Mallegowda v Sood (No 3)

[2015] NSWDC 14

District Court

New South Wales

Medium Neutral Citation:	Mallegowda v Sood (No. 3) [2015] NSWDC 14
Hearing dates:	29 January 2015
Decision date:	29 January 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) By reason of the defendants’ coming from Brisbane and Port Macquarie, they agree to the procedure of my making orders in open court and providing a written decision by email later today. (2) The application of the plaintiff to strike out contextual imputation (i) on the basis that it does not differ in substance from imputations pleaded by the plaintiff (notably imputations (d) and (e)) is granted. (3) The plaintiff’s application to plead back contextual imputations (j), (k) and (m) from the first defendant’s defence and contextual imputations (a) to (d) from the second defendant’s defence is granted. (4) Note the first defendant has abandoned contextual imputations (a) to (h) and (l) in his solicitor’s letter of 25 November 2014 (see Exhibit A). (5) The plaintiff to file a Fourth Further Amended Statement of Claim incorporating the above amendments in 7 days. If this document is not filed within 7 days, no further amended pleadings may be filed. (6) Note the first defendant has no issues to raise before the court save to continue his objections in relation to the inclusion of Dr Clarke in the experts’ conclave, which, as previously noted, is a matter for the trial judge. (7) Note that the plaintiff, who is present in court, through his counsel Mr Rasmussen confirms that there are no applications to adjourn the specially fixed trial under the Mental Health Act. (8) Note that no claim for injury to health has been pleaded or particularised and accordingly may not be raised at the trial. (9) The first defendant’s oral application to issue a subpoena to the Hunter New England Local Health District for information about the plaintiff’s mental health is refused. (10) The defendants’ application for security for costs to be provided by the plaintiff in the sum of $584,418 is dismissed. (11) The second defendant’s application for the plaintiff to provide information about his mental health status is rejected. (12) The second defendant’s application for the plaintiff’s subpoena to the RMS to be set aside is refused. (13) The application by the second defendant to strike out the opinion of Dr Clarke is a matter for the trial judge. (14) An order refusing the second defendant’s application for a further report from Dr Allan Watt and Mr Peter Chapman in relation to “issues raised by the second defendant’s previous solicitors regarding the draft further joint expert report of 22 December 2014”. (15) Defer the making of an order for stay of these orders pending the filing and serving of the defendants’ application for leave to appeal, such application to be filed in 14 days. (16) Direct the plaintiff to issue subpoenae to all three experts (Dr Watt, Dr Clarke and Mr Chapman) to attend the trial to give evidence, but that the issue of who should pay the expert’s costs, and such other matters as the trial judge may deem appropriate (such as the selection of the date and the manner of giving evidence, including evidence by Skype through 4G network) is a matter for the trial judge. (17) The defendants are to pay the plaintiff’s costs of the plaintiff’s application to plead back the defendants’ contextual imputations and to strike out the first defendant’s contextual imputation (i), as well as the costs of the 10 applications set out in the second defendant’s notice of motion (Exhibit 4) and the first defendant’s oral applications. (18) Liberty to restore on 2 days’ notice to the Defamation List in relation to further interlocutory matters; any trial issues are to be raised with the trial judge in the relevant Newcastle sittings. (19) Any application to adjourn the trial should be made to the trial judge. (20) Any application to transfer these proceedings to the Supreme Court for “better case management” should be made to the Supreme Court. (21) All documents to be served on the defendants may be served on him to their current email addresses.
Catchwords:	TORT - defamation - application to plead back the defendants' contextual imputations - conflicting authority as to whether a plaintiff should be entitled to plead back contextual imputations - application granted - defendants' application for security for costs - application refused as made six weeks before commencement of the hearing - defendants' application for plaintiff to be examined by a psychiatrist refused - remaining applications referred to trial judge
Legislation Cited:	Defamation Act 2005 (NSW), s 26 Uniform Civil Procedure Rules 2004 (NSW), rr 28.2 and 42.21
Cases Cited:	Ahmed v Nationwide News Pty Ltd [2010] NSWDC 268 Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 Corby v Channel Seven Pty Ltd [2008] NSWSC 245 Creighton v Nationwide News Pty Ltd (No 2) (2010) 11 DCLR (NSW) 271 Cush v Dillon; Boland v Dillon [2012] NSWCA 364 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 Kennedy v Nine Network Australia Pty Ltd [2008] QSC 134 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852; [2011] NSWCA 174 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (No. 2) [2014] NSWDC 216 McGuirk v University of New South Wales [2010] NSWCA 104 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 307 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 7) (Court of Appeal, 5 April 1987, unreported) Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370 Waterhouse v Age Co Ltd [2012] NSWSC 9
Category:	Procedural and other rulings
Parties:	Plaintiff: Shashikanth Mallegowda First Defendant: Amit Sood Second Defendant: Naveen Lingaiah
Representation:	Counsel: Plaintiff: Mr R Rasmussen First Defendant: In person Second Defendant: In person Solicitors: Plaintiff: Vaikom Rajeev First Defendant: In person Second Defendant: In person
File Number(s):	2012/352080

Judgment

Background

1. These proceedings, consisting of a claim and cross-claim for defamation, are listed for hearing in the District Court at Newcastle commencing 16 March 2015 for three weeks, and were listed before me today to deal with the sole remaining interlocutory matter (pleading back contextual imputations).

2. The procedural history of these actions, which is extensive, is set out in more detail below. Although I determined an argument on imputations in June 2013 (Mallegowda v Sood [2013] NSWDC 98), the proceedings were case managed by the list judges in the Defamation List, from the commencement of proceedings (originally filed in Newcastle in December 2012) until the matter was set down for hearing. In June 2014, I was allocated the hearing of these proceedings, which were set down as a five to seven day 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 alia, the impact of recent decisions of the Supreme Court of New South Wales in relation to Hore-Lacy imputations (Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380), pleading back contextual imputations (Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 and to enable the first defendant to withdraw contextual imputations (a) to (h) and (l).

3. By 14 November 2014, all parties assured me that the proceedings were ready to take a fresh hearing date. Most of the lay witnesses came from Newcastle, and the relevant events had occurred in Newcastle, so the proceedings were, on the application of the parties, transferred to the Newcastle Registry, and given a hearing date in the sittings of 16 March 2015, as a 2.5 to 3 week hearing matter.

4. The issue of the plaintiff’s request to plead back the remaining contextual imputations was not dealt with in the 1 December 2014 Newcastle court directions hearing, as it was transferred to Sydney, to suit the convenience of the counsel concerned. Counsel provided the court with written submissions on this issue, and the matter was listed for today for the purpose of brief oral submissions to supplement the plaintiff’s application.

5. However, on 27 January 2015, the defendants wrote to the court, without providing a copy of their correspondence to the solicitors for the plaintiff, indicating that they were no longer legally represented, and seeking to raise a number of new issues. The defendants were advised by my associate to bring an application before the court today, and to ensure that copies of all relevant documents, including the correspondence previously provided to the court, were served on the plaintiff’s legal representatives.

6. The applications before me today are as follows:

1. The plaintiff’s application to plead back the defendants’ contextual imputations;

2. The 10 orders sought in the draft notice of motion handed up to the court during this morning; and

3. Further oral applications made by the defendants.

7. The parties agreed, given the large number of applications, that I should make orders in court and provide reasons for my determination by email later today or tomorrow, as both defendants had travelled considerable distances in order to be present in person at court.

8. By way of general explanation of the defendants’ change of circumstances, the first defendant advised the court that he and the second defendant could no longer afford to retain their legal advisers. He said that they had already paid in excess of $500,000 in legal costs (set out in the extract from the defendants’ solicitors’ “combined matter ledger”, which is at page 11 of Exhibit 3) and owe a further $100,000. Although this ledger refers to there being only a sum of $86,000 owing in terms of costs, a hand written note at the bottom states “Billed to date: $584,418.17” followed by a similar note “Payment received to date $498,410.64”. No memorandum of fees from counsel, or from the solicitors for the defendants, is provided.

9. As a memorandum of fees, the “combined matter ledger” is unsatisfactory. For example, it contains no GST information or summaries of how the very large sums which had been handwritten on to this document are made up. Nevertheless, I accept from the defendants that by reason of the very substantial fees they have already paid in these proceedings, they are unable to afford further legal advice.

10. I shall first deal with the plaintiff’s application. As there are written submissions in relation to the issue of pleading back the imputations, there is no reason why I cannot deal with that application, on the basis that there is very little that either side would wish to add in this regard.

11. The balance of the matters raised before me this morning, all of which Mr Rasmussen has had to deal with “on the run”, have been dealt with as best they can, given the lack of notice and the manner of presentation.

Pleading back the contextual imputations

12. 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:

1. The plaintiff is a false accuser (the entire matter but particularly paragraphs 1, 2, 3, 22, 24 and 25);

2. The plaintiff is dishonest (the entire matter complained of but specifically paragraphs 1, 2, 19, 20, 21, 22, 24, 25);

3. 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);

4. 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);

5. 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);

6. 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);

7. 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);

8. 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);

9. 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);

10. (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);

11. (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);

13. The imputations pleaded in relation to the second publication are as follows:

1. 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);

2. The plaintiff is a villain (the entire matter but specifically lines 19-22);

3. The plaintiff sent a slanderous email about Amit Sood (the entire matter but specifically lines 23-24);

4. 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).

14. The defendants pleaded defences of justification, contextual justification and a “Hore-Lacey Plea” (which is now abandoned).

15. The contextual imputations pleaded in the first defendant’s defence (filed on 12 July 2013) to arise from each of the publications are set out below. By letter dated 25 November 2014 (Exhibit A), the defendants’ former solicitor wrote to the plaintiff withdrawing a number of these contextual imputations. This letter is in the following terms:

“We refer to the above matter and to your letter dated 14 November 2014. We understand that the Plaintiff’s Counsel, Mr Rasmussen, is preparing submissions in relation to the Defendants’ Contextual Truth defences.

Having considered the issues raised in relation to the Defences, we are instructed to advise that:

1. The First Defendant does not press the contextual imputations pleaded in paragraph 7 of the Defence of the First Defendant, namely, A to H inclusive and L,

2. The First Defendant presses the contextual imputations pleaded in paragraph 7 of the Defence of the First Defendant, namely J, K, and M and

3. The Second Defendant maintains that each of the contextual imputations pleaded in the Defence of the Second Defendant arises and differs in substance from the Plaintiff’s imputations.”

16. The surviving contextual imputations for the first defendant have been underlined:

1. The plaintiff falsely accused the first defendant of being a fraudster. (Withdrawn)

2. The plaintiff falsely accused the first defendant of being corrupt. (Withdrawn)

3. The plaintiff falsely accused the first defendant, while being IAN treasurer, of having conspired with Amit Kalra to defraud IAN. (Withdrawn)

4. 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. (Withdrawn)

5. 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. (Withdrawn)

6. 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. (Withdrawn)

7. 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. (Withdrawn)

8. 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. (Withdrawn)

9. 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.

10. 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.

11. The plaintiff made a malicious attack on the first defendant.

12. The plaintiff is a person with a malicious character. (Withdrawn)

13. The plaintiff, being Indian, by falsely attacking the first defendant, acted in a way calculated to cause suspicion and division within the Indian community.

17. The second defendant’s contextual imputations are:

1. 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.

2. The plaintiff sent a hoax e-mail to the members of IAN and other persons in the Newcastle Indian community about the first defendant.

3. The plaintiff sent out a malicious and defamatory e-mail about the first defendant under a false name.

4. The plaintiff acted in a cowardly manner in sending out an e-mail attacking the first defendant under a false name.

18. In relation to the first defendant’s contextual imputations, the plaintiff seeks to strike out imputation (i), and plead back imputations (j), (k) and (m), and in relation to the second defendant’s contextual imputations, the plaintiff seeks to plead back imputations (a) to (d).

19. The application is made following a recent decision of McCallum J in Hall v TCN Channel Nine Pty Ltd, which reversed the practice of refusing such applications which came into place, following the decisions in Ahmed v Nationwide News Pty Ltd [2010] NSWDC 268 and Waterhouse v Age Co Ltd [2012] NSWSC 9: Hall v TCN Channel Nine Pty Ltd). As I noted in Creighton v Nationwide News Pty Ltd (No 2) (2010) 11 DCLR (NSW) 271 at [20], the practice of plaintiffs “pleading back” a defendant’s contextual imputation or imputations was common until the nature of the contextual justification defence was recast in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852; [2011] NSWCA 174.

20. Following Kermode, a s 26 defence could not be pleaded to a plaintiff’s imputations, and was restricted to those imputations which a defendant pleaded which were different in substance. This has, unfortunately, resulted in increasingly convoluted contextual justification imputations, as defendants searched to find “different” imputations to plead contextually. The problem was that a plaintiff would then seek leave to “plead back” these imputations, leaving the defendant without the benefit, if such an application was granted, of no separate imputations to ground a s 26 defence.

18. It was against this background that courts began to refuse plaintiffs leave to do so (see Ahmed v Nationwide News Pty Ltd and Waterhouse v Age Co Ltd, supra). The basis for the argument that the plaintiff could not plead these imputations back is that case management, or delay, principles, mean that the plaintiff has to get the imputations right the first time, as McCallum J notes in Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604, citing McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 307). In Waterhouse v Age Co Ltd, Nicholas J held that a plaintiff who failed to identify all the imputations had thereby disqualified himself from being able to rely upon any contextual imputation later pleaded by the defendant, no matter how short the delay or how obscure the contextual imputation, on the basis that the plaintiff had to get the imputations “right the first time, at risk of refusal to amend at a later time”: Waterhouse v The Age Pty Ltd, citing Giles JA in McMahon at [49]. Given the difficulties of pleading imputations, and the absence of judicial guidance as to how a plaintiff is to identify every imputation available, this was a counsel of perfection, as well as being inconsistent with the right of any party to amend particulars and pleadings generally.

19. These convoluted pleadings in turn caused complexities at the trial level, as Mr Rasmussen noted, referring to trials in which he had appeared. It did not resolve the problem caused to defendants by the watering down of the defence; it simply added to the burden of the trial judge in determining how the jury should be addressed and in determining, when assessing damages, how to take into account different findings by the jury as to the success or failure of the imputations in question.

20. In Hall v TCN Channel Nine Pty Ltd, handed down on 14 November 2014, McCallum J declined to follow this reasoning. While her Honour noted that it seemed “unsporting to pull the contextual truth rug from underneath the defendants’ feet” (at [35]), there was no property in an imputation, and the application to amend, if brought promptly, should be granted in accordance with accepted principles for the right to amend generally. To those observations I would add that the Court of Appeal’s reasoning in Kermode is responsible for this situation, and that the refusal of leave to amend on case management or delay principles is inconsistent and unfair, given the court’s acceptance of delay in amendment in other areas of defamation law (for example, permitting the plaintiffs to amend the Reply after a trial and two appeals, and seven years after publication, in Cush v Dillon; Boland v Dillon [2012] NSWCA 364).

21. In his first set of written submissions, dated 29 November 2014, Mr Connell submitted that the plaintiff’s delay is a significant reason for refusing leave.

22. Mr Rasmussen submits, in reply, that the application was made at the first opportunity after McCallum J’s judgment, as the date of Mr Connell’s submissions (only two weeks after her Honour’s decision was handed down) only too clearly demonstrates.

23. In his second set of submissions, Mr Connell submits that, while the pleading back of the imputations was not an abuse of process in Hall v Nationwide News Pty Ltd, it is an abuse of process here, because the plaintiff “is expected to take great care in formulating his or her imputations” and that any effort to force a defendant to “abandon” a defence is “not a proper forensic purpose”.

24. The first submission is an argument in sophistry, in that the exercise of formulating imputations is an imprecise art as well as a restatement of the counsel of perfection required for plaintiffs pleading imputations. Such a submission might have some merit if plaintiffs and defendants had to formulate their imputations in the same application, but this has never been the case. The second submission is misconceived, as the defendant is not forced to “abandon” the partial justification defence, but to rely upon the findings of fact in relation to those imputations proved to be true in reducing damages, rather than in an award in favour of the defendant based on s 26.

25. I agree with the general submission Mr Connell makes, that the reading down of the s 26 contextual defence is an unfair result, and not one generally foreseen when the uniform legislation was enacted. However, this is a matter for legislative reform, and not for denial of a right to amend on the artificial basis of the need for plaintiffs to provide perfect pleadings, that would otherwise have been granted.

26. No question of prejudice arises, as the defendants are prepared to plead justification to these imputations. Additionally, the issues of law at the trial, both on liability and damages, will be simplified.

27. The plaintiff is accordingly granted leave to amend. However, the revised statement of claim must be served promptly, given the imminence of the trial date, and I have accordingly made a self-executing order.

28. The plaintiff also sought to strike out one of the contextual imputations, namely imputation (i), on the basis that it did not differ in substance from imputations (d) and (e), the wording for which is almost identical. I am satisfied that imputation (i) and imputation (d) convey the same sting, in almost identical words, and accordingly contextual imputation (i) is struck out.

The defendants’ applications

32. These proceedings were listed for the purpose of determining the plaintiff’s application to plead back the contextual imputations and strike out imputation (i), an application which took approximately a quarter of an hour. The remainder of the time was spent in dealing with the applications brought by the defendants.

33. Some of these applications were made orally; others were made in accordance with a draft notice of motion handed up in court by the second defendant, which was served on the plaintiff’s solicitor yesterday. In this application the second defendant sought the following orders:

1. That additional time be granted to defend the issue of contextual truth in the second defendant’s defence due to being self represented from 23rd of January 2015;

2. That leave be granted to the second defendant to file subpoenas;

3. That the costs awarded till date to the defendants be paid forthwith;

4. That security of [sic] costs, be provided by plaintiff to the court;

5. That the plaintiff inform the court on what basis his proceedings in case number 201400111009 listed for hearing at Newcastle Local Court on the 19th of January 2015 was adjourned;

6. That the court be provided with the mental health status of the plaintiff prior to and till date of this matter;

7. That an order be made to strike out the opinions of the third expert Dr. Roger Clarke in the draft Further Joint expert report of 22nd December 2015 [sic];

8. That an order be made to the other two IT Forensic Experts, namely Dr Allan Watt and Mr Peter Chapman to finalise the Joint expert report, further to issue raised by the second defendant’s previous solicitors regarding the draft Further Joint expert report of 22nd December 2015 [sic];

9. That an order be made to strike out the subpoena filed by the plaintiff to Roads and Maritime Services (RMS) on 19th of January 2015 at 7.11PM;

10. Such other orders that the court sees fit.

34. Although the first defendant initially told the court he did not seek any orders in the second defendant’s draft motion, he in fact joined in many of these applications. For this reason, the costs order set out below should apply to him as well.

35. The applications brought by the defendant fall into a series of broad categories as set out below.

Applications in relation to the mental health of the plaintiff

36. The defendants seek orders:

1. That the court “be provided with the Mental health status of the plaintiff prior to and till [sic] date of this matter” and that the court make an order for the plaintiff to be examined by a psychiatrist;

2. That the plaintiff explain the basis upon which proceedings in the Local Court against a third party were adjourned on 19 January 2015.

3. Leave to issue a subpoena to the Hunter Valley health services for all the plaintiff’s medical records, along the same lines as the subpoena they issued for these records in 2013 (see [2013] NSWDC 98 at [37] – [39]).

37. The second defendant submitted that the plaintiff’s “insanity” was the reason that he had brought the case, and that this was relevant to the proceedings because it was relevant to his credibility, as well as to his capacity to bring these proceedings. He sought leave to issue subpoenae for the plaintiff’s medical records over a number of years.

38. The only decision of which I am aware where a court made an order for a party to be examined by a psychiatrist is Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 7) (Court of Appeal, 5 April 1987, unreported). Dr Rajski was suffering from health problems while acting for himself and was seeking an adjournment. He refused to attend the appointment and there was little the court could do about this. The case turns on its own very convoluted set of facts, and is of little assistance, other than to point out the perils of such a course. There is no question of the plaintiff seeking any adjournment or suffering from health problems here, and he has given undertakings to the court through his legal representative that no claim for injury to health (which I note is neither pleaded nor particularised) will be brought.

39. Many of the plaintiffs who come before this court, particularly in personal injury actions, have suffered psychiatric illness in relation to the circumstances of their claim, or have prior histories of mental illness. They are as entitled to justice as anyone else. Where the level of mental illness requires the appointment of a tutor for the purpose of conducting the litigation, a tutor may be appointed, but one party should not be able to ask the court to order that another party undergo mental examination, in a report prepared for the court, for the purpose of obtaining some kind of certificate of sanity. There is no suggestion that the plaintiff is mentally unfit to instruct his legal team, or otherwise unable to participate in the conduct of these proceedings. I am not prepared to accept statements from the defendants that the plaintiff is “insane” in their opinion, or that his state of sanity requires examination by the court. Nor am I prepared to grant leave for the defendants to issue subpoenae for medical records in support of such a claim.

40. Even if I had the power to make the orders the defendants seek (which I doubt: McGuirk v University of New South Wales [2010] NSWCA 104), it would be a gross misuse of psychiatric evidence to deny a party a right to a remedy for a wrong, on the basis that the party lacked the credibility to be able to bring a claim because of his mental state. The potential for misuse of psychiatric opinions in government and political matters is well recognised in the United States where, notwithstanding First Amendment rights of freedom of speech, the “Goldwater Rule” (section 7.3 of the American Psychiatric Association Rules) forbids medical practitioners from commenting on politicians’ mental states unless they have been retained to express such an opinion and have the patient’s consent. Laypersons in courts, including judges as well as litigants, should, in my view, similarly refrain from expressing such views.

41. These applications are dismissed.

Application for special costs orders and security for costs

42. The defendants sought orders that costs orders already made in their favour should be assessed forthwith. They were, however, unable to identify those costs orders with precision, and I note that there are costs orders made against them as well. Upon my pointing out that these costs would have to be not only the subject of identification but, if the defendants were successful, of assessment by a costs assessor, the defendants indicated that they sought an order for security for costs.

43. Rule 42.21 Uniform Civil Procedure Rules 2004 (NSW) (“UCPR”) provides:

“42.21 Security for costs

(1) If, in any proceedings, it appears to the court on the application of a defendant:

(a) that a plaintiff is ordinarily resident outside Australia, or

(b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or

(c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or

(d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or

(e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or

(f) that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings,

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given.

(1A) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant:

(a) the prospects of success or merits of the proceedings,

(b) the genuineness of the proceedings,

(c) the impecuniosity of the plaintiff,

(d) whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,

(e) whether the plaintiff is effectively in the position of a defendant,

(f) whether an order for security for costs would stifle the proceedings,

(g) whether the proceedings involves a matter of public importance,

(h) whether there has been an admission or payment in court,

(i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,

(j) the costs of the proceedings,

(k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,

(l) the timing of the application for security for costs,

(m) whether an order for costs made against the plaintiff would be enforceable within Australia,

(n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.

(1B) If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.

(2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.

(3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.

(4) This rule does not affect the provisions of any Act under which the court may require security for costs to be given.”

44. The circumstances in which an order for security for costs will be made against an individual are limited to those set out in the rules. Such an application may be made where the plaintiff resides outside the jurisdiction (Kennedy v Nine Network Australia Pty Ltd [2008] QSC 134), but that is not the case here.

45. Even assuming there were grounds for the making of an order for security for costs against the plaintiff (which I do not accept), the same discretionary factors which arose in Corby v Channel Seven Pty Ltd [2008] NSWSC 245 would apply here. McCallum J noted at [36] – [37]:

“[36] The most compelling discretionary consideration against granting the orders sought is the delay in bringing the application. I do not accept the submission put by Mr Littlemore that I should conclude that the application is motivated, not by fear about the costs position but by a desire on the part of the defendants opportunistically to exploit the plaintiff’s personal situation of spending time in Bali to support her sister. Nonetheless, there is plain prejudice to the plaintiff as a result of the timing of this application. The proceedings have been listed for hearing since early October last year. As noted above, the plaintiff’s Counsel have spent weeks preparing for the hearing, as was appropriate having regard to the breadth of material referred to in support of the defendants’ defences. During that time, the plaintiff had to make an application to the Duty Judge seeking orders to compel the defendants to comply with the timetable for the preparation of the matter.

[37] The unfairness of making an order for security for costs at such a late stage is demonstrable. If the order did in fact prevent the plaintiff from prosecuting her claim, it would not only preclude her from prosecuting an apparently arguable claim, it would also preclude her from ever recovering the legal costs she has already incurred.”

46. Similarly, in these proceedings, where the hearing date is six weeks away, the plaintiff would be greatly disadvantaged.

47. An additional problem is that what the defendants really seek is not security for costs, but an order that the plaintiff pay the sum of $500,000 - $600,000, being their past solicitor and client costs in full to date (the hearing will cost another $250,000, but they have decided not to retain solicitors or counsel for the hearing in any event). The submission that the security is required because otherwise “the defendants cannot defend at the trial” is, therefore, disingenuous.

48. The applications for costs payable forthwith (although never developed, in that these costs were never identified) and for security for costs are dismissed.

Applications in relation to subpoenae

49. As is set out above, I have refused the defendants leave to subpoena the plaintiff’s medical records.

50. The defendants also sought to set aside the subpoena the plaintiff proposes to serve on his employer for documents identified in pages 10 – 11 of the Joint Experts’ Report of 22 December 2014. The defendants submit that this is a fishing expedition. These documents will clearly assist the experts in their evidence, so this objection must fail.

Applications in relation to expert evidence

51. The defendants sought orders for the striking out of Dr Roger Clarke’s evidence on the basis that he lacks the expertise to comment and should not have been permitted to provide evidence for the purpose of the conclave, as this means that the plaintiff has two experts while the defendants only have one.

52. I have read the Further Joint Expert Report and consider that these issues are inappropriate to be dealt with as a separate question of law under UCPR r 28.2. These objections should be raised with the trial judge.

Application for transfer to the Supreme Court and for a stay of these orders

53. The defendants told me that they were dissatisfied with the conduct of these proceedings in the Defamation List both prior to the matter being sent to me for hearing in August 2014 and since that date. They propose to appeal all of the orders made against them since these proceedings were commenced. If they do so within the time frame set out in these orders, they have liberty to seek a stay of these orders, as I have provided for this in the orders set out below.

54. As I noted in my previous judgment, these proceedings have been conducted with extraordinary bitterness and hostility. Although Mr Rasmussen was inclined to doubt the defendants’ claim that they had expended $600,000 in legal fees on interlocutory applications to date, it is clear to me, from my perusal of the file, that the judges who case managed these proceedings heard and determined many applications, in most of which the defendants were the moving party, with exemplary courtesy and dispatch.

53. The defendants also complain of delay by the plaintiff at every turn, but the honours on this subject appear to be at least equally divided. The defendants’ complaints of inadequate pleading of the statement of claim (currently in its third version) have some merit, but this is unfortunately a feature of defamation litigation generally.

54. The defendants are roundly critical of their own lawyers, the plaintiff and his lawyers, and the judges of this court. They propose to seek a transfer of these proceedings to the Supreme Court. However, there is a hearing date allocated in six weeks’ time, and I note that in similar circumstances McCallum J refused an application to transfer to this court: Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370.

55. The defendants did not seek an adjournment of the hearing. They say that they do not propose to do so. They have, however, sought leave to bring such an application before the trial judge, and I have made an order to that effect.

Costs

58. The plaintiff sought an indulgence in relation to the pleading back of the imputations, and in the ordinary course of events may have been vulnerable to a costs order. However, this application was dealt with more or less on the papers, while the defendants’ submissions, on a wide-ranging set of issues, took more than half a day. In those circumstances, the defendants should pay the plaintiff’s costs.

Orders

1. By reason of the defendants’ coming from Brisbane and Port Macquarie, they agree to the procedure of my making orders in open court and providing a written decision by email later today.

2. The application of the plaintiff to strike out contextual imputation (i) on the basis that it does not differ in substance from imputations pleaded by the plaintiff (notably imputations (d) and (e)) is granted.

3. The plaintiff’s application to plead back contextual imputations (j), (k) and (m) from the first defendant’s defence and contextual imputations (a) to (d) from the second defendant’s defence is granted.

4. Note the first defendant has abandoned contextual imputations (a) to (h) and (l) in his solicitor’s letter of 25 November 2014 (see Exhibit A).

5. The plaintiff to file a Fourth Further Amended Statement of Claim incorporating the above amendments in 7 days. If this document is not filed within 7 days, no further amended pleadings may be filed.

6. Note the first defendant has no issues to raise before the court save to continue his objections in relation to the inclusion of Dr Clarke in the experts’ conclave, which, as previously noted, is a matter for the trial judge.

7. Note that the plaintiff, who is present in court, through his counsel Mr Rasmussen confirms that there are no applications to adjourn the specially fixed trial under the Mental Health Act.

8. Note that no claim for injury to health has been pleaded or particularised and accordingly may not be raised at the trial.

9. The first defendant’s oral application to issue a subpoena to the Hunter New England Local Health District for information about the plaintiff’s mental health is refused.

10. The defendants’ application for security for costs to be provided by the plaintiff in the sum of $584,418 is dismissed.

11. The second defendant’s application for the plaintiff to provide information about his mental health status is rejected.

12. The second defendant’s application for the plaintiff’s subpoena to the RMS to be set aside is refused.

13. The application by the second defendant to strike out the opinion of Dr Clarke is a matter for the trial judge.

14. An order refusing the second defendant’s application for a further report from Dr Allan Watt and Mr Peter Chapman in relation to “issues raised by the second defendant’s previous solicitors regarding the draft further joint expert report of 22 December 2014”.

15. Defer the making of an order for stay of these orders pending the filing and serving of the defendants’ application for leave to appeal, such application to be filed in 14 days.

16. Direct the plaintiff to issue subpoenae to all three experts (Dr Watt, Dr Clarke and Mr Chapman) to attend the trial to give evidence, but that the issue of who should pay the expert’s costs, and such other matters as the trial judge may deem appropriate (such as the selection of the date and the manner of giving evidence, including evidence by Skype through 4G network) is a matter for the trial judge.

17. The defendants are to pay the plaintiff’s costs of the plaintiff’s application to plead back the defendants’ contextual imputations and to strike out the first defendant’s contextual imputation (i), as well as the costs of the 10 applications set out in the second defendant’s notice of motion (Exhibit 4) and the first defendant’s oral applications.

18. Liberty to restore on 2 days’ notice to the Defamation List in relation to further interlocutory matters; any trial issues are to be raised with the trial judge in the relevant Newcastle sittings.

19. Any application to adjourn the trial should be made to the trial judge.

20. Any application to transfer these proceedings to the Supreme Court for “better case management” should be made to the Supreme Court.

21. All documents to be served on the defendants may be served on him to their current email addresses.

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Decision last updated: 26 February 2015