Mallegowda v Sood (No. 4) - [2016] NSWDC 88

District Court

New South Wales

Medium Neutral Citation: Mallegowda v Sood (No. 4) [2016] NSWDC 88
Hearing dates: 02 May 2016
Date of orders: 02 May 2016
Decision date: 02 May 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendants’ Notices of Motion returnable 6 May 2016 dismissed.
(2) Costs reserved.

Catchwords: TORT – defamation – parties all litigants in person – defendants bring applications for joinder of another party, security for costs, medical evidence concerning the plaintiff, contempt of court and access to documents produced in other proceedings – trial commencement date of 2 May 2016 fixed a year beforehand – failure to seek case management in the Defamation List during that 12-month period - inadequacy of explanations for delay - applications of a similar nature previously refused – notices of motion dismissed with costs reserved in the trial
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175
Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 166 ALR 699
Bidner v Queensland [2000] QCA 343
Hearne v Street [2008] HCA 36
Mallegowda v Sood [2013] NSWDC 98
Mallegowda v Sood (No 2) [2014] NSWDC 216
Mallegowda v Sood (No 3) [2015] NSWDC 14
P and W v Manny [2010] ACTSC 50
Texts Cited: District Court Civil Practice Note 6
Category: Procedural and other rulings
Parties: Plaintiff: Shashikanth Mallegowda
First Defendant: Amit Sood
Second Defendant: Naveen Lingaiah
Representation: Plaintiff: In person
Defendants: In person

File Number(s): 12/352080
Publication restriction: None

BACKGROUND

These defamation proceedings are listed for a four-week trial to commence today, Monday 2 May 2016. The parties were represented until November 2015, but are now all self-represented litigants.
The proceedings have an unfortunate procedural history of two vacated trial dates, removal to and from two Newcastle hearing lists and a 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.
In the week before this hearing, each of the defendants filed a Notice of Motion in the general list, returnable on 6 May 2016, seeking a series of orders which may be summarised in general terms as follows:

Requests for documentary evidence (by way of subpoenae to third parties, subpoenae to give evidence to medical practitioners, an independent health assessment conducted by the court and notices to the plaintiff to produce) about the plaintiff’s health.

Security for costs.

Joinder of a third party, the Roads and Maritime Services.

Referral of the plaintiff to the Supreme Court for contempt of court and restraining orders.

Leave to tender the defendants’ witness statements without requiring the witnesses to be cross-examined or, if that order was refused, an adjournment.

Requests for material produced in Supreme Court proceedings to be accepted into evidence…

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. 4)

Details

AGLC: Mallegowda v Sood (No. 4) [2016] NSWDC 88
Case: [2016] NSWDC 88
Decision Date: 02 May 2016

CaseChat Overview and Summary

The defendants in the case of Mallegowda v Sood sought to bring several applications in the context of a defamation dispute. The defendants had already been involved in protracted litigation with the plaintiff, who was also a litigant in person. The applications sought the joinder of a third party, security for costs, medical evidence concerning the plaintiff, as well as an order for contempt of court and access to documents produced in other proceedings. The case was set to commence on 2 May 2016, and had been fixed a year in advance. Despite this, the defendants did not seek case management in the Defamation List over the 12-month period before the trial, and their explanations for the delay were deemed inadequate. Given the nature of the applications, and the fact that similar applications had been refused in the past, the court was not satisfied with the defendants’ justifications. The defendants’ notices of motion, returnable on 6 May 2016, were dismissed, with costs reserved in the trial.

The primary legal issues before the court were whether the defendants' applications were justified, and whether the defendants had provided adequate explanations for their failure to seek case management in the Defamation List during the 12-month period prior to the trial. The court considered the nature of the applications, the fact that they were of a similar kind to those previously refused, and the defendants' failure to seek case management during the 12-month period. The court also took into account the defendants' explanations for the delay, and whether they were satisfactory. The court concluded that the applications were not justified, and that the explanations provided by the defendants were inadequate.

In reaching its decision, the court emphasised the importance of proper case management and the need for litigants to act diligently and responsibly in the preparation of their cases. The court noted that the defendants had been involved in protracted litigation with the plaintiff, and that similar applications had been refused in the past. The court found that the defendants had failed to provide satisfactory explanations for their delay in seeking case management, and that their applications were of a similar nature to those previously refused. The court was not persuaded that the defendants' applications were justified, and dismissed them with costs reserved in the trial. The defendants' failure to seek case management in the Defamation List during the 12-month period before the trial was also a factor in the court's decision.

The final orders of the court were that the defendants' notices of motion, returnable on 6 May 2016, were dismissed. Costs were reserved in the trial, meaning that the plaintiff would be entitled to seek costs from the defendants if they were successful in the proceedings. The court's decision emphasised the importance of proper case management and the need for litigants to act responsibly and diligently in the preparation of their cases. The court's dismissal of the defendants' applications sends a clear message that similar applications will not be entertained without satisfactory justifications.

Orders

Orders of the court

(1) Defendants’ Notices of Motion returnable 6 May 2016 dismissed.

(2) Costs reserved.

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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Medium Neutral Citation:	Mallegowda v Sood (No. 4) [2016] NSWDC 88
Hearing dates:	02 May 2016
Date of orders:	02 May 2016
Decision date:	02 May 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendants’ Notices of Motion returnable 6 May 2016 dismissed. (2) Costs reserved.
Catchwords:	TORT – defamation – parties all litigants in person – defendants bring applications for joinder of another party, security for costs, medical evidence concerning the plaintiff, contempt of court and access to documents produced in other proceedings – trial commencement date of 2 May 2016 fixed a year beforehand – failure to seek case management in the Defamation List during that 12-month period - inadequacy of explanations for delay - applications of a similar nature previously refused – notices of motion dismissed with costs reserved in the trial
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175 Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 166 ALR 699 Bidner v Queensland [2000] QCA 343 Hearne v Street [2008] HCA 36 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (No 2) [2014] NSWDC 216 Mallegowda v Sood (No 3) [2015] NSWDC 14 P and W v Manny [2010] ACTSC 50
Texts Cited:	District Court Civil Practice Note 6
Category:	Procedural and other rulings
Parties:	Plaintiff: Shashikanth Mallegowda First Defendant: Amit Sood Second Defendant: Naveen Lingaiah
Representation:	Plaintiff: In person Defendants: In person
File Number(s):	12/352080
Publication restriction:	None