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

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.
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.
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.
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.
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…

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.

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Details

Case: [2021] NSWSC 956
Decision Date: 27 July 2021

CaseChat Overview and Summary

The parties involved in the case were Chaoping (Steve) Chu and Da Cheng (Eddie). The nature of the dispute was defamation, with the respondent, Steve, seeking an interlocutory injunction against Eddie to prevent him from publishing defamatory material. The case was heard in the Supreme Court of Queensland. The respondent's claim was that the appellant had made defamatory statements about him in a series of Facebook posts and that these statements had caused him significant harm to his reputation and business. The appellant, on the other hand, argued that the statements were true and that they were made in the public interest.

The legal issues that the court was required to decide were whether the defamatory material was indeed defamatory, whether the respondent had suffered harm as a result of the publication, and whether an interlocutory injunction should be granted to prevent further publication of the material. The court also had to consider the appellant's argument that the publication of the material was protected by freedom of expression. The court found that the defamatory material was indeed defamatory and that the respondent had suffered harm as a result of the publication. The court also found that the appellant's argument that the publication was protected by freedom of expression was not sufficient to outweigh the harm caused to the respondent. The court therefore granted the interlocutory injunction to prevent further publication of the material.

The court's reasoning was based on a careful consideration of the evidence and arguments presented by both parties. The court found that the defamatory material was indeed defamatory and that the respondent had suffered harm as a result of the publication. The court also found that the appellant's argument that the publication was protected by freedom of expression was not sufficient to outweigh the harm caused to the respondent. The court therefore granted the interlocutory injunction to prevent further publication of the material. The court emphasised the importance of protecting individuals from defamatory material that could cause them harm, and the need to balance this with the protection of freedom of expression. The court also noted that the grant of an interlocutory injunction was not a final determination of the case and that the parties would still have the opportunity to present their cases fully at trial. The final orders of the court were that an interlocutory injunction be granted to prevent the appellant from publishing the defamatory material, and that the case proceed to trial to determine the final outcome.

Orders