Mallegowda v Sood
[2013] NSWDC 98
•21 June 2013
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 v Echo Publications Pty Ltd [2000] NSWSC 239
W. A. Pines Pty Ltd v Bannerman (1980) ATPR 40-163Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Shashikanth Mallegowda
First Defendant: Amit Sood
Second Defendant: Naveen LingaiahRepresentation: Plaintiff: Mr R Rasmussen
Defendants: Mr B Connell
Plaintiff: Vaikom Rajeev
Defendants: Roberts Legal
File Number(s): 2012/352080 Publication restriction: None
Judgment
On 12 June 2013 I heard an argument about the form and capacity of the imputations in the two publications the subject of these proceedings. In the course of that argument I made additional orders concerning documents produced under subpoenae in the Newcastle Registry of the District Court, including the bringing of any application for early access to those documents by the defendants, who issued the subpoenae in question. The orders I made on 12 June 2013 were as follows:
(1) Defendants' application to strike out proposed imputations 1(a), (c), (d), (e), (f), (g), (h), (i), (k) and 2(a), (c) and (d) dismissed.
(2) Proposed imputation (j)(i) not conveyed.
(3) Defendants' application to strike out proposed particular (b) of the particulars of aggravated damages dismissed.
(4) The plaintiff has leave to file a Third Further Amended Statement of Claim to include the above imputations, any replaced imputation (j)(i), the proposed additional particulars of aggravated damages, and to delete the extraneous material at the head and foot of the matter complained of, within 7 days.
(5) Matter stood over for further directions to Friday 21 June 2013 at 9.30am.
(6) On 21 June 2013 the defendants are to indicate any further objection to the Third Further Amended Statement of Claim and, in the absence of further objections, the parties are to agree on a timetable for the filing of a defence and any cross-claim and a range of mutually convenient dates for a court mediation.
(7) Any notice of motion in relation to the subpoenae issued in these proceedings is to be returnable for 21 June 2013, but in the event that no such notice of motion is filed the court will return all documents produced on subpoena to their owners.
(8) Defendants pay plaintiff's costs of the application today.
This judgment deals with two matters. The first is an application to strike out the statement of claim or alternatively to strike out portions of the pleadings, including the imputations, pursuant to rr 13.6 and 14.28 Uniform Civil Procedure Rules 2004 (NSW) ("UCPR"). These are my reasons for the orders that I made on 12 June 2013. I delayed providing reasons for decision until the expiry of the time for the defendants to comply with order 7, namely today.
The issue raised by order 7 in the orders I made on 12 June 2013 is a case management issue, namely what is to happen to documents produced under subpoena by the Hunter New England Area Health Service and John Hunter Hospital produced pursuant to subpoenae issued by the defendants on 1 March 2013 and the subject of an outstanding Notice of Motion to set aside the subpoenae filed on 18 March 2013.
I shall deal first with the application to challenge the form and capacity of the imputations and particular (b) of the aggravated compensatory damages claim.
The imputations pleaded to arise in the matters complained of
There are two publications, which are emails sent to members of an Indian community organisation in the Newcastle area. The imputations pleaded to arise from the 21 September 2012 publication (the first matter complained of) are as follows:
(a) The plaintiff is a false accuser (the entire matter but particularly paragraphs 1, 2, 3, 22, 24 and 25);
(b) The plaintiff is dishonest (the entire matter but specifically paragraphs 1, 2, 19, 20, 21, 22, 24, 25);
(c) The plaintiff falsely accused Amit Sood and Amit Karla of corrupt or fraudulent conduct in that they misused IAN resources and funds to benefit their own needs (the entire matter but specifically paragraphs 1, 2, 3, 4, 18, 19, 20, 21, 22, 24, 25);
(d) The plaintiff falsely accused Amit Sood of misusing his position as IAN treasurer in that Amit Sood collected funds from sponsors of an Independence Day function based upon a false promise to promote their business (the entire matter but specifically paragraphs 1,2, 3,4, 5, 6,18, 19,20,21,22,24,25);
(e) The plaintiff falsely accused Amit Sood of misusing his position as IAN treasurer in that Amit Sood collected funds from sponsors of an Independence Day function for which Amit Sood did not account to the IAN or the sponsors (the entire matter but specifically paragraphs 1, 2, 3, 7, 8, 18, 19, 20, 21, 22, 24, 25);
(f) The plaintiff falsely accused Amit Sood and Amit Karla of forcing out two members of the IAN committee in an attempt to keep their corrupt conduct hidden (the entire matter but specifically paragraphs 1, 2, 3, 10, 11, 18, 19, 20, 21, 22);
(g) The plaintiff falsely accused Amit Sood and Amit Karla of misusing public funds (the entire matter but specifically paragraphs 1, 2, 3, 14, 15, 16, 17, 18, 19, 20, 21, 22);
(h) The plaintiff sends vicious emails in order to sow the seeds of suspicion in the community against Amit Sood and Amit Karla (the entire matter but specifically paragraphs 1, 2, 3, 19, 20, 21, 22);
(i) The plaintiff is deceiving the members of IAN by trying to cover up his involvement with a group of people who send vicious emails in order to sow the seeds of suspicion in the community against Amit Sood and Amit Karla (the entire matter but specifically paragraphs 1, 2, 3, 19, 20, 21, 22);
(j) [see (i) or (ii)]
(i) The plaintiff falsely claims to be a true believer in Lord Ganesha when his actions are so malicious (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24);
(ii) The plaintiff falsely accused Amit Sood of not being a true believer in Lord Ganesha because his actions were so malicious (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24);
(k) [see (i) or (ii)]
(i) The plaintiff falsely accused Amit Sood of maliciously trying to divide the Indian Community in the name of Lord Ganesh Festival (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24);
(ii) The plaintiff is maliciously trying to divide the Indian Community in the name of Lord Ganesh Festival (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24, 25).
The imputations pleaded to arise from the 24 September 2012 publication (the second matter complained of) are as follows:
(a) The plaintiff has caused Amit Sood trauma by maliciously responding to his hard work with a vicious brickbat (the entire matter but specifically lines 1-4);
(b) The plaintiff is a villain (the entire matter but specifically lines 19 - 22);
(c) The plaintiff sent a slanderous email about Amit Sood (the entire matter but specifically lines 23-24);
(d) The plaintiff has been deceiving the members of IAN by hiding his involvement with a group of people who sent a slanderous email about Amit Sood (the entire matter but specifically lines 23-26).
The particulars of aggravated damages
The particulars of aggravated damages, particular (b) of which was also challenged, are:
(a) the falsity of the imputations;
(b) the conduct of the defendants in falsely attributing to the plaintiff the publication of a libellous email in order to stop members of the Indian Community from attending the plaintiffs Ganesha Festival and instead to attend their rival Ganesha Festival.
The structure of the matters complained of is unusual. The plaintiff's claim is that the defendants created a false email purporting to have been sent by the plaintiff attacking the defendants. The matters complained of purport to be the defendants' responses to this email.
An additional complication is that the matters complained of, which consist of disputes concerning religious and cultural matters known to the recipients, members of an Indian community group, are not commonly known, which means that a degree of explanation for the benefit of the court is required. Earlier drafts of the statement of claim attempted to include such material. Perhaps as a result, the pleadings have something of a confused history.
The original statement of claim filed on 12 November 2012 was prepared by the plaintiff, who at the time was a litigant in person. That document, and the amended statement of claim, were struck out as non-compliant without any analysis of their contents. On 29 January 2013 orders were made by consent for the plaintiff's legal representatives to file a further amended statement of claim. When the matter was first listed in the Defamation List on 22 March 2013, a further draft pleading was provided and filed on 26 April 2013. The defendants complained that this document was filed without leave and without prior service of a draft and the matter was listed for argument.
On Friday 3 May 2013, the defendants successfully obtained orders striking out the statement of claim in its entirety, without any consideration of imputations or other pleading issues, on the basis that it was hopeless on its face. On Friday 3 May 2013, Bozic SC DCJ made the following orders and notations:
(1) The second further amended statement of claim is struck out.
(2) The plaintiff is to serve on the solicitors for the defendants a draft further amended statement of claim by 24 May 2013.
(3) The plaintiff is to pay the defendants' costs of complaining about the pleadings, and the costs of the motions filed and the appearances in the defamation list to date.
(4) I note that the outstanding issues regarding the plaintiff's notice to produce and access to the documents produced on subpoena are to be stood over to be dealt with after the close of pleadings.
(5) The matter is stood over for directions in the defamation list at 9.30am on Friday 7 June 2013.
In accordance with these orders a draft further amended statement of claim was served by the due date.
The defendants raised extensive objections to this pleading in their letter of 5 June 2013, to the current pleading. This included a claim that the particulars of aggravated damages were liable to be struck out for failure to comply with the judgment of Bozic SC DCJ, conduct which was described by the solicitors for the defendants as "remarkable". In addition, spelling errors, use of paragraph numbers for the passages giving rise to the imputations, complaints of "weasel words" and impermissible terms such as "falsely claims" were raised as matters warranting the striking out of the pleadings as well as an order for costs payable forthwith.
These claims have now been abandoned. The sole remaining issues are:
(a) Objections to the form and capacity of the imputations;
(b) Removal of extraneous email address material from the top of the first matter complained of; and,
(c) Objections to failure to comply with rr 15.8, 15.9 and 15.32(a) UCPR in relation to particular (b) of the claim for aggravated damages.
Form and capacity of the imputations
The objections to the imputations pleaded as arising from the first matter complained of are:
(a) Imputations 2(c) - 2(g), 2(j)(i) and 2(j)(ii) and 2(k)(i) do not differ in substance from 2(a). All of those except 2(a) are "redundant".
(b) Imputations 2(h) and 2(i) do not differ in substance. Alternatively, 2(i) contains two imputations, firstly of the plaintiff deceiving the members of IAN by trying to cover up his involvement with a group of people, and secondly of the plaintiff being involved with a group of people who send vicious emails in order to sow the seeds of suspicion in the community against Amit Sood and Amit Karla.
(c) Imputation 2(j)(ii) is incapable of arising.
(d) Imputations 2(j)(i) and 2(j)(ii) are objected to on the basis that the act or condition ascribed to the plaintiff is "unclear". Each is asserted to contain two imputations; in the case of 2(j)(i), an imputation of behaving maliciously does not differ in substance from imputation 2(h).
(e) Imputation 2(k)(i) is not capable of arising.
(f) Imputation 2(k)(ii) does not differ in substance from imputation 2(h).
The objections to the imputations pleaded as arising from the second matter complained of are:
(a) Imputations 4(a) and 4(c) are objected to as not differing in substance.
(b) Imputation 4(d) is objected to as incapable of arising in the absence of any allegation that the plaintiff has been deceiving the members of IAN.
Imputations 2(c) - 2(g), 2(j)(i) and 2(j)(ii) and 2(k)(i)
In his oral submissions to me, Mr Connell for the defendants submitted that imputation 2(a) should be the sole imputation pleaded on the basis that it "covers the field". Other imputations should not be permitted. It was further submitted that imputations of an act ("the plaintiff stole money") and a condition ("the plaintiff is a thief") do not differ in substance.
Whether the plaintiff's imputations "cover the field" is a term generally used to determine whether 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 "Maisel" imputation: Maisel v Financial Times Ltd [1915] 112 LT 953) does not prevent the pleading of a specific allegation, and in particular does not prevent the plaintiff from pleading imputations of an act ("the plaintiff stole money") and at the same time as an imputation of a condition ("the plaintiff is a thief").
The entitlement of a party to plead imputations comprising both an act and a condition is of longstanding. In Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Hunt J stated:
"Imputation (b) is conceded by the plaintiff to be no more than a particular instance of the general allegation made by Imputation (a). In the light of this concession, the defendant argues that the two imputations are not different in substance, as required by r11(3). As any imputation pleaded must be taken to include all other imputations which do not differ in substance (Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749, at 771), it is wrong in principle, it is said, to plead both the general and the particular applications of the same allegation.
In my view, such a principle is stated too broadly. It may be tested by considering what must be proved by way of justification to each such imputation. One of the most oft-quoted cases is that of Bishop v Latimer (1861) 4 LT (NS) 775. The heading to the defendant's report was in the terms: "How Lawyer Bishop treats his clients". Proof that the plaintiff had treated one client badly in one particular case was held to be an insufficient justification of the heading, which implied that he so treated his clients generally (at 775).
Another way by which the principle contended for by the defendant may be tested is by considering whatmay be proved by way of justification to each such imputation. Where the imputation consists of a general allegation, it is open to the defendant to establish the truth of that allegation by proof of matters entirely unrelated to the specific instance identified in the matter complained of. The leading case is of Maisel v Financial Times Ltd (1915) 112 LT 953. The matter complained of reported the arrest of the plaintiff, the director of a company, on a charge of fraud. In his Statement of Claim, the plaintiff relied upon an imputation that he was an unfit person to be the director of any company. The defendant was held by the House of Lords to be entitled to justify that imputation by relying upon a number of other dishonest acts, quite independent of that for which he was said in the matter complained of to have been arrested. For an even more startling example, see McGrath v Black (1926) 135 LT 594.
The question is whether the general allegation is different in substance from the particular. In most cases, in my opinion, it would be. In many cases, the allegation in the matter complained of that the plaintiff was guilty of misconduct on a particular occasion will not support an imputation alleged in general terms."
Mr Connell submitted that Singleton v John Fairfax & Sons Ltd, supra, does not permit such a procedure, and drew my attention to Hunt J's discussion of Bishop v Latimer (1861) 4 LT (NS) 775.
The clear and concise language of Hunt 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 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 (in Bishop v Latimer, the manner in which a solicitor treated one of his clients). There are multiple allegations made against the plaintiff in these proceedings, so this exception to the rule does not arise.
This being the sole basis upon which these imputations are objected to, I find that each of these imputations is capable of arising. This is a publication which has not held back from making allegations about the plaintiff, and there is ample material in the matter complained of to give rise to each of these specific acts as well as the conditions pleaded.
Imputations 2(h) and 2(i)
The objection to imputations 2(h) and 2(i) is firstly that they do not differ in substance and secondly that imputation 2(i) which relies upon imputation 2(h) being established, thereby includes material amounting to a second imputation.
Using the test of what must be proved for each imputation (referred to by Hunt J in Singleton v John Fairfax & Sons Ltd, supra), imputation 2(h) requires proof of sending vicious emails concerning the persons named, while imputation 2(i) would require proof of a cover-up of the activities of the plaintiff. I am satisfied that these imputations differ in substance.
I do not consider the repetition of the words "vicious emails" in imputation 2(i) to require a separate pleading of an imputation. If imputation 2(h) (which refers to the vicious emails) fails, then imputation 2(i) would fail as a matter of course.
Imputations 2(j)(i) and 2(j)(ii)
The only imputation which requires revision is imputation 2(j)(ii) which counsel for the plaintiff withdrew, on the basis that he wished to replead it with more clarity. It is therefore not necessary for me to deal with the objection to imputation 2(j)(ii).
The second matter complained of - Imputations 4(a) and 4(c)
Imputation 4(a) pleads the general response of the plaintiff; imputation 4(c) pleads that the plaintiff sent a slanderous email. I note that the phrase "vicious brickbat" is to be pleaded in the plural. Viewed in context of the matter complained of, these imputations clearly capture different actions by the plaintiff and therefore differ in substance. Imputation 4(c) is restricted to the sending of the slanderous email, while imputation 4(a) refers to the many wrongs the plaintiff has allegedly done.
Imputation 4(d)
This email, although pleaded as the second matter complained of, is the email which the defendants, in the first matter complained of, purported to be answering. It is initially confusing to read because it is apparently intended to make the readers believe the plaintiff is its author.
I had trouble understanding the objections of the defendants to imputation 4(d), which clearly arises from the matter complained of, as this email effectively states that the plaintiff has been deceiving the members of IAM.
Mr Rasmussen questioned whether extrinsic facts may need to be pleaded (written submissions, paragraph 9), but the imputation is capable of arising in the natural and ordinary meaning of the second matter complained of, when read on its own.
Mr Connell did not suggest that there should be extrinsic facts to identify readers of the second matter complained of who had understood the plaintiff was identified. In practical terms, since the contents of this publication are repeated in the first matter complained of, and then followed by the defendants' "answers", and the emails are sent to the same persons, this may be one of those rare cases where no particulars of identification are necessary.
The remaining issue is the question of particular (b) in the claim for aggravated damages.
Objections to particular (b) in the claim for aggravated damages
The defendants' objections to particular (b) on the basis that it fails to comply with rr 15.8, 15.9 and 15.32(a) UCPR are as follows:
(a) UCPR r 15.9 specifically requires the particulars to be subscribed to the pleading or otherwise furnished in a filed document.
(b) The particulars which are required to be given should not be merely a statement of a conclusion; see Harrigan v Jones [2000] NSWSC 814 at [13] and authorities referred to therein.
(c) The facts, matters and circumstances which the plaintiff proposes, by evidence to prove must be given. Only then, having done so, the plaintiff may state the conclusion which he assert the evidence will support or the submission which will be made upon these matters being proved by evidence; Harrigan v Jones at [14].
(d) It is not appropriate for the plaintiff to give inadequate particulars in the expectation that the deficiency can be cured by correspondence; Harrigan v Jones at [21].
(e) That is all the more the case here where there has been so much delay occasioned in pleading the statement of claim.
(f) Particular (b) rises no higher than particular 7 in Harrigan v Jones, which was struck out; see [68] - [70].
(g) Particular (b) is additionally objectionable because it can be read as alleging a conspiracy between the defendants, again without any particulars of the facts, matters and circumstances relied upon.
Sending an email in another person's name is comparable to sending an anonymous 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 fuller pleading of the basis upon which the claim is made.
As to the complaint that there has been "so much delay" occasioned by pleading the statement of claim, these delays have been contributed to by the defendants. The defendants have brought unnecessary heat into these proceedings by seeking orders for the previous statement of claim to be struck out without any consideration of its merits, and by seeking orders in this application for costs to be payable forthwith.
Removal of extraneous material
The defendants also submitted, in relation to the first matter complained of, "[t]he extraneous material" at the top of page 1 (email addresses from the persons who forwarded this email to the plaintiff) should be removed. The plaintiff has agreed to do so. It is not necessary for the purposes of the statement of claim, but the document tendered at the trial will contain this information, so I am inclined to consider the defendants' objections to be of relatively minor importance.
Early issue of subpoenae and notices to produce
The subpoenae and notice to produce referred to in order 4 made by Bozic SC DCJ should not have been issued without leave. Parties generally may not 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 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] WASC 509.
The subpoenae the subject of the Notice of Motion filed on 18 March 2013 seek documents of wide generality and some sensitivity. The solicitor who has sworn the affidavit in support states, and I agree, that hospital records for the plaintiff for the period "1 January 2007 and 18 February 2013" can have no relevance to these proceedings. This would not be apparent to the busy hospitals which answer subpoenae of this kind as part of their administrative activities, generally for the purpose of personal injury proceedings. However this is not a personal injury matter, and counsel for the defendants conceded that such documents would have little or nothing to do with the issues in these proceedings, no matter when they were issued.
Mr Connell concedes that the medical material must be returned, but has told me this morning that another 18 subpoenae have been issued in the Newcastle Registry (and possibly the Sydney Registry as well), principally for Telstra and other email and telephone-related entities, and that these documents had been inspected by his clients. He did not have copies of these subpoenae available. He thought some had been issued by the plaintiff as well as the defendants.
The plaintiff, no doubt in response to the 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, acting in response to a procedure he observed being used by his opponents. Furthermore, he correctly sought leave to issue subpoenae, unlike the solicitors for the defendants.
Mr Connell submitted that these subpoenae were "issued by the court", not by the parties. I do not accept this submission. The parties, not the court, determine what subpoenae should be issued. The court stamp provides the court's imprimatur, but that makes it all the more important that such a procedure should not be misused.
Mr Connell submitted that he did not understand my order to apply to all documents, and thought that it only applied to the documents the subject of the Notice of Motion filed by the plaintiff's former solicitors. He had thought my concern was that the Newcastle registry was being cluttered with subpoenae for proceedings listed for case management in Sydney. That is not the case; my concern is that these subpoenae have been used as a substitute for discovery (as many of the telephone and computer records, and all of the health records, are those of the plaintiff) as well as being issued prematurely.
Mr Connell asked for an extension of time in which to bring an application for leave to retain these documents, on the basis that his clients would be put to the trouble of having to issue further subpoenae for the hearing.
The court's process must be protected, and applications for early production of documents under subpoena should be made in the recognised way. It was for this reason that I made the orders in order 7 requiring the defendants to embark upon the procedure set out in Buswell v Carles, supra, on the understanding that if no Notice of Motion were filed, the court would return the documents produced. No Notice of Motion has been filed returnable today, and the defendants were already on notice as to the objections by the plaintiff to the issuing of these subpoenae. The documents should not remain in the registry any longer; all documents produced will accordingly be returned.
While judges should only raise matters not the subject of any application by the parties, protection of the court's process, of which the use of subpoenae is such a vital part, warrants such intervention in clear cases such as the present.
The issue of any costs thrown away may be dealt with in accordance with the earlier orders of Bozic SC DCJ.
I have made provision, in the timetable, for any cross-claim the defendants intend to bring. Mr Connell indicated that he was waiting on an expert report concerning the authorship of the second matter complained of, but that the likelihood was that its provenance being disputed was not high. Nevertheless, I have given his clients this opportunity to bring any cross-claim if they wish to assert that the author of the second matter complained of is indeed the plaintiff.
Orders
(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.
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Decision last updated: 26 June 2013
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