Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 Hearing dates: 26 April 2017 Date of orders: 26 April 2017 Decision date: 05 May 2017 Before: Basten JA at [1]; Simpson JA at [24] Decision: (1) Refuse the application to adjourn the hearing of the application for leave to appeal from the judgment of Rothman J on 28 October 2016. (2) Refuse the application for leave to appeal. (3) Applicant to pay the costs in this Court of the second and third respondents to the application. Catchwords: APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would be unduly oppressive to the respondent – leave to appeal refused APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would result in a disproportionate burden on the resources of appellate and trial courts – leave to appeal refused DEFAMATION – practice and procedure – parties – joinder of parties where leave under s 23 of the Defamation Act 2005 (NSW) applies – interplay between s 23 of the Defamation Act and continuing internet publications – leave to appeal refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Defamation Act 1974 (NSW), s 9(3) Defamation Act 2005 (NSW), s 23 Limitation Act 1969 (NSW), s 14B Supreme Court Act 1970 (NSW), s 101(2)(e) Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 Ghosh v Miller [2016] NSWSC 1574 Ghosh v NBN Ltd [2014] QCA 53 Ghosh v Ninemsn Pty Ltd [2013] NSWDC 63 Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4) [2014] NSWDC 151 Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Phillips v Robab Pty Ltd [2014] NSWSC 1520 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Texts Cited: New South Wales Law Reform Commission Report on Defamation (1971) LRC No 11 Category: Principal judgment Parties: Dr Ratna Ghosh (Applicant) Nine Digital Pty Ltd trading as Channel Nine Television (First Respondent) Nine Digital Pty Ltd (Second Respondent) Nine Network Australia Pty Ltd (Third Respondent) Representation: Counsel: R Higgins (Applicant) N/A (First Respondent) L Barnett (Second and Third Respondents) Solicitors: N/A (Applicant) N/A (First Respondent) Mark O'Brien Legal (Second and Third Respondents) File Number(s): 2016/351130 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: Ghosh v Miller [2016] NSWSC 1574 Date of Decision: 28 October 2016 Before: Rothman J File Number(s): 2013/238215 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: The present matter concerns an application by Dr Ratna Ghosh to join two media organisations, Nine Digital Pty Ltd and Nine Network Australia Pty Ltd, as defendants in proceedings for defamation presently pending in the Supreme Court. To effect that purpose, it was necessary to make amendments to the statement of claim in order to plead causes of action against the proposed parties. On 28 October 2016, Rothman J refused leave to permit the necessary amendments. Dr Ghosh (the applicant) then sought leave to appeal from that judgment. 2. The application for leave to appeal was listed for hearing on 26 April 2017. The summons, draft notice of appeal and summary of argument which had been filed in support of the application had been prepared by the applicant personally. However, shortly before the hearing of the application, the applicant briefed Mr Higgins of counsel to appear for her. His primary application was for an adjournment of the hearing of the application to allow for the filing of an amended draft notice of appeal and amended submissions in support thereof. The Court dismissed the application for an adjournment and also dismissed the application for leave to appeal. The applicant was ordered to pay the costs of the respondents. This judgment constitutes my reasons for the orders. 3. There is one further preliminary point to note: the documents before the court continue to identify three respondents. The first-named respondent was the same body corporate as the second, the latter being its correct and current name. On 6 March 2017 the Registrar directed that the "first respondent" be removed from the proceedings. Application for adjournment 1. The white folder prepared by the applicant and filed on 27 January 2017 omitted much of the material which was before the primary judge, including all of the evidence. That material was provided to the Court by way of a supplementary white folder prepared by the respondents. The material provided nevertheless remained deficient in a number of respects. Because the application was opposed, the Court needed to be satisfied that there was some purpose in adjourning an application which, on its face, lacked merit. In the course of his thorough and helpful submissions, Mr Higgins canvassed much of the argument which would have been put on the substantive leave application. 2. An important aspect of the reasons for refusing the adjournment and refusing the application for leave to appeal was to be found in the extraordinary procedural history of the applicant's claims which is dealt with, at least in an attenuated form, by Simpson JA. It is convenient, first, to explain how the matter proceeded before the primary judge and the principal issue sought to be raised on the appeal, if leave were to be granted. Procedural background to leave application 1. In 2011 the applicant owned a house on the Gold Coast which was let on a short term basis. It was said to be used, in the vernacular, as a "party house". Certain neighbours published complaints, which became the basis of a program broadcast by Channel Nine on A Current Affair, entitled "Naked Neighbours". Proceedings were brought in the District Court against the neighbours and against several corporations which may be imprecisely referred to as "Channel Nine". With regard to Channel Nine, those proceedings were dismissed after numerous unsuccessful attempts to file a satisfactory pleading. The proceedings against the neighbours remained on foot and were transferred to the Supreme Court. The motion which gave rise to the present application sought to join in the transferred proceedings two of the same Channel Nine corporations which had been defendants in the District Court proceedings. 2. When the matter came before the primary judge, it was not in dispute that the applicant required leave to make the necessary amendments and add new parties. However, in the course of the hearing, a question was raised as to whether the applicant also needed leave pursuant to s 23 of the Defamation Act 2005 (NSW), because she had, in the District Court defamation proceedings, sued the same Channel Nine corporations. Counsel then appearing for the applicant conceded that she required leave under s 23 and the primary judge dealt with the matter on that basis. 3. In this Court, Mr Higgins indicated that he proposed to withdraw the discursive and unsatisfactory grounds relied upon in the summons and draft notice of appeal prepared by the applicant and sought, in their place, to rely upon a single ground, namely that the primary judge erred "in applying s 23 of the Defamation Act as leave under this section was not required to join the proposed parties." 4. Although Mr Higgins accepted that, before the primary judge, counsel for the applicant had conceded that s 23 was engaged, he submitted that the concession was incorrect as a matter of law and, being a matter of law, it was open to the applicant to challenge that approach on appeal. He further submitted that there were differing views about the construction of s 23, which should not properly be determined on a leave application. Disposal of adjournment application 1. The application for an adjournment was refused because of the cumulative effect of the following considerations. First, the applicant had had counsel appear for her on earlier occasions and had advised the Registrar at a directions hearing on 6 March 2017 that she proposed to obtain the assistance of counsel and amend her documents in accordance with counsel's advice. The Registrar granted her the opportunity to do that, but directed that it be done by 3 April 2017. On 31 March, she sought an extension of time, which was denied. On 3 April 2017 she filed an outline of argument, not settled by counsel. 2. Ms Barnett, who appeared for the respondents, opposed the adjournment. She outlined the procedural history in this Court (as noted above) and stated, without contradiction, that on 24 April 2017 the respondents had been provided with an amended draft notice of appeal and an amended summons. She said that costs were mounting and that the applicant had recently been declared bankrupt, although the applicant was challenging that order. The applicant proffered no explanation for the failure to comply with the Registrar's directions. 3. Secondly, the history of the matters, both in the District Court and in this Court (dealt with further below), in combination with the failure to comply with the timetable fixed by the Registrar, militated against any further indulgence being allowed to the applicant. 4. Thirdly, although the primary judge was arguably in error in one of the factors he took into account in refusing leave under s 23, that factor was of limited weight. In other respects, assuming that s 23 did not provide the relevant statutory focus for the leave application, the other factors identified by the primary judge provided a firm basis for refusing leave to amend and add new parties, with the consequence that the outcome of the application would be unlikely to be disturbed, even if the legal argument were successful. 5. Fourthly, while the legal argument is not untenable, neither is it clearly correct. It is convenient to outline the reason for the last conclusion. 6. Section 23 of the Defamation Act provides as follows: 23 Leave required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought. 1. On the ordinary reading of this language, it was engaged in the present circumstances. The applicant had "brought defamation proceedings for damages" against the respondents in the earlier proceedings in the District Court. It was conceded that the present proceedings related to "the same or any other publication of the same or like matter". The proposition which underlay the claim that the section was not engaged involved an implied restriction on the scope of the provision so that it did not apply with respect to proceedings which had been brought, but which had terminated. 2. In support of that reading of the section, the applicant relied upon a statement by McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No 7), [1] delivered on 3 April 2017. Mr Carolan had been successful in obtaining damages with respect to a series of articles published by Fairfax Media. He then sought permanent injunctive relief with respect to any further publication of the same material. He argued that, absent such relief, he would not be able to bring further proceedings in the event of a further publication, without the need to obtain leave pursuant to s 23. 3. McCallum J considered that there were conflicting decisions of single judges of the Court with respect to the correctness of that proposition. She noted that a similar argument had succeeded before Rothman J in Phillips v Robab Pty Ltd. [2] However, McCallum J referred to a subsequent decision of White J in Hockey v Fairfax Media Publications Pty Ltd (No 2), [3] in which Mr Hockey sought injunctive relief with respect to any possible republication of defamatory matter upon which he had succeeded at trial. White J had stated: "[23] Given that purpose, s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a 'publication of the same or like matter' for the purposes of s 23. … [25] Accordingly, I consider that any future publication of the kind postulated by Mr Hockey is likely to be regarded as so separated in time and circumstance from the publication of the SMH poster and the two tweets as not to be regarded as a publication of 'the same or like matter' for the purposes of s 23." 1. McCallum J understood White J to have adopted an analysis which she expressed in the following terms: [4] "In my respectful opinion, s 23 should not be construed so as to place any hurdle in the way of a plaintiff who, having succeeded in a claim for defamation, finds himself defamed again by the same defendant in the same way. Further proceedings in that event would not be a vice and could not be taken to be the vice to which the section was directed. I would understand the section to be directed at preventing the proliferation of concurrent actions against the same defendant in relation to the same or like matter. Repetition after judgment raises different considerations." 1. There are three factors to be considered with respect to McCallum J's opinions. First, they were expressly stated to be "a tentative view as to the potential application of the section." [5] Secondly, they went somewhat further than the view adopted by White J. Thirdly, they adopted a view of the limited purpose of the section which was not to be found in the express language used, the statutory context in which the provision appeared, or in any extrinsic materials relevant to the drafting of the provision. 2. By contrast, in Carey v Australian Broadcasting Corporation, [6] in considering whether leave could be given retrospectively with respect to proceedings commenced without leave, McColl JA referred to several passages in the New South Wales Law Reform Commission Report on Defamation, [7] where the Commission had stated with respect to the predecessor to s 23: "We think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose." 1. The draft prepared by the Commission and adopted in the Defamation Act 1974 (NSW), s 9(3), was clearly not intended to be subject to the implied limitation that it only provided a constraint on the institution of concurrent proceedings. That reading of the Act is not self-evidently correct; nor does the recounting of circumstances where leave might well be granted demonstrate that the section cannot have been intended to require leave in such circumstances. 2. Although, the final resolution of that issue may involve an issue of legal principle, the construction espoused by the applicant is no more than arguable. Even were the proposed construction correct, that conclusion has not been shown to be likely to lead to a different result. There is no real injustice to the applicant in refusing leave. However, as explained by Simpson JA, a grant of leave would have been oppressive to the respondents. 3. SIMPSON JA: On 26 April 2017 the Court heard an application for leave to appeal. At the conclusion of the hearing, the Court made the following orders: "(1) Refuse the application to adjourn the hearing of the application for leave to appeal from the judgment of Rothman J on 28 October 2016. (2) Refuse the application for leave to appeal. (3) Applicant to pay the costs in this Court of the second and third respondents to the application. (4) Reasons reserved." These are my reasons for joining in those orders. 1. The subject matter of the application for leave to appeal is interlocutory orders made extempore in the Common Law Division of the Supreme Court by Rothman J ("the primary judge") following a hearing on 28 October 2016: Ghosh v Miller [2016] NSWSC 1574. The orders made were: "(1) Strike out the proposed eighth defendant. (2) The plaintiff is, pursuant to s 23 of the Defamation Act 2005, denied leave to commence proceedings against Nine Digital Pty Limited and Nine Network Australia on the basis of the proposed Statement of Claim. (3) Plaintiff to pay the defendants' costs of today only." The effect of the orders was to refuse an application by the applicant to join three additional defendants to defamation proceedings that had been instituted on 6 August 2013. Leave to appeal is required because the decision is interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). Because the decision is a discretionary one, the applicant needs to show an arguable case of error of one of the kinds described in House v The King (1936) 55 CLR 499; [1936] HCA 40. Background 1. The origin of the proceedings lies in what the applicant alleges to have been a series of defamatory publications on one or more television programmes, and on the internet, concerning premises owned by her (or a company of which she is the principal) on the Gold Coast, and the subject of short term lettings. 2. The following procedural history is in part drawn from previous judgments in the proceedings between the applicant, the respondents, and other parties, and also from information derived from JusticeLink (the parties having failed to produce relevant historical material). 3. On 22 March 2013 the applicant filed a statement of claim in the Newcastle registry of the District Court of NSW, claiming damages for alleged defamation (proceeding number 2013/88183). She named three defendants, of which the first and second were Nine MSN Pty Ltd and News Ltd. The third was Fairfax Media for Stayz Pty Ltd. The claim in defamation was based on the alleged publication of a television programme, A Current Affair (entitled "Party House Misery"); other publications; and internet publication of the same kind of material. It seems that some of the defamatory imputations of which the applicant complained were said to have been conveyed by viewer comments placed on certain websites. 4. Earlier, in 2010, the applicant, jointly with her husband, had commenced proceedings in the Supreme Court of Queensland in respect of four of the same publications, naming four defendants. In 2013 those proceedings were struck out for want of prosecution, a decision upheld on 21 March 2014 by the Queensland Court of Appeal: Ghosh v NBN Ltd [2014] QCA 53. 5. Because of perceived deficiencies in the 2013 pleading, the defendants, by notice of motion, sought summary dismissal of the proceedings. In response, the applicant sought to file an amended statement of claim, naming two additional defendants (NBN Ltd and Gold Coast Publications Pty Ltd) and removing Nine MSN as a defendant. She sought to plead four claims in defamation, identifying publications in 2009, 2010, 2011 and 2013. On 12 May 2013 Gibson DCJ refused leave to the applicant to file the proposed amended statement of claim, but granted her leave to file a different amended statement of claim in relation to a series of identified publications on the internet or television. She stood over, undetermined, the defendants' notice of motion seeking summary dismissal: Ghosh v Ninemsn Pty Ltd [2013] NSWDC 63. There followed a series of amended statements of claim, generally attended by interlocutory applications respecting further deficiencies in the pleadings. 6. On 6 August 2013 the applicant filed in the District Court a separate statement of claim (proceeding number 2013/238215), also in defamation, naming seven individual defendants, the first of whom was Rodney Miller ("the Miller proceedings"). The defendants may be taken generally to be Gold Coast residents or neighbours of the applicant, who complained about the conduct of the applicant's premises. So far as I can ascertain (the original statement of claim was not before this Court), this statement of claim purported to plead causes of action in respect of five publications the applicant claimed to be defamatory of her. The fourth publication was said to be constituted by "a series of signs" that were republished in a Gold Coast newspaper. The fifth publication was pleaded no more specifically than as "a film", with no further identification. 7. On 28 February 2014 the applicant filed a further statement of claim (proceeding number 2014/63022) in relation to five publications, naming as defendants TCN Channel Nine Pty Ltd and Nine Network Australia Ltd. On 2 May 2014, by consent, the proceedings numbered 2013/88183 and 2014/63022 were consolidated. 8. By June 2014 the statement of claim had been amended on 10 occasions. The fifth version of the statement of claim was 103 pages in length and pleaded 53 separate publications against a variety of defendants. The eleventh incarnation of the statement of claim was filed on 27 June 2014. It is not before this Court. It named five defendants: TCN Channel Nine Pty Ltd, Nine Network Australia Ltd, NineMSN Pty Ltd, NBN Ltd and Katie Gregory. On 17 September 2014 Gibson DCJ dismissed the consolidated proceedings and ordered the applicant to pay the defendants' costs: Ghosh v TCN Channel Nine Pty Ltd; Ghosh v Ninemsn Pty Ltd (No 4) [2014] NSWDC 151. A brief but comprehensive account of the tortuous history of the applicant's attempts to plead her causes of action is to be found in the primary judgment at [6]-[35]. 9. The reasons given by Gibson DCJ are of some significance. After setting out the history at greater length than I have done, she described the applicant's conduct as a "misuse of the court's resources in a sustained and significant fashion" (at [94]), and said that the applicant: "… when faced with justified requests for information or complaints about her pleadings … responded inappropriately, by filing fresh pleadings without leave, commencing concurrent proceedings in two jurisdictions as well as two sets of proceedings in this court, bringing claims and appeals out of time, and displaying a combative refusal even in relation to such uncontentious matters as a request for particulars of the statement of claim …" ([95]) She concluded: "… The defendants, and the court, should not be subject to this continuing disregard of the obligation to conduct litigation in accordance not only with the rules of court, but with the basic courtesies …" ([97]) 1. The applicant appealed against that decision. By judgment delivered on 29 October 2015 the appeal was dismissed: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. 2. The Miller proceedings were not disturbed by those orders. On 2 July 2014 the applicant filed an amended statement of claim in those proceedings in the District Court. 3. On 21 March 2016, by order of a registrar of the Supreme Court, the Miller proceedings were transferred to that court. On or about 29 August 2016, the applicant proposed filing a Third Amended Statement of Claim in those proceedings. That document named Ninemsn Pty Ltd, Nine Digital Pty Ltd and Nine Network Australia as, respectively, the proposed eighth, ninth and tenth defendants. Those corporations are the present respondents. The Third Amended Statement of Claim purported to add three further causes of action attributing to one or more of the respondents liability for three of the defamatory publications pleaded against the defendants in the Miller proceedings. At an unspecified later date, the applicant sought to add a further cause of action. 4. On 9 May 2016 the applicant filed a notice of motion seeking a variety of orders, of which only the sixth is presently material. By that prayer, the applicant sought leave to join the respondents to the Miller proceedings (in accordance with the Third Amended Statement of Claim). She did not, in the notice of motion, seek leave to add the further causes of action identified in the Third Amended Statement of Claim. It is the orders made in response to this notice of motion that are the subject of the present application for leave to appeal. The hearing of the notice of motion 1. Although she has throughout much, but not all, of the proceedings appeared unrepresented, the applicant was, at the hearing of the notice of motion, represented by counsel. The respondents were also legally represented. The existing defendants (Mr Miller et al) did not appear, and offered neither consent nor opposition to the application for joinder of the respondents. 2. At the commencement of the hearing, counsel for the applicant somewhat half-heartedly appeared to challenge the standing of the respondents to appear and participate, they not having then been named as parties. However, it quickly became apparent that the real issue of substance in the proceedings was not confined to a simple question of their joinder as defendants. The reason that was so arose out of the previous history of the proceedings which I have set out at some length. 3. Two of the respondents (Nine Network Australia and NineMSN Pty Ltd) had been parties to the consolidated proceedings that were dismissed on 17 September 2014. It was asserted by counsel for the respondents, and, importantly, expressly conceded by counsel for the applicant, that the applicant had "previously brought proceedings against Channel Nine for the same publications, or effectively the same publications". 4. Counsel for the respondents therefore invoked s 23 of the Defamation Act 2005 (NSW), which is in the following terms: "23 Leave required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought." 1. It was the proposition of counsel for the respondents, and expressly conceded by counsel for the applicant, that the claims the applicant sought to bring against the respondents were, in reality, "proceedings for damages against the same defendant[s] in relation to the same … publication of the same … matter" as had been the subject of the proceedings dismissed by Gibson DCJ, and could not be brought (or maintained) without the leave of the Court. 2. It was accepted by the primary judge, and by both counsel, in effect, that the question of joinder depended upon whether the applicant could establish a sufficient basis for leave to be granted under s 23. The practical way forward was to determine whether leave under s 23 should be given. As counsel recognised, that was because, if the joinder application were granted without consideration of the s 23 issues, the applicant would then be met with an application to strike out the pleading so far as it sought to plead matters the subject of the earlier proceedings. 3. Independently of the s 23 argument, counsel for the respondents made two additional points. One, presumably going to the exercise of the discretion inherent in a grant of leave, was that there remained outstanding unsatisfied costs orders against the applicant in favour of the respondents arising out of the previous proceedings. The second was that the publications on which the applicant sought to sue were statute barred. Section 14B of the Limitation Act 1969 (NSW) prescribes a one year limitation period in respect of actions in defamation. The evidence in the proceedings 1. Three affidavits of the solicitor acting for the respondents were read. The first set out some, limited, history of the proceedings. The solicitor also put in issue the applicant's factual assertions of internet publication. The evidence was (as is permissible in interlocutory proceedings) of a hearsay nature. In respect of certain publications, the evidence was to the effect that the respondents were not responsible for the websites on which they were said to have appeared. In respect of others, the evidence was to the effect that searches of the websites (in September 2016) did not produce any relevant content. 2. No evidence of the applicant was formally read. However, reference was made by counsel to two affidavits affirmed by her on 7 and 23 September 2016. She also gave hearsay evidence of publication including publication within the preceding 12 months, so as to escape the guillotine of s 14B of the Limitation Act. There was no evidence relevant to discretionary considerations. The transcript records counsel for the applicant as saying: "Our point is a very short one and I don't want to take up much of your Honour's time. Dr Ghosh has prepared a draft pleading. There may be some technical issues with that pleading but it's nothing, we say, that is insurmountable. Dr Ghosh has identified publications that according to her evidence, are still online or online within the year proceeding [sic – preceding] her amendment application in May. My friend raised the limitation point but we say it doesn't apply for any publication that's online and has been downloaded in the proceeding in the application to amend. Dr Ghosh has put on in evidence her affidavit of 7 September and 23 September in relation to those matters. If the defendants – and that's our evidence – have left these matters complained of online, then they are liable for any publication that's occurred in the last year. That's how the internet works … We say the plaintiff's evidence demonstrates that there has been [downloads in the past year]. In the draft statement of claim that she has served, she had identified the names and addresses of people she says have downloaded in the past year. She had given particulars of downloads in the last year." The primary judgment 1. The primary judge recognised that, in formal terms, the question before him by reason of the notice of motion concerned the proposed joinder of the respondents; he also recognised that, integral to that question, was the question raised by s 23 of the Defamation Act. He proceeded on the basis, expressly conceded by counsel for the applicant, that, unless leave under s 23 were given, a grant of leave for joinder would be a futility or would precipitate an application for strike out under s 23. Logically, therefore, the first question was whether leave under s 23 should be given. He then observed that it was necessary to give effect to the overriding purposes of the Civil Procedure Act 2005 (NSW) and Rules, that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. He noted that costs orders resulting from the earlier proceedings were in existence (and unsatisfied). This was a clear recognition that the decision under s 23 was a discretionary one, and that unsatisfied costs orders are a relevant discretionary consideration. 2. His Honour then addressed what he called "the time limit difficulties associated with the initial publication" and the evidence adduced by the applicant of persons having had access to it in the previous 12 months (in order to escape the s 14B guillotine). He noted that individuals identified by the applicant as having viewed the material within that timeframe were the same as those named in the earlier proceedings. He described the pleadings as largely unintelligible in three respects – whether or not the asserted publications occurred, whether accessibility on the internet remained current, and what publications the applicant was referring to in her claim for damages. He considered that, in the circumstances, even if a publication was continuing such as not to be caught by the s 14B limitation period, bearing in mind that the identified viewers had already been exposed to the publication, damages would be minimal. The application for leave to appeal 1. As originally filed by the applicant the draft Notice of Appeal listed 25 proposed grounds of appeal (although three of them were in the nature of preliminary assertions). Almost none of the grounds raised any issue that could remotely be called a ground of appeal. For example, by the ground numbered 5, the applicant made an attack on the conduct of the defendants in the Miller proceedings, and complained of an application for summary judgment that has not been determined. In two of the grounds (6 and 11) she described the primary judgement as "rash". In Ground 15 she attacked one of her previous counsel in relation to the dismissal of the proceedings that were dismissed. 2. In Ground 16 she complained that the primary judgment "fails to take into account the exceptional malice of the [respondents]". In Ground 17 she complained that the primary judge was in error in failing to call her to participate by telephone in the hearing "as requested by [counsel]". (The transcript gives no indication of any such request having been made, and it is difficult to conceive of circumstances in which it would have been appropriate to do so.) It is unnecessary to detail the other grounds. However, six of the pleaded grounds may have raised issues of the application of s 23 of the Defamation Act. (These grounds were somewhat repetitive.) The application for leave to appeal, and the applicant's Summary of Argument were in near identical, if not identical, terms to the Draft Notice of Appeal. 3. On the application for leave to appeal, the applicant was legally represented. Counsel, on instructions, sought an adjournment of the application. It was apparent that the reason for the adjournment application was the recognised deficiency of the application, the draft Notice of Appeal as filed, and the applicant's Summary of Argument. 4. Counsel provided a proposed Amended Draft Notice of Appeal that pleaded a single proposed ground, in the following terms: "The trial judge erred in applying section 23 of the Defamation Act as leave under this section was not required to join the proposed parties." 1. The argument counsel sought to put on the applicant's behalf was that the primary judge approached the application for joinder on the erroneous basis that, by reason of her having already taken action against the respondents in defamation on the same "matter" (see s 23), the applicant was not entitled to proceed on her present claims without the leave of the court. That was erroneous, it was contended, because the publications in respect of which she sought to sue were continuing publications, and action on publications, even of the same content, post-dating the date of finalisation of the original proceedings is not, and cannot be, precluded by s 23. Counsel accepted that, if he were successful on this ground on an appeal, the only appropriate outcome would be remitter to the Common Law Division. 2. Argument on the adjournment application ranged over the whole of the substantive issues in the leave application. At the conclusion of the argument, the Court refused the application for adjournment, and made the order refusing leave to appeal. The adjournment was refused because all issues had been fully debated and, following the argument, it had become apparent that leave to appeal ought to be refused. Determination 1. The principles upon which leave to appeal may be granted were recently, and succinctly, stated by Bathurst CJ in The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26, at [13]. His Honour said: "… Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable." 1. That statement was an encapsulation of statements to the same effect made in a long line of decisions, including (but not limited to) Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284. 2. To those principles I would venture to add two further considerations, graphically exposed by the circumstances of the present application. Leave to appeal may be refused, notwithstanding that a discernible issue of principle is raised, where a grant of leave could be seen to be unduly oppressive to the respondent(s), or would result in a disproportionate burden on the resources of this Court, or the court from which the appeal is sought to be brought. 3. That the latter consideration is relevant is supported by the statutory requirement that, in some cases, an appeal may be brought only with leave, that being one measure afforded to this Court to control the volume of appellate work: Coulter v The Queen (1988) 164 CLR 350, 356; [1988] HCA 3, cited in Be Financial Pty Ltd at [35] by Basten JA. The statutory requirement similarly permits some restraint on the workload of the primary court. Before leave is granted, this Court ought to be able to be comfortably satisfied that the appeal will be prosecuted with reasonable diligence and in accordance with established appellate procedures, as will any future proceedings in the primary court (should the appeal result, as here would be the case, in remitter). 4. That the former consideration is relevant is supported by s 56 of the Civil Procedure Act, which states that the overriding purpose of that Act is to facilitate the just, quick and cheap resolution of the real issues in dispute, and s 58 thereof, requiring the court to take into account the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. 5. For present purposes, I would be prepared to accept, at least tentatively, that the construction of s 23 of the Defamation Act proposed on behalf of the applicant raises an issue of principle. It was argued on behalf of the applicant that that construction gained support from the decision in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750. 6. In that case, the applicant had already taken action in defamation against a publisher and the proceedings had been finalised. He then sought injunctive relief to restrain what he anticipated to be a repetition of an imputation in respect of which he had been successful. He argued that, should the anticipated repetition take place, he would be without remedy, by reason of s 23. In those circumstances, White J said (at [23]): "… s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a 'publication of the same or like matter' for the purposes of s 23." 1. This is not the occasion on which to reach a final view about the correctness or otherwise of that proposition. It is sufficient to say that the observation was not part of the ratio of the decision, and was made in a particular factual circumstance. It does not purport to be a concluded construction of s 23. That being the case, the decision affords, at best, tenuous support for the construction now sought to be advanced. 2. Moreover, even if the proposed construction were accepted, it would not necessarily be of great comfort to the applicant. It was accepted on her behalf that the publications on which she now seeks to sue the respondents were all the subject of the dismissed proceedings. What she seeks to do, by pleading continuing publication, is to revive the earlier claims, and avoid the consequences of s 23 by relying on publication post-dating the judgment of Gibson DCJ. 3. Nevertheless, as I have indicated above, there is some semblance of an issue of principle involved. That does not, of itself, justify a grant of leave. The present case does not present a suitable opportunity to explore the reach of s 23. 4. The further considerations I have proposed are more compelling reasons to refuse leave. 5. The applicant had numerous opportunities, over 1½ years from the commencement of the District Court proceedings (22 March 2013) to their ultimate dismissal (17 September 2014) to make out her claims. She was unable to formulate a viable statement of claim, and was unable or unprepared to adhere to the established procedures of litigation. The present proceeding shows no sign that she will be able or prepared to comply with appropriate procedures. The observations of Gibson DCJ concerning her conduct of the litigation are here pertinent. The respondents have been put to considerable trouble and expense in the proceedings so far, with no discernible progress, and costs orders remain unsatisfied. 6. Although the applicant was legally represented in this application, there is no guarantee, and no reason to believe, that she will continue to be so represented. There is no guarantee, and no reason to believe, that she will abandon her unsatisfactory approach to the litigation. 7. To have granted leave to the applicant to appeal would, in my opinion, have constituted undue oppression and injustice to the respondents. 8. In those circumstances, it is necessary to say little about the particular position of the first respondent, Ninemsn Pty Ltd. The applicant herself, in her application, identified it by the same ACN as the second respondent, Nine Digital Pty Ltd. The evidence establishes that Nine Digital is the successor to Ninemsn; the two companies are essentially the same entity. 9. For the reasons given above, I joined in the order that the application for leave to appeal be refused. ********** Endnotes 1. [2017] NSWSC 351. 2. [2014] NSWSC 1520. 3. (2015) 237 FCR 127; [2015] FCA 750. 4. Carolan at [51]. 5. Carolan at [50]. 6. (2012) 84 NSWLR 90; [2012] NSWCA 176. 7. (1971) LRC No 11 at p 100. 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: 05 May 2017