新西兰天维网社区

标题: May 的心里话 --- 打官司的原因和过程可能不令人愉快，但好结果可以让人很开心！ [打印本页]
作者: 我选择新西兰    时间: 2016-12-21 16:14:02     标题: May 的心里话 --- 打官司的原因和过程可能不令人愉快，但好结果可以让人很开心！

这几天，在不到一周的时间内，我收到了两份法庭的判决书。

一份判决书来自ERA， 我代理的一位Kiwi客户的劳资纠纷案胜诉。


May的心里话：做一份自己喜欢且胜任的工作真好。


一份判决书来自High Court, 我作为被告的诽谤案终于结案了， 对方败诉。


May的心里话：做被告的感觉和打官司的过程不会令当事人愉快，但胜诉的心情弥补了一切。将近三年半的法律程序，我学到很多。


待续。







作者: 孜然炒肉    时间: 2016-12-21 16:15:06

大名鼎鼎的May，鼠版的最爱
作者: DisconnectHack    时间: 2016-12-21 16:17:30

诽谤的案件不是本来就很难胜诉的嘛？
作者: joy___123    时间: 2016-12-21 16:21:31

占座听故事
作者: hkw516    时间: 2016-12-21 16:32:34

提示: 作者被禁止或删除 内容自动屏蔽
作者: 微苦蓝山    时间: 2016-12-21 16:36:21

哈哈，5F的案子吧
作者: masterq    时间: 2016-12-21 16:45:33

本帖最后由 masterq 于 2016-12-21 16:56 编辑

http://bbs.skykiwi.com/forum.php?mod=viewthread&tid=2069551
作者: mimisa    时间: 2016-12-21 16:46:27

祝贺。。。。
作者: Olga    时间: 2016-12-21 17:14:11

May 是谁？  
作者: Jacky在奋斗    时间: 2016-12-21 17:23:37

哈哈哈哈哈
作者: 我选择新西兰    时间: 2016-12-21 17:43:39

Olga 发表于 2016-12-21 17:14
May 是谁？

我是天维网的一名网友，网名“我选择新西兰”。 我原来的网名是“选择新西兰”。
作者: 我选择新西兰    时间: 2016-12-21 17:50:24

DisconnectHack 发表于 2016-12-21 16:17
诽谤的案件不是本来就很难胜诉的嘛？

就我的案子来说，我从来没有怀疑过自己的判断，不管是用common sense, 还是用legal principle,

我从始至终都认为自己的案子不会输。
作者: 楼主    时间: 2016-12-21 17:50:37

我懒,谁可以给个链接?最好是可以简单地概括一下,还有ratio decidendi什么的.
作者: 我选择新西兰    时间: 2016-12-21 17:54:35

本帖最后由 我选择新西兰 于 2016-12-21 17:56 编辑
楼主 发表于 2016-12-21 17:50
我懒,谁可以给个链接?最好是可以简单地概括一下,还有ratio decidendi什么的.

判决书摘录：

Introduction
[1] This is an action for defamation taken by Yi Wu, also known as Easter Wu, a businessman and frequent contributor to a forum on an internet website, http://www.skykiwi.com, (Skykiwi), against May Moncur, another contributor to the same forum, who he claims defamed him in comments she made on the forum in response to a post under the username “Wu Fu”.

[2] Ms Moncur was also instrumental in bringing Wu Fu’s post to the attention of the Truth newspaper, which published an article about the post that included comments from Bob Kerridge of the Auckland Society for the Prevention of Cruelty to Animals.

[3] Mr Wu’s defamation claim originally named a reporter for the Truth newspaper as the second defendant, a director of the Truth newspaper company (the company) as the third defendant, the company itself as the fourth defendant and Mr Kerridge as the fifth defendant.

[4] The second defendant was unable to be served with the proceedings. It is believed that he is in Australia. Mr Wu settled with the third and fifth defendants. The fourth defendant was liquidated and has now been struck off the Companies Register altogether. Mr Wu recognises that no real remedy is available against the company, but nonetheless seeks a declaration against it in vindication of his reputation.

[5] Ms Moncur is, in effect, the sole remaining defendant. Mr Wu seeks $250,000 general damages and $7,500 punitive damages against her. He also seeks a permanent injunction to restrain her from continuing with her defamatory comments.

Conclusion

[56] The defamation claim by Mr Wu against Ms Moncur is dismissed on the basis that her original post on 30 March 2013 was not defamatory. Ms Moncur has also established the defence of honest opinion to my satisfaction both in respect of her original post on 30 March 2013 and the post of the Truth article on 18 April 2013.

[57] Ms Moncur was not represented in the High Court hearing so I am unaware of her entitlement to costs. If costs remain an issue, memoranda by both parties should be filed by 31 January 2017.




作者: 我选择新西兰    时间: 2016-12-21 18:00:13

hkw516 发表于 2016-12-21 16:32
案件的输赢重要么？

重要的难道不是利益？

在我看来，过程和结果都重要。

不是很理解你的发言，请赐教。
作者: qlc178901    时间: 2016-12-21 18:02:57

顶！！！！！！！清者不但要自清，还得客观证明清白才更心安
作者: Olga    时间: 2016-12-21 18:03:55

我选择新西兰 发表于 2016-12-21 17:43
我是天维网的一名网友，网名“我选择新西兰”。 我原来的网名是“选择新西兰”。  ...

谢谢回答。
作者: qlc178901    时间: 2016-12-21 18:05:26

希望may少受到这种旷日持久的官司纠缠而气馁妥协，再接再厉。。。。。加油！
作者: 我选择新西兰    时间: 2016-12-21 18:08:46

qlc178901 发表于 2016-12-21 18:05
希望may少受到这种旷日持久的官司纠缠而气馁妥协，再接再厉。。。。。加油！ ...


一天一个谢，给楼上。
作者: kei    时间: 2016-12-21 18:17:44

我觉得原告的目的已经达到了
作者: 我选择新西兰    时间: 2016-12-21 18:22:36

kei 发表于 2016-12-21 18:17
我觉得原告的目的已经达到了

过去的两年里，我自己代理自己的案子，学习到许多东西。我也达到了自己根本没有预想到得目的，喜悦兴奋之余，感到收获匪浅。


作者: DisconnectHack    时间: 2016-12-21 19:00:08

我选择新西兰 发表于 2016-12-21 16:50
就我的案子来说，我从来没有怀疑过自己的判断，不管是用common sense, 还是用legal principle,

我从始 ...

武夫咋不上论坛了，跟这案子没关系吧
作者: masterq    时间: 2016-12-21 19:04:36

DisconnectHack 发表于 2016-12-21 19:00
武夫咋不上论坛了，跟这案子没关系吧

他說過要入股收購屎蓋,二年半過去了,沒臉上來吧~~

作者: DisconnectHack    时间: 2016-12-21 19:23:15

masterq 发表于 2016-12-21 18:04
他說過要入股收購屎蓋,二年半過去了,沒臉上來吧~~

晕屎





作者: 我选择新西兰    时间: 2016-12-21 21:17:41

在新西兰高院打官司，一扯就可以是好几年，好在我的职业让我对走法律程序没有情绪上的障碍，也不太着急，加上是自己处理案子，每个环节都清楚。整个过程下来，感觉自己付出了，更得到了。



作者: 雨初霁    时间: 2016-12-21 21:41:07

三年半。。。。。

这官司打的真煎熬。。。。不过楼主能过个很开心的圣诞。
作者: ilikeauckland    时间: 2016-12-21 21:52:26

恭喜恭喜， 圣诞节快乐
作者: ryanlu    时间: 2016-12-21 22:19:32

wa bujiandana !
作者: 柒夜之月    时间: 2016-12-21 22:22:36

有没有懒人包 吃瓜群众看不懂啊 大神解释下呗
作者: Clark1129    时间: 2016-12-21 22:47:45

少整点配菜吧，我敢说没有人对第一个什么劳资纠纷有兴趣
作者: ilikeauckland    时间: 2016-12-21 22:58:46

这个要顶要顶。。。。。。。。。。。。。。。。。。。。。
作者: Clark1129    时间: 2016-12-21 23:02:11

masterq 发表于 2016-12-21 19:04
他說過要入股收購屎蓋,二年半過去了,沒臉上來吧~~

你的心理太阴暗了，你这样不对的，就不能盼人点好？

就不能说人家现在和5阿姨幸福的生活吗？老把人往坏处想不对的
作者: 我选择新西兰    时间: 2016-12-21 23:03:33

本帖最后由 我选择新西兰 于 2016-12-21 23:31 编辑
雨初霁 发表于 2016-12-21 20:41
三年半。。。。。

这官司打的真煎熬。。。。不过楼主能过个很开心的圣诞。 ...

法律程序一般都很慢，这是真的。但打官司没有人们想象的那么复杂，其实就是几个关键的环节。因为在这个案子里我是被告，所以主要的几个点如下：

2013年八月初的一天，收到起诉书。一个送达公司的人到我的办公室，把起诉书交到我的手上。法律程序这时就开始启动了。

2014年十月底，我从国内探亲回来。得知开庭日期定在11月14日。于是我马上约见律师，递交了应诉书，并申请了leave application，重新做了Amended Statement of Defence.

准备证词和证据。

原定的开庭日期被撤销。

从2015年起开始自己研究学习Defamation law, 看案例，为自己的辩护做准备。
2015年11月底，就Application for extention的争议和审理。  

在开庭不到一个小时后，再次因为和法律程序有关的问题被推迟。

准备Submissions。


2016年3月7，8 9 三天，双方做cross examination. 收到的庭审记录足足有几百页

2016年7月25日再次庭审，涉及新的证据。

2016年12月13日，法庭判决书下达。胜诉。







作者: joyjoyjoy    时间: 2016-12-21 23:03:53

就喜欢听故事。。。。。。。。。。。。。。。。。
作者: 我选择新西兰    时间: 2016-12-21 23:28:47

本帖最后由 我选择新西兰 于 2016-12-21 23:26 编辑
Clark1129 发表于 2016-12-21 21:47
少整点配菜吧，我敢说没有人对第一个什么劳资纠纷有兴趣

我需要解释一下：
我的工作专业和这个诽谤案还真的有关系。

我是做雇佣关系法律服务的，经常去Mediation, ERA，也去Employment Court.

原告提出的法律诉求，除了近26万元的经济赔偿，还有一点就是要求将本案的判决书提供给Employment Court,  
“for consideration as to the First Defendant's current or ongoing privileges to appear in that jurisdiction"


作者: Clark1129    时间: 2016-12-21 23:35:50

我选择新西兰 发表于 2016-12-21 23:28
我需要解释一下：
我的工作专业和这个诽谤案还真的有关系。

我是说大家默认估计都关心第二个审理，别吊胃口了，赶紧更新
作者: 我选择新西兰    时间: 2016-12-21 23:40:43

本帖最后由 我选择新西兰 于 2016-12-21 22:50 编辑

这个案子在审理过程中，因为涉及到很多中文证据，所以翻译很重要。我不是专业的翻译，但我在准备证据时，把我自己找到的证据都准备了英文翻译，而且绝对都是很地道的英文。

我的先生本身是英文老师，还是雅思考官，而我本人从前也是做老师的，我们自然对语言表达和准确翻译很在意。这是我的便利条件。
作者: 我选择新西兰    时间: 2016-12-21 23:46:34

本帖最后由 我选择新西兰 于 2016-12-21 22:50 编辑

最困难的是找到原来的那些帖子，有证据才有辩护的力度。但在2014年底，原定的第一个开庭日期前，很多相关的帖子都已经找不到了。这是我当时面临的很大的一个难题。

我只能把有限的回帖和帖子打印出来，做好翻译。好在我找到的帖子都是有代表性的，能说明问题也就够了。










作者: masterq    时间: 2016-12-21 23:54:28

Clark1129 发表于 2016-12-21 23:02
你的心理太阴暗了，你这样不对的，就不能盼人点好？

就不能说人家现在和5阿姨幸福的生活吗？老把人往坏 ...




作者: 我选择新西兰    时间: 2016-12-21 23:55:04

本帖最后由 我选择新西兰 于 2016-12-21 22:56 编辑

在准备submissions(结案陈词）时，我阅读了大量的案例。但新西兰的诽谤案最终审理定案的不多，这也是诽谤案很有特点的地方，许多案子没有最终的审理结果，所以我看了其它英联邦国家的案例，包括英国和加拿大的案子。

作者: 龙城岁月    时间: 2016-12-22 00:02:08

原来楼主就是屎盖上传说中的红领巾May啊，好人有好报。
作者: 我选择新西兰    时间: 2016-12-22 00:03:21

本帖最后由 我选择新西兰 于 2016-12-21 23:22 编辑

新西兰有一个非常好的网站，叫做 Defamation update， 这是一个专业的提供和诽谤案相关信息和服务的网站，想要了解和defamation有关的法律信息，这个网站是必看的，因为上面有所有重要的Judegements。

http://defamationupdate.co.nz/2016  
作者: 我选择新西兰    时间: 2016-12-22 00:04:58

龙城岁月 发表于 2016-12-21 23:02
原来楼主就是屎盖上传说中的红领巾May啊，好人有好报。

红领巾是怎么回事？请赐教。
作者: 我选择新西兰    时间: 2016-12-22 00:16:38

人人都是有学习能力的，只要学习目的明确，加之有动力，学习会很有效果。这也是我从此案得出的感受之一。

在自己决定self represent 之前，我对defamation law了解甚少。好在这个案子慢吞吞地扯下去，给了我学习的时间。









作者: 龙城岁月    时间: 2016-12-22 01:05:14

我选择新西兰 发表于 2016-12-22 00:04
红领巾是怎么回事？请赐教。

就是之前看到网友有关于法律方面的事情要咨询，你都会热心答复。所以叫红领巾
作者: DisconnectHack    时间: 2016-12-22 07:08:59

我选择新西兰 发表于 2016-12-21 22:46
最困难的是找到原来的那些帖子，有证据才有辩护的力度。但在2014年底，原定的第一个开庭日期前，很多相关的 ...

消失的帖子是怎么回事啊？如果是被删除的话，我认为服务器多少是有记录的，只要向法官说明这些帖子的重要性，是可以要求法官下达命令要求服务器运行方交出所有帖子的吧？
作者: salesonline    时间: 2016-12-22 07:57:52

本帖最后由 salesonline 于 2016-12-22 07:10 编辑
我选择新西兰 发表于 2016-12-21 23:16
人人都是有学习能力的，只要学习目的明确，加之有动力，学习会很有效果。这也是我从此案得出的感受之一。

...

BETWEEN YI WU
Plaintiff

AND MAY MONCUR
First Defendant
TRUTH WEEKENDER LIMITED (IN
LIQUIDATION)
Fourth Defendant

这里为什么只提到第一被告，第四被告， 二三哪里去了？
哦，看到了
作者: salesonline    时间: 2016-12-22 08:01:02

本帖最后由 salesonline 于 2016-12-22 07:43 编辑


Yi Wu 是bussinessman，男的, Wu FU
May Moncur女的

是吧

[8] Mr Wu comp

这段英语好费解，楼主给解释下，普及下英语知识

It attracts over 60,000 unique daily IP visits and over 700,000 daily page views.
原来屎盖才6万注册用户，平均每天人均发帖10贴
好，WTV是什么公司




作者: 我选择新西兰    时间: 2016-12-22 09:05:11

龙城岁月 发表于 2016-12-22 00:05
就是之前看到网友有关于法律方面的事情要咨询，你都会热心答复。所以叫红领巾 ...

    不敢当。多谢多谢。
作者: hitye    时间: 2016-12-22 09:21:40

三年的官司，五月姐威武啊
作者: 我选择新西兰    时间: 2016-12-22 10:02:16

hitye 发表于 2016-12-22 08:21
三年的官司，五月姐威武啊

又要找你印名片了，早就用完了，一直拖着没办。
作者: 董董    时间: 2016-12-22 10:11:40

hkw516 发表于 2016-12-21 16:32
案件的输赢重要么？

重要的难道不是利益？

师父。。。真丢人，我要把你领回家。。。。
作者: 董董    时间: 2016-12-22 10:12:09

masterq 发表于 2016-12-21 16:45
http://bbs.skykiwi.com/forum.php?mod=viewthread&tid=2069551

这都能被你找回来。。。。
作者: 董董    时间: 2016-12-22 10:16:36

好人有好报。。。祝贺。。。
作者: lychee    时间: 2016-12-22 10:21:49

第一次知道may姐还是mmt的时侯。。那时候就觉得你好热心。。。
作者: 我选择新西兰    时间: 2016-12-22 10:43:54

lychee 发表于 2016-12-22 09:21
第一次知道may姐还是mmt的时侯。。那时候就觉得你好热心。。。

作为一个移民，来到一个陌生的国家，一切都要从头开始。立足生存发展，不管是打工还是做生意，大家都不容易。彼此尊重，不伤害别人，也不被别人伤害，起码做到守法。因为只有在公平健康的社会环境中，我们才能更好地在第二故乡落地生根。

每个人都需要帮助。在我打官司的三年多时间，我得到了很多人的帮助，包括skykiwi的网友。真心感谢他们。

作者: DDDkkk    时间: 2016-12-22 14:38:31

本帖最后由 DDDkkk 于 2016-12-22 14:40 编辑
我选择新西兰 发表于 2016-12-22 10:43
作为一个移民，来到一个陌生的国家，一切都要从头开始。立足生存发展，不管是打工还是做生意，大家都不容 ...

我也是自学了Defamation law。50多页全都一字不落的理解了。

曾经遇到了个不懂装懂的黑心雇主，句句说我诽谤，结果他连诽谤怎么定义的都不知道，我收集了一段时间证据之后，终于让我抓到了对方诽谤我的证据，结果对方最后乖乖的求饶了。
作者: DDDkkk    时间: 2016-12-22 14:43:06

我选择新西兰 发表于 2016-12-21 18:00
在我看来，过程和结果都重要。

不是很理解你的发言，请赐教。

其实我很理解你，并不是打赢官司要得到点什么，有时候就是气不过，就要斗争到底。利益到后来真的一点不在乎。
作者: 我选择新西兰    时间: 2016-12-22 14:50:22

DDDkkk 发表于 2016-12-22 13:38
我也是自学了Defamation law。50多页全都一字不落的理解了。

曾经遇到了个不懂装懂的黑心雇主，句句说我 ...

学习的过程就是成长的历程，付出努力当然会辛苦，但之后的收获会弥补辛劳。回过头再看过程，根本不觉得辛苦了。
作者: 我选择新西兰    时间: 2016-12-22 14:54:09

了解些有关诽谤的法律知识，在网络媒体发达的今天，很重要。

推荐链接： http://defamationupdate.co.nz/2016   
作者: Clark1129    时间: 2016-12-23 00:02:31

你倒是别老谈感想，说说具体经过啊
作者: nzrover    时间: 2016-12-23 07:19:46

恭喜你结束了这旷日持久的官司。在我看来对方也达到了自我炒作的目的。只是官司耗费的时间太久。这份判决要是早两年就好了。感觉还是好人吃亏！
作者: skywindcn    时间: 2016-12-23 09:12:24

看半天还是不明白对方怎么觉得你诽谤他了。

有没有原帖的记录，中文的，发上来一些啊？
作者: DisconnectHack    时间: 2016-12-23 09:24:15

哪里可以找到武夫跟阿姨的八卦？
作者: 我选择新西兰    时间: 2016-12-23 11:26:09

skywindcn 发表于 2016-12-23 08:12
看半天还是不明白对方怎么觉得你诽谤他了。

有没有原帖的记录，中文的，发上来一些啊？ ...

帖子早就被删除了。

我原来的账号也没有了，莫名其妙地被删号， 连通知都没有。

原来的账号是“选择新西兰”， 我现在的账号是“我选择新西兰”。



作者: skywindcn    时间: 2016-12-23 11:43:42

我选择新西兰 发表于 2016-12-23 11:26
帖子早就被删除了。

我原来的账号也没有了，莫名其妙地被删号， 连通知都没有。

说几句简介也行啊，咋回事
作者: 我选择新西兰    时间: 2016-12-23 12:21:28

Clark1129 发表于 2016-12-22 23:02
你倒是别老谈感想，说说具体经过啊

2013年三月底，论坛帖子风波， 老网友都知道的，很多网友也参与了讨论。

2013年四月14日，Sunday Star Times 发表了一篇文章，题目是”Businessman backs illegal wages for immigrants". 文章中引用了采访我和Easter Wu 的采访记录，就最低工资问题我们发表了截然不同的看法。

2013年4月18日，新西兰的英文杂志Truth发表文章，题目是”NUKE‘EM“， 涉及Easter Wu的帖子和由此引发的社会评论。

2013年4月20日， 新西兰联合报发表毛芃的采访文章，题目是“最低工资标准讨论各持一词” ，采访了Easter Wu 和我。

213年四月至六月， SKYKIW的FML论坛一直很火爆， 这种情况一直持续要六月份，期间还有和”非常勿扰“相关的讨论，但我的参与只限于和”微波炉“ 还有”最低工资“有关的讨论。

2013年7月12日，Statement of Claim。

2013年八月初，诽谤案的被告陆续接到起诉书，我收到起诉书的具体日期不记得了，反正是在八月份。

2013年至2014年， 原告和被告之间的interlocutory application 的申请和审理。

2014年十一月，法庭原定开庭审理被推迟。

原告对第三第五被告撤诉， 第二被告不会出庭，第四被告因为清盘也不会参与审理。












作者: ling6264    时间: 2016-12-23 12:46:44

呵呵呵呵呵呵呵呵
作者: masterq    时间: 2016-12-23 18:24:26

我选择新西兰 发表于 2016-12-23 12:21
2013年三月底，论坛帖子风波， 老网友都知道的，很多网友也参与了讨论。

2013年四月14日，Sunday Star T ...

我想請問下，以前FML的版主熊貓00001是第几被告?有沒有收到律屍信?結果怎樣?以前sky不許討論武夫，現在結案陳詞，有了結果,應該可以提及了吧?





http://bbs.skykiwi.com/forum.php?mod=viewthread&tid=2069551
作者: 我选择新西兰    时间: 2016-12-23 19:33:35

masterq 发表于 2016-12-23 17:24
我想請問下，以前FML的版主熊貓00001是第几被告?有沒有收到律屍信?結果怎樣?以前sky不許討論武夫，現在結 ...

熊猫不是此案被告。今年开庭审理时，我是事实上的唯一被告。

我的证词中提到熊猫是版主，曾经给原告的ID禁言。原告否认熊猫是版主。

为了证明我的证词的真实性，我曾经请网友帮忙找熊猫是版主的证据。后来法官采纳了我的证据。

以上是本案唯一涉及熊猫版主的部分。
作者: Clark1129    时间: 2016-12-23 19:48:11

本帖最后由 Clark1129 于 2016-12-23 19:49 编辑
我选择新西兰 发表于 2016-12-23 12:21
2013年三月底，论坛帖子风波， 老网友都知道的，很多网友也参与了讨论。

2013年四月14日，Sunday Star T ...

清盘是怎么回事，还有几个被告啊，玩的是多重射击？
作者: Clark1129    时间: 2016-12-23 19:51:05

masterq 发表于 2016-12-23 18:24
我想請問下，以前FML的版主熊貓00001是第几被告?有沒有收到律屍信?結果怎樣?以前sky不許討論武夫，現在結 ...

某人曾经和我的经典对白：

他说我是无业游民

我说瞎扯我有工作

他说那把你工资单发来

我说你算老几凭什么发

他说你不发就证明你是无业游民

----照他告别人的逻辑，我是不是也能告他诽谤我啊
作者: 我选择新西兰    时间: 2016-12-23 20:03:43

Clark1129 发表于 2016-12-23 18:48
清盘是怎么回事，还有几个被告啊，玩的是多重射击？

新西兰媒体曾经报道过Truth 杂志清盘。其清盘和本案无关，但因为公司已注销，所以实际上的法律程序也就终止了。
其它被告包括文章作者，杂志老板，还有当时新西兰SPCA的动物保护运动的著名人士Bob Kerridge.


作者: 我选择新西兰    时间: 2016-12-23 20:05:04

判决书里都有介绍。
作者: masterq    时间: 2016-12-23 20:32:19

Clark1129 发表于 2016-12-23 19:51
某人曾经和我的经典对白：

他说我是无业游民

做賊喊賊,他誹謗的人還少嗎?他還說三月是骨灰級的輪子呢~~

作者: 匿名    时间: 2016-12-23 21:06:35

本帖最后由 匿名 于 2016-12-23 21:34 编辑

相关案子，仅供参考。看来找的是大名鼎鼎 (choumingzhaozhu)的Deliu大律师呢。。。怪不得是这样的结果

May姨的案子请直达79

Wu v Moncur
JUDGMENT OF WILLIAMS J
Williams J
Introduction
[1]        The plaintiff sues the Truth Weekender newspaper (currently in liquidation) and a number of other individuals associated either with that newspaper or the stories the subject of current complaint.

[2]        The plaintiff claims to have been defamed by comments published on four separate occasions in April and May 2013. Two of the stories were contained in the company's hard copy newspaper editions of 18-24 April 2013 and 24 April-1 May 2013. Two further stories were published on the Truth's website on 24 May 2013 and 1 May 2013. The details of the publications need not detain us. I must for present purposes assume that the comments complained of were indeed defamatory.

[3]        There is, as I understand it, an application for leave to proceed against the Fourth Defendant (that defendant being in liquidation as I have said), but I will not be dealing with that. The application I must address is that of the Third Defendant, Dermott Malley, for summary judgment against the plaintiff.

[4]        Mr Malley was a director of the Truth Weekender at the time of the publications in question. He argues that the plaintiff's claim cannot succeed, should be struck out, and the applicant removed from the proceedings.

[5]        The case for the applicant is that:
(a)        he had no personal or active involvement with the publication complained of; and
(b)        his directorship of the company cannot alone render him liable.

[6]        HCR 12.2(2) provides that:
“The Court may give summary judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff's statement of claim can succeed.”


[7]        The principles applicable to a defendant's summary judgment application are well understood and not in dispute here. The summary judgment procedure mandates a “robust and realistic judicial attitude when that is called for by the particular facts of the case.” [1] But I must be satisfied that the plaintiff cannot succeed because the defendant has a clear answer which cannot be contradicted and which amounts to a complete defence. [2] As the Privy Council noted in Jones v Attorney-General, the test for summary judgment is an exacting one since it is a serious step to prevent a plaintiff from bringing his or her claim to trial. [3] The claim must be clearly hopeless.

[8]        Mr Grindle relied essentially on two New Zealand cases in support of his application: the first by analogy and the second more directly on point but less fully reasoned. Wishart v Murray related to allegedly defamatory statements being made by contributors to the Facebook page of the defendant Murray. [4] At issue was the extent of liability (if any) that might attach to him as the host of such statements. It is unnecessary to rehearse the extensive Australasian, British and American jurisprudence traversed by Courtney J in that judgment because, with respect, the Judge concisely summarised and synthesised the conflicting lines of authority so well in her judgment.

[9]        The long and short of it is that hosts of Facebook pages will be regarded as publishers of the postings of others if:
(a)        they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that allow an inference that the host is taking responsibility for it; and
(b)        they do not know of the defamatory posting but ought, in all of the circumstances of the case, to know that postings are being made that are likely to be defamatory.


[10]        Perhaps another way of putting the test is to ask whether the circumstances of the case are such that a reasonable Facebook host ought properly to have been moved to check content and remove defamatory postings.

[11]        As I have said, Mr Grindle argues that this decision applies by analogy to the case of Mr Malley because he did not know of the statements published and the circumstances were not such that he ought to have known.

[12]        The second case is the Court of Appeal decision in Kim v Lee. [5] In that case the underlying facts are similar to those in this proceeding. The appellant was a director of a Korean language newspaper though he claimed not to have any active role at all in its operation. The newspaper was being sued in defamation. The appellant was found liable at trial though he took no part in it, and (he said) was not aware that the trial had been held and he found liable, until served with the judgment. The Court of Appeal ordered a retrial.

作者: 匿名    时间: 2016-12-23 21:06:56

[13]        That background is not as important as the Court of Appeal's brief discussion of possible defences that might have been available to the appellant at trial. The Court considered that Mr Kim had a possible defence that he took no part in the impugned publication, and had no knowledge of the statements in question. [6] I will come back to these dicta below.

[14]        For the plaintiff respondent, Mr Deliu's argument can be reduced to a simple proposition. It is that if the liability of a director depends on the extent of the director's involvement in the impugned publication, or the circumstances within which (turning this time to Wishart v Murray), the law ought to impose an obligation on a non-active director to take the initiative, then that will always be a question of fact and degree. He argued questions of this nature are never appropriate for summary judgment.

[15]        Before turning to my analysis, it is necessary to briefly summarise the evidence of the Third Defendant, Dermott Malley, upon which Mr Grindle bases his contention that the test for summary judgment is met, and that of Wu Yi upon which Mr Deliu argued his opposition.

[16]        Mr Malley deposed that he had been involved as Executor Director of the newspaper until about May 2012. He became a director on 12 March 2013 but was not an employee at the time, nor paid in any way. In April 2011, Mr Malley moved to Whangarei to grow kiwifruit. Between April and May (the relevant time in terms of the publication of the allegedly defamatory statements), Mr Malley says he was harvesting kiwifruit. He had 27 employees and contractors to manage and spent little time on the day to day activities of the newspaper. He said that his focus as director was the implementation of the restructuring plan approved by shareholders in March. His work related to the planned shift from a publication underpinned by adult advertising to relaunch as a “more business friendly publication”. Such work as he did for the newspaper was, he said, “high level strategic work that had nothing to do with the day to day running of the newspaper.” He had, he said, no involvement in the editorial activity of the newspaper and knew nothing of the story before it was published. That, he said, was the job of Cameron Slater, the paper's editor.

[17]        Mr Malley said:
“I first became aware of the publication that underpins the plaintiff's claim when, on 2 May 2013, I received an email from Belinda Young, who works for the newspaper's accountants.”


[18]        He continued:
“I was not aware that the story was being run. I was not asked to give comment or opinion on the story, I knew nothing about it. I did not even read the paper over the relevant period.
I did not know that the story was being run online until I was served with these proceedings. Immediately upon receiving these proceedings I directed that the manager of the online publication remove the story and he did so.”


[19]        Mr Wu also filed an affidavit in opposition. Mr Wu said he did not believe that Mr Malley had no knowledge of and made no contribution to the defamatory statements. He referred to three matters. First, a letter from Mr Malley to Mr Wu's solicitor dated 6 May (in reply to the solicitor's letter of 30 May) in which Mr Malley wrote:
“I did take immediate action to verify the sources of our story.”


[20]        Second, he pointed out that Mr Malley's indicated that he (Malley) directed the manager of the online publication to remove the story “and he did so”. Third, on 21 November 2013, more than two months after Mr Malley's application for summary judgment, one of the subject publications was still able to be viewed online.

作者: 匿名    时间: 2016-12-23 21:07:17

[21]        Mr Deliu argued that whatever knowledge Mr Malley had at the time of publication (and that itself would be the subject of dispute at trial), the fact that steps were taken to verify the sources meant that Mr Malley had arguably adopted the statements and they were still able to be viewed online after that. Mr Deliu also argued that Mr Malley's instructions to his manager showed he did in fact engage in editorial oversight.

[22]        I agree with Mr Deliu that this is not an appropriate case for summary judgment. Both Wishart v Murray and Kim v Lee suggest some level of involvement, “taking part” [7] or failure to act after “being on notice” [8] , is required. These standards are all going to raise questions of fact, context and degree. That was the reason Mr Kim obtained his rehearing.

[23]        There are a number of areas that remain to be explored by the plaintiff not withstanding Mr Malley's affidavit. What did he mean by verification of sources? Was he adopting the stories after the event? Were they still able to be accessed online at that point? Given Mr Malley's prior very hands-on role in the newspaper, is it realistic to conclude that his kiwifruit business kept him away from editorial content? He did not hesitate to step in to direct removal once he received the proceeding. Mr Wu will not have any direct knowledge of Mr Malley's role in the business in April/May 2013. He must rely what Mr Malley says or wrote. That will make cross-examination all the more important.

[24]        The test for entitlement to summary judgment is an exacting one. I note also the decision in Read v Minister of Economic Development where it was held that the likelihood of disputes of fact and reliance on credibility made summary judgment unsuited to defamation cases. [9] That decision related to an application by the plaintiff but the principle applies also to applications by defendants. Too much in this case will depend upon a careful consideration of the facts. I do not consider the plaintiff's claim is so bereft of hope that his day in court should be denied him.

[25]        The application for summary judgment is dismissed accordingly. The plaintiff will be entitled to costs which I fix on a 2A basis.

作者: 匿名    时间: 2016-12-23 21:12:14

本帖最后由 匿名 于 2016-12-23 21:44 编辑

正经的来了筒子们。。。 中文总结直达88楼

WU v MONCUR [2016] NZHC 3017 [13 December 2016]

Introduction
[1] This is an action for defamation taken by Yi Wu, also known as Easter Wu, a
businessman and frequent contributor to a forum on an internet website, http://www.skykiwi.com, (Skykiwi), against May Moncur, another contributor to the same forum, who he claims defamed him in comments she made on the forum in response to a post under the username “Wu Fu”.
[2] Ms Moncur was also instrumental in bringing Wu Fu’s post to the attention of
the Truth newspaper, which published an article about the post that included comments from Bob Kerridge of the Auckland Society for the Prevention of Cruelty to Animals.
[3] Mr Wu’s defamation claim originally named a reporter for the Truth
newspaper as the second defendant, a director of the Truth newspaper company (the company) as the third defendant, the company itself as the fourth defendant and Mr Kerridge as the fifth defendant.
[4] The second defendant was unable to be served with the proceedings.  It is
believed that he is in Australia.  Mr Wu settled with the third and fifth defendants. The fourth defendant was liquidated and has now been struck off the Companies Register altogether.  Mr Wu recognises that no real remedy is available against the company, but nonetheless seeks a declaration against it in vindication of his reputation.
[5] Ms Moncur is, in effect, the sole remaining defendant.  Mr Wu seeks
$250,000 general damages and $7,500 punitive damages against her.  He also seeks a permanent injunction to restrain her from continuing with her defamatory comments.
Username “Wu Fu”
[6] Paragraph 1 of the statement of claim pleads that Mr Wu was a blogger on
Skykiwi under the username “Wu Fu”.  I am advised that Wu Fu was short for “Wu Fu De Mai Bi” or Wu Fu’s eyebrow pencil.  At paragraph [30] of his brief of evidence Mr Wu stated:
I was one of the veteran bloggers on Skykiwi.  I refer to document(s) exhibited as “A” in the common bundle.  I enjoyed commenting on the latest news and events.  People also liked to view and read my comments on the internet.
[7] However, in evidence before me, Mr Wu claimed that Wu Fu was not him.
When reading paragraph [30] of his brief, Mr Wu stated:
I think maybe me make a change as the “I” here is actually means the “ID”, ID was the blogger because a person, human person cannot be a real blog in the website, it must be a ID.
[8] Mr Wu compared the username “Wu Fu” to a character in a novel.  The
username was quite different to the author.  He said “[The] ID is not me, it’s as simple as that”.
[9] Mr Wu said that his company and his team organised the username, but it did
not mean it reflected himself or equalled himself.  He said he was shocked and surprised how someone could think the username was him.  His management team, staff and friends also had access to the username and any number of people could, and did, post comments as Wu Fu.
[10] Mr Wu continued with this reasoning in answering questions about previous posts under the username “Wu Fu”.  When asked whether he could recall saying in one of the postings “People complaining about [receiving] illegal [below the minimum] wages normally demonstrate two moral defects, one is greed and the other is stupidity”.  Mr Wu responded:
What I mean is that I personally didn’t break the [minimum wage] laws, but if I agree or my team agree to say the minimum wage is not so, so right, what’s the problem?
[11] Mr Wu stated it was not his personal view because that would make enemies. He repeated his assertion that the username under which such comments were made may be related to him or his team, but was not him.
[12] Mr Wu was, however, later interviewed by a reporter who published a newspaper article with Mr Wu’s photograph, under the heading “Businessman backs illegal wages for immigrants”.  Mr Wu said he made a complaint to the reporter as
the article did not properly reflect his views, but did not sue him for defamation as it was “not that serious”.
[13] Mr Wu said that the username did not express his view or represent him, continuing to distance himself from it.  At one stage he said “I post thousands of posts here with this ID.  I mean this ID post thousands of posts”.
[14] When asked about another post about falsifying documentation to get a bank loan, Mr Wu said it was a joke or black humour.  He said he was quite a good person
or his blog was quite a good blog because some degree of black humour can make
people think.
[15] If the username “Wu Fu” is not to be identified with Mr Wu, then Mr Wu’s claim that he was defamed by Ms Moncur in comments she made in the forum in response to one of the posts under the username “Wu Fu”, must fail because in her comments Ms Moncur referred not to Mr Wu, but to Wu Fu.  Mr Wu was not named and not defamed.
Website forum
[16] The evidence presented to Court discloses that Skykiwi operates an on-line community in New Zealand with over 160,000 registered members.  It attracts over 60,000 unique daily IP visits and over 700,000 daily page views.  It is apparently the
41st most popular website in New Zealand and reaches 80 per cent of the Chinese
community in New Zealand.
[17] The forum on which Wu Fu and Ms Moncur posted comments is called FML, which I am advised means “Fuck my life”.  The forum rules emphasise that it is a forum for people to express their original views and noted that “originality should be negative or controversial and should be meaningful”.
[18] In her evidence, Ms Moncur identified a number of previous posts by Wu Fu, which are relevant as background to the controversy which erupted over the post by Wu Fu and the response by Ms Moncur.  Although Ms Moncur has not obtained
translations from a qualified translator, I am satisfied that the gist of the posts are translated sufficiently accurately by Ms Moncur.
作者: 匿名    时间: 2016-12-23 21:13:11

[19] Ms Moncur says that on 17 December 2012 at 6:05 p.m. Wu Fu wrote about using false documentation in order to get a bank loan in New Zealand.  She translates the post as follows:
We need to mortgage our house to get a bank loan.  The agent said that I need to provide marital status certificate if I am over 25 years old and single, but it is trouble to get it, so he will help me get a divorce certificate.  Later he also suggested that alternatively I could try to get a certificate that my parents were divorced.
In this case I will be free of any offence.  So let them divorce.
[20] Ms Moncur says that on 19 March 2013 at 10:29 a.m. Wu Fu wrote about killing all gays to reduce the homosexual population, killing people over 65 to save retirement costs and allowing incest between parents and their children.  Ms Moncur translates the post as follows:
Rules are all made by people.
Well, lets amend the law.
All the people aged over sixty-five should be killed by poisoning, its also fine.  Retirement costs could be saved.
Let’s eliminate all the homosexuals; every generation is to be cleansed, to keep the homosexual rate low.
Incestuous relationships between father and daughter, mother and son should be allowed; it is also fine if they want to have children as it improves the harmony of a society and reduces the global population.
All the men shorter than 1.75 metres should also be killed to enhance future performances in the Olympics.
All the men taller than 1.75 metres should also be killed to save resources of the globe and change females’ aesthetics standards.
The purpose of the rule is to assist us to achieve our objective.  The circumstances are changing as well as our goal; therefore the rules must be changed accordingly.
Once the rules are changed, people will be willing to comply with them. There is nothing to be debated about in terms of civilisation and humanity.
Rules are deemed humane if they are made for the benefit of the majority of people (within a society), including exchanging children for cannibal
purposes during famines.  It is cruel not allowing the people with closest relationships to marry each other, for instance between sister and brother, father and daughter, mother and son.  Is it cruel?  Yes, it is cruel.  Is it humane?  Yes it is humane.  Do you feel uncomfortable with it?  No need. The rules are formed by society.
[21] These posts were controversial and lead to a number of disapproving posts on the forum by other contributors.  Ms Moncur also produced a copy of what she says is a post by the forum administrator on 6 May 2012, suspending Wu Fu for his inappropriate and offensive on-line comments.  Mr Wu denied that the post was by the administrator.  The post was, however, made by a contributor with the ID number 00001, which seems to suggest the post had some official status.
Allegedly defamatory comments
[22] The allegedly defamatory comments Ms Moncur posted on the forum on 30 March 2013 at 10:51 a.m. were:
If Wu Fu does not consider himself a madman, he should apologise for remarks about microwaving pets and children
If someone is a mental patient, commonly called a madman, then they are
more likely unable to take legal or moral responsibilities for their own
behaviour.
But if this is a normal person with abilities of behaviour, the remarks about microwaving kittens, puppies and children are low grade and indecent acts without public morality and without conscience, and the person concerned should apologise to the public.
New Zealand is a country with freedom of expression, but this freedom is not without moral and legal restraint.
Forgivable if this is a madman.
Otherwise please apologise.
[23] Ms Moncur did not name Mr Wu, but made reference to Wu Fu, which Mr Wu says is not him.
[24] Wu Fu responded three minutes later, at 10:54 a.m:
Don’t talk randomly anymore.  What I referred to was a non-heating microwave.  Is killing people in films all real?  Is sawing people in magic performance all real?
Such sub-standard false accusation and mud throwing.  Weak.
[25] Ms Moncur also e-mailed a link to the post to a well-known blogger, Cameron Slater, who operates his blog under the name Whale Oil.  In the e-mail she said:
Hello Whale Oil
Please refer to the attachment and a link below.  A Chinese man who works for WTV & Chinese Radio put up a thread on the most well-known Chinese social network site, SKYKIWI, suggesting that people microwave their puppy or kitten, or even a child.  Below is a translation of what he wrote. His name is Easter Wu and he is a senior employee of a Chinese media company and a very high profile on this website.
He wrote:
“Put a puppy or kitten into a second hand microwave for one hour.
(if you do so and put the video on Youtube) The video will be madly
popular and the puppy or the kitten will be famous in an earner name as never dying web-cat”.
The cost of buying the microwave will be fully recovered.
If you put a child into the microwave, the whole universe will be shocked and the child will gain a name as a little superman.
This idea of mine will be worth ten million dollars and you can take it now for free.
[Link provided]
Above is a translation of Mr Wu’s words on the website.
May
作者: 匿名    时间: 2016-12-23 21:13:30

[26] What Ms Moncur did not know was that the blogger, Mr Slater, was at that time the editor of the Truth newspaper.  The Truth newspaper then published an
article about the post two weeks later.  The article included two photographs – one of
Mr Wu being spoken to by a uniformed police officer, with the caption “History:  In trouble with the law before”.  The second photograph showed a kitten behind the door of a microwave with a person’s hand about to push the on button.  The article read:
A HIGH-PROFILE member of the Chinese community has ignited a firestorm with startling calls for Kiwis to nuke their cats, dogs and kids in the microwave – and then post the videos online.
Just days after promoting illegal wage practices for migrant workers, former World TV and Chinese Radio media executive Easter Wu is courting controversy again – but this time it’s with potentially deadly consequences.
Today in Truth exclusive we can reveal how Wu has been using his online
profile to promote behaviour that in many countries would attract the death penalty.
In a post on the popular Chinese social networking site Skykiwi, Wu wrote:
Put a puppy or kitten into a second-hand microwave for one hour. If you do so and put the video on YouTube the video will be madly popular, and the puppy or the kitten will be famous and earn a name as never dying web cat.  The cost of buying the microwave will be fully recovered.
But it gets worse.
Wu – who until recently had a weekly slot on Chinese radio to promote his
extreme views – then suggests parents who really want to make a name for
themselves and “shock the universe” should try cooking a baby in the
microwave.
He said if the baby survived not only would it be heralded as “a little superman”, but it would also have the potential to make millions of dollars.
Last year a 30-year-old Asian woman narrowly avoided the death penalty after she was convicted of killing her seven-week-old daughter in the microwave.
Ka Yang claimed to be in the midst of a seizure when she put her baby in the microwave and cooked it for two minutes.  She was sentenced to life imprisonment without the possibility of parole.
Given the potential for catastrophe should someone take up Wu’s challenge, Truth has brought the matter to the attention of police.
Truth has also spoken to Plunket and the RSPCA, who say they cannot believe someone would be promoting such disturbing practices.
SPCA head Bob Kerridge told Truth he was absolutely astounded by the remarks.
He said it was clear from the comments Wu was “one sick individual” who should be locked up “out of harm’s reach”.
There was enough cruelty to animals as it was without idiots like Easter Wu promoting such horrific practices, Kerridge said.
You don’t even joke about this sort of thing.  I don’t think the
comments are tongue in cheek.  I think they are in extremely bad
taste and that this chap is sick in the mind.
Wu – who now runs a telecommunications business and an exporting company employing around 10 people – could not be reached for comment.
A spokesman for his former employer, World TV and Chinese Radio, did not want to comment on the remarks or the reasons Wu had left the company two months ago.
Asked if he was “a bit crazy”, the spokesperson said she would prefer not to comment.
This week Wu made headlines for suggesting employers had the right to pay staff only what they thought they were worth – even if that was below the minimum wage.
How much you are worth is how much you get.  You got an $8 skill, I pay you $8, he said.
The comments were lambasted by AUT business school researcher Danae Anderson, who claimed Wu’s theories promoted a “low wage, low productivity economy”.
[27] After having viewed the article in the Truth newspaper on-line, Ms Moncur cut and pasted it and posted it on the forum with the heading “Wu Fu has news on newspaper again, and on the front page as well, with photos”, with the comment that this time it was not the economist’s views that were controversial, but it was a moral and ethical issue.
[28] Ms Moncur’s allegedly defamatory comments on the forum and the Truth newspaper article had their genesis in a post by Wu Fu on the forum.  Mr Wu does
not, however, refer to the original Wu Fu post in the statement of claim and did not
provide the Court with a certified translation of it.  Nor did he refer to it in his brief of evidence, except to say that he had never called on anyone to microwave children or animals.  He specifically stated that he has never said to “put a puppy or kitten into a second-hand microwave for one hour.  If you do and put the video on YouTube the video will be madly popular, and the puppy or the kitten will be famous and earn a name as never dying web cat.  The cost of buying the microwave will be fully recovered”.  Mr Wu says that he has never advocated harming any sentient beings for fame, publicity, profit or other material gain.
[29] Ms Moncur’s translation of the original Wu Fu post on 29 March 2013 at 7:06 p.m. is as follows:
作者: 匿名    时间: 2016-12-23 21:13:49

Put a puppy or kitten into a second-hand microwave for one hour.  If you do so and put the video on YouTube the video will be madly popular, and the puppy or the kitten will be famous and earn a name as never dying web cat. The cost of buying the microwave will be fully recovered.
If you put a child into the microwave, the whole universe will be shocked and the child will gain a name as a little superman.
This is my innovative, pioneering idea which is worth ten million dollars. Provide it to anybody free of cost.
[30] Mr Wu takes issue with the translation provided by Ms Moncur on the basis that the words “non-functioning” were included in the original post in the Chinese language.  Whether or not Wu Fu’s post contained the words “non-functioning”, it immediately drew widespread disapproval.  Comments made by other forum users included:
Harmful suggestion.
You are sick again.
If you are sick, get treatment as soon as possible otherwise the condition will get worse.
Speechless on this posting.
Well you may get into trouble if the police become aware of it.
[31] Wu Fu then replied to these comments:
Where is the problem?
[32] Another contributor then replied:
Cats and dogs are not allowed to be tortured, let alone about torturing babies. Turning in a microwave (even if non-functioning) or in a washing machine, is very dangerous.  The Police will investigate the matter.
[33] Other comments were:
Are you at the final stage of your disease?  You should be given euthanasia.
Wu Fu, are you taking the micky here?  I reckon that you have been wired in recent days by constantly blogging some bizarre and unthinkable topics.
[34] Wu Fu replied to this last comment, saying:
I am not teasing anyone.  This is a pioneering creative idea.  I want to share it with people who want to put it into action.
[35] Another contributor responded:
Can you put yourself in rotation for an hour?  You can’t do this to kittens and puppies let alone doing this to babies.
[36] Other contributors continued to criticise the post.  Comments were posted such as:
Get this blogger (Mr Wu) microwaved straightaway.  Get rid of one evil for the people.
How can this kind of bloody comment be posted?
You seemed to have become insane.  Take some medicine.  I can buy it for you if you haven’t got it.
[37] Mr Wu alleges that Ms Moncur’s post on the forum on 30 March 2013 at 10:15 a.m. and her posting of the Truth newspaper article on the forum on 18 April 2013 were defamatory of him because she said he:
(a) Was a maniac;
(b) Was a psychiatric patient;
(c) Could not be trusted to act legally or ethically;
(d) Was immoral;
(e) Was scum;
(f) Was a culprit;
(g) Had breached ethical norms or the law;
(h) Was crazy; and
(i) Should apologise for advocating the microwaving of kittens, puppies
and babies.
作者: 匿名    时间: 2016-12-23 21:14:04

[38] More extensive grounds were pleaded by Mr Wu as to why the Truth newspaper article which Ms Moncur had posted on the forum was defamatory of him.
Ms Moncur’s post of 30 March 2013
[39] If Mr Wu’s denial that he is to be identified as Wu Fu is to be accepted, Ms Moncur’s initial post of 30 March 2013 cannot be defamatory of Mr Wu because it made no mention of him and could not have been taken as referring to him.
[40] I am, however, of the opinion that Mr Wu is to be identified with the username “Wu Fu”.  The evidence satisfies me that the public viewed Mr Wu as the person or principal person behind the username “Wu Fu”.  This accords with the pleading in paragraph 1 of the statement of claim in which Mr Wu alleges he is a blogger on Skykiwi under the username “Wu Fu”.  Ms Moncur admits the truth of the pleading in paragraph 1 of her amended statement of defence.
[41] As to whether Ms Moncur’s post of 30 March 2013 is defamatory of Mr Wu, I am of the view that the nature of the forum, entitled “Fuck My Life”, on which Ms Moncur posted her comments in response to Wu Fu’s original post has an important bearing on the issue of whether the words used had a defamatory meaning.
[42] As noted by Matthew Collins in The Law of Defamation and the Internet:1
As a general rule, it seems likely that the sensible reader will spend more time on, and analyse more closely, an authoritative web site than a sensational one.  The same can probably be said of special-purpose bulletin boards and forums used exclusively by persons sharing some common interest, as opposed to general-purpose bulletin boards and forums with a reputation for trading in gossip and rumour.  The extent to which the nature of the publication affects the meaning borne by the words used is a question of fact.
[43] In that regard, I also note the comments of Eady J in Smith v ADVFN Plc:2
[Bulletin board postages] are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.
[44] I am of the view that contributors to this forum were generally expected to express strong opinions in a manner that could be forthright and even rude or
1  Matthew Collins The Law of Defamation and the Internet (3rd ed, Oxford University Press,
Oxford, 2014) at [8.16].
2  Smith v ADVFN Plc [2008] EWHC 1797 (QB) at [14].
confrontational.  Those who participated in the forum were aware of its nature and did not shy away from engaging in heated on-line discussions.  Hyperbole and sarcasm also appear to have had a part to play in such discussions.
[45] When looked at in that context, I am of the view that Ms Moncur’s post of 30 March 2013 was not defamatory of Mr Wu.  Ms Moncur did not directly accuse Mr Wu of suffering from any mental illness.  She suggested that those suffering from mental illness were less likely to be able to take legal or moral responsibility for their actions and called upon Wu Fu to apologise for his comments if he was not suffering from any mental illness.  If he was suffering from a mental illness then, she said, his comments would be forgivable.  Ms Moncur also said that if Wu Fu was a normal
person with control over his actions then his remarks about microwaving kittens,
puppies and children were “low grade and indecent acts without public morality and without conscience”.
[46] These words are an English translation provided by a qualified interpreter instructed by Mr Wu and do not, in my view, carry a defamatory meaning as alleged, such as Mr Wu could not be trusted to act legally or ethically and was scum or a culprit.  As translated, Ms Moncur’s words were directed at Wu Fu’s remarks and not directly at Mr Wu’s personal character.
[47] Other contributors to the forum accused Mr Wu of being sick or at potential risk of a Police investigation.  One suggested that Mr Wu be put in a microwave himself.  Another suggested Mr Wu should be euthanised.  None of these contributors have been sued for defamation by Mr Wu.  Such comments were obviously part of the rough and tumble of the forum.
[48] If I am wrong in that regard and Ms Moncur’s post of 30 March 2013 was capable of being defamatory of Mr Wu, then I am of the view that Ms Moncur has a defence of honest opinion.  Having heard her give evidence and having seen her
cross-examined rigorously over a considerable period of time, I have no doubt that
the opinion she expressed in her post was her genuine opinion.  She is both a mother and a pet owner.  She has strong maternal instincts and is upset by any animal abuse. It was her genuinely held opinion that only someone who was sick would, or could,
suggest putting animals and/or babies in a microwave, whether functioning or not. In her view, Wu Fu’s post was unacceptable.
[49] The defence of honest opinion, of course, applies only to the expression of opinion and not to assertions of fact.  Whether the words complained of are to be reasonably understood as an opinion or as a statement of fact must depend on the context.  In my view, the entirety of Ms Moncur’s post was opinion.  It was also an opinion that had a clear factual basis.  Evidently it followed and was based on Wu Fu’s post to which it was clearly written in reply.  In terms of its substance, even
if the cooking function of a microwave had been disabled, putting an animal or a
baby into a confined space such as a microwave for an hour would have to be extremely disorientating and distressing for an animal or baby.  Posting it on YouTube for so-called entertainment would tend to normalise such unacceptable treatment and may cause or encourage others to harm animals or babies.
作者: 匿名    时间: 2016-12-23 21:14:17

Ms Moncur’s posting of the Truth newspaper article
[50] The Truth newspaper article was much more extensive than Ms Moncur’s initial post on 30 March 2013.  It referred to an earlier post of Wu Fu with comment on that by an AUT business school researcher.  It accused Mr Wu of advocating actions with potentially deadly consequences and referred to the case of a woman who had been jailed for life without parole for killing her baby daughter by putting her in a microwave and turning it on.  It also included comment from Mr Kerridge
who called Mr Wu a sick individual who should be locked up out of harms reach.
The post was also quite sensationalist with the headline “Nuke ‘Em”.
[51] Mr Wu has not proceeded against or has reached a settlement with all defendants, except Ms Moncur and, accordingly, the case did not focus on the allegedly defamatory comments in the Truth newspaper article.  I decline to make a
declaration against the company which has been struck off the Companies Register,
not only because of the lack of utility, but also because I did not hear detailed argument on the article.
[52] Whatever the merits of Mr Wu’s claim that the Truth article was defamatory of him, I am of the view that Ms Moncur also had a defence of honest opinion to
Mr Wu’s claim of defamation by her republication of the Truth article by posting it on the forum.
[53] Section 10(2)(b) of the Defamation Act 1992 provides that in any proceedings for defamation in respect of matters that includes an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless the defendant proves that:
(i) The opinion, in its context and in the circumstances of the publication
of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and
(ii) The defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the
opinion.
[54] I am of the view that both requirements are met.  The Truth article did not purport to be Ms Moncur’s opinion.  I also have no doubt that Ms Moncur honestly believed that the statements made in the Truth article were genuine opinions expressed either by the reporter or by Mr Kerridge.  Mr Kerridge, in particular, was a well known and respected animal welfare advocate and Ms Moncur would have had no doubt as to the strength and sincerity of his beliefs.  Ms Moncur also referred to the long history of the Truth newspaper in holding people accountable for actions considered offensive to the average citizen.
[55] Ms Moncur says that she posted the Truth article on the forum in order to continue debate on the matter and to raise public awareness on issues concerning basic social values.  Sharing material found online is commonplace.  Ms Moncur has established to my satisfaction that she had no reasonable cause to believe that the opinions expressed in the Truth article were not genuine.
作者: 匿名    时间: 2016-12-23 21:14:30

Conclusion
[56] The defamation claim by Mr Wu against Ms Moncur is dismissed on the basis that her original post on 30 March 2013 was not defamatory.  Ms Moncur has
also established the defence of honest opinion to my satisfaction both in respect of her original post on 30 March 2013 and the post of the Truth article on 18 April
2013.
[57] Ms Moncur was not represented in the High Court hearing so I am unaware of her entitlement to costs.  If costs remain an issue, memoranda by both parties should be filed by 31 January 2017.
作者: masterq    时间: 2016-12-23 21:14:46

作者: masterq    时间: 2016-12-23 21:23:36

$250,000 general damages and $7,500 punitive damages against her.  He also seeks a permanent injunction to restrain her from continuing with her defamatory comments.
Username “Wu Fu”

作者: 匿名    时间: 2016-12-23 21:42:55

本帖最后由 匿名 于 2016-12-23 21:46 编辑

哈哈哈哈哈。。。。。太搞笑了好嘛。。。。


雷锋做到底。

武夫之前说老爸跟女儿结婚也可以，拿微波炉烧小孩做网红也可以

MAY姨小报告告诉了WHALE OIL那个B，人家TRUTH报纸马上登了 “知名华商居然要做这种事？？！！”，警察也去找武义谈话了。

武义（ID背后真人）告MAY姨诽谤

武义 说 武夫 是他团队的 ID，不代表他个人意见

法官说既然May姨回复提到的是 武夫这个ID，那何来对武义的诽谤

MAY姨说我真以为武夫是脑残，法官说她真信了，所以她说的是自己真实的感想，不能说是诽谤

而且FML好多人都评论了说武夫脑残，武夫也没去告他们就去告了MAY姨，法官看明白了FML评论都这B性，所以MAY姨说的不能算太过

所以MAY姨赢了。。。
作者: 直面异议    时间: 2016-12-26 16:20:05

匿名者 发表于 2016-12-23 21:42
哈哈哈哈哈。。。。。太搞笑了好嘛。。。。

‘拿微波炉烧小孩做网红也可以’

如果那个英文是你贴的，你就是在睁眼说瞎话。
作者: 匿名    时间: 2016-12-26 19:18:53

真不容易，一个论坛老友支持你
作者: 血染红领巾    时间: 2016-12-26 19:30:30

我也要占座啊



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