Chaoping (Steve) chu v Da Cheng (Eddie)

[2021] NSWSC 956

Supreme Court

New South Wales

Medium Neutral Citation:

Chaoping (Steve) chu v Da Cheng (Eddie) [2021] NSWSC 956

Hearing dates:

27 July 2021

Decision date:

27 July 2021

Jurisdiction:

Common Law

Before:

Sackar J

Decision:

Motion dismissed

See para [20]

Catchwords:

DEFAMATION — Remedies — Interlocutory injunctions — Freedom of expression

Legislation Cited:

Defamation Act 2005 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

ABC v O’Neill (2006) 227 CLR 57

Bonnard v Perryman [1891] 2 Ch 269

Texts Cited:

n/a

Category:

Consequential orders

Parties:

Chaoping (Steve) Chu (plaintiff)
Da Cheng (Eddie) Zhi (defendant)

Representation:

Counsel:
D Robinson (plaintiff)
N Olson (defendant)

Solicitors:
Tahota Law (plaintiff)
McGirr & Associates (defendant)

File Number(s):

2021/158319

Judgment – ex tempore - Application for injunction

1. The application for injunction is refused for the reasons as follows. The plaintiff, by notice of motion dated 9 June 2021, makes application for interim injunctions to restrain the publication of a number of allegedly defamatory imputations. The application is opposed by the defendant.

2. On 23 April 2021, the plaintiff served a concerns notice. The notice complained of three publications, all emails. The first was dated 7 April and sent to a dozen recipients, including journalists at The Age and the ABC. The second email was dated 18 April 2021 to the plaintiff and other recipients, and there was a further email dated 20 April 2021 to 10 recipients. By letter, dated 11 May 2021, the plaintiff requested the defendant remove the defamatory publications and immediately cease and desist from any further publication of the matters in the concerns notice. It also requested the defendant immediately provide details of all known recipients for whom the defendant published the matters described in the concerns notice.

3. The defendant declined to provide the undertakings requested. On 2 June 2021, the plaintiff commenced defamation proceedings. The matters complained of in the proceedings are the same as those set out on the concerns notice. The imputations pleaded in paras 4, the first matter complained of, para 8, the second matter complained of, and para 11, the third matter complained of, in broad terms involved allegations of criminality, dishonesty, counterfeiting, unethical conduct, and betrayal. It cannot be gainsaid that those imputations are serious.

4. The notice of motion in paras 2 and 3 include application for injunctive relief, restraining imputations not included, or at least not entirely congruent with those pleaded in the statement of claim, but many that are. The evidence before me briefly is as follows. First, there are two affidavits of Ms Hua on behalf of the plaintiff, filed on 8 and 17 June 2021. The solicitor, Ms Hua in her second affidavit, in particular para 8 on instructions, indicated that certain of the imputations were false.

5. Ms Esther Dong is also relied upon. She has sworn two affidavits, filed on 5 and 15 July 2021. The plaintiff, prior to that on 30 June, swore an affidavit dealing in some considerable detail with the factual materials, and he gives evidence, especially in paras 30 to 35, that the materials in the emails are untrue.

6. On 8 July the defendant swore an affidavit again dealing with factual issues in some detail, but including conversations he purportedly had with the plaintiff, especially at paras 35 and 39. An affidavit from a Mr Craig Newton and one from a Mr Jin, both dated 14 July, have also been relied upon by the plaintiff in this application. Finally, on 15 July, the plaintiff, then in China, swore a further affidavit also dealing with factual issues and in particular denying certain additional factual matters asserted by the defendant.

7. Although this is an interlocutory application, Mr Robinson took objection to a number of the paragraphs of Mr Zhi, the defendant, particularly his affidavit of 8 July. I made rulings in accordance with s 136 of the Evidence Act 1995 (NSW), and I will not rehearse my rulings.

8. The legal principles applicable in such applications are well worn. There is no difficulty about the Court having jurisdiction to grant injunctive relief in cases where an allegation of defamation is made. I hesitate to say this is an exceptional case. It is not, in my view, but it does not, from the plaintiff’s point of view, raise any issues of injurious falsehood.

9. The plaintiff and the defendant agree on the principles, but I will simply state them. An injunction should only be granted in cases of defamation on an interim basis with great caution, and only in very clear cases. Bonnard v Perryman [1891] 2 Ch 269 is the classic authority and the speech of Lord Coleridge frequently called in aide.

10. Like any other application for interlocutory injunction, the Court must be satisfied that there is a serious question to be tried and that the plaintiff must also satisfy the Court that the balance of convenience favours the grant of relief. Those principles have been recently, and with great clarity, set out in the High Court’s decision in ABC v O’Neill (2006) 227 CLR 57 (“ABC”).

11. The Court in ABC emphasised that the public interest in free speech was described by the Court as “a foremost consideration”. In addition, the Court said if a defence and justification is to be pleaded, that is clearly an important consideration - and it seems to me that the Court indicated that any done undue interference with the timely determination of such defence, should generally be avoided as it is only when that occurs that the extent of any undue invasion of the plaintiff’s rights can be fairly determined. I note importantly here, however, that the plaintiff has proffered the usual undertaking as to damages.

12. As to the meanings pleaded, no objection has been taken as yet. I say “as yet” because the defendant has recently indicated that objection may be taken when the plaintiff perhaps makes a final election between some of the imputations currently pleaded in the statement of claim, and perhaps additional ones pleaded in the notice of motion. It seems to me the defendant would be entitled to ask the plaintiff, at some point, to finally elect as to which meanings he proceeds with.

13. Here the defendant, however, accepts that the matters complained of are capable of conveying some defamatory meanings without being specific - but the defendant does point out, and I do not wish to over-emphasise it, that there is a disconnect between some of the imputations in the notice of motion and those in the statement of claim. However, that to one side, I am satisfied the plaintiff has established that there is a serious question to be tried.

14. The defendant has, for some time, indicated that he intends to rely upon the defence of justification under s 25 of the Defamation Act 2005 (NSW), which of course in its current version provides for truth alone as a defence, unlike many of the previous iterations of that defence, which either required public interest or public benefit.

15. On the factual materials deployed to date, and no doubt with the relevant potential amplification, it could not be said, in my view, that that defence is bound to fail. I leave to one side the possibility of the defence of qualified privilege arising for some of the publications. As to the latter, the interests which business contacts of the plaintiff have in learning about the issues, about the plaintiff’s honesty and alleged background, will be matters to be debated in that context. Again, it seems to me that the defence of qualified privilege could not, at this early stage, be dismissed as unarguable.

16. Given the obvious potential for significant factual disputes, not to mention the issues of credit and the extent of any award of damages as being problematical in my view, it seems to me that indeed the testing of the relevant conversations will have a significant impact not only on the defence of justification but also on the defence of qualified privilege, especially where publications are to a limited class of persons. This is especially so in this case, as the genesis of the current emails, rightly or wrongly, appears to be an article in the Sydney Morning Herald of 31 March 2021. I take into account the fact that on the face of that article, it may be suggested that the defendant was responsible for or at least encouraged that article be published, but it has been published without, it seems, any complaint from the plaintiff as far as I am aware.

17. One of the issues of fact, which I shall only dwell upon briefly but only as to highlight the difficulties confronting the plaintiff going forward, is that Mr Liu, a person identified by the defendant, is said to be the primary source or indeed the principal source of information provided to the defendant. Ms Dong, in her affidavit of 15 July, deposes to a conversation with Mr Liu in which on the face of it, Mr Liu would appear to deny having said anything to the defendant of the sort repeated in the email, particularly that of 7 April.

18. But when one goes to the email of 7 April, it has curiosities associated with it, which no doubt will be dealt with in the trial. If the defendant, as the plaintiff's case on Ms Dong’s material would have it, was either falsifying his conversation with Mr Liu or got it wrong is a remarkable conclusion for this reason. In the email of 7 April, which is circulated to a number of persons, first, Mr Liu’s telephone number is identified at the top of that email, and the information purportedly given to the defendant by Mr Liu is then set out. But what is even more curious is that it is asserted that Mr Liu, in fact, contacted the defendant after he had read the Chinese version of the story by Mr Baker - and if that is true, then clearly the credit of Mr Liu will undoubtedly be an important issue in terms of the information received by the defendant.

19. The point I am making simply is this: at the moment, it is somewhat remarkable - unless it is out of entire audacity - that the defendant would not only provide the means by which Mr Liu could be contacted by anybody receiving the email of 7 April, but indeed asserts Mr Liu was indeed the source of the information. That simply highlights in respect of one, but not unimportant aspect of the case, how credit is going to play a very significant part in the outcome of the ultimate factual findings.

20. In my view, therefore, the balance of convenience does not favour the grant of injunctive relief. The authorities, in my view, give primacy to the concept of freedom of speech. Partly this is no doubt due to the impossibility at this stage of such a hearing and the progress of the action to determine what is the truth or what is not the truth. That, of course, is yet to be determined. It is only then when one can make an assessment ultimately as to whether something which may be prima facie defamatory is nonetheless defensible, either by reason of the defence of truth or the defence of qualified privilege.

21. In addition, however, on the question of damages, some submissions have been made as to the unsatisfactory nature of any award of damages in circumstances like this, and in particular, Ms Hua, in her affidavit, refers to some indications that in Victoria, the defendant has been the subject of a creditor's petition. On the face of it, that would appear to be so. I am not quite sure where it goes at the moment - that creditor's petition, presumably, as it is only of very recent origin, the documents suggest that the affidavit of debt is dated 1 July 2021. There are earlier events, including a creditor’s petition in May 2021. The matter is yet, as I best understand the evidence, to be determined in any event by the relevant circuit court and as yet, whilst this application is outstanding, the state of the current evidence is there is no order yet been made for sequestration. In other words, no bankruptcy order has yet been made.

22. But having taken that into account, it is one of a number of discretionary issues - I note it in passing, but it is not, in my view, in circumstances such as these, determinative of the outcome of an application of this sort. In all the circumstances, therefore, I would dismiss the notice of notion.

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Decision last updated: 02 August 2021