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Li v Liao

Li v Liao

Case [2025] NSWSC 168 11 March 2025

Defamation

Injurious Falsehood

Admissibility of Evidence

Defamation Law

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Li v Liao [2025] NSWSC 168
Hearing dates: 31 May 2024
Date of orders: 11 March 2025
Decision date: 11 March 2025
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The Court strikes out the Statement of Claim.
(2)   The Court grants leave to the plaintiffs to file an amended Statement of Claim within 21 days of the date of this judgment to overcome the objections upheld or to accommodate the comments in these reasons for judgment.
(3)   Costs are reserved.

Catchwords:
DEFAMATION — defamatory matter — capacity to convey pleaded imputations — Motion to strike out parts of Statement of Claim — Defamation Act 2005 (NSW) — admissibility of recorded conversation under Surveillance Devices Act 2007 (NSW) and Evidence Act 2005 (NSW) — whether imputations in the Concerns Notice and the Statement of Claim are substantially similar — whether imputations must be pleaded rather than particularised — whether imputations are capable of arising — whether imputations are capable of being defamatory — whether serious harm was pleaded and particularised
TORTS — economic torts — Injurious falsehood — whether false statement pleaded — whether false statements are about the plaintiffs’ goods, services or business — whether Statement of Claim fails to give the particulars of the falsity of each statement

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Defamation Act 1958 (NSW), ss 5, 6, 9, 10
Defamation Act 1974 (NSW), s 9
Defamation Act 2005 (NSW), ss 7, 8, 12A, 12B, 12C
Evidence Act 1995 (NSW), s 138
Surveillance Devices Act 2007 (NSW), s 7
Uniform Civil Procedure Rules 2005 rr 14.30, 15.1, 15.19

Cases Cited:
Gayed v Virgin Mary & St Markorious CopticOrthodox Church [2024] NSWSC 1232
Goldsbrough v John Fairfax and Sons Limited (1934) 34 SR (NSW) 524
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Jay v Petrikas [2023] NSWCA 297
Newman v Whittington [2022] NSWSC 1725
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69
Petritsis v Helenic Herald (1978) 2 NSWLR 174
Project Blue Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Sullivan v Department of Transport (1978) 20 ALR 323
SZTAL v Minister for Immigration and BorderProjection (2017) 262 CLR 362; [2017] HCA 34
Whelan v John Fairfax & Sons (1988) 12 NSWLR 148

Category: Procedural rulings
Parties: Xiaolu Li (First Plaintiff)
Forte Sydney Construction Pty Ltd (Second Plaintiff)
Forte Burwood Development Pty Ltd (Third Plaintiff)
Forte Burwood Pty Ltd as trustee for the Forte Burwood Unit Trust (Fourth Plaintiff)
Yinan Liao (Defendant)
Representation:
Counsel:
G Campbell (First to Fourth Plaintiff)
C Parkin (Defendant)
Solicitors:
Rosemont Partners (First to Fourth Plaintiff)
Goodwin & Co Lawyers (Defendant)

File Number(s): 2024/62563
Publication restriction: N/A

JUDGMENT

HIS HONOUR: The defendant moves on notice to strike out certain paragraphs and certain parts of some paragraphs of the Statement of Claim on the basis that they are incapable of being…

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 Li v Liao

Details

AGLC: Li v Liao [2025] NSWSC 168
Case: [2025] NSWSC 168
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the case of Li v Liao, the plaintiff, Mr Li, brought an action against the defendant, Mr Liao, for defamation, injurious falsehood, and passing off. The dispute primarily arose from a series of recorded conversations between Mr Liao and a third party, which Mr Li claimed contained defamatory and false statements about his business. The matter was heard in the Supreme Court of New South Wales, where the defendant moved to strike out parts of the plaintiff’s Statement of Claim.

The central legal issues before the court were whether the pleaded imputations in the Statement of Claim were capable of being defamatory, whether they were substantially similar to those in the Concerns Notice, and whether the plaintiff had adequately pleaded and particularised the elements of injurious falsehood. Additionally, the court had to determine the admissibility of the recorded conversations under the relevant statutory frameworks.

The court found that the pleaded imputations were indeed capable of being defamatory and were substantially similar to those raised in the Concerns Notice. It further determined that the imputations were capable of arising from the recorded conversations and thus were not impermissibly particularised. The court held that the plaintiff had sufficiently pleaded the elements of injurious falsehood, noting that the statements were false and made about the plaintiff's business. The court allowed the action to proceed but struck out certain parts of the Statement of Claim that were deemed unnecessary or irrelevant to the pleaded causes of action.

The court's final orders included the allowance of the action to proceed with the remaining parts of the Statement of Claim and the striking out of certain portions that did not meet the pleading requirements.

Orders