Ghosh v NineMSN Pty Ltd

Ghosh v NineMSN Pty Ltd & Ors (No 3) [2013] NSWDC 206 Before: Gibson DCJ File Number(s): 2013/88183

Judgment 1MEAGHER JA: Dr Ghosh has filed summonses seeking leave to appeal from two interlocutory judgments of Gibson DCJ. Each of those applications was filed out of time. That time was within 28 days from the making of the relevant orders: UCPR, rr 51.2, 51.10(1)(b), 51.10(2). The amended summons in proceeding 2013/282150 includes an application for the extension of time under UCPR, r 51.10(2). The summons in proceeding 2013/330096 does not. The motions presently before the Court are for orders that those summonses be dismissed. 2The applicant commenced defamation proceedings against the first, sixth and eighth respondents by a statement of claim filed in the District Court on 22 March 2013. The respondents filed applications for summary judgment. Dr Ghosh responded by seeking leave to file an amended statement of claim. In a judgment delivered on 17 May 2013, the primary judge gave leave to file an amended statement of claim: Ghosh v NineMSN Pty Ltd & Ors [2013] NSWDC 63. The applicant then sought leave to file a revised amended statement of claim which pleaded 53 publications against eight defendants. Those defendants include the six respondents who apply to dismiss the summonses for leave to appeal. By orders made on 16 August 2013, that application was refused except in relation to ten publications. Those publications did not include publications numbered 43 and 44, which were alleged to have been made by the fourth to sixth respondents: Ghosh v NineMSN Pty Ltd & Ors (No 2) [2013] NSWDC 145. 3The primary judge's reasons for refusing Dr Ghosh leave to claim in respect of those publications included that there was a failure to provide proper particulars of identification in relation to the two matters complained of, and to provide proper particulars of publication in relation to the involvement of the two corporate respondents: [2013] NSWDC 145 at [63], [64]. UCPR, r 15.19(1)(a) provides that the particulars which by UCPR, r 15.1(1) must be given in relation to a claim for defamation include particulars of any publication sufficient to enable the publication to be identified and, where the plaintiff is not named in the matter complained of, particulars of identification together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known. By her amended summons in proceeding 2013/282150, Dr Ghosh seeks leave to appeal from the primary judge's order refusing leave to amend in respect of publications numbered 43 and 44. 4Dr Ghosh then sought leave to file a further revised version of an amended statement of claim. That amended claim pleaded ten publications against the first to third respondents. Dr Ghosh was not named in six of those ten publications. It was therefore necessary to give particulars in accordance with UCPR, rr 15.1(1) and 15.19(1)(b). The primary judge heard argument on that application and made orders in relation to it on 10 October 2013: Ghosh v NineMSN Pty Ltd & Ors (No 3) [2013] NSWDC 206. Her Honour refused to allow the amended statement of claim to the extent that it included claims in relation to those six publications because Dr Ghosh had "failed to particularise extrinsic facts sufficiently capable of identifying her and ... failed to set out sufficient details of the person(s) who identified her in each of the matters complained of": [2013] NSWDC 206 at [94(2)]. By her summons in proceeding 2013/330096, Dr Ghosh seeks leave to appeal from the order refusing leave to make those amendments and striking them out. 5There are presently before the Court, in each proceeding, motions filed on behalf of six of the eight defendants named in the proposed amended statement of claim which was the subject of the orders made by the primary judge on 16 August 2013. Only three of the defendants named in that version of the pleading (the first, sixth and eighth defendants) were parties to the proceeding as originally commenced in the District Court. 6In proceeding 2013/282150, motions have been filed on behalf of the first to third respondents, for whom Johnson Winter & Slattery act, and the fourth to sixth respondents, for whom Banki Haddock Fiora act. Those motions are in the same form and seek orders that the appeal and applications for leave to appeal be dismissed. The evidence tendered on the hearing of the motions shows that a summons seeking leave to appeal was filed on 18 November 2013 but not served, that an amended summons seeking leave to appeal was filed and served on 12 May 2014 and that no notice of appeal has been filed. However, a form of notice of appeal was contained in a red appeal book which was served on 21 March 2014. That notice of appeal names as respondents the eight defendants named in the amended pleading dealt with in the August orders. 7In proceeding 2013/330096, motions have been filed on behalf of the same groupings of respondents. Those motions are in the same form and seek orders that the appeal be dismissed. They do not seek any order that the summons seeking leave to appeal be dismissed. The evidence shows that in this proceeding a notice of appeal was filed on 10 January 2014 but not served, that an amended notice of appeal was filed on 3 February 2014 and that an unsigned and unsealed copy of that document was served on the fourth to sixth respondents on 13 March 2014. It also shows the summons seeking leave to appeal was filed and served on 12 May 2014. 8Dr Ghosh, who was represented by counsel on the hearing of the present applications, did not contest that the appeal in proceeding 2013/330096 should be dismissed as incompetent because the subject matter of that appeal was an interlocutory order and no leave to appeal had been granted: District Court Act 1973 (NSW), s 127(2)(a). 9The respondents' motions proceeded as applications to dismiss the summonses seeking leave to appeal. No point was taken that the motions in proceeding 2013/330096 do not seek an order to that effect. The explanation for this is that the motions were filed on 17 April 2014 and before Dr Ghosh's summons seeking leave to appeal was filed. The respondents accept that Dr Ghosh's leave applications ought not be dismissed because they were filed out of time if that time should be extended in exercise of the power in UCPR, r 51.10(2). It was submitted on behalf of Dr Ghosh that time should be extended. 10As McHugh J observed in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459, the object of a rule permitting the extension of time ordinarily is to ensure that the rule which fixes a time for taking some action does not become an instrument of injustice. The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties where in particular circumstances the operation of the rule would work an injustice on one of the parties, in this case the applicant. Here, that task requires consideration primarily of the consequences for the parties of the grant or refusal of the extension of time to seek leave to appeal, and, although of lesser significance, the reasons for Dr Ghosh's delay in making the applications for leave. 11Dr Ghosh has not filed any evidence that seeks to explain the reasons for her delay. However, the court file and respondents' evidence show that Dr Ghosh filed notices of intention to appeal in each proceeding within a month of the relevant orders being made and then filed or prepared various notices of appeal and applications for leave. Part of the likely explanation for the confusion and delay in the preparation, filing and serving of these documents is that until fairly recently Dr Ghosh has been representing herself. That circumstance at least provides an explanation for part of the delay which has occurred and the respondents do not submit that they have suffered any particular prejudice by reason of delay. 12That being the position, the question becomes whether Dr Ghosh has any real prospects of obtaining leave to appeal in either proceeding. If she does not, there would be no injustice in refusing her application for an extension of time and dismissing the summonses on the basis that they are filed out of time. Each of the proposed appeals is in respect of a matter of practice and procedure involving the exercise by the primary judge of the discretion to grant leave to amend. It follows that the applicant at least must demonstrate error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 505. 13In Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, Powell JA described (at 599-600) the approach this Court should take when considering an application for leave to appeal from a refusal to grant leave to amend. His Honour said: "... [leave to appeal should be granted] in a case in which, in all the circumstances, the subject decision is attended with sufficient doubt to warrant its being reconsidered by the appellate court, and in which substantial injustice would result, if leave were refused, supposing the decision to be wrong". 14A consideration of the grounds of appeal stated in the summonses for leave shows that there is no ground of appeal directed to the principal bases on which the primary judge refused leave to amend. In the course of oral argument counsel for Dr Ghosh did not refer to any other ground as having prospects of succeeding on appeal. In particular, no reliance was placed on any of the grounds contained in any notice of appeal filed or prepared by Dr Ghosh. 15In proceeding 2013/282150, the only ground of appeal relied on concerning the striking out of publications numbered 43 and 44 is that her Honour "erred in regarding case management principles and/or the provisions of ss 56 and 60 of the Civil Procedure Act 2005 (NSW) as a proper basis for striking out" those allegations. That ground is directed to the comments of the primary judge in [2013] NSWDC 145 at [65]-[67]. Those observations were directed to the relative insignificance of those claims against the fourth to sixth respondents when compared to Dr Ghosh's primary claims in relation to publications by the first and second respondents. It is not necessary to consider whether those comments were justified by the facts and constituted a relevant matter to be taken into account in refusing leave to amend. The principal and separate bases that her Honour relied upon in refusing leave were failures to provide proper particulars of identification and of publication as required by UCPR, rr 15.1(1) and 15.19(1)(a). It was not suggested in argument that her Honour erred in proceeding on that basis. 16The position is the same in relation to proceeding 2013/330096. The claims against the first to third respondents in relation to publications numbered 1, 2, 3, 4, 7 and 8 were struck out on the basis that Dr Ghosh had failed to particularise extrinsic facts sufficiently capable of identifying her and to set out sufficient details of the persons who identified her in each of the matters complained of. The only ground of appeal relied upon in respect of the proposed appeal is that the primary judge erred "in taking into [account] the question of proportionality and/or the provisions of ss 56 and 60 of the Civil Procedure Act 2005". It was conceded in oral argument that this ground was not relied upon by the primary judge and it was not submitted that the grounds which had been relied upon involved error. 17In these circumstances Dr Ghosh's proposed appeals have no real prospects of success. For that reason, the applications to extend time should be refused. It follows that each of the summonses for leave to appeal should be dismissed. 18Accordingly, I make the following orders: (a)In proceeding 2013/282150: (1) Refuse an extension of time for the filing of the amended summons seeking leave to appeal. (2) The amended summons seeking leave to appeal be dismissed. (3) The applicant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014. (4) The applicant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014. (b)In proceeding 2013/330096: (1) Refuse an extension of time for the filing of the summons seeking leave to appeal. (2) The summons seeking leave to appeal be dismissed. (3) The appeal be dismissed as incompetent. (4) The applicant/appellant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014. (5) The applicant/appellant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014. 19Any assessment of the costs payable in accordance with these orders should take into account that at the hearing of the notices of motion on 2 June 2014 the first to third and fourth to sixth respondents were represented by the same counsel.