Mark James Ryan v the Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; (1990) 101 FLR 396 (13 November 1990)

SUPREME COURT OF THE ACT

MARK JAMES RYAN v. THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY. LTD.
S.C. No. 1913 of 1986
Practice and Procedure
[1990] ACTSC 45; (1990) 101 FLR 396

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Practice and Procedure - interrogatories - appeal from Registrar's order to answer interrogatories - requirement that interrogatories serve some necessary and useful purpose.

Aste v. Stumore (1883) 13 QBD 326 at 329 per Bowen C.J.

Hansen v. Border Morning Mail Ltd. (1987) 9 NSWLR 44 at p 57 per Hunt J.

Re Estref Abduramanoski and Zera Abduramanoski (unreported, French J., Federal Court of Australia, 2 November 1987)

Research Report of the Australian Institute of Judicial Administration, The Use of Discovery and Interrogatories in Civil Litigation (Melbourne 1990)

HEARING

13:11:1990

Counsel for the plaintiff: Mr B. Hull

Solicitors for the plaintiff: Barrads Solicitors

Counsel for the defendant: Mr J.S. Wheelhouse

Solicitors for the defendant: Mallesons Stephen Jaques

ORDER

The appeal be allowed and the decision of the Registrar be set aside.

The plaintiff answer within twenty-one days interrogatories Nos. 1, 6(a) and 8(b)(2).

Each side pay his and its own costs of the appeal and of the proceedings before the Registrar.

DECISION

Interrogatories tend to increase delay and add to the cost of litigation. In 1883 they were described as "a more perfect, but most expensive machinery" (Aste v. Stumore (1883) 13 QBD 326 at 329 per Bowen C.J.). These days they are increasingly the product of wordprocessors which store banks of standard form questions. In principle, and in accordance with Order 34 Rule 1(4), a party may interrogate the other on any relevant matter to the same extent as questions may be asked in oral examination (although interrogatories may not be directed towards attacking the credit of the person interrogated; see Hansen v. Border Morning Mail Ltd. (1987) 9 NSWLR 44 at p 57 per Hunt J.) In practice the unrestrained application of this principle means that questions asked by way of interrogatories can be and often are more prolix than those asked in cross-examination. The cross-examiner tends to ask only those questions to which a favourable answer is expected. No such inhibition restricts the range of interrogatories, particularly those generated or assisted by the wordprocessor.

2. The tendency towards the greater use of extensive interrogatories has led to a more widespread recognition in the courts if not among practitioners that interrogatories should not be used as a general substitute for a request for further and better particulars of the opponent's case nor as a means of pinning down a witness to a particular answer in the hope of having the witness contradict it at the trial. In some cases a notice to admit will be an appropriate alternative, or preliminary, to interrogatories, and will be far cheaper.

3. Order 16 Rule 1 of the Rules of the Federal Court of Australia provides that a party may interrogate only with leave of the Court. In practice interrogatories are allowed only when the Court is satisfied that they are necessary and will serve a useful purpose: e.g. Re Estref Abduramanoski and Zera Abduramanoski (unreported decision of French J., Federal Court, 2 November 1987). In this Court leave is not necessary for the delivery of interrogatories. Nevertheless, an order compelling the answering of interrogatories should be made only when it serves some necessary and useful purpose.

4. A research report of the Australian Institute of Judicial Administration, The Use of Discovery and Interrogatories in Civil Litigation (Melbourne 1990) recommends that standard form questions should not be allowed merely as a matter of course, that they must in all cases be properly adapted to the pleading and that any tendency to administer interrogatories merely because they are part of a wordprocessing package must be prevented from becoming an accepted practice.

5. In the light of those preliminary remarks I approach this appeal by the defendant against an order of the Registrar dated 16 July 1990 in which the Registrar ordered that the plaintiff answer certain interrogatories delivered by the defendant to the plaintiff and to which the plaintiff objected.

6. The appeal is by way of re-hearing de novo under Order 61 Rule 5(b).

7. The plaintiff sues in defamation over the publication in the Canberra Times of two articles. The first article was published on 9 May 1985. It referred to a meeting of the Chiropractors Board. The article contained this paragraph:
"The occasion of the board's meeting was to consider

the case of Mark James Ryan, who styles himself
"Dr", a chiropractor of Canberra and Queanbeyan. In
October 1984 Dr Ryan was convicted of conspiring to
cheat and defraud the Hospitals Contribution Fund
Incorporated and place (sic) on a good behaviour
bond."

8. The whole of the article is set out in the statement of claim. The defamatory meanings (referred to as imputations) are alleged as follows:

"(i) That the plaintiff falsely claimed the title
of "Doctor";
(ii) That the plaintiff was not a properly
qualified chiropractor;
(iii) That the plaintiff was a charlatan and a
fraud;
(iv) That the plaintiff was unfit to continue to
practise chiropractic and his registration as
a chiropractor should be suspended or
cancelled."

9. The second article was published on 15 May 1986. It concerns some proceedings in this Court in which the plaintiff appeared and gave evidence in opposition to a proposed development at 25 Moore Street, Turner, by Axiom Pty. Limited. The article contained the following paragraph:

"Mr. Mark James Ryan, chiropractor, who lives at
another house in Moore Street, revealed under
cross-examination that he sold a block at 25 Moore
Street to Tekmat Investments, formerly Axiom Pty.
Ltd."

10. Again the whole of the article is set out in the statement of claim (paragraph 6). The defamatory meanings (again referred to as imputations) are alleged to be as follows:

"(i) That the plaintiff had sought to conceal
relevant information from the Supreme Court of
the ACT in court proceedings;
(ii) That the plaintiff was devious and
hypocritical;
(iii) That the plaintiff was a person who should not
be believed on his oath."

11. The statement of defence may be summarised broadly by saying that the defendant denies the defamatory meanings, and asserts, in relation to publication in the Australian Capital Territory, justification by way of truth and public benefit, qualified privilege and a fair and accurate report of a public body constituted by legislation under s.5(f) of the Defamation (Amendment) Act 1909. Similar defences are pleaded in relation to publication in other Australian jurisdictions. In reply the plaintiff alleges malice. No further pleading has been filed.

12. The plaintiff objected to answering certain of the interrogatories on the ground that they were irrelevant. The Registrar ordered on 16 July 1990 that the plaintiff answer some of the interrogatories objected to. The defendant appealed against that decision. I ruled during the hearing of the appeal that several of the interrogatories the subject of the appeal should be answered. The remaining interrogatories on which I reserved my decision, interrogatories 10 to 51 inclusive and 51 to 86 inclusive set out, one by one, each of the statements of fact made in the two articles complained of. Each pair of consecutive interrogatories in the series asks first whether the statement is accurate, and then, if the answer is in the negative, "in what way is it inaccurate?"

13. It would be a waste of time and of physical resources for each of the 75 questions and answers under consideration to be repeated in these reasons but by way of illustration I set out the terms of interrogatories 10 and 11 and the answers.
"Q10. Look at the document which is annexed hereto

and marked "B"; is the statement "The
registration and conduct of chiropractors in
the Australian Capital Territory is governed
by the Chiropractors Registration Ordinance
1983 which came into force on August 13, 1984"
accurate?
A. I object to answering this interrogatory on
the grounds that the same does not enquire
after any matter in issue between the parties
and/or relates exclusively to the case of the
defendant and not that of the plaintiff.
Q11. If the answer to interrogatory 10 is in the
negative; in what way is the statement
inaccurate?
A. I object to answering this interrogatory on
the grounds that the same does not
enquire after any matter in issue between the
parties and/or relates exclusively to the case
of the defendant and not that of the
plaintiff."

14. It is obvious that the 75 questions owe much to automated wordprocessing and they should be approached in the light of the general remarks made at the beginning.

15. Mr Hull, who appeared for the plaintiff, submitted that none of the questions is relative to any issue raised in the case. He submitted further that for the purpose of deciding the matters now before the Court, the plaintiff's allegations may be reduced to their essentials. In relation to the first matter complained of, the essential allegation is that the words "..... Mark James Ryan who styles himself 'Dr', a chiropractor of Canberra and Queanbeyan ....." carry the defamatory meaning that the plaintiff falsely claimed the title of Doctor. In relation to the second publication the essential allegation is that the words "Mark James Ryan, chiropractor ..... revealed under cross-examination that he sold the block at 25 Moore Street to Tekmat Investments ....." carry the defamatory meaning that the plaintiff sought to conceal relevant information from the Supreme Court.

16. There are, I think, three answers to these submissions.

1. The plaintiff has chosen to set out in his statement of
claim the whole of the text of each of the articles and
to follow that with the allegation in each case that "the
said words and figures were,
in their natural and ordinary meaning, defamatory of the
plaintiff". The whole of the text is therefore relevant
to the issues and counsel is not entitled to restrict
consideration to part only of the text in the way it was
submitted should be done.
2. On the issue of qualified privilege (including malice)
and on the issue of exemplary damages the defendant's
conduct is relevant. On the issue of qualified privilege
the defendant is entitled to assert that its conduct was
justified and that it believed that the alleged
defamatory statements were true. The defendant bears the
onus on that issue. On the issue of exemplary damages
the plaintiff will seek to prove that the defendant's
conduct was such that damages should go beyond mere
compensation and solatium. The plaintiff bears the onus
on that issue. Relevant to both issues is the question
whether any statement of fact in the matters complained
of is true. On the issue of exemplary damages at least,
the defendant is entitled to ascertain from the plaintiff
what is the plaintiff's precise allegation if any as to
the inaccuracy of each statement of fact made in the
matters complained of.
3. On the issue of truth, whilst the factual accuracy of the
matters complained of is for the defendant to prove, any
inaccuracy in any one of the
statements of fact in the matters complained of will be
relevant if the plaintiff chooses to rely on it. The
defendant is entitled to ascertain from the plaintiff
what the precise allegation is as to the inaccuracy of
each and every statement of fact.

17. However, ascertaining from the plaintiff which, if any of the statements of fact in the matters complained of is alleged to be inaccurate and ascertaining further the nature of each alleged inaccuracy does not appear to me to raise matters which are required to be answered on oath by the plaintiff. It is rather a matter of obtaining information as to the nature of the plaintiff's reply to the defendant's claim so that the precise issues for the trial may be settled before the trial. Such information may be given on behalf of the plaintiff and does not need to be deposed to by the plaintiff personally. In this regard Mr Hull very properly stated in open Court that the plaintiff would not deny the accuracy of any statement of fact in either publication except the statements that the plaintiff "styles himself 'Dr'" and that the plaintiff "revealed under cross-examination" that he had sold the block to the company named. In the light of that statement the defendant then is not embarrassed by any lack of knowledge of the plaintiff's case. The defendant does not need to interrogate the plaintiff on these matters and is not entitled to any further particulars on these matters.

18. For the record, it may be noted that I ruled during the hearing that:

(i) the plaintiff must answer interrogatories 1, 6(a),
8(b)(2);
(ii) until after discovery the plaintiff is not required
to answer interrogatory 8(e)(1) and (2);
(iii) unless the statement of claim is amended the
plaintiff is not required to answer interrogatories
91 and 92;
(iv) that in view of the plaintiff's counsel's admission
that annexure E to the interrogatories is a copy of
something published in the Canberra Times of 21
June 1986, the plaintiff is not required to answer
interrogatory 96.

19. The appeal is allowed, the decision of the Registrar set aside and in lieu thereof I order that the plaintiff answer within twenty-one days interrogatories Nos. 1, 6(a), and 8(b)(2).

20. Each side has been partially successful in the appeal and before the Registrar and each is to pay his and its own costs of the appeal and of the proceedings before the Registrar.