Ghosh v Miller

[2016] NSWSC 1574

Supreme Court

New South Wales

Medium Neutral Citation:	Ghosh v Miller [2016] NSWSC 1574
Hearing dates:	28 October 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1)   Strike out the proposed eighth defendant. (2) The plaintiff is, pursuant to s 23 of the Defamation Act 2005, denied leave to commence proceedings against Nine Digital Pty Limited and Nine Network Australia on the basis of the proposed Statement of Claim. (3)   Plaintiff to pay the defendants’ costs of today only.
Catchwords:	DEFAMATION – leave sought to commence another set of proceedings against same defendants, pursuant to s 23 of the Defamation Act 2005 – imprecise and unclear allegations and imputations – costs order still outstanding – delay in commencing further proceedings – that which is not time-barred is inconsequential – leave refused.
Legislation Cited:	Defamation Act 2005
Category:	Procedural and other rulings
Parties:	Ratna Ghosh (Plaintiff/Applicant) Rodney Miller (First Defendant/First Respondent) Everingham Miller (Second Defendant/Second Respondent) Marilyn Bee (Third Defendant/Third Respondent) John Bee (Fourth Defendant/Fourth Respondent) Michael Ryan (Fifth Defendant/Fifth Respondent) Adam Josef Schuch (Sixth Defendant/Sixth Respondent) Karen Schuch (Seventh Defendant/Seventh Respondent) NINEMSN Pty Ltd (Proposed Eighth Defendant) Nine Digital Pty Ltd (Proposed Ninth Defendant) Nine Network Australia (Proposed Tenth Defendant)
Representation:	Counsel: S Chrysanthou (Plaintiff) M Maconachie (First and Second Defendants) L Barnett (Proposed Eighth, Ninth and Tenth Defendants)   Solicitors: Self-represented (Plaintiff) Higgins & Dix (First and Second Defendants)
File Number(s):	2013/238215

EX TEMPORE Judgment (UNREVISED)

1. HIS HONOUR: Before the Court is an application which I will loosely refer as a joinder application in which the plaintiff seeks to join what are three named parties and refers to them as the eighth, ninth and tenth defendants. It is conceded, and must be, that the ninth defendant is simply a new name for what was previously called the eighth defendant. As a consequence, before I do anything else, I will strike out any attempt to have the eighth defendant named.

2. I therefore have to deal with the ninth and tenth defendants which are Nine Digital Pty Limited and Nine Network Australia. I will hereafter simply refer to those two entities as if they were one, on the basis that I will call them the Nine Interests.

3. The motion upon which the plaintiff moves is a motion filed 9 May 2016. Prayer 6 of that motion seeks an order that joins the Nine Interests as defendants. Technically, pursuant to the terms of s 23 of the Defamation Act 2005 the plaintiff would need to seek leave to commence the proceedings against the Nine Interests, because the plaintiff had previously brought defamation proceedings for damages in relation to the very same publications, which proceedings were in the District Court and dismissed. I hasten to add that they were not dismissed on the merits of the application and they were not dismissed after an award of damages.

4. The distinction between an application for leave and an application for an order for joinder is not insignificant. Nevertheless I will take the application and prayer 6, in particular, to at least inferentially seek from the Court the leave that is required under s 23 of the Defamation Act.

5. In exercising the discretion under s 23, it seems to me that it is necessary for the Court to give effect to the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings.

6. Currently, the plaintiff in these proceedings has cost orders against it in favour of the putative defendants, namely, the Nine Interests. Secondly, the proceedings before the District Court were dismissed after 11 attempts by the plaintiff to plead the matter appropriately. Thirdly, the proceedings depend upon a publication first published in 2013, which, as earlier stated, was the subject of the earlier proceedings in the District Court.

7. The plaintiff seeks to overcome the time limit difficulties associated with the initial publication, by informing the Court by affidavit that one or more persons has viewed the publication on the Internet in the last 12 months. The difficulty with that proposition is substantial.

8. First, the persons who are said to have viewed the material in the last 12 months are each persons who were said to have viewed the material at an earlier time outside the date upon which any such publication could be relied for the purpose of seeking damages for defamation.

9. Secondly, the pleadings in the matter are such that frankly, in large part, they are unintelligible as to whether or not the publication in fact occurred, whether the publication still remains on the Internet and can be viewed and, thirdly, what publication the plaintiff is seeking to refer to in the claim for damages.

10. It seems to me that on the present state of the material before the Court, including the proposed Statement of Claim upon which the plaintiff seeks to rely (and taking into account all of the matters to which the plaintiff refers in her Affidavit of 7 September 2016), it is a pleading that is, at least in substantive part, unintelligible and, in another part, within jurisdiction only on a technical basis, because, if the persons who have read this publication in the last 12 months are the same persons who read the publication at an earlier time, it is difficult to imagine how there can be other than a minimal award of damages.

11. We are therefore talking about a wholly academic argument relating to matters that have already been determined and for which the defendants ought not be put through greater expense than has already been incurred without it being a matter of some substance.

12. In those circumstances, the Court denies leave under s 23 of the Defamation Act.

13. The Court makes the following orders:

1. Strike out the proposed eighth defendant.

2. The plaintiff is, pursuant to s 23 of the Defamation Act 2005, denied leave to commence proceedings against Nine Digital Pty Limited and Nine Network Australia on the basis of the proposed Statement of Claim.

3. Plaintiff to pay the defendants’ costs of today only.

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