PLAINTIFFS SUES THEIR FORMER EMPLOYEE FOR DEFAMATION

Pan v Cheng; Zhou v Cheng [2021] NSWSC 30 (1 February 2021)

This case involves the determination whether it was the defendant who published and sent the defamatory letters against the plaintiffs which entitles the latter to be awarded damages.

Facts:

This proceeding is against Jie Cheng, the defendant. The plaintiffs seek damages for allegedly defamatory material published by the defendant. In the first set of proceedings, Mr Henry Pan (hereinafter “the first plaintiff”) and Chinese Australian Services Society Limited (hereinafter “CASS”) sue for a series of publications said to have been published by the defendant about the first plaintiff and CASS. In the second set of proceedings, Mr Bo Zhou (hereinafter “the second plaintiff”) also sues the defendant for a series of publications.

CASS is a registered charity and the first plaintiff is the Honorary Executive Director of CASS. The second plaintiff is, and was at all relevant times, the Chairman of the Board of Directors of CASS.

CASS and the first and second plaintiffs were the targets of a letter-writing campaign by a person or persons who were not identified in the publications. All of the letters were written in Chinese characters and were said to be written on behalf of or by various groups, including “People in the Chinese community”, “People in the community who care about CASS”, “Representatives of family members from the CASS”, and other similar identifying comments.

The letters and publications were sent to the Ambassador of the People’s Republic of China in Australia; the Consul-General and Deputy Consul General of the People’s Republic of China in Sydney; the Overseas Chinese Affairs Office of the People’s Republic of China’s State Council; the first plaintiff’s wife; and a company in China with which CASS was attempting to establish a business relationship, being Silian Youshi Scientific Ageing Industry Co (hereinafter “Silian”).

There are 21 matters complained of in relation to the first plaintiff and seven matters complained of in relation to the second plaintiff. Some of the matters complained of, in relation to the first plaintiff, also relate to CASS and are said to be defamatory of each.

The only issue raised in the defences is the identity of the person that published the impugned publications. As a consequence of the claim that the defendant had no involvement in the publication of the statements.

Issue: Did the plaintiff established that it is the defendant who sent the defamatory letters which entitle them to damages?

Law:

• Defamation Act 2005 ss 9, 34, 35, 37, 40

Analysis:

It is for the plaintiff to prove, on the balance of probabilities, that the defendant published the defamatory material.

As to motive, The defendant, was the director of nursing at the residential aged care facility. Prior to the resignation, the defendant wrote to the chairperson of CASS complaining formally of bullying by the first plaintiff in relation to the defendant’s role in disability services. The defendant also complained about abusive phone calls relating to an incident where one resident at the facility went missing and the continual interference with the day-to-day running of the facility. It is obvious from the evidence before the Court, and the demeanor of the defendant, that she is and was extremely angry at her treatment by CASS, by the first plaintiff and by the second plaintiff  and that she held, and continues to hold, significant resentment and anger towards the plaintiffs.

As to the evidence, the plaintiffs made enquiries of the Hornsby Office of Australia Post. Those enquiries resulted in the following: Australia Post produced CCTV footage of the time in and around the time at which the letter was said to have been posted or attempted to be posted. The CCTV footage clearly shows the defendant posting a letter at about the time that the letter to China was posted.

The defendant contends that she didn’t have time to do things like post letters of that kind and that she had “moved on in her life”, no longer wanting involvement. Later, and on the view the Court takes, at the last moment, when faced with irrefragable evidence, the defendant suggested or testified, on oath, that different letters were posted to China at the time that she was depicted in the CCTV footage. Those letters were not initially able to be produced.

The defendant failed, until her re-examination, to produce the original letters said to be sent or a copy thereof.  The defendant failed, initially, to produce copies of the electronic files. The defendant’s evidence was wholly unsatisfactory.

The court reached the irrefragable conclusion that the defendant sent the letter from Hornsby Post Office to Silian that was defamatory and which is the eighth matter complained.  That is in the same or similar terms to most, if not all, of the other matters of which complaint is made.

Conclusion: Hence, the court orders that the defendant pays the plaintiffs for damages.

#Defamation