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District Court 17 May 2013

Ghosh v Ninemsn Pty Ltd & Ors

[2013] NSWDC 63

Other
TORT DEFAMATION SUMMARY JUDGMENT WHETHER SUCH CLAIMS TIME BARRED AND AN ABUSE OF PROCESS CLAIM FOR CRIMINAL DEFAMATION

Citation: Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
Court: District Court of New South Wales
Date: 17 May 2013
Judge: Gibson DCJ

Background

The plaintiff, a medical practitioner and director of a company owning two Surfers Paradise rental properties, brought defamation proceedings in the Newcastle Registry of the District Court in March 2013. Her claims arose from a series of media publications and broadcasts spanning 2009 to 2013, in which television programmes, newspaper articles and websites reported complaints from neighbours about the use of her properties as "party houses." The defendants included major media organisations and an online accommodation platform.

The plaintiff had previously commenced related proceedings in the Supreme Court of Queensland in 2010, which remained on foot. The NSW proceedings named a shifting cast of defendants and the pleadings were amended multiple times, including a fresh draft served on the defendants on the morning of the hearing itself.

All three original defendants brought applications for summary dismissal. The procedural complexity of the matter was compounded by the plaintiff's failure to serve amended pleadings on the defendants before the earlier hearing date, which caused that hearing to be aborted.

  • Whether the majority of the plaintiff's defamation claims were time-barred under the Defamation Act 2005 (NSW) and the Limitation Act 1969 (NSW)
  • Whether any of the claims constituted an abuse of process, including those already the subject of Queensland proceedings
  • Whether leave was required under s 23 of the Defamation Act 2005 (NSW) to bring certain claims, given prior Queensland proceedings
  • Whether a cause of action for trespass and breach of privacy was available, including whether Australian common law recognises a standalone tort of breach of privacy
  • Whether a claim for criminal defamation under s 529 of the Crimes Act 1900 (NSW) was available to a civil litigant
  • Whether aggravated damages claims that accused the defendants of perjury and assault should be struck out as scandalous
  • Whether indemnity costs should be ordered against the plaintiff

Decision

Time bars and abuse of process. The court found that most of the plaintiff's defamation claims were time-barred. Under the Defamation Act 2005 (NSW), the limitation period is one year from publication (with a three-year longstop). Publications from 2009 and 2010 were clearly out of time. The claims overlapping with the Queensland proceedings also raised abuse of process concerns. The court permitted only claims arising from publications in June 2012 and March 2013 to proceed, those being the matters capable of falling within the limitation period.

Trespass and breach of privacy. The court rejected the trespass claim on the basis that the plaintiff was not personally present at the property at the relevant time and the property was owned by a company, not the plaintiff herself. On the privacy question, Gibson DCJ confirmed that Australian common law does not recognise a standalone tort of breach of privacy, citing the High Court's decision in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 and Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. That claim was therefore not available.

Criminal defamation. The court held that s 529 of the Crimes Act 1900 (NSW) creates a criminal offence, not a civil cause of action. A private litigant cannot invoke that provision in civil proceedings. This claim was struck out.

Aggravated damages pleadings. Allegations in the aggravated damages claim that accused the defendants of perjury and assault were struck out as scandalous under the UCPR. The court noted that such allegations were not a proper basis for aggravated damages and had no legitimate place in the pleading.

Costs. The court ordered the plaintiff to pay the defendants' costs of the Notices of Motion on an indemnity basis. The disorganised conduct of the proceedings, including the late service of revised pleadings and the consequent waste of a hearing date, informed that order.

Orders Made

  • The plaintiff's application for leave to file the proposed amended statement of claim (as presented) was refused.
  • Leave was granted to file a narrower amended statement of claim limited to specified publications from June 2012 and March 2013, including the "Crackdown on party houses," "New powers to shut down Gold Coast party houses," and "Party House" articles (all 13 June 2012), the 5 March 2013 "A Current Affair" broadcast, a 6 March 2013 email from Stayz Pty Ltd, the 22 March 2013 "Party houses a big pain on Gold Coast" publication, and the 3 May 2013 "Party House RIP" publication (together with any internet publications of each).
  • The plaintiff was directed to file and serve an amended statement of claim within 21 days, conforming with UCPR r 14.30 and the court's directions at [49] of the judgment.
  • The proceedings were transferred to the Sydney Registry Defamation List for case management, with a next return date of 21 June 2013.
  • The pre-trial conference listed in the Newcastle Registry was cancelled.
  • The plaintiff was ordered to pay the defendants' costs of the Notices of Motion, including costs thrown away by reason of the amendments, on an indemnity basis.
  • The defendants' Notices of Motion were stood over to 21 June 2013.
  • Any application by the plaintiff for interlocutory injunctive relief was to be filed and served by 11 June 2013, returnable on 21 June 2013.

Key Takeaways

  • Australian common law does not recognise a standalone tort of breach of privacy. The District Court confirmed this, consistent with the High Court's approach in Lenah Game Meats and Victoria Park Racing, meaning claims framed solely as "breach of privacy" remain unavailable in NSW civil proceedings.
  • Section 529 of the Crimes Act 1900 (NSW) creates a criminal offence of criminal defamation only; it does not supply a cause of action that a private plaintiff can pursue in civil litigation.
  • Defamation claims in NSW are subject to a one-year limitation period under the Defamation Act 2005, with a three-year longstop under the Limitation Act 1969. Publications from 2009 and 2010 were incapable of surviving that bar when proceedings were commenced in 2013.
  • Aggravated damages pleadings that contain accusations of perjury or assault against defendants are liable to be struck out as scandalous under the UCPR; such allegations have no proper place in a pleading of that kind.
  • Indemnity costs may follow where a plaintiff's conduct of proceedings, including repeated unilateral amendment of pleadings and failure to serve revised documents on opposing parties, causes hearings to be wasted and imposes unnecessary costs on defendants.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 56, 58, 64
- Crimes Act 1900 (NSW), s 529
- Criminal Law Consolidation Act 1935 (SA), s 257
- Defamation Act 2005 (NSW), s 23
- Limitation Act 1969 (NSW), ss 14B, 56A
- Limitation of Actions Act 1974 (Qld), ss 10, 10AA, 32A
- Uniform Civil Procedure Rules 2005 (NSW), rr 8.2, 13.5, 14.28, 14.29, 14.30, 42.1, 45.10

Cases
- Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
- Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199
- Bracks v Smyth-Kirk [2008] NSWSC 930
- General Steel Industries Inc v Cmr for Railways (1964) 112 CLR 125
- Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
- Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10
- Maple v David Syme Pty Ltd [1975] 1 NSWLR 97