Singh (a pseudonym) v Patel (a pseudonym)

Case [2023] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Civil)

SINGH (A PSEUDONYM) v PATEL (A PSEUDONYM)

[2023] SASC 164

Judgment of the Honourable Justice Bampton 

20 November 2023

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING

DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH

MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE

COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES

Appeal against rejection of justification defences and awards of general and aggravated damages following a trial of defamation proceedings in the Magistrates Court – whether the appellant was afforded procedural fairness – whether justification defences were appropriately dismissed – whether there was a proper evidential basis for the finding regarding the scope of publication – whether general damages were assessed on an unsound factual basis – whether aggravated damages were awarded on an incorrect legal test and on an unsound factual basis.

Held:  Procedural fairness was not afforded – the justification defences were not appropriately dismissed – there was not a proper evidential basis for the finding regarding the scope of publication – not necessary to consider the grounds of appeal regarding damages – appeal allowed – judgment set aside – matter remitted to Magistrates Court for rehearing.

Listening and Surveillance Devices Act 1972 (SA) ss 3, 4, 5, 7; Surveillance Devices Act 2016 (SA) ss 3, 4, 9, 10, 11, 12; Evidence Act 1929 (SA) ss 34M, 71A, referred to.

Briginshaw v Briginshaw (1938) 60 CLR 336; Wilczynski v District Court of South Australia [2022] SASC 115; Bunning v Cross (1978) 141 CLR 54; Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (2018) 132 SASR 63; Thomas & Anor v Nash (2010) 107 SASR 309; D-P v Minister for Child Protection [2018] SASC 149; Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd (No. 2) [2019] NSWDC 188; Nathanson v Minister for Home Affairs (2022) 403 ALR 398, considered.

SINGH (A PSEUDONYM) v PATEL (A PSEUDONYM)
[2023] SASC 164

Magistrates Appeal: Civil

  1. BAMPTON J:  Presiding over a trial, particularly a defamation trial, involving an unrepresented party, let alone two unrepresented and highly excitable parties prone to interject, one also fraught with health issues, is no easy feat.  Add to this the party with health issues participating in the trial via an audio‑visual link which frequently malfunctioned and an opposing counsel whose cross‑examination of the self-represented parties is replete with incendiary retorts of “be quiet”, stop making a “speech”, and “no one’s listening”, plaguing the proceedings with a tinder box of difficulties.

    The events leading to the institution of the defamation proceedings

  2. On 19 May 2014, Ravi Patel (“Mr Patel”) is alleged by Priya Singh (“Ms Singh”) to have attended her home and sexually assaulted her…

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AGLC
Singh (a pseudonym) v Patel (a pseudonym) [2023] SASC 164
Case
[2023] SASC 164
Decision Date

CaseChat Overview and Summary

In the case of Singh (a pseudonym) v Patel (a pseudonym), the Supreme Court of South Australia was asked to review the decision made by a Magistrate in a defamation case. The primary dispute in this case revolves around the publication of defamatory statements by the defendant, Mr Patel, against the plaintiff, Ms Singh, and the subsequent legal actions taken by both parties. The case was appealed to the Supreme Court, focusing on the remittal for a rehearing due to alleged procedural unfairness and natural justice issues during the original trial.

The legal issues that the court was required to decide were whether the trial was conducted in a manner that was procedurally fair and adhered to the principles of natural justice. Specifically, the court had to assess whether Ms Singh's health issues, which were not adequately addressed, impaired her ability to participate in the trial and defend herself effectively. Additionally, the court needed to determine if the evidence provided by Mr Patel, who was found to be unreliable and evasive, was sufficiently reliable and relevant to support the Magistrate's findings. The court also considered whether the recording provided by Ms Singh, which was deemed illegal, should have been excluded from evidence due to its questionable probative value and potential prejudice.

The Supreme Court found that there were significant procedural flaws in the original trial, which compromised the fairness of the proceedings. The court was concerned that Ms Singh's health issues were not properly managed, affecting her ability to participate fully in the trial. Furthermore, the court noted that Ms Singh was not given the opportunity to cross-examine Mr Patel on the transcription and translation of the illegal recording. The court concluded that the recording was of little probative value and its admission into evidence was problematic. Additionally, the court highlighted inconsistencies and unreliability in Mr Patel's evidence, which undermined the credibility of his testimony. Consequently, the Supreme Court remitted the case back for a rehearing, ensuring that the principles of procedural fairness and natural justice are strictly observed.

The final orders of the court were to remit the case back to the Magistrates Court for a rehearing. The court emphasised the need for a fair trial, where all parties have an equal opportunity to present their cases and defend themselves. The rehearing must ensure that Ms Singh's health issues are appropriately managed and that the rules of evidence are strictly adhered to, particularly concerning the admissibility of illegally obtained recordings. This decision underscores the importance of procedural fairness and natural justice in legal proceedings, especially in cases involving sensitive personal health issues and questionable evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The scope of publication ground is made out.Conclusion Having conducted a review of the transcript and the reasons for judgment, and having had regard to the submissions on appeal, I am left with a real concern Ms Singh’s health issues compromised her participation in the trial and the conduct of her defence. Further, she was denied the opportunity to cross-examine Mr Patel on the transcription and translation of the recording she provided to the Court dated 29 December 2021. The recording was found to be illegal without proper consideration of the application of the LDA and SDA. It was found to have little probative value although it appears to have been received into evidence on grounds it was evidence that something happened on 19 May 2014 between Mr Patel and Ms Singh. What the Magistrate considered “happened” is not expanded upon. This is significant given the finding that Mr Patel’s evidence was not entirely reliable or credible. Mr Patel was found to evade answering questions put by his own counsel. The Magistrate did not consider him to be an entirely truthful witness regarding the events of the incident and the discussions between himself and his wife after the publication of the video. His Honour also found Mr Patel gave inconsistent evidence regarding the events prior to the incident:[55]For example, in his evidence-in-chief, the Applicant acknowledged he attended a function on 19 May 2014 with Mr Singh,[56] however, in cross-examination he did not recall attending any event.[57](Footnotes in original)[55] [2022] SAMC 103 at [99].[56] T48, lines 11-12.[57] T97, lines 23-31 and T98, lines 1-8. Further, I note Mr Patel denied recollection of the conversation with Mr Singh and, notwithstanding that his reply conceded that it was a conversation between himself and Mr Singh recorded “sometime in late May 2014”,[58] said in evidence:[59]A.And I don’t know which date was that recording, when actually he recorded that, there’s no date mentioned.Q.No.A.And the recording, there's no from where we started and where it ended. It’s a part of – taken from the middle of the whole conversation.[58] AMCCI-19-4624, FDN 68 at [7.2].[59] T82.12-17. The Magistrate found that Mr Patel, his wife, Ms Singh, and Ms Chopra “all gave evidence in a self-interested way and were evasive in their responses”. The Magistrate found Ms Singh:[60]… clearly gave evidence in circumstances where she did not fully appreciate the elements of her pleaded case. She was argumentative, discursive and at times, simply failed to answer questions put to her.Further, large parts of the First Respondent’s evidence was simply unsatisfactory and irrelevant. For example, the First Respondent gave evidence that the contents of her phone the day before being examined by the Applicant’s expert had been wiped was likely due to her children. At times, the First Respondent sought to verbally attack the Applicant’s counsel rather than answering the questions.[61](Footnotes in original)[60] [2022] SAMC 103 at [111]-[114].[61] T611, lines 12-14 and exchange between counsel and [Ms Singh] concerning the police charge against [Mr Patel] being dismissed (see T612, lines 4-33).

Ratio Decidendi

Legal Principle Established

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