Citation: Ghosh v TCN Channel Nine Pty Ltd & Ors; Ghosh v Ninemsn Pty Ltd & Ors (No 4) [2014] NSWDC 151
Court: District Court of New South Wales
Date: 17 September 2014
Judge: Gibson DCJ
Background
The plaintiff, a self-represented litigant who later obtained legal representation, commenced defamation proceedings against a series of media defendants and their employees. The proceedings encompassed 54 separate defamation claims arising from publications and broadcasts between 2009 and 2013, covering television broadcasts and internet publications by major commercial media organisations.
Over approximately 18 months, the plaintiff filed eleven successive statements of claim across two proceedings files. Forty-nine of the original 54 claims had already been struck out through a series of judgments and appeals. Parallel proceedings in Queensland covering four of the same publications had been dismissed for want of prosecution.
By the time the defendants brought this final application, only five claims remained. Four of those concerned publications said to have reached only a very limited number of recipients, and the pleadings remained deficient despite numerous court directions and opportunities to remedy them.
Legal Issues
- Whether the plaintiff's conduct demonstrated a wholesale failure to engage with court processes amounting to "arrant disregard" of those processes, warranting dismissal under UCPR rr 12.7 and 13.4
- Whether the plaintiff's repeated failure to comply with court directions and provide adequate particulars rendered the proceedings an abuse of process
- Whether continuing the proceedings was disproportionate to the resources of the Court and the parties, having regard to ss 56 to 62 and 67 of the Civil Procedure Act 2005 (NSW)
- Whether the current statement of claim (the eleventh filed) remained inadequate despite the plaintiff now having legal representation
Decision
Gibson DCJ found that the plaintiff had displayed a persistent and wholesale failure to comply with court processes throughout the litigation. Despite being granted repeated opportunities to file a compliant statement of claim, the plaintiff had filed eleven versions, none of which fully satisfied the requirements of UCPR r 14.30. Even after legal representatives came on the record, the pleadings remained deficient and formal answers to the defendants' requests for particulars were not provided until the eve of the hearing, and then only in draft form on the solicitor's own letterhead.
The Court found the plaintiff's conduct met the threshold described in Templar v Britton (No 2) [2014] NSWSC 587 as an "arrant disregard" for court process. The history of the litigation, including indemnity costs orders, unsuccessful applications for injunctive relief, claims brought outside leave granted, and the duplication of claims already the subject of struck-out Queensland proceedings, illustrated a pattern of non-compliance that justified dismissal under r 12.7.
On the proportionality ground, the Court applied the approach taken in Bleyer v Google Inc [2014] NSWSC 897, finding that the interest at stake was disproportionate to the resources required to resolve it. Four of the five remaining claims concerned publications to very limited audiences. The interlocutory costs already incurred by the defendants were likely to exceed the projected total trial costs in Bleyer. The Court held that the principles of proportionality under ss 60, 61 and 67 of the Civil Procedure Act provided an independent basis for dismissal.
The Court also noted that the plaintiff's legal representatives had failed to file a notice of appearance in one of the two proceedings files and had not updated party details on the court's case management system, reflecting the broader pattern of procedural neglect.
Orders Made
- Proceedings dismissed
- Plaintiff to pay the defendants' costs of the proceedings
- Liberty to apply in relation to costs
- In proceedings 2013/88183, the plaintiff to file a notice of appearance within 7 days
- In proceedings 2013/88183, the plaintiff to approach the Registry to update the second and third defendants' details on JusticeLink within 7 days
Key Takeaways
- A persistent pattern of deficient pleadings, non-compliance with court directions, and failure to provide particulars, maintained across eleven versions of a statement of claim over 18 months, can constitute the kind of "arrant disregard" for court process that justifies dismissal under UCPR r 12.7.
- Proportionality under the Civil Procedure Act 2005 (NSW) operates as a distinct and independent basis for striking out proceedings, not merely as a costs principle. Where the likely resources to be expended are grossly disproportionate to the interest at stake, dismissal may be appropriate even in defamation cases.
- Obtaining legal representation part-way through proceedings does not, of itself, reset the procedural history or insulate a plaintiff from the consequences of prior non-compliance, particularly where deficiencies in pleading continue after counsel and solicitors come on record.
- In cases where publications reached only a very limited audience, the vindication interest that defamation law is designed to protect may carry less weight when weighed against the costs and court resources a trial would consume.
- Bringing claims in one jurisdiction that duplicate matters already struck out or dismissed in another, and filing successive amended pleadings that exceed leave granted by the court, are matters that courts will treat as relevant indicators of abuse of process.
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW), ss 56 to 62 and 67
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 13.5, 14.28 and 14.30
- Defamation Act 2005 (NSW), ss 23, 33 and 40
- Defamation Act 1974 (NSW), s 3(d)
- Legal Profession Act 2004 (NSW), s 347
- Criminal Law Consolidation Act 1935 (SA), s 257
Key Cases
- Bleyer v Google Inc [2014] NSWSC 897
- Templar v Britton (No 2) [2014] NSWSC 587
- Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
- Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75; [2005] QB 46
- Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
- Cush v Dillon; Boland v Dillon (2011) 243 CLR 298
- Bi v Mourad [2010] NSWCA 17
- Bristow v Adams [2012] NSWCA 166
- Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
- Ghosh v Ninemsn Pty Ltd & Ors (No 2) [2013] NSWDC 145
- Ghosh and Anor v NBN Ltd and Ors [2014] QCA 53