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

1. 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.

1. 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).

1. The defendants have been called three times outside the court at 10.20am but have not appeared. The plaintiff tells me that she has served each of them personally at their respective home addresses. No affidavit of service has been filed.

1. The plaintiff's application is for default judgment to be entered against each of the remaining defendants to these proceedings, by reason of their non-appearance today. These are my reasons for refusing to make such an order.

1. Defamation proceedings were commenced against the defendants in the Local Court in February 2013, although that court had no jurisdiction to hear them. Although the plaintiff tells me from the bar table that they were served and indeed represented at some stage, the only notice they had of the proceedings in this court, on the first return date of these separately commenced proceedings (16 August 2013) was a copy of the statement of claim sent by post. On 16 August 2013, I accordingly made orders for personal service of the amended pleading on the remaining defendants after I struck out the proceedings against Google Australia Pty Ltd, the first defendant. I also directed the plaintiff to notify the remaining defendants of today's return date.

1. An amended statement of claim identifying eight publications (details of which are set out in a schedule attached to this judgment) has now been filed and, the plaintiff tells me from the bar table, served, in accordance with these orders. None of the defendants reside in Newcastle; most reside in Queensland. I do not know when, or in what circumstances, they were served.

1. These defendants should be entitled to have time to consider their position in relation to these proceedings, particularly since the eight publications identified by the plaintiff as being defamatory by the plaintiff, and as having been published by the defendants, are not only complex but also defective on their face. These defects include:

(a)   The first, second, fourth and fifth matters complained of have been commenced outside the twelve-month limitation period for defamation proceedings, in circumstances where leave to extend time has not been sought, and may be difficult to obtain, for some of the reasons I have outlined in my judgment in Ghosh v Ninemsn Pty Ltd [2013] NSWDC 145;

(b)   The sixth matter complained of consists of statements made in a document that is an initiating application to the Consumer, Trader and Tenancy Tribunal. That document was clearly published on an occasion protected by absolute privilege: Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514 at 520; Szanto v Bainton [2011] NSWSC 985 at [150] per Ward J; s 27(1) Defamation Act 2005 (NSW). Whether publication of the seventh matter complained of, a complaint to the Queensland Medical Board to the Australian Health Practitioner Regulation Agency, is protected by absolute or qualified privilege is an issue which must be determined with regard to the appropriate legislation.

(c)   The eighth matter complained of appears to consist of vulgar abuse: Mundey v Askin [1982] 3 NSWLR 369 at 371 - 2; Ivory v Millett (Supreme Court of Western Australia, 29 January 1999, Anderson J).

1. However, the principal reason for not entering default judgment is that this procedure is generally inappropriate in defamation actions, for the reasons explained by Hunt J in Altarama Pty Ltd v Forsyth (1981) 1 NSWLR 188. Defamation actions have long been regarded as falling into a special category as far as default judgment applications are concerned: Markisic v Today-Denes Pty Ltd [2002] NSWSC 1051 at [4]; French v Triple M Melbourne Pty Ltd [2006] VSC 36. Defamation actions, once directions are given, are removed from the operation of rules fixing the time for pleading. No order has yet been given for the defendants to file a defence by any particular time, and until such order is given (and breached), or the defence struck out, or an the parties agree that damages are the only issue (and even then, the parties cannot "agree" as to what imputations are conveyed), the question of entry of judgment should not arise.

1. These proceedings are returned to the Defamation List in the Sydney registry for further directions on 1 November 2013. The plaintiff is directed to serve a copy of the orders made today, as well as this judgment, upon each of the defendants, by registered post, and to file an affidavit of service to this effect.

Orders

(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.

(6)   The plaintiff is to serve a copy of these orders and this judgment and these orders upon each of the defendants by registered post.

Schedule

MCO	Date	Defendant(s)	Form	Sch	Title
1	28/12/2011	All defendants	Website	A	"holidayhouse fromhell. blogspot.com"
2	28/12/2011	All defendants	Website	B	"Never again. HORRIBLE HOLIDAYS ON THE GOLD COAST, BUNDALL GOLD COAST"
3	19/03/2013	All defendants	Website	C	"www. surfbreak rentals.com"
4	21/12/2009	Third to Seventh Defendants	Signs	D	-
5	11/11/2011	Sixth Defendant	Video	E	-
6	19/06/2013	First and Second Defendants	Correspond-ence to CTTT	F	-
7	05/06/2013	Third Defendant	Complaint to Queensland Medical Board	G	-
8	05/06/2013	Fifth Defendant	Voicemail message	H	-

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Decision last updated: 11 October 2013