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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao v Liu

Details

AGLC: Cao v Liu [2013] NSWDC 172
Case: [2013] NSWDC 172
Decision Date: 06 September 2013

CaseChat Overview and Summary

Cao sued Liu for defamation, claiming Liu had sent an email containing defamatory statements. Liu denied sending the email and Cao failed to prove otherwise. Liu raised a defence of triviality, arguing the statements were not serious enough to warrant defamation. The court considered the evidence and concluded Liu had not sent the email and the statements were trivial. Cao's claim failed and Liu was awarded costs. The court provisionally assessed damages but did not make a final determination.

The key issue for the court was whether Liu was the publisher of the defamatory email. Cao needed to prove this to establish Liu's liability for defamation. The court found that Cao had not provided sufficient evidence to prove Liu sent the email. Cao relied on circumstantial evidence and a witness statement, but these were not enough to discharge the burden of proof. Without establishing publication, Cao's defamation claim could not succeed.

The court also considered Liu's defence of triviality. The defamatory statements in the email were found to be not serious enough to warrant defamation. The court examined the content of the statements and the context in which they were made. It concluded that the statements did not cause or were likely to cause substantial harm to Liu's reputation. As the defence of triviality was successful, Liu was not liable for defamation even if the email had been sent by Liu.

Orders

Orders of the court

Judgment for the defendant

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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