Ghosh v Miller (No 2)

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.