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…
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- AGLC
- Mallegowda v Sood (No 3) [2015] NSWDC 14
- Case
- [2015] NSWDC 14
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff was entitled to plead back the contextual imputations from the defendants' defences as there was no substantive difference between these imputations and those already pleaded by the plaintiff. The court held that the plaintiff's right to amend his pleadings to include these imputations was not precluded by any conflicting authority. The court also dismissed the defendants' applications for security for costs, the plaintiff to be examined by a psychiatrist, and for the subpoena to the health district to be issued. The court reasoned that the application for security for costs was made too close to the commencement of the hearing, and the other applications were either matters to be determined at trial or had been previously objected to.
The court ordered that the plaintiff could amend his pleadings to include the contextual imputations from the defendants' defences and that a Fourth Further Amended Statement of Claim be filed within seven days. The court further ordered that the defendants pay the plaintiff's costs for the applications and that the defendants' remaining applications be referred to the trial judge. The court also set out various procedural directions regarding the service of documents, the giving of expert evidence, and the management of any further applications in the case.
Orders
Orders of the court
(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.
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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