Ghosh v Nine Digital Pty Ltd

The hearing of the notice of motion

1. Although she has throughout much, but not all, of the proceedings appeared unrepresented, the applicant was, at the hearing of the notice of motion, represented by counsel. The respondents were also legally represented. The existing defendants (Mr Miller et al) did not appear, and offered neither consent nor opposition to the application for joinder of the respondents.
2. At the commencement of the hearing, counsel for the applicant somewhat half-heartedly appeared to challenge the standing of the respondents to appear and participate, they not having then been named as parties. However, it quickly became apparent that the real issue of substance in the proceedings was not confined to a simple question of their joinder as defendants. The reason that was so arose out of the previous history of the proceedings which I have set out at some length.
3. Two of the respondents (Nine Network Australia and NineMSN Pty Ltd) had been parties to the consolidated proceedings that were dismissed on 17 September 2014. It was asserted by counsel for the respondents, and, importantly, expressly conceded by counsel for the applicant, that the applicant had "previously brought proceedings against Channel Nine for the same publications, or effectively the same publications".
4. Counsel for the respondents therefore invoked s 23 of the Defamation Act 2005 (NSW), which is in the following terms: "23 Leave required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."
5. It was the proposition of counsel for the respondents, and expressly conceded by counsel for the applicant, that the claims the applicant sought to bring against the respondents were, in reality, "proceedings for damages against the same defendant[s] in relation to the same … publication of the same … matter" as had been the subject of the proceedings dismissed by Gibson DCJ, and could not be brought (or maintained) without the leave of the Court.
6. It was accepted by the primary judge, and by both counsel, in effect, that the question of joinder depended upon whether the applicant could establish a sufficient basis for leave to be granted under s 23. The practical way forward was to determine whether leave under s 23 should be given. As counsel recognised, that was because, if the joinder application were granted without consideration of the s 23 issues, the applicant would then be met with an application to strike out the pleading so far as it sought to plead matters the subject of the earlier proceedings.
7. Independently of the s 23 argument, counsel for the respondents made two additional points. One, presumably going to the exercise of the discretion inherent in a grant of leave, was that there remained outstanding unsatisfied costs orders against the applicant in favour of the respondents arising out of the previous proceedings. The second was that the publications on which the applicant sought to sue were statute barred. Section 14B of the Limitation Act 1969 (NSW) prescribes a one year limitation period in respect of actions in defamation.

The evidence in the proceedings

1. Three affidavits of the solicitor acting for the respondents were read. The first set out some, limited, history of the proceedings. The solicitor also put in issue the applicant's factual assertions of internet publication. The evidence was (as is permissible in interlocutory proceedings) of a hearsay nature. In respect of certain publications, the evidence was to the effect that the respondents were not responsible for the websites on which they were said to have appeared. In respect of others, the evidence was to the effect that searches of the websites (in September 2016) did not produce any relevant content.
2. No evidence of the applicant was formally read. However, reference was made by counsel to two affidavits affirmed by her on 7 and 23 September 2016. She also gave hearsay evidence of publication including publication within the preceding 12 months, so as to escape the guillotine of s 14B of the Limitation Act. There was no evidence relevant to discretionary considerations. The transcript records counsel for the applicant as saying: "Our point is a very short one and I don't want to take up much of your Honour's time. Dr Ghosh has prepared a draft pleading. There may be some technical issues with that pleading but it's nothing, we say, that is insurmountable. Dr Ghosh has identified publications that according to her evidence, are still online or online within the year proceeding [sic - preceding] her amendment application in May. My friend raised the limitation point but we say it doesn't apply for any publication that's online and has been downloaded in the proceeding in the application to amend. Dr Ghosh has put on in evidence her affidavit of 7 September and 23 September in relation to those matters. If the defendants - and that's our evidence - have left these matters complained of online, then they are liable for any publication that's occurred in the last year. That's how the internet works … We say the plaintiff's evidence demonstrates that there has been [downloads in the past year]. In the draft statement of claim that she has served, she had identified the names and addresses of people she says have downloaded in the past year. She had given particulars of downloads in the last year."

The primary judgment

1. The primary judge recognised that, in formal terms, the question before him by reason of the notice of motion concerned the proposed joinder of the respondents; he also recognised that, integral to that question, was the question raised by s 23 of the Defamation Act. He proceeded on the basis, expressly conceded by counsel for the applicant, that, unless leave under s 23 were given, a grant of leave for joinder would be a futility or would precipitate an application for strike out under s 23. Logically, therefore, the first question was whether leave under s 23 should be given. He then observed that it was necessary to give effect to the overriding purposes of the Civil Procedure Act 2005 (NSW) and Rules, that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. He noted that costs orders resulting from the earlier proceedings were in existence (and unsatisfied). This was a clear recognition that the decision under s 23 was a discretionary one, and that unsatisfied costs orders are a relevant discretionary consideration.
2. His Honour then addressed what he called "the time limit difficulties associated with the initial publication" and the evidence adduced by the applicant of persons having had access to it in the previous 12 months (in order to escape the s 14B guillotine). He noted that individuals identified by the applicant as having viewed the material within that timeframe were the same as those named in the earlier proceedings. He described the pleadings as largely unintelligible in three respects - whether or not the asserted publications occurred, whether accessibility on the internet remained current, and what publications the applicant was referring to in her claim for damages. He considered that, in the circumstances, even if a publication was continuing such as not to be caught by the s 14B limitation period, bearing in mind that the identified viewers had already been exposed to the publication, damages would be minimal.

The application for leave to appeal

1. As originally filed by the applicant the draft Notice of Appeal listed 25 proposed grounds of appeal (although three of them were in the nature of preliminary assertions). Almost none of the grounds raised any issue that could remotely be called a ground of appeal. For example, by the ground numbered 5, the applicant made an attack on the conduct of the defendants in the Miller proceedings, and complained of an application for summary judgment that has not been determined. In two of the grounds (6 and 11) she described the primary judgement as "rash". In Ground 15 she attacked one of her previous counsel in relation to the dismissal of the proceedings that were dismissed.
2. In Ground 16 she complained that the primary judgment "fails to take into account the exceptional malice of the [respondents]". In Ground 17 she complained that the primary judge was in error in failing to call her to participate by telephone in the hearing "as requested by [counsel]". (The transcript gives no indication of any such request having been made, and it is difficult to conceive of circumstances in which it would have been appropriate to do so.) It is unnecessary to detail the other grounds. However, six of the pleaded grounds may have raised issues of the application of s 23 of the Defamation Act. (These grounds were somewhat repetitive.) The application for leave to appeal, and the applicant's Summary of Argument were in near identical, if not identical, terms to the Draft Notice of Appeal.
3. On the application for leave to appeal, the applicant was legally represented. Counsel, on instructions, sought an adjournment of the application. It was apparent that the reason for the adjournment application was the recognised deficiency of the application, the draft Notice of Appeal as filed, and the applicant's Summary of Argument.
4. Counsel provided a proposed Amended Draft Notice of Appeal that pleaded a single proposed ground, in the following terms: "The trial judge erred in applying section 23 of the Defamation Act as leave under this section was not required to join the proposed parties."
5. The argument counsel sought to put on the applicant's behalf was that the primary judge approached the application for joinder on the erroneous basis that, by reason of her having already taken action against the respondents in defamation on the same "matter" (see s 23), the applicant was not entitled to proceed on her present claims without the leave of the court. That was erroneous, it was contended, because the publications in respect of which she sought to sue were continuing publications, and action on publications, even of the same content, post-dating the date of finalisation of the original proceedings is not, and cannot be, precluded by s 23. Counsel accepted that, if he were successful on this ground on an appeal, the only appropriate outcome would be remitter to the Common Law Division.
6. Argument on the adjournment application ranged over the whole of the substantive issues in the leave application. At the conclusion of the argument, the Court refused the application for adjournment, and made the order refusing leave to appeal. The adjournment was refused because all issues had been fully debated and, following the argument, it had become apparent that leave to appeal ought to be refused.

Determination

1. The principles upon which leave to appeal may be granted were recently, and succinctly, stated by Bathurst CJ in The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26, at [13]. His Honour said: "… Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable."
2. That statement was an encapsulation of statements to the same effect made in a long line of decisions, including (but not limited to) Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284.
3. To those principles I would venture to add two further considerations, graphically exposed by the circumstances of the present application. Leave to appeal may be refused, notwithstanding that a discernible issue of principle is raised, where a grant of leave could be seen to be unduly oppressive to the respondent(s), or would result in a disproportionate burden on the resources of this Court, or the court from which the appeal is sought to be brought.
4. That the latter consideration is relevant is supported by the statutory requirement that, in some cases, an appeal may be brought only with leave, that being one measure afforded to this Court to control the volume of appellate work: Coulter v The Queen (1988) 164 CLR 350, 356; [1988] HCA 3, cited in Be Financial Pty Ltd at [35] by Basten JA. The statutory requirement similarly permits some restraint on the workload of the primary court. Before leave is granted, this Court ought to be able to be comfortably satisfied that the appeal will be prosecuted with reasonable diligence and in accordance with established appellate procedures, as will any future proceedings in the primary court (should the appeal result, as here would be the case, in remitter).
5. That the former consideration is relevant is supported by s 56 of the Civil Procedure Act, which states that the overriding purpose of that Act is to facilitate the just, quick and cheap resolution of the real issues in dispute, and s 58 thereof, requiring the court to take into account the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.
6. For present purposes, I would be prepared to accept, at least tentatively, that the construction of s 23 of the Defamation Act proposed on behalf of the applicant raises an issue of principle. It was argued on behalf of the applicant that that construction gained support from the decision in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750.
7. In that case, the applicant had already taken action in defamation against a publisher and the proceedings had been finalised. He then sought injunctive relief to restrain what he anticipated to be a repetition of an imputation in respect of which he had been successful. He argued that, should the anticipated repetition take place, he would be without remedy, by reason of s 23. In those circumstances, White J said (at [23]): "… s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a 'publication of the same or like matter' for the purposes of s 23."
8. This is not the occasion on which to reach a final view about the correctness or otherwise of that proposition. It is sufficient to say that the observation was not part of the ratio of the decision, and was made in a particular factual circumstance. It does not purport to be a concluded construction of s 23. That being the case, the decision affords, at best, tenuous support for the construction now sought to be advanced.
9. Moreover, even if the proposed construction were accepted, it would not necessarily be of great comfort to the applicant. It was accepted on her behalf that the publications on which she now seeks to sue the respondents were all the subject of the dismissed proceedings. What she seeks to do, by pleading continuing publication, is to revive the earlier claims, and avoid the consequences of s 23 by relying on publication post-dating the judgment of Gibson DCJ.
10. Nevertheless, as I have indicated above, there is some semblance of an issue of principle involved. That does not, of itself, justify a grant of leave. The present case does not present a suitable opportunity to explore the reach of s 23.
11. The further considerations I have proposed are more compelling reasons to refuse leave.
12. The applicant had numerous opportunities, over 1½ years from the commencement of the District Court proceedings (22 March 2013) to their ultimate dismissal (17 September 2014) to make out her claims. She was unable to formulate a viable statement of claim, and was unable or unprepared to adhere to the established procedures of litigation. The present proceeding shows no sign that she will be able or prepared to comply with appropriate procedures. The observations of Gibson DCJ concerning her conduct of the litigation are here pertinent. The respondents have been put to considerable trouble and expense in the proceedings so far, with no discernible progress, and costs orders remain unsatisfied.
13. Although the applicant was legally represented in this application, there is no guarantee, and no reason to believe, that she will continue to be so represented. There is no guarantee, and no reason to believe, that she will abandon her unsatisfactory approach to the litigation.
14. To have granted leave to the applicant to appeal would, in my opinion, have constituted undue oppression and injustice to the respondents.
15. In those circumstances, it is necessary to say little about the particular position of the first respondent, Ninemsn Pty Ltd. The applicant herself, in her application, identified it by the same ACN as the second respondent, Nine Digital Pty Ltd. The evidence establishes that Nine Digital is the successor to Ninemsn; the two companies are essentially the same entity.
16. For the reasons given above, I joined in the order that the application for leave to appeal be refused.

Endnotes

1. [2017] NSWSC 351.
2. [2014] NSWSC 1520.
3. (2015) 237 FCR 127; [2015] FCA 750.
4. Carolan at [51].
5. Carolan at [50].
6. (2012) 84 NSWLR 90; [2012] NSWCA 176.
7. (1971) LRC No 11 at p 100. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2017