Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63

District Court New South Wales

Medium Neutral Citation: Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63 Hearing dates: 8 and 17 May 2013 Decision date: 17 May 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The plaintiff's application for leave to file the proposed amended statement of claim is refused. (2) The plaintiff is granted leave to file an amended statement of claim in relation to the following causes of action: (a) The 13 June 2012 publication "Crackdown on party houses"; (b) Any claim for Internet publication of "Crackdown on party houses"; (c) The 13 June 2012 publication "New powers to shut down Gold Coast party houses"; (d) Any claim for Internet publication of "New powers to shut down Gold coast party houses"; (e) The 13 June 2012 publication "Party House"; (f) Any claim for Internet publication of "Party House"; (g) The 5 March 2013 "A Current Affair" broadcast; (h) Any claim for Internet publication of the 5 March 2013 "A Current Affair" broadcast; (i) The 6 March 2013 email from Stayz Pty Ltd; (j) The 22 March 2013 publication "Party houses a big pain on Gold Coast"; (k) Any claim for Internet publication of "Party houses a big pain on Gold Coast"; (l) The 3 May 2013 publication "Party House RIP"; (m) Any Internet publication of "Party House RIP". (3) The plaintiff is to file and serve an Amended Statement of Claim in 21 days conforming with the requirements of UCPR r 14.30 and [49] of this judgment. (4) These proceedings transferred to the Sydney Registry Defamation List for case management, with the next return date of 21 June 2013, and a general liberty to restore on three (3) days' notice. (5) Pre-trial conference date of 24 May 2012 in the Newcastle registry cancelled. (6) The plaintiff is to pay the costs of the defendants' Notices of Motion, including the costs thrown away by reason of the amendment of the statement of claim, on an indemnity basis. (7) Defendants' Notices of Motion are stood over to 21 June 2013. (8) Any Notice of Motion for interlocutory injunctive relief by the plaintiff to be filed and served by 11 June 2013 and to be made returnable for the next directions hearing on 21 June 2013. Catchwords: TORT - defamation - summary judgment - plaintiff brings numerous claims for defamation between 2009 and 2013 - proceedings previously commenced in Supreme Court of Queensland in 2010 - whether such claims time-barred and an abuse of process - whether leave required under s 23 Defamation Act 2005 - claim for trespass and breach of privacy - whether a common law claim of breach of privacy is available in Australia - claim for criminal defamation - whether aggravated damages claims accusing the defendants of perjury and assault should be struck out as scandalous - whether an order for indemnity costs should be made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 58 and 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 and 56A Limitation of Actions Act 1974 (Qld), ss 10, 10AA and 32A Uniform Civil Procedure Rules 2005 (NSW), rr 8.2, 13.5, 14.28, 14.29, 14.30, 42.1 and 45.10 Cases Cited: 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 Mann v Eccott (Supreme Court of New South Wales, Hunt J, 22 February 1989) Maple v David Syme Pty Ltd [1975] 1 NSWLR 97 Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353 Maynes v Casey [2011] NSWCA 156 McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 Morris v Wiltshire, The Times, 15 February 1994 Sands v State of South Australia [2013] SASC 44 Sharples v Hanson [2006] FCA 37 State of New South Wales v Radford (2010) 79 NSWLR 327 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 Texts Cited: Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (Carswell) Gatley on Libel and Slander (Sweet & Maxwell) K C Adam, "A Common-Sense Analysis of State Ag-Gag Legislation Under the First Amendment" [2012] 45 Suffolk University Law Review 1129 - 1176 Practice Note DC (Civil) No. 6 Tobin & Sexton, Australia Defamation Law & Practice (LexisNexis) Category: Interlocutory applications Parties: Plaintiff: Dr Ratna Ghosh First Defendant: Ninemsn Pty Ltd Second Defendant: News Limited Third Defendant: Fairfax Media for Stayz Pty Ltd Representation: Plaintiff: In Person Defendants: Ms L Brown Plaintiff: In Person First Defendant: Johnson Winter & Slattery Second Defendant: Ashurst Australia Third Defendant: Banki Haddock Fiora File Number(s): 2013/88183 Publication restriction: None