Cao v Liu - [2013] NSWDC 172

District Court

New South Wales

Medium Neutral Citation: Cao v Liu [2013] NSWDC 172
Hearing dates: 21, 22, 23, 24, 27, 28, 29, 30, 31 May 2013; 29, 30, 31 July 2013
Decision date: 06 September 2013
Jurisdiction: Civil
Before: Judge Walmsley SC
Decision:
Judgment for the defendant

Catchwords: Defamation - publication by email - issue about who sent it - plaintiff failed to prove defendant was the publisher - damages provisionally assessed - triviality defence
Legislation Cited: Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Browne v Dunn (1894) 6 R 67
Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182
Jones v Dunkel (1959) 101 CLR 298
Papaconstuntinos v Holmes a Court [2009] NSWSC 903
Radio 2UE Pty Ltd v Chesterton [2009] HCA 16
Stanton v Fell [2013] NSWSC 1001
Szanto v Melville [2011] VSC 574
Webb v Bloch (1928) 41 CLR 331
Category: Principal judgment
Parties: Plaintiff - Ping Cao
Defendant - Shengrong Liu
Representation: Mr B Goldsmith (solicitor) - Plaintiff
Mr R Rasmussen - Defendant
Goldsmith Lawyers - Plaintiff
Etheringtons Solicitors - Defendant

File Number(s): 2012 / 275052
Publication restriction: Nil

Judgment

This action for damages for defamation was listed for a two day hearing to start on 21 May 2013. In fact the case took 12 days. The plaintiff was represented by Mr B Goldsmith, solicitor. The defendant was represented by Mr R Rasmussen of counsel. The central issue for me to decide is whether the defendant sent an email which is said to have been defamatory.

Publication of the email (I shall call it 'the email' or 'the matter complained of') occurred on 20 November 2011 when an email in Chinese was received in Sydney by some members of a club established to further the interests of Chinese born Australians. The club was called the Chinese Professional Club of Australia (the club). The email alleged inter alia the plaintiff, a former president of the club, had been disloyal to a friend of his in connection with a club election. The email address used suggested the sender had been the defendant, because it incorporated an anglicised version of her name, and was signed "Nancy", a name by which some knew her. But the plaintiff and several of his friends immediately saw it as the work of the defendant's husband, Mr George Yu, also a former president of the club, a man of forthright views, and a man whose views about modern China were different from those of the plaintiff. Mr Yu controlled the club's email system, pursuant to which many club members would engage in a "chat" group, "chatting" by email about matters of mutual interest. Soon after publication the plaintiff and several of his friends sent an email in which they asserted that Mr Yu had been sending emails using his wife's email address. But a 'concerns notice' (under s 14(2) Defamation Act 2005 ('the Act')) inviting an offer of amends was served personally on the defendant on 10 December 2011, and when that occurred she made some statements which suggested she, rather than her husband, had sent the email.

There was no pre litigation discovery. These proceedings were commenced nine months later, on 12 September 2012, and only against the defendant. Despite what she had earlier said (and there are conflicting versions of this) suggesting she had sent the email, as soon as the statement of claim was served on her, she wrote to the plaintiff denying she had sent it, asserting the wrong person had been sued, and that he and his solicitor should "double check" who had published the email. Her husband, Mr Yu, prepared, filed and served for her a verified defence in which she swore she had not sent the email. At that time it was less than twelve months since publication of the matter complained of. But no application was then made (and no application has since been made), to join Mr Yu as an alternative defendant. Nor were any interrogatories later delivered to the defendant to ask her on oath if she had sent the email. Since the proceedings have begun, the defendant has consistently denied she sent the email. The case stands or falls on whether the plaintiff has proved the defendant sent or authorised the sending of the email.

The defendant (as I later conclude) speaks little English, whereas her husband speaks English very well. They did not until shortly before the trial retain lawyers. Mr Yu acted for his wife until then, attending directions hearings and preparing any documents she needed to sign. As I have observed, it was apparent from early in the proceedings that 'publication' was in issue. On 14 February 2013 Judge Gibson directed the plaintiff to serve statements in advance of the hearing, confined to the issue of publication. The plaintiff served two such statements. In one of them there was evidence suggesting the defendant had conceded when receiving the "concerns notice" on 10 December 2011 that she had an email address which her husband did not use and that she had used it to send the email. Although not directed to do this, the defendant responded to the plaintiff's statements by serving two statements, one from her and one from her husband. In hers she agreed she had on 10 December 2011 said words suggesting she had an email address and used emails, and that her husband did not use her email address. But she denied saying she had in fact sent the email or had been the owner of the email address, ([email protected]). At about the same time, purporting to act in accordance with a direction or perhaps a suggestion to put on an amended defence, the defendant filed and served a further verified defence in which she again denied having sent the matter complained of. (Mr Yu's statement was not in evidence before me: it was tendered by the plaintiff but I rejected it for reasons I gave at the time. All of the documents filed by the defendant before she retained solicitors were prepared for her by her husband.)

Throughout the judgment I have quoted verbatim from the documents and transcript, with the obvious errors left in them.

Summary of the course of the hearing

Evidence was adduced from two witnesses in the plaintiff's case that the defendant had, at a club function on 10 December 2011, used words amounting to an admission she had composed and sent the email. That evidence was challenged. Several witnesses were also called on reputation and identification.

The plaintiff and his wife, Ms Jilong Lai, gave evidence as to damage.

The defendant then gave evidence that she had not sent the email, that she had no email addresses, and had never used email. She agreed she had said some words attributed to her by a Mr Cheng at a club function on 10 December 2011 in which she said she used emails, that her husband did not help her with emails, and that she had her own email account. But she told me that that had not been the truth. She explained that when Mr Cheng asked her about whether she sent emails and whether her husband had used her email address, he had spoken to her in a disrespectful way. I took this to mean his questions to her had suggested that as a woman, she was beholden to her husband for assistance with emails. She used the expression "tit for tat", to describe what she had done, to pay him back, as it were, by pretending she could use emails, because he had been supercilious or patronising with her, when in fact she could not and did not use emails at all.

It had not been put to Mr Cheng that he had spoken in a disrespectful manner, or talked down to her. Mr Goldsmith initially proposed to recall Mr Cheng in reply, to deny he had acted in that way. That course was opposed. Then this exchange occurred:

"RASMUSSEN: Your Honour, this point has taken me by surprise a little bit. I'd like to have a quick look at the evidence to see whether that might have been covered already, in a sense, because what we're talking about of course is the defendant's perception. I mean to say that [?whether] somebody's tone of voice is belittling or not is actually subjective; there's nothing objective about that. For one person to say, I wasn't being belittling; and for someone to say, Well, yes, you were; takes the court nowhere at all.

...

I'm prepared to concede, for example, that Mr Chen's view was that he wasn't being belittlingly without making any concession that he was or was not. Because if the defendant, in cross-examination, said that she thought that he was being belittling then how is that--

HIS HONOUR: That was her perception, that he was being supercilious and sexist, I suppose, suggesting that a girl couldn't possibly manage to handle an email.

RASMUSSEN: That's right.

GOLDSMITH: Your Honour, I will accept that concession."

Mr Yu then told me he had set up the email address and sent the email. It was suggested to Mr Yu in cross examination that his evidence was false and had been given to shield his wife. He did not accept that. He agreed he had helped his wife with the proceedings, in particular by preparing her statement, and he said she had told him she had used words to Mr Cheng along the lines that she had and used an email account. Mr Yu said however that to his knowledge his wife did not use emails.

There was no evidence before me from the internet service provider to show for example who had set up the email address, and what other emails had been sent from it.

After Mr Yu gave evidence that the defendant had not sent the email, (evidence I ultimately accepted), Mr Goldsmith foreshadowed that the plaintiff would join Mr Yu, but for the sole purpose of having a costs order made against him on an indemnity basis, if it were found he had been responsible for the plaintiff's incurring unnecessary costs. Thus far however, no application has been made to join him.

An adjournment application and an application to amend the pleadings

I spent the morning of the first day hearing applications to amend pleadings, and for an adjournment. The plaintiff wanted to amend his statement of claim to add an imputation, and to make some minor amendments. The defendant did not oppose that course but wanted an adjournment of the hearing, and wanted to plead qualified privilege. Mr Goldsmith was concerned that if the defendant were to be permitted to plead qualified privilege, the case would have to be adjourned for quite some time, because he would have needed discovery, including, probably, interrogation, in his efforts to deal with malice.

Ultimately the plaintiff withdrew his application to add the new imputation, when I made it clear that if he persisted with it I would grant an adjournment sought by the defendant. Although the defendant wanted an adjournment regardless of that issue, I refused that application. I said I would deliver reasons later. These are those reasons:

(a) The plaintiff wanted to proceed.

(b) He had a number of witnesses at court.

(d) The case had been set down for hearing some months before.

(e) The defendant had long been unrepresented and had only retained lawyers a week or so before the trial.

(f) It was not the plaintiff's fault that the defendant had only at the last minute retained lawyers, and that the need to plead defences such as qualified privilege had only recently become apparent to the defendant.

(g) The defendant had been warned several times over the immediately preceding few months when the matter was before the court for directions, that she should have a lawyer and that her defences as previously filed were inadequate.

(h) I was not confident the plaintiff would be adequately compensated by any costs order I made if I adjourned the matter.

I accepted that the defendant, either alone, or with her husband's help, had tried unsuccessfully since the statement of claim had been served, to find solicitors prepared to act for her. But I considered the interests of justice required that the matter proceed. In so doing I took into account the provisions of s 56 Civil Procedure Act 2005.

At the conclusion of the hearing the plaintiff sought leave to file a further amended statement of claim inter alia reflecting amendments to his claim for aggravated damages. I consider leave should be given for that as it reflects the way the case was ultimately run.

A dispute about a translation of the matter complained of

I was asked to decide as a preliminary issue whether the plaintiff had, on the balance of probabilities, proved a particular part of the matter complained of, as to which there was a dispute about the translation. This was said to be important because the third imputation relied on what was said to come from the disputed part. Each party called a translator, and each translator was cross examined. I then received the benefit of submissions. After hearing submissions I ruled that the version of the matter complained of put forward by the plaintiff had not been proved on the balance of probabilities. I ruled that the version put forward by the defendant should be admitted into evidence to prove the contents of the matter complained of. I said I would give reasons for that ruling when giving my judgment on all issues. The following are those reasons.

The statement of claim had annexed to it an English translation of what was originally Chinese. The dispute only concerned a part of the translation and revolved around four Chinese characters. The part the plaintiff maintained was in the matter complained of was this phrase: " secretly manipulating people making numerous phone calls..." It was the defendant's case that the correct translation of the relevant part of the Chinese was "behind people's backs made numerous phone calls ..."

Both translators, Ms Tang and Ms Shu, are highly skilled. Each has an impressive curriculum vitae. As I observed each of them I formed the view that each was honest and doing her best to be accurate. Each made appropriate concessions. In the end I preferred Ms Tang's version for these reasons:

(a) Ms Tang has an honours degree in arts from the University of Hong Kong in translation, in English literature, and in Chinese language and literature. Although Ms Shu also has university degrees, there is no evidence she has one in any of those disciplines;

(b) There was evidence that although the dispute concerned four Chinese characters, Ms Tang did not include in her English version any part of the meaning of the third and fourth characters. She said that was because to have included meaning from the third and fourth characters would have involved introducing superfluous words. Ms Tang was criticised for not translating those two characters and for not making a translator's note about why she had not done so. But her explanation that there would otherwise have been a repetition involved seemed to me logical, and I considered there was a degree of superfluity in Ms Shu's translation. As Ms Tang explained (T73.30): (explaining that the last two of the four characters meant to her "to do" or "conduct"):

"when you translate it literally it will be 'to operate behind people's back', and then following that the next sentence would be 'to make numerous phone calls' so to me that is a repetition. 'To operate behind people's back to make numerous phone calls'- actually that operation 'behind people's back' it was to make the numerous phone calls. That's how I interpreted it."

(c) Thus she came to the translation "behind people's backs made numerous phone calls." Although Ms Shu had said the word "manipulating" should have been included, Ms Tang said you would not say "manipulating behind people's backs making phone calls": the making of the phone calls was the act of manipulation. So to use that word meant repetition;

(d) The English version of the email prepared by Ms Tang (although not without its spelling and grammatical imperfections) seems to me to flow much better than that prepared by Ms Shu. Although I do not mean to be disrespectful to her, I consider there is a slight clumsiness to Ms Shu's English prose which is not present in that of Ms Tang.

Ms Tang's version of the matter complained of became Exhibit 2.

The matter complained of

The plaintiff says he was defamed when the email was sent by the defendant on 20 November 2011 to a number of members of the club, who were also members of the email 'chat' club to which I have earlier referred. The email was sent in the course of a series of emails, all in Chinese, but all translated for the purpose of these proceedings. What began the chain was an email sent by one club member in which he brought attention to the fact that some children had been killed in a bus accident in China, and that the bus had been grossly overloaded. An email from [email protected] (the email address said by the plaintiff to be that of the defendant) was then sent in reply which said "Sir: pick a pleasant topic to talk about". It was signed "Nancy". There was then a response from another club member saying "Since when has CPCA had a Queen Mother? Want to listen to nice things? Stay in the palace". An email from "liunancy" then responded: "Don't be so sour and mean when talking, a man must learn to be kind". Another member, Xiang Jian, responded "Hi, Nancy I am with you. This is what I would say as always that CPCA members, past or present, ought to have manners, ought to understand mutual respect".

There followed some more emails, including from the plaintiff, suggesting there should be more humour and good will and kindness, that it was important that people should enjoy the right to free speech in this country, and that people should lighten up. One email sender was Mr Rupeng Li, a friend of the plaintiff. He was one who asserted (inter alia), the importance of free speech. The final one in the chain before the matter complained of, which was sent by the plaintiff, and which discussed the sender of emails from the "liunancy" address as though she were a female, said:

"Dear Sean [the sender of the previous email in the chain]

As is said, neither of us know much about this lady. Since she is a member, we don't need to worry much. Frankly, when I saw her speak the first time on TALK 'Sir: talk about something pleasant', I was a bit surprised. Joy, we all know her well. She is warm hearted and has truly helped many CPCA members. Those CPCA traditional activities today, such as balls, badminton, SPORT Day have all had something do to with the involvement and initiation on her part and on JAMES ZHAN's part. All of us know Rupeng even better. Due to personal reasons, though he was not involved in CPCA activities as he used to, he has done his best, such as occasionally posing something just for fun.

I still think the line 'since when' has CPCA had a Queen Mother?' was a joke, a little irresponsible plus internet language. Even if she might have felt emphatic (or over sensitive), it does not warrant in saying 'a man must learn to be kind'. Is this line totally inappropriate? Not harsh and mean at all? Lao He, as the former Chairman of CPCA, you've got to uphold fairness and cannot be biased (just joking).

Look, I just feel it was overacting to blame Joy for being unkind, a few extra words resulted in being labelled as 'Don't have to rack your brain to fan the flame and sow dissension here, lest CPCA is not in chaos!' It seems I am really a person who does not understand the rules, why have to dig a hole right here? My sins are threefold: one, I should not have undermined the stability and unity of CPCA; two I shouldn't have incited to cause discord between Rupeng and the rest of us; three, should not have shown disrespect. Guilty. I make a public apology here and punish myself privately.

The lady has indicated to have possessed many inside stories (seems not an average piece of work 'Something is best left without thorough analysis so as not to hurt feelings." In fact, any conspiracy or scandal should be exposed and 'to hurt feelings' should not be kept at the cost of an individual's integrity and dignity. Bring it on, what do you say, brother He? Conspiracy within CPCA, what a crime should that be called? The crime of instigation for subverting the political power in the Club? Is CPCA really looked at to be that important? What an ironic!

In short, agree with Rupeng's comment, 'CPCA TALK should be an open forum platform of letting a hundred flowers blossom and a hundred schools of thought contend. No matter what the topic, discussion should always be allowed'. I'd like to add another point, CPCA, if a registered association in Australia, has got to comply with the relevant Australian Law of Association which is in turn governed by the Australia's Constitution.

When CPCA drops its arrogance, more people will naturally like it. Be less emotional with CPCA, arrogance will be dropped and everyone will relax. This is my humble personal opinion, no intention to talk on behalf of anyone else, let alone 'most members'.

Regards

Ping" (The plaintiff's name)

It is to be noted that the plaintiff referred to Lao He as "brother He". That was important, because the plaintiff was not referred to by name in the matter complained of and, on the issue of identification, the plaintiff relied on the knowledge readers had of his use of that expression in previous emails including the above.

Eventually Mr Rupeng Li, who had started the chain by sending the email with the bus crash story, apologised to others in the chain in a light hearted manner, and sought forgiveness, saying he had misunderstood "Nancy", but now accepted she had just made a suggestion. He thanked everyone who had joined in the discussion.

There was then the following email, sent from the 'liunancy' email address, which was the matter complained of:

"Thank you Rupeng

I reckon some people are simply too calculating, too good an actor.

Just look at his emails to Professor He in which he repeatedly addressed him as Brother He, in such an affectionate manner. However, I recall back in 2008 at the AGM election, how ferociously he stabbed Professor He in the back.

Professor He had already been elected into the 2009 CPCA Committee. This person on the one hand sent out copious amount of emails to manufacture public opinions about the election being unfair, while on the other hand behind people's backs made numerous phone calls to some persons concerned, pleading unashamedly for changes to the election results, and to add the name of his friend. This went on and on until Professor He announced his withdrawal from the 2009 CPCA Committee, only then did he stop.

To me it is still the same old saying: some things are better left unsaid. Since someone is so cocky as to challenge others to 'bring it on', I will simply oblige. I will give him one and then no more, because I don't want to get other people involved, especially not Professor He. I am sorry!

Thank you, Rupeng, once again for your understanding. I respect your, Professor He and Yifei Jiang's opinion of not wanting this argument to go on. On this topic I will say no more, and will not reply to any more email. I do not care what other people might say.

Nancy"

The imputations

The three imputations said to arise were:

(1) The plaintiff engaged in betrayal

(2) The plaintiff sought to falsify election results

(3) The plaintiff is secretly manipulative.

Extrinsic facts

The following were the particularised extrinsic facts:

"Members of the CPCA who used the group site knew that the email address [email protected] was the email address of and used by the plaintiff."

The plaintiff averred that those with knowledge of the relevant extrinsic facts would have read the matter complained of and understood it to refer to the plaintiff.

The plaintiff claimed compensatory and aggravated damages.

The defendant submitted that the imputations were not capable of being of or concerning the plaintiff, they did not convey and were not capable of conveying the pleaded imputations, and the imputations were neither defamatory nor capable of being defamatory of the plaintiff.

The defendant also relied on the s 33 Defamation Act (triviality) defence, and alternatively relied on the circumstances of publication in mitigation.

The course of evidence

The plaintiff took the unusual step of not giving evidence first. Further, he remained in court while other witnesses Mr Goldsmith called gave their evidence.

The first witness called was Mr Jing Ping Cheng. He is a member of the club. He is a friend of the plaintiff. He knew the defendant and her husband at relevant times and had known them since 2005-2006. He knew the defendant as Nancy Liu and her husband as George Yu. He had read the email and thought it referred to the plaintiff. I took him to say that that was because of the reference to 'brother He', and the plaintiff's earlier use of that expression. There was then a club meeting on 10 December 2011 which he attended. Before the meeting the plaintiff had asked him to give an envelope to the defendant. The envelope contained a notice from the plaintiff's lawyer. He gave the defendant the envelope after the meeting, at about 9.30 pm to 10 pm. He observed her open the envelope. He said she appeared to read it, smile and say:

"Mr Cao has gone too far to take this legal action ... if this was happen in China I won't let Mr Cao or Mr Cao go easily."

Then, referring to the email, he said the defendant had said, words to the effect:

"The email complaint was written by herself, not her husband, and her husband didn't have the right to access her mailbox... even within her family she got her privacy, so her husband couldn't access her mailbox."

He said that at the time of publication the plaintiff had enjoyed a good reputation: a reputation as a decent man. He said people questioned the plaintiff's reputation after publication. When Mr Rasmussen put to him the plaintiff's reputation was the same now as before publication, he said he was not sure: he could not judge. In re examination he said he thought there was still some effect on the plaintiff's reputation from the email.

In cross examination it was put to Mr Cheng the defendant had not said she had written the email rather than her husband, and he said this: (T 221.42-44)

"A. She said that was her own mailbox; the email from her own mailbox; she wrote that by herself; her husband didn't have access to her mailbox; even within her family she had her own privacy."

At the conclusion of the cross examination some questions were asked on the voir dire. Then Mr Goldsmith re-examined. Insofar as I have not ruled on the issue, my ruling is that all of the evidence on the voir dire should be evidence in the proceedings. Indeed, I took the parties to agree with that ruling.

Credit of Mr Cheng

Mr Cheng was subjected to a lengthy and searching cross examination. There were some matters which made me cautious about him. For example although it seemed fairly clear to me that he was a friend of the plaintiff, when it was put to him he was a friend of the plaintiff, he questioned what was meant by "friend", only eventually conceding he was indeed the plaintiff's friend. As he then conceded, it had been he who had been entrusted by the plaintiff with the task of serving the "concerns notice" on the defendant.

I have earlier observed that although the email was sent on the "liunancy" email account, some club members thought they could see the hand of Mr Yu in emails being sent from that account. It transpired that shortly after publication of the matter complained of Mr Cheng composed and sent an email (to which the plaintiff and others were signatories,) in which they asserted inter alia, Mr Yu had been using the "liunancy" email account. This email was sent shortly after Mr Yu had been instrumental in having one of its signatories, Reagan Li, expelled from club membership. (At the time this was sent Mr Yu had the position of 'adviser' to the club's committee.) An email from the "liunancy" account had been sent to the club's president, Jenny Lei, complaining that Mr Reagan Li had misconducted himself. Shortly before the matter complained of was published, Reagan Li sent two emails as part of the chain, in at least one of which he had been critical of "Nancy's" attitude. It was following "Nancy's" complaint which followed those emails, Jenny Li expelled Mr Reagan Li from the club's membership. Mr Cheng's email (Exhibit 5), sent on 10 December 2011, a few hours before the AGM, said:

"... It appears George Yu are operating two email accounts, one in his own, the other in his wife's. Under such intense circumference [?circumstances] and during the process of mediation, Nancy has not publicly expressed her identity, we ought to review those attacking words used by Nancy Liu and by George Yu against Ping Cao, we can see the highly similarity.

Furthermore it is reasonable to suppose that George Yu has been using both mailboxes to send email to CPCA members and committee.

...

On dealing with Reagan, it can be said that George Yu is both plaintiff and judge. On one hand, he accused Reagan by using Nancy's identification, on the other hand, he manipulated Jenny Lei to punish Reagan with the capacity of advisor, this has severely impacted the legal principle in Australia. Since George Yu's ignorance to the principle of fairness and justice in Australia, actually he has hidden the truth, and gained some CPCA members' sympathy to Nancy and resentment to Reagan. If we overview the whole process from the context, Reagan's language to Nancy does not have substantial offence, and nothing offensive language which is worthy for investigation. Jenny Lei should have known the relationship between Nancy Liu and George Yu, but we don't know if she did not disclose the fact to CPCA members and committee because of under the pressure. But George Yu hid their marriage relationship to the CPCA members and other committee members, make ignorant CPCA members and committee members to misbelieve him for dealing with the issue impartially, this is a serious cheating and misleading behaviour.

Ping Cao

Jingping Cheng

Joy Xia

Chongyi Feng

Reagan Li"

When Mr Cheng's attention was drawn to that email in cross examination he told me he had merely had a "suspicion" when he wrote it, that Mr Yu had been the author of emails from the "liunancy" address, and he had merely "guessed" he had been the author of emails from that address. He then conceded, however, he had made accusations of serious cheating and misleading behaviour based on that "guess" (T214). In re-examination he told me he no longer thought Mr Yu had been the author of the matter complained of once the defendant had told him she had sent it.

In light of his authorship of Exhibit 5, his response when cross examined about it, and my perception of his initial reluctance to concede his friendship with the plaintiff, I have some reservations about Mr Cheng's credit.

Mr Reagan Li

The plaintiff then called Mr Reagan Li. The email had been published to him. He told me the plaintiff had enjoyed a good reputation before publication of the matter complained of. He said he had made some enquiries about what had been said about the plaintiff after reading the matter complained of. He also said he had had a conversation about the matter complained of with the defendant. (This had occurred at the function on 10 December 2011 where Mr Cheng had handed the envelope with the "concerns notice" to the defendant). According to Mr Li, this was said:

He: "Nancy I think you should not stop other ones talking. Everyone has a right to talk. You should respect the rights of others to talk."

She: "I just suggest a change of topic. Should I not have a right to change topics? "

He: "You have a right to suggest, but not stop talk. It is not polite."

She: "But your email to me is also not polite".

He: "But I sent you two. The first one was very polite."

She: "But you sent a second email. The tone is completely changed. It looks like it was not written by the same people."

Browne v Dunn submission

The plaintiff served a statement from Mr Li on the defendant's advisers during the trial. The defendant then tendered a supplementary statement in which I took her to take issue with Mr Li's evidence as to his conversation with her at the club function, in effect denying she had said what he had attributed to her. She gave no other evidence about Mr Li's statement when she gave evidence in chief, and it was never put to her in cross examination that she had had the above conversation with Mr Li. Mr Goldsmith submitted in his final submissions that I must accept Mr Li's evidence, since he was not cross examined on it. He relied on Jones v Dunkel (1959) 101 CLR 298. The defendant's supplementary statement (Exhibit 6) however, said "Response to Reagan Li Re: Conversation at the 2011 CPCA AGM on 10 December 2011. Referring to paragraph 14 -15 in the statement of Reagan Li regarding the conversation, I deny there was such conversation between Reagan Li and me at the 2011 CPCA AGM held... on 10 December 2011." Further, it was put firmly to him in cross examination that the conversation had never happened. For example:

"Q. You have told us already that you went to the AGM on 10 December 2011?

A. Yes.

...

Q. And you say that you had a very short and unpleasant conversation with Shengrong Liu? Do you agree with that?

A. Yes.

...

Q. Sir, you never had any conversation at all with the lady that you call Nancy Liu at the AGM?

A. I talked with her about the - the emails and she replied. That's all. But your - your second email is - the tone - your has been changed completely. It's not like the same recognise - same people. I said, oh, but just because you're accusation against Ping is so serious I have to use a bit stronger words that's my meaning and we - we talk about that and he said, "Oh, no." But they - they are against me. Attack me. That's about the - the early emails, yes."

I reject Mr Goldsmith's submission that Jones v Dunkel applies. Although he did not refer to Browne v Dunn (1894) 6 R 67, the position would have been the same. The defendant through her counsel challenged the witness in cross examination, and her statement in evidence also put it in issue.

Reagan Li's Credit

To my observation, in evidence in chief, Mr Li was careful and concise, and appeared to have a good memory for events.

There were some matters however which gave me pause. He had reason to be angry with Mr Yu. As appears above, as a signatory to the email drafted by Mr Cheng, he had expressed the view Mr Yu had been instrumental in having him expelled from the club, being both "plaintiff" and "judge". Yet Mr Li told me the expulsion had been like a joke: he had not been angry, he had merely had "mixed feelings". Although denying he had been angry he then conceded he had sent an email about his expulsion, in which he had said he had been angry. And he conceded he had had quite strong feelings about his expulsion. But he told me in re examination he had been upset because an email sent from the "liunancy" address had associated him with several names associated in China with counter-revolutionaries, such as Falun Gong, and that former Chinese nationals living in Australia feel apprehensive about being associated with organisations disliked by the Chinese government, even though they now live in this country. I took him to say that that had been the source of his anger, rather than Mr Yu's action in having him expelled.

As with Mr Cheng, when the email (Exhibit 5) was put to him he retreated, asserting that the allegation that Mr Yu had sent the matter complained of had only been "a guess". Then he said he had not drafted the email, and had not checked it before it had been sent.

Mr Li was not easy to cross examine. At times he would not answer appropriately, but would give a very lengthy and unresponsive answer to a question calling for a yes or no answer.

It was also put to him, as I find was the fact, that he had been a friend of the plaintiff.

Because he was a signatory to Exhibit 5, but seemed keen to back away from it and from acknowledging he would have been angry with Mr Yu in December 2011 although Mr Yu had helped to have him expelled from the club, I am cautious about accepting Mr Li's evidence.

Rupong Zhao

Another friend of the plaintiff, also a member of the club, Mr Rupong Zhao, said he knew the defendant as Nancy Liu. He saw the emails in the chain. It had been his email about the bus crash which had started the chain. When he read the matter complained of he had understood it to refer to the plaintiff, as the plaintiff is the only person he knows who calls Professor He, "brother He". Also in the plaintiff's email before the one containing the matter complained of there had been an expression "bring it on", which had then been picked up and repeated in the matter complained of. I accept his evidence. Indeed it was not suggested I should not.

Zhong Chao Liu

Mr Zhong Chao Liu told me that before the email was sent the plaintiff had a very good reputation in the club. He said that after publication, "we started to have doubts about Cao Ping". He himself had said to the plaintiff at one stage: "Did you really do this?" He was not cross examined on that evidence. I accept his evidence.

Jue Ji

Mr Jue Ji is a club member and he knows the plaintiff and sees him often and is also active in club activities. He said that before publication the plaintiff's reputation was as a decent man, with high integrity and moral and ethical standards. After publication there had been a long term effect, and even he had had doubts about him as a person and as a friend. I accept his evidence.

Service of the "concerns notice"

Ms Chao, employed solicitor with Mr Goldsmith, gave evidence on which she was not cross examined, that she had sent a "concerns notice" by email to the "liunancy" email address on 5 December 2011 and that there had been no response. I accept her evidence.

Defendant's evidence

The defendant, who gave evidence through an interpreter, told me she had come to Australia from China, where she had been born. She had been married to Mr Yu for 23 years. They had a 17 year old son. They had come to Australia in 1996. She said she had never seen the matter complained of until a courier had delivered it to her in September 2012 (I took that to be the version of the matter complained of in the original version of the statement of claim). She denied having the email account [email protected]. She denied having written Exhibit E. She said she is not a member of the CPCA, but that her husband is a member. She told me she had had some education, studying what the interpreter called "medication" at Beijing University, but that she had worked in a garment factory in Sydney ever since her arrival in Australia. She said nothing in chief in response to the evidence of Mr Cheng or Mr Li. However as I have noted, she had previously put their evidence in issue.

Paragraphs 1 and 2 of the statement prepared for her by her husband and signed on 16 April 2013 said:

"I am the defendant

Response to Statement of Jing Ping Cheng

Service of the Concerns Notice dated 5 December 2011

Referring to paragraph 4-6 in the statement of Jing Ping Cheng regarding the service of the Concerns Notice, I did receive an envelop with a letter inside from Jing Ping Cheng on a Christmas Party organised by the Chinese Professionals Club, Australia Incorporated (CPCA) which was held at Inspiration Dance Centre in West Ryde on 10 December 2011. The letter was not addressing to my name (Shengrong Liu) and my home address, so the letter did not appear to be a legal document for me from a lawyer. I just had a quick glance of the letter, but since I could not understand the content of the letter due to my limited English proficiency, so I actually did not read any details in the letter, and I even don't know exactly where the letter went after the crowded and noisy Christmas party.

The important legal document like the Concerns Notice should never be delivered to a Christmas party in dance studio. I do not agree that I had been served the Concerns Notice properly, and I did not have the details in the Concerns Notice.

2. Referring to paragraph 7 & 8 in the statement of Jing Ping Cheng regarding the conversation between Jing Ping Cheng and I on the Christmas party, there was a conversation to the following effect:

Jing Ping Cheng: "Does your husband help you in writing email message?"

I: "No, I always write email by myself, my husband does not help me in writing and posting email, what I've written are all in my own words."

Jing Ping Cheng: "Does your husband controls 2 email accounts, including yours?"

I: "No, my e-mail account in my account, it is not accessible by anyone else, including my husband. It is my own private account."

The conversation above is just a general chat, it did not specifically mention or refer to any particular email message or email account.

I did not say that I wrote and sent the email on CPCA Syd [email protected] at 12.41AM on Sunday, 20 November 2011, and I did not say that I am the owner of the mailbox liunancy [email protected]."

In cross examination the defendant told me she had falsely told Mr Cheng she had an email account and used emails because he had been disrespectful to her, and she had wanted to pay him back for that.

There was the following in evidence in relation to Exhibit K:

"Q. Ms Liu, if you could please go on to page 2 of your statement and you will see the first line. This is what you said in your statement. Jingping Chen said to you "Does your husband control two email accounts including yours?" That's what Jingping Chen said to you, isn't it?

A. INTERPRETER: Yes.

Q. And you replied, "No. My email account is my account." That was the first part of your reply, wasn't it?

A. INTERPRETER: Yes because his tone was belittling me. He thought I couldn't do anything. I need to controlled by my husband so I was to hit him back.

Q. Ms Liu, that answer is simply and totally untrue, isn't it?

A. INTERPRETER: No I just to hit him back. He couldn't talk to me like that. You don't know what his tone was.

Q. Ms Liu, these were very simple questions and you gave direct answers. And I put to you everything you're just telling now to the Court is simply untrue. Do you agree or you don't agree?

A. INTERPRETER: What do you mean by untrue?

Q. It is untrue. The answers that you've just given to the judge about Jingping Chen's tone, the answers that you've just given are simply untrue.

A. INTERPRETER: His tone did belittle me so my answer was just hit him back tit for tat.

...

Q. Ms Liu, when you said to Jingping Chen, "No. My email account is my account", are you saying that you lied to Jingping Chen?

A. INTERPRETER: He asked me I just hit him back so I don't have email box. I don't have email address.

Q. On page 2 at the end of the third line when you said, "It is my own private account", are you now saying that that's not true as well?

A. INTERPRETER: That was just a tit for tat."

I took her to say she was not going to be sneered at for being a woman who could not use email, as Mr Cheng's questions or tone insinuated.

The defendant was asked why in Exhibit K she had said she had told Mr Peng she used emails, given she told me she had not. There was this evidence, in which that was discussed: (T 551.1 - 554.35)

"Q. So in your statement you say, "I always write emails by myself", and you've just told this judge that you don't write emails. Do you agree with me, that's what you've said in the statement and what you've said this morning.

A. INTERPRETER: Yes, because the question Jingping asked to me was belittling me, that was a little strange.

GOLDSMITH

Q. I'm sorry, I missed the middle part of that, would you mind repeating it please.

A. INTERPRETER: Yes, the question Jingping asked was belittling me, I found it's a little bit strange so I just hit him back to tell him I can write.

Q. Ms Liu, Jingping Chen's question to you was a very simple, very straightforward question, "Does your husband help you in writing email message". It was very simple and straightforward, wasn't it?

A. INTERPRETER: Yes. He was belittling me, his tone was not like that.

Q. Ms Liu, the conversation you had with Jingping Chen was in Chinese, wasn't it?

A. INTERPRETER: Yes.

Q. So there was no language difficulty, was there, in understanding Jingping Chen.

A. INTERPRETER: No, there wasn't a difficulty but his tone was belittling me. So I was doing that tit for tat.

Q. You continued to reply, Ms Liu, did you not, by saying that my husband does not help me in writing posting email. That's how you replied, isn't it?

A. INTERPRETER: Yes, just because he was asked me like that.

Q. Ms Liu, the answer that you gave to Jingping Chen was a truthful answer, your husband does not help you in writing and posting email, that's correct, isn't it?

A. INTERPRETER: I have nothing to day with that conversation because that was just a tit for tat.

Q. Ms Liu, you then said to Jingping Chen, very clearly, "What I've written are all in my own words", didn't you.

A. INTERPRETER: Because he belittled me at that time so I just hit him back."

Defendant's credit

Mr Cheng's evidence

Mr Goldsmith put to me that if she had found the questions belittling, she would merely have said 'No, no, of course I write my own emails', or words to that effect, whereas on her evidence her response was far more detailed than that, disproportionately more verbose than one would have expected had she in fact felt belittled by the questions. But the conversation was in Mandarin, and in any event whilst Mr Goldsmith may be correct, I do not see great force in his argument. It is possible she may have wanted to make an elaborate response to ensure he was put in his place.

Could the defendant speak English?

The defendant told me she had not learnt English at school, and had mainly worked with Chinese speaking people in Australia in the garment factory, where she does manual work. She said she had had some English lessons here, but had discontinued them when she failed to make much progress. Mr Goldsmith however challenged the proposition that the defendant does not speak English, especially since she has lived here for so long. He submitted that she had lied to me about having little English, and because of that lie I ought not accept her on significant matters such as whether she had composed and sent the matter complained of.

The transcript of a directions hearing

Mr Goldsmith relied heavily on the transcript of a directions hearing before Judge Gibson on 18 April 2013, where the defendant is recorded as having responded in English to some of her Honour's questions. At page 2 of the transcript her Honour is recorded as having discussed several issues, including that a party may be found liable for a libel sent by someone else on their email address. The transcript which follows is important, as Mr Goldsmith says it shows the defendant had a good knowledge of English.

"HER HONOUR: ... All right. Are you going to translate any of this for your wife?

Yes. Now Mrs Liu, do you understand any of what I'm saying. Yes or no, respond in English please.

DEFENDANT: Yes.

HER HONOUR: You understand what I'm saying.

DEFENDANT: Yes.

HER HONOUR: All right. Now do you understand this case is now going to go for hearing. You have to respond, what do you say. Do you understand that, that it's going to go ahead and be heard?

DEFENDANT: Yes.

HER HONOUR: Do you understand that you need to have interpreter present at that hearing. I'm sorry, I can't hear you?

DEFENDANT: Yes.

HER HONOUR: All right. Will you have an interpreter present. I can't hear you speak up. I can't hear you, speak up please. Speak up, Mrs Liu.

DEFENDANT: ..(foreign language)..

HER HONOUR: No, speak in English please, Mrs Liu, not in Chinese.

DEFENDANT: I will have.

HER HONOUR: You will have, you will have an interpreter.

DEFENDANT: Yes.

HER HONOUR: Yes. Do you understand your husband cannot be in the Courtroom while the case is on. You understand that.

DEFENDANT: Yes.

HER HONOUR: You do understand that, all right. Do you understand that it has to be an accredited interpreter - what's the word for accredited?

CHOU [Solicitor then appearing for the plaintiff]: Are you asking me?

HER HONOUR: Yes.

Sorry, court reporter, I promised court recording I wouldn't say anything in a foreign language. So you've got to have an accredited interpreter, all right.

DEFENDANT: Okay.

HER HONOUR: Do you know how to get an accredited interpreter, do you know where to find one?

DEFENDANT: Yes.

HER HONOUR: Well where is that, where do you find an interpreters, do you know. I overhead that, NAATI.

DEFENDANT: Yes.

HER HONOUR: You have to come to court with your own accredited interpreter and you have to run the case, and your husband can't be in court while you're running the case. Do you understand all of that?

DEFENDANT: Yes.

HER HONOUR: Are you going to be represented by a lawyer?

DEFENDANT: Yes.

HER HONOUR: You are. What's the name of the lawyer, please. What's the name of the lawyer, please, Mrs Liu?

DEFENDANT: Not yet.

HER HONOUR: Not yet. So in other words you're not going to be represented by a lawyer, is that right?

DEFENDANT: I will have.

HER HONOUR: You will have a lawyer. What's his name?

I can't hear you, please speak up.

DEFENDANT: Not yet.

HER HONOUR: Not yet, that's not a name. So you don't have a lawyer.

Well, Mrs Liu, I'm not going to give any adjournment just because a lawyer comes along at the last minute and says he's got problems because of the hopeless defence your husband's drafted. Do you understand that?

DEFENDANT: Yes.

HER HONOUR: Are you sure?

DEFENDANT: Yes."

The defendant's response when cross examined on this issue was that she really had not understood what her Honour had been saying to her, and that her Honour's associate, who spoke her language, had translated, as had her husband, who had been sitting next to her. Although she was shown the transcript, she said she could not read it.

It is obvious from the reference to "NAATI" that her Honour heard someone refer to that acronym. Yet the transcript does not record that earlier reference. Mr Rasmussen submitted that it follows the transcript was not accurate. That may be so. On the face of it, however, it seems to be accurate. Assuming it to be accurate, I do not consider it shows what Mr Goldsmith says it shows. So far as I can see, the defendant used a total of eight English words in her exchange with Judge Gibson. Most of her answers to her Honour were monosyllabic. Asked if she understood, she said "yes". That may or may not indicate she knew English. Her Honour did tell her she had to respond in English. It is true, as Mr Goldsmith said, that the transcript did not record the fact that her husband translated for her. But the transcript suggests they were (unsurprisingly) together in the court room. So if he translated for her, and told her what to say, that fact would not necessarily be recorded on the transcript. There is no evidence a court reporter was in the court. (Most recording of proceedings in this court is from a remote office away from the court.) Mr Goldsmith said that either she had lied to Judge Gibson in saying she understood, or to me that she had not understood.

It may well be that she understood what was put to her by Judge Gibson. If she said "yes" to the question whether she did understand, when she did not in fact, that could be an untruth. But I consider it is not unusual for people in foreign surroundings, such as courts, to say they understand something they do not. I will consider this submission in the context of all the matters I take account of on the defendant's credit. But contrary to the submission of Mr Goldsmith, I consider the transcript gives some support for her assertion that her knowledge of English was limited. See for example the defendant's answer to her Honour's question (on the second occasion she put it) as to the name of her lawyer.

She does not watch English language television

Mr Goldsmith submitted I would not accept evidence she gave me that she had not watched television programs in English, although she has been in Australia for 17 years and has a son who went to school here. But on its own I do not regard that as incredible, especially here, where, on the defendant's evidence, she mainly works with people who speak Chinese, and where her social life involves Mandarin speaking people. Further, there is no evidence other than inferential (if I accept she uses emails) that the defendant reads English. Mr Goldsmith put to me that she was incredible when saying (as she did) she could not recall when she had been to English classes and how long ago that had been. But there is nothing to suggest she had had to cast her mind back to that issue until it was raised with her in court, and she had had the same manual job ever since arriving in this country. So if she could not remember that item in her history, I do not see that as evidence of fabrication, as submitted. I have the same view about her failure to recall how many club events she had been to, another matter on which she was challenged.

Helping her son with his homework

Mr Goldsmith submitted, especially since she said in cross examination she was only living in Australia for the sake of her family, that I would not accept evidence she gave that she had not helped her son with his homework, but that her husband had. However her husband, as I have noted, speaks very good English. In my assessment he is highly articulate, and is obviously well educated. I consider, given her son went to school in Sydney, his father, with his superior knowledge of English, was the more likely of the two to be the tutor.

The degree of her sophistication

I raised with Mr Goldsmith an impression I had formed that the defendant did not seem as well educated or as sophisticated as her husband, and whether she may have sent the first email but not the others, which seemed more sophisticated than the first. Mr Goldsmith put to me that she had sent them all and that was his case. He referred me to the evidence that she had a degree in "medication" from Beijing University, which he said was prestigious in the same way as the University of Sydney.

The 'concerns notice'

Mr Goldsmith submitted that the fact she apparently did not ask any questions about the "concerns notice" when it was handed to her by Mr Cheng, shows that she then knew of the matter complained of and the fact that the plaintiff had complained she had defamed him. Further, her apparent lack of curiosity about it showed she had previously seen it when it had been emailed to the "liunancy" address on 5 December 2011.

However, any apparent lack of curiosity was never put to her in cross examination. Even if it had been, I do not think I should draw any conclusion to that effect, given the occasion was a social one after an annual general meeting, and especially if I accept the defendant's evidence of what she said and why on that occasion. That she asked no questions about the document is consistent with the proposition she did not read it or could not. On Mr Cheng's evidence, she said when she got it that the plaintiff had gone "too far". Accepting she said that, it does not follow she had seen it before, although it suggests she knew something was amiss. In fact, that comment would rather suggest she had not seen it before. The following is an extract from some of her cross examination on that issue:

"Q. You read - you read the concerns notice, didn't you.

A. INTERPRETER: I couldn't understand, I had a look, I couldn't understand.

Q. See Ms Liu, I put to you that you read the document titled, "the concerns notice", and that you understood it. Do you agree with that or not?

A. INTERPRETER: You are not right.

Q. When you said to Jingping Chen, "What I've written are all in my own words", you were referring to what was referred to in the concerns notice, weren't you.

A. INTERPRETER: I couldn't understand the way you asked me a question.

Q. Ms Liu, when you said to Jingping Chen, "What I've written are all in my own words", you were referring to what was set out in the concerns notice, weren't you.

A. INTERPRETER: It's not right the way you said it.

Q. Ms Liu, you're telling the Court, are you not today, that you didn't understand what the concerns notice said, is that the case?

A. INTERPRETER: When do you refer?

Q. You're telling the Court today that you did not understand what the concerns notice, that was in English, you didn't understand what it said. Is that correct?

A. INTERPRETER: Yes, I didn't understand at the Christmas party but Tuesday I received that and my husband translated that to me.

Q. Ms Liu, when you received the document from Jingping Chen, and you took it out of the envelope, and you looked at it, you didn't say to him any words such as "What's this about?", did you?

A. INTERPRETER: Jingping didn't ask.

Q. Ms Liu, you didn't ask Jingping Chen, did you?

A. INTERPRETER: Yes, he didn't ask me either.

Q. Ms Liu, you've been given a document, it looks like a formal document. You're given it at a Christmas document and an annual general meeting. You're given the document. You've looked at it. You didn't say to Jingping Chen anything alone the lines of "What's this document about?", did you?

RASMUSSEN: I object your Honour. He shouldn't describe it as a formal document.

GOLDSMITH: I said, "looks like a formal document".

HIS HONOUR: I just wonder, Mr Goldsmith, and I appreciate the point. But when we've got translation difficulties, I wonder if you got could just make it a little shorter.

GOLDSMITH: I assure your Honour I'm trying to.

HIS HONOUR: I'm sure you're doing your very best. But I just think if you can think of an alternative way of doing it.

GOLDSMITH

Q. You didn't ask Jingping Chen anything at all about what the document related to, did you?

A. INTERPRETER: Right. He didn't say anything to me.

HIS HONOUR

Q. No. It was being put to you that [?you] actually said nothing to him. That is, you didn't ask him what it was about.

A. INTERPRETER: No because I couldn't understand so I thought I will wait until the end of the party to find someone who can understand English to have a look for me and that day I was doing my job serving food and doing the cleaning so I don't know where to went.

GOLDSMITH

Q. Ms Liu, the reason you didn't ask Jingping Chen what the document was about was because you were not surprised to receive it, were you?

A. INTERPRETER: No it's not like that. I didn't know what that was. So there is no surprising or not surprising.

Q. Ms Liu, you didn't ask Jingping Chen any questions about what the document concerned because you were not surprised to receive it because you knew about the email dated 20th November that had been sent, didn't you?

INTERPRETER: Sorry, could you please repeat the last sentence?

GOLDSMITH

Q. Ms Liu you didn't ask any questions of Jingping Chen about what the document concerned because you were not surprised to receive the document because you knew about the email that had been sent on 20th November. Isn't that the case?

A. INTERPRETER: You're lying."

It was put that I should not accept that the defendant could not remember seeing the concerns notice at any time before the case started. Her evidence on this was as follows: (T 543.33 - 545.10)

"Q. Ms Liu, you've seen the document titled the "Concerns notice". You've seen it previously, haven't you?

HIS HONOUR: You mean previously to today?

GOLDSMITH: To today. Yes your Honour.

A. INTERPRETER: I saw this one on Tuesday.

Q. You saw this on?

A. INTERPRETER: Tuesday.

Q. Of this week?

A. INTERPRETER: Yes.

Q. But, Ms Liu, you've seen it before, haven't you?

A. INTERPRETER: No.

Q. You're telling the Court that you've never seen this document before?

A. INTERPRETER: I can't remember.

Q. Ms Liu, you cannot remember or you do not want to remember?

A. INTERPRETER: I cannot remember."

Her first answer, that she had not seen the 'concerns notice' before the week she gave evidence, was clearly not correct. But she seemed to correct herself to say she did not remember. Mr Goldsmith may be right: she may have lied to me about her recall of when she had first seen it. He put to me that she had "conveniently changed her evidence to say she could not remember" when she realized her previous answer might be contradicted. But when I observed her give evidence on this and other topics when cross examined I considered she was doing her best. That piece of transcript does not suggest strongly to me she "changed" her evidence in a dishonest way, as opposed to making a correction once she realised she had made an error.

I agree with Mr Goldsmith that her answers did not sit well with her statement (Exhibit K) which expressly referred to the "concerns notice" in English, and was prepared for her by Mr Yu in April 2013. He may have had a copy of the document with him when preparing Exhibit K. But equally he may not have had it. There was little evidence as to what happened to the "concerns notice" after it was handed to the defendant at the meeting. And the statement being responded to (not in evidence) had, I infer, referred to it by name. The concerns notice itself (Exhibit M) does not mention the defendant's Chinese name. It does say it is addressed to '"Nancy Liu" ("the publisher")'. It is entirely in English.

Mr Cheng said that she appeared to stare at the concerns notice for a long time when he gave it to her. But if her English was poor, that, if correct, is equivocal. He also said she smiled. That also, I consider, is equivocal. It was said she said the plaintiff had gone too far, and she asked "why these guys always like against the Chinese government", and that if this had happened in China, she would not let the plaintiff go easily. The defendant did not refer to these statements in her evidence in chief. Nor was it put to her in cross examination she had said them. But assuming she said those things it does not follow she could read the document.

Poor memory for 10 December 2011

Mr Goldsmith submitted she gave evidence that she could not recall how long she was in Mr Cheng's company when she was given the "concerns notice" is not credible, if she really had been indignant about his having given it to her at a Christmas party, as Exhibit K suggests was the case. However I do not consider it a sign of dishonesty, that she cannot recall how long she was in his company at a Christmas function several years ago.

Her love for China shows she was the author

Mr Goldsmith suggested to the defendant she felt a closer allegiance to China than to Australia and was not happy with people criticizing China, consistently with the tenor of the emails sent on the "liunancy" account. I did not take her to agree with the proposition. (The questions about her close links with China seemed to make her very upset, and she wept for a time.) Although the defendant has been in Australia for many years, I do not doubt she has strong feelings for China, and thus, as Mr Goldsmith submitted, be inclined to defend China in email discussions, if she used emails. But it was clear from emails sent by her husband that he is a staunch supporter of modern China too. So that whilst the point is well made, I do not see it as persuasive.

Her knowledge of the contents of the emails

It was put to her she must have known the topics of discussion in the emails, as the family would have discussed things over dinner at night. She would not accept that. Mr Goldsmith submitted that was unbelievable. But there may be cultural differences in a Chinese family. I do not see that as a sinister answer. There was clearly communication between her and her husband which she did not deny: for example she knew of club activities, since she went to some. But Mr Goldsmith submitted they had communicated a lot more than she "let on". Whatever problems there were with Mr Yu's evidence (and there were many), I do not see her evidence in that way. She was not easy to cross examine. And it is true, as Mr Goldsmith observed, that she said she knew nothing about a number of matters. But I could not discern a pattern one sees sometimes where a witness will have good recall for the favourable and bad for the unfavourable.

Mr Goldsmith submitted it was telling that at no time when she was talking to Mr Li at the club function on 10 December 2011 did she say she did not know what he was talking about when discussing the "liunancy" emails with her. But as I observe elsewhere, she denied having that conversation with him that evening.

The email from Jenny Lei

In evidence was an email from Jenny Lei of 2 December 2011, the then club president. It was to Reagan Li, with a complaint about him from "Nancy" sent on the "liunancy" account. The complaint email says inter alia "I rang you on 21 November 2011 about Reagan's email." That suggests to me someone called "Nancy" called Jenny Lei. Jenny Lei was not called. It was open to both parties to call her, I infer. Mr Yu said he made that call. He was not contradicted. This is a curiosity, but does not necessarily reflect badly on the defendant's credit.

Club functions

The defendant was criticised for apparently knowing nothing about things relevant to the case, but knowing things that helped her case. For example she said she did not know how many club functions she had been to before December 2011. I took Mr Goldsmith to make the point that that might suggest she was downplaying her involvement in club activities. Mr Goldsmith tendered a bundle of photographs showing the defendant present at a number of different club functions over the years. But I did not see her answers on this issue as evasive. I found her a somewhat literal person, who would take care to be accurate. For example when asked how many employees there were in the garment factory she worked in she said "Does it include full time, part time and casual staff?" (T517.21):

Inappropriate answers

But then there were times when, as Mr Goldsmith submitted, the defendant would not answer appropriately. For example there was the following evidence:

"Q. Ms Liu, you know, do you not, that your husband is actively involved in the Chinese Professionals club?

A. INTERPRETER: He is a good man.

Q. I'm sure but, Ms Liu, you know that he's actively involved in the activities of the Chinese Professionals club, don't you?

A. INTERPRETER: Yes, because he has a kind heart, so he always help people to do something.

Q. Ms Liu, he's been involved in the Chinese Professionals club for a number of years, hasn't he?

A. INTERPRETER: Yes.

Q. He has been involved since before 2011, hasn't he?

A. INTERPRETER: Yes.

Q. He had an official position in relation to the email group that was conducted by the club, didn't he?

INTERPRETER: Sorry, say that again?

Q. Ms Liu, he had an official position in the email group conducted by the Chinese Professionals club, didn't he?

A. INTERPRETER: I don't know.

Q. I'm sorry.

A. INTERPRETER: I don't know.

Q. Is that the answer?

INTERPRETER: Yes, the answer is "I don't know".

...

Q. Ms Liu, do you know what your husband did within the Chinese Professionals club?

A. INTERPRETER: He has done a lot of things.

Q. He's done a lot of things with the email group, hasn't he?

A. INTERPRETER: I don't know.

Q. But he told you, did he not, about things that he was doing within the Chinese Professionals club?

A. INTERPRETER: I don't know, he didn't tell me.

...

Q. Ms Liu, how do you know that he was doing good things within the club if he didn't tell you what he had been doing?

A. INTERPRETER: Because when there's an event he will go and they have people and I will go to make some food for them as well."

The last answer the defendant gave was criticised by Mr Goldsmith for being inconsistent with evidence that she had attended club activities of various types, where she was not making food. But I did not understand that answer to be a comprehensive one to a question addressed precisely to the types of club activities she attended. In particular, contrary to Mr Goldsmith's submission, I did not see it as an attempt to distance herself from the idea that she had attended many club functions.

First time she saw the matter complained of

Mr Goldsmith submitted I would not accept her when she said (as she did several times) that the first time she had seen the matter complained of had been when 'the courier' had brought it. I infer it would have been a notable event for a process server to arrive with a statement of claim in which she was defendant. But that really involves the issue as to whether she sent it. If she did not, she may never have seen it before then.

Did she mislead by serving Exhibit K?

As I have observed, the defendant swore she had no email address. Mr Goldsmith submitted that was untrue, and contrary to what Mr Cheng said she had said to him at the club's meeting in 2011, and in Exhibit K. Mr Goldsmith said she had been either untruthful to the court "in providing her written statement", or to the court when cross examined.

I do not consider the provision of Exhibit K had the force put by Mr Goldsmith. In the statement she said she had told Mr Cheng she had and used an email account. She told me the same thing. But she explained to me that what she had said to Mr Cheng had been untrue, and she had been moved to say what she did by his manner to her. What she told me may or may not have been truthful. Having her husband send a copy of Exhibit K to the court and to Mr Goldsmith may or may not have been misleading. It was misleading in the sense that what she told Mr Cheng was untrue, on her evidence, but not otherwise.

Her denial Mr Yu had sent the email

It was put by Mr Goldsmith that she had positively asserted her husband had not sent Exhibit B, which was contrary to her evidence that she had no knowledge of who had sent the emails. There was this evidence concerning the matter complained of:

"Q. That was an email sent by you, wasn't it Ms Liu?

A. INTERPRETER: I don't have an email box. You're lying.

Q. Ms Liu, do you know who sent this email?

A. INTERPRETER: No I don't.

Q. I put to you, Ms Liu, if you didn't send it, then I put to you that your husband sent it. Do you agree or you don't agree?

A. INTERPRETER: It's not my husband. I don't know.

Q. Why are you so confident it's not your husband, Ms Liu?

A. INTERPRETER: Because I don't know.

Q. Sorry, Ms Liu. Are you saying you don't know if your husband sent it? Or are you positive it wasn't your husband who sent it?

INTERPRETER: Sorry, could you please repeat it?

GOLDSMITH

Q. Ms Liu, I wasn't sure of your answer. Are you saying that you don't know if your husband sent it? Or are you saying that you are positive that it was not your husband who sent it?

A. INTERPRETER: I don't know if that's him."

Mr Goldsmith submitted on that issue she had said she had made no enquiry about who had written it (T550.16-18) yet asserted, as appears above, that it had not been her husband. (T563.18-20). But a few questions later she said when asked to clarify her answer "I don't know if that's him". In the end that is what I took to be what she meant. In context, I did not take her answer "It's my husband. I don't know", to be a dishonest representation she knew her husband had not sent the email.

Did the defendant discuss her evidence with Mr Yu?

Given that Mr Yu had helped draft Exhibit K for her, and was, as Mr Goldsmith called him, "such a dishonest and deceitful person", Mr Goldsmith said I would disbelieve evidence given by the defendant that she had not discussed with him the questions she might be asked about in court on 30 May 2013. However, I did not understand her to have been contradicted by evidence on this point. By then she had retained a solicitor and counsel, and they may have advised her not to discuss such matters with her husband. She was not asked in re-examination whether she had been warned about that. But I do not see this submission as well based. Although Mr Yu prepared the statement before she had lawyers, it does not follow (though of course it may have happened) that when she had lawyers retained, she and Mr Yu talked about the evidence she was to give.

Mr Yu was her agent?

On the assumption I did not find the defendant had sent the matter complained of, Mr Goldsmith attempted to have the defendant agree she had 'conduced' her husband to send all the emails. For example there was this evidence:

"Q. Ms Liu, the first email which is the one marked with the letter "A", can you see it?

A. INTERPRETER: Yes, I see.

Q. I put to you that you discussed that email with your husband. Do you agree or you don't agree?

A. INTERPRETER: I don't agree.

Q. I put to you that you said to your husband that you didn't think that the topic referred to in the email was a pleasant topic. Do you agree or you don't agree?

A. INTERPRETER: I didn't say this.

Q. I put to you, Ms Liu, that the email which is the one marked with the letter "B", was sent by you or by your husband. Do you agree or you don't agree?

A. INTERPRETER: No, its not me.

Q. If you could now turn to the next email, which is the one marked with the letter "C". Can you see that email?

A. INTERPRETER: Yes, I see.

Q. You've seen that before, haven't you?

A. INTERPRETER: No.

Q. You'll see on the fourth line it's got, "To [email protected]. Do you see that?

A. INTERPRETER: I see.

Q. That was an email account that you used, wasn't it, Ms Liu.?

A. INTERPRETER: You're lying, I don't have a email account.

Q. Ms Liu, I put to you that you discussed that email with your husband, didn't you?

A. INTERPRETER: No.

Q. Then if you turn to the next email which is one marked "D". You see that that's an email from the group on behalf of liunancy. Do you see that?

A. INTERPRETER: Yes, I see.

Q. Yes, and you've seen this email before, haven't you, Ms Liu.?

A. INTERPRETER: No.

Q. Do you know who sent this email?

A. INTERPRETER: No, I don't.

...

Q. Ms Liu, I put to you that this email, which is the one marked with the letter "D", was sent by you from the liunancy email address that was operated by you. Do you agree or you don't agree?

A. INTERPRETER: I don't have a email box.

Q. I put to you, Ms Liu, that you discussed the content of this email with your husband, Mr Yu. Do you agree or you don't agree with that?

A. INTERPRETER: No, I don't agree.

Q. I put to you, Ms Liu, that this email was sent because you didn't approve of what was said in the email that's marked with the letter "C". Do you agree or you don't agree with that?

INTERPRETER: I'm sorry, I have trouble understanding that.

Q. I put to you, Ms Liu, that you sent this email, marked with the letter "D", because you didn't approve of what was said in the email marked "C".?

A. INTERPRETER: I didn't send email.

Q. But you knew it was sent, didn't you, Ms Liu?

A. INTERPRETER: I didn't send email.

Q. That wasn't my question. Ms Liu, you knew that the email was sent at that time, didn't you? Which was on 18 November 2011, on about that day you knew that the email was sent, didn't you?

A. INTERPRETER: No, I didn't know

Q. And, Ms Liu, if you could please look at the next email which is marked with the letter "E". You see that that's an email sent by the email group on behalf of Xiang Jang He. Do you see that?

A. INTERPRETER: Yes I see.

Q. You've seen that before, haven't you?

A. INTERPRETER: No.

Q. I put to you, Ms Liu, that you saw that on about 19 November 2011. Do you agree or you don't agree?

A. INTERPRETER: No I don't.

Q. Do you still have exhibit E in front of you Ms Liu? Do you see that email? Now, you've said, Ms Liu, you didn't send that email, that's correct

A. INTERPRETER: Yes.

Q. And you said you didn't know who sent the email. That's correct?

A. INTERPRETER: Yes.

Q. I put to you, Ms Liu, you sent it?

A. INTERPRETER: No.

Q. Alternatively, I put to you, that your husband sent it, following discussions with you. Do you agree or you don't agree?

A. INTERPRETER: I don't know who sent it.

Q. Ms Liu, I put to you that you sent the email following discussions between you and your husband in the same way that you and your husband discussed your statement about which I asked you this morning. Do you agree or you don't agree?

A. INTERPRETER: No I don't agree."

There is no direct evidence she authorised her husband to send any emails.

The Netlog document

On the adjourned hearing Mr Goldsmith produced a document from a social networking site called Netlog. There was no evidence about the site, as to how to join, whether someone can nominate someone else, and the like. On the face of the document an email address is required for someone to join. But there is nothing to suggest any emails are sent to or from the site. This document showed a photograph the defendant agreed was her, listing her hobbies, and her employer's name. The birth year recorded for her was incorrect, making her two years older than her actual age, and the day was also incorrect, although only by one day.

Mr Yu said he had no knowledge of the site. The defendant could not explain how her photograph had got there. Mr Goldsmith saw great significance in the document. He submitted it proved she had an email account and the email address "liunancy2005" was for her benefit, thus demolishing Mr Yu's evidence that the address was purely for him to receive emails from the email group.

In the absence of any evidence about how to join, how to send in a photograph and the like, especially given the birth date was wrong and suggested the defendant was two years older, I am reluctant to give the document the significance Mr Goldsmith urged for it. For all I know the site could have been set up by a fellow employee. The fact the day of birth was a day out suggests it may have been set up by a friend or someone who had celebrated her birthday with her. There was no evidence from the internet server to show who had control of the site, and, in particular, nothing directly to show the defendant or her husband had set it up. There was no evidence it had ever been used by the defendant. There was barely evidence anyone had ever gained access to the site. Mr Goldsmith complained when I raised the inaccurate birth date with him that "the plaintiff appears to being subjected to ... precise proof of everything." I do not accept that submission. The two errors, I consider, speak against the proposition that the defendant or her husband set up the site. This was not explored before me, but for all I know it was their Australian educated son. Although even he might be expected to have known his mother's date of birth. In any event it is not an email site, but a social networking site.

Mr Goldsmith submitted the presence of this account on Netlog, showing a connection with the "liunancy" email address showed she had created it or participated in it or authorised it. Mrs Liu said she does not communicate by email with anyone, including people in China. There was no evidence she did communicate by email with anyone in China or anywhere else, other than her statements to Mr Cheng on 10 December 2011. I do not agree that this document provided any great strength for the proposition that the defendant had sent the matter complained of.

Conclusions on defendant's credit

I have considered all of Mr Goldsmith's submissions on her credit. Contrary to those submissions, I found the defendant an impressive witness, and I readily accept her evidence. I find it quite believable that she speaks little English, despite having lived here a long time. I accept she mainly associates with people who speak her language. I of course consider that a judge of Anglo-Saxon background should be wary of placing great store on demeanour where the witness is from a different culture such as China and gives evidence through an interpreter. But I did not get the impression she was hedging, or evasive, or tricky. On the contrary, I formed the view she was appropriate, careful, spontaneous, and unrehearsed. Further, unlike her husband, whose credit I consider below, she is to my observation relatively unsophisticated. I find her explanation for what she agrees she said to Mr Cheng, perfectly understandable. She is clearly a proud woman and I readily see that if she felt Mr Cheng had been talking down to her, she might have said what she did. I accept her evidence that that is why she said what she did to him.

Mr Yu

Mr Yu told me he had set up the relevant "liunancy" email account 10 years ago and had added it to the club's list in 2009 and had composed and sent the matter complained of, along with the other emails in the chain sent from the "liunancy" address.

Mr Yu's Credit

Whereas I found the defendant an extremely impressive witness, I would not put Mr Yu in that category. As I have observed, in Mr Goldsmith's submission, Mr Yu was one of the most untruthful and deceitful witnesses a court could expect to see. I would not go that far, but I found him unimpressive in some areas.

A. I don't think so. That is very misleading question. Maybe you are concerned about that one but you never asked me.

Q. We never asked you. Are you saying that you never understood until this afternoon that we wanted to know, that is Ping Cao and his lawyers, are you saying that you didn't understand that we wanted to know who was the registered owner or user of that email address?

A. This is misleading question, yes.

Q. Please answer my question?

A. Well okay, if you really want to understand, want to know who is real owner why not go to the club to check the identification. If you go to club and seek permission from the committee and the committee will forward a request two minutes later, we have given this information to you. So why not you follow this procedure, it is quite easy."

Did Mr Yu see the "concerns notice" before proceedings started?

Mr Goldsmith submitted I would not accept Mr Yu's evidence that he had not seen the "concerns notice" before the proceedings had commenced. There was no direct evidence he ever saw it before that time. Mr Goldsmith said that to accept that evidence I would have to find his wife had not shown it to him after the annual general meeting where it was given to her, and that he had not received the email by which the plaintiff's solicitors sent it to the email address he said he used, on 5 December 2011. I consider it unlikely the defendant would not have shown it to him after the annual general meeting, had she kept it. But it is possible he did not see it.

Judge Gibson misled?

Mr Goldsmith relied on the transcript of an interlocutory hearing before her Honour Judge Gibson on 14 February 2013 to submit Mr Yu had been dishonest. This transcript had apparently not been obtained before the hearing was adjourned. There was the following exchange (on page 8 of the transcript of that day):

"Her Honour : Look, well who do you say wrote the letter? Who wrote the email? If it wasn't your wife, who was it?

Mr Yu : Don't know. Somebody else.

Her Honour : Well, somebody else, is this your wife's email address?

Mr Yu: No, not my wife's email address. That's the problem. So the defendant should check to find out who is that email, who owns the email, and who sent the message, before he lodge the case, that's a big problem, I say"

Mr Rasmussen submitted that her Honour should not have asked the question of the person representing the defendant, and that this was an understandable response in the circumstances; further, the answer was not given on oath, unlike his answers to me.

I do consider Mr Yu was being untruthful in saying he did not know. That does not reflect well on him. I have reflected however on the submission that he was in an unusual and difficult position. A barrister asked that question might well have told the judge the question should not have been asked, that the only question was whether the defendant had sent it, and that it was for the plaintiff to prove who had sent it. Mr Yu's answer does however give me concerns about his credit.

The reason for using a different email address

Mr Goldsmith invited me to disbelieve Mr Yu's evidence that he had started to use the "liunancy" address so he could express views as someone not associated with the club's management, given he had the role of adviser to the committee at the time. He put to Mr Yu a series of emails sent at about the same time as the matter complained of and its predecessors in the chain. In those other emails Mr Yu had expressed strong views about matters to do with China, such as that the western media had given the world a false picture of the number of people killed in Tiananmen Square in 1989. In one at least, (part of Exhibit S) he made it plain he was expressing his views as an ordinary member. Thus Mr Goldsmith submitted he did not need another email address to express views as an ordinary member. Before the contents of Exhibit S came to light, he explained his position as follows:

"Q. And you used the Liunancy address for the first time to deceive the members into believing that this complaint was from someone else, didn't you?

A. I disagree. Totally disagree with you. I mentioned to you yesterday. Well, I don't wish to use in my adviser's position, like, to give the official instruction to members you should change the topics of discussion. I will try to be a bit softer when using as an ordinary member can we change the topic of discussion. So that's why I used the ordinary member's account."

After Exhibit S came to light (after the hearing was adjourned) and the apparent contradiction was put to him, this was said:

"Q. And what I'm putting to you, Mr Yu, is if that evidence was true, and you wanted to write as an ordinary member, you would have said that in an email from George Yu, from George Yu's email address, and you would have said, "I have comments to add as an ordinary member," I'm putting to you that's what you would have done, because that's what you did do on 13 June didn't you, Mr Yu?

A. That's right.

Q. So, I put to you again, Mr Yu, that the evidence that you gave to the court in May, that you decided to write from the liunancy address because you didn't want your email to appear to be an instruction from an official is simply nonsense?

A. No, I don't agree, that's not contradiction, right, I got your point you said - to say in your - as an ordinary member I can only send from George Yu, and I mentioned that way as an ordinary member, and I can't send from another mailbox ..(not transcribable).. because I can use my own George Yu account and mention that one as an ordinary mail- You make things too absolute. There's no contradiction between this one. I can send from my personal George Yu account and mention that one as ordinary, but it didn't say I can't send from my - another mailbox. There's no contradiction."

Mr Goldsmith put to me club members would not have paid much regard for the views of an unpaid adviser to the committee, so there was no need for him to disguise himself, (as he at one stage agreed he had), and in any event the first "liunancy" email was polite and inoffensive and not of a type for which any disguise had been needed. That may well be correct. No club members expressed a view on the matter apart from Mr Yu. But I see force in Mr Goldsmith's submission.

Mr Goldsmith also pointed to what he submitted was contradictory approaches in the emails. The first in the series sent from "liunancy" discouraged discussion. Ones from his own email address (E.g. No 6 in Exhibit 5) encouraged people to express different opinions. Thus different character traits came from the different addresses. Mr Goldsmith submitted this strongly supported the proposition that the "liunancy" emails had not been sent by Mr Yu. I consider there is some force in that argument. But to my observation of him Mr Yu is a man quite capable of being the author of all of the emails from "liunancy" as well as from his own account. Further, the concept of using different "chat" venues on line for political discussion was raised by Mr Yu in an email in Exhibit S of 13 June 2011, where he said, inter alia: " CPCA will continue to protect it's members' speech freedom. CPCA_SYD_TALK is used ... as a discussion forum, but it has many limitations. It is not the best solution to keep using group email as a forum. Now that CPCA has built its dedicated forum ... it would be more appropriate to move the debating topics like political discussion to CPCA forum..."

Mr Goldsmith also made the point that whereas those sent in Mr Yu's name had a political or military context, those from "liunancy" did not. That is also a point I take heed of.

The Netlog document

Mr Yu was not contradicted on his evidence that he had not set up the Netlog account and knew nothing of it. There is simply nothing to connect him with it.

Some additional submissions

Mr Goldsmith submitted that if I found, contrary to his submission, that Mr Yu had sent the emails from the "liunancy" account, I would nonetheless find he had sent them for his wife. The first in the chain expressed the wish that some topic other than one reflecting poorly on China would be discussed: the defendant did not like people criticizing China: that is where her heart lay, she was protective of her birth country: thus there was a good explanation for her to have asked him to send the email for her.

Mr Yu agreed when cross examined he was very protective of his wife, and Mr Goldsmith submitted that had he really been the author of the matter complained of it is unlikely he would not have conceded at one or other of the interlocutory hearings that he had been its author. That would have helped his wife. There is force in that argument. But equally, if he knew the wrong defendant had been sued, he was, I think, entitled on her behalf to take advantage of that fact.

Mr Goldsmith submitted that I would find they had discussed the first email, that he had sent it for her, and all the later ones too they had then discussed, and they were also sent by him for her, including the matter complained of. He submitted I would find they had been joint efforts. Given Mr Yu's evidence that he had prepared a statement for his wife for the proceedings, and the two defences, and had worked with his wife on these documents, putting her words into them but doing so at her request, it would be consistent that the emails from "liunancy" were prepared in the same way. However I do not think it necessarily follows from the fact that there had been a joint effort in preparing defence documents that there was a joint effort to send the email. Certainly, the defence documents which her husband prepared were written in English, a language I have found the defendant does not know. Whereas the emails were written in Chinese. However, it is of course possible.

An additional credit issue?

In the course of submissions I raised with Mr Goldsmith whether it was unlikely the defendant and Mr Yu had conspired to defeat the claim by having Mr Yu take responsibility for sending the email when he could be taken to have assumed he might be joined as an alternative defendant. That was especially so given the plaintiff was still within time to sue him in September 2011 when the defendant first put the plaintiff on notice she denied being the author. But Mr Goldsmith submitted there had been only a suspicion Mr Yu had sent the matter complained of (T752.45), and he drew my attention to a passage in Exhibit 7 on the second page which reads, "I would have been fine if you simply rebutted me in reply since it was understandable to defend a family member's blunder." (T 753.30). He submitted the issue was not one which assisted one way or the other on credit.

Should Mr Yu have told the plaintiff he had sued the wrong party?

I have observed that Mr Goldsmith initially cross examined Mr Yu on the assumption he had been the owner of the email address and had sent the email. Mr Goldsmith put to him, in effect, that he had been to court on many occasions and had had many opportunities in and out of court to do this but had never before said he was the owner of the account or had been the sender of the matter complained of, and he was therefore blameworthy. However I do not think he was obliged to tell the plaintiff those matters, given he was not a party.

Conclusion on Mr Yu's credit

There are matters which give me considerable concern about Mr Yu's credit. But in the end I am inclined to the view that he was generally truthful.

Evidence the defendant sent the email

On the issue of who sent the email there was the following evidence to support the plaintiff:

(a) The email had the name "liunancy", the defendant's anglicised name in reverse; she agreed in cross examination she was known in Australia as Nancy and her family name was Liu;

(b) Mr Cheng's evidence that the defendant admitted sending the email and operating her own email account without her husband having access to it;

(c) The defendant said she told Mr Cheng on 10 December 2011 the "liunancy" address was her address and that she used it to the exclusion of her husband;

(d) Mr Li's evidence of his conversation with her on the evening of the meeting of 10 December 2011 from which it could be inferred she admitted having sent the email.

As against that there was the following:

(a) The defendant's evidence on oath that she did not send it, her explanation she had said she had an email account because of Mr Cheng's supercilious manner, her denial of having told Mr Cheng she had sent the email, and her contradiction of Mr Li's evidence;

(b) Mr Yu's evidence that he had sent it;

(c) The initial "recognition" by the plaintiff and his friends that emails coming from the "liunancy" account seemed to be the work of Mr Yu, and their sending of an email asserting the same.

Consideration of the evidence as to who sent the email

Mr Yu said he had registered the email address nearly ten years ago. I have observed that there was no evidence from any service provider, or from any of the club's records, to contradict that. What those records would have shown is a matter of speculation.

As I have observed, I found the defendant an impressive, highly credible, witness.

As unsatisfactory as Mr Yu was in the various ways I have described, I consider he is far more likely to be the author, by reason of his involvement in club activities, especially club politics: he is a past president and there is a history between him and the plaintiff: he is highly literate and educated, his wife is in my view relatively unsophisticated.

I find the defendant's explanation for her lie to Mr Cheng highly persuasive, having observed her and Mr Cheng, who, like Mr Yu, is highly educated and articulate.

I consider Mr Cheng read more into the words used by the defendant than was warranted: until that conversation he, the plaintiff, and others had seen Mr Yu as the author of emails emitting from the 'liunancy' email address.

As between the defendant and Mr Cheng I prefer the evidence of the defendant where it conflicts. She has a more obvious axe to grind than does Mr Cheng, it is true; but I have noted my concerns about his credit.

As between the defendant and Mr Li I prefer the defendant's evidence. This case is different from that of Mr Cheng, where the defendant admitted having some conversation with him. The defendant denied any conversation at all with Mr Li. For the reasons I expressed earlier about my reservations concerning Mr Li, I prefer her evidence that she did not say to him the words he attributed to her.

The statement prepared by Mr Yu which the defendant signed, in which she admitted saying she used the email address, did not, contrary to Mr Goldsmith's submission, strengthen the case that she sent the email. She did not in the statement admit she had sent the email. She was merely conceding what she told me on oath had been said by her on 10 December 2011. The witness statement (assuming it was called for, which of course it was not) did not call for an explanation for her statement to Mr Cheng, unlike the evidence she gave on oath before me, on which she was cross examined. Thus it does not necessarily reflect against her that she did not give that explanation in her statement.

As I have observed, there is no evidence from the email provider or from the club as to who had applied for the "liunancy" address or when, as to who owned it, as to when it was first used, or as to what other emails if any were sent from or to it. There was evidence that four emails were sent from that address. For all I know they were the only ones ever sent from that address. That is consistent with the use of the address by Mr Yu for the purpose of changing the topic without seeming to be giving a command from a position of authority in the club.

The defendant has consistently denied on oath since the statement of claim was served on her, that she sent the email.

Mr Yu has sworn on oath he sent the email. Although there were problems with his credibility, I accept his evidence on that issue, and I think it probable he did send it.

There is no direct evidence Mr Yu sent the email at the behest of the defendant or in collaboration with her. It is possible, but far from probable. The case based on the principle in Webb v Bloch (1928) 41 CLR 331 is not made out.

Conclusion

I am not satisfied on the balance of probabilities that the defendant sent the email or caused it to be sent.

Accordingly the plaintiff has failed to prove publication by her of the matter complained of and there must be judgment for the defendant. Mr Goldsmith when making final submissions asked rhetorically when could a plaintiff ever prove publication by a defendant when an email is sent, if the plaintiff has not proved it here. But as the evidence shows, there was an obvious alternative defendant who could have been sued but was not.

In case it is found I am wrong in my conclusion about publication, I shall deal with the matter complained of and damages.

Identification

I have observed that the plaintiff called evidence from several people who said they recognised the plaintiff as the person the email described, as he had called Professor He "Brother He", and had in his prior email used the expression 'bring it on'. I find the matter complained of was published of and concerning the plaintiff. Indeed, Mr Rasmussen conceded the plaintiff had been identified in the matter complained of.

The imputations: do they arise?

Mr Rasmussen argued that none of the three imputations arose. Mr Goldsmith maintained all three arose. In my view the first and third imputations arose. To say the plaintiff stabbed a friend in the back was to say he betrayed him. To say he made telephone calls behind peoples' backs to change an election result is to accuse him of being secretly manipulative.

I am not persuaded the second imputation arose. The word 'falsify' suggests that the election result was altered in such a way as to lead to an outcome which did not reflect the proper process. So that a result reached by forged or bogus ballot papers would be "falsified". But where there is a change in the outcome of an election by reason of lobbying or persuasion, such as is suggested in the matter complained of, then I would not construe the outcome as a falsified election result. If someone sends emails to marshal public opinion, to create a groundswell, asserting an election was unfair, and should be set aside, that may be perfectly legitimate and proper conduct. To make phone calls to people to ask that election results be changed may also be legitimate, behind someone's back or otherwise.

Further, I consider, contrary to Mr Rasmussen's submission, that the first and third imputations are defamatory of the plaintiff. I adopt the meaning of "defamatory" in Radio 2UE Pty Ltd v Chesterton [2009] HCA 16 at [36]-[46]. I will now proceed to assess damages, including a consideration of the extent of publication.

The plaintiff's evidence

The plaintiff has a most impressive curriculum vitae, and I am satisfied he has had a distinguished career, both before and since the publication. He has been involved in many community activities, and was and I am satisfied, is, very highly regarded in the community. As had the other club members called by the plaintiff, he had come to Australia after the Tiananmen massacre in 1989. He had since become an Australian citizen.

He was an original member of the club and has always been a member. As has Mr Yu, he has served as the club's president. He told me that when new members joined, they would be asked to provide their email addresses. They would be asked whether they wanted to join a conversation email group. Some did join that group and some did not. The number in the email group varied, as did the club's membership numbers. I took him to say there was not a great difference in number between the sizes of the email group and the membership group. In 2011, he said, the club had over 200 members.

He said he had met the defendant and her husband in 2004 and had seen each of them since then. He had read the matter complained of on the day it was sent. The day of its receipt coincided with his attending an interview for an important job. He could not understand why it had been sent. He was totally shocked, and felt sick. He did not know who had sent it. He could see that its contents had nothing to do with the topics which had been discussed in the emails leading up to it. He understood it to say he had betrayed a friend, and had dishonestly been two faced. He felt outraged, but also sad. He said it was not in his nature to be manipulative. He understood it to refer to the 2008 election. He was appalled by what had been said about him.

He wanted an apology, so had engaged his current solicitors. He had instructed them to prepare a "concerns notice". He decided that the email had come from Nancy Liu and had his friend, Mr Cheng, give her an envelope containing the notice. When he received no response he had felt very angry.

A number of people had spoken to him about the email. They had asked if its contents were true, or what his problem had been with "Nancy". Then, early in 2012, there were attempts made to resolve things, but they had got nowhere. That had stressed him more.

He said the proceedings had taken their toll, both on him and his marriage. He said he had become grumpy with his wife, and she had suggested he should become less involved in community activities. He felt the case had affected him at work. Although he had received an eminent award for his professional work, he had felt ashamed, as he felt he had had to delay certain projects by reason of this case.

Then, as the defendant denied she had been the publisher, his solicitors had served a subpoena on a Microsoft company to produce its records of email address holders. But it had responded that the records were not kept by it, but a different Microsoft company, and that had made him feel frustrated.

Then the matter had been case managed by Judge Gibson, and she seemed in the right position to hear the case, but two days before the hearing she had disqualified herself from hearing it after the defendant asked her to. That had left him confused and miserable.

Plaintiff's credit

The plaintiff's credit was not attacked. In any event, I found the plaintiff a most impressive and credible witness, and I accept his evidence without hesitation.

Jilong Lai

The plaintiff's wife, Jilong Lai, told me she had been married for 30 years to the plaintiff. They were married in China. They came here together and they have one child, now 26. She said that before the email was sent he was orderly, self controlled, had very good charisma, was kind hearted, and eager to help friends. She noticed that after the email was sent he talked about it every day and would get upset with her and her son and he became forgetful and would lose concentration. He would wake up in the middle of the night and ask: why did she send that email? She was not cross examined. I readily accept her evidence.

Extent of publication

Mr Rasmussen submitted the evidence showed publication only to four or five people who had read and understood the matter complained of. He submitted this was not like a newspaper case, and one could not infer necessarily that an email has been read: it is common, he observed, for emails to be sent to a spam box, and that even when not, they are not necessarily read. Mr Goldsmith however submitted there was evidence to show emails had gone to 90 members and 70 former members and that 160 people therefore had read the email. There was a difference in the evidence of the plaintiff and Mr Yu about the number of club members: Mr Yu said there were 90 financial and 70 non financial members. However it is possible the plaintiff's estimate of 200 included former and present members. I find the email was published to about 125 people, both past and present members, who read it and understood it to refer to the plaintiff. I accept the defendant's submission that not all members would have received or read the email. Mr Li for example said there were many emails to him from the club's 'talk list' which he did not read.

Section 33 Defence

S 33 of the Defamation Act 2005 (NSW) provides:

"Defence of triviality

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."

The defendant submitted that in the circumstances of publication, in the context of a group of email members involved in robust debate about different topics, this was a trivial matter, and the plaintiff was unlikely to have suffered any harm.

In Papaconstuntinos v Holmes a Court [2009] NSWSC 903 at [104] to [105], McCallum J said:

"[104] As noted by the Court in Morosi, the defence is directed to trivial actions for defamation, such as "where a slightly defamatory statement is made in jocular circumstances to a few people in a private home": Morosi at 800D.

...

[105] It must be borne in mind that the defence requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all: King and Mergen Holdings v McKenzie (1991) 24 NSWLR 205 at 309G per Mahoney JA."

Mr Rasmussen relied on Szanto v Melville [2011] VSC 574 at [155], dealing with a relevantly identical provision. That paragraph is as follows:

"[155] That provision has been the subject of a number of decisions in New South Wales. In Chappell v Mirror Newspapers Ltd, the defendant conducted its case on the basis that the plaintiff had a debased reputation, and that, accordingly, he was unlikely to suffer further harm as a consequence of its publication. The trial judge left the defence to the jury on that basis. The plaintiff successfully appealed the verdict of the jury. The New South Wales Court of Appeal held that the phrase "the circumstances of the publication" did not encompass the nature of the antecedent reputation of the plaintiff. In reaching that conclusion, Moffitt P (with whom Samuels JA and Priestley JA agreed) analysed the effect of s 13 in a passage which merits careful examination. The following points, about the provision, were made by his Honour:

(1) The defence is directed entirely to the circumstances of the publication.

(2) In particular, the central issue concerns the "... quality of the publication in respect of its proneness to cause harm". The inquiry is directed to the moment of publication. "Actionability does not depend upon an inquiry as to what thereafter happens and in particular whether or not harm in fact probably resulted from the publication".

(3) It is important that full force be given to the words "the circumstances of the publication". There should not be substituted an inquiry whether "in all the circumstances" the plaintiff would probably not suffer harm.

(4) The content of "circumstances of the publication" must admit of some context, but only such context as would serve to define the circumstances of the publication, and their relevant operation in relation to the likelihood of harm.

(5) "Publication" is the act of communication, by which the defamatory imputation is conveyed to a recipient of it. Thus, the "circumstances of the publication" include any special circumstances of the recipient, such as his or her relationship to the defamed party."

To make good the proposition that s 33 provided a complete defence Mr Rasmussen took me carefully through the email chain to show there was a robust discussion already taking place, where the plaintiff gave as good as he got, where he gave a sharp rebuke to "Nancy", the participants were not shrinking violets, and the matter complained of did not come entirely out of the blue. Thus people such as the plaintiff who participated in the discussion were unlikely to suffer harm.

I do not consider in the circumstances of publication here, namely to a large number of people in a club email group, that the defendant has established on the balance of probabilities that the publication was trivial, or unlikely to cause any harm at all in the circumstances in which it was published. The facts here do not support an argument such as in Stanton v Fell [2013] NSWSC 1001 at [140] where Simpson J found a defamatory email had been published only to people already fully aware of the email's subject matter, and who knew the plaintiff well and whose opinions of him were held highly unlikely to have been affected by the publication. This defence must fail.

Damages

Damages are to compensate for hurt feelings, reputation damage, and to vindicate.

I took Mr Rasmussen to concede there was some evidence of the grapevine effect. He conceded that the plaintiff's feelings had been hurt. He submitted however that any award for damages should be modest, even nominal.

Mr Rasmussen also submitted there should be no award of aggravated damages. He referred me to Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at para [16], [44] and [121]. Mr Rasmussen submitted that even if I found the defendant had published the matter complained of, the plaintiff had not made out his case for aggravated damages for failing to apologise, since this was a defamation in the context of robust discussion in a talk forum.

I find the plaintiff suffered a very severe injury to his feelings. I find his reputation suffered in the club community. I accept he and his wife had difficulties after publication because he was grumpy and moody and fixated on the matter complained of. I find he suffered because of the defendant's failure to apologise, and her continuing to defend the case on the basis that she had not sent the email.

Given that I have accepted the honesty of the defendant however, I consider it inappropriate to make a provisional assessment of what aggravated damages may have been awarded.

I have paid regard to the many cases Mr Goldsmith referred me to where other judges have given awards.

Bearing in mind the number of people to whom there was publication, I would have awarded compensatory damages of $30,000.

ORDERS

(1) I GIVE LEAVE TO THE PLAINTIFF TO FILE A SECOND FURTHER AMENDED STATEMENT OF CLAIM.

(2) VERDICT AND JUDGMENT FOR THE DEFENDANT.

(3) PLAINTIFF TO PAY THE DEFENDANT'S COSTS.

**********

Decision last updated: 10 September 2013

Medium Neutral Citation:	Cao v Liu [2013] NSWDC 172
Hearing dates:	21, 22, 23, 24, 27, 28, 29, 30, 31 May 2013; 29, 30, 31 July 2013
Decision date:	06 September 2013
Jurisdiction:	Civil
Before:	Judge Walmsley SC
Decision:	Judgment for the defendant
Catchwords:	Defamation - publication by email - issue about who sent it - plaintiff failed to prove defendant was the publisher - damages provisionally assessed - triviality defence
Legislation Cited:	Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Browne v Dunn (1894) 6 R 67 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 Jones v Dunkel (1959) 101 CLR 298 Papaconstuntinos v Holmes a Court [2009] NSWSC 903 Radio 2UE Pty Ltd v Chesterton [2009] HCA 16 Stanton v Fell [2013] NSWSC 1001 Szanto v Melville [2011] VSC 574 Webb v Bloch (1928) 41 CLR 331
Category:	Principal judgment
Parties:	Plaintiff - Ping Cao Defendant - Shengrong Liu
Representation:	Mr B Goldsmith (solicitor) - Plaintiff Mr R Rasmussen - Defendant Goldsmith Lawyers - Plaintiff Etheringtons Solicitors - Defendant
File Number(s):	2012 / 275052
Publication restriction:	Nil