Legal Research
Cases
The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu

The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu

Case [2022] NSWCA 1 28 January 2022

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1
Hearing dates: 30 August 2021
Date of orders: 28 January 2022
Decision date: 28 January 2022
Before: Basten JA at [1]
Gleeson JA at [2]
McCallum JA at [90]
Decision:
2021/28293
(1)   Revoke the grant of leave to appeal given on 7 May 2021;
(2)   Notice of appeal filed 17 May 2021 be dismissed;
(3)   Appellants to pay the respondents’ costs in this Court.
2021/103515
(1)   Summons seeking leave to appeal filed 29 June 2021 be dismissed with costs.

Catchwords:
APPEALS – application for leave – whether grant of leave should be revoked – whether reasonably clear injustice going beyond something that is merely arguable
CIVIL PROCEDURE – pleadings and particulars – pleadings in defamation – adequacy of particulars of publication, identification and extrinsic facts – where plaintiffs alleged five posts in WeChat group were defamatory – plaintiffs failed to comply with condition of leave to replead – seventh version of pleadings over four years – whether pleadings provided sufficient particulars for defendants to know case they have to meet – whether primary judge erred in summarily dismissing proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57
District Court Act 1973 (NSW), s 127(2)(a)
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 15.1, 15.19. 42.1

Cases Cited:
Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bruce v Odhams Press Ltd [1936] 1 KB 697
Cross v Denley (1952) 52 SR (NSW) 112
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50
Fregnan v Stanizzo (2016) 92 NSWLR 318; [2016] NSWCA 264
Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] SGHC 38
Kruse v Lindner (1978) 45 FLR 412
Lee v Wilson (1934) 51 CLR 276; [1934] HCA 60
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
McGinn v Cranbrook School [2016] NSWCA 226
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136
Scelfo v Rutgers University (1971) 282 A 2d 445
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Sims v Wran [1984] 1 NSWLR 317
Steele v Mirror Newspapers Ltd [1974} 2 NSWLR 348
The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482
The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2020] NSWDC 786
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Texts Cited:
Tobin and Sexton, Australian Defamation Law and Practice (LexisNexis)

Category: Principal judgment
Parties: The Sydney Cosmetic Specialist Clinic Pty Ltd (First appellant)
Siew Yi Lee (Second appellant)
Yiwen Hu (First respondent)
Lijue Ma (Second respondent)
Representation:
Counsel:
A Cheshire…

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 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu

Details

AGLC: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1
Case: [2022] NSWCA 1
Decision Date: 28 January 2022

CaseChat Overview and Summary

The Sydney Cosmetic Specialist Clinic Pty Ltd and others (the appellants) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of the primary judge who had summarily dismissed defamation proceedings against the respondents. The dispute concerned allegations that five posts made in a WeChat group were defamatory of the appellants.

The Court of Appeal was required to determine whether the primary judge erred in summarily dismissing the proceedings. This involved considering whether the appellants' pleadings, particularly the seventh version over a period of four years, provided sufficient particulars of publication, identification, and extrinsic facts to enable the respondents to know the case they had to meet. A further issue was whether the appellants had complied with a condition of leave to replead.

The Court found that the appellants had failed to comply with the condition of leave to replead and that their pleadings did not provide sufficient particulars. The Court reasoned that the appellants had not demonstrated a reasonably clear injustice that went beyond something merely arguable, which is the threshold for revoking a grant of leave to appeal. Consequently, the Court revoked the grant of leave to appeal and dismissed the notice of appeal.

Orders

Orders of the court

2021/28293

(1) Revoke the grant of leave to appeal given on 7 May 2021;

(2) Notice of appeal filed 17 May 2021 be dismissed;

(3) Appellants to pay the respondents’ costs in this Court.

2021/103515

(1) Summons seeking leave to appeal filed 29 June 2021 be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1

Most Recent Citation

High Court Bulletin [2022] HCAB 4

Cases Citing This Decision

Munro v Wheeler (No 3) [2025] NSWDC 3
Citation 1 (Para 87)

…per Gordon J). The basis of the defendants’ challenge to publication is that, as occurred in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, each of the plaintiffs has failed to demonstrate that any person ever read the matter complained of (including each other: Trantum v McDowell [2007] NSWCA…
Prouten v Buxton [2024] NSWDC 182
Citation 2 (Para 37)

…e Facebook posts such as the defendant’s post employ (some of these issues are touched on in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the matters complained of arose out of hundreds of pages of short Weixin text conversations over a 24-hour period). These factors must be taken into…
GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63
Citation 3 (Para 4)

…of cases between the District and Supreme Court to resolve issues of this kind is well known: see The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1 at [6] and The Sydney Cosmetic Specialist Clinic Pty Ltd (ACN 151 319 032) v Hu [2020] NSWDC 786 at [27] – [29] (claim in excess of $750,000) and Edw…
Randell v McLachlain [2022] NSWDC 506
Citation 4 (Para 55)

…ecific groups of persons in two decisions where no publication could be proved. The first of these was Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the site was a WeChat members’ group in Chinese. The mere fact that others came into and went out of the ongoing discussions did not amount to…
High Court Bulletin [2022] HCAB 4
Citation 5

…Supreme Court of New South Wales (Court of Appeal) [2022] NSWCA 1…
Gardner v Selby [2022] NSWSC 298
Citation 6 (Para 6)

…This application is one for an interlocutory order: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1 at [2] (Gleeson JA, with whom Basten and McCallum JJA agreed).…

See all citing cases →

Cases Cited

The Sydney Cosmetic Specialist Clinic Pty Ltd (ACN 151 319 032) v Hu (No 2) [2021] NSWDC 98
Citation 1

…15 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 786; [2021] NSWDC 98 Date of Decision: 29 October 2020; 31 March 2021 Before: Gibson DCJ File Number(s): 2017/180689…
The Sydney Cosmetic Specialist Clinic Pty Ltd (ACN 151 319 032) v Hu [2020] NSWDC 786
Citation 2 (Para 36)

…g in August 2020, Gibson DCJ delivered judgment on 29 October 2020 making the orders as indicated: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2020] NSWDC 786.…
The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482
Citation 3 (Para 7)

…amended statement of claim filed 7 August 2019 was struck out by Gibson DCJ on 11 September 2019: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482. The plaintiffs were given leave to replead on condition that (at [147(2)]):…
Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206
Citation 4 (Para 5)

…Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Accordingly, the notice of appeal filed 21 May 2021 and the summons for leave to appeal against the costs orders should both be dismissed.…
Zoef v Nationwide News Pty Ltd [2016] NSWCA 283
Citation 5 (Para 47)

…rning" the plaintiff: Lee v Wilson (1934) 51 CLR 276 at 288 (Dixon J); [1934] HCA 60. As noted in Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at [128] (Gleeson JA, Ward and Payne JJA agreeing), where the words do not specifically name the plaintiff, the test for identification is that state…
Fregnan v Stanizzo [2016] NSWCA 264
Citation 6 (Para 49)

…culars is to identify the nature of the case the other party is called upon to meet and prevent surprise: Fregnan v Stanizzo (2016) 92 NSWLR 318; [2016] NSWCA 264 at [11]-[13] (Macfarlan JA, Beazley P and Leeming JA agreeing), citing Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70; Sims v Wran [1984] 1 NSWLR…
McGinn v Cranbrook School [2016] NSWCA 226
Citation 7 (Para 2)

…equired: District Court Act 1973 (NSW), s 127(2)(a); Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]; McGinn v Cranbrook School [2016] NSWCA 226 at [20]. Leave was granted on 7 May 2021. It is convenient to refer to the appellants as the plaintiffs. At the same time, the plaintiffs were direct…
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
Citation 8

…with events of more than four years ago are relevant to the exercise of discretion in granting leave to amend one more time: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. [107] An additional difficulty is that these proceedings are, to use Hunt J’s expression in Lazarus , “a tempest in a teacup” in circumstances where…
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136
Citation 9 (Para 57)

…lained of reasonably understood the words in the posts to refer to the first plaintiff: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 at [18], a case where the particulars were not capable of identifying the relevant plaintiff.…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Citation 10 (Para 5)

…reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Accordingly, the notice of…
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Citation 11 (Para 2)

…rder is an interlocutory order, leave to appeal is required: District Court Act 1973 (NSW), s 127(2)(a); Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]; McGinn v Cranbrook School [2016] NSWCA 226 at [20]. Leave was granted on 7 May 2021. It is convenient to refer to the appellants as the plai…
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Citation 12

…ed defendants. After seven attempts over the past four years (which Mr Polden noted was one more than in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37), the plaintiffs still have not produced a pleading which can go forward. As Mr Young has acknowledged, certain portions must be revised; in addition…
Smith v Department of Family and Community Services [2004] FCA 1428
Citation 13 (Para 5)

…omething that is merely arguable: Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Accordingly, the notice of appeal filed 21 May 2021 and the summons for leave to appeal against the costs order…
Dare v Pulham [1982] HCA 70
Citation 14 (Para 49)

…6) 92 NSWLR 318; [2016] NSWCA 264 at [11]-[13] (Macfarlan JA, Beazley P and Leeming JA agreeing), citing Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70; Sims v Wran [1984] 1 NSWLR 317 at 321 (Hunt J).…
Lee v Wilson [1934] HCA 60
Citation 15 (Para 47)

…is not actionable unless it is established to have been published "of and concerning" the plaintiff: Lee v Wilson (1934) 51 CLR 276 at 288 (Dixon J); [1934] HCA 60. As noted in Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at [128] (Gleeson JA, Ward and Payne JJA agreeing), where the words…
David Syme & Co v Canavan [1918] HCA 50
Citation 16 (Para 47)

…do not specifically name the plaintiff, the test for identification is that stated by Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 at 238; [1918] HCA 50:…
[1971] 1 WLR 1239 [1971] 1 WLR 1239
Citation 17 (Para 48)

…e v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371C-D (Samuels JA); Kruse v Lindner (1978) 45 FLR 412 at 414 (Smithers J); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243-1244 (Lord Reid).…
[1936] 1 KB 697 [1936] 1 KB 697
Citation 18 (Para 70)

…g of some other person, real or imaginary, does not provide the second plaintiff with any cause of action: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705 (Greer LJ).…

Legislation Cited

Civil Procedure Act 2005 (NSW) 56, 57
3 mentions (from Para 50)
Uniform Civil Procedure Rules 2005 (NSW) 13.4, 15.1, 15.19
3 mentions (from Para 2)
District Court Act 1973 (NSW) 127(2)(a)
1 mention (from Para 2)
Limitation Act 1969 (NSW) 14B
1 mention (from Para 6)

Medium Neutral Citation:	The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1
Hearing dates:	30 August 2021
Date of orders:	28 January 2022
Decision date:	28 January 2022
Before:	Basten JA at [1] Gleeson JA at [2] McCallum JA at [90]
Decision:	2021/28293 (1) Revoke the grant of leave to appeal given on 7 May 2021; (2) Notice of appeal filed 17 May 2021 be dismissed; (3) Appellants to pay the respondents’ costs in this Court. 2021/103515 (1) Summons seeking leave to appeal filed 29 June 2021 be dismissed with costs.
Catchwords:	APPEALS – application for leave – whether grant of leave should be revoked – whether reasonably clear injustice going beyond something that is merely arguable CIVIL PROCEDURE – pleadings and particulars – pleadings in defamation – adequacy of particulars of publication, identification and extrinsic facts – where plaintiffs alleged five posts in WeChat group were defamatory – plaintiffs failed to comply with condition of leave to replead – seventh version of pleadings over four years – whether pleadings provided sufficient particulars for defendants to know case they have to meet – whether primary judge erred in summarily dismissing proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57 District Court Act 1973 (NSW), s 127(2)(a) Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 15.1, 15.19. 42.1
Cases Cited:	Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bruce v Odhams Press Ltd [1936] 1 KB 697 Cross v Denley (1952) 52 SR (NSW) 112 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 Fregnan v Stanizzo (2016) 92 NSWLR 318; [2016] NSWCA 264 Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] SGHC 38 Kruse v Lindner (1978) 45 FLR 412 Lee v Wilson (1934) 51 CLR 276; [1934] HCA 60 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School [2016] NSWCA 226 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 Scelfo v Rutgers University (1971) 282 A 2d 445 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Sims v Wran [1984] 1 NSWLR 317 Steele v Mirror Newspapers Ltd [1974} 2 NSWLR 348 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2019] NSWDC 482 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2020] NSWDC 786 Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Texts Cited:	Tobin and Sexton, Australian Defamation Law and Practice (LexisNexis)
Category:	Principal judgment
Parties:	The Sydney Cosmetic Specialist Clinic Pty Ltd (First appellant) Siew Yi Lee (Second appellant) Yiwen Hu (First respondent) Lijue Ma (Second respondent)
Representation:	Counsel: A Cheshire…