Ghosh v Miller (No. 3) - [2015] NSWDC 133

District Court

New South Wales

Case Name:	Ghosh v Miller (No. 3)
Medium Neutral Citation:	[2015] NSWDC 133
Hearing Date(s):	14 May 2015
Date of Orders:	14 May 2015
Decision Date:	14 May 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Note that the Second Further Amended Statement of Claim (MFI 2) is provided to Mr Maconachie to check if it matches what the defendants have. (2) Refuse to make the orders for fresh service of the Second Further Amended Statement of Claim or for particulars as set out in the Short Minutes of Order (MFI 3). (3) Note that the plaintiff no longer brings an application for summary judgment against the fifth defendant on the basis that she accepts that the requirement for the fifth defendant to “attend” today has been discharged by the presence of a legal representative and an undertaking to file a Notice of Appearance in 7 days. (4) The fifth defendant to file a Notice of Appearance in 7 days. (5) Note the third, fourth, sixth and seventh defendants withdraw their complaints concerning the plaintiff’s address for service and accept that the plaintiff practises from the premises at Shop 5, 138 Pacific Highway, Charlestown NSW 2290. (6) The plaintiff’s application for apprehended violence orders against all defendants sought on the basis set out in paragraph 5 of her affidavit sworn on 14 May 2015 is dismissed. (7) Note MFI 2 has been uplifted for photocopying. (8) Matter stood over for further directions to Thursday 4 June 2015 at 2:00pm. (9) The fifth defendant to use his best endeavours to file and serve his defence by 21 May 2015.
Catchwords:	TORT - defamation - case management - parties vigorously dispute all timetable orders - circumstances in which court should impose a timetable for efficient conduct of the proceedings - court timetable imposed - plaintiff's application for the District Court to grant an apprehended violence order despite not having sought such an order in the Local Court from which an appeal should be brought - in the absence of such an appeal the District Court lacks jurisdiction (s 91 Crimes (Domestic and Personal Violence) Act 2007 (NSW)) - availability of s 61 Civil Procedure Act 2005 (NSW) to make orders to ensure efficient communication between the parties who are in dispute - consideration of McGuirk v University of New South Wales [2010] NSWCA 104 at [159]
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 91 Local Court Act 1982 (NSW), s 33 Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 Ghosh v Miller & Ors (No. 2) [2013] NSWDC 194 Ivory v Telstra Corp Ltd [2002] QCA 457 Jenolan Caves Resort Pty Ltd v Field [2007] NSWSC 1117 McGuirk v University of New South Wales [2010] NSWCA 104
Texts Cited:	Sir Alan Herbert, “Uncommon Law” (Methuen, 1930)
Category:	Procedural and other rulings
Parties:	Plaintiff: Dr Ratna…

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. 3)

Details

AGLC: Ghosh v Miller (No. 3) [2015] NSWDC 133
Case: [2015] NSWDC 133
Decision Date: 14 May 2015

CaseChat Overview and Summary

In the matter of Ghosh v Miller (No. 3), the parties were involved in a defamation dispute. The case was heard in the Local Court of New South Wales. The primary legal issues revolved around the management of the case, specifically the imposition of a timetable for the proceedings and the availability of apprehended violence orders. The plaintiff sought to impose a timetable for the efficient conduct of the proceedings, while the defendants opposed this. Additionally, the plaintiff applied for apprehended violence orders against all defendants, which was contested by the defendants.

The court examined the necessity of imposing a timetable to manage the case efficiently. It found that, given the vigorous disputes between the parties, a court-imposed timetable was appropriate. The court also considered the plaintiff's application for apprehended violence orders, noting that such an application should have been made in the Local Court before an appeal to the District Court. The court concluded that, in the absence of an appeal, it lacked jurisdiction to grant the orders under section 91 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Furthermore, the court reviewed the availability of section 61 of the Civil Procedure Act 2005 (NSW) to ensure efficient communication between the parties.

The court dismissed the plaintiff's application for apprehended violence orders and imposed a timetable for the proceedings. The orders included providing the Second Further Amended Statement of Claim to the defendants for verification, noting the withdrawal of complaints regarding the plaintiff's address for service, and setting specific timelines for the filing of defences and notices of appearance. The matter was stood over for further directions, with the fifth defendant required to file and serve his defence by a specified date.

The final orders mandated the provision of the Second Further Amended Statement of Claim to the defendants, dismissed the plaintiff's application for apprehended violence orders, noted the withdrawal of complaints concerning the plaintiff's address for service, and set specific timelines for the filing of defences and notices of appearance. The matter was stood over for further directions to be given on a specified date.

Orders

Orders of the court

(1) Note that the Second Further Amended Statement of Claim (MFI 2) is provided to Mr Maconachie to check if it matches what the defendants have.

(2) Refuse to make the orders for fresh service of the Second Further Amended Statement of Claim or for particulars as set out in the Short Minutes of Order (MFI 3).

(3) Note that the plaintiff no longer brings an application for summary judgment against the fifth defendant on the basis that she accepts that the requirement for the fifth defendant to “attend” today has been discharged by the presence of a legal representative and an undertaking to file a Notice of Appearance in 7 days.

(4) The fifth defendant to file a Notice of Appearance in 7 days.

(5) Note the third, fourth, sixth and seventh defendants withdraw their complaints concerning the plaintiff’s address for service and accept that the plaintiff practises from the premises at Shop 5, 138 Pacific Highway, Charlestown NSW 2290.

(6) The plaintiff’s application for apprehended violence orders against all defendants sought on the basis set out in paragraph 5 of her affidavit sworn on 14 May 2015 is dismissed.

(7) Note MFI 2 has been uplifted for photocopying.

(8) Matter stood over for further directions to Thursday 4 June 2015 at 2:00pm.

(9) The fifth defendant to use his best endeavours to file and serve his defence by 21 May 2015.

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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