Miglani v Kanwaljit (Ruling)
[2022] VCC 995
•4 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-20-01337
| AMIT MIGLANI | Plaintiff |
| v | |
| KANWALJIT KANWALJIT | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2022 | |
DATE OF RULING: | 4 July 2022 | |
CASE MAY BE CITED AS: | Miglani v Kanwaljit (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 995 | |
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Subject:PRACTICE AND PROCEDURE
Catchwords: Defamation – stay application until completion of criminal proceedings – real risk of prejudice to defendant outweighs prejudice to the plaintiff – Section 128 certificate would not nullify prejudice
Legislation Cited: Estate Agents Act 1980 (Vic); Evidence Act 2008 (Vic); Civil Procedure Act 2010 (Vic)
Cases Cited:Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337; McLachlan v Browne(No 9) [2019] NSWSC 10; Villan v State of Victoria [2021] VSC 354
Ruling:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Castelan | Defteros Lawyers |
| For the Defendant | Mr A Anderson | Melbourne Legal Group Pty Ltd |
HER HONOUR:
1This is an application by the defendant for a stay of the proceedings until the completion of criminal proceedings relating to charges brought against the defendant pursuant to the charge and summons dated 20 July 2021, or until further order of the Court.
2In his Further Amended Statement of Claim, the plaintiff alleges he was defamed by the defendant in:
(a) a text message sent to a Ms Rashi Kapoor in which the defendant says the plaintiff raped a schoolgirl in Ghaziabad, lied to her, and owes over a million dollars to people which he has spent on drugs and sex (“the first publication”);
(b) an email sent to 26 recipients in which the defendant says the plaintiff used trust account funds from MIG Real Estate to pay for a personal holiday, used trust account funds inappropriately, caused losses to tenants, and is responsible for causing people to lose deposits on properties (“the second publication”);
(c) an Instagram post in which the defendant implies the plaintiff has ripped off his employees and stolen trust account money (“the third publication”);
(d) an email to seven recipients in which he says that thousands of dollars of trust money ended up as sponsorship money for the Australia India Business Council (“the fourth publication”); and
(e) a verbal conversation with Rohit Sharma in which the defendant said the plaintiff is dodgy, cannot be trusted, is a cocaine addict and has a rape case against him (“the fifth publication”).
3The plaintiff also pleads common law assault arising from:
(a) a telephone call on 9 September 2020 during which an unknown caller referenced the defendant and told the plaintiff that if money owed by the plaintiff to the defendant was not given, he would be the cause of his parents’ deaths. On this date, shots were fired at the residence of the plaintiff’s parents in India;
(b) a telephone call to Ms Rachna Miglani, the plaintiff’s ex-wife, on 9 September 2020 in which an unknown caller said there were some gunshots at Amit Miglani’s house today and the money that Amit has kept from Sonu must be returned;
(c) further telephone calls between 12 September 2020 to 12 October 2020 to the plaintiff from unknown overseas numbers which he did not answer;
(d) allegations that Rohit Sharma has been told by a number of people that he should “pull out” from being a witness;
(e) an allegation by Navdeep Singh, who knows both the plaintiff and the defendant, that the defendant arranged the shooting on 9 September 2020;
(f) text messages sent to the plaintiff on 28 September 2020 threatening the plaintiff and his parents with violence;
(g) text messages sent to Ms Rachna Miglani on 28 September 2020 threatening her mother with violence.
4The defendant has not yet pleaded to the most recent iteration of the Statement of Claim, however in his Defence and Counterclaim filed 6 November 2020, the defendant:
(a) admits he sent the first publication but denies it was published in Victoria, and pleads defences of justification and qualified privilege;
(b) denies he published the second publication and pleads in the alternative a defence of justification;
(c) admits he published the third publication and pleads a defence of justification;
(d) denies he published the fourth publication and pleads a defence of justification;
(e) admits he had an oral conversation with Rohit Sharma but denies some of the content of that conversation and pleads defences of justification and qualified privilege.
5Further, the defendant makes a counterclaim that the plaintiff owes him various amounts of money totalling $127,146.50 plus interest.
Background
6The plaintiff and the defendant were former colleagues at MIG Real Estate who subsequently became competitors in the real estate industry. The plaintiff was a director of SNM Properties Pty Ltd which traded as MIG Real Estate.
7The plaintiff admits he owed the defendant money and reached an agreement to pay that money. The amount of money owed is not agreed.
8The plaintiff pleads he has “developed a valuable reputation among the real estate industry in Victoria since 2005” and since 2019, has provided consultancy services to Okas Property Group Pty Ltd.
9On 27 September 2018, SNM Properties Pty Ltd, trading as MIG Real Estate, was directed by the Minister responsible for administration of the Estate Agents Act 1980 (Vic) to cease carrying out its estate agency business and to appoint a person to wind up that business.
10On 10 March 2020, the plaintiff was interviewed by police. During that interview, it was alleged against the plaintiff that he had failed to retain deposit money held in trust on behalf of SNM Properties Pty Ltd in relation to nine properties.
11On 16 October 2020, criminal charges were brought against the plaintiff by Consumer Affairs Victoria in the Magistrates’ Court of Victoria. There were 118 charges alleging breaches of s90(1) and s91(a)(i) of the Estate Agents Act 1980, which are indictable offences.
12The charges were essentially allegations of trust account deficiencies and fraudulent use of trust funds. The charges related to conduct of the plaintiff between November 2017 and September 2018 and carried potential terms of imprisonment.
13By affidavit dated 24 November 2020, the plaintiff’s solicitor informed the Court the plaintiff denied the allegations and would “contest the matter strenuously”.
14The plaintiff submitted that there was a substantial degree of overlap between the charges and the pleading of justification made by the defendant in his Defence and Counterclaim. The plaintiff submitted that, if required to run the defamation proceedings prior to or alongside the criminal proceedings, he would reveal how and in what way he may wish to defend himself against the charges. He may have had to disclose information in these proceedings that he could not be compelled to disclose in the criminal proceedings. The plaintiff submitted that the defendant’s counterclaim involved properties that were also the subject of some of the charges.
15On the basis of the plaintiff’s submissions and affidavit material, the defendant consented to his application for a stay of these proceedings.
16Orders were made by me on 5 February 2021 staying this proceeding until the completion of criminal proceedings or until further order of the Court.
17On 30 March 2021, the plaintiff instructed his lawyers to “provide an offer on my behalf to plead guilty to two ‘rolled up’ charges”. I do not know what those “rolled up” charges were. The plaintiff and Consumer Affairs submitted an agreed Statement of Facts and the plaintiff entered pleas of guilty.
18On 3 August 2021, the plaintiff was convicted and sentenced to a Community Correction Order, with conviction, for 18 months, requiring 300 hours of community service.
19Although he entered a guilty plea, in his affidavit material filed in this application, dated 8 June 2022, the plaintiff says “to this day I have always maintained that I had an arguable and valid defence to the charges” and said “the predominant reason why I instructed my solicitors to offer a guilty plea was that I wanted to move forward with my life”. He said “I did not wish to have the charges hanging over my head for several years” and that he had been advised by his lawyers that if he contested the charges there “would have been an inordinate delay before the matter could be finalised”.
20After pleading guilty and having been convicted and sentenced, the plaintiff appealed his sentence in the County Court. His appeal was dismissed on 22 November 2021.
21On 8 March 2022, the plaintiff’s lawyers contacted the Court to advise that the criminal proceedings were now finalised and seeking to have the matter listed for directions.
22Meanwhile, on 3 October 2020, the plaintiff made a statement to police in relation to conduct of the defendant, in particular alleging the defendant had:
(a) met with him on 21 or 22 November 2018 demanding money and “saying things like, ‘if you don’t pay me I’ll kill you. You are a con man. You have run away with a lot of peoples [sic] money. You are a rapist;’”
(b) continued to abuse the plaintiff until February 2019;
(c) gone to The Age newspaper on 30 and 31 March 2019 to make false reports about the plaintiff, including that he was a conman;
(d) called the plaintiff on 24 July 2019 to arrange a meeting at Crown Casino;
(e) told the plaintiff that if he did not pay him money “I will end your life. I will finish you and your family. Your parents still live by themselves in India. I have a picture of your house in India. I know where all your family lives;”
(f) continued, between 10 August 2019 and February 2020, to call and text threats such as, “If you don’t pay me I’ll kill you”.
23In that statement, the plaintiff also said:
(a) someone had fired gunshots at his parent’s house in India and the plaintiff and his wife had both received threatening calls in the aftermath of the shooting;
(b) on 18 September 2020, he received a phone call from Rohit Sharma in which Rohit Sharma told the plaintiff that he had received phone calls from people telling him to mediate the dispute between the plaintiff and the defendant;
(c) on 25 September 2020, he received a call from Navdeep Singh in which Navdeep Singh said he was “being pressured” to mediate;
(d) he and his ex-wife received threatening text messages on WhatsApp on 28 September 2020 threatening to kill their families and to “rip your eyes apart”.
24On 20 November 2020, the plaintiff made another statement to police in which he alleged:
(a) on 24 July 2019, the defendant called to threaten him that he would not “stop slandering my name” unless the plaintiff paid him his money;
(b) the defendant said “the consumer affairs investigation is still going on, I could make it worse”;
(c) on 8 August 2020, the defendant called again and admitted he had gone to The Age newspaper and posted an article “slandering” the plaintiff;
(d) insisted the plaintiff pay him money and “everything will go away”.
25On 20 July 2021, the defendant was charged with the following:
Charge 1
“The accused at Kew on 21st or 22nd November, 2018 did without lawful excuse make a threat to Amit MIGLANI to kill such person intending that Amit MIGLANI would fear such threat would be carried out or being reckless as to whether or not Amit MIGALNI would fear that the said threat would be carried out.”
Charge 2
“The accused at Southbank on 31st of July, 2020 did without lawful excuse make a threat to Amit MIGLANI to kill such person intending that Amit MIGLANI would fear such threat would be carried out or being reckless as to whether or not Amit MIGLANI would fear that the said threat would be carried out.”
Charge 3
“The accused at Burnside Heights on (sic) did use a carriage service in a manner which a reasonable person would regard as being harassing, namely Amit MIGLANI.”
26The defendant appeared before the Magistrates’ Court on 7 June 2022 and a contest mention has been fixed for 21 September 2022. A date for trial has not been fixed but would likely, according to the evidence before this Court, take place in the second half of 2023.
27The defendant says there is substantial overlap in the subject matter of the criminal charges he faces and this proceeding. Further, the content of the plaintiff’s statements to police traverse matters in this proceeding and could form the basis of further charges. The defendant says this poses an unacceptable risk of prejudice to him in defending the criminal charges and this proceeding ought to be stayed pending completion of the criminal case.
28The plaintiff opposes the application. He says there is little or no overlap between the charges and the defamation claims and that any risk the defendant faces could be ameliorated by the provision of a certificate pursuant to s128 of the Evidence Act 2008 (Vic). The plaintiff says he has already suffered significant harm arising from the defamatory statements and would suffer great prejudice if there was any further delay in vindicating his reputation.
29In Commissioner of the Australian Federal Police v Zhao,[1] the Court said, in the context of that case:[2]
“… Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.”
[1] [2015] HCA 5 (“Zhao”)
[2] (Ibid) at paragraph [35]
30In Zhao, the High Court determined that the charges underlying both the forfeiture proceedings and the criminal proceedings were the same charges. The prejudice to the accused if the forfeiture proceedings had been heard first was “plain”, there was a real possibility that the prosecutor in the criminal proceedings might come into possession of evidence that would be given in the forfeiture proceedings and that, even if the prosecutor were not able to use that evidence directly, the possession of that evidence by the prosecution might affect the accused’s defence.
31In Coleman v Health Care Complaints Commission of NSW,[3] the Court noted that the Tribunal, at first instance, considered that the fact that the proceedings were disciplinary provided protection for Dr Coleman against the risk of prejudice. The hearing room could be ordered closed, a certificate pursuant to s128 of the Evidence Act could be provided, and non-publication orders could be made to ensure only the parties and their representatives were in possession of potential prejudicial evidence.
[3] [2020] NSWCA 337 (“Coleman”)
32On appeal, the Court found that at least one of the issues raised would be the same as one of the issues in the “foreshadowed” criminal charge, despite the prospects of further criminal charges being uncertain. Even if the further criminal charge did not proceed, potential prejudice existed, because the complaints against Dr Coleman in the Tribunal (in that case, a failure to keep adequate medical records) could arguably overlap with contentions put at the criminal trial that he deliberately withheld information from referring general practitioners – giving rise to an inference that Dr Coleman’s failure to keep proper records was the means by which he deliberately withheld information from referring doctors. The criminal charges and the disciplinary charges did not directly overlap, but the Court was satisfied that there was the potential for overlap.
33The Court rejected the submission that appropriate protective measures could be taken and noted that “the keeping secret of pre-trial evidence does not preclude relevant prejudice being suffered”.[4] The Court was satisfied that there was potential prejudice to Dr Coleman which could not be removed by protective measures. In weighing up the prejudice to Dr Coleman against the prejudice to the other party in granting a stay, the Court noted that the disciplinary proceedings dated back many years and no explanation had been provided to the Court for the delay in prosecuting them.
[4] (Ibid) at paragraph [47]
34As was noted in Zhao, “[n]o litigation should be delayed except for good cause”;[5] however, this does not mean that a case should proceed “at all costs”.
[5] Zhao (supra) at paragraph [39]
35In McLachlan v Browne(No 9),[6] an application for a stay was made just weeks prior to the trial of a defamation proceeding as criminal charges had recently been commenced. In that case, there was significant overlap between the charges laid and the pleaded defence of truth. The judge noted an “exact overlap between the criminal allegations and the issues raised in the particulars to the truth defences”[7] and found that “[i]t follows that, if a stay is not granted, the civil action will in effect be a ‘dress rehearsal’ for the criminal trial, … [t]he prospect of the cross-examination in the criminal trial being informed by statements made by Mr McLachlan in the civil trial is the very jeopardy protected by the privilege against self-incrimination.”[8]
[6] [2019] NSWSC 10
[7] (Ibid) at paragraph [38]
[8] Ibid
36In the present case, there is not an exact overlap between the criminal charges and the truth defences in the defamation claims. The truth defences largely relate to allegations that the plaintiff engaged in fraudulent and criminal conduct relating to, amongst other things, management of deposit and trust money, sexual assault and drugtaking, rendering the content of the publications true or giving rise to a defence of qualified privilege. The defendant disputes some but not all of the publications, but it appears that publication will not be the primary ground on which the claim is fought.
37In contrast, the criminal charges relate to the defendant and his alleged conduct in making threats to the plaintiff and the plaintiff’s ex-wife, as well as allegations he arranged or orchestrated the shooting in India. Only one of the criminal charges overlaps directly with a claim in this proceeding; that is, Charge 3, using a carriage service to harass. This relates to a message sent to Rashi Kapoor. The defendant admits having sent the message and admits the words contained in the message, but denies it was published in Victoria.
38However, that is not the end of the matter. The plaintiff has made two lengthy statements to police. In those statements he canvasses a number of matters that are the subject of the claims in this proceeding, or would likely include evidence from witnesses in these proceedings. These include:
(a) the meeting at which, in the defendant’s counterclaim, he alleges that an agreement was reached with the plaintiff about payment of money owed. Witnesses to that meeting are likely to be witnesses in both the criminal and civil proceedings;
(b) the shooting in India;
(c) the evidence of Rohit Sharma;
(d) the evidence of Navdeep Sharma;
(e) the evidence of Rachna Miglani;
(f) the threats to kill generally and specifically in relation to family members of the plaintiff.
39A certificate pursuant to s128(3)(b) of the Evidence Act 2008 can be provided if a witness objects to giving particular evidence on the ground that it may tend to prove that the witness has committed an offence, the Court determines that there are reasonable grounds for the objection and is satisfied that the interests of justice require the evidence be given. Evidence given by a person in respect of which a certificate has been given and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against that person.
40However, courts have found that the protection afforded by the certificate does not necessarily nullify the prejudice that might be occasioned to an accused. There is a risk that the prosecutor will get a “dress rehearsal” for their cross-examination of the accused.[9]
[9] Zhao (supra); McLachlan v Browne (No 9) (supra)
41The overlap between allegations in the civil proceeding and charges in the criminal proceeding is a factor to be considered, but even where the charges are not substantially the same as the allegations made in the civil proceedings, courts have been prepared to grant a stay to avoid injustice to an accused. In Coleman,[10] there was a risk that further charges could be laid, but there was also a risk that existing charges could be informed by evidence in relation to the misconduct allegations, even though there was no direct overlap. This was considered sufficiently prejudicial to Dr Coleman to result in a stay.
[10]Ibid
42The current criminal charges against the defendant are not relevant to most of the claims made by the plaintiff in the civil proceedings. The plaintiff submits that, to the extent that there is any unacceptable overlap, which it denies, it exists only in relation to the counterclaim of the defendant, and that part of the claim could be stayed if necessary.
43This would be an unsatisfactory means of dealing with the risk of prejudice, having regard to the obligations of the Court pursuant to the Civil Procedure Act.[11] It would also be somewhat artificial. The defendant’s evidence as to the factual basis of his assertions in the various publications that the plaintiff is a conman, rips people off and so on, would invariably involve evidence about the defendant’s claim that the plaintiff owes him money. This in turn would inevitably involve evidence being given about the meeting at Southbank at which it is alleged both that the plaintiff accepted he owed the defendant money and the defendant threatened to kill the plaintiff if he did not pay.
[11] Civil Procedure Act 2010 (Vic)
44It is difficult to see how evidence about the various dealings between the plaintiff and defendant, as well as other witnesses involved with both of them, would not inevitably disclose information relevant and potentially prejudicial to the criminal prosecution of the defendant.
45Having regard to the circumstances of this case, I am satisfied there is a real risk of prejudice to the defendant if the proceeding is not stayed.
46I must now weigh that prejudice against the prejudice to the plaintiff in having his proceedings further stayed.
47The plaintiff says he has received “extensive adverse publicity regarding the charges that had been levelled against me”. I assume the charges he refers to are the criminal charges to which he pleaded. To the extent that his criminal proceedings have damaged his reputation, that cannot fairly be a factor to consider in this application.
48The plaintiff says, “the conduct of the Defendant in these proceedings has had an extremely deleterious effect upon my reputation and standing in the community and also upon my general physical and psychological well-being”. There is nothing before me about the defendant’s conduct in these proceedings, so I assume the plaintiff is referring to the defendant’s conduct that gave rise to these proceedings, rather than his conduct in the proceedings themselves.
49The plaintiff says the community he works and lives in is tight-knit, and gossip and innuendo spread quickly. He says he is often asked about this case, and it is important to clear his name. He says it is important that the case is completed as quickly as possible as a further stay of the proceeding “will only mean that the allegations and outrageous statements made by the Defendant will continue to spread and my reputation will be harmed even further”.
50He says the litigation is taking a psychological and emotional toll and a stay would be “an obstacle to rehabilitation”.
51There is no doubt that litigation is a stressful experience for most people and having prolonged litigation can take a psychological and emotional toll. I accept that any plaintiff in a defamation proceeding seeks to clear their name and restore their reputation and that delay can add to the harm suffered.
52However, the plaintiff sought a stay of the proceedings when faced with his own criminal charges. Despite his conviction and sentence in August 2021, the plaintiff did not seek to re-enliven this proceeding until March 2022. The delays to date have arisen as a result of the plaintiff’s actions, and this is a factor when considering his evidence of the prejudice he says he will now suffer resulting from delay.
53There is no evidence that a further stay would result in a continued spread of the “allegations and outrageous statements” as the plaintiff alleges, nor that additional damage will be done to his reputation.
54I accept that there is some prejudice to the plaintiff in having a delay in vindicating his reputation; however, I do not accept that there is evidence of additional harm to his reputation arising from any further delay.
55In Villan v State of Victoria,[12] the Court determined that it was not in the interests of justice to compel an alleged perpetrator of sexual abuse to give evidence, given the prospect that the perpetrator faced criminal charges arising from that abuse, even though the inevitable consequence of that decision would be an indefinite stay of the proceedings. The Court noted that:
“It is tragic that, having commenced his evidence before a jury, the plaintiff will now be denied a trial for an indefinite period. However, the integrity of the system of criminal justice must be preserved. … .”[13]
[12] [2021] VSC 354
[13] (Ibid) at paragraph [30]
56In the present case, there is no trial underway, and the delay caused by a stay would not amount to a tragedy. While the plaintiff is entitled, and indeed obligated, to prosecute his claim in a timely and efficient fashion, his right to a prompt resolution of his defamation proceeding does not come at the expense of the defendant’s entitlement to ensure he is not prejudiced in his criminal proceedings.
57I am satisfied the risk of prejudice to the defendant in his criminal proceeding outweighs the prejudice to the plaintiff of having the resolution of his defamation claim delayed for a period of around twelve months.
58Accordingly, I grant the application and the proceedings are stayed until completion of the criminal proceedings against the defendant.
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