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

1. 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.

1. 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).

(c)   The plaintiff is secretly manipulative (the matter in its entirety and particularly lines 14-18).

1. 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.

1. 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 a list of emails dated 17 to 19 November 2011, none of which has been published by the defendant, and their connection to the extrinsic facts is unexplained. As this does not comply with requirements to plead identification (Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis Australia) at [5115]-[5155]; Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192) and the persons to whom these identifying particulars were known, I have made orders for the provision of particulars of identification in an amended statement of claim. I have also made orders for the provision of statements on this issue, to facilitate the leading of this evidence at the hearing.

1. These proceedings have not been the subject of any legal argument or case management other than orders made in accordance with consent timetables. The defendant has never appeared in court. When the matter was first in the Defamation List (29 September 2012), there was no appearance for the defendant, and the matter was adjourned. It was adjourned again on 19 October 2012, with the Defamation List Judge noting the defence had only been received by the plaintiff's solicitors the day beforehand. On 2 November 2012, when these proceedings were next listed for directions, Mr Yu, the defendant's husband, appeared on her behalf. He provided the court with a letter stating that his wife was ill, and that she had authorised him to represent her.

1. There was a further adjournment to 1 February 2013, on which date these proceedings were set down for hearing, with a two-day estimate. On that occasion, Mr Yu again appeared on behalf of his wife. This time, no explanation was given as to his entitlement to do so.

1. My associate wrote to both parties to arrange today's directions hearing date in relation to the conduct of that hearing. These proceedings have been listed for hearing on 21 May 2013 before me.

1. Mr Yu replied to my associate's letter, which required the defendant to attend court personally, stating that he would appear on behalf of his wife in these proceedings. The solicitors for the plaintiff wrote a letter in reply, dated 11 February 2013, in the following terms:

"We refer to recent e-mails from and to the Associate to her Honour Judge Gibson.

We note that you are proposing to appear on behalf of your wife, the defendant, this Thursday and are also proposing to appear on her behalf at the final hearing of this matter and which is listed for 21 - 22 May 2013.

Rule 7.1(1) of the Uniform Civil Procedure Rules 2005 provides that proceedings may be commenced and carried on either by a solicitor acting on behalf of a natural person or by the person himself or herself. It is our contention that the law is clear that you have no natural right to appear in these proceedings on behalf of your wife.

Notwithstanding that Rule, we accept that there is legal authority which provides that it is possible for the Court to grant leave to you to appear on behalf of your wife. However, it is our contention that leave should only be granted in exceptional circumstances.

Accordingly, would you please note that our client will object to your seeking to appear on behalf of your wife. If you wish to do so, notwithstanding this letter, then your wife is invited to file any motion and supporting affidavit. Subject to our seeing any material filed in support of the motion, we anticipate that we will be instructed to oppose it.

If necessary, we shall produce this letter to the Court this Thursday.

In order that her Honour is aware that this issue is likely to arise, we are taking the liberty of forwarding a copy of this letter to the Associate."

1. Mr Yu reiterated his intention of appearing on behalf of his wife. This is on the basis that his wife's health condition "cannot sustain the court hearing" and that he had represented his wife in the the Defamation List. He states in correspondence that:

"my wife does not have the full details about the case proceedings and progress as I have, so in the interests of justice the defendant should be allowed assistance and represented [sic] by her husband who has more information and better understanding of the case."

1. In the course of this correspondence, the solicitors for the plaintiff also sought confirmation from Mr Yu that there was no objection to the accuracy of the translation relied upon by the defendant. Mr Yu replied that as his wife denied publication, the question of the accuracy of the translation was not one upon which she was obliged to express an opinion.

1. This does not augur well for the conduct of the hearing. Whether or not the translation accurately reflects the matter complained of is a matter of some importance (Lee v Kim [2006] NSWCA 384).

The application before me today

1. Mr Goldsmith, on behalf of the plaintiff, has drawn my attention to the difficulties of proceeding in circumstances where not only is Mr Yu seeking to appear on behalf of his wife, but his wife is not in court today.

1. Mr Yu tendered a medical certificate from his wife's general practitioner (Exhibit A), but all that this medical certificate says is that the defendant is not well enough to attend work today for some unspecified reason. Mr Yu stated that his wife suffered from migraine and this meant that she would be incapable of appearing in court at all to conduct these proceedings. However, there is no medical evidence to this effect.

1. In considering whether or not I should grant leave to Mr Yu to appear for the defendant in these proceedings, I have been guided by decisions of the New South Wales Court of Appeal, notably Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256; [2002] NSWCA 230, as well as recent Supreme Court decisions such as JP Morgan Trust Australia Ltd v Hammond [2012] NSWSC 213, an authority relied upon by the plaintiff. These cases deal with the circumstances in which a person may represent a party in much the same role as a member of the legal profession would, or where an unqualified person is permitted to fulfil a role sometimes referred to as that of a "McKenzie friend" (McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034; [1970] 3 WLR 472).

1. In Damjanovic v Maley, supra, a person describing herself as a "family friend" sought to appear on behalf of the plaintiff in proceedings on the basis that the plaintiff's command of English was poor and he had a mistrust of lawyers. The plaintiff lost the case and appealed. One of the grounds of appeal was refusal to permit the "family friend" to appear on his behalf. (The "family friend" also sought to appear in the appeal, but was refused leave to appear.)

1. Stein JA, with whom Mason P and Sheller JA agreed, dismissed both the complaint about failure to permit the appointment of an unqualified representative and the appeal generally. At [37]-[68] Stein JA reviewed the cases and at [69] drew a series of principles from those cases. The relevant factors for the court to take into account are as follows:

(a)   The complexity of the case - While the defence in these proceedings currently pleads a denial of publication, to describe defamation cases as anything other than complex would be erroneous. This is a relevant factor.

(b)   The genuine difficulties of the unrepresented parties - This includes language difficulties, emergencies, health problems and the like. In Damjanovic v Maley, supra, poor command of the English language was not considered a suitable reason to permit a representative who was unqualified to appear. Financial hardship may be reason for not retaining legal representation. However, Mr Yu told me he has "not yet" consulted any lawyer.

(c)   The unavailability of disciplinary measures and the question of discharge of the duty to the court by lay advocates - As Stein JA notes at [74], almost every case mentions these matters as protection for a client where a qualified lawyer represents a party, and as being absent where an unqualified lay advocate appears. This is a significant issue in a case such as the present.

(d)   The protection of the client and the opponent - Lay advocates are unqualified, unaccredited and uninsured, which means that the defendant is herself at risk. In addition, it may be that Mr Yu may be a witness. His ability to give objective advice when he is potentially a witness would be an issue of concern.

(e)   Lay advocates in inferior courts and tribunals - This is a factor in favour of the application. Lay advocates are more likely to seek to appear in the District and Local Courts.

(f)   The interests of justice - Stein JA noted in Damjanovic v Maley, supra, at [84] that the adversary system assumes that the case will be presented to courts by "skilled professionals". To the extent to which that assumption breaks down, so does the system.

1. The presence of litigants in person in defamation actions, both as plaintiffs and defendants, is an increasingly common feature of defamation actions in Australia. The extent to which unrepresented litigants appear in defamation can be seen from the table set out at [60,590] Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis Australia); litigants in person account for nearly a quarter of the defamation claims as plaintiffs, and also as high a proportion as defendants. In Ross v Hallam [2011] QCA 92 the Queensland Court of Appeal, in setting aside a judgment entered summarily against the defendant, noted at [13] the difficulty of ensuring fairness to all parties with the complexities of defamation law where one party is self-represented.

1. Such problems are compounded where an unqualified person seeks to represent someone who would otherwise be a litigant in person. These include the nature and extent to which the person appearing should be entitled to speak on behalf of the unrepresented party: Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378 at [49]-[53].

1. In JP Morgan Trust Australia Ltd v Hammond, supra, the defendant's husband sought leave to appear in proceedings relating to mortgage default and seeking an order for possession of a property. He was not a party to those proceedings. As has been the case in the application before me, the defendant, Ms Hammond, did not attend the court on any occasion when the matter was listed. Her husband appeared, by leave, on a number of occasions both in the Supreme Court and the Court of Appeal. As was also the case in these proceedings, an objection was taken to his appearing on behalf of the defendant at the hearing of proceedings. When the matter was allocated to Johnson J, his Honour considered it appropriate to list the matter in advance of the hearing so that this problem could be addressed (at [10]), in much the same way I have done here. Ms Hammond did not appear, and her husband told the court she was "unwell and indisposed" (at [11]), providing a certificate from a general practitioner.

1. After reviewing authorities such as Teese v State Bank of New South Wales [2002] NSWCA 219, Damjanovic v Maley, supra, and the application of these principles in a series of decisions in the Supreme Court, Johnson J stated that an order for representation by an unqualified person is "exceptional order, for which good grounds must be demonstrated" (at [20]). His Honour noted objections taken by counsel for the plaintiff, many similar to those raised by Mr Goldsmith before me today.

1. Johnson J expressed a number of concerns similar to those I have raised with Mr Yu this morning. This included arguments on the merits of the case advanced by the defendant's husband which showed a lack of understanding of legal principles (at [36]), the potential for conflict of interest (at [36]) and concerns of the kind set out in Damjanovic v Maley, supra.

1. Litigants in person have the right to appear in their own interests. That is Ms Liu's right here. There is, in addition, a right to be represented by a legal practitioner, but even a solicitor may be precluded from appearing in circumstances where, for example, there is a potential conflict of interest (see Chinese Australian Services Society Co-operative Ltd v Sham-Ho [2011] NSWSC 829).

1. Taking all of the above factors into account, leave should not be granted for Mr Yu to appear as a lay advocate for the defendant at the hearing, and I decline the application.

1. Mr Yu has told me that he would like to have an opportunity to consult a lawyer, but that he is unacquainted with any solicitors with expertise in the field of defamation. I have accordingly referred him to the NSW Bar Association's pro bono assistance scheme. I have made an order for mediation in these proceedings; I have indicated both to Mr Goldsmith and Mr Yu that these are matters which can be pursued, jointly, through the good offices of the NSW Bar Association.

1. These proceedings have been stood over for further directions on Wednesday 13 March 2013 at 9:00am. Costs of today are reserved.

Orders

(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).

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Decision last updated: 18 February 2013