The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu

Court of Appeal (NSW)|2021-08-30|Before: Basten JA, Gleeson JA, McCallum JA

Background

As Gibson DCJ correctly observed, the proceedings have a most unfortunate history. The proceedings claiming damages for defamation against several defendants were commenced in the Supreme Court on 16 June 2017, a matter of days before the expiry of the 12-month limitation period: Limitation Act 1969 (NSW), s 14B. In the Supreme Court, there were various problems including poor pleading, a claim for special damages ultimately being withdrawn, and incorrectly named defendants. After the plaintiffs failed to appear at a show cause hearing on 22 March 2019, the proceedings were transferred to the District Court.
In the District Court, a second further amended statement of claim filed 7 August 2019 was struck out by Gibson DCJ on 11 September 2019: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482. The plaintiffs were given leave to replead on condition that (at [147(2)]): 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 was alleged to have been published and full particulars of the basis upon which each of the plaintiffs is identified by each such reader …

The posts

The second plaintiff's name in English is "Siew Yi Lee". On 18 June 2016 at 11:36 am an advertisement stub was posted in the WeChat group. The stub contained a link to an advertisement in Chinese language in an online Chinese media publication translated as "Sydney Today". The advertisement (as translated) proclaimed "[a]fter a nose job, you still do not look good on camera because of a short chin", referred to a cosmetic business described as "The Sydney Plastic & Cosmetic Medical Clinic", contained a link to the website "thesydneycosmetic.com.au", and gave a business address in Chatswood. The website and business address were those of the first plaintiff. The second plaintiff was not named in the stub posted in the WeChat group or in the advertisement published in Sydney Today; her name appeared on the first plaintiff's website, but only in simplified Chinese characters as "李小瑜".
The five matters complained of were posted in the WeChat group on the same day following the advertisement stub. As the judge explained: [9] No names appear in this stub; it is necessary to click onto the website to discover the names of both the first and second plaintiffs. Significantly, the name of the second plaintiff does not appear in the advertisement even when clicked on. It must be searched for on the first plaintiff's website, where it appears only in simplified Chinese characters ("李小瑜"), and not in any anglicised form, and certainly not in the form of English name under which she received her qualifications. The relevance of this is that when the third defendant says that when he saw "that ad above about plastic surgeries", he checked the qualifications of "Li Xiao Yu" in pinyin and found that "there is no one called "Li Xiao Yu", with this name "Li Xiao Yu" written in Chinese standardised phonetic pinyin and not in characters.
Numerous posts, including the five posts alleged to be defamatory of the plaintiffs and also posts by the second plaintiff, were subsequently posted in the WeChat group by members of the group.
The text of the five matters complained of is set out in Annexures to the amended statement of claim in Chinese with an English translation, which for all relevant purposes was agreed in Ex JZ1 as follows:

First matter complained of; Publication A (18 June 2016 at 12:29 pm): Rachel: I have checked, Australia does not have a registered doctor by the name of Li Xiao Yu. This is a conman. (Although Annexure A to the pleading alleged that the name of the doctor in this post is "Lee Siew Yi", the agreed translation of the doctor's name is "Li Xiao Yu").

Second matter complained of; Publication C (18 June 2016 at 1:19 pm): Hu: @Rachel, no licence to do cosmetic procedures at all.

Third matter complained of; Publication D (18 June 2016 at 7:43 pm): Hu: @Rachel, without qualifications, she is going to harm people.

Fourth matter complained of; Publication E (18 June 2016, 7:46 pm): Rachel: "@Richard_LJHooker I have checked from multiple channels, no registration, not even a "doctor", checked the so-called royal college of surgeons, she is not a "member". Her advertisement is very fake."

Fifth matter complained of; Publication F (18 June 2016 at 7:46 pm): Hu: This is a criminal case.

Contrary to the appellants' submissions in this Court, it is not open on the pleading to read the five matters complained of together as a single publication; the pleading alleged the publication of five discrete matters: cf Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] SGHC 38 at [55].
In addition to the particulars required by the condition of leave to replead (see [7] above), as the plaintiffs were not named in the five publications they were required by the rules to provide particulars of identification of the plaintiffs together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known: UCPR, r 15.19(1)(d). The amended statement of claim gave the same identification particulars for the first and second publications (pars 6 and 9) and for the third, fourth and fifth publications (pars 12, 15 and 18) and these particulars were substantially the same for all publications.
The particulars of publication and identification, which overlapped, claimed that the first plaintiff was named in an advertisement posted in the WeChat group (a fact now conceded by the plaintiffs to be erroneous) and acknowledged so far as the second plaintiff was concerned that particulars naming persons who identified the second plaintiff as a person defamed could not be provided. Instead, the second plaintiff relied upon certain extrinsic facts from which that identification could be inferred.

The subsequent posts and the second plaintiff's interventions

After noting the following matters: [12] At 12:29, nearly an hour later, the first matter complained of appears, with the third defendant going on to add (outside the one-line first matter complained of) that she checked the advertisement and that there is no "Li Xiao Yu" (a name she spells out in the Chinese text in English lettering, conformably with standardized pinyin) registered as a plastic surgeon. [13] At 1:19 pm, the first and third defendants exchange chats about a screenshot from the APHRA website Register of Practitioners showing there is no practitioner named Li Xiao Lu. This page does not include any reference to either plaintiff. It is in this context the second matter complained of is published. [14] There is then a very substantial gap in time until the third to fifth publications. Over this period there is a lot of discussion between the parties. A crucial entry is made by the second plaintiff at 2:20 pm where she uses the spelling "li xiao yu" in English letters in the first of her many posts, at 2:20 pm. the judge chronicled in the tables at [14] and [16] of the judgment the second plaintiff's interventions in the WeChat group throughout the afternoon of 18 June 2016, using the avatar "@Sunshine". An understanding of the context of the pleading dispute is assisted by a reference to some of these posts.
The second plaintiff first intervened at 2:20 pm stating: "How do you know her name is 'li xiao yu'? Too arbitrary". (The name "li xiao yu" is set out in English in the original Chinese language post by the second plaintiff.) The second plaintiff then followed with the post: "Overseas Chinese do not use such spelling".
In further posts, the second plaintiff chose not to reveal her real identity, described herself in the third person, and continued to question the correctness of the name of the doctor as "Li Xiao Yu": see for example, at 2:25 pm, "[i]t was not me who added her into the group … Chinese Pinyin is used by Mainland Chinese. There are over 20 million Chinese people overseas", "[o]verseas Chinese do not use such spelling", and "[t]here is no 'li xiao yu'" (again, this name is set out in English by the second appellant).
Throughout the afternoon, the second plaintiff's intervention continued where further clues and pointers were provided as to the identity of the doctor associated with the clinic including at 2:34 pm, "[m]oreover, many Chinese doctors are not from Mainland China", "[s]o the medical board will have their English names", and "[h]ave you been to that clinic? Do you know how her English name is spelt?". In response to the third defendant asking "@Sunshine" at 2:38 pm "[c]an you give us evidence?", the second plaintiff posted at 2:38 pm, "[y]ou have no common sense at all", "[y]ou had better ask by yourself" and "[d]o not jump to the conclusion".
At 2:44 pm and 2:47 pm, the second plaintiff again described herself in the third person, posting twice - "[y]ou don't even know her name in English", to which the third defendant responded at 2:47 pm: "@Sunshine You can check it yourself. This is the official website. Tell us the truth!". Rather than answering this question, the second plaintiff invited the third defendant to visit the clinic and check for herself, posting at 2:47 pm, "[s]ister Rachel, go there and have a look".
At 3:14 pm, Ms Cheng, the former fourth defendant, asked the second plaintiff directly "@Sunshine Are you 'lixiaoyu' yourself?", to which the second plaintiff responded, "[y]ou know yourself how much you weigh". Ms Cheng asked again at 3:14 pm, "@Sunshine Are you the one who runs the clinic in Chatswood?", to which the second plaintiff responded at 3:14 pm: "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?".
At 3:24 pm, the second plaintiff posted "@Rachel" (the third defendant, Ms Ma's avatar), "[w]hat is the English name of that person then?", followed shortly by a post by Ms Cheng, "I want to laugh to death. I have met the very 'Dr Li' before. @Sunshine. How she looked like you!". At 3:31 pm, Ms Cheng posted, "I immediately recognised her as soon as I looked at her profile picture". The second plaintiff replied to Ms Cheng, "@Central park" (Ms Cheng's avatar), at 3:34 pm "oh I see, Dr Li looks like that" (followed by two smiling emojis).
At 5:13 pm, member 18 posted, "[i]f you have a licence, show us all then everything is ok. If you don't want to show us, just show it to the group admin and that's all fine". The second plaintiff replied "@PassengerK (member 18's avatar), "[y]ou are ill-bred. You can't tell what is right and what is wrong. You are arbitrary in saying that someone is a fraud".
At 6:20 pm, the third defendant posted: To be responsible for my own speech, I checked again on the only Royal Australasian College of Surgeons in Australia, but did not find the name as claimed by Classmate Li for membership. There is no member with that surname of Li.
Notwithstanding the posts by the second plaintiff, neither the third defendant nor anyone else participating in the WeChat group at this point in time posted any comment which suggested that the doctor's name was anything but "Li".
At 6:42 pm, the second plaintiff posted: @Rachel (the third defendant, Ms Ma's avatar): You should only come to a conclusion after you find out that person's English name. It is Mainland Chinese way to use Pinyin as English name. This is the last time I will tell you this. I can't do anything if you don't understand.
At 6:47 pm, the third defendant implored the person posting as "@Sunshine" to clarify the correct name of Dr Li, posting: @Sunshine Do you know it very well? How to spell Li in English? and I checked both 'Li' and 'Lee', but got no results. Since you keep saying that I am wrong, can't you tell me the correct way of spelling? How hard is it to spell the surname of Li?
In the following post, which was addressed to the third defendant at 6:47 pm, member 3 commented that "this person", being a reference to "@Sunshine", did not understand the Chinese language. This reinforced that the identification of the doctor reached by members of the WeChat group was a doctor with the name "Li".
At 6:59 pm, the second plaintiff posted: That's why I asked them to check. You will find out if they are licensed after checking. Why do you argue? What is real won't be fake. What is fake won't be real.
The second plaintiff repeated a similar post at 7:31 pm.
Following the third post complained of at 7:43 pm and the fourth and fifth posts complained of at 7:46 pm, almost an hour later at 8:37 pm, member 37 (whose avatar is "@Quincy") made his first post which said "I have finally read it all. It's so wonderful" and then at 8:43 pm posts: This 'sunshine' must be Siew Yi Lee, ie, 'Li Xiao Yu' herself. You can check this name.
At 8:49 pm, member 37 posts a screenshot search result from the webpage of the Australian Health Practitioner Regulation Authority (AHPRA) in relation to the second plaintiff, checking on the name "Lee, Siew Yi".
The third defendant says that it is clear that member 37 had read the phalanx of clues provided by the second plaintiff and was then able to work out the correct name of the second plaintiff. It is also to be observed that the publication of the second plaintiff's registration from the AHPRA webpage corrected the first post complained of which had stated that the doctor associated with the clinic was not registered.

The strike-out/summary dismissal application

The third defendant applied to strike out the particulars of publication, identification, and extrinsic facts in the amended statement of claim. The first defendant, who was self-represented, joined in that application insofar as the particulars related to him. After a two-day hearing in August 2020, Gibson DCJ delivered judgment on 29 October 2020 making the orders as indicated: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2020] NSWDC 786.
The judge observed that the majority of the material relied upon for identification came from the second plaintiff's own contributions to the WeChat group, principally in refusing to answer questions as to whether she was the "Dr Li" in question and in making other members suspicious as to the identity of the doctor performing the operations at the clinic: at [85].
Addressing what the judge called the "Li Xiao Yu" problem, being what to make of the Chinese characters and their translation into English, the judge said at [87]: It is clear from the text of the WeChat conversations that, whatever the experts called by both parties say, none of the participants in the debate appear to have known about or participated in any discussion of alternative pronunciations or spellings for this name. The only party volunteering this potential explanation is the second plaintiff herself, but she then goes on to repeat that if the others in the chat really want to know, they have to visit the clinic personally.
The judge found that the particulars of identification in the amended statement of claim must be completely repleaded (at [77], [83]), that there was an absence of proper particulars of other persons who downloaded each of the matters complained of, as well as how each matter complained of identified each of the appellants (at [84]), and that the extrinsic facts pleaded were deficient and required repleading (at [93]).
After noting that neither party sought to separate the claims brought by the plaintiffs, with both parties adopting an "all or nothing" approach (at [103]), the judge concluded that the particulars of "identification, downloading and extrinsic facts" should be struck out and the proceedings dismissed on the basis that a complete recasting of those particulars would be required. The judge also explained why no further leave to amend could be granted. It is appropriate to reproduce this part of the reasons in full: [105] Having commenced proceedings at the last minute, the plaintiffs then involved themselves in a long series of applications in the Supreme Court, in a claim notable for its poor pleading, overblown special damages claim and wrongly named defendants. After seven attempts over the past four years (which Mr Polden noted was one more than in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37), the plaintiffs still have not produced a pleading which can go forward. As Mr Young has acknowledged, certain portions must be revised; in addition, in the course of this judgment, I have indicated rulings I would make which would require a complete recasting of the particulars of identification, downloading and extrinsic facts for both plaintiffs, in relation to each of the publications. [106] The unhappy history of these proceedings, the length of time it has taken for these issues to be able to be dealt with by the court and the potential unfairness for both parties in dealing with events of more than four years ago are relevant to the exercise of discretion in granting leave to amend one more time: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. [107] An additional difficulty is that these proceedings are, to use Hunt J's expression in Lazarus, "a tempest in a teacup" in circumstances where after so long a delay, the plaintiffs' failure to find any identifiable person who read the matters complained of is a significant factor of unfairness not only for the defendants but for the plaintiffs themselves. [108] Every case management technique that the courts have been able to offer has been made available to the plaintiffs. The careful assistance of McCallum J included a referral to mediation and a number of judgments. Hoeben CJ at CL similarly endeavoured to draw the parties' attention to the relevant issues. [109] The case management systems used in this court included a special fixture to try to bring the parties up to speed. There is already a very lengthy judgment on pleading issues, handed down in 2019. Unfortunately, after a series of adjournments and extensions to accommodate them, a year later, the plaintiffs still put a pleading before the court which contains not only factual inaccuracies and poor pleadings but a claim which, when it is looked at objectively, is half a dozen sentences from a two-sided argument, participated in by very few people, and occurring over four years ago. [110] There must come a time when no further leave to amend can be granted. The plaintiffs are not in fact even seeking leave to amend. Their position is that the amendments they acknowledge are a mere tidy-up, that the claim should go forward to a hearing and that if there are any problems with the next set of pleadings, these issues can be dealt with at the trial. [111] The defects of pleading are clearer in the case brought by the second plaintiff, but the particulars of the first plaintiff (notably relating to the claim that the Sydney Today stub names the first plaintiff and gives its address and telephone number), must be revised. Given the procedural history, the likelihood is that, if I were to make orders striking out the particulars I have identified as defective, further defective particulars would appear in their place. Without these essential particulars in relation to publication issues on which they bear the onus, the plaintiffs cannot establish a cause of action. [112] Taking all of the above matters into account, and noting the central importance of a properly pleaded case on identification and downloading by persons with knowledge of the relevant extrinsic facts, I consider that the first and third defendants have made out their case not only for the striking out of the challenged particulars but also for the dismissal of the proceedings.

Grounds of appeal

The notice of appeal filed 17 May 2021 raises two grounds as follows:

ground 1 contends that the primary judge erred in striking out the whole or all the following paragraphs of the amended statement of claim: pars 6, 8, 9 (particulars of identification), 11(a), 12 (a)-(vii), 14 (particulars of extrinsic facts), 15 (particulars of identification), 17, 18 (particulars of identification), and 20 (particulars of extrinsic facts); and
ground 2 contends that to the extent that ground 1 is allowed in whole or in part, the primary judge erred in dismissing the proceedings pursuant to UCPR, r 13.4.

Submissions

Ground 1 is singularly uninformative. It fails to specify the nature of the asserted error by her Honour in striking out the specified particulars. In oral argument, senior counsel for the plaintiffs submitted that: 1. her Honour erred in her approach to the strike-out application because she did not "stand back and look at the pleading from [the] point of view" of whether the plaintiffs had provided such particulars as are necessary for the defendants to know the case they had to meet; instead, her Honour dealt with the individual pleading complaints at a level of rigidity that was not appropriate; 2. her Honour erred in finding wholescale deficiencies in the pleading; and 3. her Honour should have concluded that any deficiencies were easily capable of remedy and should have granted leave to replead for that purpose.
Senior counsel for the appellants accepted that if her Honour's characterisation of the pleading as being wholly deficient was correct, then her Honour was also correct in refusing leave to replead.

The judge's approach to the strike-out application

It should be said immediately that the judge did not err in her approach to the strike-out application. Her Honour correctly identified that the question raised by the pleading dispute was whether the plaintiffs had failed to provide such particulars of publication and identification as are necessary for the defendants to know the case they have to meet: at [5]-[6].
Contrary to the plaintiffs' submissions on appeal, her Honour did not approach this question by applying rigid rules; rather, she proceeded on the basis that a generous approach to particulars of identification should be taken, and that the court should be cautious about being overly pedantic in requiring correct identification: at [54].
That her Honour dealt with the individual pleading complaints by reference to the particulars in the amended statement of claim is not a valid criticism, as the plaintiffs contended; it was the very task her Honour was required to undertake, which she did when determining whether the pleadings provided sufficient particulars as are necessary for the defendants to know the case they had to meet.

Whether wholescale deficiencies in the pleading

A defamatory publication is not actionable unless it is established to have been published "of and concerning" the plaintiff: Lee v Wilson (1934) 51 CLR 276 at 288 (Dixon J); [1934] HCA 60. As noted in Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at [128] (Gleeson JA, Ward and Payne JJA agreeing), where the words do not specifically name the plaintiff, the test for identification is that stated by Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 at 238; [1918] HCA 50: The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?
The judge correctly observed that where the plaintiff claims to be identified in a publication, but is not named, there is a requirement to plead relevant identifying facts: at [49]. The requirement to give particulars of extrinsic facts known to certain readers of the publication itself which enabled them to reasonably identify the plaintiff as the person described in the publication is well-established: Cross v Denley (1952) 52 SR (NSW) 112 at 116 (Owen J); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371C-D (Samuels JA); Kruse v Lindner (1978) 45 FLR 412 at 414 (Smithers J); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243-1244 (Lord Reid).
As the judge also noted (at [51]), the provision of such particulars is a requirement under the rules: UCPR, r 15.19(1)(d). The specific pleading requirement in r 15.19(1)(d) supplements the general requirement in r 15.1(1) that a pleading provide such particulars "as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet". The purpose of particulars is to identify the nature of the case the other party is called upon to meet and prevent surprise: Fregnan v Stanizzo (2016) 92 NSWLR 318; [2016] NSWCA 264 at [11]-[13] (Macfarlan JA, Beazley P and Leeming JA agreeing), citing Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70; Sims v Wran [1984] 1 NSWLR 317 at 321 (Hunt J).
When applying these rules it is necessary to bear in mind, since the enactment of the Civil Procedure Act 2005 (NSW), that the overriding purpose of the Act and the UCPR is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 56(1)). For this reason, in making procedural orders regard is to be had, among other things, to "the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties" (s 57(1)(d)): Fregnan v Stanizzo at [14].

First plaintiff

The particulars of identification of the first plaintiff relied on three matters: first, that the advertisement was posted in the WeChat group and named a company, provided its business address in Chatswood, telephone numbers, and website address as well as a link to that website (par 6(a)); second, that the second plaintiff is the only doctor identified by name on the first plaintiff's website (par 6(b)); and third, an inference that it would have been obvious to any reader of each WeChat group post complained of that the "doctor" to whom that post referred was a doctor who worked for the corporation named in the advertisement (being the first plaintiff) (par 6(c)).
In finding that the particulars of identification of the first plaintiff in pars 6 and 12 of the amended statement of claim must be completely repleaded, the judge gave three reasons. The first was that the particulars of identification relied upon the premise that the advertisement "was posted" onto the WeChat group site: at [74]. (The plaintiffs accept that this is incorrect; only the stub appears on the chat site.) Next, the claim that the first plaintiff is "named" in the stub was also incorrect as the stub set out the name and address of "Sydney Today", and it was only by clicking on the link to the advertisement that the name and address of the first plaintiff appeared, and the name of the second plaintiff does not appear at all in the advertisement: at [75]. Third, the identifying factors listed in the particulars are not contained in the stub, as claimed in the particulars; they only become known by clicking on the "Sydney Today" link and from there clicking onto further web pages: at [76].
The plaintiffs say that the deficiencies identified by her Honour are minor, that the criticisms of the identification particulars could have been addressed if leave was given to file a further amended pleading, and these errors did not justify summary dismissal of the proceedings.
A major difficulty with this submission is that the plaintiffs eschewed seeking leave to replead below, as the judge noted at [110]. The plaintiffs should not be permitted to approbate and reprobate. Addressing the adequacy of the particulars, including the proposed amendments, there remain deficiencies in the identification of the first plaintiff.
There are no extrinsic facts pleaded as to how the first plaintiff is identified in the five publications in circumstances where it is not itself named in any of the publications complained of, and the advertisement is ambiguous as it only used informal names consisting of generic words to refer to the clinic (a "Sydney Plastic & Cosmetic Medical Clinic", "The Sydney plastic and cosmetic medical centre", WeChat accounts: "Sydneycosmetic" and "Sydneycosmeticclinic", and a website: "thesydneycosmetic.com.au"). The particulars do not specify whether any person reading any of the five publications accessed the first plaintiff's website and identified the company by its proper title.
The proposed amendments to the pleading seek to add a new particular 6(d)(vi) as follows: The Court should infer that members of the WeChat group who read the whole thread, members who remained engaged in the ongoing discussion, as particularised above, are likely to have clicked through to the advertisement that the Sydney Today "stub" link to, and also then accessed the website of the first plaintiff (as above, that website address was listed, and the website was linked to, in the advertisement).
As the defendants correctly submitted, it is pure speculation that members of the group clicked on both the advertisement referred to in the stub (posted in the WeChat group) and then accessed the first plaintiff's website by clicking on the hyperlink in the advertisement. The absence of the first plaintiff's proper title in the advertisement and the absence of particulars of persons who accessed the website creates uncertainty as to whether any reader of the five publications complained of reasonably understood the words in the posts to refer to the first plaintiff: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 at [18], a case where the particulars were not capable of identifying the relevant plaintiff.
Whilst this case concerns the anterior question as to whether the particulars are sufficient to allow the defendants to know the case they have to meet, given the absence of the first plaintiff's proper title in the advertisement, her Honour was correct to find that in the circumstances of this case the particulars should list the names and addresses of persons to whom the matters complained of were published and who understood from extrinsic facts that the clinic referred to in the advertisement referred to the first plaintiff.

Second plaintiff

After acknowledging in particular 6(d) that the plaintiffs cannot particularise the name of any individual who read the first matter complained of and identified the "targeted" doctor by her English name "Dr Siew Yi Lee", the plaintiffs pleaded that identification of the second plaintiff may be inferred based on a platform of facts for six inferences and seek to rely upon a seventh inference which was included in the further draft pleading. All of these particulars are contingent upon the inference that a member of the group is likely to have clicked on the stub, then clicked on the hyperlink in the advertisement to the website, and then read the content of the website and translated the Chinese characters to the correct name of the second plaintiff.
In finding that the particulars of identification of the second plaintiff were deficient, the judge referred to the following matters. First, the difficulty with the inference that members of the WeChat group guessed that the person using the "@Sunshine" avatar was the doctor named on the clinic's website is that certain members did ask her and she denied it. Accepting that whether such an inference was made out was an issue for the jury, the particulars of identification were deficient in not addressing the material going against the second plaintiff's case. Second, the post by @Quincy at 8:43 pm identifying the "doctor" as "Siew Yi Lee" was well after the publication of the matters complained of. Third, the posts by Ms Cheng between 3:24 pm and 4:02 pm must be read in the context of the second plaintiff's response effectively denying that she was "Dr Li". Fourth, the particulars at par 6(d)(iv) and (v) asserting that at least some persons read the whole of the chat and can be taken to have read all of the matters complained of was supposition: at [80].
Addressing the plaintiffs' submissions that the inferences relied upon by the plaintiffs are sufficient to allow the defendants to know the case they have to meet, the following observations can be made.
Particular 6(d)(i) claims that any reader of the first matter complained of who visited the first plaintiff's website would see that only one doctor was named on the website and claimed: Therefore any reader would understand [the second plaintiff] to be the person in the first matter complained of, whether or not her name was translated as Li Ziao / Xiao Yu or Siew Yi Lee.
The deficiency with this particular is that (a) no group member who is claimed to have visited the first plaintiff's website is identified by name and address, (b) even if a group member visited the first plaintiff's website and translated the Chinese characters "李小瑜" as "Li Xiao Yu" or "Li Ziao Yu", they would not have understood the second plaintiff to be the person to whom the matter complained of referred, and (c) no particulars are given of any group member who translated the Chinese characters as "Siew Yi Lee", being the second plaintiff's English name. Nor did the plaintiffs have any substantive response to the defendants' submission that there is no room for the plaintiffs to make such an inference as it is evident from the posts in the Wechat group (prior to 8:43 pm on 18 June 2016) that the doctor's name was in fact translated to a different name from that of the second plaintiff.
The plaintiffs say that even if the Chinese characters naming the second plaintiff are translated as "Li Xiao Yu", the second plaintiff was still defamed because she was the principal of the first plaintiff and the only doctor named on its website. However, as indicated, no group member who is claimed to have visited the first plaintiff's website is identified by name and address. And there are no facts pleaded to support the claim or inference that any group member who translated the Chinese characters on the first plaintiff's website as "Li Xiao Yu" understood the name "Li Xiao Yu" to refer to the second plaintiff.
Particular 6(d)(ii) (as proposed to be amended) claims that while readers translating the Chinese characters using pinyin may have translated the second plaintiff's name as "Li Xiao Yu", readers using the Taiwanese translation system would have understood and translated her name to be Siew Ye Lee. The plaintiffs provided by way of example the identification by @Quincy at 8:43 pm on 18 June 2016 of "Siew Yi Lee". However, as the judge correctly observed, no particulars are given of the basis of the invited inference that there may be members of the WeChat group who used the Taiwanese system and understood and translated the Chinese characters to be Siew Yi Lee. That is only speculation; if there were any other than @Quincy, they did not post their conclusions.
As to the significance of the identification of the second plaintiff by Quincy at 8:43 pm, it is not necessary to determine whether the particulars provided are not capable of identifying the second plaintiff because the identification by @Quincy at 8:43 pm was directly brought about by the second plaintiff's intervention in the WeChat group. This question is different from whether the particulars are sufficient to allow the defendants to know the case they have to meet.
As to the latter question, the plaintiffs say that they do not have to pre-emptively plead or particularise anything in relation to the issue of self-identification by the second plaintiff; this is a matter for the defendants to raise in their defence and ultimately a matter to be determined at trial. The plaintiffs say that the judge erred in taking this matter into account on the pleading dispute. This submission misses the point her Honour was making (at [61]) about inadequate particulars where the relevant extrinsic facts are those provided by the plaintiff to readers who would not otherwise have made the identification, referring to Tobin and Sexton, Australian Defamation Law and Practice (LexisNexis) at [6090], citing Scelfo v Rutgers University (1971) 282 A 2d 445.
Her Honour is not to be taken as saying that the second plaintiff must pre-emptively plead her self-identification, rather, when assessing the adequacy of identification particulars, the second plaintiff could not be reasonably identified where the relevant extrinsic facts are those provided by the second plaintiff herself, and for this reason the particulars of identification were deficient because they did not make clear whether the claimed identification of the second plaintiff by readers of the five matters complained of was either made independently of or because of the direct intervention of the second plaintiff in the posts in the WeChat group.
Particular 6(d)(iii) relies upon an inference that readers of the first matter complained of continued to read the subsequent posts in the group and would have seen four matters which are said to have identified the second plaintiff. The first, sub-par (a), relies upon "numerous" posts by the second plaintiff showing her photo and avatar username "Siew_Yi". The defendants say that this particular is simply wrong; neither the avatar nor the profile photo are identified as the second plaintiff by any group member, and none of the posts by the second plaintiff included the username "Siew_Yi". Counsel for the plaintiffs did not attempt to uphold this particular.
Second, sub-par (b) relies upon posts by Ms Cheng between 3:24 pm and 4:02 pm, including the 4:02 pm post where Ms Cheng states the photo of "@Sunshine" "looks like Dr Li". These posts by Ms Cheng are not particulars of identification of the second plaintiff. Ms Cheng's expressed understanding that the profile photo of "@Sunshine" looks like Dr Li reinforced to the readers of the posts the identification of the doctor as "Dr Li". It is not claimed in the particulars that Ms Cheng understood that the doctor she identified in the profile photo was the second plaintiff. The identification by Ms Cheng of some other person, real or imaginary, does not provide the second plaintiff with any cause of action: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705 (Greer LJ).
The third and fourth matters, in sub-pars (c) and (d), are posts at 8:49 pm by "@Quincy" and at 9:20 pm by "@Mika Kate". These posts are subsequent to the identification of the second plaintiff as "Siew Yi Lee" by @Quincy at 8:43 pm, which has been addressed above. Importantly, the post at 8:49 pm confirms the second plaintiff's registration details from AHPRA, and the post at 9:20 pm contains no more than the second plaintiff's WeChat profile page with her photo and WeChat ID "Siew Yi".
Particular 6(d)(iv) relies upon posts by three members of the WeChat group who are said to have read through the whole thread at various points in time: one at 6:03 pm, another at 6.04 pm, and @Quincy at 8:37 pm. No facts are pleaded from which an inference is available that any of these members had, at the time of posting to the chat site, identified the second plaintiff by her correct name.
Particular 6(d)(v) claims that nine members remained engaged in the WeChat group thread after the post by @Quincy had named the second plaintiff at 8:43 pm. The defendants accept that these members may well have read that identification but repeat their submission that this was entirely due to the intervention of the second plaintiff. That nine group members remained engaged does not address the deficiency in the earlier particulars: see [68] above.
Particular 6(d)(vi) claims that the second plaintiff, as the principal and sole owner of the first plaintiff, is the alter ego of the first plaintiff. The defendants accept that this may be a true extrinsic fact but say that there is no particular which points to any member knowing this fact, such that it is not relevant to the identification of the second plaintiff. That submission should be accepted.

Particulars of publication

The judge correctly approached the particulars of publication by reference to the requirement that particulars of publication be "of and concerning the plaintiff": at [49].
As to the first matter complained of, the particulars of publication (prior to the proposed amendments) were that "many or all" members of the WeChat group downloaded and read the first matter complained of (par 6(b)), that it should be inferred that the first and third defendants and Ms Cheng, and possibly username "@Mika Kate", downloaded the material in Australia (par 6(c)), and that it should be inferred, given the name of the group, that readers downloaded the chat (not just the first matter complained of) in Sydney (par 6(c)).
The judge found that there was an absence of proper particulars of other persons downloading each of the matters complained of as well as identifying each of the plaintiffs: at [84].
The particulars of publication of the first matter complained of were deficient in failing to specify for each of the first and third defendants, Ms Cheng, and the username "@Mika Kate", the extrinsic facts known to those persons to reasonably identify either the first plaintiff by its proper corporate name, or the second plaintiff as the person referred to in the first matter complained of as "Li Xiao Yu".
This deficiency in the particulars of publication is not addressed in the proposed amendments. The proposed new particular in par 6(c) relies upon three group members having "read the whole thread at various points in time" and upon a new par 6(d) that certain members (identified only as seven avatars), including the first and third defendants, "remained engaged in the thread after the unambiguous identification of the second plaintiff particularised at particular 6(d)(iii)(3) above". This seems to be intended as a reference to the particulars of identification two pages below rather than "above" in par 6(d)(iii); there is no "par 6(d)(iii)(3)".
As the defendants correctly point out, the new particulars of publication suffer from the same defects regarding the particulars "of and concerning" the plaintiffs on identification which have been addressed above. An essential part of the second plaintiff's case is that Taiwanese Chinese readers who clicked through to the first plaintiff's website would have understood the Chinese characters to refer to "Dr Siew Yi Lee". That underscores the importance of giving particulars of the names and addresses of persons who are alleged to have downloaded the five publications, clicked on the advertisement, and also clicked on the hyperlink to the website. Despite four years for the plaintiffs to make enquiries, no such particulars are given.
The same defects are found in the particulars of publication of the other matters complained of, where essentially the same particulars are provided as in par 6 of the amended statement of claim: see pars 9(c) and (d), 12(c) and (d), 15(c) and (d), and 18(c) and (d).

Extrinsic facts

Turning to the plaintiffs' alternative pleading that with the aid of "extrinsic facts" each of the five posts complained of is defamatory of the plaintiffs, the pleading of extrinsic facts for the first and fourth posts are: The fact of the publication of the advertisement naming the First Plaintiff at about 11:36 am. Readers of the first matter complained of knew that doctor to whom the Third Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread. and for the second, third and fifth posts are: The fact of the publication of the advertisement naming the First Plaintiff at about 11:36 am. Readers of the second matter complained of knew that doctor to whom the First Defendant referred was a doctor that worked for the clinic named in the advertisement which had commenced the discussion on the thread.
In finding that the extrinsic facts pleaded were deficient and required repleading, her Honour found that the publication at 11:36 am did not name the first plaintiff (it was a link that must be clicked on), there was a significant time gap between the first and the remaining publications, and there was a wealth of conflicting material in the interim, principally coming from the second plaintiff: at [93].
Her Honour noted (at [93]) that the deficiency in the pleading of the "extrinsic facts" was acknowledged by counsel for the plaintiffs below (who was not the counsel appearing on appeal). Notwithstanding that concession, the plaintiffs submitted on appeal that there are no material defects in these extrinsic facts. The concession below was properly made and there was no error by the judge in finding that the particulars of "extrinsic facts" are deficient.

Conclusion

There is no clear injustice in striking out the particulars of publication, identification and extrinsic facts for lack of adequate particulars.

Summary dismissal

In light of the above conclusion in relation to the order striking out the particulars, the challenge to her Honour's exercise of discretion not to permit further amendment falls away.
It is plain that her Honour properly had regard to the material considerations, including the procedural history of the matter, the plaintiffs' failure to comply with the condition of repleading imposed on 11 September 2019, that the amended statement of claim was the seventh iteration of the pleading over four years, and the importance of "the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties" (Civil Procedure Act, s 57(1)(d)). The exercise of the discretion not to permit further amendment was well-open to her Honour.

Costs order: leave to appeal

Given the failure of the substantive appeal, the challenge to the indemnity costs order below does not arise. The application for leave to appeal should be dismissed.

Orders

There is no reason why costs should not follow the event in each proceeding in this Court: UCPR, r 42.1. I propose the following orders:

2021/28293 1. Revoke the grant of leave to appeal given on 7 May 2021; 2. Notice of appeal filed 17 May 2021 be dismissed; 3. Appellants to pay the respondents' costs in this Court.

2021/103515 1. Summons seeking leave to appeal filed 29 June 2021 be dismissed with costs.

McCALLUM JA: I agree with Gleeson JA.

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: 28 January 2022

Solicitors: Dentons Australia Pty Ltd (Appellants) United Lawyers (Second respondent) File Number(s): 2021/28293; 2021/103515 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 786; [2021] NSWDC 98 Date of Decision: 29 October 2020; 31 March 2021 Before: Gibson DCJ File Number(s): 2017/180689

HEADNOTE [This headnote is not to be read as part of the judgment] The plaintiffs, The Sydney Cosmetic Specialist Clinic Pty Ltd and Dr Siew Yi Lee, operated a cosmetic clinic in Chatswood. They commenced defamation proceedings in the Supreme Court in June 2017 claiming damages against several defendants. After the plaintiffs failed to appear at a show cause hearing, the proceedings were transferred to the District Court. A second further amended statement of claim was struck out by Gibson DCJ with leave to replead on the condition that particulars were provided identifying the persons to whom the matters complained of were published and how each person identified each of the plaintiffs. The plaintiffs filed a third further amended statement of claim on 24 October 2019 (the seventh pleading over four years) but did not comply with the condition of leave. The final version of the amended statement of claim alleged that five posts in a WeChat group formed for real estate agents and investors were defamatory of the plaintiffs. The posts followed a stub posted in the WeChat group on 18 June 2016, which contained a link to an advertisement in Chinese language in an online Chinese media publication, "Sydney Today", referring to a Sydney plastic and cosmetic medical clinic; the advertisement contained a hyperlink to a website of the corporate plaintiff which referred to the second plaintiff in simplified Chinese characters only. The allegedly defamatory posts referred to the doctor associated with the clinic as "Li Xiao Yu" not "Dr Siew Yi Lee". The second plaintiff, using an avatar, made posts in the WeChat group throughout the afternoon of 18 June 2016 giving clues and pointers as to the identity of the doctor associated with the clinic as not being "Li Xiao Yu", but did not reveal her own identity. On 29 October 2020, Gibson DCJ made orders striking out certain particulars of the defamation claim and summarily dismissing the proceedings. The plaintiffs were granted leave to appeal on 7 May 2021. The appeal raised two issues: whether the primary judge erred in striking out the particulars of identification, publication and extrinsic facts in the amended statement of claim; and whether the primary judge erred in dismissing the proceedings. The plaintiffs also sought leave to appeal against an indemnity costs order made by Gibson DCJ on 31 March 2021. Held, revoking the grant of leave and dismissing both the appeal and the application for leave to appeal against the costs order (per Gleeson JA, Basten and McCallum JJA agreeing): As to the grant of leave:

Leave to appeal should be revoked since the appeal raised no issue of principle or question of public importance, nor an injustice that was reasonably clear in the sense of going beyond what was merely arguable: at [5]. Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 applied. As to issue 1

Judgment

BASTEN JA: I agree with Gleeson JA.
GLEESON JA: The plaintiffs in the court below, The Sydney Cosmetic Specialist Clinic Pty Ltd and Dr Siew Yi Lee, appeal against orders made by Gibson DCJ on 29 October 2020 striking out certain particulars of their defamation claim and summarily dismissing the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4. As the summary dismissal order is an interlocutory order, leave to appeal is required: District Court Act 1973 (NSW), s 127(2)(a); Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]; McGinn v Cranbrook School [2016] NSWCA 226 at [20]. Leave was granted on 7 May 2021. It is convenient to refer to the appellants as the plaintiffs. At the same time, the plaintiffs were directed to serve the final iteration of the pleading that they would seek to rely upon if otherwise successful on the appeal, given the acknowledgment of their senior counsel on the leave application that some corrections in the pleading were required.
Additionally, the plaintiffs seek leave to appeal against indemnity costs orders made by Gibson DCJ on 31 March 2021 in favour of the first and third defendants, who are the respondents to the appeal. The plaintiffs acknowledged that this application for leave is solely consequential upon the outcome of the appeal.
The subject matter of the appeal is a pleading dispute in relation to five posts in a WeChat group which are alleged to be defamatory of the plaintiffs. At issue is whether the pleadings (the seventh version over four years) provide such particulars as are necessary for the defendants to know the case they have to meet. The plaintiffs say that the judge erred in finding that there were wholescale deficiencies in the pleading and that, notwithstanding the history of the matter, leave to replead should be granted.
The Court indicated at the commencement of the hearing that it was considering revoking the grant of leave and the parties should address that issue in oral argument. Having considered the parties' submissions, I have concluded that the grant of leave to appeal should be revoked. The appeal raises no issue of principle or question of public importance. And for the reasons that follow, there is no reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Accordingly, the notice of appeal filed 21 May 2021 and the summons for leave to appeal against the costs orders should both be dismissed.

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