Yu v Yong - [2022] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
YU v YONG
[2022] SADC 10
Judgment of his Honour Judge Slattery
1 February 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER - OTHER MATTERS
The applicant claims to have been defamed by a publication on the WeChat platform upon an account called “Adelaide Uni Professor Liu”. The respondent republished the article on 26 March 2021. The respondent denies being or knowing the identity of the author of the publication posted by “Adelaide Uni Professor Liu”. The applicant wishes to pursue a claim in defamation against the person who first posted the publication.
The applicant seeks pre action discovery orders for the respondent to deliver to the applicant’s expert Mr Du Plessis, all electronic items used by the respondent during March 2021 to access the WeChat account “Adelaide Uni Professor Liu”. The applicant seeks discovery and production of records of communication between the Respondent and other individual members of the WeChat group who are likely to have had an electronic connection through membership of that group since 1 January 2019, and all other documents in the applicant’s possession which relate to the identity or whereabouts of the person behind the “Adelaide Uni Professor Liu” account. The applicant further seeks orders that Mr Du Plessis be permitted to examine the devices, make and take copies of the content on the devices and produce records for the applicant.
Held:
Applications granted.
Uniform Civil Rules 2020 (SA), referred to.
Newport Quays Pty Ltd v Urban Renewal Authority [2012] SASC 84; Challenger Life Nominees Pty Ltd v FUNK Leasing Pty Ltd [2021] SADC 89; Hood Sweeney Technology Pty Ltd v Equant Australia Pty Ltd [2009] SASC 298; Moore v Duldig [2021] SASC 26; Hewitt v Pacific Magazines (No 2) [2009] SASC 366; Sony Music Entertainment (Australia) Limited and Ors v University of Tasmania and Ors 198 ALR 367; Hewitt v Pacific Magazines [2009] SASC 323; Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd (2007) 249 LSJS 403, considered.

YU v YONG
[2022] SADC 10

Application for orders for pre-action discovery and preservation of evidence by the applicant Liu Yu against the respondent Koh Yong pursuant to UCR 242.1 and UCR 242.2. On the 8 December 2021 I granted this application. I said that I would later publish my reasons; these are those reasons.
The applicant Liu Yu (the applicant) claims to have been defamed by a publication on a social media platform called WeChat by a person using an account name “Adelaide Uni Professor Liu”. The applicant wishes to pursue a claim in defamation against the person who stands behind that account. In that connection the applicant seeks evidentiary material or information relevant to the identification of the appropriate respondent to the proposed defamation claim. He also seeks information to enable him to formulate his proposed claim against any such respondent.
The application is brought pursuant to UCR 242.1 and 242.2. Those rules provide as follows:
Part 12—Pre-action discovery—Supreme Court and District Court
242.1—Institution
(1)A person who seeks discovery or production of evidentiary material or information to decide whether or against whom whether to bring or formulate a proceeding may institute an action under this rule by filing an Originating Application and supporting affidavit in accordance with rule 82.1.
(2)     The supporting affidavit must identify—
(a)     the person against whom the applicant is contemplating bringing a claim and the cause of action contemplated;
(b)     the evidentiary material or information sought; and
(c)     why the applicant requires the evidentiary material or information to determine whether a cause of action exists or against whom the claim lies or to formulate the claim properly.
242.2—Order
(1)     The Court may make an order under subrule (2) if satisfied that—
(a)     the applicant may have a good cause of action against another person;
(b)     the person against whom the order is sought may be in possession or custody of, or have power over, evidentiary material or information relevant to the possible cause of action; and
(c)     the applicant requires discovery or production of relevant evidentiary material or information to—
(i)    decide whether a cause of action exists;
(ii)     decide against whom the claim lies; or
(iii)    formulate the claim properly.
(2)     If the Court is satisfied under subrule (1), the Court may—
(a)     order that the respondent file and serve on the applicant a document disclosing whether the respondent is or has been in possession or custody of, or has or had power over, evidentiary material relevant to the possible cause of action and, if so, providing full particulars of such evidentiary material;
(b)     order that the respondent produce any evidentiary material relevant to the possible cause of action to the Court or for inspection or copying by the applicant;
(c)     order that the respondent make discovery as if the respondent were a party to a substantive action for the possible cause of action and for that purpose specify any matters or make any order that could be specified or made in respect of a party under Chapter 7 Part 13;
(d)     order that the respondent verify discovery or production by affidavit;
(e)     order that the respondent provide specified information to the Court;
(f)     order that the respondent attend before the Court for examination; or
(g)     make any other or further order as it thinks fit, including as to costs.
(3)If the Court makes an order under subrule (2), the Court may subsequently make a further order under subrule (2).
The application provides as follows:
The Applicant seeks the following orders:
1    That within 21 days, the Respondent:
1.1   deliver up to the Applicant's independent forensic information technology expert, Mr Jean-Pierre Du Plessis, all mobile phones, tablets and other devices used by the First Respondent to access WeChat during the month of March 2021 (Devices), together with any and all passwords required to access the Devices, for the purpose described in Order 2;
1.2   discover and produce to the Applicant:
(a)all records of communications between the Respondent and Mr Carlson Khoo since I January 2019 in relation to the "Adelaide Uni Professor Liu" WeChat account or other WeChat accounts and groups;
(b)all other documents in his possession, custody or control relevant to the identity or whereabouts of the person who controls the "Adelaide Uni Professor Liu" WeChat account, including any communications with or about, or attempts to identify, that person;
1.3   if the Respondent has previously had but no longer has any Devices referred to in paragraphs 1.1 or documents referred to in paragraph 1.2 in his possession, custody or control, or has wiped, reset or deleted data stored on Devices since I March 2021, he depose, file and serve an affidavit as to:
(a)(a) when and how those Devices or documents ceased to be in his possession, custody or control, and their current whereabouts (if known); and
(b)(b) if applicable, when, how and why data was wiped, reset or deleted from the Devices.
2    That Mr Du Plessis be permitted to:
2.1   retain the Devices only for as long as is reasonably necessary to make complete copies of the data stored on the Devices (Copies), prior to returning the Devices to the Respondent as soon as reasonably practicable;
2.2   make and preserve such Copies, which (subject to orders 2.3 and 2.4) are to be retained by Mr Du Plessis and not interrogated, altered, destroyed, or produced or disclosed to the Applicant or any other person pending further Court order or agreement in writing between the Applicant and Respondent;
2.3   interrogate the Copies, take records of, and produce records to the Applicant and his representatives, in relation to:
(a)(a) all WeChat accounts accessed using the Devices, and in particular whether they include the "Adelaide Uni Professor Liu" account;
(b)all records of communications between WeChat accounts accessed using the Devices and the "Adelaide Uni Professor Liu" account;
(c)any and all IP address data or other identifying data relating to the "Adelaide Uni Professor Liu" account which can be accessed using the Devices;
(d)any other documents, communications or data located on the Devices which refer to "Adelaide Uni Professor Liu", excluding any documents, communications or data which also refer to "Lynch Meyer", "lawyer", "privilege", "John MacPhail" or "Georgia Gray" (or variants thereon);
(e)(e) any evidence of wiping, factory resetting, or deletion of data stored on the Devices outside of ordinary usage patterns since 2 March 2021; and
2.4   be assisted in carrying out these tasks to the extent determined necessary by Mr Du Plessis by an independent NAATl accredited Mandarin-English interpreter.
3    That the costs of and incidental to this application be met by the Respondent, save that the Applicant will meet the costs of Mr Du Plessis and the interpreter who assists him.
4    Such further or other orders as this Honourable Court deems necessary.
In support of the application, the applicant read the following affidavits:
1)The affidavit of Andrew Short, affirmed 7 September 2020[1] (the first Short affidavit);
2)The affidavit of Mr Yong, affirmed 3 September 2021[2] (the Yong affidavit);
3)The affidavit of Andrew Short, affirmed 29 November 2021[3] (the second Short affidavit).
[1]    FDN 2.
[2]    FDN 3.
[3]    FDN 7.
In response, the respondent read an affidavit of the respondent affirmed on 29 November 2021[4] (the Yong affidavit). The Yong affidavit was read without objection.
[4] FDN 8.
There was an objection to the reading into evidence of the first Short affidavit as, in part, it was based upon information and belief which had not been properly identified pursuant to the Rules.
Paragraphs 3 and 4 of the first Short affidavit provides as follows:
3 From information provided to me by our client, I understand that:
3.1Koh Yong was a member of a WeChat group with the translated name "Chinese People around the world belongs to the same family";
3.2Koh Yong invited a person named Carlson Khoo to join the group; and
3.3Carlson Khoo invited "Adelaide Uni Professor Liu" to join the group.
4 I was instructed by Mr Liu to try and contact Carlson Khoo and ask if he knows the identity or whereabouts of "Adelaide Uni Professor Liu".
The first objection was that these paragraphs do not aver facts, only conclusions. I accepted these submissions and Ms Hamlyn called Mr Short to give viva voce evidence. I accept the evidence given by Mr Short on the topics raised in paragraphs 3.1, 3.2 and 3.3 of his first affidavit. I am also satisfied that the balance of the content of that affidavit contain averments of fact.
Mr Guthrie also objected to paragraphs 14 and 15 of the affidavit of the applicant sworn 3 September 2021,[5] the contents of which are as follows:
14The WeChat group where the First Publication was posted is not a public group. It is a private group that you have to be invited to join by another member. I am not a member of that group. I became aware of the First Publication from other people who are members forwarding it to me.
15I have been provided by some of those members with screenshots from the WeChat group where the First Publication was published, which are now produced before me and marked “LY4”. Those screenshots suggest to me that:
15.1Koh Yong was a member of that WeChat group;
15.2Koh Yong invited Carlson Khoo, to join the group; and
15.3Carlson Khoo invited “Adelaide Uni Professor Liu” to join the group.
[5] FDN 3.
The objection was to the weight to be given to the content of those paragraphs.
The content of the affidavits of Mr Short and then his viva voce evidence satisfies me of the accuracy of the content of these paragraphs, and in particular sub-paragraphs 15.1 and 15.3. I am satisfied of those matters and so I have given the appropriate weight to that evidence. In so doing, I bear in mind that this is an interlocutory application and by its nature, there will be some gaps in the evidence upon which an applicant will base an application. There was no cross examination of Mr Short on his viva voce evidence.
In order to understand this application, it is necessary to traverse some of the pertinent material facts. WeChat is an online platform upon which those persons who are invited to join the platform exchange messages and information. A person who is not invited to participate on the WeChat platform cannot post messages upon it. Some time prior to 2 March 2021, a person nominated as “Adelaide Uni Professor Liu” was invited to participate in the WeChat online platform. Having joined the online platform, the username “Adelaide Uni Professor Liu” published material on that platform under that name to a private group of about 152 participants. At the time, the members on that platform may have numbered more than 152 people, but it is clear enough that the first publication was made to 152 people.
It is not necessary to set out here the content of this publication. It is pertinent to the members of the Chinese community in South Australia. It is allegedly scandalous and specifically directed at the applicant. It is thus potentially defamatory of the applicant and it may constitute an actionable wrong under the Defamation Act.
Mr Liu is not a member of the WeChat group and so he has not been able to identify who the person is behind the username “Adelaide Uni Professor Liu”. It is known from the affidavit of Mr Yong, that he denies he is the person behind the username “Adelaide Uni Professor Liu” and that he does not know the identity of that person.[6] He denies publishing that article at that time. He also denies promoting, facilitating or encouraging its publication. He denies possessing any evidentiary material or information about who published this first publication.
[6] FDN 8.
In submissions before me, Mr Guthrie for Mr Yong, in opposition to the application, relied substantially upon the denials within the affidavit of Mr Yong.
The contentions of the applicant are that although denials have been made, and accepting them only for the sake of argument, there is evidence of links between Mr Yong and the username “Adelaide Uni Professor Liu”. This evidence arises on the face of the affidavits filed by or on behalf of Mr Liu.
It is not in contest that Mr Yong is a member of the first WeChat group whereas Mr Liu is not a member of that group. It is also known that the person who stands behind the username “Adelaide Uni Professor Liu” was invited to join the first WeChat group by a Mr Carlson Khoo. The significance of the position of Mr Khoo is that he had become a member of the WeChat group after he had been invited to join the group by Mr Yong. It is unclear what connection there may be between Mr Yong and Mr Khoo but the pertinent point is that Mr Khoo was invited to join the WeChat group by Mr Yong. Therefore, Mr Yong is, potentially at least, within the first group of 152 people to receive the publication about the applicant by the person with the username “Adelaide Uni Professor Liu”.
The evidence before me satisfies me that when questioned by Mr Short, solicitor for Mr Liu, Mr Khoo said Mr Yong had given him a direction to invite “Adelaide Uni Professor Liu” to the first WeChat group in about 2019. Therefore, I am satisfied that there is sufficient evidence before me to conclude that it was through the invitation of Mr Khoo, at the direction of Mr Yong, that “Adelaide Uni Professor Liu” was invited into that WeChat group. It is not necessary here to discern or determine why that direction may have been given by Mr Yong to Mr Khoo. The evidence before me suggests that there may at the least be some discernible electronic connection between Mr Yong and Mr Khoo and “Adelaide Uni Professor Liu” because of the direction given to Mr Khoo and the way in which “Adelaide Uni Professor Liu” became a member of the WeChat group and then the communication and actions which followed. There was then the expiry of about a two year period. On or about 26 March 2021, Mr Yong accessed the first publication (by “Adelaide Uni Professor Liu”) and then republished in full the content of that first publication in a second separate WeChat group comprising more than 400 persons. This is described as “the second publication”.
As at 26 March 2021, Mr Liu did not know the identity of the person who was posting the defamatory publication under the username “Adelaide Uni Professor Liu”. All that he has been able to ascertain is that that there was communication between Mr Khoo and Mr Yong concerning the person at “Adelaide Uni Professor Liu” for Mr Khoo to invite that person into the first WeChat group; that Mr Yong accessed that first publication by “Adelaide Uni Professor Liu”; and on 26 March 2021, Mr Yong republished the content of that first publication to a separate WeChat group.
In his application, the applicant seeks discovery of communications, documents and information directly from Mr Yong and also evidence and information ascertainable by a forensic IT analysis of the electronic devices of Mr Yong which were used to access the WeChat account. I consider that merely because Mr Yong says in his affidavit that he does not own or control or operate the WeChat account with the username “Adelaide Uni Professor Liu” or that he does not possess any evidentiary material information relevant to the identity or whereabouts of that person is of only marginal significance when it is known that Mr Yong caused Mr Khoo to invite “Adelaide Uni Professor Liu” into the WeChat group and Mr Yong who then accessed the first publication made by “Adelaide Uni Professor Liu” to cause its republication.
The nominated expert, Mr Du Plessis, has stated that he would be able to determine whether Mr Yong has accessed the “Adelaide Uni Professor Liu” WeChat log in and he will, as an expert, usually be able to tell “…from the metadata stored on the phone or other device whether it has been wiped or had data deleted recently and can extract other usable information from metadata such as the IP address from which electronic communications originated, which can assist in identifying who was responsible for them.”
I accept that this class of information would not be known by Mr Yong, leaving aside the fact that it was Mr Yong who had directed Mr Khoo to invite “Adelaide Uni Professor Liu” (presumably by some name or other) to join the WeChat group. Therefore, the denials made by Mr Yong are not necessarily responsive to or informative of the issues for my determination.
Under UCR 242.2(2), I have a broad discretion to make orders for the production for discovery of documents or production of evidentiary material or information. I first must be satisfied that the applicant has a good cause of action against another person. I am satisfied that in relation to the person standing behind “Adelaide Uni Professor Liu”, the applicant has a good cause of action in defamation. Under UCR 242.2(1), I am required to be satisfied that the person against whom the order is sought may be in possession or custody of, or have power over evidentiary material or information relevant to the possible cause of actions. Mr Liu must also satisfy me that discovery or production of the relevant evidentiary material or information is necessary to decide against whom the claim lays or to formulate the claim properly. The orders that I am empowered to make under UCR 242 are more particularly set out in UCR 242.2(2)(a)-(g) inclusive. This includes a power at (g) to make any order or further order as I think fit. I would not read down the breadth of the orders that I am entitled to make under UCR 242(2), if I am satisfied that my discretion is enlivened.

The applicable authorities give guidance as to the level of satisfaction that I must reach in order to make an order under UCR 242.2(1) and (2). [7] They may be summarised as follows:
[7]    Newport Quays Pty Ltd v Urban Renewal Authority [2012] SASC 84 at [15]; Challenger Life Nominees Pty Ltd v FUNK Leasing Pty Ltd [2021] SADC 89 at [45]; Hood Sweeney Technology Pty Ltd v Equant Australia Pty Ltd [2009] SASC 298 at [3]-[4].
1.An applicant must satisfy me that he has a reasonable cause to believe that he may have a right of action;
2.Each case will be decided upon its own factual circumstances informing the exercise of the discretion arising under the Rule which would otherwise be beneficially construed according to the breadth of its language;
3.It is not necessary that the discovery sought be in some way decisive of the existence of the cause of action;
4.     Rather, the discovery sought need only be of assistance;
5.It is not my role to decide whether there is any particular substance within the application. I am only required to decide whether, for example, an applicant has a good cause of action and requires discovery or production of relevant evidentiary material for the Rule;
6.In the exercise of my discretion, it is necessary for me to take into account what is necessary for the fair conduct of a party’s case or the saving of costs and the costs of what is sought to be done and compared to the benefit to be achieved;[8] and
7.The touchstone of an order for pre-action discovery is what is in the interest of justice, the evidentiary value of the documents and the categories being sought. Therefore pre-action discovery orders will be broader in scope than, for example, limits upon documents under discovery which are governed by the usual direct relevance rule in a substantive action.[9]
[8]    Moore v Duldig [2021] SASC 26 at [8]; UCR 101.4(1).
[9]    Hewitt v Pacific Magazines (No 2) [2009] SASC 366 at [4]-[6].
Under UCR 242.1, an applicant must seek discovery or production of evidentiary material. The applicant must then identify the cause of action, the evidentiary material or information sought and why the evidentiary material or information sought is required to determine whether a cause of action exists or against whom the claim lay or to formulate the claim properly. The focus is therefore upon the expression “evidentiary material”. That expression is defined in UCR 2.1 to mean:
Evidentiary material means a document or thing of evidentiary value and includes a document or thing that the court determines should be produced to determine whether it has evidentiary value.
The material sought by the applicant here must satisfy the definition of “evidentiary material”. The expression “document” is defined by reference to s 4 of the Acts Interpretation Act (AIA) as follows:
Document includes:
(a)    Any paper or other material on which there is writing; and
(b)    Any plan, drawing, graph or photographs; and
(c)    Any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(d)    Any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device.
Ms Hamlyn, counsel for the applicant, submitted and it was not put in contest, that the data stored on the device sought to be produced falls within the definition in (d) of documents. She submitted that there are data files on that document from which sounds, images and writings are capable of being reproduced using the devices or another device.
In Sony Music Entertainment (Australia) Limited and Ors v University of Tasmania and Ors,[10] Tamberlin J considered an application by the applicant for discovery and inspection from the University of CD-ROMs used by the University to store records. The applicant was desirous of bringing an action for infringement of sound recording copyright believing that the University had, by storage of material upon CD-ROMs, infringed the sound recording copyright owned by the applicant. Tamberlin J held that the CD-ROMs used to store records that were sought by the applicant were documents within the Rules. His Honour held at [48]-[54] as follows:
[10] 198 ALR 367.
Power - Are the CD ROMs and Tapes “Documents”
[48] Having regard to the definitions of ‘document’ in O 1 r 4 of the FCR as amplified by the dictionary to the Evidence Act, I consider that the CD ROMs which have been used by the respondents to store data recovered and other electronic records sought by the applicants in this case are records of information from which writings can be reproduced notwithstanding that it is likely that only part of them may relate to relevant issues and are “documents” within the Rules. The extent of the nexus is a sperate question. There is authority that electronic records and computer databases are documents; see Derby & Co Ltd v Weldon (No 9) [1991] 2 All ER 901; Victor Chandler International v Customs and Excise Commissioners [2000] 2 All ER 315 at 321 and 326. Electronic records, such as computer files and CD ROMs have been the subject of discovery orders in this Court: see London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932 at [31] and Wimmera Industrial Minerals Pty Ltd v RGC Mineral Sands Ltd [1998] FCA 299.
Do the CD ROMs and Tapes Come Within rr 3 and 6
[49] In order to obtain discovery of “documents” it is necessary to demonstrate the nexus required by rr 3 and 6 by relating the document to matters sought to be ascertained in those rules.
[50] The applicants contend that the CD ROMs and backup tapes on which the information is preserved are “documents” within the meaning of rr 3 and 6 and therefore they are entitled to discovery of all the information included because by storing some relevant information they can be said “to relate” to the matters referred to in rr 3 and 6. The evidence, they say, shows that there is material on those records which relates to the identity of persons concerned and which also relates to the question whether the applicants have the right to obtain the relief. The records do not cease to “relate” because they may also contain a great amount of irrelevant material. The problem is to extract with some precision the relevant material by the use of appropriate search criteria and tools. Therefore, access would be likely to assist in ascertaining identity and in making a decision whether to commence proceedings and therefore the respondents should give discovery of the whole of the material contained in those electronic formats in which the preserved information is contained. All the material should be given to the applicants to search as they see fit.
[51] The respondents submit that the critical question is what is meant by “document” for the purpose of O 15A. The respondents point out that the definition may be approached at several levels of generality in circumstances where the electronic documents are known to contain both relevant and irrelevant information. The first level is that of discovering all the material stored on the CD ROMs and tapes sought by the applicants. Alternatively, at a more specific level, which is the level contended for by the respondents, each item of information which is recorded, constitutes in itself a part of an electronic record which in turn is a discrete document and it is only in respect of these discrete “documents” that the applicants can have discovery and access.
[52] In the present case the respondents say that the appropriate level at which to define “document” is determined by reference to the purpose for which the document is sought and the function which the description performs. Simply to rely on a broad definition of document to include a CD ROM and to assert that because it contains a record which may relate to the question raised in the rules is not sufficient. It is submitted that the Court cannot, as a matter of power or jurisdiction, (and should not as a matter of discretion in any event) order discovery of all electronic records on a CD ROM or tape as being a “document” for the purpose of the rules simply because some discrete records on it form part of a much larger record.
[53] The applicants point out that the definition of “document” is extremely wide and on a literal reading can include, in the present case, each of the CD ROMs, tapes and other electronic storage media. They also point out that the expression “relates” is a word of wide and general import and is sufficiently broad to include a relationship constituted by the fact that the record, in the case of a CD ROM for example, relates to the questions raised in the FCR because it contains some information which so relates.
[54] In this case I am satisfied that as a question of jurisdiction the Court has power to order discovery of a CD ROM, tapes or the other electronic storage devices which come within the definition of a document notwithstanding that they include a wide range of other information. The real issue raised goes to the exercise of the Court's discretion is whether in the circumstances of this particular case it is appropriate to order discovery as sought by the applicants in the form set out earlier in these reasons.
Adopting the approach of Tamberlin J in Sony Music, I am satisfied that the documents sought by the applicants fall, at least, within the definition of sub-paragraph (d) of the definition of “documents”, as described in the AIA and as referred to in the definition of documents in UCR 2.1. It is also to be recalled that the expression “evidentiary material” as defined includes not only a document but a “thing of evidentiary value” and it includes a thing the court determines should be produced to determine whether it has evidentiary value.
For all of the reasons which I discuss below, I am satisfied that the devices which are sought contain evidentiary material. I am also satisfied, that the content is of evidentiary value in the context of orders for pre-action discovery as the evidentiary materials sought will assist the applicant to identify potential defendants to his proposed claim. I am also satisfied that the devices which the applicant seeks to be produced contain data stored upon them which is discoverable.
I am satisfied that as a result of these communications, metadata and other IP address details will be available to be ascertained by an expert from the items sought including other material which may be gleaned from the communications which may raise other levels of enquiries. A person with a suitable skill set will be required to review the material and make a report. Mr Du Plessis is such a person. Mr Du Plessis is an independent expert and he has relevant expertise, to extract the information from these materials. Mr Yong is not in a position to provide that information and nor are his advisers. Although Mr Yong has made denials within his affidavit, he cannot know precisely what data might be laying behind the communication to which he has had access when using his devices. He will also not be aware of the IP address details which can be ascertained by someone such as Mr Du Plessis with suitable expertise and the additional forensic analysis tools and skills available to him.
It will be possible for Mr Du Plessis to read the data upon the items in a way that means he would be applying his particular expertise to the reading of that material. Mr Du Plessis will be analysing electronic communications between members of the WeChat group. By analysing the publication of the defamatory material, it will be possible for him to identify the metadata detail and other information about the IP addresses operated by these users. The respondent is one such person for at least two reasons. First, he published the offending material received from the site. Second, there was a connection between the sites when the first publication occurred. This court is well familiar with the capacity of a person in the position of Mr Du Plessis as an expert to interrogate these devices and obtain the appropriate information.
This material which will disclose the electronic record available would otherwise not be available to the applicants. In the exercise of my discretion, I am satisfied that as a result of Mr Yong’s participation in the WeChat group of only 152 people, to which the “Adelaide Uni Professor Liu” account is also a participant, there is a proximity created such that Mr Yong has access to information which another user of the WeChat platform would not necessarily have. That is because it is a private group which cannot be joined by the applicant. Therefore, there is a proximity between the members of the WeChat group who are only members because they are invited into the group, because they are in the same group and at least implicitly, there will be material passing between them in their communications which would not otherwise be obtainable. That includes the material to be obtained by Mr Du Plessis as a result of the application of his special skill, expertise and experience. It is of no consequence whether Mr Yong knows or does not know that he is in possession of particular evidentiary material or information.
Secondly, it is known that Mr Yong republished the defamatory material. Ms Hamlyn submitted that it would be rather curious for someone to pick up a post from a small group and simply republish it without having made any enquiries whatsoever or having any knowledge whatsoever of who it was that had originally posted it. That said, her primary focus was upon the evidence that Mr Yong had contact with the post and as a consequence there will be evidentiary material associated with that contact which can be gleaned from his devices by someone such as Mr Du Plessis using his particular skill set.
In relation to the exercise of the discretion, Ms Hamlyn relied upon the decision of Judge Lunn in Hewitt v Pacific Magazines.[11] This was an action for pre-action disclosure of documents under 6R 32. Mrs Hewitt wished to sue a magazine publisher and the author of the article for defamation. The author of the article was not identified in the magazine. The article contained a number of quotes that were ascribed to unidentified persons. In the exercise of the discretion, Judge Lunn anticipated that many of the documents sought on the pre-action discovery may ultimately be produced in discovery. He said at [8]:
[8] …while it is highly likely that much, if not all, of the document now sought by the plaintiff in this application will ultimately be produced through the interlocutory procedures in the subsequent action, or possibly as late as during its trial, it may be that the delay, cost and inconvenience caused to that action by the documents not being available to the plaintiff at its outset will make it in the interest of justice that orders now be made under the Rule insofar as that Rule enables them to be made.
[11] [2009] SASC 323.
It might be thought that there would be very little delay costs and inconvenience caused to the applicant by the documents not being available in that case however, it was accepted that the delay in doing so was prejudicial to Mrs Hewitt. In this instance, the case for the applicant is stronger because of the inability of the applicant to identify the author of the post except through the skill of someone such as Mr Du Plessis, once access is obtained to the electronic records which will identify those persons connected with the author of the document. It will cause extraordinary delay, costs and inconvenience and may prejudice the whole proceeding if that exercise is not performed.
In the exercise of the discretion, I am not satisfied that there were multiple independent sources of the information and the material. So much was accepted by Mr Guthrie in his submissions. I am also satisfied that the proposed action is far more than baseless speculation, conjecture or suspicion.[12] I have already found that the applicant has an arguable case in tort and I am satisfied that there will be substantive litigation between some of the parties, at least, for example, in relation to the second publication. There may be other respondents joined. I think there is a real advantage for all of the respondents and all causes of action to be joined in one action under one statement of claim for substantive relief. This is so for costs, delay and inconvenience reasons. Those reasons would not be served if, during the course of the proceeding, there needed to be additional defendants or other causes of action added to the action. That would delay the progress of the case or the court may exercise its discretion against the applicant and refuse the application for joinder. This would significantly prejudice the position of the applicant.
[12] Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd (2007) 249 LSJS 403 at [50].
I am unable to accept the submissions of the respondent which relied substantially upon the affidavit filed by Mr Yong who says he does not have the material and therefore the threshold requirement is not met. Mr Yong also relies upon the fact that in his affidavit, he says that he did not publish material. This contention was unchallenged. He says that he did not participate in, encourage or acquiesce in that first publication and so the available evidence points only to the conclusion that he was not involved. However, the question of his involvement is not completely to the point. The question is whether or not he has evidentiary material which will assist the applicant to decide whether or against whom to bring a claim. The applicant submits that the only way that can be ascertained, in light of the current information and especially the views expressed by Mr Du Plessis, is to obtain the items sought so they can be interrogated by Mr Du Plessis. That information will enable the identification of the identity of the author of the post in light of the exchanges that are known to have occurred, for example, between Mr Yong and the post of “Adelaide Uni Professor Liu”. The same considerations apply to that time when the article was republished by Mr Yong.
It is of no assistance for Mr Yong to say he does not know the identity of the person who stands behind “Adelaide Uni Professor Liu” and who is the author of the article. However, it is known that he uses the WeChat site; he is a member of the first WeChat group, that group includes “Adelaide Uni Professor Liu”, which occurred as a result of the request he made to Mr Khoo to invite “Adelaide Uni Professor Liu” into the first WeChat group; and he has accessed the first publication. There are electronic connections between the respondent, the WeChat group and the material published by “Adelaide Uni Professor Liu”. These are the matters to be investigated by Mr Du Plessis. It is not only a question of being on a WeChat group and someone anonymously posts this material.
There are also other indications such as the invitation by Mr Khoo to the person standing behind the “Adelaide Uni Professor Liu” username to join the WeChat group. Mr Yong more broadly published the defamatory material first published by “Adelaide Uni Professor Liu”. One possibility (which appears on balance to be most likely) is that he downloaded the post from “Adelaide Uni Professor Liu” and then republished it to 482 people. Mr Du Plessis has the capacity to enquire of those devices and so identify the connections and the person responsible for those connections. He is able to electronically trace and identify the electronic signature of the site from which that material was received. This is the same process as I earlier outlined of Mr Du Plessis being able to identify the relevant IP addresses of the invitor and the invitee at the time that “Adelaide Uni Professor Liu” was invited to join this WeChat group. What followed were exchanges using electronic devices that may be searched using the same methods.

For these reasons, I am unable to accept the submission of the respondent that the threshold test that the respondent is not in possession of evidentiary material, is not met. I am satisfied that the threshold test has been met.
Something was attempted to be made about the fact that there was no cross examination on the affidavit of Mr Yong however, as Ms Hamlyn submitted, in the absence of the discovery of the material now being sought, there would be nothing upon which there could be cross examination of Mr Yong. That is because Mr Yong will not necessarily or at all be aware of the material which may be identified by Mr Du Plessis.
I am therefore satisfied that Mr Liu has a good cause of action in tort for defamation arising from the first publication subject to identifying the person or persons who were its publisher. I am also satisfied that Mr Liu requires this further information to decide against whom his proposed claim lies and the denials of Mr Yong are of no moment. Mr Liu requires the information sought to properly identify who was the publisher of the offending material and against whom an action lies. Other persons may equally be liable but that does not require my determination here. I am satisfied that further information would be necessary to formulate a claim against such persons who published the material and therefore I am satisfied that each of subparagraphs 242.2 (1)(c)(ii) and (iii) are enlivened.
I am satisfied that Mr Yong may be in possession or have custody or have power over evidentiary material. Mr Yong used the WeChat platform as a member of the first WeChat group with “Adelaide Uni Professor Liu”. He then accessed the first publication. He republished it. Mr Liu does not have access to the first publication or to the first WeChat group. I am satisfied that having regard to his skills, Mr Du Plessis may be able to extract metadata or IP address details not available from a mere screenshot which will assist in identifying “Adelaide Uni Professor Liu” or the source of the first publication.
I am satisfied that Mr Khoo was requested by Mr Yong to invite “Adelaide Uni Professor Liu” to the first WeChat group sometime in 2019. I am satisfied that there is at least a reasonable basis to infer that Mr Yong may have possessed documents meeting the categories of documents sought to be produced upon his electronic records that are available. I am mindful of the fact that the limitation date for a claim in defamation is 12 months from publication therefore expires on 2 March 2022. For all of these reasons, I allow the application of the applicant and I make the following orders:
1. Within 7 days, the Respondent:
1.1. deliver up to the Applicant’s independent forensic information technology expert, Mr Jean-Pierre Du Plessis, all mobile phones, tablets and other devices used by the Respondent to access WeChat during the month of March 2021 (Devices), together with any and all passwords required to access the Devices, for the purpose described in Order 2;
1.2. discover and produce to the Applicant:
1.2.1. all records of communications between the Respondent and Mr Carlson Khoo since 1 January 2019 in relation to the WeChat account which was on 2 March 2021 identified by the name “Adelaide Uni Professor Liu” (the Relevant WeChat Account), or the WeChat group which was on 2 March 2021 identified by a name translating to “Chinese People around the world belongs to the same family” (the Relevant WeChat Group);
1.2.2. any communications since 1 January 2019 with or about, or attempts to identify, the person(s) who operate(s) the Relevant WeChat Account; 1.3. if he has previously had but no longer has any Devices referred to in paragraphs 1.1 or documents referred to in paragraph 1.2 in his possession, custody or control, or has wiped, reset or deleted data stored on Devices since 2 March 2021, depose, file and serve an affidavit as to:
1.3.1. when and how those Devices or documents ceased to be in his possession, custody or control, and their current whereabouts (if known); and
1.3.2. if applicable, when, how and why data was wiped, reset or deleted from the Devices.
2. That Mr Du Plessis be permitted to:
2.1. retain the Devices for a maximum of 48 hours (excluding week-ends) to make complete copies or clones of the data stored on the Devices (Copies);
2.2. make and preserve such Copies, which (subject to orders 2.3 and 2.4) are to be retained by Mr Du Plessis and not interrogated, altered, destroyed, or produced or disclosed to the Applicant or any other person pending further Court order or agreement in writing between the Applicant and Respondent;
2.3. interrogate the Copies, take records of, and produce records and reports to the Applicant and his representatives, in relation to:
2.3.1. all WeChat accounts accessed using the Devices since 1 January 2019;
2.3.2. all records of communications between WeChat accounts accessed using the Devices and the Relevant WeChat Account since 1 January 2019;
2.3.3. all records of communications between WeChat accounts accessed using the Devices and Mr Carlson Khoo’s WeChat account since 1 January 2019;
2.3.4. any and all IP address data or other identifying data relating to the Relevant WeChat Account which can be accessed using the Devices;
2.3.5. any other documents, communications or data located on the Devices which refer to “Adelaide Uni Professor Liu” or the Relevant WeChat Account by any other identifier, excluding any documents, communications or data which also refer to “Lynch Meyer”, “privilege”, “John MacPhail”, “Georgia Gray” or “Ted Guthrie” (or variants thereon);
2.3.6. any evidence of wiping, factory resetting, or deletion of data stored on the Devices outside of ordinary usage patterns since 2 March 2021; and
2.4. be assisted in carrying out these tasks to the extent determined necessary by Mr Du Plessis by an independent NAATI accredited Mandarin-English interpreter appointed pursuant to the Court’s Interpreter Protocols.
3. For the purposes of using alternate or temporary replacement Devices, the Respondent be permitted to remove the SIM card from any such Devices delivered up to the Applicant pursuant to Order 1.1 prior to such delivery up.
4. Pursuant to rule 242.3 of the Uniform Civil Rules 2020 (SA), the Applicant is to pay to the Respondent his reasonable compensation for the time and expense involved in complying with the Orders for pre-action discovery, to be fixed by agreement or in default by the Court.
5. Costs reserved.