Kerry Francis Bullmore Packer v the Australian Broadcasting Corporation; David Hill; Kerry O'Brien; Mark Bannerman; Vivian Vivian; Peter Rothwell; Mark Avis; David Webb; Sue Spence and Ian Carroll [1993] ACTSC 25 (31 March 1993)

SUPREME COURT OF THE ACT

KERRY FRANCIS BULLMORE PACKER v. THE AUSTRALIAN BROADCASTING CORPORATION;
DAVID HILL; KERRY O'BRIEN; MARK BANNERMAN; VIVIAN VIVIAN; PETER ROTHWELL; MARK
AVIS; DAVID WEBB; SUE SPENCE and IAN CARROLL
No. SC620 of 1990
Number of pages - 4
Practice and Procedure - Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Practice and procedure - Interrogatories - Purpose - Must be necessary - Mere request for particulars - Not ordered except in special circumstances - Relating solely to opponent's case - Not ordered.

Defamation - Interrogatories - Relating solely to damages - Material - Oppressive.

Supreme Court Rules (ACT) O.34

Supreme Court Rules (NSW) Pt 24 rr 3(3), 5(3)

Daily Telegraph Newspaper Co Ltd v Berry (1879) 5 VLR 343

Lyell v Kennedy (1883) 8 AC 217

Bidder v Bridges (1885) 29 Ch D 29

Fischer v City Hotels Pty Ltd (1970) 92 WN (NSW) 322

Conde v 2KY Broadcasters Pty Ltd (1982) 2 NSWLR 221

Herald and Weekly Times Ltd v Hawke (1984) VR 587

HEARING

CANBERRA, 5 February 1993
31:3:1993

Counsel for the Plaintiff: B. R. McClintock

Instructing Solicitors: Phillips Fox

Counsel for Defendant: M. G. Sexton

Instructing Solicitors: Colquhoun Murphy

ORDER

THE COURT ORDERS THAT:
1. The application of the defendant be dismissed.

2. The defendant applicant pay the plaintiff respondent's costs.

DECISION

MASTER HOGAN This is an application for an order that the plaintiff in an action for defamation answer certain interrogatories administered to him on behalf of the defendant.

THE PLEADINGS
2. The matter complained of was broadcast on the first defendant's television program known as "Lateline", as a segment entitled, "The horse has bolted". It dealt with corporate fraud and the responsibility of those who had controlled companies which had lost large sums of money in recent years. The plaintiff is well known as the controller of a prominent public company.

3. From the transcript of the matter complained of, which was annexed to the Statement of Claim, it appears that in the course of a fairly long television discussion about company fraud and the failure of the government to have done anything effective to punish those responsible, the image of the plaintiff was broadcast, apparently in conversation with the Prime Minister, while two sentences of the spoken text referred to the relationship between politicians and entrepreneurs. At the end of the whole program the image of the plaintiff was again broadcast, again apparently in familiar conversation with the Prime Minister.

4. The Statement of Claim set out imputations said to arise from that publication, namely that the plaintiff was guilty of corporate fraud, that he had acted deceitfully in manipulating company accounts, that he had acted dishonestly in stripping companies of their assets for his personal benefit, that he had bribed politicians, and that he had engaged in disreputable financial dealings.

5. The defence denied that the matter complained of bore, or was capable of bearing, the imputations pleaded, and denied that the matter complained of or the imputations were or were capable of being defamatory of the plaintiff.

6. The interrogatories to which objection was taken were numbered 1, 2, 5 and 6.

THE INTERROGATORIES 1 and 2
7. Interrogatories 1 and 2 may be considered together, and were in the following terms:

"Q1. Since the publication of the matter complained of, have any and
how many persons informed you that they viewed the said matter complained
of?
Q2. If the answer to the preceding interrogatory is "Yes", identify
(without disclosing the identity of any of your witnesses):
(a) insofar as such information was given to you by any such person in
writing, any document constituting the same and its present location;
(b) insofar as such information was given to you by any such person
orally, the substance of each conversation constituting the same and the
location and time of such conversation."

8. Counsel for the defendant submitted that these interrogatories go to two central issues, namely damage to reputation and injury to feelings.

9. I quite agree that interrogatories may be administered which go only to the question of damages. The case cited by counsel, Daily Telegraph Newspaper Co Ltd v Berry (1879) 5 VLR 343 at 352 is one of a number of authorities for that proposition. But it is significant that in that case it was the plaintiff who administered the interrogatory, directed to the defendant, and the question was designed to elicit an admission of a fact relevant to damages which was peculiarly within the knowledge of the defendant. That illustrates what in my view is the proper use of interrogatories.

10. Here we have the defendant administering an interrogatory to the plaintiff. But it is not designed to elicit any fact which would form part of the defendant's case, or cut down the plaintiff's case. It might elicit an admission by the plaintiff of a fact that the plaintiff intended to prove in his own case, but in my opinion that is not an example of the proper use of interrogatories.

11. It is still part of the law about interrogatories that they may not relate solely to the opponent's own case, or to the evidence which relates exclusively to his case. See, for example, per Lord Selbourne LC in Lyell v Kennedy (1883) 8 AC 217 at 224 and per Kay J in Bidder v Bridges (1985) 29 Ch D 29 at 34.

12. It is urged, however, that the answer to this interrogatory will inform the defendant of the case that it has to meet.

13. There are numerous statements in the reported cases which say that this is a legitimate purpose of interrogatories. I think that many of those statements, made late last century or early this century (which includes up to 1970 in the case of New South Wales) are no longer a safe guide to the proper use of interrogatories in the last decade of this century, when the cost of access to justice must be given a more influential role in the administration of civil procedure than it was in those earlier times.

14. There is now, as there was not then, a much cheaper and more efficient method by which a party obtains knowledge of the case that he has to meet. It is called a request for particulars. In the absence of special circumstances it is an unjust imposition on a party, and it needlessly costs a lot more money, to require that party to pledge his oath to the particulars by administering the request for particulars in the form of interrogatories.

15. In saying this I am not really disagreeing with what Helsham J said in Fischer v City Hotels Pty Ltd (1970) 92 WN (NSW) 322. The year of that decision should be noted. In New South Wales in that year procedures in equity were still different from those at common law. What His Honour was deciding was the subject matter about which the party interrogating was entitled to information. His judgment makes clear that in deciding the question he relied upon the subject matters that would properly be the subject of a request for particulars at common law. His Honour had extensive experience in both jurisdictions. But by the equity practice of the time when he decided that case, the method of seeking that information was still by administering interrogatories.

16. Civil procedure has developed since 1886 in England and 1970 in New South Wales.

17. O.34 of the Rules of this Court does not contain express references to a policy that interrogatories should not be allowed unless they are necessary, such as are contained in the New South Wales Rules Pt 24 r 3(3) and r 5(3).

18. Nevertheless, general principle requires that the procedure should not be ordered unless it is necessary. Unless there is some reason special to the particular case, an interrogatory is not necessary if all that it amounts to is a request for particulars.

19. I respectfully agree with everything that Hunt J said in Conde v 2KY Broadcasters Pty Ltd (1982) 2 NSWLR 221. His decision and his reasons did not depend upon any peculiarity in the wording of the New South Wales Rules. It follows that with the greatest of regretful respect, I do not feel bound to apply the obiter dictum of the Full Court of Victoria in Herald and Weekly Times Ltd v Hawke (1984) VR 587 at 581, lines 21-25. But even as a request for particulars these questions should not be sanctioned.

20. The matter complained of was published on 11 October 1990. The interrogatory was administered some time in 1992. It is now 1993. The question asks the plaintiff to number the persons who since that date, had informed him that they had viewed the program, and to give particulars of all the conversations. That question is to my mind blatantly oppressive.

21. A further objection was taken to it, with which I also agree, that the information that it seeks to elicit is not material, even to the question of damages. It is to be contrasted with interrogatory 3, which asks about persons who had informed him that they believed that the imputations applied to him, which might be defensible. See Herald and Weekly Times Ltd v Hawke (1984) VR 587 at 581, lines 5-20.

22. But this interrogatory asks only about statements made by other persons about whether the matter was published to them. It was not pressed as being directed at the extent of the publication.

23. I disallow interrogatories 1 and 2.

INTERROGATORIES 5 and 6
24. Interrogatories 5 and 6 may also be considered together. They were:

"Q5. Since the publication of the matter complained of, have any and
how many persons informed you that they believed that your character,
credit or reputation had been affected in any way by the publication of
the matter complained of?
Q6. If the answer to the preceding interrogatory is "Yes", identify
(without disclosing the identity of any of your witnesses):
(a) insofar as such information was given to you by any such person in
writing, any document constituting the same and its present location;
(b) insofar as such information was given to you by any such person
orally, the substance of each conversation constituting the same and the
location and time of such conversation."

25. At first sight these interrogatories might appear to come within the terms of the approval given in Herald v Weekly Times Ltd v Hawke (above) to questions about the hurt to the plaintiff's feelings. But on closer inspection they do not. They are not directed at details about persons who informed the plaintiff that they believed that the libel was true. They seek details about persons who believed that the plaintiff's reputation had been affected by the publication. Whether or not any such persons could give evidence to that effect if called is one matter, which I do not need to discuss. But it is obvious to me that what anyone said to the plaintiff about their belief concerning the effect of the publication on his general reputation is not a material matter in issue between the parties.

26. These interrogatories are also oppressive for the same reasons as 1 and 2.

27. I disallow interrogatories 5 and 6.

28. I dismiss the application.

29. I order the defendant applicant to pay the plaintiff respondent's costs.