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Mallegowda v Sood (No 2)

Mallegowda v Sood (No 2)

Case [2014] NSWDC 216 6 August 2014

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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 1821
Texts Cited: -
Category: Interlocutory applications
Parties: Plaintiff: Shashikanth Mallegowda
First Defendant: Amit Sood
Second Defendant: Naveen Lingaiah
Representation: 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…

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 (No 2)

Details

AGLC: Mallegowda v Sood (No 2) [2014] NSWDC 216
Case: [2014] NSWDC 216
Decision Date: 06 August 2014

CaseChat Overview and Summary

The case of Mallegowda v Sood (No 2) involved a defamation dispute between the plaintiff and the defendants. The matter was set for a lengthy hearing of 5 days, which included both the plaintiff's claim and the defendants' cross-claim. The plaintiff applied to vacate the hearing date due to several interlocutory issues that required resolution, including the defendants' failure to answer interrogatories and their late service of an expert report. Additionally, both parties had not served witness lists and statements, which was a significant issue given the potential number of witnesses. The case came before the court to address these case management concerns, and the primary question was whether the proceedings were ready for hearing and whether the time estimate was accurate.

The court considered the trial judge's role in determining case management issues and the necessity of resolving outstanding pleadings, rulings, and the need for an expert conclave before proceeding to a full hearing. The plaintiff argued that the interlocutory steps had not been adequately addressed and that the defendants' failures had impeded the progress of the case. The court found that further rulings and an expert conclave order were necessary, and that the proceedings were not ready for a hearing as scheduled. Consequently, the hearing date was vacated, and the matter was listed for further directions.

The court dismissed the plaintiff's notice of motion and reserved costs of and incidental to the motion and the vacating of the hearing date. The proceedings were rescheduled for further directions, allowing the parties to address the outstanding issues and ensuring that the trial could proceed in an orderly manner. The final orders included vacating the original hearing date, dismissing the plaintiff's notice of motion, reserving costs, and listing the matter for further directions in the Defamation List.

Orders

Orders of the court

(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.

Background

Background to the litigation

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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 (No 2) [2014] NSWDC 216

Most Recent Citation

Mallegowda v Sood (No 3) [2015] NSWDC 14

Cases citing this decision · 5 of 5 shown

Mallegowda v Sood (No. 7)
[2019] NSWDC 252 Para 41

…ts. The first hearing date (18 August 2014) had to be vacated because of late service of an expert report by the defendants: Mallegowda v Sood (No 2) [2014] NSWDC 216. There were also case management delays, including amendments to the defence to plead contextual justification and Hore-Lacy imputations ( David Syme…
Mallegowda v Sood (No. 6)
[2018] NSWDC 281 Para 26

…revision of the length of the hearing in view of the large number of witnesses, it was necessary to vacate the hearing date: Mallegowda v Sood (No 2) [2014] NSWDC 216. As I was to be the trial judge, I continued to case manage the proceedings, making a series of orders for service of witness statements and a joint…
Mallegowda v Sood (No. 5)
[2017] NSWDC 470 Para 2

…m SC DCJ, 2 October 2013) and I have dealt with in my capacity as trial judge for first hearing which had to be adjourned ( Mallegowda v Sood (No. 2) [2014] NSWDC 216; Mallegowda v Sood (No. 3) [2015] NSWDC 14); and in relation to the current part heard hearing ( Mallegowda v Sood (No. 4) [2016] NSWDC 88). I also h…
Mallegowda v Sood (No. 4)
[2016] NSWDC 88 Para 2

…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

…trial to commence on 18 August 2014. The circumstances in which that hearing date was adjourned are set out in my judgment: Mallegowda v Sood (No. 2) [2014] NSWDC 216. Following the vacation of the hearing date, I made a series of timetables to permit the parties to amend their pleadings to take into account, inter…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

Sporting Shooters Association of Australia v Judge (No 2)
[2013] NSWSC 1821 Para 1

…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…
Mallegowda v Sood
[2013] NSWDC 98 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…
Buswell v Carles
[2012] WASC 509 Para 1

…ng 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…
Bass v TCN Channel Nine Pty Ltd
[2006] NSWCA 343 Para 1

…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…
Scott v Nationwide News Pty Ltd
[2005] NSWSC 169 Para 1

…ndants 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 the…
Bidner v State of Queensland
[2000] QCA 368 Para 1

…dge 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 co…
Bass v Permanent Trustee Co Ltd
[1999] HCA 9 Para 1

…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 deci…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
56, 57, 58, 66, 68 6 mentions (from Para 1)
Defamation Act 2005 (TAS)
46(3)(b) 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
15.4(1) 2 mentions (from Para 1)
Trade Practices Act 1974 (Cth)
1 mention (from Para 1)

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 1821
Texts Cited:	-
Category:	Interlocutory applications
Parties:	Plaintiff: Shashikanth Mallegowda First Defendant: Amit Sood Second Defendant: Naveen Lingaiah
Representation:	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