Ghosh v NineMSN Pty Ltd (No 2)

[2016] NSWCA 25

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ghosh v NineMSN Pty Ltd (No 2) [2016] NSWCA 25
Hearing dates:	On the papers
Decision date:	04 March 2016
Before:	Macfarlan JA; Leeming JA; Adamson J
Decision:	(1) Amend [18] of the judgment delivered on 29 October 2015 by replacing “2014/282179” by “2014/63022”.  (2) Dismiss the notice of motion filed 10 November 2015 with costs.
Catchwords:	Practice – application to reopen judgment – no basis shown to vary reasons or orders – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 36.15, 36.16(3A), 36.16(3B), 36.17
Cases Cited:	Ghosh v NineMSN Pty Ltd [2015] NSWCA 334
Category:	Procedural and other rulings
Parties:	Dr Ratna Ghosh (Appellant) NineMSN Pty Ltd (First Respondent) NBN Ltd (Second Respondent) Katie Gregory (Third Respondent) TCN Channel Nine Pty Ltd (Fourth Respondent) Nine Network Australia Pty Ltd (Fifth Respondent)
Representation:	Counsel: Applicant in person L E Barnett (Respondents)   Solicitors: Mark O’Brien Legal (Respondents)
File Number(s):	2014/282179
Publication restriction:	Nil
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

Judgment

1. THE COURT: On 29 October 2015, this Court dismissed an appeal brought by Dr Ratna Ghosh from a District Court judgment in which defamation proceedings brought by her had been dismissed for want of due despatch and proportionality. The latter judgment being interlocutory, leave to appeal was required, and was granted by this Court, differently constituted, on 18 March 2015.

2. The judgment of this Court dismissing the appeal and the judgment of the primary judge are readily available: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 and [2014] NSWDC 151. For that reason, this judgment does not unnecessarily reproduce paragraphs of which Dr Ghosh makes complaint.

3. This Court, after reviewing the lengthy procedural history of Dr Ghosh’s proceedings in the District Court (including her filing an eleventh statement of claim and a series of failures to provide further and better particulars), and considering the submissions made on appeal, concluded that no error of principle or material error of fact was disclosed in dismissing the proceedings for want of due despatch. Accordingly, it was unnecessary for this Court to review the alternative basis relied on by the primary judge to conclude that the proceedings should be dismissed, namely, for want of proportionality pursuant to s 60 of the Civil Procedure Act 2005 (NSW).

4. By notice of motion filed 10 November 2015, Dr Ghosh seeks to set aside this Court’s judgment and a “new hearing on the basis of her original Appeal”. She also seeks a stay on the execution of the costs orders made on 29 October 2015, and an order that counsel formerly retained by her (not the counsel who appeared when her appeal was heard) pay all of her costs and the respondent’s costs of the appeal and proceedings at first instance.

5. Dr Ghosh’s notice of motion relies upon rr 36.15, 36.16(3A) and 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW). A draft amended notice of motion supplied on 4 December 2015 also seeks to rely upon UCPR r 36.17.

6. Dr Ghosh supplied an affidavit of 55 paragraphs in support of her motion. Its substance is to seek to identify what are said to be numerous errors in the reasons of this Court.

7. The respondents filed a concise submission of three pages submitting that, save for one typographical error, there was no basis for the reopening sought by Dr Ghosh.

8. Purportedly in reply, Dr Ghosh filed 37 pages of submissions and accompanying materials. The effect was to repeat the submissions contained in her affidavit, to expand some of them, and to supply further supporting material.

9. It is common ground that an incorrect file number appears in [18] of this Court’s judgment of 29 October 2015. The reference to “2014/282179” in the fourth line should be “2014/63022”. That correction will be made in due course to the version of the judgment published on Caselaw, in the exercise of power under the “slip rule” in r 36.17. That error had no consequence on any aspect of this Court’s reasoning.

10. The first substantive complaint made by Dr Ghosh focusses upon the grant of leave to appeal. Dr Ghosh submits that “leave to appeal should not have been granted by the Court of Appeal if the application was incompetent, as their judgment of 29 October 2015 suggests. The granting of leave to appeal on 18 March 2015 has burdened the self-funded applicant with the costs of these proceedings”.

11. These submissions are misconceived. Leave to appeal was required because the decision of the primary judge was interlocutory. Leave to appeal was sought by Dr Ghosh. There are applications for leave to appeal with complicated procedural histories, such as that brought by Dr Ghosh, where more time than is ordinarily available for the hearing of an application for leave is required in order to address the underlying merits (if there are any). One course in those circumstances is for there to be a concurrent hearing of the application for leave and an appeal. Another is for there to be a separate grant of leave. But in either case, the grant of leave is an inevitable consequence of the litigant’s decision to challenge an interlocutory judgment at first instance. A litigant cannot be heard to complain, after the event, that the grant of leave sought and obtained by her has occasioned costs, when, following a full examination of the strengths and weaknesses of the appellant’s case, it turns out that her appeal is ill-founded.

12. Dr Ghosh is also wrong to assert that her application for leave, and appeal, were “incompetent”. They were not. Dr Ghosh failed to establish appellable error in the decision of the primary judge to dismiss her proceedings for want of due despatch. That was because her submissions were considered on their merits, not because her invocation of this Court’s appellate jurisdiction was incompetent.

13. A recurring theme in Dr Ghosh’s submissions is that she should have been permitted to advance the submissions in her appeal as originally formulated, rather than the amended appeal propounded by her counsel. But Dr Ghosh cannot now, having advanced submissions on appeal on the basis chosen by her (through her counsel) and failed, seek a rehearing on the basis of submissions chosen not to be advanced by her. It should be said that Dr Ghosh was represented on appeal by counsel with considerable experience in defamation.

14. Dr Ghosh also asserts that the respondents “once again had not served me anything throughout this Appeal”. The appellant has the primary carriage of preparing materials in support of an appeal. There is no reason whatsoever to think that Dr Ghosh did not receive the respondents’ submissions, and any documents with which they wished to supplement the appeal books, in a timely fashion. No complaint was made by her counsel at the hearing.

15. Dr Ghosh asserts that the preparation of the appeal was also adversely affected by her counsel’s illness on the day of the hearing. If he was ill, it was not something of which the members of the Court were aware. In any event, it is quite plain that he was able to make submissions on behalf of Dr Ghosh. There is nothing to which Dr Ghosh points to support any inference that a submission which was properly available to her was not put.

16. Paragraphs 16 – 20 of Dr Ghosh’s written submissions criticise sentences in the headnote provided by the Court when judgment was delivered. It is not necessary to deal with the matters of which Dr Ghosh complains, because as is plain from the bold note at the commencement of the headnote, it is “not to be read as part of the judgment”. Even if, contrary to our views, it contained any errors, they were not errors in the Court’s judgment and would not sustain the relief sought by Dr Ghosh.

17. Paragraph 21 asserts errors in [4] and [6] of this Court’s judgment. They include assertions that the defendants “employed a novel new strategy of attempting to physically bash the plaintiff out of Newcastle court” and “the rampant spoliation of evidence by removing hundreds of publications that had been on the internet for years”. Dr Ghosh says that: “All of the above give rise to causes of action for personal injury for physical bashing and psychological harassment, spoliation of evidence, breach of court orders and contempt of court.”

18. Even if there were a proper basis in the evidence for the assertions made by Dr Ghosh (which there is not), those causes of action were not alleged in the pleading dismissed by the primary judge. Nor did they form part of the appeal.

19. Paragraph 22 of Dr Ghosh’s submissions complains that [10] of this Court’s judgment “repeats false allegations” made by the primary judge. However, [10] merely reproduced verbatim one paragraph in the reasons for judgment of the primary judge as an illustration of the difficulties her Honour had encountered in dealing with the proceedings to that point. Moreover, it did so in a descriptive portion of this Court’s reasons, rather than in the portion which was dispositive of the appeal.

20. To similar effect, many of the following paragraphs in Dr Ghosh’s submissions take issue with the (lengthy) procedural history summarised in this Court’s judgment. Those paragraphs resemble those extracted above. By way of representative example, paragraph 37 of Dr Ghosh’s written submissions is as follows:

“Paragraph 34 on page 8-9 repeats word for word false allegations by the defence without any judicial reasoning. I’ve already proved that all of these statements are false.”

21. But [34] did not purport to contain judicial reasoning. It was part of a summary of the reasoning process of the primary judge by which her Honour concluded that the proceedings should be dismissed under UCPR r 12.7.

22. Paragraphs 38 and 39 of Dr Ghosh’s submissions are to the same effect, save that they are ill-founded for another reason as well. In those paragraphs, Dr Ghosh criticises [35] and [36] of this Court’s reasons. But those paragraphs merely summarised the alternative basis on which the primary judge would have dismissed the proceedings for want of proportionality. As this Court made plain beyond argument, it did not determine the appeal on the basis of proportionality. Thus not only do [35] and [36] contain no error, but they also were irrelevant to any dispositive aspect of this Court’s reasoning. Dr Ghosh’s criticism of those paragraphs is completely unfounded.

23. The dispositive reasoning of this Court was contained in [41]–[44]. Notwithstanding the inordinate length of Dr Ghosh’s written submissions in chief and in reply, the only attack on those paragraphs is in paragraph 42 of Dr Ghosh’s submissions in chief and paragraph 59 of her submissions in reply. Because the whole of the former is contained in the latter, it is sufficient to reproduce the latter:

“Paragraphs 41-44 on pages 10-11 of the judgment of 29 October 2015 falsely allege I was responsible for delay in the proceedings. The delay was caused by the defendants filing the same interrogatory on 18 July 2014, without proper leave of the court, and when the case was ready to go to trial, that had already been answered on 28 November 2013. It was an error of her Honour to allow this, and an error in the way her Honour gives leave for interrogatories in all of her cases.”

24. No doubt Dr Ghosh sincerely believes that the delays in her litigation are wholly attributable to the defendants. However, she has provided no basis to review any aspect of the dispositive reasoning of this Court.

25. It is not necessary to summarise each and every paragraph in Dr Ghosh’s affidavit, or her submissions in reply. In order to support her application to reopen this Court’s judgment under r 36.15, Dr Ghosh must establish that the order was made irregularly, illegally or against good faith. This she has failed to do. It is true that she has applied within the period specified by r 36.16 to set aside or vary a judgment or order, but the Court will only exercise that power on a proper basis. Save for the typographical error in relation to a file number, she has not established any basis to do so.

26. However, one aspect of Dr Ghosh's submissions falls into a different category. She submits that her notice of motion filed 9 February 2015 to set aside a suppression order made by the court below on 31 October 2014 “has not yet been heard, so my original appeal remains suppressed and not heard. This was obstruction of Justice by hiding of evidence by the primary judge” (submissions in reply, paragraphs 17 and 18).

27. Dr Ghosh's notice of motion was raised by this Court at the outset of the hearing of her application for leave on 16 March 2015. On that occasion, the presiding judge addressed both counsel and stated, “The non-publication order is of some concern and you may like to consider whether you intend to press for retention of that order”. Counsel for the respondents said that “I had understood from the current material that that is no longer an issue on the appeal.” Counsel for Dr Ghosh said, “Your Honour, that's correct. If leave is granted on the motion to amend, the suppression order, that is the October judgment, falls away on the leave application.”

28. It is true that there appears to have been no formal order made dealing with the notice of motion. However, the court proceeded on the basis, which was common ground between the parties, that the notice of motion fell away when there was a grant of leave. Following the dismissal of the appeal, there was no need separately to make orders dealing with the notice of motion. No basis is disclosed for reopening this Court’s judgment.

29. The balance of the notice of motion filed 10 November 2015 is readily disposed of. First, it follows from what has been said above that no proper basis has been established for a further hearing.

30. Secondly, it also follows that no proper basis has been advanced to seek a stay of the execution of the order that Dr Ghosh pay the respondent’s costs of the appeal.

31. Finally, it is plain that this Court cannot make an order that Dr Ghosh’s former counsel pay various amounts of costs. For one thing, he has not been joined to the motion. For a second, no proper evidentiary basis for the order has been provided. For a third, such an order should not be sought in an application such as this. It should not be thought by Dr Ghosh that those matters are necessarily the only obstacles to the making of such an order.

32. The orders of the Court are accordingly:

1. Amend [18] of the judgment delivered on 29 October 2015 by replacing “2014/282179” by “2014/63022”.

2. Dismiss the notice of motion filed 10 November 2015 with costs.

**********