The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 2)
[2018] NSWSC 114
•09 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 2) [2018] NSWSC 114 Hearing dates: 9 February 2018 Decision date: 09 February 2018 Jurisdiction: Common Law Before: McCallum J Decision: 1. Order pursuant to rule 1.12 of the UCPR that the time fixed by rule 6.2(4) of the UCPR for service of the originating process on the fourth defendant be extended to 15 April 2018.
2. Costs of this application reserved.Catchwords: CIVIL PROCEDURE – application to extend time within which originating process is valid for service – confusion as to identity of fourth defendant – where a person accepted service of process as the party named but later denied being the party named – appropriateness of extending period of validity for service Legislation Cited: Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 6.2(4)Cases Cited: Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in Liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79 Category: Procedural and other rulings Parties: The Sydney Cosmetic Specialist Clinic Pty Ltd (first plaintiff)
Dr Siew Yi Lee (second plaintiff)
Richard Hu (“Yiwen Hu”) (first defendant)
Valgrow Pty Ltd (trading as LJ Hooker Burwood) (second defendant)
Lijue Ma (third defendant)
Erica Chen Cheng (fourth defendant)Representation: Counsel:
Solicitors:
A Spies (solicitor for the plaintiffs)
M Lewis (solicitor for the first defendant)
S Bird (solicitor for the second defendant)
MLH Lawyers Pty Ltd (plaintiffs)
AHL Legal (defendants)
File Number(s): 2017/180689 Publication restriction: None
Judgment – EX TEMPORE
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HER HONOUR: These are proceedings for defamation arising out of the publication of allegedly defamatory messages on the WeChat social media service.
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The proceedings were commenced by statement of claim filed 16 June 2017. That was shortly before the expiry of the 12-month limitation period fixed by s 14B of the Limitation Act 1969 (NSW), the original publications having allegedly been made between 18 and 19 June 2016.
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The original statement of claim named four defendants. Three have been served with the originating process and are now participating actively in the proceedings. The fourth defendant named in the statement of claim is Erica Chen Cheng. The plaintiff has encountered considerable difficulty serving the originating process on her and now seeks an extension of the time within which it is valid for service (which, under r 6.2(4) of the Uniform Civil Procedure Rules 2005 (NSW), is six months).
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The application is supported by two affidavits sworn by the solicitor for the plaintiff, Shing Hei Lam, sworn 14 December 2017 and 31 January 2018. In short, the evidence establishes that the plaintiffs have made many attempts to serve the person they understood to be Erica Chen Cheng, as identified by a WeChat name. On 21 September 2017, Mr Lam had a telephone conversation with a person living at premises associated with an E Cheng. He asked whether Erica Cheng was available. He was told that she was not home at the moment but would be home later. During the conversation it was revealed that Mr Lam was calling about "a legal matter". The following day, personal service was effected on a person who identified herself to the process server as Erica Chen Cheng but subsequently, when an amended pleading was sought to be served on that person, she identified herself as Erica Bic Cheng. Following further correspondence, she sent a statutory declaration to the solicitor denying that she had ever been known as Erica Chen Cheng.
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The plaintiffs now find themselves in the difficult position of not knowing whether the person who was served with the originating process is the person intended to be sued as the fourth defendant in the proceedings or not. If she is not that person, the plaintiffs have some apprehension as to the proper name of the fourth defendant, but their inquiries in that respect are ongoing.
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In a helpful outline of submissions handed up by Ms Spies on behalf of the plaintiffs, reliance is placed on the decision of Sackville J in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in Liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79 at [20] which, in short, establishes that a plaintiff must have a good reason for seeking an extension of the period in which an originating process is valid for service.
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The considerable lengths to which the plaintiffs' solicitor has gone to effect service and the confusing exchanges with the person who originally accepted that she was Erica Chen Cheng but subsequently asserted otherwise have persuaded me that this is an appropriate case in which the time for which the originating process is valid for service should be extended.
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For those reasons, I order pursuant to r 1.12 of the Uniform Civil Procedure Rules that the time fixed by r 6.2(4) of the Uniform Civil Procedure Rules for service of the originating process on the fourth defendant be extended to 15 April 2018 and reserve the costs of this application.
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Decision last updated: 08 May 2018
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