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Ghosh v Ninemsn Pty Ltd & Ors

Ghosh v Ninemsn Pty Ltd & Ors

Case [2013] NSWDC 63 17 May 2013

Media & Entertainment Law

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District Court

New South Wales

Medium Neutral Citation: Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
Hearing dates: 8 and 17 May 2013
Decision date: 17 May 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff's application for leave to file the proposed amended statement of claim is refused.
(2) The plaintiff is granted leave to file an amended statement of claim in relation to the following causes of action: (a) The 13 June 2012 publication "Crackdown on party houses"; (b) Any claim for Internet publication of "Crackdown on party houses"; (c) The 13 June 2012 publication "New powers to shut down Gold Coast party houses"; (d) Any claim for Internet publication of "New powers to shut down Gold coast party houses"; (e) The 13 June 2012 publication "Party House"; (f) Any claim for Internet publication of "Party House"; (g) The 5 March 2013 "A Current Affair" broadcast; (h) Any claim for Internet publication of the 5 March 2013 "A Current Affair" broadcast; (i) The 6 March 2013 email from Stayz Pty Ltd; (j) The 22 March 2013 publication "Party houses a big pain on Gold Coast"; (k) Any claim for Internet publication of "Party houses a big pain on Gold Coast"; (l) The 3 May 2013 publication "Party House RIP"; (m) Any Internet publication of "Party House RIP".
(3) The plaintiff is to file and serve an Amended Statement of Claim in 21 days conforming with the requirements of UCPR r 14.30 and [49] of this judgment.
(4) These proceedings transferred to the Sydney Registry Defamation List for case management, with the next return date of 21 June 2013, and a general liberty to restore on three (3) days' notice.
(5) Pre-trial conference date of 24 May 2012 in the Newcastle registry cancelled.
(6) The plaintiff is to pay the costs of the defendants' Notices of Motion, including the costs thrown away by reason of the amendment of the statement of claim, on an indemnity basis.
(7) Defendants' Notices of Motion are stood over to 21 June 2013.
(8) Any Notice of Motion for interlocutory injunctive relief by the plaintiff to be filed and served by 11 June 2013 and to be made returnable for the next directions hearing on 21 June 2013.

Catchwords: TORT - defamation - summary judgment - plaintiff brings numerous claims for defamation between 2009 and 2013 - proceedings previously commenced in Supreme Court of Queensland in 2010 - whether such claims time-barred and an abuse of process - whether leave required under s 23 Defamation Act 2005 - claim for trespass and breach of privacy - whether a common law claim of breach of privacy is available in Australia - claim for criminal defamation - whether aggravated damages claims accusing the defendants of perjury and assault should be struck out as scandalous - whether an order for indemnity costs should be made
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 58 and 64
Crimes Act 1900 (NSW), s 529

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 Ninemsn Pty Ltd & Ors

Details

AGLC: Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
Case: [2013] NSWDC 63
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of Ghosh v Ninemsn Pty Ltd & Ors involves a plaintiff who brought numerous claims for defamation against the defendants between 2009 and 2013. The proceedings were originally commenced in the Supreme Court of Queensland in 2010. The court was required to determine whether the claims were time-barred and constituted an abuse of process, whether leave was required under section 23 of the Defamation Act 2005, and whether a common law claim of breach of privacy was available in Australia. Additionally, the court needed to consider whether aggravated damages claims accusing the defendants of perjury and assault should be struck out as scandalous, and whether an order for indemnity costs should be made.

The court found that the plaintiff's application for leave to file the proposed amended statement of claim was refused. However, the plaintiff was granted leave to file an amended statement of claim in relation to specific publications and broadcasts. The court also ordered that the proceedings be transferred to the Sydney Registry Defamation List for case management, with a pre-trial conference and a general liberty to restore on three days' notice. The plaintiff was required to pay the defendants' costs on an indemnity basis and file any Notice of Motion for interlocutory injunctive relief by a specified date.

In conclusion, the court dismissed the plaintiff's application for leave to file the proposed amended statement of claim, but granted leave to file an amended statement of claim in relation to specific causes of action. The court also ordered the transfer of proceedings to the Sydney Registry Defamation List for case management and set a pre-trial conference date. The plaintiff was required to pay the defendants' costs on an indemnity basis and file any Notice of Motion for interlocutory injunctive relief by a specified date.

Orders

Orders of the court

(1) The plaintiff's application for leave to file the proposed amended statement of claim is refused.

(2) The plaintiff is granted leave to file an amended statement of claim in relation to the following causes of action: (a) The 13 June 2012 publication "Crackdown on party houses"; (b) Any claim for Internet publication of "Crackdown on party houses"; (c) The 13 June 2012 publication "New powers to shut down Gold Coast party houses"; (d) Any claim for Internet publication of "New powers to shut down Gold coast party houses"; (e) The 13 June 2012 publication "Party House"; (f) Any claim for Internet publication of "Party House"; (g) The 5 March 2013 "A Current Affair" broadcast; (h) Any claim for Internet publication of the 5 March 2013 "A Current Affair" broadcast; (i) The 6 March 2013 email from Stayz Pty Ltd; (j) The 22 March 2013 publication "Party houses a big pain on Gold Coast"; (k) Any claim for Internet publication of "Party houses a big pain on Gold Coast"; (l) The 3 May 2013 publication "Party House RIP"; (m) Any Internet publication of "Party House RIP".

(3) The plaintiff is to file and serve an Amended Statement of Claim in 21 days conforming with the requirements of UCPR r 14.30 and [49] of this judgment.

(4) These proceedings transferred to the Sydney Registry Defamation List for case management, with the next return date of 21 June 2013, and a general liberty to restore on three (3) days' notice.

(5) Pre-trial conference date of 24 May 2012 in the Newcastle registry cancelled.

(6) The plaintiff is to pay the costs of the defendants' Notices of Motion, including the costs thrown away by reason of the amendment of the statement of claim, on an indemnity basis.

(7) Defendants' Notices of Motion are stood over to 21 June 2013.

(8) Any Notice of Motion for interlocutory injunctive relief by the plaintiff to be filed and served by 11 June 2013 and to be made returnable for the next directions hearing on 21 June 2013.

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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Citations

AGLC Citation

Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63

Most Recent Citation

Ghosh v Ninemsn Pty Ltd (No 2) [2013] NSWDC 145

Cases citing this decision · 7 of 7 shown

Sarina v O'Shannassy
[2019] NSWDC 246 Para 38

…itigants in person to commence defamation proceedings in different courts for the same cause of action (see for example Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63). It is, however, almost unheard of for represented parties to do so (in both Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 and Meckiff v Simpson [19…
Ghosh v Nine Digital Pty Ltd
[2017] NSWCA 90 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…
Ghosh v Ninemsn Pty Ltd
[2015] NSWCA 334 Para 7

…By judgment of 17 May 2013, Gibson DCJ declined to grant Dr Ghosh leave to file the Third Statement of Claim ([2013] NSWDC 63). Her Honour made indemnity costs orders and gave Dr Ghosh detailed guidance as to how to amend her claim so that it could proceed (see [48] and [49]).…
Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4)
[2014] NSWDC 151 Para 1

…SWDC 145, which was one of a series of judgments I handed down in relation to objections to the statement of claim: see Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63; Ghosh v Ninemsn Pty Ltd & Ors (No 3) [2013] NSWDC 206; Ghosh v NineMSN Pty Ltd [2014] NSWCA 180. Proceedings commenced in Queensland in 2010 for 4 o…
Ghosh v NineMSN Pty Ltd
[2014] NSWCA 180 Para 1

…t of claim. In a judgment delivered on 17 May 2013, the primary judge gave leave to file an amended statement of claim: Ghosh v NineMSN Pty Ltd & Ors [2013] NSWDC 63. The applicant then sought leave to file a revised amended statement of claim which pleaded 53 publications against eight defendants. Those defendant…
Ghosh v Ninemsn Pty Ltd (No 3)
[2013] NSWDC 206 Para 1

…Previous versions of this statement of claim, which in the previous draft contained 53 causes of action, have been struck out with leave to replead: [2013] NSWDC 63; [2013] NSWDC 145. The relevant background to this application is set out in those judgments.…
Ghosh v Ninemsn Pty Ltd (No 2)
[2013] NSWDC 145 Para 1

…atement of claim for defamation. The relevant background to this application is set out in my judgment of 17 May 2013 ( Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63). The plaintiff's statement of claim filed on 22 March 2013 brought proceedings for four claims for defamation and other actions against four defenda…

View all 7 citing cases →

Cases cited in this decision · 12 of 12 shown

Sands v State of South Australia
[2013] SASC 44 Para 1

…There is no recognised cause of action for breach of privacy: Maynes v Casey [2011] NSWCA 156; Sands v State of South Australia [2013] SASC 44 at [612]-[614]. References to privacy in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 relate to the facts of that case, namely surreptitious f…
Mahon v Mach 1 Financial Services Pty Ltd (No 2)
[2013] NSWSC 10 Para 1

…entification are provided for each publication ( Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10).…
Markisic v State of New South Wales & Ors (No 2)
[2012] NSWSC 1353 Para 1

…in defamation proceedings may be seen in Price J's helpful setting out of the relevant principles in Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353.…
McGrane v Channel Seven Brisbane Pty Ltd
[2012] QSC 133 Para 1

…ces Pty Ltd (No 2) , supra . Furthermore, the claim for "immense financial loss" is itself objectionable. In McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 the plaintiff's claim was struck out, inter alia, by reason of a "ridiculous claim" (at [47]) for special damages. That does not, of itself, constitu…
Maynes v Casey
[2011] NSWCA 156 Para 1

…There is no recognised cause of action for breach of privacy: Maynes v Casey [2011] NSWCA 156; Sands v State of South Australia [2013] SASC 44 at [612]-[614]. References to privacy in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 relate to the facts of that case, namely surreptitious fil…
New South Wales v Radford
[2010] NSWCA 276 Para 1

…ng purposes, as set out in ss 56 and 58. The principles to apply in applications for leave to amend are set out in State of New South Wales v Radford (2010) 79 NSWLR 327 at [63] and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. A practical example of the application of those…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 1

…re set out in State of New South Wales v Radford (2010) 79 NSWLR 327 at [63] and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. A practical example of the application of those rules in defamation proceedings may be seen in Price J's helpful setting out of the relevant princip…
Bracks v Smyth-Kirk
[2008] NSWSC 930

…ted v Australian National University (2009) 239 CLR 175 Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 Bracks v Smyth-Kirk [2008] NSWSC 930 General Steel Industries Inc v Cmr for Railways (1964) 112 CLR 125 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Mahon v Mach 1 Financial Servic…
Vasiliou v Marchesi
[2006] FCA 37 Para 1

…n be, and have been, made in circumstances where the proposed amendment is patently hopeless, such as claims which are time-barred: Sharples v Hanson [2006] FCA 37.…
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
[2001] HCA 63 Para 1

…156; Sands v State of South Australia [2013] SASC 44 at [612]-[614]. References to privacy in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 relate to the facts of that case, namely surreptitious filming of possum killing by an unknown animal welfare supporter. Complaints of surreptitious…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 1

…e denied a contested merits hearing unless the absence of a cause of action is clearly demonstrated ( General Steel Industries Inc v Cmr for Railways (1964) 112 CLR 125 at 129). There must be a high degree of certainty, as opposed to a merely complex or difficult to understand, or even novel, claim. The applicant bea…
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor
[1937] HCA 45 Para 1

…laintiff's home, from a vantage point hundreds of metres away, is not an act of trespass: Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.…

Legislation cited in this decision · 7

Uniform Civil Procedure Rules 2005 (NSW)
13.5, 14.28, 14.29, 14.30, 42.1, 45.10,... 8 mentions (from Para 1)
Limitation of Actions Act 1974 (Qld)
10, 10AA, 32A 4 mentions (from Para 1)
Limitation Act 1969 (NSW)
14B, 56A 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
529 2 mentions (from Para 1)
Criminal Law Consolidation Act 1935 (SA)
257 2 mentions (from Para 1)
Defamation Act 2005 (TAS)
23 2 mentions (from Para 1)

Medium Neutral Citation:	Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
Hearing dates:	8 and 17 May 2013
Decision date:	17 May 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff's application for leave to file the proposed amended statement of claim is refused. (2) The plaintiff is granted leave to file an amended statement of claim in relation to the following causes of action: (a) The 13 June 2012 publication "Crackdown on party houses"; (b) Any claim for Internet publication of "Crackdown on party houses"; (c) The 13 June 2012 publication "New powers to shut down Gold Coast party houses"; (d) Any claim for Internet publication of "New powers to shut down Gold coast party houses"; (e) The 13 June 2012 publication "Party House"; (f) Any claim for Internet publication of "Party House"; (g) The 5 March 2013 "A Current Affair" broadcast; (h) Any claim for Internet publication of the 5 March 2013 "A Current Affair" broadcast; (i) The 6 March 2013 email from Stayz Pty Ltd; (j) The 22 March 2013 publication "Party houses a big pain on Gold Coast"; (k) Any claim for Internet publication of "Party houses a big pain on Gold Coast"; (l) The 3 May 2013 publication "Party House RIP"; (m) Any Internet publication of "Party House RIP". (3) The plaintiff is to file and serve an Amended Statement of Claim in 21 days conforming with the requirements of UCPR r 14.30 and [49] of this judgment. (4) These proceedings transferred to the Sydney Registry Defamation List for case management, with the next return date of 21 June 2013, and a general liberty to restore on three (3) days' notice. (5) Pre-trial conference date of 24 May 2012 in the Newcastle registry cancelled. (6) The plaintiff is to pay the costs of the defendants' Notices of Motion, including the costs thrown away by reason of the amendment of the statement of claim, on an indemnity basis. (7) Defendants' Notices of Motion are stood over to 21 June 2013. (8) Any Notice of Motion for interlocutory injunctive relief by the plaintiff to be filed and served by 11 June 2013 and to be made returnable for the next directions hearing on 21 June 2013.
Catchwords:	TORT - defamation - summary judgment - plaintiff brings numerous claims for defamation between 2009 and 2013 - proceedings previously commenced in Supreme Court of Queensland in 2010 - whether such claims time-barred and an abuse of process - whether leave required under s 23 Defamation Act 2005 - claim for trespass and breach of privacy - whether a common law claim of breach of privacy is available in Australia - claim for criminal defamation - whether aggravated damages claims accusing the defendants of perjury and assault should be struck out as scandalous - whether an order for indemnity costs should be made
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 - 58 and 64 Crimes Act 1900 (NSW), s 529