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District Court 1 June 2017

Mallegowda v Sood (No. 5)

[2017] NSWDC 470

Other
TORT DEFAMATION NO ISSUE OF PRINCIPLE

Citation: Mallegowda v Sood (No. 5) [2017] NSWDC 470
Court: District Court of New South Wales
Date: 1 June 2017
Judge(s): Gibson DCJ

Background

These proceedings involved a defamation claim with a lengthy and troubled procedural history spanning multiple hearing dates, case managers and interlocutory decisions. The plaintiff commenced proceedings against the defendants and the matter was transferred to Newcastle, where the parties and witnesses were located. After four vacated or disrupted hearing dates, the trial finally commenced before Gibson DCJ in May 2016.

The hearing ran for approximately eighteen sitting days across a four-week period, reaching a point where only three days of evidence remained. The proceedings then became part-heard in unusual circumstances: the hearing was adjourned so that medical reports could be prepared for the plaintiff's sentencing in the Supreme Court on a contempt charge. That charge arose from the plaintiff's attempt, during the defamation proceedings, to prevent a witness from giving evidence in support of the defendants. The plaintiff had entered a guilty plea.

After the plaintiff was sentenced, the defendants sought access to Supreme Court materials to tender in the defamation hearing and applied to call further evidence of justification. The balance of the hearing was scheduled to resume on 9 August 2017. This judgment dealt with the defendants' application to call extensive further evidence and related interlocutory matters arising ahead of that resumption date.

  • Whether the defendants should be granted leave to call extensive further evidence of justification that had not been particularised in their pleadings
  • Whether the defendants' notice of motion for that evidence should be heard immediately or stood over to the trial date
  • What orders were appropriate to address the defendants' safety concerns given the history of the proceedings
  • How to manage repeated trial management problems arising from the parties' unreadiness and volume of correspondence

Decision

Gibson DCJ declined to hear the defendants' notice of motion for leave to call further justification evidence immediately, standing it over to the trial date of 9 August 2017. The reasons were the nature of the application, the volume of documentation, and its lateness. The court's reasoning reflected the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, which emphasises that case management obligations require parties to be ready and that adjournments to accommodate unparticularised evidence applications are not freely granted.

The court also addressed concerns about the defendants' safety and the parties' addresses for service. The court granted leave for the plaintiff, like the second defendant, to provide an address for service in a sealed envelope to the court rather than to opposing parties. This measure was designed to manage safety concerns arising from the plaintiff's earlier conduct towards a witness.

On the question of the proposed witness Mr Raghu Hassan Mallegowda, the court noted that if the defendants were ultimately granted leave to call that witness, the plaintiff would be entitled to call evidence in reply, even if doing so caused a further adjournment. The plaintiff's separate complaints about the second defendant not being called as a witness were stood over to the trial.

Gibson DCJ concluded the reasons with pointed observations about the conduct of the litigation by both self-represented parties. The court noted that the volume of undigested correspondence sent to the court and the frequency of applications made at short notice without proper attention to jurisdiction or disclosure obligations created a heavy administrative burden. The court observed that represented parties behaving in this manner would face not only criticism but costs sanctions.

Orders Made

  • The defendants' notice of motion stood over to the trial on 9 August 2017, given the nature of the application, the extent of documentation, and its lateness
  • Costs reserved
  • The defendants noted that if granted leave to call Mr Raghu Hassan Mallegowda, the plaintiff will be entitled to call evidence in reply, regardless of whether this occasions a further adjournment
  • The plaintiff's complaints regarding Mrs Sood not being called as a witness stood over to the trial on 9 August 2017
  • The plaintiff granted the same entitlement as the second defendant to provide an address for service in a sealed envelope to the court
  • The second defendant granted leave to apply by notice of motion for leave to issue subpoenas to the Human Rights Commission and Road and Maritime Services, with applications to attach full copies of the proposed subpoenas

Key Takeaways

  • The District Court refused to entertain a late, voluminous application for leave to call unparticularised further justification evidence, standing it over to the trial and signalling that the lateness and inadequacy of particularisation were significant factors against the application
  • Under the principles in Aon, the court's case management obligations require it to weigh the interests of the parties against the efficient use of court resources, and extensive late evidence applications will face scrutiny even where both parties are self-represented
  • A guilty plea to contempt of court for attempting to interfere with a witness can produce significant downstream procedural consequences in the same proceedings, including adjourning a near-complete trial to accommodate related criminal sentencing
  • Where safety concerns arise from a party's prior conduct, the court has power to manage service addresses through sealed envelopes held by the court rather than disclosed to opposing parties
  • Gibson DCJ emphasised that self-representation does not excuse parties from meeting the procedural and disclosure obligations that govern litigation conduct, and that persistent unsolicited correspondence to chambers imposes a real administrative burden on limited court resources

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 56-62
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 (Cth)
- District Court Act 1973 (NSW), s 203

Cases
- Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
- Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450
- Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399
- Hearne v Street (2008) 235 CLR 125
- Ketteman v Hansel Properties Ltd [1987] AC 189
- Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570
- Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087
- Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994)
- Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of New South Wales, Hunt J, 20 October 1986)
- Prior decisions in the Mallegowda v Sood series: [2013] NSWDC 98; (No. 2) [2014] NSWDC 216; (No. 3) [2015] NSWDC 14; (No. 4) [2016] NSWDC 88