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 Judgment Introduction 1. The plaintiff, by statement of claim filed on 12 November 2012 in the Newcastle Registry of the District Court of New South Wales, brings proceedings for damages arising from publications by way of email to the Indian Association of Newcastle ("IAN"). The first defendant, Mr Sood, published an email to the members of the IAN on 21 September 2012 and the second defendant similarly published an email to the members of the IAN on 24 September 2012. The principal defence of each of the defendants is one of justification. 2. The first defendant, by cross-claim filed on 12 July 2013, brings a claim for damages against the plaintiff for a purportedly anonymous publication dated 21 August 2012 (hereafter "the attacking email"). The sole basis upon which the cross-claim is defended is by denial of publication. 3. It will be apparent, from the appearances set out on the front page of this judgment, that all parties were self-represented during a long hearing which was adjourned part-heard for a substantial period. This was largely because, before the hearing commenced, the plaintiff had been referred to the Supreme Court for determination pursuant to s 203 District Court Act 1973 (NSW) for consideration as to whether he had committed contempt of court by attempting to influence a witness (T 1472 – 3). The hearing of these defamation claims was concluded after the plaintiff's conviction, sentencing and related costs issues, which took until December 2016. 4. The matter complained of was the response by the first and second defendants to an anonymous publication for which they say the plaintiff is responsible. The text of the matters complained of the subject of the statement of claim and the cross-claim are set out below. The level of hostility between the plaintiff and defendants dominated at stages of the attempts by the court to carry out case management, as well as the hearing. 5. As all the parties are self-represented, I will commence with a brief outline as to the nature of proceedings for defamation. The relevant principles of law concerning defamation 1. The law of defamation is designed to resolve the conflict between two co-existent rights: the right of every citizen to enjoy a good reputation and the right of freedom of speech: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 ("Marsden"). 2. What is defamation, and how have these defamation proceedings come about? An actionable defamation is a publication which is not excused, protected or justified by one or more of the defences available to defendants (McHugh J, "What is an actionable defamation?", Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990, p. xi.). 3. If all the defences fail, the plaintiff and cross-claimant each brings a claim for damages. The purposes of an award of damages in defamation is described by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] as follows: "The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd: (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation." The burden and standard of proof for imputations and evidence of criminal conduct 1. In Marsden v Amalgamated Television Services Pty Ltd at [24]-[38], Levine J sets out the relevant principles of law concerning the standard of proof for imputations of conduct capable of amounting to the commission of a crime. In Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, Beazley JA (as the President then was) stated: "[5] Findings in a civil case, both of intermediate facts, including credit findings, and of ultimate facts, are made on the civil standard. Even within the civil standard, the degree of satisfaction that a court must have before reaching a conclusion varies, depending upon the seriousness of the matter in issue. Fraud is the classic example: see Briginshaw v Briginshaw (1938) 60 CLR 336 ; [1938] ALR 334 ; [1938] HCA 34 . That a finding is made on the civil standard, whether on a Briginshaw basis or not, does not diminish the cogency of such a finding. There is, however, a significant difference in a finding made on the civil standard from a finding made on the criminal standard." 1. The Briginshaw standard was most recently explained in Charan v Nationwide News Pty Ltd [2018] VSC 3 by J Forrest J: "[81] First, the allegations made by Nationwide in relation to unscrupulous conduct must be established to the Briginshaw standard, which requires clear and cogent proof, where serious allegations of misconduct are made. But that is not to overstate the test by which an allegation must be proved. The Briginshaw principle, as encapsulated in s 140 of the Evidence Act 2008 (Vic), does no more than require that a court carefully consider the seriousness of the allegation and the gravity of the consequences flowing from a particular finding, as effecting the level of satisfaction that must be reached, before it can conclude that an allegation has been proved on the balance of probabilities. The standard of proof of a particular assertion remains that of more probable than not, but with the proviso I have set out. Importantly it must be remembered, that neither s 140 nor the statement of principle in Briginshaw establishes a different standard of proof in a civil proceeding." (Footnotes omitted) 1. The onus of proof in relation to justification (the principal defence in the plaintiff's claim) lies on the defendants. Defendants in defamation proceedings must provide particulars of the plea of justification before the trial, and all parties must also provide full discovery. Regrettably, this did not occur. Both the plaintiff and defendants took the view that the most persuasive documents were those which were produced at the hearing, because the opposing party would not have time to meet the documents in question. That has made the fair conduct of these proceedings difficult. 2. All of the parties ask me to make findings adverse to the credit of the opposing party (indeed, they ask me to refer each other for contempt of court and/or prosecution). In relation to findings of credit I have been guided by the observations of the New South Wales Court of Appeal in a number of recent cases, including Channel Seven Sydney Pty Ltd v Mahommed, where Beazley JA stated at [5] – [10]: "[5] Findings in a civil case, both of intermediate facts, including credit findings, and of ultimate facts, are made on the civil standard. Even within the civil standard, the degree of satisfaction that a court must have before reaching a conclusion varies, depending upon the seriousness of the matter in issue. Fraud is the classic example: see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; [1938] HCA 34 . That a finding is made on the civil standard, whether on a Briginshaw basis or not, does not diminish the cogency of such a finding. There is, however, a significant difference in a finding made on the civil standard from a finding made on the criminal standard. [6] So far as questions of reputation are concerned, a demeanour-based credit finding, may be problematic. Although credit findings are an integral part of the fact finding function of a trial judge, a demeanour-based credit finding, which is often critical in the determination of a case, is far from scientific. It is a finding based upon the experience of the trial judge having seen and heard the individual in person: Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [65] ; see also Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354; [1990] HCA 47 at [178]. Ipp JA, in "Problems with Fact-Finding" (2006) 80 ALJ 667, said that a demeanour-based finding is "determined by a judge's subjective experience, intuition and common sense". [7] It is unremarkable to observe, therefore, that a demeanour-based credit finding in respect of an individual may vary as between judges. This is undoubtedly why Atkin LJ observed in Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152 : … I think that one ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of the evidence with known facts, is worth pounds of demeanour. [8] The problematic nature of a demeanour-based credit finding was examined by Kirby J in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; 73 ALJR 306; [1999] HCA 3 . His Honour stated, at [88]: [88] There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom … Apart from all else, demeanour is, in part, driven by culture … Distaste or prejudice can cloud evaluation … [9] A credit finding can be devastating, both personally upon the individual whose credit has been impugned, and in respect of that person's reputation. Hence the importance, where available, of confirmatory or corroborative evidence to assist or support a demeanour finding. [10] As McColl JA has pointed out, the differences between a criminal conviction and findings in a civil proceeding and, I would add, the effect of those differences on the reputational use that ought to be made of such findings, were not debated on appeal. Accordingly, while I agree that findings made in other proceedings which, by virtue of the publication of a judgment are in the public domain, may be used by a defendant in defamation proceedings in respect of reputation, the nature of the effect which may be given to such findings, particularly if they involve a demeanour-based credit finding, will require careful consideration." 1. All of the parties asked me to draw inferences from failure of the opponent to call a series of witnesses. I have dealt with this issue in the same "common sense" way that Levine J employed in Marsden v Amalgamated Television Services Pty Ltd at [93] (as to which see Jones v Dunkel (1959) 101 CLR 298 at 321). 2. None of the parties appear to have understood the principles in Browne v Dunn (1893) 6 R 67. This was partly because of the failure to provide full particulars of truth (which were enlarged during the hearing) or because of the belief that matters could be raised at the trial which had not been the subject of forewarning or discovery. Many of these problems were solved by the preparation of witness statements, but this resulted in the parties attempting to tender witness statements for witnesses who had not been called. Again, I have adopted the same "common sense" approach taken by Levine J and I have taken into account that these are litigants in person. In particular, it is not necessary for the parties to go through an extensive process of putting, formally, to other witnesses questions designed to make them confirm or deny that evidence, for the reasons explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 23. I have been conscious of the availability of alternatives to exclusion of evidence under s 46 Evidence Act 1995 (NSW) rather than simply ruling the evidence out. 3. There are also complaints by the parties as to an asserted failure to produce documents, including claims that documents have been withheld or destroyed. Once again, I have endeavoured to approach this on a "common sense" basis. 4. As is set out in more detail below, the proceedings had to be adjourned in order for the contempt of court proceedings in the Supreme Court to be completed. All parties told me they agreed that the tender of a number of the documents from those proceedings would be an essential part of the evidence in this case. In fact those documents were not tendered (or even sought from the Supreme Court), but instead a new claim was brought of a witness in India (the plaintiff's brother) who would provide evidence that the plaintiff had confessed to him that he had sent the anonymous email the subject of the matter complained of in the cross-claim. 5. The submissions in these proceedings were, for trial management reasons, completed in two parts. The first was the provision of written submissions as to the expert evidence concerning the identity of the person or persons who sent anonymous emails concerning the conduct of the first defendant. The second stage of submissions, which was also by way of written submissions, was carried out after the completion of these written submissions concerning expert evidence. I included the defendants' application to reopen their case to call the plaintiff's brother and tender a very substantial number of documents apparently belonging to this witness as part of those written submissions. 6. The completion of the second stage of written submissions took until 9 February 2018. Many hundreds of pages of submissions were provided. They make painful reading. All parties called for the opponent(s) to be dealt with for contempt of court, prosecuted or otherwise made subject of financial penalty, as well as seeking leave to tender further documentation. This confirms my view that it is undesirable for there to be oral submissions and that I should determine the issues as best I can notwithstanding the parties' failure to address fundamental issues in the proceedings, including (despite my drawings to the attention of the parties on several occasions) the relevant issues for determination of damages. This makes it necessary for me to describe the conduct of these proceedings by the parties. The conduct of these proceedings by the parties 1. These proceedings have had an extraordinary procedural history, which is due to the combative way that all parties, through their solicitors at first and then at the hearing where they were all self-representated, have responded to the litigation process. 2. Two specific areas of difficulty arose from grave misconduct: 1. Orders were made by Elkaim SC DCJ on 2 October 2013 referring the plaintiff to the Supreme Court for determination pursuant to s 203 District Court Act 1973 (NSW) as to whether the plaintiff's conduct towards a witness amounted to contempt of court. The plaintiff was convicted of contempt of court and sentenced (Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087). 2. The circumstances in which there was unauthorised access, use and disclosure of the plaintiff's personal health information by an employee of Hunter New England Local Health District without the plaintiff's consent. This information (the name of the plaintiff's treating doctor for his bipolar condition) was used by an unknown male person who telephoned that specialist for the purpose of falsely claiming that the plaintiff had been apprehended while behaving bizarrely and that an ambulance should be sent to convey the plaintiff to hospital. This complaint was investigated by the NSW Privacy Commission (Exhibit A, volume 2, pp. 55-84). The identity of the person who accessed the plaintiff's medical records cannot be established, but these events contributed significantly to the level of hostilities. 1. The principal difficulty, however, has been the combative way in which these proceedings have been conducted by all parties since their inception. Attempts by circuit judges in the Newcastle District Court, Defamation List Judges in the Sydney Registry and judges attempting to hear the proceedings which should have resulted in the proceedings being conducted in an efficient way were unsuccessful, not because of the shortcomings in those judges, but by reason of the attitude of the parties. 2. This can be seen from the beginning of the litigation in orders made by the Newcastle Registry at a time when the plaintiff was a litigant in person. The circumstances in which no progress was achieved between commencement of the proceedings in November 2012 and May 2013 are summarised in my judgment Mallegowda v Sood [2013] NSWDC 98 at [10]. 3. The proceedings continued in much the same fashion in the Defamation List before Bozic SC DCJ (see Mallegowda v Sood at [11]-[14]) created further difficulties, as did the defendants issuing of more than 20 subpoenae in the Newcastle Registry (and possibly the Sydney Registry) without leave, and at a time when the proceedings had been, or were about to be, transferred to the Sydney registry, as is set out at [37]-[45]. 4. The parties were referred to an early mediation. Unfortunately, it appears to have been as a result of a conversation shortly after this mediation that the conduct of the plaintiff was, on 2 October 2013, referred to the Supreme Court pursuant to s 203 District Court Act 1973 (NSW). This was followed by a series of orders made on 25 October 2013 setting aside number of subpoenae issued by the plaintiff. 5. The proceedings came before Elkaim SC DCJ in the Defamation List on 21 February 2014, where an extensive series of applications concerning discovery and interrogatories were dealt with. As mediation had failed, the parties were given an early hearing date in the hope that resolution of the proceedings in court would resolve the level of hostility between them. Examination of the file shows that the List Judge, Truss DCJ, played an important role in endeavouring to deal with these issues in a proactive and efficient fashion. On 28 March 2014, a 7-day hearing was listed to commence on 18 August 2014. 6. Regrettably, due to failures to comply with timetables and the need for an expert conclave, as well as a revision of the length of the hearing in view of the large number of witnesses, it was necessary to vacate the hearing date: Mallegowda v Sood (No 2) [2014] NSWDC 216. As I was to be the trial judge, I continued to case manage the proceedings, making a series of orders for service of witness statements and a joint experts' report on 29 August, 10 October, 24 October and 20 November 2014 before transferring the matter to the Newcastle sittings on Monday 1 December 2014, to enable the hearing of the proceedings to take place in Newcastle, where the parties and witnesses resided. 7. In the interim, the plaintiff brought an application to plead back the defendants' contextual imputations and the defendants brought an application, inter alia, for security for costs as well as to have the plaintiff medically examined by a psychiatrist: see Mallegowda v Sood (No 3) [2015] NSWDC 14 (29 January 2015). The proceedings were case managed in the February 2015 sittings and allocated to Mahony SC DCJ as the trial judge. 8. The proceedings were marked "not reached" in the Monday 16 March 2015 Newcastle circuit sittings, following a series of applications by the parties which made it clear that the hearing could not be completed in the sitting time available. On 10 April 2015, the proceedings came before Robison DCJ. As the plaintiff was appearing for himself at this stage, and it was apparent that the proceedings could not be conducted in the Newcastle Registry while that was the case, the proposed fresh hearing date of 4 May 2015 was vacated and the matter was returned to Sydney, noting that it was a 3-week plus trial, involving a total of 28 witnesses, including three expert witnesses. The hearing date was formally vacated by Elkaim SC DCJ on 20 April 2016. 9. The proceedings were listed to commence before me for hearing on Monday 2 May 2016. Although that date had been fixed a year beforehand, the parties had failed to seek any further case management until the week before the hearing: Mallegowda v Sood (No 4) [2016] NSWDC 88. These applications were: 1. Requests for documentary evidence (by way of subpoenae to third parties, subpoenae to give evidence to medical practitioners, an independent health assessment conducted by the court and notices to the plaintiff to produce) about the plaintiff's health. 2. Security for costs. 3. Joinder of a third party, the Roads and Maritime Services. 4. Referral of the plaintiff to the Supreme Court for contempt of court and restraining orders. 5. Leave to tender the defendants' witness statements without requiring the witnesses to be cross-examined or, if that order was refused, an adjournment. 6. Requests for material produced in Supreme Court proceedings to be accepted into evidence in this court and to be probative of issues of truth, as well as orders for subpoenae to give evidence to be issued to the "Crown Solicitors" to give evidence of what occurred. 1. In addition, the first defendant sought the following orders: 1. That the Court make Orders to allow Cross Claimant/ First defendant for Joinder of Road and Maritime Services NSW (RMS) as an additional defendant. 2. That leave of Court is granted to the first defendant to amend his cross claim to include RMS as a Joinder defendant party. 3. That the Courts allow and accept issues which have already been determined in the matter with case number 14/288906 that is common in this matter. 4. That [the] court order an independent mental health assessment of Plaintiff to determine Plaintiff's mental health to participate in this trial as a plaintiff and/or a self-represented litigant. 1. That the mental health assessment order to include time period when the first and second attacking emails were sent against the first defendant and date ie. From January 2012 till date. 1. That the Courts allow defendants to adduce evidence from materials produced in the matter between Prothonotary of Supreme Court NSW v Mr S H Mallegowda before in relation to case number 2014/168906 in this matter. 1. That the leave of Court be provided for defendants to access all transcripts in relation to case number 2014/168906 either through Supreme Court Registry or via prothonotary [sic] of Supreme Court in this matter. 2. That the Court provide orders for defendants to access material in the contempt matter against plaintiff in relation to case number 2014/168906 via Prothonotary of Supreme Court in that matter. 3. That the leave of Court be granted to issue subpoena to Crown solicitors to give evidence and bring documents or things at this trial. 1. That the Courts consider a contempt of court referral to the Supreme Court against the Plaintiff for threatening a witness for the defendants. 2. That the Court makes orders to prevent the plaintiff from making complaints/s and/or lodge proceedings against witnesses in this matter to government authorities, public offices or any workplaces of witnesses without the leave of the Court. 3. That the Court allow defendants use affidavits prepared by their former solicitors be allowed without their physical presence in Court. 1. If the above is disallowed by the Court, then the Court Order appropriate adjournments as needed to allow for appearance of all persons who have provided affidavits in this matter. 1. That the plaintiff pay defendants costs of filing costs of filing this motion and travel costs forthwith. 2. Such other Orders that the Court deems fit. The hearing of these proceedings commences 1. As is set out in my judgment of 1 June 2017 (Mallegowda v Sood (No. 5) (District Court of NSW, Gibson DCJ, 1 June 2017)), having dismissed these applications and commenced the hearing, the proceedings were conducted by me between 2 and 26 May 2016. 2. Conduct of the trial was difficult. Although orders had been made for statements, the parties struggled to present their material. In the interests of finishing the case in the four weeks allotted, I assisted the plaintiff and both defendants in conducting their examinations in chief. To avoid arguments about admissibility, I marked all challenged documents as an MFI on the basis that they would be cross-examined upon on the understanding that they formed part of the evidence until a further ruling, and then heard all disputes as to admissibility in a separate hearing at the end of the trial. Three of the rulings I made (concerning whether the plaintiff could subpoena the first defendant's wife, whether the first defendant could subpoena the specialist treating the plaintiff's bipolar disorder and whether the report of the Privacy Act inquiry could go into evidence) were made by asking the parties to agree to these on a trading off of the entitlements they would otherwise have, because of my concerns as to courtroom safety. Where possible, I encouraged the calling of witnesses by telephone and endeavoured to make those witnesses as comfortable as possible in a courtroom where the tension was palpable. On some occasions where the atmosphere in the courtroom seemed likely to degenerate, I suggested a short adjournment. It was not an easy trial to manage. 3. The trial proceeded as expeditiously as it could until the last three days, when it was necessary to adjourn the proceedings. The reason for this was as follows. Although the trial had been run almost to conclusion (with only three witnesses yet to give evidence for the defendant, as is set out in [11] of my judgment), the sentencing of the plaintiff for contempt of court had to take place. It was necessary to adjourn the hearing so that the plaintiff could undergo tests for his bipolar condition and so that the submissions as to sentence (upon which the defendants wish to rely) would be available for tender in these proceedings. In those circumstances, the proceedings were adjourned part heard to 24 August 2016 for three days only, this being a date and time length agreed to by the parties as being likely to be appropriate as well as to be following the plaintiff's sentencing. 4. Following the plaintiff's sentencing and Prothonotary of the Supreme Court of New South Wales v Mallegowda, the defendants then sought a further adjournment, telling the court that they propose to seek access to the Supreme Court for the court file for the purpose of tendering documents in these proceedings. This required an application to the judge determining these issues: Hearne v Street (2008) 235 CLR 125. 5. As is set out in my judgment of 1 June 2016, this hearing date had to be vacated in part because of delays in the Supreme Court proceedings and in part because of objections from the Crown Solicitors to the production of the documents until costs in the Supreme Court proceedings had been determined. The proposed adjourned hearing date of 9 November 2016 was similarly not possible because the defendants complained that they were unable to obtain access to the Supreme Court file. 6. The fifth adjournment of these proceedings then occurred, and the Supreme Court proceedings were eventually concluded on 16 December 2016 (see the correspondence set out in Mallegowda v Sood (No. 5) at [43]-[63]). An agreed final hearing date was set down for 27 February 2017 when the following orders were made in chambers: 1. Matter set down for hearing (part heard) to commence on Wednesday 9 August 2017 (estimate 3 days). 2. Parties to exchange written submissions addressing all expert evidence by 26 May 2017. 3. Vacate the listing on Thursday 2 March 2017. 1. However, as is set out in Mallegowda v Sood (No. 5) at [64]-[66], no application was made by the defendants for access to the Supreme Court file. Instead, they brought a notice of motion filed on 18 May 2017 seeking to lead fresh evidence in relation to material provided by the plaintiff's elder brother, Mr Raghu Hassan Mallegowda, who resided in India. This is set out at [67]-[82] of Mallegowda v Sood (No. 5). 2. The defendants' notice of motion was returnable for 1 June 2017. Massive amount of documentation were provided to the court. The amount of documentation electronically provided was such that the documents in question could not be opened. 3. I set out the relevant principles of law relating to late amendments to pleas of justification in [96]-[120] of Mallegowda v Sood (No. 5). While I was reluctant to close the gate on the defendants' entitlement to bring fresh evidence before the court, the lateness with which the application had been brought and the difficulties for the court in terms of dealing with clearly hostile evidence of the "I said, he said" variety, in the context of a hearing which had already been adjourned multiple times, meant that I considered it was best to look at this issue in the prism of the evidence already received within the trial. If the defendants were successful in their claim, the need to adduce this additional evidence would vanish; if the plaintiff was successful, then the nature and extent of this evidence could need to be considered carefully within the parameters of the evidentiary basis upon which the plaintiff succeeded. 4. Fortunately, the parties had already provided the written submissions in relation to the technical and expert evidence concerning publication. As a result of having received the parties' written submissions in relation to technical evidence (which I had asked them to set out in full, as opposed to providing oral submissions), I was in a position where I could consider and make a determination as to whether the plaintiff had created the email account from which the matter complained of the subject of the cross-claim (and to which the matters complained of in the plaintiff's claim reply) had in fact been created by the plaintiff. 5. Unlike the evidence of the parties and, regrettably, some of their witnesses, the evidence of the experts in these proceedings was meticulous, even-handed and provided in the best spirit of the obligations of expert witnesses in accordance with the Expert Witness Code of Conduct (Sch 7, Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")). This meant that I was able to come to a concluded opinion concerning the issue of publication (in the sense that the plaintiff, if he had created the email account in question, was a publisher within the sense of Webb v Bloch (1928) 41 CLR 331). 6. Accordingly, while I retained an open mind as to the issue of publication until the remaining lay evidence was completed on 11 August 2017, I was in a position to come to a concluded opinion as to the issue of publication and, as a result, subject to the parties providing further information in their written submissions, was in a position to determine whether it was necessary for me to grant the defendants leave to reopen their case to lead the additional evidence from the plaintiff's elder brother. My reasons for refusing that leave are set out at the end of this judgment. 7. As is set out in more detail below, in relation to the issue of liability for publication of what the parties call "the attacking email" (which is also the subject of the first defendant's cross-claim), I have carefully perused the written submissions of the plaintiff as well as his expert and lay evidence. I am satisfied, for the reasons discussed at length below, that the plaintiff was the creator of the email account and, by reason of the applicability of the general principles for liability for publication, accordingly to be held liable as a publisher. 8. Once the plaintiff is found to be the publisher, the defence of justification to the matters complained of must succeed and, as the only basis upon which the cross-claim is defended is denial of publication, that defence must fall away as well. 9. This finding means that many of the other disputed questions of fact tend to fall away. For example, there was also evidence sufficient to establish that the person who used the plaintiff's home internet system to set up an email account for a fictitious person named Deshpande was in fact the plaintiff; this evidence was surplusage to my finding that there was sufficient evidence that the plaintiff had, by creating the email account for the attacking email, rendered himself liable for its contents. Similarly, there was evidence that it would have been impossible for the plaintiff to actually send the text of the attacking email from the internet café used for its transmission. As the plaintiff's role in setting up the account was clear, and the plaintiff's conversations with the first defendant referred to in the matter complained of (where he acknowledged knowing the persons who wrote the offending words) were not challenged, whether or not the plaintiff actually composed and sent this email became surplusage. 10. In circumstances such as those set out in paragraph 45, judges often make alternative findings. In the present case, I have not done so, largely because the manner in which these proceedings have been conducted has created significant difficulties. 11. The final stages of the hearing were dominated by the difficulties the parties had in preparation of written submissions. I have received extensive submissions from all parties. It has taken a considerable period of time to read and digest them, in part because of the difficulties all parties have had in identifying the issues and in seeking to deal with those issues in an appropriate way by careful reference to the relevant evidence. It is an indication of how limited in understanding of the legal issues the parties are that, despite my endeavouring to point out to them that the first defendant was bringing a cross-claim for defamation and drawing their attention to relevant issues concerning damages, the parties never addressed me about those issues at all, and I have had to do my best to work out what the submissions on the cross-claim would have been by looking at the evidence to which I had endeavoured to draw the parties' attention. 12. Before dealing with the evidence, I propose to make observations on two issues. The first is as to the manner in which courts should deal with litigations in person and the second is how the court should determine issues where claims of dishonesty and lying by one, or all, of the parties to litigation must be determined. Litigants in person 1. In Slipetz v Trudeau [2013] MBQB 111, Martin J set out a series of helpful principles for dealing with a litigant in person in defamation proceedings in Canada: "[8] Courts have dealt with the issues surrounding unrepresented litigants many times. A number of themes emerge: (a) Self-represented litigants do not have some kind of special status. • As noted in Sydorenko v Manitoba, 2012 MBQB 42 (CanLII), M.J. NO. 70 (QL): 29 ... this factor should not dissuade the court from applying the usual rules including when it comes to considering an award of costs. • As noted in Ridout v Ridout, 2006 MBCA 59 (CanLII), 205 Man.R. (2d) 146), M.J. No. 243 (QL): 12 … more and more litigants … are self-represented. This often creates difficulties not only for them but for court staff and judges. Notwithstanding, it is not accurate to say … that self-represented litigants (SRLs) have some kind of special status. … while the court should provide assistance to SRLs, this must be done in such a way as to maintain judicial impartiality. … (b) Judges do not advocate on behalf of a self-represented litigant, do not provide legal or tactical advice and have no duty to help a litigant do a better job in developing their case. Judges do, however, ensure that a party's lack of legal training does not unduly prejudice them, nor affect their ability to participate meaningfully in the proceeding. (Ridout v Ridout, supra.) (c) Self represented litigants must be dealt with fairly and with appreciation of their potential legal handicap, but they are not entitled to undue favour nor should the rights of a defendant be overridden. • As noted in Otte v Manitoba (Sheriff's Department), 2008 MBCA 63 (CanLII), 166 A.C.W.S. (3d) 1032, M.J. No. 163 (QL): 12 … The court must strike a delicate balance between ensuring that the self-represented litigant is dealt with fairly and yet not allowing the litigant undue favour precisely because he is self-represented. • As noted in Coleman v Pateman Farms Ltd., 2001 MBCA 75 (CanLII), 156 Man.R. (2d) 144, M.J. No. 228 (QL): 15 In my view, a pro se litigant should not be denied the opportunity of presenting his or her case to the court by a strict application of the Rules. The touchstone is fairness and that involves the balancing of the pro se litigant's imperfect knowledge of rules and procedures with the right of the other party to know the legal and factual issues that he or she must meet. • As noted in Baziuk v Dunwoody (1997), 13 C.P.C. (4th) 156 (Gen. Div.), O.J. No. 2374 (QL): 18 … notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party. (d) Fairness simply means that a self-represented litigant should have a fair opportunity to present their case to the best of their ability. As noted in Davids v Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (Ont. C.A.), O.J. No. 3930 (QL): 36 ... Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer's familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants' unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party. (e) Some leeway may be given to self-represented litigants, but they are nonetheless expected to operate within the rules of the court and its procedures. While some leeway may give way to generous construction of the rules, it does not mean ignoring the rules altogether. • As noted in Nowoselsky v Canada (Treasury Board), 2004 FCA 418 (CanLII), 329 N.R. 238, F.C.J. No. 2077 (QL): 8 ... The imperatives of the Rules may be mitigated somewhat by the grace of counsel facing an unrepresented litigant, or by the Court's judicious exercise of the discretion to excuse compliance, but these are remedial measures and not a licence for non-compliance. ... • As noted in Manitoba Agricultural Services Corp. v Domenco, 2007 MBCA 125 (CanLII), 220 Man.R. (2d) 214, M.J. No. 355, (QL): 6 With respect to the other grounds of appeal, the motions judge had a discretion as to whether to grant an adjournment or to consider additional materials filed out of time. Contrary to the defendant's assertion in his factum, the transcript reveals that the motions judge did attempt to assist the self-represented litigant to the extent that his judicial role would allow. However, as this court has observed on other occasions, a self-represented litigant is not entitled to ignore the rules of court. The rules which govern the conduct of civil proceedings are designed to ensure procedural fairness for all parties. See Basaraba v Manitoba Court of Queen's Bench, 2006 MBCA 27 (CanLII), 201 Man.R. (2d) 302. (f) Finally, as Mainella J. observed in Bazan v The Assiniboine South School Division et al., 2013 MBQB 68 (CanLII), M.J. No. 80 (QL), common sense dictates that: 71 ... Like lawyers, no two self-represented litigants are alike in terms of skill and knowledge. Some are so totally inexperienced and ignorant of the customs and procedures of the court that they become "completely at sea" during the litigation process. … Others, however, are frequent denizens of the courthouse. In the accommodation of the principles of fairness and balance, a court should be mindful of the knowledge and experience of the self-represented litigant before it." 1. In these proceedings, I have also taken into account that the plaintiff suffers from a severe form of bipolar disorder. This condition is described by Adams J in Prothonotary of Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 at [21]-[23]. There were occasions when the plaintiff became agitated in the courtroom and it was necessary for me to intervene, which I sought to do diplomatically. 2. However, the conduct of the defendants (in particular Mr Sood) was not blameless. As I have noted in my earlier judgments, Mr Sood has made a series of attempts to obtain details of the plaintiff's mental health, including issuing subpoenae to hospitals for that information, seeking to cross-examine the specialist who treats the plaintiff for his bipolar condition, seeking discovery of documents from the plaintiff concerning his mental health, seeking to obtain documents from the Supreme Court in relation to the plaintiff's mental health and raising the question of the plaintiff's mental health on what I consider to be an unnecessary number of occasions in the course of the hearing. 3. The most serious problem in relation to the triggering of the plaintiff's mental health problems arises from the circumstances in which the plaintiff discovered that an unknown person had accessed the plaintiff's medical records after knowledge of his mental illness was circulated in the Indian community in or about October 2012. An investigation was conducted by the Hunter New England Local Health District under the Health Records and Information Privacy Act 2002 (NSW) ("HRIPA") and it was discovered that unauthorised access to the plaintiff's medical records had been made by using the access code for a Dr Perkins, a medical practitioner in the gynaecology section of the hospital. An internal review was commenced by the privacy contact officer on 7 January 2013. The reason for concern was not merely that the plaintiff's medical records were accessed but that, following upon these records being accessed, the plaintiff's clinician, Dr Mathews, received a telephone call from a person purporting to be a police officer, advising that the plaintiff was behaving bizarrely and he needed to be remitted to hospital immediately. The person in question was not a police officer but an imposter and only the quick thinking of Dr Mathews prevented what could have been a potentially dangerous incident occurring. Dr Perkins told the Privacy Commissioner that she did not access this information and that she had no reason to do so. The plaintiff's suspicions were aroused because the first defendant's wife, Dr Kaur, worked in this section of the hospital. 4. Generally speaking, s 91 Evidence Act 1995 (NSW) would militate against the tender of this report, the plaintiff would be entitled to issue a subpoena to Dr Kaur and the defendants would be entitled to subpoena Dr Mathews. I invited the parties to agree to waive objections to the tender of this report instead. As each party stood to gain from this course, they agreed. The level of agitation expressed by Mr Sood at the idea of his wife being cross-examined was equalled only by the level of anxiety Mr Mallegowda expressed about his specialist, Dr Mathews, being cross-examined about Mr Mallegowda's mental health issues. In an already fraught courtroom atmosphere, I considered that the security and safety of the individuals concerned should transcend the importance of compliance with rules of evidence. 5. The next issue is the correct approach for the court to take in relation to allegations of dishonesty and lying. The correct approach to allegations of dishonesty and lying 1. The plaintiff has already been found to be a dishonest witness in the course of the proceedings before Adams J. Adams J noted at [25]: "[25] I accept, more probably than not, that the acts of contempt were impulsive and to some degree caused by his mental state. On the other hand, the evidence that he gave in Court must have been carefully considered over a lengthy period of time and was, I thought, careful and calculating. However, although that demonstrated that he had not accepted either that he had committed any wrongdoing or, at all events, would try (even by lying to the Court and making false allegations of dishonesty against prosecution witnesses) to avoid the legal consequences of what he had done, this did not mean that his acts at the time were any less impulsive or contributed to by his mental disorder. He is being punished for his contempt and not for his conduct of the trial, however reprehensible that was. On balance, I am prepared to act upon the basis that the contemnor's mental condition, to some extent, contributed to the impulsivity of his behaviour, although I would not go so far as to find that, if he had been in remission at the time, he would have been unlikely to have committed the offence." 1. As is set out in my judgment below, I am also satisfied that the defendants have been less than frank in some of their evidence to this court. In particular, I am satisfied that they were the authors of anonymous emails distributed to members of the IAN attacking the president of the IAN, Mrs Singh, and that their evidence to the contrary should not be accepted. However, their conduct is of considerably less significance than the very serious findings made about the plaintiff by Adams J. 2. It is not unknown for a court to come to the conclusion that much of the evidence is unreliable because of a lack of honesty by most (or perhaps all) concerned. In Rashid v Munir & Ors [2018] EWHC 1258 Turner J, hearing an appeal from Judge Davey QC, concurred with the first instance judge's finding that the evidence was "a festival of mendacity" (at [1]). Turner J added (at [19]): "Attempting to establish the common but unstated intention of a group of individuals all giving honest but conflicting evidence is difficult enough. Where, as here, each witness is attempting to outdo the other in a rich display of competitive dishonesty the task of the judge is unenviable." 1. In Suhner & Co AG v Transradio Ltd [1967] RPC 329 (referred to in Masson v Zahoor [2008] 1043 (Ch)), Plowman J set out a careful examination of the difficulties caused by litigation where all parties' documents and evidence was under attack, with justification, for perjury and/or forgery. 2. The first issue is whether such lies are of significance to the litigation, or about some unrelated issue that is at best a question of credit: Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570. Whether the extent of the lying is such as to render the whole of the witness's evidence unreliable will depend on the nature and extent of the lie: BSkyB v HP Enterprises Ltd [2010] EWHC 86 (TCC). 3. Even where witnesses are comparatively truthful, where they show unconscious bias (especially if hostility an issue as here), there is greater reliance upon contemporary documentation. In Gestmin SGPS SA v Credit Suisse UK [2013] EWHC 3560 Leggatt J at [15] – [22] stated: "[15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. [21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth." 1. In "Lies, damned lies; abuse of process and the dishonest litigant" (26 October 2012, https://www.supremecourt.uk/docs/speech-121026.pdf), Lord Reed examined the role of the trial judge where substantial and serious wrongdoing had occurred prior to the completion of the trial: "What I propose to discuss is how the courts deal with litigants who set out to deceive the court: who produce forged documents, or conceal the existence of relevant documents, or give untruthful evidence. I am not concerned with cases where the court only concludes that there has been dishonesty in its findings after proof. A finding at that stage that a document was forged or suppressed, or that a party told lies in his evidence, is part of the court's ordinary adjudicative function. The judge may decide to punish the party for contempt, or refer the case to the prosecuting authorities, but he or she will nevertheless have adjudicated on the dispute. Where on the other hand it is established prior to proof, possibly as the result of an admission or a preliminary proof, or where it becomes apparent during the proof, that one of the parties is seeking to subvert the process of the court by fraudulent means, the court has to decide whether the case should be allowed to proceed any further. It has essentially two choices. It can decide to carry on notwithstanding the party's efforts to subvert the court process, and do the best it can in the circumstances, or it can decide to dismiss the party's case there and then." 1. In Masson v Zahoor at [153], Peter Smith J stated at [153]: "Putting it another way, if both sides have their ability to adduce evidence removed because of their misconduct one falls back on the principle that the case is decided on the basis that the party on whom the burden of proof lay has failed to satisfy that burden; see Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 at 951 B-D." 1. Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 was referred to with approval by the New South Wales Court of Appeal in Jackson v Lithgow City Council [2008] NSWCA 312, although not precisely on this issue. Nevertheless, it is a principle of law of great assistance in circumstances such as the present. Conclusions concerning unreliable and/or untruthful evidence 1. The relevant principles in relation to unreliable evidence from all parties indicate that the following conclusions should be drawn: 1. Where the evidence of all parties is unreliable or false, the trial judge should look to outside evidence which has not been contaminated with a greater degree of reliance than might otherwise be the case. This may be the case even where the witnesses are not telling wilful lies but show unconscious prejudice. 2. Where both or all of the parties are lying, then the judge may determine the issue on the basis of where the burden of proof lies. 3. Where the impact of the lies told by the parties, individually or collectively, means that large parts of the evidence should be rejected, the court is entitled to be "short" with its reasons: Rashid v Munir & Ors [2018] EWHC 1258 at [2]. A summary of the issues determined in this judgment 1. The principal issue for determination is whether the plaintiff was a publisher in the very broad Webb v Bloch sense (whether by setting up the false email address, or writing or authorising part or whole of the matter complained of, or both). If so, this largely resolves the plea of justification to the plaintiff's claim and disposes entirely of the cross-claim, in that the sole defence to the cross-claim is denial of publication. 2. As is set out below in relation to the expert evidence (about the honesty and carefulness of which there can be no doubt) the evidence is overwhelming that the plaintiff did set up the false email address used for the attacking email. As Dr Clarke stated more than once in his evidence, there are simply too many coincidences. 3. The real difficulty, and the subject of much of the evidence, is whether the evidence extends to the plaintiff actually composing or writing part or all of the matter complained of. On the balance of probabilities, I note briefly that, while the defendants have failed to discharge the burden of proof that the plaintiff did play a role in actually writing the email, his liability for publication so that others could take this step is clearly demonstrable. While I have made this finding based in part on the evidence of persons whom I will refer to as the plaintiff's "alibi" witnesses, I have done so principally upon the unchallenged evidence of the contents of the matter complained of, where it is clear that the first defendant is in fact asserting this and where, from the conversations attributed to the plaintiff, he appears to be admitting as much. 4. If I am satisfied that the plaintiff is a publisher of the attacking email, whether by setting up the account or by actually composing the publication, the sole issue on the cross-claim is damages. This involves assessment of damages and any mitigating circumstances, such as delay in bringing and conducting the action, which unfortunately were not the subject of submissions. 5. There are other issues for determination in these proceedings, including the making of findings in relation to the other defences pleaded by the defendants. I have dealt with these only very briefly in view of my findings as to the plaintiff's liability for publication. 6. The final portion of this judgment relates to applications brought by the plaintiff for referral to the Supreme Court and for the defendants to reopen their case. Both these applications were refused. 7. Having noted these preliminary issues I set out a list of the witnesses called by the parties. The witnesses called by the parties 1. I set out below a list of the witnesses called by the parties, as well as the day on which they were called and the relevant transcript references: Witness XN, XXN, Re XN Transcript Pages Day 1 - - - Day 2 Plaintiff XN by Gibson DCJ 74 - 79 Day 3 Plaintiff XXN by D2 135 - 230 Day 4 Plaintiff XXN by D2 241 - 257 XXN by D1 259 - 287 Vijaya Putaya Bilimagga XN by P 290 – 293 XXN by D1 293 – 298 XXN by D2 298 Re XN by P 299 Day 5 Plaintiff XXN by D1 317 – 365 Harsha Ramachandra XN by P 368 XXN by D1 368 – 374 XXN by D2 374 – 387 Re XN by P 387 – 394 Shylaja Yalakkigowda XN by P 398 – 402 XXN by D2 402 – 408 XXN by D1 408 – 420 Day 6 Shylaja Yalakkigowda XN by P 444 – 447 XXN by D1 447 – 452 Vamsykrishna Doddala XN by P 462 – 463 XXN by D1 463 – 464 XXN by D2 464 – 466 Paul Issa XN by P 473 – 480 XXN by D1 480 – 481 XXN by D2 481 – 484 Plaintiff XXN by D1 489 – 499 Re XN by Gibson DCJ 499 – 511 Day 7 Neeti Sapish Pandya XN by P 527 – 528 XXN by D1 528 – 536 Re XN by P 536 – 538 Harjit Singh XN by P 543 – 587 XXN by D1 588 – 636 Re XN by P 637 Day 8 - - - Day 9 First Defendant XN by Gibson DCJ 743 XXN by P 743 – 797 Day 10 Dr Roger Clarke XN by P 802 – 827 XXN by D1 827 – 868 XXN by D2 868 – 905 Re XN by P 905 – 908 Satish Busapala XN by P 909 – 916 XXN by D1 916 – 917 XXN by D2 917 – 922 Re XN by P 922 – 931 Day 11 First Defendant XXN by P 940 – 1099 Day 12 First Defendant XXN by P 1205 – 1274 Second Defendant XN by Gibson DCJ 1296 – 1302 XXN by P 1302 – 1337 Day 13 Second Defendant XXN by P 1257 - 1364 Day 14 Second Defendant XXN by P 1370 - 1403 Ashwin Vishweshwariah (Ashwin Gowda) XN by D1 1406 - 1408 XXN by P 1408 - 1464 Re XN by D1 1464 - 1465 Day 15 Dr Vinod Narwal XN by D1 1476 - 1478 XXN by P 1479 - 1494 Ravi Pullareddy XN by D1 1501 - 1505 XXN by P 1505 - 1518 Second Defendant XXN by P 1521 - 1552 Yogesh Sharma XN by D1 1554 - 1576 XXN by P 1576 - 1620 Day 16 Peter Lindsay Chapman XN by Gibson DCJ 1626 - 1653 XXN by D1 1653 - 1683 Re XN by P 1683 - 1692 Day 17 Allan Charles Watt XN by D1 1704 - 1727 XXN by P 1727 - 1801 Day 18 - - - Day 19 Senior Constable Harold Vaisey XN by D1 1830 - 1832 XXN by P 1832 - 1846 Re XN by D1 1846 - 1847 Day 20 Dr Chitralekha Gopalareddy XN by D1 1862 - 1877 XXN by P 1878 - 1969 Re XN by D1 1969 - 1972 Shrinivas Naik XN by D2 1975 - 1984 XXN by P 1985 - 1997 Day 21 Shrinivas Naik XXN by P 2011 - 2065 Re XN by D1 2065 - 2068 Day 22 - - - Day 23 - - - The atmosphere in the IAN prior to the matter complained of 1. The IAN had been a happy community organisation of Newcastle residents formerly from the Indian subcontinent for many decades, going back prior to the independence of India. The president was a Mrs Harjit Singh. There were many community activities in which the membership participated, including religious festivals. Although there were disputes and disagreements from time to time, these had never been sufficient to draw into dispute either the IAN's antiquated constitution (which Mrs Singh told the court was drafted in 1943, at which time there were only 5 Indian families in Newcastle, as opposed to more than 450 at the present) or the very informal record-keeping methods, typical of an organisation of this nature. 2. Then, in 2011, the first defendant was elected to the small committee which ran the IAN. Soon afterwards, the IAN atmosphere changed, principally as a result of a series of emails accusing Mrs Singh and her supporters of a variety of misdeeds. One of these was an effectively anonymous email accusing Mrs Singh of criminal conduct, and calling for the replacement of Mrs Singh and others by a new super-committee of 12 persons. The first defendant's name is second on the list and the second defendant's name is further down. 3. Significantly, these emails followed a pattern: 1. Most of these attacks on Mrs Singh were "blind copied" to members of the IAN; 2. Some emails to members were anonymous, such as the 30 November 2011, which was headed "IAN Special Annual General Meeting (SAGM)", was sent from a Gmail account called "TEAM@ SAGM" and signed "Fellow Community Members"; 3. There is no suggestion that the plaintiff played any role in any of these activities. If he was a member of the IAN at this time (which is doubtful) he was certainly not an active member; and 4. The defendants deny participating in any meeting or in drafting any document sent by the "Fellow Community Members". Their evidence was this email attacking Mrs Singh was not sent by either of them or by anyone they knew and that they played no part in it, even though it supported the first defendant's earlier email with the "list of 12" which included his name. 1. By June 2012, as is set out in the evidence of Mr Sharma (a work colleague of the first defendant who had been elected only weeks before), the atmosphere was so poisonous that Mrs Singh not being permitted to participate in any committee discussions. However, as Mr Sharma said in his evidence, this was carefully kept from the members. 2. As is set out in more detail below, it was some months before this time that the plaintiff moved into the Newcastle area and rejoined (or joined) the IAN after living for some time interstate. He became involved in a plan for a festival for the Indian god, Lord Ganesha. However, the first defendant had already had such a plan on foot for some time. Out of this relatively simple dispute about rival religious festivals, this litigation, namely two claims of defamation by the plaintiff against each of the defendants and a cross-claim by the first defendant against the plaintiff, was born. 3. In each case, the recipients of the emails containing the defamatory material were the members of the IAN. As the evidence demonstrates, these accusatory emails occurred after a series of similar attacking emails between committee members, at least one of which was anonymous. By the time of the first of the three publications sued upon (August 2012), the atmosphere was rancid with hatred. 4. The problem appears to have commenced with dissent in the committee in late 2010 or early 2011, so I shall start the story of this litigation at that point. Factions develop in the IAN 1. The first defendant became the treasurer of the IAN after being invited by Mrs Singh, who was friendly with the first defendant's wife, Dr Kaur. In April 2011 he received membership records from the previous treasurer. The plaintiff's name was on that list, although apparently with an out of date or wrong email address; the plaintiff had been living in Melbourne with his family for some years and remained there until at least 2010. 2. After the plaintiff and his family moved to Newcastle, he and Dr Vadiraj Raghavendra approached the IAN for assistance in organising a function for the god Lord Ganesha. The plaintiff sent an email on 26 July 2011 which refers to the first defendant by name and there was a meeting between them in relation to this request. However, any degree of association between them at this stage was slight. 3. The plaintiff had a falling out with the other organisers of this function. However, he renewed his previously dormant IAN membership in August 2011. 4. In September 2011 the first defendant had an argument with Mrs Singh, who wanted him to invest funds in a particular account. When he did not do so, she did this. This led to angry scenes in the IAN committee and, later on, allegations by the first defendant that the money in question was "missing", to use the word he gives in his chronology, although at all relevant times the funds remained with the IAN. 5. On 12 November 2011, some months after the first defendant had joined the IAN committee, Mr Amit Kalra sent the following email to him, Mr Amit Kumar, Inderjeet Chibber and Naveen Lingaiah (the second defendant), which appears to be a reply email to an email chain. 6. This email is headed "Re: Planning to send the email below to the IAN" and states: "Hi All, It's very unfortunate that we're being let down by Harjit, again. Her conduct is highly unbecoming of a President. Not only that, it sets up a wrong precedence [sic] for the future IAN committee. I support & call for EO-AGM to sort out these violations of IAN constitution. Regards, Amit Kalra" 1. Mr Sood sent the following email, headed "Constitutional call for Special AGM", to Tejinder Pal, Harjit Singh, Manoj Kumar, Kirti Shah, Amit Karla and the Indian Association of Newcastle's Gmail account on 15 November 2011: "Dear IAN Secretary/Treasurer and committee members, I would like to submit the consent of the following 12 IAN members to call for an EOAGM (Extra Ordinary AGM) or special AGM as per the Article 12 section C of the constitution, The committee is bound to conduct a meeting within the 30 days of the receipt of the consent. In this case the meeting has to take place before 15/12/11. The community members have come to know of the unconstitutional way the committee is being run by the president from the past and the current members of the executive committee. The community wants to tackle those issues and ensure that the members elected are working as per the constitutional expectations. The community feels that the President is answerable to them and hence would like to question the President and the committee. Please ensure that this email is not ignored under any circumstances as this is being blind copied to all the community members who have given consent for this special AGM. There are many more around member families who are ready to give consent for the special AGM but constitution requires only 12. The IAN Member names are as below 1. Amit Kalra 2. Amit Sood 3. Amrit Nahar 4. IGA Rana 5. Kulwant Virk 6. Naveen Gowda 7. Parminder Chibber 8. Sravanthi Balusu 9. Srinivas Naik 10. Umit Shah 11. Chaitanaya 12. Ravi Mehta I will be sending a scanned copy of their consent later in the day today. On behalf of the community members I would suggest that a meeting be called asap, As a representative of the community members listed above please contact me for any responses meant for these members on the issues mentioned in this email -- Regards Amit Sood" 1. On 17 November 2011, Mr Sood sent an email headed "Consent Giver #1" by forwarding Mr Amit Kalra's email of 12 November 2011 to Tejinder Pal, Harjit Singh, Manoj Kumar and Kirti Shah, adding the following insulting comment to the email: "Knowing you Harjit, I know you would demand individuals writing to you hence I am forwarding this email to the committee with all the Consent givers blind copied. The below is an individual consent No. 1." 1. By this stage, as the first defendant acknowledged in his correspondence, he was not on speaking terms with Mrs Singh. It was in these circumstances that an anonymous email was sent. On 30 November 2011, this anonymous email, headed "IAN Special Annual General Meeting (SAGM)", was sent from a Gmail account called "TEAM@ SAGM" to "Indian Associan" and Harjit Singh as follows: "Dear IAN Members, We would like to bring to your attention a few of the reasons for which the present IAN committee was forced to call SAGM. We expected that the explanation would have come from the President/Secretary as to why a Special Annual General Meeting (SAGM) had been called, unfortunately as usual members have not been briefed. Some of the reasons being: 1. A SAGM can only be called at the request of 12 IAN members writing in person to the Secretary if there are critical concerns that the community wants to raise as per the IAN constitution 2. Primarily Five out of the original Eight members in the committee have resigned and leading to a lack of quorum to conduct any official business. 3. Allegations have been raised about significant financial irregularities/mismanagement, which may lead to dissolution of the association by government authorities. 4. Allegations of repeated violations of the IAN constitution, which may lead to the dissolution of the association by government authorities. 5. Allegations of autocratic functioning by the President thereby leading to mass resignations and lack of transparency. We believe that if responsible governance is desired, then we must exercise our responsibility as members of this association/community and attend this SAGM. If any member requires more information on these issues, please reply back this mail with your name and phone number so we can brief you with more details. Best Regards, Fellow Community Members" 1. The "fellow community members" were, of course, not identified. The first defendant denies that he played any role in this email's preparation or publication, a denial that I have not accepted. 2. The allegations were withdrawn and peace was restored, temporarily, in an IAN email dated 10 December 2011. However, the contents of this chain of emails are relevant because the first of the three defamatory publications the subject of these proceedings, which is referred to throughout as "the attacking email", is similarly anonymous and contains similar allegations of financial irregularities and mismanagement. 3. Despite this apparent acceptance that Mrs Singh had done nothing wrong, the plotters continued their plans and, as is set out in the evidence of Mr Sharma below, by June 2012 the faction which now dominated the committee had managed to "sideline" (to use his word) Mrs Singh entirely by preventing her from either contributing to activities or even voting, although these events had been carefully kept from the members. 4. It was in this poisonous atmosphere that the two festivals for Ganesh Utsava came to be held. Two Ganesh Utsava festivals 1. I first note the evidence of all witnesses that this is a festival celebrated by Indian communities all over the world. There is no rule that there be only one such festival; multiple festivals are held not only in each country and city but even by similar Indian community organisations in those cities. The purpose of the festival is to celebrate the life of Lord Ganesha, the elephant god. It is an important event in the religious calendar. 2. Although there is no reason why there should be concern that there is more than one festival, those in charge of the IAN were anxious that members should know which function was theirs and which function the IAN wanted them to attend. In particular, they did not want members to be attending a function which the plaintiff had helped to organise. 3. The plaintiff began having problems organising his own function and with the IAN. On 17 August 2012 he complained to the IAN that he had not received his tickets to an IAN function. The following day he had an argument, apparently with security staff, when he tried to put up flyers for his function at Panthers Newcastle; according to the defendants, he thought the first defendant and Mr Kalra were behind this. He complained that there were attempts to stop people attending his Lord Ganesha function by confusing potential attendees so they would not attend. 4. Some members of the IAN were concerned that the confusion might work the other way. On 19 August 2012 at 8:03pm, the IAN sent the following email to its members: "Ganesh Utsava Festival confusion – CLARIFICATION From "Indian Association of Newcastle" Bcc: sunny_shashi@yahoo.com Dear IAN Members, We would like to confirm all the members that recently we have forwarded two different Ganesh Utsav flyers thinking they are for the same function. It has been brought to our notice that these flyers belong to two different groups and are not the same. We can understand that the community would also be confused with what's happening. This email is to clear that confusion. Ganesh Utsav being organised on 23rd September at Kotara High School hall is being conducted by the same ganesh utsav team that organised last year and the organising committee comprise Dr Raghu (0422 452 147), Srinivas (0403 247 243) and Chitra Gopalareddy (Naveen) (0425 840 949). They are also known as Team@NewcastleGaneshUtsava. We have already forwarded their flyer (The first flyer you received on 15/08/2012). It seems that another team has also decided to organise ganesh utsava starting this year on 22nd September at Wallsend Hall. They also refer to themselves as Team@NewcastleGaneshotsava please note their is a difference in the spelling in the last letters the team that organised last year use (UTSAVA) whereas the new team use (OTSAV). We were also confused and can understand your confusion as well. the organising committee comprises Mr Shashi Gowda (0406 999 298). Please ensure that when you accept the invitation you are aware that you are choosing from two and are not the same. Please do not call or send IAN emails about these two groups. Contact them directly on the mobile numbers mentioned above about this confusion. Regards IAN Committee" 1. The IAN refused to send out a flyer for the plaintiff's Lord Ganesha function. In addition, the first defendant sent a follow-up email on 19 August 2012, on similar lines. 2. It was in this atmosphere of dispute that a series of angry discussions occurred in the community. Much of this evidence is hearsay as the relevant persons were not called. However, on 20 August 2012, the plaintiff telephoned Mrs Singh and appears to have asked her to be a host at his event. The attacking email is sent 1. At 10.51 am on 21 August 2012 an account members.ian@gmail account was created from an IP address at 163.189.217.40. As is set out below, the evidence of the experts demonstrates that this account was opened on the online system maintained by the plaintiff's employer, RMS. At this time, the plaintiff is at his desk accessing gmail on his work computer. He remains in the office until midday, when he takes his RMS car to drive to Tomago for a work inspection. This is confirmed by the Salary Sacrifice Motor Vehicle Drivers Report and RMS records, including the plaintiff's computer records. 2. At 12.16 pm on 21 August 2012, an anonymous email was sent from the email account opened at 10.51 am. That email is sent from an internet café in Charlestown. Events following the sending of the attacking email 1. The first defendant was enraged by the attacking email. He went to the police station and spoke to Senior Constable Harold Vaisey, who told him there was nothing the police could do. 2. The defendants started making inquiries about this anonymous email address. On 23 August 2012 the second defendant sent a test email to this address which did not bounce. 3. There was a meeting of the IAN on Thursday 23 August 2012. There appears to have been general recognition that, in the rancid atmosphere of the committee, an outside person has to be called in. A respected former President, Mr Tapan Goswami, is asked to help. He sets up a procedure for a draft email to be prepared and approved by committee members which will go out under the name of the President, Mrs Singh, and the committee. 4. On Friday 24 August 2012 at 11:35am, Mr Yogesh Sharma sent the following email to IAN committee members under Mrs Singh's name: "Hi All, Please find below draft email for your acceptance: "Dear IAN members, We would like to bring to your attention that a slandering HOAX email is being circulated by some anonymous individual/Group amongst the IAN member community. The email is an attempt by some unknown person/group to malign the names of some of the very hard working committee members. The committee stands united against such threats and is willing to answer any individual or group if any questions are raised provided the issues are genuine and are not distorted to bring disrepute to the association. We have received lot of positive feedback for the Independence day function and the whole committee along with the community should be proud of its achievement. In response to the faceless email, some of the committee members lodged a police complaint in their personal capacity (as email was malicious attempt towards character assassination) and the investigations are in progress as to the source of this email. We would request all IAN members not to pay attention or form any unfounded opinion based on such emails which are aimed at dividing our community. Regards Harjit and IAN committee Attendees of Meeting held yesterday to discuss above subject: Committee members: Harjit Singh, Amit Kalra, Amit Sood, Vipula Janu, Yogesh Sharma, Manoj Kumar. Special invitees: Two Ex presidents – Tapan Goswami, Harjinder Dillon. Apology: KC shah"" 1. Comments and suggestions were being obtained as late as 6 pm. Although Mr Sharma was reluctant to admit it, some suggestions for changes were made. However, Mrs Singh was not given a chance to let her views be known, because early the next morning Mr Sharma sent out the email under Mrs Singh's name, without consulting her first. 2. On 25 August 2012 at 11:44am, Ms Harjit Singh wrote, addressed to Yogesh Sharma, as follows: "Dear Yogesh, You have superceded [sic] the president in sending this email. You sent an email by me to the community without me even discussing with me an me approving it. You did not have the majority to send this email. Harjinder said a 3 liner to the community as agreed in the meeting was better and Manoj said Tapan's corrected email was good. Harjinder is exofficio and has a vote. K.C. has not responded. 4 does not constitute a majority. I have a power of veto if it is 4 but even so wait for my input. I have not responded cause I was sick in bed since 5 pm yesterday. Email is not the only form of communication, people can phone me. We were still discussing and all email is to be sent by the president. Please refer to minutes in March 2012 and what we discussed at meeting on Thurs, 22/8/12. about who sends email. Amit Sood, please send me list of membership, list of tickets, list of seating, how many people paid at the door and has the money been put into account asap. With regards to sponsorship, K.C & I have verbal promises and what has been given is in account unless more has been given without our knowledge which I thrust is not the case. We are transparent, have nothing to hide and we should come clean so please send the necessary details for me to check and I will defend my team. Regards Harjit." 1. At 12:00pm on the same day, 25 August 2012, Mr Sood sent the following email, addressed to Ms Harjit Singh: "Harjit, You are not an investigating agency. By saying you believe that email is not hoax and hence requires investigation. It seems you know the individual/group who sent that email you have so much trust in. Please name those individuals call for a meeting. I am happy to provide all details to the Secretary. I did inform in the meeting that minimal money has been collected on the door which will be deposited in coming few days, I have full proof that it was mentioned in the meeting and agreed upon. We will also check all the money that you have deposited collected on the door for last so many functions, I handed both the money and lists to you. I have no idea how much you deposited as it was based on good faith. Last year you collected money at the door I was never told how much you did nor you maintained any list. I have full list of people rocking at the door in a file sealed at that date time stamp this year. You are trying to malign my name that is clear." 1. On 25 August 2012, Ms Harjit Singh sent a reply email entitled "Re: Beware of a hoax email- Draft" to Mr Sood, as well as to Mr Yogesh Sharma, Vipula Janu, Manoj Kumar, Kirti Shah, Amit Kalra, Tapan Goswami, Harjinder Dillon and an email address noted as rajwant@iprimus.com.au as follows: "Hi Amit, Please send details to me or all in committee. You should have list of all money collected at the door last year and this year and we can check and come clean. I will check the accounts and defend my team. I have said this before, please ensure that I do not hear any accusatory remark or rumour of me sending or having to do with the email sent by whosoever. We just need to check our accounts and shut whoever sent this email up. Regards, Harjit." 1. Mrs Singh did in fact instigate an investigation into the allegations set out in the attacking email by retaining an accountant who prepared a report. He noted many record-keeping inadequacies and made a number of suggestions for the better keeping of financial records. Although the first defendant claimed that he suggested this, I prefer Mrs Singh's evidence on this issue. 2. After the report was shown to the members, there were further disputes between the first defendant and Mrs Singh. He appears to have handed over the financial records reluctantly and to have ceased being the treasurer. The first matter complained of the subject of the statement of claim 1. The next step was the publication of the first matter complained of, sent on 21 September 2012 at 7:56am, the text of which is as follows: "From: AMIT SOOD To: Sent: Friday, 21 September 2012 7:56 AMSubject: Re: SAVE INDIAN ASSOCIATION OF NEWCASTLE Dear Honest member, How ironic that you deleted your honest Gmail account as soon as you came to know that a police complaint has been lodged. Thanks to investigations Google reinstated the account. Why did you delete your account when you had nothing to hide from the community? I took time to respond to this email as I struggle with the decision whether to respond or not and to whom. In the end I thought I must stand for myself if someone questions my integrity. I was waiting to have an understanding as to whom I am replying. I have kept the original email statements in italics and Bold and my reply under each point with a yellow highlight. I apologise for the fact that it's a long email to read. Dear IAN Members, Allegation � We would like to bring attention to all the IAN members about corrupt/fraud conduct of Mr Amit Sood and Mr Amit Karla. Response: I have been waiting for any evidence which could even remotely point to the fact that I have engaged in any sort of fraud. This is a pointless statement made to get the attention of IAN members. This statement is designed to throw mud in the hope to discredit me in future. Allegation � These 2 people are misusing association resources and funds to benefit their own needs. Response: Wow what a statement "misusing", May I ask what's there in IAN to misuse for my own needs. It says Funds, Funds that come in and are deposited in the bank account cannot be withdrawn without the approval of at least two out of three committee members and in this case the other person had always been Harjit (IAN President). Allegation � Mr Amit Sood has misused the position of IAN treasurer by collecting lot of unaccounted funds from the sponsorships for independence Day function by giving false promises to promote their business. There are no receipts for these illegal/unaccounted transactions and these monies never arrived to the IAN bank account. As a result, we the honest members have to pay premium price to purchase the tickets for the function Response: This is a loathsome statement, firstly I was never involved in dealing with sponsorship (Harjit and KC were). How can a small association like IAN whose sole purpose is to conduct functions for a small community of Indians in Newcastle have enough resources and clout to promote businesses. We struggle to get sponsorship. "Collected a lot of unaccounted funds" I can only laugh at this deplorable statement. Are business people so simple minded that they will hand money in my hands to promote their business without receiving any mention in function booklet and or without being issued with receipts. Business people are smart and that's why they are in business. IAN members did not have to pay premium price as the prices remain unchanged from last year despite increase in costs. I have always been in favour of not changing the ticket prices and the committee knows that. I hope everyone can see that this statement is factually incorrect. It is written to ignite emotions. Allegation � Few months back a committee member had exposed their corrupt conduct, as a result these 2 men managed to sack from the team to make their way easy. It looks like the president of IAN has lost control over these 2 men. Response: This is a vile statement, there had been two resignations from the committee (Mr Amit Nahar and Mr Tejinder Pal Singh) both left due to their own personal reasons, how can I force them out. President is not there to control me or anyone else the role is of a coordinator and leadership which unfortunately never got fulfilled. Allegation � These people are offending many members with their rude and no-courteous emails regarding tickets and membership matters as if they own the association, so many of them stayed away from Independence Day Function. Response: We have received numerous emails appreciating our efforts; I do not need to comment on such a baseless statement Allegation � These 2 have collected money (cash in hand) towards tickets which went straight in to their pockets and without e-tickets they have let them in to the hall. Many of their close associates, friends, neighbours and relatives got free entry for the function at paid members cost. Response: This is a top of the class statement. Since I came on board I was instrumental in implementing the electronic ticketing system in IAN in an effort to improve the system. Due to this system I was able to issue tickets in the morning of the day of the function. This helped drastically reduce the number of people rocking at the door without ticket. Only 5 came this year as opposed to 30 or more during previous functions; and such cases were immediately recorded in the computer this year and the money deposited in the bank. Of course I did put the money collected at the door in my pocket, Did you expect me to put in a box and keep it on display at the function. I do not think it makes any logical sense that on one side I am reducing the physical money handling and at the same time trying to make money. Dear so called honest members please get your facts correct. Allegation � If the president failed to get their resignations, then a formal complaint will be filed against these 2 individuals with documented evidence to Australian Securities and Investments Commissioner to probe an investigation for misusing the public funds. Please go ahead and file a complaint, I have no problem. Allegation � Please forward this email to all the honest members and join hands to save IAN from these 2 idiots. Response: Obviously I was disturbed with this email, It had a profound effect on me personally and my personal life. I went out to seek and find these people and lodged a police complaint. After some investigations fortunately we received an email from someone called "Arathi Deshpande" this was a brand new bogus email id created just like honest members to support the vicious email and sow the seeds of suspicion in the community. After some further probing we found that this email ID had a recovery option of a mobile number which had an exact match to Mr Shashikant Malegowda's number also known as Shashi Gowda and is the organiser of some breakaway Ganesh festival and holding his function on 22nd Sep Saturday this year at Wallsend. This was a good starting point to follow the thread which started to unravel pretty quickly. I decided to ring him up and confront him; he did not accept what I had to say initially but eventually rang me and said he knows the group of people who have done it and also why I was made target and he will have personal chat with Harjit and that group. Since then FOLLOWING FACTS have come out after few conversations with him 1. Arathi Dashpande [sic] (Bogus email) sent an email to a group of people whose email id was not available with IAN, I am aware of it as some members pointed out this fact to me. 2. The same set of people whose email Ids are not with IAN account received the email from Honest Members (bogus email) as well. In effect it seems that both Arathi Dashpande [sic] and honest members used a common email list. 3. Mr Shashi claims that he knows the group who wrote the email as honest members and he has seen the so called evidence and there is nothing, hence he will ask the group to talk to Harjit to resolve the situation. 4. He mentioned that the group is unhappy that I was part of the SAGM last year where president Harjit was challenged to change her way of functioning. 5. Surprisingly he has invited IAN president to be chief guest for his Ganesh function on 22nd Sep Saturday. 6. In his own words "Amit sood you are a child in front of me, I have played this game across Australia and this is only a small town of Newcastle". Am I supposed to be scared and what is the "GAME" I seriously have no idea. All these facts point towards that Mr Shashi gowda knows the group who has written this email. Question � How are you a devotee of Lord Ganesha when your or your group's actions seem to be so malicious? Why are you trying to divide community in the name of Lord Ganesh festival. Dear members this is not "Whistle Blowing". Anyone making wild statements about anyone else is not whistle blowing, its malicious slander and nothing else. If I make similar statements about other organising committees where I am not a part of does not classify it as whistle blowing. So called Honest Members please come up with the evidence and send it both to ASIC and the community but do substantiate your claims against my replies. There is no need to create division in the community. Harjit, you should have tried to resolve this issue rather than calling for investigation without any substantiated evidence. It is so strange that you very quickly sided with the faceless honest members email when you knew very well that funds could not be withdrawn without your approval and also that it is visible to Three committee members and that you handled sponsor money not me. I joined the committee to help, I tried to bring changes for a better functioning but what I have got is not what I imagined. I have promised myself to never join the committee again, never try to bring improvements, and never try to make it more transparent as there is a group of people who will not like the status quo being changed. On one side no one wants to be Treasurer and on the other if someone accepts it is ultimately welcomed with MUD slinging. -- Regards Amit Sood" 1. The imputations pleaded to arise are set out in the section of this judgment dealing with the defence of justification. The second matter complained of 1. The second matter complained of is headed "Arashi Deshpande and her Avatar" and was sent by the second defendant to IAN members at iassoon@gmail.com.au, with a bcc to sunny_shashi@yahoo.com. It is addressed to the first defendant and is a response to the first matter complained of. It identifies the Arathi Deshpande emails and their contents, and is of assistance in identifying why these apparently innocent emails are a link to the identity of the publisher of the attacking email. The imputations are set out in the section of this judgment dealing with the defence of justification. 2. The text is as follows: "Dear Amit, It is such a sad situation where the hard work you have done is met with such vicious brickbats and that too of a malicious nature. I must take this opportunity to congratulate you for going ahead and letting the community know what the situation is and the trauma you have suffered. It is unfortunate this happens too often in our community and significant/identifiable members with a voice in our community remain mute spectators. There are only two inferences, either they are gutless or enjoy the tamasha [sic]. No wonder, we had the British ruling Indians for a few hundred years. Congrats again, your gene is one of those rare one's [sic] which does not take bullshit from known people or more so from unknown people (I believe we know who they are now). By the way I sent an email to the IAN as well regarding the hoax email and have not received a response, maybe because I did not cc it to the whole community. I am sending this to the IAN account this time too but CC'ing the community, so that finally some common sense might prevail. I might be considered an eternal optimist in this case looking at the kind of emails coming straight after, from Harjit [Mrs Singh]. Thank you for letting us know who Arathi Deshpande is/was. Being part of the Ganesha Utsava 2012 team, we also received emails from the so called Arathi Deshpande asking when our event was. She/He (now we know the gender, sort of!) also RSVP'ed for two adults and two kids for event [sic] at Kotara High School. Keeping in line with the common theme of de-activating email accounts, this one was also de-activated when I replied on the 27th August. No wonder Arathi Deshpande did not attend the Ganesh Utsava at Kotara High School. By the way, his statement of "Amit Sood you are a child in front of me, I have played this game across Australia and this is only a small town of Newcastle" is a literal translation of Kannada (language in Karnataka) and any Kannada speaking people would be able to relate to it as a common movie dialogue [sic] attributed to villains and politicians. Amit, you have a lot of patience to even try calling him up and reason with him in spite of the slanderous nature of the email, hats off to you. I totally agree with you that you had to disclose involved names in front of the whole community so they know [sic] people behind it. I don't believe this saga has ended and I only hope more people become vocal about the total stupidity of this situation due to a clear lack of leadership in the community. For god's sake or heaven's sake or whomsoever's stand up and start asking questions and offer people support for doing the right thing. Support people who work hard for the community for altruistic reasons and not people who are one man/woman shows. Important: For people, who did not wish to receive emails about this saga, I am not sorry for CC'ing the whole community as we need to wake up to this slandering. It is far more painful to be slandered than to receive and email account about this issue. Still not happy, speak to Harjit for providing everybody's email to everybody. [This sentence is in bold in the text]. Best Regards Naveen Lingaiah." 1. "Harjit" is Mrs Singh. She is named in this publication, and comprehensively attacked for being a "one woman show" and showing a lack of leadership in the community (coincidentally, this claim of lack of leadership is also made in the attacking email). The text of the matter complained of makes it clear that Mr Lingaiah, one of the participants in the earlier anonymous email attacking Mrs Singh, is principally engaged in attacking her. 2. However, it is the unnamed Mr Mallegowda, not Mrs Singh, who brings this defamation action, on the basis that he is identified (although the particulars of identification in the statement of claim are deficient to the point of strike-out, in that no particulars of how the named persons identified the plaintiff have been supplied). Although none of the identification witnesses referred to in the statement of claim were called, the parties treated identification as being an agreed issue, and I have proceeded on that basis. 3. Another issue of relevance is the second defendant's reference to how members of the IAN had made it clear they were sick and tired of receiving all these attacking emails sent to the whole of the IAN, and his purported apology for this. Even one of the defendants' own witnesses (Mr Naik) said in his evidence that he never read the matters complained of because he had stopped reading IAN emails, no doubt because their contents reflected the rancid and insulting nature of the partisan politics at the time, due (as I have found, as is set out in more detail below) to the conduct of the first defendant and his cohorts in their attempt to wrest control of the IAN from Mrs Singh, which they had commenced to do in the year before. Someone accesses the plaintiff's health records 1. The first plaintiff had a series of angry conversations with the plaintiff and rang his home on several occasions, including anonymously, which frightened the plaintiff's wife. 2. Both defendants also attended the police station on several occasions following this publication. Senior Constable Vaisey, who was cross-examined, noted in the New South Wales Police COPS entry (which he said he prepared from his own knowledge) as follows: "Date/Time Created: 27/09/2012 15:51 Created By: LSCON HAROLD VAISEY – WARATAH P/R: Amit Sood [Date of Birth] WIT: Naveen Lingaiah POI: Shashikant Mallegowda [Date of Birth and Address] .. Both persons are members of the INDIAN Association of NEWCASTLE (IAN) with the P/R being the treasurer. .. On Tues 21 Aug 2012 it was brought to the attention of the P/R by the WIT that an anonymous email has been circulated to an unknown number of persons alleging the P/R has been misappropriating funds that have been donated or paid in cash for organised events held under the auspices of the IAN. .. The email address of the anonymous source is members.ian@gmail.com. .. The P/R feels slandered by the allegations but it was explained the issue is of a civil nature and no further action would be taken other than a record be made. .. On Wednesday 26 Sept 2012 the P/R again attended the police station informing that through his own internet expertise he had been able to identify the sender of the subject emails as the POI. .. The POI was spoken to regarding the emails when he stated he had only made comment of the suspect accounting of the P/R in his position as Treasurer of the IAN. He further complained that the P/R had been making contact with him and advising other members not to attend certain cultural events he had organised. .. Both parties feel slandered by the alleged defamitory [sic] remarks and they were advised they may seek legal advice and possibly take civil action or application for Personasal [sic] Violence Orders but police would be playing no further part in the matter. .." 1. On 27 September 2012 at 12:10am, the plaintiff's health records were accessed from a computer in the delivery ward at the John Hunter Hospital. On 9 October 2012, there was again a second occasion of unauthorised access to the plaintiff's health information by a John Hunter Hospital employee, again using Dr Perkins' access code, at 3:50pm on 9 October 2012. 2. The plaintiff discovered that his mental illness was being discussed in the Indian community and raised this with his doctor, Dr Mathews, who referred him to the hospital privacy officer for assistance. There were inquiries made and, as the report of these events sets out, the plaintiff was told that his personal records had been accessed without authorisation. An apology was offered in a letter dated 13 December 2012, which the plaintiff, in a letter dated 17 December 2012, considered unacceptable. 3. It was in this letter that Dr Kaur, who at the time was the Senior Obstetrics and Gynaecology Register, was considered by the plaintiff as a possible source of disclosure of his health information, by reason of the ongoing dispute between the plaintiff and the first defendant. 4. Dr Kaur was interviewed as part of the complaints procedure on 18 December 2012 and she denied the allegations. However, the Privacy Commissioner's report noted: "It was confirmed that Dr Kaur was also working in the Obstetrics & Gynaecology Department at 02:10am on 27 September, 2012 and also at 3:50pm on 09 October, 2012, the dates and times confirmed by the clinical system audit report that unauthorized access was made to the applicant's health information." (Report of the Privacy Commissioner, 15 February 2013) 1. It was in this letter that the plaintiff set out the circumstances in which a call of a "doxing" or "swatting" nature was made to Dr Mathews by a person claiming to be a police officer from Waratah Police. He stated that the plaintiff was behaving bizarrely and that police considered he should be admitted involuntarily as soon as possible. 2. Fortunately for the plaintiff, Dr Mathews was immediately suspicious. He telephoned not only the plaintiff but also Waratah Police and discovered the call was a hoax. 3. This is described in the report as follows: "The applicant's privacy complaint also referred to his treating clinician, Dr Cyriac Mathews receiving a telephone call from an anonymous person claiming to be from Waratah Police and requesting that the applicant should be admitted to hospital because he was "mentally ill". At the conclusion of the call, Dr Mathews contacted Waratah Police who confirmed that they had not contacted Dr Mathews. Dr Mathews did recall receiving this phone call in October, 2012 but could not identify the male caller during the brief discussion. The call was received by the Newcastle Community Mental Health reception staff on phone number 4016 4538 (during normal business hours) and was subsequently transferred to Dr Mathews' office. It should also be noted that in Mr Mallegowda's original privacy complaint dated 08 November, 2012, he stated "I heard from my friends that a few doctors listed below (Dr Anu Sood nee Kaur) are spreading my illness matter to the Indian community in Newcastle and labeling me as a psycho". Mr Mallegowda was asked to provide names and contact numbers of his friends to enable interviews to be arranged regarding this allegation but Mr Mallegowda subsequently advised that he was uncomfortable with providing this information as his friends indicated a reluctance to become involved in this matter. Mr Mallegowda was also asked to provide names and contact numbers of friends who may be able to verify his claim that he had met Dr Kaur on at least 25 social occasions, despite Dr Kaur's evidence during the fact finding interview to the contrary ie that she had never met Mr Mallegowda. Mr Mallegowda initially advised that he was uncomfortable with providing this information as his friends indicated a reluctance to become involved in this matter but subsequently provided his wife's contact details. I spoke to Ms Shyla Mallegowda on 27 February, 2013 who advised that she and Mr Mallegowda had met Dr Kaur on many occasions, the first time was during the Diwali function at a house in Fletcher (a suburb of Newcastle) in 2009. Based on this assessment, a privacy breach has occurred and although Dr Perkins name appears on the clinical system audit report as having unauthorized access to the applicant's health information on 27 September, 2012 and 09 October, 2012, the circumstances confirm some doubt that Dr Perkins was actually responsible for the breach of the applicant's privacy. It should be noted that Dr Perkins resigned from HNELHD on 20 January, 2013 to commence further training. There is also no evidence available to confirm that Dr Kaur has had unauthorized access to, or unauthorized use or disclosure of Mr Mallegowda's health information. It is therefore confirmed that a breach of the Use of personal health information principle (HPP 10) has occurred." (Original emphasis) 1. The report of Mr Jackson, the privacy contacts officer at Hunter New England Local Health District, which was provided to the Privacy Commissioner pursuant to s 54(1)(c) Privacy and Personal Information Protection Act 1998 (NSW), recommended that no further action be taken as Dr Perkins had resigned and an apology had been provided to the plaintiff for the privacy breach. 2. Dr Kaur was interviewed for the purposes of the report. She said that she had never met the plaintiff and did not know what he looked like. Her solicitor acknowledged that Dr Kaur's husband (Mr Sood) was currently engaged in legal proceedings with the plaintiff. Dr Kaur's solicitor told the tribunal that: "It would not be appropriate for Dr Kaur to answer specific questions about those proceedings and the issues in those proceedings which are before the courts. So I think it is important to make that statement". Lay evidence in relation to publication 1. The lay evidence in relation to publication falls into three groups: 1. The evidence of the plaintiff; 2. The evidence of lay witnesses called by the plaintiff to establish his whereabouts (including evidence as to how long a trip to the internet café would have taken); 3. The evidence of the defendants, their solicitor and relevant lay witnesses (Mr Gowda, Mr Vishweshwariah). The evidence of the plaintiff 1. The plaintiff submits that it was impossible for him to send the attacking email on 21 August 2012 because he was carrying out scheduled multiple site inspections using a work vehicle for which the driver's logs have been produced. Those driver's logs show that the plaintiff left the office at 12:00pm. The attacking email was sent at 12:16pm from an internet café located at Charlestown Shopping Centre, approximately 10 km from the plaintiff's office. The plaintiff submits that the first defendant conceded in cross-examination that it was not possible for that email to be sent (T 769) but that is not my understanding of Mr Sood's evidence. 2. The plaintiff relies upon his own evidence in this regard as well as the contemporaneous records. However, it is the experts' evidence of this conduct which I have relied upon, because of my concerns about the plaintiff's reliability as a witness. This evidence is set out in detail below. The evidence of the plaintiff's witnesses 1. The plaintiff relies upon the evidence of his wife, Mr Ramachandra and Mr Bilimagga to ascertain that he could not have sent the arathi.deshpande emails because he was not at his residence when the arathi.deshpande email was sent. The plaintiff claims that the defendants are responsible for the arathi.deshpande email because they made a video prior to the email being sent from that account (written submissions, paragraph 41). Mr Harsha Ramachandra 1. Mr Ramachandra gave evidence that he attended the plaintiff's wedding anniversary party on 25 August 2012 and stayed overnight. He used the plaintiff's home internet network to access his Skype account while he was there and noted it was an unsecured network. He observed the plaintiff and his family leaving for the Central Coast in the morning. However, by reason of my findings that the mere opening of the anonymous account amounted to publication, I do not need to do more than note this evidence. Mr Vijaya Putaya Bilimagga 1. Mr Bilimagga, who lives on the Central Coast, gave evidence that he invited the plaintiff and his family for a party on 26 August 2012. He had travelled the route in question on many occasions and said that it took approximately 1 hour and 10 minutes to travel from the plaintiff's home to his home. He was certain that the plaintiff had arrived at the party at approximately 1pm and stayed late in the evening. The 1pm time was able to be fixed by reason of his certainty that there was a cake cutting ceremony at the relevant time. 2. The plaintiff's submission is that he must have left home at about 11:50am on 26 August 2012, which means he would have been on the road at the time that the arathi.deshpande email was sent at 12:11pm. This evidence was confirmed by his wife, who said that the whole family had left home shortly before 12:00pm. 3. Again, by reason of my finding that the plaintiff's creation of the account members.ian@gmail.com, I do not need to make findings concerning the arathi.deshpande email. However, I formally note that I accept the experts' view that, when weighed against the expert evidence, the recollection by lay witnesses of precise times, some years ago, should be regarded as weak. Mr Paul Issa 1. Mr Issa was a fellow employee of the plaintiff's. He gave evidence about the use of fleet vehicles and equipment by staff. Mr Issa also confirmed that on the day in question (21 August 2012), the plaintiff had prior appointments (T 480), as shown up in the work share calendar. 2. Finally, Mr Issa stated that at least six members of the IAN were also persons whose names were in the RMS phone guide, meaning that they were likely to be employees (T 474-476). These persons are: 1. Amansdeep Singh; 2. Amarjit Singh; 3. Ashish Tamhane; 4. Shipra; 5. Rajender Kumar; and 6. Rakesh Goel. 1. The inference I am asked to draw is that one or more of these persons could have created the false email address members.ian@gmail.com. 2. The plaintiff needs to do more than point the finger at other IAN members who work for the RMS. They may not have been at work that day, or they may have been engaged in activities which precluded the setting up of this account, or they may have cordially disliked the plaintiff and been resistant to helping him. This evidence is of no value. The evidence of Mrs Singh 1. Mrs Singh, a registered nurse in the process of completing a Juris Doctor law degree at Newcastle University, was cross-examined with some pugnacity. She was in some difficulties because the statement the plaintiff had prepared for her contained a great deal of inadmissible or irrelevant material (this was a problem with all the witness statements, but the preparation of statements saved very substantial trial time, as otherwise this evidence would all have had to be given orally).Despite these difficulties, Mrs Singh answered politely and courteously throughout her evidence. 2. Mrs Singh denied throughout her evidence any connection to the attacking email, including any form of authorship. She said she had been unaware of the assertion in the attacking email that money had been withheld by the first defendant after an IAN function: Q. "Not ever." Thank you. So one allegation which is made in the attacking email against Mr Sood, it said there was some money collected at the entrance by Mr Sood. When did you become aware if it was that some money was collected? When did you become aware? A. After that allegation. Q. After the allegations. Was that money put to the bank, or it was held with Mr Sood? A. Well, there was some additions, but the money came much later, a few weeks later." (T 551). 1. She explained the reason why the Committee had decided, after consultation with the two prior Presidents, to send a short email telling IAN members to ignore the hoax email: "A. Well, we wanted to send a three letter email just saying to ignore it. I mean, we did not want to cause unrest or disturbance in the community. So we wouldn't – we wouldn't – I mean, I don't even know who lodged a police complaint, in what capacity, and if somebody did that personally that was their matter to deal with. The association never did anything like that." (T 559) 1. As a member of the IAN for 33 years, she said there had been "lots of incidents" such as disagreements in the past (T 562), but that the allegations in the attacking email about members resigning in circumstances reflecting on the competence of the committee or its members were untrue: "Q. Were there two other people who resigned? What about Mr Amrit Nahar and Mr Tajinder Pal Singh? Did they both resign? A. Yes. Amrit Nahar resigned soon after the first function. He had family commitments and all. Tajinder Pal - he resigned after one and a half years of being on the committee. He also had family issues. Q. So when the attacking email said that these people resigned because of the committee's incompetence, that was not true? A. That was not true. Q. All right. A. IAN has a history of members resigning quite easily." (T 562). 1. The first defendant told the court during the cross-examination that "Mrs Singh held me - she didn't reply to the email which could have recovered my reputation within the community" (T 627). In other words, she and the former Presidents had wanted to diffuse the situation, rather than calling in the police and sending out an email in the terms that the first defendant wanted. He put to her: "Q. Did you have a very good and cordial relationship with Mr Sood's wife? A. She was my friend. Q. Did you request Mr Sood to join as a treasurer or did he approach you? A. Well, I phoned my team and I did ask a few - I did ask you if you would like to join my team. Q. Did you have good, cordial relationship with Mr Sood until September 2012? A. I had a good relationship with you. I still had it until the end, but your emails, your unpleasant emails - your unpleasant emails weren't very - did not make me comfortable. Q. Do you remember, Mrs Singh, why did the relationship break down Mr Sood? A. I don't remember, but you did not do your job some places, in some places, and I kept reminding you to do your job. Q. I put it to you, Mrs Singh, your relationship with Mr Sood broke down because Mr Sood wanted to send an apologising letter to a member of the community, and wanted to own up to the mistake that..(not transcribable)..committed, which you didn't like—" (T 628). 1. While there were disagreements in the past, these had been resolved, and the real difficulty was, as had been the case with Mrs Pandya's problem, that the first defendant had completely overreacted to the attacking email and was enraged that he had not been able to dictate the text of the reply to the IAN agreed upon at the meeting. It was then that he began to assert that Mrs Singh had something to do with these events, although the attacking email had been critical of the leadership of the committee generally, which was clearly an adverse reference to Mrs Singh herself. 2. The attempts the first defendant made to associate Mrs Singh with these events can be seen by the angry emails he sent to members at the time. It was at this time that information about the plaintiff's bipolar condition was being circulated in Newcastle and the fake telephone call was made to his doctor by a person pretending to be a police officer. The defendants wrote to the IAN community members and the plaintiff then sued them for defamation. 3. Over this period there was dissension in the IAN, as is clear from the emails the first defendant was sending. On 27 January 2013 at 12:17pm, the first defendant sent an email, entitled "Email sent by Harjit to Mr. Mallegowda via IAN email", to members of the IAN as follows: "Dear All, Further to the email conversation since yesterday, it is plainly obvious that a majority of the committee members have not agreed to the content of the email sent to Mr. Shashikanth Mallegowda regarding a legal matter. In light of this development, I am asking the other members of the committee for their reply regarding their stand on this matter. Please be aware, that since this is court matter and your statement may be produced in front of the court in relation to the court case. I would like to state that we have documented evidence that Harjit's statements in the email to Mr. Mallegowda are incorrect and blatant falsehood. I am not at liberty to discuss the evidence as it is sub judice to the current legal case. If the members who might have agreed with Harjit's action as per her email, be also aware that it is contempt of court to give false statements as I believe Mr. Mallegowda will submit Harjit's email to the court as representative view of the IAN committee members. The committee members who have already made their stand clear do not need to reply to this mail. The ones who have not replied are K C Shah and Manoj Kumar who need to reply by 6pm today being 27th Jan 2013 to make their stand clear. If the deadline is not met, they will be served with a Notice to produce and also a subpoena. -- Regards Amit Sood" 1. On 28 January 2013 at 9:35pm, Ms Harjit Singh replied to this email, a copy of which was sent to other members of the IAN: "Hi Amit, I have told the facts and truth. K.C, Manoj and Harjinder agreed to me sending the reply to Sashi Gowda prior to it being sent out. Please be careful with your statements accusing me of blatantly lying. False statements like that will not be taken lightly. Please check the first minutes (you should have it since you wrote it) which you corrected and wrote for Tpal [sic; should be Tapan]. It shows all on committee approved that all email goes out via president in ref 7 at that meeting of March, 2011 and again in minutes in Aug. 2012 in the presence of Tapan on 26 Aug, 2012 that all email to be sent via president. These minutes written by Tapan were used again at next meeting in Sept. to prepare for Diwali function. In also following the CONSTITUTION, you as treasurer have failed to send financial accounts as requested by committee in presence of Tapan at a meeting in August and emails by president and you also have not paid accounts as requested by members of community since August and again in the last month. All flyers sent to me is [sic] sent to IAN box prior to it being sent out. Notice was given, meetings were organised and held, you guys do not turn up for meetings and functions in the last 5 months and CONSTITUTION says at least one meeting every 3 months. You guys have not attended any meetings and functions for the last 5 months and I am not sure if you guys who did not inform of non attendance should even be on the team. IAN committee has nothing to do with your personal or anyone's personal legal matters so please ensure that confidentiality of IAN email box is not breached. We just reply emails, sometimes it takes us a month to reply to members as this is a voluntory [sic] organisation and as long as people do their jobs in time for the success of the next event as per constitution. I have noticed that you have forwarded several emails to yourself in the past 2 months from the IAN email box. Please do not forward any committee emails or my emails (written to individuals in the community) from IAN email box to yourself, for yourself or third party. Do not breach confidentiality and privacy of IAN mailbox. All committee members have the password of IAN box and are able to read emails in and out from IAN box themselves. If an email is addressed to all in the community, you should already have it like everyone in your email box. I do not want you to send any of my personal reply emails to individuals in the community from IAN email box to yourself or a third party without my consent. Please do not breach privacy and confidentiality guidelines and this will definately [sic] not be taken lightly. How does Naveen Lingaiah have the email of Arathi Despande that was sent to IAN box and why is Sashi Gowda sending IAN a copy of that email sent to him by Naveen Lingaiah from the IAN Box. That is definately [sic] a breach of privacy rules and confidentiality about forwarding letters from IAN box from who so ever who wrote to president or committee and sending it to non committee members in community. You or anyone linking me to honest emails (fishy, fishy) or anyone else and accusing me of blatantly lying about majority or anything else will also not be taken lightly. Again, why have you not done your job as treasurer as per constitution and made payments requested and promised by individuals since August and other payments requested. You have also not sent financial accounts and membership lists etc. Please do not fail to make all payments as requested by tonight, send financial accounts to president and all by end of this month as per constitution so it can go to the auditors in time for AGM on 23/2/12. Regards Harjit." 1. It is clear that the two former Presidents, Ms Dillon and the President generally referred to as "Tapan", were still trying to assist the IAN committee to deal with these issues. It is also clear that there was an investigation by an accountant; the first defendant claims credit for this, but I am satisfied that the obtaining of this report was carried out by Mrs Singh and the committee under the guidance of the two former Presidents. The accountant's report Mrs Singh obtained is set out in the section of this report on damages. It does not put the first defendant's book keeping methods in a good light, although it does absolve him from fraud. 2. The defendants' submission is that Mrs Singh is the person who wrote the email, was the person who sent the email from the internet café and had conversations with the plaintiff about covering up her role. However, as I pointed out in some detail (T 706 – 709) to the defendants, none of this was put in terms (and much of it not at all) either to the plaintiff or to Mrs Singh. For example, it was not put to Mrs Singh that she and the plaintiff had a conversation to the effect that, "We're going to have to tell Mr Sood who sent this email or who we suspect". Nor was it explained how the plaintiff (or Mrs Singh, for that matter) knew about the factual material set out in the attacking email. Nor was there any reference to these issues in the statements provided by the defendants, as I also pointed out (T 710 – 712). 3. The hostility the first defendant felt appears to have extended to the incoming committee, from whom he withheld financial records: "FIRST DEFENDANT: I was there at the handover meeting. I just didn't hand it over to Mrs Singh. HER HONOUR: Why wouldn't you hand it over to Mrs Singh? FIRST DEFENDANT: Because of my hostile relationship with Mrs Singh, your Honour. HER HONOUR: What sort of a reason is that for not handing over a financial report for a committee? Your obligation is to the committee not to Mrs Singh. FIRST DEFENDANT: Yes, your Honour, and I sent it to the committee, I sent it to Mr Rajesh for his - and Mr Rajesh can give evidence to that, your Honour. WITNESS: You did not send it to the new committee. You did not provide it— FIRST DEFENDANT: I did table it to the new committee. WITNESS: The president of the new committee and I wrote you an email. We wrote you a letter, we even sent it via, so that you would get it. And you did not attend the handover meeting, I was there. You did not provide the details of the report for 2011 to 2012 or 2013, you did not provide the financial report for that. This is the report of the year before." (T 631) 1. Mrs Singh's cross-examination was unpleasant to listen to, because the hatred the first defendant bears for her seems almost obsessive. As it happens, everything she says about the conduct of these proceedings is confirmed not only by the contemporaneous documentation but by the evidence of Mr Sharma, which is set out in some detail below. Rather than set out everything that Mrs Singh was cross-examined about, I have preferred to note Mr Sharma's many admissions about the extraordinary way in which the committee was run by himself, the first defendant and their faction. It certainly explains why, when the attacking email was sent, the IAN members had had enough and called in two former presidents to help restore order. The evidence of the defendants 1. The lay evidence of the defendants falls into the following categories: 1. Events leading up to the attacking email: the evidence in response to the plaintiff and to Mrs Singh's evidence about committee activities. Large parts of this evidence are completely irrelevant; all parties are clearly nursing grudges from disagreements going back to 2012. 2. The evidence of the defendants, and particularly of Mr Gowda on the issue of publication and in particular the circumstances leading to the plaintiff's conviction for contempt of court. 3. The evidence of other witnesses about their involvement in events occurring subsequent to the attacking email. The evidence about committee affairs prior to the attacking email 1. The parties' witnesses gave evidence about the role the first defendant played in the IAN prior to the attacking email. 2. The plaintiff called witnesses who gave evidence about the atmosphere in the IAN prior to the attacking email. One of these was Mrs Pandya, who required insurance assistance for an IAN function she helped organise each year from 1998 onwards: "A. This is..(not transcribable)..event. I have been organising this event since 1998, and that was the year in 2011, for whatever the misunderstanding was there, the Indian Association decided not to provide the public liability insurance and, from 2011 itself, we have found our own ways to organise the event and we are organising it as a charity event. Prior to that, it was just a community event, but now it's a charity event and we have good community support and so far we have raised more than $8000 through that event. Q. So to which charity group are you raising these funds for? A. Different charities. We have done it for Variety, the children's charity. We have done for New Gokula Farm in Cessnock, and we have also donated some money to our local template." (T 536) 1. In past years there had been no difficulty with insurance, but when Mr Sood became the treasurer, his approach had caused so many difficulties that she gave up trying to get IAN assistance. 2. Mrs Pandya said she had barely known the first defendant prior to these events and had no personal animus towards him: "A. Definitely not at a personal level. Whatever has happened, it was through – I basically don't even know Mr Sood that well. Only we have met – we just met basically say hello, prior to that. So I, personally, have no – nothing against Mr Sood. Whatever has happened, it is in his position as..(not transcribable)..and that's where it stays. Q. The event— A. I've not seen Mr Sood for a long, long time." (T 537) 1. She sent an email to IAN members which noted the change of circumstances, the terms of which were mildly humorous and certainly not insulting, but Mr Sood's anger about these long-ago events was palpable from his cross-examination: "Q. Would it be correct to say, Mrs Pandya, that Mr Sood did his best to provide you with the insurance certificate for your event? A. Yes, you have tried your level best. I have nothing personally against that. There was a little bit of misunderstanding at that - around that time, and I think we, from that time on, decided not to take up the..(not transcribable)..insurance from Indian Association. So, yes, I don't have anything against personally..(not transcribable)..yes, we had some misunderstanding, and that's where it stays. … Q. Mrs Pandya, that email was written on 18 September 2011 at 5.26am in the morning to quite a huge group of people within Newcastle and in that email would it be right to say that you really insulted Mr Sood in front of so many people, would it be right to say? PLAINTIFF: The document speaks for itself, your Honour. HER HONOUR: Just one moment. I propose to - Q. What's being put to you is that you were insulting Mr Sood in that email. What is your answer, Mrs Pandya? What do you say? A. There was no intention of insulting Mr Sood, definitely not. I have just stated basically the facts." (T 530 – 531) 1. The email in question was tendered. There was nothing in the email to explain why the first defendant felt he had been "really insulted in front of so many people". The only word to which the first defendant could point was that she said she was "dismayed" that the insurance the IAN regularly provided for this annual event was not available, and referred to him by the honorific "Swami" (T 533 – 4). As the event could not be held without insurance, and there had been no problem with this in the past, it was hard to see why the word "dismayed" was so objectionable. If this is a typical example of the first defendant's dealings with members of the IAN, it is not difficult to see how he acquired a number of opponents and even outright enemies. 2. The defendants also called witnesses who described the atmosphere in the IAN prior to publication of the attacking email. Their evidence related largely to supporting the defendants' attacks on Mrs Singh. The principal witness of relevance, in terms of identifying some of the many IAN members who might be associated with the sending of the attacking email, is Mr Sharma. Mr Yogesh Sharma 1. The defendants called Mr Yogesh Sharma, a co-worker of Mr Sood's (T 1578), who was elected secretary in May 2012. He was a member of the first defendant's claque, and he immediately joined in the challenge to remove her in June 2012 (T 1578). He painted an astonishing picture of Mrs Singh being "sidelined" because she was not behaving "democratically", but agreed that the committee went to some trouble to ensure that members did not find out about it: "Q. Yes. Was there a meeting in 2012, Mr Sharma, in which in minutes of meetings sent by Mr Yogesh it was agreed that Ms Singh would stay away from any decision making and that all decisions would be collectively taken by other members and that she would only be informed of those decisions and not allowed to participate? Is that right? A. Yeah. Yes, majesty [sic]. This meeting was there and all the committee members felt that Harjit was not behaving democratically and members felt that Harjit should not be taking the decisions and majority decisions will be taken in the committee and those will be followed. Q. Well, that's a bit different, because, you see, what's been put is not that the committee would make decisions democratically, but that Ms Singh would not be permitted to take any part in the decision making. A. That was a measurative(as said) decision in the committee." (T 1555 – 6) 1. I was shown the committee minutes which reflected this decision: "HER HONOUR: Wait, no, where are the meetings of minutes? FIRST DEFENDANT: Your Honour, it's on page number 2. HER HONOUR: MOM IAN committee, yes, apologies, none, previous business, new business. FIRST DEFENDANT: And then on the next page paragraph number - where it starts with, "Harjit will deliver presidential speech." HER HONOUR: "Six members will allocate work collectively in a team spirit, Harjit will be informed of the decisions in emails." FIRST DEFENDANT: And then the next paragraph, your Honour. HER HONOUR: "Harjit will deliver the presidential speech. She will kept informed, will stay away from day to day decision making in the committee." FIRST DEFENDANT: Yes. HER HONOUR: "These steps were taken to create an amicable environment to the committee and reduce conflict. The majority are of the opinion that conflict will go away by this decision and the effort will be streamlined. Five of the seven committee members were not remember to work with Harjit, Harjit does not agree with that." So that was the minute. Is that right? So is that what happened? FIRST DEFENDANT: Yes, your Honour. WITNESS: Yeah, I—" (T 1556) 1. The first defendant's response to this question, rather than let the witness answer, is noted. 2. The plaintiff objected to this evidence, pointing out that Mrs Singh had not been shown this document. However, what Mrs Singh in fact had said was that these "minutes" had not been agreed to by the committee (T 1557), which is the evidence that I accept on this issue. 3. Mr Sharma went on to explain the extraordinary way the committee commenced to operate in the weeks following his appointment in May 2012: "Q. She's just a figurehead. Is that right? A. Yeah, see, at the last paragraph of this MOM, this - five of these seven committee members agreed that Harjit, Mrs Singh will be excluded from decision reason. Reason was that she was taking monotonous decisions without informing the committee members and she was talking one to one and was functioning of the committee was really difficult. That was unprecedented decision taken at that particular time. So, yes. Q. And is that how you conducted the committee thereafter? A. This was not a - was a comfortable situation but there was function, Independence Day function, that was to be organised and for organising that function it was necessary to work all together but this was the only option at that time. Q. Yes, but the thing is this, did you conduct the IAN in that way from that time onwards, from June 2012 onwards? In other words, you didn't include her in decision making, she wasn't allowed to vote, she wasn't allowed to say anything, you made the decisions and she was informed later. Is that how you ran the committee? A. No, that is not the case, your - your Honour. I joined in May 2012 and then meetings were taking place and I think some of the meetings there was lot of discussions, there - there was no conclusion coming out, and in this meeting it was decided that we'll take measurative(as said) decisions and work on that and Q. Yes, but the thing is what that minute says is not a majority decision. A. Yes Q. No, you see, what that minute says and what Mr Sood is putting and what was put to Mrs Singh was that she wasn't to participate in decision making at all, she would just be told afterwards by the committee what had been decided. Now, is that the case? Yes or no? A. Yeah, that is the case. If you see last paragraph of this MOM, we are saying five of the seven committee members were ready to work with - they were not ready to work with the - Harjit, that means president. That means it was not possible to function as a committee and then function, we had to organise an Independence Day function, and then that was the only option." (T 1562) 1. Mr Sharma then conceded that although he, the first defendant and others had wished to run the committee in this way and had attempted to minute it, he and the first defendant had not had the numbers on the committee for the resolution to be carried, and it had not been passed. This appears to have been the impetus for these committee members to refuse to attend (as Mrs Singh noted) and otherwise disrupt committee activities by rivalrous and quarrelsome behaviour. However, Mrs Singh was prevented from voting by the first defendant and his associates: "A. Yeah, after this meeting she was not included in the decision-taking. In this meeting, in what our decision was taken in this meeting she was part of that decision-taking; but afterwards, committee decided that she will not be voting for the decisions. Q. So she wasn't allowed to vote? A. Yeah." (T 1565) 1. This is a course of conduct wholly inconsistent with the way in which Mr Tapan Goswami, who was called in to advise the IAN about the attacking email, arranged for Mrs Singh to settle and send out the committee's email responding to it. 2. The relevance of this background of hostility is that, in the months prior to the attacking email being sent, the IAN had changed from being a friendly community organisation with the kind of informal procedures common to so many community organisations and which had been chaired for some time by a popular President, to one where quarrelling and strife became the order of the day and attacking emails of various kinds (including anonymous emails) were being sent. The first defendant had played a central role in this unwelcome change of atmosphere. This explains why Mr Tapan Goswami, a respected member of the Indian community, was called in after the attacking email was sent, as the committee was clearly wholly dysfunctional and there would have been no shortage of persons in the IAN by August 2012 who wished the first defendant ill. 3. I asked the first defendant to clarify who Mr Tapan Goswami was, as he was not a witness: "FIRST DEFENDANT: Mr Tapan. HER HONOUR: Was he on the committee? FIRST DEFENDANT: No, he was an ex-president of the previous committee but he was a well-respected member so that's why he was called in. HER HONOUR: So you hadn't told the well-respected former member that in fact you had excluded the president from decision-making. Is that right? FIRST DEFENDANT: No, he was aware of that, your Honour. He was aware of. HER HONOUR: In that case, why did he write what he wrote? FIRST DEFENDANT: Because he didn't include that line, so I had to point it out that it was— HER HONOUR: So in other words when you were being critical - so when you say you were waiting for Mrs Singh to do something and she did nothing, in fact she wasn't allowed to do anything? FIRST DEFENDANT: Yes, that's what we— HER HONOUR: That puts a lot of your evidence about her doing nothing in a very poor light, Mr Sood. FIRST DEFENDANT: Your Honour, no. It was that she would look at the email but she won't make any changes, and that's where I want to show you this email, it's just to..(not transcribable)..her email. HER HONOUR: So you were saying that you were entitled. In that case, why were you waiting for her to make changes or to approve it? All of that evidence you gave about how you were waiting for her to do something and you were so critical of her for [not] doing something and it turns out that the committee, including you, had in fact deprived her of that right. FIRST DEFENDANT: No, your Honour. We hadn't deprived - it was still for her to look at it, but she was not supposed to make any changes to the draft. So that's what my email has pointed out. If I can hand it over, your Honour." (T 1568) 1. It must have been seen that the situation was serious, as the minutes (which were not prepared by Mr Sharma, perhaps because he was also perceived as biased) refer to the calling in of two former presidents, the other being Harjinder Dillon. 2. It was, however, Mr Sharma who drafted the "Beware of Hoax" response from the IAN to the attacking email (T 1579 – 1581). As is set out below, when asked what information the first defendant provided to him for this purpose, he answered evasively (T 1581 – 1582). Mr Sharma acknowledged that all the information with which he was provided was sent by email, and the plaintiff noted that no email from the first defendant had been discovered. The only amendment Mr Sharma would admit to was the removal of information about contacting the police. 3. Mr Sharma was asked: "PLAINTIFF Q. I'll draw your attention to line number 1, which is "YS", I believe "YS" refers to Yogesh Sharma. Is that correct? A. Yes. Q. "YS to put together a note for the community regarding hoax email circulated amongst the committee and HS. I believe Harjit Singh will finally send it to the members." Do you agree with that, that was one of - the meeting decided to do that? A. I agree with you. Q. Then why did you send that email to the members? A. Okay. I'll speak. This email was sent to all the committee members. Everybody was responding except Kasey Shah, who was out of Australia at that time. Harjit - sorry, Mrs Singh was not responding." (T 1584) 1. The draft email was sent by Mr Sharma to everyone at 11.35 am on Friday 24 August 2012. He received comments throughout the day by telephone but, inconsistently with the previous acknowledgement of the removal of material concerning the police, said that there were no changes to the draft, despite people ringing him to say "what is happening with this committee" or otherwise expressing concern. As a result of not hearing back from Mrs Singh, the email was sent out at 8.36 am on the following day (Saturday). 2. The inconsistency between Mrs Singh being told she could not participate in committee decisions when Mr Tapan clearly expected her to be the one to send this email continued to elude me and I asked Mr Sharma: "Q. But you told me before - and this is why I was wanting to get to the bottom of this before. You told me before that you'd agreed in June that she wasn't to participate because she gave you so much trouble. Now, which is it: either she was not to participate because she gave you so much trouble, she was just a rubber stamp, or she was to play a role in making a contribution. It can't be both? A. See, it was, like, for the community, the president was the president, but within the committee, to get the things done, that decision was taken, but outside the committee she was the president. Q. Are you saying it was a secret that you kept from the IAN members that you deprived the president of her powers? A. It was not my decision, actually; it was the decision of the committee, majority decision. Q. But that's what you'd done, and it was decided to keep this a secret from the members or something. Is that what you're saying? A. See, as a committee, we had to function actually and functioning was difficult with the belligerence approach. So within the committee, the decision was taken that majority decisions would be taken, but outside the committee, Mrs Singh was the president and that decision was within the committee. It was not communicated to the whole community. So that decision was within the community itself." (T 1587 – 8) 1. In other words, the first defendant, Mr Sharma and the other members of the rival faction wanted to keep it secret from the IAN members that they had railroaded their popular, elected President and excluded her from committee participation. Mr Sharma's claims that Mrs Singh was doing nothing and did not respond, in circumstances where everyone was waiting for comments to be made before the draft email was finalised, are not merely disingenuous but dishonest. 2. It is, however, significant that Mr Tapan Goswami and even the other committee members who opposed Mrs Singh preferred a situation where Mrs Singh was the public face of the committee's official response. There was no suggestion by any of these persons that Mrs Singh was in any way connected to the authorship of the attacking email. If there had been, it would have been identified straight away by these committee members and in particular by Mr Sharma, but he never did so. 3. Such was the importance of having Mrs Singh's name on this email that Mr Sharma, although sending this email without consulting her, used her name on it: "Q. No, there are no emails from committee members. The emails prepared by Mr Goswami says why he is to put together a note for the community re host mail circulated amongst the committee and Harjit Singh will finally send it to the members. I want to know when the members decided to bypass Harjit Singh? A. When I sent the document to all committee members and all the people who view their comments, whoever - what those comments are reviewed - and after that they were saying you send this to committee because you are secretary and as per constitution you are allowed to communicate. Q. But if you're going to bypass Mrs Singh, why would you sign it as Harjit? A. That was back in the history actually. The things that were happening actually, maybe that is the influence. Q. But you're not Harjit. Why would you sign it - "Regards Harjit and IAN Committee."? A. See, this was a draft and draft was sent to everybody and there was no recommendation that name of Harjit be removed. That's why it has gone as Q. But that was the email that went out to everybody. A. It was - everybody in committee?" (T 1594) 1. Mr Sharma was not an impressive witness. As the above extract from his evidence shows, his answers are not merely inconsistent with the facts (for example, his attempt to avoid answering that the email really was signed "Regards Harjit" and not "Mr Sharma") but nonsensical. He had to be asked questions repeatedly before he answered, and when he did so, it was in a sarcastic and resentful fashion that the transcript does not do justice to (but see, for example, T 1599 – 1600; 1601 – 2). 2. In addition, Mr Sharma's claim that he sent out the committee response is inconsistent with the evidence of the first defendant, who had admitted in his evidence that he was the person who sent out this email, with the signature "Regards Harjit and the IAN committee" (T 1604). When the first defendant's evidence was put to him, he became embarrassed and said that the first defendant was wrong (T 1604). He acknowledged that Mrs Singh had sent another email two hours later saying she had not been the author of the email Mr Sharma (or the first defendant) had sent in her name (T 1605) and that the "investigation" she said that the IAN committee would do did in fact take place. He attempted to claim that Mrs Singh had been copied in on emails between the committee about the response drafted in her name, but not even the first defendant has produced any such emails, and neither did Mr Sharma himself. I am satisfied this evidence was knowingly dishonest. 3. I am satisfied that Mr Sharma has been caught out in a series of lies about Mrs Singh, and that his opposition to her must have its origin in his relationship with the first defendant, who was his work colleague. Where there is any inconsistency between the evidence of Mrs Singh, Mr Sharma and the first defendant, I propose to accept the evidence of Mrs Singh. The evidence of the defendants and Mr Gowda on the issue of publication 1. This evidence is set out in the judgment of Adams J in Prothonotary of the Supreme Court of New South Wales v Mallegowda at [4]: "[4] On 26 August 2013 a mediation of the defamation proceedings took place. Present at the mediation were the contemnor, his legal advisors, Mr Lingaiah, Mr Sood and Mr Roberts, their solicitor. It is evident from an affidavit of Mr Roberts filed in the present proceedings (following the contemnor's plea of guilty) that he became aware of the contents of Mr Gowda's affidavit during the mediation. The mediation concluded at 12.30pm and, shortly after, the contemnor made two telephone calls. The first was made to Mr Gowda at about 1.07pm in which he said words to the effect — How dare you testify against me? You think you are very smart. I have all the details of you helping university students in exchange for money and I will get you caught for plagiarism. I have all the records of your bank account and tax and I am going to report you to university, tax department and the immigration department. At the time of this call Mr Gowda was travelling from Sydney to Newcastle. In the car with him was Mr Lingaiah, Mr Sood and Mr Roberts who were immediately told about the contemnor's threat. About half an hour later, the contemnor telephoned Mr Shridhar who was a friend of Mr Gowda's and said to him — Tell Ashwin that if he doesn't withdraw his affidavit by midday tomorrow I will make complaints to ATO and immigration department about him." 1. The evidence that the plaintiff was anxious to prevent being given was, as the expert evidence makes clear, that he wanted help to delete a Gmail account. The experts' reports 1. The expert reports the subject of these proceedings are next set out. I note the following preliminary points: 1. As the experts refer to the parties by their names (especially the plaintiff, Mr Mallegowda) I have referred to the plaintiff as "Mr Mallegowda in this section). 2. The experts gave concurrent evidence (in the case of Dr Watt and Mr Chapman) and separately (in the case of Dr Clarke), in the course of which they were extensively cross-examined, especially by Mr Mallegowda. None of the experts made any concessions of significance. I have found that cross-examination to be of little significance and have preferred to rely upon the reports. The issues the subject of the expert reports are highly technical and the best and most reliable method to analyse it is to remain close to the actual language and concepts set out in those reports. 3. Subsequent to the reports upon which the experts were cross-examined, some new material was found. The most relevant new finding is that the attacking email was sent from an internet café in Charlestown. A summary of the expert reports 1. The experts in these proceedings are: 1. Dr Allan Charles Watt (who was called by the defendants on Day 17 of the hearing); 2. Mr Peter Lindsay Chapman (who was called by the plaintiff on Day 16 of the hearing); and 3. Dr Roger Clarke (who was called by the plaintiff on Day 10 of the hearing). The first experts' report 1. On 24 July 2014, Dr Watt and Mr Chapman prepared a joint expert report (hereafter "the first experts' report"). The first experts' report maybe summarised as follows. 2. The following issues are agreed on by the two experts: 1. The email account members.ian@gmail.com was created on 21 August 2012 at 10:51:04am (AEST) using a device connected to a proxy service or router with the IP address 163.189.217.40 ("the proxy service/router IP"). The time "10:51:04am (AEST)" was taken from Google subscriber information produced by Google Inc. 2. The IP address 163.189.217.40 was the IP address assigned to a Roads and Maritime Service NSW ("RMS") proxy service or router. 3. Some of RMS's computers access the internet via the proxy service/router IP, and those computers connected to the internet via this proxy service or router "would each have a unique local network IP address" (p. 3 of the first experts' report, at paragraph 6(b)). 4. On 21 August 2012, Mr Mallegowda's RMS computer "was assigned a RMS internal network IP address of 163.189.142.44; this IP address was also assigned to Mr Mallegowda's RMS computer on 19 February 2013, 6 May 2013 and 26 June 2013. 5. Dr Watt and Mr Chapman agreed that "the local network IP address of 163.189.142.44 is likely to have be persistently allocated to Mr Mallegowda's workstation during this period of time" (p. 3 of the first experts' report, at paragraph 9). 6. According to documents produced by RMS, a list of eight RMS users were accessing the Gmail service on 21 August 2012 between 10:50:08 and 10:52:06 (this timeframe, as taken from RMS records, represented the -1 and +1 minute timeframe from when the email members.ian@gmail.com was created). One of these users had the user profile "Mallegos", who was recorded as accessing the Gmail service at 10:51:21 and 10:51:42. 7. An email was sent on 21 August 2012 using the email account members.ian@gmail.com. (This is the attacking email). 8. On 21 August 2012, Mr Mallegowda's mobile 0406 331 889 accessed a telecommunications relay tower located in the Charlestown area at 12:19:22pm. (I note that Mallegowda's RMS office was located at 59 Darby Street, Cooks Hill: T 230; a test drive carried out by another witness, Mr Vamsykrishna Doddala took 19 minutes and 37 seconds to travel from the plaintiff's RMS office to the internet kiosk). 9. On 25 August 2012 at 4:03:19pm (AEST), a person accessing the internet through IP address 110.33.134.117 created the email account arathi.deshpande@gmail.com. The IP address 110.33.134.117 was assigned, according to documents produced by Optus Internet Pty Ltd, to an account with "the details of "Shashikanth Mallegowda" in connection with the property "Unit 2, 5 Loderi Place, Warabrook NSW 2304"." 10. An email was sent on 26 August 2012 using the email account arathi.deshpande@gmail.com. This is the account used to book tickets and, later, to make disparaging remarks about the first defendant, before being taken offline at a time the subject of dispute between the parties. 11. On 26 August 2012, Mr Mallegowda's mobile 0406 331 889 accessed a telecommunications relay tower located in the Hamilton East area at 12:14:53pm. This would tend to indicate Mr Mallegowda was in an area that is within this relay tower's catchment area (I note Mr Mallegowda said he was at Mr Bilimagga's party in Lisarow before 1pm. Mr Bilimagga says Mr Mallegowda would have arrived between 12:45 and 1pm. Mr Bilimagga said it takes around 1 hour from his home to Mr Mallegowda's home). 12. On 26 August 2012 at 9:51pm (AEST), a video was uploaded onto the "Screenr" website recording the Gmail account recovery process for the email account arathi.deshpande@gmail.com. The experts agreed that "[t]he video shows that the mobile phone number 0406 331 889 has been associated with this email account; however this does not conclusively prove that the owner of the mobile number 0406 331 889 is the owner of arathi.deshpande@gmail.com." 13. According to this first experts' report, the email account arathi.deshpande@gmail.com was deleted on 10 December 2012 at 9:50:42pm (AEDT). As will be discussed in the section below concerning the second experts' report, this time was corrected to 7:43:33am (AEST) on Monday 27 August 2012. 14. The email account members.ian@gmail.com was deleted on 11 December 2012 at 9:50:42am (AEDT). The time "9:50:42am (AEDT)" was taken from Google subscriber information produced by Google Inc. 15. Mr Chapman, the second expert retained by the plaintiff, was provided with a Lenovo T420s laptop by Mr Mallegowda who stated "that it was the computer that [Mr Mallegowda] used at home during the month of August 2012" (p. 5 of the first experts' report, at paragraph 23). Mr Chapman "did not find any evidence which indicated it had been used to access the Gmail accounts members.ian@gmail.com or arathi.deshpande@gmail.com" (p. 6 of the first experts' report, at paragraph 24), but the two experts agreed that "Mr Mallegowda could have used a number of other methods to connect to the internet during August and December 2012, including using another device connected [sic] his residential router" (p. 6 of the first experts' report, at paragraph 25). 1. The two experts were in disagreement as to the question "[w]hether the evidence is sufficient to conclude that Mr Mallegowda was the person responsible for the sending the email from members.ian@gmail.com dated 21 August 2012 and the email from arathi.deshpande@gmail.com dated 26 August 2012": 1. In response to this question, the defendants' expert, Dr Watt, was of the opinion that "[t]here are too many coincidences, to exclude Mr Mallegowda as the person responsible for creating the 'Gmail' accounts and sending the emails", for the following reasons: 1. The email account members.ian@gmail.com was created on 21 August 2012 from an RMS IP address and Mr Mallegowda's computer accessed Gmail at around the same time. 2. Dr Watt points to the fact that "there has been no other evidence that anyone else at RMS had an association, [sic] with the recipient of the emails other than Mr Mallegowda". 3. The arathi.deshpande@gmail.com email address was created by a computer connected to Mr Mallegowda's home internet service. Although there exists a possibility that a person could access this service from outside Mr Mallegowda's residence, Mr Chapman's analysis of the Netgear router showed it had the encryption function enabled at the time of his examination. 1. In response to this question, the plaintiff's expert, Mr Chapman, was of the view that he "was unable to form a conclusive opinion on this point" because: 1. There was "[n]o evidence" which "clearly identifies the point of origin, or the person responsible, for the email that was sent from" the two email accounts. 2. However, Mr Chapman identified "a circumstantial association between Mr Mallegowda and the creation of both" email accounts. 3. The members.ian@gmail.com email account was created by an RMS computer, but the exact computer, nor the user account that was used, were not "clearly identified by the evidence". 4. The Gmail account creation process may take several minutes, and "it is not clear exactly when Google actually records the time of a creation of an account during this process". By reference to the creation time of 10:51:04am (AEST), Mr Mallegowda was one of eight RMS employees that accessed Gmail within a minute of the recorded creation time. 5. The arathi.deshpande@gmail.com account was created by a computer connected to Mr Mallegowda's home internet service, but Mr Chapman leaves open the possibility that "a person could access this service from outside the residence if the person had knowledge of the WAP password or if the WAP was unsecured at the time". 6. Mr Chapman concluded by saying that he was unable to form a conclusive opinion because he does not "have sufficient knowledge of the other parties that may be involved [in] this matter to make an appropriate assessment of their capacity" to "arrange for someone within the RMS network [to] create the Gmail account members.ian@gmail.com and for someone to connect to Mr Mallegowda's home wireless network to create the Gmail account arathi.deshpande@gmail.com", or to "arrange for these actions to take place". 1. The plaintiff's dissatisfaction with his expert led to the retention (over protests by the defendants) of a second expert. The second experts' report 1. On 22 December 2014, Dr Watt, Mr Chapman and Dr Clarke prepared a second joint expert report (hereafter "the second experts' report"). 2. Dr Watt and Mr Chapman made a correction to the contents of the first experts' report, to which Dr Clarke made "no comment". This correction relates to the time when the arathi.deshpande@gmail.com email account was deleted. Initially, Dr Watt and Mr Chapman agreed that this account was deleted on 10 December 2012 at 9:50:42pm (AEDT). However, after examining Google Subscriber Information produced by Google Inc, these experts corrected the deletion time of this email account to 27 August 2012 at 7:43:33am (AEST). The practical effect of this correction meant that the arathi.deshpande@gmail.com email account was created on 25 August 2012 at 4:03:19pm (AEST), and deleted less than 48 hours later, at 7:43:33am (AEST) on 27 August 2012. 3. In preparing this second experts' report, the three experts were given "further documents not previously provided which were produced by the RMS". This second experts' report was prepared in a particularly commendable manner, in that Dr Watt, Mr Chapman and Dr Clarke agreed "in particular, … that they must not act on any instruction or request to withhold or avoid agreement with each other." 4. These three experts agreed, inter alia, on the following: 1. In relation to the members.ian@gmail.com email account: 1. The members.ian@gmail.com email account was created on 21 August 2012 at 10:51:04am (AEST) "from an IP address used by the RMS for an intermediary device such as a router". 2. That the members.ian@gmail.com email account has an associated email account mjahasag@yahoo.com. 3. That the "creation of the email account 'members.ian@gmail.com' was performed by a person using a device that was connected to the RMS's internal network, most likely an employee or contractor. 4. That the subpoenae issued to RMS may not copy all RMS employee records and "some staff may have been missed". 5. That the email sent on 21 August 2012 at 12:16pm (AEST) from the email account members.ian@gmail.com was sent from Telstra IP address 203.45.97.236 and that "there is currently no other evidence which indicates the physical point of origin or sender of this email". 6. On 23 August 2012 at 3:51:11pm, 3:53:49pm and 3:57:16pm, the user account "Mallegos" "accessed the Google Help pages on how to delete or restore a Gmail account, but there is no evidence that indicate that an email account was actually deleted at this time or which email account or accounts was/were the focus of these accesses." 7. The email address members.ian@gmail.com was deleted on 11 December 2012 at 9:50:42am (AEDT). 8. While the experts very properly avoid deciding the final issue for me, they are satisfied that the members.ian@gmail.com account was created by someone who was connected to the RMS internal network at the time. One of these persons has to be Mr Mallegowda. 1. In relation to the arathi.deshpande@gmail.com email account: 1. This email account was created on 25 August 2012 at 4:03:19pm (AEST) from IP address 110.33.134.117. 2. From the information provided by Optus, "the IP address '110.33.134.117', on 25 August 2012, was assigned to the home address of Mr Mallegowda. 3. The email sent on 26 August 2012 at 12:10:58am (AEST) was sent from the IP address 110.33.134.117, which was assigned to Mr Mallegowda's home address. 4. From the information provided by Google Inc, the arathi.deshpande@gmail.com email account was deleted on 27 August 2012 at 7:43:33am (AEST) 5. Examination of Annexure L to Dr Clarke's report, a list of IP addresses showing Mr Mallegowda's home IP, suggests its allocation is dynamic and not static. 1. Thus the plaintiff's work address is used for the attacking email and his home address for the arathi.deshpande email. 2. The three experts' opinion differed as to the following issues: 1. In relation to the creation of the members.ian@gmail.com email account: 1. Dr Watt and Mr Chapman are of the combined opinion that the user "Mallegos" was one of those RMS users accessing Google services at around 10:51:04 (AEST), namely at 10:51:08 (AEST) (which is 4 seconds after the date and time Google logged this email account's creation), and had the URL "accounts.google.com" appear a number of times followed by the URL "mail.google.com". As Dr Clarke explained at paragraph 37(a) of this second experts' report, the "accounts.google.com" subdomain contains a link to the "Create an account" page. The other persons accessing Google from the RMS network at the time (see the list of RMS user names in paragraph 38(a)(ii) of the second experts' report) "do not contain records which are consistent with an Google account creation process around 10:51am AEST". 2. Dr Watt's opinion is that Mr Mallegowda is "most likely to have created the members.ian@gmail.com Gmail Account". 3. Mr Chapman's opinion is that "[t]he evidence presented in the detailed RMS log files obtained after the first joint expert repot is consistent with Mr Mallegowda creating a Gmail account… using his RMS computer at 10:51:02 AEST 21 September [sic]." However, "the RMS files do not directly specify that Mr Mallegowda created members.ian@gmail.com and I do not have sufficient evidence to weigh the possibilities of these alternate scenarios, I must leave the final determination of probability to the court." 4. Mr Chapman details three scenarios which he believes "provide alternate explanations to Mr Mallegowda creating members.ian@gmail.com": 1. The RMS log files are "inaccurate" and "have coincidentally shown Mr Mallegowda's user profile accessing the Google accounts web page and Gmail around 10:51:02 when he did not do so"; 2. A person other than Mr Mallegowda created members.ian@gmail.com using Mr Mallegowda's "Mallegos" RMS login; 3. Mr Mallegowda's accesses to the Google accounts web page and Gmail coincided with another RMS user's access, and that other user created the members.ian@gmail.com email account, but RMS did not provide that other person's internet log files or "those log files do not exist for some reason". 1. Dr Clarke is of the opinion that: 1. The process whereby log-entries are created is "opaque". 2. It is "entirely feasible that Mr Mallegowda created the account. However, there is insufficient evidence to exclude the possibility that some other person on the RMS network did so." 3. It is "entirely feasible that Mr Mallegowda created the account, but it is not possible to reach a confident conclusion that that was the case." 4. There is evidence of interactions by the "Mallegos" RMS user with Google during the relevant period of time and this use may or may not have included the creation or modification of a Google account. However, the possibility of another RMS user interacting with Google and thereby creating or modifying a Google account cannot be excluded. 1. In relation to the creation of the arathi.deshpande@gmail.com email account: 1. Dr Watt and Mr Chapman are of the opinion that this email account "was created from the address of Mr Mallegowda, however it does not specify an individual". 2. Dr Watt is of the opinion that "Mr Mallegowda was responsible for creating the email account arathi.deshpande@gmail.com". 3. Mr Chapman is of the opinion that "someone at Mr Mallegowda's residence was responsible for the creation of this email service" and that it was "highly improbable that a third party "spoofed" Mr Mallegowda's IP address during the creation of the email account by a third party in another location". Mr Chapman went on to conclude that "there is no direct evidence that clearly indicates that Mr Mallegowda created arathi.deshpande@gmail.com" and that he "must leave the final determination of probability to the court". 4. Dr Clarke is of the opinion that on the date of the creation of the arathi.deshpande@gmail.com email account, the experts had "no evidence as to Mr Mallegowda's location at the time" and "his Internet router was not password-protected on 25 August 2012". Dr Clarke agreed that the IP address 110.33.134.117, which was used to create the email account, was "likely" to have been assigned to Mr Mallegowda's home. Dr Clarke expressed the opinion that it was "not possible to reach a confident conclusion that Mr Mallegowda created the account", by proffering the following alternative explanations as to how a device could have carried the IP address 110.33.134.117: 1. A person using a device to access the internet from inside the home, and it is "entirely feasible that Mr Mallegowda created the account, from inside his home." 2. If the network was not password protected, a person may be able to access the internet from outside the home; or 3. By the use of a Virtual Private Network ("VPN") and it is "entirely feasible that Mr Mallegowda created the account… by using a VPN to establish a connection to his home network". 1. In relation to the sending of the 26 August 2012 at 12:10:58am (AEST), which was sent from the IP address 110.33.134.117 (I note that in this second experts' report, the experts unanimously give the time as 12:10:58am as the time for when the subject email was sent. However, the time given in the first experts' report in relation to when Mr Mallegowda's mobile 0406 331 889 accessed the Hamilton East area relay tower was given at 12:14:53pm): 1. Dr Watt and Mr Chapman are of the opinion that "Mr Mallegowda's mobile phone could potentially be serviced by the Hamilton East tower while he was at his residence. It "cannot be excluded that Mr Mallegowda was at home at the time of the email being sent". 2. Dr Watt is of the opinion that "Mr Mallegowda was responsible for sending the email on 26 August 2012 at 12:10:58am". 3. Mr Chapman is of the opinion that "someone at Mr Mallegowda's residence was responsible for the sending of this email" but that "there is no direct evidence that clearly indicates that Mr Mallegowda was responsible for sending the email". Mr Chapman again stated that "I must leave the final determination of probability to the court". 4. Dr Clarke was of the opinion that "while it is possible that the IP-address 110.33.134.117 was assigned to some other location at the relevant time, it is likely that it was assigned to Mr Mallegowda's home". Dr Clarke went on to say that "[i]t is most likely that the person concerned was using a device that was, or that appeared to be, connected to the Internet from the network in Mr Mallegowda's house" and that "[t]his could be achieved by a person in the home, by a person who had he capability to connect to the network via a Virtual Private Network (if one was activated), or by a person outside the home (if the network was not password-protected". Dr Clarke concludes by saying that "[i]t is entirely feasible that Mr Mallegowda sent the email, from inside his home, or perhaps remotely, by using a VPN… However, there is insufficient evidence to exclude the possibility of use of the network by some other person, and hence it is not possible to reach a confident conclusion that Mr Mallegowda sent the email". 1. In relation to the deletion of the arathi.deshpande@gmail.com email account, Dr Clarke was not asked to consider the video showing an attempt to recover the password for the arathi.deshpande@gmail.com email account, which was uploaded to Screenr. Only Dr Watt and Mr Chapman view this video: 1. Dr Watt and Mr Chapman concluded that during the password recovery process a mobile phone number was shown, namely 0432 323 381. These experts noted that this video "appear to be created on 26 August 2014 at 9:51pm. The mobile phone number belongs to Mr Mallegowda". 2. Dr Clarke stated that "I have not been asked to consider the video in question and I do not see it in evidence, nor as material that I should take into account in my analysis. I accordingly make no comment on this matter. 1. It should be noted that, whilst the defendants' expert, Dr Watt, would appear to be confident to conclude Mr Mallegowda is responsible for setting up the two email accounts and sending the 21 August 2012 and 26 August 2012 emails, both of the plaintiff's experts, Mr Chapman and Dr Clarke, do not rule out the possibility that Mr Mallegowda could have sent these emails. 2. At paragraph 6.33 of Dr Clarke's report, in relation to the answers given by Dr Watts and Mr Chapman as to "[w]hether the evidence is sufficient to conclude that Mr Mallegowda was the person responsible for the sending the email from members.ian@gmail.com dated 21 August 2012 and the email from arathi.deshpande@gmail.com dated 26 August 2012", Dr Clarke commented that: "6.33 In relation to Dr Watt's statement in para. 31(a) on pp. 6-7: • I agree that "there are too many coincidences, to exclude Mr Mallegowda as the person responsible for creating the 'Gmail' accounts and sending the emails" • on the other hand, in my opinion there is not sufficient evidence to infer that Mr Mallegowda was necessarily the person who performed those acts 6.34 In relation to Mr Chapman's statement in para. 31(b) on p. 7: • I am in broad (and frequently in detailed and specific) agreement with most of the statements that he makes • however, I do not agree with his opinion in para. 31(b)(vi) that "the arathi.deshpande@gmail.com account was created by a computer connected to Mr Mallegowda's home Internet service". In my opinion it is not possible to reach a confident conclusion that that was the case, because of a number of uncertainties arising from the evidence. • in addition, I do not adopt his opinion in para. 31(b)(viii), in that I have not had an explicit discussion with Mr Mallegowda along the lines described." 1. The effect of Dr Clarke's comments at paragraphs 6.33 and 6.34 meant that: 1. He agrees with Dr Watts that "there are too many coincidences, to exclude Mr Mallegowda as the person responsible for creating the 'Gmail' accounts and sending the emails"; and 2. He is in "broad (and frequently in detailed and specific) agreement with most of the statements" (paragraph 6.34) made by Mr Chapman that "the evidence has identified a circumstantial association between Mr Mallegowda and the creation of both the members.ian@gmail.com account and the arathi.deshpande@gmail.com account" (paragraph 31(b)(ii) of the first experts' report). The parties' submissions concerning the technical evidence 1. Without wishing to be dismissive of the parties' submissions, I have preferred to follow what the experts said by setting out the relevant quotations in detail, paying particular attention to the conclave report, as well as their oral evidence. The parties have re-summarised this evidence in some detail, but reliance upon the actual words of the experts is preferable. 2. The defendants, as well as relying upon the experts' findings, broadly submit that the consistency of contemporaneous evidence with the expert opinion must lead to a finding that the plaintiff created the relevant accounts. They particularly point to the location of the plaintiff in the RMS offices at 10.51am on 21 August and in the Charlestown area, and just after midday on the afternoon of 23 August, as significant. They also point to the plaintiff's access to Google "help on deleting or restoring a Gmail account" at the time the plaintiff spoke to Mr Vishwenraiah. Mr Vishwehwaraiah says the plaintiff was seeking to do this very thing, namely to delete a Gmail account. 3. The defendants argue that it is no coincidence that the IP addresses for the two anonymous emails were traced to the plaintiff's office and home and that "there are so many common facts" (written submissions on expert evidence, p. 25) that there can be no other conclusion. 4. The defendants also point out that the plaintiff had other internet-connected devices such as a smartphone, adding that this was not provided to the experts (main submissions, p. 69). 5. The defendants reject the plaintiff's submissions that somehow the defendants created these emails to attack the plaintiff as fantastical. 6. The plaintiff's submissions are diffuse and difficult to read: 1. First, he raises a wide range of irrelevant issues such as the admissibility of the Google documents, the reliability of the RMS logs, new claims of incomplete searches and inadequate or misleading briefs to the experts. 2. Second, he makes an uncalled-for attack on the professionalism of Dr Watt and a "secret brief" (technical submissions, p. 40). I do not accept that Dr Watt's opinion was anything other than objective and professional. The problem for the plaintiff was that Dr Watt, originally retained by the plaintiff, came to agree with the defendant's expert and this led to the plaintiff calling a fresh expert. 3. Third, he puts forward the bizarre theory that the defendants in fact concocted these emails. I found this line of argument very difficult to understand. 4. Fourth, he relies upon the factual evidence of the difficulty for him to travel to the internet café from his office, compose and send the attacking email and make all his other work trips in the time allotted. However, as is set out in more detail below, the question is whether and why the plaintiff set up that anonymous email account. That is sufficient for liability for publication, as I pointed out to the plaintiff more than once. If the plaintiff had an accomplice, or was acting at the request of others, that may be sufficient for liability for publication to be established. 1. Drawing the appropriate conclusions of fact conformably with the experts' analysis of the relevant data, for the reasons set out more fully below, I am comfortably satisfied that there are too many coincidences for there to be any explanation other than that the plaintiff created the anonymous accounts, using his office equipment for one (the attacking email) and his home address for the other (the arathi.deshpande email). 2. Is that sufficient to amount to liability for publication of the attacking email and thus be evidence of the truth of the imputations? The relevant principles concerning liability for publication 1. As the High Court explained in Trkulja v Google LLC [2018] HCA 25 at [40], "all degrees of participation in the publication are publication". The High Court went on to note the following explanation by Isaacs J in Webb v Bloch (1928) 41 CLR 331 at 363–364: "The term 'published' is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him." 1. Although the High Court described the law as to publication as "tolerably clear" (at [39]), in an internet age where there may be multiple publishers, many of whom are anonymous and some of whom may machines, liability for publication may not be clear. 2. As I endeavoured to explain to the parties in the course of these proceedings, particularly whilst they were preparing their submissions, it is not necessary to establish that the plaintiff actually wrote the words of the attacking email in order to establish that the plaintiff is a publisher. 3. Isaacs J explained in Webb v Bloch: "The meaning of "publication" is well described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439 , in these words: "The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him." In Starkie on the Law of Slander and Libel, 1st ed. (1830), vol. ii., at p. 29, it is said: "The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act" &c. In Parkes v. Prescott Giffard Q.C. quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." In R. v. Paine it is held: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide." A little later, in R. v. Drake, that law was reaffirmed. In The Queen v. Cooper Lord Denman C.J. said: "If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal." In that case the defendant was indicted for "publishing and causing to be published" the libel in question. The judgments show that all the defendant did was to authorize the publication of the libel, in law that he published it. In Burdett v. Abbot Lord Erskine expresses that view. Adams v. Kelly is an instance. In Parkes v. Prescott Montague Smith J. says: "If a man gives a copy of his speech to another to publish, he is answerable as a publisher." He quotes with approval the words of Lord Denman C.J. in The Queen v. Cooper. "If," says the learned Judge, "the law were otherwise, it would in many cases throw a shield over those who are the real authors of libels, and who seek to defame others under what would then be the safe shelter of intermediate agents." Keating J. and Hannen J. concurred. In relation to Webb, it is Norman who was the "real author," the master mind, and the defendants, for their own independent objects, no doubt, were the real "intermediate agents" to disseminate the libel. They cannot employ the master mind for the very purpose, accept its suggestions, approve and disseminate its production, and then disclaim its malice. S. Pearson & Son Ltd. v. Dublin Corporation is rightly considered by text-writers (as Fraser on Libel and Slander, 6th ed., at p. 269; Gatley on Libel and Slander, at p. 409; Spencer Bower on Actionable Defamation, 2nd ed., at p. 265) an authority for the position that principal and agent inter se are principals in relation to the person defamed. It answers the contention of the respondent that, however this might be the case had the defendants not reserved to themselves the final right of approval, the reservation and exercise of that right made a difference. In the case cited Lord Loreburn L.C. said: "The principal and the agent are one, and it does not signify which of them made the incriminated statement or which of them possessed the guilty knowledge." Lord Halsbury agreed, and said:— "It matters not in respect of principal and agent (who represent but one person) which of them possesses the guilty knowledge or which of them makes the incriminating statement. If between them the misrepresentation is made so as to induce the wrong, and thereby damages are caused, it matters not which is the person who makes the representation or which is the person who has the guilty knowledge." Now, in that case it appears from the reports of the case in the English Courts and in the House of Lords that the fraud complained of was the fraud of engineers employed by the corporation to draw up plans for works to be let, not by the engineers, but by the corporation itself. "These plans were furnished by the engineers to the corporation and by the latter issued to applicants, of whom the plaintiff's company was one" (per Lord James of Hereford). Of course, this connotes that the corporation had itself "approved" of the plans before it issued them. If fraud of an employee can be imputed in an action of deceit, where the factum creating the contractual relations is that of the principal and not of the employee, there is no room for the argument of differentiation in this case. The principle enunciated is general, and applies to what Mr. Spencer Bower, at p. 265, calls "the composite entity" of principal and agent in a case like the present (see Fitzsimons v. Duncan and Kemp & Co.). Smith v. Streatfeild is a case following the Pearson principle. And, it needs scarcely be added, the identification of A and B as principals affects A by reason of B's acts and state of mind, as much when A is sued alone, as when A and B are sued jointly." (Footnotes omitted) 1. The real difficulty, in terms of application of these principles to internet publications, has been where to draw the line in relation to publications on the internet which are either anonymous or sent in the name of a person who is obviously not the true author. Courts have struggled with these concepts in relation to internet publication. 2. One such example is Cao v Yu [2016] NSWDC 296, where the defendant allowed her husband to open an email account in her name from which a defamatory email was sent. The trial judge accepted the defendant's explanation that she did not know anything about, or use, email and held that she was not liable for publication of the matter complained of. The trial judge nevertheless went on to hold that her husband should be liable for the costs of the trial. 3. The trial judge's observations are noted by the Court of Appeal in Yu v Cao (2016) 91 NSWLR 190 at [77] as follows: "[77] His Honour held that he was not satisfied on the balance of probabilities that Ms Liu sent the email or caused it to be sent. He concluded: [144] Accordingly the plaintiff has failed to prove publication by her of the matter complained of and there must be judgment for the defendant. Mr Goldsmith when making final submissions asked rhetorically when could a plaintiff ever prove publication by a defendant when an email is sent, if the plaintiff has not proved it here. But as the evidence shows, there was an obvious alternative defendant who could have been sued but was not." (Footnotes omitted) 1. As the facts of Cao v Yu demonstrate, the question of whether publication has occurred is a fact-driven exercise relating to the role of the asserted publisher. 2. Whether an anonymous publication is a poison pen letter placed in a letterbox, or a defamatory post on the internet, or (as is the case here) an email sent from a demonstrably fictitious person from a specially created account for this purpose, the question is first what role, if any, the plaintiff played and, secondly, whether that role amounted to being a "publisher" in the sense explained by the High Court in Trkulja v Google LLC, in turn relying upon the broad definition of liability for publication set out by Isaacs J in Webb v Bloch. 3. The email account members.ian@gmail.com was created at 10:51:04am on 21 August 2012 and deleted on 11 December 2012 at 9:50:42am. On the day when this email account was created, the attacking email was sent at 12:16pm from a Telstra IP address which is now acknowledged to be the internet café (as noted elsewhere in this judgment, the location of the place where the email was sent from was discovered after the experts' reports). The precise time that the email was composed and the addresses of IAN members assembled for the purpose of sending the attacking email is unknown. However, the comparatively short period of time between the creation of the members.ian@gmail.com email address and the sending of the attacking email, as well as the fact that this email address was effectively not used for any other purpose, is strongly indicative of the crucial role that creation of this email address was for the purpose of sending the attacking email in circumstances where the prime intention of the author must have been to escape detection by using this method of communication. 4. In the factual circumstance such as the present, the mere setting up of the members.ian@gmail.com account is sufficient to amount to being a "publisher". This is because of the following: 1. Whoever set up the account clearly intended to hide his or her identity; 2. The proximity between the opening of the account and the sending of the attacking email indicate that the purpose of the opening of this account was for the sending of the attacking email; 3. The subsequent failure to use and closing of this email account confirm that this was the purpose. 1. While I note Mr Chapman provides three scenarios for "alternate" explanations, I am satisfied that there is no evidence that any other person in the RMS network did so, having regard to the other facts in relation to the creation of the arathi.deshpande@gmail.com email. 2. I accept in relation to the factual matrix generally that there are "too many coincidences to exclude Mr Mallegowda" as the person for creating both these Gmail accounts (Dr Clarke at paragraph 6.33). I also note Dr Watts' reference to "too many coincidences". 3. If I accept the technical evidence that the plaintiff, on the Briginshaw standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336)), should be taken to have been the person who created the members.ian@gmail.com account, that fact alone, independent of whether or not he actually sent the attacking email, is sufficient on the facts of this case to amount to publication of the attacking email, which is the central issue in relation to the justification of the imputations. 4. I note in the matter complained of the statement by Mr Sood as follows: "Obviously I was disturbed with this email, It had a profound effect on me personally and my personal life. I went out to seek and find these people and lodged a police complaint. After some investigations fortunately we received an email from someone called "Arathi Deshpande" this was a brand new bogus email id created just like honest members to support the vicious email and sow the seeds of suspicion in the community. After some further probing we found that this email ID had a recovery option of a mobile number which had an exact match to Mr Shashikant Malegowda's [sic] number also known as Shashi Gowda and is the organiser of some breakaway Ganesh festival and holding his function on 22nd Sep Saturday this year at Wallsend. This was a good starting point to follow the thread which started to unravel pretty quickly. I decided to ring him up and confront him; he did not accept what I had to say initially but eventually rang me and said he knows the group of people who have done it and also why I was made target and he will have personal chat with Harjit and that group. Since then FOLLOWING FACTS have come out after few conversations with him 1. Arathi Dashpande [sic] (Bogus email) sent an email to a group of people whose email id was not available with IAN, I am aware of it as some members pointed out this fact to me. 2. The same set of people whose email Ids are not with IAN account received the email from Honest Members (bogus email) as well. In effect it seems that both Arathi Dashpande [sic] and honest members used a common email list. 3. Mr Shashi claims that he knows the group who wrote the email as honest members and he has seen the so called evidence and there is nothing, hence he will ask the group to talk to Harjit to resolve the situation. 4. He mentioned that the group is unhappy that I was part of the SAGM last year where president Harjit was challenged to change her way of functioning. 5. Surprisingly he has invited IAN president to be chief guest for his Ganesh function on 22nd Sep Saturday. 6. In his own words "Amit sood you are a child in front of me, I have played this game across Australia and this is only a small town of Newcastle". Am I supposed to be scared and what is the "GAME" I seriously have no idea. All these facts point towards that Mr Shashi gowda knows the group who has written this email." 1. The accuracy of the conversation in the second paragraph was not challenged by the plaintiff. In effect, the plaintiff was acknowledging that the first defendant had enemies who were known to him and known to be responsible for the attacking email. Who wrote the attacking email? 1. The author of the attacking email had an IAN address list. At T 321-322, the first defendant asked the plaintiff: "Q. Would you accept, Mr Mallegowda, that Ms Harjit Singh, being the president of the Indian Association of Newcastle, would also have access to the member list through the IAN email account at that time? A. At that time, yes. She used to send emails using the iaassociation@gmail.com, yes. Q. Would you accept, Mr Mallegowda, that you had incorrect email ID in the IAN list until 16 August 2012? A. Yes. The list you discovered in the MFIs recently, you show my email ID there was "H" missing in a letter so it's wrong; in your records, not my records. Q. Would you accept that your emaiI ID was fixed on 17 August 2012 at 12.59pm by Mr Sood, so that the tickets could be issued to you for attending IAN functions? A. Mr Sood, unless you show me those documents I need to-- Q. Sure. A. It's difficult for me to-- Q. It's the same email that we have just MFI'd, I think number 9? A. The document speaks for itself..(not transcribable)..the document so I should confirm that. Q. According to the phone records, Mr Mallegowda, you talked to Ms Harjit Singh for 20 minutes on 20 August 2012. A. The document shows that's correct. FIRST DEFENDANT: Your Honour, we have summarised a list of phone calls between Harjit Singh and Mr Mallegowda for the month of August and September for which I'm going to ask questions, so rather than referring to the phone records each time can I get it MFI'd. HER HONOUR: Yes, that's a good idea. MFI #10 PHONE RECORDS BETWEEN SINGH AND MALLEGOWDA FIRST DEFENDANT Q. I put to you, Mr Mallegowda, that Ms Harjit Singh told you how much she disliked Mr Sood and Mr Kaldra. A. At that time she did not complain about anybody to me. Q. I put to you, Mr Mallegowda, that you asked her for the IAN member list and told her how you were treated because of Mr Sood at Panthers Club and how you think he was supporting his friend Naveen and sent out a clarification email. A. Your assumption is totally incorrect. Q. Sorry, can you say that again? A. Your assumption is totally incorrect. Q. Mr Mallegowda, I put to you that you obtained the latest IAN member list from Harjit Singh and later on confirmed it through the two SMS you sent to her later on the same day. A. Harjit Singh is one of the most ethical ladies I have seen in my life and she would never disclose such a confidential information or a property of an association to me. In that capacity as the president it never happened and I think she would never do that in any time. Q. Sure. Mr Mallegowda, I put to you this is why you received the attacking email on your corrected email ID of sunny_sharshee@yahoo.com on 21 August. A. What was your question? Q. I'm putting to you an assertion, Mr Mallegowda, that all the emails that were leaked by IAN prior to month of August had your incorrect address. A. I do not know unless I see those documents. Q. I'm putting it to you, Mr Mallegowda, the reason you received the attacking email on your..(not transcribable)..account was because it was fixed in the IAN list. A. I can't give opinion why somebody sent and how I received. All I can confirm is I received an attacking email to my email account." (T 321-322) 1. The plaintiff went on to deny that he wanted to settle scores with the first defendant and that this was an issue which he shared with Mrs Singh. 2. The plaintiff was not asked about the conversation set out in the matter complained of in which he is asserted to have identified Mrs Singh as the true author of the attacking email. He was, however, asked about whether he panicked when he realised that he was identified as the sender of the attacking email fairly quickly and, in particular, by the email sent by the second defendant, which is the second matter complained of: "Q. Sure. I put to you, Mr Mallegowda, that you started forwarding these emails, this email especially, the attacking email, because you realised you were in possession of email IDs which were not part of the IN emailing list? A. That's incorrect. What I would say is Mr Sood when you start contacting me on 27 August that's when I've taken most interest about this matter because that's when you started accusing me. Probably..(not transcribable).. revisited, check with few people to know and understand how..(not transcribable)..that could have happened after your series of phone calls. Q. But this is dated 24 August, Mr Mallegowda. A. So who I sent? What I sent is the document there? Q. Sure. A. I don't have to answer that. Q. Thank you. I put it to you, Mr Mallegowda, that you wanted to ensure that this email reaches far and wide and do maximum damage for Mr Sood's reputation? A. That's incorrect. Q. Okay. We come to the next statement, Mr Mallegowda. This is in regards to Artideshpanda email account, no, sorry, I'm still at members of IN account, 23rd. On 23 August, Mr Mallegowda, according to your web logs for 23 August you accessed Gmail at 3.43pm? A. Mr Sood, the document speaks for itself. Q. Yes. A. The experts have plenty of reports and I'm not an IT expert to write any such opinions for the questions you are asking. Q. I put it to you, Mr Mallegowda, that at that time you saw two emails? First one from Mr Lingaiah sent at 1.43pm to the anonymous email account saying to the effect that a police investigation was underway to track the sender of the anonymous email? A. Who sent to who? Q. I repeat that question again, Mr Mallegowda. I put it to you, Mr Mallegowda, that on that day you saw two emails. First one from Mr Lingaiah sent at 1.43pm to the anonymous email account or in other words members of IN account saying to the effect that a police investigation was underway to track the sender of the anonymous email? A. I did not receive to my private..(not transcribable)..about any police matters or any emails from Mr Lingaiah. Q. I put it to you, Mr Mallegowda, that then you saw another email which was sent at 3.06pm to the anonymous email account, i.e. members of IN account, which said in its subject, "Your last name traced to Gola, cheers, mate, from Sood." A. Mr Sood, I've already denied I'm not a controller of an anonymous email account and your further questions if you keep asking I would say I deny, deny because I'm not the controller of that anonymous email account. That's what I said. FIRST DEFENDANT: Sure. Your Honour, can I get this first email which I was referring to that Mr Lingaiah sent to the anonymous members of IN account as MFI'd? HER HONOUR: Yes. That will be MFI - what do we have here? 11 or 12? 12. MFI #12 EMAIL SENT BY MR LINGAIAH TO ANONYMOUS ACCOUNT FOR IN MEMBERS FIRST DEFENDANT: And what about mine? Sorry, and mine as well, sorry, which I had sent to the anonymous account. HER HONOUR: That will be MFI13. FIRST DEFENDANT: Yes, thank you. MFI #13 EMAIL SENT BY MR SOOD TO ANONYMOUS ACCOUNT FOR IN MEMBERS FIRST DEFENDANT Q. I put to you, Mr Mallegowda, that you panicked after seeing these two emails? A. I just said before I deny that I'm the responsible person of that anonymous email. Any further question you ask I keep denying to that. Q. Sure. You can just say deny. A. Yes, I did. Q. I put to you, Mr Mallegowda, that you called up Ashwin closer to 4pm? A. What day of the year? What month? Q. 23 August, I'm still on 23 August 2012? A. What year, what year? Q. 2012. A. Two thousand-- Q. I have been still on 23 August 2013 as per the telephone records. A. If my telephone..(not transcribable)..was the record it speaks for itself. I don't have to confirm or agree with that." (T 324-326) 1. The first defendant then asked: "Q. I put to you, Mr Mallegowda, then you then called up from an undisclosed on Ashwin's phone and had the following conversation. I quote from Mr Ashwin's affidavit. Mr Ashwin said, in quotes, no sorry - you redact that - Mr Mallegowda said, "I need your help. How do you delete a gmail account?" Mr Ashwin said, "I am just driving at the moment. Can I call you back in an hour?" Mr Mallegowda said, "It is urgent." Mr Ashwin said, "Try going to the account settings. You will probably find it in there." Mr Mallegowda said, "I've already tried that. I could not find how to delete it in there." Ashwin said, "Okay. I will call you back as soon as I can." HER HONOUR Q. All right, now, the question is do you agree or disagree that you had this conversation? A. I totally disagree. I disagree. Q. I'm sorry? A. I totally disagree. It's not true. Yes, okay." (T 327) 1. The first defendant then asked: "Q. You called him again around the same time but could not talk to Ashwin, hence left a voice message? Would that be correct, Mr Mallegowda? A. All I can say on that day I contacted him in response to a missed call from him. He generated the first phone call and he left a voice message. A few minutes later I return the phone call from our..(not transcribable)..which I've discovered the statement. I can confirm July and August, please direct..(not transcribable)..phone calls to Mr Vishweshwariah in relation to the event which was doing Ganesh..(not transcribable)..at least the..(not transcribable)..phone call. And I never had any such conversation which was just, was really before. Q. Sure. Mr Mallegowda, according to your web logs obtained from RMS at 3.51pm, 3.53pm and again at 3.57pm, you searched for how to delete a gmail account, you spent approximately six minutes doing so. A. Mr Sood, these strings have been..(not transcribable)..by experts. The experts firm, there's no accountability. It is not just delete. It says how to restore or delete a gmail account and your interpretation is wrong and experts have already commented. I don't have to give further evidence on that. And I also confirm the email did not..(not transcribable)..the experts also confirm it was deleted on 11 December 2012 after I commenced my defamation proceedings. Q. According to your RMS phone records you called Mr Ashwin back at 4.41pm? A. As I just said before response to a missed phone call and a message from Mr Vishweshwariah I did call a few minutes later. That's the phone record I just told you before. Q. I put it to you, Mr Mallegowda, that you told him you've already worked out how to delete a gmail account by searching for it on the net? A. Firstly, it is not true. I also - IT qualifications I wouldn't need anybody's assistance just to [sic] simple as to delete an account. I wouldn't need any assistance. Q. I put it to you, Mr Mallegowda, that your web logs which were obtained after Mr Ashwin had given the affidavit, turned out to be consistent with Mr Ashwin's narration of the events in his affidavit? A. It's not true and I give an explanation. On one of the reason why those subpoenas were sent that was the defendants look at carefully all the logs and then an affidavit was..(not transcribable)..in January the logs from the RMS was received. February, Mr Vishweshwariah is giving an affidavit to concurrent to have that conversation to fit the 3 to 4pm. This is - this is the fact that your defence, everything happened after you receiving the evidence and subpoena, one of them being RMS logs. You looked at the RMS logs before Ashwin gave his affidavit. Ashwin affidavit given in February 2013 whereas you procured the RMS logs in January 2013. And this is on - a good example why your Honour has..(not transcribable)..all those subpoenas." (T 328-329) 1. The plaintiff and first defendant became argumentative with each other at this time: "Q. You answered, Mr Mallegowda, that you're an IT expert with IT skills. A. I didn't say IT expert. I have some qualifications. Q. Right, okay. If that is the case, Mr Mallegowda, then why were you searching for deleting a gmail account? A. As I said I never deleted an account. Any conversation which ..(not transcribable)..Ashwin has been contested in Supreme Court where he admitted he did not made a phone call. It's an other way round. The call he made was 13 seconds which is given in affidavit set out the conversation which never took place. The telephone records shows the 13 seconds he'd been questioned extensively in the Supreme Court where he finally admitted, yes, I did not make that call. If that fact is already ascertained which is going to be happening in this Court, I never said anything to delete, nor I went and deleted any call nor I controlled any such a [sic] calls which is sent anonymous emails. That's my answer. Q. I put it to you, Mr Mallegowda, you're lying, that you did indeed delete the members dot IN gmail anonymous account that day? A. Your accusation of me lying is totally false and incorrect. Q. Sure. Mr Mallegowda, would you agree that you saw an email from IN called "Beware of hoax email" which was sent by the IN committee members on 25 August? A. I received all the IN emails after I became their man. I don't know how when but I received whatever emails--" (T 329) 1. The first defendant put to the plaintiff at T 331 that this was a joint attack by the plaintiff and Mrs Singh on him, which the plaintiff denied. 2. At T 335, the first defendant put to the plaintiff: "Q. I put it to you, Mr Mallegowda, that you created the..(not transcribable).. account. A. That's not true, Mr Sood, because I was holding a big party at my place and, if you look at the email you just said a while ago, it's the second attacking email. That email does not say directly or indirectly about you..(not transcribable)..from that account the first email ever sent is to..(not transcribable)..RSVP. It's an account that's been disputed. It's part of the expert reports. A lot of experts have given opinions and I will go by what the experts say. So I don't add any further comments. Q. Immediately..(not transcribable)..account anonymous Gmail account was created. An email was sent to the other Ganesh event email ID inquiring about tickets for a family of two adults and two kids and inquiring when this event is. I would like to MFI that email. A. What is your question? You're just reading. I want to see the question about that." (T 335) 1. In view of the level of tension between the parties, I intervened at T 335, line 25: "HER HONOUR: Sorry. What's your question about that? FIRST DEFENDANT: Your Honour, because the plaintiff is going to deny that. So I'll rephrase that. HER HONOUR: Look my associate isn't here to MFI anything at the moment. What's your question? Ask the question about it. What's the question you want to ask? FIRST DEFENDANT Q. I put to you, Mr Mallegowda, that immediately after the account creation of..(not transcribable)..account you sent an email to the rival Ganesh event emulating asking and inquiring about their event and asking for them to confirm tickets for two adults and two kids. A. Yes. I deny that. Just to give you a little thing. You just mentioned an email is sent to the other event RSVP‑ing from my home. I've been one of the lead organisers of a rival event. Why would my family and me go and RSVP for that event? But this is not - should be a submission. But what I'm saying is there was no purpose for me to send an email RSVP‑ing my family when I'm organising the same event a day before your event. Again it's a matter for IT experts. They've extensively looked into this and I-- Q. I put it to you, Mr Mallegowda, that you sent that email to fool them in thinking that there is a legitimate email and it is not anonymous person inquiry. A. I'm not..(not transcribable)..so I would not make any comments on that." (T 335) 1. Similar questions were put to the plaintiff concerning the email sent from his home, namely the second attacking email, at T 336-338. The cross-examination was difficult to follow in court because of the level of hostility between the plaintiff and first defendant, but I consider it is clear that it was put to the plaintiff that he received phone calls from the first defendant, although not, in terms, the conversation referred to in the matter complained of. One of the answers that the plaintiff gave was as follows: "Q. On 27th morning, according to the telephone records, you similarly received more calls from an undisclosed number. A. My wife received - home phone. I received calls, many calls from you, which is in answers to your interrogatories. I've clearly given a gist of the conversation, what you said, what I said. I don't have to repeat again, your Honour. It's the answers to the interrogatories to the question, "What happened in the conversation?"" (T 340) 1. At this juncture, I intervened to explain the rule in Browne v Dunn and said to the parties at T 340-341: "Q. Mr Mallegowda, this is something that I noted in relation to your evidence as well, that the initial phone calls that seem to have been made weren't accusing you. They were saying that you must know who it was and that you said you knew. I see. A. Connecting the second email account to the..(not transcribable)..account. If your Honour answered extensively to the interrogatories, would I still-- Q. I see. It's all in the..(not transcribable)... A. --would I still..(not transcribable)..to answer again. HER HONOUR: If it's all in the answers to interrogatories, then those interrogatories can be tendered. FIRST DEFENDANT: Yes, your Honour. HER HONOUR: In fact, that might be an easier way. If you want to challenge what he said in his answers to interrogatories, could I suggest - have you got a copy of his interrogatories handy? WITNESS: I do. Yes. FIRST DEFENDANT: Yes, your Honour." (T 340-341) 1. I then advised the first defendant as follows: "Q. Are they in your bundle, Mr Mallegowda? A. Volume 1, your Honour. Q. Let's have a look at volume 1. That's the quickest way to deal with it. If Mr Mallegowda's been asked these questions and he's answered them and you want to challenge his answers, the best thing to do is to go the - which tab is it? A. Your Honour, if you go to tab JK, page 162. Q. Here are the interrogatories. These are the interrogatories to the first defendant. A. Yes, your Honour, and there is an extra 185 pages for the second defendant's interrogatories. HER HONOUR: If you want to challenge the account that the plaintiff has given in the answers to interrogatories, in relation to these - look, what I might do, Mr Sood, to help you out, I might take an early morning tea adjournment so that you can look these up. The thing is, it's very important that you put these calls, because one of the things that struck me about the matter complained of, Mr Sood, is that what you're saying is not so much that Mr Mallegowda sent this email, but rather that Mr Mallegowda knows the group who are responsible and even that he said that he was thinking about telling you who it was. FIRST DEFENDANT: Yes, your Honour. So before the matter was lodged, that was the situation. HER HONOUR: The thing is that - "He did not accept what I had to say initially, but eventually rang me and said he knows the group of people who have done it and also why I was made the target, and he would have a personal chat with Harjit and that group." You need to put it to him that he had this conversation, because otherwise you haven't challenged-- FIRST DEFENDANT: Yes, your Honour. HER HONOUR: --you haven't proved that this conversation took place. I notice in fact that your particulars of justification, which are very inadequate, don't refer to any of this. Then you go on to say that the bogus email sent an email to a group of people, the same set of people whose emails - they use a common list. Mr Shashi claims he knows the group and he will ask the group to talk to Harjit to resolve the situation. In other words, you are squarely accusing Mrs Singh of having written this email. It couldn't be clearer. Then you say surprisingly he's invited Mrs Singh to be his chief guest for the Ganesh function on the 22nd. Then you talk about how he says, "Amit Sood, you are a child in front of me." Then further down - then they come to the Lord Ganesh festival right at the end. The thing is, all these facts point towards that Mr Shashi Gowda(as said) knows the group who has written this email. You need to put all of that and I apprehended that all of this is covered by the answers to interrogatories. WITNESS: Yes, your Honour. HER HONOUR: In fact, if that's the case, are you going to be saying that's the conversation you had with him, what's in your - the matter complained of? If you are, you have to put to him, "I said to you that--" FIRST DEFENDANT: I have to put to him, your Honour. HER HONOUR: "--and he said to me, 'Look, I didn't send it but I know who did. It was Mrs Singh or--'" FIRST DEFENDANT: I have got three or four conversations which will come later on as well, your Honour. HER HONOUR: The thing is, it's important that you put them because of this rule in Browne v Dunn. FIRST DEFENDANT: Yes. HER HONOUR: It's important that if you want to challenge the version of events that's given by the plaintiff in his answers to interrogatories in relation to conversations including but not limited to those conversations referred to in a matter complained of, you need to put it to him that what he said isn't true and that your version is true. Not necessarily absolutely every word, but certainly the main conversations, so that that way he's had an opportunity to say what his version is. That's an important rule. What I'll do, I'll take an early morning tea adjournment so that you can have a look at the answers to interrogatories and find the correct conversations. FIRST DEFENDANT: Yes, your Honour." (T 341-342) 1. The following evidence was given at T 348-351: "Q. On the same day I put it to you, Mr Mallegowda, that you rang my number on my landline. I want to ask you, Mr Mallegowda, how did you figure out that the anonymous person who was calling you stating that, "I know you are the holder of Artideshpanda account", was no‑one else but Mr Sood? A. Mr Sood, subsequently your numerous phone calls on the morning, early morning on 27 August where you contacted my landline and my wife answered, you said, "I want to talk to Artideshpanda". My wife has replied to you saying that there is nobody by that name and again you keep ringing on the landline and then you start ringing on my mobile phone. So the tone and your - the aggression and your - the way you're upset and the way you're talking, I can feel that something has happened to you, somebody has written an email and you've told, "You are Artideshpanda. You sent some email to me. You did do it". Though you did not identify yourself, you are explicitly saying that the reason of your call was to just find out somebody attacked you. Subsequent to your phone conversation I started to realise is the person someone has contacted you definitely with relation to IAN. Better make an inquiry to the president. Soon after you call I believe I spoke to Ajit Singh. I had a quite lengthy conversation and told her, "Look, Ajit, someone is accusing me, someone is doing this, someone is telling all this. I didn't know who it was." Then Ajit said: "Look, Shashi, I can't tell you who and what. Have you checked your emails? Go and look at the emails. The issues are clear. There are some recent developments happen in IAN." So from that view I started going to look at the email which has been attacked and you are the person been accused and your email - your phone numbers were one of the Indian Association event, even flyers and promotional. I have phoned your phone number from there and then I rang you back and told: "Look, I'm not the person you're trying to accuse. Please do not call and harass us any more and stop doing this. If you have anything to do, go and make a police complaint. I'm not worried because I've not done anything wrong." This is what happened. Q. Mr Mallegowda, I would like to ask you. You just said two things. The first thing is that the person who called you sounded quite disturbed and was talking about Artideshpanda and from there you guessed that it was me. But you had never - according to your narration of events you had never met me, let alone Mr Sood having called you before. Then how come that one day suddenly you're able to identify a person so quickly? A. Not so quickly, Mr Sood. I just gave a lengthy explanation. I did not - you did not identify yourself as a name or anything. But you explicitly - you explicitly keep saying, "You're responsible for sending email. You're responsible for this. I know what to do with you", and you're continuously threatening me and soon after I hang up the phone call. Then I thought who is the best person I should make an inquiry. As I said before, I spoke to Ajit Singh. Ajit just told, "Just go and watch the emails which are happening recently in IAN. You'll find out". Then I made my decision to look up and found out that you've been accused in an office email, which has been attacked. So you've been obviously misled by someone to contact me because you didn't know my home phone. I certainly know the second defendant has given you. So I make inquiries and told you not to make further phone calls to me and I told you to take action if you want to take it to the police, which you did. Q. Mr Mallegowda, I put it to you that my landline number, which was a private number, was never published in any IAN emails. A. I found it. I..(not transcribable)..you are the member of committee. You are the treasurer. You have given..(not transcribable)..association your private phone numbers and your email..(not transcribable)..are privately used for this IAN. Somewhere I found. It took time for me. But I figured out. I got your number. Q. Within five minutes? A. Not five. I don't know how long it take. I spoke to Ajit before I contacted you. Q. In addition to that I put to you, Mr Mallegowda, that I had a conversation with you when you called me at 9.10am to the following effect. I said: "Hello." Mr Mallegowda said: "Why do you think I am Artideshpanda?" I know who it is." I said, "I have evidence." Mr Mallegowda said, "I will not commit such a mistake. I know emails and IP addresses can be traced." I said, "Why are you ringing me up?" Mr Mallegowda said, "I had no involvement with the email account but I know the group that sent the 21 August 2012 email and why they sent it." I said, "Tell me, who is it." Mr Mallegowda said, "I can't tell you, because it's not a single person involved: there is a group." I said, "Give me their names." Mr Mallegowda said, "I can't tell you right now, but I understand your situation. They are very clever and cannot be caught. I have had similar family issues in my life. I would like to help." I said, "Well, tell me who is involved. Why would they do this to me?" Mr Mallegowda said, "They were not happy about your participation in the December 2011 SAGM. There is also a group of people who are not happy with your wife. I know her name is ..(not transcribable)..because a group of people are not happy with her. I have looked at the evidence and there is no evidence against you. I will talk to Harjit Singh, I'll talk to the group as well and ask them to speak to Harjit to resolve it." I put this conversation to you, Mr Mallegowda. A. This conversation never happened. In your answers to my interrogatories for these dates, you never gave these reasons. I can take you to the page, page 246. You deny such conversation. You're saying on 27 August, 6.51am, you deny, saying no. On 27 August at 7.20pm you deny, no. At 27 August, 7.28am, you said you deny conversation. 27 August, 8.02am you deny, no. At no such times you have provided your answers what you just putting to me in your interrogatories answers to the interrogatories. So then now should I accept such conversation which never took place? Your interrogatories page number 2. Your answers to interrogatories page 2. Q. Because there were so many calls made during that time, it was hard to remember which conversation happened exactly at one time because they were one after the other. A. But you deny-- Q. If you refer to numeral (iii)-- HER HONOUR: Don't talk over each other. Q. I'm sorry, what were you saying, Mr Mallegowda? A. That the phrases he put are such as a conversation set out was never answered in his interrogatories, your Honour. He denied all the phone calls, saying no conversation, no conversation, no conversation. But now he's trying to put me a lengthy phrase of conversation which he never, ever answered to my interrogatories. HER HONOUR: Is that correct, Mr Sood? FIRST DEFENDANT: No, your Honour. If you refer to the numeral (iii), the only confusion is because the calls - there were so many calls between 27th, 28th, 29th. So I have provided that conversation in a nutshell on the same page, 246, under the Roman numeral (iii). WITNESS: But you deny-- FIRST DEFENDANT: No, it is said on 29 August because-- HER HONOUR: Yes, the trouble is that if that's the best evidence you can give, that general conversation, you're now putting to this witness specific conversations which are inconsistent with your answers to interrogatories. Is that right? WITNESS: Yes, your Honour. HER HONOUR: Is that right, Mr Sood? FIRST DEFENDANT: It is not inconsistent but it is-- HER HONOUR: Yes, it is, Mr Sood. The thing is this: you were asked about specific conversations and what you've said is that-- WITNESS: First five he answered no, your Honour: A, B, C, D, E. HER HONOUR: So you've answered no, that you didn't have a conversation. FIRST DEFENDANT: Your Honour, there must have been some confusion in the exact timing. As I said, there were so many calls: anyone can get confused with that. HER HONOUR: No, confirm whether the following conversations and provide details of each conversation and you've said no. And what you've said in relation to (iii), that's the conversation at 11.30am. WITNESS: On the different date. HER HONOUR: On another day. FIRST DEFENDANT: Yes, your Honour. HER HONOUR: So that's the thing, you see, Mr Sood. If that's the case, then what you have to do is you need to put it to the plaintiff that he didn't have any conversation with you on that day as you've answered in your emails, rather than putting a whole new text of a conversation you say you did have if your answers are no and what will happen, I imagine, is that at some stage, in fact they're already in evidence, these answers to interrogatories, but what you've said there quite clearly is that you had a conversation with him on 29 August at 11.30, along the lines set out in (iii), but you've denied that there were these other conversations. What is your next question, Mr Sood?" (T 348-351) 1. It was put to the plaintiff that after talking to Mrs Singh he become aware that the first defendant had called her earlier and said he believed that the plaintiff was the person who had created the arathi.deshpande@gmail.com email account (T 351-352) and that this was part of the reason for Mr Mallegowda's attempt to intimidate the witness which resulted in the contempt of court finding. Mr Mallegowda's evidence at T 352-353 was as follows: "Q. Did Mrs Singh tell you that Mr Sood had called her the previous night of the 27th? A. I recall Rajit did not discuss anything about you. All I asked a question and she answered saying yes, some recent developments, unpleasant emails are going around and I believe these phone calls you're receiving in connection to that and you make your inquiries and do what you got to do. Then I started looking your number and then I started following with you. No conversation between me and Rajit about any consequence about you or association. Q. I put it to you, Mr Mallegowda, that you had multiple conversations with Mr Sood after 27th up until at least 15 September 2012. A. My answers to your interrogatories do cover the period what you were just asking. My answers are clearly given, a gist of conversation has been given. I would like to refer to those answers which are already provided as part of my obligations. Q. According to the telephone records, one of the conversations between Mr Sood and Mr Mallegowda went for 44 minutes and that was provided in the interrogatory. A. Can you put to me the date please. Q. If you refer on the page 246 to (iv) it says after the first paragraph, the first defendant cannot recall the exact date of the following conversations between 21 August 2012 and 1 September 2012, but the first defendant had a telephone conversation with the plaintiff wherein the plaintiff said that the group responsible for the members at IAN..(not transcribable)..com, email sent on 21 August 2012 were unhappy with the first defendant because of the SAGM meeting in 2012. A. That is your version of answers which is not correct and as you just mentioned, because of 40 minutes' conversation and you put a small paragraph and you're asking what was the conversation held for 40 minutes. Your answers to my interrogatories did not cover those things what you just put. Q. According to the interrogatories, next page, (v), there was a telephone conversation held on 8 September. A. Yes. Q. The plaintiff telephoned the first defendant and said that he would trade the people responsible for sending the members at IAN email group for the evidence, in exchange for the evidence that the first defendant had in relation to Artideshpanda.com's email account. The plaintiff said that the first defendant was collateral damage in a dispute between the plaintiff and the second defendant. The first defendant and the plaintiff tentatively agreed to meet that evening. I put to you, Mr Mallegowda-- A. So I refer to your answers in the page 247 you just told, your recollection of the events is totally incorrect. You and me had a conversation, yes, quite a few times, yes, it was a lengthy conversation where you express I know you're a new member, I know you are brought there at the time of SAGM defamatory email happen. I do understand but however, you must know - Harjit, you must know other people in the community and you sought my help that if you know someone could you please assist me and find out because you and your family are greatly disturbed. We had a good, peaceful conversations. The only thing I've discussed with you is in relation to that you're asking my assistance and you asked me did you send the Artideshpanda email I said no. You said I have a video evidence. I did ask please send it to me. You said I will give it but you never give, you never gave that evidence. Then this conversation what you just asked me didn't happen, I never said this is collateral damage between second defendant because I never..(not transcribable)..the second defendant for anything. Q. Do you deny the whole conversation or only the last two lines? A. No, it's a gist of conversation you put it. As you said, it could be 20 minutes or ten minutes but definitely you summarised things which is in your benefit. But what I want to say, that conversation did took place. The conversation, you and me had a very healthy conversation. You sought my assistance to find out who has done give a clue, and I said if I come to know I'll definitely let you know." (T 352-353) 1. There were meetings between the plaintiff and first defendant in order to resolve this issue. This is the subject of cross-examination at T 353-355, where the plaintiff gave the following evidence about a meeting at Finnegan's Hotel in Newcastle: "A. Yes, Mr Sood, we made numerous attempts in having a meeting and once I said I can come to your office in Tomago Road. I told I have lot of works going on, but you never appreciate. Then one day in the afternoon of 15 September you said you have not been coming to me, responding to me and you said sorry, I was one week I was sick, I could not work for one week. Then I said how about today. You said no, I got to take children a few activities today, definitely can't help before 5.00. Then later you proposed, then I asked you what is a time you can come. Then you said how about we catch up in the pub called Finnegan's at somewhere around 7.00, 6.30 or 7 o'clock; but again you said you will attend by texting me but you never did, that was the last attempt we both tried to work it out, to see whether I'm responsible but you never did that. Q. Mr Mallegowda, I put to you that you did not hear anything further from Mr Sood, nor did you contact him until 15 September which is the (vi). A. Yes, I just said 8 September we wanted to meet at the Finnegan's but it didn't happen; then after that, after September 8, the next point of contact between you and me was happened on 15 September and you set out the details of those conversations that happened so you basically wanted me to - on that day it was totally you were upset, you were very aggressive to me and you said today if you don't write me back and accept that you are responsible for this, I'm going to write you to the community to tell who you are, what you are. I said please provide the evidence which you have and you said I am not going to provide, I will send those evidence to the community and I will everyone make aware that you are the respondent. I said you do what you want to do, and that is the last conversation I had with you. Q. So in the interrogatory answer (vi)(a), :"The plaintiff said that it was too late to discuss the matter." A. No, that didn't happen. It was never too late. You were sick for a week, you took an excuse and you also said I can't meet you..(not transcribable)..my office because a whole week I was sick. And then you took excuse of children, taking children to this. And I said send by email Artideshpanda video, show me how I am connected to the email, which you never sent, never sent. Q. Para (b), "The plaintiff telephoned the first defendant and said that he was not interested in discussing the matter any more and that he was not concerned about the evidence the first defendant had and he should do whatever he wanted to do. The plaintiff said that the first defendant was just a child in front of the plaintiff, and the plaintiff had played this game all over Australia and this was just a small town of Newcastle." A. No such conversation happened. I did-- Q. Sorry, can I finish. A. Yes. Q. "A woman then spoke into the telephone requesting that the first defendant not contact the plaintiff any further. The first defendant agreed." A. That was my wife. She was totally annoyed with the situation and she wanted to end everything by saying to you clearly don't do it, don't call again. Q. Did Mr Sood call again? A. I believe that was the last conversation you and me: I believe so. Q. Thank you. I put it to you, Mr Mallegowda, the various conversations that have been just mentioned in the answers to the interrogatories, it is not unreasonable for Mr Sood to form the view that you were or you knew one of the people who had sent the attacking email. A. Look, again your view I can't give an opinion but I can certainly say you are totally misled then and now. That's my answer. Q. I put it to you, Mr Mallegowda, that the matters complained of are fair responses to the first and second attacking emails, based on the information the defendants had. A. My understanding of really the matter complained, the matter which you say as an attacking email, certainly it's a very, very defamatory and slandering email. But when I look at the second email which you consider as adding fuel to the fire, the..(not transcribable)..when you read that email carefully it is written to a person, a person to a person. It's addressed to Harjit. It is telling to the president that there was a series of emails going through, everyone has eye on you to do a proper investigation and they're saying hope you do that fair and also that email is warning the president that people are putting your name and sending email which you could be vicariously liable; and that doesn't refer you Mr Sood, Mr Lingaiah, Mr Kaldra, it's not a defamatory email and you are not - you're not used that email in your defence or a matter complained of, you never use that email. If you'd used the defamatory in your cross-claim you could have ..(not transcribable)..the email but that email was not a defamatory of you or anyone, it's just one person to person. So then to form a view about that emailer, person to person and other which is significantly an attacking email on you, it is - I don't think, in my view, if you ask it is not related to the second email. Q. Mr Mallegowda, would you accept that the Artideshpanda email was sent to the whole community, not just to Mrs Singh? A. How could I send? I'm not author. I didn't compose. I didn't control that at all. I don't know who received. But certainly I also did not receive that. I also didn't receive that. Q. Would you accept, Mr Mallegowda, that that was an anonymous email? A. Again, the person by name Artideshpanda is a question whether the person was existed now or before IAN which I never was a committee member to know whether such member in the past was existing, because Indian Association existing from last 36 years. From last 36 years, probably I born that time. I do not know who are member by that name and I cannot confirm you whether is an anonymous or not. Q. I put it to you, Mr Mallegowda, that there was never since the inception of IAN account any person by the name of Artideshpanda. A. I think I've answered this too. Q. I'm coming to 11 December because as per Optus records - sorry, as per Google records the members.ian account was deleted on 11 December. A. As for the Google..(not transcribable)..yes, I did see. Sorry, the expert report. All the three experts agreed to that date; so I go with that, not with the Google. The expert says that." (T 353-355) 1. Mrs Singh was called to give evidence. She categorically denied sending the attacking email. As noted elsewhere in this judgment, she was an impressive witness and I have accepted her evidence. As also noted elsewhere in this judgment, however, the first defendant had plenty of enemies in the IAN by this time, and there is no shortage of other suspects in this regard; the first defendant's problems with Mrs Pandya are an example of the difficulties he had in dealing with members. Any of those persons could have had the address list, as well as the animus, necessary for the sending of the attacking email. 2. The plaintiff was also asked about his rather startling allegation that the attacking email had in fact been sent by the first and/or second defendant, and he gave the following explanation at T 358-360: "Q. Mr Mallegowda, why are you suspicious that Mr Sood or Mr Lingaiah would have sent the grossly defaming email against Mr Sood? A. My answer is the attacking email, the people who received the attacking email and the people who received the Artideshpanda email, they are not common firstly and-- Q. How do you know that? A. They're not common..(not transcribable)..English, the way the email is sent. If someone cleverly using..(not transcribable)..an attacking email, obviously the same person come - I be coming and doing in my home if I'm cleverly exhibiting my talent doing that. Secondly..(not transcribable)..email how my ..(not transcribable)..IP address..(not transcribable)..who are the people, there are witnesses and everything, which demonstrate for me to make believe that the Artideshpanda email was created just to make connect a person to that act so that's malice..(not transcribable)..itself isn't malice. The person who tried the first email to send is to send an RSVP for second defendant. That at all the purpose of sending first email to RSVP the other Ganesha event itself is a part of the malice to me. So which in my case I will - when I open my case on cross‑examination I will prove that's a malice and it goes to the person for responsible attacking email is not the same person who created. Q. Mr Mallegowda, how do you know that the mailing list for Artideshpanda and members of the IAN email account were not the same as you just said? How do you know that? A. We asked extensive particulars from you because this is one of your case where you're trying to establish a relation between A to B. To do so the first point of your particulars you say because there was common mailing list by this account, common list by this account, which your particulars you're unable to - you're unable to justify that the recipients of both emails are same because of your inability, my abilities, yes, on the balance of probabilities it's very hard for you to say the person operating this account is the same as that person because you made illogical deductions on how you want to arrive in your email the matter complained of, one, you set out how you're asserting the person responsible here and there and then we asked particulars, which could not really identify both accounts controllers or the modus operandi are the same. Q. Mr Mallegowda, would you accept the fact that the allegations against Mr Sood are so serious that it would make people shun and avoid Mr Sood? A. Mr Sood, when they look at that email when it happened and as soon as it happened in 2012, like when I read it I really felt that you'd been unjustifiably somebody targeted, unjustifiably and I'd known because you communicated with me in the email a couple of times. I did invite you one of the meetings for Ganesha in 2011 where you came and spoke. I had a good view at that time. But later subsequent to my inquiries to find out the series of incidents why this attacking email came back, you were one of the key persons forming a faction group within the association..(not transcribable)..special annual general meeting team where you collected 12 persons' signatures. We discovered those emails and you forced a precedent to dissolve an association in November 2011. So then I become aware that yes your people, you and Lingaiah were the number 2 people on the top in the list to forcefully to call an association to dissolve. Then I understood reading ..(not transcribable)..email where it's an anonymous email sent to a few committee members including Mr Singh it's a quite different ..(not transcribable)..when I look at that and look at this attacking email which you complain it's a tit for tat. The people who received such a slandering email in November 2011 was the group which I formed the view that group is responsible to give it back to you and your group. So it has got nothing to do with many members like me. Q. Mr Mallegowda, do you accept the fact that the..(not transcribable)..email would made matters worse for Mr Sood? A. I don't think..(not transcribable)..I totally disagree. There's a person writing an email to a person and he has not mentioned directly or indirectly about you or your team. So I don't think it's further added any damages to you because there were eight other emails were sent by different members including one of your - two of your witness. Dr Rupali sent an email and..(not transcribable).. one of your witnesses sent out email. There are seven emails circulated supporting you. Everybody is saying that this should not happen. This is one among eight emails was the Artideshpanda email. Out of the eight emails one of them is the Artideshpanda email. It is not just alone. Q. Would you then accept because, as you've just said, Mr Mallegowda, that you did consider it highly defamatory of Mr Sood? A. Yes. Q. Would you then accept the fact that the email from Ajit Singh saying that she would investigate after the hoax email came out from the committee would make things worse for Mr Sood? A. What I observed as a member at the time, the person who is responsible for a committee is a president. If a series of allegations going through the emails to the members, people like me, a new member, want to know what is happening. Most people may not know you. But they want to know certainly whether the committee is functioning ethically, constitutionally and she as being a leader of the team has to put a brave face to say to the members, "Look, we received allegations. We are going to investigate." There is nothing wrong in my view for someone saying that yes, if there is allegations, we will investigate. It doesn't accuse you. Ajit Singh never accused you as you're an offender or something. All she said is yes, we will investigate. Q. Would you accept, Mr Mallegowda, the fact that it was only right and proper that Mr Sood have an opportunity to defend himself to the members of the Indian community against the anonymous allegations made against him? A. Mr Sood, if your response come to Indian Association people would have accepted that it's a response from our association. But what you prefer to do is you prefer to send..(not transcribable)..from your private email account. It's not you respond to an association. That means people felt that you lacked support in the committee. That's why you're sending in the personal capacity." (T 358-360) 1. The role of the second defendant was the subject of cross-examination at T 360-361: "Q. Would it be fair to say that Mr Lingaiah acted properly in seeking to defend his friend, Mr Sood, from such serious allegations? A. Mr Sood, as I said earlier, you've been misled by Mr Lingaiah because his interest was to have his event successful. His interest was to upset my event and you being a committee member he used you very much, as much as you sending out emails to the members as if you are representing that event. You should be an impartial person being a treasurer. But you'd been in such a way misled you've written two emails to the community. You wrote my wrong email address, my mobile numbers, venue. You put all incorrect details to the members to say..(not transcribable)..event. You go to that event. You put all the wrong information. All wrong information you put so that people are misled. Don't go to Shashi's event and now, if you say your second defendant did act for you to back you up, it is totally unjustified. He's going to back you because you gave him a lot of help being a committee member and his interest, as I said, is a different interest than yours and that you, second defendant, is the only person openly out of 380 families ..(not transcribable)..the only person backing you up by writing such matter in ..(not transcribable)..there is no other person wrote to the community backing you up. He's the one and only person. Yes. That's my answer. Q. Would it be fair to say that if Mr Lingaiah believed Mr Sood was innocent of charges it was right and proper for him to defend him? A. ..(not transcribable)..it was proper for you to make proper inquiries giving evidence to people. But you did not. You failed to do that. You wrote an email..(not transcribable)..I asked you. I was talking to you very politely. I wanted to meet with you. I was under the impression you're a gentleman and I want to sort it out because you also have a family like me. But what you did you sent that attacking email a night before my significant event, which most of the people did not come for the fact that you put such a lengthy email about me. You accused me. That was the purpose of Mr Lingaiah ..(not transcribable)..to you to attack me on the day before my event so that more people can go to his event. So you did not take - in my view did not take a reasonable step to resolve an issue. Otherwise we all wouldn't be here today. If at least one time you had met me it would have been over then. Q. Mr Mallegowda, would you accept based on all the inquiries Mr Sood made it was fair enough for him to name you and blame you for the participation in the publication of the attacking email? A. Your defence, Mr Sood, is honest belief. Your defence is honest belief. Did you hold honest belief that the matter complained of is applying to me? Now seeing the expert reports, seeing witnesses people, now your views have changed to be that you honestly believe that I am the accuser. I accused you. At that point of time when you said you did not hold your belief honestly. So on that point of view I say that you did not make reasonable steps to prevent this happening. Q. That is why Mr Sood wrote in the email in response to the attacking email-- A. No. You-- Q. -that Mr Mallegowda is aware of the person who has sent the email. A. No. Q. Mr Sood didn't claim that Mr Mallegowda sent it. A. That's a point her Honour has just mentioned. All you're saying is Mr Mallegowda knows the people who have done it. That was your honest belief. Your honest belief was also..(not transcribable)..pushed to you to make you to believe that I am attacking. I and you never had any personal issues in our own life in Newcastle. We come to conflict without being a friend. That's most important. Q. Would you accept the same in respect of Mr Lingaiah? A. Lingaiah's case even worse than your case because he did not contact me though he was a friend at that time. He attended many of my events, my family events, AVP events, personal parties. He knew me very well. He did not take any one reasonable step to say, "Hey why did you write ..(not transcribable)..I believe you've done. Come on. Come to my place. Let us sit down. You're just same street you're living as Lingaiah." If he had made some inquiries with me directly he could have view that I had not written that email. But this person is a gentleman. I was talking to him until the last day of my independence day function. No issues with him. He did not make any one phone call though he was my friend. Though you're not my friend he gave my personal numbers, he gave my home phone numbers to you to upset me. But that he did not do it by himself by making one phone call to me, one. So his case even worser than your defence." (T 360-361) 1. I have set out these extracts in full because they are relevant to my findings as to whether or not the plaintiff actually wrote the attacking email. While the plaintiff was asked many questions about the technical evidence in relation to creation of the email accounts, he was not asked about the actual compilation of the attacking email, including the sources for his information and how he came to write about events which occurred prior to the plaintiff returning to Newcastle and re-joining the IAN, or the reasons for the obvious animus of the anonymous author towards Mr Kalra, the other person the subject of criticism in the attacking email. 2. The short period of time between the creation of the email account (particularly since it is now known to have been sent from an internet café), the need for there to be access to email addresses in the possession of the IAN and the failure to identify the sources for information set out in the attacking email are all strong indicators either the plaintiff did not compose the attacking email at all or, if he did, he played a minor role, most probably of a technical nature, such as obtaining an inserting the email addresses, which would appear to be the highest point put into the text of the email. Application of these findings to the defence of justification 1. The plaintiff's imputations have been the subject of a separate trial pursuant to UCPR r 28.2: Mallegowda v Sood [2013] NSWDC 98; that judgment deals with the objections raised by counsel for the defendants and some points which perhaps should have been taken were not raised. In addition, two of the imputations are in the alternative and there is a capacity issue as to which is conveyed. I was not addressed as to this, so I have made findings as to both, but my view is that both imputations can be conveyed and thus the stronger of the two imputations is the one which will be conveyed. 2. The imputations set out in the statement of claim variously referred to by the parties as the third further amended statement of claim (see volume 1 of the plaintiff's tender bundle) or the fourth further amended statement of claim (by the defendants in their written submissions: see page 1 of their written submissions) have been drawn by me from that judgment. The fact that the parties cannot agree upon a description of the relevant statement of claim is one of many difficult issues for me in these proceedings; to add to the confusion, the second defendant also refers to the "third" further amended statement of claim (again, see page 1 of the defendants' written submissions). 3. Taking the imputations listed in [2013] NSWDC 98 as the imputations ruled upon, the imputations for the first matter complained of are as follows: 1. The plaintiff is a false accuser (the entire matter but particularly paragraphs 1, 2, 3, 22, 24 and 25). 2. The plaintiff is dishonest (the entire matter but specifically paragraphs 1, 2, 19, 20, 21, 22, 24, 25). 3. The plaintiff falsely accused Amit Sood and Amit Karla of corrupt or fraudulent conduct in that they misused the IAN resources and funds to benefit their own needs (the entire matter but specifically paragraphs 1, 2, 3, 4, 18, 19, 20, 21, 22, 24, 25). 4. The plaintiff falsely accused Amit Sood of misusing his position as IAN treasurer in that Amit Sood collected funds from sponsors of an Independence Day function based upon a false promise to promote their business (the entire matter but specifically paragraphs 1,2, 3,4, 5, 6,18, 19,20,21,22,24,25). 5. The plaintiff falsely accused Amit Sood of misusing his position as IAN treasurer in that Amit sood collected funds from sponsors of an Independence Day function for which Amit Sood did not account to the IAN or the sponsors (the entire matter but specifically paragraphs 1, 2, 3, 7, 8, 18, 19, 20, 21, 22, 24, 25). 6. The plaintiff falsely accused Amit Sood and Amit Karla [sic] of forcing out two members of the IAN committee in an attempt to keep their corrupt conduct hidden (the entire matter but specifically paragraphs 1, 2, 3, 10, 11, 18, 19, 20, 21, 22). 7. The plaintiff falsely accused Amit Sood and Amit Karla of misusing public funds (the entire matter but specifically paragraphs 1, 2, 3, 14, 15, 16, 17, 18, 19, 20, 21, 22). 8. The plaintiff sends vicious emails in order to sow the seeds of suspicion in the community against Amit Sood and Amit Karla (the entire matter but specifically paragraphs 1, 2, 3, 19, 20, 21, 22). 9. The plaintiff is deceiving the members of IAN by trying to cover up his involvement with a group of people who send vicious emails in order to sow the seeds of suspicion in the community against Amit Sood and Amit Karla (the entire matter but specifically paragraphs 1, 2, 3, 19, 20, 21, 22). 10. (j)[see (i) or (ii)] 11. (i)The plaintiff falsely claims to be a true believer in Lord Ganesha when his actions are so malicious (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24); (ii)The plaintiff falsely accused Amit Sood of not being a true believer in Lord Ganesha because his actions were so malicious (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24). 12. (k)[see (i) or (ii)] 13. (i)The plaintiff falsely accused Amit Sood of maliciously trying to divide the Indian Community in the name of Lord Ganesh Festival (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24); 14. (ii)The plaintiff is maliciously trying to divide the Indian Community in the name of Lord Ganesh Festival (the entire matter but specifically paragraphs 1, 2, 3, 18, 19, 20, 21, 22, 23, 24, 25). 1. The imputations pleaded to have been conveyed in the second matter complained of are as follows: 1. The plaintiff has caused Amit Sood trauma by maliciously responding to his hard work with a vicious brickbat (the entire matter but specifically lines 1-4). 2. The plaintiff is a villain (the entire matter but specifically lines 19 - 22). 3. The plaintiff sent a slanderous email about Amit Sood (the entire matter but specifically lines 23-24). 4. The plaintiff has been deceiving the members of IAN by hiding his involvement with a group of people who sent a slanderous email about Amit Sood (the entire matter but specifically lines 23-26). 1. A defence of contextual justification was abandoned. That has not stopped the defendants from providing detailed submissions in relation to this defence (main submissions, pp. 2, 4 and 38), which is one of many indications of their lack of understanding of the legal principles in this case. 2. Central to all of these imputations is the issue of whether the plaintiff was in fact a "publisher" of the attacking email. As is set out above, I have found that to be the case. 3. There are, however, other issues of fact for determination. These include: 1. Whether the allegations in the anonymous/false name emails were false to the plaintiff's knowledge (imputations 2(a) and 2(b)); 2. Whether the conduct of which he accused the first defendant and Mr Karla was corrupt or fraudulent or otherwise allegations of misuse of IAN funds (imputations 2(c) – 2(g)); 3. Whether the plaintiff had tried to cover his tracks (imputation 2 (f) and (i)); 4. Whether the anonymous/false name emails were intended to deceive and vicious (imputations (h) – (k)). 1. These factual issues are also relevant to each of the imputations in the second matter complained of. The remaining evidence relevant to justification 1. The first issue is whether there had in fact been any fraud. An independent audit was obtained by the members of the IAN; the first defendant's evidence was that this was at his suggestion, in order to clear his name, as he had been accused of fraud. 2. The plaintiff marked as MFI 65 a registered tax agent independent report from Peter W Howden, the front page of which read as follows: "INDEPENDENT AUDIT REPORT OF THE MEMBERS OF THE INDIAN ASSOCIATION OF NEWCASTLE Scope We have audited the Treasurer's Report of INDIAN ASSOCIATION OF NEWCASTLE for the period December 1, 2011 to December 31, 2012, as set out on pages 1 to 5. The Association's Officeholders are responsible for the financial report. We have conducted an independent audit of the financial report in order to express an opinion on it to the members of the association. No opinion is expressed as to whether the accounting policies used, are appropriate to the needs of the members. Our audit has been conducted in accordance with Australia Auditing Standards to provide reasonable assurance whether the financial report is free of material misstatement. Our procedures included examination, on a test basis, of evidence supporting the amounts and other disclosures in the financial report and the evaluation of significant accounting estimates. These procedures have been undertaken to form an opinion whether, in all material respects, the financial report is presented fairly in accordance with Accounting Standards and other professional reporting requirements and statutory requirements so as to present a view which is consistent with our understanding of the association's financial position and performance as represented by the results of its operations and its cash flows. The audit opinion expressed in this report has been formed on the above basis. Audit Opinion In our opinion, the financial report of the INDIAN ASSOCIATION OF NEWCASTLE is not sufficiently supported by documentary evidence to enable us to form an opinion as to the accuracy or completeness of the results shown. We also report that: a) the financial statements may not show a true and fair view of the financial result of fundraising appeals conducted during the year; b) the accounting and associated records have not been properly kept; c) money received as a result of fundraising appeals conducted during the year could not be accurately verified; and d) at the date of this report, there are reasonable grounds to believe that the association will be able to pay its debts as and when they fall due. Further explanation of the reasons for being unable to form an audit opinion are contained in the accompanying report. [Signature] Public Accountant Peter W. Howden" 1. The text of this report read as follows: "REPORT TO THE EXECUTIVE COMMITTEE OF THE INDIAN ASSOCIATION OF NEWCASTLE The executive committee of THE INDIAN ASSOCIATION OF NEWCASTLE have a responsibility to the members of the Association to properly document and account for the activities undertaken by the Association, Each committee member has a role to perform in the leadership of the Association. The roles of each of the President, Vice-President, Secretary and Treasurer are distinct and separate. There is a need for each function to check and support the actions of the other members of the committee. Governance and accountability protect not only the members but also the committee. Documentation of the decisions made by the committee should be maintained in the form of minutes of meetings held. This identifies who was present, what opinions were raised, who was in agreement (or disagreement) and the outcome decided on behalf of the members. It also provides transparency for other members or third parties who later query committee decisions. On enquiry, no minute book has ever been maintained. This is a requirement for registration with Fair Trading, which I understand has not occurred. Tax deductible donations cannot be accepted without registration of the Association and tax deductibility status with the Australian Taxation Office. In dealing with the records of the Association to perform an audit, there is a severe lack of primary documentation. The bank statements only evidence monies received and spent by the bank. The steps prior to this are a recording of how the money was confirmed before banking. The processes of collecting, checking, recording and banking are separate and should be performed by different people, with each able to verify the previous function. For example, a member's register recording names and addresses should agree to the amount of membership funds collected. Receipts should be issued to provide proof of payment by the member with a copy kept by the Association. The same principles apply to the payment for goods and services. An invoice for all expenditures should be held, clearly showing to whom it was paid and the reason for payment. Cheques should be used as much as possible with a minimum two signatories required. If amounts are paid by cash before banking, invoices should be held and amounts paid reconciled to total money received and amount banked. Maintaining a cashbook would bring together ail details of income and expenditure which would link the receipts and invoices with the deposits and withdrawals to the bank. Additionally, a report can be made on each event held to calculate the profit or loss for the information of the committee. Systems have not been in place which allow for the complete and accurate recording of the activities of the association. The incoming committee members should be trained to maintain consistent records. These measures may seem like a lot of trouble, but they have the functions of safeguarding the committee members from allegations of fraudulent behaviour, reducing the risk of theft or inappropriate use of funds and fulfilling your duty to the members of the Association to deal correctly with monies entrusted to you. I am happy to meet with the incoming committee to assist with implementing a system which would move towards attaining the above measures." 1. This report paints a clear picture of a long history of informal and inadequate record keeping, a system the first defendant inherited when he took over the accounting records. There is no evidence whatever of fraud, corrupt conduct or anything other than incompetence of long standing. 2. However, did the plaintiff know his allegations to be false? The defendants' evidence is that the plaintiff was motivated to send the attacking email because of the dispute over the competing religious festivals rather than because of any genuine concern about dishonest or even incompetent record-keeping. 3. All of the evidence points to the plaintiff being angry about the religious festival he was organising being sabotaged by the defendants, and in particular by the first defendant. His interest lay in getting the first defendant into trouble, not in pointing to any genuinely held belief of corrupt or fraudulent conduct by the first defendant. 4. I am additionally satisfied that, in participating in the sending of anonymous emails, the plaintiff was trying to cover his tracks, and that the making of false and anonymous allegations of fraud and misconduct could fairly be described as vicious. The relevant principles of law 1. Section 25 Defamation Act 2005 (NSW) provides: "It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true." 1. The defence is directed, in terms, to the imputations: Carolan v Fairfax Media Publications Pty Ltd(No 6) [2016] NSWSC 1091 at [100] per McCallum J. The issue of what amounts to "substantially true" is largely a fact-driven exercise. 2. I make the following specific findings of fact in relation to each of the imputations for the first matter complained of: 1. Imputations (a) and (b): I am satisfied that the plaintiff, in his capacity as publisher of the anonymous attacking email and the false name email, knew what he was saying to be false. 2. Imputations 2(c) – 2(g): I am satisfied from the accountant's report that no money had been stolen and that the plaintiff knew his allegations to be false. 3. Imputations 2(h) – 2(k): I am satisfied that the emails were vicious and were sent to sow the seeds of suspicion against both the attacked persons. I am also satisfied that these allegations extend beyond the financial allegations to include the Lord Ganesha festival (imputation 2(k)). 4. Imputations in the alternative: I was not addressed on this issue. There is sufficient evidence to go to either of the alternatives. In those circumstances, the stronger of the two alternatives is the imputation conveyed, and the imputation pleaded to be true. 1. This means that the defence of justification succeeds in relation to each of the imputations in the first matter complained of. The second matter complained of 1. The same findings of fact made for the first matter complained of would apply to the second matter complained of as it essentially repeats the same facts. Accordingly, the defence of justification succeeds for each of the imputations pleaded there as well. Other defences 1. The defendants also rely upon the defences of qualified privilege, honest opinion and triviality. In view of my findings as to justification, these observations will be brief. Honest opinion 1. Not one of the imputations pleaded is capable of amounting to an opinion and the defence of honest opinion will fail for this reason, for both publications. If I have erred in this regard, I would be satisfied that the facts are truly stated and the defence would succeed. Unlikelihood of harm 1. The defence of unlikelihood of harm for allegations of this seriousness would not, on the test set out in Barrow v Bolt [2015] VSCA 107, be made out. These were serious allegations made to all members of the IAN. Statutory and common law qualified privilege defences 1. The submissions I received from the plaintiff and defendants in relation to qualified privilege conflated the statutory and common law defences and did not deal with malice. Common law qualified privilege 1. Doing the best I can with the particulars of the protected occasion, I am not satisfied that the first matter complained of was sent on such an occasion. The anonymous email was dealt with swiftly by the IAN, in terms where the first defendant played the main role in the drafting of the letter (in fact, he ensured it was sent without the approval of Mrs Singh, despite the intention of the committee to ensure that she approved its contents. The IAN also decided to appoint an auditor to investigate the allegations, a step Mr Sood told the court in his evidence was a proposal he made. After a year of confrontation in the IAN (much of it caused by Mr Sood and the anonymous emails which I am satisfied he was an authorising party to), the sending of this email was like throwing petrol on a fire. There was no obligation on Mr Sood, in terms of his position on the committee, to make an already delicate situation worse. It is an indication of the degree to which the committee was struggling to cope that its response was to call in a senior figure in the Indian community to advise what to do. Mrs Singh's evidence in this regard demonstrates the degree of those difficulties, which I am satisfied were substantially added to by the first defendant's conduct. 2. The second defendant is in a very different category. He is responding to the continued dispute of these issues amongst IAN members. I am satisfied that the occasion of publication was, in his situation, protected. The statutory defence 1. There is no evidence that the first publication went beyond the Indian community (although it may have been shown to the police officer who investigated the first defendant's complaint). 2. Looking at the checklist of factors, there can be no doubt that the first defendant gave the plaintiff every opportunity to reply and made as extensive an investigation as he could. I am satisfied that each of the categories in s 30 can be satisfied by the first defendant and the plaintiff has not established malice. Accordingly the defence of statutory qualified privilege would succeed, including any publication of the matter complained of to the police, in the course of showing the police the attacking email, if this occurred (although it was never clear if publication of either matter complained of to the police was asserted, or an issue in the case). 3. The s 30 defence clearly also applies to the second defendant's email, for the same reasons. Malice 1. However, if I have erred in this regard, for the reasons below, I am satisfied that the plaintiff has not discharged his onus to prove malice. Accordingly, my findings in relation to both the common law defence and the statutory defence (where malice may be additional to the checklist in s 30) should reflect this result. 2. The plaintiff submits that the first defendant's belief was not honestly held (submissions, paragraph 241), in that he should have "carefully drafted the email and put forward all these recent particulars" emerging from evidence in the trial. However, the first defendant could only put forward the particulars he had at the time, which were the result of extensive inquiries as well as his conversations with the plaintiff, the essence of which he sets out in the matter complained of, and the accuracy of which has largely not been challenged. 3. Whatever else may be said about the first defendant, there can be no doubt that he genuinely believed what he wrote, and that he wrote it as a result of his inquiries. If a finding in relation to malice were necessary in the case of the second defendant (for whom both qualified privilege defences would, I have found, succeed), the same would apply. An alternative finding as to damages 1. If I have erred in finding for the defendants, it would have been necessary for me to assess damages. That is an unattractive task, given the plaintiff's conduct of these proceedings. 2. I am unaware of any decisions in Australia where damages for defamation are assessed where the plaintiff has been convicted for contempt of court in relation to his conduct concerning a witness. I note, however, the general principles applicable where there has been dishonesty as set out in Inforrm: "Case Law: Joseph v Spiller, Are Nominal Damages Appropriate When the Court is Deceived?" (Hugh Tomlinson QC, 13 November 2011). 3. In Dank v Nationwide News Pty Ltd [2016] NSWSC 295, where a plaintiff's success was seen as worth a derisory amount, McCallum J awarded zero damages. Zero damages have been, principally as a form of minimum or derisory damages, in defamation actions in other jurisdiction. In Broxton v McLelland (No 2) [1997] EMLR 157 the United Kingdom Court of Appeal (Staughton, Swinton Thomas and Judge LJJ), by majority, refused to set aside a verdict of $0 on the basis that it should be considered as a form of nominal damages. However, in Teskey v Toronto Transit Commission, 2003 CanLII 12871 (ON SC), Wilson J, set aside a jury verdict of $0, but this was on the basis that the nature of a claim for defamation is based upon the premise that some damage must be presumed (at [37]). 4. The only circumstances in which the plaintiff would be entitled to an award would be if he could persuade the court, as the defendant did in Yu v Cao (2016) 91 NSWLR 190, that the role he undoubtedly played in creating the email address was insufficient to amount to publication. If his role fell short of that, the damages he would be awarded would be derisory, if not zero. In my view, this would be a case where it is appropriate to award zero damages. The sending of anonymous material is conduct to be deplored. 5. For similar reasons, I would not have awarded aggravated damages. Conclusions as to liability 1. As a result of the findings I have made in relation to the plaintiff's claim, there will be judgment for the defendants in relation to each of the matters complained of. 2. This brings me to a consideration of the cross-claim for defamation brought by the first defendant. Findings as to the cross-claim 1. The cross-claim is only briefly mentioned in paragraph 16(a) of the main submissions by the defendants (this reference relates to aggravated damages but does not explain why). In the submissions in reply, there is a short section concerning the extent of publication but no submissions on any other point. I am left with the impression that the first defendant saw his cross-claim as some kind of rebuttal pleading rather than a defamation case of his own. The matter complained of 1. The text of the matter complained of in the cross-claim, which is the document referred to throughout as "the attacking email", is as follows: "SAVE INDIAN ASSOCIATION OF NEWCASTLE Dear IAN members We would like to bring attention to all the IAN members about corrupt/fraud conduct of Mr Amit Sood and Mr Amit Karla [sic]. These 2 people are misusing association resources and funds to benefit their own needs. Mr Amit Sood has misused the position of IAN treasurer by collecting lot [sic] of unaccounted funds from the sponsorships for [sic] Independence Day function by giving false promises to promote their business. There are no receipts for these illegal/unaccounted transactions and these monies never arrived to [sic] the IAN bank account. As a result, we the honest members have to pay premium price to purchase the tickets for the function. Few [sic] months back a committee member had exposed their corrupt conduct, as a result these 2 men managed to sack [sic] from the team to make their way easy. It looks like the president of IAN has lost control over these 2 men. These people are offending many members with their rude and non-courteous emails regarding tickets and membership matters as if they own the association, so many of them stayed away from [sic] Independence Day Function. These 2 have collected money (cash in hand) towards tickets which went straight to their pockets and without e-tickets they have let them in to the hall. Many of their close associates, friends, neighbours and relatives got free entry for the function at paid members [sic] cost. The Association must immediately sack these 2 trouble making men from the association, who are bringing the whole Indian Community into disrepute and order an unbiased investigation from non-committee senior members and audit all their illegal cash transactions with sponsors and recover all monies owing to the association. If the president failed to get their resignations, then a formal complaint will be filed against these 2 individuals to [sic] Australian Securities and Investments Commissioner [sic] to probe [sic] an investigation for misusing the public funds. Please forward this email to all the honest members and join hands to save the IAN from these 2 idiots. Regards Honest Members @ IAN." 1. The sole defence to this is denial of publication. As I have held that the plaintiff is a publisher, in that he created the email account from which the matter complained of was sent, in circumstances where his conduct in so doing amounted to publication, the denial of publication fails and there will be judgment for the plaintiff. 2. This brings me to a consideration of the issues relevant to damages. Damages 1. The general principles to be applied in assessing damages for defamation are to provide constellation for hurt to feelings, compensation for damage to reputation and vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61. In John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 at 299D, Mahoney JA explained the considerations to which the court should have regard in assessing damages for the purpose of vindication, views endorsed by the High Court in Carson v John Fairfax & Sons Ltd. 2. The task of assessing damages is governed by s 34 Defamation Act 2005 (NSW), which provides: "34 Damages to bear rational relationship to harm In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded." 1. Section 35 Defamation Act 2005 (NSW) imposes a limit on the amount of general damages that may be awarded; the present limit is $389,500 (Gazette No 56 of 26.5.2017, p 1782). 2. In the present case, there is a substantial claim brought for aggravated damages on the following bases: 1. The imputations were false to the knowledge of the Cross Claimant. 2. The Cross Defendant, to the knowledge of the Cross Claimant, was actuated by malice. The matters from which malice is to be inferred (each of which are also relied upon separately as aggravating damages) are as follows: 1. The Cross Defendant knew the material he published was false, or was willfully blind as to its truth or falsity. 2. The Cross Defendant had no reasonable basis for conveying the imputations or any other imputations to similar effect defamatory of the plaintiff which Imputations they intended to convey. 3. The Cross Defendant published the Attacking E-mail anonymously, hid his identity and falsely pretended it was published by others. 4. The Cross Defendant came to publish the Attacking E-mail in the following circumstances and with a motive as identified as follows: (A) On 17 August 2012 the Cross Defendant made complaint to IAN stating that he had paid for his tickets to the Independence Day function and his membership but hasn't received any tickets or confirmation; the plaintiff was dissatisfied with the handling of ticketing to the event. (B) The Cross Defendant came into conflict with security guards at an IAN Indian Independence Day function at Panthers Newcastle on 18 August 2012 at which time the security guards removed material the Cross Defendant had stuck on the wail and removed him from the premises. The Cross Defendant formed the view that the First Defendant and Mr Amit Karla, who were in charge of the venue, were responsible for the conduct of the security guards and took offence. (C) The Cross Defendant had a falling out with the Ganesh Utsava organizers in 2011. The Cross Defendant intended to upset the Ganesh Utsava organizers' 2012 event by: organizing a competing event on the day before the Ganesh Utsava organizers' 2012 event, adopting a name for the event ("Ganeshotsava") that was deceptively similar to the other event ("Ganesh Utsava"), distributing a flyer for the event that was deceptively similar to the Ganesh Utsava flyer, and not advertising his intention to organize a competing event prior to 16 August 2012. (D) On 19 August 2012 the First Defendant, on behalf of the IAN, sent an email to IAN members clarifying confusion in relation to the two (2) Lord Ganesh festival events. By sending the email the confusion that the Cross Defendant had intended would arise in the Indian community was substantially avoided. (E) The Cross Defendant also was angry at the Cross Claimant because he had sent an e-mail to IAN members advising them that the Cross Defendant's function in honour of Lord Ganesh was different from that organised by another group. (F) The Cross Defendant formed an intention to send an anonymous e-mail to the Indian community accusing the Cross Claimant and Mr Kalra of fraud and corruption in order to teach them a lesson. (G) Accordingly the Cross Defendant composed and published the Attacking E-mail. 1. The conduct of the Cross Defendant in further attacking the Cross Claimant in a second e-mail published under a false name, on 28 August 2012. 2. The conduct of the Cross Defendant in making threats against the Cross Claimant and his wife [Note: This was withdrawn during the hearing]. 3. The failure of the Cross Defendant to apologise, retract or correct the publication of the Attacking E-mail. 4. The conduct of the Cross Defendant in instituting proceedings against the Cross Claimant, as First Defendant, and the Second Defendant based upon the false assertion that the Cross Defendant had not published the Attacking E-mail and based on the false assertion that the Cross Claimant was not defending himself against an attack by the Cross Defendant in publishing the first matter complained of therein. 5. The conduct of the Cross Defendant in issuing a subpoena to the Cross Claimant's former employer AMP Control and then sending copies to the Cross Claimant's wife at her place of work under cover of a threatening insulting and anonymous note on or about 8 July 2013. 1. No objection was taken to the form of the particulars of aggravated damages during the hearing apart from (d), which arose in part from the agreement that the first defendant's wife would not be cross-examined, but which was not a proper particular for aggravated damages in that form in any event. 2. I have received only very limited submissions about the cross-claim; the cross-claimant's submissions on this whole issue (pp. 45-46 of the defendants' submissions) deal only with the extent of publication. 3. I made observations on a number of occasions during the hearing concerning the issue of damages for the plaintiff's claim and the cross-claim. In particular, in relation to the damages in the cross-claim, I referred to the issues of extent of publication and delay in prosecuting the cross-claim by reason of the number of publications. 4. While the defendants did answer the plaintiff's submissions concerning damages, including referring to some comparable damages awards and whether aggravated damages should be awarded, there were no similar submissions made in the plaintiff's cross-claim. There is a section on the cross-claim in the defendants' submissions which does address the issue of extent of publication, but none of the other damages issues I drew to his attention. Nor did the cross-claimant challenge the plaintiff's submissions that the attacking email was part of a "tit for tat" campaign after the cross-claimant and his team sent an anonymous email earlier, beyond complaining that the plaintiff had changed tactics by raising this during submissions when it had not been raised in the trial (T 2151 – 2155). 5. I raised this with the cross-claimant after his submissions were provided: "HER HONOUR: That applies to both of you. Where do I find your submissions on damages? I've seen some submissions in relation to aggravated damages by the defendants. FIRST DEFENDANT: Yes, your Honour. HER HONOUR: But you haven't made any submissions in relation to the damages on the cross claim, that's right, isn't it? FIRST DEFENDANT: That was part of the damages overall, your Honour. HER HONOUR: Basically you say anything that you want to say, you have said?" (T 2131) 1. I have read the section on damages referred to by the first defendant, but it consists largely of generalised statements and references to damages awards rather than to specific reference to the factual matrix concerning the cross-claim and the basis upon which aggravated damages should be awarded. 2. The evidence at the trial was at best passing references to members of the IAN reading the matter complained of although one witness said he had never read it at all. The cross-claimant was clearly very angry about the publication, and there is evidence of hurt to feelings, but nothing more. There were no submissions about the matters raised in relation to aggravated damages; all I know about Mr Kalra is that Mrs Singh was upset that he was disparaged in the attacking email and that, according to a statement by the first defendant from the bar table, he has no wish to participate in these proceedings. 3. Reading through the cross-claimant's written submissions, I have come to the conclusion that he does not really understand that he has a cross-claim for defamation involving a claim for damages, despite my pointing it out to him and despite receiving advice from his former solicitor from time to time (for example, his former solicitor gave him a list of legal issues). The plaintiff appears to have been labouring under a similar misapprehension. 4. Throughout the trial, all the parties expressed complete confidence in their understanding of all legal and technical issues. Attempts by me to assist the parties to understand the legal issues were unsuccessful. This is clearly another occasion where the parties have not understood the relevant legal issues. 5. However, it would be irresponsible of me to dismiss the cross-claim merely because the cross-claimant did not understand the legal issues or make submissions on the relevant facts and law. Accordingly, I have done the best I can, by relying upon the evidence and pleadings. The cross-claimant's hurt to feelings 1. There can be no doubt that the cross-claimant has been outraged to the point of obsessional fury by the contents of the matter complained of and that his rage and anger continue to this day. 2. Although there is no requirement to lead evidence of prior good reputation, there is often evidence led to establish that, prior to publication of the matter complained of, the plaintiff enjoyed an excellent reputation: see example, Zaia v Eshow [2017] NSWSC 1540 at [108]-[109]. Although the second defendant called his wife as a witness on other issues (T 1862-1972), the first defendant/cross-claimant did not call his wife or any member of his family to give evidence concerning his hurt and upset in relation to the matter complained of in the cross-claim. Extent of publication of the matter complained of in the cross-claim 1. If all, or even a majority, of the IAN members had read the attacking email which is the cross-claim in these proceedings, there would have been an audience of several hundred persons. 2. One of the witnesses called by the defendant, Mr Naik, gave evidence that he received emails used by the IAN members email account and Arathi Deshpande email accounts, although his personal email was not registered with the IAN (T 2018-2019 and 2034-2035). However, he said that he did not read such emails and the first time he had seen this email was in the witness box. His explanation for this was a very understandable one: "PLAINTIFF: Mr Knight [sic – Mr Naik], you were one of the members who signed for calling a special IAN general meeting. Is that right? A. Yes. Q. Please have a look at this email. You have seen this email before? A. No, I haven't received this email. Q. Did you receive an email from members that day and Arathi Deshpande? A. Yes. Q. Yes. You are on the IAN mailing list, isn't it? A. Yes. Q. What was that email account you had in the list? A. It was srinu_beforeyou@elva.co.in. Q. So this is also sent to all the IAN members how could you say that you have not received this email? A. I haven't read it ..(not transcribable).. Q. You haven't read‑‑ A. ‑‑I haven't received it. Q. The true question here I said have you received? A. No. HER HONOUR Q. You weren't asked whether you'd read it, you were asked if that email had come into your inbox? A. I am not aware of this thing. Q. But the thing is if you're on the list for IAN members whether you read the email or not could you offer any explanation as to why you wouldn't have received that email? A. This is the first time I have seen this email, your Honour. Q. Why wouldn't you have read that email - aren't you interested in IAN's activities? A. They were lots of emails coming through from so many people so I just ignored it. Q. Do you think there are a lot of other people who would have just ignored emails because there were a lot of emails? A. Yeah, because I do use my personal email that - that is..(not transcribable)..@gmail.com, I mostly concentrate on that one rather than going on the other one. That one I only give for community and those sort of things." (T 2011-2012) 1. There was an objection by the first defendant/cross-claimant as follows: "FIRST DEFENDANT: Your Honour, the email sent by the..(not transcribable)..to whom all this email was sent extent of publication has not been established by the plaintiff. PLAINTIFF: It says IAN members - it clearly says‑‑ HER HONOUR: It says IAN members. PLAINTIFF: It's clearly addressed there. HER HONOUR: It says IAN members, but the thing is this, what this gentleman is saying is that he get emails in the IAN membership thing all the time which he - and so he gets them and he doesn't bother opening them and that of course is relevant to the publication of the matter complained of as well because if there are a lot of emails - especially if there are a lot of attacking or angry emails - is that your observation there were a lot of angry emails? WITNESS: Yeah, because it's not related to me or anything I don't want to get my head into all those sort of things I just ignore the emails for the‑‑" (T 2013) 1. The cross-claimant, in his written submissions, states that Mr Naik's evidence proves that the matter complained of in the cross-claim had been published beyond Newcastle and the Hunter area to email recipients as far as the Central Coast. However, what this excerpt of transcript demonstrates is that persons such as Mr Naik, who received IAN emails often, do not necessarily read them because they are simply not interested in reading every email, or even some of the emails, from organisations of this kind. 2. The issue of damage to reputation from publications of emails with this extent of publication is helpfully considered in Bristow v Adams [2011] NSWDC 11 and Bristow v Adams [2012] NSWCA 166. The plaintiff, the defendant's former work supervisor, sent an email headed "I quit" not merely to the defendant but to another manager and to two other branch offices of the company. At first instance, no direct evidence was called to show how many persons had read the defendant's email, or were likely to have read it. Although finding for the defendant on other grounds which were subsequently overturned on appeal, the first instance judge's estimate of $10,000 ($7,000 general damages plus aggravated damages) was accepted by the Court of Appeal as appropriate. 3. A better comparison may be found in Takhar v Sroa [2017] SADC 110, in that there is considerable similarity in terms of publication as well as factual content. The plaintiff and defendant were both members of a Sikh religious community, of which the plaintiff was the president. The defendant caused a notice to be put on the temple notice board during a three-day religious festival. The plaintiff became aware of it immediately, as was the case here, and the notice was removed (in the present case, the committee of the IAN immediately issued a correction). 4. Stretton DCJ summarised the relevant principles as follows: "[121] Damages are payable to compensate for injury to the plaintiff's reputation, as a remedy for his injured feelings and to vindicate the plaintiff for having been publicly defamed. The law takes the plaintiff as it finds him. [122] The court has regard to the provisions of the Act, and in particular that damages should bear an appropriate and rational relationship to the harm sustained by the plaintiff, that exemplary and aggravated damages are not claimed and cannot be awarded, and that the state of mind of the defendant is irrelevant to the award of damages except to the extent that it affects the harm sustained by the plaintiff, which latter factor is not relevant in this matter. [123] Damages are to be assessed under ordinary common law principles subject to any mitigation and the statutory cap. [124] The harm caused by the defamatory publication does not end at the time of publication but encompasses continuing harm including ongoing hurt feelings during and up to the conclusion of the litigation by the plaintiff seeking vindication. [125] The court has regard to the submissions of both parties and all authorities cited, without repeating them here. [126] The imputations made were materially critical of the plaintiff both personally and as to how he conducted himself as president of the Gurdwara generally over time and in a number of alleged instances. They were made within the religious community to which the plaintiff has significantly contributed and places great importance. [127] The plaintiff has been genuinely hurt and upset by the defendant's defamation of him. [128] The imputations were however only published for a short time and in such a manner that prior to their removal by the plaintiff they were likely read by a very, very limited number of people, although that would have generated reasonably foreseeable secondary discussion beyond those people to a wider but still limited number. [129] Whilst every case will be different and involve its own unique facts the court has had regard to other assessments in this jurisdiction in recent years. [130] Having regard to the totality of the circumstances as found, the applicable statutory and common law principles, all cited authorities and the parties' submissions, the court assesses the plaintiff's general damages at $10,000." (Footnotes omitted) 1. There can be no doubt that a considerable number of members of the IAN read the matter complained of the subject of the cross-claim. There was an urgent meeting the following day for the purpose of preparing a reply and this was done. 2. However, the evidence of Mr Naik that he often did not open IAN emails suggests that it is likely that quite a few ordinary members of the IAN community (as well as those persons whose email addresses may have been on the system although they were no longer, or perhaps had never been, members) would not have opened the email for the same or similar reasons to those of Mr Naik. There were similar statements by the second defendant's wife and Mr Narwal, according to the plaintiff's written submissions (paragraph 50). 3. There is no evidence of the email being circulated outside the IAN to, for example, persons outside the Indian community in the Newcastle area or associated regional areas. Although the evidence of Mr Naik suggests that some members lived outside Newcastle, there is no suggestion that the matter complained of went outside the borders of IAN membership. 4. Another factor relevant to the extent of publication is that the matter complained of was swiftly answered the following day and that the cross-claimant appears to have been, in large part, the author of this responding email. This was considered to be a relevant factor in Takhar v Sroa. 5. I next consider factors which may have a mitigating impact upon the circumstances of publication, namely the circumstances in which the matter complained of was published and the issue of delay. The circumstances in which the matter complained of were published 1. As well as the extent of publication, I should have regard to the context in which the matter complained of the subject of the cross-claim was published, namely that it was published in the course of a series of emails over a period of several months where hostile views were expressed by more than one participant. This may in fact have something to do with Mr Naik's failure to open the email in question. 2. I am satisfied that the matter complained of in the cross-claim was published to an organisation where the members were so fed up with angrily worded and at times anonymous emails that they were complaining about it, as is made very clear in the second defendant's "apology" to IAN members for inflicting yet another group email on them. All the evidence points to many members of the IAN, even those in the defendants' camp, having lost any desire to open these emails and read them. The impact of delay upon damages 1. Another factor is the very significant delays in both bringing and prosecuting this claim. Again, this is an issue which I specifically asked the cross-claimant to address in his submissions: "HER HONOUR: For example, you will have to refer to delay in bringing the case, or delay in prosecuting your case, or any other factors that you say are relevant in mitigation of damages, if there's any case for mitigation of damages, you'll have to address all of those issues. And similarly in your case you have to address Mr Mallegowda's debt claim for damages, all right. SECOND DEFENDANT: Yes, your Honour. HER HONOUR: So you don't just put in all the evidence about how it's all true and so on, you also have to address the issue that if I don't accept that what kind of damages will he get, and similarly in yours you see, so think about that and think about what kind of time frame you want and I'll come back at 2 o'clock and I'll finish and hopefully we'll be able to adjourn the case before 3 o'clock." (T 2099) 1. Although first in time, proceedings for defamation reliant upon the cross-claim were commenced close to the end of the limitation period and thereafter prosecuted with a low level of diligence. There was a series of adjournments of this case because the defendants sought to reopen their case to obtain documents from the Supreme Court and the Supreme Court file (where no formal application was in fact made and the relevance of the documents is speculative) and/or tender further expert evidence (the first adjournment), call evidence from the plaintiff's brother and reopen the case. The delays caused by these applications also affected the resolution of the cross-claim. Some small discounting of the general damages should be reflected accordingly. The cross-defendant's submissions as to mitigation of damages 1. The cross-defendant (paragraphs 476-493) submits that any damage to the cross-claimant's reputation arose from the audit report which "carries more defamatory imputations" concerning the cross-claim than the matter complained of. The cross-defendant submits that "whoever has written that email, it is the statement of facts and truth, which can be justified with reference to the audit report". 2. This is one of many examples of the inability of the parties to understand the relevant principles of law concerning defamation. It matters not that others have made similar defamatory statements of and concerning the cross-claimant, and the circumstances in which such statement could be relied upon by way of mitigation of damages (which appears to be what the cross-defendant is suggesting) are to be viewed with extreme caution (Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215). In reply (see the heading "Reply to paras 476-493") in the cross-claimant's unnumbered folder two "Defendants' reply to plaintiff's submissions", the cross-claimant appears to have misunderstood this as being a late attempt to plead justification, and indignantly objects. Unfortunately, however, the cross-claimant has not addressed other damages issues of more relevance to these proceedings. Aggravated damages 1. The cross-claimant's particulars of aggravated damages have been extracted from the cross-claim and are set out above. He has not addressed any issue in relation to this claim, despite my drawing to his attention that all issues as to damages should be addressed in the written submissions. I have based this part of my judgment on the particulars provided in the cross-claim. 2. As to falsity of the imputations, the cross-claimant and plaintiff both made submissions about the accountant's report. The cross-claimant's explanation was that he was the person who arranged for this report to be obtained (as noted above, I am satisfied that Mrs Singh and the others involved in trying to restore harmony (such as Mr Tapan Goswami) were responsible for this step). That report does demonstrate that the first defendant has not stolen money, although painting a picture of general incompetence. 3. As to language issues, there is a strong element of "tit for tat", in that other anonymous emails were circulated by those in the opposing camp of the first defendant. This is clearly indicated not only by the evidence of Mr Naik but by the contents of the second matter complained of, where the second defendant purports to apologise for sending yet another group email to a community clearly fed up with these unpleasant and at times childish emails. 4. There is no evidence before me to determine whether any failure to apologise was wrongful. There is no evidence of an apology being sought. 5. Taking all of the above into account, even allowing for the difficulties for a litigant in person who does not understand he actually has brought a claim for defamation and has made no submissions as to an entitlement to aggravated damages, I cannot see that any claim for aggravated damages has been made out. Conclusions concerning the cross-claim 1. As noted above, I have found that the plaintiff was a publisher of the attacking email, the sole defence of denial of publication has fallen away and the sole question is one of damages. 2. The quantum of the claim, taking all of the circumstances set out above, is a modest one, and I particularly note the consideration of these issues in Takhar v Sroa. Taking all the relevant factors into account, the general damages to be awarded for the cross-claim are $5,000, as no allowance for aggravated damages should be awarded. 3. I will grant liberty to apply in relation to interest. Other issues for determination 1. Two other issues remain to be determined: 1. The plaintiff's applications under Section 203 District Court Act 1973 (NSW) and ss 327 and/or s 338(c) Crimes Act 1900 (NSW); and 2. The defendants' application to reopen their case. Application by the plaintiff for referral to the Supreme Court and/or to prosecute the second defendant and a witness 1. The plaintiff makes an application for the second defendant's conduct to be referred to the Supreme Court for determination of whether a contempt of court has been committed (written submissions, tab 2, p. 1). He made that application orally on day 12 of the hearing (T 1200) and I asked him to bring such an application at the close of the evidence, and during submissions. This was, as the transcript will show, as a result of the level of anger and hostility the parties were showing to each other on that and the previous day, and I was concerned that their anger could spill over into conduct of an even worse kind. 2. Section 203 District Court Act 1973 (NSW) provides: "203 Power to refer allegation etc of contempt to Supreme Court (1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination. (2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate." 1. The procedure which the court should adopt is set out in Court of Appeal, Registrar of v Maniam (No 1) (1991) 25 NSWLR 459 at 469F and in Mohareb v Palmer [2017] NSWCA 281. A court does not require oral evidence in relation to such an application, as the issue can be determined "on the papers" in an appropriate case: Turner v NSW Forensic & Analytical Science Service [2017] NSWCATAD 181 at [27] – [31]. I am satisfied that I have all the relevant information before me to enable me to deal with this application. 2. The plaintiff also brings an application for the second defendant and Mr Gowda to be referred to the Attorney-General to be prosecuted for perjury under ss 327 and/or s 338(c) Crimes Act 1900 (NSW) and/or to be granted leave to prosecute the second defendant and Mr Gowda for perjury under s 338(c) Crimes Act 1900 (NSW) (written submissions, tab 2, p.1). The procedure which the court should adopt is set out in Mohareb v Palmer [2017] NSWCA 281. 3. The plaintiff's submissions sit ill with his own conviction for contempt of court, given the observations of Adams J concerning not only the conduct for which he was referred, but the manner in which the plaintiff was guilty of what Adams J called "perjury" (in relation to his subsequent conduct) in his Honour's sentencing remarks, in the extract from those remarks set out earlier in this judgment. 4. The manner in which these applications were raised creates difficulties, in that the second defendant had to determine whether to elect to reply and Mr Gowda has not been afforded any opportunity to reply at all. 5. I am satisfied that both these applications are entirely unmeritorious. The asserted differences in evidence are, to use the defendants' description in their submissions, trivial. Both applications are dismissed. 6. The defendants appear to hint, at various stages of these proceedings, that they would be seeking a referral of the plaintiff for a second time in relation to contempt of court (and I particularly note the contents of page 67 of the defendants' submissions). These include claims of "threats, abusive phone calls and threats to witness [sic] by the plaintiff to defendants [sic] their families and Mr Ashwin Gowda" (submissions, p. 67). There is also reference to the plaintiff's conduct in court in relation to Dr Gopalareddy at T 1870 – 1871. 7. There must come a time when this litigation is concluded. If the defendants have concerns for their safety, these are issues which should be raised with the police. I do not propose to make any referrals of any party or witness in these proceedings. I note, as I have done in previous judgments, that the increasing regularity with which applications of this kind are brought by litigants in person should be a matter for consideration by the legislature. The defendants' application to reopen their case 1. After the technical evidence submissions were provided, the defendants brought an application to reopen their case to call evidence from the plaintiff's brother, a resident of India, and to tender a large volume of computer and telephone records, some of which (especially the telephone conversations) appear to have been illegally recorded. So large was the amount of material tendered that the attachment could not be opened on the court's computer system. Most of the relevant documentation is now only accessible online. 2. The reason for the late tender of this material appears to be that the plaintiff and his brother have had a falling out and the plaintiff's brother now wants to give evidence from India (along with other residents there) about admissions the plaintiff made to him about the attacking email, which include copies of the illegally made telephone conversations and of computer records the plaintiff is asserted to have hidden from the court. 3. The hearing time had already been used up and both parties had closed their cases. Accordingly the defendants required leave to reopen their case. 4. The principles for reopening a case and recalling witnesses or seeking leave to adduce further evidence are set out in Reid v Brett [2005] VSC 18 at [41]. The relevant principles governing the exercise of discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered are: 1. the further evidence must be not merely admissible, or even relevant, but so material to the case that the interests of justice require its submission; 2. the further evidence, if accepted, would most probably affect the result of the case; 3. the further evidence could not by reasonable diligence have been discovered earlier; and 4. no prejudice would ensure to the other party by reason of the late admission of the further evidence. 1. I have also had regard to the principles set out by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267. 2. I have already decided the case in favour of the defendants and nothing further is gained by granting leave to reopen. 3. Even if I had found for the plaintiff, I would not have been prepared to grant leave to reopen. The chronology demonstrates that the defendants were talking to the plaintiff's brother over a long period of time prior to bringing this application and they elected not to tell the court this, but to give other explanations for delay in relisting the hearing, such as the claim that they wanted access to the Supreme Court file. The experts had given their evidence and been cross-examined and would probably have had to be recalled, given the nature of some of the evidence. The logistics of calling witnesses from India (even assuming they came to Australia to give evidence) and the amount of time involved would have been disproportionate in terms of the interests of justice as set out in s 61 Civil Procedure Act 2005 (NSW). 4. In 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 the Court stated: "[69] In the Full Court, Players submitted that a strict approach to the requirements for a court to set aside its own perfected judgment, which confined the general power to fraud, would have an absurd consequence. It would mean that misconduct that is discovered before an appeal might be sufficient for the appellate court to order a new trial but if discovered after the appeal then it would not be sufficient. There is nothing absurd about this consequence. As Debelle AJ correctly observed in the Full Court, the submission ignores the interest of finality in litigation. As five members of this Court said in Burrell v R, the interest of finality means that "[l]ater correction of error is not always possible. 353 ALR 24 at 43 If it is possible, it is often difficult and time-consuming, and it is almost always costly." Even then, if the misconduct amounts to fraud, equity supplies a narrowly defined exception to the principle of finality that permits rescission of a perfected judgment by the original court even after the appeal process has been concluded. [70] This litigation is a good illustration of the need for a strict approach to finality. The trial judgment which was set aside on Players' application, and the new trial which was ordered, concerned events that occurred nearly 25 years ago. The original 29-day trial was held almost 13 years ago. Issues related to the trial have been the subject of three appeals to the Full Court of the Supreme Court of South Australia, three applications for special leave to appeal, and the present appeals to this Court. Even apart from the non-financial impact upon the parties of the prolonged dispute, the legal costs of these proceedings must be many multiples of the underlying value of the licences, which, at best, was $750,000." [footnotes omitted] 1. While the degree of delay here is much smaller, so are the sums of damages involved. The bringing of applications of this nature undermines the principles of finality in litigation. 2. There are many examples of court proceedings which come to an end after many years of litigation "without the slightest benefit to any of the litigants" (to use the words of Starke J in Webb v Bloch, when describing the trigger to the matter complained of, namely prolonged litigation). The prolonging of this litigation is not to be encouraged. 3. Accordingly the defendants' application to reopen their case must be refused. Costs 1. While I have granted liberty to apply in relation to interest and costs, I have made some costs orders, and will make general observations concerning the issues remaining to be determined. 2. The parties in these proceedings have expended vast sums of money before acting for themselves. The sum of damages awarded on the cross-claim is very modest. 3. There are substantial factors going against the making of an order for costs to follow the event. Some would be as follows: 1. While the parties were represented, considerable costs were wasted by vacated hearings and applications which resulted from the parties' disorganised conduct of the case. I have been shown memoranda of fees on both sides for fees in excess of half a million dollars. 2. During the hearing before me, at all relevant times, the parties have acted for themselves. Litigants in person are only entitle to claim disbursements. I note that in Brisciani v Piscioneri (No 4) [2016] ACTCA 32, where both parties represented themselves, the costs order made was that each party "should pay their own costs as applicable". 3. The cross-claim was barely mentioned during the hearing and is the subject of submissions which are, at best, desultory. They have resulted in a very small award of damages. In Milne v Ell [2014] NSWCA 407 the Court of Appeal not only dismissed an appeal from a refusal of McCallum J to award costs in proceedings where the award was $15,000, but awarded no costs in the appeal. 4. The costs assessment of these proceedings will be an onerous and difficult task if it is conducted in the same combative way as this litigation. 1. Taking into account the difficulty that the parties have had in making submissions on liability and damages, I have taken the course of setting out some costs orders that I consider would adequately cover the most relevant costs, namely the defendants' reasonable disbursements for the hearing and the costs of the cross-claim, which I consider would be appropriate to award to the defendants. I have given liberty to apply in relation to any claim for costs by the defendants' former solicitor but that must be done within 28 days, and there is a self-executing order to this effect. These proceedings must be finalised. 2. One exception to this liberty relates to the costs for to vacated hearings of these proceedings. The main responsibility for the adjournments during the hearing and a number of the vacated trial dates lies upon the defendants. Rather than try to sort out which times the defendants were responsible and which times the plaintiff was responsible, I take the view that the fairest way to apportion liability is to make an order for each party to pay his own costs in relation to the vacated hearing, but that the defendants should be entitled to their reasonable disbursements for the duration of the trial. 3. The other exception to the liberty to apply for the defendants' former solicitors is the question of costs of the referral of the plaintiff to the Supreme Court. In Johnston v Nationwide News Pty Ltd [2005] NSWCA 17, Ipp JA stated that there was "a real question" as to whether the District Court had the power to make such an order: "[23] I turn now to the application for leave to appeal against the order for costs made by Sorby DCJ against the claimant. In my opinion, for the following reasons, the application for leave to appeal against this order should also be dismissed. [24] Firstly, there is a general reluctance on the part of the Court to grant leave to appeal in respect of costs orders alone. Secondly, no submission was made to Sorby DCJ that the Court had no power to make an order as to costs. Thirdly, while Mr Leopold submitted that the Court had power to make a costs order under s 148B(1)(a) of the District Court Act, Mr Evatt, for the claimant, did not contend to the contrary. Fourthly, Mr Evatt said that he had no separate submission as to costs in addition to those based on his argument that the judge had made errors in determining whether or not he should make a reference to the Supreme Court. [25] Accordingly, while I consider that there is a real question as to whether the District Court has power to make a costs order when an application is made under s 203, I do not think this is an appropriate vehicle for the consideration of that question." 1. There is no reference to costs in the judgment of Elkaim SC DCJ dated 2 October 2013 or in the subsequent transcript following that referral. In the circumstances, I propose not to make any orders for costs in relation to this issue other than to direct the parties to bear their own costs. I note that the plaintiff was subject to a costs order in the Supreme Court and it may well be that these orders (about which I have not been provided with any information) will suffice. Orders 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2018