Ghosh v Miller (No 2) - [2018] NSWCA 212

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ghosh v Miller (No 2) [2018] NSWCA 212
Hearing dates: 24 September 2018
Date of orders: 24 September 2018
Decision date: 27 September 2018
Before: McColl JA; Basten JA; Leeming JA
Decision:
1. Appeal allowed.
2. Set aside orders 2, 3 and 4 made on 19 June 2017.
3. In lieu thereof, stay the proceedings in the Common Law Division until the plaintiff has satisfied a judge conducting the Defamation List that:
(a) she has taken all steps required of her pursuant to the Uniform Civil Procedure Rules and any extant orders of a judge in the Division or in the District Court,
(b) she is able and willing to conduct a trial of the matter efficiently and expeditiously.
4. Any application to lift the stay shall be made on the papers and addressed ex parte.
5. If the judge considering the application to lift the stay is satisfied on a prima facie basis as to conditions (a) and (b), the judge may order that all relevant material be served on the defendants, who may be heard on any motion by the plaintiff to lift the stay imposed by order 3.

Catchwords: PRACTICE – summary dismissal – primary judge dismissed proceedings but granted leave to commence fresh proceedings if plaintiff could show they would be conducted efficiently – fresh proceedings prima facie statute-barred – statute of limitations not raised before primary judge – appeal allowed, orders set aside and new orders made staying proceedings until plaintiff could show they would be conducted efficiently
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 63, 91
Limitation Act 1969 (NSW), ss 14B, 63(1), 68A
Uniform Civil Procedure Rules 2005 (NSW), rr 10.19, 10.20, 51.1
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Ghosh v Miller (No 2) [2017] NSWSC 791
Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324
Category: Principal judgment
Parties: Dr Ratna Ghosh (Appellant)
Rodney Miller (First Respondent)
Elizabeth Everingham Miller (Second Respondent)
Marilyn Bee (Third Respondent)
John Bee (Fourth Respondent)
Michael Ryan (Fifth Respondent)
Adam Schuch (Sixth Respondent)
Karen Schuch (Seventh Respondent)
Representation:
Counsel:

R Rasmussen (Appellant)
M Maconachie with J Shandil (First and Second Respondents)

Solicitors:
Higgins & Dix (First and Second Respondents)

File Number(s): 2017/190932
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 791

Date of Decision:

19 June 2017

Before:

Rothman J

File Number(s):

2013/238215

Judgment

THE COURT: At the conclusion of the hearing of the appeal, the following orders were made:

1. Appeal allowed.

2. Set aside orders 2, 3 and 4 made on 19 June 2017.

3. In lieu thereof, stay the proceedings in the Common Law Division until the plaintiff has satisfied a judge conducting the Defamation List that:

(a) she has taken all steps required of her pursuant to the Uniform Civil Procedure Rules and any extant orders of a judge…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Ghosh v Miller (No 2)

Details

AGLC: Ghosh v Miller (No 2) [2018] NSWCA 212
Case: [2018] NSWCA 212
Decision Date: 27 September 2018

CaseChat Overview and Summary

In Ghosh v Miller (No 2), the Court of Appeal of New South Wales considered an appeal concerning the summary dismissal of proceedings. The primary judge had dismissed the plaintiff's proceedings but granted leave to commence fresh proceedings, provided the plaintiff could demonstrate they would be conducted efficiently. However, the fresh proceedings were prima facie statute-barred, a point not raised before the primary judge.

The central legal issue before the Court of Appeal was whether the primary judge erred in dismissing the proceedings and granting leave to commence fresh proceedings, particularly in light of the statute of limitations and the plaintiff's ability to conduct the litigation efficiently. The court was required to determine the appropriate orders to be made in circumstances where the original proceedings were dismissed but the possibility of new proceedings was contemplated, despite potential limitations.

The Court of Appeal reasoned that the primary judge's orders were flawed, primarily because the statute of limitations issue was not addressed. The court allowed the appeal, setting aside the primary judge's orders. In their place, the Court of Appeal imposed a stay on the proceedings, requiring the plaintiff to satisfy a judge of the Defamation List that she had complied with procedural rules and extant orders, and that she was able and willing to conduct the trial efficiently and expeditiously. The court further stipulated that any application to lift the stay would initially be made ex parte, with the defendants having an opportunity to be heard if the judge was satisfied on a prima facie basis.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 2, 3 and 4 made on 19 June 2017.

3. In lieu thereof, stay the proceedings in the Common Law Division until the plaintiff has satisfied a judge conducting the Defamation List that:

(a) she has taken all steps required of her pursuant to the Uniform Civil Procedure Rules and any extant orders of a judge in the Division or in the District Court,

(b) she is able and willing to conduct a trial of the matter efficiently and expeditiously.

4. Any application to lift the stay shall be made on the papers and addressed ex parte.

5. If the judge considering the application to lift the stay is satisfied on a prima facie basis as to conditions (a) and (b), the judge may order that all relevant material be served on the defendants, who may be heard on any motion by the plaintiff to lift the stay imposed by order 3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ghosh v Miller (No 2) [2018] NSWCA 212
Hearing dates:	24 September 2018
Date of orders:	24 September 2018
Decision date:	27 September 2018
Before:	McColl JA; Basten JA; Leeming JA
Decision:	1. Appeal allowed. 2. Set aside orders 2, 3 and 4 made on 19 June 2017. 3. In lieu thereof, stay the proceedings in the Common Law Division until the plaintiff has satisfied a judge conducting the Defamation List that: (a) she has taken all steps required of her pursuant to the Uniform Civil Procedure Rules and any extant orders of a judge in the Division or in the District Court, (b) she is able and willing to conduct a trial of the matter efficiently and expeditiously. 4. Any application to lift the stay shall be made on the papers and addressed ex parte. 5. If the judge considering the application to lift the stay is satisfied on a prima facie basis as to conditions (a) and (b), the judge may order that all relevant material be served on the defendants, who may be heard on any motion by the plaintiff to lift the stay imposed by order 3.
Catchwords:	PRACTICE – summary dismissal – primary judge dismissed proceedings but granted leave to commence fresh proceedings if plaintiff could show they would be conducted efficiently – fresh proceedings prima facie statute-barred – statute of limitations not raised before primary judge – appeal allowed, orders set aside and new orders made staying proceedings until plaintiff could show they would be conducted efficiently
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 63, 91 Limitation Act 1969 (NSW), ss 14B, 63(1), 68A Uniform Civil Procedure Rules 2005 (NSW), rr 10.19, 10.20, 51.1 Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Ghosh v Miller (No 2) [2017] NSWSC 791 Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324
Category:	Principal judgment
Parties:	Dr Ratna Ghosh (Appellant) Rodney Miller (First Respondent) Elizabeth Everingham Miller (Second Respondent) Marilyn Bee (Third Respondent) John Bee (Fourth Respondent) Michael Ryan (Fifth Respondent) Adam Schuch (Sixth Respondent) Karen Schuch (Seventh Respondent)
Representation:	Counsel: R Rasmussen (Appellant) M Maconachie with J Shandil (First and Second Respondents) Solicitors: Higgins & Dix (First and Second Respondents)
File Number(s):	2017/190932
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 791 Date of Decision: 19 June 2017 Before: Rothman J File Number(s): 2013/238215