there is a history between him and the plaintiff: he is highly literate and educated, his wife is in my view relatively unsophisticated. 134I find the defendant's explanation for her lie to Mr Cheng highly persuasive, having observed her and Mr Cheng, who, like Mr Yu, is highly educated and articulate. 135I consider Mr Cheng read more into the words used by the defendant than was warranted: until that conversation he, the plaintiff, and others had seen Mr Yu as the author of emails emitting from the 'liunancy' email address. 136As between the defendant and Mr Cheng I prefer the evidence of the defendant where it conflicts. She has a more obvious axe to grind than does Mr Cheng, it is true; but I have noted my concerns about his credit. 137As between the defendant and Mr Li I prefer the defendant's evidence. This case is different from that of Mr Cheng, where the defendant admitted having some conversation with him. The defendant denied any conversation at all with Mr Li. For the reasons I expressed earlier about my reservations concerning Mr Li, I prefer her evidence that she did not say to him the words he attributed to her. 138The statement prepared by Mr Yu which the defendant signed, in which she admitted saying she used the email address, did not, contrary to Mr Goldsmith's submission, strengthen the case that she sent the email. She did not in the statement admit she had sent the email. She was merely conceding what she told me on oath had been said by her on 10 December 2011. The witness statement (assuming it was called for, which of course it was not) did not call for an explanation for her statement to Mr Cheng, unlike the evidence she gave on oath before me, on which she was cross examined. Thus it does not necessarily reflect against her that she did not give that explanation in her statement. 139As I have observed, there is no evidence from the email provider or from the club as to who had applied for the "liunancy" address or when, as to who owned it, as to when it was first used, or as to what other emails if any were sent from or to it. There was evidence that four emails were sent from that address. For all I know they were the only ones ever sent from that address. That is consistent with the use of the address by Mr Yu for the purpose of changing the topic without seeming to be giving a command from a position of authority in the club. 140The defendant has consistently denied on oath since the statement of claim was served on her, that she sent the email. 141Mr Yu has sworn on oath he sent the email. Although there were problems with his credibility, I accept his evidence on that issue, and I think it probable he did send it. 142There is no direct evidence Mr Yu sent the email at the behest of the defendant or in collaboration with her. It is possible, but far from probable. The case based on the principle in Webb v Bloch (1928) 41 CLR 331 is not made out.

[59]

The plaintiff's evidence 150The plaintiff has a most impressive curriculum vitae, and I am satisfied he has had a distinguished career, both before and since the publication. He has been involved in many community activities, and was and I am satisfied, is, very highly regarded in the community. As had the other club members called by the plaintiff, he had come to Australia after the Tiananmen massacre in 1989. He had since become an Australian citizen. 151He was an original member of the club and has always been a member. As has Mr Yu, he has served as the club's president. He told me that when new members joined, they would be asked to provide their email addresses. They would be asked whether they wanted to join a conversation email group. Some did join that group and some did not. The number in the email group varied, as did the club's membership numbers. I took him to say there was not a great difference in number between the sizes of the email group and the membership group. In 2011, he said, the club had over 200 members. 152He said he had met the defendant and her husband in 2004 and had seen each of them since then. He had read the matter complained of on the day it was sent. The day of its receipt coincided with his attending an interview for an important job. He could not understand why it had been sent. He was totally shocked, and felt sick. He did not know who had sent it. He could see that its contents had nothing to do with the topics which had been discussed in the emails leading up to it. He understood it to say he had betrayed a friend, and had dishonestly been two faced. He felt outraged, but also sad. He said it was not in his nature to be manipulative. He understood it to refer to the 2008 election. He was appalled by what had been said about him. 153He wanted an apology, so had engaged his current solicitors. He had instructed them to prepare a "concerns notice". He decided that the email had come from Nancy Liu and had his friend, Mr Cheng, give her an envelope containing the notice. When he received no response he had felt very angry. 154A number of people had spoken to him about the email. They had asked if its contents were true, or what his problem had been with "Nancy". Then, early in 2012, there were attempts made to resolve things, but they had got nowhere. That had stressed him more. 155He said the proceedings had taken their toll, both on him and his marriage. He said he had become grumpy with his wife, and she had suggested he should become less involved in community activities. He felt the case had affected him at work. Although he had received an eminent award for his professional work, he had felt ashamed, as he felt he had had to delay certain projects by reason of this case. 156Then, as the defendant denied she had been the publisher, his solicitors had served a subpoena on a Microsoft company to produce its records of email address holders. But it had responded that the records were not kept by it, but a different Microsoft company, and that had made him feel frustrated. 157Then the matter had been case managed by Judge Gibson, and she seemed in the right position to hear the case, but two days before the hearing she had disqualified herself from hearing it after the defendant asked her to. That had left him confused and miserable.

[63]

Section 33 Defence 161S 33 of the Defamation Act 2005 (NSW) provides: "Defence of triviality It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm." 162The defendant submitted that in the circumstances of publication, in the context of a group of email members involved in robust debate about different topics, this was a trivial matter, and the plaintiff was unlikely to have suffered any harm. 163In Papaconstuntinos v Holmes a Court [2009] NSWSC 903 at [104] to [105], McCallum J said: "[104] As noted by the Court in Morosi, the defence is directed to trivial actions for defamation, such as "where a slightly defamatory statement is made in jocular circumstances to a few people in a private home": Morosi at 800D. ... [105] It must be borne in mind that the defence requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all: King and Mergen Holdings v McKenzie (1991) 24 NSWLR 205 at 309G per Mahoney JA." 164Mr Rasmussen relied on Szanto v Melville [2011] VSC 574 at [155], dealing with a relevantly identical provision. That paragraph is as follows: "[155] That provision has been the subject of a number of decisions in New South Wales. In Chappell v Mirror Newspapers Ltd, the defendant conducted its case on the basis that the plaintiff had a debased reputation, and that, accordingly, he was unlikely to suffer further harm as a consequence of its publication. The trial judge left the defence to the jury on that basis. The plaintiff successfully appealed the verdict of the jury. The New South Wales Court of Appeal held that the phrase "the circumstances of the publication" did not encompass the nature of the antecedent reputation of the plaintiff. In reaching that conclusion, Moffitt P (with whom Samuels JA and Priestley JA agreed) analysed the effect of s 13 in a passage which merits careful examination. The following points, about the provision, were made by his Honour: (1) The defence is directed entirely to the circumstances of the publication. (2) In particular, the central issue concerns the "... quality of the publication in respect of its proneness to cause harm". The inquiry is directed to the moment of publication. "Actionability does not depend upon an inquiry as to what thereafter happens and in particular whether or not harm in fact probably resulted from the publication". (3) It is important that full force be given to the words "the circumstances of the publication". There should not be substituted an inquiry whether "in all the circumstances" the plaintiff would probably not suffer harm. (4) The content of "circumstances of the publication" must admit of some context, but only such context as would serve to define the circumstances of the publication, and their relevant operation in relation to the likelihood of harm. (5) "Publication" is the act of communication, by which the defamatory imputation is conveyed to a recipient of it. Thus, the "circumstances of the publication" include any special circumstances of the recipient, such as his or her relationship to the defamed party." 165To make good the proposition that s 33 provided a complete defence Mr Rasmussen took me carefully through the email chain to show there was a robust discussion already taking place, where the plaintiff gave as good as he got, where he gave a sharp rebuke to "Nancy", the participants were not shrinking violets, and the matter complained of did not come entirely out of the blue. Thus people such as the plaintiff who participated in the discussion were unlikely to suffer harm. 166I do not consider in the circumstances of publication here, namely to a large number of people in a club email group, that the defendant has established on the balance of probabilities that the publication was trivial, or unlikely to cause any harm at all in the circumstances in which it was published. The facts here do not support an argument such as in Stanton v Fell [2013] NSWSC 1001 at [140] where Simpson J found a defamatory email had been published only to people already fully aware of the email's subject matter, and who knew the plaintiff well and whose opinions of him were held highly unlikely to have been affected by the publication. This defence must fail.

Cao v Liu

At a glance

Court

Decision date

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Judgment (66 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)