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Mallegowda v Sood (No. 5)

Mallegowda v Sood (No. 5)

Case [2017] NSWDC 470 1 June 2017

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District Court

New South Wales

Medium Neutral Citation: Mallegowda v Sood (No. 5) [2017] NSWDC 470
Hearing dates: 1 June 2017
Date of orders: 01 June 2017
Decision date: 01 June 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Stand over the defendants’ notice of motion to the trial on 9 August 2017, by reason of the nature of the application, extent of documentation and its lateness.
(2) Costs reserved.
(3) Note that the defendants have been advised that if they are granted leave to call Mr Raghu Hassan Mallegowda at the hearing, the plaintiff will be entitled to call evidence in reply regardless of whether this occasions a further adjournment or not.
(4) Stand over the plaintiff’s complaints regarding Mrs Sood not being called as a witness to the trial on 9 August 2017.
(5) Mr Mallegowda may, similar to Mr Sood, provide his address for service in a sealed envelope to the court.
(6) Grant the second defendant leave to apply to Gibson DCJ by notice of motion for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services, such applications to attach full copies of the subpoenas to be served.

Catchwords: TORT – defamation – hearing adjourned shortly before its conclusion so that plaintiff can prepare medical reports for his sentencing in the Supreme Court for contempt of court in relation to his conduct towards a witness in the defamation proceedings – appropriate orders to address the defendants’ concern about their safety – trial management problems resulting from defendants’ subsequent unreadiness for trial – defendants bring application to call extensive further evidence of justification which has not been particularised – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
District Court Act 1973 (NSW), s 203
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450
Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399
Hearne v Street (2008) 235 CLR 125
Ketteman v Hansel Properties Ltd [1987] AC 189
Mallegowda v Sood [2013] NSWDC 98
Mallegowda v Sood (District Court of New South Wales, Elkaim SC DCJ, 2 October 2013)
Mallegowda v Sood (No. 2) [2014] NSWDC 216
Mallegowda v Sood (No. 3) [2015] NSWDC 14
Mallegowda v Sood (No. 4) [2016] NSWDC 88
Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570
Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087
Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994)
Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of New South Wales, Hunt J, 20 October 1986)
Texts Cited: Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis)
Category: Procedural and other rulings
Parties: Plaintiff: Shashikanth Mallegowda
First Defendant: Amit Sood
Second Defendant: Naveen Lingaiah
Representation: Plaintiff: In person
First Defendant: In…

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. 5)

Details

AGLC: Mallegowda v Sood (No. 5) [2017] NSWDC 470
Case: [2017] NSWDC 470
Decision Date: 01 June 2017

CaseChat Overview and Summary

The defendants, Mr Sood and Mr Sood, sought to adduce further evidence in relation to their defence of justification in a defamation proceeding against the plaintiff, Mr Mallegowda. The proceedings were heard in the Supreme Court of Queensland. The case involved allegations of defamatory statements made by the plaintiff towards the defendants. The defendants' application for further evidence arose from the adjournment of a previous hearing, which was necessary for the plaintiff to prepare medical reports for his sentencing in the Supreme Court for contempt of court related to his conduct towards a witness in the defamation case. The defendants raised concerns about their safety and sought appropriate orders to address these concerns.

The legal issues before the court included the defendants' application to call additional evidence of justification, the lateness and extent of the documentation, and the trial management problems resulting from the defendants' unreadiness for trial. The court needed to determine whether the defendants' application should proceed, given the lateness and nature of the application, and whether the defendants' concerns about their safety warranted any specific orders. Additionally, the court had to consider the plaintiff's complaints about the defendants' failure to call Mrs Sood as a witness and the defendants' entitlement to call Mr Raghu Hassan Mallegowda at the hearing.

The court found that the defendants' application to call further evidence of justification was not an issue of principle but was instead a matter of the nature of the application, extent of the documentation, and its lateness. The court stood over the defendants' notice of motion and reserved costs. The court also noted that if the defendants were granted leave to call Mr Raghu Hassan Mallegowda, the plaintiff would be entitled to call evidence in reply, regardless of any further adjournment. The court similarly stood over the plaintiff's complaints regarding Mrs Sood not being called as a witness and granted the second defendant leave to apply for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services.

The court's orders included standing over the defendants' notice of motion and reserving costs. The court also granted the second defendant leave to apply for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services. The court directed that if the defendants were granted leave to call Mr Raghu Hassan Mallegowda, the plaintiff would be entitled to call evidence in reply, and it stood over the plaintiff's complaints regarding Mrs Sood not being called as a witness. Additionally, the court directed that Mr Mallegowda could provide his address for service in a sealed envelope to the court, similar to Mr Sood.

Orders

Orders of the court

(1) Stand over the defendants’ notice of motion to the trial on 9 August 2017, by reason of the nature of the application, extent of documentation and its lateness.

(2) Costs reserved.

(3) Note that the defendants have been advised that if they are granted leave to call Mr Raghu Hassan Mallegowda at the hearing, the plaintiff will be entitled to call evidence in reply regardless of whether this occasions a further adjournment or not.

(4) Stand over the plaintiff’s complaints regarding Mrs Sood not being called as a witness to the trial on 9 August 2017.

(5) Mr Mallegowda may, similar to Mr Sood, provide his address for service in a sealed envelope to the court.

(6) Grant the second defendant leave to apply to Gibson DCJ by notice of motion for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services, such applications to attach full copies of the subpoenas to be served.

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. 5) [2017] NSWDC 470

Most Recent Citation

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

Cases citing this decision · 1 of 1 shown

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

…NSWDC 216 Mallegowda v Sood (No. 3) [2015] NSWDC 14 Mallegowda v Sood (No 4) [2016] NSWDC 88 Mallegowda v Sood (No 5) [2017] NSWDC 470 Mallegowda v Sood (No. 6) [2018] NSWDC 281 Mallegowda v Sood [2019] NSWCA 37 Newell; Muriniti v De Costi [2018] NSWCA 49 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Prothonotary of the Supreme Court of New South Wales v Mallegowda
[2016] NSWSC 1087 Para 14

…Following the plaintiff’s sentencing ( Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087), the defendants told the Court they propose to seek access to the Supreme Court for the purpose of tendering material relied upon for the purposes of the Supreme Court proceedings to be tendere…
Mallegowda v Sood (No. 4)
[2016] NSWDC 88 Para 2

…d (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 handed down a judgment on a subpoena issue while the proceedings were being case managed by the Defamation List judges: Mallegowda v Sood [2…
Carolan v Fairfax Media Publications Pty Ltd (No 4)
[2015] NSWSC 1399 Para 100

…sed following the introduction of the Civil Procedure Act 2005 (NSW). One of the many examples is Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399, where a late application was refused by reason of the imminence of the trial.…
Mallegowda v Sood (No 3)
[2015] NSWDC 14 Para 2

…ith 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 handed down a judgment on a subpoena issue w…
Mallegowda v Sood (No 2)
[2014] NSWDC 216 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
[2013] NSWDC 98 Para 2

…88). I also handed down a judgment on a subpoena issue while the proceedings were being case managed by the Defamation List judges: Mallegowda v Sood [2013] NSWDC 98.…
Kaufman and Kaufman and Ors (No 2)
[2010] FamCA 474 Para 107

…In Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, the High Court stressed the need not only for an adequate explanation for the reason for delay but emphasised the importance of court resources. That explanation (namely that the defendants have only had a full statement from the…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 107

…In Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, the High Court stressed the need not only for an adequate explanation for the reason for delay but emphasised the importance of court resources. That explanation (namely that the defendants have only had a full statement from the plaintiff’s brother since March 2017) is unacceptable.…
Hearne v Street
[2008] HCA 36 Para 14

…for the purposes of the Supreme Court proceedings to be tendered in this Court. This required an application to the judge determining these issues: Hearne v Street (2008) 235 CLR 125. No application to the Supreme Court by way of notice of motion or other application was made.…
Marsden v Amalgamated Television Services Pty Ltd
[2000] NSWSC 570 Para 113

…this regard, I note that the hearing of the application to lead further evidence which was made in Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570 took 38 days to hear and resulted in an appeal, which meant that the final trial took even longer to complete.…
Hanrahan v Ainsworth
[1991] NSWCA 141

…se any document in the file, or any right to inspect its contents, will be granted is a matter for Justice Adams to determine: Ainsworth v Hanrahan (1991) 25 NSWLR 155. Please note a copy of this email is also being sent to Justice Adams’ associate and the Supreme Court Registry. Yours faithfully, Vincent Mok Associat…
[1987] AC 189
[1987] AC 189 Para 98

…d 1980s/1990s (when many defamation judgments preferred the case management principles of overseas judgments such as Ketteman v Hansel Properties Ltd [1987] AC 189 at 220) are noted.…
[1970] 2 QB 450
[1970] 2 QB 450 Para 98

…on, Australian Defamation Law & Practice (LexisNexis) at [25,175], decisions going back to 1970s ( Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 at 456) and 1980s/1990s (when many defamation judgments preferred the case management principles of overseas judgments such as Ketteman v Hansel Prop…

Legislation cited in this decision · 5

Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 100)
District Court Act 1973 (NSW)
203 2 mentions (from Para 11)
Crimes Act 1900 (ACT)
1 mention (from Para 5)
Criminal Code Act 1995 (Cth)
1 mention (from Para 5)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention

Medium Neutral Citation:	Mallegowda v Sood (No. 5) [2017] NSWDC 470
Hearing dates:	1 June 2017
Date of orders:	01 June 2017
Decision date:	01 June 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Stand over the defendants’ notice of motion to the trial on 9 August 2017, by reason of the nature of the application, extent of documentation and its lateness. (2) Costs reserved. (3) Note that the defendants have been advised that if they are granted leave to call Mr Raghu Hassan Mallegowda at the hearing, the plaintiff will be entitled to call evidence in reply regardless of whether this occasions a further adjournment or not. (4) Stand over the plaintiff’s complaints regarding Mrs Sood not being called as a witness to the trial on 9 August 2017. (5) Mr Mallegowda may, similar to Mr Sood, provide his address for service in a sealed envelope to the court. (6) Grant the second defendant leave to apply to Gibson DCJ by notice of motion for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services, such applications to attach full copies of the subpoenas to be served.
Catchwords:	TORT – defamation – hearing adjourned shortly before its conclusion so that plaintiff can prepare medical reports for his sentencing in the Supreme Court for contempt of court in relation to his conduct towards a witness in the defamation proceedings – appropriate orders to address the defendants’ concern about their safety – trial management problems resulting from defendants’ subsequent unreadiness for trial – defendants bring application to call extensive further evidence of justification which has not been particularised – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) District Court Act 1973 (NSW), s 203
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399 Hearne v Street (2008) 235 CLR 125 Ketteman v Hansel Properties Ltd [1987] AC 189 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (District Court of New South Wales, Elkaim SC DCJ, 2 October 2013) Mallegowda v Sood (No. 2) [2014] NSWDC 216 Mallegowda v Sood (No. 3) [2015] NSWDC 14 Mallegowda v Sood (No. 4) [2016] NSWDC 88 Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570 Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994) Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of New South Wales, Hunt J, 20 October 1986)
Texts Cited:	Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis)
Category:	Procedural and other rulings
Parties:	Plaintiff: Shashikanth Mallegowda First Defendant: Amit Sood Second Defendant: Naveen Lingaiah
Representation:	Plaintiff: In person First Defendant: In…