Ghosh v Miller (No. 2) - [2013] NSWDC 194

District Court

New South Wales

Medium Neutral Citation: Ghosh v Miller & Ors (No. 2) [2013] NSWDC 194
Hearing dates: 10 October 2013
Decision date: 10 October 2013
Before: Gibson DCJ
Decision:
(1) The defendants called outside Newcastle Court 1 and Court 3 three times at 10:20am - no appearance.
(2) Grant leave to the plaintiff to file the Notice of Motion in the Registry today and pay the relevant filing fee.
(3) Pursuant to s 140(2) Civil Procedure Act 2005 (NSW), transfer Local Court matter 2013/76771 to the New South Wales District Court, forming part of District Court matter 2013/238215, by reason of the Local Court having no jurisdiction in defamation proceedings.
(4) Dismiss the plaintiff's application for default judgment.
(5) Matter transferred to the Defamation List in Sydney on Friday 1 November 2013.

Catchwords: TORT - defamation - application to transfer proceedings from Local Court to District Court (s 140(2) Civil Procedure Act 2005 (NSW)) as the Local Court has no jurisdiction to hear defamation actions (s 33 Local Court Act 2007 (NSW)) - application for default judgment due to non appearance of defendants - default judgment generally inappropriate in defamation actions - absence of proof of service of statement of claim - application for default judgment dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 140(2)
Defamation Act 2005 (NSW), s 27(1)
Local Court Act 2007 (NSW), s 33
Uniform Civil Procedure Rules 2005 (NSW), Pt 10 r 10.21
Cases Cited: Altarama Pty Ltd v Forsyth (1981) 1 NSWLR 188
French v Triple M Melbourne Pty Ltd [2006] VSC 36
Ghosh v Ninemsn Pty Ltd [2013] NSWDC 145
Ivory v Millett (Supreme Court of Western Australia, 29 January 1999, Anderson J)
Markisic v Today-Denes Pty Ltd [2002] NSWSC 1051
Mundey v Askin [1982] 3 NSWLR 369
Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514
Szanto v Bainton [2011] NSWSC 985
Texts Cited: -
Category: Interlocutory applications
Parties: Plaintiff: Dr Ratna Ghosh
First Defendant: Rodney Miller
Second Defendant: Everingham Miller
Third Defendant: Marilyn Bee
Fourth Defendant: John Bee
Fifth Defendant: Michael Ryan
Sixth Defendant: Adam Josef Schuch
Seventh Defendant: Karen Schuch
Representation: Plaintiff: Dr R Ghosh (in person)
Defendant: No appearance
Plaintiff: Dr R Ghosh (in person)
Defendant: No appearance

File Number(s): 2013/238215
Publication restriction: None

Judgment

On I handed down a judgment in favour of Google Australia Pty Ltd, the first named defendant in these proceedings, and directed the plaintiff to file and serve an amended statement of claim on each of the remaining defendants personally, as they had previously been served by registered post, contrary to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") Pt 10 r 10.21.

I have today made an order transferring, to the District Court of NSW defamation list, the Newcastle Local Court proceedings the plaintiff separately commenced against these defendants in February 2013, as the Local Court has no jurisdiction to hear defamation actions: s 33 Local Court Act 2007 (NSW).

The defendants have been called three…

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) [2013] NSWDC 194
Case: [2013] NSWDC 194
Decision Date: 10 October 2013

CaseChat Overview and Summary

In the case of Ghosh v Miller (No. 2), the plaintiff, Ghosh, brought an action for defamation against the defendants, Miller, in the Local Court of New South Wales. The plaintiff sought a transfer of the case to the District Court due to the Local Court's lack of jurisdiction over defamation matters. Additionally, Ghosh applied for a default judgment as the defendants did not appear in court. The case was heard by the District Court, which was required to determine the appropriate forum for the defamation claim and the validity of the application for default judgment.

The court had to decide whether the Local Court was the appropriate forum for the defamation claim and whether the application for default judgment should be granted. The court noted that defamation cases generally require a higher level of scrutiny and cannot typically result in a default judgment due to the potential for complex issues and the need for a full hearing. Furthermore, the court had to verify whether the statement of claim was properly served on the defendants before considering the application for default judgment.

The court concluded that the Local Court did not have jurisdiction over defamation claims, as provided under section 33 of the Local Court Act 2007 (NSW). Consequently, the court transferred the case to the District Court in accordance with section 140(2) of the Civil Procedure Act 2005 (NSW). However, the court dismissed the application for default judgment due to the absence of proof of service of the statement of claim on the defendants and the inappropriateness of default judgments in defamation cases. The matter was then transferred to the Defamation List in Sydney, with the next hearing scheduled for Friday 1 November 2013.

The court made several orders, including granting leave to the plaintiff to file the Notice of Motion in the Registry, dismissing the application for default judgment, and transferring the case to the District Court. The matter was to be heard in Sydney on the Defamation List on the specified date.

Orders

Orders of the court

(1) The defendants called outside Newcastle Court 1 and Court 3 three times at 10:20am - no appearance.

(2) Grant leave to the plaintiff to file the Notice of Motion in the Registry today and pay the relevant filing fee.

(3) Pursuant to s 140(2) Civil Procedure Act 2005 (NSW), transfer Local Court matter 2013/76771 to the New South Wales District Court, forming part of District Court matter 2013/238215, by reason of the Local Court having no jurisdiction in defamation proceedings.

(4) Dismiss the plaintiff's application for default judgment.

(5) Matter transferred to the Defamation List in Sydney on Friday 1 November 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ghosh v Miller & Ors (No. 2) [2013] NSWDC 194
Hearing dates:	10 October 2013
Decision date:	10 October 2013
Before:	Gibson DCJ
Decision:	(1) The defendants called outside Newcastle Court 1 and Court 3 three times at 10:20am - no appearance. (2) Grant leave to the plaintiff to file the Notice of Motion in the Registry today and pay the relevant filing fee. (3) Pursuant to s 140(2) Civil Procedure Act 2005 (NSW), transfer Local Court matter 2013/76771 to the New South Wales District Court, forming part of District Court matter 2013/238215, by reason of the Local Court having no jurisdiction in defamation proceedings. (4) Dismiss the plaintiff's application for default judgment. (5) Matter transferred to the Defamation List in Sydney on Friday 1 November 2013.
Catchwords:	TORT - defamation - application to transfer proceedings from Local Court to District Court (s 140(2) Civil Procedure Act 2005 (NSW)) as the Local Court has no jurisdiction to hear defamation actions (s 33 Local Court Act 2007 (NSW)) - application for default judgment due to non appearance of defendants - default judgment generally inappropriate in defamation actions - absence of proof of service of statement of claim - application for default judgment dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 140(2) Defamation Act 2005 (NSW), s 27(1) Local Court Act 2007 (NSW), s 33 Uniform Civil Procedure Rules 2005 (NSW), Pt 10 r 10.21
Cases Cited:	Altarama Pty Ltd v Forsyth (1981) 1 NSWLR 188 French v Triple M Melbourne Pty Ltd [2006] VSC 36 Ghosh v Ninemsn Pty Ltd [2013] NSWDC 145 Ivory v Millett (Supreme Court of Western Australia, 29 January 1999, Anderson J) Markisic v Today-Denes Pty Ltd [2002] NSWSC 1051 Mundey v Askin [1982] 3 NSWLR 369 Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514 Szanto v Bainton [2011] NSWSC 985
Texts Cited:	-
Category:	Interlocutory applications
Parties:	Plaintiff: Dr Ratna Ghosh First Defendant: Rodney Miller Second Defendant: Everingham Miller Third Defendant: Marilyn Bee Fourth Defendant: John Bee Fifth Defendant: Michael Ryan Sixth Defendant: Adam Josef Schuch Seventh Defendant: Karen Schuch
Representation:	Plaintiff: Dr R Ghosh (in person) Defendant: No appearance Plaintiff: Dr R Ghosh (in person) Defendant: No appearance
File Number(s):	2013/238215
Publication restriction:	None