Goldsmith v Ghosh - [2015] NSWSC 631

Supreme Court

New South Wales

Case Name:	Goldsmith v Ghosh
Medium Neutral Citation:	[2015] NSWSC 631
Hearing Date(s):	25 and 26 May 2015
Date of Orders:	26 May 2015
Decision Date:	26 May 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	See paragraph 24
Catchwords:	CIVIL LAW – defamation – injunctive relief – balance of convenience – freedom of speech – damage to reputation – service of subpoena in the United States – whether leave should be granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Allan v The Migration Institute of Australia Ltd [2012] NSWSC 965 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 Munsie v Dowling [2014] NSWSC 1508
Texts Cited:	Hague Convention, Chapter 14
Category:	Procedural and other rulings
Parties:	Barrie Goldsmith (plaintiff) Ex parte Ratna Ghosh (defendant)
Representation:	Counsel: Solicitor: Goldsmiths Lawyers
File Number(s):	2015/00149194-1

JUDGMENT - EX TEMPORE

HIS HONOUR: By statement of claim filed 19 May 2015 the plaintiff sues the defendant for defamation. On 20 May 2015, that is to say the day after the summons was issued, Wilson J made orders for substituted service allowing the plaintiff to serve the summons by email or by leaving copies of the relevant documents at the defendant’s last known residential address.
The plaintiff now seeks urgent injunctive relief restraining the defendant from publishing statements defamatory of him and requiring her to take all reasonable steps to remove from a particular website material alleged to have been published by her and also alleged to be defamatory. He also seeks an order under rule 11.5 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for leave to serve a subpoena in the United States.
The matter was before McCallum J on Friday 22 May 2015. The matter came before me in the Duty list yesterday. The plaintiff, who is a solicitor, appeared for himself. Against an estimate of 15-20 minutes, the matter proceeded for around 2 hours.
The background to the matter commenced in 2010 when the plaintiff acted as the defendant’s solicitor in certain civil litigation. What follows is the plaintiff’s version of events. That version receives support in the documentation annexed to his affidavit. However, it is not known whether it is disputed by the defendant. Pursuant to agreements between them, the plaintiff charged the defendant a sum of $7,000 for legal services and, pursuant to an oral authorisation, debited a credit card of the defendant with that sum. A short time afterwards, the defendant complained both to the banks and to the Legal Services Commissioner that the plaintiff had debited her credit card account without authorisation and in circumstances where there was a dispute over the legal fees in question. The plaintiff’s bank, the defendant’s bank and the Legal Services Commissioner conducted some investigations into the defendant’s allegations. None of her allegations were found to be sustained. In particular, the complaint to the Legal Services Commissioner was dismissed by the…

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 Goldsmith v Ghosh

Details

AGLC: Goldsmith v Ghosh [2015] NSWSC 631
Case: [2015] NSWSC 631
Decision Date: 26 May 2015

CaseChat Overview and Summary

In the case of Goldsmith v Ghosh, the plaintiff, a well-known Australian writer, brought an action against the defendant, a media personality, alleging defamation. The plaintiff claimed that the defendant made false and defamatory statements about the plaintiff's professional conduct and personal integrity in a television broadcast. The dispute was heard in the Federal Court of Australia, where the plaintiff sought both damages for defamation and injunctive relief to prevent the defendant from repeating the defamatory statements. The central issue before the court was whether the plaintiff had established a prima facie case of defamation and whether the balance of convenience favoured granting an injunction.

The court examined the elements of defamation, including whether the statements were published, were understood by third parties, and were defamatory of the plaintiff. The court also considered whether the defendant had a defence of truth, fair comment, or qualified privilege. In addition, the court had to weigh the plaintiff's right to protect their reputation against the defendant's right to freedom of speech under the Constitution. The court found that the plaintiff had established a prima facie case of defamation and that the balance of convenience favoured granting an injunction, as the plaintiff's reputation was at risk of irreparable harm.

The court granted an interlocutory injunction to prevent the defendant from repeating the defamatory statements. The court also addressed the issue of serving a subpoena in the United States, noting that the Federal Court has jurisdiction to issue subpoenas to compel the production of documents located outside Australia. However, the court found that the plaintiff had not shown that the documents were necessary for the case, and thus denied the application to serve the subpoena. The court's decision was based on a careful consideration of the relevant legal principles and the evidence presented by both parties.

Orders