Cao v Liu - [2013] NSWDC 8

District Court

New South Wales

Medium Neutral Citation: Cao v Liu [2013] NSWDC 8
Hearing dates: 14 February 2013
Decision date: 14 February 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff is to file an amended statement of claim particularising identification, extrinsic facts and the persons to whom those extrinsic facts were known, as well as details of the publications set out in paragraph 3 of the statement of claim, in 14 days.
(2) The plaintiff is to serve statements (limited to publication only) in 14 days.
(3) Mr George Yu's application to appear on behalf of the defendant (his wife) is refused.
(4) Matter stood over for further directions to Wednesday 13 March 2013 at 9:00am.
(5) The parties are directed to approach the NSW Bar Association to enquire about mediation (Ms Liu may require legal advice regarding representation as well).

Catchwords: PRACTICE AND PROCEDURE - defamation trial - application by defendant's husband for leave to appear for her as lay advocate at final hearing - exceptional nature of order sought - interests of justice - leave refused
Legislation Cited: -
Cases Cited: Chinese Australian Services Society Co-operative Ltd v Sham-Ho [2011] NSWSC 829
Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256; [2002] NSWCA 230
JP Morgan Trust Australia Ltd v Hammond [2012] NSWSC 213
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Lee v Kim [2006] NSWCA 384
Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378
McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034; [1970] 3 WLR 472
Ross v Hallam [2011] QCA 92
Teese v State Bank of New South Wales [2002] NSWCA 219
Texts Cited: Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis Australia)
Category: Interlocutory applications
Parties: Plaintiff: Ping Cao
Defendant: Shengrong Liu
Representation: Plaintiff: Mr B Goldsmith (Solicitor)
Defendant: Mr G Yu (Defendant's husband)
Plaintiff: Goldsmith Lawyers
Defendant: In person

File Number(s): 2012/275052

Judgment

The plaintiff by statement of claim filed on 3 September 2012 brings proceedings for defamation for an email, addressed to members of an internet forum group, published on or about 20 November 2011.

The statement of claim pleads the following imputations:

(a) The plaintiff engaged in betrayal (the matter in its entirety and particularly lines 10-13).

(b) The plaintiff sought to falsify election results (the matter in its entirety and particularly lines 14-18).

The defence filed on 26 September 2012 denies that the defendant is the owner of the mail box from which the matter complained of emanated, but otherwise pleads no other substantive defence.

The plaintiff is not named in the matter complained of. Paragraph 3 of the statement of claim sets out only that the matter complained of was published "of and concerning the plaintiff" and that this was "a fact known to readers of the forum group by virtue of extrinsic facts". Those particulars of extrinsic facts consist of…

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 8
Case: [2013] NSWDC 8
Decision Date: 14 February 2013

CaseChat Overview and Summary

The case of Cao v Liu arose from a dispute involving allegations of defamation. The defendant, Ms Liu, was being sued by the plaintiff, Mr Cao. The matter was before the court and reached a stage where an application was made by Mr George Yu, the husband of Ms Liu, seeking leave to appear as a lay advocate on behalf of his wife at the final hearing. The court had to determine whether Mr Yu could appear in this capacity, given the exceptional nature of such an order, and whether it was in the interests of justice to allow it.

The primary legal issue before the court was whether the husband of the defendant, who was not a legal practitioner, could be granted leave to appear as a lay advocate at the final hearing of the defamation trial. The court had to weigh the exceptional nature of the order sought against the interests of justice, considering the procedural and substantive implications of allowing such an appearance.

The court found that the application by Mr Yu to appear as a lay advocate for his wife was exceptional and not typically granted. The court emphasised the importance of maintaining the integrity of legal proceedings and the need for proper legal representation. While recognising the personal nature of the relationship between the parties, the court concluded that it was not in the interests of justice to allow Mr Yu to appear as a lay advocate. Consequently, the application was refused.

The court issued several orders to manage the proceedings. The plaintiff was directed to file an amended statement of claim within 14 days, detailing the identification, extrinsic facts, and the persons to whom those facts were known, along with specific details of the publications. The plaintiff was also required to serve statements limited to the publication aspect within the same timeframe. The application by Mr Yu to appear on behalf of Ms Liu was refused. The matter was stood over for further directions, and the parties were directed to approach the NSW Bar Association to enquire about mediation, with an indication that Ms Liu may require legal advice regarding her representation.

Orders

Orders of the court

(1) The plaintiff is to file an amended statement of claim particularising identification, extrinsic facts and the persons to whom those extrinsic facts were known, as well as details of the publications set out in paragraph 3 of the statement of claim, in 14 days.

(2) The plaintiff is to serve statements (limited to publication only) in 14 days.

(3) Mr George Yu's application to appear on behalf of the defendant (his wife) is refused.

(4) Matter stood over for further directions to Wednesday 13 March 2013 at 9:00am.

(5) The parties are directed to approach the NSW Bar Association to enquire about mediation (Ms Liu may require legal advice regarding representation as well).

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 8
Hearing dates:	14 February 2013
Decision date:	14 February 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff is to file an amended statement of claim particularising identification, extrinsic facts and the persons to whom those extrinsic facts were known, as well as details of the publications set out in paragraph 3 of the statement of claim, in 14 days. (2) The plaintiff is to serve statements (limited to publication only) in 14 days. (3) Mr George Yu's application to appear on behalf of the defendant (his wife) is refused. (4) Matter stood over for further directions to Wednesday 13 March 2013 at 9:00am. (5) The parties are directed to approach the NSW Bar Association to enquire about mediation (Ms Liu may require legal advice regarding representation as well).
Catchwords:	PRACTICE AND PROCEDURE - defamation trial - application by defendant's husband for leave to appear for her as lay advocate at final hearing - exceptional nature of order sought - interests of justice - leave refused
Legislation Cited:	-
Cases Cited:	Chinese Australian Services Society Co-operative Ltd v Sham-Ho [2011] NSWSC 829 Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256; [2002] NSWCA 230 JP Morgan Trust Australia Ltd v Hammond [2012] NSWSC 213 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lee v Kim [2006] NSWCA 384 Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378 McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034; [1970] 3 WLR 472 Ross v Hallam [2011] QCA 92 Teese v State Bank of New South Wales [2002] NSWCA 219
Texts Cited:	Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis Australia)
Category:	Interlocutory applications
Parties:	Plaintiff: Ping Cao Defendant: Shengrong Liu
Representation:	Plaintiff: Mr B Goldsmith (Solicitor) Defendant: Mr G Yu (Defendant's husband) Plaintiff: Goldsmith Lawyers Defendant: In person
File Number(s):	2012/275052