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 Judgment The plaintiff's claim and the defendants' Notices of Motion 1The plaintiff, Dr Ghosh, is a medical practitioner and a director of a company which owns two rental properties at Surfers Paradise. She commenced proceedings in the Newcastle Registry of the District Court on 22 March 2013 pleading causes of action against Ninemsn Pty Ltd, News Limited and "Fairfax Media for Stayz Pty Ltd" as follows: "1. Repeated slander and defamation of 15 Bundall Rd, Surfers Paradise in the media including but not restricted to Channel 9 / NBN News, "A Current Affair", NBN websites including "Places Not to Stay", The Gold Coast Bulletin Newspaper, websites owned by Fairfax Media including rentahome.com.au [sic] 2. Repeated slander and defamation by Stayz employees including Justin Butterworth to other holiday rental websites advertising 15 Bundall Rd Surfers Paradise, including Bookastay, urging and inducing other websites to remove the holiday rental listing, causing financial loss to me, without any just cause [sic] 3. Refusal to list the holiday rental listing for 15 Bundall Rd Surfers Paradise and repeatedly removing the listing by Faifax [sic] Media owned websites including Stayz, rentahome without any warning to me or just cause and refused refund of fees paid for listinmg of both my houses, [sic] 4. Trespassing 15 Bundall Rd Surfers Paradise by Channel 9 and The Gold Coast Bulletin photographers and journalists who breached privacy by publishing photos and slanderous stories about the house and its owners by unilaterally interviewing the neighbours and never attempting to contact the owners [sic] (myself), publishing and airing on national TV any trash the neighbours told them without any warning to me or ever trying to contact me. Breached privacy of tenants also, [sic]" 2All three defendants brought applications for summary dismissal, returnable on 29 April 2013. These are the motions which are before me today for hearing. This judgment sets out the reasons for making orders, as due to the lateness of the hour I was not able to deliver an oral judgment on Friday afternoon. 3Ninemsn Pty Ltd, the first defendant, filed a Notice of Motion on 17 April 2013 (supported by an affidavit of Paul Svilans dated 16 April 2013) seeking summary dismissal pursuant to rr 13.5 and 14.29 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). News Limited, the second defendant, relied on an affidavit of Marlia Ruth Saunders in support of its Notice of Motion seeking similar orders. "Fairfax Media for Stayz Pty Ltd", the third defendant, filed a Notice of Motion on 23 April 2013 seeking relief under r 14.28 UCPR and relying on an affidavit of Leanne Norman dated 23 April 2013. All three defendants sought orders in the alternative for the transfer of these proceedings from the Newcastle registry to the Defamation List in Sydney. The background to these applications 4The property owned by the plaintiff's company is in a residential area of Surfers Paradise. In late 2009 neighbours gave a videotape they had shot of activities in and around one or both of these houses, and the canal which lies behind the houses in this street, to Channel 9 Gold Coast. According to the publications annexed to the plaintiff's Statement of Claim in the Supreme Court of Queensland (MFI 1), the neighbours complained that this house was used by short-term tenants as a "party house" for "24 hours a day" and "48 hour benders". The neighbours complained they could not avoid seeing the house's occupants engaged in disgusting activities such as sexual activities and urinating in public, vomiting, drunken behaviour and walking around naked. These activities extended outside the house, as the tenants went swimming in (and, on occasion, urinated in) the adjoining canal, which ran past all their homes. The neighbours said they were frightened by seeing these tenants trashing the premises, and were unable to sleep because of the loud music at all hours, as well as swearing and shouting. Local Councillor Susie Douglas was quoted as saying that this "has been happening a lot in this area", and that a temporary local planning instrument was being put in place to close the "loophole" of using accommodation agents rather than real estate agents for very short lettings. 5The plaintiff commenced proceedings in the Supreme Court of Queensland in 2010 against News Limited, Gold Coast Publications Pty Ltd and NBN Limited for a newspaper publication of 21 December 2009, a publication on the Internet and the NBN news story. These proceedings are still on foot. 6There were further broadcasts, Internet publications and articles, approximately 47 of which are contained in the statement of claim in these proceedings. "A Current Affair" broadcast a programme in 2011, and following this the plaintiff commenced proceedings in the local court system against the residents. In November 2011 the plaintiff made a complaint to the Press Council, according to her email of 15 May 2012 (MFI 1). I have no information about the extent to which there is any overlap between these events and the publications the subject of this application, principally because there is so little information about the content of each of the matters complained of; in most cases, the text of the matter complained of has not been provided. 7The plaintiff complains that following these publications, accommodation agencies (such as the third defendant in these proceedings) were refusing to accept bookings for these houses and had taken these properties off their website. I have no information as to the nature and extent of any claims the plaintiff may have brought against these agencies, including any proceedings to obtain refunds of payments made or claims of loss from cancellation of bookings. 8On 5 March 2013 "A Current Affair" broadcast a programme "Party House Misery" (http://aca.ninemsn.com.au/article.aspx?id=8621374) and on 6 March 2013 the Gold Coast Bulletin published a follow-up article. The plaintiff then filed a Statement of Claim in the District Court at Newcastle and issued three subpoenae (two to the defendants and one to bookastay.com.au). The procedural history of these applications 9The defendants' applications for summary judgment was listed by the court for directions on 29 April 2013 and both parties were notified. The plaintiff, who was on vacation that week, was not able to appear. When contacted by counsel for the defendants, she agreed to the hearing of the motions proceeding on 8 May 2013. I made directions for both parties to supply written submissions in relation to the summary judgment application. The defendants complied. On 6 May 2013, the plaintiff faxed to the court a 56-page draft amended statement of claim which dropped the claim against Ninemsn Pty Ltd, joined two new defendants, NBN Limited and Gold Coast Publications Pty Ltd, and repleaded her case as being four actions for defamation on 5 March 2013, 21 December 2009 to 22 May 2010, 28 November 2011 and "a series of television shows" in November 2011. 10Unfortunately, Dr Ghosh did not provide a copy of the draft statement of claim to the defendants. This meant that their motions could not be heard on 8 May, as the causes of action and defendants had changed. I made an order striking out the statement of claim filed on 22 March 2013 and stood over part-heard the plaintiff's application for leave to amend the statement of claim to be heard in the Sydney registry on 16 May. I also set aside subpoenae issued by the plaintiff to one or more of the defendants and a third party on the basis that these subpoenae were issued prematurely. The parties to the litigation 11The names of the defendants in these proceedings have changed in each draft of the statement of claim. Dr Ghosh has served another proposed statement of claim this morning, joining an additional proposed fourth defendant, Miss Katie Gregory of A Current Affair (whom Dr Ghosh served this morning in Newcastle), as well as faxing the court a 40-page annexure. 12In the interests of efficiency, Gold Coast Publications Pty Ltd and NBN Limited, who have not been served, take no issue on this point; nor does Miss Gregory complain about the lateness. They seek leave to be heard on these applications; references to "the defendants" in this judgment therefore include them. 13The plaintiff, who is not named in most of the publications, is a director of a company which owns the house at Surfers Paradise referred to in the Statement of Claim. She has been "a majority owner (99%)" since June 2007, according to her correspondence with the defendants. Identification of the plaintiff as an individual may represent a difficulty unless particulars of identification are provided for each publication (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10). 14The defendants are currently as follows: (a)The first defendant was Ninemsn Pty Ltd. The statement of claim refers to "Channel 9" and "NBN News". These are different legal entities. Ninemsn has been rejoined and is jointly listed as first defendant with NBN Limited. (b)The second defendant was News Limited. Gold Coast Publications Pty Ltd, not a party to the 22 March 2013 claim, has now been added as a joint second defendant. It is unclear what News Ltd has to do with this claim. They are not the publishers of the Gold Coast Bulletin. The publisher of that newspaper is Gold Coast Newspapers Pty Ltd (affidavit of J Saunders, paragraphs [2] - [4]). (c)The third defendant was previously described as "Fairfax Media for Stayz Pty Ltd". The third defendant is now identified as both these companies. These are two corporate entities. The proposed amended statement of claim contains no allegations concerning Fairfax Media. (d)The fourth defendant, Miss Katie Gregory of " A Current Affair", was added this morning. The applications for summary dismissal 15By reason of the difficulty of drafting defamation pleadings, courts for many years were reluctant to refuse to grant leave to amend other than in the clearest cases: Mann v Eccott (Supreme Court of New South Wales, Hunt J, 22 February 1989). The court's acceptance of a party's right to leave to amend must now be considered in accordance with s 64 Civil Procedure Act 2005 (NSW) and this Act's overriding purposes, as set out in ss 56 and 58. The principles to apply in applications for leave to amend are set out in State of New South Wales v Radford (2010) 79 NSWLR 327 at [63] and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. A practical example of the application of those rules in defamation proceedings may be seen in Price J's helpful setting out of the relevant principles in Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353. 16As Price J explained in Markisic, supra, a party should not be denied a contested merits hearing unless the absence of a cause of action is clearly demonstrated (General Steel Industries Inc v Cmr for Railways (1964) 112 CLR 125 at 129). There must be a high degree of certainty, as opposed to a merely complex or difficult to understand, or even novel, claim. The applicant bears the onus of proof. 17Dr Ghosh is representing herself. Courts have always been vigilant, in the case of litigants in person, to ensure that they are not penalised for technical pleading failures or an inability to identify the cause of action with clarity: Morris v Wiltshire, The Times, 15 February 1994. However, such orders can be, and have been, made in circumstances where the proposed amendment is patently hopeless, such as claims which are time-barred: Sharples v Hanson [2006] FCA 37. The causes of action pleaded by the plaintiff 18The first step is the identification of the causes of action pleaded by the plaintiff. These are principally a series of defamation actions, and a complaint of trespass and breach of privacy on two occasions. Other causes of action are, however, referred to: (a)Claims of assault, stalking and harassment (referred to in the claim for aggravated compensatory damages at 11(vi)(a)). (b)The particulars of aggravated damages refer to other defamatory publications which "slander" the plaintiff (11(vi)(c) - (e)). These allegations are not pleaded as causes of action so I have not treated them as such. (c)There are also claims for loss of rental and "immense financial loss" throughout the pleading, which I propose to treat as a claim for special damages against all defendants, rather than an action for breach of contract against the third defendant. The defamation claims 19The plaintiff provided me with the current proposed amended statement of claim this morning. That document did not annex the texts of the matters complained of. I have managed to put much of this information together from the 40 further pages of documents faxed to me by Dr Ghosh this morning, and from the documents annexed to MFI 1. The first matter complained of (three publications dated 5 and 6 March 2013) 20The first matter complained is actually three publications: (a)"A Current Affair" as broadcast by NBN on 5 March 2013; (b)publication of that broadcast on the Internet (which is still accessible); and, (c)an email publication by Stayz Pty Ltd dated 6 March 2013. 21It is not permissible for these publications to be rolled up into one claim, with one set of imputations pleaded to arise. I will not grant leave to file the amended pleading in its current form. Each publication must be pleaded as a separate publication with separate imputations and separate particulars of identification where required: Gatley on Libel and Slander (Sweet & Maxwell) at [6.2]; Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (Carswell) at [18.4(5)]. It is not possible to deal with other pleading issues, such as the imputations asserted to arise, until these requirements have been complied with. 22Leave to file an amended pleading setting out each of these publications, with the matters complained of attached, and appropriate particulars, will be granted, but this leave will be limited, as the plaintiff must comply with the requirements set out in [49] below. The second matter complained of (more than 22 publications between 21 December 2009 to 22 August 2010) 23This is a rolled-up claim for eight publications in the Gold Coast Bulletin Newspaper and on its website and two broadcasts on Channel 9/NBN and the NBN/Ninemsn website. Each of the eight Gold Coast Bulletin articles also appeared on the Internet, and each Internet publication must be pleaded separately to the print publication. The print publications are: (a)21 December 2009, "Residents' Party House Hell", by Kerryn Anker. (b)22 December 22 December 2009, "Party House from Hell investigated", by Kerryn Anker. (c)22 December 2009, "Website coming to party on noise", by Kerryn Anker. (d)4 January 2010, "Party pads cause hell in suburbs", by Lucy Arden. (e)21 January 2-10, "Party could be over for rent rowdies", by Geoff Chambers. (f)22 April 2010, "Push to ban party houses from hell", by Melinda Marshall. (g)22 May 2010, "Law hits party homes", by Melinda Marshall. (h)21 August 2010, "Houses to hell-holes as holiday hedonists party", by Dwayne Grant. 24An additional claim "Holiday House Nightmare" on 20 December 2009 brings the total to nine print publications and nine Internet publications, a total of 18. The reason each of these is asserted to refer to the plaintiff's house is that an album of photos of the house(s) her company owns are included. 25There are also two broadcasts. The first was broadcast on Channel 9/NBN News on 21 December 2009. The second is on the NBN/Ninemsn website (paragraph 4(B)). The particulars of publication suggest more publications, but these cannot be further identified. 26In addition to the 18 claims for defamation which form part of the second matter complained of, there is a claim of trespass and "tampering with evidence of a crime scene" on 20 December 2009 (paragraph 5). These events occurred in Queensland, where s 10 Limitation of Actions Act 1974 (Qld) provides a limitation period for trespass of six years. These claims are dealt with separately below. 27While each of these publications should be pleaded as a separate matter complained of, these claims suffer from more fundamental problems, namely: (a)Any action brought on these publications is statute-barred pursuant to s 14B Limitation Act 1969 (NSW) which provides that a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of publication of each of the matters complained of. While the court has power to grant an extension pursuant to s 56A Limitation Act 1969, that period has also expired. There are similar provisions in every State and Territory of Australia; for example, in Queensland the relevant provisions are s 10AA and s 32A Limitation of Actions Act (Qld). (b)Further, the plaintiff would require leave to commence proceedings pursuant to s 23 Defamation Act 2005 (NSW) as she commenced proceedings in the Supreme Court of Queensland against NBN Limited, News Limited and Gold Coast Publications Pty Ltd in early 2010 (MFI 2). Such leave was refused in Bracks v Smyth-Kirk [2008] NSWSC 930, where the plaintiff had commenced, and discontinued, proceedings in another jurisdiction. While the Queensland proceedings are still on foot, to commence proceedings in another Australian in relation to the same publications is an abuse of process: Maple v David Syme Pty Ltd [1975] 1 NSWLR 97. (c)News Limited is not the publisher of the Gold Coast Bulletin, which is published by Gold Coast Publications Pty Ltd. 28The plaintiff should not be granted leave to amend to bring proceedings for any of the publications asserted to form part of the second matter complained of. The defendants' application for summary dismissal in relation to this cause of action is granted. The third matter complained of (two publications dated 28 November 2011) 29The third matter complained of is the Gold Coast Bulletin publication on 28 November 2011, which was separately published on the Internet website. 30Any action brought on this publication is statute-barred pursuant to s 14B Limitation Act 1969 (NSW), which provides that a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of publication of each of the matters complained of. No application has been brought for an extension of time under s 56A. As the plaintiff commenced proceedings against the Gold Coast Bulletin in the Supreme Court of Queensland in 2010 for a publication dated 21 December 2009 (MFI 2), the plaintiff would not, I find, satisfy the difficult test under s 14B. 31There is also a claim for damages, as the plaintiff says she has suffered "immense financial loss" (paragraph 10). The plaintiff cannot avoid the limitation period for defamation by bringing a claim for damages (whether by breach of contract or otherwise) by framing her claim in contract or tort rather than defamation: Mahon v Mach 1 Financial Services Pty Ltd (No 2), supra. Furthermore, the claim for "immense financial loss" is itself objectionable. In McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 the plaintiff's claim was struck out, inter alia, by reason of a "ridiculous claim" (at [47]) for special damages. That does not, of itself, constitute a reason for striking the matter out without leave to replead, but it is an indication of the difficulties which lie ahead for these pleadings (currently on their third draft), and is one of the reasons why these proceedings require careful case management in the Defamation List. 32In addition, News Limited is not the publisher of the Gold Coast Bulletin and should not have been joined as a party. 33By reason of each of the above matters, the plaintiff should not be granted leave to replead any cause of action based upon the publication of 28 November 2011. The fourth matter complained of: broadcasts made "repeatedly" between 2009 - 2013 by National Nine News and A Current Affair (10 broadcasts and 10 Internet publications) 34The fourth matter complained of is a rolled-up series of claims against Channel Nine and NBN as follows: (a)3 May 2013, "Party House RIP"; (b)22 March 2013, "Party Houses a big pain on Gold Coast"; (c)13 June 2012 "Crack down on party houses"; (d)13 June 2012 "New powers to shut down Gold Coast party houses"; (e)13 June 2012, "Party House" (f)9 January 2012, "New-age suburban warfare"; (g)23 November 2011 (or 15 December) "Naked neighbours"; (h)22 November 2011 "The naked neighbour row - A Current Affair on Facebook"; (i)15 December 2011 "ACA Naked Neighbours" on Facebook; (j)A claim which featured in the previous draft, 5 September 2011 "Nude neighbours fight back", has been omitted. This appears to be an oversight by the plaintiff, so I have brought it to her attention. The plaintiff is uncertain if her house is identified or not. Nevertheless, the time to commence proceedings has passed. 35One set of imputations is pleaded for all of these publications. This is impermissible. Each publication should have been pleaded separately, and a transcript attached, and the imputations alleged to arise should also have been pleaded separately. Internet and broadcast material should be pleaded as separate causes of action, or alternatively as matters going to damages only. 36Apart from the three 13 June 2012 publications, and the separate Internet publications of these articles, all other publications in the list set out in [34] above are statute-barred. Leave should not be granted in relation to these publications. 37Not only are the publications rolled up into one claim, but no particulars of identification or of the "immense financial loss" or "loss of personal income from emotional trauma" are provided for any of them. Any amended pleading would have to identify these matters with precision, as well as attaching all the matters complained of. Leave will not be granted to file the proposed amended pleading in its present form; each of these publications must be pleaded and particularised separately as set out in [49] below. The trespass/breach of privacy claim 38As set out above, any claim for trespass occurring on 26 November 2009 would not be statute barred. The trespass pleadings in the first and second drafts of the statement of claim initially appeared to relate only to the 2009 broadcast, but Dr Ghosh's correspondence makes it clear she brings this claim in relation to the provision of information for an unspecified number of broadcasts as well. In her letter of 15 April 2013, Dr Ghosh has identified additional conduct amounting to trespass for the 5 March 2013 broadcast as follows: "This distasteful and voyeuristic video [emphasis given by the plaintiff] shot illegally by Mr Adam Schuch of 67 Rapallo Avenue Surfers Paradise, using a high powered telescopic lens from a height and hundred of metres away diagonally across the canal at night and in the dark, through/above our fence, which he posted to A Current Affair (ninemsn Pty Ltd) to falsely allege that parties in our private, fenced, enclosed backyard were disturbing his family. Mr Schuch's spastic daughter, for whom his whole family receives centrelink [sic] pensions, would have had to jump on both her spastic legs to an Olympic height and use a high powered telescope lens (as Mr Schuch did) to see any nudity in our enclosed and private backyard. Channel 9/Mr Schuch breached privacy of tenants and our privacy by taking these illegal videos and posting them to Channel 9, who in turn aired them multiple times in November 2011 and even posted them on the world wide web/internet in breach of internet content guidelines." 39The defendants submit that the claim for trespass as pleaded does not plead material facts sufficient to establish a cause of action for trespass or to enable the defendants to know the case they have been called upon to meet. The plaintiff has been given two opportunities to provide particulars and has not done so. In particular, the plaintiff identifies the "trespasser" not as Channel 9 (or A Current Affair, or Ninemsn), but as the plaintiff's neighbour, Mr Schuch, who took a video "hundreds of metres away" and thereby breached her privacy and that of her tenants. It is clear from the plaintiff's letter providing these particulars, and from the claim as framed in the 22 March 2013 statement of claim, that this is a claim for breach of privacy and not a claim for trespass. 40There is no recognised cause of action for breach of privacy: Maynes v Casey [2011] NSWCA 156; Sands v State of South Australia [2013] SASC 44 at [612]-[614]. References to privacy in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 relate to the facts of that case, namely surreptitious filming of possum killing by an unknown animal welfare supporter. Complaints of surreptitious filming of alleged animal cruelty generally fall outside the categories of protected privacy even in the United States, where such a right of action exists. Specific "Ag-Gag" legislation has been the result (K C Adam, "A Common-Sense Analysis of State Ag-Gag Legislation Under the First Amendment" [2012] 45 Suffolk University Law Review 1129 - 1176 at 1130 - 1). 41In addition, the claim based on the use of Mr Schuch's film by the broadcaster does not plead facts and matters amounting to trespass. The facts pleaded cannot even amount to use of the fruits of the trespass (Lenah Game Meats at [4]), since Mr Schuch's filming of the plaintiff's home, from a vantage point hundreds of metres away, is not an act of trespass: Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. 42These claims of trespass must be struck out pursuant to r 14.28 UCPR as hopeless. If Dr Ghosh is able to plead and particularise a claim of trespass which involves some form of entry by an individual onto her property, either on these specified dates or at any other time before the expiry of the limitation period, that would be an entirely different claim. It is not appropriate, however, to grant her leave to amend these claims given their hopeless generality. Claim for criminal defamation 43As an addendum to the proposed statement of claim provided today, Dr Ghosh attaches a copy of s 257 Criminal Law Consolidation Act 1935 (SA). Underneath this section, Dr Ghosh states "All four defendants fit all of these criteria for "Criminal defamation"." 44Section 257 is a South Australian provision: see Tobin & Sexton, Australia Defamation Law & Practice (LexisNexis) at [8097] for a brief description of this statute in relation to the framework of criminal defamation in Australia. The relevant NSW provision is s 529 Crimes Act 1900 (NSW). 45At [8003], Tobin & Sexton go on to explain the very limited circumstances in which there can be a claim brought for criminal libel: "As at 1 January 2006 a largely uniform provision on the subject of criminal defamation was adopted by five of the Australian States, Victoria being the exception. Previously each of these jurisdictions - and the Australian Capital Territory and the Northern Territory - had its own - somewhat differing - statutory offence of criminal libel. ... Proceedings in criminal defamation cannot be instituted without the consent of the Director of Public Prosecutions. The commencement of criminal proceedings, however, does not prevent the commencement or determination of civil proceedings." 46Pursuant to s 529(7) such an action cannot be commenced without the leave of the Attorney-General. This is a hopeless pleading and must be struck out. Aggravated compensatory damages 47Matters commonly found in a pleading for aggravated compensatory damages can be found in paragraphs (i) - (v). However, in (vi), Dr Ghosh makes serious allegations about the defendants and their lawyers ranging from perjury and hiding evidence to abusing and assaulting the plaintiff outside the Newcastle Court House. The defendants submit these particulars are scandalous and should be struck out. I will not strike out the particulars of aggravated damages in paragraphs (i) - (v), but I will strike out the whole of paragraph (vi) as scandalous and as irrelevant to the issue of aggravated compensatory damages. What leave to amend should be granted? 48The plaintiff should not be granted leave to plead any of the following: (a)Any cause of action for defamation against NBN Limited in respect of any publication other than those within time, namely the three publications dated 13 June 2012 and those dated 5 March 2013, 22 March 2013 and 3 May 2013. The plaintiff must either plead and particularise any Internet publication as a cause of action or alternatively identify such publication(s) as going to damages only. Stayz Pty Ltd's letter of 6 March 2013 is also a cause of action upon which the plaintiff may commence proceedings. (b)The causes of action for trespass to land/breaches to privacy. (c)All causes of action for defamation, including those against News Limited or Gold Coast Publications Pty Ltd, identified in the second and third matters complained of in the proposed statement of claim. Each publication identified in these parts of this pleading is time-barred, and News Limited did not publish any of the alleged publications. (d)All causes of action in the fourth matter complained of in the proposed statement of claim, except those dated 13 June 2012, 22 March 2013 and 3 May 2013. (e)As no claim is made against Fairfax Media ACN 008 663 161, leave should not be granted to include the name of this party as the third defendant. The plaintiff's claim should be brought against Stayz Pty Ltd (ACN 102 711 599). The claim in relation to Stayz's 6 March 2013 email in the first matter complained of must be pleaded separately, with separate imputations and, if necessary, extrinsic facts. 49Any grant of leave should be conditional upon the following: (a)The plaintiff is to annex the text of each of the matters complained of, and to identify the imputations alleged to arise in relation to each publication. (b)Where the plaintiff is not named in each matter complained of, the plaintiff should provide particulars of the names and addresses of the persons who identified her in each such publication, and the facts and matters giving rise to such identification. (c)Full particulars of any claim for special damages should be provided. (d)Each of the defendants should be separately identified. As there is no case pleaded against Fairfax Media or News Limited, their names should not appear in the pleadings at all. (e)The defendants asked for an order for verification of the pleadings by the plaintiff. I do not think that this is necessary; Dr Ghosh clearly genuinely believes she has been wronged, and there are certainly many publications which appear to refer to her real estate use by alleged partygoers. Counsel for the defendants indicated that it would be a matter for the court to determine what would be an appropriate course of action. In my view, no special order for verification is necessary, but the defendants' Notices of Motion should remain on foot, in the event that the defendants wish to bring further objections to the next version of the statement of claim. Transfer of the action from Newcastle to the Defamation List 50The defendants argue, with some justification, that the complexities of this action require specialist list case management so that judgments explaining the issues of law can be provided to assist the plaintiff. The large number of publications, the changes to the names of the defendants and the causes of action and the series of draft pleadings have added to this complexity. 51Rule 8.2 of the UCPR permits a court to make an order changing the venue of proceedings where appropriate. Rule 45.10 provides that the court may refer proceedings to a specialist list. Practice Note DC (Civil) No. 6 envisages that actions for defamation are case-managed in the Defamation List until pleadings are closed. 52I have explained to Dr Ghosh that she can appear by telephone link when the matter is next in the Defamation List. This is more efficient than conducting a complex matter before a series of different judges in the Newcastle circuit sittings. I have accordingly made an order transferring these proceedings from the Newcastle registry to the Sydney registry Defamation List. 53Dr Ghosh also asks that proceedings 13616/10 (Ghosh v New Ltd & Ors) be transferred from the Supreme Court of Queensland to the Newcastle registry of this court. I do not have power to make such an order, and I have told her so. Costs 54Both the plaintiff and defendants sought costs orders in their favour in relation to this application. Dr Ghosh considered she should be entitled to costs because she is in a disadvantageous position compared to the defendants. She referred me to s 40 Defamation Act 2005 (NSW). 55Although Dr Ghosh complains that the defendants are running up costs to intimidate her, these proceedings have not been conducted unfairly in my view. There has been only one barrister appearing for all these defendants, instructed by one solicitor. The defendants have shown restraint and common sense in their approach to this complex claim and also to the redrafted pleadings handed up in court on 8 May and again today. 56Counsel for the defendants submitted her clients should be awarded costs as they had substantially succeeded. Where a claim is struck out, or leave to amend granted, the general rule is that costs follow the event: r 42.1 UCPR. I agree that this should be the case here. 57There are three additional points. First, the plaintiff's application to issue subpoenae in the Newcastle registry was premature. I have made orders setting those subpoenae aside, and explained to her the difficulties caused to courts, as well as to the parties, by the issuing of subpoenae at such an early stage of the proceedings. It would appear that some of the subpoenae issued were as a result of not appreciating that discovery is a procedure available in defamation actions. Secondly, the defendants have been successful in having about two-thirds of the 47 or more defamation actions struck out, as well as the two claims for trespass/breach of privacy. Thirdly, this application could not be dealt with on the court-appointed date (29 April 2013) because the plaintiff did not attend court, and the special fixture could not proceed on 8 May because she did not provide the necessary documents to the defendants, so the matter had to be stood over part-heard to today. 58The defendants ask for an order that the costs payable be paid on an indemnity basis. The statement of claim must be completely redrafted and some of the extreme claims made (such as the criminal defamation claim and the aggravated damages particulars which I have struck out as scandalous) are matters of concern. 59I first note that no cause of action is pleaded in relation to News Limited or Fairfax Media, and their names should be deleted as defendants in relation to the causes of action pleaded. However, I have not made any special costs orders in this regard. This means that none of the costs orders I am making can be assessed before the end of these proceedings, unless another judge or I order otherwise, on another occasion. I have put this paragraph in my judgment to reassure Dr Ghosh on this issue. 60I take into account that the plaintiff is a litigant in person, but I am satisfied, by reason of the matters in [57] - [58] above, that I should make an order for the plaintiff to pay the defendant's costs on an indemnity basis. The maze-like structure of the successive draft statements of claim, the scandalous matters in the particulars of aggravated damages and the bringing of a claim for criminal defamation warrant the making of such an order. 61Finally, I note that the plaintiff is concerned about the degree of ongoing media coverage of her real estate, and allegations of there being party-going guests. The plaintiff is at liberty to bring any application by Notice of Motion in accordance with the orders set out below. It is not possible, due to the lateness of the hour, for such an application to be entertained today. Orders (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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2013