YOUNG v XIAO [2023] NZHC 3583

YOUNG v XIAO [2023] NZHC 3583 [8 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-2170[2023] NZHC 3583IN THE MATTER of a claim under the Defamation Act 1992BETWEEN PAUL CHUNG CHE YOUNGPlaintiffAND MORGAN ZHIHONG XIAODefendantHearing: On the papersAppearances: K J Crossland and B Bycroft for the PlaintiffD Z Q Tan for the DefendantJudgment: 8 December 2023JUDGMENT OF ASSOCIATE JUDGE SUSSOCKThis judgment was delivered by me on 8 December 2023 at 4 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Shieff Angland, AucklandACS Lawyers, AucklandIntroduction[1] The plaintiff, Paul Chung Che Young, filed these defamation proceedings inNovember 2022 in relation to multiple online posts by the defendant, Morgan ZhihongXiao, 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 thedelayed application for leave. The memorandum records however that the plaintiffanticipates the Court will consider the issues of delay to the trial being set down andthe material extension of trial duration as part of its assessment on whether to grantleave or not.[4] Despite no formal opposition, the Court is still required to determine whetherit is appropriate to grant leave.Developments[5] Since the application for leave to issue third party notices was filed in respectof the six parties above, third party notices and statements of claim in respect of fouradditional 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 intendedthird parties.[7] A memorandum was filed on behalf of the plaintiff dated 11 October 2023advising the Court that the plaintiff had been served with third party notices andstatements 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 beensought have now filed statements of defence.[9] In the defendant's submissions filed in respect of leave for the original sixintended third parties, the defendant submits that leave is in fact not required becausethe third party notices were served within 10 working days of the filing of thestatement of defence to the second amended statement of claim. This may explain whythe defendant has now filed and served all ten third party notices and statements ofclaim. However in circumstances where counsel for the defendant was aware thedefendant's application for leave to issue third party notices against the original groupof six third parties was still before the Court for determination, counsel should havefiled a memorandum together with the ten third party notices explaining this for theCourt and for the parties.[10] I briefly outline the plaintiff's claim before first considering whether leave isrequired.Nature of claim and defence[11] The plaintiff, Mr Young, by his second amended statement of claim dated 26July 2023, is bringing a claim in defamation currently in relation to 16 online posts byMr Xiao between 10 August 2021 and 6 July 2023.[12] The original statement of claim was filed on 9 November 2022 and only relatedto seven online posts. Since the proceedings were filed however the defendant hascontinued to publish allegedly defamatory posts about the plaintiff online. The secondamended claim therefore now relates to 16 posts. Leave has been reserved for theplaintiff to file a further amended statement of claim 60 working days in advance ofthe substantive hearing as a way of ensuring a fair and efficient process for includingall posts in the claim. A substantive hearing has not yet been scheduled as the outcomeof this application for leave will impact on the likely duration of the substantivehearing.[13] Mr Young alleges that the statements contained in the online posts had variousmeanings (or intended meanings) including that the plaintiff:(a) is a sympathiser and supporter of Taiwanese independence from thePeople's Republic of China and as such betrays New Zealand;(b) supports Taiwan's entry into the Comprehensive and ProgressiveAgreement for Trans-Pacific Partnership (CPTPP) which in turn bringsdiplomatic and economic risks to New Zealand;(c) is dishonest, deceptive, untrustworthy and incompetent;(d) is a traitor to New Zealand and a risk to its foreign policy;(e) is disrespectful and disparaging towards the Chinese community;(f) is a bully who misuses his influence and position;(g) is mentally unstable;(h) is delusional and has persecutory delusions;(i) is duplicitous and an unworthy political candidate;(j) is a liar and a cheat;(k) is vindictive and a lawbreaker who is misusing the court process;(l) is a puppet of Taiwan;(m) is corrupt;(n) betrays the Chinese community and New Zealand; and(o) has been rejected by his own political party and should be shunned by"right thinking" people.[14] Mr Young pleads that the posts are defamatory because the statements:(a) are untrue;(b) tend to lower the plaintiff in the estimation of the Chinese communitygenerally and particularly in the Howick Ward;(c) are made without justification and have injured the reputation of theplaintiff, in particular in the eyes of Chinese people in New Zealand;and(d) have exposed the plaintiff to hatred, contempt or ridicule and tend tomake others shun and avoid him.[15] The statement of claim includes allegations that some of the posts were madewith the malicious intent of ruining the plaintiff's chances of re-election to theAuckland City Council.[16] Mr Young also says the statements made caused him tremendous physical andpsychological pressure, troubles in his daily life, and serious damage to his reputation,election and business.[17] Mr Xiao by his statement of defence, dated 11 August 2023, denies that thestatements in the online posts had or were intended to have the meanings atparagraph [13] above, save for some exceptions expressly set out by Mr Xiao.[18] Mr Xiao further denies that the meanings are defamatory or that the publicationof the online posts caused Mr Young to suffer reputational loss, mental hurt, injuriesto his feelings and ongoing anxiety, or were made with the malicious intent of ruiningthe plaintiff's chances of re-election to the Auckland City Council and denies that anyremedies are appropriate. In addition, Mr Xiao pleads affirmative defences of truth,honest opinion, qualified privilege and responsible public interest communication.Is leave required for the third party notices?[19] Counsel for the defendant submits that leave is not required on the basis thatr 4.4(2) of the High Court Rules 2016 requires a third party notice to be issued within10 working days of the expiry of the time for filing the defendant's statement ofdefence or, if later, with leave. The defendant submits that each time a defendant filesa statement of defence to an amended statement of claim, the defendant has 10 workingdays to file any third party claim. In this case, the time for filing Mr Xiao's statementof defence to the second amended statement of claim was directed in my minute of 10August 2023 as being 11 August 2023. The defendant submits therefore that pursuantto r 4.4(2) he was entitled to issue third party notices without the court's leave until25 August 2023.[20] The defendant relies on Davey v Baker where the defendant filed and servedthird party notices within 10 working days of filing a statement of defence to theplaintiffs' second amended statement of claim.1 The defendant says no issue was takenby the Court or the parties to the proceeding in relation to the third party notices beingissued without leave of the Court.[21] However, in Davey v Baker, leave had been granted for the filing of the secondamended statement of claim to include a cause of action based on rectification of aneasement. Within 10 working days of the statement of defence being filed, thedefendant filed and served third party notices against the party who owned thedefendant's property at the time the easement was created and against the surveyorwho acted in relation to the creation of the easement. The need to join the third partiestherefore arose as a result of the amendment of the statement of claim. Here, theclaims made against the intended third parties relate to allegations that were includedin the original statement of claim. Furthermore, the question of whether the defendantrequired leave does not appear to have been raised in the proceeding. The plaintiffsinstead applied to set aside the third party notices pursuant to r 4.16(2).[22] Consistent with this, Sim's Court Practice states:2Where an amended statement of claim is filed raising a third party issue forthe first time, the defendant can issue a third party notice as of right within 10working days of the time allowed (by r 7.77) for filing a defence.[23] Here, the second amended statement of claim has only been filed as a result offurther allegedly defamatory posts being made by the defendant that do not involvethe intended third parties. The third party claims relate to matters that were includedin the original claim.[24] In order to protect the position of the plaintiff in terms of ongoing posts,directions have been made allowing a further amended statement of claim to be filed60 working days prior to the hearing. This is so the plaintiff is not put to the expenseof constantly amending his pleading while ensuring the plaintiff has an opportunity toinclude all allegedly defamatory posts in his claim. I note that the plaintiff has chosennot to bring an application for interim orders.1 Davey v Baker [2014] NZHC 1574 at [2].2 Matthew Casey and others Sim's Court Practice (online ed, LexisNexis) at [HCR4.4.4].[25] In my view it would be inconsistent with the objective of the High Court Rules,to ensure the just, speedy and inexpensive determination of any proceeding, tointerpret r 4.4 as allowing third party notices to be issued without leave within 10working days of every statement of defence filed where pleadings are amended. Itwould not be workable from the court's or the parties' perspectives if this was the case.[26] In any event, the third party notices against the four additional intended thirdparties were not filed until 29 August 2023 (despite being dated 25 August 2023) andso not within 10 working days of the statement of defence filed on 11 August 2023.Leave is therefore required in respect of these four additional third parties no matterwhat the position. No application for such leave has however been made.[27] As mentioned above, two of the four additional intended third parties havealready filed statements of defence. Those parties may seek costs for the filing ofthose defences. I expect that increased costs may be appropriate given the third partynotices were not issued within 10 working days of the defendant's statement ofdefence, no application for leave was filed and the defendant was aware that I was stilldetermining whether leave ought to be granted in respect of the first six intended thirdparties.[28] I make orders below in respect of the documents filed without leave and costs.[29] I turn now to whether leave ought to be granted in respect of the original sixintended third parties.Legal principles relating to leave to issue third party notices[30] Rule 4.4 of the High Court Rules 2016 provides:4.4 Third parties(1) A defendant may issue a third party notice if the defendant claims anyor all of the following:(a) that the defendant is entitled to a contribution or an indemnityfrom a person who is not a party to the proceeding (a thirdparty):(b) that the defendant is entitled to relief or a remedy relating to,or connected with, the subject matter of the proceeding froma third party and the relief or remedy is substantially the sameas that claimed by the plaintiff against the defendant:(c) that a question or issue in the proceeding ought to bedetermined not only between the plaintiff and the defendantbut also between—(i) the plaintiff, the defendant, and the third party; or(ii) the defendant and the third party; or(iii) the plaintiff and the third party:(d) that there is a question or an issue between the defendant andthe third party relating to, or connected with, the subjectmatter of the proceeding that is substantially the same as aquestion or an issue arising between the plaintiff and thedefendant.(2) A third party notice must be issued within—(a) 10 working days after the expiry of the time for filing thedefendant's statement of defence; or(b) a longer time given by leave of the court.(3) A third party notice may be issued only with the leave of the court ifan application for judgment is pending under rule 12.2 or 12.3.[31] The principles for granting leave were summarised by Osborne J3 in WestwoodGroup Holdings Ltd v Rilean Construction (South Island) Ltd:4(a) The defendant's claim against the third party must be coveredby one of the four grounds set out in r 4.4(1). A defendant mayjoin the third party as of right within the time limit set downin r 4.4(2)(a). An application outside this time limit requiresleave of the Court (r 4.4(2)(b)).(b) Where leave is sought, the Court must consider firstlywhether one of the grounds in r 4.4(1) exists and secondlywhether to exercise its discretion to join the third party: ANZBanking Group (NZ) Ltd v Dairy Containers Ltd.5(c) In exercising its discretion, the Court must have regard to allrelevant circumstances, including delay to the plaintiff (r 4.8).3 Or Associate Judge Osborne as his Honour then was.4 Westwood Group Holdings Ltd v Rilkean Construction (South Island) Ltd [2013] NZHC 1739 at[15].5 ANZ Banking Group (NZ) Ltd v Dairy Containers Ltd CA156/92, 17 December 1992.(d) The interest of justice between all parties, however, isparamount. While any delay to the plaintiff is regrettable, theattainment of justice by the most efficient means is anoverriding consideration: KPMG Peat Marwick v Cory-Wright & Salmon Ltd (in rec and liq).6(e) Where the defendant has not been guilty of unreasonabledelay, a factor in favour of exercising the discretion will bewhether the defendant could have joined the third party as ofright if it had applied within the time limit: ANZ BankingGroup (NZ) Ltd v Dairy Containers Ltd.7(f) Equally, unexplained or unacceptable delay by the defendantmay result in leave being refused: Meroiti v NationalAustralia Finance Ltd.8(g) In cases of serious delay that risk prejudicing the plaintiff, thecourt may be prepared to make an order for joinder onconditions designed to preserve the hearing date for theplaintiff's claim against the defendant: Total Air SupplyCompany Ltd v Total Air Supply Company (2007) Ltd.9(h) Avoiding duplicity of proceedings and preventing the samequestion being tried with different results militate in favour ofallowing the application. The overriding purpose of the thirdparty rules is to enable all the issues to be dealt with in oneaction: Turpin v Direct Transport Ltd.10(i) There is, however, a need to strike a balance between all theparties' interests. The extent to which the plaintiff isnecessarily involved in the issues between the defendant andthe third party is a consideration. Equally, it can be oppressiveand unjust to involve a third party in a proceeding where muchof the proceeding will not involve that third party.(j) The Court may have regard to the relative strengths andweaknesses of the parties' cases, including the case againstthe proposed third party and the likelihood of recovery: DairyContainers Ltd v NZI Bank Ltd.11[32] The defendant submits that at the first step, all the Court needs to do is seewhether the defendant claims any of the grounds listed under rule 4.4(1). If thedefendant does so, then the Court moves to the second step of considering whether itshould exercise its discretion to grant leave. The defendant submits that whether the6 KPMG Peat Marwick v Cory-Wright & Salmon Ltd (in rec and liq) CA77/94, 20 May 1994.7 ANZ Banking Group (NZ) Ltd v Dairy Containers Ltd, above n 5.8 Meroiti v National Australia Finance Ltd CA128/90, 6 December 1990.9 Total Air Supply Company Ltd v Total Air Supply Company (2007) Ltd HC Auckland CIV-2008-404-7627, 10 January 2011.10 Turpin v Direct Transport Ltd [1975] 2 NZLR 172 (SC).11 Dairy Containers Ltd v NZI Bank Ltd [1993] 1 NZLR 160 (HC) at 167.claims made by the defendant are reasonably arguable ought to be reserved fordetermination at the second step, when considering the relative strengths andweaknesses of the parties' case and the extent to which the parties are involved in theproceeding.[33] I am prepared to proceed on that basis as the factors relevant to the exercise ofthe Court's discretion, as stated above, include whether the defendant could havejoined the third party as of right, which requires a consideration of whether the claimagainst the intended third party falls within one of the categories in r 4.4(1) in anyevent, as well as the relative strengths and weaknesses of the parties' cases.[34] I therefore consider the intended claims against the six proposed third partiesand whether the defendant could have joined the third parties as of right.Could the defendant have joined the intended third parties as of right?[35] The categories in r 4.4(1) are relatively broad, including at 4.4(1)(d) that thereis a question between the defendant and the third party relating to or connected withthe subject matter of the proceeding that is substantially the same as a question or anissue arising between the plaintiff and the defendant.[36] The defendant filed draft statements of claim against the original six intendedthird parties together with his submissions on leave as directed. It appears that thethird party notices and draft statements of claim against the intended third parties havenow been filed and served as if they are final versions (as discussed above), but untilleave is granted they are to be treated as drafts.[37] In the draft statements of claim filed, the defendant claims against three of theintended third parties, NZME, Lincoln Tan (a journalist for the New Zealand Herald),and Maurice Williamson (quoted in the article), that they are joint and/or concurrenttortfeasors in respect of an article published on the New Zealand Herald website on orabout 7 September 2022. The defendant pleads that if he is found liable, he is entitledto equitable contribution or, alternatively, contribution and/or an indemnity pursuantto s 17 of the Law Reform Act 1936 from those parties.[38] The claim against RNZ is not clearly pleaded but it appears to be forrepublishing the New Zealand Herald article on 7 September 2022 with a similar butnot identical title. It is brought on the same basis as in respect of the first three intendedthird parties. I note that the New Zealand Herald article and the RNZ article areseparate articles to the posts by the defendant that the plaintiff's pleadings relate to.[39] The draft statements of claim against the two remaining intended third partiesof the original six, Target Advertising and AUSNZ, are brought on the same basis butin Target Advertising's case, in relation to the post by Mr Xiao on mpages.co.nz on orabout 9 September 2022, and regarding AUSNZ, Mr Xiao's post on AUSNZ.net.comon or about 10 August 2021. By contrast to the claims against NZME, Mr Tan,Mr Williamson and RNZ, these claims do relate to posts that are the subject of theamended statement of claim, the third and fifth posts referred to in the plaintiff'spleading.[40] When directing the defendant to file submissions in respect of his leaveapplication, I asked counsel to focus on third party claims in the context of defamationproceedings. Despite that there is no discussion of contribution in the context ofdefamation proceedings (or leave to join third parties in defamation proceedings).[41] Defamation claims are claims in tort and the law is clear that contribution maynot be sought in equity against a joint tortfeasor.12 Any claim for contributiontherefore needs to be brought pursuant to s 17 of the Law Reform Act. The defendantcould not therefore have brought a claim as of right against the intended third partiesfor equitable contribution.[42] The defendant's draft pleadings do rely in the alternative on "contributionand/or indemnity" pursuant to s 17 of the Law Reform Act.[43] Section 17(1)(c) provides a right to claim contribution against joint orconcurrent tortfeasors in respect of the same damage. However whether the damagealleged here in respect of NZME, Mr Tan, Mr Williamson and RNZ would be12 Stephen Todd "Multiple Tortfeasors and Contribution" in Stephen Todd (ed) Todd on Torts (9thed, Thomson Reuters, Wellington, 2023) at [23.3.1]; see also Hotchin v New Zealand GuardianTrust Co Ltd [2016] NZSC 24, [2016] 1 NZLR 906 at [133].considered to be the same damage as the plaintiff alleges against the defendant whenit arises from a different article may be an issue. In Todd on Torts it states:13Where several publications, although independent, are to similar defamatoryeffect, and harm is caused by the joint consequence of all or a number ofpublications, the tortfeasors are deemed to have caused indivisible damageand are classified as joint tortfeasors However, where defamatorypublications are made independently of each other, each publisher is liableonly for the damage done by its own publication.[44] Television New Zealand Ltd v Ah Koy was referred to in support of the secondproposition.14 In that case the Court of Appeal held:15When various publications are made independently of each other, and each isdefamatory of the plaintiff, the publishers are several rather than jointtortfeasors and liable only for the damage done by their own publication theposition becomes more complicated if the publications are to the same orsimilar defamatory effect.[45] Although a number of questions arise, for the purposes of this leave applicationI proceed on the basis that the defendant would have been able to bring a third partyclaim as of right.Will granting leave cause delay and should the defendant's prior delay factor intothe leave decision?[46] Four of the Westwood factors set out above address delay, paragraphs (c), (d),(e) and (f). I consider these together in terms of where the interests of justice ought tolie as far as delay is concerned.Mr Xiao's submissions[47] Mr Xiao accepts that the third party notices will cause further delay to a trialbeing set down. This will include both delay leading up to the trial and the length ofthe trial itself. Mr Xiao also accepts that he has previously caused delays in theseproceedings. He has filed an affidavit in support of his application explaining thereasons for his delay. These reasons include that at the early stage of the proceeding,Mr Xiao was a freelance journalist and did not have fulltime employment, causing his13 At [23.3.1].14 Television New Zealand Ltd v Ah Koy [2002] 2 NZLR 616 (CA).15 At [31].income to fluctuate. He says that he has resorted to seeking donations online to fundhis legal battle. Mr Xiao's evidence is that in order to save costs, many of the initialcourt documents filed were drafted and finalised by him with limited input by hislawyers. He also refers to further delay caused when he returned to China in June2023 to attend to his grandfather's passing. Mr Xiao says he has learnt his lesson torequest an extension if he is not able to meet court deadlines and has paid costs to MrYoung which Mr Xiao says are in relation to the delay caused.[48] Mr Xiao says that Mr Young is no longer standing for public office at the 2023general election and so the delays will not materially prejudice Mr Young.Discussion[49] Although no trial has yet been set down, adding six (let alone 10) third partiesis likely to at least double the length of the trial. This is particularly the case herewhere the issues arising in respect of the third parties appear to be different to thosebetween the plaintiff and defendant, as discussed further below.[50] Furthermore, there is no reason why the intended third parties could not havebeen joined at the beginning, as the intended third party claims relate to matters in theoriginal pleading.[51] As noted in Westwood Group Holdings, unexplained or unacceptable delay bythe defendant may result in leave being refused.16 In this case, this principle isparticularly relevant as the way in which Mr Xiao has responded to the proceeding sofar could fairly be described as relatively chaotic and very difficult to case manage.An award of costs against the defendant has already been made for failure to complywith the court timetable which resulted in wasted costs for the plaintiff.[52] Despite this costs award, the defendant has continued to act inconsistentlywith the High Court Rules and the directions of the Court including by filing andserving the ten third party claims without leave, knowing that leave was still beingdetermined in respect of six of the intended third parties and that leave had not been16 Referring to Meroiti v National Australia Finance Ltd, above n 8.applied for in respect of the further four. The latter four were not filed within tenworking days of the filing of the statement of defence so the defendant cannot arguethat he thought leave was not required.[53] When the third party claims were served on the plaintiff, the memorandumfiled by the plaintiff updating the court also advised that the defendant had publisheda further article on WeChat repeating allegedly defamatory statements about theplaintiff titled "Taiwan is involved in Paul Young's case against Demon King forDefamation". An affidavit was filed together with the memorandum providing atranslation of the article. The defendant has not filed any memorandum in responseand so I presume the defendant accepts the translation of the article provided on behalfof the plaintiff (although I note that the defendant has raised an issue previously withthe translation "Demon King").[54] In the recent article, the defendant has included a photograph of a passage frommy minute of 10 August 2023. The directions photographed clearly state that thedefendant needs to file submissions in support of his application for leave to issue thirdparty notices and that the leave application would then be determined on the papers.However the lengthy post states a number of times that the third parties have alreadybeen joined, including referring to them at one stage as defendants. The articleincludes the comments that there will be "no options for [Mr] Young but to give awayall he has to battle against the third parties" and that Mr Xiao will become a bystanderand will "basically be off the hook". The article includes a photograph of the thirdparty notices and draft statement of claims with the caption "The 'more than threehundred pages of indictment' Paul Young gave to me counts nothing. Look at thepackage, prepared by our side, of 'Third Party Notices' of more than 1,300 pages."[55] I note that the reason that the statement of claim is so lengthy is because itattaches copies of the 16 posts that the plaintiff alleges are defamatory which are allrelatively lengthy, together with their translations.[56] The article further reveals that the defendant appears to be seeking leave to jointhe third parties essentially to disrupt the proceedings and apparently to make politicalpoints in relation to Taiwan.[57] In this case I consider that the delay that will be caused if leave is granted notonly as a result of the number of intended third parties, but also as a result of the likelyconduct of the claims by the defendant, as has been demonstrated already, stronglycounts against granting leave.Avoiding duplicity of proceedings[58] Counsel for Mr Xiao submits that granting leave will avoid duplicity ofproceedings because the issues in the proceedings ought to be determined betweenMr Young, Mr Xiao and the third parties, and between Mr Young and the third parties.[59] The defendant sets out the the issues for determination in the proceeding, asagreed between the plaintiff and the defendant in a joint memorandum dated 4 August2023, being:(a) Do any one or more of the first to sixteenth posts pleaded by Mr Youngconvey the meanings pleaded?(b) If yes to (a), can Mr Xiao avail himself of the defences of truth, honestopinion, qualified privilege or responsible public interestcommunication?(c) If yes to (a), has Mr Young suffered harm to his reputation because ofMr Xiao's publication of all or any of the pleaded posts?(d) If yes to (c), what remedies, including monetary compensation andpunitive damages, are appropriate?[60] None of the issues above however involve the third parties and nor doescounsel for the defendants explain how they do.[61] The joint memorandum referred to by the defendant further records that the theparties agree on the following issues:(a) the defendant published the posts and (subject to limited exceptionspleaded by the defendant in his amended statement of defence);(b) the translations of the posts appended to the amended statement ofclaim are true and correct; and(c) that Chinese people, including Chinese New Zealanders, regardsupporters of Taiwanese independence to be disloyal to China and anysuch supporter would be held in lower esteem by the Chinesecommunity generally.[62] The issues agreed between the plaintiff and defendant (as set out in [61]) appearto be the only real issues arising in the pleadings between the defendant and intendedthird parties that are substantially the same as those arising between the plaintiff andthe defendant but these appear to have been agreed.[63] Therefore, although granting leave may avoid duplicity of proceedings to acertain extent, it does not appear to be likely to prevent questions being tried twicewith the potential for different results, other than potentially in respect of the defenceof truth. If this defence is raised by NZME, RNZ, Mr Tan and Mr Williamson,however, it will be in the different context of the New Zealand Herald and RNZ articlesrather than the posts by the defendant.[64] The remaining questions raised in the intended third party claims appear to bedifferent than the questions raised in the claim between the plaintiff and the defendant.These include the intended claims against Target Advertising and AUSNZ where theclaims arise through publishing the posts on their platforms. These claims raise issuesin relation to the potential liability of social media platforms and potentially therelatively new defence of innocent dissemination. The issues may also includewhether the protections provided by the Harmful Digital Communications Act 2015are available.[65] It is not a situation either where the plaintiff has chosen to sue some but notother publishers of allegedly defamatory material. The plaintiff's claim against thedefendant, in relation to the second post, alleges that the defendant "enmeshed hiscomments" into his translation of a New Zealand Herald article and "used sixparagraphs of own comments about the plaintiff as if they were the accurate translatedconclusion of the NZ Herald article". The plaintiff's claim pleads that the defendantwrongly portrayed to WeChat consumers of his post that the defendant's conclusionabout the plaintiff was one that was accurately translated and held by a reputable NewZealand media outlet, the New Zealand Herald, and further that the defendant knewthat such consumers would believe the same.[66] The defendant's statement of defence includes a bare denial to this pleading.The draft third party claims against NZME, Mr Tan, Mr Williamson and RNZ simplyallege that if the defendant is liable then the intended third parties ought to be liableas joint or concurrent tortfeasors because their publication caused or contributed to thesame loss and damage without further particulars.[67] In the end this factor appears only to provide weak support for leave given thematters on which the parties have agreed.Will granting leave appropriately balance all parties' interests?[68] As Osborne J said in Westwood, there is a need to strike a balance between allparties' interests. The extent to which the plaintiff is necessarily involved in the issuesbetween the defendant and the third parties is a consideration.[69] In this case, the plaintiff would not be involved in the main issues between thedefendant and the intended third parties because they are likely to focus on whetherthe separate statements made by the first four intended third parties in their separatecontexts were defamatory and whether the defences pleaded by the intended thirdparties are able to be established. These defences are likely to include responsiblecommunication on matters of public interest by members of the established newsmedia and, in the case of Target Advertising and AUSNZ, innocent dissemination bysocial media platform providers or possibly under the Harmful-DigitalCommunications Act.[70] Furthermore, the intended third parties will not be involved in much of theproceeding between the plaintiff and defendant with the draft claim against eachintended third party only relating to one publication, whereas the claim against thedefendant currently includes sixteen posts and by the time of the trial is likely toinclude over 20 (there have already been 18 posts).[71] In addition, there will be difficulties in terms of who is required to pay thehearing fee. If leave is granted, the length of the hearing is likely to double (at least)because of the number of parties even though only relatively few posts are the subjectof the intended third party claims. In those circumstances it would be appropriate forthe defendant to pay a portion of the hearing fee. However the factors relevant to theproportion that the defendant ought to pay are complex.[72] It may also complicate the award of costs following determination. This isbecause even if the defendant succeeds it may still be appropriate, for example, for thedefendant to pay the hearing fee given that he sought to join the third parties.Do the relative strengths and weaknesses of the parties' cases justify leave?[73] Counsel for Mr Xiao submits that the alleged defamatory meanings (includingthe core concern) in the article published in the New Zealand Herald and by RNZ andMr Xiao's second online post, and the damage caused by those publications, aresimilar. Counsel submits that given that, and the proximity in the time of thepublications that are the subject of Mr Xiao's claims against the intended third parties,the claims for contribution pursuant to s 17 of the Law Reform Act are reasonablyarguable.[74] In my view it is difficult to assess the relative strengths and weaknesses at thisstage. The draft claims against the intended third parties are skeletal and includecontradictions, including that posts that the defendant himself has published aredefamatory without reservation. In addition, the claims raise a number of novel issues.Although the defendant refers to himself as a freelance journalist the "articles" he hasposted do not appear to follow the usual verifications steps that journalists undertakeas discussed recently by the Court of Appeal in Christian v Bain,17 including givingMr Young an opportunity to comment before the blogs were posted. Blog posts aresubject to the same legal tests as other media for the purpose of defamationproceedings though they must be read in context.18Conclusion on leave[75] In conclusion, although there is some overlap and ordinarily a relatively liberalapproach to leave ought to be taken, the likely delay and disruption that would becaused by granting leave and the skeletal pleading of the draft claims mean that it isnot in the interests of justice for leave to be granted.[76] No leave application has been filed in respect of the four further intended thirdparties but I indicate my preliminary view that the same result would be reached. Thecritical factors in deciding leave are the delay and disruption that would be caused andthe fact that the draft claims against the intended third parties are skeletal. Those samefactors would arise in respect of the four further intended third parties.Result[77] Mr Xiao's application for leave to issue third party notices is declined.[78] The third party notices and accompanying statements of claim filed by thedefendant against the third parties as well as any statements of defence or associateddocuments are to be removed from the court's file.Costs[79] The plaintiff did not take a formal position in respect of the application so nocosts award can be made in its favour.[80] The third parties who have filed statements of defence, including TheVision Times Limited and New Zealand Epoch Times Group Limited, are entitled tocosts. If costs cannot be agreed, memoranda of no more than three pages (excluding17 Christian v Bain [2023] NZCA 579, at [103].18 Sellman v Slater [2017] NZHC 2392, [2018] 2 NZLR 218 at [4], [73] and [82]–[83].schedules) may be filed, by the intended third parties within 30 working days of thisjudgment and the defendant, a further 10 working days.______________________________Associate Judge Sussock