Karam Chand Ramrakha v Mahendra Pal Chaudhry and National Farmers Union

COUNSEL : Mr M Rollinson - Plaintiff Mr T D Hughes - Defendants

SOLICITORS : Ramrakha Jenkins Solicitors Harish Prasad & Associates Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Karam Chand Ramrakha v Mahendra Pal Chaudhry and National Farmers Union

JUDGMENT: 1 This is a motion for summary dismissal of a Summons filed on 26 June 2007 whereby the Plaintiff appeals from, and seeks leave to appeal from determinations made by a costs review panel in relation to proceedings in this court (20309/2004) between the Plaintiff and the Defendants (the previous proceedings). By way of alternative relief, the Plaintiff inter alia seeks Declarations as to the application of Pt 52A rule 19 of the Supreme Court Rules (SCR) following the conclusion of the previous proceedings. I will later refer in more detail to the relief claimed. 2 The relevant facts, although not in dispute, are rather complicated. In the previous proceedings, the Plaintiff sued the Defendants claiming that he was defamed by a book published by the Defendants entitled "Children of the Indus". Paragraph 1 of the Statement of Claim alleged that the Second Defendant is incorporated under the Trade Unions Act of the Republic of Fiji Islands and liable to be sued under its corporate name. Paragraph 2 alleged publication of the book in NSW as well as other states of Australia. 3 By a pleading entitled "Section 7A Defence" the Second Defendant put in issue its incorporation and both Defendants put in issue publication. They also denied that the matter complained of gave rise to the imputations pleaded against them. 4 On 11 March 2005, the Plaintiff served upon the Defendants a formal notice to admit the following facts: "1. The first defendant is, and has since a time no later than 1 May 2004 continuously been the General Secretary of the second defendant. 2. The second defendant is incorporated under the Trade Unions' Act of the Republic of Fiji Islands. 3. The first defendant, acting in his capacity as General Secretary of the second defendant, publicly launched the book "Children of the Indus" [the book] in Suva, Fiji in the month of May 2004. 4. On the 23 May 2004 the first defendant, acting in his capacity as General Secretary of the second defendant, publicly launched the book in Fairfield, New South Wales, Australia. 5. The first defendant, acting in his capacity as General Secretary of the second defendant, publicly launched the book in the United States of America in August 2004. 6. The first defendant wrote the book, "Children of the Indus" and is the author thereof. 7. The part of the report purporting to the (sic) by one Devika Narayan in the 23 May 2004 issue of the Sunday Times in Suva Fiji as annexed and marked "A", is a true and accurate record of what was said by the first defendant at the time of the launch of the book in Suva, Fiji. 8. The part of the transcript annexed and marked "B" is a true and accurate record of part of an interview by one Ranjit Raju with the first defendant in the United States and of the words spoken by the first defendant during the interview." 5 The Defendants, in effect, disputed all of the above facts except the first, which was admitted. 6 Following receipt of the notice disputing facts, the Plaintiff's solicitors wrote to the Defendants' solicitors omitting formal parts: "We refer to your client's Notice Disputing Facts which was sent by facsimile on 24 March 2005. We note that the First Defendant disputes certain allegations as to his role in publication of the book "Children of the Indus" (herein after 'the book'). Because of your client's disputing - in particular - fact 6, we ask the following: 1. Does Mr Chaudhry admit the second defendant was the publisher of the book? 2. Does Mr Chaudhry admit he was the chief executive officer and/or the general secretary of the Second Defendant at the time the book was published? 3. Does Mr Chaudhry admit that he was the author of the forward to the book? 4. Does Mr Chaudhry admit that he was interviewed in or about July 2004 by Mr Ranjit Raju in California in the United States of America? 5. Does Mr Chaudhry admit that in the interview with Mr Raju, he said words to the effect that one of the purposes of his visit to the United States was to promote the book, which he had written?

If your client declines to answer these questions, we put you on notice that we shall seek orders that the plaintiff be permitted to administer interrogatories in order to secure his verified answers to them. We must say, with all due respect, that your client appears to be conducting himself with mal fides in this regard. This conduct will be relied upon at trial as one basis for aggravated damages. Please provide your client's written response by 5.00pm on Monday 4 April 2005. If it is not received by then, we shall list the matter without further notice to you. There is one further matter, which we wish to raise with you. We are aware that Mr Harish Prasad was present on 23 May 2004 at Fairfield when Mr Chaudhry attended the launch of the book, and that Mr Prasad received from Mr Chaudhry an autographed copy of the book. Your Vijendra Prasad was likewise present and wrote an article in the Navtaranga in which he stated that Mr Chaudhry had visited Sydney in order to promote the book. If your client will not admit he published the book, we shall be forced to seek leave to serve upon Mr Harish Prasad a subpoena to give evidence. We shall also subpoena Mr Vijendra Prasad to give evidence. Please give this matter your urgent attention." 7 According to the affidavit of the Plaintiff sworn 25 June 2007, the letter received no reply and in due course there was a trial by jury, which coincidentally was presided over by me, under s7A of the Defamation Act. At the commencement of the trial, Mr Hughes, counsel for the Defendants admitted publication by the Second Defendant. 8 Left to the jury were the undermentioned questions answered as indicated: "1. Has the Plaintiff established that the matter complained of was published in the book "Children of the Indus" in about May 2004 by: (a) the first defendant, Mahendra Chaudhry YES (b) the second defendant, the National Farmers Union YES If you answered question 1 (a) and/or (b) "Yes", please answer the following question: 2. Has the Plaintiff established that the matter complained of, published in the book "Children of the Indus", conveyed of him to the ordinary reasonable reader the following imputations (or imputations not substantially different from them)? (a) That, as a parliamentary member of Fiji's National Federation Party, he was guilty of gross disloyalty in that he stabbed his leader in the back. NO (b) That, as a parliamentary member of Fiji's National Federation Party, he secretly conspired with Irene Jai Narayan to prevent the leader of his Party being appointed Prime Minister, and did it because he wished to take the Party's leadership for himself. NO (c) That, as a parliamentary member of Fiji's National Federation Party, he cheated his own Party's leader out of the Prime Ministership. NO 3. Has the Plaintiff established that any imputations that you found to have been conveyed by the matter complained of (that is, any to which you have answered "Yes" in 2 above) were defamatory of him? Imputation (a) Unanswered Imputation (b) Unanswered Imputation (c) Unanswered 9 In light of the jury's answers to the questions I ordered that there be a verdict for the Defendants and that the Plaintiff pay the costs of the action. Mr Littlemore SC, who appeared with Mr Rollinson for the Plaintiff, did not seek any other order as to costs. 10 The Plaintiff appealed to the Court of Appeal (40465/05) against the jury's verdict and that appeal was dismissed with costs (Court of Appeal Giles JA, Ipp JA and Basten JA 10 March [2006] NSWCA 42). 11 Thereafter the Defendants sought to enforce the orders for costs in their favour. An assessment of costs was referred to a costs assessor, Mr M. W. Robinson in accordance with the provisions of the Legal Profession Act 2004. For the first time, before him, the Plaintiff raised the asserted significance of his Notice to Admit Facts and the Defendants' response. 12 In his reasons for determination of costs, Mr Robinson dealt with the question of the Notice to Admit Facts, as follows: "Much importance was given by the Respondent in his objections to items involving consideration of the Respondent's Notice to Admit Facts and preparation of the Notice to Dispute facts, which, it was said, related to matters either proven or admitted at the hearing. As well as objecting to a significant part of the bill, the Costs Respondent submitted that I should allow his costs in relation to these matters. Whilst I am entitled (indeed I am required) to reduce unreasonable claims in the Costs Applicants' bill, I am unable to award costs to the Respondent without an application on his part. On my pointing this out to him, the Costs Respondent in this matter filed and served an application for costs said to be those incurred in relation to the Notice of Disputed Facts. Submissions have been made by both parties in relation to that application, and it is referred to here since it is obvious that such an application would best be considered by the same costs assessor as is seized of the present application. Reference to the correspondence referred to above will show that strong objection was made by the present Applicants' solicitor (Prasad) on a number of bases, most importantly that the Costs Respondent (Ramrakha) does not have a costs order. I considered that this objection had merit. However, neither party intends to make application for an order. Indeed, Ramrakha has declined to make an application, and I am not impressed with his submissions suggesting that I do not need an order. Also of importance is the fact that each of the matters required to be admitted in the Notice does not appear to have been strictly necessary to the fact to be proved. The fact of publication was in fact left to the jury (and accepted by the jury) on the basis of other evidence. This has led me to the conclusion that I should reject Ramrakha's objections and submissions in relation to the Notice to Admit/Notice to Dispute Facts." 13 Mr Robinson also, as indicated above, dealt with an application for assessment of costs by the Plaintiff. He assessed such costs as nil, giving these reasons for such determination: Explanation as to the basis on which the costs were assessed: The costs were assessed on the basis of information supplied in the Applicant's Bill of costs and correspondence between the parties' solicitors and myself which has been scheduled by me in my Reasons in the associated assessment between the same parties No.1163 of 2006. In particular, my letter to the parties dated 17 January 2007 referred to the present Applicant not having the benefit of a costs order. Strong objection having been taken to my dealing with the matter without such an order I wrote in that letter: "It is obvious that the same issues are involved in relation to those costs claimed in CA 1163 of 2006 (and CA 2045 of 2006) relating to items affected by the subject notices. Accordingly, it would seem that I am unable to determine costs in relation to a significant part of the bill in application 1163 of 2006 until the point raised by the Applicant therein has been judicially determined. I am persuaded by Ramrakha Jenkins that I should not proceed to complete the assessment in application 1163 of 2006 in the absence of a resolution of this issue. Accordingly, I informed the parties that I will defer assessment of both applications until the issue has been resolved, with or without an application to the Court for a formal order." On 7 February 2007 I wrote to the parties enquiring whether either intended to make such an application to the Court. On 12 February 2007, Ramrakha responded by letter relevantly stating, "We note that you agree that you cannot assess number 1163/2006 without assessing number 2045/2006." This suggestion is quite inaccurate. "It is not our intention to apply to the Supreme Court as we consider the rules are clear in that we are entitled to costs under part 52A rule 19 and you are entitled to proceed to assess both bills." In a subsequent letter to me dated 13 February 2007 Ramrakha concluded: "We continue to reiterate that if [Harish Prasad] challenge that reference to you by the Supreme Court, the onus is on them to apply to court." As referred to in my reasons in CA 1163 of 2006 my jurisdiction to assess a party/party application comes only from the existence of an order for the payment of costs made by a court or tribunal (s 353LPA 2004, s 202LPA 1987). I do not accept the submissions of Ramrakha Jenkins in regard to the existing court order entitling its client to an assessment of costs that may or may not have flowed from an application of Part 52A rule 19SCR. Further, a careful examination of the precise formulations of facts required to be admitted in the present Applicant's Notice to Admit leads to the conclusion that those facts were not the facts relevantly led into evidence and found by the jury. In any event, I consider that I am bound to conclude that in the absence of a court order I must make a determination in this matter that no amount of costs is payable by the Respondents to the Applicant." 14 The Plaintiff thereupon applied for review of Mr Robinson's determinations and supported the application with lengthy submissions. The matter was referred to a review panel, comprising Mr J L Sharpe and Mr C Boyd-Boland, which, in the result affirmed Mr Robinson's assessments. In relation to the Notice to Admit Facts submissions, the panel, after referring to the terms of the relevant rule and referring to Mr Robinson's reasons, said: "The Review Panel determines that is was essential for the Review Applicant to obtain an order of the Court, so as to order that the provisions of Rule 42.8 of the Uniform Civil Procedure Rules applied in the circumstances of this case. The Review Panel agrees with and adopts the reasoning of the Assessor, and determines that this ground has not been made out. The next ground appears to relate to the nature of the Litigation (Costs of a 7A issue), and the need or otherwise for a costs order. The Review Panel has determined that a costs order was necessary, and that the Assessor gave every opportunity to the Review Applicant to get such an order, which the Review Applicant refused to do. Insofar as this is a ground, the Review Panel determines that this ground has not been made out." 15 The decision of the review panel prompted the filing of the Plaintiff's Summons which sought the following substantial relief:

"1. That the Court: (a) set aside on appeal under section 384, Legal Profession Act 2004 (LPA), or alternatively, (b) grant leave to appeal against and set aside on appeal under section 385, LPA, the determinations, issued to the parties on 29 May 2007, of the Costs Assessment Review Panel in application s for assessment of party/party costs, Nos. 1163 of 2006 and 2045 of 2006, between the Plaintiff (Ramrakha and the Defendants (Chaudhry and NFU), to the extent that the determinations refused to allow costs to Ramrakha, and allowed costs to Chaudhry and NFU, to which former SCR part 52A rule 19 applied. 2. Alternatively, that the Court declare that by virtue of former SCR Part 52A rule 19: (a) Ramrakha is entitled to be paid by Chaudhry and NFU costs incurred in proving, or preparing to prove, certain facts the subject of a Notice to Admit Facts served under SCR Part rule 19, in the action between the parties (No. 20309 of 2004, Ramrakha v Chaudhry and NFU); and (b) Chaudhry and NFU are not entitled to be paid by Ramrakha costs incurred by them in relation to the proof of those facts; or alternatively (c) Ramrakha is entitled to be paid by Chaudhry and NFU, and Chaudhry and NFU are not entitled to be paid by Ramrakha, costs incurred in the action in relation to the issue of publication. 3. Alternatively, that the Court set aside the costs order made on 17 May 2005 in the action, and order in substitution that: (a) The first and Second Defendants pay the Plaintiff's costs of the issue of publication of the matter complained of; and (b) The Plaintiff pay the First and Second Defendant's costs of all other issues. 4. That the court remit the applications for re-assessment of the amount due under each in accordance with the Court's judgment." 16 The motion before me seeks the following principal relief: "1. That the Summons for Appeal be struck out on the following basis (sic): a) the appeal is out of time - UCPR 50.3; b) the proceedings are frivolous or vexatious - UCPR 13.4 c) the proceedings are an abuse of the process of the court - UCPR 13.4; d) both the Court of Appeal and primary judge's decisions are functus officio". 17 The Defendants' motion must of course be decided consistently with the principles established by General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 where Barwick CJ, in a well known passage said: "The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to O 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense"." 18 For the most part the argument before me by Mr Hughes, counsel for the Defendants, (applicants on the motion) and Mr Rollinson, counsel for the Plaintiff (respondent to the motion), concerned the applicability in the circumstances of this case to what may be termed the self enforcing provisions of SCR Pt 52 A rule 19 in relation to items 2 and 4 in the Notice to Admit Facts.. Also relevant to the matter is SCR Pt 18 rule 2. Those two rules have been replaced respectively by Uniform Civil Procedure Rules 17.3 and 42.8 but they were not in force at the relevant time and the Supreme Court Rules apply 19 The relevant provisions of Pt 18 rule 2 and Pt 52A rule 19 of the Supreme Court rules are as follows: "18.2 2. (1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of the proceedigns only, the facts specified in the notice. (2) If as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedigns, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice." ……………………………………………..

19 (1) where a party to any proceedigns (in this rule called the disputing party) serves a notice disputing a fact under Part 18 rule 2(2) and afterwards that fact is: (a) proved in the proceedings, or (b) admitted for the purpose of the proceedings by the disputing party, unless the court otherwise orders, the disputing party shall, after the conclusion of the proceedings, pay the costs of the party upon whom the notice is served, assessed on an indemnity basis occasioned by: (c) proof of the fact, or (d) preparation for the purpose of proving the fact, as the case may be. (2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement. 20 It may, I think, be assumed that the Notice to Admit Facts in this case was a notice within Pt 18 rule 2, although I have some hesitation in catergorising as "facts" the rolled up facts and conclusions referred to in items 3, 4 and 5.

21 In any event, it is immediately apparent that one difficulty faced by the Plaintiff in his contentions is that there is no apparent correlation between the jury's verdict in the form of answers to the questions left to it, and the facts sought to be admitted. 22 Mr Hughes confined his submissions to the operation of SCR Pt 52 A rule 19. He submitted that the public "launching" of a book is not of itself proof of publication. He pointed to that part of my summing up to the jury which dealt with the issue of publication and to the fact that there was no mention of the "launching" of the book, but rather reference to the evidence of a witness that he was handed a box containing 10 copies of the book by the First Defendant. In Mr Hughes' submission what was proved and found by the jury was "publication", not that Mr Chaudhry "launched" the book. 23 As to the fact sought to be admitted regarding the incorporation of the Second Defendant, Mr Hughes said that during the trial it was never raised as an issue. It was not mentioned by Mr Littlemore in his opening, nor was it expressly either admitted or raised as a question for the jury's decision.

24 In the result, according to Mr Hughes' submission, the provisions of Pt 52A rule 19 simply did not apply. The Plaintiff's entitlement was no more than to seek a special order for costs at the conclusion of the trial or seek to have the matter dealt with in the Court of Appeal. 25 Mr Hughes did not pursue the contention in the Notice of Motion that the summons was filed out of time and I do not need to consider further this aspect of the matter. 26 In opposing the motion, Mr Rollinson submitted that in reality there was a correspondence between the evidence relied upon by the Plaintiff on the issue of publication, and the "launching", upon which an admission was sought. He referred to the following passages in the evidence of a solicitor, Mr Harish Prasad, and a Mr Prakash Chandra called in the Plaintiff's case viz: Evidence of Mr Prasad: "Mr Littlemore: Q I show you this document, this book (Shown). Will you open it please. Have you seen a copy of the book before? Mr Prasad: A. Yes, I believe I have. Q. Where did you get it? A. I got there at a festival that was arranged in Fairfield Showground. Q. From whom did you get it? A. I got the book from Mr Chaudhry's son. Q. Mr Mahendra Chaudhry's son? A. Yes. Q. And was Mr Mahendra Pal Chaudhry present when you got it? A. He was not present, he was not in my presence when I received these books, no. Q. These books, plural? A. Yes. Q. How many books did you receive? A. I believe there would have been 8 or 9. Q. Did Mr Chaudhry autograph a book to you? A. Yes he did. Q. Is that the book he autographed? A. He in fact autographed several copies." …………………………………………. Mr Hughes: Q. Mr Prasad, the book was given to you by Mr Chaudhry's son. A. Yes. Q. Was it the fact you appreciated Mr Chaudhry and asked him to autograph it? A. I asked his son. Q. And why were you after an autograph? A. Mr Chaudhry was present at this function. I saw his book. Mr Chaudhry is a hero to me. …………………………………. Evidence of Mr Chandra: Mr Littlemore: Q. On 23 May last year - which was a Sunday - did you attend a Fijian and Indian celebration at the Fairfield Showground? Mr Chandra: A. Yes I did, Q. Did you see him autographing any copies of a book? A. He was at one of the desks where those books were distributed from. Q. Yes, and what, people taking copies of othe book? A. Yes, they were buying copies of the book.

Q. I am sorry would you speak up please? A. They were buying copies of the book. Q. And was Mr Chaudhry handing them to people? A. Yes." ……………………………………….. Mr Littlemore: Q. And did you take the box of books from Him? A. Yes I did. Q. How many books were in the box? A. About 40 books in that box. Q. And what did you do with the box of books? A. I leave it at a grocery shop next to my office. Mr Littlemore: What did you say to the man in the shop? A. I give him ten books, and I said, if you - he could sell the books, the rest of the books were in my office. Q. Did you see the books in the shop from time to time? A. Yes, I did. Q. Were the same ten books there? A. Yes." 27 Mr Rollinson submitted that the evidence quoted above, which constituted virtually all the evidence relied upon by the Plaintiff on the issue of publication, also consituted evidence of the public launch of the book by Mr Chaudhry, and therefore proof of such launch was implicit in the jury's finding of publication. 28 As a theoretical proposition, there may be some substance in that submission. However, in my opinion, it does not necessarily follow that the specified facts in the notice to admit were found to be proved by the jury. The expression "launch", in this context, is not a term of precise meaning. The Macquarie Dictionary Third Edition includes among the meanings of launch, "11. the act of launching a project, especially the social occasion which marks this: a book launch"

29 In my opinion the fact that someone "launched" a book in the sense of the meaning quoted above, would not necessarily consitute publication for the purposes of the law of defamation. Here, there was evidence that the First Defendant was autographing and handing out copies of the book. In my view, while at least the latter was an act of publication, what Mr Chaudhry was proved to have done does not necessarily seem to me to consitute "launching". The Notice to Admit Facts was defective, in my view, in its lack of precision. 30 As to the incorporation of the Second Defendant, that matter was not raised during the trial. It was ignored - neither proved nor admitted. I do not agree with Mr Rollinson's submission that it was necessarily implied by the admission of publication by the Second Defendant or by the jury's verdict. 31 Accordingly, SCR Pt 52A rule 19 did not, in my opinion, apply to the Notice to Admit Facts in this case. 32 Mr Rollinson's submissions would undoubtedly have been relevant to an application for a special order for costs made to me at the conclusion of the trial. However, it was common ground that the court is functus officio in respect of any special order for costs. That concession, in my view, was well founded, see for instance Sirius Shipping Corporation v The Ship Sunrise (Palmer J 17 July 2007 [2007] NSWSC 766) and the cases referred to therein. 33 Both the costs assessor and the appeal panel took the view that their jurisdiction depended on a Court Order . That matter was not argued fully before me, although there seems to be considerable force in it having regard to section 353 of the Legal Profession Act. It is unnecessary for me to decide the point because, in my view, the assessor and the panel were correct in the view they formed as to the non applicability of SCR Pt 52 A rule 19. 34 Moreover, in my view, in a case where SCR Pt 52 A rule 19 did apply the fact that the court was functus officio would not prevent it, at any time, making a declaration and consequential orders to that effect. If the Plaintiff's Notice to Admit Facts had been appropriately drafted, in my opinion, it would have been entitled to the relief claimed. 35 However, in the result, in my opinion, within General Steel Industries, the Plaintiff's case upon the Summons is, "so obviously untenable that it cannot possibly succeed". That being so, I think the Defendants are entitled to summary judgment.

36 I make these orders:

1. The Summons is dismissed. 2. I order the Plaintiff to pay the Defendants'costs of the summons and the Notice of Motion.
2. Exhibits may be returned. o0o

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