Ghosh v Ninemsn Pty Ltd

Case [2015] NSWCA 334

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334
Hearing dates:8 September 2015
Decision date: 29 October 2015
Before: Macfarlan JA at [1];
Leeming JA at [55];
Adamson J at [56]
Decision:

Appeal dismissed with costs.

Catchwords:

TORTS – defamation – appeal against dismissal of proceedings for want of due despatch and proportionality – plaintiff failed to properly plead her claim and to respond to requests for particulars – appeal dismissed

PROCEDURE – dismissal of defamation proceedings – appeal from District Court decision – whether primary judge erred in dismissing proceedings for want of due despatch under Uniform Civil Procedure Rules 2005 (NSW), r 12.7 – whether primary judge erred in finding that plaintiff’s conduct of the litigation was an abuse of process – appeal dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 59, 60, 91
Defamation Act 2005 (NSW), s 23
Limitation Act 1969 (NSW), ss 14B, 56A
Uniform Civil Procedure Rules 2005 (NSW), r 12.7
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170
Al-Shennag v Woodcock [2013] NSWSC 696
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Bleyer v Google Inc [2014] NSWSC 897
Ghosh v NineMSN Pty Ltd [2013] NSWDC 63
Ghosh v Ninemsn Pty Ltd (No 2) [2013] NSWDC 145
Ghosh v NineMSN Pty Ltd [2014] NSWCA 180
Ghosh v TCN Channel Nine Pty Ltd (No 4) [2014] NSWDC 151
House v The King [1936] HCA 40; 55 CLR 499
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Re the Will of Gilbert (1946) 46 SR NSW 318
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Stollznow v Calvert [1980] 2 NSWLR 749
Templar v Britton (No 2) [2014] NSWSC 587
Witten v Lombard Australia Ltd [1968] 2 NSWLR 529; 88 WN (Pt 1) (NSW) 405
Category:Principal judgment
Parties: Dr Ratna Ghosh (Appellant)
NineMSN Pty Limited (First Respondent)
NBN Limited (Second Respondent)
Katie Gregory (Third Respondent)
TCN Channel Nine Pty Ltd (Fourth Respondent)
Nine Network Australia Pty Ltd (Fifth Respondent)
Representation:

Counsel:
R Rasmussen (Appellant)
A T S Dawson/L E Barnett (Respondent)

  Solicitors:
Mark O’Brien Legal (Respondent)
File Number(s):2014/282179
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
New South Wales
Citation:
[2014] NSWDC 151
Date of Decision:
17 September 2014
Before:
Gibson DCJ
File Number(s):
DC 2014/63022 and 2013/88183

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 17 September 2014 the District Court dismissed, for want of due despatch and proportionality, defamation proceedings brought by Dr Ratna Ghosh. The proceedings related to television broadcasts and internet publications of two episodes of Channel Nine’s “A Current Affair” program concerning Dr Ghosh’s short term lettings of her house in Surfers Paradise to tenants whose parties and excessive noise disturbed the neighbours.

Between the commencement…

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AGLC
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
Case
[2015] NSWCA 334
Decision Date

CaseChat Overview and Summary

The plaintiff, Ms. Ghosh, appealed to the Court of Appeal of New South Wales against the dismissal of her defamation proceedings against Ninemsn Pty Ltd by a primary judge of the District Court. The proceedings had been dismissed for want of due despatch and for being an abuse of process.

The central legal issues before the Court of Appeal were whether the primary judge had erred in dismissing the proceedings under rule 12.7 of the *Uniform Civil Procedure Rules 2005* (NSW) for want of due despatch, and whether the primary judge had erred in finding that the plaintiff's conduct of the litigation constituted an abuse of process.

The Court of Appeal found that the primary judge had not erred. The plaintiff had failed to properly plead her defamation claim and had not adequately responded to requests for particulars. This conduct demonstrated a lack of diligence in prosecuting the proceedings and, when viewed in its entirety, amounted to an abuse of process. The court applied the principles relating to the court's power to dismiss proceedings for want of due despatch and abuse of process, considering the plaintiff's persistent failures to comply with procedural requirements and her inability to articulate a coherent case.

The appeal was dismissed, and the plaintiff was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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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