Mallegowda v Sood (No 2)
[2014] NSWDC 216
•06 August 2014
District Court
New South Wales
Medium Neutral Citation: Mallegowda v Sood (No. 2) [2014] NSWDC 216 Hearing dates: 5 August 2014 Decision date: 06 August 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Hearing date of 18 August 2014 vacated.
(2) Gibson DCJ not part heard.
(3) Plaintiff's notice of motion filed 19 June 2014 dismissed.
(4) Costs of and incidental to the plaintiff's notice of motion of 19 June 2014 and the vacating of the hearing date reserved.
(5) These proceedings listed for further directions in the Defamation List on Friday 29 August 2014.
Catchwords: TORT - defamation - claim and cross-claim for defamation set down for hearing for 5 days plus despite interlocutory steps remaining - plaintiff brings application to vacate hearing date - defendants' failure to answer interrogatories requiring further rulings - defendants' late service of expert report - claimed failures by both parties of failure to serve witness lists and statements where more than 30 witnesses likely - role of trial judge in determining case management issues - whether proceedings ready for hearing - whether time estimate accurate - whether further pleadings rulings and an expert conclave order should be made - hearing date vacated Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 66 and 68
Defamation Act 2005 (NSW), s 46(3)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 15.4(1)Cases Cited: Bass v Permanent Trustee (1999) 198 CLR 334
Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343
Bidner v Queensland [2000] QCA 368
Burrows v Knightley & Nationwide News Pty Ltd (1987) 10 NSWLR 651
Buswell v Carles [2012] WASC 509
Mallegowda v Sood [2013] NSWDC 98
Scott v Nationwide News Pty Ltd [2005] NSWSC 169
Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Shashikanth Mallegowda
First Defendant: Amit Sood
Second Defendant: Naveen LingaiahRepresentation: Plaintiff: Mr C J Dibb
Defendants: Mr T K Tobin QC / Mr B Connell
Plaintiff: Vaikom Rajeev
Defendants: Roberts Legal
File Number(s): 2012/352080 Publication restriction: None
Judgment
This proceedings consist of a claim and cross-claim, each seeking damages for defamation, brought by members of the Indian community in the Newcastle area. Bozic SC DCJ allocated a 7-day hearing date commencing 18 August 2014 in the defamation list on 28 March 2014. This hearing date was given over the objections of the plaintiff/cross-defendant, who complained of outstanding particulars and answers to interrogatories by the defendants/cross-claimants.
The answers to particulars and interrogatories provided after the matter was set down for hearing consisted largely of refusals to answer. This resulted in the plaintiff/cross-defendant filing the notice of motion which first came before me on 20 June and, following an exchange of submissions, was relisted on 1 July 2014. As is set out below, the plaintiff/cross-defendant not only sought orders for answers but orders to vacate the hearing date.
The circumstances in which I came to hear this notice of motion were as follows. The plaintiff's notice of motion for further and better answers to interrogatories and particulars, and for vacation of the hearing date of 18 August 2014, was initially sent to the registry, but not processed through the defamation list as the proceedings had been allocated a hearing date. It was eventually filed 19 June 2014, and a copy sent to me by the registry as the appointed trial judge. Given the urgency of an application to vacate the hearing date, I listed this application the following day, on 20 June 2014, on the understanding that argument would not take place on that day but that directions could be made.
In the notice of motion, the plaintiff sought the following orders:
(1) That the first defendant/cross claimant and second defendant answer the outstanding requests for further and better particulars outlined in the letter dated 24 April 2014 from the plaintiff's solicitors to the defendants' solicitors.
(2) That the first defendant/cross claimant and second defendant answer the outstanding interrogatories referred to in the letter dated 22 April 2014 from the plaintiff's solicitors to the defendants' solicitors.
(3) That the hearing date of 18 August 2014 be vacated.
(4) Costs.
In accordance with my orders of 20 June 2014, the parties provided me with written submissions as to the interrogatories and particulars arguments. Although I had intended to deal with these matters in chambers by a written judgment sent to the parties, I was unable to do so, in part because the application to vacate the hearing date could not be dealt with in such an informal fashion, and in part because Mr Connell's submissions were of a general nature.
When the proceedings came before me on 1 July 2014 for argument on the outstanding particulars and interrogatories, Mr Potter, the counsel then appearing, had another concern: his instructing solicitor had been served, either late on Friday or over the weekend, with a supplementary expert's report. In this report, the defendants/cross-claimants' expert changed his position on a vital issue of timing in relation to the sending of certain emails. Mr Potter made an oral application that this report, served late and without leave, should not be able to be relied upon at the trial.
The first issue for determination on 1 July was, however, the outstanding issues in the plaintiff's notice of motion. The defendants' written submissions in relation to the request for particulars generally asserted (paragraph 6, answers 2, 8, 9, 10, 11, 12, 13 and 14; paragraph B answers 2 - 17, 19, 21, 22, 24, 25, 28, 30, 31, 38 - 41) that these were not proper requests for particulars, or by a reference to an affidavit, or by the statement that these were matters for evidence. The basis for objection to answering these questions was that these were not proper requests for particulars for the reasons stated by the court in "Bass v Permanent Trustee".
No citation for this apparent decision was given, but there is a decision Bass v Permanent Trustee (1999) 198 CLR 334. This decision deals with constitutional law issues concerning suits to which the State is a party and whether the State was a "person" for the purposes provisions in the Trade Practices Act 1974 (Cth). (This decision is of no assistance in this litigation, although I found the section "Responding effectively to complex litigation" at pp 363 - 4 of assistance on case management issues). The defendants/cross-claimants probably intended to refer to Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [43], where Hunt AJA explained that the obligation to give particulars did not require a party to disclose the evidence upon which he proposed to prove his case. This is no answer to the obligations to provide proper particulars under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 15.4(1) for particulars of the plaintiff's state of mind, which is the principal request.
Similarly, on the issue of interrogatories, the parties had sent me written submissions in order that I could deal with the issues "on the papers" without need for further argument. The letter from the plaintiff's solicitors dated 22 April 2014 at page 65 of the affidavit set out each of the unanswered interrogatories pressed by the plaintiff. The objections were based on claims of lack of relevance, or that the interrogatory was outside the leave granted in the order of 21 February 2014 by Elkaim SC DCJ.
Elkaim SC DCJ's order on 14 February 2014 (one of a long series) was:
"Leave to the plaintiff to administer interrogatories limited to the defences of truth and comment and the issue of malice as particularised on 19 February 2014 to both defendants."
Elkaim SC DCJ did strike out a number of particulars set out in the above two letters dated 19 February, but nevertheless gave leave to interrogate on these other issues. The submission to the contrary was misconceived.
Mr Connell's submissions of 23 June 2014 shed little light on why these interrogatories have not been answered, beyond asserting that the plaintiff "seeks to abuse the indulgence by administering interrogatories going beyond the leave" (submissions, paragraph 13) and (at paragraph 14) that further interrogatories are "not necessary", "oppressive", "a trial by interrogatory", and "such over-use of interrogatories in contrary [sic] should be discouraged", as his clients "will be giving evidence at trial and will be available for cross examination".
Mr Connell supplied additional written submissions on the morning of the hearing of the argument and, in light of the defendants/cross-claimants' revised expert's report (discussed in more detail below); Mr Potter reduced the number of particulars and interrogatories in dispute. I then heard the parties' oral argument as to the adequacy of answers to particulars and interrogatories.
The defendants/cross-claimants were unsuccessful in resisting the orders to provide further and better answers. I made orders in relation to answers, and also in relation to the plaintiff/cross-defendant's application for pre-trial expert evidence in conclave and by joint report, aimed at minimising the impact of the late-served report. I canvassed with the parties whether the giving of reasons and the making of costs orders was appropriate. The parties did not ask for reasons, but asked for leave to provide further submissions (on the next day these proceedings were before the court) on costs. Those submissions were forwarded to the court, but no costs argument was heard on 5 August 2014. The parties did not mention the issue of costs of this argument, presumably due to the imminence of the hearing.
When making these orders, given the hearing date was so close, and the possibility of further dispute about the answers or the expert reports could not be ignored, I stood over the plaintiff/cross-defendant's Notice of Motion part-heard to 5 August 2014. Both parties were therefore on notice that the application to vacate the hearing date had not gone away just because the argument had been heard and orders made about the expert evidence, and that compliance with these orders was expected. The orders I made were as follows:
(1) No further affidavits, notices of motion or other documents are to be filed without leave of the Court.
(2) First Defendant is to answer plaintiff's interrogatories 26, 32-40, 46-51 in 14 days.
(3) Second Defendant is to answer plaintiff's interrogatories 8-10, 21, 22 and 35-40 in 14 days.
(4) The defendants are to answer plaintiff's request for particulars in 14 days.
(5) The defendants are to provide the comment particulars sought pursuant to r 15.28 Uniform Civil Procedure Rule 2005 (NSW) (paragraph F of the Defence).
(6) Pursuant to r 31.4 Uniform Civil Procedure Rules 2005 (NSW), the parties exchange lists of witnesses they propose to call (other than the paries themselves) in chief, along with an outline of the evidence that witness is likely to give, by 1 August 2014.
(7) The respective experts for the parties are to meet without legal representatives by 11 July 2014, to identify all matters which are agreed between the experts and all remaining areas of disagreement and to provide to the parties a joint report outlining those issues by 25 July 2014.
(8) The plaintiff's Notice of Motion filed on 19 June 2014 is stood over part heard to Friday 1 August 2014 at 9:30am.
(9) Costs of today reserved.
(10) Grant leave to the parties to exchange an outline of submissions concerning costs which will be dealt with on the next occasion.
Although the date of 1 August 2014 was chosen to suit the convenience of the parties, this date was later found to be inconvenient to counsel for the defendants/cross-claimants, and the Notice of Motion was stood over to 5 August 2014, just under two weeks before the hearing date of 18 August 2014, to suit their counsels' convenience.
When the proceedings came before me on 5 August, Mr Dibb appeared for the plaintiff, having received a brief to appear at the hearing in the place of Mr Potter late on the day before. He told me he had received two boxes of material, but that he had "not yet found" the answers to interrogatories and particulars inside them. He could not tell me how many witnesses he was calling as he had not yet interviewed them, and would need a week to do so. He was aware a list of 12 witnesses had been sent to the solicitors for the defendants/cross-claimants, but agreed that it was deficient, as were the proposed outlines of evidence which had been served only on 1 and 2 August 2013.
Although Mr Dibb conceded he was not yet in a position to say the proceedings were ready for hearing, he said that he was instructed that the plaintiff wanted the hearing to proceed. He was confident that he would be "up to speed in a couple of weeks". Unfortunately, the hearing is in a couple of weeks.
Mr Tobin QC, for the defendants/cross-claimants, said that his clients were ready, and the vacation of the hearing date would result in a significant costs burden to his clients. He asked that the hearing proceed on 18 August, and submitted that a further listing of these proceedings on Wednesday 13 August, to monitor compliance with any outstanding steps would be sufficient to ensure the matter was ready for hearing. If the matter was still not ready on Wednesday 13 August, then what Mr Tobin QC called "the case management axe" could fall on the parties. Mr Tobin QC reminded me that both parties were keen for the hearing to take place, as the factual matrix of events was "a running sore" in the Indian community in Newcastle, New South Wales.
These proceedings have a long procedural history and appear to have been conducted with some hostility on both sides. This should not prevent the matter from being ready for hearing, but there are outstanding issues which concern me in my capacity as trial judge:
(a) The defendants/cross-claimants' objections to answers were general and without merit. While answers have been provided, counsel for the plaintiff, who came into the matter yesterday, has not yet read them and cannot tell me if the answers are satisfactory. Copies were not provided to Mr Dibb, or to me, although this would have been an easy way for this issue to be resolved.
(b) The plaintiff/cross-defendant has not properly complied with the order for the provision of a list of witnesses and outlines of evidence. Mr Dibb tells me he will require a week to interview the relevant witnesses, and that this will make a further extension of the timetable for a return date before me on Wednesday 13 August, which is only three days before the hearing is due to start.
(c) There are outstanding issues about the experts' reports and a supplementary joint report will need to be filed. It is hoped that this can be prepared before the hearing. However, on the morning of 6 August 2014, when I was about to hand down judgment at 10 am, I received an email headed "urgent" from the solicitors for the plaintiff/cross-defendant raising issues about the timing of a telephone call from a Mr Visweshwariah in relation to the deletion of a gmail account, seeking leave to issue a subpoena urgently. In addition, the serious allegation is made that the defendants have not complied with my orders of 1 July 2014 to send a witness list. While I propose to disregard this extracurial communication, it is of concern to me that the ambit of the expert evidence has been only very recently considered by the parties, apparently only as a result of my making orders for a conclave and joint report. I have marked the correspondence from the plaintiff's solicitors as MFI 1 in this application. It is also of concern to me that claims of this kind are made in correspondence to my associate, even though it was sent to the solicitors for the defendants/cross-claimants, and which is contradictory to the statements made by Mr Dibb in court.
(d) These proceedings were set down for hearing for 7 days, the parties having told Bozic SC DCJ that the hearing would take 5 - 7 days. The defendants/cross-claimants have provided witness outlines for 15 witnesses. In addition to the defendants themselves and their expert, three of those witnesses will give evidence on what Mr Tobin QC called "technical" matters and three on justification issues, including alleged admissions by the plaintiff. It is hard to know how many witnesses the plaintiff will call as Mr Dibb has not yet commenced to interview them, but prior to his coming into the matter it would appear that the names of 12 witnesses and partial outlines of evidence were served. Mr Tobin QC agreed that there were "a lot of witnesses" and that completion of the hearing in 7 or even 10 days might not be possible.
(e) Although these are minor matters, some interlocutory steps remain outstanding, such as the parties' applications in relation to the costs of the particulars and interrogatories, while others have never been brought. For example, the defences and cross-claim plead numerous imputations which have not been the subject of any rulings. These will add to the time taken for the conduct of the hearing.
It would be only in the most extreme circumstances that a court would vacate a hearing date where both parties assure me (notwithstanding the fact that one of them has a part-heard application before the court to vacate the hearing date) that they wish the hearing to proceed. The circumstances in which a court would, of its own motion, vacate a hearing date against the wishes of the parties would need to be exceptional. The question is whether that is the appropriate order to be made in the circumstances, having regard to the overriding principles of ss 56 - 62 Civil Procedure Act 2005 (NSW). This requires a careful examination of the pleadings and procedural history, as well as of the correct approach to case management as set out in ss 56 - 62 and 66 of the Civil Procedure Act.
The statement of claim and defences
These proceedings were commenced by statement of claim filed on 12 November 2012 in the Newcastle registry. The defendants brought a series of applications to strike out the statement of claim and were successful at one point in having the whole claim struck out. A second application to strike out the statement of claim (or alternatively parts thereof) came before me for argument on 12 June 2013.
On 12 June 2013 I was asked to hear a motion in these proceedings, which was sent to me while they were being case managed by the defamation list judges. I made rulings in relation to the plaintiff's imputations 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 application, that the defendants had, contrary to accepted practice in general and defamation in particular (Buswell v Carles [2012] WASC 509; Scott v Nationwide News Pty Ltd [2005] NSWSC 169 at [8] - [10]), issued a large number of subpoenae, including a further 18 subpoenae which came to light after I hear the pleadings argument. All these subpoenae had been issued in the Newcastle Registry of the Court, although the Practice Note requires defamation proceedings to be conducted in the Sydney Registry. I made orders for the return of these documents.
Since that time these proceedings have been before the defamation list judges many times. While some of these applications have related to pleadings issue, the principal focus seems to have been continuing complaints from both sides about the issuing of subpoenae, the contempt of court proceedings and assertions of an uncertain but clearly hostile nature in the solicitors' correspondence which is attached to a series of affidavits. I can readily understand why, given this history, these proceedings were set down for hearing while there were outstanding issues, but regrettably the outstanding issues were matters of some importance, as was the question of expert evidence.
This brings me to the current form of the pleadings. At all relevant times, whether pleaded satisfactorily or not, the plaintiff has relied upon two publications, namely two comparatively short emails dated 21 and 24 September 2012. The imputations pleaded in the first publication 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 complained of 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) (i) 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) (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);OR(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 in relation to the second publication 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 defendants have pleaded defences of justification, contextual justification and a "Hore-Lacey Plea".
The contextual imputations pleaded in the first defendant's defence filed on 12 July 2013) to arise from each of the publications are as follows:
(a) The plaintiff falsely accused the first defendant of being a fraudster.
(b) The plaintiff falsely accused the first defendant of being corrupt.
(c) The plaintiff falsely accused the first defendant, while being IAN treasurer, of having conspired with Amit Kalra to defraud IAN.
(d) The plaintiff falsely accused the first defendant of misusing his position as IAN treasurer to dishonestly obtain for himself funds from sponsors of an IAN Independence Day function by deception, namely by giving false promises to promote their business.
(e) The plaintiff falsely accused the first defendant of, while IAN treasurer, fraudulently misappropriating money that he had obtained from sponsors of an Independence Day function on IAN's behalf.
(f) The plaintiff falsely accused the first defendant of, while IAN treasurer, having induced sponsors of an IAN Independence Day function by false promises to promote their business, to provide funds ostensibly to IAN, but which he intended to and did apply to his own use.
(g) The plaintiff falsely accused the first defendant of having conspired with Mr Amit Kalra to sack a committee member of IAN in order to prevent that member from standing in the way of their engaging in continued corrupt conduct.
(h) The plaintiff falsely accused the first defendant of having together with Amit Kalra sacked a committee member of IAN in order to make easy their continuing in corrupt conduct.
(i) The plaintiff falsely accused the first defendant of having, while IAN treasurer, misappropriated cash which he had collected from members for tickets to an IAN function.
(j) The plaintiff made a cowardly attack on the first defendant by making grave allegations of misconduct against the first defendant to members of the first defendant's Indian community while hiding his own identity.
(k) The plaintiff made a malicious attack on the first defendant.
(l) The plaintiff is a person with a malicious character.
(m) The plaintiff, being Indian, by falsely attacking the first defendant, acted in a way calculated to cause suspicion and division within the Indian community.
There are some differences in the spelling of the names in the imputations set out above, which I assume is as a result of translation issues. Leaving aside the difficulties of pleading the same set of contextual imputations for two publications, these differ from the contextual imputations pleaded by the second defendant in his defence (filed on 27 September 2013) which are as follows:
(a) The plaintiff sent a hoax e-mail to the members of IAN and other persons in the Newcastle Indian community about the first defendant, accusing him of misconduct.
(b) The plaintiff sent a hoax e-mail to the members of IAN and other persons in the Newcastle Indian community about the first defendant.
(c) The plaintiff sent out a malicious and defamatory e-mail about the first defendant under a false name.
(d) The plaintiff acted in a cowardly manner in sending out an e-mail attacking the first defendant under a false name.
The roles of the case managing judge and the trial judge are different, and indeed there is a tension between them. The case managing judge is concerned to ensure cases are ready for hearing, and as such may take a proactive approach: Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821. This may include pointing out pleadings or limitation problems, checking that a defendant has been served or ensuring that arguments about pleadings have been raised. The case managing judge's role is to ensure that the trial is ready for hearing.
The judge hearing the application enjoys no such case management powers, for the reasons explained by the Queensland Court of Appeal in Bidner v Queensland [2000] QCA 368. A party in litigation may be keeping a pleading or other error made by an opponent as a trump card to play at the trial, or may have deliberately constructed a case in a particular fashion. A trial judge who queries pleadings or complains about poorly conducted proceedings runs the risk of complaints of apprehended bias. I preface my comments on the pleadings on the basis that I would never have raised, or have been able to raise, these issues if I were still the trial judge.
Without seeking to prejudge the issue, there does seem to be a degree of similarity or overlap between these contextual imputations, as well as a degree of similarity with the plaintiff's imputations, in circumstances where it may have been desirable to determine these issues on an interlocutory level rather than in the time constraints of a trial. Additionally, the same set of contextual imputations is pleaded for both publications. Other than in Burrows v Knightley circumstances (Burrows v Knightley & Nationwide News Pty Ltd (1987) 10 NSWLR 651) (the basis for which must be specifically pleaded) a plaintiff may not plead one set of imputations for a series of publications, and it is novel for a defendant to do so. Further confusion is added because the defendants have not (unlike the plaintiffs) identified the passages of the respective matters complained of which give rise to the contextual imputations. In addition, the Hore-Lacy imputations are not identified.
The particulars of truth suffer from the following deficiencies:
(a) The defendants do not identify those particulars relied upon for each of the imputations or contextual imputations, but set out a general narrative in discursive form identical in both pleadings, although different imputations are conveyed about each defendant. I am unaware whether the latest set of particulars addresses this issue.
(b) There is little factual material contained in the particulars of justification in the defence. Almost half of those particulars (see (vii) - (xv)) consists of claims that the plaintiff sent an email on 21 August 2012 (called "the attacking email"), to which the first defendant had to send "the refuting email" ((xvi) and following). Despite having different contextual imputations, the second defendant, in a "cut and paste" arrangement, repeats the same generalised particulars.
(c) In the answers to particulars which I ruled upon on 12 June 2014, the defendants have answered most of the plaintiff's requests for particulars concerning the particulars of justification by saying these requests are not proper, or are matters of evidence. That is an unsatisfactory approach to the task of providing particulars in defamation proceedings, where failure to provide adequate particulars has, in jury proceedings, resulted in the aborting of the trial. Mr Tobin QC assures me that these particulars have now been provided and that they are adequate, but Mr Dibb is simply not in a position to do so.
It is unclear from the particulars of justification appended to the defence what the nature and extent of the evidence at trial will be. An affidavit of Dr Allan Watt, a digital forensics expert, suggests that there will be forensic evidence of some degree of complexity in relation to "the attacking email". This evidence appears to relate to the cross-claim, but the central role of "the attacking email" in the defences of justification and contextual truth is clear from the particulars of justification in the defence, as is set out above. I have been provided with a joint report from the experts, but the interaction between the expert evidence and the particulars of justification remains unexplained.
The cross-claim
On 12 July 2013 the first defendant filed a cross-claim in relation to "the attacking email" of 21 August 2012. The plaintiff has filed a defence denying publication. No substantive defence is pleaded.
The imputations pleaded in the cross-claims are as follows:
(a) The cross-claimant is a fraudster (entire MCO, 6)
(b) The cross-claimant being IAN treasurer conspired with Amit Kalra to defraud the IAN (entire MCO, 6 - 9, 13 - 15)
(c) The cross-claimant together with Amit Kalra was guilty of corrupt and fraudulent conduct in that they misused IAN resources and funds to benefit their own needs (entire MCO, 6 - 8)
(d) The cross-claimant, misusing his position as IAN treasurer, dishonestly obtained for himself funds from sponsors of an IAN Independence Day function by deception, namely by giving false promises to promote their business (entire MCO, 6, 9 - 12, 31)
(e) The cross-claimant, while IAN treasurer, fraudulently misappropriated money which he had obtained from sponsors of an Independence Day function of the IAN's behalf (entire MCO, 6, 9 - 11, 31)
(f) The cross-claimant, as IAN treasurer, induced sponsors of an IAN Independence Day function, by false promises to promote their business, to provide funds ostensibly to IAN, but which he intended to and did apply to his own use (entire MCO, 9 - 12)
(g) The cross-claimant misused his position as IAN treasurer in that he collected funds from sponsors of an Independence Day function based on false promises to promote their business (entire MCO, 9, 10)
(h) The cross-claimant misused his position as an IAN treasurer by collecting funds from sponsors of an Independence Day function for which he did not account to IAN or the sponsors (entire MCO, 9 - 11)
(i) The cross-claimant had conspired with Mr Amit Kalra to sack a committee member of IAN in order to prevent that member from standing in the way of their engaging in continued corrupt conduct (entire MCO, 6 - 7, 13 - 15)
(j) The cross-claimant together with Mr Amit Kalra had sacked a committee member of IAN in order to make easy their continuing in corrupt conduct (entire MCO, 6 - 7, 13 - 15) [Note: this imputation is wrongly labelled (i) in the list of imputations].
(k) The cross-claimant while IAN treasurer misappropriated cash which he had collected from members for tickets to an IAN function (entire MCO, 6, 9, 19 - 20). [Note: this imputation is wrongly labelled as (j) in the list of imputations].
(l) The cross-claimant together with Mr Amit Kalra had misused public funds (entire MCO, lines 6 - 8, 27 - 28).
In addition to the undesirability of assertions that imputations arise from the whole of the matter complained of and the numbering errors for the last four imputations, they have not been the subject of rulings on form or capacity which, given their similarity, may have been an advisable pre-trial step. The particulars of aggravated damages include extensive particulars of malice: cf s 46(3)(b) Defamation Act 2005 (NSW).
The parties' correspondence with the court
The combative approach that the parties have taken to the litigation has resulted in extensive, and at times intemperate, correspondence being exchanged between the parties. This file has expanded from the usual court file of pleadings to seven large volumes of correspondence, court documents, affidavits, documents tendered on applications, judgments and miscellaneous material, such as the plaintiff's complaint to the Hunter New England Health District concerning unauthorised access to his medical health records and applications by both parties in relation to the many subpoenae issued both in this court and the District Court at Newcastle.
It is unclear how much of this material is to be put before the court. I asked Mr Dibb about whether the Hunter New England Health District documentation was likely to be relied upon. He indicated that he was aware of this issue, and that it could well be tendered, but that he was not yet in a position to say.
The nature and extent of these documents are of relevance only to one issue: the length of the trial. The plaintiff's failure to file adequate outlines of evidence means that the relevance of this documentation, and its capacity to impinge upon the trial's length, are unknown.
The plaintiff's part-heard application to vacate the hearing date
Mr Dibb has not sought to rely upon his client's part-heard application to vacate the hearing date. He did not ask me to dismiss the notice of motion; I assume he wishes to preserve his position, in relation to the other orders sought, in the event that the particulars and answers to interrogatories are insufficient.
Mr Tobin QC informed me that Mr Potter had indicated that the application to vacate would not be pressed in relation to the outstanding proceedings in the Supreme Court for contempt of court before the Prothonotary or, indeed, at all. However, the basis of the application in the Notice of Motion, as I understood it, was that it related to the readiness of these proceedings for hearing. The application to vacate appears to remain on foot, at least insofar as the particulars and interrogatories are concerned. Mr Tobin QC did not raise this issue of what was to happen to the notice of motion (although, given his reference to "the case management axe", I assume he expected it to be stood over to August `3), and I was reluctant to raise it with Mr Dibb in those circumstances. This is one of the difficulties a trial judge has when confronted with cases that are not ready for hearing, where a proactive role in case management really is not appropriate.
Mr Dibb has not yet read the answers to particulars or interrogatories. He does not know which witnesses he will be calling. He needs another week in order to get on top of the matter and interview the witnesses so that he can comply with the orders I made on 1 July 2014. This means he cannot tell me how long the case will take. These are confident views for a counsel who has come into the case for less than a day, and who has not read (or even found) the relevant documents for the application before the court on 5 August. The solicitor with conduct of the matter, who I am informed has been on holidays, is not in court to assist. Mr Tobin QC has been of very great assistance, but his assistance unfortunately comes too late.
Adjournments of hearings and the overriding purpose in the Civil Procedure Act 2005 (NSW)
Section 56 Civil Procedure Act 2005 (NSW) provides:
"56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person:
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
Note: Examples of persons who may have a relevant interest are insurers and persons who fund litigation."
The role of case management is set out in s 57. The checklist of matters for a court to consider, in the dictates of justice, is set out in s 58 which provides:
"58 Court to follow dictates of justice
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
Mr Tobin QC and Mr Dibb both assert that injustice will occur if these proceedings are not heard (s 58(2)(b)(vi)). Neither party referred to the other matters in sub-sections 58(2)(b)(i) - (v) in response to the concerns I expressed. In my view, these concerns are as follows:
(a) As to (i), both parties agree that the expert evidence is complex, and additionally there are unresolved issues in relation to the pleadings and evidence which will render the hearing of the proceedings difficult.
(b) As to (ii), while expedition is desirable, undue haste is not. These proceedings should not have been set down while there were unresolved issues about particulars, interrogatories, expert evidence, witnesses and the form and content of the pleadings.
(c) As to (iii), the lack of expedition with which these proceedings have been approached by both parties since the hearing date was allocated is a significant problem.
(d) As to (iv), neither party has fulfilled his or their duties under s 56(3). It should not be left to the trial judge to hear a series of interlocutory applications of the kind that should be heard in the defamation list. To do so invites problems of the kind that have led appellate courts to criticise judges at first instance: Bidner v Queensland, supra.
(e) As to (v), both parties should have dealt with these issues in the defamation list rather than bringing such applications before the trial judge.
(f) As to (vi), I acknowledge the desirability of the hearing proceeding. However, the intangible prejudice that may arise to either party from a hasty consideration of the very serious allegations made by both parties should also be given weight.
Sections 56 and 58 contemplate that proceedings regularly fixed for hearing should commence on the hearing date and proceed until they are finished. The evils of part-heard trials are well-known. However, the court has a specific power under s 66 to adjourn the hearing of a matter in appropriate circumstances, providing the discretionary power is exercised in accordance with the overriding purpose of s 56 and in accordance with the dictates of justice in s 68.
While these proceedings are a good example of the dangers of setting proceedings down when there are outstanding issues and arguments, the parties' conduct of the proceedings, rather than case management by the court, is responsible for this. The judges case managing the proceedings did all they could, but all they could do was to respond to the parties' applications. The 19 June motion was specially listed by me the following day, in order to avert the hearing date being compromised, but until the motion was listed, there was nothing I could do in my capacity as trial judge. The position of the judge in the common law system ( as to which see Lord Thomas, Lord Chief Justice of England and Wales, "Reshaping Justice", 3 March 2014), although somewhat strengthened by the provisions of ss 56 - 58, remains responsive rather than proactive. The responsibility for adequate preparation of proceedings lies with the parties, not the court.
However, the need for "flexibility of procedural rules" in complex litigation, including the use of "novel procedures" was considered appropriate by Kirby J when reviewing the case management which had occurred in Bass v Permanent Trustee, supra (at 367). Kirby J noted that, to those "brought up in the common law system of pleading", these new procedures appeared "a trifle untidy and potentially risky" (at 367 - 8), but that the new and flexible procedures increasingly a part of modern litigation meant that courts should take a constructive approach to case management, notwithstanding the apparent shift from common law principles, in the interests of ensuring that justice really is done between the parties. These remarks reinforce the importance of case management principles in litigation, even if that includes taking the novel step of vacating a hearing date where the trial judge, if not the parties, is of the view that the proceedings are not ready for hearing.
Taking all of the above matters into account, I am satisfied that the exceptional circumstances required for a court to adjourn proceedings, notwithstanding the views of the parties, have been made out in the present circumstances. Although Mr Tobin QC and Mr Dibb seek a further opportunity for compliance and ask the court to stand these proceedings over once more, in the hope that the parties will be ready on the next occasion, this would simply result in the incurring of further costs by both parties. The case should have been ready when it was set down, or when the answers were provided in April, or when plaintiff filed his motion on 19 June and the matter could have been dealt with in chambers, or when the matter had to be before me on 1 July. It is better to cut the Gordian knot now than to give a further date so close to the hearing to see if the case is ready. The risk is that starting proceedings beset with so many uncertainties is too great, in circumstances where the prejudice pointed to by Mr Tobin QC is essentially the issue of costs.
As the application to vacate has effectively been made by the court, I accept the submissions of the parties that the costs thrown away should be reserved. These proceedings will be listed for directions in the defamation list, and in my view should be referred to the List Judge for a fresh hearing date only where the legal representatives for both parties provide a statement to the court confirming that these proceedings are ready for hearing, and that no outstanding interlocutory steps remain. It is to be hoped that any interlocutory arguments concerning, for example, the Hore-Lacey pleading, the contextual imputations or cross-claim imputations, should be considered prior to the trial. If not, challenges to these pleadings at the trial, if of the kind that should have been dealt with in the defamation list, may not be well received by the trial judge (although I express no concluded view on this matter).
I do not consider myself part-heard in any application in these proceedings apart from the costs in relation to the interrogatories and particulars arguments. However, there is no reason why that application, for which there are written submissions, could not be heard by another judge. I do not consider myself part-heard for the hearing, or to have any continuing role as trial judge, after handing down this judgment.
Orders
(1) Hearing date of 18 August 2014 vacated.
(2) Gibson DCJ not part heard.
(3) Plaintiff's notice of motion filed 19 June 2014 dismissed.
(4) Costs of and incidental to the plaintiff's notice of motion of 19 June 2014 and the vacating of the hearing date reserved.
(5) These proceedings listed for further directions in the Defamation List on Friday 29 August 2014.
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Decision last updated: 11 December 2014
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