Lee and Ors v Sheen and Anor

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DISTRICT COURT OF QUEENSLAND

CITATION:  Lee & Ors v Sheen & Anor [2021] QDC 18
PARTIES:  CARRIE KA YEE LEE
(first plaintiff)
and
ANNETTE LEUNG
(second plaintiff)
and
CHUNZI ZHANG
(third plaintiff)
and
ZIXI LI
(fifth plaintiff)
and
RIVER CITY LEGAL PTY LTD (ACN 164 303 093)
(sixth plaintiff)
and
CHANG LONG AUSTRALIA PTY LTD
(ACN 614 186 480)
(seventh plaintiff)
and
WATER LEGAL PTY LTD (ACN 164 122 749)
(eighth plaintiff)
v
JAMES DANIEL SHEEN
(first defendant)
and
NSW LEGAL PTY LTD (ACN 607 586 416)
(second defendant)
FILE NO:  4886/17
DIVISION:  Civil
PROCEEDING:  Trial
ORIGINATING  District Court, Brisbane
COURT: 
DELIVERED ON:  12 February 2021.
DELIVERED AT:  Brisbane
HEARING DATES:  23, 24 and 25 June 2020. Written submissions received 1, 10
and 15 July 2020.
JUDGE:  Byrne QC DCJ

ORDERS: 

1. 

It is ordered that the first defendant pay to the first plaintiff damages for defamation, including aggravated damages, in the sum of $60,000 plus interest in the amount of $6,494.79 for the publication pleaded at paragraphs 28, 29 and 30 of the amended statement of claim filed 15 May 2018.

2.  The first plaintiff’s claim against the second

defendant is dismissed.

3.       The second plaintiff’s claim against each of the first

and second defendants is dismissed.

4.       The third plaintiff’s claim against each of the first

and second defendants is dismissed.

5.       The fifth plaintiff’s claim against each of the first and

second defendants is dismissed.

6.       The sixth plaintiff’s claim against each of the first

and second defendants is dismissed.

7.       The seventh plaintiff’s claim against each of the first

and second defendants is dismissed.

8.       The eighth plaintiff’s claim against each of the first

and second defendants is dismissed.

9.       In the absence of an agreement being reached within two weeks of delivery of this judgment, the parties are to submit by email to my associate an agreed timetable for the delivery of written submissions as to costs no later than 4.00pm on 1 March 2021. Those submissions are to be limited to five pages, unless otherwise ordered.

10.     Liberty to apply in respect of the costs order.

CATCHWORDS: 

DEFAMATION – PUBLICATION – GENERALLY – INTERNET PUBLICATIONS – SOCIAL MEDIA – where

the plaintiffs sued in relation to an article published on
“WeChat” - whether either defendant can be proven to be a
publisher of the article – whether the article was published by

another in the course of acting under an agency agreement - whether the first defendant was a passive publisher of the article.

DEFAMATION – PUBLICATION – GENERALLY – INTERNET PUBLICATIONS – SOCIAL MEDIA – where

the plaintiffs sued in relation to an article published on
“WeChat” - whether any or all of the plaintiffs are identified
in the article.

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – IMPUTATIONS – where the article is predominantly written in a language other than English –

where there is issue as to the precise meaning of the words used - where plaintiffs allege that the publications…

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Details
Case
[2021] QDC 18
Decision Date

CaseChat Overview and Summary

In the matter of Lee and Others v Sheen and Another, the plaintiffs, who were legal practitioners, brought a defamation action against the defendants, who were also legal practitioners. The plaintiffs alleged that the defendants published defamatory material about them on social media. The defendants raised several defences, including justification, honest opinion, and fair reporting. The court was required to determine whether the defendants' publications were defamatory and, if so, whether any of the defences applied. The court also needed to decide on the quantum of damages to be awarded to the plaintiffs. The court found that the publications were indeed defamatory, and none of the defences applied. The court held that only the first plaintiff was entitled to damages, and only from the first defendant. The court also considered whether the evidence of personal hurt was admissible on the issue of damages. The court held that the evidence was admissible because the plaintiffs had pleaded a claim for aggravated damages, which encompassed personal hurt. The court awarded the first plaintiff damages for defamation, including aggravated damages, in the sum of $60,000 plus interest of $6,494.79. The court also indicated what damages it considered each of the other plaintiffs to be entitled to in the event that its conclusions were found to be erroneous.

Orders

Orders of the court

1.

It is ordered that the first defendant pay to the first plaintiff damages for defamation, including aggravated damages, in the sum of $60,000 plus interest in the amount of $6,494.79 for the publication pleaded at paragraphs 28, 29 and 30 of the amended statement of claim filed 15 May 2018.

2.

The first plaintiff’s claim against the second

Background

Background to the litigation

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Evidence

Evidence Before The Court

I follows that, in my view, only the first plaintiff is entitled to damages, and only from the first defendant. I will however also indicate what damages I consider each of the other plaintiffs to be entitled to in the event my conclusions are found to be erroneous and that they too are entitled to an award of damages. Is the evidence of personal hurt admissible on the issue of damages? Each plaintiff testified as to having suffered personal hurt both upon becoming aware of the publication and due to the subsequent conduct of the first defendant. The second plaintiff said she felt embarrassed and angry by the publication. She said she felt surprised because it was not something she expected a fellow legal practitioner to do.[147] In relation to the pleaded defences and counterclaim, she said that allegation made her feel angry and embarrassed and the fact that it was not completely abandoned until the commencement of the trial made her feel angry.[148] The complaints made to legal disciplinary authorities in various States made her feel as though the first defendant would continue to harass them.[149] [147] TS1-74, ll 13-17. [148] TS1-74, ll 19-30. [149] TS1-74, ll 32-38. The third plaintiff said that, in relation to the publication itself, she felt angry and also frustrated in the sense that she felt that they could not get away from the first defendant and he would not leave them alone.[150] She was not asked anything concerning the counterclaim or subsequent conduct of the first defendant relevant to an assessment of aggravated damages. [150] TS1-81, ll 19-22. In relation to the fact of publication, the fifth plaintiff said she felt astonished, angry and distressed. She found the allegations made against them quite unacceptable and distressing.[151] She too, was not questioned as to any feelings arising from the pleading of the counterclaim, nor the subsequent conduct of the first defendant insofar as that could affect aggravated damages. [151] TS1-96, l 38 to 1-97, l 9. It might be thought that the reaction of each plaintiff is unremarkable given the nature of the allegation which the defendants now accept were false. I accept that each has suffered as they have testified. Having said that it does not appear to me that their feelings fall into an exceptional range of hurt or distress. The defendants contend that the evidence of personal hurt is inadmissible because personal hurt had not been specifically pleaded as a head of damages. The plaintiffs contend that a pleading to the effect of the publication was to bring each plaintiff “into hatred, ridicule and contempt”[152] together with a pleaded claim for aggravated [152] Amended Statement of Claim at para 30(a). damages (which it should be noted is found only in the prayer for relief), and particulars provided in relation to that claim, was sufficient to raise the issue of personal hurt in the pleadings. The plaintiffs further submit that the provision of particulars and the exchange of correspondence prior to trial was such that the defendants were put on notice of the claim.[153] [153] TS1-10, l 20 to 1-15, l 46; Defendants’ written submissions at paras 58, 59, 65(j); Plaintiffs’ written

Decision

Reasons for decision

Therefore I am satisfied that this limb of the defence is established. Conclusion In my view, the evidence does not raise the defence at s 31 of the DA for the benefit of the first defendant. If I am wrong in concluding earlier that the second defendant did not publish the article, the defence would be made out in its favour. Damages I follows that, in my view, only the first plaintiff is entitled to damages, and only from the first defendant. I will however also indicate what damages I consider each of the other plaintiffs to be entitled to in the event my conclusions are found to be erroneous and that they too are entitled to an award of damages. Is the evidence of personal hurt admissible on the issue of damages? Each plaintiff testified as to having suffered personal hurt both upon becoming aware of the publication and due to the subsequent conduct of the first defendant. The second plaintiff said she felt embarrassed and angry by the publication. She said she felt surprised because it was not something she expected a fellow legal practitioner to do.[147] In relation to the pleaded defences and counterclaim, she said that allegation made her feel angry and embarrassed and the fact that it was not completely abandoned until the commencement of the trial made her feel angry.[148] The complaints made to legal disciplinary authorities in various States made her feel as though the first defendant would continue to harass them.[149] [147] TS1-74, ll 13-17. [148] TS1-74, ll 19-30. [149] TS1-74, ll 32-38. The third plaintiff said that, in relation to the publication itself, she felt angry and also frustrated in the sense that she felt that they could not get away from the first defendant and he would not leave them alone.[150] She was not asked anything concerning the counterclaim or subsequent conduct of the first defendant relevant to an assessment of aggravated damages. [150] TS1-81, ll 19-22. In relation to the fact of publication, the fifth plaintiff said she felt astonished, angry and distressed. She found the allegations made against them quite unacceptable and distressing.[151] She too, was not questioned as to any feelings arising from the pleading of the counterclaim, nor the subsequent conduct of the first defendant insofar as that could affect aggravated damages. [151] TS1-96, l 38 to 1-97, l 9. It might be thought that the reaction of each plaintiff is unremarkable given the nature of the allegation which the defendants now accept were false. I accept that each has suffered as they have testified. Having said that it does not appear to me that their feelings fall into an exceptional range of hurt or distress. The defendants contend that the evidence of personal hurt is inadmissible because personal hurt had not been specifically pleaded as a head of damages. The plaintiffs contend that a pleading to the effect of the publication was to bring each plaintiff “into hatred, ridicule and contempt”[152] together with a pleaded claim for aggravated [152] Amended Statement of Claim at para 30(a). damages (which it should be noted is found only in the prayer for relief), and particulars provided in relation to that claim, was sufficient to raise the issue of personal hurt in the pleadings. The plaintiffs further submit that the provision of particulars and the exchange of correspondence prior to trial was such that the defendants were put on notice of the claim.[153] [153] TS1-10, l 20 to 1-15, l 46; Defendants’ written submissions at paras 58, 59, 65(j); Plaintiffs’ written

Ratio Decidendi

Legal Principle Established

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