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Mallegowda v Sood

Mallegowda v Sood

Case [2013] NSWDC 98 21 June 2013

Defamation

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District Court

New South Wales

Medium Neutral Citation: Mallegowda v Sood [2013] NSWDC 98
Hearing dates: 12 June 2013
Decision date: 21 June 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) No application having been brought by the defendants in accordance with order 7 made on 12 June 2013, all documents produced on subpoena by any party or person are to be returned by the Newcastle Registry forthwith.
(2) Reserve the issue of costs in relation to the issue of early subpoenae (other than costs referrable to the costs order of 12 June 2013) to the Defamation List judge.
(3) Grant leave to the plaintiff to re-list the plaintiff's notices of motion of 18 March 2013 and 30 April 2013 before Bozic SC DCJ.
(4) The Defendants file and serve their Defences to the Third Further Amended Statement of Claim by 12 July 2013.
(5) The First Defendant/Cross-Claimant file and serve his Statement of Cross-Claim by 12 July 2013.
(6) The Plaintiff file and service any Reply to the Defence to the Third Further Amended Statement of Claim by 6 August 2013.
(7) The Plaintiff/Cross-Defendant file and serve his Defence to the Statement of Cross-Claim by 6 August 2013.
(8) The First Defendant/Cross-Claimant file and serve any Reply to the Defence to the Statement of Cross-Claim by 16 August 2013.
(9) The proceedings are referred for mediation pursuant Section 26 of the Civil Procedure Act 2005, such mediation to be undertaken by a mediator to be appointed by the Court.
(10) Note the parties intend to mediate the matter before the next return date on 27 September 2013.
(11) Matter listed for directions on Friday 27 September 2013 in the Defamation List.

Catchwords: TORT - defamation - plaintiff's statement of claim struck out - defendants bring fresh application to strike out statement of claim - form and capacity of imputations - defendants issue subpoenae for plaintiff's medical and telephone records although no defence filed - circumstances in which leave to issue subpoenae early will be granted
Legislation Cited: Uniform Civil Procedure Rules 2004 (NSW), rr 13.6, 14.28, 15.8, 15.9 and 15.32(a)
Cases Cited: Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN. (NSW) 250
Bishop v Latimer (1861) 4 LT (NS) 775
Buswell v Carles [2012] WASC 509
Griffith v Australian Broadcasting Corp [2002] NSWSC 86
Harrigan v Jones [2000] NSWSC 814
Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9
Loo v Rural Press Pty Ltd [2003] NSWSC 107
Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950
Maisel v Financial Times Ltd [1915] 112 LT 953
McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224
Megna v Marshall [2010] NSWSC 686
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312
Scott v Nationwide News Pty Ltd [2005] NSWSC 169
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)
Tucker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mallegowda v Sood

Details

AGLC: Mallegowda v Sood [2013] NSWDC 98
Case: [2013] NSWDC 98
Decision Date: 21 June 2013

CaseChat Overview and Summary

The defendants in this case brought an application to strike out the plaintiff's statement of claim in the matter of Mallegowda v Sood. The plaintiff's original statement of claim had previously been struck out by the court. The case is a defamation proceeding in the Federal Circuit Court of Australia. The court had to decide whether the plaintiff's statement of claim contained sufficient particulars to satisfy the requirements of form and substance for a defamation claim. The court also had to determine whether the defendants had the right to issue subpoenas for the plaintiff's medical and telephone records before filing a defence.

The court found that the plaintiff's statement of claim did not contain sufficient particulars to satisfy the requirements of form and substance for a defamation claim. The court found that the plaintiff's statement of claim did not specify the defamatory imputations or the facts that gave rise to them. The court also found that the defendants had no right to issue subpoenas for the plaintiff's medical and telephone records before filing a defence. The court found that the defendants had acted in bad faith by issuing the subpoenas without leave and that the subpoenas were an abuse of process. The court ordered that all documents produced on subpoena by any party or person be returned forthwith. The court also made orders for the filing of defences, cross-claims and replies to those defences and cross-claims. The court referred the matter for mediation and listed it for directions.

The court granted leave to the plaintiff to re-list the plaintiff's notices of motion and referred the matter for mediation. The court listed the matter for directions on the Defamation List. The court reserved the issue of costs in relation to the issue of early subpoenae to the Defamation List judge. The court made orders for the filing of defences, cross-claims and replies to those defences and cross-claims.

Orders

Orders of the court

(1) No application having been brought by the defendants in accordance with order 7 made on 12 June 2013, all documents produced on subpoena by any party or person are to be returned by the Newcastle Registry forthwith.

(2) Reserve the issue of costs in relation to the issue of early subpoenae (other than costs referrable to the costs order of 12 June 2013) to the Defamation List judge.

(3) Grant leave to the plaintiff to re-list the plaintiff's notices of motion of 18 March 2013 and 30 April 2013 before Bozic SC DCJ.

(4) The Defendants file and serve their Defences to the Third Further Amended Statement of Claim by 12 July 2013.

(5) The First Defendant/Cross-Claimant file and serve his Statement of Cross-Claim by 12 July 2013.

(6) The Plaintiff file and service any Reply to the Defence to the Third Further Amended Statement of Claim by 6 August 2013.

(7) The Plaintiff/Cross-Defendant file and serve his Defence to the Statement of Cross-Claim by 6 August 2013.

(8) The First Defendant/Cross-Claimant file and serve any Reply to the Defence to the Statement of Cross-Claim by 16 August 2013.

(9) The proceedings are referred for mediation pursuant Section 26 of the Civil Procedure Act 2005, such mediation to be undertaken by a mediator to be appointed by the Court.

(10) Note the parties intend to mediate the matter before the next return date on 27 September 2013.

(11) Matter listed for directions on Friday 27 September 2013 in the Defamation List.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Mallegowda v Sood [2013] NSWDC 98

Most Recent Citation

Mallegowda v Sood (No 2) [2014] NSWDC 216

Cases citing this decision · 8 of 8 shown

Lu v Minter (No 2)
[2021] NSWDC 503 Para 3

…pposing party of the contents of a subpoena, failure to comply with which may result in a subpoenae is in question being set aside: Mallegowda v Sood [2013] NSWDC 98 (over 20 subpoenae issued in a country registry of the court, unknown to the plaintiff, while defamation proceedings were being case managed in Sydne…
Mallegowda v Sood
[2019] NSWCA 37 Para 10

…ere was no pleading of the plaintiff’s claim, an amended statement of claim having been struck out as “non-compliant”. [2] 2. Mallegowda v Sood [2013] NSWDC 98 at [10]…
Mallegowda v Sood (No. 6)
[2018] NSWDC 281 Para 22

…which no progress was achieved between commencement of the proceedings in November 2012 and May 2013 are summarised in my judgment Mallegowda v Sood [2013] NSWDC 98 at [10].…
Mallegowda v Sood (No. 5)
[2017] NSWDC 470 Para 2

…88). I also handed down a judgment on a subpoena issue while the proceedings were being case managed by the Defamation List judges: Mallegowda v Sood [2013] NSWDC 98.…
Mallegowda v Sood (No. 4)
[2016] NSWDC 88 Para 2

…nd 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.…
Mallegowda v Sood (No 3)
[2015] NSWDC 14 Para 2

…these actions, which is extensive, is set out in more detail below. Although I determined an argument on imputations in June 2013 ( Mallegowda v Sood [2013] NSWDC 98), the proceedings were case managed by the list judges in the Defamation List, from the commencement of proceedings (originally filed in Newcastle in…
Bentley v Dr Nguyen
[2014] NSWDC 231 Para 1

…multiple applications to move from one registry to another, or by using more than one registry from which to conduct proceedings ( Mallegowda v Sood [2013] NSWDC 98 at [39] - [44]). Courts must be especially vigilant where an application of this nature is made with less than one day's notice to the opposing party…
Mallegowda v Sood (No 2)
[2014] NSWDC 216 Para 1

…utations and aggravated damages which resulted in the filing of the current pleading, the third further amended statement of claim: Mallegowda v Sood [2013] NSWDC 98. At that stage, the successive versions of the statement of claim were the only pleadings on the file, but it transpired, during the hearing of this…

View all 8 citing cases →

Cases cited in this decision · 14 of 14 shown

Kelly v Harbour Radio
[2013] NSWSC 9 Para 1

…her there are imputations left unpleaded by the plaintiff which the defendant may then plead as contextual imputations: Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9; McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 at 68. The fact that a plaintiff pleads a broad imputation (often called a "Mais…
Buswell v Carles
[2012] WASC 509 Para 1

…NSWSC 169 at [8] - [10]); such leave is granted only after careful review of the nature of the documents sought from the non-party: Buswell v Carles [2012] WASC 509.…
McMahon v John Fairfax Publications Pty Ltd (No 6)
[2012] NSWSC 224 Para 1

…defendant may then plead as contextual imputations: Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9; McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 at 68. The fact that a plaintiff pleads a broad imputation (often called a "Maisel" imputation: Maisel v Financial Times Ltd [1915] 112 LT 953) does…
Megna v Marshall
[2010] NSWSC 686 Para 1

…mous email (and I note that the first email was in fact sent without a name, something that is made much of in the second email). In Megna v Marshall [2010] NSWSC 686 at 680 Simpson J noted the entitlement of a party to rely upon such conduct to seek aggravated damages. I note the plaintiff has now provided a fulle…
Scott v Nationwide News Pty Ltd
[2005] NSWSC 169 Para 1

…in defamation, where subpoenae to third parties may not be issued at an early stage without the leave of the court ( Scott v Nationwide News Pty Ltd [2005] NSWSC 169 at [8] - [10]); such leave is granted only after careful review of the nature of the documents sought from the non-party: Buswell v Carles [2012] WAS…
Loo v Rural Press Pty Ltd
[2003] NSWSC 107 Para 1

…C 950; Griffith v Australian Broadcasting Corp [2002] NSWSC 86; Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312; Loo v Rural Press Pty Ltd [2003] NSWSC 107. In Bishop v Latimer the objection was that one act was not sufficient for there to be a condition pleaded as well as the imputation of the one act (…
NSW Commissioner of Police v Tuxford
[2002] NSWCA 139 Para 1

…many subpoenae issued by the defendant, issued the defendants with a Notice to Produce (which is impermissible: NSW Commissioner of Police v Tuxford [2002] NSWCA 139), and filed a Notice of Motion on 30 April 2013 seeking the leave of the court to issue subpoenae. He was, however, a litigant in person at the time,…
Saint v John Fairfax Publications Pty Ltd
[2002] NSWSC 312 Para 1

…ohn Fairfax Publications Pty Ltd [2000] NSWSC 950; Griffith v Australian Broadcasting Corp [2002] NSWSC 86; Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312; Loo v Rural Press Pty Ltd [2003] NSWSC 107. In Bishop v Latimer the objection was that one act was not sufficient for there to be a condition pleade…
Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu
[2002] NSWSC 86 Para 1

…Pty Ltd [2000] NSWSC 239 at [8] - [10]; see also Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950; Griffith v Australian Broadcasting Corp [2002] NSWSC 86; Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312; Loo v Rural Press Pty Ltd [2003] NSWSC 107. In Bishop v Latimer the objection was that o…
Lucas v John Fairfax Publications Pty Ltd
[2000] NSWSC 950 Para 1

…mitting pleadings of this kind: Tucker v Echo Publications Pty Ltd [2000] NSWSC 239 at [8] - [10]; see also Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950; Griffith v Australian Broadcasting Corp [2002] NSWSC 86; Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312; Loo v Rural Press Pty Ltd [2003…
Harrigan v Jones
[2000] NSWSC 814

…) 250 Bishop v Latimer (1861) 4 LT (NS) 775 Buswell v Carles [2012] WASC 509 Griffith v Australian Broadcasting Corp [2002] NSWSC 86 Harrigan v Jones [2000] NSWSC 814 Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9 Loo v Rural Press Pty Ltd [2003] NSWSC 107 Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950 Ma…
Carriage v Duke Australia Operations Pty Ltd
[2000] NSWSC 239 Para 1

…nt J in Singleton v John Fairfax & Sons Ltd , supra , has long been accepted as permitting pleadings of this kind: Tucker v Echo Publications Pty Ltd [2000] NSWSC 239 at [8] - [10]; see also Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950; Griffith v Australian Broadcasting Corp [2002] NSWSC 86; Saint v…
Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd
[1980] FCA 47 Para 1

…covery or otherwise) in a "fishing expedition" prior to filing a pleading or answering particulars of the pleadings ( W. A. Pines Pty Ltd v Bannerman (1980) ATPR 40-163; Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN. (NSW) 250). This is particularly the case in defamation, w…
W A Pines Pty Ltd v Bannerman
[1980] FCA 16 Para 1

…t seek documents (whether by discovery or otherwise) in a "fishing expedition" prior to filing a pleading or answering particulars of the pleadings ( W. A. Pines Pty Ltd v Bannerman (1980) ATPR 40-163; Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN. (NSW) 250). This is particularly the case in defam…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 2004 (NSW)
13.6, 14.28, 15.32(a), 15.8, 15.9 6 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention

Medium Neutral Citation:	Mallegowda v Sood [2013] NSWDC 98
Hearing dates:	12 June 2013
Decision date:	21 June 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) No application having been brought by the defendants in accordance with order 7 made on 12 June 2013, all documents produced on subpoena by any party or person are to be returned by the Newcastle Registry forthwith. (2) Reserve the issue of costs in relation to the issue of early subpoenae (other than costs referrable to the costs order of 12 June 2013) to the Defamation List judge. (3) Grant leave to the plaintiff to re-list the plaintiff's notices of motion of 18 March 2013 and 30 April 2013 before Bozic SC DCJ. (4) The Defendants file and serve their Defences to the Third Further Amended Statement of Claim by 12 July 2013. (5) The First Defendant/Cross-Claimant file and serve his Statement of Cross-Claim by 12 July 2013. (6) The Plaintiff file and service any Reply to the Defence to the Third Further Amended Statement of Claim by 6 August 2013. (7) The Plaintiff/Cross-Defendant file and serve his Defence to the Statement of Cross-Claim by 6 August 2013. (8) The First Defendant/Cross-Claimant file and serve any Reply to the Defence to the Statement of Cross-Claim by 16 August 2013. (9) The proceedings are referred for mediation pursuant Section 26 of the Civil Procedure Act 2005, such mediation to be undertaken by a mediator to be appointed by the Court. (10) Note the parties intend to mediate the matter before the next return date on 27 September 2013. (11) Matter listed for directions on Friday 27 September 2013 in the Defamation List.
Catchwords:	TORT - defamation - plaintiff's statement of claim struck out - defendants bring fresh application to strike out statement of claim - form and capacity of imputations - defendants issue subpoenae for plaintiff's medical and telephone records although no defence filed - circumstances in which leave to issue subpoenae early will be granted
Legislation Cited:	Uniform Civil Procedure Rules 2004 (NSW), rr 13.6, 14.28, 15.8, 15.9 and 15.32(a)
Cases Cited:	Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN. (NSW) 250 Bishop v Latimer (1861) 4 LT (NS) 775 Buswell v Carles [2012] WASC 509 Griffith v Australian Broadcasting Corp [2002] NSWSC 86 Harrigan v Jones [2000] NSWSC 814 Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9 Loo v Rural Press Pty Ltd [2003] NSWSC 107 Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950 Maisel v Financial Times Ltd [1915] 112 LT 953 McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 Megna v Marshall [2010] NSWSC 686 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 Scott v Nationwide News Pty Ltd [2005] NSWSC 169 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Tucker…