The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu

District Court of NSW|2019-08-20|Before: Levine J

Inasmuch Community Inc v Bright [2006] NSWCA 99 Jenman v McIntyre [2013] NSWSC 1100 Katschke v Gray [2010] EWHC 690 Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 Kuligowski v Metrobus (2004) 220 CLR 363 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Liu v The Age Company Limited [2016] NSWCA 115 Makhoul v Barnes (1995) 60 FCR 572 Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130 Ramsay v Pigram (1968) 118 CLR 271 Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies [2011] NSWSC 1445 Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB) Smith v ADVNPic [2008] EWHC 1797 Templar v Britton [2013] NSWSC 1827 The Age Corporation Ltd v Beran [2005] NSWCA 289 The Buddhist Society of Western Australia Inc v Bristile Ltd & Anor [2000] WASCA 210 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2017] NSWSC 1658 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 2) [2018] NSWSC 114 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 3) [2018] NSWSC 823 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 4) (Supreme Court of New South Wales, McCallum J, 8 June 2018, unreported) Trkulja v Google Inc (2018) 356 ALR 178 Waterhouse v The Age Company Ltd [2011] NSWSC 159 Wollongong City Council v Papadopoulos [2019] NSWCA 178 Texts Cited: Ireland, J., "Defamation 2.0: Facebook and Twitter" (2012) 17 MALR 53 Roopani, D., "The scope and content of a 'publication' on the internet for the purposes of defamation law" (2015) 20 MALR 33 Category: Procedural and other rulings Parties: First Plaintiff: The Sydney Cosmetic Specialist Clinic Pty Ltd Second Plaintiff: Lee Siew Yi First Defendant: Yiwen Hu Second Defendant: Valgrow 1 Pty Ltd trading as LJ Hooker (Burwood) Third Defendant: Lijue Ma Fourth Defendant: Qiong Yan Representation: Counsel: Plaintiffs: Ms G Rubagotti First Defendant: In person Second Defendant: Mr R Potter Third Defendant: Mr M Polden Fourth Defendant: No appearance

Solicitors: Plaintiffs: Juris Cor Legal First Defendant: In person Second Defendant: Carter Newell Third Defendant: United Lawyers Fourth Defendant: No appearance File Number(s): 2017/180689 Publication restriction: None

Introduction

These are applications by the parties in relation to the form and content of defamation proceedings commenced in the Supreme Court of New South Wales on 14 July 2017.

The plaintiffs bring defamation proceedings in the Supreme Court

The plaintiffs, a company providing medical services and its director, commenced proceedings against four participants in a WeChat group comprising of approximately 495 to 497 members named "Sydney General Housing Rental Association".
The pleadings were poorly drafted. The defamatory publication was not attached to the statement of claim, which simply reduced a series of statements translated from Chinese into English for each of the defendants, from which one set of imputations was then distilled for each defendant. As the name "Dr Siew Yi Lee" did not appear in the Chinese text (where the pinyin "Li Xiao Yu" was used by the participants to discuss the doctor in question), particulars of identification and of extrinsic facts were supplied. Like the imputations pleaded, these particulars were set out in relation to the whole of the WeChat group publication, and not in relation to each of the statements by the respective defendants.
None of these problems were able even to be identified when the claim was listed for the first time in the Supreme Court Defamation List on 14 July 2017, due to the unreadiness of the parties.
After this unhappy start, the proceedings continued to be conducted in much the same manner. On 22 September 2017, the plaintiffs were granted leave to file an Amended Statement of Claim, but only in relation to an error as to the name of the second defendant (The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2017] NSWSC 1658). The other significant errors in pleading and particularisation remained in the pleadings.
By 1 December 2017, the plaintiffs had still not served the fourth defendant and issued a subpoena for information in relation to her whereabouts, as well as an application for an extension of time for service. A further application for an extension for service on the fourth defendant was filed on 14 December and time for service was extended to 15 April 2018: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 2) [2018] NSWSC 114.
By 6 February 2018, the significant errors in the statement of claim had become apparent and a proposed further amended statement of claim was served. On 16 April 2018, the plaintiffs filed a notice of motion seeking leave to amend the statement of claim and to correct the fourth defendant's name. The Supreme Court issued a notice of listing for the hearing of arguments on 20 April 2018 in relation to the 16 April 2018 notice of motion.
On 11 May 2018, leave was granted to the plaintiffs pursuant to s 65(2)(b) Civil Procedure Act 2005 (NSW) to correct the name of the fourth defendant to Qiong Yan: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 3) [2018] NSWSC 823. On 8 June 2018, almost a year after the proceedings had been commenced, the matter was referred for a court annexed mediation. The proceedings were stood over to 14 September 2018.
On 14 June 2018, McCallum J made the following orders in chambers by consent: 1. Pursuant to rule 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) the requirement for service by hand on the fourth defendant be dispensed with, and that in lieu thereof service of the originating process be deemed to have been effected on the fourth defendant by email on 11 April 2018.
Even with a mediation being made available, the parties were not able to ready themselves. Extensions of time for mediation were granted over a series of court hearing dates including 5 October and 30 November 2018, with the mediation to be held on 31 January 2019 with an estimate of half a day.
The matter did not settle at mediation and the plaintiffs issued a subpoena to the second defendant for rental lists and copies of emails. The relevance of this subpoena to the issues in the case is unclear. The plaintiffs did, however, issue a subpoena for a copy of the full WeChat conversation from Wang Lawyers Pty Ltd, which meant that at last the full text of the matter complained of was available.
The problem for the defendants is a familiar one in defamation claims arising from social media publications, namely one of the parties represented himself, by solicitors who did not understand the issues and/or were not represented at all. At all relevant times, the first defendant appeared for himself and the second and third defendants were represented by solicitors who appear to have simply consented to orders; the fourth defendant was, it would appear, unserved for almost a year.
Competent case management of proceedings conducted in this peripatetic way is an impossibility for any court. McCallum J's concerned attempts to case manage the proceedings to the next stage (which included an early referral to mediation) are apparent from the transcript of the directions hearings. The failure to proceed further is entirely the responsibility of the parties, and in particular of the plaintiffs.

Transfer to the District Court

It was while these proceedings were in this unsatisfactory state that the matter came before Hoeben CJ at CL on 22 February 2019. His Honour made the following orders: 1. Stood over to Friday, 22 March 2019. 2. On that occasion, the plaintiff is to show cause why the matter should remain in the Supreme Court.
On 22 March 2019, Hoeben CJ at CL transferred the proceedings to the District Court. The District Court received the Supreme Court file on 5 April 2019, on which date the District Court registry listed the proceedings for 2 May 2019.
Before the first return date, I had the benefit of reading transcripts of the proceedings in the Supreme Court. I shared McCallum J's concerns as to the way in which the case was being conducted. On the Defamation List first return date of 2 May 2019, I stood the matter over to a non-Defamation List date for case management and made the following orders: 1. Note the plaintiff is to advise the court as to whether the fourth defendant has been served. 2. Matter listed as a special case conference on Tuesday 7 May 2019 before Gibson DCJ, on that date the parties must be able to advise the court as to the following: 1. The deletion/removal of the fourth defendant from these proceedings; 2. An agreed form of the matter complained of or, if no agreement can be reach, an argument as to the form of the matter complained of; 3. Explanations of delay relating to the history of these proceedings since June 2017. 1. Costs reserved.
On 7 May 2019, after hearing at length from the parties, I made the following further orders: 1. Matter stood over to the Defamation List on Thursday 16 May 2019 at 9:00am for further directions. 2. Direct the plaintiff to notify the fourth defendant of the next directions hearing date and to notify the fourth defendant of court orders for as long as these proceedings are maintained against the fourth defendant, until such time the fourth defendant files an appearance. 3. Costs reserved.
On 16 May 2019, I made additional orders: 1. Each of the defendants write to the plaintiffs outlining any objections to the Further Amended Statement of Claim by 22 May 2019. 2. The plaintiffs to file and serve any Second Further Amended Statement of Claim by 4 June 2019. 3. Each of the defendants file and serve by 25 June 2019: 1. any application in relation to the Further Amended Statement of Claim or to any Second Further Amended Statement of Claim served in accordance with Order (2), together with affidavits in support and submissions (not to exceed 5 pages); or 2. in the event that no application under Order 3(a) is made, their Defence. 1. The plaintiff to file and serve any affidavits in support and submissions (not to exceed 5 pages) in response to any application made under with Order 3(a) by 30 June 2019. 2. Matter stood over to the Defamation List on Thursday 1 August 2019 for directions or argument. 3. Costs of today reserved.
There was non-compliance by the plaintiff and on 20 June 2019 I made the following orders: 1. The time by which the plaintiffs are required to file and serve the Second Further Amended Statement of Claim be extended by four weeks to 8 July 2019. 2. Each of the defendants file and serve by 30 July 2019: 1. any application in relation to the Second Further Amended Statement of Claim or to any Second Further Amended Statement of Claim served in accordance with Order (2), together with affidavits in support and submissions (not to exceed 5 pages); or 2. in the event that no application under Order 2(a) is made, their Defence. 1. The plaintiff to file and serve any affidavits in support and submissions (not to exceed 5 pages) in response to any application made under with Order 2(a) by 5 August 2019. 2. Matter stood over to the Defamation List on Thursday 8 August 2019; on that date, if the pleading defects have not been rectified, an application for summary dismissal may be brought by the defendants. 3. Costs reserved. 4. The plaintiff is to notify the first and fourth defendants of these orders and on the next occasion, if the first and fourth defendants are not present or represented, orders may be made in their absence.
On 1 August 2019, I specially fixed the hearing of the defendants' applications to 20 August 2019.
Undeterred by the prior history of delay in these proceedings, the plaintiffs brought an application for adjournment on 15 August 2019, which I refused.
I heard the defendants' applications in a special fixture on 20 August 2019 and reserved judgment. Unfortunately, when my associate notified the parties of my intention to hand down judgment on 11 September 2019, this resulted in two further unsolicited submissions, apparently from the plaintiffs, to the court (Wollongong City Council v Papadopoulos [2019] NSWCA 178). As these communications were not sent to the defendants or their legal representatives, I propose to disregard them.
The above procedural history demonstrates incompetence and delay which no amount of careful case management by McCallum J, Hoeben CJ at CL and myself has been able to resolve. It also raises larger questions of the efficacy of a remedy for damage to reputation where proceedings are conducted in such a fashion, but that is an issue for another day.

The applications before the court

The first to third defendants seek orders striking out the obviously defective statement of claim.
The second defendant, by way of notice of motion, also seeks orders as follows: 1. Order under UCPR 14.28(1) that the second further amended statement of claim filed 7 August 2019 be struck out, either in whole, or as to paragraphs 8, 9, 10, 11, 14, 15, 16, 17, 19, 20, 21, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 47, 48, 49, 50, 45C and 45D. 2. [No longer pressed] 3. Order under UCPR 13.4 that the proceedings as against the third defendant be dismissed, and judgment be entered for the third defendant against the first and second plaintiffs. 4. Such further or other orders as the court thinks fit. 5. Costs, including costs of and incidental to this application.
The third defendant primarily seeks a strike-in application to restore the whole of the text of the WeChat conversation be pleaded as relevant to the meanings to be distilled for each of the defendants (a difficult application to make having regard to Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850).
The first defendant, who remained self-represented, left the conduct of the hearing before me to Mr Potter and Mr Polden.

The structure of the WeChat conversation and of the matters complained of

The matters complained of are extracts of a WeChat message group which is conducted in the Mandarin Chinese language (with simplified characters), for which there is a standardised pinyin. As a result of standardised pinyin in Chinese dictionaries and grammar, a name such as "李小瑜" has a standardised phonetic name of "Li Xiao Yu", which appears in English-based pinyin on several occasions in the course of the post, in the form of a rolling script.
This WeChat group is, as its name connotes, a discussion group about real estate matters, which is why organisations such as LJ Hooker Burwood, the second defendant, participate in it.
The second plaintiff, a medical practitioner employed by the first plaintiff, is also a member of this group (under the name "Sunshine"), although her actual name and occupation would, it appears clear, not have been known to any of the other participants in the discussion group.

The first matter complained of

On 18 June 2016 at 11:36am, the first plaintiff, according to the translation of the WeChat conversation, posted an advertisement with the heading "After a nose job, you still do not look good on camera because of a short chin". This advertisement names the first plaintiff but not the second plaintiff. A member of the group responded, "There are too many plastic surgery ads", while another member added, "It does not look like a formal clinic." This resulted in the publication of what is described as the first matter complained of by the first defendant:
The above extract was taken from Annexure A of the statement of claim. The first matter complained of as pleaded in the statement of claim consists of that part of the WeChat conversation in brackets, namely the third defendant saying "I have checked, Australia does not have a registered doctor by the name of Lee Siew Yi. This is a conman." This differs from the defendants' translation, which is shown below (see page 4 of the WeChat conversation):
According to the defendants, the first matter complained of consists of the third defendant saying "Yes, I have checked, Australia does not have a registered plastic surgeon by the name of "Li Xiao Yu". This is a conman." Apart from the word "Yes" appearing in the sentence, the translation of the Chinese name "李小瑜" differs from that appearing in the statement of claim, namely "Li Xiao Yu" instead of "Lee Siew Yi". Standardised pinyin phonetics do not include syllables for "Lee" or "Siew" and the character spelled "Yi" would be translated as "Yu".

The second matter complained of

The second matter complained of is the reply by the third defendant to the question from the first defendant, namely "Who invited this cosmetic clinic into the group?", (according to the translation attached to the statement of claim) or, according to the defendants' translation, "Who added this plastic-cosmetic ID (into this WeChat group)?"
The plaintiff's translation of the second matter complained of is shown in brackets above. This differs from the matter complained of as pleaded at paragraph 10 of the second further amended statement of claim, in that the words "Not me." do not appear in the pleading. According to the defendants' translation, the second matter complained of reads: "It was not me. I saw the ad above about plastic surgeries. I checked the qualification of this 'doctor'. Among all the registered doctors throughout Australia, there is no one called 'Li Xiao Yu'."

The third and fourth matters complained of

This then leads directly to the third and fourth matters complained of, which are pleaded in the statement of claim as follows (see text shown in brackets, together with a translated version): [* The translations for Annexure C and D appear as separate documents in the second further amended statement of claim, and this translation has been edited to incorporate the two translations in the same picture.]
The defendants' version of the translated conversation, which is page 5 of the WeChat transcript, is as follows:
The discussion continues for several pages, until a curious event occurs on pages 10-11 of the typed transcript, namely that the second plaintiff herself enters the debate. This portion of the WeChat conversation is not pleaded as forming any part of the matters complained of. After discussion to the effect that there is no doctor named "Li Xiao Yu", the second plaintiff enters the conversation on 18 June 2016 at 2:20pm saying the following, which I have extracted from the defendants' translation:

The fifth matter complained of

As shown above, the third defendant then posts two screenshots, one of which contains the website address for sydneycosmetic.com.au and the other which has a screenshot of the clinic's webpage which has Dr "李小瑜" (in Chinese characters). These two screenshots are shown in Annexure E of the second further amended statement of claim as being part of the fifth matter complained of. The second plaintiff then adds (although this is not part of the matter complained of):
This leads to the second part of what is asserted to be the fifth matter complained of, which is the statements made by the third defendant in response to the second plaintiff as follows:
The translation provided by the defendants are as follows:
The second plaintiff continues this discussion in a robust fashion. I have set out the WeChat conversation as provided by the defendants as follows (which does not form any part of the matters complained of):
In the course of this discussion, the second plaintiff volunteers on page 29 of the WeChat conversation: "Then go to the clinic yourself and ask the doctor for her name."
Member 6 asks in reply (see page 30 of the WeChat conversation): "Why do I have to go to the clinic myself? Why don't you show your license directly? Lots of things require license here."
The second plaintiff replied (see page 30 of the WeChat conversation): "You are talking nonsense when you don't know a thing."
The third defendant says on page 31:
As the conversation continues, the second plaintiff says, "Will you take legal responsibilities if it is proved that all you said today is wrong?", adding "With freedom of speech, also comes responsibility" (page 32 of the WeChat conversation). The third defendant asks the second plaintiff directly on page 33: "@Sunshine (Plaintiff) Would you show your license?"
The conversation continues as follows:
Member 3 asks the second plaintiff, "Isn't that you?" and this results in member 6 calling for the plaintiff to "display the license", adding "Then everyone will be happy" (page 34 of the WeChat conversation). The second plaintiff then asked (page 35) "Are you consumers?", adding: "What is false won't be true. What is true won't be false."
Member 6 volunteers that "Everyone is a consumer", to which the second plaintiff replied, "So you can go there and check by yourself" (page 35). She repeats at page 36 of the WeChat conversation, "You must go and check by yourself. Do not ask other people to check for you." The second plaintiff says on page 37:
This results in the sixth matter complained of.

The sixth matter complained of

After the sixth matter complained of, the third defendant says (and this is not the subject of any complaints for defamation - see page 39 of the WeChat conversation): "@Sunshine (Plaintiff) We have talked this much, why don't you show us a license?"
The plaintiff replies (on page 40): "@Rachel (The 3rd Def) You must work on it harder. You need to check by yourself. I am not going to help you."
The fourth defendant directly asks on page 41: "Are you 'lixiaoyu' yourself?"
The fourth defendant persists in asking on page 42 of the WeChat conversation: "@Sunshine (Plaintiff) Are you the one who runs the clinic in Chatswood?"
The plaintiff replies: "If you have anything to say, you can talk to them face to face. Ask them directly and clarify. You don't know anything, what nonsense are you talking about?"

The seventh matter complained of

This results in the seventh matter complained of, which are part of the words as shown and translated (in brackets) at Annexure G to the statement of claim as follows:
The words sued upon as the seventh matter complained of comprise only the words (see paragraph 20 of the second further amended statement of claim): "Sunshine, I have checked, Li Xiao Yu has no Australian licence (to practice). The medical board does not have her record, "membership of the Royal College of Surgeons" is fake, because this organisation is non-existent."
Once again, a different version of the translation was provided by the defendants, which is as follows:
The second plaintiff is still, in Mr Polden's words, "playing games", on page 44 of the WeChat conversation. The fourth defendant asked, "Is the person who posted the ad still in this group?" The second plaintiff asked, "@Rachel (The 3rd Def) What is the English name of that person then?" to which Member 3 replied, "Still struggling to defend." The plaintiff replied, "Nonsense."
I have set out the rest of the conversation leading to the eighth matter complained of:

The eighth matter complained of

The eighth matter complained of as pleaded at paragraph 22 of the second further amended statement of claim comprises the words: "Laugh to death. I met the very "Dr Li" before, @sunshine, how she looked like you. "Dr Li" even asked me face to face whether I could tell that she had cosmetic procedures before. … Excuse me, the so called Dr Li, the chin is so sharp it can stabb [sic] people to death, the forehead is so wide, like a triangle upside down. Whoever looked at your face dared seeing her to do the job? So ran away decisively."
This text differs somewhat to what was included in brackets in Annexure H, which is as follows:
The defendants' version of the eighth matter complained of is set out at page 46 of the WeChat printout as follows:

The remaining publications

I will not set out the circumstances of publication of the remaining matters complained of. It would appear the plaintiffs have excised the twentieth and twenty-third matters complained of from the pleading, which means the total number of matters complained of is 22 (instead of 24). This omission just adds to the confusion.

Who are the defendants talking about?

The above excerpt gives a very clear picture of the defendants talking about: 1. a doctor with the surname "李", 2. a doctor with the pinyin surname "Li" (as opposed to "Lee": c.f. page 15 of the WeChat conversation); and/or 3. a doctor named, "李小瑜" or "Li Xiao Yu" (c.f. page 4 of the WeChat conversation).
The phonetic name "Lee Siew Yi" does not appear in the Chinese version of the WeChat conversation. Only "Li Xiao Yu" does.
How, then, does the second plaintiff (whose name is spelled as Lee Siew Yi) say she is identified?
Mr Potter sets out the basis of his client's challenge at paragraphs 12-17 of his written submissions, which I summarise as follows: 1. At paragraph 2(f) of the second further amended statement of claim, the plaintiffs set out the Chinese symbols for the second plaintiff's name. At the Particulars of identification on page 11 at paragraph A(i), it is pleaded that the second plaintiff is identified within the first matter complained of (being Dr Siew Yi Lee). The first matter complained of at annexure A to the second further amended statement of claim does not in fact name the second plaintiff by this name in the Plaintiffs' own English translation. 2. The Particulars of identification on page 11 at paragraph A(ii), set out that the second plaintiff is identified by reference in the advertisement (annexure A1) to the second plaintiff being the first employee or principal. There is no such reference in the plaintiffs' English translation at A1 to any employee or principal and in any event, that would not identify the second plaintiff as Dr Siew Yi Lee. 3. The second plaintiff not being expressly named anywhere in the English translation, so there must be extrinsic facts for identification along with the identity of anyone knowing such facts and who identified the second plaintiff. 4. This gives rise to the strike-in issue, as the schedule when read as a whole proceeds on the basis that the third defendant (at page 13 of this lengthy document) translates the Chinese language on the First plaintiff's website, to be 'Dr Li Xiao Yu' (and not the name used by the second plaintiff as she spells it, 'Dr Siew Yi Lee'). As the next entry is from the second plaintiff, who does not expressly disagree with this translation, it is clear from the remainder of the chain, that each of the commentators accept the translation of the third defendant and proceed as if this was the real name of the doctor in the ad. 5. No particulars are provided of anyone who read the Chinese symbols on page 13 and believed them not to be Dr Li Xiao Yu, but really to be Dr Siew Yi Lee. 6. Another complication is that the symbols at paragraph 2(f) of the second further amended statement of claim, pleaded to be the second plaintiff's name in Chinese are not the same symbols at page 13 of the schedule. The second defendant does not therefore know the case put forward by the plaintiffs on identification of the second plaintiff and these particulars should be struck out as wholly inadequate. (It should be noted, though that the three Chinese characters at paragraph 2(f) of the second further amended statement of claim are in fact the same as the first three characters at page 13 of the schedule (i.e. "李小瑜"). The fourth and fifth characters on page 13 of the schedule ("医生"), translate as "yi sheng", which means "Doctor", and in fact this appears on page 13 of the schedule.) 7. The first matter complained of is relied upon to ground identification for all subsequent publications, but each is pleaded as if they are separate publications where the reader is most unlikely to have scrolled back to the first matter complained of. The third matter complained of adds an additional particular at page 16 of the second further amended statement of claim at particular (ii) which refers to the line at annexure C: "Richard, she does not even have a medical licence". However, as Mr Potter points out, this is not a particular of identification of Dr Siew Yi Lee at all.
Mr Polden has made similar submissions which, to save time, I propose to set out in full from his written submissions: "22. The core particular relied upon for identification (see e.g. particular (i) appended to paragraph 8 of the FASOC), said to be the second plaintiff's Chinese name, is inconsistent with that the NAATI accredited translation of what is presently the first matter complained of. 23. At paragraph 2(f) of the SFASOC, the plaintiffs set out the Chinese symbols for the second plaintiff's name. At particular of identification A(i) appended to paragraph 8 (first matter complained of) page 11 (picked up and repeated for all other matters complained of) it is asserted that the second plaintiff is identified within the first matter complained of by her Chinese name. The plaintiffs' own English translation of the first matter complained of at annexure A to the FASOC/SFASOC does not translate the Chinese symbols for the name the second plaintiff as being the same as her English name (Dr Siew Yi Lee), but as (variously) "Li Xao Yu" (FASOC) or " Lee Siew Yi" (SFASOC). 24. The Particulars of identification for the first plaintiff appended to paragraph on page 11 at paragraph A(ii) further assert that the second plaintiff is identified by a reference to an advertisement (annexure A1) and an alleged reference in the first matter complained of to the second plaintiff being the first plaintiff's employee or principal. There is no such reference in the plaintiffs' English translation, either at A1 or in annexure A (first matter complained of). 25. The third defendant at page 13 of the translation, herself translates the Chinese language on the first plaintiff's website as 'Dr Li Xiao Yu' (consistent with the plaintiff's translation in the FASOC) not 'Dr Siew Yi Lee'. The next entry is from the second plaintiff, who does not disagree with this translation. It is clear from the remainder of the chain that each of the participants accept the third defendant's translation. 26. The second plaintiff not in fact being named anywhere, there must be extrinsic facts particularised to establish identification, along with particulars of anyone said to have knowing such facts, who it is said nevertheless identified the second plaintiff, but no particulars are provided of anyone who read the Chinese symbols on page 13 and believed them not to refer to 'Dr Li Xiao Yu' (or 'Dr Siew Yi Lee') but Dr Siew Yi Lee. No such particulars are provided. 27. The symbols at paragraph 2(f) of the SFASOC, pleaded to be the second plaintiff's name in Chinese are not the same symbols at page 13 of the schedule. On that basis alone, the third defendant does not understand the case put forward by the plaintiffs on identification of the second plaintiff, and these particulars should be struck out as wholly inadequate. 28. Particular (ii) on page 8 of the FASOC (particular A(ii) SFASOC) refers to an article which is said to have been posted to the WeChat Group by the first plaintiff, but on the face of the annexures to the FASOC/FASOC the article, as opposed to what may be (but is neither pleaded nor conceded to be) a link to it does not appear anywhere on the face of the WeChat chain. 29. If it is the plaintiffs' case that (in order to be able to identify the plaintiffs) all readers of each matter complained must each also have clicked through a link on page 1 of the WeChat chain and read the material which is now annexure A1 to the FASOC, that has not been pleaded."
Both counsel submit that the comments attributed to their clients are made in context of statements by others and, in particular, by the second plaintiff (whom the second plaintiff admits posted/authorised this material under the name "Sunshine") and including screenshots of relevant third party content including extracts from the New South Wales medical register. All of this material is relevant to the question of identification of both plaintiffs.

Relevant legal principles

The relevant principles to apply to publications of this kind are set out by Simpson J in Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130 at [22]: "22 Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field."
That test of being "untenable" was set out in a judgment which predates social media publications. The same is the case when applying Hodgson JA's statement of the relevant principles in Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605 at [2]-[5]: "2 In my opinion, a plaintiff in defamation proceedings cannot be compelled to include additional material in the Statement of Claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material. 3 In my opinion, the underlying reason for the first requirement is that defamation depends on how the ordinary reasonable reader/listener/viewer would understand the material relied on by the plaintiff; and while an ordinary reasonable reader/listener/viewer could be expected to take into account the context provided by the publication of which that material is part (and indeed, to suspend judgment if unable for any reason to take in that context), such a person could not be expected to look for material outside that publication in order to understand the material relied on. 4 The reason for the second requirement is that, where there can be reasonable differences of opinion about what constitutes the publication of which the material relied on is part, the plaintiff can choose (in a case where there are two possibilities) to rely on one or the other or both, at least unless the plaintiff's choice can be considered as unduly complicating the proceedings. If the plaintiff chooses to rely on one, and if the different context provided by the other is capable of affecting the meaning of the material relied on by the plaintiff, then damages may be recoverable only in relation to those ordinary reasonable readers/listeners/viewers who took that one (and not the other) to be the publication; while if the plaintiff chooses (and is permitted) to rely on both, then damages would certainly be recoverable in relation to both sets of ordinary reasonable readers/listeners/viewers. 5 In my opinion, those propositions are consistent with Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410, Burrows v. Knightley (1987) 10 NSWLR 651, Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130, Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107, and The Age v. Beran [2005] NSWCA 289."
Many of these principles of law require revisiting in the age of social media and chatroom publication where the precise extent of the matter complained of is uncertain. The law in this area is uncertain.
The first problem is the highly informal language and the swift interchange between speakers. The similarity between social media and general conversation has been commented upon by a number of English decisions, although generally in the context of statements on social media being akin to "saloon-bar moanings" (Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB)).
The unique features of online publication, and the difficulty of assuming readership given the sheer size of publication on the internet (Smith v ADVNPic [2008] EWHC 1797 at [14]) has already resulted in a series of decisions requiring evidence of downloading. While in some cases it may be easy to demonstrate that others have read some part of the matter complained of because comments are published (Katschke v Gray [2010] EWHC 690 at [95]) or the number of hits are recorded (Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies [2011] NSWSC 1445), others may require actual evidence of download for publication to be established (Duffy v Google Inc (2015) 125 SASR 437).
However, many of the early decisions related to publications with obvious limits, namely an article with a beginning and an ending. Real difficulties emerge where the extent of the publication, whether because of hyperlinks, or because of its sheer length and size, or because it is in multiple parts, renders definition of the parameters of publication unclear. A good example of this is the publication of snippets asserted to be the matters complained of in Trkulja v Google Inc (2018) 356 ALR 178, based on the inclusion of the references to the plaintiff and a photograph in search results appearing in "snippets" and hyperlinks returned by web searches and autocomplete predictions. The imputations must arise from "the publication as a whole" (at [31]), but what is the whole of the publication? It defies common sense to assert that anyone read the whole of the Google snippets in Trkulja v Google Inc and it defies common sense to assert that anyone read the whole 100-plus pages of chat in the matters complained of in these proceedings.
Does that mean that each individual post should be sued on, in circumstances where the defendants are left to guess how much more they read? Are the plaintiffs entitled to set out the extracts as they currently appear, in circumstances where (as Mr Potter points out) they have left out the antidote to the bane or impose implausible constructions in order to identify one or both of the plaintiffs?

The whole of the WeChat conversation?

Although Mr Potter submitted that the whole of the WeChat conversation should be struck-in to one or more of the publications, or the matters complained of pleaded as one giant publication, the plaintiff rejects this solution, and there may well be other and easier ways to resolve this issue. The easiest of these is to look to the evidence of what was actually read, by whom, and how they identified each plaintiff from a part or parts of the publication capable of being identified. The matters complained of would then need to be reconstituted with appropriate particulars of identification which will have to include the plaintiffs' own publications where appropriate. This would avoid the injustice of the "whole publication" rule as quite possibly the only persons who have read the whole of the WeChat printout are the parties and their legal representatives (which is not actionable).
The present form of the pleading is, however, clearly not maintainable. There is clearly a degree of overlap; the time inserts may help to identify separate publications, but these may be subordinate to content. The posts clearly flow on from each other and are influenced by what is said before and afterwards, including the statements made by the second plaintiff. While scrolling backwards and forwards is unlikely to be as significant, it is clear from one of the posts that at least one of the persons posting spent half an hour reading the text, so there may be readers who read extended parts of the conversation to understand the context. In particular, to identify the first plaintiff by name may require the reader to go back to the advertisement or to a post specifically naming it. In addition, material such as the identification of the second plaintiff in pages 1 to 13 is clearly relevant in relation to the subsequent comments by the first defendant in particular. Those are in response to the repeated statements set out above made by the second plaintiff.

An alternative to the "whole" of the WeChat conversation

Another way to identify this issue could be to require the plaintiffs to provide particulars of persons who read specific portions of the WeChat conversation and identified each of the first plaintiff and the second plaintiff, and in particular the latter as being the person identified as "李小瑜" or "Li Xiao Yu".
Statements of this kind have been required in slander proceedings where there is doubt as to whether what was said identified the plaintiff. In such cases it was common to require identification with verification in the manner adopted by Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192. I note the history of the requirement for a plaintiff to name such persons as set out by Hunt J at 193-195; while this is a procedure generally used in slander, I am satisfied that the nature of social media of this kind warrants its use in these proceedings. By looking at the evidence of what was actually read, as opposed to mere surmise, the true nature and extent of defamatory publication can be identified.
This is not a new problem. The difficulties of proof of the parameters of publication have been academically noted for some years. In "Defamation 2.0: Facebook and Twitter" (2012) 17 MALR 53, Jennifer Ireland commented: "…there is very little decided case law directly on social media defamation, as opposed to online defamation more broadly, and virtually none in Australia. It is timely to consider a range of challenges that the user-generated, collaborative nature of social media brings to principles of defamation law that were established in cases involving traditional or earlier (Web 1.0) online publications. The social media defamation cases decided to date suggest that argument will be necessary to establish the meaning of the publication and the defendant's responsibility for it, as well as how the publication would be understood by its audience - whether it would be viewed as fact or opinion and whether it would be taken seriously or not. It may also be necessary to identify anonymous or, perhaps more likely, pseudonymous defendants. While these issues have already arisen in the decided cases, several others have not yet arisen for judicial consideration. These include when and where publication takes place, what should be considered to be a 'whole' publication in social media, and what constitutes actionable republication." [emphasis added]
The issue of the extent of publication was considered in detail by Dinika Roopani in "The scope and content of a 'publication' on the internet for the purposes of defamation law" (2015) 20 MALR 33, particularly in relation to the "whole publication" principle (Charleston v News Group Newspapers [1995] 2 AC 65).
Early decisions on this issue did not identify the extent of the publication as a problem: The Buddhist Society of Western Australia Inc v Bristile Ltd & Anor [2000] WASCA 210 (9 August 2000); Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 (23 November 2009). While issues such as hyperlinks are acknowledged to create difficulties, questions such as where a publication begins and ends have not yet been the subject of scrutiny.
One early authority with some similarity to the facts in the present case is Budu v British Broadcasting Corporation [2010] EWHC 616, where identification was pleaded as arising from three archived articles on the BBC News website which were only accessible upon conducting a search. The first article did not name the plaintiff, and thus would not have come up in searches of the plaintiff's name, unlike the second or third. The court held that it would not have been possible for a reader to access that article unless they had followed the link in the second or third article, in which case the first article had to be considered "within the prism" of the second or third article, either of which would have had a "diluting" effect on the potentially defamatory meaning of the first article.
Dinika Roopani compares the line of reasoning in this case with Waterhouse v The Age Company Ltd [2011] NSWSC 159, noting that what distinguished the findings of Nicholas J in those proceedings was that, in Budu v British Broadcasting Corporation, the articles were both available on search results, and did not require the user to access one first before going to the other. Thus, the means by which an ordinary user could access the articles is central to what is essentially a facts-based issue.
The facts in this case are closer to Budu v British Broadcasting Corporation, at least on the current pleading, in that the reader is expected to scroll back to the first matter complained of and/or the advertisement at the commencement of the WeChat discussion. Unlike traditional forms of publication, such as a television or radio broadcast (or even separately published instalments of a novel), given the transient nature of online publication and the vast amount of online material, this is not an exercise that the court should assume has occurred just because words are there to see. This is an issue where the plaintiffs, who bear the onus of proving publication, must provide particulars not only of persons who read each of the matters complained of and who identified each of the plaintiffs, but also identify with precision the portions of the text read by that person or persons, in much the same way as particulars of this kind were considered necessary by Hunt J in Lazarus v Deutsche Lufthansa.
This requirement to define the pleading and extrinsic facts is not an idle exercise, or (with respect to the observations of the New South Wales Court of Appeal in The Age Corporation Ltd v Beran [2005] NSWCA 289) a pleading issue which can be deferred to trial. Regardless of how defamatory these statements may be, if the second plaintiff is not identified, that is the end of her case.
It is already a requirement for a plaintiff to provide particulars of downloading for internet publications: Jenman v McIntyre [2013] NSWSC 1100; Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113. That includes the identity of the downloader, as well as the place of downloading. A requirement that the document downloaded be identified with some precision where there is some doubt about the extent of the publication is merely an extension of this existing requirement for online publications generally.

Conclusion: the plaintiff must prove publication by appropriate particulars concerning form and identification

Whatever the form and extent of the matters complained of and the particulars of identification relied upon by each of the plaintiffs, the statement of claim in its present form cannot stand, as is now acknowledged.
Ms Rubagotti initially submitted that the question of identification would need to be the subject of expert evidence at the trial to the effect that, while the name "Li Xiao Yu" is the standardised way to plead the name of a person in Mandarin Chinese, there may be circumstances in which some variant of that name is sued upon. This submission misunderstands the nature of identification evidence. The plaintiffs must establish that other persons not only read the matters complained of but identified it/her by reason of particulars of identification known to them, not by way of expert evidence. What is more, such particulars must be provided in relation to each publication about each plaintiff, and for each defendant.
This is already a lengthy judgment which forms part of a long process of attempts to case manage what appears now to be conceded is an unsatisfactory pleading. While the pleading in its present form cannot stand, the court is not obliged to help the plaintiffs work out what their causes of action may be. That is a question for determination by the plaintiffs' legal representatives.
Ms Rubagotti, having effectively conceded that the particulars of identification (like the form of the matter complained of) require amendment and (by inference) that the nature and extent of the matters complained of may need to be reconsidered, this is one of the many issues for which the plaintiffs require leave to amend, an entitlement which is discussed in more detail below. The real problem, however, remains the need to identify each publication complained of by reference to what was actually read, as opposed to the artificially created "publications" currently pleaded.
This is not, however, the end of the application to "strike-in" material. Considering "strike-in" applications where the text of the matter(s) complained of is itself unclear is pointless. I propose to defer this issue until the next amended statement of claim is provided.

Why should verification be required?

Defamation pleadings are not required to be verified: r 14.22(1) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). This is because is it a personal tort where the plaintiff would be expected to have personal knowledge of the matters pleaded: Daniels v State of New South Wales (No 2) [2014] NSWSC 1934 at [9] - [10]. The court does have power to require a pleading to be verified "as to such facts as the court may determine" (UCPR r 14.24(3)).
The requirement for verification is generally limited to cases with publication problems, such as proof of publication, as was the case in Lazarus v Deutsche Lufthansa AG. In Templar v Britton [2013] NSWSC 1827, McCallum J ordered the plaintiff to verify an amended statement of claim where there was a significant variation in the form of the matter complained of.
That is the case here as well. The new particulars, when appearing in the next amended pleading, should be verified. However, I do not require the plaintiffs to verify the whole of the pleading (such as, for example, particulars of aggravated damages).

Extrinsic facts and place of publication

There are other problems with the pleading. The most pressing are the issues of extrinsic facts and Mr Polden's complaint about failure to identify the jurisdiction in which the matters complained of were published.

Extrinsic facts

The plaintiffs appear to bring a true innuendo claim (see for example, the statements at the bottom of each of the paragraphs where imputations are pleaded) but without setting out the persons to whom those extrinsic facts were known. This was one of the issues not dealt with in the argument before me, and I draw it to the attention of the plaintiffs' legal advisers as being one of the many matters requiring reconsideration.

Where and to whom were each of the matters published?

Another issue is the failure to identify the jurisdiction in which any of the matters complained of were published, which arises in part because of the failure to identify with precision the persons who read each of the matters complained of, and how each of them identified the plaintiffs.
Mr Polden points out that it is unclear whether the claim is limited (and if so, the basis for so limiting it) to readers who are said to have read: 1. All of the presently pleaded 23 matters complained of and nothing else), 2. All of the presently pleaded 23 matters complained of and other material posted by one or more of the plaintiffs (being the Article particularised at page 8 particular (i) hereafter, the Article) (but nothing else), or 3. Readers falling within either of the foregoing classes, who read also read other WeChat Group messages (and if so, which), including those posted by the plaintiffs or either of them, or third party content (e.g. extracts from the NSW Medical register) which appear on the face of the chain as screen shots.
Mr Polden also pointed out that there are no proper particulars identifying by whom it is alleged each of the presently pleaded matters complained of (however defined) and/or the article (being annexure A1 to the second further amended statement of claim) were downloaded and read, or of who (if anyone) amongst that potentially disparate group is said to have been in possession of the extrinsic facts relied upon.
In addition, if it is to be asserted that publication occurred outside Australia, proper particulars must be given.
I note that Ms Rubagotti conceded that these particulars should be provided. This problem will hopefully be resolved by provision of particulars in accordance with the orders I have made.

Other problems with the statement of claim

It took the better part of a day of argument, as a special fixture, for the issues of publication, identification and form of the matters complained of to be determined. That is a wholly exceptional course to the general conduct of defamation case management in the Defamation List. It has never happened before. The plaintiffs should regard this hearing as a last opportunity, rather than a first opportunity.
With these problems in mind, I note that there are other issues in these pleadings which warrant consideration.
I see there is a delineation between damage to the first plaintiff's trading and business reputation and the second plaintiff's hurt and embarrassment in the damages section of the judgment remains, despite the special damages claim being struck out. If this is a general downturn claim, or otherwise the subject of some special claim, this should be identified.
The claim for aggravated damages based on the third defendant seeking a "to be given money (a red packet)" in paragraph 53(v) is certain to cause problems in the future. The basis upon which such a claim is asserted should be specified. So is the "persistent repetition" claim, which includes a claim for publications not made by the defendants.
Ms Rubagotti, in acknowledging a need to replead, pointed out that this was the first time there had been any consideration of any of these issues by the court since these proceedings were commenced. (Since Ms Rubagotti's alternative submission was that the decision of McCallum J on 18 June 2018 (The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 4) (Supreme Court of New South Wales, McCallum J, 8 June 2018, unreported) amounted to issue estoppel on the issues now before the court, this submission came as something of a surprise). I can see that this is the case, but these issues must be addressed without further delay.

The adequacy of the translation

One issue about which the parties appear to have had notice is that there are serious problems with the adequacy of the translation.
It is axiomatic that the parties must have an agreed translation of the matters complained of before proceeding further. It is unacceptable that there are differences of such magnitude as the spelling of the translation of the name "李小瑜". There are numerous other differences of similar importance.
In the sections of the matters complained of set out above I have used Mr Potter's translation, as it is the fullest. However, it is the plaintiffs' obligation to provide a translation. If the parties cannot agree on a translation, there will have to be a separate argument on this issue.

Delay and reluctant gladiators

There has been delay throughout the conduct of this litigation. The plaintiffs commenced these proceedings on the last day of the limitation period. While the plaintiffs sought extensions of orders in relation to the fourth defendant being served, the fact that the fourth defendant was not even notified of this application, despite my making orders seeking information about the fourth defendant on 7 May 2019 (see order (2) of my orders of 7 May 2019 as extracted above) is another matter of concern.
Where a party commences proceedings at the end of the limitation period, failure to conduct the litigation in a diligent fashion thereafter may result in loss of the action: Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998, unreported).
The defendants have been in a difficult position. The first defendant is self-represented and the fourth defendant has been uncontactable. The second and third defendants have, until recently, been represented by solicitors, who have been carried along on the tide of the plaintiffs' incompetent and dilatory conduct of the proceedings to date.
A party who does not conduct a case may be called a "reluctant gladiator": Bi v Mourad [2010] NSWCA 17 at [31] per Young JA. In the present case, the plaintiffs have been active, but they have effectively produced nothing. Failure to proceed past the statement of claim in the two year litigation history to date while at the same time relisting the proceedings on multiple occasions is an indication of time being spent unwisely: see for example, Al-Shennag v Woodcock [2013] NSWSC 696.

Conclusions concerning a right to replead

The issues raised in this application are complex. Despite the history of delay, the plaintiffs should be given a right to replead, but that right must come at the price, not only of costs orders but of a requirement for proper specificity in the pleading to be verified.
Given the nature of the task required to recast this claim into a realistic pleading, some time will be required for the redrafting, as it will require particulars of identification of each of the plaintiffs given in the form of verified statements.
I have set out below my orders in this regard but with leave to list the matter in the Defamation List for alternative timetabling orders.

The plaintiffs' estoppel argument

I set out my reasons for rejecting the plaintiffs' estoppel argument when I heard this application on 20 August 2019.
The plaintiffs' estoppel argument is that the objections raised by the defendants in these proceedings were the subject of objection by the first defendant, including argument, before McCallum J on 18 June 2018: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 4). McCallum J noted at [1]: "1 These are proceedings commenced by a medical practitioner and a company through which she operates seeking damages for defamation against four defendants, only three of whom have yet taken an active role in the proceedings. The proceedings are before the Court today for determination of the first listing issues by reference to a further amended statement of claim filed 18 May 2018. The principal objections to that pleading were argued by the first defendant, Mr Hu, who appears for himself. Mr Hu set out a series of objections or concerns in respect to the pleading in a letter dated 6 June 2018 and those objections were responded to in an outline of submissions by the plaintiff dated 7 June 2018."
Ms Rubagotti claims that no objection was taken by the third defendant, consistent with the positions recorded by McCallum J in her Honour's judgment at [2]: "2 In the main, the issues raised by Mr Hu are matters for pleading in his defence or else for determination at the trial. The particular exchanges between the Court and Mr Hu in respect of the points he has raised will be recorded in the transcript. Those exchanges have, however, been useful in identifying a number of issues it [sic] that will arise in the proceedings. My consideration of those issues has persuaded me that this is a case in which I should refer the parties for mediation. I would ordinarily not make such an order until the pleadings were closed. However, in the present case, it is clear that the process of preparing and filing defences will itself be complex and expensive."
This was confirmed in court. Her pleading was the Further Amended Statement of Claim. Ms Rubagotti submits that the pleading of the defamatory publications here does not differ from its predecessor and McCallum J was decisively ruling in respect of this issue and it should apply mutatis mutandis to the current pleading.
Ms Rubagotti referred to the first defendant's complaint made before McCallum J (in the form of an inter parte communication sent from the first defendant to the plaintiffs' previously solicitors): "The plaintiff shouldn't just chose the comments/post which are in favour of the plaintiff and not disclose other comments/post will also be relevant as it is the part of the chain conversation messages." (as extracted from the plaintiffs' submissions)
I have reproduced the first defendant's complaint in his original letter as follows: "The plaintiff shouldn't just chose the comments/post which are in favour of the plaintiff and not disclose other comments/post will also be relevant as it is the part of the chain conversation messages. It is still my view that reasonably consider all of the comments/message that relevant to group chat should be identify clearly. The translation provide by the plaintiffs' solicitor was very complicated, confuse and fail to identify each party's Wetchat [sic] name who posted the comments made, which is either plaintiffs, first defendant, third defendant or fourth defendant. I annexed and marked "C" which is the translation to the third matter with more accurate listed each Wetchat [sic] name and translation. More Wetchat [sic] conversation translations will be provided before the second hearing as supporting evidence." (sic - As extracted from Annexure A to the affidavit of Mr Li)
McCallum J noted the issues raised by Mr Hu were "matters for pleading in his defence or else for determination at the trial" (see paragraph 2 of McCallum J's judgment as extracted above). The plaintiffs submit that this matter has been "determined" and the third defendant's attempt to re-agitate the issue well over a year later is impermissible as issue estoppel: Blair v Curran (1939) 62 CLR 464 per Dixon J at 531; Kuligowski v Metrobus (2004) 220 CLR 363 at [21] and [40] (respectively citing with approval Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest and Ramsay v Pigram (1968) 118 CLR 271 at 276 per Barwick CJ). Although McCallum J's decision is interlocutory, it finally determined the issues between the parties in that the first defendant, a litigant in person, raised this and there was no objection by the other parties, who were represented by solicitors: Castillon v P&O Ports Ltd [2007] QCA 364; [2008] 2 Qd R 219 per Holmes JA at [49]-[58] and the authorities referred to therein, including Makhoul v Barnes (1995) 60 FCR 572 at 583 per curiam and Inasmuch Community Inc v Bright [2006] NSWCA 99 at [60] per Beazley J.
The principles relating to issue estoppel were recently comprehensively considered in Bajramovic v Calubaquib [2015] NSWCA 139. That was a second application for leave under s 109(1) Motor Accidents Compensation Act 1999 (NSW). The second application had been rejected by the primary judge on the basis that the relief sought in the summons was identical to the orders in the first application, there had been a significant delay in bringing the application, the first application was the subject of a fully contested hearing, the second application was in fact adjourned so that more evidence could be called, which evidence was also rejected by the primary judge. Despite all these matters, the Court of Appeal allowed the appeal of the unsuccessful plaintiff.
Emmett JA noted that it was axiomatic that a party was normally bound by the way in which his or her counsel conducted a trial on behalf of a party and that the jurisdiction to make different orders in civil proceedings "must be exercised very sparingly" (at [38]). However, the principles were not stringent in the case of an interlocutory hearing and the principles of res judicata and issue estoppel do not apply with the same force in relation to interlocutory orders and decisions, where there has not been any determination of the full merits of the case.
His Honour then stated at [40]-[41]: "[40] Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process. [41] It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained." (Footnotes omitted)
Ms Rubagotti submitted that "we disagree with [Emmett JA's analysis] on the authorities to which I've already referred" (T 9).
However, disagreement with Emmett JA's analysis is not a course which I propose to entertain. Emmett JA's clear and careful analysis of the relevant principles is all the more compelling in a case such as the present, where a litigant in person was appearing in the Supreme Court Defamation List, in circumstances where he clearly had little understanding of the issues and where the other legal representatives were solicitors who simply did not deal with the issue at all.
There are, in addition, factors relevant to ss 56-62 Civil Procedure Act 2005 (NSW) which should be taken into account when determining such matters. This was considered relevant by Emmett JA at [42]-[43], namely the need for civil proceedings "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (at [43]). In particular, the court must seek to act in accordance with the dictates of justice by taking into account all of the relevant circumstances of the case. The decisions to which Ms Rubagotti referred me all predate this legislation.
The desultory way in which issues were raised on the run in correspondence by litigants in person before McCallum J in these proceedings is wholly different from the careful argument of issues in Liu v The Age Company Limited [2016] NSWCA 115, where the Court of Appeal was held that it was not in the interest of justice to re-litigate matters where there was a tactical or forensic decision as the basis of the challenge (as opposed to the ignorance of a litigant in person struggling to understand a complex pleading).
Nevertheless, I note that Beazley P stated that there is no preclusive rule to the bringing of a second interlocutory application. The question is always whether it is in the interest of justice that a second application be determined in favour of an applicant who has been unsuccessful in bringing or defending a prior application (at [13]). Ward JA similarly noted at [292] that the overriding principle governing the approach of the court to interlocutory applications is to do what the interest of justice requires in the particular circumstances of the case. In particular, Ward JA noted that a relevant factor is whether the second interlocutory application is brought in order to repair a deficiency on the first occasion (at [293]): "[293] I do not see the present case as one readily falling within the admonition in Manning by Heydon JA, as his Honour then was, (at [72]) to the effect that a party should bring its best case forward at the earliest opportunity. As McColl JA notes, this was not a case where a second interlocutory application was brought in order to repair a deficiency on the first occasion. Nor, as Ms Liu ultimately conceded, could it be said that there was an abuse of process in the conduct of the newspaper in resisting the initial application for preliminary discovery arising from the fact that the undertaking was not offered on the first available occasion. The newspaper was not at any stage obliged to proffer the undertaking that it ultimately conditionally did. Not only was there no evidence to support the assertion maintained by Ms Liu in her written submissions (but abandoned in oral submissions) to the effect that the newspaper had always intended to offer the undertaking at a later stage if it were unsuccessful in its appellate challenges to the making of the preliminary discovery orders, but also I have difficulty with the proposition that its later decision to do so was at best an afterthought. Rather, there seems to me to be no reason not to proceed on the basis that, knowing of the possibility that an undertaking might strengthen its ability to resist the preliminary discovery application, the newspaper made a forensic decision in the first place not to offer one and then, having failed to resist Ms Liu's application and having failed in its subsequent appellate challenges thereto, it made the opposite forensic decision in the context of its application for a stay of those orders. I see no impropriety in the newspaper taking into account its own interests, as well as the public interest in preserving the anonymity of its sources, in so doing."
Her Honour went on to add at [294]: "[294] As to whether, having made the initial forensic decision, the newspaper should in effect be held to it, I see a distinction between the situation where a party seeks for the second time the same interlocutory relief in circumstances where nothing has relevantly changed and no new evidence has emerged that was not reasonably available at the time of the initial application (which is in effect the situation considered in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44) and the position where a party (here, the newspaper), which has unsuccessfully resisted an application for interlocutory relief, later seeks a stay of the interlocutory orders on the basis of an undertaking that it could have (but was not obliged to have) offered at first instance. At least where there has been what Senior Counsel for the newspaper referred to as a change in the legal landscape (that being the fate of its unsuccessful constitutional challenge), there is a real question to my mind as to whether there was any abuse of process involved in the making of the stay application (and the primary judge's view that there was not was, in my respectful opinion, one that was certainly open to her though I accept it was one on which reasonable minds might differ)."
I note finally the key point identified by McColl JA at [199]: "In summary, accordingly, the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. That consideration also applies to a second interlocutory application concerning the same, or what is substantially the same, issue or an attempt by a litigant who has unsuccessfully resisted an interlocutory application to re-agitate the same question. However, in determining what the interests of justice require, the court will have regard, among other matters, to the nature of the first interlocutory application, the nature of the change in position and whether any matter relied upon to change the basis upon which the challenged earlier order was made, was open to be advanced at the earlier hearing." (Footnotes omitted)
Mr Polden also directs my attention to the transcript which led to the ruling the subject of the asserted estoppel. It is clear that McCallum J was endeavouring to encourage the parties to go to mediation, as her Honour was trying to resolve what was clearly an extremely complicated claim and one which might best be dealt with by mediation rather than a series of lengthy and complex legal arguments.
I am satisfied that the issue was not raised properly by the first defendant at all. I am further satisfied that it was neither understood by him nor by the solicitors representing the remaining parties and not subject to any ruling by McCallum J. There is accordingly no estoppel.
However, in the event that I have erred, this would have been the kind of interlocutory ruling requiring to be revisited having regard to the efficiencies in the pleadings, for the reasons explained by Ward JA in Liu v The Age Company Limited.

The plaintiff's abuse of process argument

In the course of the argument, Ms Rubagotti brought an oral application for the proceedings to be dismissed for abuse of process. This was essentially a reworking of her unsuccessful estoppel argument, and is dismissed for the same reasons.

The way forward for this litigation

I have indicated that I propose to grant leave to amend, but the conduct of this litigation warrants a warning for the future.
Ms Rubagotti submits that her clients ought to have leave to replead because the third defendant's failure to object to the plaintiffs' pleading and her attempts to re-agitate issues dealt with nearly 18 months ago and/or her attempts to raise new issues now which were not raised before McCallum J in May last year tell against such a course. It is asserted that the source of the egregious delay is the defendants' and, in particular, the third defendant.
Striking out a statement of claim without granting leave to replead is, as I indicated in the course of hearing this application, a step to be taken only in the most extreme circumstances. However, the plaintiffs must provide a clear and comprehensive pleading as well as attending to other issues of concern, such as a review of the claim for aggravated damages, and agreed translation, and a proper procedure for notification of the fourth defendant.
As set out above, despite my attempts to ensure the fourth defendant's position was clarified, it would appear that she was not even notified of this argument being heard. It is not clear to me whether the fourth defendant has been served. A number of extensions have been given for service which appears to have been effected by substituted service.
A degree of care must be taken by the plaintiffs in relation to the delineation of any claims for publications by her. Her right to raise any issues in relation to the application which came before the court in relation to the other three defendants is one upon which I will be prepared to hear from her or her representatives further should she so desire.

Conclusions and orders

I make the following orders: 1. The second further amended statement of claim is struck out with leave to replead. 2. The third further amended statement of claim to be filed and served in 28 days, such pleading is to identify in relation to each of the matter(s) complained of the names of each of the persons to whom the matter complained of is alleged to have been published and full particulars of the basis upon which each of the plaintiffs is identified by each such reader, giving references where applicable to the text of the WeChat conversation, such particulars to be contained in the amended pleading and to be verified by the second plaintiff and by an authorised officer of the first plaintiff. 3. The application to strike in further material into the proposed publications is deferred until the revised text of the matter(s) complained of is provided. 4. Upon receipt of the proposed third further amended statement of claim, the parties are to provide the court with a list of outstanding issues for determination, including but not limited to the adequacy of translations, strike in applications and other pleading issues. 5. The plaintiffs are to pay the defendants' costs of the application. 6. The plaintiffs are to notify the fourth defendant of these orders and to file and serve in 28 days all relevant affidavits of service in relation to notification of the fourth defendant of these proceedings and this application. 7. Liberty to relist these proceedings in the Defamation List on 12 September 2019 for further timetabling orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2019

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (31)

Cited By (2)