Cao v Liu

Judgment 1The plaintiff by statement of claim filed on 3 September 2012 brings proceedings for defamation for an email, addressed to members of an internet forum group, published on or about 20 November 2011. 2The statement of claim pleads the following imputations: (a)The plaintiff engaged in betrayal (the matter in its entirety and particularly lines 10-13). (b) The plaintiff sought to falsify election results (the matter in its entirety and particularly lines 14-18). (c)The plaintiff is secretly manipulative (the matter in its entirety and particularly lines 14-18). 3The defence filed on 26 September 2012 denies that the defendant is the owner of the mail box from which the matter complained of emanated, but otherwise pleads no other substantive defence. 4The plaintiff is not named in the matter complained of. Paragraph 3 of the statement of claim sets out only that the matter complained of was published "of and concerning the plaintiff" and that this was "a fact known to readers of the forum group by virtue of extrinsic facts". Those particulars of extrinsic facts consist of a list of emails dated 17 to 19 November 2011, none of which has been published by the defendant, and their connection to the extrinsic facts is unexplained. As this does not comply with requirements to plead identification (Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis Australia) at [5115]-[5155]; Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192) and the persons to whom these identifying particulars were known, I have made orders for the provision of particulars of identification in an amended statement of claim. I have also made orders for the provision of statements on this issue, to facilitate the leading of this evidence at the hearing. 5These proceedings have not been the subject of any legal argument or case management other than orders made in accordance with consent timetables. The defendant has never appeared in court. When the matter was first in the Defamation List (29 September 2012), there was no appearance for the defendant, and the matter was adjourned. It was adjourned again on 19 October 2012, with the Defamation List Judge noting the defence had only been received by the plaintiff's solicitors the day beforehand. On 2 November 2012, when these proceedings were next listed for directions, Mr Yu, the defendant's husband, appeared on her behalf. He provided the court with a letter stating that his wife was ill, and that she had authorised him to represent her. 6There was a further adjournment to 1 February 2013, on which date these proceedings were set down for hearing, with a two-day estimate. On that occasion, Mr Yu again appeared on behalf of his wife. This time, no explanation was given as to his entitlement to do so. 7My associate wrote to both parties to arrange today's directions hearing date in relation to the conduct of that hearing. These proceedings have been listed for hearing on 21 May 2013 before me. 8Mr Yu replied to my associate's letter, which required the defendant to attend court personally, stating that he would appear on behalf of his wife in these proceedings. The solicitors for the plaintiff wrote a letter in reply, dated 11 February 2013, in the following terms: "We refer to recent e-mails from and to the Associate to her Honour Judge Gibson. We note that you are proposing to appear on behalf of your wife, the defendant, this Thursday and are also proposing to appear on her behalf at the final hearing of this matter and which is listed for 21 - 22 May 2013. Rule 7.1(1) of the Uniform Civil Procedure Rules 2005 provides that proceedings may be commenced and carried on either by a solicitor acting on behalf of a natural person or by the person himself or herself. It is our contention that the law is clear that you have no natural right to appear in these proceedings on behalf of your wife. Notwithstanding that Rule, we accept that there is legal authority which provides that it is possible for the Court to grant leave to you to appear on behalf of your wife. However, it is our contention that leave should only be granted in exceptional circumstances. Accordingly, would you please note that our client will object to your seeking to appear on behalf of your wife. If you wish to do so, notwithstanding this letter, then your wife is invited to file any motion and supporting affidavit. Subject to our seeing any material filed in support of the motion, we anticipate that we will be instructed to oppose it. If necessary, we shall produce this letter to the Court this Thursday. In order that her Honour is aware that this issue is likely to arise, we are taking the liberty of forwarding a copy of this letter to the Associate." 9Mr Yu reiterated his intention of appearing on behalf of his wife. This is on the basis that his wife's health condition "cannot sustain the court hearing" and that he had represented his wife in the the Defamation List. He states in correspondence that: "my wife does not have the full details about the case proceedings and progress as I have, so in the interests of justice the defendant should be allowed assistance and represented [sic] by her husband who has more information and better understanding of the case." 10In the course of this correspondence, the solicitors for the plaintiff also sought confirmation from Mr Yu that there was no objection to the accuracy of the translation relied upon by the defendant. Mr Yu replied that as his wife denied publication, the question of the accuracy of the translation was not one upon which she was obliged to express an opinion. 11This does not augur well for the conduct of the hearing. Whether or not the translation accurately reflects the matter complained of is a matter of some importance (Lee v Kim [2006] NSWCA 384).