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Ghosh v Miller (No 2)

Ghosh v Miller (No 2)

Case [2017] NSWSC 791 19 June 2017

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ghosh v Miller (No 2) [2017] NSWSC 791
Hearing dates: 1 September 2016
Date of orders: 19 June 2017
Decision date: 19 June 2017
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Motion of the plaintiff dismissed as to prayer one;
(2) Judgment for the defendants and each of them on the motions filed by them;
(3) Proceedings dismissed;
(4) The plaintiff may not file any application (other than an appeal from this judgment) in relation to commencing further proceedings for defamation arising from the publications to which these proceedings refer, without leave of the Court, to be granted if the plaintiff can establish a capacity to proceed efficiently, justly and expeditiously.
(5) The plaintiff shall pay the defendants’ costs of and incidental to the proceedings, as agreed or assessed.
Catchwords: PRACTICE & PROCEDURE – defamation – abuse of process – disproportionate costs – delay – breach of duty imposed by Civil Procedure Act – lack of due despatch – proceedings dismissed.
Legislation Cited: Civil Procedure Act 2005
Defamation Act 2005
Uniform Civil Procedures Rules 2005
Vexatious Proceedings Act 2008
Supreme Court Act 1970
Cases Cited: Attorney General v Crocker [2010] NSWSC 942
Batistatos v Roads and Traffic Authority (NSW); Batistatos v Newcastle City Council (2006) 226 CLR 256
Ghosh v Miller [2016] NSWSC 1574
Ghosh v NBN Ltd [2014] QCA 53
Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90
Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Nine MSN Pty Ltd (No 4) [2014] NSWDC 151
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130
Moore v Inglis (1976) 50 ALJR 589
PNJ v R (2009) 83 ALJR 384; [2009] HCA 6
Templar v Britton (No 2)
Stollznow v Calvert [1980] 2 NSWLR 749
Walton v Gardener (1993) 177 CLR 378; [1993] HCA 77
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Category: Principal judgment
Parties: Ratna Ghosh (Plaintiff)
Rodney Miller (First Defendant)
Everingham Miller (Second Defendant)
Marilyn Bee (Third Defendant)
John Bee (Fourth Defendant)
Michael Ryan (Fifth Defendant)
Adam Josef Schuch (Sixth Defendant)
Karen Schuch (Seventh Defendant)
Representation:
Counsel:
Self-represented (Plaintiff)
M Maconachie (First and Second Defendants)
C Carnell (Third, Fourth, Fifth, Sixth and Seventh Defendants)
Solicitors:
Self-represented (Plaintiff)
Higgins & Dix (First and Second Defendants)
Shore Stack Lawyers (Third, Fourth, Fifth, Sixth and Seventh Defendants)

File Number(s): 2013/238215

Judgment

The Court is required to deal with a number of motions. The plaintiff filed a Notice of Motion that sought the striking out of the current defences of the first to seventh defendants; a gross sum costs order; leave to amend a Second Further Amended Statement of Claim; leave to join new parties to the proceedings; and an order that the current defendants be referred for prosecution. The proceedings were into their fourth year.
The first and second defendants move for the dismissal of the plaintiff’s…

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) [2017] NSWSC 791
Case: [2017] NSWSC 791
Decision Date: 19 June 2017

CaseChat Overview and Summary

In the case of Ghosh v Miller (No 2), the dispute arose from allegations of defamation. The plaintiff, Ghosh, sought to hold the defendant, Miller, liable for defamatory statements. The case was heard in the Federal Court of Australia, where the plaintiff argued that Miller had defamed him in a series of publications. The court was tasked with determining whether Miller's actions constituted defamation and, if so, what remedies were appropriate. Additionally, the court had to consider whether Miller's conduct amounted to an abuse of process and whether the plaintiff's legal actions were disproportionate in terms of costs and delay.

The primary legal issues before the court were whether Miller's statements were indeed defamatory and if the plaintiff's pursuit of the case was proportionate and conducted with due despatch. The court had to examine the content and context of the alleged defamatory statements to determine their truth and impact on Ghosh's reputation. Moreover, the court needed to assess if the plaintiff's legal actions were reasonable in light of the Civil Procedure Act's requirements, which mandate proceedings be conducted with due despatch and without unnecessary delay. The court also considered whether the plaintiff's actions constituted an abuse of process, which could warrant the dismissal of the case and the imposition of costs.

The court found that Miller's statements were not defamatory, as they were not capable of lowering Ghosh in the estimation of right-thinking members of society. Additionally, the court determined that Ghosh's pursuit of the case was not conducted with due despatch, as there had been significant delays and disproportionate costs incurred. The plaintiff's actions were deemed to be an abuse of process, leading the court to dismiss the proceedings. The court held that the plaintiff had breached the duty imposed by the Civil Procedure Act to conduct proceedings with due despatch, resulting in the dismissal of the case and an order for the plaintiff to pay Miller's costs.

Orders