Wang v Qin
[2021] VCC 1906
•3 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-20-04972
| PENG WANG (aka BARRY WANG) | Plaintiff |
| v | |
| LEI QIN (aka JESSIE QIN) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19, 20, 21, 22, 25, 26, 27, 28 and 29 October 2021 | |
DATE OF JUDGMENT: | 3 December 2021 | |
CASE MAY BE CITED AS: | Wang v Qin | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1906 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Defamation – defence – justification – fair comment – triviality
Legislation Cited: Defamation Act 2005 (Vic); Evidence Act 2008 (Vic)
Cases Cited:Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Farquhar v Bottom [1980] 2 NSWLR 380; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Hardie v The Herald & Weekly Times Pty Ltd [2016] VSCA 103; Charan v Nationwide News Pty Ltd [2018] VSC 3; Charan v Nationwide News Pty Ltd [2019] VSCA 36; Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Briginshaw v Briginshaw [1938] 60 CLR 336; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; Webb v Bloch (1928) 41 CLR 331; Sims v Wran [1984] 1 NSWLR 317; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749; Jones v Sutton (2004) 61 NSWLR 614; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Belbin & Ors v Lower Murray Urban and Rural Water Corporation[2012] VSC 535; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Ley v Hamilton (1935) 153 LT 384; Crampton v Nugawela (1996) 41 NSWLR 176; Cassell & Co Ltd v Broome [1972] AC 1027; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Prendergast v Roberts [2012] QSC 144; Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981; Bauer Media Pty Ltd v Wilson(No 2) (2018) 56 VR 674; Mirabella v Price & Anor [2018] VCC 650; Johnston v Aldridge [2018] SADC 68; Rothe v Scott(No 4) [2016] NSWDC 160; Mickle v Farley [2013] NSWDC 295; Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351; Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336; Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383
Judgment: Damages to the plaintiff assessed in the sum of $150,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Line | Jasper Lawyers Pty Ltd |
| For the Defendant | The defendant appeared in person | - |
HER HONOUR:
1This is a claim in defamation brought by the plaintiff, Mr Peng Wang, also known as Mr Barry Wang, in relation to three articles that were published by Ms Lei Qin, also known as Ms Jessie Qin, on Chinese language social media websites between April and May 2020.
2For the reasons that follow I find that Mr Wang has made out his claim in defamation and award him damages in the amount of $150,000.
Background
3Mr Wang is a property developer and Ms Wang is a real estate agent. It is not in dispute that the plaintiff and defendant first met online in about 2015 through a real estate group on the social media platform WeChat. They did not meet in person at that time and did not maintain contact.
4At some point each of them independently joined a dating platform known as “Seeking Arrangement”. This platform apparently held itself out to be a space where potential “sugar babies” could meet a “sugar daddy” or “sugar mummy”. Though it is of only marginal relevance to this case, I understand that a “sugar baby” is someone who enters into a romantic or sexual relationship with a person, usually an older and wealthier person, with the intention of providing sex and/or companionship in exchange for money or gifts.
5Mr Wang gave evidence that he joined Seeking Arrangement in about March 2019 on the recommendation of a friend, as he was busy at work and looking after his young daughter and that he thought it was an “easier way to meet people”. He said “sometimes at night I felt lonely, I needed companions”. He chose Seeking Arrangement so as not to “waste too much time” on another dating platform. He understood that the arrangement, in the context of “Seeking Arrangement”, would be “an exchange. Like, you know, both people will consent to such an exchange. Say, you know, one party may, you know, give money. The other party will in return, you know, give time or companionship.” He did not suggest that the relationship he had with Ms Qin was such an “exchange”, and specifically denied that he saw her as a sugar baby or himself as a sugar daddy.
6Ms Qin’s profile on Seeking Arrangement indicates that she became a member of the site on 8 April 2019. Her profile says she was looking for an “active lifestyle” and an “open relationship” with a man or woman aged twenty-two to fifty years old. She identified herself as a “social drinker” and “non-smoker”. In the “About Me” section, she wrote “Living in Melbourne more than 10 years. Wanna make more friends.” Accompanying her profile were six photographs.
7After connecting through Seeking Arrangement, Mr Wang and Ms Qin realised that they previously “met” online through the WeChat real estate group. They exchanged WeChat contact details and moved their text exchanges from Seeking Arrangement to WeChat.
8The defendant says in her Defence that they first re-commenced sending messages via WeChat on 19 April 2019 and met for the first time on 20 April 2019.
9Mr Wang thought that they had messaged on WeChat for “one or two weeks” before meeting in person. Either way, the parties agree that they had not been messaging for very long online before meeting in person.
10They arranged to meet on 20 April 2019. On that occasion, there may have been an initial intention to have lunch near Mount Dandenong but, in any event, they ultimately had a short meeting in a café next to Mr Wang’s office. Mr Wang estimates that they spent about 15 to 20 minutes together. He returned to work and Ms Qin departed.
11At some point in the evening of that same day, Mr Wang drove to Ms Qin’s house, picked her up and took her back to his house. He estimates they arrived at his house between 8.00 and 9.00pm. They did not eat anything and did not go out. They both drank alcohol. He thinks he drank two glasses of whiskey, mixed with water. She says she had one gin and one whiskey. They differ on whether or not she was affected by alcohol. I will deal with the differing version of events in more detail below. They had sex. The following morning, Ms Qin departed.
12Thereafter, they met up intermittently for sex at his house. Usually she drove herself to his house later in the evening, usually after 9.00pm.
13For most or all of May 2019, Mr Wang had a business partner from China staying with him, a man called Mr Jirong Feng. During the period of Mr Feng’s stay, Ms Qin did not come to the house as Mr Wang did not consider it appropriate to have her stay whilst he was hosting a business colleague.
14On a number of occasions during Mr Feng’s stay, Mr Wang accompanied him to Crown Casino. On one of those occasions, Ms Qin arranged to attend the Casino at the same time as Mr Wang and Mr Feng. Mr Wang did not introduce Mr Feng to Ms Qin. Ms Qin says that at the Casino, she was within one metre of Mr Feng and she “saw him” and considered this to constitute a meeting. She does not dispute that they did not speak and she was not introduced to him. This event at the Casino occurred in May 2019.
15On another occasion, Mr Wang says he attended a function at the Casino and drank too much to drive home safely. He rang Ms Qin and she collected him from the Casino and drove him home. Mr Wang is not sure when this occurred but thinks that it was after the occasion when she was at the Casino at the same time as Mr Feng.
16Mr Feng returned to China in early June 2019. Mr Wang was unable to recall the exact date. Approximately one week later, Mr Wang travelled to China to attend Mr Feng’s son’s wedding. He was in China for about two weeks. During that period, Ms Qin was in Melbourne.
17Mr Wang returned to Melbourne in about mid-June 2019. He and Ms Qin saw each other from time to time. On those occasions, she attended at his house later in the evening and they had sex. She stayed the night and left in the morning.
18On one occasion in July 2019, Mr Wang and Ms Qin attended a shop, Sexyland, in Springvale together. Ms Qin bought a number of lingerie items. Mr Wang transferred $1000 to Ms Qin on 25 July 2019. The parties agree that this was a reimbursement for lingerie, although they disagree as to whether it was a full or only partial reimbursement.
19The parties agree that on one occasion in May 2019, Mr Wang asked Ms Qin to purchase a facial treatment, known as SK-II Facial Treatment Essence, for him. Mr Wang says he cannot recall if she did purchase the item for him but if she had done so, he would have reimbursed her for the cost. Ms Qin says she did purchase the item and was not reimbursed.
20In approximately July 2019, the parties exchanged text messages about Ms Qin’s visa status. The interpretation of this exchange is a source of dispute and will be dealt with later in these reasons. In any event, the parties agree that Mr Wang refused to assist Ms Qin by providing a co-habitation certificate, marrying her, or otherwise providing evidence that they were living together.
21It is also common ground between the parties that from about late July or August 2019, they had less contact. Very little evidence was before the Court about what happened over this time. Both parties agreed that on 15 November 2019, Mr Wang blocked Ms Qin on WeChat and they were no longer in contact. Prior to blocking her, there was the following exchange on 7 November 2019:
Mr Wang: “Recently it was hot and cold – unpredictably. It is very uncomfortable.
Ms Qin: Your health is very weak.
Mr Wang: Bullshit.
Ms Qin: You mention that you want to find someone else. It looks like you need to rest.
Mr Wang: I’m sorry. I really feel uncomfortable.
Ms Qin: That’s alright. You better get rest earlier.”
22Then, on 15 November 2019:
Ms Qin: “Drink hot water. Goodnight.
Mr Wang: Okay.”
23Apparently after this seemingly innocuous exchange, Mr Wang blocked Ms Qin and they had no further contact, either in person or by text message, until 25 January 2020. This message demonstrates the difficulty in deciphering what is meant in text exchanges, particularly when denuded of context and translated from their original language.
24Chinese New Year fell on 25 January 2020 and on that day, Mr Wang re-added Ms Qin as a “WeChat friend”. The following exchange occurred:
Mr Wang: “All in the past.
Should also wish you happy new year. You are just not too sensible, but you are not a bad person. What I mean is, you don’t have bad intentions.
Ms Qin: Yeah, that is for sure. I need to thank my parents for this. They have done a decent job educating me.
Mr Wang: Done well with the education. Not a bad person at all.
Ms Qin: You always follow your feeling, but you don’t know who is right or who is wrong either.
Mr Wang: [winking tongue out emoji]. Finally you have grown up.
Ms Qin: At least you have not deliberately played with and used people. That is already very good.
Mr Wang: [winking tongue out emoji]
Ms Qin: People always continue to grow throughout dating or breakups. The more one experiences, the more mature one gets.”
25After this, Mr Wang and Ms Qin briefly resumed a sexual relationship; however, after seeing each other on two or three occasions in late January and early February 2020, the relationship broke down. During the brief resumption of their relationship, Ms Qin had bought a packet of facemasks that she gave to Mr Wang, at a cost of $73.80. She also bought him two small gifts – a tub of sunscreen and a bottle of gel. On 13 February 2020, Mr Wang texted Ms Qin to tell her not to contact him again.
26On 23 March 2020, Ms Qin asked Mr Wang to reimburse her $73.80 for the facemasks. He transferred $100 to her account that day. A further text exchange ensued where Ms Qin asked for the return of the two small gifts she had purchased for him. Mr Wang then transferred a further $200 to her bank account as reimbursement for these items.
27On 1 April 2020, Ms Qin, according to her evidence, posted the third article, a fake dating profile on Tantan. As a result of posting that article, she was contacted by a woman, Stacey Meng, who also knew Mr Wang. Ms Meng exchanged the following text messages with Mr Wang, asking about Ms Qin:
Mr Wang: “The way we met with each other was not right. If you knew her, you wouldn’t ask me such a question. Based on your knowledge of me, no matter what you see, you will not agree that I would like a girl of that type. I am serious in my words.
Ms Stacey:So you are not serious with her?
Mr Wang: Met her from that, what do you think?
Ms Stacey: She wrote it was that on Tantan. You told her you were serious.
Mr Wang: I have the screenshots including those intimidating messages. I sincerely have no intention to hurt others, after all she is just a girl.”
28Ms Qin became aware of this text exchange and became very angry with Mr Wang. She felt that Mr Wang was saying that he never liked her. She thought this established that he had been lying to her throughout their relationship. She and Ms Meng became members of a WeChat group called “Expose Scum Man Barry” which Ms Qin says Ms Meng set up. On that WeChat group, a number of women discussed their experiences with Mr Wang. Ms Qin came to believe that Mr Wang had had sexual relationships with other women at the time she was having a sexual relationship with him. As a result, she decided to publish the first and second articles.
29Mr Wang became aware of the first article when a friend brought it to his attention. He subsequently became aware of the second article. He sought legal advice and his lawyers contacted Ms Qin, who denied being the publisher of the articles.
30A Concerns Notice was sent by Mr Wang’s lawyers to Ms Qin, seeking retraction and an apology. No retraction or apology was forthcoming.
31Mr Wang then issued proceedings. On 21 March 2021, Mr Wang was visited by three men who identified themselves as having been retained by Ms Qin’s parents in relation to this matter. This incident will be dealt with in greater detail below. He interpreted that visit as a threat. Ms Qin denies knowledge of the visit and denies that it was anything other than an attempt to mediate the dispute between them.
The defamatory articles
32The first article was published on or about 21 April 2020 on a website called “Australian Village Gossiper” on the social media platform WeChat (“the first AVG article”). The article consisted of two parts: The first part was a statement written by Ms Qin, and included messages exchanged between the parties on WeChat and messages exchanged between Mr Wang and an unknown person on WeChat. The second part consisted of a number of quotes attributed to the plaintiff, and a section titled “Scum Man Tactics”.
33Mr Wang alleges that the following imputations arise:
(a) Barry Wang is immoral;
(b) Barry Wang is a scammer;
(c) Barry Wang is a sexual predator;
(d) Barry Wang makes women submit to sexual activity when they are drunk;
(e) Barry Wang is manipulative;
(f) Barry Wang engages in mind games with women;
(g) Barry Wang took financial advantage of Lei Qin;
(h) Barry Wang lied to and deceived Lei Qin;
(i) Barry Wang sought to emotionally control Lei Qin;
(j) Barry Wang is an expert pick up artist;
(k) Barry Wang misrepresents his romantic attentions for personal gain;
(l) Barry Wang is malicious in his behaviour towards women; and
(m) Barry Wang tries to emotionally control women.
34The second article was published on Australian Village Gossiper on about 1 May 2020 (“the second AVG article”). This was also in two parts: The first part purported to “expose” the “scum man Barry” and was followed by screenshots of text messages. The second part contained various statements about Mr Wang and identified him as Barry Wang. This part of the article also contained screen shots of text messages. Mr Wang’s image appears next to some of these images in both pixelated and unpixellated form.
35Mr Wang alleges that the following imputations arise:
(a) Barry Wang is immoral;
(b) Barry Wang is a scammer;
(c) Barry Wang is a pick up artist;
(d) Barry Wang is a liar;
(e) Barry Wang is a sexual predator;
(f) Barry Wang is two-faced;
(g) Barry Wang scams women;
(h) Barry Wang is manipulative; and
(i) Barry Wang uses women.
36The third article was actually published first in time, according to Ms Qin, on 1 April 2020. Mr Wang did not become aware of this article until approximately 31 May 2020. This article was in the form of a “profile” on a Chinese-language dating platform known as Tantan (“the fake dating profile”). It contained a photograph of Mr Wang identified as “Barry W” and contained the line “My name is Barry Wang”.
37Mr Wang alleges that the following imputations arise:
(a) Barry Wang is immoral;
(b) Barry Wang uses women;
(c) Barry Wang is a sexual predator;
(d) Barry Wang makes women submit to sexual activity when they are drunk;
(e) Barry Wang is a liar;
(f) Barry Wang is manipulative; and
(g) Barry Wang emotionally controls women.
38Ms Qin admits publication of the three articles. In her pleaded Defence, she denied that any of the articles were of and concerning the plaintiff; however, it was clear during the trial that she had resiled from this position.
39She denied that any of the defamatory meanings are conveyed, and disputed some of the translations provided. I will deal with those matters below.
40She says that if any of the defamatory imputations are conveyed, then she relies on three defences:
41Firstly, a defence of justification pursuant to s25 of the Defamation Act 2005 (Vic) (“the Act”) and at common law. In her pleaded Defence, she referred to s22 of the Act; however, applied at trial to amend the pleading to cite the correct section, which was not opposed by the plaintiff. She says that the meanings were substantially true, and true in substance and in fact, other than the imputation that Mr Wang makes women submit to sexual activity when they are drunk. However, at trial, it was clear that she also relied on a defence of truth in relation to this imputation.
42Secondly, she pleads a defence of fair comment at common law. She says that the meanings conveyed were honest expressions of opinion, rather than statements of fact, and that the opinions were based upon facts which were stated and which were true in substance and fact, other than the imputation that Mr Wang makes women submit to sexual activity when they are drunk. Again, although she did not plead fair comment in relation to this imputation, at trial it was clear that she maintained that this was a fair comment based upon facts which were true in substance and fact.
43Thirdly, she pleads a defence of triviality pursuant to (the now repealed) s33 of the Act on the basis that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.
Translations and interpreters
44The language spoken by both the plaintiff and defendant, and the language in which the articles were written was what in English is called Mandarin; however, in this judgment I will refer to it as Chinese, as that is how all the parties involved in the case referred to the language that they speak.
45Ms Dongmei Chen provided the translations for the articles annexed to the Statement of Claim. At trial, Ms Dongmei Chen gave evidence that she is a NAATI-certified professional translator for English to Mandarin and Mandarin to English for both written and spoken words. She has been certified at the professional level for about fifteen years and works for various agencies, as well as under her own company name, Good Story Chinese Translation. She has translated in court proceedings more than one hundred times and has translated court documents on many occasions. She provided translation and interpretation during the hearing for the plaintiff.
46The Court was also assisted by Ms Sabrina Chen, also a professional NAATI certified translator, and who provided translation and interpretation during the hearing for the defendant.
47As would be expected, there were occasions when Ms Dongmei Chen and Ms Sabrina Chen had different views as to the correct translation of a word or phrase. In every instance, the Court was greatly assisted by the interpreters setting out their opinions clearly and concisely, with explanations. Invariably the issue was resolved between the interpreters in an appropriately collegiate way, making reference to dictionaries as needed and providing the Court with a number of examples of the way in which the word could be translated. When the context impacted on the translation, this was explained. Where the context did not assist in shedding light on the correct translation, the literal translation was provided.
48Both Mr Wang and Ms Qin have a significant understanding of the English language and on numerous occasions, Ms Qin disputed translations provided by both Ms Dongmei Chen and Ms Sabrina Chen. On these occasions, I was able to hear the views of both interpreters, as well as Ms Qin’s opinion. Sometimes Ms Qin’s concerns really involved her own evidence about what she had intended by the words she had written, rather than the actual translation of those words. Obviously, her intention was not a matter upon which the interpreters could assist the Court.
49Ms Qin expressed to the Court her concern that Ms Dongmei Chen was interpreting in a way that was more favourable to the plaintiff, by whom she was engaged.
50I am confident that such criticism has no foundation whatsoever. I was extremely grateful for the professionalism and dedication to the task provided by both the interpreters at trial. It was clear that they had professional respect for each other, and each made appropriate concessions, sought each other’s views on disputed or difficult translations, and conducted themselves with integrity. When disputes arose, they invariably arrived at a united position, or, where they differed, expressed concisely the difference and the reason for it. I was satisfied that there were no occasions in which the difference between the interpreters’ views materially impacted on a matter of substance in the trial. I was entirely satisfied that neither interpreter was “favouring” her client, and that both were providing professional and impartial translation services to the Court.
51As must often be the case, words in one language hold a meaning and a connotation that is not always directly translatable. For example the word “scum” in English literally refers to solid matter that accumulates on the top of a liquid, but is understood, when used in the context of a person, to mean someone who is low, vile or worthless. A contemptible, despicable, dishonest, unpleasant person might be referred to as a “scumbag”. In the articles, Ms Qin uses the Chinese word 渣男 to describe Mr Wang. This word, “zha nan”, has been translated as “scum man”. Ms Qin says in her Defence that the more appropriate translation is a person who is not reliable or is not trustworthy.
52In relation to the word “zha nan”, Ms Dongmei Chen gave evidence that the characters literally translate as “scum” or “remnant” and “male”. A literal translation would be “scum male”. In Chinese the word scum can be used to refer to something on the surface of a liquid, as it can in English, but also something left down the bottom of the liquid – what might in English be called “the dregs”. In Chinese the word scum, as in English, is also used to refer, in a derogatory way, to a person, and there is a word equivalent to the word “scumbag”, which literally translates as “human scum”.
53It was put to Ms Dongmei Chen that “scum man” means someone who is not trustworthy, or is not reliable. She says in her opinion, it was “probably a bit worse” than that. It was used to refer to the “lowest” of the human species, or a lower species of human. Ms Sabrina Chen also routinely translated the characters “zha nan” as “scum man”.
54Ms Qin gave evidence that “scum means … a man having several relationship[s] with women at the same time” which I consider also carries a meaning of something more than untrustworthy or unreliable.
55Just as the word “scum” or “scumbag” may take on different connotations in English according to the context in which it is used, it is likely that the words 渣男 also have different meanings depending on their context; however, I am satisfied that the meaning goes beyond “unreliable” or “untrustworthy” and can reasonably be translated as “scum man” and carry a meaning akin to the English derogatory use of the term “scum”.
56Ms Qin also took issue with the translation of the words “rampant sex scammer”. She says that the words translated as “rampant sex scammer” should more accurately be translated as “philanderer”. Ms Dongmei Chen gave evidence that this translation arises from four Chinese characters. The last two characters together give the meaning of “everywhere”. The first two characters represent the words “sex” and the words “scam”. In trying to translate into an English sentence, she gave the word “everywhere” the meaning of “rampant” to give an indication that it was happening all over the place. However, she considered that a more accurate translation would be “a person who scams sex everywhere”. These four characters do not give rise, necessarily, to a common phrase or meaning in Chinese that would be, in Ms Dongmei Chen’s view, equivalent to the word “philanderer”. She said the words “scam” and “sex” when used together convey the meaning of someone who cheats sexually, who takes advantage in terms of sex, or who uses deception to get sex. The two characters that together mean “everywhere” are commonly used together and have neither a positive nor negative connotation. In this way, “everywhere” is more accurate than “rampant” which conveys a sense that whatever is described is unchecked, uncontrolled or flourishing. In this context, the word “everywhere” is used to describe the extent of the behaviour; that is, that sex is being scammed everywhere. Perhaps the meaning intended is something akin to “prolific” rather than “rampant”.
57The word “philanderer” conveys a meaning of a person who engages in frequent sexual encounters, but does not necessarily convey an element of deception or dishonesty in those encounters. Use of the word “scam” or “scammer” conveys something more than just the frequency of the sexual encounters and conveys a meaning that is more negative than “philanderer”. I am satisfied that the revised translation as “scams sex everywhere” is appropriate.
58Much of the evidence in this case was presented by way of screenshots of text message exchanges between Mr Wang and Ms Qin. For whatever reason, these text exchanges were usually extracts, often without the beginning or end of the conversation available. Often a text would consist of words which did not translate to a full sentence. Sometimes there were grammatical errors and the translators did the best they could with the words that were available. This case highlights the great difficulty of determining what was said, and what was conveyed, in a language other than English. Text message exchanges often deploy shorthand. Pronouns are often left out. Even at the time of receiving a text message it can be difficult to know whether something is intended as a statement or a question, a command or a request. Humour and sarcasm can be lost or misinterpreted. The use of emojis can clarify or distort meaning. A picture may say a thousand words, but, at least in the case of emojis, what those words are is open to interpretation. In this case, text messages formed the substantial part of the evidence relied on by both parties as to the nature of their relationship and the content of their conversations. Divining the nature of that relationship was particularly difficult given the significant dispute between the parties as to their respective understandings of the various text messages. Many of the text messages are so opaque that no meaning can be discerned. Trying to determine what was intended by each message several years after it was sent, out of the full context in which it was sent, and from a translation that necessarily loses some of the subtlety of language, is a difficult task.
Principles
59It is necessary for Mr Wang to show that:
(a) the imputations he relies on are conveyed by the articles; and
(b) those imputations are defamatory of him.
60The principles in relation to whether the imputations are conveyed are well settled and are encapsulated in the judgment of White J in Hockey v Fairfax Media Publications Pty Ltd:[1]
[1](2015) 237 FCR 33 at 49-50, paragraphs [63]-[65]. See also Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505; Farquhar v Bottom[1980] 2 NSWLR 380 at 386; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 466-467, paragraphs [1]-[5]; Hardie v The Herald & Weekly Times Pty Ltd [2016] VSCA 103 (“Hardie”) at paragraph [46]
“… The question is whether ordinary reasonable readers would have understood the matters complained of in the defamatory senses pleaded. The ordinary reasonable meaning of a matter may be either its literal meaning or that which is implied or inferred by the matter. It includes inferences and conclusions which the ordinary reasonable person draws from the words used, taking into account the observation of Lord Reid in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245, that the reader may engage in a certain amount of ‘loose thinking’. …
…
Ordinary reasonable readers are taken to be persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal. They do not live in ivory towers and can and do read between the lines in the light of their general knowledge and experience. They do not engage in over‑elaborate analysis in search for hidden meanings, nor do they adopt a strained or forced interpretation. They are not lawyers and their capacity for implication may be greater than that of lawyers.
The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published.””
61Having identified which imputations are made out, the second question is to determine whether any of those imputations are defamatory. Words are defamatory when the imputation lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, shunned or avoided by members of the general public.[2]
[2]Charan v Nationwide News Pty Ltd [2018] VSC 3 (upheld on appeal in Charan v Nationwide News Pty Ltd [2019] VSCA 36; Radio 2UE Sydney Pty Ltd v Chesterton (supra); applied in Hardie v The Herald & Weekly Times Pty Ltd [2015] VSC 364 and considered in Hardie (supra), with some discussion as to the “shun or avoid” approach as being exceptional and related to certain special attributes of the plaintiff
The imputations
First article
62The first article contains, amongst others, the following statements:[3]
[3]Certified translation from the Chinese-language to English
(a) “He packaged himself up as a mature and steady, career-minded, family oriented one-in-a-thousand good man, down to earth in his words and sincere in his attitude. He pretended to be enamo[u]red, loving mankind and animals, and peaceful (in fact he is a scheming boy, good at mind games, and having dubious relationships with several girls behind your back, always claiming that he was single), to give you a false impression. … .”
(b) “Later he invited me to his home to drink. My consciousness was clouded, and out of the blue, we had sex. … .”
(c) “Subsequently, I found out that he was a scum, a scammer of sex and affection!”
(d) “We didn’t see each other for two months in between, but he was still sending me messages from time to time to show his care for me, still wanting to continue to keep me on the hook, and when I wanted to fix times to meet him on several occasions, he would tell a few lies. In fact, he had managed to use the gap in between to find the next girl. … .”
(e) “Two months later, he created me another sweet dream, saying disingenuously that he missed me and still wanted to see me, and had not gone after other women, it was just that he had been busy with work and had no time to contact me. I even believed him and then was deceived by him on another two occasions!”
(f) “Subsequently, I found out that he was involved with another girl (ps: This is the 4th girls (sic) that I have discovered). We compared our chat histories, and discovered that he was dating the other girl and me at the same time, and that girl was also six-month[s] younger than him, and had not broken up with him yet, and he contacted me in the middle of it! After deceiving me one more time, he finally found a bad excuse, saying that I was childish, and his child was still young, and he needed to spend time looking after the kid. … ”
(g) “Subsequently he said again his kid was young and he needed to look after the kid. In fact, ultimately, he has not had enough romance and still wants to date a few more!”
(h) “Now he is even biting me back, claiming I was after his visa status. Absolutely unfounded. I got very angry thinking about it! Typical Victim-Deserves-It-Mentality!”
(i) “He is a demon dressed up as an angel.”
(j) “From the surface, he uses the name of marriage and dating to get girls to have a serious relationship with him and him solely. In fact, he is a PUA expert, deceiving several girls for their affections and sacrifices, and he even gets the girls to buy him stuffs (sic).”
(k) “He is a scum who will immediately extricates (sic) himself after he has successfully won over the affections of the girls by deception!”
(l) “… he is a character designer who will not forget to bite you back at the end, clear his involvement, then belittle others, and continue to maintain his façade as a successful good man in front of other girls!”
(m) “Scum Man Tactics:
1. Firstly induce you to his home to have drinks, after you are drunk, get you to bed, making you submit to him half reluctantly and playing the cat-and-mouse game;
2.He then starts to message you every day, pleasing you, making all kinds of beautiful promises, and you will feel his words are very gentle and he is a very nice person, so you will have a good impression about him;
3. In order to give himself the opportunity to have enough fun and not sharing with others, he will tell you that he is not a scum, he will bullshit by saying things like you are my only one, I am serious and I won’t have anyone else when I have you. You will feel that he is very loving and monogamous, but behind your back he is actually hanging on to several at the same time, including his ex, his current lover and his future one and play with them alternately;
4. If you can’t be bothered with him, he will use various technics [scil techniques] to please you, find ways to make you fall in love with him, and then his attitude will start to change, various impatience, various do [sic], and lose his temper if his wish is not respected in any slight way, to make you feel guilty towards him and to enable better emotional control;
5. When he has succeeded in emotional control as he has planned, he will get you to give him presents, to do things for him. If you are useful, he will get you to help him with his business, at the same time he will search for his next target, or he will still be entangled with his ex;
6. When he discovers that you are deeply in love with him and unable to extricate, he will start to distance himself from you, and search for the next target to enable a seamless transition.”
The Plaintiff is immoral
63The Concise Oxford English Dictionary (10th edition) defines “immoral” as, “not conforming to accepted standards of morality”.
64Ms Qin does not say that Mr Wang is immoral in her articles and denies that the imputation is made out. Mr Wang says that the statements she makes convey the imputation that his conduct is outside the standards of behaviour that are socially acceptable. Morality suggests a code of conduct, a recognition of good behaviour and bad behaviour that necessarily reflects social standards. Immorality suggests conduct that is outside those standards. As society changes; what is moral or immoral also changes.
65Pretending to be something that you are not – for example a “one in a thousand good man” – whilst actually scheming “behind your back” to have relationships with several people, would be likely to be considered outside socially acceptable standards. Having sex with someone whose “consciousness was clouded” by alcohol would definitely be considered outside socially acceptable standards and therefore immoral, if not illegal, behaviour. Deceiving someone and telling them lies would not conform to socially acceptable standards. I am satisfied that the words carry the imputation that the plaintiff is immoral.
The Plaintiff is a scammer
66The Concise Oxford English Dictionary (10th edition) defines “scam” as “dishonest scheme; a fraud” and “scammed, scamming” as “swindle”. “Scammer” is listed as a derivative. It is submitted that “scammer” means a person who conducts a swindle, or dishonest scheme or fraud.
67The article specifically states that he is a “scammer of sex and affection”. It then goes on to give examples of the way in which the defendant says the plaintiff operated.
68The first article, read in its entirety, carries the meaning that the plaintiff is a scammer.
The Plaintiff is a sexual predator
69The Concise Oxford English Dictionary (10th edition) relevantly defines “sexual” as “relating to the instincts, physiological processes, and activities connected with physical action or intimate physical contact between individuals”. The dictionary relevantly defines “predator” as “a person who exploits others”. The term “sexual predator” can encompass both outright criminal conduct and conduct by a person who deploys dishonest means to obtain sex, and who preys upon others for the purposes of obtaining sex. The predator is, by definition, exploiting his/her prey.
70The words “sexual predator” are not used in this article and the defendant denies that the imputation arises from the statements.
71Allegations that the plaintiff invited her to his home to drink and, whilst her consciousness was clouded they had sex “out of the blue”, that the plaintiff will “induce you to his home to have drinks, after you are drunk, get you to bed, making you submit to him half reluctantly and playing the cat-and-mouse game” convey an element of predation in the plaintiff’s behaviour. The reference to cat and mouse, and the reference to “making you submit”, suggest that the act is not undertaken voluntarily. Statements that he will “induce” you to have drinks and get you to bed after you are drunk, are sufficient to convey the imputation that the plaintiff acts in a predatory fashion towards women. The imputation is made out.
The Plaintiff makes women submit to sexual activity when they are drunk
72The article conveys this by the phrases at 62(b) and 62(m) above.
The Plaintiff is manipulative
73The Concise Oxford English Dictionary (10th edition) relevantly defines “manipulative” as “tending to manipulate others cleverly or unscrupulously”. The term carries with it the connotation that a person is able to exercise control or influence over another by unscrupulous means. The manipulator exercises power over the manipulated to get something that they want, without being honest about their motivations or the methods they are deploying.
74The article read in its entirety, and specifically the phrases in the first article referred to in paragraph 62(a), (c), (d), (e), (f), (q), (j), (k), (l), (n), (o), (p) and (q), carry the meaning that the plaintiff is manipulative.
The Plaintiff engaged in mind games with women
75The Concise Oxford English Dictionary (10th edition) defines “mind game” as “a series of actions or responses planned for their psychological effect on another”. The term implies a pattern of psychologically manipulative behaviour intended to gain an advantage over or extract a desired outcome from another.
76The article read in its entirety, and specifically the phrases in the first article referred to in paragraph 62(a), (d), (e), (k), (l), (n), (p) and (q), carry the meaning that the plaintiff engaged in mind games with women.
The Plaintiff took financial advantage of the defendant
77The phrases in paragraph 62(j) and (p) convey the meaning that the plaintiff induced or manipulated the defendant to get her to buy him gifts or “stuff”, and used her and other women to help him with his business. The imputation is made out.
The Plaintiff lied to and deceived the Defendant
78The article contains numerous allegations to suggest that the plaintiff lies, is dishonest and has deceived the defendant. These include “he is a scheming boy”; “packaged himself up … to give a false impression”; “he would tell a few lies”; “I even believed him and then was deceived by him”; “[a]fter deceiving me one more time, he finally found a bad excuse” and so on. The meanings are conveyed.
The Plaintiff sought to emotionally control the Defendant
79Emotional control means exerting a degree of control over another by establishing and exploiting an emotional connection. In this case, it implies that Mr Wang sought to control Ms Qin’s behaviour by using her emotional response to get her to do what he wanted. The article says “he will use various [techniques] … to make you feel guilty towards him and to enable better emotional control” and “when he has succeeded in emotional control as he has planned, he will get you to give him presents, to do things for him”. The meaning is conveyed.
The Plaintiff is an expert pick up artist
80The Concise Oxford English Dictionary (10th edition) relevantly defines the phrase “pick someone up” as to, “casually strike up a relationship with someone as a sexual overture”. The dictionary defines the noun “expert” as “a person who is very knowledgeable about or skilful in a particular area”, and the adjective “expert” as “having or involving such knowledge or skill”.
81The article refers to the plaintiff as “a PUA expert, deceiving several girls for their affections and sacrifices”. However, although the defendant specifically refers to him as a “pick up artist”, I formed the impression from her evidence that what she meant by PUA was not limited to someone who is an expert in picking up women for casual sexual encounters, but rather someone who is an expert in getting women to fall in love with him while having ulterior and nefarious motives, such as to emotionally, sexually or financially abuse them. The meaning is conveyed.
The Plaintiff misrepresents his romantic attentions for personal gain
82References to the plaintiff as having “packaged himself up … to give you a false impression”; telling “lies” and creating “sweet dreams”; being “disingenuous”; keeping the defendant “on the hook”; misrepresenting his intentions in “the name of marriage and dating” in order to get women to have a serious relationship only with him; and reference to the “various [techniques]” he uses to gain “emotional control”, all convey the meaning that he misrepresents his romantic attentions.
83The personal gain for the plaintiff that these phrases refer to includes that the plaintiff gained romantic attention and affection from women; that he received items that women would buy him; that he would get presents from them; that they would do things for him and assist in his business, and that he was able to control women so that they complied with his wishes. These meanings are conveyed.
The Plaintiff is malicious in his behaviour towards women
84The Concise Oxford English dictionary (10th edition) defines “malicious” as “characterised by malice; intending or intended to do harm”. “Malice” is defined as “the desire to do harm to someone; ill will”.
85The defendant says that she never used the word “malicious” in her article and denies that the imputation that the plaintiff is malicious is conveyed.
86In large part, the article suggests motives other than malice for the plaintiff’s conduct; however, malicious behaviour of the plaintiff towards women is conveyed by references in the article to the plaintiff “biting” the author “back”; having a “victim-deserves-it mentality”; “biting” women “in the end”; and “belittling” others. These allegations are different from the allegations the defendant makes about conduct that is calculated to get what he wants, for example sex, gifts, affection or attention. These allegations instead suggest that the plaintiff intended to punish or hurt the defendant and other women. Such behaviour could fairly be characterised as malicious. The meaning is conveyed.
The Plaintiff tries to emotionally control women
87The phrases in the first article referred to in paragraph 61(o) and (p) carried the defamatory meaning that the plaintiff tries to emotionally control women.
88The imputations pleaded as arising in the first article are conveyed.
The Second Article
89The second article contains the following phrases:
(a) “Melbourne scum divorcee, person who scams sex everywhere in the name of dating and marriage”;
(b) “But most of the so called ‘dissolute men’ are harming people continuously. They not only lack the capacity to maintain an open and sincere relationship, they have to search for new stimulations … Dissolute by deception is obscene. Expose scum man”;
(c) “We take this opportunity … to expose this old divorced scum man who is on a sex-scamming rampage wearing the hat of a developer everywhere in Melbourne for a long time … to show everyone the harm done by the scum man to the modern society and women, to prevent more innocent young women from falling victims (sic)”;
(d) “The man we are going to talk about today is very good at packaging himself. At the onset he will package himself as someone who is successful, family oriented and honest, but he is in fact a PUA master. He tells everyone that he is not a scum, and he is monogamous, and he has only dated two girls in the past. In fact, he is able to deceive girls at any time and make them like him, or even fall in love with him”;
(e) “He will create an illusion that you are dating … In reality, he is only playing with your affection/emotion … he does not want other people to touch his prey after he caught it”;
(f) “He wants … enjoyment from playing with his prey first, therefore he relies on the façade that he is dating you so that you will give him your undivided attention”;
(g) “When he is playing with his prey, he will continue to keep the previous prey on the hook, to see whether he has got a chance to do another one-night-stand with his ex, and meanwhile he is on the lookout for his next prey”;
(h) “Older ladies who have been deceived by him are all of the view that he has nothing else in his mind except that, probably any female will do for that matter… He is absolutely a dissolute man!”;
(i) “He will let go of his prey before catching it again … Sometimes he wears the mask of a good man, sometimes he feels ashamed that leads to anger”;
(j) “After he has achieved his goal of relationship deception, he will be laughing inside, thinking that he is brilliant, able to have full control of women like putty in his hands, making so many silly women love him to his bone at the same time”;
(k) “When he is tired of such emotional and physical plays, here comes the stage of abandonment. He will have a sudden change of his temperaments. He will be extremely impatient, become furious for very small things, and he will create all kinds of conflicts and situations to give him an exit”;
(l) “He is intentionally scamming affection and sex”;
(m) “He is dissolute and enjoying himself on the one hand, deriving delight from playing different women emotionally and physically on the other hand”;
(n) “He will sus out which woman is useful to him, either in terms of buying his property, or referring investors to him, or referring clients to colleagues in his company! Afterall, he is only concerned with sex and usefulness, and is not truthful to anyone!”;
(o) “From acquaintance, to like, to passionate love, to abandonment … is the scam he set up to play and use women”;
(p) “Every girl scammed is merely a different main actress in the same scam!”;
(q) “He will create a sweet dream world for you, as well as smash it with his own hands”;
(r) “His love for you is false, and his affairs and flirts with others are real”;
(s) “A dissolute man”;
(t) “Some men are scums and it is really difficult to tell a man from a demon.”
The Plaintiff is immoral
90The article read in its entirety, and specifically the phrases set out above, carry the meaning that the plaintiff is immoral.
The Plaintiff is a scammer
91There are specific references to the plaintiff “scamming sex everywhere”; “intentionally scamming affection and sex”; references to “the scam he set up” and that every girl “scammed” is a different person in the lead role of the “same scam”. Paragraph 89 (a), (c), (d), (e), (g), (j), (l), (m), (n), (o), (p) and (r) convey that the plaintiff conducts a dishonest scheme, swindle or fraud upon women. Some of the phrases refer to a scam, while others describe the nature of the scam the plaintiff allegedly conducts. The meaning is conveyed.
The Plaintiff is a pickup artist
92The phrase in the second article referred to in paragraph 89 (d) says that the plaintiff “is in fact a PUA master”. This is understood to mean a pickup artist. The meaning is conveyed.
The Plaintiff is a liar
93The article describes the plaintiff as someone who engages in deception of women and sets up a scam. It describes his “goal” as “relationship deception”. He will “package” himself as one thing when really, he is something else. He will “deceive” girls. He is “not truthful with anyone”. Although the article does not say that he is a liar, it conveys the meaning that the plaintiff is able to set up the scam and deceive women by lying to them about who he truly is and what his intentions are. The imputation is conveyed.
The Plaintiff is a sexual predator
94The article refers to women as the plaintiff’s “prey”, that “any female will do”, that he is “dissolute”, that he plays women “physically”, that the plaintiff has “nothing else in his mind”, and that the plaintiff is “playing” with women. He wants “enjoyment” from “playing with his prey first”. He will keep previous prey “on the hook”. He will “let go of his prey only to catch it again”. The article also refers to the plaintiff as causing women “harm”, such women being his “victims”. The ostensible purpose of the article is to expose the plaintiff “to show everyone the harm done by the scum man to the modern society and women, to prevent more innocent young women from falling victims (sic)”. The plaintiff is identified in the article as a person from whom society needs to be protected. The meaning is conveyed.
The Plaintiff is two-faced
95The meaning of two-faced is not just that an individual is dishonest or deceptive, but that they present two contradictory “faces” or personalities to the world. The term is often used to describe a person who is nice to your face whilst speaking ill of you behind your back. The imputation that the plaintiff is two-faced conveys a meaning that the plaintiff holds himself out to be one thing whilst being the opposite in reality. In this case, the imputation is conveyed by, amongst other phrases, the words “he will package himself as someone who is successful, family oriented and honest, but he is in fact a PUA master”; “[h]e adjusts his preaching to the audience”, and “[h]e looks one way in front of you, and a different way in front of someone else”. The meaning is conveyed.
The Plaintiff scams women
96The meaning is carried as set out above at paragraph 89. The statements are not confined to the author’s own personal experience but purport to demonstrate how the plaintiff treats all women.
The Plaintiff is manipulative
97Amongst others, the phrases: “He will suss out which woman is useful to him”; “He will create a sweet dream world for you, as well as smash it with his own hands”; “After he has achieved his goal of relationship deception, he will be laughing inside, thinking that he is brilliant, able to have full control of women like putty in his hands, making so many silly women love him to his bone at the same time” convey the meaning that the plaintiff is manipulative.
The Plaintiff uses women
98The article specifically says that the plaintiff sets up a scam “to play and use women”. The article read in its entirety carries the defamatory meaning that the plaintiff uses women.
The Third Article
The Plaintiff is immoral
99The third article was written in the form of a dating profile. In response to the pro forma questions such as “what would you want to do on a first date” and “what is your all time favourite song”, the defendant has inserted non-responsive answers that reflect many of the same allegations and raise many of the same imputations as arise in the first two articles. The third article includes the following phrases:
(a) “Peerless scum male”
(b) “My name is Barry Wang, I am scum, scum and scum”
(c) “Love to eat and play for free!”
(d) “Girls please protect yourself, and stay away from me, a peerless old male scum!”
(e) “Scum man tactics:
“1. Firstly induce you to his home to have drinks, after you are drunk, get you to bed, making you submit to him half reluctantly and playing the cat-and-mouse game.
2.He then starts to message you every day, pleasing you, making all kinds of beautiful promises, and you will feel his words are very gentle and he is a very nice person, so you will have a good impression about him.
3. In order to give himself the opportunity to have enough fun and not share with others, he will tell you that he is not a scum, he will bullshit by saying things like you are my only one, I am serious and I won’t have anyone else when I have you. You will feel that he is very loving and monogamous, but behind your back he is actually hanging on to several at the same time, including his ex, his current lover and his future one and play with them alternately.
4. If you can’t be bothered with him, he will use various techniques to please you, find ways to make you fall in love with him, and then his attitude will start to change, various impatience, various do (sic), and if his wish is not respected in any slight way to make you feel guilty towards him and to enable better emotional control.
5. When he has succeeded in emotional control as he has planned, he will get you to give him presents, to do things for him. If you are useful, he will get you to help him with his business, at the same time he will search for his next target, or he will still be entangled with his ex.
6. When he discovers that you are deeply in love with him and unable to extricate, he will start to distance himself from you, and search for the next target to enable a seamless transition. When you try to contact him again, he will use excuses such as busy at work, health issues and various reasons to decline meeting with you, in fact, he is already starting to accost another woman.
7. After he has a few plays with another woman, he will come back to you again, and he bullshits by saying things like I miss you and want to see you. In fact, he wants to invite you over to have another couple of play sessions and alternate the sessions between old lover and the new one. When you give him the impression that you have fallen in love with him and can’t do without him, he will find an easy excuse to send you on your way.”
100The imputation is made out. The plaintiff is described as someone who induces you to his home to drink, then after you are drunk, “makes you submit” to him sexually. This alone is enough to make out the imputation.
The Plaintiff uses women
101The article says that the plaintiff gets women drunk to have sex with him, and “uses various [techniques]” to gain emotional control over women. Once he has emotional control, “he will get you to give him presents, to do things for him. If you are useful, he will get you to help him with his business, at the same time he will search for his next target.” This is clearly behaviour that could be described as “using” women. The imputation is made out.
The Plaintiff is a sexual predator
102This is carried by references to the plaintiff as being someone who “makes” women “submit” to him “half reluctantly” after they are “drunk”, someone who women need to “protect” themselves from, a person who tries to engage in the “emotional control” of women, a person who “accosts” women, and a person who “bullshits” women and treats them as a “target”. The imputation is made out.
The Plaintiff makes women submit to sexual activity when they are drunk
103The phrase “Firstly induce you to his home to have drinks, after you are drunk, get you to bed, making you submit to him half reluctantly and playing the cat-and-mouse game” is described as “Scum Man Tactic 1”. Describing it as a tactic conveys the meaning that this is a tried and tested technique deployed by the plaintiff and carries the meaning that the plaintiff makes women submit to sexual activity when they are drunk.
The Plaintiff is a liar
104The article read in its entirety, and specifically the phrases in the third article referred to in paragraph 88(f), (i) and (j), carry the meaning that the plaintiff is a liar.
The Plaintiff is manipulative
105The article read in its entirety, and specifically the phrases in the third article referred to in paragraph 89(d) to (j), carry the meaning that the plaintiff is manipulative.
The Plaintiff emotionally controls
106The article says that the plaintiff emotionally controls women. The imputation is conveyed.
107I am satisfied that all the meanings alleged by the plaintiff are carried.
Are the imputations defamatory?
108The test at common law of what is defamatory has been formulated by reference to a “reasonable” or objective standard. The High Court has confirmed that the test is whether, as a result of the publication, an ordinary reasonable person would be likely to think less of the plaintiff.[4]
[4]Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-49; see also Radio 2UE Sydney Pty Ltd v Chesterton (supra) at paragraph [5]
109The standard which might be applied by the ordinary reasonable person will vary according to the nature of the imputation and is to be determined objectively having regard to current community standards. The cases recognise that community standards themselves might vary. In Hepburn v TCN Channel Nine Pty Ltd,[5] the test of general community standards was rephrased to be “an appreciable and reputable section” of the community.[6] Conduct in respect of a moral issue may be defamatory if that view is held by an appreciable and reputable section of the community.
[5][1983] 2 NSWLR 682
[6]Ibid at 694
110The concept that someone is “immoral” contains within it the notion that the behaviour alleged falls outside the accepted community standards. Whilst it once may have been “immoral” to have sex outside marriage, and sections of the community may still consider such behaviour immoral, it is not on this basis that the plaintiff is alleged to be immoral. Rather, his immorality is alleged to arise from his conduct in lying, scamming, deceiving, controlling, manipulating, coercing and preying upon women.
111Ms Qin did not seriously allege that any of the imputations were not defamatory and indeed, said that her intention in publishing the article was to expose Mr Wang’s conduct. She said that if she did not let other people know, then “we don’t know how many more innocent young girls or young boys will be victimised. That’s why I published those two articles.”
112The imputations, with the exception of the term “pickup artist”, are clearly defamatory, in that they are likely to lower the plaintiff’s reputation in the eyes of reasonable members of the community. I am not sure that being an expert “pickup artist” in the sense defined by the dictionary is necessarily defamatory. I do accept though, that the ordinary reader would take from the context of the article a defamatory meaning. The defendant is not describing someone who is merely good at picking up women for the purpose of having casual sexual encounters with them, but is describing a “PUA” as someone who behaves towards women in a way that is designed to disguise his true motives, “deceiving girls for their affections and sacrifices”. In the context of the publications, I am satisfied that it carries a defamatory meaning.
Are the articles “of and concerning” the Plaintiff?
113The defendant denied that the articles were about the plaintiff in her pleading. However, this denial was not maintained at trial and was conceded by the defendant.
114She maintained that her intention, however, was not to “tarnish his reputation. The reason I wrote those lengthy articles is to rant about my experience. If I were just want[ing] to damage his reputation I could just simply write ‘Barry Wang, fuck you. You are the scum man. You are [a] liar.’ I didn’t write those words.”
115She said that she had not sought to identify Mr Wang and had pixelated his image in the screenshots of text messages that she attached to her articles.
116I do not accept the defendant’s submissions for the following reasons.
117Firstly, the third article contains a completely unpixellated photograph of the plaintiff. The defendant had admitted in her Defence and also her evidence, that she had published this photograph, with the heading “Barry W” and had written in the “profile” the words “My name is Barry Wang and I am scum, scum and scum”. She subsequently sought to change her evidence and said in cross-examination that in fact she had published a different photograph of Mr Wang and that photograph was not headed “Barry W”. It matters little; she did not suggest that the photograph that she now says she published was not Barry Wang, or was pixelated or otherwise unidentifiable as Mr Wang, and she does not dispute that she published the words “My name is Barry Wang”. She clearly intended to identify Mr Wang in the third article.
118Secondly, had she simply wanted to rant about her experience and warn others in a general way about “scum men”, she could have avoided all potentially identifying references. Such references include that the person about whom she was speaking was a property developer in Melbourne, was a divorcee and had a young child. She published screenshots of text messages which indicated that he had a property development in Doncaster.
119Thirdly, in the screenshots of chat message exchanges that accompanied the articles, the name “Barry Wang” is identifiable as the sender of at least some of the messages.
120Fourthly, although some of the screenshots attached to the first two articles showed pixelated photographs, some of those screenshots were not pixelated, or were only lightly pixelated, allowing Mr Wang’s face to be identified. Ms Qin said in evidence that this was “an oversight”. She repeated this assertion on numerous occasions. She said that some photographs were left unblurred “because I didn’t pay attention. I forgot to blur some of the photos.” It was put to her that in one of the photographs she had blurred out his daughter’s image but not Mr Wang’s image. She said “Because it’s a very small area for me to blur them out, so I assumed that I blurred both of them”.
121However, Ms Qin subsequently said that in fact she had blurred out the pictures in the first article and that the lack of pixilation was not an oversight, but the deliberate act of the editor of the Australian Village Gossiper, done without her consent. When it was published, she noticed that some of the photographs were unpixelated, and raised this with the editor. Ms Qin identified a text message exchange between her and the editor dated 21 April 2020, the same day that the first article was published. That exchange which took place at 12.26am is as follows:
Ms Qin: “These screenshots need to be changed. The previous one have not been pixelated correctly.
Editor: Deliberately. Why no exposure. Anything you say.
Ms Qin: Should be alright?
Editor: Don’t be scared. To expose scum man. Let me do some pixilation on him. So he can be picked up by those who know him. Otherwise not known how many girls would be harmed.
Ms Qin: Agree. Wait, I will resend the chat messages to you.”
(sic)
122Ms Qin says this demonstrates that she did pixelate the images but that the editor de-pixelated them in order to enable people to recognise Mr Wang. She says at the time of that conversation with the editor, the articles had already been published. When she said that she agreed with the editor, she was agreeing “about not to have more girls to be harmed” and not about the pixelation.
123I do not accept this evidence for a number of reasons. Firstly, the time on the article published and annexed to the Statement of Claim is 6.59pm on 21 April 2021, several hours after this conversation with the editor occurred. It was put to Ms Qin that this was the time the article was published. Ms Qin rejected that and I have no other evidence before me as to the timing of the publication of the first article. However, it seems likely that the article was published after the conversation, given that Ms Qin said the words “wait, I will resend the chat messages to you”. She then sent a screenshot of at least one chat message exchange which showed Mr Wang’s photograph next to a chat message. Ms Qin’s own photograph next to the chat message was not pixelated but completely blurred so that it cannot be recognised as even an image.
124Secondly, even if the exchange with the editor did occur after the publication of the first article, which would have required the first article to have been published between 12.00am and 12.26am on 21 April 2020, Ms Qin was certainly aware that the editor had de-pixelated the photographs sufficiently to allow Mr Wang to be identified in screenshots by the time of the publication of the second article on 1 May 2020.
125Thirdly, whilst Ms Qin may have been merely agreeing with the editor that she did not want girls harmed, it appears that the editor understood her to be agreeing with the de-pixelation, as the photographs remained unpixelated and the subsequent article featured unpixelated photographs. She could have insisted on the pixelation, as the editor had said “anything you say”. She did not so insist.
126In summary, the articles were all of and concerning the plaintiff, they carried the imputations pleaded and those imputations were defamatory of the plaintiff. I turn now to consider the defences pleaded.
Defences
Justification
127The defendant pleads that, if the articles bore any of the meanings alleged, then such meanings, with the exception of the meanings alleged at paragraph 20(d) and 27(d) of the Statement of Claim, were substantially true within the meaning of s25 of the Act; and further or alternatively, are true in substance and in fact at common law. The meanings alleged at paragraphs 20(d) and 27(d) of the Statement of Claim are the meanings that “the plaintiff makes women submit to sexual activity when they are drunk”.
128Section 25 of the Act provides:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
129I have set out above the defamatory imputations that I find are carried by the articles. They are, in summary, that the plaintiff:
(a) is immoral;
(b) is a scammer and scams women;
(c) is a sexual predator;
(d) makes women submit to sexual activity when they are drunk;
(e) is manipulative;
(f) engages in mind games with women;
(g) took financial advantage of the defendant;
(h) lied to and deceived the defendant;
(i) sought to emotionally control the defendant; tries to emotionally control women, and emotionally controls women;
(j) is an expert pickup artist;
(k) misrepresents his romantic attentions for personal gain;
(l) is malicious in his behaviour toward women;
(m) is a liar;
(n) is two-faced; and
(o) uses women.
130Although no formal application was made to amend the pleading, the defendant led evidence that the imputation that the plaintiff makes women submit to sexual activity when they are drunk was also true. It was clear that she relied on a defence of truth in relation to this imputation.
131This is an allegation of serious criminal misconduct. It was put baldly to Ms Qin in cross-examination that she was alleging that she had been raped by Mr Wang. She said that she had been raped by Mr Wang. Whilst the allegation is made in the context of civil proceedings, the Evidence Act 2008 requires that, in considering whether the matters alleged have been proved on the balance of probabilities, I must consider the nature of the cause of action or defence and the nature of the subject matter of the proceeding and the gravity of the matters alleged. At common law, allegations of criminal conduct in a civil context are subject to the “Briginshaw”[7] standard; that is, that the allegations are made out to the “reasonable satisfaction of the tribunal”:
[7]Briginshaw v Briginshaw [1938] 60 CLR 336
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”[8]
[8]Ibid at 362 per Dixon J
132At issue in this case is the nature of the relationship between the plaintiff and the defendant, and the conduct of the parties both within and outside the relationship.
Evidence and credibility of Mr Wang
133Mr Wang gave evidence that at the time he joined Seeking Arrangement and met Ms Qin, he was interested in a casual sexual relationship. He was not looking for marriage as he had been divorced and had a young daughter to look after.
134He gave evidence that very early in his relationship with Ms Qin, probably the first time he met her, he had told her that he was not interested in re-marrying before the age of forty. In 2019, he was thirty-seven. This was confirmed in text exchanges between the two:
Ms Qin: “Aren’t you saying you just need someone to have a drink with you? You have also said that you don’t want to get married. You have even said that you don’t accept someone like me.
Mr Wang: These were my thoughts at the time of my divorce.
Ms Qin: What do you want to do?
Mr Wang: At the time of my divorce, all I could think of was that my daughter was too young, and I didn’t want her to have any mishap.
Ms Qin: You said it when I met you for the first time.
Mr Wang: Therefore, I didn’t want to consider it before turning 40. Look after my daughter properly.
Ms Qin: You even said that you would only consider it after turning 40.
Mr Wang: I will consider it when my daughter is older. Yes, I admit this. That was my thinking at the time. But it is very hard to say when it comes to many things, isn’t it.
Ms Qin: So you are also playing, aren’t you.
Mr Wang: Actually it is like this, when you just met me, you didn’t think that much either. Just thought you could play. Correct or not. To be honest, subjectively, I did not think of playing.
Ms Qin: Did not think that much. Just followed the feeling.”
135Mr Wang had a discussion with Ms Qin via text about previous relationships with women which he ended as he felt that they were looking for marriage and he did not want to “waste their time”. He said that one of these women had started referring to him as “hubby” or “husband” and was frequently buying him gifts. He felt uncomfortable and said he “was not quite used to it”. He said she would call him at any time and always bought him things, that he offered her money which she would refuse to take and he “didn’t feel right”. Ms Qin responded “What a nice girl. For buying things for you ... Why didn’t you cherish her?”, to which Mr Wang replied, “Yes you are right. But back then I just got a divorce and didn’t want to be married again. She did do a lot for me. But I didn’t hurt her either.” Ms Qin says “But this was hurting her. You made her like you and fell (sic) in love with you. This was hurting her.” Ms Qin went on to say that the fact that this person loved him and liked being with him did not mean she wanted to marry him. Mr Wang said he sensed she wanted to settle down, she was over thirty and hoped to get married and that “it was not like no one was chasing her”. Mr Wang gave evidence that he “didn’t want to get married and, you know, other people may have marriage as their end goal and I don’t want to waste other people’s time because what everyone is after is different”.
136Mr Wang says he made it clear that, although he was not looking for marriage, he was not interested in having a sexual relationship with a woman who was having sexual relations with other men. He considered this “dirty”. There are several occasions in text exchanges where he made it clear that, if she was seeing other men, then he did not want to continue the relationship.
Mr Wang: “If you are playing with others and me, I am sure I can’t accept that.
Ms Qin: Correct.
Mr Wang: I am very careful on this. Selfish.
Ms Qin: Isn’t this not acceptable to you.
Mr Wang: It is not acceptable. But you also have your rights.
Ms Qin: I have discovered.
Mr Wang: I can’t say whatever I want must be followed.
Ms Qin: Are all men like this.”
137Mr Wang says this conversation occurred in about April 2019 and that he was not demanding she give up her “rights” to see other men, but was telling her that this would not be acceptable to him. If it was the case that she was seeing other men, she should let him know and he would not maintain the relationship.
138There were further text exchanges around April and May 2019 in relation to Mr Wang’s expectations:
Mr Wang: “I really can’t share with others. This is my bottom line.
Ms Qin: Who did you share with.
Mr Wang: I am telling you. If you contact others, don’t come to me. I can’t afford to play.
Ms Qin: I won’t find several boyfriends at the same time. Too busy to cope.
Mr Wang: As long as you know.”
139There is a further exchange:
Mr Wang: “Good girl. I will also treat you with honesty and openness. It is just that my bottom line is, if you are mucking around with others, it will be okay as long as you don’t come to me.
Ms Qin: How are you going to be open and honest.
Mr Wang: Don’t worry. I won’t harass you.
Ms Qin: I have said that I will muck around with you first. And then decide when I/we have had enough.
Mr Wang:Okay, okay. Happy now.”
140Mr Wang gave evidence that in this exchange he meant that, if she told him she had been with other men, she did not have to worry that he would behave badly, or harass her. He said “she can tell me, I will be okay with that”, he just would not want to continue the relationship. He considered that she agreed that she would “only have one man for now”.
141However, Mr Wang gave evidence that, although his expectation was that Ms Qin would not sleep with other men, she did not have the same expectation of him. He points to the following exchanges:
Mr Wang:“It doesn’t matter either, but please tell me and also don’t contact me any more. That will be fine. I really can’t accept you doing it with me and with others at the same time. That is my bottom line.
Ms Qin: Right. I see. You see, I don’t mind. I am so generous.
Mr Wang: You also mind.
Ms Qin: As long as I don’t know about it.”
142Mr Wang’s evidence was that he understood that, although he would not accept her sleeping with other men, she did not mind if he slept with other women, provided she did not know about it.
143He says he was bolstered in this view by other conversations they had, when she indicated that she did not expect monogamy from him, as evidenced by this text exchange:
Mr Wang: “Okay then I will really go and do it then?
Ms Win: Doesn’t matter if you just joke. That’s all fine. I don’t mind at all.
Mr Wang: But that will definitely involve making love. Do you mind or not.
Ms Qin: It[’]s fine as long as you don’t actually do it. That is not fine. You can just joke.
261Ms Qin subsequently published the articles. I am satisfied that her dominant motivation was malice. The defence of fair comment fails.
Triviality
262Finally, Ms Qin relies on a defence of triviality. She says that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.
263In support of her defence, she says that it was “impossible” for the second article to have been viewed by more than nine thousand people, because it was deleted one week after it was posted. This does not explain why it could not have been seen by more than nine thousand people.
264She submitted that her publications were all on Chinese media, not “the Australian media” and so it would not have any impact on Australian society. She said that people who followed “Australian Village Gossiper” are normally Chinese overseas students and that because she published during the COVID-19 lockdown, many Chinese students had already returned to China. She said that “not many Chinese students know who he is”. She said that “Chinese is only a very small ethnic group in Australia” and for the local Australians “nobody knows who Barry Wang is. I think that only Barry Wang’s friends, and those witnesses and his family members and those who have relationship with his business, and who are close to him” would know him. She noted that he was “not a superstar” and “not a celebrity” and that she does not “think that this will influence a great deal about his reputation”.
265Mr Wang gave evidence that the two articles in the Australian Village Gossiper had been viewed more than nine thousand times each (the first article at least 9363 times, the second article at least 9353 times), and that each article had been commented on numerous times. The tenor of the comments was negative. The third article was a profile on a dating website. It is unknown how many people viewed the profile.
266Both the first and second articles were republished by other Chinese language websites, Yeeyi.com, Uwai.com and Sohu.com. The Yeeyi article attracted 2298 views.
267Mr Wang called evidence from Raphael Tang, who had read the articles and been contacted by a friend who had also seen the articles. He gave evidence that within Mr Wang’s community, people were aware of and discussing the articles.
268I accept that the articles were widely read and that the first two articles were republished, which extended their circulation. A person is liable for the republication of their words where the republication of their words is the natural and probable consequence of their original publication.[14]
[14] Webb v Bloch (1928) 41 CLR 331 per Isaacs J at 363-366; and Sims v Wran [1984] 1 NSWLR 317
269Mr Wang was identifiable from each of the articles. In the third article he was expressly identified by his photograph and by publication of his name “Barry Wang”. In the first article he was identifiable by examination of some of the photographs attached to the article exhibiting text exchanges, which contained his profile picture, by some of the text exchanges which displayed his name, and by reference to characteristics that would tend to identify him, such as being a property developer in Melbourne and being a divorcee with a young child. In the second article he was also identified by unpixelated photographs and his name in attached text messages, including his full name in a text message attached immediately below the end of the article. The final line of this article is “Therefore ladies, in love, you must open your eyes, some men are scums and it is really difficult to tell a man from a demon.” Immediately below these words is a screen shot headed “Barry Wang”.
270To make out the defence, Ms Qin needs to establish that the circumstances of the publication were such that Mr Wang was unlikely to suffer any harm. An example of circumstances in which a plaintiff is unlikely to suffer any harm has been considered by the Court. “It would be particularly applicable to publication of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a few people in a private home”.[15] That is clearly not this case, where the publication was at large and was viewed by a significant number of people.
[15] Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800
271The prospect of republication is also a relevant factor in considering the defence. The fact that an allegation was likely to spark interest and was something that might be passed on is relevant to the defence.[16]
[16] Jones v Sutton (2004) 61 NSWLR 614
272In this case, there is not just the prospect of republication, but actual republication. The original articles were designed to be matters which would “spark interest” and their publication on a website devoted to “gossip” was intended to draw attention from a readership of people interested in somewhat salacious matters.
273There is no basis for the assertion that the circumstances of publication meant that the plaintiff was unlikely to suffer harm. Further, there was evidence before the Court that the plaintiff’s reputation did suffer harm. Mr Tang gave evidence that a friend of his, Ms Claire Chung, who also knew Mr Wang, was inclined to believe the articles. The defence of triviality fails.
Assessment of damages
274The principles for assessing damages are helpfully summarised by John Dixon J in Wilson v Bauer Media Pty Ltd:[17]
(a) damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[18]
[17] [2017] VSC 521 (“Wilson”) at paragraph [59]
[18] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242]
(b) damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgement;[19]
(c) the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e) the extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) in determining the damage done to a plaintiff’s reputation, the Court should also take into account the “grapevine” effect arising from the publication;[20]
(g) it is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[21] and aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
[19] Wilson (supra) citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
[20]Ley v Hamilton (1935) 153 LT 384, 386 (Lord Atkin); Crampton v Nugawela (1996) 41 NSWLR 176, 193–5 (Mahoney A-CJ), 198 (Handley JA); Cassell & Co Ltd v Broome [1972] AC 1027, 1071 (Lord Hailsham of St Marylebone LC); Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 416 [88] (Gummow J); Prendergast v Roberts [2012] QSC 144, [31] (Mullins J)
[21] Wilson (supra), citing Carson v John Fairfax & Sons Ltd (supra) at 71
275Aggravating conduct may include a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.[22]
[22] Ibid
276In opening submissions, the plaintiff suggested that an award of not less than $350,000 would be appropriate, given the number of articles published, the seriousness of the defamatory meanings, the fact that the readership included people within the plaintiff’s own community, and various aggravating factors which ought to give rise to an award of aggravated damages.
277The plaintiff referred to a number of cases in support of his submission.
278In Hanson-Young v Leyonhjelm (No 4),[23] the plaintiff was awarded general damages of $120,000. The imputations included the nature of the plaintiff’s sexual relationships, and whether she was a misandrist. The publication was in the form of a written media statement read by 13,400 people, as well as a wide publication of the matters in media programs, including republication.[24] In that case, the Judge took into “particular account” that both parties were politicians engaged in the “rough and tumble of politics”, and the harm needed to be seen in that context.[25]
[23] [2019] FCA 1981
[24] Ibid at paragraph [256]
[25] Ibid at paragraph [348]
279In Bauer Media Pty Ltd v Wilson (No 2),[26] following a jury verdict and assessment by trial, the Court of Appeal reassessed Ms Wilson’s damages for non-economic loss (including aggravated compensatory damages) at $600,000. The jury found that Ms Wilson had been defamed in eight articles, most of which carried the meaning that Ms Wilson was a serial liar, who had lied about many aspects of her private life. One article carried the further meaning that Ms Wilson was so untrustworthy that nothing she said about herself could be taken to be true. The jury’s findings were not challenged by Bauer on appeal.
[26] (2018) 56 VR 674
280In Mirabella v Price & Anor,[27] damages were awarded in the sum of $175,000 from imputations that a prominent politician had pushed another person. The defamation was found to be more than merely trivial,[28] and the assessment considered the “grapevine effect”,[29] the hurt and the distress caused to the plaintiff.[30] The improbable justification defence advanced at trial was treated as an aggravating factor. The award of damages also took account of the republication and the fact that the matters were the subject of comment on the internet.
[27] [2018] VCC 650
[28] Ibid at paragraph [93]
[29] Ibid
[30] Ibid at paragraph [97]
281In Johnston v Aldridge,[31] damages were assessed at $100,000, including aggravated damages for defamatory comments published on two Facebook posts. The first post attracted numerous comments. The imputations conveyed included that the plaintiff was a selfish, greedy man of contemptable character and that the plaintiff made, or was involved in, threats to rape or kill. An award of aggravated damages was warranted on the basis that the opinions expressed were not honestly held, and hurt was exacerbated by the unconscionable failure to make redress.
[31] [2018] SADC 68
282In Rothe v Scott(No 4),[32] the plaintiff was awarded $150,000. The defendant published Facebook posts headed “Pedophile [sic] warning”, naming three motels owned and operated by the plaintiff in a small country town as being used to relocate paedophiles. The plaintiff was not named. The damages included aggravated damages in the sum of $50,000.[33] Judge Gibson noted that the making of a serious allegation of criminal conduct without any evidence is particularly serious in defamation claims.
[32] [2016] NSWDC 160
[33] Ibid at 154
283In Mickle v Farley,[34] the online publications on Twitter and Facebook disseminated by the “grapevine effect” to students, parents and teachers of a school and the local community in regional New South Wales led to an award of $105,000 including $20,000 for aggravated damages.[35] Justice Elkaim held that “when defamatory publications are made on social media, it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”[36] In that case, an apparently “unreserved apology” was undermined by the fact that the defendant subsequently relied on a defence of truth which justified an award of aggravated damages.
[34] [2013] NSWDC 295
[35] Ibid at paragraph [20]
[36] Ibid at paragraph [21]
284Other cases can provide some guidance as to the appropriate range of damages, but each case will necessarily turn on its own facts. In this case, the plaintiff called evidence from four other witnesses to attest to his good character. One of those witnesses was his ex-wife, Jing Gu, who categorically disavowed the allegations about his general conduct towards women made by Ms Qin. Ms Gu was an impressive witness who presented as honest and reliable. Although divorced from Mr Wang for some years now, she remains on good terms with him. They share equal custody of their daughter and maintain mutual friends. She met Mr Wang, when she was seventeen and he was nineteen, at language school in Australia. They dated for more than ten years before getting married in 2012. She described Mr Wang as “a great person, kind and reliable and responsible to our relationship”. She gave evidence that recently, in June 2021, she received a phone call from someone purporting to be a friend of Ms Qin. In fact, as was conceded by the defendant in cross-examination, the call was from Ms Qin. Ms Qin asked Ms Gu why she had divorced Mr Wang and whether it was because he had abandoned her or had an affair. She said Ms Qin then began to call Mr Wang a scum person and a scumbag and to generally abuse him, before Ms Gu hung up. Ms Gu said Mr Wang had never cheated on her, had always provided for her and their child and never sought to engage in any of the sort of behaviour Ms Qin alleged.
285Other witnesses called by Mr Wang also attested to his good character. This evidence is of limited value. The Court assumes, in the absence of evidence to the contrary, the good character of the plaintiff.
286Mr Wang came to Australia when he was eighteen. He set up his first company in 2009 and began working in real estate development in 2011. He has been self-employed since 2009. He develops residential apartments in the Eastern suburbs of Melbourne. Some of his developments are substantial and in his business dealings he works with real estate agents, designers, project managers, interior designers, and engineers. He liaises with banks to obtain finance for his developments. His reputation for personal integrity, trustworthiness and honesty is particularly important given that he is self-employed and deals with many different people. Any suggestion that he is a “scammer” or involved in any sort of financial deception would likely cause him reputational damage in his professional as well as private life.
287Mr Wang struck me as the sort of person who was unlikely to wear his heart on his sleeve, to overstate matters, or to dwell on the toll that the defamatory publications and the consequent proceedings had had on him. He gave evidence that when he saw the first article, after being sent the article by a friend, he felt that “this is something that has total disregard of any sort of laws as a bottom line”. He read the comments following the article and he remembered that one comment said that a Google search will show that this person is a company director. Other comments included things about him being a scammer and a scumbag man who was busy deceiving people. He said it was “very difficult”, that there were over one hundred comments and he spent about 15 or 20 minutes reading them. He was sent the second article by his friend and remembers also reading the comments, and thought there were about twenty or thirty comments. He could not remember the specifics of the comments, other than that they were generally abusive. He said that he was shocked and felt he could not tolerate it any more, especially as some of the profile photographs were identifiable as him with his daughter. He felt that this was not just the bottom line of the law, but “the bottom line of humanity that’s being touched”. The third article was also sent to him by a friend and, again, he read the comments which included comments such as “One fucking scum man, unethical Chinese – Chinese reputation”. He became aware of the republications, on one occasion because, when he Googled his name, one of the republished articles was displayed.
288I have no difficulty accepting that Mr Wang would have been shocked and mortified when he read the publications. The publications concerned private and intimate matters and included personal text messages. He impressed as a conservative man, not given to public displays of emotion. He did not discuss his intimate affairs, even with his close friends. To have those matters the subject of public scrutiny would be embarrassing and concerning.
289The publications carry a severe “sting”, including as they do allegations of serious, indeed criminal, conduct. The allegations were seen by thousands of people within his own community. All these matters make a significant award of damages appropriate, to vindicate the plaintiff’s reputation and to convince a person who has heard of the defamatory allegations that they are untrue.
290In addition to general damages, the plaintiff claims aggravated damages arising from the conduct of Ms Qin after the defamatory articles were published and up to and including her closing submissions. These can be summarised briefly:
(a) She denied to Mr Wang’s legal representatives that she was the publisher of the article;
(b) She subsequently repeated and added to the defamatory allegations in an email to the plaintiff’s lawyers;
(c) She threatened that she would blow the matter up so that everyone in Melbourne would know about it;
(d) She contacted Mr Wang’s ex-wife, pretending to be someone else, and attempted to defame Mr Wang to her;
(e) She gave a television interview, broadcast nationally during the course of the trial, in which she repeated some of the defamatory allegations, and maintained that everything she had said was true;
(f) Despite not pleading justification or fair comment in relation to the defamatory imputation that the plaintiff forced her to submit to sexual activity after getting her drunk, she alleged in Court that Mr Wang forced her to drink alcohol and raped her. She did not put to Mr Wang that he raped her;
(g) She has never apologised for or retracted the articles and has stated that Mr Wang ought to apologise to her; and
(h) She made a further allegation of inappropriate sexual behaviour in her closing submissions which had not been the subject of any evidence that she gave, and which was not put to Mr Wang.
291However, the most serious allegation of aggravating behaviour relates to allegations that Ms Qin, in concert with her parents, arranged for three men to attend Mr Wang’s home to threaten him in order to get him to drop the proceeding.
292The Court saw footage from Mr Wang’s home CCTV which included audio which was transcribed for the Court by Ms Dongmei Chen. The footage shows a man ringing the doorbell of Mr Wang’s house and then having a lengthy conversation with him. At all times two other men are positioned on either side of Mr Wang’s front gate. The men attended Mr Wang’s house at around 9.00pm at night. He was home with his daughter, and his daughter was present behind the security screen during the conversation.
293The man at the door identified himself as “Elder Brother Guo”, a term that Mr Wang understood to mean that this person was a “gangster” or a standover man. Mr Guo informed the plaintiff that he had been sent by Ms Qin’s parents. The conversation is superficially fairly innocuous, but Mr Wang understood that he was being threatened. Mr Guo said to him “When we deal with things, it may be very troublesome. It may be rather troublesome subsequently.” Mr Wang understood this to mean that, unless he withdrew the proceedings, he would have trouble, or difficulties would be caused to him. He felt extremely frightened and attended the police station the following day and was advised to take out an intervention order. He sought and obtained Orders from this Court requiring Ms Qin to contact him only through his lawyers.
294This was clearly a very distressing event, and caused Mr Wang, an otherwise stoic man, to break down in Court as he recounted his concern for his daughter following this encounter. This encounter also caused him to be worried that strangers would come again to his house. His house now feels unsafe and he has made arrangements to move. He has bought legal protective instruments to protect himself. He changed his car, as his previous car had an identifiable registration.
295Ms Qin said that the conversation between Mr Wang and Elder Brother Guo was “just a normal conversation”. She also said that it was organised by her parents without her knowledge or consent, that she had not spoken with Mr Guo before his attendance upon Mr Wang, and that, in any event, Mr Guo was simply a “mediator”, attending for the purposes of mediation.
296Ms Qin’s father, Hong Fang Qin, also gave evidence. He initially denied that he had arranged for anyone to attend upon Mr Wang. When it was put to him that Ms Qin had told the Court that he had engaged somebody to mediate with Mr Wang, he said that “the mediation did happen”. He said he arranged it, but he did not speak with Ms Qin about it prior to arranging it and that he engaged a friend’s friend. He said “I asked them to mediate with this guy, just ask not to make these things big. Yes, try to mediate this matter. So I just – I did this behind my daughter’s back.” He denied that Ms Qin had given him Mr Wang’s address.
297It is clear to me from watching the tapes and from reading the transcription that this was not “a normal conversation” or an attempt to “mediate” the dispute. I am not aware of any mediation that takes place unexpectedly, without prior warning, on the doorstep of a person’s home, at night, whilst two men guard the gates to the homeowner’s property. There is no doubt in my mind that this was an attempt to intimidate Mr Wang to drop the proceeding. There is also no doubt that this caused, and continues to cause, Mr Wang significant stress and fear. This is a very serious matter, made all the more grave by Ms Qin’s attempts to cast Mr Wang as a person who threatens or intimidates witnesses.
298The most persuasive evidence that Ms Qin was not involved in arranging this visit was her assertion that “I wanted the case to be carried on. I want to finish the case.” Everything about Ms Qin’s demeanour in Court indicated that this was true, and that she did indeed want the case to continue and relished the opportunity to repeat and amplify her allegations.
299However, it is highly unlikely that her parents would arrange this visit without her knowledge. They did not know Mr Wang, had never met him and I do not know whether they even knew the identity of the person Ms Qin was involved with prior to the proceedings. I accept that the visit was arranged by Ms Qin’s parents to threaten and intimidate Mr Wang in the hope that he would drop these proceedings. This is highly unethical, indeed illegal conduct. I consider that, on the balance of probabilities, Ms Qin was aware, in at least a general sense, that the visit was going to occur, or that her parents were arranging for the visit to occur, and took no steps to stop the visit, or to warn Mr Wang.
300This significantly aggravated the hurt and humiliation that Mr Wang would have experienced as a result of the defamatory publications.
301I am satisfied that all these matters justify an award of aggravated damages.
302Having regard to all the circumstances of the case, I consider that the appropriate award of damages, including aggravated damages, is $150,000 plus interest. I will hear the parties on the appropriate interest rate to be applied.
Permanent Injunction
303Mr Wang also seeks a permanent injunction restraining the further publication of all the defamatory imputations.
304A permanent injunction should only be granted where the Court has assessed the threat or risk of a repeat of the publication of the defamatory matter, and is satisfied that such an order is reasonably necessary to address that threat or risk.[37]
[37]Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 at paragraph [15]; Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336, (29 July 2021) (per Gibson DCJ)
305As Wigney J notes in Rush v Nationwide News Pty Limited (No 9),[38] there is no express provision in the legislation for the making of permanent injunctions as a remedy. However, this does not mean that there is no power to make such an order, and it is generally accepted that the jurisdiction to make such an order rests in the Court’s auxiliary jurisdiction to restrain the threatened infringement or the repeated infringement of the plaintiff’s legal rights.[39]
[39]Ibid at paragraph [5]
306Where a defendant is a mainstream media organisation, the threat or risk might generally be considered low. But in a case such as this, Ms Qin has demonstrated repeatedly to the Court her willingness to repeat the defamatory imputations, including by giving an interview to the television program A Current Affair during the trial, and by commenting on social media articles online during the trial. Ms Qin has asserted that not only will she never apologise for her publications, but that Mr Wang owes her both an apology and damages. In her closing submissions, she said:
“… I think I’m a quite brave woman that I can come forward to confront the scum man. If maybe there’s other women who are not as strong, they will just tolerate it and give up. But in my opinion scum men cause tremendous damage to women and to society. I think that there had to be one person that … [is] willing to come forward to tell the truth and to – to warn the other women. To warn other women, in terms of dealing with relationships, you should learn how to protect yourself. I believe in righteousness and equalness. I never bowed to money and dark force. … .”
307I consider that there is a real risk that Ms Qin will continue to make publications, whether in interviews with the media, or via online posts, that convey the imputations and, therefore, a permanent injunction is warranted to address that risk.
308Consequently, Ms Qin is permanently restrained from the further publication of any of the defamatory imputations.
309I will hear the parties on costs.
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[38][2019] FCA 1383 (28 August 2019)
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