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Ghosh v Nine Digital Pty Ltd

Ghosh v Nine Digital Pty Ltd

Case [2017] NSWCA 90 5 May 2017

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90
Hearing dates: 26 April 2017
Date of orders: 26 April 2017
Decision date: 05 May 2017
Before: Basten JA at [1]; Simpson JA at [24]
Decision:
(1)  Refuse the application to adjourn the hearing of the application for leave to appeal from the judgment of Rothman J on 28 October 2016.

(2)  Refuse the application for leave to appeal.
(3)  Applicant to pay the costs in this Court of the second and third respondents to the application.
Catchwords:
APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would be unduly oppressive to the respondent – leave to appeal refused

APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would result in a disproportionate burden on the resources of appellate and trial courts – leave to appeal refused
DEFAMATION – practice and procedure – parties – joinder of parties where leave under s 23 of the Defamation Act 2005 (NSW) applies – interplay between s 23 of the Defamation Act and continuing internet publications – leave to appeal refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58
Defamation Act 1974 (NSW), s 9(3)
Defamation Act 2005 (NSW), s 23
Limitation Act 1969 (NSW), s 14B
Supreme Court Act 1970 (NSW), s 101(2)(e)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3
Ghosh v Miller [2016] NSWSC 1574
Ghosh v NBN Ltd [2014] QCA 53
Ghosh v Ninemsn Pty Ltd [2013] NSWDC 63
Ghosh v NineMSN Pty Ltd [2015] NSWCA 334
Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4) [2014] NSWDC 151
Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Phillips v Robab Pty Ltd [2014] NSWSC 1520
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Texts Cited: New South Wales Law Reform Commission Report on Defamation (1971) LRC No 11
Category: Principal judgment
Parties: Dr Ratna Ghosh (Applicant)
Nine Digital Pty Ltd trading as Channel Nine Television (First Respondent)
Nine Digital Pty Ltd (Second Respondent)
Nine Network Australia Pty Ltd (Third Respondent)
Representation:
Counsel:
R Higgins (Applicant)
N/A (First Respondent)
L Barnett (Second and Third Respondents)
Solicitors:
N/A (Applicant)
N/A (First Respondent)
Mark O’Brien Legal (Second and Third Respondents)

File Number(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 Nine Digital Pty Ltd

Details

AGLC: Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90
Case: [2017] NSWCA 90
Decision Date: 05 May 2017

CaseChat Overview and Summary

The applicant, Mr. Ghosh, sought leave to appeal an interlocutory judgment of Rothman J delivered on 28 October 2016, against the respondent, Nine Digital Pty Ltd. The core of the dispute concerned the joinder of parties in defamation proceedings, particularly in the context of continuing internet publications and the application of section 23 of the *Defamation Act 2005* (NSW).

The Court of Appeal was required to determine whether to grant leave to appeal from the interlocutory judgment. In considering this, the Court had to assess whether the appeal raised an issue of principle, and if so, whether granting leave would be unduly oppressive to the respondent or result in a disproportionate burden on the resources of the appellate and trial courts.

The Court refused the application for leave to appeal. This refusal was based on the conclusion that the circumstances did not warrant the grant of leave, particularly given the potential for undue oppression and the disproportionate burden on judicial resources. The Court also refused an application to adjourn the hearing of the application for leave to appeal. Consequently, the applicant was ordered to pay the costs in the Court of Appeal of the second and third respondents to the application.

Orders

Orders of the court

(1) Refuse the application to adjourn the hearing of the application for leave to appeal from the judgment of Rothman J on 28 October 2016.

(2) Refuse the application for leave to appeal.

(3) Applicant to pay the costs in this Court of the second and third respondents to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90

Most Recent Citation

Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383

Cases citing this decision · 7 of 7 shown

Bartlett v Roffey
[2024] FCA 906 Para 18

…gaged where there had been earlier proceedings brought as to the same publication, but those proceedings had terminated: Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90. In that instance, leave was sought to advance that proposition on appeal even though it had been accepted at first instance that leave was required.…
Lakaev v McConkey
[2023] TASSC 48

…Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 per Basten JA, approved. Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383, considered. Carey v Australian Broadcasting Corporation [2012] 84 NSWLR 90, Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750, 237 FCR 127; Carolan v Fairfax Media Publicatio…
Duffy v Google LLC
[2019] SASC 157 Para 46

…to proceedings that have been finally determined. Dr Ghosh relied on what had been said by White J in Hockey and by McCallum J in Carolan . [44] [2017] NSWCA 90.…
Rush v Nationwide News Pty Limited (No 9)
[2019] FCA 1383 Para 17

…In Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90, however, the Court of Appeal of the Supreme Court of New South Wales expressed some doubt about the reasoning of both White J in Hockey and McCallum J in Carolan concerning the purpose or scope of s 23 of the Defamation Act. The issue in Ghosh was limited to whether…
M v Public Guardian
[2017] NSWDC 253 Para 1

…The observations of Basten JA in Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 concerning s 23;…
Ghosh v Miller (No 2)
[2017] NSWSC 791 Para 3

…s informed that the plaintiff was to appeal that Judgment. On 26 April 2017 the Court of Appeal refused leave to appeal: Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90.…
Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd
[2017] NSWDC 101 Para 58

…tional uniform defamation laws” (2008) 16 TLJ 207 at 4, n.155 and 14), and possibly s 23 Defamation Act 2005 (NSW) ( Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90).…

View all 7 citing cases →

Cases cited in this decision · 16 of 16 shown

Carolan v Fairfax Media Publications Pty Ltd (No 7)
[2017] NSWSC 351 Para 17

…elief, he would not be able to bring further proceedings in the event of a further publication, without the need to obtain leave pursuant to s 23. 1. [2017] NSWSC 351.…
Ghosh v Miller
[2016] NSWSC 1574 Para 25

…tempore in the Common Law Division of the Supreme Court by Rothman J (“the primary judge”) following a hearing on 28 October 2016: Ghosh v Miller [2016] NSWSC 1574. The orders made were:…
Ghosh v Ninemsn Pty Ltd
[2015] NSWCA 334 Para 35

…The applicant appealed against that decision. By judgment delivered on 29 October 2015 the appeal was dismissed: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334.…
Hockey v Fairfax Media Publications Pty Ltd (No 2)
[2015] FCA 750 Para 61

…lf of the applicant that that construction gained support from the decision in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750.…
Phillips v Robab Pty Ltd
[2014] NSWSC 1520

…0 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Phillips v Robab Pty Ltd [2014] NSWSC 1520 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Texts Cited: New South Wales Law Reform Commission Report on Defamation (1971) LRC No 11 Category: Principal judgmen…
Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4)
[2014] NSWDC 151 Para 28

…e consolidated proceedings and ordered the applicant to pay the defendants’ costs: Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4) [2014] NSWDC 151. A brief but comprehensive account of the tortuous history of the applicant’s attempts to plead her causes of action is to be found in the primary judg…
Ghosh v NBN Limited
[2014] QCA 53 Para 29

…2013 those proceedings were struck out for want of prosecution, a decision upheld on 21 March 2014 by the Queensland Court of Appeal: Ghosh v NBN Ltd [2014] QCA 53.…
Ghosh v Ninemsn Pty Ltd & Ors
[2013] NSWDC 63 Para 30

…ns on the internet or television. She stood over, undetermined, the defendants’ notice of motion seeking summary dismissal: Ghosh v Ninemsn Pty Ltd [2013] NSWDC 63. There followed a series of amended statements of claim, generally attended by interlocutory applications respecting further deficiencies in the pleadi…
The Age Company Ltd v Liu
[2013] NSWCA 26 Para 56

…ples upon which leave to appeal may be granted were recently, and succinctly, stated by Bathurst CJ in The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26, at [13]. His Honour said:…
Carey v Australian Broadcasting Corporation
[2012] NSWCA 176

…or Be Financial Operations Trust v Das [2012] NSWCA 164 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 Coulter v The Queen (1988) 164 CLR 350;…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 57

…same effect made in a long line of decisions, including (but not limited to) Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284.…
Jaycar Pty Ltd v Lombardo
[2011] NSWCA 284 Para 57

…Financial Operations Trust v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284.…
Carolan v AMF Bowling Pty Ltd
[1995] NSWCA 69 Para 57

…to) Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284.…
Coulter v The Queen
[1988] HCA 3 Para 59

…only with leave, that being one measure afforded to this Court to control the volume of appellate work: Coulter v The Queen (1988) 164 CLR 350, 356; [1988] HCA 3, cited in Be Financial Pty Ltd at [35] by Basten JA. The statutory requirement similarly permits some restraint on the workload of the primary court.…
House v R
[1936] HCA 40

…ckey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Phillips v Robab Pty Ltd [2014] NSWSC 1520 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Texts Cited: New South Wales L…
House v The King
63 WN 176

…n Pty Ltd (No 4) [2014] NSWDC 151 Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Phillips v Robab Pty Ltd [2014] NSWSC 1520 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Text…

Legislation cited in this decision · 5

Civil Procedure Act 2005 (NSW)
56, 58 3 mentions (from Para 48)
Defamation Act 2005 (TAS)
23 2 mentions (from Para 7)
Limitation Act 1969 (NSW)
14B 2 mentions (from Para 45)
Defamation Act 1974 (NSW)
9(3) 1 mention (from Para 22)
Supreme Court Act 1970 (NSW)
101(2)(e) 1 mention

Medium Neutral Citation:	Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90
Hearing dates:	26 April 2017
Date of orders:	26 April 2017
Decision date:	05 May 2017
Before:	Basten JA at [1]; Simpson JA at [24]
Decision:	(1) Refuse the application to adjourn the hearing of the application for leave to appeal from the judgment of Rothman J on 28 October 2016. (2) Refuse the application for leave to appeal. (3) Applicant to pay the costs in this Court of the second and third respondents to the application.
Catchwords:	APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would be unduly oppressive to the respondent – leave to appeal refused APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would result in a disproportionate burden on the resources of appellate and trial courts – leave to appeal refused DEFAMATION – practice and procedure – parties – joinder of parties where leave under s 23 of the Defamation Act 2005 (NSW) applies – interplay between s 23 of the Defamation Act and continuing internet publications – leave to appeal refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 58 Defamation Act 1974 (NSW), s 9(3) Defamation Act 2005 (NSW), s 23 Limitation Act 1969 (NSW), s 14B Supreme Court Act 1970 (NSW), s 101(2)(e)
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 Ghosh v Miller [2016] NSWSC 1574 Ghosh v NBN Ltd [2014] QCA 53 Ghosh v Ninemsn Pty Ltd [2013] NSWDC 63 Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4) [2014] NSWDC 151 Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Phillips v Robab Pty Ltd [2014] NSWSC 1520 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Texts Cited:	New South Wales Law Reform Commission Report on Defamation (1971) LRC No 11
Category:	Principal judgment
Parties:	Dr Ratna Ghosh (Applicant) Nine Digital Pty Ltd trading as Channel Nine Television (First Respondent) Nine Digital Pty Ltd (Second Respondent) Nine Network Australia Pty Ltd (Third Respondent)
Representation:	Counsel: R Higgins (Applicant) N/A (First Respondent) L Barnett (Second and Third Respondents) Solicitors: N/A (Applicant) N/A (First Respondent) Mark O’Brien Legal (Second and Third Respondents)
File Number(s):