The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 3)
[2018] NSWSC 823
•11 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu (No 3) [2018] NSWSC 823 Hearing dates: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to plaintiff pursuant to s 65(2)(b) of the Civil Procedure Act to correct the name of the fourth defendant to Qiong Yan; leave granted to plaintiff to file the proposed amended statement of claim served yesterday and, to the extent necessary, grant leave in that respect pursuant to section 65(2)(c) of the Civil Procedure Act, reserving the defendants' right to object to the form of that pleading.
Catchwords: DEFAMATION – pleading – application to amend name of defendant – where plaintiff had difficulty identifying the user of a particular WeChat identifier Legislation Cited: Civil Procedure Act 2005 (NSW), ss 65(2)(b), 65(2)(c) Cases Cited: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 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 1 Pty Ltd (trading as LJ Hooker Burwood) (second defendant)
Lijue Ma (third defendant)
Qiong Yan (fourth defendant)Representation: Counsel:
Solicitors:
A Spies (plaintiffs)
First defendant self-represented
W Bure (solicitor for the second defendant)
O Jones (third defendant)
MLH Lawyers Pty Ltd (plaintiffs)
Carter Newell Lawyers (second defendant)
United Lawyers (third defendant)
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 comments made during a conversation or conversations on the WeChat social media platform. The first defendant, Mr Hu, was, until recently, represented in the proceedings but now represents himself. The second defendant is legally represented, as is the third. The position of the fourth defendant has been considered in previous judgments published by me in this list. In short, the plaintiff has had difficulty identifying whether the person named in the original statement of claim is the party intended to be sued. I will return to that issue.
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The plaintiff has recently circulated a proposed further amended statement of claim. The second and third defendants have no objection to the filing of that document. However, Mr Hu seeks an opportunity to consider it, having received it only yesterday and wanting an opportunity to ascertain whether it meets objections previously notified to the plaintiff by his solicitor on his behalf.
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The appropriate course in respect of the amendment in my view is to grant leave to the plaintiff to file that document within seven days reserving Mr Hu's right to argue any objections on the next occasion. In making that order, I note that leave may be required under s 65(2)(c) of the Civil Procedure Act 2005 (NSW), since the way in which the amended pleading is formulated arguably adds new causes of action. It is clear enough, however, that any new cause of action arises from substantially the same facts as those giving rise to the causes of action originally pleaded. What the plaintiff has done is to reformulate the pleading in response to the defendants' various objections. Although it may have the effect of adding causes of action that were not previously pleaded, I do not think that reformulation should be precluded.
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Accordingly, I grant leave, to the extent necessary, pursuant to s 65(2)(c) and leave to file the proposed amended pleading within seven days, reserving the defendants' right to argue any objections to that pleading.
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The second issue that arises today is the plaintiff's application pursuant to s 65(2)(b) of the Act to correct the name of the fourth defendant. The application is supported by two affidavits sworn by the plaintiff's solicitor, Shing Hei Lam on 31 January 2018 and 30 April 2018. Mr Lam deposes to the steps taken to identify the person always intended to be sued as the fourth defendant. The pleading makes plain that particular comments are attributed to that person, who used the WeChat identifier "ericachencheng". On the strength of that identification, until recently, the plaintiff has been attempting to serve a person named Erica Chen Cheng. However, various enquiries made, the details of which are set out in the affidavits, have now revealed that the person who uses that WeChat identifier is probably a person named Qiang Yan.
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I am satisfied that the originally named fourth defendant was so named by mistake. In my opinion, it is a mistake which is not misleading or such as to cause doubt as to the identity of the person intended to be made a party. As already indicated, it is clear enough that the plaintiff always intended to name whoever was the person in fact responsible for posting comments under the WeChat identifier "ericachencheng".
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Ms Spies, who appears for the plaintiff, provided the Court with a helpful written outline of submissions which includes reference to the decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 where McHugh J explained the kind of circumstance in which a plaintiff might be allowed to correct a mistakenly named person.
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I am satisfied, having considered Ms Spies' submissions and the affidavits to which I have referred, that it is appropriate to make the order sought. For those reasons, I make the following orders:
Grant leave to the plaintiff pursuant to section 65(2)(b) of the Civil Procedure Act to correct the name of the fourth defendant to Qiang Yan.
Grant leave to the plaintiff to file the proposed amended statement of claim served yesterday and, to the extent necessary, grant leave in that respect pursuant to section 65(2)(c) of the Civil Procedure Act, reserving the defendants' rights to object to the form of that pleading
Stand the proceedings over for first listing on 8 June 2018 at 9.30.
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Decision last updated: 06 June 2018
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