Young v Xiao - [2023] NZHC 3583

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2170

[2023] NZHC 3583

IN THE MATTER of a claim under the Defamation Act 1992

BETWEEN

PAUL CHUNG CHE YOUNG

Plaintiff

AND

MORGAN ZHIHONG XIAO

Defendant

Hearing: On the papers

Appearances:

K J Crossland and B Bycroft for the Plaintiff D Z Q Tan for the Defendant

Judgment:

8 December 2023

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 8 December 2023 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Shieff Angland, Auckland ACS Lawyers, Auckland

YOUNG v XIAO [2023] NZHC 3583 [8 December 2023]

Introduction

[1] The plaintiff, Paul Chung Che Young, filed these defamation proceedings in November 2022 in relation to multiple online posts by the defendant, Morgan Zhihong Xiao, between 10 August 2021 and July 2023.

[2]Mr Xiao applies for leave to issue third party notices against:

(a)NZME Publishing Limited (NZME);

(b)Radio New Zealand Limited (RNZ);

(c)Target Advertising Limited (Target Advertising);

(d)AUSNZ.net International Limited (AUSNZ);

(e)Lincoln Tan; and

(f)Maurice Williamson.

[3] The plaintiff filed a memorandum saying he does not formally oppose the delayed application for leave. The memorandum records however that the plaintiff anticipates the Court will consider the issues of delay to the trial being set down and the material extension of trial duration as part of its assessment on whether to grant leave or not.

[4] Despite no formal opposition, the Court is still required to determine whether it is appropriate to grant leave.

Developments

[5] Since the application for leave to issue third party notices was filed in respect of the six parties above, third party notices and statements of claim in respect of four additional third parties have been filed:

(a)The Vision Times Limited;

(b)Central News Agency;

(c)Taiwan, Province of China; and

(d)New Zealand Epoch Times Group Limited.

[6] No application for leave has been filed in respect of the four further intended third parties.

[7] A memorandum was filed on behalf of the plaintiff dated 11 October 2023 advising the Court that the plaintiff had been served with third party notices and statements of claim against all 10 of the intended third parties on 12 September 2023.

[8] Two of the four further intended third parties for whom leave has not been sought have now filed statements of defence.

[9] In the defendant’s submissions filed in respect of leave for the original six intended third parties, the defendant submits that leave is in fact not required because the third party notices were served within 10 working days of the filing of the statement of defence to the second amended statement of claim. This may explain why the defendant has now filed and served all ten third party notices and statements of claim. However in circumstances where counsel for the defendant was aware the defendant’s application for leave to issue third party notices against the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Young v Xiao

Details

AGLC: Young v Xiao [2023] NZHC 3583
Case: [2023] NZHC 3583
Decision Date: 8 December 2023

CaseChat Overview and Summary

Paul Chung Che Young, the plaintiff, filed defamation proceedings against Morgan Zhihong Xiao, the defendant, in November 2022, regarding multiple online posts published by the defendant between 10 August 2021 and July 2023. The plaintiff claims that the online posts made by the defendant have caused him significant reputational damage and emotional distress. The defendant has filed a statement of defence denying the allegations and pleading various defences. The defendant has also applied for leave to issue third party notices against ten parties, including media outlets and individuals, to join them as defendants in the proceedings.

The court considered whether leave was required to issue third party notices and, if so, whether leave should be granted. The court found that leave was required for the additional four third parties and that the application for leave for the original six third parties should be denied. The court found that the defendant's application for leave was filed in an untimely manner and that the claims against the intended third parties were skeletal and contradictory. The court also found that granting leave would likely cause significant delay and disruption to the proceedings and that the plaintiff would not be substantially involved in the issues between the defendant and the intended third parties.

The court denied the defendant's application for leave to issue third party notices. The third party notices and accompanying statements of claim filed by the defendant against the third parties, as well as any statements of defence or associated documents, are to be removed from the court's file. The parties who have filed statements of defence, including The Vision Times Limited and New Zealand Epoch Times Group Limited, are entitled to costs. If costs cannot be agreed, memoranda of no more than three pages (excluding schedules) may be filed by the intended third parties within 30 working days of this judgment and the defendant, a further 10 working days.

Orders