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): https://www.supremecourt.uk/docs/speech-121026.pdf 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