Ghosh v NineMSN Pty Ltd

1. [1]

   MACFARLAN JA: This is an appeal by leave from a judgment dated 17 September 2014 of Gibson DCJ dismissing, 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.

2. [2]

   Between the commencement of the proceedings on 22 March 2013 and their dismissal on 17 September 2014, 11 versions of Dr Ghosh’s Statement of Claim came before the Court, with the last version requiring further amendment to put it in proper form. The primary judge concluded that Dr Ghosh had shown a “continuing disregard of the obligation to conduct litigation in accordance not only with the rules of court, but with the basic courtesies” (at [97]) and that the proceedings were an abuse of process.

3. [3]

   For reasons given below, I consider that this conclusion was open to her Honour and not affected by any material error. As a result, the appeal should be dismissed with costs.

THE COURSE OF THE PROCEEDINGS

1. [4]

   The following brief description of the course of the proceedings suffices for the purposes of this appeal. A fuller account can be found in her Honour’s judgment ([2014] NSWDC 151).

2. [5]

   The proceedings in relation to the episode of 5 March 2013 were commenced by a statement of claim filed on 22 March 2013 (“the First Statement of Claim”, similar nomenclature is used for subsequent versions). On the defendants’ motions, the Court struck it out on 8 May 2013. Dr Ghosh was unrepresented at the time.

3. [6]

   On that day, Dr Ghosh served the Second Statement of Claim but on 17 May 2013 it was abandoned as a result of her service of the third Statement of Claim on that day.

4. [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]).

5. [8]

   On 14 June 2013, Dr Ghosh served her Fourth Statement of Claim. However on 21 June 2013 the Court directed her to serve a revised version making amendments identified by the Court.

6. [9]

   On 8 July 2013 Dr Ghosh filed her Fifth Statement of Claim, being some 103 pages in length. However, by judgment of 17 August 2013 Gibson DCJ refused to grant Dr Ghosh leave to file it ([2013] NSWDC 145).

7. [10]

   The following observation of her Honour in this judgment illustrates the difficulties that she had encountered in dealing with the proceedings to that point:

8. [11]

   That judgment again gave Dr Ghosh considerable guidance as to how her proceedings could be brought into order and concluded by saying that Dr Ghosh should be “permitted one last opportunity” to plead her claim properly (at [80]).

9. [12]

   On 20 September 2013 Dr Ghosh served her Sixth Statement of Claim which included (for the first time) a complaint about Channel Nine’s “A Current Affair” episode of 5 June 2013. On 10 October 2013 Gibson DCJ struck parts of it out and granted Dr Ghosh leave to serve an amended statement of claim, with costs ordered to be assessed and payable forthwith ([2013] NSWDC 206). Her Honour’s orders, extending over five pages, again gave Dr Ghosh considerable guidance as to how to bring her proceedings into order.

10. [13]

    In this judgment, her Honour observed that Dr Ghosh:

11. [14]

    On 1 November 2013 Dr Ghosh was granted leave to file her Seventh Statement of Claim and on 15 November 2013 the respondents served a request for further and better particulars of it.

12. [15]

    On 18 November 2013 Dr Ghosh filed in the Court of Appeal a Summons seeking leave to appeal against her Honour’s judgment of 17 August 2013 but did not serve the Summons.

13. [16]

    On 28 November 2013 Dr Ghosh, without leave, filed her Eighth Statement of Claim and on 10 January 2014 she filed (but did not serve) a Notice of Appeal in respect of her Honour’s judgment of 10 October 2013. At about this time, she also filed a Summons seeking leave to appeal against that judgment.

14. [17]

    On 28 February 2014 Dr Ghosh served her Ninth Statement of Claim. By this time she had legal representation.

15. [18]

    On 28 February 2014 Bozic DCJ ordered that applications then before the District Court be adjourned pending the outcome of the Court of Appeal proceedings commenced by Dr Ghosh. On the same day, Dr Ghosh commenced new proceedings in the District Court (numbered 2014/63022) (“the 2014 proceedings”) by filing her Tenth Statement of Claim which was served on 3 March 2014. Dr Ghosh did not mention her intent to do that at the directions hearing before Bozic DCJ earlier that day.

16. [19]

    On 4 April and 2 May 2014 the Court directed that Dr Ghosh inform the defendants of various matters including whether she proposed to seek leave under s 23 of the Defamation Act 2005 (NSW) to bring the 2014 proceedings. Section 23 requires the court’s leave to bring any further defamation proceedings in relation to the publication of the defamatory matter that is the subject of existing proceedings against the same defendant. On 23 May 2014, Dr Ghosh’s counsel responded that that was not intended to be done.

17. [20]

    On 6 June 2014 Meagher JA summarily dismissed Dr Ghosh’s appeal proceedings, stating that they had no real prospects of success ([2014] NSWCA 180).

18. [21]

    On 16 May 2014, two of the defendants filed a Notice of Motion seeking to dismiss the 2014 proceedings. This led to the earlier proceedings (“the 2013 proceedings”) and the 2014 proceedings being consolidated. The Court ordered that Dr Ghosh pay the costs of the dismissal motion. In her subsequent judgment of 17 September 2014, Gibson DCJ said that the costs orders agreed to at that time reflected “the unmeritorious nature of the plaintiff’s conduct” ([2014] NSWDC 151 at [30]).

19. [22]

    On 27 June 2014 Dr Ghosh filed her Eleventh Statement of Claim. This largely followed her Tenth Statement of Claim’s form save in relation to special damages where it reverted to the form of her Ninth Statement of Claim.

20. [23]

    On 4 July 2014 the Court directed that Dr Ghosh respond by 1 August 2014 to the defendants’ request for further and better particulars that was to be served by 18 July 2014. The request was made, as directed. Dr Ghosh did not respond to it by 1 August 2014 and the respondents sent letters on 4, 8 and 28 August 2014 seeking compliance with the direction and, in the case of the last letter, threatening to make an application to dismiss the proceedings for want of prosecution.

21. [24]

    On 1 September 2014 the defendants, having still not received a response from Dr Ghosh to their request for particulars, filed the Notice of Motion upon which the primary judge made the orders that are the subject of the present appeal. The defendants sought the dismissal of the proceedings, first, pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), on the basis that Dr Ghosh had not prosecuted her proceedings with due despatch and, secondly and alternatively, pursuant to “ss 56 – 62 (and in particular s 61) Civil Procedure Act 2005” on the basis that:

22. [25]

    The Notice of Motion was heard on 10 September 2014. On the previous day, Dr Ghosh’s counsel provided a response to the request for particulars. However it was unsigned and on his own letterhead, not that of his instructing solicitors.

23. [26]

    On 17 September 2014 the primary judge dismissed Dr Ghosh’s proceedings.

THE PRIMARY JUDGMENT

1. [27]

   The primary judge noted that Dr Ghosh’s failure to answer the request for further and better particulars dated 18 July 2014 had triggered the application for dismissal of the proceedings. Whilst her Honour considered that some of the matters raised by that letter were “minor matters” to which “any reasonable practitioner” could and would respond appropriately;

2. [28]

   McCallum J’s observation in Templar v Britton (No 2) to which the primary judge referred was that there had “been a wholesale failure [by the plaintiffs] to engage with the processes of the Court which reveal[ed] an arrant disregard for the importance of doing so” (at [37]).

3. [29]

   The primary judge then observed that Dr Ghosh’s failure to respond properly to the defendants’ request for further and better particulars of the aggravated and special damages claims was more serious. Her Honour noted that the defendants had been making such requests since 15 November 2013, without success, and that Dr Ghosh’s counsel had conceded that the claim for special damages was “unacceptably pleaded, to the extent that the Court would be justified in striking [it] out without leave to replead” (Judgment [70]).

4. [30]

   Having described the proceedings and reviewed relevant authorities, the primary judge observed:

5. [31]

   The passages in Al-Shennag v Woodcock, a decision of McCallum J, to which the primary judge referred were:

6. [32]

   The primary judge then said that the “same pattern of conduct is apparent” in Dr Ghosh’s case and that the defendants “point to the whole of the conduct of the litigation, but in particular” the following nine matters to demonstrate it:

7. [33]

   Her Honour said that the accuracy of these observations was unchallenged, save for a submission that the 2014 proceedings were “a fresh start” and that Dr Ghosh’s earlier failures should be “glossed over because she was a litigant in person” (Judgment [96]). As to the former, her Honour noted that the same pattern of conduct in fact continued after the 2014 proceedings were commenced (ibid).

8. [34]

   Having referred to the need for the Court’s resources to be used efficiently and stated that the present proceedings had instead misused them “in a sustained and significant fashion” (Judgment [94]), her Honour concluded as follows that the proceeding should be dismissed under UCPR r 12.7:

9. [35]

   In the alternative, the primary judge dismissed the proceedings on the basis of McCallum J’s following statement of principle in Bleyer v Google Inc [2014] NSWSC 897:

10. [36]

    In relation to this alternative, the primary judge concluded:

RELEVANT LEGAL PRINCIPLES

1. [37]

   A step in the primary judge’s reasons for dismissing the proceedings was her conclusion that the manner in which they had been conducted amounted to an abuse of process. A determination that an abuse of process has occurred is not strictly a discretionary decision. Rather, it is an evaluative decision of a subjective nature, regarding an issue upon which minds may differ (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [7]). Nevertheless, appellate court intervention depends upon satisfaction of the same principles that apply in respect of discretionary decisions (ibid, Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 212). These are the principles stated in House v The King [1936] HCA 40; 55 CLR 499, which require, in substance, identification of an error of principle or a material error of fact, or, if no specific error can be identified, demonstration that the decision is “unreasonable or plainly unjust” (at 505).

2. [38]

   These principles apply in the present case also because, in stating that the Court “may” dismiss the proceedings, UCPR r 12.7 confers a discretion in the strict sense.

3. [39]

   Further inhibiting appellate court intervention in cases such as the present is the court’s reluctance to interfere with first instance decisions on matters of practice and procedure (Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170 at 177; Re the Will of Gilbert (1946) 46 SR NSW 318 at 322–3). It is nevertheless relevant that the primary judge’s order put an end to the proceedings and although their dismissal would not prevent Dr Ghosh commencing fresh proceedings (Civil Procedure Act 2005 (NSW) s 91), ss 14B and 56A of the Limitation Act 1969 (NSW) have the practical effect of precluding that course, given the time that has elapsed since the matters complained of were published. The decision was therefore final in effect and the Court’s reluctance to intervene must be tempered accordingly.

4. [40]

   The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with “due despatch” is broad and should not be confined by rigid formulae (Stollznow v Calvert [1980] 2 NSWLR 749 at 751 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405:

5. [41]

   As the primary judge properly found, relevant delay in this context is not confined to that which is caused by a lack of activity, it extends to a delay arising out of a “want of constructive activity” (see [30] above).

6. [42]

   Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating “the just, quick and cheap resolution of the real issues in the proceedings” to the matters to be considered (s 56). As well, s 57 includes the “efficient use of available judicial and administrative resources” amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of “resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”.

7. [43]

   These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.

8. [44]

   In my view, her Honour’s conclusion is supportable by reference to the first source of power on which she relied, namely UCPR r 12.7. It is therefore unnecessary to review her Honour’s consideration of the authorities concerning the dismissal of proceedings for want of the proportionality identified in s 60 of the Civil Procedure Act. It is sufficient to say that the dismissal of proceedings simply upon the basis of a lack of proportionality, without the presence of further factors favouring that result, is likely to be justified only rarely. The primary judge did not act on this basis, even in considering her alternative ground. Rather, in concluding that there was a lack of proportionality, her Honour had regard to the same considerations that were relevant to the first ground of lack of “due despatch”, including “gross pleading errors [by Dr Ghosh], repeated listings and long directions hearings” (Judgment [120] and see [36] above). Furthermore, what her Honour perceived as a lack of proportionality was properly taken into account in her decision to dismiss the proceedings under UCPR r 12.7.

DETERMINATION OF THE APPEAL

1. [45]

   Dr Ghosh’s submissions on appeal focused on the nine factors relied upon by her Honour (see [32] above).

2. [46]

   As to factors (a) and (d) concerning the multiplicity of her statements of claim and the series of motions brought by the defendants, Dr Ghosh submitted that the primary judge erred in failing to consider that she was self-represented for part of the period in question. However, her Honour’s judgment demonstrates that she was fully conscious of this fact (see particularly Judgment [95] referred to in [34] above) and that she assisted Dr Ghosh, particularly while unrepresented, to bring her proceedings into order. Moreover, as her Honour pointed out, Dr Ghosh is a tertiary-educated person and came to be represented “by lawyers with extensive experience in defamation” nine months prior to the dismissal of the proceedings (ibid), although her Honour considered that the way in which the proceedings were conducted did not change significantly after Dr Ghosh became represented.

3. [47]

   As to factor (b), Dr Ghosh submitted that the primary judge erred in concluding that she required leave pursuant to s 23 of the Defamation Act to commence the 2014 proceedings. She submitted that leave was unnecessary because there were two additional defendants to those proceedings and the imputations pleaded in each set of proceedings differed to some extent. However, the fact that at least some of the defendants to the 2014 proceedings were also defendants to the 2013 proceedings was sufficient to enliven s 23. It did not matter that the imputations pleaded differed because, as contemplated by s 23, the proceedings related to the same publications.

4. [48]

   Dr Ghosh submitted that factors (c), (d) and (i) were irrelevant. I reject this submission. The matters to which her Honour referred were part of the circumstances of the proceedings to which she properly had regard.

5. [49]

   As to factor (e), Dr Ghosh submitted that there was no evidence before the Court as to the costs, or likely future costs, of the proceedings. However, the defendants in fact provided an estimate of the costs they had incurred. In any event, the fact that substantial costs had been, and would in the future be, incurred was obvious.

6. [50]

   As to factor (g), Dr Ghosh’s counsel conceded that her claim for aggravated and special damages was unacceptably pleaded (see [29] above). This concession was appropriate given the claim was not properly particularised and was inconsistent with the submissions made on Dr Ghosh’s behalf asserting that the claim was higher than the amount stated in the pleading (Judgment [68]).

7. [51]

   As to factor (h), her Honour’s reference to the “continued hopelessness of the pleadings” was simply a statement that despite the history of the proceedings, the current statement of claim was not in proper form.

8. [52]

   Dr Ghosh then submitted that her pleadings had “turned the corner” by the time of the hearing of the motion to dismiss and that the appropriate way of dealing with the acknowledged deficiencies in her Eleventh Statement of Claim was to strike out the particulars of aggravated and special damages. Her counsel submitted that “[p]articulars in respect of damage are not matters to which a defendant pleads and their inadequate particularisation does not create the type of prejudice that justifies the striking out of an entire properly pleaded claim”.

9. [53]

   This submission inappropriately ignores the proceedings’ history which her Honour was entitled to, and did, take into account in identifying the appropriate order to be made. In the 18 month period from the proceedings’ commencement to their dismissal, a huge amount of the Court’s judicial and administrative resources was devoted to what was only one matter in her Honour’s busy list. This use, and the corresponding costs incurred by the defendants, was far in excess of what was warranted. As I have pointed out, the primary judge put considerable effort into assisting Dr Ghosh to progress her claim. Those efforts, as well as the various costs sanctions imposed in the course of the proceedings, resulted in some progress. Whilst the form of the statement of claim was brought far closer to adequacy than it had been at the outset, it remained inadequate and Dr Ghosh’s consistent failure to deal properly with the defendants’ requests for particulars demonstrated a continuing disregard for the overriding purpose of the Civil Procedure Act and rules of court to facilitate “the just, quick and cheap resolution of the real issues in the proceedings” (s 56).

10. [54]

    As her Honour did not make any error of principle or material error of fact, and as her conclusion was reasonably open to her, the appeal should be dismissed with costs.

11. [55]

    LEEMING JA: I agree with Macfarlan JA, for the reasons his Honour gives, that no error has been shown in the first way (that is, pursuant to UCPR r 12.7) in which the primary judge concluded that Dr Ghosh's proceedings should be dismissed. It follows that the appeal must be dismissed. I also agree with Macfarlan JA that it is unnecessary to express a concluded view on the separate basis (that is, want of proportionality) on which the primary judge relied.

12. [56]

    ADAMSON J: I agree with Macfarlan JA.