Mallegowda v Sood (No. 3) [2015] NSWDC 14

District Court New South Wales

Medium Neutral Citation: Mallegowda v Sood (No. 3) [2015] NSWDC 14 Hearing dates: 29 January 2015 Decision date: 29 January 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) By reason of the defendants' coming from Brisbane and Port Macquarie, they agree to the procedure of my making orders in open court and providing a written decision by email later today. (2) The application of the plaintiff to strike out contextual imputation (i) on the basis that it does not differ in substance from imputations pleaded by the plaintiff (notably imputations (d) and (e)) is granted. (3) The plaintiff's application to plead back contextual imputations (j), (k) and (m) from the first defendant's defence and contextual imputations (a) to (d) from the second defendant's defence is granted. (4) Note the first defendant has abandoned contextual imputations (a) to (h) and (l) in his solicitor's letter of 25 November 2014 (see Exhibit A). (5) The plaintiff to file a Fourth Further Amended Statement of Claim incorporating the above amendments in 7 days. If this document is not filed within 7 days, no further amended pleadings may be filed. (6) Note the first defendant has no issues to raise before the court save to continue his objections in relation to the inclusion of Dr Clarke in the experts' conclave, which, as previously noted, is a matter for the trial judge. (7) Note that the plaintiff, who is present in court, through his counsel Mr Rasmussen confirms that there are no applications to adjourn the specially fixed trial under the Mental Health Act. (8) Note that no claim for injury to health has been pleaded or particularised and accordingly may not be raised at the trial. (9) The first defendant's oral application to issue a subpoena to the Hunter New England Local Health District for information about the plaintiff's mental health is refused. (10) The defendants' application for security for costs to be provided by the plaintiff in the sum of $584,418 is dismissed. (11) The second defendant's application for the plaintiff to provide information about his mental health status is rejected. (12) The second defendant's application for the plaintiff's subpoena to the RMS to be set aside is refused. (13) The application by the second defendant to strike out the opinion of Dr Clarke is a matter for the trial judge. (14) An order refusing the second defendant's application for a further report from Dr Allan Watt and Mr Peter Chapman in relation to "issues raised by the second defendant's previous solicitors regarding the draft further joint expert report of 22 December 2014". (15) Defer the making of an order for stay of these orders pending the filing and serving of the defendants' application for leave to appeal, such application to be filed in 14 days. (16) Direct the plaintiff to issue subpoenae to all three experts (Dr Watt, Dr Clarke and Mr Chapman) to attend the trial to give evidence, but that the issue of who should pay the expert's costs, and such other matters as the trial judge may deem appropriate (such as the selection of the date and the manner of giving evidence, including evidence by Skype through 4G network) is a matter for the trial judge. (17) The defendants are to pay the plaintiff's costs of the plaintiff's application to plead back the defendants' contextual imputations and to strike out the first defendant's contextual imputation (i), as well as the costs of the 10 applications set out in the second defendant's notice of motion (Exhibit 4) and the first defendant's oral applications. (18) Liberty to restore on 2 days' notice to the Defamation List in relation to further interlocutory matters; any trial issues are to be raised with the trial judge in the relevant Newcastle sittings. (19) Any application to adjourn the trial should be made to the trial judge. (20) Any application to transfer these proceedings to the Supreme Court for "better case management" should be made to the Supreme Court. (21) All documents to be served on the defendants may be served on him to their current email addresses. Catchwords: TORT - defamation - application to plead back the defendants' contextual imputations - conflicting authority as to whether a plaintiff should be entitled to plead back contextual imputations - application granted - defendants' application for security for costs - application refused as made six weeks before commencement of the hearing - defendants' application for plaintiff to be examined by a psychiatrist refused - remaining applications referred to trial judge Legislation Cited: Defamation Act 2005 (NSW), s 26 Uniform Civil Procedure Rules 2004 (NSW), rr 28.2 and 42.21 Cases Cited: Ahmed v Nationwide News Pty Ltd [2010] NSWDC 268 Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 Corby v Channel Seven Pty Ltd [2008] NSWSC 245 Creighton v Nationwide News Pty Ltd (No 2) (2010) 11 DCLR (NSW) 271 Cush v Dillon; Boland v Dillon [2012] NSWCA 364 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 Kennedy v Nine Network Australia Pty Ltd [2008] QSC 134 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852; [2011] NSWCA 174 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (No. 2) [2014] NSWDC 216 McGuirk v University of New South Wales [2010] NSWCA 104 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 307 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 7) (Court of Appeal, 5 April 1987, unreported) Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370 Waterhouse v Age Co Ltd [2012] NSWSC 9 Category: Procedural and other rulings Parties: Plaintiff: Shashikanth Mallegowda First Defendant: Amit Sood Second Defendant: Naveen Lingaiah Representation: Counsel: Plaintiff: Mr R Rasmussen First Defendant: In person Second Defendant: In person