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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mallegowda v Sood (No. 6) [2018] NSWDC 281
Case
[2018] NSWDC 281
Decision Date
CaseChat Overview and Summary
In Mallegowda v Sood (No. 6), the plaintiff sought to hold the defendants liable for defamation after they circulated an email to members of the Indian Association of Newcastle, claiming the plaintiff was responsible for publishing an anonymous email accusing the defendants of dishonesty and misuse of community funds. The defendants, in turn, filed a cross-claim asserting that the plaintiff was the actual publisher of the anonymous email. The defendants also raised the defence of justification, contending that the plaintiff was indeed responsible for the creation of the fictitious email account used to send the anonymous email. The case proceeded with the parties representing themselves, leading to significant case management issues. Additionally, the plaintiff’s conduct in pleading guilty to a charge of contempt of court for attempting to influence a witness in these proceedings further complicated the proceedings.
The primary legal issues before the court were whether the defendants’ email was defamatory, whether it was justified, and whether the plaintiff was the publisher of the anonymous email. The court found that the plaintiff was the publisher of the anonymous email, as evidenced by expert reports and expert testimony indicating that the relevant email addresses were created at the plaintiff’s home and place of work. Consequently, the court ruled in favour of the defendants on the defamation claim and on the cross-claim. The court also dismissed various applications by the parties, including the plaintiff’s application for referral of a party and a witness to the Supreme Court for contempt of court and the defendants’ applications to reopen their case.
The court awarded $5,000 to the cross-claimant for the limited extent of publication of the defamatory material. The court ordered the plaintiff to pay the defendants’ reasonable disbursements, and directed that the parties pay their own costs of vacated hearings and the referral to the Supreme Court. The plaintiff’s applications under s 203 District Court Act 1973 (NSW) and ss 327 and/or s 338(c) Crimes Act 1900 (NSW) were refused, as were the defendants’ applications for leave to reopen. Exhibits were retained for 28 days.
Orders
Orders of the court
(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.