Mallegowda v Sood (No. 6)

[2018] NSWDC 281

District Court

New South Wales

Medium Neutral Citation:	Mallegowda v Sood (No. 6) [2018] NSWDC 281
Hearing dates:	2, 3, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24 and 25 May 2016; 24 August 2016; 1 June 2017 (directions); 9, 10 and 11 August 2017; 26 October 2017 (directions); 1 December 2017; 9 February 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendants on the plaintiff’s claim. (2) In relation to the Cross-Claim, judgment for the cross-claimant against the cross-defendant in the sum of $5,000. (3) The plaintiff pay the defendants’ reasonable disbursements of the trial commencing on 2 February 2016 before Gibson DCJ, including reasonable disbursements relating to the preparation of the hearing and at all times when they have been self-represented, such disbursements to be agreed or assessed. (4) Subject to existing costs orders to the contrary, the parties pay their own costs of all vacated hearings prior to the trial of these proceedings and in relation to the referral to the Supreme Court. (5) In relation to the Cross-Claim, cross-defendant to pay cross-claimant’s legal costs and, where the cross-claimant has represented himself, the cross-claimant’s reasonable disbursements. (6) Liberty to apply in relation to costs and in relation to interest (in relation to the cross-claim), such liberty to be a self-executing order, to be exercised within 28 days. (7) The plaintiff’s applications under s 203 District Court Act 1973 (NSW) and ss 327 and/or s 338(c) Crimes Act 1900 (NSW) are refused. (8) The defendants’ applications for leave to reopen are refused. (9) Exhibits retained for 28 days.
Catchwords:	Claim for defamation for email to members of the Indian Association of Newcastle asserting the plaintiff was responsible for creating a fictitious email account to publish an anonymous email accusing the defendant/cross-claimant of dishonesty and misuse of community association funds – defence of justification and cross-claim asserting the plaintiff did in fact publish the anonymous email – expert reports concerning publication issues – expert evidence demonstrates that the relevant email addresses were created at the plaintiff’s home and place of work – finding that the plaintiff was a publisher in that he created the false email addresses - defence of justification and cross-claim succeed – significant case management issues arising from the parties being self-represented – delay caused by the plaintiff pleading guilty (in the Supreme Court) to a charge of contempt of court for attempting to influence a witness in these proceedings – plaintiff’s sentencing during the hearing occasioning adjournments – applications by the defendants to reopen their case when the hearing resumes – plaintiff’s application for referral of a party and a witness to the Supreme Court for contempt of court – dismissal of these applications – consideration of damages for the cross-claim – limited extent of publication - award of $5,000
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 61 Crimes Act 1900 (NSW), ss 327 and 338(c) Defamation Act 2005 (NSW), ss 25, 30, 34 and 35 District Court Act 1973 (NSW), s 203 Evidence Act 1995 (NSW), ss 46 and 91 Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW), s 54(1)(c) Uniform Civil Procedure Rules 2005 (NSW), r 28.2 and Sch 7
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Barrow v Bolt [2015] VSCA 107 Briginshaw v Briginshaw (1938) 60 CLR 336 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 Bristow v Adams [2011] NSWDC 11 Bristow v Adams [2012] NSWCA 166 Browne v Dunn (1893) 6 R 67 Broxton v McLelland (No 2) [1997] EMLR 157 BSkyB v HP Enterprises Ltd [2010] EWHC 86 (TCC) Cao v Yu [2016] NSWDC 296 Carolan v Fairfax Media Publications Pty Ltd(No 6) [2016] NSWSC 1091 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Charan v Nationwide News Pty Ltd [2018] VSC 3 Clone Pty Ltd (ACN 060 208 602) v Players Pty Ltd (recs and mgrs apptd) (ACN 056 340 884) (in liq) and Others [2018] 353 ALR 24 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Gestmin SGPS SA v Credit Suisse UK [2013] EWHC 3560 Hearne v Street (2008) 235 CLR 125 Jackson v Lithgow City Council [2008] NSWCA 312 John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 Johnston v Nationwide News Pty Ltd [2005] NSWCA 17 Jones v Dunkel (1959) 101 CLR 298 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (No 2) [2014] NSWDC 216 Mallegowda v Sood (No 3) [2015] NSWDC 14 Mallegowda v Sood (No 4) [2016] NSWDC 88 Mallegowda v Sood (No. 5) (District Court of NSW, Gibson DCJ, 1 June 2017) Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Masson v Zahoor [2008] 1043 (Ch) Milne v Ell [2014] NSWCA 407 Mohareb v Palmer [2017] NSWCA 281 Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215 Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 Rashid v Munir & Ors [2018] EWHC 1258 Registrar of v Maniam (No 1) (1991) 25 NSWLR 459 Reid v Brett [2005] VSC 18 Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Slipetz v Trudeau [2013] MBQB 111 Smith v New South Wales Bar Association (1992) 176 CLR 256 Suhner & Co AG v Transradio Ltd [1967] RPC 329 Takhar v Sroa [2017] SADC 110 Teskey v Toronto Transit Commission, 2003 CanLII 12871 (ON SC) Trkulja v Google LLC [2018] HCA 25 Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181 Webb v Bloch (1928) 41 CLR 331 Yu v Cao (2016) 91 NSWLR 190 Zaia v Eshow [2017] NSWSC 1540
Texts Cited:	Inforrm: “Case Law: Joseph v Spiller, Are Nominal Damages Appropriate When the Court is Deceived?” (Hugh Tomlinson QC, 13 November 2011) McHugh J, “What is an actionable defamation?”, Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990 The Rt Hon Lord Reed, “Lies, damned lies; abuse of process and the dishonest litigant” (26 October 2012):
Category:	Principal judgment
Parties:	Plaintiff/Cross-Defendant: Shashikanth Mallegowda First Defendant/Cross-Claimant: Amit Sood Second Defendant: Naveen Lingaiah
Representation:	Plaintiff/Cross-Defendant: In person First Defendant/Cross-Claimant: In person Second Defendant: In person
File Number(s):	2012/352080
Publication restriction:	None

Judgment

Introduction

1. The plaintiff, by statement of claim filed on 12 November 2012 in the Newcastle Registry of the District Court of New South Wales, brings proceedings for damages arising from publications by way of email to the Indian Association of Newcastle (“IAN”). The first defendant, Mr Sood, published an email to the members of the IAN on 21 September 2012 and the second defendant similarly published an email to the members of the IAN on 24 September 2012. The principal defence of each of the defendants is one of justification.

2. The first defendant, by cross-claim filed on 12 July 2013, brings a claim for damages against the plaintiff for a purportedly anonymous publication dated 21 August 2012 (hereafter “the attacking email”). The sole basis upon which the cross-claim is defended is by denial of publication.

3. It will be apparent, from the appearances set out on the front page of this judgment, that all parties were self-represented during a long hearing which was adjourned part-heard for a substantial period. This was largely because, before the hearing commenced, the plaintiff had been referred to the Supreme Court for determination pursuant to s 203 District Court Act 1973 (NSW) for consideration as to whether he had committed contempt of court by attempting to influence a witness (T 1472 – 3). The hearing of these defamation claims was concluded after the plaintiff’s conviction, sentencing and related costs issues, which took until December 2016.

4. The matter complained of was the response by the first and second defendants to an anonymous publication for which they say the plaintiff is responsible. The text of the matters complained of the subject of the statement of claim and the cross-claim are set out below. The level of hostility between the plaintiff and defendants dominated at stages of the attempts by the court to carry out case management, as well as the hearing.

5. As all the parties are self-represented, I will commence with a brief outline as to the nature of proceedings for defamation.

The relevant principles of law concerning defamation

6. The law of defamation is designed to resolve the conflict between two co-existent rights: the right of every citizen to enjoy a good reputation and the right of freedom of speech: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 (“Marsden”).

7. What is defamation, and how have these defamation proceedings come about? An actionable defamation is a publication which is not excused, protected or justified by one or more of the defences available to defendants (McHugh J, “What is an actionable defamation?”, Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990, p. xi.).

8. If all the defences fail, the plaintiff and cross-claimant each brings a claim for damages. The purposes of an award of damages in defamation is described by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] as follows:

“The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd:

(i) consolation for the personal distress and hurt caused to the appellant by the publication;

(ii) reparation for harm done to the appellant’s personal, and in this case, professional reputation; and

(iii) the vindication of the appellant’s reputation.”

The burden and standard of proof for imputations and evidence of criminal conduct

9. In Marsden v Amalgamated Television Services Pty Ltd at [24]-[38], Levine J sets out the relevant principles of law concerning the standard of proof for imputations of conduct capable of amounting to the commission of a crime. In Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, Beazley JA (as the President then was) stated:

“[5] Findings in a civil case, both of intermediate facts, including credit findings, and of ultimate facts, are made on the civil standard. Even within the civil standard, the degree of satisfaction that a court must have before reaching a conclusion varies, depending upon the seriousness of the matter in issue. Fraud is the classic example: see Briginshaw v Briginshaw (1938) 60 CLR 336 ; [1938] ALR 334 ; [1938] HCA 34 . That a finding is made on the civil standard, whether on a Briginshaw basis or not, does not diminish the cogency of such a finding. There is, however, a significant difference in a finding made on the civil standard from a finding made on the criminal standard.”

10. The Briginshaw standard was most recently explained in Charan v Nationwide News Pty Ltd [2018] VSC 3 by J Forrest J:

“[81] First, the allegations made by Nationwide in relation to unscrupulous conduct must be established to the Briginshaw standard, which requires clear and cogent proof, where serious allegations of misconduct are made. But that is not to overstate the test by which an allegation must be proved. The Briginshaw principle, as encapsulated in s 140 of the Evidence Act 2008 (Vic), does no more than require that a court carefully consider the seriousness of the allegation and the gravity of the consequences flowing from a particular finding, as effecting the level of satisfaction that must be reached, before it can conclude that an allegation has been proved on the balance of probabilities. The standard of proof of a particular assertion remains that of more probable than not, but with the proviso I have set out. Importantly it must be remembered, that neither s 140 nor the statement of principle in Briginshaw establishes a different standard of proof in a civil proceeding.” (Footnotes omitted)

11. The onus of proof in relation to justification (the principal defence in the plaintiff’s claim) lies on the defendants. Defendants in defamation proceedings must provide particulars of the plea of justification before the trial, and all parties must also provide full discovery. Regrettably, this did not occur. Both the plaintiff and defendants took the view that the most persuasive documents were those which were produced at the hearing, because the opposing party would not have time to meet the documents in question. That has made the fair conduct of these proceedings difficult.

12. All of the parties ask me to make findings adverse to the credit of the opposing party (indeed, they ask me to refer each other for contempt of court and/or prosecution). In relation to findings of credit I have been guided by the observations of the New South Wales Court of Appeal in a number of recent cases, including Channel Seven Sydney Pty Ltd v Mahommed, where Beazley JA stated at [5] – [10]:

“[5] Findings in a civil case, both of intermediate facts, including credit findings, and of ultimate facts, are made on the civil standard. Even within the civil standard, the degree of satisfaction that a court must have before reaching a conclusion varies, depending upon the seriousness of the matter in issue. Fraud is the classic example: see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; [1938] HCA 34 . That a finding is made on the civil standard, whether on a Briginshaw basis or not, does not diminish the cogency of such a finding. There is, however, a significant difference in a finding made on the civil standard from a finding made on the criminal standard.

[6] So far as questions of reputation are concerned, a demeanour-based credit finding, may be problematic. Although credit findings are an integral part of the fact finding function of a trial judge, a demeanour-based credit finding, which is often critical in the determination of a case, is far from scientific. It is a finding based upon the experience of the trial judge having seen and heard the individual in person: Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [65] ; see also Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354; [1990] HCA 47 at [178]. Ipp JA, in “Problems with Fact-Finding” (2006) 80 ALJ 667, said that a demeanour-based finding is “determined by a judge’s subjective experience, intuition and common sense”.

[7] It is unremarkable to observe, therefore, that a demeanour-based credit finding in respect of an individual may vary as between judges. This is undoubtedly why Atkin LJ observed in Societe D’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152 :

… I think that one ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of the evidence with known facts, is worth pounds of demeanour.

[8] The problematic nature of a demeanour-based credit finding was examined by Kirby J in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; 73 ALJR 306; [1999] HCA 3 . His Honour stated, at [88]:

[88] There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom … Apart from all else, demeanour is, in part, driven by culture … Distaste or prejudice can cloud evaluation …

[9] A credit finding can be devastating, both personally upon the individual whose credit has been impugned, and in respect of that person’s reputation. Hence the importance, where available, of confirmatory or corroborative evidence to assist or support a demeanour finding.

[10] As McColl JA has pointed out, the differences between a criminal conviction and findings in a civil proceeding and, I would add, the effect of those differences on the reputational use that ought to be made of such findings, were not debated on appeal. Accordingly, while I agree that findings made in other proceedings which, by virtue of the publication of a judgment are in the public domain, may be used by a defendant in defamation proceedings in respect of reputation, the nature of the effect which may be given to such findings, particularly if they involve a demeanour-based credit finding, will require careful consideration.”

13. All of the parties asked me to draw inferences from failure of the opponent to call a series of witnesses. I have dealt with this issue in the same “common sense” way that Levine J employed in Marsden v Amalgamated Television Services Pty Ltd at [93] (as to which see Jones v Dunkel (1959) 101 CLR 298 at 321).

14. None of the parties appear to have understood the principles in Browne v Dunn (1893) 6 R 67. This was partly because of the failure to provide full particulars of truth (which were enlarged during the hearing) or because of the belief that matters could be raised at the trial which had not been the subject of forewarning or discovery. Many of these problems were solved by the preparation of witness statements, but this resulted in the parties attempting to tender witness statements for witnesses who had not been called. Again, I have adopted the same “common sense” approach taken by Levine J and I have taken into account that these are litigants in person. In particular, it is not necessary for the parties to go through an extensive process of putting, formally, to other witnesses questions designed to make them confirm or deny that evidence, for the reasons explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 23. I have been conscious of the availability of alternatives to exclusion of evidence under s 46 Evidence Act 1995 (NSW) rather than simply ruling the evidence out.

15. There are also complaints by the parties as to an asserted failure to produce documents, including claims that documents have been withheld or destroyed. Once again, I have endeavoured to approach this on a “common sense” basis.

16. As is set out in more detail below, the proceedings had to be adjourned in order for the contempt of court proceedings in the Supreme Court to be completed. All parties told me they agreed that the tender of a number of the documents from those proceedings would be an essential part of the evidence in this case. In fact those documents were not tendered (or even sought from the Supreme Court), but instead a new claim was brought of a witness in India (the plaintiff’s brother) who would provide evidence that the plaintiff had confessed to him that he had sent the anonymous email the subject of the matter complained of in the cross-claim.

17. The submissions in these proceedings were, for trial management reasons, completed in two parts. The first was the provision of written submissions as to the expert evidence concerning the identity of the person or persons who sent anonymous emails concerning the conduct of the first defendant. The second stage of submissions, which was also by way of written submissions, was carried out after the completion of these written submissions concerning expert evidence. I included the defendants’ application to reopen their case to call the plaintiff’s brother and tender a very substantial number of documents apparently belonging to this witness as part of those written submissions.

18. The completion of the second stage of written submissions took until 9 February 2018. Many hundreds of pages of submissions were provided. They make painful reading. All parties called for the opponent(s) to be dealt with for contempt of court, prosecuted or otherwise made subject of financial penalty, as well as seeking leave to tender further documentation. This confirms my view that it is undesirable for there to be oral submissions and that I should determine the issues as best I can notwithstanding the parties’ failure to address fundamental issues in the proceedings, including (despite my drawings to the attention of the parties on several occasions) the relevant issues for determination of damages. This makes it necessary for me to describe the conduct of these proceedings by the parties.

The conduct of these proceedings by the parties

19. These proceedings have had an extraordinary procedural history, which is due to the combative way that all parties, through their solicitors at first and then at the hearing where they were all self-representated, have responded to the litigation process.

20. Two specific areas of difficulty arose from grave misconduct:

1. Orders were made by Elkaim SC DCJ on 2 October 2013 referring the plaintiff to the Supreme Court for determination pursuant to s 203 District Court Act 1973 (NSW) as to whether the plaintiff’s conduct towards a witness amounted to contempt of court. The plaintiff was convicted of contempt of court and sentenced (Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087).

2. The circumstances in which there was unauthorised access, use and disclosure of the plaintiff’s personal health information by an employee of Hunter New England Local Health District without the plaintiff’s consent. This information (the name of the plaintiff’s treating doctor for his bipolar condition) was used by an unknown male person who telephoned that specialist for the purpose of falsely claiming that the plaintiff had been apprehended while behaving bizarrely and that an ambulance should be sent to convey the plaintiff to hospital. This complaint was investigated by the NSW Privacy Commission (Exhibit A, volume 2, pp. 55-84). The identity of the person who accessed the plaintiff’s medical records cannot be established, but these events contributed significantly to the level of hostilities.

21. The principal difficulty, however, has been the combative way in which these proceedings have been conducted by all parties since their inception. Attempts by circuit judges in the Newcastle District Court, Defamation List Judges in the Sydney Registry and judges attempting to hear the proceedings which should have resulted in the proceedings being conducted in an efficient way were unsuccessful, not because of the shortcomings in those judges, but by reason of the attitude of the parties.

22. This can be seen from the beginning of the litigation in orders made by the Newcastle Registry at a time when the plaintiff was a litigant in person. The circumstances in which no progress was achieved between commencement of the proceedings in November 2012 and May 2013 are summarised in my judgment Mallegowda v Sood [2013] NSWDC 98 at [10].

23. The proceedings continued in much the same fashion in the Defamation List before Bozic SC DCJ (see Mallegowda v Sood at [11]-[14]) created further difficulties, as did the defendants issuing of more than 20 subpoenae in the Newcastle Registry (and possibly the Sydney Registry) without leave, and at a time when the proceedings had been, or were about to be, transferred to the Sydney registry, as is set out at [37]-[45].

24. The parties were referred to an early mediation. Unfortunately, it appears to have been as a result of a conversation shortly after this mediation that the conduct of the plaintiff was, on 2 October 2013, referred to the Supreme Court pursuant to s 203 District Court Act 1973 (NSW). This was followed by a series of orders made on 25 October 2013 setting aside number of subpoenae issued by the plaintiff.

25. The proceedings came before Elkaim SC DCJ in the Defamation List on 21 February 2014, where an extensive series of applications concerning discovery and interrogatories were dealt with. As mediation had failed, the parties were given an early hearing date in the hope that resolution of the proceedings in court would resolve the level of hostility between them. Examination of the file shows that the List Judge, Truss DCJ, played an important role in endeavouring to deal with these issues in a proactive and efficient fashion. On 28 March 2014, a 7-day hearing was listed to commence on 18 August 2014.

26. Regrettably, due to failures to comply with timetables and the need for an expert conclave, as well as a 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 experts’ report on 29 August, 10 October, 24 October and 20 November 2014 before transferring the matter to the Newcastle sittings on Monday 1 December 2014, to enable the hearing of the proceedings to take place in Newcastle, where the parties and witnesses resided.

27. In the interim, the plaintiff brought an application to plead back the defendants’ contextual imputations and the defendants brought an application, inter alia, for security for costs as well as to have the plaintiff medically examined by a psychiatrist: see Mallegowda v Sood (No 3) [2015] NSWDC 14 (29 January 2015). The proceedings were case managed in the February 2015 sittings and allocated to Mahony SC DCJ as the trial judge.

28. The proceedings were marked “not reached” in the Monday 16 March 2015 Newcastle circuit sittings, following a series of applications by the parties which made it clear that the hearing could not be completed in the sitting time available. On 10 April 2015, the proceedings came before Robison DCJ. As the plaintiff was appearing for himself at this stage, and it was apparent that the proceedings could not be conducted in the Newcastle Registry while that was the case, the proposed fresh hearing date of 4 May 2015 was vacated and the matter was returned to Sydney, noting that it was a 3-week plus trial, involving a total of 28 witnesses, including three expert witnesses. The hearing date was formally vacated by Elkaim SC DCJ on 20 April 2016.

29. The proceedings were listed to commence before me for hearing on Monday 2 May 2016. Although that date had been fixed a year beforehand, the parties had failed to seek any further case management until the week before the hearing: Mallegowda v Sood (No 4) [2016] NSWDC 88. These applications were:

1. 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.

2. Security for costs.

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

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

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

6. Requests for material produced in Supreme Court proceedings to be accepted into evidence in this court and to be probative of issues of truth, as well as orders for subpoenae to give evidence to be issued to the “Crown Solicitors” to give evidence of what occurred.

30. In addition, the first defendant sought the following orders:

1. That the Court make Orders to allow Cross Claimant/ First defendant for Joinder of Road and Maritime Services NSW (RMS) as an additional defendant.

2. That leave of Court is granted to the first defendant to amend his cross claim to include RMS as a Joinder defendant party.

3. That the Courts allow and accept issues which have already been determined in the matter with case number 14/288906 that is common in this matter.

4. That [the] court order an independent mental health assessment of Plaintiff to determine Plaintiff’s mental health to participate in this trial as a plaintiff and/or a self-represented litigant.

1. That the mental health assessment order to include time period when the first and second attacking emails were sent against the first defendant and date ie. From January 2012 till date.

5. That the Courts allow defendants to adduce evidence from materials produced in the matter between Prothonotary of Supreme Court NSW v Mr S H Mallegowda before in relation to case number 2014/168906 in this matter.

1. That the leave of Court be provided for defendants to access all transcripts in relation to case number 2014/168906 either through Supreme Court Registry or via prothonotary [sic] of Supreme Court in this matter.

2. That the Court provide orders for defendants to access material in the contempt matter against plaintiff in relation to case number 2014/168906 via Prothonotary of Supreme Court in that matter.

3. That the leave of Court be granted to issue subpoena to Crown solicitors to give evidence and bring documents or things at this trial.

6. That the Courts consider a contempt of court referral to the Supreme Court against the Plaintiff for threatening a witness for the defendants.

7. That the Court makes orders to prevent the plaintiff from making complaints/s and/or lodge proceedings against witnesses in this matter to government authorities, public offices or any workplaces of witnesses without the leave of the Court.

8. That the Court allow defendants use affidavits prepared by their former solicitors be allowed without their physical presence in Court.

1. If the above is disallowed by the Court, then the Court Order appropriate adjournments as needed to allow for appearance of all persons who have provided affidavits in this matter.

9. That the plaintiff pay defendants costs of filing costs of filing this motion and travel costs forthwith.

10. Such other Orders that the Court deems fit.

The hearing of these proceedings commences

31. As is set out in my judgment of 1 June 2017 (Mallegowda v Sood (No. 5) (District Court of NSW, Gibson DCJ, 1 June 2017)), having dismissed these applications and commenced the hearing, the proceedings were conducted by me between 2 and 26 May 2016.

32. Conduct of the trial was difficult. Although orders had been made for statements, the parties struggled to present their material. In the interests of finishing the case in the four weeks allotted, I assisted the plaintiff and both defendants in conducting their examinations in chief. To avoid arguments about admissibility, I marked all challenged documents as an MFI on the basis that they would be cross-examined upon on the understanding that they formed part of the evidence until a further ruling, and then heard all disputes as to admissibility in a separate hearing at the end of the trial. Three of the rulings I made (concerning whether the plaintiff could subpoena the first defendant’s wife, whether the first defendant could subpoena the specialist treating the plaintiff’s bipolar disorder and whether the report of the Privacy Act inquiry could go into evidence) were made by asking the parties to agree to these on a trading off of the entitlements they would otherwise have, because of my concerns as to courtroom safety. Where possible, I encouraged the calling of witnesses by telephone and endeavoured to make those witnesses as comfortable as possible in a courtroom where the tension was palpable. On some occasions where the atmosphere in the courtroom seemed likely to degenerate, I suggested a short adjournment. It was not an easy trial to manage.

33. The trial proceeded as expeditiously as it could until the last three days, when it was necessary to adjourn the proceedings. The reason for this was as follows. Although the trial had been run almost to conclusion (with only three witnesses yet to give evidence for the defendant, as is set out in [11] of my judgment), the sentencing of the plaintiff for contempt of court had to take place. It was necessary to adjourn the hearing so that the plaintiff could undergo tests for his bipolar condition and so that the submissions as to sentence (upon which the defendants wish to rely) would be available for tender in these proceedings. In those circumstances, the proceedings were adjourned part heard to 24 August 2016 for three days only, this being a date and time length agreed to by the parties as being likely to be appropriate as well as to be following the plaintiff’s sentencing.

34. Following the plaintiff’s sentencing and Prothonotary of the Supreme Court of New South Wales v Mallegowda, the defendants then sought a further adjournment, telling the court that they propose to seek access to the Supreme Court for the court file for the purpose of tendering documents in these proceedings. This required an application to the judge determining these issues: Hearne v Street (2008) 235 CLR 125.

35. As is set out in my judgment of 1 June 2016, this hearing date had to be vacated in part because of delays in the Supreme Court proceedings and in part because of objections from the Crown Solicitors to the production of the documents until costs in the Supreme Court proceedings had been determined. The proposed adjourned hearing date of 9 November 2016 was similarly not possible because the defendants complained that they were unable to obtain access to the Supreme Court file.

36. The fifth adjournment of these proceedings then occurred, and the Supreme Court proceedings were eventually concluded on 16 December 2016 (see the correspondence set out in Mallegowda v Sood (No. 5) at [43]-[63]). An agreed final hearing date was set down for 27 February 2017 when the following orders were made in chambers:

1. Matter set down for hearing (part heard) to commence on Wednesday 9 August 2017 (estimate 3 days).

2. Parties to exchange written submissions addressing all expert evidence by 26 May 2017.

3. Vacate the listing on Thursday 2 March 2017.

37. However, as is set out in Mallegowda v Sood (No. 5) at [64]-[66], no application was made by the defendants for access to the Supreme Court file. Instead, they brought a notice of motion filed on 18 May 2017 seeking to lead fresh evidence in relation to material provided by the plaintiff’s elder brother, Mr Raghu Hassan Mallegowda, who resided in India. This is set out at [67]-[82] of Mallegowda v Sood (No. 5).

38. The defendants’ notice of motion was returnable for 1 June 2017. Massive amount of documentation were provided to the court. The amount of documentation electronically provided was such that the documents in question could not be opened.

39. I set out the relevant principles of law relating to late amendments to pleas of justification in [96]-[120] of Mallegowda v Sood (No. 5). While I was reluctant to close the gate on the defendants’ entitlement to bring fresh evidence before the court, the lateness with which the application had been brought and the difficulties for the court in terms of dealing with clearly hostile evidence of the “I said, he said” variety, in the context of a hearing which had already been adjourned multiple times, meant that I considered it was best to look at this issue in the prism of the evidence already received within the trial. If the defendants were successful in their claim, the need to adduce this additional evidence would vanish; if the plaintiff was successful, then the nature and extent of this evidence could need to be considered carefully within the parameters of the evidentiary basis upon which the plaintiff succeeded.

40. Fortunately, the parties had already provided the written submissions in relation to the technical and expert evidence concerning publication. As a result of having received the parties’ written submissions in relation to technical evidence (which I had asked them to set out in full, as opposed to providing oral submissions), I was in a position where I could consider and make a determination as to whether the plaintiff had created the email account from which the matter complained of the subject of the cross-claim (and to which the matters complained of in the plaintiff’s claim reply) had in fact been created by the plaintiff.

41. Unlike the evidence of the parties and, regrettably, some of their witnesses, the evidence of the experts in these proceedings was meticulous, even-handed and provided in the best spirit of the obligations of expert witnesses in accordance with the Expert Witness Code of Conduct (Sch 7, Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”)). This meant that I was able to come to a concluded opinion concerning the issue of publication (in the sense that the plaintiff, if he had created the email account in question, was a publisher within the sense of Webb v Bloch (1928) 41 CLR 331).

42. Accordingly, while I retained an open mind as to the issue of publication until the remaining lay evidence was completed on 11 August 2017, I was in a position to come to a concluded opinion as to the issue of publication and, as a result, subject to the parties providing further information in their written submissions, was in a position to determine whether it was necessary for me to grant the defendants leave to reopen their case to lead the additional evidence from the plaintiff’s elder brother. My reasons for refusing that leave are set out at the end of this judgment.

43. As is set out in more detail below, in relation to the issue of liability for publication of what the parties call “the attacking email” (which is also the subject of the first defendant’s cross-claim), I have carefully perused the written submissions of the plaintiff as well as his expert and lay evidence. I am satisfied, for the reasons discussed at length below, that the plaintiff was the creator of the email account and, by reason of the applicability of the general principles for liability for publication, accordingly to be held liable as a publisher.

44. Once the plaintiff is found to be the publisher, the defence of justification to the matters complained of must succeed and, as the only basis upon which the cross-claim is defended is denial of publication, that defence must fall away as well.

45. This finding means that many of the other disputed questions of fact tend to fall away. For example, there was also evidence sufficient to establish that the person who used the plaintiff’s home internet system to set up an email account for a fictitious person named Deshpande was in fact the plaintiff; this evidence was surplusage to my finding that there was sufficient evidence that the plaintiff had, by creating the email account for the attacking email, rendered himself liable for its contents. Similarly, there was evidence that it would have been impossible for the plaintiff to actually send the text of the attacking email from the internet café used for its transmission. As the plaintiff’s role in setting up the account was clear, and the plaintiff’s conversations with the first defendant referred to in the matter complained of (where he acknowledged knowing the persons who wrote the offending words) were not challenged, whether or not the plaintiff actually composed and sent this email became surplusage.

46. In circumstances such as those set out in paragraph 45, judges often make alternative findings. In the present case, I have not done so, largely because the manner in which these proceedings have been conducted has created significant difficulties.

47. The final stages of the hearing were dominated by the difficulties the parties had in preparation of written submissions. I have received extensive submissions from all parties. It has taken a considerable period of time to read and digest them, in part because of the difficulties all parties have had in identifying the issues and in seeking to deal with those issues in an appropriate way by careful reference to the relevant evidence. It is an indication of how limited in understanding of the legal issues the parties are that, despite my endeavouring to point out to them that the first defendant was bringing a cross-claim for defamation and drawing their attention to relevant issues concerning damages, the parties never addressed me about those issues at all, and I have had to do my best to work out what the submissions on the cross-claim would have been by looking at the evidence to which I had endeavoured to draw the parties’ attention.

48. Before dealing with the evidence, I propose to make observations on two issues. The first is as to the manner in which courts should deal with litigations in person and the second is how the court should determine issues where claims of dishonesty and lying by one, or all, of the parties to litigation must be determined.

Litigants in person

49. In Slipetz v Trudeau [2013] MBQB 111, Martin J set out a series of helpful principles for dealing with a litigant in person in defamation proceedings in Canada:

“[8] Courts have dealt with the issues surrounding unrepresented litigants many times.  A number of themes emerge:

(a) Self-represented litigants do not have some kind of special status.

• As noted in Sydorenko v Manitoba, 2012 MBQB 42 (CanLII), M.J. NO. 70 (QL):

29     ... this factor should not dissuade the court from applying the usual rules including when it comes to considering an award of costs.

• As noted in Ridout v Ridout, 2006 MBCA 59 (CanLII), 205 Man.R. (2d) 146), M.J. No. 243 (QL):

12     … more and more litigants … are self-represented. This often creates difficulties not only for them but for court staff and judges. Notwithstanding, it is not accurate to say … that self-represented litigants (SRLs) have some kind of special status. … while the court should provide assistance to SRLs, this must be done in such a way as to maintain judicial impartiality. …

(b) Judges do not advocate on behalf of a self-represented litigant, do not provide legal or tactical advice and have no duty to help a litigant do a better job in developing their case.  Judges do, however, ensure that a party’s lack of legal training does not unduly prejudice them, nor affect their ability to participate meaningfully in the proceeding. (Ridout v Ridout, supra.)

(c) Self represented litigants must be dealt with fairly and with appreciation of their potential legal handicap, but they are not entitled to undue favour nor should the rights of a defendant be overridden.

• As noted in Otte v Manitoba (Sheriff’s Department), 2008 MBCA 63 (CanLII), 166 A.C.W.S. (3d) 1032, M.J. No. 163 (QL):

12 … The court must strike a delicate balance between ensuring that the self-represented litigant is dealt with fairly and yet not allowing the litigant undue favour precisely because he is self-represented.

• As noted in Coleman v Pateman Farms Ltd., 2001 MBCA 75 (CanLII), 156 Man.R. (2d) 144, M.J. No. 228 (QL):

15 In my view, a pro se litigant should not be denied the opportunity of presenting his or her case to the court by a strict application of the Rules. The touchstone is fairness and that involves the balancing of the pro se litigant’s imperfect knowledge of rules and procedures with the right of the other party to know the legal and factual issues that he or she must meet.

• As noted in Baziuk v Dunwoody (1997), 13 C.P.C. (4th) 156 (Gen. Div.), O.J. No. 2374 (QL): 

18 … notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

(d) Fairness simply means that a self-represented litigant should have a fair opportunity to present their case to the best of their ability.  As noted in Davids v Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (Ont. C.A.), O.J. No. 3930 (QL):

36 ... Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.

(e) Some leeway may be given to self-represented litigants, but they are nonetheless expected to operate within the rules of the court and its procedures.  While some leeway may give way to generous construction of the rules, it does not mean ignoring the rules altogether.

• As noted in Nowoselsky v Canada (Treasury Board), 2004 FCA 418 (CanLII), 329 N.R. 238, F.C.J. No. 2077 (QL):

8 ... The imperatives of the Rules may be mitigated somewhat by the grace of counsel facing an unrepresented litigant, or by the Court’s judicious exercise of the discretion to excuse compliance, but these are remedial measures and not a licence for non-compliance. ...

• As noted in Manitoba Agricultural Services Corp. v Domenco, 2007 MBCA 125 (CanLII), 220 Man.R. (2d) 214, M.J. No. 355, (QL):

6 With respect to the other grounds of appeal, the motions judge had a discretion as to whether to grant an adjournment or to consider additional materials filed out of time. Contrary to the defendant’s assertion in his factum, the transcript reveals that the motions judge did attempt to assist the self-represented litigant to the extent that his judicial role would allow. However, as this court has observed on other occasions, a self-represented litigant is not entitled to ignore the rules of court. The rules which govern the conduct of civil proceedings are designed to ensure procedural fairness for all parties. See Basaraba v Manitoba Court of Queen’s Bench, 2006 MBCA 27 (CanLII), 201 Man.R. (2d) 302.

(f) Finally, as Mainella J. observed in Bazan v The Assiniboine South School Division et al., 2013 MBQB 68 (CanLII), M.J. No. 80 (QL), common sense dictates that:

71 ...  Like lawyers, no two self-represented litigants are alike in terms of skill and knowledge. Some are so totally inexperienced and ignorant of the customs and procedures of the court that they become “completely at sea” during the litigation process. … Others, however, are frequent denizens of the courthouse. In the accommodation of the principles of fairness and balance, a court should be mindful of the knowledge and experience of the self-represented litigant before it.”

50. In these proceedings, I have also taken into account that the plaintiff suffers from a severe form of bipolar disorder. This condition is described by Adams J in Prothonotary of Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 at [21]-[23]. There were occasions when the plaintiff became agitated in the courtroom and it was necessary for me to intervene, which I sought to do diplomatically.

51. However, the conduct of the defendants (in particular Mr Sood) was not blameless. As I have noted in my earlier judgments, Mr Sood has made a series of attempts to obtain details of the plaintiff’s mental health, including issuing subpoenae to hospitals for that information, seeking to cross-examine the specialist who treats the plaintiff for his bipolar condition, seeking discovery of documents from the plaintiff concerning his mental health, seeking to obtain documents from the Supreme Court in relation to the plaintiff’s mental health and raising the question of the plaintiff’s mental health on what I consider to be an unnecessary number of occasions in the course of the hearing.

52. The most serious problem in relation to the triggering of the plaintiff’s mental health problems arises from the circumstances in which the plaintiff discovered that an unknown person had accessed the plaintiff’s medical records after knowledge of his mental illness was circulated in the Indian community in or about October 2012. An investigation was conducted by the Hunter New England Local Health District under the Health Records and Information Privacy Act 2002 (NSW) (“HRIPA”) and it was discovered that unauthorised access to the plaintiff’s medical records had been made by using the access code for a Dr Perkins, a medical practitioner in the gynaecology section of the hospital. An internal review was commenced by the privacy contact officer on 7 January 2013. The reason for concern was not merely that the plaintiff’s medical records were accessed but that, following upon these records being accessed, the plaintiff’s clinician, Dr Mathews, received a telephone call from a person purporting to be a police officer, advising that the plaintiff was behaving bizarrely and he needed to be remitted to hospital immediately. The person in question was not a police officer but an imposter and only the quick thinking of Dr Mathews prevented what could have been a potentially dangerous incident occurring. Dr Perkins told the Privacy Commissioner that she did not access this information and that she had no reason to do so. The plaintiff’s suspicions were aroused because the first defendant’s wife, Dr Kaur, worked in this section of the hospital.

53. Generally speaking, s 91 Evidence Act 1995 (NSW) would militate against the tender of this report, the plaintiff would be entitled to issue a subpoena to Dr Kaur and the defendants would be entitled to subpoena Dr Mathews. I invited the parties to agree to waive objections to the tender of this report instead. As each party stood to gain from this course, they agreed. The level of agitation expressed by Mr Sood at the idea of his wife being cross-examined was equalled only by the level of anxiety Mr Mallegowda expressed about his specialist, Dr Mathews, being cross-examined about Mr Mallegowda’s mental health issues. In an already fraught courtroom atmosphere, I considered that the security and safety of the individuals concerned should transcend the importance of compliance with rules of evidence.

54. The next issue is the correct approach for the court to take in relation to allegations of dishonesty and lying.

The correct approach to allegations of dishonesty and lying

55. The plaintiff has already been found to be a dishonest witness in the course of the proceedings before Adams J. Adams J noted at [25]:

“[25] I accept, more probably than not, that the acts of contempt were impulsive and to some degree caused by his mental state. On the other hand, the evidence that he gave in Court must have been carefully considered over a lengthy period of time and was, I thought, careful and calculating. However, although that demonstrated that he had not accepted either that he had committed any wrongdoing or, at all events, would try (even by lying to the Court and making false allegations of dishonesty against prosecution witnesses) to avoid the legal consequences of what he had done, this did not mean that his acts at the time were any less impulsive or contributed to by his mental disorder. He is being punished for his contempt and not for his conduct of the trial, however reprehensible that was. On balance, I am prepared to act upon the basis that the contemnor’s mental condition, to some extent, contributed to the impulsivity of his behaviour, although I would not go so far as to find that, if he had been in remission at the time, he would have been unlikely to have committed the offence.”

56. As is set out in my judgment below, I am also satisfied that the defendants have been less than frank in some of their evidence to this court. In particular, I am satisfied that they were the authors of anonymous emails distributed to members of the IAN attacking the president of the IAN, Mrs Singh, and that their evidence to the contrary should not be accepted. However, their conduct is of considerably less significance than the very serious findings made about the plaintiff by Adams J.

57. It is not unknown for a court to come to the conclusion that much of the evidence is unreliable because of a lack of honesty by most (or perhaps all) concerned. In Rashid v Munir & Ors [2018] EWHC 1258 Turner J, hearing an appeal from Judge Davey QC, concurred with the first instance judge’s finding that the evidence was “a festival of mendacity” (at [1]). Turner J added (at [19]):

“Attempting to establish the common but unstated intention of a group of individuals all giving honest but conflicting evidence is difficult enough. Where, as here, each witness is attempting to outdo the other in a rich display of competitive dishonesty the task of the judge is unenviable.”

58. In Suhner & Co AG v Transradio Ltd [1967] RPC 329 (referred to in Masson v Zahoor [2008] 1043 (Ch)), Plowman J set out a careful examination of the difficulties caused by litigation where all parties’ documents and evidence was under attack, with justification, for perjury and/or forgery.

59. The first issue is whether such lies are of significance to the litigation, or about some unrelated issue that is at best a question of credit: Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570. Whether the extent of the lying is such as to render the whole of the witness’s evidence unreliable will depend on the nature and extent of the lie: BSkyB v HP Enterprises Ltd [2010] EWHC 86 (TCC).

60. Even where witnesses are comparatively truthful, where they show unconscious bias (especially if hostility an issue as here), there is greater reliance upon contemporary documentation. In Gestmin SGPS SA v Credit Suisse UK [2013] EWHC 3560 Leggatt J at [15] – [22] stated:

“[15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

[16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

[22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

61. In “Lies, damned lies; abuse of process and the dishonest litigant” (26 October 2012, Lord Reed examined the role of the trial judge where substantial and serious wrongdoing had occurred prior to the completion of the trial:

“What I propose to discuss is how the courts deal with litigants who set out to deceive the court: who produce forged documents, or conceal the existence of relevant documents, or give untruthful evidence. I am not concerned with cases where the court only concludes that there has been dishonesty in its findings after proof. A finding at that stage that a document was forged or suppressed, or that a party told lies in his evidence, is part of the court’s ordinary adjudicative function. The judge may decide to punish the party for contempt, or refer the case to the prosecuting authorities, but he or she will nevertheless have adjudicated on the dispute. Where on the other hand it is established prior to proof, possibly as the result of an admission or a preliminary proof, or where it becomes apparent during the proof, that one of the parties is seeking to subvert the process of the court by fraudulent means, the court has to decide whether the case should be allowed to proceed any further. It has essentially two choices. It can decide to carry on notwithstanding the party’s efforts to subvert the court process, and do the best it can in the circumstances, or it can decide to dismiss the party’s case there and then.”

62. In Masson v Zahoor at [153], Peter Smith J stated at [153]:

“Putting it another way, if both sides have their ability to adduce evidence removed because of their misconduct one falls back on the principle that the case is decided on the basis that the party on whom the burden of proof lay has failed to satisfy that burden; see Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 at 951 B-D.”

63. Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 was referred to with approval by the New South Wales Court of Appeal in Jackson v Lithgow City Council [2008] NSWCA 312, although not precisely on this issue. Nevertheless, it is a principle of law of great assistance in circumstances such as the present.

Conclusions concerning unreliable and/or untruthful evidence

64. The relevant principles in relation to unreliable evidence from all parties indicate that the following conclusions should be drawn:

1. Where the evidence of all parties is unreliable or false, the trial judge should look to outside evidence which has not been contaminated with a greater degree of reliance than might otherwise be the case. This may be the case even where the witnesses are not telling wilful lies but show unconscious prejudice.

2. Where both or all of the parties are lying, then the judge may determine the issue on the basis of where the burden of proof lies.

3. Where the impact of the lies told by the parties, individually or collectively, means that large parts of the evidence should be rejected, the court is entitled to be “short” with its reasons: Rashid v Munir & Ors [2018] EWHC 1258 at [2].

A summary of the issues determined in this judgment

65. The principal issue for determination is whether the plaintiff was a publisher in the very broad Webb v Bloch sense (whether by setting up the false email address, or writing or authorising part or whole of the matter complained of, or both). If so, this largely resolves the plea of justification to the plaintiff’s claim and disposes entirely of the cross-claim, in that the sole defence to the cross-claim is denial of publication.

66. As is set out below in relation to the expert evidence (about the honesty and carefulness of which there can be no doubt) the evidence is overwhelming that the plaintiff did set up the false email address used for the attacking email. As Dr Clarke stated more than once in his evidence, there are simply too many coincidences.

67. The real difficulty, and the subject of much of the evidence, is whether the evidence extends to the plaintiff actually composing or writing part or all of the matter complained of. On the balance of probabilities, I note briefly that, while the defendants have failed to discharge the burden of proof that the plaintiff did play a role in actually writing the email, his liability for publication so that others could take this step is clearly demonstrable. While I have made this finding based in part on the evidence of persons whom I will refer to as the plaintiff’s “alibi” witnesses, I have done so principally upon the unchallenged evidence of the contents of the matter complained of, where it is clear that the first defendant is in fact asserting this and where, from the conversations attributed to the plaintiff, he appears to be admitting as much.

68. If I am satisfied that the plaintiff is a publisher of the attacking email, whether by setting up the account or by actually composing the publication, the sole issue on the cross-claim is damages. This involves assessment of damages and any mitigating circumstances, such as delay in bringing and conducting the action, which unfortunately were not the subject of submissions.

69. There are other issues for determination in these proceedings, including the making of findings in relation to the other defences pleaded by the defendants. I have dealt with these only very briefly in view of my findings as to the plaintiff’s liability for publication.

70. The final portion of this judgment relates to applications brought by the plaintiff for referral to the Supreme Court and for the defendants to reopen their case. Both these applications were refused.

71. Having noted these preliminary issues I set out a list of the witnesses called by the parties.

The witnesses called by the parties

72. I set out below a list of the witnesses called by the parties, as well as the day on which they were called and the relevant transcript references:

Witness	XN, XXN, Re XN	Transcript Pages
Day 1	-	-	-
Day 2	Plaintiff	XN by Gibson DCJ	74 - 79
Day 3	Plaintiff	XXN by D2	135 - 230
Day 4	Plaintiff	XXN by D2	241 - 257
		XXN by D1	259 - 287
	Vijaya Putaya Bilimagga	XN by P	290 – 293
		XXN by D1	293 – 298
		XXN by D2	298
		Re XN by P	299
Day 5	Plaintiff	XXN by D1	317 – 365
	Harsha Ramachandra	XN by P	368
		XXN by D1	368 – 374
		XXN by D2	374 – 387
		Re XN by P	387 – 394
	Shylaja Yalakkigowda	XN by P	398 – 402
		XXN by D2	402 – 408
		XXN by D1	408 – 420
Day 6	Shylaja Yalakkigowda	XN by P	444 – 447
		XXN by D1	447 – 452
	Vamsykrishna Doddala	XN by P	462 – 463
		XXN by D1	463 – 464
		XXN by D2	464 – 466
	Paul Issa	XN by P	473 – 480
		XXN by D1	480 – 481
		XXN by D2	481 – 484
	Plaintiff	XXN by D1	489 – 499
		Re XN by Gibson DCJ	499 – 511
Day 7	Neeti Sapish Pandya	XN by P	527 – 528
		XXN by D1	528 – 536
		Re XN by P	536 – 538
	Harjit Singh	XN by P	543 – 587
		XXN by D1	588 – 636
		Re XN by P	637
Day 8	-	-	-
Day 9	First Defendant	XN by Gibson DCJ	743
		XXN by P	743 – 797
Day 10	Dr Roger Clarke	XN by P	802 – 827
		XXN by D1	827 – 868
		XXN by D2	868 – 905
		Re XN by P	905 – 908
	Satish Busapala	XN by P	909 – 916
		XXN by D1	916 – 917
		XXN by D2	917 – 922
		Re XN by P	922 – 931
Day 11	First Defendant	XXN by P	940 – 1099
Day 12	First Defendant	XXN by P	1205 – 1274
	Second Defendant	XN by Gibson DCJ	1296 – 1302
		XXN by P	1302 – 1337
Day 13	Second Defendant	XXN by P	1257 - 1364
Day 14	Second Defendant	XXN by P	1370 - 1403
	Ashwin Vishweshwariah (Ashwin Gowda)	XN by D1	1406 - 1408
		XXN by P	1408 - 1464
		Re XN by D1	1464 - 1465
Day 15	Dr Vinod Narwal	XN by D1	1476 - 1478
		XXN by P	1479 - 1494
	Ravi Pullareddy	XN by D1	1501 - 1505
		XXN by P	1505 - 1518
	Second Defendant	XXN by P	1521 - 1552
	Yogesh Sharma	XN by D1	1554 - 1576
		XXN by P	1576 - 1620
Day 16	Peter Lindsay Chapman	XN by Gibson DCJ	1626 - 1653
		XXN by D1	1653 - 1683
		Re XN by P	1683 - 1692
Day 17	Allan Charles Watt	XN by D1	1704 - 1727
		XXN by P	1727 - 1801
Day 18	-	-	-
Day 19	Senior Constable Harold Vaisey	XN by D1	1830 - 1832
		XXN by P	1832 - 1846
		Re XN by D1	1846 - 1847
Day 20	Dr Chitralekha Gopalareddy	XN by D1	1862 - 1877
		XXN by P	1878 - 1969
		Re XN by D1	1969 - 1972
	Shrinivas Naik	XN by D2	1975 - 1984
		XXN by P	1985 - 1997
Day 21	Shrinivas Naik	XXN by P	2011 - 2065
		Re XN by D1	2065 - 2068
Day 22	-	-	-
Day 23	-	-	-

The atmosphere in the IAN prior to the matter complained of

73. The IAN had been a happy community organisation of Newcastle residents formerly from the Indian subcontinent for many decades, going back prior to the independence of India. The president was a Mrs Harjit Singh. There were many community activities in which the membership participated, including religious festivals. Although there were disputes and disagreements from time to time, these had never been sufficient to draw into dispute either the IAN’s antiquated constitution (which Mrs Singh told the court was drafted in 1943, at which time there were only 5 Indian families in Newcastle, as opposed to more than 450 at the present) or the very informal record-keeping methods, typical of an organisation of this nature.

74. Then, in 2011, the first defendant was elected to the small committee which ran the IAN. Soon afterwards, the IAN atmosphere changed, principally as a result of a series of emails accusing Mrs Singh and her supporters of a variety of misdeeds. One of these was an effectively anonymous email accusing Mrs Singh of criminal conduct, and calling for the replacement of Mrs Singh and others by a new super-committee of 12 persons. The first defendant’s name is second on the list and the second defendant’s name is further down.

75. Significantly, these emails followed a pattern:

1. Most of these attacks on Mrs Singh were “blind copied” to members of the IAN;

2. Some emails to members were anonymous, such as the 30 November 2011, which was headed “IAN Special Annual General Meeting (SAGM)”, was sent from a Gmail account called “TEAM@ SAGM” and signed “Fellow Community Members”;

3. There is no suggestion that the plaintiff played any role in any of these activities. If he was a member of the IAN at this time (which is doubtful) he was certainly not an active member; and

4. The defendants deny participating in any meeting or in drafting any document sent by the “Fellow Community Members”. Their evidence was this email attacking Mrs Singh was not sent by either of them or by anyone they knew and that they played no part in it, even though it supported the first defendant’s earlier email with the “list of 12” which included his name.

76. By June 2012, as is set out in the evidence of Mr Sharma (a work colleague of the first defendant who had been elected only weeks before), the atmosphere was so poisonous that Mrs Singh not being permitted to participate in any committee discussions. However, as Mr Sharma said in his evidence, this was carefully kept from the members.

77. As is set out in more detail below, it was some months before this time that the plaintiff moved into the Newcastle area and rejoined (or joined) the IAN after living for some time interstate. He became involved in a plan for a festival for the Indian god, Lord Ganesha. However, the first defendant had already had such a plan on foot for some time. Out of this relatively simple dispute about rival religious festivals, this litigation, namely two claims of defamation by the plaintiff against each of the defendants and a cross-claim by the first defendant against the plaintiff, was born.

78. In each case, the recipients of the emails containing the defamatory material were the members of the IAN. As the evidence demonstrates, these accusatory emails occurred after a series of similar attacking emails between committee members, at least one of which was anonymous. By the time of the first of the three publications sued upon (August 2012), the atmosphere was rancid with hatred.

79. The problem appears to have commenced with dissent in the committee in late 2010 or early 2011, so I shall start the story of this litigation at that point.

Factions develop in the IAN

80. The first defendant became the treasurer of the IAN after being invited by Mrs Singh, who was friendly with the first defendant’s wife, Dr Kaur. In April 2011 he received membership records from the previous treasurer. The plaintiff’s name was on that list, although apparently with an out of date or wrong email address; the plaintiff had been living in Melbourne with his family for some years and remained there until at least 2010.

81. After the plaintiff and his family moved to Newcastle, he and Dr Vadiraj Raghavendra approached the IAN for assistance in organising a function for the god Lord Ganesha. The plaintiff sent an email on 26 July 2011 which refers to the first defendant by name and there was a meeting between them in relation to this request. However, any degree of association between them at this stage was slight.

82. The plaintiff had a falling out with the other organisers of this function. However, he renewed his previously dormant IAN membership in August 2011.

83. In September 2011 the first defendant had an argument with Mrs Singh, who wanted him to invest funds in a particular account. When he did not do so, she did this. This led to angry scenes in the IAN committee and, later on, allegations by the first defendant that the money in question was “missing”, to use the word he gives in his chronology, although at all relevant times the funds remained with the IAN.

84. On 12 November 2011, some months after the first defendant had joined the IAN committee, Mr Amit Kalra sent the following email to him, Mr Amit Kumar, Inderjeet Chibber and Naveen Lingaiah (the second defendant), which appears to be a reply email to an email chain.

85. This email is headed “Re: Planning to send the email below to the IAN” and states:

“Hi All,

It’s very unfortunate that we’re being let down by Harjit, again. Her conduct is highly unbecoming of a President. Not only that, it sets up a wrong precedence [sic] for the future IAN committee.

I support & call for EO-AGM to sort out these violations of IAN constitution.

Regards,

Amit Kalra”

86. Mr Sood sent the following email, headed “Constitutional call for Special AGM”, to Tejinder Pal, Harjit Singh, Manoj Kumar, Kirti Shah, Amit Karla and the Indian Association of Newcastle’s Gmail account on 15 November 2011:

“Dear IAN Secretary/Treasurer and committee members,

I would like to submit the consent of the following 12 IAN members to call for an EOAGM (Extra Ordinary AGM) or special AGM as per the Article 12 section C of the constitution, The committee is bound to conduct a meeting within the 30 days of the receipt of the consent. In this case the meeting has to take place before 15/12/11.

The community members have come to know of the unconstitutional way the committee is being run by the president from the past and the current members of the executive committee. The community wants to tackle those issues and ensure that the members elected are working as per the constitutional expectations. The community feels that the President is answerable to them and hence would like to question the President and the committee.

Please ensure that this email is not ignored under any circumstances as this is being blind copied to all the community members who have given consent for this special AGM. There are many more around member families who are ready to give consent for the special AGM but constitution requires only 12.

The IAN Member names are as below

1. Amit Kalra

2. Amit Sood

3. Amrit Nahar

4. IGA Rana

5. Kulwant Virk

6. Naveen Gowda

7. Parminder Chibber

8. Sravanthi Balusu

9. Srinivas Naik

10. Umit Shah

11. Chaitanaya

12. Ravi Mehta

I will be sending a scanned copy of their consent later in the day today.

On behalf of the community members I would suggest that a meeting be called asap, As a representative of the community members listed above please contact me for any responses meant for these members on the issues mentioned in this email

--

Regards

Amit Sood”

87. On 17 November 2011, Mr Sood sent an email headed “Consent Giver #1” by forwarding Mr Amit Kalra’s email of 12 November 2011 to Tejinder Pal, Harjit Singh, Manoj Kumar and Kirti Shah, adding the following insulting comment to the email:

“Knowing you Harjit, I know you would demand individuals writing to you hence I am forwarding this email to the committee with all the Consent givers blind copied. The below is an individual consent No. 1.”

88. By this stage, as the first defendant acknowledged in his correspondence, he was not on speaking terms with Mrs Singh. It was in these circumstances that an anonymous email was sent. On 30 November 2011, this anonymous email, headed “IAN Special Annual General Meeting (SAGM)”, was sent from a Gmail account called “TEAM@ SAGM” to “Indian Associan” and Harjit Singh as follows:

“Dear IAN Members,

We would like to bring to your attention a few of the reasons for which the present IAN committee was forced to call SAGM. We expected that the explanation would have come from the President/Secretary as to why a Special Annual General Meeting (SAGM) had been called, unfortunately as usual members have not been briefed.

Some of the reasons being:

1. A SAGM can only be called at the request of 12 IAN members writing in person to the Secretary if there are critical concerns that the community wants to raise as per the IAN constitution

2. Primarily Five out of the original Eight members in the committee have resigned and leading to a lack of quorum to conduct any official business.

3. Allegations have been raised about significant financial irregularities/mismanagement, which may lead to dissolution of the association by government authorities.

4. Allegations of repeated violations of the IAN constitution, which may lead to the dissolution of the association by government authorities.

5. Allegations of autocratic functioning by the President thereby leading to mass resignations and lack of transparency.

We believe that if responsible governance is desired, then we must exercise our responsibility as members of this association/community and attend this SAGM.

If any member requires more information on these issues, please reply back this mail with your name and phone number so we can brief you with more details.

Best Regards,

Fellow Community Members”

89. The “fellow community members” were, of course, not identified. The first defendant denies that he played any role in this email’s preparation or publication, a denial that I have not accepted.

90. The allegations were withdrawn and peace was restored, temporarily, in an IAN email dated 10 December 2011. However, the contents of this chain of emails are relevant because the first of the three defamatory publications the subject of these proceedings, which is referred to throughout as “the attacking email”, is similarly anonymous and contains similar allegations of financial irregularities and mismanagement.

91. Despite this apparent acceptance that Mrs Singh had done nothing wrong, the plotters continued their plans and, as is set out in the evidence of Mr Sharma below, by June 2012 the faction which now dominated the committee had managed to “sideline” (to use his word) Mrs Singh entirely by preventing her from either contributing to activities or even voting, although these events had been carefully kept from the members.

92. It was in this poisonous atmosphere that the two festivals for Ganesh Utsava came to be held.

Two Ganesh Utsava festivals

93. I first note the evidence of all witnesses that this is a festival celebrated by Indian communities all over the world. There is no rule that there be only one such festival; multiple festivals are held not only in each country and city but even by similar Indian community organisations in those cities. The purpose of the festival is to celebrate the life of Lord Ganesha, the elephant god. It is an important event in the religious calendar.

94. Although there is no reason why there should be concern that there is more than one festival, those in charge of the IAN were anxious that members should know which function was theirs and which function the IAN wanted them to attend. In particular, they did not want members to be attending a function which the plaintiff had helped to organise.

95. The plaintiff began having problems organising his own function and with the IAN. On 17 August 2012 he complained to the IAN that he had not received his tickets to an IAN function. The following day he had an argument, apparently with security staff, when he tried to put up flyers for his function at Panthers Newcastle; according to the defendants, he thought the first defendant and Mr Kalra were behind this. He complained that there were attempts to stop people attending his Lord Ganesha function by confusing potential attendees so they would not attend.

96. Some members of the IAN were concerned that the confusion might work the other way. On 19 August 2012 at 8:03pm, the IAN sent the following email to its members:

“Ganesh Utsava Festival confusion – CLARIFICATION

From “Indian Association of Newcastle”

290. I have received only very limited submissions about the cross-claim; the cross-claimant’s submissions on this whole issue (pp. 45-46 of the defendants’ submissions) deal only with the extent of publication.

291. I made observations on a number of occasions during the hearing concerning the issue of damages for the plaintiff’s claim and the cross-claim. In particular, in relation to the damages in the cross-claim, I referred to the issues of extent of publication and delay in prosecuting the cross-claim by reason of the number of publications.

292. While the defendants did answer the plaintiff’s submissions concerning damages, including referring to some comparable damages awards and whether aggravated damages should be awarded, there were no similar submissions made in the plaintiff’s cross-claim. There is a section on the cross-claim in the defendants’ submissions which does address the issue of extent of publication, but none of the other damages issues I drew to his attention. Nor did the cross-claimant challenge the plaintiff’s submissions that the attacking email was part of a “tit for tat” campaign after the cross-claimant and his team sent an anonymous email earlier, beyond complaining that the plaintiff had changed tactics by raising this during submissions when it had not been raised in the trial (T 2151 – 2155).

293. I raised this with the cross-claimant after his submissions were provided:

“HER HONOUR: That applies to both of you. Where do I find your submissions on damages? I've seen some submissions in relation to aggravated damages by the defendants.

FIRST DEFENDANT: Yes, your Honour.

HER HONOUR: But you haven't made any submissions in relation to the damages on the cross claim, that's right, isn't it?

FIRST DEFENDANT: That was part of the damages overall, your Honour. HER HONOUR: Basically you say anything that you want to say, you have said?” (T 2131)

295. I have read the section on damages referred to by the first defendant, but it consists largely of generalised statements and references to damages awards rather than to specific reference to the factual matrix concerning the cross-claim and the basis upon which aggravated damages should be awarded.

296. The evidence at the trial was at best passing references to members of the IAN reading the matter complained of although one witness said he had never read it at all. The cross-claimant was clearly very angry about the publication, and there is evidence of hurt to feelings, but nothing more. There were no submissions about the matters raised in relation to aggravated damages; all I know about Mr Kalra is that Mrs Singh was upset that he was disparaged in the attacking email and that, according to a statement by the first defendant from the bar table, he has no wish to participate in these proceedings.

297. Reading through the cross-claimant’s written submissions, I have come to the conclusion that he does not really understand that he has a cross-claim for defamation involving a claim for damages, despite my pointing it out to him and despite receiving advice from his former solicitor from time to time (for example, his former solicitor gave him a list of legal issues). The plaintiff appears to have been labouring under a similar misapprehension.

298. Throughout the trial, all the parties expressed complete confidence in their understanding of all legal and technical issues. Attempts by me to assist the parties to understand the legal issues were unsuccessful. This is clearly another occasion where the parties have not understood the relevant legal issues.

299. However, it would be irresponsible of me to dismiss the cross-claim merely because the cross-claimant did not understand the legal issues or make submissions on the relevant facts and law. Accordingly, I have done the best I can, by relying upon the evidence and pleadings.

The cross-claimant’s hurt to feelings

300. There can be no doubt that the cross-claimant has been outraged to the point of obsessional fury by the contents of the matter complained of and that his rage and anger continue to this day.

301. Although there is no requirement to lead evidence of prior good reputation, there is often evidence led to establish that, prior to publication of the matter complained of, the plaintiff enjoyed an excellent reputation: see example, Zaia v Eshow [2017] NSWSC 1540 at [108]-[109]. Although the second defendant called his wife as a witness on other issues (T 1862-1972), the first defendant/cross-claimant did not call his wife or any member of his family to give evidence concerning his hurt and upset in relation to the matter complained of in the cross-claim.

Extent of publication of the matter complained of in the cross-claim

302. If all, or even a majority, of the IAN members had read the attacking email which is the cross-claim in these proceedings, there would have been an audience of several hundred persons.

303. One of the witnesses called by the defendant, Mr Naik, gave evidence that he received emails used by the IAN members email account and Arathi Deshpande email accounts, although his personal email was not registered with the IAN (T 2018-2019 and 2034-2035). However, he said that he did not read such emails and the first time he had seen this email was in the witness box. His explanation for this was a very understandable one:

“PLAINTIFF: Mr Knight [sic – Mr Naik], you were one of the members who signed for calling a special IAN general meeting. Is that right?

A. Yes.

Q. Please have a look at this email. You have seen this email before?

A. No, I haven’t received this email.

Q. Did you receive an email from members that day and Arathi Deshpande?

A. Yes.

Q. Yes. You are on the IAN mailing list, isn’t it?

A. Yes.

Q. What was that email account you had in the list?

A. It was [email protected].

Q. So this is also sent to all the IAN members how could you say that you have not received this email?

A. I haven’t read it ..(not transcribable)..

Q. You haven’t read‑‑

A. ‑‑I haven’t received it.

Q. The true question here I said have you received?

A. No.

HER HONOUR

Q. You weren’t asked whether you’d read it, you were asked if that email had come into your inbox?

A. I am not aware of this thing.

Q. But the thing is if you’re on the list for IAN members whether you read the email or not could you offer any explanation as to why you wouldn’t have received that email?

A. This is the first time I have seen this email, your Honour.

Q. Why wouldn’t you have read that email - aren’t you interested in IAN’s activities?

A. They were lots of emails coming through from so many people so I just ignored it.

Q. Do you think there are a lot of other people who would have just ignored emails because there were a lot of emails?

A. Yeah, because I do use my personal email that - that is..(not transcribable)[email protected], I mostly concentrate on that one rather than going on the other one. That one I only give for community and those sort of things.” (T 2011-2012)

304. There was an objection by the first defendant/cross-claimant as follows:

“FIRST DEFENDANT: Your Honour, the email sent by the..(not transcribable)..to whom all this email was sent extent of publication has not been established by the plaintiff.

PLAINTIFF: It says IAN members - it clearly says‑‑

HER HONOUR: It says IAN members.

PLAINTIFF: It’s clearly addressed there.

HER HONOUR: It says IAN members, but the thing is this, what this gentleman is saying is that he get emails in the IAN membership thing all the time which he - and so he gets them and he doesn’t bother opening them and that of course is relevant to the publication of the matter complained of as well because if there are a lot of emails - especially if there are a lot of attacking or angry emails - is that your observation there were a lot of angry emails?

WITNESS: Yeah, because it’s not related to me or anything I don’t want to get my head into all those sort of things I just ignore the emails for the‑‑“ (T 2013)

305. The cross-claimant, in his written submissions, states that Mr Naik’s evidence proves that the matter complained of in the cross-claim had been published beyond Newcastle and the Hunter area to email recipients as far as the Central Coast. However, what this excerpt of transcript demonstrates is that persons such as Mr Naik, who received IAN emails often, do not necessarily read them because they are simply not interested in reading every email, or even some of the emails, from organisations of this kind.

306. The issue of damage to reputation from publications of emails with this extent of publication is helpfully considered in Bristow v Adams [2011] NSWDC 11 and Bristow v Adams [2012] NSWCA 166. The plaintiff, the defendant’s former work supervisor, sent an email headed “I quit” not merely to the defendant but to another manager and to two other branch offices of the company. At first instance, no direct evidence was called to show how many persons had read the defendant’s email, or were likely to have read it. Although finding for the defendant on other grounds which were subsequently overturned on appeal, the first instance judge’s estimate of $10,000 ($7,000 general damages plus aggravated damages) was accepted by the Court of Appeal as appropriate.

307. A better comparison may be found in Takhar v Sroa [2017] SADC 110, in that there is considerable similarity in terms of publication as well as factual content. The plaintiff and defendant were both members of a Sikh religious community, of which the plaintiff was the president. The defendant caused a notice to be put on the temple notice board during a three-day religious festival. The plaintiff became aware of it immediately, as was the case here, and the notice was removed (in the present case, the committee of the IAN immediately issued a correction).

308. Stretton DCJ summarised the relevant principles as follows:

“[121] Damages are payable to compensate for injury to the plaintiff’s reputation, as a remedy for his injured feelings and to vindicate the plaintiff for having been publicly defamed. The law takes the plaintiff as it finds him.

[122] The court has regard to the provisions of the Act, and in particular that damages should bear an appropriate and rational relationship to the harm sustained by the plaintiff, that exemplary and aggravated damages are not claimed and cannot be awarded, and that the state of mind of the defendant is irrelevant to the award of damages except to the extent that it affects the harm sustained by the plaintiff, which latter factor is not relevant in this matter.

[123] Damages are to be assessed under ordinary common law principles subject to any mitigation and the statutory cap.

[124] The harm caused by the defamatory publication does not end at the time of publication but encompasses continuing harm including ongoing hurt feelings during and up to the conclusion of the litigation by the plaintiff seeking vindication.

[125] The court has regard to the submissions of both parties and all authorities cited, without repeating them here.

[126] The imputations made were materially critical of the plaintiff both personally and as to how he conducted himself as president of the Gurdwara generally over time and in a number of alleged instances. They were made within the religious community to which the plaintiff has significantly contributed and places great importance.

[127] The plaintiff has been genuinely hurt and upset by the defendant’s defamation of him.

[128] The imputations were however only published for a short time and in such a manner that prior to their removal by the plaintiff they were likely read by a very, very limited number of people, although that would have generated reasonably foreseeable secondary discussion beyond those people to a wider but still limited number.

[129] Whilst every case will be different and involve its own unique facts the court has had regard to other assessments in this jurisdiction in recent years.

[130] Having regard to the totality of the circumstances as found, the applicable statutory and common law principles, all cited authorities and the parties’ submissions, the court assesses the plaintiff’s general damages at $10,000.” (Footnotes omitted)

309. There can be no doubt that a considerable number of members of the IAN read the matter complained of the subject of the cross-claim. There was an urgent meeting the following day for the purpose of preparing a reply and this was done.

310. However, the evidence of Mr Naik that he often did not open IAN emails suggests that it is likely that quite a few ordinary members of the IAN community (as well as those persons whose email addresses may have been on the system although they were no longer, or perhaps had never been, members) would not have opened the email for the same or similar reasons to those of Mr Naik. There were similar statements by the second defendant’s wife and Mr Narwal, according to the plaintiff’s written submissions (paragraph 50).

311. There is no evidence of the email being circulated outside the IAN to, for example, persons outside the Indian community in the Newcastle area or associated regional areas. Although the evidence of Mr Naik suggests that some members lived outside Newcastle, there is no suggestion that the matter complained of went outside the borders of IAN membership.

312. Another factor relevant to the extent of publication is that the matter complained of was swiftly answered the following day and that the cross-claimant appears to have been, in large part, the author of this responding email. This was considered to be a relevant factor in Takhar v Sroa.

313. I next consider factors which may have a mitigating impact upon the circumstances of publication, namely the circumstances in which the matter complained of was published and the issue of delay.

The circumstances in which the matter complained of were published

314. As well as the extent of publication, I should have regard to the context in which the matter complained of the subject of the cross-claim was published, namely that it was published in the course of a series of emails over a period of several months where hostile views were expressed by more than one participant. This may in fact have something to do with Mr Naik’s failure to open the email in question.

315. I am satisfied that the matter complained of in the cross-claim was published to an organisation where the members were so fed up with angrily worded and at times anonymous emails that they were complaining about it, as is made very clear in the second defendant’s “apology” to IAN members for inflicting yet another group email on them. All the evidence points to many members of the IAN, even those in the defendants’ camp, having lost any desire to open these emails and read them.

The impact of delay upon damages

316. Another factor is the very significant delays in both bringing and prosecuting this claim. Again, this is an issue which I specifically asked the cross-claimant to address in his submissions:

“HER HONOUR: For example, you will have to refer to delay in bringing the case, or delay in prosecuting your case, or any other factors that you say are relevant in mitigation of damages, if there's any case for mitigation of damages, you'll have to address all of those issues. And similarly in your case you have to address Mr Mallegowda's debt claim for damages, all right. SECOND DEFENDANT: Yes, your Honour.

HER HONOUR: So you don't just put in all the evidence about how it's all true and so on, you also have to address the issue that if I don't accept that what kind of damages will he get, and similarly in yours you see, so think about that and think about what kind of time frame you want and I'll come back at 2 o'clock and I'll finish and hopefully we'll be able to adjourn the case before 3 o'clock.” (T 2099)

317. Although first in time, proceedings for defamation reliant upon the cross-claim were commenced close to the end of the limitation period and thereafter prosecuted with a low level of diligence. There was a series of adjournments of this case because the defendants sought to reopen their case to obtain documents from the Supreme Court and the Supreme Court file (where no formal application was in fact made and the relevance of the documents is speculative) and/or tender further expert evidence (the first adjournment), call evidence from the plaintiff’s brother and reopen the case. The delays caused by these applications also affected the resolution of the cross-claim. Some small discounting of the general damages should be reflected accordingly.

The cross-defendant’s submissions as to mitigation of damages

318. The cross-defendant (paragraphs 476-493) submits that any damage to the cross-claimant’s reputation arose from the audit report which “carries more defamatory imputations” concerning the cross-claim than the matter complained of. The cross-defendant submits that “whoever has written that email, it is the statement of facts and truth, which can be justified with reference to the audit report”.

319. This is one of many examples of the inability of the parties to understand the relevant principles of law concerning defamation. It matters not that others have made similar defamatory statements of and concerning the cross-claimant, and the circumstances in which such statement could be relied upon by way of mitigation of damages (which appears to be what the cross-defendant is suggesting) are to be viewed with extreme caution (Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215). In reply (see the heading “Reply to paras 476-493”) in the cross-claimant’s unnumbered folder two “Defendants’ reply to plaintiff’s submissions”, the cross-claimant appears to have misunderstood this as being a late attempt to plead justification, and indignantly objects. Unfortunately, however, the cross-claimant has not addressed other damages issues of more relevance to these proceedings.

Aggravated damages

320. The cross-claimant’s particulars of aggravated damages have been extracted from the cross-claim and are set out above. He has not addressed any issue in relation to this claim, despite my drawing to his attention that all issues as to damages should be addressed in the written submissions. I have based this part of my judgment on the particulars provided in the cross-claim.

321. As to falsity of the imputations, the cross-claimant and plaintiff both made submissions about the accountant’s report. The cross-claimant’s explanation was that he was the person who arranged for this report to be obtained (as noted above, I am satisfied that Mrs Singh and the others involved in trying to restore harmony (such as Mr Tapan Goswami) were responsible for this step). That report does demonstrate that the first defendant has not stolen money, although painting a picture of general incompetence.

322. As to language issues, there is a strong element of “tit for tat”, in that other anonymous emails were circulated by those in the opposing camp of the first defendant. This is clearly indicated not only by the evidence of Mr Naik but by the contents of the second matter complained of, where the second defendant purports to apologise for sending yet another group email to a community clearly fed up with these unpleasant and at times childish emails.

323. There is no evidence before me to determine whether any failure to apologise was wrongful. There is no evidence of an apology being sought.

324. Taking all of the above into account, even allowing for the difficulties for a litigant in person who does not understand he actually has brought a claim for defamation and has made no submissions as to an entitlement to aggravated damages, I cannot see that any claim for aggravated damages has been made out.

Conclusions concerning the cross-claim

325. As noted above, I have found that the plaintiff was a publisher of the attacking email, the sole defence of denial of publication has fallen away and the sole question is one of damages.

326. The quantum of the claim, taking all of the circumstances set out above, is a modest one, and I particularly note the consideration of these issues in Takhar v Sroa. Taking all the relevant factors into account, the general damages to be awarded for the cross-claim are $5,000, as no allowance for aggravated damages should be awarded.

325. I will grant liberty to apply in relation to interest.

Other issues for determination

328. Two other issues remain to be determined:

1. The plaintiff’s applications under Section 203 District Court Act 1973 (NSW) and ss 327 and/or s 338(c) Crimes Act 1900 (NSW); and

2. The defendants’ application to reopen their case.

Application by the plaintiff for referral to the Supreme Court and/or to prosecute the second defendant and a witness

329. The plaintiff makes an application for the second defendant’s conduct to be referred to the Supreme Court for determination of whether a contempt of court has been committed (written submissions, tab 2, p. 1). He made that application orally on day 12 of the hearing (T 1200) and I asked him to bring such an application at the close of the evidence, and during submissions. This was, as the transcript will show, as a result of the level of anger and hostility the parties were showing to each other on that and the previous day, and I was concerned that their anger could spill over into conduct of an even worse kind.

330. Section 203 District Court Act 1973 (NSW) provides:

“203 Power to refer allegation etc of contempt to Supreme Court

(1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination.

(2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate.”

331. The procedure which the court should adopt is set out in Court of Appeal, Registrar of v Maniam (No 1) (1991) 25 NSWLR 459 at 469F and in Mohareb v Palmer [2017] NSWCA 281. A court does not require oral evidence in relation to such an application, as the issue can be determined “on the papers” in an appropriate case: Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181 at [27] – [31]. I am satisfied that I have all the relevant information before me to enable me to deal with this application.

332. The plaintiff also brings an application for the second defendant and Mr Gowda to be referred to the Attorney-General to be prosecuted for perjury under ss 327 and/or s 338(c) Crimes Act 1900 (NSW) and/or to be granted leave to prosecute the second defendant and Mr Gowda for perjury under s 338(c) Crimes Act 1900 (NSW) (written submissions, tab 2, p.1). The procedure which the court should adopt is set out in Mohareb v Palmer [2017] NSWCA 281.

333. The plaintiff’s submissions sit ill with his own conviction for contempt of court, given the observations of Adams J concerning not only the conduct for which he was referred, but the manner in which the plaintiff was guilty of what Adams J called “perjury” (in relation to his subsequent conduct) in his Honour’s sentencing remarks, in the extract from those remarks set out earlier in this judgment.

334. The manner in which these applications were raised creates difficulties, in that the second defendant had to determine whether to elect to reply and Mr Gowda has not been afforded any opportunity to reply at all.

335. I am satisfied that both these applications are entirely unmeritorious. The asserted differences in evidence are, to use the defendants’ description in their submissions, trivial. Both applications are dismissed.

336. The defendants appear to hint, at various stages of these proceedings, that they would be seeking a referral of the plaintiff for a second time in relation to contempt of court (and I particularly note the contents of page 67 of the defendants’ submissions). These include claims of “threats, abusive phone calls and threats to witness [sic] by the plaintiff to defendants [sic] their families and Mr Ashwin Gowda” (submissions, p. 67). There is also reference to the plaintiff’s conduct in court in relation to Dr Gopalareddy at T 1870 – 1871.

337. There must come a time when this litigation is concluded. If the defendants have concerns for their safety, these are issues which should be raised with the police. I do not propose to make any referrals of any party or witness in these proceedings. I note, as I have done in previous judgments, that the increasing regularity with which applications of this kind are brought by litigants in person should be a matter for consideration by the legislature.

The defendants’ application to reopen their case

338. After the technical evidence submissions were provided, the defendants brought an application to reopen their case to call evidence from the plaintiff’s brother, a resident of India, and to tender a large volume of computer and telephone records, some of which (especially the telephone conversations) appear to have been illegally recorded. So large was the amount of material tendered that the attachment could not be opened on the court’s computer system. Most of the relevant documentation is now only accessible online.

339. The reason for the late tender of this material appears to be that the plaintiff and his brother have had a falling out and the plaintiff’s brother now wants to give evidence from India (along with other residents there) about admissions the plaintiff made to him about the attacking email, which include copies of the illegally made telephone conversations and of computer records the plaintiff is asserted to have hidden from the court.

340. The hearing time had already been used up and both parties had closed their cases. Accordingly the defendants required leave to reopen their case.

341. The principles for reopening a case and recalling witnesses or seeking leave to adduce further evidence are set out in Reid v Brett [2005] VSC 18 at [41]. The relevant principles governing the exercise of discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered are:

1. the further evidence must be not merely admissible, or even relevant, but so material to the case that the interests of justice require its submission;

2. the further evidence, if accepted, would most probably affect the result of the case;

3. the further evidence could not by reasonable diligence have been discovered earlier; and

4. no prejudice would ensure to the other party by reason of the late admission of the further evidence.

342. I have also had regard to the principles set out by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267.

343. I have already decided the case in favour of the defendants and nothing further is gained by granting leave to reopen.

344. Even if I had found for the plaintiff, I would not have been prepared to grant leave to reopen. The chronology demonstrates that the defendants were talking to the plaintiff’s brother over a long period of time prior to bringing this application and they elected not to tell the court this, but to give other explanations for delay in relisting the hearing, such as the claim that they wanted access to the Supreme Court file. The experts had given their evidence and been cross-examined and would probably have had to be recalled, given the nature of some of the evidence. The logistics of calling witnesses from India (even assuming they came to Australia to give evidence) and the amount of time involved would have been disproportionate in terms of the interests of justice as set out in s 61 Civil Procedure Act 2005 (NSW).

345. In Clone Pty Ltd (ACN 060 208 602) v Players Pty Ltd (recs and mgrs apptd) (ACN 056 340 884) (in liq) and Others [2018] 353 ALR 24 the Court stated:

“[69] In the Full Court, Players submitted that a strict approach to the requirements for a court to set aside its own perfected judgment, which confined the general power to fraud, would have an absurd consequence. It would mean that misconduct that is discovered before an appeal might be sufficient for the appellate court to order a new trial but if discovered after the appeal then it would not be sufficient. There is nothing absurd about this consequence. As Debelle AJ correctly observed in the Full Court, the submission ignores the interest of finality in litigation. As five members of this Court said in Burrell v R, the interest of finality means that “[l]ater correction of error is not always possible. 353 ALR 24 at 43 If it is possible, it is often difficult and time-consuming, and it is almost always costly.” Even then, if the misconduct amounts to fraud, equity supplies a narrowly defined exception to the principle of finality that permits rescission of a perfected judgment by the original court even after the appeal process has been concluded.

[70] This litigation is a good illustration of the need for a strict approach to finality. The trial judgment which was set aside on Players’ application, and the new trial which was ordered, concerned events that occurred nearly 25 years ago. The original 29-day trial was held almost 13 years ago. Issues related to the trial have been the subject of three appeals to the Full Court of the Supreme Court of South Australia, three applications for special leave to appeal, and the present appeals to this Court. Even apart from the non-financial impact upon the parties of the prolonged dispute, the legal costs of these proceedings must be many multiples of the underlying value of the licences, which, at best, was $750,000.” [footnotes omitted]

346. While the degree of delay here is much smaller, so are the sums of damages involved. The bringing of applications of this nature undermines the principles of finality in litigation.

347. There are many examples of court proceedings which come to an end after many years of litigation “without the slightest benefit to any of the litigants” (to use the words of Starke J in Webb v Bloch, when describing the trigger to the matter complained of, namely prolonged litigation). The prolonging of this litigation is not to be encouraged.

348. Accordingly the defendants’ application to reopen their case must be refused.

Costs

349. While I have granted liberty to apply in relation to interest and costs, I have made some costs orders, and will make general observations concerning the issues remaining to be determined.

350. The parties in these proceedings have expended vast sums of money before acting for themselves. The sum of damages awarded on the cross-claim is very modest.

351. There are substantial factors going against the making of an order for costs to follow the event. Some would be as follows:

1. While the parties were represented, considerable costs were wasted by vacated hearings and applications which resulted from the parties’ disorganised conduct of the case. I have been shown memoranda of fees on both sides for fees in excess of half a million dollars.

2. During the hearing before me, at all relevant times, the parties have acted for themselves. Litigants in person are only entitle to claim disbursements. I note that in Brisciani v Piscioneri (No 4) [2016] ACTCA 32, where both parties represented themselves, the costs order made was that each party “should pay their own costs as applicable”.

3. The cross-claim was barely mentioned during the hearing and is the subject of submissions which are, at best, desultory. They have resulted in a very small award of damages. In Milne v Ell [2014] NSWCA 407 the Court of Appeal not only dismissed an appeal from a refusal of McCallum J to award costs in proceedings where the award was $15,000, but awarded no costs in the appeal.

4. The costs assessment of these proceedings will be an onerous and difficult task if it is conducted in the same combative way as this litigation.

352. Taking into account the difficulty that the parties have had in making submissions on liability and damages, I have taken the course of setting out some costs orders that I consider would adequately cover the most relevant costs, namely the defendants’ reasonable disbursements for the hearing and the costs of the cross-claim, which I consider would be appropriate to award to the defendants. I have given liberty to apply in relation to any claim for costs by the defendants’ former solicitor but that must be done within 28 days, and there is a self-executing order to this effect. These proceedings must be finalised.

353. One exception to this liberty relates to the costs for to vacated hearings of these proceedings. The main responsibility for the adjournments during the hearing and a number of the vacated trial dates lies upon the defendants. Rather than try to sort out which times the defendants were responsible and which times the plaintiff was responsible, I take the view that the fairest way to apportion liability is to make an order for each party to pay his own costs in relation to the vacated hearing, but that the defendants should be entitled to their reasonable disbursements for the duration of the trial.

354. The other exception to the liberty to apply for the defendants’ former solicitors is the question of costs of the referral of the plaintiff to the Supreme Court. In Johnston v Nationwide News Pty Ltd [2005] NSWCA 17, Ipp JA stated that there was “a real question” as to whether the District Court had the power to make such an order:

“[23] I turn now to the application for leave to appeal against the order for costs made by Sorby DCJ against the claimant. In my opinion, for the following reasons, the application for leave to appeal against this order should also be dismissed.

[24] Firstly, there is a general reluctance on the part of the Court to grant leave to appeal in respect of costs orders alone. Secondly, no submission was made to Sorby DCJ that the Court had no power to make an order as to costs. Thirdly, while Mr Leopold submitted that the Court had power to make a costs order under s 148B(1)(a) of the District Court Act, Mr Evatt, for the claimant, did not contend to the contrary. Fourthly, Mr Evatt said that he had no separate submission as to costs in addition to those based on his argument that the judge had made errors in determining whether or not he should make a reference to the Supreme Court.

[25] Accordingly, while I consider that there is a real question as to whether the District Court has power to make a costs order when an application is made under s 203, I do not think this is an appropriate vehicle for the consideration of that question.”

355. There is no reference to costs in the judgment of Elkaim SC DCJ dated 2 October 2013 or in the subsequent transcript following that referral. In the circumstances, I propose not to make any orders for costs in relation to this issue other than to direct the parties to bear their own costs. I note that the plaintiff was subject to a costs order in the Supreme Court and it may well be that these orders (about which I have not been provided with any information) will suffice.

Orders

1. Judgment for the defendants on the plaintiff’s claim.

2. In relation to the Cross-Claim, judgment for the cross-claimant against the cross-defendant in the sum of $5,000.

3. The plaintiff pay the defendants’ reasonable disbursements of the trial commencing on 2 February 2016 before Gibson DCJ, including reasonable disbursements relating to the preparation of the hearing and at all times when they have been self-represented, such disbursements to be agreed or assessed.

4. Subject to existing costs orders to the contrary, the parties pay their own costs of all vacated hearings prior to the trial of these proceedings and in relation to the referral to the Supreme Court.

5. In relation to the Cross-Claim, cross-defendant to pay cross-claimant’s legal costs and, where the cross-claimant has represented himself, the cross-claimant’s reasonable disbursements.

6. Liberty to apply in relation to costs and in relation to interest (in relation to the cross-claim), such liberty to be a self-executing order, to be exercised within 28 days.

7. The plaintiff’s applications under s 203 District Court Act 1973 (NSW) and ss 327 and/or s 338(c) Crimes Act 1900 (NSW) are refused.

8. The defendants’ applications for leave to reopen are refused.

9. Exhibits retained for 28 days.

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Decision last updated: 29 October 2018