Ghosh v Miller [2018] NSWCA 212 | Case summary

Ghosh v Miller [2018] NSWCA 212 | Case summary | Zoe

Judgment

THE COURT: At the conclusion of the hearing of the appeal, the following orders were made:
Appeal allowed.
Set aside orders 2, 3 and 4 made on 19 June 2017.
In lieu thereof, stay the proceedings in the Common Law Division until the plaintiff has satisfied a judge conducting the Defamation List that: (a) she has taken all steps required of her pursuant to the Uniform Civil Procedure Rules and any extant orders of a judge in the Division or in the District Court, (b) she is able and willing to conduct a trial of the matter efficiently and expeditiously.
Any application to lift the stay shall be made on the papers and addressed ex parte.
If the judge considering the application to lift the stay is satisfied on a prima facie basis as to conditions (a) and (b), the judge may order that all relevant material be served on the defendants, who may be heard on any motion by the plaintiff to lift the stay imposed by order 3.
Reasons of the Court reserved.
These are our reasons for making those orders.
Leave was granted by this Court, on 3 April 2018, to appeal from the reserved judgment of the primary judge delivered on 19 June 2017 dismissing proceedings brought by the applicant Dr Ratna Ghosh: Ghosh v Miller (No 2) [2017] NSWSC 791. The substantive orders which were made were these: "(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."
The underlying proceedings are in defamation, arising out of publications concerning a rental property in Queensland owned by Dr Ghosh, in part on "blogs" on various websites, but also including a written complaint to the Queensland Medical Board, a republication in print media and in a voicemail message left at her workplace. The earliest publications were in 2011. Proceedings were commenced as long ago as 2013. For substantial periods of time, Dr Ghosh has represented herself, as she did before the primary judge, although from time to time she has retained legal practitioners to appear for her (as she did in the leave application and the hearing in this Court).
The procedural history is summarised by the primary judge at [18]-[40] and need not be repeated here. The defendants moved for dismissal on terms that Dr Ghosh not be permitted to bring further proceedings based on the same subject matter (thereby displacing the presumption in s 91 of the Civil Procedure Act 2005 (NSW)). The third to seventh defendants also sought an order under the Vexatious Proceedings Act 2008 (NSW).
It will be seen from the orders made that the primary judge declined to make an order under the Vexatious Proceedings Act and declined to dismiss the proceedings on a basis which precluded Dr Ghosh from commencing fresh proceedings arising out of the same publications. His Honour rejected the submission that the proceedings were an abuse of process such as to warrant their dismissal, although he considered that there was an abuse of process and that Dr Ghosh had not conducted the proceedings with due despatch: at [130]. His Honour also noted (at [42]) that no defendant had suggested that the proceedings were frivolous or vexatious or that a reasonable cause of action had not been disclosed
However, the limitation period for defamation is 1 year running from the date of publication: Limitation Act 1969 (NSW), s 14B. Any attempt by Dr Ghosh to commence fresh proceedings, as contemplated by order 4, would be years out of time at least for the letter and the voicemail complaint, and arguably for the other publications (although it is not necessary for present purposes to determine whether or not that is so). Subject only to the limitation statute being pleaded, the cause of action is extinguished: ss 63(1) and 68A. In this Court, the first and second respondents (who were the only active respondents) not only declined to undertake not to plead the limitation statute (something which had been raised at the separate hearing for leave), but confirmed that they would rely on that statute if fresh proceedings were commenced. Of course, there is no impropriety in a defendant facing an old claim from relying on the statute of limitations.
However, the consequence is that it is plain on the face of the orders made that the discretion of the primary judge has miscarried. His Honour's evident intent was to permit Dr Ghosh to litigate all of the issues raised in her proceedings on the merits, subject to her being constrained in a manner which reflects the obligations to which she is subject under s 56 of the Civil Procedure Act and to which prima facie she has not adhered throughout much of the history to date. Indeed, that was expressed in his Honour's reasons, which included at their conclusion at [131]: "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."
As noted above, the apparent inconsistency between the orders made at first instance and the intention to permit Dr Ghosh to litigate if she could demonstrate that she would do so expeditiously and efficiently was squarely raised at the application for leave.
Notwithstanding that leave application, Dr Ghosh relied on an amended notice of appeal identifying 8 grounds, none of which in terms reflected the limitation point, although ground 6 was broadly enough drafted to include it. Dr Ghosh's submissions in chief appear to have been written by her without the assistance of a legal practitioner. The submissions purport to restate the procedural history in the District Court, the Common Law Division and in this Court. They make no mention of the reasons of the primary judge. They conclude: "In summary, to support such delinquent conduct by the respondents, in a case that was effectively undefended for 5 years, and even grant a total strike out without any evidence, and without a trial, constituted a total failure of judicial regulation and abuse of power, in depriving the appellant of a legitimate claim."
The first and second respondents' written submissions respond to Dr Ghosh's submissions. Neither set of submissions addressed the limitation point.
By submissions filed in reply, on 19 September 2018, three pages long and signed by counsel who appeared at the hearing in this Court, Dr Ghosh identified ground 6 as the most significant ground of appeal, and submitted: "The effect of his Honour's orders [was] to shut the plaintiff out from prosecuting her defamation claim by reason of the relevant limitation period for defamation claims. This was clearly not his Honour's intention. Indeed his Honour expressly said so. Unfortunately, the effect of the Limitation Act and the dates of publication were not drawn to his Honour's attention. That may have been because the Appellant was not represented before his Honour". (citations omitted)
The response by the first and second respondents was that they did not wish to be heard against orders which put in place a stay of proceedings and a regime whereby it fell to Dr Ghosh to justify the lifting of the stay. That the Court may in an appropriate case make orders to that effect is illustrated by the orders made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324.
There was no appearance by the third to seventh respondents in this Court. The evidence established that their solicitors had filed a notice of ceasing to act following receipt of Dr Ghosh's notice of intention to appeal, and before a summons seeking leave had been filed. There was evidence that they had been notified by email by Dr Ghosh and, despite their not having filed a notice of appearance, written submissions were received from some of them at the leave hearing.
The rules provided that the notice of appeal was to be served personally upon all respondents: see the definition of "originating process" in UCPR r 51.1(4)(c) read with the obligations in rr 51.1(3) and 10.20(2)(a). Of course, personal service is regularly waived, especially in appeals, and there is a special rule, r 10.19, providing that a party who files a document in reply to a document alleged to have been served is taken to have waived any objection to the manner of service. There is no evidence that that occurred in the present case. However, s 63 of the Civil Procedure Act provides that the non-compliance is an irregularity, and not fatal to this Court's exercise of jurisdiction. Further, in the somewhat unusual circumstances of this litigation, Dr Ghosh filed an amended notice of appeal in advance of the leave hearing, and there was evidence that this was served by email upon all respondents. In the circumstances, we were satisfied that the orders this Court made at the conclusion of the hearing could be made against all respondents without any procedural unfairness.
It is plain from what has already been said that the exercise of discretion by the primary judge miscarried. The substantive orders must be set aside.
The pattern of litigation in this Court tends to confirm that Dr Ghosh is capable, when assisted by legal practitioners, of conducting proceedings in accordance with her obligations. However, when she is not represented, the documents produced by her do not assist the prosecution of her litigation, and are apt only to cause delay and expense. The notice of appeal and submissions drafted by her, even after the contested leave application when the critical points on which she has succeeded were clearly articulated in comments from the Bench, well illustrate this.
There is evident sense in a regime which imposes a discipline upon Dr Ghosh, lest she continue to fail to comply with s 56 of the Civil Procedure Act. The underlying intention of the orders made at first instance is sound. It may be achieved by granting a stay, which may be lifted upon Dr Ghosh showing cause, to a single Judge in the Common Law Division, that she is capable of prosecuting the litigation in a way which complies with s 56.
The orders made contemplate a regime where an application by Dr Ghosh would be made to a judge on the papers and addressed ex parte, without involving the respondents until such time as the judge is satisfied of the matters set out in Order 3. Further delay in taking effective steps towards an early hearing will work against the lifting of the stay.
Should Dr Ghosh make such an application, it should be accompanied by the evidence and documents which she contends demonstrate that she has complied with her obligation to give discovery of the categories of documents ordered for production by the District Court, and provided copies of those documents to the other respondents. When the appeal was heard the first and second respondents raised concerns which seemed prima facie well-founded that all available documents falling within some of the categories had not been listed, and it was accepted that some of the documents, including her tax returns, had not been produced (as had also been required by the District Court's order). So that the position is clear, it should be said for the benefit of the respondents that such documents as have been and are produced by Dr Ghosh on discovery may only be used for the purposes of the litigation.
An application by Dr Ghosh should also be accompanied by evidence explaining how it is proposed that the balance of the proceedings will be conducted. One way of doing so would be, for example, to identify the legal practitioners who are retained to conduct the proceedings on her behalf, to explain what steps will be involved in the further conduct of the proceedings, and to provide evidence that the retainer extends to all of those steps.
Also so that the position is clear, the regime ordered by this Court leaves open the possibility of the respondents, or the Court on its own motion, asking Dr Ghosh to show cause why the proceeding should not be dismissed.
Although Dr Ghosh has had some success in this Court, it was not assisted by her notice of appeal or the written submissions filed by her (as opposed to those filed very recently by her counsel). The respondents were put to the expense of responding to submissions which did not address the real matter in issue. That said, they sought without success to defend the regime ordered by the primary judge. In the circumstances, there should be no order as to costs in this Court, with the intent that the parties bear their own costs.
Dr Ghosh's success in this Court is based on the statute of limitations, which was not raised before the primary judge (where she was unrepresented). His Honour also dealt with and dismissed applications made by Dr Ghosh, from which no appeal has been brought. In those circumstances, there was no occasion to interfere with the order made at first instance that Dr Ghosh pay the respondents' costs. Hence this Court's orders left in place order 5 made at first instance.

Ghosh v Miller

At a glance

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Judgment (3 paragraphs)

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Legislation Cited (4)

Cases Cited (3)

Cited By (5)