Ghosh v TCN Channel Nine Pty Ltd (No. 2); Ghosh v Ninemsn Pty Ltd (No. 5)

[2014] NSWDC 215

District Court

New South Wales

Medium Neutral Citation:

Ghosh v TCN Channel Nine Pty Ltd & Ors (No. 2); Ghosh v Ninemsn Pty Ltd & Ors (No. 5) [2014] NSWDC 215

Hearing dates:

31 October 2014

Decision date:

31 October 2014

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) An order pursuant to s 8(1)(e) Court Suppression and Non-Publication Orders Act 2010 (NSW) restricting publication of the contents of the affidavits which are Exhibit A, which affidavits are to be placed in a sealed envelope until further order.

(2) Plaintiff's notice of motion dismissed.

(3) Plaintiff pay defendants' costs of the notice of motion (brought pursuant to r 36.16 UCPR) and of the amended notice of motion (brought pursuant to r 36.15 UCPR) on an indemnity basis.

Catchwords:

TORT - practice and procedure - Application by litigant in person to set aside judgment under UCPR r 36.15 and UCPR 36.16 - whether alleged incompetence of legal practitioners amounted to grounds to submitting that the judgment had been obtained illegally - plaintiff's application for summary judgment against defendant refused - turns on its own facts

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 36.15 and 36.16

Cases Cited:

Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244
Ghosh v TCN Channel Nine Pty Ltd & Ors; Ghosh v Ninemsn Pty Ltd & Ors (No 4) [2014] NSWDC 151
Zakaria v Dr Noyce [2012] NSWSC 981

Texts Cited:

-

Category:

Procedural and other rulings

Parties:

Plaintiff: Ratna Ghosh
First Defendant: TCN Channel Nine Pty Ltd
Second Defendant: Nine Network Australia Ltd
Third Defendant: Ninemsn Pty Ltd (ACN 077 753 461)
Fourth Defendant: NBN Limited (ACN 000 232 486)
Fifth Defendant: Katie Gregory

Representation:

Plaintiff: Dr R Ghosh (in person)
Defendants: Mrs L E Barnett
Plaintiff: In person
Defendants: Johnson Winter & Slattery

File Number(s):

2014/63022 consolidated with 2013/88183

Publication restriction:

None

Judgment

1. On 17 September 2014, I made orders as follows (see Ghosh v TCN Channel Nine Pty Ltd & Ors; Ghosh v Ninemsn Pty Ltd & Ors (No 4) [2014] NSWDC 151):

(1)   Proceedings dismissed.

(2)   Plaintiff pay defendants' costs of these proceedings.

(3)   Liberty to apply in relation to costs.

(4)   In proceedings 2013/88183, the plaintiff is to file a notice of appearance in 7 days.

(5)   In proceedings 2013/88183, direct the plaintiff to approach the Registry to update the second and third defendants' details on JusticeLink in 7 days.

1. These proceedings were commenced by the plaintiff in the Newcastle Registry of the District Court on 22 March 2013. As is set out in my judgment at [2014] NSWDC 151, from that date until the date onwards the plaintiff failed, in the 11 statements of claim successively put before the court, to plead and particularise her claim for defamation against a number of defendants in accordance with the Uniform Civil Procedure Rules, and the proceedings were struck out as an abuse of process (see [94] - [98]). While an alternative finding in relation to the proportionality principle was made, this failure to comply was the principle reason for these proceedings being struck out.

1. The plaintiff brings an application pursuant to r 36.15 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), as well as an application for summary judgment against all defendants, as follows:

"(1) The plaintiff requests the defendants to consent to set aside the judgment by ucpr 36.15 Subrule (2), failing which she requests the Court to set aside the judgment by ucpr 36.15 Subrule (1) for the reasons set out in the Affidavit

(2) Stay the execution of her Honour Judge Gibson's costs orders of 17 September 2014

(3) The plaintiff seeks Summary judgment by ucpr 13.1 (1) against all defendants to expedite the case, if this motion is successful, and a Stay of the execution of her Honour Judge Gibson's costs orders of 17 September 2014 by ucpr 13.2, pending determination of a cross - claim

(4) Reinstate the case or at least allow re-hearing of the strike out application with new Counsel representing Dr Ghosh and fresh evidence not presented by Counsel Christopher Dibb as he failed to follow instructions from Dr Ghosh"

1. The plaintiff initially sought orders pursuant to UCPR r 36.16 in a notice of motion filed on 25 September 2014 but, at the last moment, sought an adjournment until today, to enable her to reframe the relief sought. The current notice of motion has not been filed but was emailed to my associate.

1. The plaintiff now seeks relief under UCPR r 36.15, which provides:

"36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent."

1. The plaintiff relied upon her affidavits of 22 September and 23 October 2014. I shall not set out the grounds or the contents of these affidavits (which I have read as submissions only) as I have accepted the submissions of the defendants that the serious allegations warrant the making of an order under Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8(1)(e).

1. The plaintiff commenced her argument by asking the defendants to consent to the setting aside of judgment against her, and to the entering of judgment against them, on the basis that they had never filed a defence. The defendants have never been ordered to file a defence because the irregularities in the plaintiff's pleadings have resulted in the proceedings never proceeding further than rulings concerning the statement of claim. They are not prepared to consent to the setting aside of my orders, and that means that the plaintiff must proceed to the other basis under UCPR r 36.15, and establish that the judgment was obtained irregularly, illegally or against good faith (UCPR r 36.15(1)). The plaintiff submits, in relation to this formula, that judgment had been entered against her "illegally" and makes allegations about the conduct of the defendants which I shall not repeat, but which are clear on their face to be unsupported by any factual evidence.

1. The principal basis for the claim is submitted to be the incompetence (or worse) of her legal representatives, in relation to their conduct of these proceedings since February 2014 and the defence of the summary judgment application. Professional negligence by a legal representative in terms of preparation and presentation for court proceedings is not a basis for the setting aside of orders under UCPR r 36.15. I generally note, as to competence, that Mrs Barnett has submitted, and I similarly agree, that Mr Dibb of Counsel prepared and presented his arguments and supporting documentation concerning the summary judgment application in an exemplary manner, given the circumstances. Similarly, I reject the aspersions cast by the plaintiff on the defendants' solicitors in these proceedings.

1. Nor is judicial error a basis for setting aside a judgment on the basis that it was entered irregularly, illegally or contrary to good faith: Zakaria v Dr Noyce [2012] NSWSC 981 at [22]. As I have previously indicated to Dr Ghosh, when she brought this notice of motion under UCPR r 36.16, the appropriate forum for complaints about judicial error is the New South Wales Court of Appeal: Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244. The conduct of these proceedings in the Court of Appeal will involve case management issues, and in my view it is appropriate that any order for a stay should be made by that Court, if considered appropriate, as such an application can be made on the appropriate terms, for example in relation to the expedition of the hearing.

1. I should give brief reasons for the making of the suppression order. The scandalous nature of the allegations (unsupported by evidence and consisting of the plaintiff's opinion) is self-evident, and no purpose can be served by making their contents public. The fact that similar allegations were made in the defamation pleadings was a factor (although a small one) in my striking out these proceedings pursuant to UCPR r 12.7.

1. I have made an order for costs of the motion to be paid on an indemnity basis. I note that I made a similar order in relation to the costs of the motion seeking relief pursuant to UCPR r 36.16.

Orders

(1) An order pursuant to s 8(1)(e) Court Suppression and Non-Publication Orders Act 2010 (NSW) restricting publication of the contents of the affidavits which are Exhibit A, which affidavits are to be placed in a sealed envelope until further order.

(2)   Plaintiff's notice of motion dismissed.

(3) Plaintiff pay defendants' costs of the notice of motion (brought pursuant to r 36.16 UCPR) and of the amended notice of motion (brought pursuant to r 36.15 UCPR) on an indemnity basis

**********