Mallegowda v Sood

District Court of NSW|2016-05-02

BACKGROUND

These defamation proceedings are listed for a four-week trial to commence today, Monday 2 May 2016. The parties were represented until November 2015, but are now all self-represented litigants.
The proceedings have an unfortunate procedural history of two vacated trial dates, removal to and from two Newcastle hearing lists and a series of combatively conducted applications, some of which is set out in my judgments in Mallegowda v Sood [2013] NSWDC 98, Mallegowda v Sood (No 2) [2014] NSWDC 216 and Mallegowda v Sood (No 3) [2015] NSWDC 14.
In the week before this hearing, each of the defendants filed a Notice of Motion in the general list, returnable on 6 May 2016, seeking a series of orders which may be summarised in general terms as follows: 1. Requests for documentary evidence (by way of subpoenae to third parties, subpoenae to give evidence to medical practitioners, an independent health assessment conducted by the court and notices to the plaintiff to produce) about the plaintiff's health. 2. Security for costs. 3. Joinder of a third party, the Roads and Maritime Services. 4. Referral of the plaintiff to the Supreme Court for contempt of court and restraining orders. 5. Leave to tender the defendants' witness statements without requiring the witnesses to be cross-examined or, if that order was refused, an adjournment. 6. Requests for material produced in Supreme Court proceedings to be accepted into evidence in this court and to be probative of issues of truth, as well as orders for subpoenae to give evidence to be issued to the "Crown Solicitors" to give evidence of what occurred.

The listing of these motions on the first day of the trial

Having been notified by the registry of the Notices of Motion which were returnable on day 5 of the hearing in the General List, I arranged for these proceedings to be listed urgently in the Defamation List on Thursday 28 April 2016. I also learned of a third, unfiled, Notice of Motion which the defendants proposed to rely on.
When the applications came before me in the Defamation List on 28 April 2016 for directions, the defendants informed me that they had filed the Notice of Motion in the General List because no trial judge had been allocated. I drew District Court Practice Note 6 to their attention, which provides that, in those circumstances, applications should be made to the Defamation List judge. I also told them that I had been appointed the trial judge.
As it was not possible for me to deal with any of the applications in the 28 April 2016 Defamation List, I advised the parties that I would hear these motions on the first day of the hearing. Given the imminence of the trial date, I also drew their attention to Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175 ("Aon").

The orders sought in the notices of motion

What both defendants seek is essentially the vacation of the hearing date. The applications they bring for the collection of evidence from third parties would take, they acknowledge, one to two weeks, although in practical terms they are seeking an adjournment until after the plaintiff's sentencing for contempt of court.
Although they are litigants in person, the parties must have a degree of familiarity with the Civil Procedure Act 2005 (NSW), if only because I set out the text of sections 56 and 58 in my judgment in Mallegowda v Sood at [45] - [46], in the course of a review of legislation and appellate authorities explaining the reluctance to vacate hearing dates in circumstances such as the present.
The timing and content of the notices of motion filed by the defendants (and foreshadowed in the third, unfiled, notice of motion) demonstrate the difficulties courts and court resources face when litigants in person bring applications the effect of which would almost certainly be the vacating of the third hearing date for these proceedings. I consider that the fact that these parties are now unrepresented does not mean that they should be granted a greater level of indulgence than other litigants in relation to applications of this nature.
The time constraints of a trial mean that the careful consideration and opportunities for reserving judgments which are possible in the Defamation List will not be available. This judgment is, correspondingly, a trial ruling judgment of a relatively brief nature.
I shall next set out the text of the two motions which have been filed.

Notice of Motion - 2nd defendant

This notice of motion seeks orders as follows: 1.That the Courts allow and accept issues which have already been determined in the matter with case number 14/288906 that is common in this matter. 2. That the Courts allow defendants to adduce evidence from materials produced in the matter between Prothonotary of Supreme Court NSW v Mr S H Mallegowda before in relation to case number 2014/168906 in this matter. (a) That the leave of Court be provided for defendants to access all transcripts in relation to case number 2014/168906 either through Supreme Court Registry or via prothonotary of Supreme Court in this matter. (b) That the Court provide orders for defendants to access material in the contempt matter against plaintiff in relation to case number 2014/168906 via Prothonotary of Supreme Court in that matter. (c) That the leave of Court be granted to issue subpoena to Crown solicitors to give evidence and bring documents or things at this trial. 3. That court order an independent mental health assessment of Plaintiff to determine Plaintiff's mental health to participate in this trial as a plaintiff and/or a self-represented litigant. (a) That the mental health assessment order to include time period when the first and second attacking emails were sent against the first defendant and date ie. from January 2012 till date. (b) That the Court Order for independent mental health expert/s to be provided access to complete mental health records of Plaintiff not excluding blood test reports of the Plaintiff and mood diaries maintained for the plaintiff by plaintiff's wife/ partner for the purposes of a mental health assessment as outlined in Item 1 above. (c) That leave of the Court be granted for second defendant to subpoena treating doctors Dr Rita Singh and Dr Cyriac Matthew to give evidence on Plaintiff's mental health (d) That access to Plaintiff's mood diaries maintained by Plaintiff's wife/ partner be provided to defendant's for the period of 1st January 2012 to 31st December 2013 as submitted to Prothonotary of the Supreme Court of NSW in relation to case number 2014/168906. (e) That the plaintiff's mental health records for the period 1st January 2012 to 31st December 2013 be made available to the defendants via a subpoena to Hunter New England Area Health, or through the Prothonotary of Supreme Court in the case number 2014/168906 if the Prothonotary of Supreme Court hold such records as mentioned above. (f) That the defendants be provided with information on medication, medication dosages being administered and blood test reports of Plaintiff from 1st January 2012 to 31st December 2013. 4. That the Courts consider a contempt of court referral to the Supreme Court against the Plaintiff for threatening a witness for the defendants. 5.That the Court make orders to prevent the plaintiff from making complaints/s and/or lodge proceedings against witnesses in this matter to government authorities, public offices or any workplaces of witnesses without the leave of the Court. 6. That the Court allow defendants use affidavits prepared by their former solicitors be allowed without their physical presence in Court. 6(a) If the above is disallowed by the Court, then the Court Order appropriate adjournments as needed to allow for appearance of all persons who have provided affidavits in this matter. 7. That the plaintiff provide security of costs to continue with this trial being $200,000. 8. That the plaintiff pay defendants costs of filing costs of filing this motion and travel costs forthwith. 9. Such other Orders that the Court deems fit.
Each of the orders sought raises significant problems not only because of the lateness of the applications but also by reason of the nature of relief sought.

Request to rely on exhibits and evidence from other proceedings

This application is made by both defendants and I propose to deal with their submissions on it together.
It is unclear to me how many of the documents sought from the Supreme Court proceedings are documents obtained under subpoena or as the result of a specific order of the court. In Hearne v Street [2008] HCA 36 per Hayne, Heydon and Crennan JJ at [96] noted the restrictions on the use of such documents: "[96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits."
This requirement attaches both to documents produced by a party and a third party in proceedings: P and W v Manny [2010] ACTSC 50 at [24] per Gray J. This prohibition extends to any use or disclosure other than for the purpose of the proceedings in which the documents were obtained. Any wider use is collateral and consequently improper, unless authorised by prior leave, which must be granted by that court, and not by the court in which the documents are sought to be tendered: Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 166 ALR 699 at 705-706.
The procedure for obtaining leave to use a document obtained either under a subpoena or obtained on discovery is one which has been employed in defamation proceedings, such as P and W v Manny [2010] ACTSC 50.
As to the claim for relief in paragraphs 1, 2 and 3, the admissibility of any relevant material from Supreme Court proceedings 2014/168906 must be considered item by item, and in accordance with the provisions of the Evidence Act 1995 (NSW). The provenance of those documents is also relevant, for the reasons set out above. Some documentation (for example, a record of an order confirming that the plaintiff had pleaded guilty) should not be a difficulty. However, a "blanket" order of the kind proposed by the defendants is completely inappropriate.
In addition to these problems, it emerged, from the second defendant's submissions to me, that both defendants had sought advice from their solicitors in November 2015 about obtaining these documents. Inquiries were made of the Crown Solicitor, and the second defendant told me that the Crown Solicitors office had told him "we couldn't access the evidence as the matter is not completed". The plaintiff told the court that his sentencing is adjourned until 20 December 2016 but JusticeLink currently has this listed as 10 June 2016.
The first defendant asked that, if I were not prepared to order the Crown Solicitors' Office to provide these documents, he should have leave to subpoena Jillian Caldwell to bring these documents to court and to give evidence as to what occurred. He told me he had not notified her of any such application, nor had he prepared a subpoena.
Under no circumstances would I grant leave to issue a subpoena in this form, which appears to be designed to avoid an application to the Supreme Court and the current refusal of the Crown Solicitors to supply the documents in question.
The defendants' next application was for the hearing of these proceedings to be adjourned "for just a little bit of time", which was then clarified to be an adjournment until after the sentencing. Alternatively, the second defendant submitted that I should ask the Supreme Court to bring the sentencing forward.
These proceedings have already been adjourned once in 2014 due to the unreadiness of the parties, and again in 2015 when the proceedings were first not reached and then adjourned from the May Newcastle sittings to be given a hearing date in Sydney. Although well aware of the facilities of the Defamation List for hearing arguments pending the hearing, the defendants elected to wait until a few days before the hearing date to file notices of motion, with the result that the current trial date for these proceedings (namely today) is imperilled. Even if sentencing takes place in June rather than December, this court has no more facilities for a four-week hearing later in 2016.
The second defendant's applications for use of the Supreme Court documents and issuing of subpoenae are refused, as is his application for an adjournment of the hearing. I have made similar orders in relation to the first defendant.

The case management orders sought

As to the remaining applications for orders, I make the following general observations: 1. Both defendants' previous applications for the court to order a medical examination of the plaintiff were rejected by me in Mallegowda v Sood (No 3). The only additional material supplied is evidence that the plaintiff suffers from bipolar disorder and has been prescribed medication. I refuse this application for the same reasons as those set out in my earlier judgment at [37] - [40]. 2. The circumstances in which medical practitioners may be called to give evidence under subpoena are set out in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). This late and misguided application for leave to subpoena the two named medical practitioners as witnesses is totally at variance with the careful structure of UCPR rules designed to ensure proper preparation and service of medical evidence and I refuse this application. 3. The claim in paragraph 4 of "contempt of court" and of "complaints" in paragraph 5 are put in the most general terms. There is no need at this late stage for the court to make any orders of the kind sought in paragraphs 4 and 5. If any specific instance comes to the defendants' attention during the trial, it should be the subject of evidence in proper form. 4. The application for an undertaking in paragraph 5 was withdrawn. 5. Only in the specific circumstances outlined in the relevant provisions of the Evidence Act would a witness statement be permitted to be tendered without any requirement for cross-examination. Nor would an adjournment of the hearing be granted so that such a witness could be cross-examined. Where witness availability is a problem, the parties may consider applications such as for the witness with availability problems to give evidence by telephone. 6. The plaintiff has agreed that the witnesses the subject of this application (who are solicitors) may be cross-examined by telephone and that is how I propose to permit them to give evidence. Other witnesses who wish to give evidence in this fashion may make similar applications. 7. The remaining application is for security for costs. I have already refused the defendants' previous applications for special costs orders and security for costs: Mallegowda v Sood (No 3) at [42] - [48]. The only new circumstance is that the trial date has arrived. If anything, the fact that the trial has commenced is a further bar to the granting of such relief.
For these reasons, I dismiss the second plaintiff's notice of motion.

Notice of Motion - 1ST defendant

Apart from paragraphs 1 and 2, the first defendant seeks similar orders: 1.That the Court make Orders to allow Cross Claimant/ First defendant for Joinder of Road and Maritime Services NSW (RMS) as an additional defendant. 2. That leave of Court is granted to the first defendant to amend his cross claim to include RMS as a Joinder defendant party. 3. That the Courts allow and accept issues which have already been determined in the matter with case number 14/288906 that is common in this matter. 4. That [the] court order an independent mental health assessment of Plaintiff to determine Plaintiff's mental health to participate in this trial as a plaintiff and/or a self-represented litigant. (a) That the mental health assessment order to include time period when the first and second attacking emails were sent against the first defendant and date ie. From January 2012 till date. 5. That the Courts allow defendants to adduce evidence from materials produced in the matter between Prothonotary of Supreme Court NSW v Mr S H Mallegowda before in relation to case number 2014/168906 in this matter. (a) That the leave of Court be provided for defendants to access all transcripts in relation to case number 2014/168906 either through Supreme Court Registry or via prothonotary of Supreme Court in this matter. (b) That the Court provide orders for defendants to access material in the contempt matter against plaintiff in relation to case number 2014/168906 via Prothonotary of Supreme Court in that matter. (c) That the leave of Court be granted to issue subpoena to Crown solicitors to give evidence and bring documents or things at this trial. 6. That the Courts consider a contempt of court referral to the Supreme Court against the Plaintiff for threatening a witness for the defendants. 7.That the Court make orders to prevent the plaintiff from making complaints/s and/or lodge proceedings against witnesses in this matter to government authorities, public offices or any workplaces of witnesses without the leave of the Court. 8. That the Court allow defendants use affidavits prepared by their former solicitors be allowed without their physical presence in Court. (a) If the above is disallowed by the Court, then the Court Order appropriate adjournments as needed to allow for appearance of all persons who have provided affidavits in this matter. 9 That the plaintiff pay defendants costs of filing costs of filing this motion and travel costs forthwith. 10 Such other Orders that the Court deems fit.
As to paragraphs 1 and 2, the first defendant does not offer any explanation for seeking to join the Roads and Maritime Services as an additional defendant, although such an explanation would be a pre-requisite (Aon at [98] - [102]). He told me, when he appeared before me on 28 April 2016, that this organisation had not even been informed of this application being made. The limitation period for defamation claims having expired, any cause of action against the Roads and Maritime services would need to be identified with some specificity in a carefully drafted pleading before I would even consider such an application. I note that this application has now been withdrawn.
As to paragraph 5, the tender of material produced and relied upon in the Supreme Court would have to be dealt with in accordance with provisions of the Evidence Act 1995 (NSW), noting the limitations for reliance upon documents produced in other proceedings as set out by the High Court of Australia in Hearne v Street.
The other applications brought by the first defendant are essentially the same as those sought by the second defendant, and are dismissed for the same reasons.

Notice of Motion - 1ST AND 2ND defendant

An unfiled notice of motion seeks orders effectively the same as those set out in the two filed motions brought by the first and second defendants: 1 That court order an independent mental health assessment of Plaintiff to determine Plaintiff's mental health to participate in this trial as a plaintiff and/or a self-represented litigant. That the mental health assessment order to include time period when the first and second attacking emails were sent against the first defendant and date ie. From August 2012 till date. 2 The Court Order that independent expert/s be provided access to the full mental health records of plaintiff not excluding mood diaries maintained for plaintiff by plaintiff's wife/ partner for the purposes of the mental health assessment as outlined in item 1 above. 3 The honourable Court make orders to adduce evidence produced in the matter between Prothonotary of Supreme Court NSW vs Mr S H Mallegowda before in relation to case number 2014/168906 in this matter. 4 The honourable Court grant leave to subpoena Plaintiff's treating doctors, a Dr Rita Singh and Dr Cyriac Matthew, to give evidence on plaintiff's mental health. 5 That access to Plaintiff's mood diaries maintained by plaintiff's wife/ partner be provided to the defendants for the time period 1st January 2012 to 31st December 2013 as submitted to Prothonotary of the Supreme Court NSW in relation to case number 2014/168906. 6 That the plaintiff's mental health records for the duration 1st January 2012 to 31st December 2013 be made accessible to the defendants via a subpoena to Hunter New England Health or through Crown Solicitors in the case number 14/168906 of they do hold mental health records of the plaintiff., 7 That the defendants be provided with information on medication and medication dosages being administered to Plaintiff from 1st January 2012 to 31st December 2013. 8 That the honourable court provide orders for defendants be able to access transcripts of the contempt matter against the plaintiff in relation to case number 2014/168906 either through Supreme Court Registry or via Crown Solicitors in that matter. 9 That the honourable Court provide orders for defendants to be able to access evidence used in the contempt matter against Plaintiff in relation to case number 2014/168906 via Crown Solicitors in that matter. 10 That the plaintiff provide security of costs to continue with this trial being $200,000. 11 That the plaintiff pay defendants costs of filing this motion and travel cost forthwith. 12 Such other orders that the Court sees fit.
The parties told me in the course of argument that they no longer seek these orders.

Costs and other orders

As this is a trial which is proceeding, and I propose to consider any application to permit the defendants to make an application to lead additional evidence about the plaintiff's conviction at the end of the hearing (should this be necessary), I propose to reserve the issue of costs.

Orders 1. Defendants' Notices of Motion returnable 6 May 2016 dismissed. 2. Costs reserved.

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: 27 May 2016

At a glance

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Judgment (12 paragraphs)

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