Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mallegowda v Sood [2019] NSWCA 37 Hearing dates: 20 February 2019 Date of orders: 20 February 2019 Decision date: 05 March 2019 Before: Gleeson JA; McCallum JA Decision: The summons seeking leave to appeal is dismissed with costs. Catchwords: CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – whether primary judge erred in admitting into evidence expert report based on documents produced under subpoena – whether subpoena should not have been issued without leave prior to close of pleadings – whether primary judge erred in applying test in Webb v Bloch – whether primary judge erred in giving insufficient weight to oral testimony of expert witnesses – whether appeal has sufficient prospects of success Legislation Cited: Defamation Act 1974 (NSW), s 7A District Court Act 1973 (NSW), s 127(20)(c) Uniform Civil Procedure Rules 2005 (NSW), r 7.3 Cases Cited: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288 Joseph v Spiller [2011] 1 AC 852 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (No 6) [2018] NSWDC 281 Prothontory of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 Scott v Jones [2003] NSWSC169 Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 Category: Procedural and other rulings Parties: Shashikanth Mallegowda (applicant) Amit Sood (first respondent) Naveen Lingaiah (second respondent) Representation: Counsel: Applicant self-represented Bruce Connell (respondents) Solicitors: Blaxel Law (respondents) File Number(s): 2018/202161 Publication restriction: No Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: [2018] NSWDC 281 Date of Decision: 29 June 2018 Before: Gibson DCJ File Number(s): 2012/352080 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: My reasons for joining in the orders of the Court made on 20 February 2019 accord with those of McCallum JA. 2. McCALLUM JA: Mr Shashikanth Mallegowda sought leave to appeal against a judgment in proceedings for defamation in the District Court. Leave was required under s 127(2)(c) of the District Court Act 1973 (NSW) because the value of the claim did not exceed $100,000. 3. On 20 February 2019, the Court refused leave to appeal with costs, reserving reasons. These are my reasons for joining in that order. Proceedings before the primary judge 1. The hearing of the claim presented a difficult task for the primary judge (Gibson DCJ). Mr Mallegowda was the plaintiff. There were two defendants, Mr Amit Sood and Mr Naveen Lingaiah. All three parties were unrepresented. There was extreme hostility between the plaintiff on the one hand and the two defendants on the other. The parties' lack of legal training combined with their determination to pursue every point meant they not only gave no assistance to the primary judge but made her task more difficult in many respects. 2. The parties were all members of the Indian Association of Newcastle. The events giving rise to the defamation action occurred in circumstances of considerable conflict within the governing committee of that association. On 21 August 2012, an anonymous email (referred to in the proceedings as "the attacking email") was sent to members of the association, in short, accusing Mr Sood, who was then the treasurer of the association, of fraud and corruption. 3. After making inquiries, Mr Sood formed the view that the applicant was responsible for sending the attacking email. On 21 September 2012, he published an email to members of the association accusing the applicant of making false accusations against him. That was the first matter complained of by the applicant in the primary proceedings. On 24 September 2012, Mr Lingaiah sent a further email also accusing the applicant of making false accusations against Mr Sood. That was the second matter complained of in the primary proceedings. 4. The defences included a defence of justification. In addition, Mr Sood filed a cross-claim against the applicant for defamation based on the attacking email. Accordingly, a central issue in the proceedings before the primary judge was whether the applicant had published the attacking email. The applicant strongly denied doing so. 5. The resolution of that dispute occupied a very substantial amount of the hearing time and involved evidence from three expert computer forensic witnesses. The central question addressed by the experts was the identity of the person responsible for creating two Gmail accounts from which the attacking email and a further email were sent (on 21 August 2012 and 26 August 2012 respectively). Based on the evidence of the experts, the primary judge found that the plaintiff created both accounts. [1] The primary judge further held that the applicant, having created those accounts, was liable for publication of the attacking email and on that basis found that the defences of justification were made out. 6. The experts' opinions were based to a significant extent on two documents produced by Google Inc in response to subpoenas issued at an early point in the proceedings. The principal issue sought to be agitated in the appeal was the admissibility of those documents. Mr Mallegowda contends that the Google documents were never admitted into evidence and were inadmissible. On that basis, he seeks to impugn the finding that he was a publisher of the attacking email. 7. The argument was based in part on the circumstances in which the Google documents were obtained by the defendants. The documents were produced to the Newcastle Registry of the District Court (where the proceedings were commenced) in response to a subpoena issued at the request of the defendants before the pleadings were closed and indeed at a time when there was no pleading of the plaintiff's claim, an amended statement of claim having been struck out as "non-compliant". [2] 8. At some point the matter was transferred by consent from the Newcastle Registry to the Defamation List in Sydney. In the meantime, the defendants had already inspected the documents produced by Google Inc to the Registry in Newcastle. There was at that time an outstanding issue as to access to documents produced in response to a different subpoena addressed to a hospital. On 3 May 2013, Bozic SC DSJ stood over the outstanding issues regarding access to the hospital documents to be dealt with after the close of pleadings. 9. When the matter came before the primary judge as Defamation List Judge on 12 June 2013 (for argument as to what must have been the third further amended statement of claim), her Honour evidently took the view that the subpoenas issued at the request of the defendants up to that point should not have been issued without leave. Her Honour made the following order (order 7): "Any notice of motion in relation to the subpoenae issued in these proceedings is to be returnable for 21 June 2013, but in the event that no such notice of motion is filed the Court will return all documents produced on subpoena to their owners." 1. In a judgment published on 21 June 2013, her Honour explained at [3]: "The issue raised by order 7 in the orders I made on 12 June 2013 is a case management issue, namely what is to happen to documents produced under subpoena by [the hospital and a health authority] produced pursuant to subpoenae issued by the defendants on 1 March 2013 and the subject of an outstanding notice of motion to set aside the subpoenae I filed on 18 March 2013." 1. The defendants did not file any notice of motion in accordance with order 7. During argument on 21 June 2013 as to the fate of those documents, Mr Connell, who appeared for the defendants, conceded that the medical records must be returned to the hospital and authority in question but informed her Honour that a further 18 subpoenas had been issued and that documents had been inspected. He indicated that he had not understood the judge's order to apply to those documents (which, according to the passage of the judgment set out above, it did not). Mr Connell sought an extension of the time within which to bring an application for leave to retain those documents. That application was refused and her Honour made an order in the following terms (order 1): "No application having been brought by the defendants in accordance with order 7 made on 12 June 2013, all documents produced on subpoena by any party or person are to be returned by the Newcastle Registry forthwith." 1. No order was made concerning the fate of any copy that had been obtained by the defendants in the meantime. 2. Judge Gibson's reasons for making the order requiring documents to be returned to the parties that had produced them began as follows at [37]: "The subpoenae and notice to produce referred to in order 4 made by Bozic SC DCJ should not have been issued without leave. Parties generally may not seek documents (whether by discovery or otherwise) in a 'fishing expedition' prior to filing a pleading or answering particulars of the pleadings (W A Pines Pty Ltd v Bannerman (1980) ATPR 40-163; Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN (NSW) 250). This is particularly the case in defamation, where subpoenae to third parties may not be issued at an early stage without the leave of the court (Scott v Nationwide News Pty Ltd [2005] NSWSC 169 at [8]-[10]); such leave is granted only after careful review of the nature of the documents sought from the non-party: Buswell v Carles [2012] WASC 509." 1. The citation for the decision referred to as Scott v Nationwide News Pty Ltd is wrong. It appears her Honour may have intended to refer to the decision of Levine J in Scott v Jones [2003] NSWSC 169. However, that decision is not authority for the proposition that the issue of subpoenas to third parties at an early stage in defamation proceedings requires the leave of the Court. The only requirement for leave of which I am aware is that imposed on an unrepresented litigant by r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW). Scott v Jones was a case concerning an application to have a subpoena set aside. Further, the basis on which the subpoena was set aside in that case was that the proceedings fell to be determined in accordance with the old procedure under s 7A of the Defamation Act 1974 (NSW) in which the jury determined the issue of defamatory meaning before any defence was required to be filed. Appeal grounds 1. The applicant sought to rely on the following grounds: 1. The primary judge erred in allowing the written expert report of Dr Alan Watts dated 19 June 2013 (the Watts Report) and the Joint Expert Reports dated 24 July 2014 and 22 December 2014 to be admitted into evidence when: 1. the expert opinion posited by Dr Watts was based upon a document produced by Google Inc (the "Google Document") under subpoena; 2. the Court had decided in Mallegowda v Sood [2013] NSWDC 98 at [37]-[45] that the respondents ought not have been granted access to the documents produced by Google Inc, including the Google Document; 3. the Court had ordered the documents produced by Google Inc under subpoena which had been inspected by the respondents, including the Google Document to be returned to the Newcastle Court Registry; 4. the authenticity of the Google Document was in dispute and was the subject of challenge by the applicant; and 5. the respondents chose not to call a witness to authenticate the Google Document at the hearing. 1. The primary judge erred at [65]-[67] and [220] of the decision below in finding that the applicant was the publisher of the so called "attacking email" be relying (sic) upon in the Watts Report, Joint Reports and the Google Document upon which it was premised. 2. The primary judge erred in failing to give reasons for the admission into evidence of the Google Document. 3. The primary judge ought to have: 1. rejected the tender of the whole of the Watts Report; or alternatively 2. rejected those parts of the Watts Report and joint expert report that relied upon or referred to the Google Document as the basis of forming the expert opinion. 1. The primary judge erred at [217] and [220] of the decision by concluding that the Applicant's role in the setting up of an email account was sufficient to amount to him being a publisher when applying the relevant test under Webb v Bloch (1928) 41 CLR 331. 2. The primary judge erred in failing to properly take into account the oral testimony of the expert witnesses insofar as that evidence was at odds with the joint expert reports, their individual reports and the evidence of fact given by the lay witnesses. 1. Proposed grounds 1 to 4 rest on the proposition that the Google documents were inadmissible because of the circumstances in which it came into the possession of the defendants and because they failed to prove its authenticity. 2. It was submitted that, as the subpoena was issued without leave, the circumstances in which the defendants obtained the Google documents amount to an abuse of process. There is no merit in that argument. To the extent that the primary judge decided, in her earlier interlocutory judgment in Mallegowda v Sood, that the subpoenas issued at an early stage in the proceedings should not have been issued "without leave", with great respect to the primary judge, the correctness of the decision may be doubted. Assuming her Honour intended to cite Scott v Jones as authority for that proposition, it is not. The decision does support the proposition that a subpoena issued prior to the close of pleadings may be liable to be set aside, but in a different statutory context. 3. Further and in any event, Gibson DCJ did not order that copies obtained by the defendants upon inspection of the subpoenaed documents be returned to the Registry, as asserted in proposed ground 1(c). The order contemplated only that the Registry would return the documents that had been produced to the parties that had produced them. Even if the defendants were not entitled to retain possession of the copies they had obtained (which has not been established), the position was regularised at a later point in the proceedings when they issued a further subpoena (in response to which Google Inc wrote to say they had already produced the documents). 4. The authenticity of the Google documents was in issue. The defendants issued a notice to admit to which the applicant responded by disputing their authenticity. However, no particular doubt was raised as to their provenance. The treatment of the documents at the hearing was confusing and at times inconsistent. They were tendered by the applicant as part of a large court bundle but later the subject of an objection by him. The primary judge appears at times to have treated the documents as already being in evidence and in for all purposes whilst at other times acknowledging the applicant's entitlement to make submissions concerning their admissibility at a later time. 5. In any event, however those events unfolded, there is no utility in granting leave to argue grounds 1 to 4. There is an overwhelming inference that the Google documents are business records of Google Inc. That is to be inferred from the nature of the documents, the fact that they were produced in response to a subpoena and from the content of the correspondence under cover of which they were produced: cf Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja. [3] The applicant has not established any basis for the contention that the defendants in the primary proceedings needed to call a witness from Google Inc in order to establish the admissibility of the documents. 6. As to the relief sought on those grounds, the applicant seeks orders that the experts' evidence (including the joint expert reports in which the applicant's two experts participated) be excluded and that the proceedings be remitted for further hearing without that evidence. That is not a form of relief this Court would grant. If the matter were remitted for further hearing on the strength of grounds 1 to 4, the likely outcome would be that the Google documents would be admitted into evidence and the result would be the same. 7. Ground 5 raises a question as to the application of the test in Webb v Bloch. [4] The applicant contends that the primary judge is to be understood to have held that he was liable as a publisher of the attacking email merely because he set up the email account from which it was sent, even though her Honour was evidently not satisfied that he composed the email [5] or even that he actually sent it. If the finding was based on the bare act of establishing an email account, without more, there would be a reasonably arguable ground of appeal against that part of the decision. However, as submitted by Mr Connell, it is clear that her Honour was further satisfied that the applicant established the account for the single purpose of sending or allowing the sending of the attacking email in order to enable the author of the email to escape attention. The reasons for that finding are stated at [216] and [217] of the primary judgment. With that further finding, the decision falls comfortably within the principles in Webb v Bloch. 8. The applicant relied in this context on the decision of this Court in Dank v Cronulla Sutherland District Rugby League Football Club. [6] That case was concerned with the question whether a source who provides material for attribution to a journalist but has no control over the final article is liable as a primary publisher of the article. The position of a person who establishes an email account for the purpose of allowing another person to send an anonymous, defamatory email is different and clearly falls within orthodox principle. 9. Ground 6 concerns an alleged failure to have proper regard to the oral evidence of the experts. The formulation of the ground implicitly acknowledges that her Honour did have regard to that evidence. The basis for the contention that her Honour overlooked its significance or otherwise erred in her treatment of that evidence was not well explained. The applicant's submissions did not persuade me that there is any merit in that point. 10. For those reasons, I was not satisfied that the proposed appeal enjoyed sufficient prospects of success to warrant a grant of leave. 11. There are three further reasons for refusing leave. The first is the fact that the judge found against the applicant on the additional basis that a defence of statutory qualified privilege was established. [7] As submitted on behalf of the respondent, the premise of that defence is that the matters complained of were defamatory. A successful attack on the finding that the applicant published the attacking email would not undermine the judge's conclusion as to that defence. 12. Secondly, it is doubtful whether, even if the applicant was successful in the appeal and in a further hearing, he would receive an award of more than nominal damages. The primary judge proceeded to assess damages, in case she had erred in finding for the defendants, finding that this would be a case where it would be appropriate to award zero damages. I should acknowledge that that assessment was not undertaken on the alternative premise that the applicant was wholly successful. Her Honour made her assessment on the mixed premise that "the role [the applicant] undoubtedly played in creating the email address was insufficient to amount to publication". On that assumption, her Honour placed significant weight on the discreditable nature of the act of participating in the sending of an anonymous defamatory email. Her Honour did not proceed to quantify damages on the more favourable hypothesis that the applicant played no role whatsoever in those events. However, even on that more favourable hypothesis, there was little prospect of a substantial award having regard to the limited circulation of the publication, the nature of the imputations and one further matter. The primary judge had regard to the fact that, during the proceedings, the applicant was dealt with for contempt of court in relation to his conduct concerning a witness in the case. [8] The applicant noted, as Adams J recorded in the sentencing decision, that there were significant mitigating factors contributing to his commission of that offence but his conduct was nonetheless relevant in the assessment of damages and had the potential to reduce them significantly. [9] 13. Finally, leave should be refused on the grounds of proportionality. The hearing before the primary judge proceeded over 25 days over almost two years (due in part to the interruption of the contempt proceedings). It involved three experts who prepared two joint reports. There is already grave disproportion between the resources that have been expended on the case and the interest at stake, even if it is assumed that the plaintiff would be entitled to more than a nominal award of damages. ********** Endnotes 1. Mallegowda v Sood (No 6) [2018] NSWDC 281 at [205]. 2. Mallegowda v Sood [2013] NSWDC 98 at [10] 3. [2018] NSWCA 26 at [98] per Leeming JA; Basten and Gleeson JJA agreeing at [1] and [2]. 4. (1928) 41 CLR 331; [1928] HCA 50. 5. Mallegowda v Sood (No 6) at [242]. 6. [2014] NSWCA 288 at [127]-[144]. 7. Mallegowda v Sood (No 6) [2018] NSWDC 281 at [270]. 8. Prothontory of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087. 9. Joseph v Spiller [2011] 1 AC 852. 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: 05 March 2019