Supreme Court New South Wales Medium Neutral Citation: Goldsmith v Ghosh [2015] NSWSC 631 Hearing dates: 25 and 26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Common Law Before: Hamill J Decision: See paragraph 24 Catchwords: CIVIL LAW – defamation – injunctive relief – balance of convenience – freedom of speech – damage to reputation – service of subpoena in the United States – whether leave should be granted Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allan v The Migration Institute of Australia Ltd [2012] NSWSC 965 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 Munsie v Dowling [2014] NSWSC 1508 Texts Cited: Hague Convention, Chapter 14 Category: Procedural and other rulings Parties: Barrie Goldsmith (plaintiff) Ex parte Ratna Ghosh (defendant) Representation: Counsel: Solicitor: Goldsmiths Lawyers File Number(s): 2015/00149194-1 Judgment - EX TEMPORE 1. HIS HONOUR: By statement of claim filed 19 May 2015 the plaintiff sues the defendant for defamation. On 20 May 2015, that is to say the day after the summons was issued, Wilson J made orders for substituted service allowing the plaintiff to serve the summons by email or by leaving copies of the relevant documents at the defendant's last known residential address. 2. The plaintiff now seeks urgent injunctive relief restraining the defendant from publishing statements defamatory of him and requiring her to take all reasonable steps to remove from a particular website material alleged to have been published by her and also alleged to be defamatory. He also seeks an order under rule 11.5 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for leave to serve a subpoena in the United States. 3. The matter was before McCallum J on Friday 22 May 2015. The matter came before me in the Duty list yesterday. The plaintiff, who is a solicitor, appeared for himself. Against an estimate of 15-20 minutes, the matter proceeded for around 2 hours. 4. The background to the matter commenced in 2010 when the plaintiff acted as the defendant's solicitor in certain civil litigation. What follows is the plaintiff's version of events. That version receives support in the documentation annexed to his affidavit. However, it is not known whether it is disputed by the defendant. Pursuant to agreements between them, the plaintiff charged the defendant a sum of $7,000 for legal services and, pursuant to an oral authorisation, debited a credit card of the defendant with that sum. A short time afterwards, the defendant complained both to the banks and to the Legal Services Commissioner that the plaintiff had debited her credit card account without authorisation and in circumstances where there was a dispute over the legal fees in question. The plaintiff's bank, the defendant's bank and the Legal Services Commissioner conducted some investigations into the defendant's allegations. None of her allegations were found to be sustained. In particular, the complaint to the Legal Services Commissioner was dismissed by the Commissioner on 22 March 2011. I have before me and have considered the five-page letter to the defendant, copied to the plaintiff, which indicates the fact of the dismissal and the reasons for that outcome. 5. According to the plaintiff, no further relevant correspondence or communication emanated from the defendant for the next four years. However, on 18 March 2015 the defendant (on the plaintiff's case) caused to be posted on a website known as "ripoffreport.com" an item in the following terms: – "Goldsmith's Lawyers Goldsmiths lawyers Barrie goldsmith Unauthorized credit card debit, $7000 unauthorized charge, legal fees disputed, sydney lawyer debited credit card without consent Sydney Nationwide" 1. The post went on: "Please help me understand how lawyers are able to debit a credit card without authorization. It is important that consumers are careful when providing personal or financial information to businesses. It is also extremely important that credit card information is never disclosed to businesses that do not provide clarity on how much will be charged to a credit card. Barrie Goldsmith Of Goldsmith's Lawyers has been involved in the dispute surrounding an unauthorized charge to credit card. Ensure all communication is in writing." 1. It is this publication that the plaintiff seeks to have removed, or at least for the defendant to take all reasonable steps to remove it. 2. The offending post was under the name of "Golly.Ghosh". The coincidence between the spelling of "Ghosh" and the name of the defendant, as well as the nature of the dispute and the amount involved in the dispute satisfies me, at a preliminary level, that the person who posted the item was the defendant. Whether that is ultimately a matter of dispute is not presently known. At this stage, the defendant has not put on a defence and has not appeared to contest the application. While two affidavits show that service of the summons was effected by the alternative means allowed by the orders of Wilson J, and while the defendant did not appear before McCallum J on Friday, under direct questioning the plaintiff acknowledged that the Defendant had not been made aware of the fact that urgent relief was being sought before the Duty Judge on 25 May 2015. 3. On 19 March 2015, the day after the post on ripoff.com, two posts appeared on a different web-site, "pissedconsumer.com". Two further posts appeared on 8 April 2015. Those posts were "by anonymous" and were said to emanate from "Somerset New Jersey", Darwin and Kalgoorlie. The style of the posts and some common linguistic features suggests that the author of those four posts was the same person. It is unnecessary to set out the terms of the offending items other than to say that they also raise allegations relating to the plaintiff and to disputes that he and his law firm have allegedly had with clients concerning legal fees. At this stage, the plaintiff is unaware of the identity of the poster of those articles and the order he seeks under rule 11.5 UCPR is calculated to enable the service of a subpoena outside of the jurisdiction, specifically in the state of Nevada, where the evidence demonstrates the publisher of the website has its offices. 4. The questions arising for consideration on an application such as this and the legal principles that I must apply are well established. They have been considered in a variety of factual circumstances: see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57; Allan v The Migration Institute of Australia Ltd [2012] NSWSC 965; Munsie v Dowling [2014] NSWSC 1508 and Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521. 5. In ABC v O'Neill the High Court said at [19]: "19. The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd[11] (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd[12], and Jakudo Pty Ltd v South Australian Telecasters Ltd[13]. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved." 1. The particular application of these principles was considered by McCallum J in Allan v The Migration Institute of Australia, by Harrison J in Beechwood Homes and by Adams J in Munsie v Dowling. 2. I am satisfied that the material complained of is capable of being held to be defamatory. On its face, there appears to be no arguable case to the contrary but it must always be remembered that this application is being dealt with without the benefit of any defence. It was also argued in the defendant's absence. Accordingly I will exercise great caution in determining where the balance of convenience lies and what orders should be made. I also give effect to the principles relating to the freedom of speech as discussed by both the High Court in ABC and O'Neill and by McCallum J in Allan v The Migration Institute of Australia. 3. In considering the balance of convenience in the present circumstances I accept the submission of Mr Goldsmith that the publication has a capacity to cause him great harm and that it may be very difficult to determine just how much harm it has caused him. It is not possible to know whether any, and if so how many, potential clients have failed to retain his firm as a result of the allegations contained in the publication. Mr Goldsmith says in his affidavit, and I accept, that many clients undertake Google searches before engaging his services. His employed solicitor Ms Chou, who gave evidence before me, undertook a Google search and found that the publications on pissedconsumer.com appeared as the seventh and eighth "hits" on the first page of the Google search results. While the traffic through those pages is not great, it appears that it has increased over the last two weeks. On 12 May 2015, the four publications had respectively 28, 25, 23 and 20 views. By the day of the hearing (around two weeks later) those numbers had increased to 37, 33, 34 and 33. The material does not enable me to know where the people viewing the articles resided and it is difficult to determine with any degree of precision the extent to which the recorded "views" might damage Mr Goldsmith's reputation and business. However, I do accept his submission that the potential is real. I also accept his submission that a lawyer trades to a very significant degree on their reputation. He has a lot to lose. 4. Conversely, there is nothing to suggest that the defendant has anything to lose by an order that she be restrained from publishing any statements to the same or similar effect to those made on ripoff.com. I propose to make such an order for a limited period of time. 5. How easily the post can be taken down or removed is not known to me. It may be as easy as deleting the post from the website or by making some electronic contact with the publisher. I simply do not know. 6. After hearing argument in the absence of the defendant, the plaintiff consented to my making orders and directions for the Registry and my Associate to attempt to contact the defendant by email before making any orders. At 1:05pm my Associate wrote an email to the address "r_ghosh@dodo.com.au" in the following terms: "The above matter was listed before Justice Hamill today, 25 May 2015 and has heard legal argument. His Honour has relisted the matter on 26 May 2015 for Judgment." 1. At 2:01pm the defendant responded in the following terms (and this email is on the registry file): "I was not served any Notice of Hearing today. I did not appear on any online Court List either. I object to any Judgment being passed in my absence." 1. At 3:59pm she provided a further response: "I was not served any Notice of Hearing today. It did not appear on any online Court List either. I object to any Judgment being passed in my absence I refuse to accept service by email from Barrie Goldsmith, and he has already been informed of this, because of a number of nuisance emails he has sent me since April 2015, produced to the District Court as evidence. The only method of service I accept from Barrie Goldsmith is personal service to me only (not any 3rd party) at Shop 5/138 Pacific Hwy Charlestown NSW 2290 I am unable to attend any hearing tomorrow, as it is < 24 hours notice, and I have NOT been served with any papers. I remind listings that a minimum of 3 working days notice is required after filed documents are served I will not accept any email forwarded from Barrie Goldsmith either." 1. I note that the email address used by my Associate which provoked that response, or those responses, is the same email address that was subject to the order for substituted service by Wilson J. I also note that in responding to the email, it would seem that the defendant received the documentation but did not attend on Friday before McCallum J. 2. I also note that the email response does not contain a denial that the defendant is the author of the material although it does not address that question at all. Nor, as Mr Goldsmith points out to me this morning, does it raise any defence of justification or similar. However, again, it does not deal with the matters of substance in any way at all. 3. In the circumstances, I do not propose to make the order requiring the plaintiff to take all reasonable endeavours to remove the post. I will stand the matter over to be further considered in the defamation list on Friday. That will give the plaintiff the approximate 3 days that she requires to attend Court. It may enable the Court to have some understanding whether there is to be a defence and the nature of that defence. 4. The Court is often reluctant to grant leave to allow for the service of a subpoena outside of Australia, because the utility of such an order is questionable. The ability of the Court to sanction non-compliance is doubtful. However, I am satisfied that the order under r 11.5 UCPR should be made to enable to the plaintiff to attempt to identify the anonymous author of the publications on pissedconsumer.com. There seems to be no other practicable means to obtain that information. In reaching that conclusion, I have noted the provision in Article 8 of the Hague Convention allowing each contracting state freedom to effect service of judicial documents upon person abroad. I also note that the order can be set aside if, for example (and contrary to the plaintiff's submissions) questions of comity arise. 5. The plaintiff seeks an order for costs. I do not propose to make an order for costs against the defendant in circumstances where she has not had the opportunity to be heard. Costs will be reserved for determination by the defamation list judge. 6. I make the following orders: 1. Until further order, the defendant be restrained from publishing, directly or indirectly, in any form, any statements of or concerning the plaintiff that are the same or to a similar effect as those pleaded in paragraphs 5, 8, 11, 14 and 17 in the statement of claim, other than: 1. As may be required by law; 2. To professional advisors for the purpose of obtaining professional advice; 3. With leave of this Court; or 4. With the plaintiff's written consent. 1. (1A) The balance of the notice of motion is stood over to the defamation list judge on Friday 29 May 2015 2. Pursuant to Rule 11.5 of the Uniform Civil Procedure Rules 2005, leave is granted to the plaintiff to serve a subpoena to produce in the United States of America upon Consumer Opinion LLC, the proprietor of the website with the URL www.pissedconsumer.com. 3. The matter is stood over to the defamation list on Friday 29 May 2015. 4. I direct the Registrar to notify the defendant of these orders by email to r_ghosh@dodo.com.au. 5. Costs of this motion are reserved for determination by the defamation list judge. 6. The transcript of 25 May 2015 and 26 May 2015 including this judgment is to be taken out and provided to the defamation list Judge and to the Defendant. ********** 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: 26 May 2015