District Court New South Wales Medium Neutral Citation: Mallegowda v Sood (No. 5) [2017] NSWDC 470 Hearing dates: 1 June 2017 Date of orders: 01 June 2017 Decision date: 01 June 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Stand over the defendants' notice of motion to the trial on 9 August 2017, by reason of the nature of the application, extent of documentation and its lateness. (2) Costs reserved. (3) Note that the defendants have been advised that if they are granted leave to call Mr Raghu Hassan Mallegowda at the hearing, the plaintiff will be entitled to call evidence in reply regardless of whether this occasions a further adjournment or not. (4) Stand over the plaintiff's complaints regarding Mrs Sood not being called as a witness to the trial on 9 August 2017. (5) Mr Mallegowda may, similar to Mr Sood, provide his address for service in a sealed envelope to the court. (6) Grant the second defendant leave to apply to Gibson DCJ by notice of motion for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services, such applications to attach full copies of the subpoenas to be served. Catchwords: TORT – defamation – hearing adjourned shortly before its conclusion so that plaintiff can prepare medical reports for his sentencing in the Supreme Court for contempt of court in relation to his conduct towards a witness in the defamation proceedings – appropriate orders to address the defendants' concern about their safety – trial management problems resulting from defendants' subsequent unreadiness for trial – defendants bring application to call extensive further evidence of justification which has not been particularised – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62 Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) District Court Act 1973 (NSW), s 203 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399 Hearne v Street (2008) 235 CLR 125 Ketteman v Hansel Properties Ltd [1987] AC 189 Mallegowda v Sood [2013] NSWDC 98 Mallegowda v Sood (District Court of New South Wales, Elkaim SC DCJ, 2 October 2013) Mallegowda v Sood (No. 2) [2014] NSWDC 216 Mallegowda v Sood (No. 3) [2015] NSWDC 14 Mallegowda v Sood (No. 4) [2016] NSWDC 88 Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570 Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994) Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of New South Wales, Hunt J, 20 October 1986) Texts Cited: Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) Category: Procedural and other rulings Parties: Plaintiff: Shashikanth Mallegowda First Defendant: Amit Sood Second Defendant: Naveen Lingaiah Representation: Plaintiff: In person First Defendant: In person Second Defendant: In person File Number(s): 2012/352080 Publication restriction: None Judgment Introduction 1. These are reasons for the orders I made on 1 June 2017. 2. These are proceedings for defamation the history of which is set out in a series of decisions other judges managing the Defamation List have handed down (including Mallegowda v Sood (District Court of New South Wales, Elkaim SC DCJ, 2 October 2013) and I have dealt with in my capacity as trial judge for first hearing which had to be adjourned (Mallegowda v Sood (No. 2) [2014] NSWDC 216; Mallegowda v Sood (No. 3) [2015] NSWDC 14); and in relation to the current part heard hearing (Mallegowda v Sood (No. 4) [2016] NSWDC 88). I also handed down a judgment on a subpoena issue while the proceedings were being case managed by the Defamation List judges: Mallegowda v Sood [2013] NSWDC 98. The first, second, third and fourth vacated hearing dates 1. These proceedings were listed for hearing on four occasions in circumstances where the hearing had to be vacated. The first adjournment occurred where, shortly before the hearing, the defendants served expert evidence very late (Mallegowda v Sood (No. 2) [2014] NSWDC 216). The second occasion, which was not the fault of the parties, occurred when the proceedings were not reached in the Newcastle sittings in December 2014, on which occasion the following orders were made: 1. Specially fix these proceedings for hearing in the sittings commencing 16 March 2015 (with an estimate of 2½ to 3 week). 2. This hearing is not to be adjourned other than in exceptional circumstances. 3. The parties' argument concerning the defence of contextual justification is listed on Thursday 29 January 2015 in Sydney before Gibson DCJ, noting that this is the sole outstanding interlocutory argument and no further interlocutory applications may be brought. 4. Extend time for the experts' joint conclave and report to 22 December 2014. 5. Costs of today reserved. 1. The reason for the transfer to Newcastle was that the proceedings had originally been commenced there, all the parties and witnesses came from that area, relevant documents and subpoenaed parties were in the Newcastle area, and it was the wish of the parties. 2. On 16 March 2015, these proceedings were listed before his Honour Judge Mahony SC for hearing. His Honour made the following orders: 1. Listed for hearing on Monday 23/3/15 at 10am. 2. Leave for the Plaintiff to file in court today NOM dated 16/3/15. 3. Order 3 in Plaintiff's NOM is not granted. 4. Grant leave to Plaintiff to allow his wife to assist him at the bar table. 5. Leave granted for Def to issue subpoena to Mr Craig Arthur Thompson. 6. Costs of today are costs in the cause 7. Note: Defs have reserved position on aspect of plaintiff's wife being present at bar table. 1. For reasons that are not apparent from JusticeLink, his Honour then made orders on 24 March 2015 standing the proceedings to 30 March 2015, on which date his Honour made the following order and notation: 1. This matter is listed for Hearing on 4 May 2015 10:00 AM before the District Court - Civil at Newcastle. 2. Remarks: Not Reached at current sittings commencing 16/3/15. 1. The plaintiff and defendants then filed notices of motion. Only the plaintiff's motion was heard by his Honour Judge Robison on 10 April 2015, on which date the following orders were made: 1. I decline to make the orders sought in paragraph 1. 2. Note order in paragraph 2 is not pressed. 3. As to notice of motion filed by the plaintiff, I decline to make the orders sought. 4. The motion is dismissed. 5. Exhibits be returned forthwith. 6. Order plaintiff is to pay the defendants' costs as agreed or assessed. 7. As to the defendant's notice of motion filed 27/3/15 stood over for hearing before Defamation List judge 9.30 am 16/4/15. Any judge may hear the matter. 8. Note that plaintiff will seek to obtain legal representation for the purposes of the orders sought in the motion. 9. Note that it is the view of this court that the plaintiff should be afforded a final chance to obtain legal representation. 10. The costs thrown away as a result of the adjournment reserved for trial judge. 11. Exhibit 3 be returned forthwith. 1. The matter next came back before me on 16 April 2015, on which date the following orders were made: 1. On the application of the plaintiff, which is not opposed by the defendants, the proposed trial date of 4 May 2015 is vacated. 2. The parties given leave to approach the List Judge at 2:00pm today to seek a hearing date for these proceedings as a 3 week+ trial in Sydney (claim and cross-claim) involving a total of 28 witnesses, including three expert witnesses. 1. On the same day, the List Judge, his Honour Judge McLoughlin SC, fixed the matter for hearing on 2 May 2016 in Sydney, with a four week estimate. 2. The hearing commenced before me and was conducted on 2, 3, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24, 25 and 26 May 2016. Only three sitting days remained, and the trial had been run almost to completion, with three witnesses yet to give evidence for the defendants. These proceedings still are currently part heard before me, with the balance of the hearing being set down for three days commencing on 9 August 2017. 3. The reason for the proceedings becoming part heard three days before the end of the four-week trial, and remaining part heard to this day, are exceptional. During the case management of these proceedings in the defamation list by Elkaim SC DCJ, the plaintiff had been referred to the Supreme Court for determination of contempt of court pursuant to s 203 District Court Act 1973 (NSW) (Mallegowda v Sood (District Court of New South Wales, Elkaim SC DCJ, 2 October 2013)). The relevant facts related to an approach the plaintiff made to a witness in an attempt to prevent him from giving the evidence he proposed to give in support of the defendants. The plaintiff entered a plea of guilty. 4. The proceedings were nevertheless able to proceed before me for hearing and, as noted above, all but three of the defendants' witnesses gave evidence, as well as all of the plaintiff's witnesses. In the fourth week of the four-week hearing, the proceedings adjourned in part for the preparation of medical reports to be prepared for the purposes of the plaintiff's sentencing and in part because of the relevance of those sentencing documents to the defamation action. All parties agreed that adjournment was the necessary course, in part because the defendants wanted access to the court file to tender relevant documents in the part-heard hearing, and this could not occur until the criminal proceedings were resolved. 5. The proceedings were given a fresh hearing date of 24 August 2016 for three days, this being a date agreed to by the parties as being likely to be after the plaintiff's sentencing. This would have been the fourth time the proceedings were listed for hearing, if the vacated hearing dates prior to my hearing these proceedings are taken into account, and it was not a date to be vacated lightly. The adjournment of the 24 August 2016 hearing date 1. Following the plaintiff's sentencing (Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087), the defendants told the Court they propose to seek access to the Supreme Court for the purpose of tendering material relied upon for the purposes of the Supreme Court proceedings to be tendered in this Court. This required an application to the judge determining these issues: Hearne v Street (2008) 235 CLR 125. No application to the Supreme Court by way of notice of motion or other application was made. 2. On 4 August 2016, the plaintiff wrote to my associate consenting to the defendants' request to adjourn the hearing date of 24 August 2016: "Dear Mr Mok, I am writing this email to you to pass on to her honour DCJ Gibson about vacating the listings on 24 August 2016. The contempt proceedings sentencing was supposed to be heard on 15 July 2016 but following orders were made. The following hearing dates are vacated:15 Jul 2016 10:00 AMReason: OtherOther Reason: This 15 July date was listed to allow time for the report from Community Office to be prepared. Per assoc to Adams J today, that report has been received & requested to vacate 15 July as no specific date has been set down as yet for the Sentence. She will advise date in due course, meanwhile 30 Dec date has been listed tentatively for Sentence until a new date is set to replace 30 Dec 2016. There are lot things which are common in both the proceedings and defendants had extensively argued on the day 1 of the hearing that they want to wait for the contempt of court proceedings outcome first so that they can use the materials from that proceedings and I also strongly agree with them on this issue, so I respectfully request to vacate the 24 Aug 2016 listing until the sentencing is over. I'm available for any dates except for October 2016. I confirm that I have copied this email to both the defendants. Regards Shashikanth Mallegowda (Plaintiff)" [Emphasis added] 1. My associate replied no 4 August 2016 as follows: "Dear Sir, Her Honour is aware that the defendants and cross-claimant wish to rely upon evidence which will only become available after the sentence has been imposed. If all parties agree to vacate the hearing date, her Honour is happy to oblige. The matter can then be listed for the hearing to continue after subpoenas in relation to the relevant documents in the sentencing proceedings can be issued and answered. However, if the defendants no longer wish to use this material, the hearing can continued as planned. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 5 August 2016 at 4:35pm, the plaintiff wrote again to my associate, but has changed his mind as to vacating the 24 August 2016 date: "Dear Mr Mok, I have just received a phone call from my solicitor advising that the sentencing is on 9 Aug 2016. I therefore suggest not to vacate the listing on 24 Aug 2016. I copied this email to the defendants. Regards Shashi Sent from my iPhone" 1. My associate and I were about to go on circuit and we were unable to reply to this email until the subsequent week. 2. On 10 August 2016, the first defendant replied to Mr Mallegowda's 5 August 2016 email as follows: "Dear Mr Mok, The defendants are now aware that Mr. Mallegowda was sentenced yesterday. The judgement is expected to be out soon. I am in touch with the relevant court authorities to obtain documents, transcripts judgement and other information which will allow us to adduce the evidence. Obtaining all relevant information will take its due course of time and we believe that the process is expected to take a bit longer than until 24th Aug. Under such circumstances we request Her Honour to vacate the dates for the trial and new dates be decided in due course. We will be very thankful if our request can be considered and accommodated as it impacts the arrangements that both the defendants need to make. I confirm I have included all the parties in the email." 1. My associate replied on 10 August 2016 as follows: "Dear Sir, I am writing to confirm that I am in receipt of the parties' correspondence in the past week. Judge Gibson is currently away on circuit and is part heard in a trial. We will endeavour to provide the parties with a reply in the next couple of days (if not today). Kind regards Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. Later that day, on 10 August 2016, Mr Mallegowda wrote to my associate as follows: "Dear Mr Mok, Firstly I would like to confirm that the contempt proceedings is over and yesterday the sentencing was suspended with good behaviour bond. The following are reason why the trail [sic] must not vacate 1. The defendants never approach the court for any vacation of trail even though when the contempt matter was list for 30 December from many months. 2. I was the first person to approach the court to vacate the hearing consider the sentencing on 30 December 2016 and in less than 1 day I withdrawn my request when the sentencing was listed on 9 Aug 2016. 3. The subpoenas filed in the other court are irrelevant to these proceedings (example Immigration status of my father-in-law, school attendance records of my children, my bank statements, etc...). Even if the leave is given, I will seek order to set-aside those subpoena to fetch materials from another subpoenas from another jurisdiction. 4. The only relevant material that matters in this court is that the transcripts of the evidence of the common witnesses Mr Gowda, Mr Ramachandra and Mr Lingaiah because all of them have given evidence in that court and most of them are very common in these proceedings. 5. Part-heard hearing always have tendency of prejudice as the defendant are still fishing to bring new witnesses to the trail. 6. Even if they would like to use any other relevant materials from the contempt proceedings, they can simply subpoena the crown solicitors and get them in less than 2 days. 7. I was cross-examined for 3 times and my all other witness were also cross-examined , so they need special leave to reopen their case if they want to further cross-examine myself or recall other witnesses based on new materials. 8. On all circumstance the defendants falsely blamed the plaintiff for delay tactics but now their request to vacate the trail clearly demonstrates that they postponing purposefully to delay the proceedings. 9. The defendants are already hiding in remote places and not giving their proper addresses and defendants have already sold their properties for judgement proof. The delays further make difficulty for any enforcement in the event the plaintiff gets the judgement. 10. The defendants request to vacate the trail will defeat the overriding purpose of civil procedure act to run cases in JUST, QUICK AND CHEAP manner. This case is now close to 4 years now and any further suitable dates will not before December or next year. I had enough of going through the various litigations from 4 years which are off shoot from this [sic] proceedings, so I need to put this proceeding to bed as soon as possible and move on in my life. On all the above basis, I strongly oppose and object to vacate the trail. Regards Shashi" 1. My associate replied on 12 August 2016 as follows: "Dear Mr Mallegowda, All parties told Judge Gibson that the hearing could not go ahead on the dates planned. Acting on that assurance, Judge Gibson has listed other hearings. For that reason alone, the hearing cannot proceed on the dates previously listed. It will be in the interests of all the parties if the relevant documents from the criminal proceedings are obtained and provided to the court. That will include the sentence, which the sentencing judge may need to revise. These steps take time. Accordingly, the proceedings will be listed for directions only, and the parties should all be in a position to advise what outstanding steps remain. However, delay by the parties will not be encouraged. In particular, if the defendants have not issued their subpoenae prior to the directions hearing date (which will be on the first date of the adjourned hearing dates), and are not in a position to tell the court when they are ready, a fresh hearing date will be allocated without any further allowance for delays in obtaining documents from the criminal proceedings. It is in all parties' interests that they should be able to tell the court what additional subpoenae have been issued and when the material sought is likely to be produced, as these proceedings must be finalised quickly and on dates suitable to the court. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 18 August 2016, the first defendant wrote to my associate as follows: "Dear Mr Mok, The defendants would like to respectfully seek leave of Her honour to issue a Notice to Produce on the Plaintiff for the following. 1. To produce all the transcripts of the contempt of the court matter that the plaintiff is in possession of. We had requested Mr. Mallegowda to discover those documents as he had stated in an earlier email to Her Honour that he has the relevant transcripts in his possession. Plaintiff has not responded to our request and hence we intend to issue a Notice to Produce on him. We will be very thankful if we can be granted leave. I can confirm I have copied all the parties in the email. -- RegardsAmit Sood" 1. My associate replied on the same day as follows: "Dear Mr Sood If you propose to tender documents from the Supreme Court, including transcript, and you wish to ensure that you have the correct and full text of the documents, these are best obtained by seeking to obtain the originals from the Supreme Court file. It is a straightforward matter for you to obtain these documents from the Supreme Court, and it is unacceptable for the parties to be sending correspondence of this nature to her Honour. If you are unsure how to do this, you should address your inquiries to the Supreme Court or, preferably, obtain legal advice. Please make your own arrangements to obtain the documents you wish to tender without contacting me, and be in a position to advise suitable dates for hearing when these proceedings are next before the court for allocation of a further hearing date. A copy of this email is being sent to all parties. Yours faithfully, Vincent Mok Associate to Judge GibsonDistrict Court of New South Wales" 1. On 22 August 2016, the plaintiff wrote again to my associate asking about the listing on 24 August 2016: "Dear Mr Mok, I note that the matter is still showing that this matter is listed on 24 August 2016. Could you please confirm the next directions hearing. Regards Shashikanth Mallegowda" 1. My associate replied as follows: "Dear Sir, I am writing to advise that the Mallegowda v Sood matter will be listed for directions only on Thursday 25 August 2016 in the Defamation List. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On the same day, the first defendant sent the following email on behalf of both defendants: "Dear Mr Mok, As per previous instructions we were of the understanding that directions will take place on the 24th hence we booked the flights accordingly and took leave. Can we please request the directions to take place on 24th. Regards" 1. My associate replied as follows: "Dear Sir, In the circumstances, the directions hearing on Wednesday 24 August 2016 will remain. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 24 August 2016, the following orders were made at the directions hearing: 1. Note that Gibson DCJ's Associate will be arranging for the Supreme Court file 2014/168906 to be sent to the District Court. 2. Matter stood over part heard to recommence on Wednesday 9 November 2016 at 10:00am (estimate 3 days). 1. That afternoon, on 24 August 2016, my associate wrote to the Supreme Court Registrars and the Crown Solicitors, who advised there would be objection to production of the documents until the costs in the Supreme Court matter had been heard. 2. It is apparent from this history that the principal reason for this adjournment was the defendants' stated wish to have access to the Supreme Court file. Unfortunately the hearing could not proceed on 9 November because, the defendants complained, they could not get access to this file, which resulted in the second adjournment of these part-heard proceedings and the fifth time overall that the proceedings had suffered a vacated hearing date. The fifth adjournment of the hearing 1. On 3 October 2016, the first defendant wrote to my associate asking for the Supreme Court: "Dear Mr Mok, We respectfully request that as per her honours directions in Aug can you please let us know when the case file for the contempt of court against the plaintiff can be made available to all the parties. As per the directions hearing in Aug defendants would like to use the material available in the case file for their submissions. I confirm I have copied all the parties in the email. -- Yours Sincerely Amit Sood" 1. My associate replied on 5 October 2016 as follows: "Dear Sir, I refer to Mr Sood's email of 3 October 2016. I have since made enquiries of our Registry and the relevant officer informs me that there may be difficulties obtaining the Supreme Court file. In the circumstances, her Honour will list this matter for directions only on Thursday 20 October 2016 in the Defamation List. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. The plaintiff wrote on 6 October 2016 as follows: "Dear Mr Mok, I would like to inform that I'm currently in overseas so not able to attend directions in October. Regards Shashi" 1. Again on 11 October 2016, the plaintiff wrote regarding the listing in October 2016: "Dear Mr Mok, The online registry is still showing 20 October for directions and I have already informed that I could not attend directions in October. So could you please confirm the next directions. Regards Shashi" 1. My associate replied on 11 October 2016 saying: "Dear Mr Mallegowda, I refer to your email of even date. The matter will remain in the Defamation List on 20 October 2016. If you wish to appear by telephone, please provide me with your best contact telephone number overseas so that we can call you from Sydney during the Defamation List on 20 October 2016. Alternatively, you can instruct a lawyer to appear. Please note that this directions date is urgent and will remain. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. Mr Mallegowda replied on the same day to my associate (but not the defendants) with a list of telephone numbers as follows: "Dear Mr Mok, My overseas contact numbers are 1. +91 [redacted]. 2. +91 [redacted]. If in case these numbers does not work, you can call my previous solicitor (Vaikom Rajeev) on [redacted]. I have not copied this email to the defendant's due to privacy. Regards Shashi" 1. On 17 October 2016, following emails from the Supreme Court Registry, my associate wrote to the parties as follows: "Dear Sir, On Friday 14 October 2016, the Supreme Court Registry wrote to the District Court Registry to say there is a notice of motion pending in the Supreme Court ("the motion"). In those circumstances, the Supreme Court is not prepared to release the court file until the motion is finalised. Given this latest update from the Supreme Court, her Honour Judge Gibson proposes to vacate the directions listing on 20 October 2016, the November 2016 hearing dates, and relist the matter in early 2017. In the meantime, this matter will be placed in the Inactive List. I will be in contact with the parties once we have received the Supreme Court file. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. The first defendant replied on the same day as follows: "Dear Mr Mok, Thanks for letting us know. I do not see any issues with Her Honours directions given the circumstances. I will cancel my flight tickets and hotel reservations etc to have minimal financial impact." 1. The second defendant also replied that day as follows: "Dear Mr Mok, Thank you for the update. I concur with the First Defendant and agree with Her Honour's directions. Best Regards, Naveen Lingaiah "I generally reserve my rights and Without Prejudice" Best Regards, Naveen Lingaiah" 1. The plaintiff also replied to my associate that day objecting to the defendants being given access to the Supreme Court file: "Dear Mr Mok, I refer to your email and her honour's proposed directions. I note that the notice of motion in the Supreme Court is with respect to costs only and it contains lot of subpoenas and affidavits which relates to my employment, tax, garnishee and my bank statements and other private information which are totally irrelevant to the defamation proceedings so I strongly object to access of these materials to the defendants otherwise I have no issues to the access of court file until the sentencing as I'm also using the transcripts of that proceedings. In the circumstances, this honorable court should get the supreme court file until sentencing (9 August 2016) and this proceedings should go ahead as scheduled in November to avoid further delays as it already taken 4 years for just 2 emails. I look forward hearing from you soon. Regards Shashi" 1. My associate replied to Mr Mallegowda that day as follows: "Dear Mr Mallegowda, The District Court is unable to obtain the Supreme Court file as the Supreme Court file is still active due to an outstanding motion ("the motion"). According to JusticeLink, the Prothonotary of the Supreme Court of New South Wales filed the motion on 23 August 2016. On 24 August 2016 the District Court matter came before Gibson DCJ. Her Honour was not informed of the motion having been filed in the Supreme Court and hence set down the 9 November 2016 hearing date. In the circumstances, as the documents which the parties agree should be tendered from the Supreme Court file will not be available until the motion has been dealt with. This matter will be placed in the Inactive List until such time the Supreme Court matter has been finalised. We will also vacate the 20 October directions hearing, as well as the November hearing dates. Regards Vincent MokAssociate to her Honour Judge Gibson District Court of New South Wales" The Supreme Court proceedings are concluded 1. On 16 December 2016, Adams J's associate wrote to my associate informing us that the Supreme Court proceedings have been finalised: "Dear Mr Mok, Further to our telephone conversation this morning, I confirm that the Orders as to costs in this matter have now been placed on JusticeLink. I have relayed the information you provided to me to his Honour and to Mr Mark Lacey. Mr Lacey informed me that he was unaware the District Court had requested the file. In any event, Justice Adams remains intrigued as to exactly why the file is requested. Might I suggest that you place your reasons for requesting the file in writing so that I may raise them with Justice Adams? Please do not hesitate to contact me if you have any further enquires. Kind regards, David Cambridge Associate to the Honourable Justice Adams Supreme Court of New South Wales" 1. On 19 December 2016, my associate wrote to the parties, as well as the Adams J's associate and the Supreme Court Client Service Manager, Mr Mark Lacey, notifying them of his Honour's views, in the following terms: "Dear Sir, Mallegowda v Sood (2012/352080) The Supreme Court has advised that the file is now available. As I understand it, the Prothonotary opposed access being granted prior to the proceedings being completed, but may agree to access now that this is the case. However, if you wish to have access to any documents, it will be necessary to relist the proceedings before Justice Adams, notifying all parties to the proceedings (including Mr Mallegowda and the Prothonotary) so that if there is any objection by the parties, they will be able to be heard. Whether or not permission to use any document in the file, or any right to inspect its contents, will be granted is a matter for Justice Adams to determine: Ainsworth v Hanrahan (1991) 25 NSWLR 155. Please note a copy of this email is also being sent to Justice Adams' associate and the Supreme Court Registry. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 20 December 2016, Mr Lacey wrote to Mr Mallegowda as follows: "Dear Shashi, On 24 August 2016 the court received a request from the District Court for production of the Supreme Court file bearing case number 14/168906. At that point in time, the Registrar would not permit the file to be produced to the District Court as the file was still active here. At the conclusion of the Supreme Court proceedings, the Registrar, under rule 33.13 of the Uniform Civil Procedure Rules 2005, produced the file to the District Court. Any further correspondence regarding the production of the file or access should be directed to the District Court. The District Court will contact parties in respect to any issues Regards, Mark Lacey Assistant Manager Client Service Supreme Court of New South Wales" 1. This was, however, incorrect. The file was never produced and remained in the Supreme Court. Mr Mallegowda replied to both Mr Lacey and my associate indicating his continued opposition to general access to the documents produced and to the file: "Dear Mark, The rule 31.13 specifically says that the requesting party must identify the document or thing (not the whole big court file). The rule says a "party" can seek production, which means anyone including the defendants can make request for specific document of thing to the registrar. We were told by the first defendant (Amit Sood) that he contacted the registrar to access the documents in July/August this year and he was told there is 6 weeks waiting time. Dear Mr. Mok: In the circumstance, instead of the District Court, the request should be made by the defendants under the UCPR rule 33.13, who seeks to use the documents in the defamation proceeding and he MUST identify the specific document or thing NOT the whole court file. Regards Shashi" 1. Mr Lacey replied to the plaintiff's email as follows on 20 December 2016: "Thank you Shashi, as advised please direct enquiries to the District Court in respect to this issue regards" 1. My associate replied on 22 December 2016 to the plaintiff and Mr Lacey as follows (this email was also sent to the defendants, as well as Adams J's associate and the Supreme Court Registrar, attaching the correspondence between Mr Lacey and the plaintiff on 20 December 2016): "Dear Mr Lacey and Mr Mallegowda, I refer to Mr Lacey's email of 20 December 2016, as well as Mr Mallegowda's reply of the same date. Since Mr Mallegowda has raised objections to the transfer of the entire Supreme Court file, or the use of certain material in the Supreme Court proceedings, and that he was a party to the Supreme Court proceedings, those objections should be heard by the Court whose file is sought (i.e. the Supreme Court - see Hearne v Street (2008) 235 CLR 125). Please note that a copy of this email has been sent to the Prothonotary, Justice Adams' Associate and the defendants to the District Court defamation proceedings. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 23 December 2016, the first defendant replied to my associate stating the defendants intend to bring an application in the Supreme Court: "Dear Mr Mok, I am writing to inform that the defendants intend to bring an application to access Supreme court case file in the matter of Prothonotary Vs Mallegowda. We will be specifying classes of documents or specific documents that we need access to from the Supreme court matter and use them in the District Court matter. We will submit the application at the earliest opportunity. Yours Sincerely Amit Sood" 1. This never occurred. 2. On 11 January 2017, the plaintiff wrote complaining about the inactivity on the part of the defendants in bringing an application in the Supreme Court: "Dear Mr. Mok, I would like to let you know that the defendants have completely failed to file any application to the Supreme Court from last 3 weeks though Mr. Sood said that he will be doing at the earliest opportunity. In the circumstance, I request to set a deadline to file the application to Supreme Court to access the court file and copy of such application to be served for confirmation. Regards Shashi" 1. The second defendant replied that afternoon stating: "Dear Mr Mok, Further to Mr Mallegowda's email below, we would like to let you know that the application to access Supreme Court files has been lodged by the Defendants. I confirm that I have copied all parties in this matter. Best Regards, Naveen Lingaiah "I generally reserve my rights and Without Prejudice"" 1. No "application" in the form of a notice of motion or a relisting of the proceedings to determine access had yet occurred. 2. On 12 January 2017, the plaintiff wrote to the Supreme Court Registrar objecting to the defendants being granted access to the Supreme Court file: "Dear Rebel, I am the party in the above proceedings. It has come to knowledge that Mr Amit Sood and Mr Naveen Lingaiah has made application to the court that they should be given leave to access the Supreme Court file with respect to the above case and use it in the separate proceedings in the District Court. On 02 May 2016, Her honor DCJ Judy Gibson has already made judgement [paragraphs 18 -28] in the defamation proceedings in the District Court refusing to give leave to the applicants to use those documents from the Supreme Court, the judgement link is below. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2016/88.html?stem=0&synonyms=0&query=mallegowda I strongly object to access any files from this matter as it has no relevance to conduct their proceedings in the District Court where I'm also a party in that proceedings. If the court please to hear the application with an hearing, then the copy of such application should be served on the parties including myself to prepare for the hearing but the applicants have not served anything. Therefore I kindly request to keep me in the loop and advise if any hearing is set down. I copied this email to Mark Lacy and David Cambridge (his honor's associate) Regards Shashikanth Mallegowda" 1. On 6 February 2017, the Supreme Court Senior Deputy Registrar, Jennifer Hedge, wrote to the defendants as follows: "Dear Sirs We have received an application for access to parts of the above Supreme Court file as well as request by a party to be heard if any access is sought. This type of request for file access is regularly made by any person seeking access to any Supreme Court file – particularly for material that has been dealt with in open court. Our general practice is that file access requests are dealt with administratively by a registrar on the papers in chambers (ie considering the content of the usual administrative application form and the documents in the file) and in light of Practice Note SC Gen 2 – Access to Court files – found on website at: http://www.practicenotes.justice.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/5f2bddd07a106a9fca2572ed000cec95?OpenDocument This application for access to parts of the above Supreme Court file seeks: 1. All affidavits submitted (except those relating to mental health). [I note that usual approach is only affidavits that were actually read in court – not those submitted – are considered for any appropriate third party access] 2. All witness statements including character statements submitted in the matter. 3. Court transcripts for Ashwin Mysore Vishweshwariah, Harsha Ramachandra, Shashikanth Mallegowda. [I note that transcript dates will need to be identified – not who might have given evidence - and that photocopy of transcripts from file cannot be made – if hearing dates are identified and access to transcripts given, any copies must be purchased through RSB (reporting service branch). 4. Subpoenas issued and documents produced (excluding in relation to mental health of defendant). [I confirm that third parties are not granted access to subpoena material –unless it has been specifically put before the court by a party, for example, tendered or included in evidence read] As noted, we have also received an email from the defendant in above matter (Mr Mallegowda) objecting to any access to above Supreme Court file material and for use of any material in a District Court matter. I note that we ONLY have an application for access (and any associated copying). We do not have an application to use material in other proceedings and such an application would not be determined administratively by an access request. Please confirm by "reply all" email that: A. BY the applicant for access: - that access application is still being pursued (ie still want access to ALL categories above – after noting my comments. If access application is to be revised in light of my comments please confirm any amendments). and B. BY Defendant (Mr Mallagowdi [sic]) that: - Noting the Practice Note SC Gen 2 and my comments above that Objection to access to material used in open court is still made. If access is still sought and objection is still maintained, I would propose to list this application for access in Supreme Court Common Law List at 9am on 17 February 2017 so that the those concerned can be BRIEFLY heard on the issue of access. Please "reply all" with brief response on the questions A and B above as asked only – no submissions or extra information should be included at this stage as do not propose to conduct any hearings by email. Thank you Jennifer Hedge Senior Deputy Registrar Supreme Court of New South Wales" 1. On 7 February 2017, the first defendant replied to Ms Hedge as follows: "Dear Jennifer, In response to Question 'A' please note that the applicants agree to revise the access application based on the comments provided in the email. Please see the Revised application against each point noted in the email below. 1. We now seek specifically, affidavits submitted by the Defendant Mr Shashikanth H Mallegowda and the Defendant's wife Shylaja B Yalakkigowda which were read in the court or accepted as read in the court. 2. All witness statements including character statements submitted in the matter and accepted by the Honourable court as read in court (Except those relating to mental health).. 3. Court Transcripts for the following days 30th of June 2015, 1st of July 2015, 25th of August 2015 and 26th of August 2015. 4. Subpoenas issued and documents produced which were either specifically put before the court by the Prothonotary or the Defendant including those that were tendered in the court as evidence in the matter. Please Note that the applicants intend to use the above material in their Defamation matter as mentioned in the File access request." 1. The plaintiff also replied to Ms Hedge on the same day as follows: "Dear Mrs Hedge, Thanks for your email. I refer to Mr. Sood email and I respond as below in the same order. 1. Myself or my wife has not given any affidavit, therefore it was never read in the court. 2. There are no witness statements in this matter, only few affidavits. Not all of the affidavits are not read in the open court. I have no objections to character statements from other people including appreciation letters for my significant charity works but my wife's (Ms Shylaja Yalakkigowda) carer statement about my health tendered at sentence hearing with mood dairy reports and other family matters are strongly objected as it contains sensitive, confidential and privileged information. On top of it, her statement about my health was not read in the open court. 3. The applicants are at liberty to pay for the transcripts and get it, I have no objections as its public document. 4. Firstly a non-party cannot access to the subpoenas without leave of the court and use it in some other proceedings amounts to the contempt of court. The applicants themselves don't know what and how many subpoenas in this proceedings. Its a classic example of fishing expedition. There are no subpoenas tendered at the court as evidence however some of the documents returned from the subpoenas concerned to my health are in the court file. The applicants are at liberty to seek leave and file any subpoenas in the District Court if its so relevant to conduct their case in that proceedings. If defendant still press for access to the objected documents, then please relist the matter any date other than 17 Feb 2017 as I have scheduled appointment on that day. Just to be on the records, I will be seeking costs if it goes to hearing as I might get my solicitor to appear. Please do not hesitate to contact me if you need further information. RegardsKind [sic] Shashikanth Mallegowda" 1. On 10 February 2017, Ms Hedge replied to the parties as follows: "Dear parties Thank you for your reply emails, both of which have been copied below. Thank you also for the revised access application and advise: 1. Affidavits: I have not located any affidavits by Mr Shashikanth H Mallegowda or Shylaja B Yalakkigowda as filed or read- so cannot grant access. 2. Witness statements:– Similarly cannot locate any witness statements in the file . There are some statements going to character etc and I note that Mr Mallagowda does not appear to object to access to those attesting to his good character – but as a matter of discretion in the usual course, third parties are not given access to these type of statements provided for the purpose of sentencing. No access to this material. 3. Transcripts for dates 30th of June 2015, 1st of July 2015, 25th of August 2015 and 26th of August 2015: These are not in the file so cannot be inspected in the registry. It appears there may have been hearings on those days. The parties do not object to access and the proceedings were in open court so applicant for access ( A. Sood) has leave to order and pay for these transcripts through RSB (Reporting Services Branch) if he wishes to do so. RSB (Reporting Services Branch) needs to be approached about purchasing these transcripts and, if necessary. this email can be provided to confirm that registrar has approved. 4. Subpoena material read or as evidence in Court: Unfortunately, evidence that might have originated from a subpoena cannot be readily identified from this file – so no material in this category identified to which access can be granted. [As previously noted, any material produced on subpoena itself is only available to the parties. if inspection to material so produced had been granted) so no access to general subpoena material that might still be held by the court. (I note that if material is relevant to another court case subpoenas should be issued in that matter to any relevant body or person.] As stated, permission to use Supreme Court (SC) material in another court case is not dealt with administratively –so I cannot provide this leave. Options might include – and there are no doubt other options to try to achieve any necessary result: - A. party ask the District Court under UCPR 33.13 to again request Supreme Court produce this file to the District Court – as it is now no longer an active file that cannot be easily provided to another Court. Any relevant material from the file can them be submitted and possibly used if the District Court allows. - OR - B. Person seeking to so use material prepared for purpose of the SC matter can file and serve on all the SC parties, a Notice of Motion in the above file, seeking leave of Supreme Court to use material from SC case in another court. There may be costs implications if third party files and serves a notice of motion, so strongly encourage obtaining of specific legal advice before any such action is undertaken. As the only access is for purchase of transcript, at this stage will not List this access request to deal with any objections. Thank you Jennifer Hedge Senior Deputy Registrar Supreme Court of New South Wales" 1. On 14 February 2017, the first defendant wrote to my associate following the above chain of correspondence: "Dear Mr Mok, We have received the following response from SCO - Duty Registrar to our request to access the case file. The registrar Ms Hedge suggests that the best option is for the District Court to request the Case File again. Will it be possible for Her Honour to request the file as suggested. Your Sincerely Amit Sood" 1. My associate replied to Mr Sood on the same day as follows: "Dear Mr Sood, Her Honour Judge Gibson has already advised you, since Mr Mallegowda opposes access, that you must seek leave from the Supreme Court for access to the Supreme Court file. Regards Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 23 February 2017, the plaintiff wrote to my associate as follows: "Dear Mr. Mok, The registrar of the Supreme Court refused to provide the documents sought by the defendants. Her honor also refused to give leave to get Supreme Court file due to the plaintiff's objection. I note that the defendants have not filed any notice of motion in the Supreme Court to access the Supreme Court documents. There has been a significant delays on this matter and any further delays will cause severe prejudice and the interest on the costs payable to solicitors/barristers from 4 years is mounting everyday. I request to set a date for the part-heard hearing as matter of urgency otherwise the defendants will continue to delay the justice. I look forward to your response at your earliest time. Regards Shashikanth Mallegowda" 1. Concerned at the delay, I caused my associate to send the following email to the parties on 23 February 2017: "Dear Sir, Shashikanth MALLEGOWDA v Amit SOOD (2012/352080) These proceedings were stood over part heard so that the defendants could obtain access to documents in the Supreme Court file in Prothonotary of the Supreme Court of New South Wales v Shashikanth Mallegowda (2014/00168906). The Crown Solicitor objected to any application being made until the finalisation of proceedings, which occurred in December 2016. As Mr Mallegowda objected to general access, it was necessary for the defendants to bring a Hearne v Street application before Adams J by notice of motion, as I have previously noted in my emails to you, and has been noted by Adams J's associate in an email to me. No such application has been made and the delay in finalising these proceedings cannot continue. No further extensions of time will be granted. Her Honour has listed these proceedings for Thursday 2 March 2017 for the allocation of a 3-day hearing to finalise all hearing matters. Would all parties please forward a list of convenient 3-day dates for August 2017. Her Honour will then formally note the hearing dates when the matter is listed for directions and it will not be necessary for the parties to attend. While her Honour will take into account the parties' availability, the parties will be expected to fit in with the court's available time. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. The parties subsequently emailed my associate with agreed dates for the adjourned hearing and, on 27 February 2017, 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. The state of these proceedings in March 2017 1. The hearing was set down for 3 days on 9 August 2017 on the understanding that the final three witnesses for the defendants (including the second defendant's wife) would be called, any case in reply by the plaintiff would be put and the parties could provide written submissions and speak to them. 2. As to the issue of technological evidence was the subject of completed evidence, I directed the parties to provide their written submissions on this issue by 26 May 2017, which has been done. This was to ensure that the parties would have time not only for the three remaining witnesses (all of whom were of a relatively peripheral nature) but to devote some time to the commencement of written submissions, with the most difficult task (namely addressing the expert evidence) already having been completed. 3. No application was made to the Supreme Court for access to the documents the defendants claimed they needed to inspect. Unknown to the court, the parties were in fact exchanging correspondence about another issue, namely an offer made by the plaintiff's brother, at least as early as December 2016 and probably earlier, to provide evidence which he said would "nail" the plaintiff (email, 29 December 2016). The circumstances leading up to the notice of motion being filed on 18 May 2017 1. After this consent timetable in February 2017, other than an email from the defendants requesting a copy of the Exhibit List dated 30 April 2017, nothing further was heard until 9 May 2017, when the second defendant sent my associate the following email: "Dear Mr Mok, The defendants have come into possession, [sic] new evidence which could not have been foreseen. The evidence has come from the Plaintiff's elder brother, Mr Raghu Hassan Mallegowda who resides in India. The evidence is of a very high probative value that goes into determination of the core issues in our matter. Based on this evidence we are of the sincere belief that this may very well prove the fraudulent nature of the claim lodged by the Plaintiff and perpetuation of fraud in these proceedings for nearly five years by the Plaintiff. Please find attached, a witness statement from the Plaintiff's brother. Based on the witness statement we would like to respectfully request Her Honour to grant Leave of the Court to lodge a Notice of Motion. The intended Notice of Motion has also been attached, please note that it is draft and we will finalise it when Her Honour gives us the leave to lodge it. In relation to the above, we seek an urgent hearing of a Notice of Motion in front of Her Honour early next week if it is possible. We are extremely concerned with the threats that have already been issued by the Plaintiff to the witness and his family. We therefore request Her Honour to give interim directions to the Plaintiff to ensure that no threats or contact are made to the witness or his family in an attempt to stop the witness from coming forward. Best Regards, Naveen Lingaiah and also on Behalf of Mr Amit Sood." 1. Attached to this email was a draft notice of motion and a 10-page statement, of which only the first two pages could be opened. 2. Mr Mallegowda replied as follows: "Dear Mr. Mok, I refer to few [sic] email communication by the defendants this morning. This is just a malicious claim by the defendants out of desperation as today is the last day of the good behavior bond. Rather making application to the Supreme Court to access court file, the defendants are wasting court's time bringing oppressive and vexatious claim. This is the best example for the risk of part-heard hearing. The person by the name "Raghu" is not in the defendants witness list, he does not carry any Australian visa , never been to Australia so he is irrelevant to this matter. Moreover he is suffering from chronic Bipolar Disorder and we don't know what phrase of mind set he got as most of the things he stated are false and fabricated, so he needs medical assessment before he can speak in the court. I attach the statement of Gnaneshbabu to counter the statement by Mr. Raghu. Regards Shashi" 1. This was followed by another email from Mr Mallegowda: "Dear Mr. Mok, Further to my email sent this morning, I would like to refer to the Civil Procedure Act for objections to adduce the brand new unqualified witness (Overseas) especially in the part-heard hearing. The clauses 56 and 57 - Refers to quick, just and cheap, this late move by the defendant will not achieve its purposes. 62(3)(b) - a direction limiting the number of witnesses (including expert witnesses) that a party may call. There is already numerous witness in this matter and adducing one overseas unqualified witness will give rise to further cross-examination and re-examination of 4 witness as agreed and listed in the draft Notice of Motion sent by the second defendant (today). This will be take another 2 weeks of the trail and they are reopening their case with fresh arguments by recalling the 4 witness for the second time. The new unqualified overseas witness speaks about at least 10 email accounts and various emails from fake accounts so we need experts to confer and produce a joint expert report for the 3rd time adding significant costs and time. The unqualified overseas witness has to physically meet the experts and disclose all those email accounts and emails to verify the authenticity and he needs visa to arrive which will further drag the case and incur significant costs to call another key overseas witness. 62(5)(b) - the number of witnesses to be called,- The honorable court has generously given plenty of time for parties to exchange witness lists up until the hearing. Further directions to adduce new witnesses during the part-heard trail will derail the proceedings and new issues in the case will arise. 63 - Directions with respect to procedural irregularities. The move by the defendants to adduce an unqualified overseas witness especially when 95% of the case is over will be prejudice to the plaintiff and it is a procedural irregularities. 63(4) - The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure. The court made orders to file and serve IT submissions by 26 May 2016. The orders were made on 27 Feb 2017 and the overseas unqualified witness statement says that he is been exchanging the information from early Jan 2017 but the defendants did not oppose the orders for making IT submissions knowing that their new witness is adding more IT issues, on this basis of the orders I have finished my IT submission incurring significant costs for preparation. Therefore I have taken a fresh step in the proceedings to comply with the order before they are projecting new witness though they knew since 03 Jan 2017 and aware that he is raising some many IT issues. I request her honor to not grant leave to file the Notice of Motion of this kind at this point of time or alternatively give parties leave to file and serve submissions along with any evidence via email as I'm too busy with my family affairs and not possible to attend the court for next 2 weeks. Regards Shashikanth Mallegowda" 1. The first defendant then replied to Mr Mallegowda's email as follows: "Dear Mr Mok, In response to the email from the Plaintiff objecting to the Notice of Motion requested by the defendants we provide the following response. 1. The proposed evidence has significant probative value to the determination of the issues central to the determination of the guilt or innocence of the Accused in this case Plaintiff. 2. The probative value of the evidence far outweighs the prejudice if any real or perceived to the Plaintiff where he refers to the clauses 56 and 57. 3. We would like to refer to s 55 and s 56 of the uniform evidence act 1995. The new evidence significantly alters the facts of the case as presented by the Plaintiff. 4. We would also like to refer to the principles of equity and submit that the new evidence can help in establishing that fraud has been injected into the proceedings by the plaintiff when he was fully aware that he was presenting perjured evidence in the court. The new evidence will be helpful in establishing that it is more probable than not that the proceedings brought upon by the plaintiff is fraudulent. 5. We would also like to mention that the defendants received evidence in late Mar and Apr and the witness sent a statement 2 days ago. As soon as we received the statement we have contacted the court without any delays. 6. We would like to submit that the new evidence will not require any expert report as there will be no issues in establishing the ownership of the accounts from where the emails have been sent by Mr Mallegowda to his brother Mr Raghu Mallegowda. We are on track to comply as per the directions of Her Honour to submit technical submissions by the 26th of this month. We have also obtained the relevant records from the Supreme Court for future submissions. There will be severe prejudice caused to the defendants if we are not provided with an opportunity to present the new evidence, for its probative value in proving the guilt of the plaintiff and the perjured evidence provided in the court." 1. By way of observation, these references to "the accused" and "the principles of equity" do not take into account that this is the civil jurisdiction of the District Court and the court's power to grant equitable relief and/or arrest the plaintiff are non-existent. The defendants' claim that no expert evidence will be needed and that this overseas evidence must be admitted because it is relevant amounts to usurping the role of the trial judge in determining these issues. I appreciate the defendants are representing themselves but these submissions miss the point entirely. 2. My associate replied to the parties on 10 May 2017 as follows: "Dear Sir, Mallegowda v Sood I refer to the parties' chain of correspondence yesterday attaching various documents. For reasons unknown to the writer, some of the attached documents cannot be opened. If any party is seeking any orders that may affect the future conduct of the trial, the parties must file a notice of motion in the Registry, returnable in the Defamation List before Gibson DCJ. The parties must bring along hardcopies of documents they rely upon. Please note that her Honour will not be available to hear this matter next Thursday 18 May 2017, and would prefer having this matter listed on a Thursday after 18 May. Disputed issues should not and cannot be ventilated by email correspondence. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. The plaintiff replied to my associate on that day as follows: "Dear Mr. Mok, Thanks for your email. Noting the serious nature of the claims been made, I need further statements from the overseas witnesses and other business records, so my earliest available Thursday is 01 June 2017. Regards Shashi" 1. On 17 May 2017, the first defendant wrote to my associate as follows: "Dear Mr Mok, I have been trying to match up the Exhibit list with our understanding and I am finding it very challenging to match it up especially for the items before you came back on board. Under these circumstances I am doing my best I can to refer to the correct ones but not sure if I have it right. Some of the exhibits I simply cannot match for example where it has no description other than to say 'List of Documents' or 'Two folders' etc. If I may suggest that when we are in front of her honour the next time the exhibits and the MFIs be made available for the parties to quickly cross reference the ones we have referred to in case of any mismatch of the ones referred to in our technical submissions." 1. On 18 May 2017, the defendants filed a notice of motion in the Registry. No notification was given to me nor my associate until the plaintiff wrote to my associate on 21 May 2017 saying: "Dear Mr. Mok,I note that the online registry shows that this matter is listed for directions on 01June 2017 at 9:00 am and I can also see that Mr. Sood filed notice of motion dated 18 May. I requested to serve the notice of motion on Thursday but till date I have not received any response, its delay tactics. In the circumstances, please advice whether the matter is listed for directions or motion. If it's motion please make directions for the defendants to serve the copy of motion as matter of urgency otherwise things gets delayed and I may have to seek leave for extension of time to respond to their application.RegardsShashikanth Mallegowda" 1. On 22 May 2017, my associate wrote to the parties in the following terms, attaching copies of the notice of motion filed and Mr Lingaiah's affidavit in support: "Dear Mr Sood, I refer to Mr Sood's email of 17 May 2017, as well as Mr Mallegowda's email of today. Please note that I am sending a copy of this email to all parties. First of all, your notice of motion has been given a return date of 1 June 2017. I am attaching a copy as Mr Mallegowda has written to me to say he has not received it (as well as Mr Lingaiah's affidavit in support of the motion). Second, the deadline for the parties to provide written submissions on the expert evidence is 26 May 2017. This deadline still applies regardless of your outstanding application to have access to and tender extracts from the Supreme Court file of R v Mallegowda (which according to JusticeLink has still not been filed in the Supreme Court) and the attached notice of motion. The written submissions on the expert evidence are an entirely separate issue and failure to comply with her Honour's order by any party will be viewed seriously. It will be difficult for the hearing to proceed without these submissions being provided by the due date, which we note was allocated last year. Third, the identity of the documents tendered should be clear from the transcript. I have already sent you our list of exhibits and you have not identified any errors or omissions. If you are having difficulty identifying just which documents have been tendered, I suggest you consult the transcript. You do not identify the specific documents you say you have concerns about in relation to the expert evidence submissions. Any asserted difficulty in correctly identifying these documents does not warrant non-compliance with the orders for filing these submissions. If you find, at the hearing, that you have made a mistake in relation to a particular document number, you can correct it. Ultimately, it is the documents' content, rather than their exhibit number, which is the key here. I remind you that documents marked for identification ("MFI") are not part of the evidence and that these documents are merely listed as an MFI for convenience and not for tender. I look forward to receipt of all expert evidence submissions by the due date of 26 May 2017. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. The plaintiff then replied to my associate as follows, on 22 May 2017: "Dear Mr. Mok, Thanks for your email. The exhibits are not attached with the affidavit of Mr Lingaiah, it is very vital to prepare for the motion. If you have them please send it or make directions to the defendant's to serve at the earliest. Regards Shashi" 1. My associate replied to Mr Mallegowda on the same day as follows: "Dear Mr Mallegowda, I have sent you whatever it is that the Registry has. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. On 23 May 2017, the plaintiff responded as follows: "Dear Mr. Mok, I understand that you have only affidavit but no exhibits because the defendants never attached the exhibits to their application therefore pursuant to the rule 56.61(1) of ucpr - A party that files a notice of motion must also file affidavit setting out the evidence that the party relies on. In the present circumstances, the defendant application is incomplete and invalid because they have not annexed 40 exhibits though numerous requests has been made. In order to defend this massive application, I need plenty of time to gather my evidence from overseas and I cannot do without seeing those numerous exhibits , therefore It is prejudice to the plaintiff so I request to vacate the listings on 01 June and not set a return date until a proper and complete application is made and served . I propose not to respond or defend this incomplete and non-conforming application. Regards Shashi " 1. My associate then wrote to the parties on 23 May 2017 as follows: "Dear Mr Sood, Mr Mallegowda and Mr Lingaiah, Mallegowda v Sood (2012/352080) - 1 June 2017 Listing The notice of motion and affidavits filed in the registry did not include the documents referred to in the "Exhibits List", which are clearly voluminous. All was provided was a list. The registry listed the notice of motion without knowing that this vast cache of new documentation would be provided as part of the motion. Even though those documents are provided to Mr Mallegowda and to the court now (as email attachments), the court will not be in a position to hear the notice of motion on 1 June 2017, given the voluminous nature of the material, the likelihood of objections and the need for Mr Mallegowda to reply. The proceedings will be listed for directions only on 1 June 2017, and a timetable for applications by all parties will be put in place, if it is possible for the application to be heard independently of the adjourned hearing date of 9 August 2017. Due to limitations of our court telephone system and the difficult issues raised in the notice of motion, the parties will need to attend personally. Please note, when considering dates for the hearing of this application, that her Honour is absent on leave from 3 July to 4 August 2017. Yours faithfully, Vincent Mok Associate to her Honour Judge Gibson District Court of New South Wales" 1. This email my associate sent crosses with the second defendants' three separate emails attaching close to 50 "exhibits" to his affidavit. 2. This brings me to the orders sought by the defendants in their 18 May 2017 notice of motion. The defendants' notice of motion filed on 18 May 2017 returnable for 1 June 2017 1. On 18 May 2017, the defendants filed a notice of motion seeking the following orders: 1. That leave of court be granted to Defendants to bring in Mr Raghu Hassan Mallegowda as a witness for the Defendants. The new witness is being called to provide evidence on the following basis. 1. That the fresh evidence sought arose after the presentation of the Defence case in-chief and could not, despite the exercise of reasonable diligence, have been foreseen; and 2. That the proposed fresh evidence has significant probative value to the determination of the issues central to the determination of the guilt or innocence of the Accused. 3. That the fresh evidence may alter the future conduct of the trial. 1. That the leave of court be granted to bring back on stand, the following witnesses in order to further cross examine based on the new evidence provided by the new witness. The witness statement, affidavit of Second Defendant and list of exhibits have been attached to this application. 1. Mr Shashikanth Hassan Mallegowda; 2. Mrs Shylaja Yalakkigowda; 3. Mr Harsha Ramachandra; 4. Ms Harjit Singh. 1. That leave of court be granted to issue subpoena to Mr Raghu Hassan Mallegowda to appear and give evidence. 2. That the court deal with as it deems appropriate on an urgent basis, the fact that the new evidence may prove that the Plaintiff has injected fraud in the proceeding and perjured himself. 3. That Plaintiff be referred for investigation and prosecution for criminal conduct under Criminal Code Act 1995, Division 474 Telecommunications Offences and/or also offences in various sections of that fall under the Crimes Act 1900 such as: 1. Identity theft; 2. Intention to cause reputational and psychological harm to the first defendant and the cross claimant; 3. Intention to misuse the carriage services to enrich self. 1. Plaintiff to be referred for investigation and prosecution under Crimes Act 1900 – Sections 192D, 192G, 192J, 192K, 192L, 250C, 256, 307A, 308C and 308G in relation to the email request of Plaintiff to witness Mr Raghu Mallegowda to create an email ID impersonating the First Defendant. 2. Plaintiff to be referred for investigation and prosecution for trying to implicate falsely, the First Defendant under Crimes Act 1900 – Sections 192D, 192H, 251, 253, 254, 255, 256, 307A and 308G. 3. Plaintiff to be referred for investigation and prosecution under Crimes Act 1900 – Section 249N for showing intention and/or for having created an email account impersonating the First Defendant who was undertaking public duty as under Section 249O. 4. Such other orders that the court deems fit. 1. A short affidavit from the second defendant was attached and a document headed "List of Exhibits" was provided. Those annexures (although named as exhibits) were not provided to the Court or to the plaintiff until a few days ago. Given the lateness with which this application was brought, that delay in providing such essential material is unacceptable. 2. Although the order framed as set out in order (1) appears to be an application for the defendants to "bring in" Mr Raghu Hassan Mallegowda (one of the plaintiff's brothers) as a witness, it appears that the real application is for leave to further cross-examine the plaintiff and three other witnesses about unspecified portions of that material, as well as for the purpose of having the plaintiff "referred for investigation and prosecution for criminal conduct" under a number of provisions of the Crimes Act 1900 (NSW) and the Criminal Code Act 1995 (Cth). 3. One of the documents in the material in support of the application consists of an undated statement by Mr Raghu Hassan Mallegowda to the following effect: 1. The plaintiff has twelve email addresses; 2. The plaintiff and Mr Raghu Hassan Mallegowda had a telephone conversation on 24 August 2012 in the course of which the plaintiff allegedly made a series of admissions as to authorship of the matter complained of in the cross-claim in these proceedings; 3. On 25 August 2012, Mr Raghu Hassan Mallegowda received an email from the plaintiff which is relied upon for corroboration of the defendants' defence to the plaintiff's claim, together with five further emails of the same date, another five emails dated 26 September 2012 followed by copies of correspondence and a request to serve a Court subpoena in California on 15 March 2013. 4. The statement then recites that the plaintiff and Mr Raghu Hassan Mallegowda met in their native town in India in July 2013 and that during the conversation, the plaintiff's brother "told him to drop the defamation suit as he was at fault", following which the plaintiff "stopped further communication with me on this issue" (paragraphs 15 and 16). 5. The rest of the affidavit consists of recounting a dispute between the plaintiff and Mr Raghu Hassan Mallegowda in relation to Court proceedings in India which were commenced in 2015. 1. The affidavit is silent as to when and in what circumstances Mr Raghu Hassan Mallegowda contacted the defendants. In paragraph 19 of the affidavit, Mr Raghu Hassan Mallegowda refers to an email of Friday 30 December 2016. The contents of this email are as follows: "Mr Naveen Lingaiah, This is w.r.t. [with regard to] to ongoing defamation suit with my estranged brother. talk [sic] to me if you need some evidence to nail him." 1. The email in question provides a telephone number in India. 2. According to Mr Raghu Hassan Mallegowda's statement, he learned from this conversations with the defendants about these defamation proceedings at some undetermined stage that: "a. Shashikanth has played havoc in the lives of Mr Sood and Mr Lingaiah. b. All their effort [sic] to settle the suit amicably had been turned down by Shashikanth. c. Shashikanth makes anonymous calls to abuse and threaten them of dire consequences. d. Mr Lingaiah and Mr Sood had to relocate to new place [sic] to avoid harassment from Shashikanth. e. Shashikanth has been convicted for 9 months in August 2016 for threatening a witness in this defamation suit and the same was suspended on the condition of signing good behaviour bond." (Paragraph 19) 1. I am unaware of the evidence concerning paragraphs (b) – (d) above, but the contents of paragraph (e) should have been well known to the Mallegowda family in India, as the plaintiff said from the bar table that his whole family was aware by reason of newspaper articles in the Australian and Indian press concerning his conviction and by reason of his statements to his family members while he was visiting in India in September 2016 and earlier. 2. At paragraphs 20 to 27, Mr Raghu Hassan Mallegowda states his reasons for wanting to help the defendants: "20. Empathising with the defendants in the defamation suit, I offered to help them with the evidence 1 had in the form of email communications with Shashikanth. While acknowledging that any additional evidence would help his case at this stage, Mr Lingaiah said that he is willing to accept it, if it is provided voluntarily. He also advised me to consult other family members before providing the evidence as he did not want to put any of us into trouble. 21. I consulted my family members on the matter. While they were reluctant initially but when the harassment from Shashikanth continued, we decided to warn Shashikanth that we will be left with limited option but to share the evidence with defendants, inform Prothonotary of Supreme Court of NSW and the Indian community in New South Wales Australia about his harassment to my parents and brothers. 22. Accordingly, I wrote to Shashikanth on his another [sic] email account sunilgowda@yahoo.com at 9.52 PM IST on 23rd March 2017 with the following text as given in Exhibit 30 As long as your fight with family members is legal, we will tackle it legally. If you continue to harass family members by issuing death threats and resorting to defamatory facebook postings using proxies, the response would be disproportionate. Some of the things which I never contemplated but now inclined to do is 1. Lodge police complaint for issuing death threats to family members and report the same to Australian High Commissioner in India and also Prothonotary of Supreme Court of New South Wales, I don't think your conduct is in line with good behaviour bond you have signed with the court. 2. Share all the documentary evidence I have with Mr Navin [sic] Lingaiah and Mr Amit Sood, which has the potential to indict you in the ongoing defamatory suit with them. 3. Write to all IAN members about your conviction/s along with judgement [sic] copy and post testimonials of family members regarding the choicest abuses you hurl and death threats you issue to them. Whatever you have resorted to is too childish and we have become immune to it. Since you have crossed all your limits, it is important to respond to you in the language which your understand. No more sympathies for your poor mental health or your depriving financial health. 23. Shashikanth chose to respond with series of emails from another of his email id hassan.gopala@gmail.com, with a subject "WAR DECLARED". In his response, he initially ridiculed my warning and later he started abusing emails threatening me of dire consequences. He wrote to the effect that since he is mentally ill, he will go scot free even if he kills me. Some of the mails sent by Shashikanth is attached as Exhibit 26, Exhibit 27 and Exhibit 28 and the translation of the mails wherever written in Kannada language is provided in Exhibit 29. 24. Left with no other choice, I emailed Mr Naveen Lingaiah on Mar 25, 2017 at 3:36 PM 1ST, to contact me so that I can provide him with documents and such other evidence I had in my possession as sent by Shashikanth. 25. On 25 of March 2017, I spoke to Mr Lingaiah and had a conversation to the following effect Naveen: Hello Raghu, got your email what can I do for you Raghu: Naveen, thanks for getting back. As spoken to you before, we have finally decided that his actions are destroying other people's lives. I will email you all the documents that Shashikanth has forwarded to me till date. I will give evidence in this matter if required. 26. On 25th and 26th of March 2017, I forwarded to Mr Lingaiah emails sent by Shashikanth to me. 27. On 27 March 2017, Mr Lingaiah contacted me to request a statement in relation to the emails sent by Shashikanth and conversations in relation to the defamation matter." 1. It is clear from the above chronology of events that the defendants have been aware of Mr Raghu Hassan Mallegowda's offer to provide this information since at least 30 September 2016. Although the defendants told the Court their reason for delay was that they did not have a statement from Mr Raghu Hassan Mallegowda, their delay in bringing this application before the Court until two months prior to the hearing has placed the Court in an impossible position in terms of dealing with the late provided material. 2. These proceedings are set down for three days in August. Any application to amend the particulars of justification and to call this witness will take closer to three weeks than three days. It appears likely that in addition to the plaintiff's brother's evidence, the authenticity of the evidence will be challenged, that witnesses will be called in reply, and the defendants will seek leave to cross-examine further not only the plaintiff but the long list of witnesses who have already given evidence identified in the notice of motion. 3. The circumstances in which any case in this court is adjourned even once is of concern. These proceedings were adjourned twice prior to my commencing to hear them, and the adjourned hearing date has since been vacated twice. The practical effect of the defendants' application will be yet another adjournment. There must come a time when no further adjournments should be permitted. The law relating to late amendments to pleas of justification 1. Late amendments to the pleading and particularisation of justification have been a significant problem in defamation case management for decades. 2. The Supreme Court Defamation List was, for many years, managed in accordance with an Announcement dated 14 October 1988 by the Defamation List Judge, Hunt J, which specifically identified applications to amend the defence shortly prior to the trial as being likely to be refused other than in very clear cases. 3. In civil litigation generally, the discovery of evidence which could change the result was, until comparatively recently, permitted where the prejudice could be cured by an appropriate costs order. This has not, however, been the case in defamation proceedings. The longstanding refusal to permit late pleas of justification long pre-dates case management orders of this kind in other areas of litigation. In Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) at [25,175], decisions going back to 1970s (Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 at 456) and 1980s/1990s (when many defamation judgments preferred the case management principles of overseas judgments such as Ketteman v Hansel Properties Ltd [1987] AC 189 at 220) are noted. 4. Where there has been late particularisation of justification, the success of any such application requires not only a full explanation of the reasons for lateness but also the provision of full particulars in the form of a broad outline of evidence (Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of New South Wales, Hunt J, 20 October 1986)) or witness statements (Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994)). 5. The refusal of such applications increased following the introduction of the Civil Procedure Act 2005 (NSW). One of the many examples is Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399, where a late application was refused by reason of the imminence of the trial. 6. In the present case, not only has the trial commenced, but it is almost over. The current delay in the proceedings is due to the conduct of the defendants, who insisted upon being able to view the Supreme Court file, despite the objections of both the Crown and the plaintiff, and who continued to insist upon this entitlement as being a reason for delaying the completion of the hearing in circumstances resulting in the hearing of these proceedings being adjourned a third and fourth time. 7. It is clear that most, if not all, of the documentation relevant to this application has been in their possession for some months. In addition, given the defendants' failure ever to seek the Supreme Court file when it did become available, it appears that there has been a degree of lack of provision of information to the court as to what their real reasons for seeking an adjournment are. 8. The defendants submit that the strength of their case as a result of the obtaining of these new emails is such that they are in a position to seek summary judgment, and that they would have done so if these emails had been in their possession from the outset. 9. The plaintiff denied that he had sent these emails and denied that seven of the twelve email addresses listed were in fact email addresses that he had used. His position was that he would have to call expert evidence in order to prove this, as well as calling three members of his family from India who, he stated, would give evidence that the statements of fact and, in particular, the history of the family litigation in India was untruthful and that the statements made by Mr Raghu Hassan Mallegowda were malicious statements arising out of the long history of hostility and ill-will arising from the litigation currently before the Courts in India. 10. The defendants were insistent that their litigation is so important that the other business of this Court should be put to one side so that they could have their day in court or, more accurately, their week in court, since the collection of evidence required, and the request from the plaintiff to cross-examine Mr Raghu Hassan Mallegowda, would have to be accommodated. 11. How this was to be done two months before the date for the part heard trial was unexplained, but the defendants were confident that the Court could find time if it set other cases aside or otherwise adjusted the Court timetable. The relevant principles and the orders I propose to make 1. In Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, the High Court stressed the need not only for an adequate explanation for the reason for delay but emphasised the importance of court resources. That explanation (namely that the defendants have only had a full statement from the plaintiff's brother since March 2017) is unacceptable. The defendants should have notified the court as soon as they realised that there was further evidence they wished to call. 2. This Court does not have time, between now and the hearing, to deal with an application with this level of documentation (more than 40 documents being annexed) and requirement for expert evidence. Parties who have prepared their cases for hearing and who are ready for their cases to proceed should not be obliged to set aside to make way for an application that the defendants should have brought months ago. 3. Nor do I propose to accept uncritically claims that emails have been sent by the plaintiff. The whole of this litigation consisted of challenges by the plaintiff and defendants against each other in relation to the sending of anonymous emails and there has been a conclave of experts giving evidence about technology issues. That evidence has now been the subject of written submissions by both sides and is of considerable complexity. I imagine that the expert evidence about the accuracy of the authenticity of these emails would be of similar complexity, if not more by reason of the fact that they appear to have been sent or received at least on one side by use of computer equipment in India and that they date from 2012. 4. The resolution of this issue by any sensible form of case management between now and the trial not being possible, I have stood over the defendants' application to the trial. If they propose to seek leave to call Mr Raghu Hassan Mallegowda and he is available for cross-examination if and when any further hearing dates are given, I will be in a better position to determine that issue, probably after completion of all other evidence, in the form of an application to reopen the case. 5. However, if that application is successful, the plaintiff's entitlement to call other evidence in reply, including expert evidence, would then have to be considered and, in the circumstances, it is likely to be granted. I have already warned the defendants that if such an application is granted, it will be to their cost, in terms of the expense and delay involved, as the result will inevitably be a lengthy hearing at some time in 2018 to accommodate all these witnesses and submissions. 6. However, the defendants should not assume that the court will simply permit this further hearing to take place; taking into account the current delays and the lateness with which this evidence is presented, the defendants will have a difficult task to persuade the court that such a course will be considered. 7. I have been fortified in the making of this decision by the enormous number of documents which have been sent to my associate since the making of my 1 June 2017 orders. The large number of documents produced confirms my opinion that the hearing of this application prior to the remainder of the trial would take days. In this regard, I note that the hearing of the application to lead further evidence which was made in Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 570 took 38 days to hear and resulted in an appeal, which meant that the final trial took even longer to complete. 8. The provisions of ss 56 – 62 Civil Procedure Act 2005 (NSW) and the principles set out in Aon emphasise that court resources are a vital consideration in applications such as these. As I have set out above, the hearing of this application during June is simply not possible. I have advised the parties that I am absent on leave during from the beginning of July until two days before the hearing, and that I do not propose to alter my leave arrangements in order to accommodate the hearing of this application. 9. An additional consideration is that the level of hostility between the parties is very apparent. This has been added to by the plaintiff renewing his application to call the first defendant's wife, the defendants' demand for an address for the plaintiff which he is only prepared to provide to the court in a sealed envelope (a step I have already permitted for the first defendant) and emails to the court from the second defendant saying he must "insist" that I hear this application immediately, which is not a helpful way for any litigant, even if self-represented and upset, to address the court. 10. I am gravely concerned about the future of this litigation, and determined to do the best I can to see the evidence through to finality. After the evidence has concluded, and the parties have provided a general outline of submissions based on the evidence currently before the court, I will permit the defendants to bring their application. I will hear the plaintiff's renewed application to call Mrs Sood at the same time. 11. Any such applications will result, of course, in a sixth adjourned hearing date, which is as unprecedented as it is undesirable, and the parties will need to have compelling reasons as to why the resources of this court should be further burdened in those circumstances. 12. These reasons for my decision have been provided to the parties in the hope that they will understand that they have duties to the court and to each other in the conduct of litigation, and that the need for both fairness and finality have to be seen in the context of those duties. 13. In particular, the parties must understand that the endless stream of correspondence that they have been sending to the court creates a heavy administrative burden on the very limited resources that judges have. Just to prepare these reasons has required a judgment of fifty pages in length. The fact that the parties are self-represented is generally given as the reason for the way in which this litigation is conducted, but that is not a satisfactory explanation when practitioners who conducted litigation in this manner could expect not only criticism but costs sanctions. 14. There must come a time when the courts cannot be expected to process large quantities of undigested material and answer demands for lengthy applications made at short notice, especially when there has been no or no adequate inquiry into the jurisdiction of the court to make the orders sought, the applicable case management principles and the obligations of disclosure to opponents. The parties to this litigation need to consider these issues carefully in relation to the completion of this litigation without any further delay. Orders 1. Stand over the defendants' notice of motion to the trial on 9 August 2017, by reason of the nature of the application, extent of documentation and its lateness. 2. Costs reserved. 3. Note that the defendants have been advised that if they are granted leave to call Mr Raghu Hassan Mallegowda at the hearing, the plaintiff will be entitled to call evidence in reply regardless of whether this occasions a further adjournment or not. 4. Stand over the plaintiff's complaints regarding Mrs Sood not being called as a witness to the trial on 9 August 2017. 5. Mr Mallegowda may, similar to Mr Sood, provide his address for service in a sealed envelope to the court. 6. Grant the second defendant leave to apply to Gibson DCJ by notice of motion for leave to issue a subpoena to the Human Rights Commission and the Road and Maritime Services, such applications to attach full copies of the subpoenas to be served. ********** 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: 12 June 2019