Ghosh v TCN Channel Nine Pty Ltd & Ors; Ghosh v Ninemsn Pty Ltd & Ors - [2014] NSWDC 151 - NSWDC 2014 case summary — Zoe

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Ghosh v TCN Channel Nine Pty Ltd & Ors; Ghosh v Ninemsn Pty Ltd & Ors

[2014] NSWDC 151

District Court of NSW|2014-09-10|Before: Higgins J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2014-09-10

Before

Higgins J

Catchwords

Boland v Dillon (2011) 243 CLR 298 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75

Source

Original judgment source is linked above.

Catchwords

Boland v Dillon (2011) 243 CLR 298 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75

Judgment (11 paragraphs)

[1]

The application under UCPR rr 12.7 and 13.4 78The principal basis upon which the defendants bring their application is pursuant to UCPR r 12.7, as applied in Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 (see especially at [28]). In the course of dismissing the appeal (Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288), Ward JA, with whom Emmett and Gleeson JJA agreed, stated (at [101] - [103]): "[101] The submission that there was an intentional and contumelious default on the part of Dr Dank echoes the statement in Birkett v James [1978] AC 297 at 318 to the effect that the power to dismiss proceedings for want of prosecution should be exercised only in such a case or where there has been inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or of serious prejudice to the defendant. [102] Having regard to the introduction of ss 56-60 of the Civil Procedure Act, it has been suggested that the above statement of principle must be seen as having been modified (see for example State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] per Basten JA; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52] per Barrett JA). [103] The authorities make clear that what is involved in the exercise of the power under rule 12.7 is a balancing exercise, in the course of which a variety of factors may be considered (see, for example, Hoser v Hartcher [1999] NSWSC 527)." 79In Dank, the issue was not delay but failure to engage in the litigation process. 80Applications to strike out for want of prosecution have traditionally been brought on the basis of delay. An example of the changing views as to what constitutes delay may be seen in Ainsworth v Burden [2005] NSWSC 338; Ainsworth v Burden [2005] NSWCA 174 at [62]. The matter complained of was written in 1993; proceedings were commenced in 1996 but did not go to trial until 2005, by which time the defendant was too ill to give evidence; an application for permanent stay was refused on the basis that it was not an abuse of process for the plaintiff to proceed (Herron v McGregor (1986) 6 NSWLR 246). However, the introduction of case management rules, and the court's approach to their enforcement, has resulted in a shift of emphasis from delay to failure to engage fairly in the litigation process. 81Delay alone is still relevant: in Ghosh and Anor v NBN Ltd and Ors [2014] QCA 53, the Queensland Supreme Court took a different view to that taken in the Court of Appeal in Dank, where the Court approved the principles set out in Hoser v Hartcher [1999] NSWSC 527. In Ghosh and Anor v NBN Ltd and Ors, the plaintiff, who is also the plaintiff in these proceedings, commenced proceedings in 2010 but thereafter took no steps for two years. This was sufficient for her claim to be struck out. By comparison, in Hoser v Hartcher, the plaintiff similarly commenced proceedings by filing a statement of claim and took no further steps for three years, apparently because he was in gaol for part of that time. During the three years of inaction, the government of which the defendant was a member went out of office and the department of which he was Minister was reorganised, and when the action was reactivated they had problems locating documents and witnesses. Simpson J held that the failure of the defendants to take steps to pursue the proceedings, and to collect and retain evidence for the hearing, was fatal and outweighed all other considerations, including the likely weakness of the plaintiff's case and his own delay. 82Is Hoser v Hartcher still the appropriate test, or is it too generous to the claimants? In Bi v Mourad [2010] NSWCA 17, Sackville AJA stated at [41]: "[41] The Judicial Registrar stated the principles governing the application in terms which recognise that the ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. On one view, the statement of principle derived from the judgment of Simpson J in Hoser v Hartcher [1999] NSWSC 527 may be somewhat too generous to the claimants: cf Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Aon Risk Services Pty Ltd v Australia National University [2009] HCA 27; 239 CLR 175; Civil Procedure Act, ss 56-60. In any event, her Honour's statement of the relevant principles reveals no error." 83Allsop P concurred at [46] with Sackville AJA's additional comments and went on to state at [49]: "[49] In particular, I would like to add that careful attention to the Civil Procedure Act and ss 56-60 is what is required in each case. While I in no way criticise the terms of Hoser v Hartcher as laid down at the time that decision was made and without wishing to be critical in any way of it, I would say that the surest guide to be employed in any exercise of the discretion of this kind is a careful attention to the terms of the Civil Procedure Act, in particular ss 56-60." 84Sackville AJA at [39] noted the comments of Judicial Registrar McDonald in proceedings with a similar, but lesser, degree of delay as being one where the case had reached the point where the court must say "enough is enough". This statement was repeated by Mrs Barnett in her oral submissions for the defendants in these proceedings, as the first basis upon which their application for summary dismissal was brought. 85Sackville AJA's more case-management-orientated approach to delay has been applied in other defamation proceedings. In Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623, McCallum J referred to the principles enunciated in Bi v Mourad and struck out proceedings where failure to engage in the litigation process had occurred. 86However, Hoser v Hartcher continues to be cited with approval, most recently in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103], so I have taken its strictures into account. I am satisfied that the defendants have been meticulous in discharging the burden Hoser v Hartcher imposed upon them, by assisting the plaintiff when she was self-represented in order to help with compliance with timetables, by sending follow-up correspondence when she failed to do so, and by relisting the matter when there was default. Their proactive approach has, however, been criticised, as Mr Dibb submits that the interlocutory ordeal she has had to undergo means the proportionality principle should be exercised in her favour. 87This litigation has been expensive for the defendants. Although costs assessable forthwith have been awarded, these are not yet payable. Mr Svilans' affidavit refers to assessed costs currently amounting to $72,000. Mr Dibb states that there are no outstanding costs payable by the plaintiff, in that these costs are currently in the process of assessment or appeal. All this does is to emphasis that in addition to the burden of defending these proceedings, the defendants face what is sometimes called "satellite litigation" in relation to disputed issues of costs (Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300). As I have noted in earlier judgments, the defendants (including those no longer in this litigation) to date have shared representation, in an effort to keep their costs down. The likely hearing costs are unknown and, in view of the continuing interlocutory problems, impossible even to guess.

[3]

What is the nature of the prejudice? 89Abuse of process may also arise where there is want of constructive activity, and not merely want of activity, if the result is that the fairness of the trial process is compromised. The above history of the disordered nature of the pleadings and erratic progress of this defamation claim resembles that seen in Al-Shennag v Woodcock [2013] NSWSC 696, where McCallum J noted (at [110] - [111]): "[110] The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties. [111] In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act." 90The same pattern of conduct is apparent here. The defendants point to the whole of the conduct of the litigation, but in particular: (a)The eleven statements of claim in these proceedings containing 54 claims, nearly half of them out of time, and 48 of which have been struck out; (b)The circumstances in which, faced with a stay pending appeal of the 2013 proceedings, the plaintiff commenced the 2014 proceedings without leave pursuant to s 23 and without notifying the defendants or the court during the 28 February 2014 directions hearing; (c)The two applications for leave to appeal to the New South Wales Court of Appeal which were commenced out of time and hopeless in content; (d)The circumstances in which the defendants have 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 files for nearly the whole of the time that these proceedings have been on foot, in circumstances where their complaints have been well-founded and resulted in increasingly harsh costs orders against the plaintiff, without these abuses ceasing; (e)The substantial costs incurred to date, and which are likely to increase significantly; (f)The "arrant disregard" (Templar v Britton (No 2), at [37]) evident in the plaintiff's refusals to provide particulars of the statement of claim, and the unsatisfactory nature of the draft "answers" provided the day before this application was to be heard; (g)The inconsistent and unparticularised claims for what could be millions of dollars in special damages; (h)The continued hopelessness of the pleadings and the plaintiff's inability, after eighteen months, to get any further than a statement of claim which clearly requires a twelfth amendment; (i)The failure of costs orders, including indemnity costs and costs payable forthwith, in encouraging the plaintiff and her legal advisers to provide proper pleadings and particulars in a timely fashion.

[4]

The plaintiff's submissions 91Mr Dibb submitted that I should disregard the plaintiff's past history, most of which is attributable to her being a litigant in person, in that her conduct of the litigation while there are solicitors on the record indicates that she has, in colloquial terms, "turned the corner". The defendants submit, however, that the most serious abuses of process (the commencement of the 2014 proceedings, the failure to provide particulars of her claim and the unsatisfactory answers put before me today) have occurred while the plaintiff has been represented. 92Mr Dibb also submits that his client is being subjected, in these proceedings, to "trial by interlocutory ordeal" (Kirby J in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52). This is a common, and often justified, complaint in defamation proceedings, as a number of judgments in Western Australia, notably Buckeridge v Walter [2006] WASCA 22 at [4] (Steytler P) and [23] (Pullin JA) have recorded. (In fact, Mr Walter became so discouraged by delay in his defamation action in the ensuing years that he discontinued the proceedings in 2011: Walter v Buckeridge (No 4) [2011] WASC 313). In Gray v John Fairfax Publications Pty Ltd [2007] WASC 274 at [28], Newnes J warned "that excessive refinement of pleading issues is to be discouraged and courts should discourage, or minimise, the impediment to a fair trial presented by the process of 'trial by interlocutory ordeal', which is especially prevalent in defamation proceedings". 93However, that is not the case here. The complaints of the defendants do not reveal attempts at excessive refinement of pleadings by defendants intent on running up the costs. Examination of the eleven statements of claim filed in these proceedings shows sustained and serious breaches, not only of the rules of pleading, but also of fairness. Any impediment to a "fair trial" in these proceedings arises from the plaintiff's conduct rather than the defendants' applications to strike out pleadings which were hopeless on their face, particulars which were either incomprehensible or never provided, and to bring to the court's attention asserted breaches of rules of procedural fairness and/or statutory requirements, such as their complaints about the commencement of the 2014 proceedings. Conclusions 94In the farsighted decision of Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, Spigelman CJ (at [28] - [32]) explains the interaction of the provisions of s 3(d) in both the repealed Defamation Act 1974 (NSW) and current Defamation Act 2005 (NSW) and their reinforcement by the principled enunciated in ss 56 - 62 Civil Procedure Act 2005 (NSW): the Court's expectation is that court resources should be used efficiently, and these provisions are a significant qualification on the right to amend. By logical extension, misuse of the court's resources in a sustained and significant fashion of the kind that has occurred here, whether careless or deliberate, should be capable of resulting in proceedings being struck out in their entirety. 95Nor should it be the case that there are exemptions for persons who conduct their own litigation. Although flexibility should be shown to litigants in person, they are not immune from criticism where they indulge in conduct of the kind demonstrated here. Furthermore, the plaintiff is not a litigant who genuinely, but misguidedly, believes in the correctness of her conduct, but a tertiary-educated person, represented for the past nine months by lawyers with extensive experience in defamation. When faced with justified requests for information or complaints about her pleadings, the plaintiff and (at times) her solicitors have responded inappropriately, by filing fresh pleadings without leave, commencing concurrent proceedings in two jurisdictions as well as two sets of proceedings in this court, bringing claims and appeals out of time, and displaying a combative refusal even in relation to such uncontentious matters as a request for particulars of the statement of claim. At the same time, like Penelope's shroud for Odysseus (Odyssey, Book 2, l. 95 - 110), her case never seems to proceed further. 96The factual material upon which the defendants bring this application is unchallenged, beyond Mr Dibb's submissions that the 2014 proceedings are a fresh start and that the plaintiff's earlier failures should be glossed over because she was a litigant in person. However, the same pattern of conduct has continued. 97The plaintiff's attitude to this application is further evidence of her contumeliousness. The defendants, and the court, should not be subject to this continuing disregard of the obligation to conduct litigation in accordance not only with the rules of court, but with the basic courtesies. Courts must be vigilant to safeguard the fairness of the trial process, particularly in defamation proceedings, where the impact of Internet and social media publication means that large and complex defamation claims will be increasingly likely in the future, and where the public views the judicial process with a higher degree of scrutiny. 98For the above reasons, and conformably with the principles enunciated by McCallum J and the Court of Appeal in Dank, the 2013 and 2014 consolidated proceedings should be struck out as an abuse of process under UCPR r 12.7.

[5]

The application brought under ss 56 - 62 Civil Procedure Act and UCPR r 13.4 99I have set out above that these proceedings should be struck out as an abuse of process under UCPR r 12.7, which is the first limb of the defendants' application. The defendants alternatively bring an application for dismissal on the grounds of proportionality: Bleyer v Google Inc [2014] NSWSC 897. The proportionality issue, although widely used in the United Kingdom, had never achieved acceptance in a court of record in Australia prior to McCallum J's decision. Essentially the defendants rely upon the finding of McCallum J in Bleyer v Google Inc at [62] that "in an appropriate case", the court has the power to stay or dismiss proceedings due to lack of "proportionality", where the resources of the court and the parties that will have to be expended to determine the claim are "out of all proportion to the interest at stake". The defendants rely upon the same evidence to submit that these principles, in addition or alternative to the submissions based on Dank, are appropriate in a case such as the present. The plaintiff opposes that characterisation of this litigation, and argues that principles of proportionality have found no favour at appellate level as well as being rejected in a series of decisions in the Supreme Court of New South Wales. 100The application before McCallum J was based on what are called the "Jameel principles": Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75; [2005] QB 46 ("Jameel"; referred to in her Honour's judgment, in the headnote authorities list and at [14], as Jameel (Yousef) v Down Jones & Co Inc). The Jameel proportionality principle followed on from earlier decisions on proportionality such as Schellenberg v British Broadcasting Commission [2000] EMLR 296 (where the proceedings were hopeless) and Wallis v Valentine [2002] EWCA Civ 1034 (where the publication was to one person and the proceedings considered a vendetta). 101The arguments that attracted the Jameel proportionality principle in Bleyer v Google Inc were: (a)The very limited nature of the publication, in that Google was only a publisher of its search engine results for one person (at [65]-[85]): In these proceedings, the defendants point out that the internet publications are to four persons (with considerable overlap between them) as the "outer limits" (Bleyer v Google Inc at [21]). One of them is the plaintiff's husband. The plaintiff in these proceedings was named in the 5 June 2013 broadcast and I accept Mr Dibb's submission (paragraph 7) that there is no parallel with Jameel on this issue either; there is no need to define the extent of publication (cf Bleyer v Google Inc, considering Goldsmith v Sandilands [2002] HCA 31 at [2]; Younan v Nationwide News Pty Ltd [2013] NSWCA 33). (b)The merits of the defence case, particularly the potential success of the defence of innocent dissemination (at [86] - [88]): While the defendants in the application before me had little to say about the success of the defences here, the facts in the matters complained of are largely not in dispute. These publications essentially consist of criticism of the plaintiff for allowing short-term letting of her rental property to noisy partygoers. However, neither side made submissions on the merits of their respective cases, so I have not taken this into account. (c)The unenforceability of an Australian judgment in the United States (at [89] - [94]): This is irrelevant to the issues in this case.

[6]

Support for the principle of proportionality 102This principle receives some support from paragraph 23 of Practice Note No SC CL 4, Supreme Court Common Law Division - Defamation List (5 September 2014) which states: "Proportionality In determining any matter in the Defamation List, including any show cause hearing under clause 21 or 22 above, the Court will have regard to the principle of proportionality reflected in s 60 of the Civil Procedure Act." 103Proportionality on Jameel principles has been applied in costs cases. McCallum J notes the application of the Jameel principles by Brereton J in Grizonic v Suttor [2008] NSWSC 914, a decision which was cited in Vizovitis v Ryan [2012] ACTSC 155. In Vizovitis v Ryan [2012] ACTSC 155, proceedings for declaratory relief concerning a costs agreement followed a "lengthy and complex" path to a hearing estimated at 1 - 2 days. On the 19th day of the hearing an application was made that the proceedings be summarily dismissed on Jameel principles (at [42]). Noting the approach taken by Brereton J in Grizonic v Suttor, Harper M (at [37]) referred to Jones v Sutton (No 2) [2005] NSWCA 203, where "the costs had been massively disproportionate to the damages", but refused the Jameel dismissal application. 104Proportionality issues have been referred to on appeal, particularly in relation to the costs consequences of further proceedings. In Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34, Beazley JA adverted to ss 59 and 60 Civil Procedure Act 2005 (NSW) in proceedings where, if the appeal were allowed, it would involve a third trial (see also Tey v Optima Financial Group Pty Ltd [2010] WASCA 219 and Bi v Mourad [2010] NSWCA 17). However, these cases do not refer to the Jameel principles and do not provide any support for the application of such a principle. 105There are very rare cases where public policy issues arise, and the plaintiff's entitlement to bring the proceedings must be weighed against the wrongful or criminal conduct involved (Calabro v Zappia [2010] NSWDC 127, discussing the Jameel principle). In Emanuele v Hedley (Supreme Court of the Australian Capital Territory, Higgins J, 7 March 1997), Higgins J struck out a number of causes of action, including defamation (on the basis of the ex turpi causa non oritur actio principle), noting at 22 that: "...in relation to the enforcement or otherwise of tortious liability involving criminal conduct, the seriousness of the illegality and the public policy in favour of denying recovery must be weighed against the right said to be violated and the consequences of that violation.

[7]

The factors against the applicability of Jameel principles 106As the cases discussed below make clear, there is effectively no support in courts of record for the Jameel principles. The defendants in these proceedings additionally face a series of high hurdles in seeking to make out what McCallum J calls the "rare" case for the summary dismissal of these proceedings on such a basis. 107Firstly, apart from the fact that four of the five publications were made to a limited audience, there is very little similarity between the factual issues raised as being relevant to proportionality in these proceedings and the issues put forward in Bleyer v Google Inc. 108Secondly, the defendants specifically did not identify other grounds referred to in Jameel, these being issues not put forward in Bleyer v Google Inc, but which may have had applicability here: (a)Other failed proceedings: In Schellenberg v British Broadcasting Commission, proceedings against the BBC were stayed because the plaintiff had settled (on adverse terms) similar proceedings against other media defendants during a trial, when it became clear he was going to lose. In Habib v Radio 2UE Sydney Pty Ltd, McColl JA at [153] - [156] and [160] - [161] distinguished Schellenberg v British Broadcasting Commission, on the basis of the "very unusual" facts of the case and because there was no doubt Mr Habib was seeking to vindicate his reputation in proceedings with reasonable prospects of success. Despite the plaintiff's unsuccessful proceedings in Queensland, the defendants do not submit that the Schellenberg v British Broadcasting Commission, line of authority is applicable. (This means that the difficult issue of whether Habib v Radio 2UE Sydney Pty Ltd, and Thomson v Lambert [1938] 2 DLR 545 (see Habib v Radio 2UE Sydney Pty Ltd, at [129] - [141]) have been overtaken by legislation (Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36 at [42]) can be put aside.) (b)Ulterior purpose: Nor do the defendants submit that these proceedings are a "vendetta" (Wallis v Valentine, discussed in Habib v Radio 2UE Sydney Pty Ltd, at [155]), or that the plaintiff is not pursuing these proceedings in order to vindicate her reputation (Habib v Radio 2UE Sydney Pty Ltd, at [160]). (c)Serious harm and human rights: The defendants do not submit that the imputations are not serious. Even if they did, as Mr Dibb points out, there are significant differences between the law of defamation in Australia and in the United Kingdom, in part because of the impact of the European Convention of Human Rights, and in part because of the development of summary dismissal of defamation claims under the common law and s 8 Defamation Act 1996 (UK) (repealed), now enshrined in r 24.2 and Part 53 of The Civil Procedure Rules (UK) and ss 1(1) and 5, Defamation Act 2013. (UK)). These differences were noted by Basten JA in Bristow v Adams [2012] NSWCA 166 at [41]. While it may be the case that the Jameel principle was not novel, in that it had been discussed (and dismissed) in Habib v Radio 2UE Sydney Pty Ltd, and that the proportionality argument can in fact be raised at trial (cf Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) at [112] - [119]) and Vizovitis v Ryan [2012] ACTSC 155), his Honour noted the differences between the English and New South Wales procedural provisions and the impact of the European Convention on English law which made such considerations inappropriate in Australia. Those observations, although obiter, are compelling. 109Thirdly, the approach taken by the New South Wales Court of Appeal in three recent decisions has shown a marked reluctance to accept Jameel principles: (a)In Habib v Radio 2UE Sydney Pty Ltd, at [146] - [157] McColl JA rejected a claim of abuse of process based on Jameel principles, at [31], [112] - [120] on the provisions of the Civil Procedure Act 2005 (NSW) and the Defamation Act 1974 (NSW). At [210] McColl JA held that no issue arose "which would call for the District Court proceedings to be struck out for efficiency reasons", referring specifically to ss 56 - 59 Civil Procedure Act 2005 (NSW), Dennis v Australian Broadcasting Corp [2008] NSWCA 37 and Schellenberg v British Broadcasting Commission. This decision is discussed in detail below. (b)As noted above, in Bristow v Adams [2012] NSWCA 166 at [38] - [41] Basten JA refused leave to permit a Jameel argument on the basis that it was novel (Habib v Radio 2UE Sydney Pty Ltd, was not referred to), should be brought as a summary dismissal application and not a trial argument (but cf Miller v Associated Newspapers Ltd [2012] EWHC at [112] - [119]) and involved consideration of ECHR principles which have no place in Australian law. McCallum J (at [48]) considers that this decision was "not determinative" but the gravamen of his Honour's comments seems to have been that these principles have no place in a legislative framework providing a triviality defence. (c)In Ghosh v NineMSN Pty Ltd [2014] NSWCA 180 at [16], an appeal was brought on the basis that I, as the first instance judge, had erred in taking into account the question of proportionality and/or ss 56 and 60. As the Court of Appeal considered I had not done so, leave was not granted: "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." Implicit in this paragraph, and in the Court's discussion at [15] - [16], is that it would have been wrong to do so. 110Fourthly, as to comity issues, the Jameel principles have been decisively rejected in two first instance decisions (Bleyer v Google Inc, at [43] - [48]: (a)In Manefield v Child Care NSW [2010] NSWSC 1420 at [185] - [187] Kirby J rejected a Jameel argument on the basis that English legislation had "no relevance" in Australia, and went on to award $150,000. McCallum J considered (at [44]) that its relevance was doubtful because it was a submission at the trial and substantial damages were awarded. However, submissions have been made in such circumstances in English trials where the judge went on to award substantial damages: Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) at [112] - [119] (damages of £65,000 awarded). (b)In Barach v University of New South Wales [2011] NSWSC 431 the plaintiff brought proceedings in relation, inter alia, to three conversations an American resident had, while in the United States, with three potential witnesses in dismissal proceedings brought by the university. The proportionality argument arose from the limited nature of the publications, the American defendant's limited finances, the lex loci delicti defences and the enforceability of any judgment in the United States. Garling J at [116] - [147] dismissed the relevance of Jameel principles entirely, although noting at [147] that no Reply had been filed and that it was inappropriate to deal with the argument "at this stage" (which makes it difficult to determine, given Basten JA's rejection in Bristow v Adams of the bringing of such applications at trial, just when they should be brought). 111Fifthly, the issue of proportionality must also be viewed through the prism of the statutory framework of the uniform legislation. There are two relevant provisions: the defence of unlikelihood of harm (s 33) and the special costs provisions set out in s 40: (a)Unlikelihood of harm: While caution must be exercised in drawing inferences from refusals of leave to appeal, it is noteworthy that the continued failure of the defence of unlikelihood of harm has attracted no interest in the High Court, in that all applications for leave to appeal in relation to the current statutory defence (and its predecessor) have been refused. It is an increasing feature of defamation claims brought in Australia and litigated to the highest level of our court system is that many actions arise from publications to one (Cush v Dillon; Boland v Dillon (2011) 243 CLR 298) or a handful (Jones v Sutton (No 2) [2005] NSWCA 203) of persons; both resulted in effectively nominal awards of $5,000. In both these cases, defences of unlikelihood of harm failed; in Cush v Dillon; Boland v Dillon the defence failed so abjectly that it was not even mentioned beyond the first instance judgment, despite being one of the grounds of appeal to the New South Wales Court of Appeal. However, any attack on the utility of the defence in its present form in the age of mass electronic communication is unlikely to be successful: Adams v Bristow at [41]. (b)Costs: Concerns about the high cost of defamation proceedings have been raised in Australia since 1886, when Mr G Reid MLA moved a second reading of a bill in the Legislative Assembly to limit defamation costs for trivial verdicts (NSW Hansard, 11 October 2003, p. 4027). Following a defamation award of $5,000 in 2004 in circumstances attracting wide news coverage, costs reforms were effected in defamation legislation (Mr N Newell MLA, Hansard, 11 March 2004, p. 7134; Mr D Barr MLA, Hansard, 12 October 2005, p 18,518) which has now resulted in the enactment of s 40 in the uniform legislation. Notwithstanding the Jameel principle in the United Kingdom, defamation costs remain a feature of defamation actions in the common law countries of Europe: "A comparative Study of Defamation Costs Across Europe", Oxford University, 2008 (http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf: UK libel costs 140 times higher than libel costs in civil law countries). There can be no doubt the cost of defending a defamation action to trial is beyond the resources of the majority of Australian working families, let alone the financially disadvantaged. The question is how the court determines whether these high costs are "out of all proportion to the interest at stake" (Bleyer v Google Inc, at [62]), taking into account the resources of the court and the parties. 112The uniform legislation also contains many statutory provisions drawn from the Defamation Act 1974 (NSW) concerning abuse of process, but I note that, in Habib v Radio 2UE Sydney Pty Ltd, McColl JA considered such provisions irrelevant. McColl JA dismissed the provisions of the Civil Procedure Act 2005 (NSW) and their application to Dennis v Australian Broadcasting Corporation as having no relevance to abuse of process, in that the proceedings in Dennis were not struck out but allowed to proceed (albeit without the benefit of the amendment the subject of the appeal). McColl JA appears to rule out both the Schellenberg/Jameel and Civil Procedure Act 2005 (NSW) arguments decisively. However, Mrs Barnett draws my attention to McColl J's concluding remarks at [210], submitting that her Honour has, in Mrs Barnett's words, "not closed the door" to such principles where for "efficiency reasons", such a remedy may be possible. 113It is to these arguments of the defendants, and to the careful examination of their applicability to proportionality in defamation litigation by McCallum J, that I now turn.

[8]

Proportionality and the Civil Procedure Act 2005 (NSW) 114Australian courts have not been prepared, in the face of previous technological innovations such as radio and television, to consider the single publication rule (Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537; Jones & Anor v TCN Channel Nine Pty Ltd (1996) 26 NSWLR 732 at 736), and have treated the Internet as raising the same issues as did television (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [38] - [39]) or international trade of motor cars (at [186] per Callinan J). Nor has there been any further development of implied rights of freedom of speech, or other common law doctrines. The uniform legislation does not cover the field, but it seems clear, from the High Court's refusal of leave to appeal in cases such as Habib, that there is no likelihood of judicial development of a Jameel-style principle of proportionality at common law. Any answer must come from the application of the Civil Procedure Act 2005 (NSW). 115The question is whether there will be cases where proceedings should be struck out for what McColl JA in Habib v Radio 2UE Sydney Pty Ltd, calls "efficiency reasons" (at [210]), citing Dennis v Australian Broadcasting Corporation, Schellenberg v British Broadcasting Commission, and ss 56 - 59 Civil Procedure Act 2005 (NSW). Mrs Barnett submits that, although this apparently positive sentence at [210] is swimming in a paragraph of assertions which appear to negate it (such as the entitlement of a plaintiff to bring more than one set of proceedings against different defendants for similar subject matter), there must be examples of conduct giving rise to efficiency reasons, or her Honour would not have referred to the possibility. 116Once the court acknowledges that "efficiency" reasons may result in the dismissal of proceedings under the principles enshrined in ss 56 - 62 and 67 Civil Procedure Act, a picture of the kind of action which could be dismissed for such a reason begins to emerge. Such a cause of action would be one where there is a pattern, not simply of neglect of litigation in the Hoser v Hartcher sense, but rather the kind of "arrant disregard" (Templar v Britton (No 2), at [37]) and failure to engage in the court process in such a way as to ensure a fair trial. 117In Bleyer v Google Inc at [51], McCallum J states: "[51] Can it seriously be doubted that the power conferred by s 67 can properly be exercised to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interest at stake? That appears to be the position taken on behalf of Mr Bleyer. It was noted on his behalf that the principle of proportionality is expressly part of the overriding objective of the English Civil Procedure Rules, stated in cl 1.1 as follows: (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. (2) Dealing with a case justly includes, so far as is practicable: (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate: (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases." 118Her Honour went on to note at [54] - [57]: "[54] Google Inc cited a number of decisions in which it has been said that, notwithstanding differences in language between the provisions in the two jurisdictions, the provisions of ss 56 to 58 of the Civil Procedure Act and r 1.1 of the English Civil Procedure Rules are substantially the same: Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 262; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Owners Corporation - Strata Plan 61732 v TR Druce Pty Ltd [2009] NSWSC 1024; Ritchie's Uniform Civil Procedure NSW at [60.15]. [55] However, Mr Smark noted that none of those authorities states that the express principle of proportionality in the English Rules is also contained (by implication) within s 56 of the New South Wales Civil Procedure Act. [56] It is not, of course, a question of concluding that, noting the provisions of the English rules, the New South Wales Parliament decided expressly to exclude such a principle. As submitted by Mr McClintock, as instructive as it is to consider the law of England, it is not necessary to resort to that body of law in order to determine what is an abuse of the process of this Court. Sections 56 and 60 of the Civil Procedure Act are not to be read disjunctively. Further, there is ample authority in this jurisdiction for the proposition (for which no authority is needed in any event) that the just allocation of the finite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters. [57] Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings. The converse proposition, that the court must always determine every claim on the merits, is expressly rejected by r 13.4 of the UCPR." 119Her Honour considered (at [61]) that proportionality was a norm of justice which informed the question whether the court's jurisdiction had been regularly invoked and that (at [63]) the primary function of the court was to determine cases "properly" brought before it according to the law and to the merits of the case. 120The plaintiff seeks to invoke the processes of the court to vindicate the alleged harm to her reputation in circumstances which are wholly out of proportion to that vindication. The resources of the defendants in these proceedings have been tested far more than was the case in Bleyer v Google Inc, in that the costs in that case (a prospective trial costing $370,000) could be exceeded here for the interlocutory steps alone, if the plaintiff continues to conduct these proceedings as she has to date. Additionally, the resources of this court are strained by the need to deal with gross pleading errors, repeated listings and long directions hearings, where, after a series of judgments and two applications for leave to appeal, the statement of claim is still not in satisfactory form. 121McCallum J's concluding remarks in Bleyer v Google Inc (at [95] - [97]) refer to the disproportionate costs for the vindication of the plaintiff in the eyes of one person, where there were no prospects of enforcement of a financial damages award. However, proportionality, like abuse of process, is a broad concept. The facts of this case fit readily into the more traditional concepts of abuse of process which are referred to in proportionality on costs issues, but should also be factors to take into account if proportionality is to be a relevant factor in case management of defamation proceedings. As defamation cases become even more complex due to Internet and social media publication, and court proceedings increasingly open to the public gaze, the role of case management will become an increasingly vital tool in ensuring the fairness of the litigation process. 122Accordingly, pursuant to ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), I would alternatively order that the proceedings be dismissed on the principles of proportionality.

Legislation Cited (8)

Defamation Act 1974(NSW)

Legal Profession Act 2004(NSW)

particular s 61) Civil Procedure Act 2005(NSW)

Schellenberg/Jameel and Civil Procedure Act 2005(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Civil Procedure Act 2005(NSW)

Criminal Law Consolidation Act 1935(SA)

Defamation Act 2005(NSW)

Cases Cited (72)

Walter v Buckeridge (No 4) [2011] WASC 313 Cerutti v Crestside Pty Ltd [2013] QCA 33 Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Emanuele v Hedley (Supreme Court of the Australian Capital Territory, Higgins J, 7 March 1997) Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36 Favell v Queensland Newspapers [2005] HCA 52 Ghosh and Anor v NBN Ltd and Ors [2014] QCA 53 Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63 Ghosh v Ninemsn Pty Ltd & Ors (No 2) [2013] NSWDC 145 Ghosh v Ninemsn Pty Ltd & Ors (No 3) [2013] NSWDC 206 Ghosh and Anor v NBN Ltd and Ors [2014] QCA 53 Ghosh v NineMSN Pty Ltd [2014] NSWCA 180 Goldsmith v Sandilands [2002] HCA 31 Gray v John Fairfax Publications Pty Ltd [2007] WASC 274 Grizonic v Suttor [2008] NSWSC 914 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hamzy v Commissioner of Corrective Services (2011) 80 NSWLR 296 Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623 Harrigan v Jones [2000] NSWSC 814 Herron v McGregor (1986) 6 NSWLR 246 Hoser v Hartcher [1999] NSWSC 527 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 Jones & Anor v TCN Channel Nine Pty Ltd (1996) 26 NSWLR 732 Jones v Sutton (No 2) [2005] NSWCA 203 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 Manefield v Child Care NSW [2010] NSWSC 1420 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 Maynes v Casey [2011] NSWCA 156 McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133 Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 Sands v State of South Australia [2013] SASC 44 Schellenberg v British Broadcasting Commission [2000] EMLR 296 Smith v Marshall [2014] WASC 185 Spencer v Commonwealth (2010) 241 CLR 118 Templar v Britton (No 2) [2014] NSWSC 587 Tey v Optima Financial Group Pty Ltd [2010] WASCA 219 Thomson v Lambert [1938] 2 DLR 545 Vizovitis v Ryan [2012] ACTSC 155 Wallis v Valentine [2002] EWCA Civ 1034 Walton v Gardiner (1993) 177 CLR 378 Younan v Nationwide News Pty Ltd [2013] NSWCA 33 Texts Cited: "A comparative Study of Defamation Costs Across Europe", Oxford University, 2008 Mr G Reid MLA, NSW Hansard (11 October 2003, p. 4027) Mr N Newell MLA, Hansard, (11 March 2004, p. 7134) Mr D Barr MLA, Hansard (12 October 2005, p 18,518) Practice Note No SC CL 4, Supreme Court Common Law Division - Defamation List (5 September 2014) Category: Principal judgment Parties: Plaintiff: Ratna Ghosh First Defendant: TCN Channel Nine Pty Ltd Second Defendant: Nine Network Australia Ltd Third Defendant: Ninemsn Pty Ltd (ACN 077 753 461) Fourth Defendant: NBN Limited (ACN 000 232 486) Fifth Defendant: Katie Gregory Representation: Plaintiff: Mr C J Dibb Defendants: Mrs L E Barnett Plaintiff: Carters Law Firm Defendants: Johnson Winter & Slattery File Number(s): 2014/63022 consolidated with 2013/88183 Publication restriction: None

The defendants' application 1This is an application by the defendants, pursuant to a Notice of Motion filed on 1 September 2014, seeking the dismissal of defamation proceedings commenced by the plaintiff, Dr Ratna Ghosh, on the following bases: (a)Pursuant to rr 12.7 and 13.4 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), due to the plaintiff's failure to prosecute the proceedings with dispatch; (b)Pursuant to ss 56 - 62 (and in particular s 61) Civil Procedure Act 2005 (NSW), on the basis that the plaintiff's failure to comply with court directions renders the proceedings an abuse of process, in the sense that the interest at stake is disproportionate to the resources of the Court and of the parties that will have to be expended to determine the plaintiff's claim. 2The defendants rely upon: (a)The procedural history of the plaintiff's defamation claims (including the consolidated file, file number 2013/88183), as set out in the affidavits of Mr Paul Svilans sworn 1 and 5 September 2014; (b)The pleadings (including the current statement of claim, filed on 27 June 2014); and (c)The defendants' requests for particulars of the statement of claim dated 15 November 2013 and 18 July 2014 as well as follow-up correspondence. No formal answers to particulars are provided, although Mr Dibb provided a draft on his own letterhead on 9 September, the day before this motion was heard. 3The 54 assorted claims for defamation brought against the defendants range in dates from 2009 to 2013. 53 of them are listed in Ghosh v Ninemsn Pty Ltd & Ors (No 2) [2013] NSWDC 145, which was one of a series of judgments I handed down in relation to objections to the statement of claim: see Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63; Ghosh v Ninemsn Pty Ltd & Ors (No 3) [2013] NSWDC 206; Ghosh v NineMSN Pty Ltd [2014] NSWCA 180. Proceedings commenced in Queensland in 2010 for 4 of these publications have been struck out for want of prosecution: Ghosh and Anor v NBN Ltd and Ors [2014] QCA 53. There have been eleven versions of the statement of claim to date, nine of them filed in proceedings 2013/88183 and two (including the current version) in proceedings 2014/63022. 4The defendants submit that, throughout this litigation, the plaintiff has displayed "a wholesale failure to engage with the processes of the court which reveals an arrant disregard for the importance of doing so" (Templar v Britton (No 2) [2014] NSWSC 587 at [37] per McCallum J). Her failure to provide particulars of the statement of claim is simply the most recent example of this failure. The defendants submit that, "after countless versions of the Statement of Claim and interlocutory hearings, the defendants are still in a position that they are met with an inadequate pleading" (written submissions, paragraph 3). While some leeway was afforded to the plaintiff while she was self-represented, the inability to bring her proceedings into order since counsel and solicitors have represented her has continued (written submissions, paragraph 4). 5Any application to strike out proceedings on the basis of abuse of process requires an examination of the circumstances "with great care" (Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [161] per McColl JA), including the history of the pleadings and all other relevant circumstances.

(a) The statement of claim filed on 22 March 2013 7The plaintiff commenced proceedings in the Newcastle Registry of the District Court claiming unspecified damages for "repeated slander and defamation of 15 Bundall Road Surfer Paradise in the media" (see Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63 at [13]). This pleading failed to comply with any of the requirements of UCPR r 14.30. The defendants' first application for summary dismissal pursuant to UCPR rr 13.5 and 14.28, filed on 17 April 2013, is set out at [3] of that judgment (UCPR r 14.28 is not relied upon in this application: Bleyer v Google Inc [2014] NSWSC 897 at [50]). The plaintiff was not ready to proceed on the hearing date allocated and the matter was adjourned to 8 May 2013.

The sixth statement of claim - 20 September 2013 16This is the subject of my judgment of 10 October 2013: Ghosh v Ninemsn Pty Ltd & Ors (No 3) [2013] NSWDC 206. The orders I made included the striking out of the First, Second, Third, Fourth, Seventh and Eighth publications, on the basis that the plaintiff had failed to particularise extrinsic facts sufficiently capable of identifying her and had failed to set out sufficient details of the person(s) who identified her in each of the matters complained of. Once again, I ordered the plaintiff to pay the defendants' costs, and in view of the hopelessness of the plaintiff's pleadings I ordered that such costs to be assessable and assessed forthwith.

The ninth statement of claim - 26 February 2014 23The ninth statement of claim was served on the defendants, again without leave, on 26 February 2014 (the text of this document is set out on page 329 of Exhibit A). 24The proceedings had been stood over from the previous year to 28 February 2014. In the intervening period, the defendants had been served with the plaintiff's applications for leave to appeal (which were filed out of time: Ghosh v NineMSN Pty Ltd [2014] NSWCA 180 at [1]). The proceedings had to be stayed until these appeals could be dealt with. The orders made by Bozic DCJ on 28 February 2014 were: (1)The Court notes: (a)The statement of claim filed by the plaintiff on 28 November 2013 was filed without the leave of the Court. (b)On 26 February 2014 the plaintiff provided the defendants with a copy of a proposed amended statement of claim and associated documents. (c)The defendants oppose the plaintiff's application for leave to amend in the form of the proposed amended statement of claim. (d)The plaintiff has commenced an appeal in the Court of Appeal in relation to, inter alia, the judgment of Gibson DCJ given on 10 October 2013 which concerned an earlier version of the plaintiff's statement of claim. (2)Order that the plaintiff's application for leave to amend in the form of the proposed statement of claim be adjourned pending the outcome of the plaintiff's appeal referred to in 1 (d) above. (3)Matter is stood over to Friday 16 May 2014. (4)Liberty to apply on 7 days notice. 25What the plaintiff did not disclose to the court, or to her opponents, was that on that same day, the plaintiff or her legal advisers filed in the Registry a completely new set of proceedings against the defendants, being the proceedings in the 2014 court file numbered 2014/63022. These fresh defamation proceedings, although only brought against TCN Channel Nine Pty Ltd and Nine Network Australia Ltd, consisted of five of the publications from the 2013 proceedings (for which no leave had been sought under s 23 Defamation Act 2005 (NSW)). 26It is these proceedings which currently form the plaintiff's case before the court. The first two publications are the broadcast of 5 March 2013, in which the plaintiff is not named, and its publication on the Internet, for which identification of the plaintiff by four persons are provided. The third publication is the 5 June 2013 broadcast of A Current Affair in which the plaintiff is named and interviewed. The fourth and fifth matters complained of are the Internet publication of this broadcast and the viewer comments on the Internet site about it. 27Mrs Barnett points out that the viewer comments have been the subject of a previous strike-out, and that leave had not been granted in relation to the bringing of a claim for this publication (see order 8(g) of my orders of 10 October 2013 striking out a reference to these comments, which was set out as part of the narrative but not as a separate publication). I cannot see a reference to this specific publication in my list of the 53 matters complained of in my judgment of 17 August 2013; the Internet publication of 5 June 2013 referred to there is the fourth matter complained of in the 2014 proceedings, namely the Internet publication of the third matter complained of. This is, therefore, the plaintiff's 54th pleaded claim for defamation. There has been no ruling on the complex issue of whether viewer comments on an Internet publication form part of the earlier Internet publication or should be sued upon separately, or on the imputations pleaded. 28As is set out in more detail below, the bringing of these fresh proceedings resulted in a further application by the defendants for summary dismissal of the whole of the 2014 proceedings as an abuse of process, by reason of the fresh commencement of proceedings over the same subject matter without seeking leave pursuant to s 23 Defamation Act 2005 (NSW) ("the Act"). 29On the day of the hearing of the defendants' motion to strike the proceedings out as an abuse of process, the parties agreed to the consolidation of the 2013 and 2014 proceedings, and I made the following orders: (1)By agreement between the parties, proceedings number 2013/88183 and 2014/63022 be consolidated. (2)The plaintiff is to pay the costs of and incidental to the Notice of Motion filed on 16 May 2014 and the Amended Notice of Motion filed on 16 June 2014, such costs to be assessable and assessed forthwith. (3)Notices of motion otherwise dismissed. (4)Matter listed for directions on Friday 4 July 2014 in the Defamation List. 30There are two matters arising from this application relevant to the history before me. The first is that, while this was a settlement of the defendants' s 23-based complaint of abuse of process, the plaintiff fought until the last moment. As is set out in the affidavit of Mr Svilans of 5 September 2014 at paragraphs 16 to 20, the plaintiff resisted until the last in relation to the consolidation application, and orders were made on 4 April and 2 May 2014 on that basis. The second is that the agreed costs orders reflect the unmeritorious nature of the plaintiff's conduct.

The current complaint 36The defendants sent reminders to the plaintiff's solicitors concerning the outstanding particulars on 4, 8 and 28 August 2014 (affidavit of Mr Svilans, 1 September 2014, annexures "B", "C" and "D"). The plaintiff's solicitors never replied. 37On 1 September the defendants filed a Notice of Motion returnable for 5 September 2014 and served written submissions. (This date was, apparently by coincidence, a date allocated to the proceedings in an earlier timetable for the previous summary judgment in relation to the s 23 argument which had since been resolved.) 38On Friday 5 September 2014 I expected, whether or not the argument proceeded, to see a copy of the answers to particulars. Counsel for the plaintiff instead sought an adjournment because he was briefed in an application in another court, and because of what he called the "complexity" of the proportionality issue being raised. Although I adjourned the proceedings at his request, I pointed out that the best answer to the complexities of the application was to provide the particulars in question. 39The plaintiff's answers are now before the court. The plaintiff complains that the nature of the request for particulars invokes the proportionality principles in her favour, in that the courts should not permit the defendants to engage in what Kirby J has described as "trial by interlocutory ordeal": Favell v Queensland Newspapers [2005] HCA 52 at [22]. The defendants rely upon this response, and the inadequacy of the answers to particulars, as further evidence of the "arrant disregard" (Templar v Britton (No 2), at [37]) displayed by the plaintiff to her obligations as a litigant in these proceedings. 40As previously noted, the nature of the relief sought by the defendants requires a close and careful examination both of the claim by the plaintiff and the particulars sought and answered. I shall start by setting out the subject matter of the proceedings.

The claim for aggravated damages 56The plaintiff's prior claims for aggravated damages were struck out in Ghosh v Ninemsn Pty Ltd & Ors (No 2) and Ghosh v Ninemsn Pty Ltd & Ors (No 3), with leave to replead. Nevertheless, as late as in the 28 November 2013 statement of claim, the plaintiff was still seeking aggravated damages on the same bases of alleged serious criminal acts by the defendants, including spoliation (xiv), attempting to pervert the course of justice (xii), promoting civil unrest and causing warfare within the community (x), and stalking and harassment (ix). Some particulars were incomprehensible, such as particular (xix), which referred to: "The defendants promoting of "backyard battles" in jungle law, where communities are Judge, Jury and Executioner". Some did give a glimpse of the case the plaintiff plans to run, such as the 28 November 2013 pleading which recites (at (iv)) that the plaintiff relies upon "continued, repetitive publication of slander from December 2009 to November 2013 despite the plaintiff's repeated complained to Press Council, ACMA, the editors and even Court Action in 2010 and 2013" (see also particulars (v)(xv), (xvi), (xvii)). How these events constitute matters capable of entitling the plaintiff to claim aggravated compensatory damages is, however, not identified. 57The currently pleaded aggravated damages claim is made firstly on the standard basis of knowledge of the falsity and, secondly, on the bald statement that there were prior publications which amounted to a "vendetta". The only particulars given in Mr Dibb's draft answers about this "vendetta" is the nomination of publications 1, 2, 23, 24, 27, 28, 29 - 34 and 37 - 40 from the list of publications in my judgment of 17 August 2013 (which is why I have set this list out in full above). 58I note that these are the broadcasts by the respective defendants dated 21 December 2009, 23 November 2011, 15 December 2011, 13 June 2012, 17 December 2012 and 5 March 2013. Only the 5 March 2013 publication survived being struck out. Closer analysis shows the inadequacy of this list. First, items 39 and 40 in my list were in fact the first and second matters complained of. This publication cannot also be evidence of a "vendetta" unless some link with the previous publications can be established, and the "vendetta" then explained in the context of conduct warranting the award of aggravated damages, rather than as going to malice, which is where claims of a "vendetta" are generally found. Whether as a basis for claiming aggravated damages or malice, where a "vendetta" is alleged, the relevant particulars (not the bare ipse dixit) must be stated. In Harrigan v Jones [2000] NSWSC 814 at [46], Levine J explained that a bare plea of "vendetta" was impermissible because such particulars were: "...examples of the necessity to specify facts, matters and circumstances from which it will be argued that there was a "vendetta" against the plaintiff which actuated Mr Jones in publishing, as part of that vendetta, the material complained of. Without any such particulars these two [particulars] disclose nothing to the defendant." 59In Harrigan v Jones, the offending particulars of the Reply and of aggravated damages were struck out in their entirety as "grossly deficient" (at [75]). 60The next problem is the carelessness with which this list has been put together. It consists of: (a)The first and second matters complained of (i.e. numbers 39 and 40 in Mr Dibb's list) are asserted to be part of the "vendetta", but not the remaining three publications. Why have these been excluded? Are they not part of the vendetta? Or have the first and second matters complained of been listed by accident? (b)In my judgment of 17 August 2013, I struck out the claims based on the 33rd and 34th publications because the plaintiff could not prove that these broadcasts had ever been made. As I noted in my judgment, evidence was led by the defendants that no such broadcasts ever existed. What publications are in fact intended to be referred to here? (c)Publications 1, 2, 23, 24 27 and 28 were published outside the limitation period. While it is possible to claim aggravated damages for other publications that are not the subject of proceedings, it is uncertain whether aggravated damages can be claimed on the basis of publications which are statute-barred, and/or which have been struck out on the basis of lack of identification (as is the case with the 2010 Queensland proceedings and many of the proceedings in Ghosh v Ninemsn Pty Ltd & Ors (No 2) and Ghosh v Ninemsn Pty Ltd & Ors (No 3). 61The plaintiff's continued failure to plead the particulars of aggravated damages with precision, after earlier pleadings were struck out, is of greater concern than would be the case if this were the first complaint. The answers to particulars now provided make no attempt to comply with the longstanding requirements set out by Levine J in Harrigan v Jones. The inadequacy of these answers is such that these particulars would have to be struck out, and the question would be whether the plaintiff would be given leave to replead. 62The principles upon which aggravated damages may be claimed are reviewed in detail by Applegarth J in Cerutti v Crestside Pty Ltd [2013] QCA 33. As his Honour notes (at [41]), an award of damages in excess of the cap is permitted if the circumstances of publication warrant an award of aggravated compensatory damages. Where such a claim is made, a defendant must be vigilant to ensure readiness to meet the claim as pleaded. The defendants have been requesting details of the claims for aggravated compensatory damages since 15 November 2013 without success (see paragraph 16 of Exhibit B). 63Where a plaintiff fails to provide particulars of the statement of claim at all, including failing to respond to correspondence over a long period of time, the court may summarily dismiss the proceedings: Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244. In those proceedings, while the principal reason for the dismissal of the appeal was that the trial judge had not accepted the plaintiff's explanation for failing to attend court when the application for summary dismissal was brought, it is implicit in their Honour's findings that a continued failure to provide particulars of the statement of claim should be viewed seriously. 64Mr Dibb submitted that if I were inclined to strike out the claim for aggravated damages, the harm could be contained by a refusal to grant leave to replead. I have dealt with this submission in more detail below.

The special damages claim 65The special damages claim, like the aggravated damages claim, was struck out with leave to replead in my earlier judgments. The changes in the pleading of this claim have been vast, ranging from particulars of millions of dollars (the 28 November 2013 pleading) to no particulars at all (the statement of claim filed on 28 February 2014 - see page 363 of the affidavit of Mr Svilans of 5 September 2013), to the latest statement of claim, where a figure of $600,000 is given, on the basis that particulars will be provided. 66On 15 November 2013 the solicitors for the defendants made the following objections (this relates to the claim as constructed prior to the 28 November 2013 particulars): "17.1 As to the claim for economic loss, that claim is presently inadequately particularised and does not inform our clients of the case they are required to meet. No comprehensible calculation of the sums alleged appears to have been attempted. Further, the claim appears to attempt to seek damages in respect of loss occurring from December 2009 and (separately) in 2010 (each well before the date of the first publication sued upon in these proceedings). The particulars, in attempted [sic] to establish a quantifiable loss, make no provision for negative gearing or other expenses associated with the maintenance of a property as a holiday rental. Further, a claim for lost business earnings together with a claim for tax losses appears to be a double claim for the same loss. The alleged loss in respect of the operation of the surgery again is wholly unparticularised. 17.2 Please be put on notice that our clients require full and detailed particulars of the alleged economic loss, so as to lay a framework for establishing that the alleged loss was relevantly caused by the publications alleged in these proceedings. We further require you to provide us with copies of all documents that you rely upon in support of the claim for economic loss, including ledgers, banking records, tax returns, invoices, receipts and relevant correspondence. 17.3 We note that programs were critical of Gold Coast "party houses" in general, and in that respect it is arguable that you cannot ascribe any loss solely to our clients' alleged publications, particularly where (as you are well aware) there were other publications (such as the Gold Coast Bulletin) also reporting on the issue which will have had a significant impact upon an alleged causation. As an illustration of the serious problems your economic loss claim faces in circumstances such as this, we refer you to the decision in Born Brands Pty ltd v Nine Network Australia Pty Ltd (no 6) [2013] NSWSC 1651, particular [sic] paragraph 173. 17.4 In the event you fail to provide full particulars of your alleged economic loss, which clearly demonstrates how the loss has been calculated and how causation is to be established, out clients will be forced to apply to have the economic loss claim struck out." 67The only answer to this letter was the filing (without leave) of the statement of claim of 28 November 2013, which was in turn replaced with statements of claim stating firstly only that particulars would be supplied and then, in the latest claim, providing an unparticularised claim for $600,000. It was this latest claim which resulted in the latest request for particulars, which the plaintiff has similarly ignored up until the hearing of this motion. 68The problems may be summarised as follows: (a)The current pleading contains a bald statement of $600,000 and states that further particulars will be provided. The failure to provide any particularisation of such a significant claim until the day before this hearing is unacceptable. (b)The plaintiff claims far more than $600,000, as Mr Dibb's submissions (relying on the 28 November 2013 statement of claim calculation) make clear, and any special damages claim is likely to be for an amount in excess of the jurisdiction of this court. (c)The plaintiff now answers these longstanding requests merely by referring to the 28 November 2013 statement of claim as if those particulars are set out here (see the final paragraph of Mr Dibb's draft answers to particulars). I have already noted this pleading's assertions of $355,500 general damages, $555,000 special damages and a further $5,000 per week since 5 June 2013 (approximately 66 weeks to date, which equates to $330,000, and continuing) and $2500 a week since 21 December 2009 (approximately 244 weeks to date, which equates to $610,000, and continuing) although the extent of publication is limited in relation to 4 of the 5 publications. How can these sums relate to 5 publications in 2013? Can a plaintiff claim for economic loss not only predating the matter complained of but falling outside the limitation period? 69Although the amount the plaintiff seeks in special damages is minuscule in comparison to the amount sought by Dr McGrane (McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133 at [45] - [47]: claim for $95 million), it is just as fanciful. The ambit of Dr McGrane's claim for damages was one of the principal reasons for his defamation claim being struck out. Courts are increasingly giving short shrift to poorly pleaded claims for economic loss: Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 at [42] - [49]. 70Mr Dibb conceded that the claim for special damages (like the "vendetta" plea in the claim for aggravated damages) was unacceptably pleaded, to the extent that the court would be justified in striking these out without leave to replead. He submitted that any unfairness to the defendants could be met by striking out the claim for special damages entirely and that the matter could proceed to trial without these deficiencies standing in the way of a fair trial. 71In RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 Buxton LJ stated, at [136]: "A trial that is fair in part may be no more acceptable than the curate's egg." 72The defendants submit that the piecemeal removal of hopeless causes of action, inadequately pleaded or time-barred defamation claims and scandalous particulars cannot continue. Costs orders are no sanction, and the costs burden for the defendants continues to mount. There is delay at every stage of the litigation, even in relation to such a relatively simple matter as answering a request for particulars. They submit that the time has come when the fairness of the prospective trial is in jeopardy, and the proceedings should be struck out, on one or both of the bases set out at [1] above, as an abuse of process.

Abuse of process and summary dismissal 73Abuse of process is a doctrine of considerable breadth (Smith v Marshall [2014] WASC 185). It is necessary to focus closely upon both the factual background and pleadings in order to identify with precision the character of the alleged abuse of process complained of, as the remedy is available only in the most exceptional or extreme cases. 74In Habib v Radio 2UE Sydney Pty Ltd, McColl JA set out these principles at [78] - [80]: "[78] The term "abuse of the process of the Court" (of which Anshun estoppel, the third principle referred to in Dow Jones, forms part) is used in many senses. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority (NSW); Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ. While accepting this proposition, in PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that many cases of abuse of process exhibited at least one of three characteristics: (a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute. [79] The power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution (Moore v Inglis (1976) 50 ALJR 589 (at 593) (upheld on appeal (1976) 51 ALJR 207) per Mason J (as his Honour then was)) and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (at 392) per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal's formulation of the test in Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it, it is "a heavy one": Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ. [80] A decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion in the sense that "although there are some clear categories, 'the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse' ". Accordingly "as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration": Batistatos (at [7]) referring to R v Carroll [2002] HCA 55; (2002) 213 CLR 635 (at [73]) per Gaudron and Gummow JJ." 75The circumstances in which proceedings will be summarily dismissed as an abuse of process should not be confused with summary dismissal under UCPR r 13.4 (as to which see Hamzy v Commissioner of Corrective Services (2011) 80 NSWLR 296 at [13] - [15]). 76Nor should such an application be confused with the complaint that a plaintiff is a vexatious litigant. However, the definition of abuse of process in Attorney-General v Altaranesi [2013] NSWSC 63 at [18] sets out a checklist which bears a chilling resemblance to the conduct of these proceedings by the plaintiff: "What amounts to an abuse of process is insusceptible to a formulation comprised of closed categories: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 ("Batistatos") at [9]. But an abuse of process can be defined inclusively. The concept includes: the pursuit of proceedings that have no prospects of success or no real prospect of resulting in a remedy of substance but which involve: (1) unjustifiable expense or use of judicial resources, Attorney General v Crocker [2010] NSWSC 942 ("Crocker") at [17], per Fullerton J; (2) the pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after a remedial defeat in previous proceedings (Crocker at [17]); (3) the determination to persist in futile appeals in the face of repeated judicial observations that arguments were doomed to failure (Crocker at [133]); and, (4) causing others to incur legal costs in responding to hopeless applications in circumstances where the defendant has disregarded cost orders already made against him (Crocker at [134])." 77I shall first consider the application for summary dismissal under UCPR rr 12.7 and 13.4.

[2006] WASCA 22

[2013] QCA 33

[2012] ACTCA 36

[2014] QCA 53

[2007] WASC 274

[2014] QSC 217

[2012] QSC 133

[2013] SASC 44

[2010] WASCA 219

[2012] ACTSC 155

(1991) 25 NSWLR 519

(2011) 243 CLR 298