Ghosh v Miller [2017] NSWSC 791 | Case summary

Principles

The defendants' move under r 13.4 of the Uniform Civil Procedures Rules 2005 (UCPR) that the proceedings are an abuse of the process of the Court and pray for an order that the proceedings be dismissed generally. Two of the defendants seek an express order that prevents the plaintiff from bringing further proceedings for the same or substantially the same cause of action or the same relief against them. The remaining defendants seek an order under the Vexatious Proceedings Act 2008, the effect of which would be, from their perspective, the same.
It should be noted that no defendant suggests that the proceedings are frivolous or vexatious or that a reasonable cause of action has not been disclosed (UCPR r 13.4(1)(a) and (b)). The third to seventh defendants also relied on UCPR r 12.7 and UCPR r 22.5.
UCPR r 12.7 deals with a failure to conduct proceedings with "due despatch" and UCPR r 22.5 deals with the Court's capacity to order that the proceedings be stayed or dismissed in circumstances where the plaintiff has failed to answer interrogatories or fail to answer interrogatories sufficiently, after the Court has ordered them to answer interrogatories. In some respects, at least, UCPR r 22.5 is a particular provision dealing with a failure to conduct proceedings with "due despatch".
Each of the provisions upon which the defendants rely involves an exercise of discretion by the Court. The discretion must be exercised judicially and bearing in mind the purposes of the Civil Procedure Act 2005 and the UCPR, without taking into account extraneous considerations.
Abuse of process as a concept is difficult to define, but includes the commencement or maintenance of proceedings for a collateral purpose (i.e. a purpose other than that of obtaining the remedy which the pleadings, on their face, claim). It also includes proceedings that have no prospect of success or have no real prospect of resulting in a substantial remedy or a remedy that is commensurate with the expense involved in conducting the proceedings.
As stated above, the defendants' motions before the Court do not rely upon the proposition that there is no reasonable cause of action or that the proceedings are frivolous or vexatious. Nevertheless, it should be noted that the proceedings relate to a "blog" and a story run on the mass media, concerning a "party house".
It is said that the plaintiff rented her premises in the Gold Coast to persons who used it for bucks' nights, football celebrations and the like. Essentially, the complaint is about the conduct of the tenants and their lack of thoughtfulness but, implicitly, and by reason of comments made by the plaintiff, the plaintiff's conduct in renting the premises for such purposes is also the subject of criticism.
It is not absolutely clear how the plaintiff makes out a claim that these complaints have diminished her capacity to rent out the premises, if the premises are being let for such purposes. However, the reason the Court refers to the nature of the publications is that the plaintiff is identified only when she is interviewed and the initial articles and blogs do not criticise the landlord; they criticise the tenants. That, of course, does not mean that the plaintiff is not entitled to damages, assuming, for present purposes, that the blogs are defamatory of her and that she is identified, as, at least in one publication, she was.
Rather, it suggests that the level of damages will be small. Special damage is not claimed; truth is a defence pleaded; and the material before the Court suggests that much of the content of the complaints is the subject of filming. As a consequence, there is a strong possibility that the defence of justification or truth may be arguable, and may be more than arguable, at least in relation to many of the alleged imputations, thereby diminishing the damages, if there be any.
Abuse of process is a different species of attack on proceedings than motions relating to proceedings being frivolous, vexatious or disclosing no reasonable cause of action. The Court is not here concerned with an abuse of process occasioned by the commencement of concurrent proceedings. Nor is the Court concerned with defects in the pleadings themselves, whether curable by amendment or otherwise.
The starting point for the exercise of the discretion of the Court is the goals set and requirements imposed by the provisions of the Civil Procedure Act. By s 56 of the Civil Procedure Act, the legislature has rendered the overriding purpose of the Civil Procedure Act and of the Rules of Court, in matters such as this, to be to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Of these proceedings, it cannot be said that the conduct of the plaintiff has facilitated either the quick or the cheap resolution of the issues in the proceedings.
Further, the Court is required to seek to give effect to that overriding purpose when it exercises powers under the Civil Procedure Act and/or the Rules, or when interpreting any provision of the Civil Procedure Act and/or the Rules. Moreover, parties and legal representatives are required to assist the Court to further that overriding purpose, including participating in the processes of the Court and complying with directions and orders of the Court.
The obligation in s 56(2) of the Civil Procedure Act is to weigh each of the three objectives in the exercise of the discretions reposed in the Court under that Act and the Rules, being the proper, expeditious and "cost effective" resolution of the proceedings: Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 at [30]. The Court, as presently constituted, is bound by the statement of the Court of Appeal.
Nice questions, however, arise as to whether the term "cheap" accords with the term "cost-effective" or "least expensive". "Cheap" generally refers to something less than the best quality, in which quality is compromised for cost.
Nevertheless, even on that meaning of the word "cheap", it accords with the provisions of s 56 of the Civil Procedure Act, in that the Court is directed to take account of case management, efficiency and cost in determining that which is "just". A remedy (or, in this case, the defeat of a remedy that is sought) is meaningless if the cost of enforcing a right or defending against the claim of a false right outweighs the remedy sought or the prejudice associated with conceding a claim that is not otherwise justified.
These issues are further dealt with in ss 57, 58, 59 and 60 of the Civil Procedure Act and the Court is provided powers under ss 61 and 62 (particularly s 61) of the Civil Procedure Act to give effect to the overriding purpose in s 56 of the Civil Procedure Act. In effect, the third to seventh defendants' motion, relying on the provisions of UCPR r 12.7, seeks the exercise of the powers in s 60(3) of the Civil Procedure Act on account of the plaintiff's failure to comply with the directions given by the Court, being directions to take specified steps, including the production of documents and the answers to interrogatories or to provide them in the time specified by the Court or the District Court.
In particular, all of the defendants rely upon the principles established by s 60 of the Civil Procedure Act in that the defendants submit that the manner in which the plaintiff has conducted the proceedings has led to the failure of the Court to resolve 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. It is for reasons associated with this submission, that the Court earlier dealt with the likelihood of substantial damages being awarded as a result of these proceedings.
In some respects, the provisions of s 60 of the Civil Procedure Act add little to the combined effect of ss 56 through to 59 of the Civil Procedure Act, but make express the doctrine of proportionality as a feature in determining the practice and procedure of the Court.
In these proceedings, the plaintiff sues on a number of publications, none of which are in dispute. The publications have been reproduced for the purposes of the Court. There are issues associated with the operation of the Defamation Act 2005, such as whether the publications are expressions of opinion on the basis of facts that are contained in the publication or are otherwise notorious. There may even be a defence as to triviality, but given the terms of s 34 of the Defamation Act and the requirement for any damages awarded to bear an appropriate and rational relationship to the harm sustained by the plaintiff, the damages awarded, if the plaintiff were successful, would not be at the high end of damages awards, all of which are limited to $381,000 currently (by the time of the hearing of this matter, were it to proceed, presumably $389,500) (Division 3 Defamation Act, namely ss 34 and 35).
The "substantive" issues are the issues of justification and contextual truth. Are the statements in the publications substantially true or, in the context of defamatory imputations that are substantially true, do the defamatory imputations further harm the reputation of the plaintiff? Those are factual questions. Their resolution should be relatively easy.
Yet, at the date of hearing these proceedings had taken three years, in both the District Court and this Court and a hearing date is yet to be set. There have already been attempts to re-litigate substantially the same material against other defendants, which have been denied.
There have been appeals, for which leave to appeal has been denied. In each of the foregoing examples, the plaintiff was the moving party.
That is not to say that the plaintiff has not succeeded on some applications for example the striking out of one or other of the defences. But that application, and its success, is not an unusual feature of defamation proceedings.
Great care must be exercised in determining to strike out proceedings on the basis of abuse of process: Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [161] per McColl JA. While abuse of process is a doctrine of considerable breadth, it must be considered by a close analysis of the factual background and pleadings and a precise characterisation of the alleged abuse of process. In part, this is due to the exceptional nature of the remedy sought.
As earlier stated, abuse of the process of the Court is difficult to define, "is not susceptible of a formulation comprising closed categories", but includes the seeking of an illegitimate or collateral purpose, the use of the Court's procedures for unjustifiable oppression; and processes that bring the administration of justice into disrepute: Batistatos v Roads and Traffic Authority (NSW); Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27 at [1], [9]; PNJ v R (2009) 83 ALJR 384; [2009] HCA 6 at [3]; Moore v Inglis (1976) 50 ALJR 589, per Mason J; Walton v Gardner (1993) 177 CLR 378; [1993] HCA 77 at CLR 392; and Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, at CLR 529; all of which are cited in Habib, supra at [78]-[80].
Bearing all of those principles in mind, the concept of abuse of process includes: pursuing proceedings for which there is no real prospect of those proceedings resulting in a remedy of substance and which involve unjustifiable expense or use of judicial resources (Attorney General v Crocker [2010] NSWSC 942 at [17], per Fullerton J); the pursuit of fresh proceedings after a defeat in previous proceedings (Crocker, supra at [17]); persistence in futile appeals in the face of repeated judicial observations that arguments were doomed to fail (Crocker, supra at [133]); and causing others to incur legal costs in responding to hopeless applications where the moving party has disregarded costs orders already made (Crocker, supra at [134]).
The defendants submit that the misuse of the Court's resources in a sustained and significant fashion by the plaintiff in these proceedings has occurred and whether that misuse is careless or deliberate, it should result in the proceedings being struck out in their entirety. Further, the defendants submit that those rules of procedure apply as much to self-represented litigants as they do to those that are represented.
In these proceedings, for many months, the plaintiff failed to serve the documents on the relevant defendants. I do not consider, as a factor in these proceedings, that the Statement of Claim was struck out and required re-pleading.
As earlier stated, the striking out of pleadings and the necessity for a party to re-plead is not unusual in defamation proceedings. Nevertheless, there are a number of aspects of these proceedings that warrant comment and on which the defendants rely.
The defendants rely upon the judgment of Gibson DCJ in Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Nine MSN Pty Ltd (No 4) [2014] NSWDC 151. In that judgment, Gibson DCJ determined that there had been an abuse of process by the plaintiff in proceedings for defamation, relying upon the same underlying subject matter.
The defendants submit that the total conduct of the plaintiff must be considered, including the conduct in the District Court in proceedings concerning the same or similar subject matter. The circumstances on which the defendants rely in relation to the 2014 proceedings and the judgment of Gibson DCJ to which the Court has referred are: 1. The circumstance that, faced with a stay pending appeal of the 2013 proceedings, the plaintiff commenced the 2014 proceedings without leave and without notifying the defendants or the Court during the Directions Hearing on 28 February 2014; 2. In the two applications for leave to appeal to the Court of Appeal each of which were commenced out of time and were "hopeless in content"; 3. The circumstance that the defendants had filed a series of notices of motion seeking to have proceedings struck out as an abuse of process in relation to the 2013 and 2014 proceedings for nearly the entire time that the proceedings have been on foot, in circumstances where their complaints have generally been made out and have resulted in increasingly harsh costs orders against the plaintiff, yet the abuses have continued; 4. The substantial costs incurred to date and the likelihood that they will increase substantially; 5. The 'arrant disregard' (Templar v Britton (No 2) [2014] NSWSC 587 at [37]) 'evident in the plaintiff's refusals to comply with Court orders regarding interrogatories' and discoveries; 6. The inconsistent and particularised claims for special damages; 7. The "hopelessness" of the pleadings and the failure of the plaintiff to move beyond the initiating process; 8. Non-compliance with costs orders and (given the recent bankruptcy and quashing of bankruptcy orders) the lack of likelihood that, should the plaintiff not succeed in these proceedings, costs will be a practical remedy for the costs the defendants will have incurred; 9. The failure of past costs orders, including orders for indemnity costs and costs payable forthwith, to act as a deterrent to the foregoing conduct.
It is appropriate to set out two of the questions and answers in the interrogatories served by the defendants and the answer which was said to be an answer to the question posed. The questions relate to an alleged agreement between some or all of the defendants to erect signs, alleged to be defamatory. The interrogatories and draft answers are in the following terms: "Defendants' interrogatory: 8. With reference to paragraph 11A on page 8 of the claim: (a) Was the agreement: (i) in writing; (ii) oral; or (iii) in part writing and in part oral? (b) When was the agreement made? (c) Who was present at the time the agreement was made? (d) What were the specific signs written by each of: (i) the third defendant; (ii) the fourth defendant; (iii) the fifth defendant; (iv) the sixth defendant; (v) the seventh defendant? (e) Where exactly was each sign displayed? (f) What were the signs displayed by each of: (i) the third defendant; (ii) the fourth defendant; (iii) the fifth defendant; (iv) the sixth defendant; (v) the seventh defendant? Answer: Paragraph 11A on page 8 of the Second Further Amended Statement of Claim is copied here: [the plaintiff then set out the terms of paragraph 11A]. Pictures of the signs were served repeatedly over a two year period to the defendants as Annexures to the Claim, showing clearly the sixth and seventh defendants had two signs in their backyard (they admitted this in their Defence): 'Slumlords are Ruining Our Neighbourhood' and ' Neighbourhoods are for Families.' The sixth and seventh defendants proudly admitted repeatedly to the media, the police, all visitors to the plaintiff's house, and the plaintiff that the sign was referring to the plaintiff as the 'Slumlord'. Both of these signs are reminiscent of the Schuch Family's ancestral Nazi Holocaust cleansing Germany's neighbourhoods of all Jews, ethnics, homosexuals and spastics. 70 years later, the immigrant Schuch family have resurrected the Nazi campaign dictating that only families can live in Surfers Paradise, Queensland, and that ethnic owners are "'Slumlords'. The seventh defendant was quoted in the Gold Coast bulletin's 'Party-House Hell' article of 21.12.2009, as in Annexure 'A', with the same signs attached to the article as in the fourth matter complained of: 'she said she and her neighbours had put up signs warning the party goers to stay away.'"
The draft answer to the question (draft answer because, at the time of hearing, verified answers had been served) is not even a reasonable attempt at answering the questions and represents a discourse into moral rectitude, modern history and/or submissions. The answer to question 10 of the interrogatories is equally puzzling. It is in the following terms: "[the plaintiff repeated paragraph 14 on page 12 of the Second Further Amended Statement of Claim] Correspondence between a Doctor of good standing and the Medical Board is protected by privilege, and not privy to these murderous and malingering criminals, in particular bogus accountant Marilyn Bee."
These draft answers to the interrogatories are unresponsive, scandalous, and, in terms, abusive.
The plaintiff's Affidavit of 7 March 2016, filed in the proceedings, contains the following statement (on oath): "I seek immediate suspension of McLoughlin J (sic-read DCJ) from all my cases for actual and perceived bias, verbal abuse, racist comments and severe senile dementia in my professional opinion as a Medical Doctor of good standing."
The defendant also relied upon the fact that proceedings in relation to the same publications against the Channel Nine Interests were dismissed by the District Court and by the Queensland Supreme Court and both sets of proceedings were being run simultaneously: See Ghosh v NBN Ltd [2014] QCA 53.
In the Queensland proceedings, the plaintiff had taken no steps for the two-year period following the filing of the Statement of Claim and, by the time the Queensland Court of Appeal considered the matter, had taken only the further step of lodging an appeal against the original dismissal of proceedings for want of prosecution.
It is difficult, if not impossible, to lay down strict guidelines for the application of UCPR r 12.7 and circumstances that will constitute a lack of "due despatch". The Rules (r 12.7 of UCPR) prescribe that the proceedings may be dismissed (or such other order made) where the plaintiff does not prosecute the proceedings with due despatch. Necessarily, the exercise of such a discretion depends very much on the circumstances of each particular case.
Nevertheless useful guidance may be provided but by the manner that the discretion has been exercised in other cases and by the factors there considered: Stollznow v Calvert [1980] 2 NSWLR 749. If the plaintiff, personally, is blameless in the delay then such a circumstance would be a factor weighing heavily against the exercise of the discretion to dismiss. Likewise, a delay to which a defendant acquiesces is also a factor to be weighed heavily against the exercise of the discretion to dismiss.
Ultimately, the criterion for the exercise of the power conferred is whether, in all the circumstances, justice requires that the proceeding should be dismissed. In that evaluation, the Court should take a common sense approach and take into account all of the factors of the proceedings and its context.
In this case, the plaintiff has already had two sets of proceedings dismissed. Each of those proceedings was a proceeding seeking damages in defamation for the same publications. In each case, the proceeding has been dismissed either for want of due despatch or for actions of the plaintiff that have rendered a continuation of the proceedings disproportionate to the damages that could be awarded.
In this case, the plaintiff has refused, no other description being appropriate, to answer interrogatories and to provide discovery in accordance with the orders of a court. In defamation proceedings particularly, answers to interrogatories and the provision of discovery are, once ordered, essential in the just and fair conduct of the proceedings.
The refusal to answer interrogatories and the delay in answering interrogatories, coupled with the delay in the production of documents, as directed, has meant that the proceedings cannot be listed for hearing and have become incapable of being resolved expeditiously.
While it is fair to suggest that some non-compliance with the time constraints imposed upon the defendants has occurred, such delay that has been caused by the defendants has been inconsequential and could easily have been subsumed within other directions that could have been made and would not have delayed the hearing of the matter. Moreover, at no point has any of the defendants acquiesced in the delay by the plaintiff or failed to "prod" the plaintiff into action.
The defendants have been caused significant expenditure as a result of the failure of the plaintiff to complete the procedural steps and move towards a hearing date. The circumstances (including the number of proceedings that have been commenced) does tend to suggest that the purpose of the proceedings is not to obtain damages for defamation, but to stifle the criticism by the plaintiff's neighbours of the conduct of the plaintiff's tenants and, to the extent complaint is made about it, the thoughtlessness of the plaintiff in allowing conduct of that kind by the manner in which the premises are leased.
There seems, on the evidence before the Court, little chance for the defendants to be compensated for the costs incurred by many seemingly vexatious motions on notice, relating to the proceedings, which motions have had the effect of delaying the resolution of the alleged issues between the parties.
The existence of motions point to activity by the plaintiff. But the nature of the motions, or many of them, are wholly unmeritorious and the motions seem to be utilised as a tactic to delay the ultimate conclusion of the proceedings and the resolution of the issues in them.
These reasons have earlier referred to the provisions of s 61 of the Civil Procedure Act. During the course of these proceedings, directions have been made by both this Court and the District Court that the plaintiff take specified steps, namely the answers to interrogatories and the provision of documents on discovery, including setting a time limit by which such specified steps must have been completed. Yet the plaintiff has refused to abide by specified time limits and/or to take the steps that have been specified. In those circumstances, the Court's powers under s 61(3) of the Civil Procedure Act inform the exercise of the discretion under UCPR r 12.7(1).
I take into account that the effect of a dismissal for lack of due despatch would preclude the plaintiff from successfully obtaining damages in these proceedings. I refer to the earlier comments as to the likely significance of such damages. Nevertheless, the dismissal of proceedings is an extreme step, which denies to plaintiffs their "day in Court", at least in these proceedings.

Consideration

At the hearing of these motions, I made it clear to the parties that I would not determine the defendants' motions until the proceedings in relation to the joinder of additional parties had been finally resolved. Because of the plaintiff's appeal in relation to that matter, in relation to which I do not suggest that delay has been caused by the plaintiff, that issue was not resolved until relatively recently.
As a consequence, some delay has been caused by the Court. I do not by the foregoing suggest blameworthiness on any party or the Court. It is simply a fact of the processes that the judgment on the motion to join the parties, having been determined ex tempore, was the subject of appeal, which appeal takes time.
The plaintiff, as earlier mentioned, seeks to strike out all of the defences under UCPR r 22.5(1)(b) or, alternatively, under UCPR r 12.7(2).
The plaintiff alleges lack of due despatch on the part of the defendants. I have already dealt with the short delay of some two weeks, caused by the defendants' failure to abide by the time limit set by the directions.
Further the plaintiff seeks to strike out all of the defendants' pleadings pursuant to the powers contained in s 60 of the Civil Procedure Act, namely, that the filing of the defences does not accord with the doctrine of proportionality of costs and seeks that the Court award damages, presumably on assessment. The plaintiff also seeks, again, a Gross Sum Costs Order, payable forthwith, which claim has been refused at least twice and, in this motion, it is sought "for contumelious conduct by the defendants".
These aforementioned orders, sought by the plaintiff, are in the context of a prayer for the plaintiff to have leave to amend, again, the Second Further Amended Statement of Claim to "un-strike 'Naked Neighbours', as it was never struck out by the Court". It also seeks for the Court to refer the defendants to the Attorney General for prosecution for perjury, contempt of court, tampering with the court file and computer hacking offences.
Prayers four, five and seven of the motion, notice of which was filed on 9 May 2016 by the plaintiff, are wholly without merit. They seem to amount to another step that would have the effect of delaying the ultimate conclusion of the proceedings again or its listing.
Moreover, once it is sought to have a further amendment to the Second Further Amended Statement of Claim, presumably to file a Third Further Amended Statement of Claim, the defendants would necessarily, under the Rules, have the capacity to file a Defence thereto. In effect, the plaintiff is seeking to "start again" after 3 years.
It seems that the plaintiff suggests that the defendants' conduct in defending the proceedings has led to delay and therefore under the provisions of s 59 of the Civil Procedure Act and the Courts duty to eliminate delay, the defences should be struck out.
Other arguments have been put in the plaintiff's written submissions. First, the plaintiff suggests that there are many versions of the defence, all of which were filed late. I have already dealt with the lateness of the filing of documents.
The plaintiff also complains about the amendment to the defence after replies were filed. The defences were amended, by leave of a court.
The written submissions also deal with the sacking of lawyers by the defendants (without any suggestion that it led to delay) and the "competence" of the lawyers engaged by the defendants.
There is then reference to currently wholly irrelevant matters such as whether the plaintiff can properly be described as being "Ros Bandy". It is said because the defendants know something, it is unnecessary for an interrogatory to be requested and answered. Nevertheless, the interrogatory was ordered by the Court after these matters were "explained" to Gibson DCJ.
On the submission of the plaintiff "her Honour ignored valid objections, and once again ordered that I answer interrogatories and discovery (of very poor standard) without reading the interrogatories and discovery list. Therefore, the interrogatories and discovery were issued without leave of the Court, as required by UCPR 22." The written submissions are generally of the foregoing standard and continue to make unsubstantiated complaints about orders of the Court or the District Court.
For example, in [5] of the Written Submissions of the plaintiff, the plaintiff submitted: "My allegations about Judge McLoughlin is evidenced by His Honour's failure to publish orders given in Court by him refusing leave to amend the defence for the third to fourth defendants. This occupied three full days of hearing time for my Counsel, Mr Rasmussen, who emailed me the verbal orders. After this, the third and fourth defendants attempted to file the Amended Defence without leave of the Court, taking full advantage of the ambiguous orders published by Judge J McLoughlin, that were contrary to his orders in Court."
Further at [7], the plaintiff submits: "The defence of 'honest opinion' is for honest people, which I have proved the Millers are not, in their continuous lies under oath in all proceedings that concern them. …"
The plaintiff's submission refers to the illegality of the relevant website, because it was shut down by the Australian Taxation Office for tax evasion and fraud and a range of other irrelevant and unsubstantiated considerations. The plaintiff then relies on the inability of the first defendant to rely on what is referred to as estoppel from the decision of the Consumer Trader and Tenancy Tribunal seemingly because "none of [her] evidence was allowed in the CTTT". There is then reference to whether the Queensland District Court allowed an appeal; whether there was a complaint to the Queensland Civil and Administrative Tribunal; whether complaints were made to the New South Wales CTTT; and that the plaintiff had evidence to the contrary of that which was alleged.
The plaintiff proceeds to deal with what she suggests is the truth or otherwise of the allegations of fact in the defence and the untruth of the defamatory imputations, such as whether a pool fence was necessary, and the like. The written submissions are repetitive and do not deal with the substance of the issues raised in the motions by the defendants.
Even the manner in which the matter was conducted raises issues that support the contentions of the defendants. When the matter was first listed before the Court, as presently constituted, complaint was made as to the identity of the judicial officer, because I was not the defamation list judge. The plaintiff desired a "defamation judge"
It was said that arrangements had been made for the plaintiff to be represented in these proceedings by a person otherwise appearing in the defamation list and that arrangement could not be effected because the matters were to be held in two different Court rooms. As a consequence, the Court enquired as to the circumstances of the listing and it became apparent that the plaintiff was informed that the listing would be before a judge that would deal only with the various motions on notice and would not be in the general defamation list.
Further, as a consequence of the objections and the alleged inability of the plaintiff to deal with the issues that were listed to hearing, time was given to deal with the matters. The plaintiff filed a written reply on 1 September 2016, which asserts that no delay has been occasioned by her conduct, complains about the competence of the judicial officers that had dealt with her proceedings on occasion, and the legal representatives of the defendants. Complaint was, once more, made of the fact that the matter had been listed, on the plaintiff's view, in the "Common Law List".
The plaintiff, in her submissions in reply, confirms that, the matter having been listed by 10 am, did not commence until 10:30 am, the plaintiff having arrived at 10:20 am.
Further, the plaintiff asserts that she had not breached any order relating to interrogatories or discovery because the requests "were of exceptionally poor standard, and asked me to give copies of my personal identity documents to defendants under criminal investigation for hacking and identity theft. Valid objections were ignored by the Court. The defendants failed to particularise why these documents were needed, when I already told them my legal name." (para 11 of Plaintiff submissions of 1 September 2016).
There are insulting and deprecatory comments as to Counsel appearing for the defendants and the plaintiff seems to deal with the matter on the basis that there is an arguable claim, not on the basis of the particulars of delay to which both Counsel for the defendants refer. The plaintiff accuses the defendants of criminal conduct, alleges there exist police reports by the plaintiff and her husband and, because of the existence of these reports to the police by the plaintiff and her husband, suggests that, therefore, her allegation in the pleadings, that the defendants are "criminals", is not scandalous or vexatious.
I do not repeat all of the matters in reply but have taken into account both the Written Submissions and the Reply of 1 September 2016.
The time taken for these proceedings to get to the stage where the Court is capable of listing them for hearing is extremely problematic. At the time of the hearing of these motions, on the records of the Court, the plaintiff had only just sufficiently answered interrogatories directed by the District Court before transfer and re-confirmed on a number of occasions by the District Court and this Court. Further, despite specific directions for the production of documents, the plaintiff has flatly refused to produce the documents, mostly on the basis of her criticism of the exercise of the discretion by the judicial officer.
If the comments in the blog and/or other publications are untrue, then the plaintiff has been defamed. Most of that defamation is by true innuendo, being defamatory only to those who were aware as to the owner of the premises. That does not preclude damages. On the contrary, once one person has identified the plaintiff on a reasonable basis, the plaintiff has been identified and the imputations arise. It may, however, limit damages.
Further to the above, at least one of the publications identifies the plaintiff expressly, as a result of seeking and obtaining the plaintiff's comments on the allegations that were being made. As a consequence, if the allegations were untrue, both as expressed and in context, damages would be awarded.
As earlier suggested, those damages would not be significant. Yet the proceedings have taken three years. The costs of litigating these defamations are beyond any damages that could be awarded. The costs are already in the hundreds of thousands of dollars. It is possible but not likely that damages would be more than $20,000.
Notwithstanding the extreme nature of the step, given the embarrassing and slanderous allegations that the plaintiff continues to make in documents filed in the Court, and given the refusal of the plaintiff to abide by the directions of the Court in a timely fashion, the costs of this litigation are disproportionate to the damages that may be awarded. Further, the plaintiff has not conducted the proceedings with "due despatch".
The plaintiff filed a Summons to appeal the directions of McLoughlin DCJ, on the last day before the matter was to return to his Honour and his Honour had indicated, in the absence of compliance with the directions, the proceedings would be struck out. Presumably, his Honour was relying upon the provisions of s 61 of the Civil Procedure Act and was giving a direction, expressly, in those terms and advising the plaintiff of the consequences of failure to comply.
As already stated, the matter came before the Court of Appeal (Sackville AJA) and Counsel then appearing for the plaintiff did not proceed with the appeal and asked for the matter to be referred to the Registrar's list. While the appeal proceedings were before the Court of Appeal, the plaintiff filed a Summons to transfer the District Court proceedings to the Supreme Court, which was the subject of consent by the defendants. The proceedings had originally commenced in the Local Court (which has no relevant jurisdiction).
The plaintiff, on the evidence before the Court, from time to time served on the defendants informal documents upon which the plaintiff then relied and which, in content and form, were scandalous, insulting, embarrassing and did not comply with the orders of the Court. Then, the plaintiff engaged Counsel to serve formal documents. That process involved the defendants in dealing with informal documents at length, thereby incurring significant costs, all of which work was rendered useless and irrelevant to the conduct of the proceedings.
On the evidence before the Court, I cannot hold to the relevant standard that the plaintiff's conduct is motivated to achieve a purpose other than the conduct of the proceedings. I make that finding on the basis that, in my view, to prove such a matter involves a heavy onus and requires some evidence from which the inference can be drawn as to the subjective motivation of the plaintiff.
There is no evidence upon which I can, legitimately, draw the inference that the plaintiff is motivated for a purpose other than the successful completion of the proceedings. The proposition that I should draw such inference solely on the basis of the delay and the nature and content of the documents filed in Court or served (formally or otherwise) on the defendants is not accepted.
Those documents may be in that form, and are more likely than not in that form, and that conduct has more likely than not occurred, not because of the subjective motivation of the plaintiff, but, rather, because of the lack of focus on the issues at hand and the issues that are relevant, in a legal and common sense use of that term, to the adjudication being undertaken.
There are some uncontested facts. The plaintiff was directed by McLoughlin DCJ to undertake certain conduct, being the answers to interrogatories and the production of documents. That was not done in the time specified by his Honour. The fact that an appeal was lodged against his Honour's directions, does not stay the directions. It was incumbent upon the plaintiff to comply with the directions of his Honour.
The whole proceedings have been agitated by the plaintiff in a manner that is simply unacceptable. It is unlikely there will be substantial damages.
It is almost impossible for the damages that could be awarded in these proceedings, as stated earlier, to be anything that remotely resembles an amount proportionate to the costs involved in this litigation, mostly by reason of the conduct of the plaintiff, but not wholly. I take account of the principle that defamation is not only about the level of damages, but also vindication.
In my view, applying the principles to which the Court has referred in relation to abuse of process and to due despatch, bearing in mind the number of proceedings relating to the same publications and the manner of their conduct, but, particularly, bearing in mind the manner that these proceedings before the Court (or previously before the District Court) have been conducted, the costs of the litigation is wholly disproportionate to anything that can be awarded by way of damages.
Further, the plaintiff's conduct amounts to an abuse of process and the plaintiff has not conducted the proceedings with due despatch. I also conclude that the plaintiff has not, in the time specified, complied with the directions of the Court as to the filing and service of documents.
Nevertheless, the plaintiff has a cause of action, which she would otherwise be entitled to agitate. The plaintiff ought to be entitled to agitate those proceedings, if the plaintiff can establish that the proceedings will be conducted efficiently and inexpensively.
I am not prepared to make an order that the plaintiff not be entitled to prosecute defamation proceedings in relation to the publications. Nor am I prepared to make orders under the Vexatious Proceedings Act.
As against these defendants, the plaintiff has not conducted "repeated" litigation. Nor has the plaintiff frequently commenced proceedings. It may be that the plaintiff has frequently filed motions that were inappropriate. Nevertheless, such orders will not be made by the Court, at this juncture. However, some limitation on the commencement of fresh proceedings is appropriate.
For the foregoing reasons, the Court issues the following orders: 1. Motion of the plaintiff dismissed as to prayer one; 2. Judgment for the defendants and each of them on the motions filed by them; 3. Proceedings dismissed; 4. The plaintiff may not file any application (other than an appeal from this judgment) in relation to commencing further proceedings for defamation arising from the publications to which these proceedings refer, without leave of the Court, to be granted if the plaintiff can establish a capacity to proceed efficiently, justly and expeditiously. 5. The plaintiff shall pay the defendants' costs of and incidental to the proceedings, as agreed or assessed.

Ghosh v Miller

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Cases Cited (18)

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