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District Court 29 June 2018

Mallegowda v Sood (No. 6)

[2018] NSWDC 281

Fraud & dishonesty
DEFENCE OF JUSTIFICATION AND CROSS DEFENCE OF JUSTIFICATION AND CROSS CLAIM SUCCEED REPRESENTED DISMISSAL OF THESE APPLICATIONS CONSIDERATION OF DAMAGES FOR THE CROSS

Citation: Mallegowda v Sood (No. 6) [2018] NSWDC 281
Court: District Court of New South Wales
Date: 29 June 2018
Judge: Gibson DCJ

Background

The plaintiff brought defamation proceedings against two members of the Indian Association of Newcastle (IAN), arising from emails they sent to IAN members in September 2012. Those emails accused the plaintiff of creating a fictitious email account to publish an anonymous message (referred to in the judgment as "the attacking email") that alleged one of the defendants had acted dishonestly and misused community association funds.

The defendants denied the imputations were false, pleading justification: they said the plaintiff had in fact created the false email addresses and sent the attacking email himself. The first defendant also filed a cross-claim for defamation against the plaintiff, based on that same anonymous publication.

All parties were self-represented throughout lengthy proceedings that were substantially delayed and complicated by a separate contempt matter. Before the trial concluded, the plaintiff pleaded guilty in the Supreme Court to contempt of court for attempting to influence a witness in these very proceedings. His sentencing during the hearing required multiple adjournments.

  • Whether the defendants' emails conveyed defamatory imputations about the plaintiff
  • Whether the defence of justification was established, meaning whether the plaintiff did in fact create the false email addresses and publish the attacking email
  • Whether the plaintiff was liable in defamation to the first defendant under the cross-claim
  • What damages, if any, were appropriate for the cross-claim given the limited extent of publication
  • Whether the plaintiff's applications to refer the defendants and a witness to the Supreme Court for contempt should be granted
  • Whether the defendants should be granted leave to reopen their case after adjournments related to the contempt proceedings

Decision

The central factual question was whether the plaintiff had created the fictitious email addresses used to send the attacking email. Expert evidence established that the relevant email addresses were created from the plaintiff's home and workplace. On that basis, Gibson DCJ found that the plaintiff was a publisher of the attacking email, satisfying the Briginshaw standard (which requires clear and cogent proof where serious allegations of misconduct are made, even though the standard remains the civil standard of the balance of probabilities).

Judgment was entered for the defendants on the plaintiff's claim. The defence of justification succeeded: the defendants were found to have established, to the requisite standard, that their emails accurately attributed responsibility for the attacking email to the plaintiff.

On the cross-claim, the court found the plaintiff liable in defamation for the attacking email and awarded damages. The amount was modest, at $5,000, reflecting the limited extent of publication within the IAN membership. The damages award served the recognised purposes of defamation damages: consolation for personal distress, reparation for reputational harm, and vindication.

All procedural applications were refused. The plaintiff's applications under s 203 of the District Court Act 1973 (NSW) and under ss 327 and 338(c) of the Crimes Act 1900 (NSW) to refer the defendants and a witness for contempt were dismissed. The defendants' applications for leave to reopen their case were also refused.

Orders Made

  • Judgment for the defendants on the plaintiff's claim
  • Judgment for the cross-claimant against the cross-defendant in the sum of $5,000
  • The plaintiff to pay the defendants' reasonable disbursements of the trial commencing 2 February 2016, including disbursements relating to hearing preparation and during periods of self-representation, to be agreed or assessed
  • Parties to bear their own costs of all vacated hearings prior to trial and in relation to the referral to the Supreme Court
  • On the cross-claim, the cross-defendant to pay the cross-claimant's legal costs and, where the cross-claimant was self-represented, his reasonable disbursements
  • Liberty to apply on costs and interest within 28 days (self-executing order)
  • The plaintiff's applications under s 203 of the District Court Act 1973 (NSW) and ss 327 and/or 338(c) of the Crimes Act 1900 (NSW) refused
  • The defendants' applications for leave to reopen refused

Key Takeaways

  • Expert digital evidence demonstrating that email addresses were created from a party's home and workplace was sufficient, to the Briginshaw standard, to establish that party as the publisher of the anonymous emails in question.
  • The District Court confirmed that the Briginshaw standard, while requiring careful scrutiny and clear and cogent proof of serious misconduct allegations, does not impose a standard higher than the balance of probabilities in civil proceedings.
  • Where a defamation defence of justification succeeds, the plaintiff's claim fails entirely, and the court will not award damages regardless of whether the imputations were technically established.
  • Damages of $5,000 were assessed as appropriate for a cross-claim involving a defamatory anonymous email published to the membership of a single community association, reflecting the limited scope of that publication.
  • Significant case management difficulties arose from all parties being self-represented and from a mid-hearing contempt conviction of the plaintiff; the judgment illustrates how contempt proceedings running concurrently with a civil trial can cause substantial delay.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), s 61
- Crimes Act 1900 (NSW), ss 327 and 338(c)
- Defamation Act 2005 (NSW), ss 25, 30, 34 and 35
- District Court Act 1973 (NSW), s 203
- Evidence Act 1995 (NSW), ss 46 and 91
- Health Records and Information Privacy Act 2002 (NSW)
- Privacy and Personal Information Protection Act 1998 (NSW), s 54(1)(c)
- Uniform Civil Procedure Rules 2005 (NSW), r 28.2 and Sch 7

Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
- Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
- Charan v Nationwide News Pty Ltd [2018] VSC 3
- Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
- Browne v Dunn (1893) 6 R 67
- Hearne v Street (2008) 235 CLR 125
- Bristow v Adams [2012] NSWCA 166
- Cao v Yu [2016] NSWDC 296
- Dank v Nationwide News Pty Ltd [2016] NSWSC 295