Ghosh v Ninemsn Pty Ltd (No 2)

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District Court


New South Wales

Medium Neutral Citation: Ghosh v Ninemsn Pty Ltd & Ors (No 2) [2013] NSWDC 145
Hearing dates:17 August 2013
Decision date: 17 August 2013
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) The plaintiff's application for leave to file the proposed amended statement of claim is refused, but with leave to serve (but not file) a further draft statement of claim by 20 September 2013 in relation to publications 29, 30, 39, 40, 41, 42, 45, 46, 51 and 52.

(2) The plaintiff is to provide a transcript of such part of the 39th and 40th matters complained of which are in her possession and the first and second defendants are directed to make enquiries to locate the remainder of the publication.

(3) Proceedings against Stayz Pty Ltd and News Ltd are dismissed. The defendants in these proceedings are Ninemsn Pty Ltd (as first defendant), NBN Ltd (as second defendant) and Miss Katie Gregory (as third defendant).

(4) Plaintiff denied leave to commence any proceedings in relation to these publications against Justin Butterworth, Fairfax Media and Gold Coast Publications Pty Ltd.

(5) The particulars of aggravated damages and special damage are struck out with leave to replead.

(6) Pages 94 to 103 of the proposed amended statement of claim are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) as embarrassing.

(7) Plaintiff's notice of motion filed on 16 August 2013 seeking interlocutory injunction dismissed.

(8) The plaintiff pay Ninemsn Pty Ltd, NBN Ltd and Miss Katie Gregory's costs of the application.

(9) Plaintiff to pay the costs of Mr Justin Butterworth, Fairfax Media, Stayz Pty Ltd, Gold Coast Publications Pty Ltd and News Ltd, such costs to be their costs of these proceedings.

(10) Matter stood over to Thursday 10 October 2013 in the Newcastle Registry at 10:00am.

Catchwords: TORT - defamation - statement of claim struck out with leave to amend - series of amended pleadings served - application to amend to plead 53 defamation claims against 8 defendants between 2009 - and 2013 - whether claim can be made for 31 publications broadcast outside limitation period but alleged to be still available online - abuse of process issues arising from separate defamation proceedings commenced in Queensland in 2010 - inadequate particulars of identification and publication - case management issues for large complex defamation claims - degree of court assistance appropriate for litigants in person - application for leave to amend dismissed for 43 publications, leave to replead, in a further draft statement of claim, granted in relation to the remaining 10 publications.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 62 and 64(2)(a)
Crimes Act 1900 (NSW), s 91J
Indecent Articles and Classified Publications Act 1975 (NSW)
Privacy Act 1988 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28
Cases Cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11
Al-Shennag v Woodcock [2013] NSWSC 696
Barach v University of New South Wales [2011]…
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Details
Case
[2013] NSWDC 145
Decision Date

CaseChat Overview and Summary

The plaintiff, Mr. Ghosh, sought to amend his statement of claim against Ninemsn Pty Ltd, NBN Ltd, and Miss Katie Gregory in a defamation matter before the court. Mr. Ghosh originally served a series of amended pleadings between 2009 and 2013, aiming to include 53 defamation claims against eight defendants. The central issue before the court was whether Mr. Ghosh could proceed with claims for 31 publications broadcast outside the limitation period but still accessible online. Additionally, the court had to consider whether the plaintiff's separate defamation proceedings in Queensland constituted an abuse of process. The court also needed to evaluate whether Mr. Ghosh's particulars were adequate regarding identification and publication, as well as manage the complexities of a large, multifaceted defamation claim. The degree of court assistance appropriate for a self-represented litigant was another consideration.

The court dismissed Mr. Ghosh's application for leave to amend his statement of claim regarding 43 publications, but granted him leave to amend the remaining 10 publications in a further draft statement of claim. The court found that the plaintiff's particulars were inadequate and that the application for leave to amend was an abuse of process, given the separate proceedings in Queensland. The court further ruled that the plaintiff had not provided sufficient evidence to support claims for aggravated damages and special damages. The court struck out certain pages of the proposed amended statement of claim as embarrassing and dismissed the plaintiff's interlocutory injunction application. The court ordered the plaintiff to pay the defendants' costs.

The court dismissed proceedings against Stayz Pty Ltd and News Ltd. Additionally, Mr. Ghosh was denied leave to commence proceedings against Justin Butterworth, Fairfax Media, and Gold Coast Publications Pty Ltd. The matter was stood over for further proceedings.

Orders

Orders of the court

(1) The plaintiff's application for leave to file the proposed amended statement of claim is refused, but with leave to serve (but not file) a further draft statement of claim by 20 September 2013 in relation to publications 29, 30, 39, 40, 41, 42, 45, 46, 51 and 52.

(2) The plaintiff is to provide a transcript of such part of the 39th and 40th matters complained of which are in her possession and the first and second defendants are directed to make enquiries to locate the remainder of the publication.

(3) Proceedings against Stayz Pty Ltd and News Ltd are dismissed. The defendants in these proceedings are Ninemsn Pty Ltd (as first defendant), NBN Ltd (as second defendant) and Miss Katie Gregory (as third defendant).

(4) Plaintiff denied leave to commence any proceedings in relation to these publications against Justin Butterworth, Fairfax Media and Gold Coast Publications Pty Ltd.

(5) The particulars of aggravated damages and special damage are struck out with leave to replead.

(6) Pages 94 to 103 of the proposed amended statement of claim are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) as embarrassing.

(7) Plaintiff's notice of motion filed on 16 August 2013 seeking interlocutory injunction dismissed.

(8) The plaintiff pay Ninemsn Pty Ltd, NBN Ltd and Miss Katie Gregory's costs of the application.

(9) Plaintiff to pay the costs of Mr Justin Butterworth, Fairfax Media, Stayz Pty Ltd, Gold Coast Publications Pty Ltd and News Ltd, such costs to be their costs of these proceedings.

(10) Matter stood over to Thursday 10 October 2013 in the Newcastle Registry at 10:00am.

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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