Edmund Bateman v Bruce Shepherd, Australian Medical Association Limited and Reed Business Publishing Pty Ltd [1995] ACTSC 72 (14 July 1995)

SUPREME COURT OF THE ACT

EDMUND BATEMAN v. BRUCE SHEPHERD, AUSTRALIAN MEDICAL ASSOCIATION LIMITED and
REED BUSINESS PUBLISHING PTY. LTD.
No. SC243 of 1993
Number of pages - 9
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Defamation - Interrogatories - Supplementary answers to interrogatories - Particulars - No issue of principle.

HEARING

CANBERRA, 12 May 1995
14:7:1995

Counsel for the Plaintiff: Mr Connell

Instructing Solicitors: Clayton Utz

Counsel for 1st and 2nd Defendants: Ms M. Brennan

Instructing Solicitors: Blake Dawson Waldron

Counsel for 3rd Defendant: Mr B. Meagher

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. The Notice of Motion of the third defendant dated 4 May 1995 is

dismissed.
2. The third defendant is to pay the plaintiff's costs of and
incidental to that Notice of Motion.
3. By consent
(a) the first defendant provide answers to interrogatories
numbered 7, 8, 9, 22, 25, 26 and 27, as requested in the
letter dated 13 April 1995 from the solicitors for the
plaintiff to the solicitors for the first defendant within
fourteen days.
(b) the second defendant provide answers to interrogatories
numbered 8, 9, 10, 25, 28, 29 and 30, as requested in the
letter dated 13 April 1995 from the solicitors for the
plaintiff to the solicitors for the second defendant within
fourteen days.
(c) the plaintiff pay the costs of the first and second
defendant thrown away by the administering of those
interrogatories.
4. The parties bring in minutes of orders outstanding on the Amended
Notice of Motion dated 11 May 1995.
5. The defendants pay the costs of the plaintiff of the Amended
Notice of Motion dated 11 May 1995, other than those of and
occasioned by the amendment of the Notice of Motion.

DECISION

MASTER A HOGAN In this action for defamation there are two Notices of Motion.

2. The action was commenced by Writ on 6 April 1992. An amended Statement of Claim was filed on 2 December 1994. The plaintiff is a general medical practitioner. The first defendant is also a medical practitioner, and was at the relevant times the President of the Australian Medical Association, a body corporate which is the second defendant. The third defendant was the publisher of a newspaper with a circulation throughout Australia among medical practitioners, called "Australian Doctor".

3. The Statement of Claim alleges that on 22 January 1993 the defendants published in the Australian Doctor certain material, that the matter complained of in its ordinary and natural meaning was defamatory of the plaintiff, and that it conveyed the defamatory imputations set out in the pleading. The plaintiff claimed damages, aggravated damages and exemplary damages.

4. The matter complained of did not name the plaintiff. The relevant part of the publication was as follows:

"Meanwhile, despite repeated plaintive cries from myself and others,
those bulk-billing emporiums (I don't mean all of them) which continue
to cheat the system in many ways, go unscathed. Like the odd
pathology firm, they seem to live a charmed life. I have heard it
said, from inside the Department and the HIC, that they must have
minders inside the Department who keep them one step ahead.
Alternatively, it may be that there is a directive from above that
they are to be left alone.
How is it that a GP, no matter how many doctors he has working for
him, can afford a $3 million holiday home when he relies on
bulk-billing for the total reward for services? How is it that a
pathologist with a series of unlicensed outlets (or inlets) can
transfer licenses to those centres just before the inspector comes
around from the HIC?"

5. The particulars of identification of the plaintiff contained in the Statement of Claim were as follows:

"(a) The plaintiff operates a number of bulk billing medical centres,
a fact which is widely known among other medical practitioners,
associates and friends of the plaintiff, current and former patients
of the plaintiff, and diverse other persons.
(b) The plaintiff had purchased a $3 million property in the Southern
Highlands, which purchase was widely publicised in the media at the
time, and which fact was known among other medical practitioners,
associates and friends of the plaintiff, and diverse other persons."

6. It is convenient to deal first with the least complex Notice of Motion, filed by the third defendant on 4 May 1995, by which the third defendant seeks an order that the plaintiff file a supplementary answer to an interrogatory administered to him by the third defendant.

7. The interrogatories in issue, numbered 8 and 9, and the plaintiff's answers, were as follows:

"8A. Since the publication of the matter complained of, has any
person spoken to the Plaintiff about the matter complained of?
8B. Yes.
9A. If the answer to interrogatory 8 is in the affirmative:
(a) with whom (apart from privileged conversations) did the Plaintiff
speak?
(b) when did the conversations take place?
(c) what was the substance of the words spoken?
9B. The Plaintiff objects to answering this interrogatory on the basis
that it is oppressive or vexatious and does not relate to any matter
in issue between the parties, or is not sufficiently material at this
stage of the process, is fishing, seeks the identity of witnesses, and
seeks to interrogate as to matters for particulars."

8. Counsel for the third defendant submitted that interrogatory 9 was a legitimate attempt to seek particulars of the case of the plaintiff relating to identification and damages.

9. There are two answers to that. The first is that I see no reason to depart from what I said in Packer v ABC (ACT Supreme Court, Master Hogan, 31 March 1993, unreported). The use of interrogatories merely to seek particulars is to be discouraged.

10. The second is that an answer to question 9 would not inform the defendant of the case that it has to meet.

11. I would hope that the plaintiff does not propose to give evidence in support of his case, especially about identification, by tendering his own testimony about what any person who happened to speak to him about the publication said to him about it. But that is what the question seeks to find out.

12. If the plaintiff proposes to call as witnesses those other persons, I doubt that the defendant is entitled to a list of their names and addresses, but even if it is, that is not the information that the interrogatory is designed to elicit.

13. The Notice of Motion by the third defendant dated 4 May 1995 is dismissed. I order the third defendant to pay the plaintiff's costs of and incidental to that Notice of Motion.

14. The second application before me is an amended Notice of Motion dated 11 May 1995. A consent order has already been made with respect to orders 3 and 5 sought in the Notice of Motion. The remaining orders sought by the plaintiff are:

1. that the first and second defendants provide certain particulars
relating to their defences;
2. that the first defendant provide answers to certain
interrogatories;
4. that the second defendant provide answers to certain
interrogatories; and
6 and 7. that the third defendant provide answers to certain
interrogatories.

15. The defences of the first and second defendants put publication in issue, denied that the matter complained of had the meanings alleged, denied that it was defamatory of the plaintiff, denied that it referred to the plaintiff, and raised a series of defences of qualified privilege.

Order 1: Particulars of Defences
16. (a) Paragraph 7 of the defences raised a defence of qualified privilege at common law. Paragraph 8 raised a similar defence under the statutes in New South Wales, Victoria, South Australia, Western Australia and the Northern Territory. Particulars were sought with respect to both paragraphs, of "the occasion of qualified privilege relied upon." The response was:

"As to Paragraph 7
1. The matter complained of in paragraph 5 of the Statement of Claim
was published in "Australian Doctor", a weekly publication circulated
primarily amongst Australian medical practitioners. The article dealt
with a number of topics of concern to the medical profession from
Commonwealth funding cutbacks to the scarcity of GPs to beliefs of
suspicious practices in some arms of the profession to the
difficulties facing women practitioners. The first and second
defendants in being a member of the medical profession and in being
established to serve the interests of the medical profession
respectively, shared a legitimate common interest with its readers in
being concerned about problems in the Australian medical system.
As to Paragraph 8
2. As above."

17. The plaintiff then asked the defendants to identify the "topics of concern" and "problems in the Australian medical system".

18. The reply was, in effect, "You have the particulars you asked for, namely, of the occasion of qualified privilege."

19. I think that certainty about the scope of the trial will be assisted by the supply of the further particulars, namely of the "topics of concern" and "problems in the Australian medical system" referred to in the earlier answer. I order that those particulars be supplied.

20. (b) Paragraphs 9(a) and 10(a) of the Defence raised defences of reasonable publication under the Statutes in Queensland and Tasmania, which refer to publication "for the purpose of giving information." The original request was that the defendants should specify the purpose of giving information to the persons to whom publication was made. The response was:

"4. The purpose of giving information to the readers of "Australian
Doctor" was so they would be aware of problems with the Australian
Medical System."

21. The further request was for identification of those "problems". Again, I think that they should be specified.

22. (c) Still dealing with the same defences, the plaintiff sought specification of the information which it was the purpose of the defendants in conveying. The response was, "The defendants wish to convey information regarding problems with the Australian medical profession." I agree that those problems should be identified.

23. (d) Again, still dealing with the same statutory defences, the plaintiff asked the defendants to identify the "subjects" referred to in the pleading, which simply regurgitated the words of the section.

24. The response was:

"6. The subjects covered moves to nationalise the medical profession,
the issue of Commonwealth cutbacks in medical funding, suspicions of
corruption within the HIC, bulk-billing centres and pathology
practices, the difficulty in finding locums and the problems facing
women practitioners."

25. As amended at the hearing, the further specification of that answer that was sought was as follows:

"Please specifically state whether the First and Second Defendants had
suspicions that the Plaintiff was involved in that corruption. Also
please state whether the words 'suspicions of corruption' are meant to
qualify the references to bulk billing centres and pathology
practices, or are only referable to the HIC. If 'suspicions of
corruption' are meant to apply to bulk billing centres and pathology
practices, please give particulars mutatis mutandis those requested in
respect of the suspicions in relation to the HIC."

26. The second part of that request is obviously justified, because of the ambiguity of the response. But, as became clear during argument, I do not think that the defendant's suspicion is the material fact of which particulars are being given. To avoid the need for a further application, however, I think that the defendants, if they are to persist in this particular, should give particulars of the person or persons alleged to hold the suspicion, and whether it is alleged that the suspicion extended to the plaintiff's involvement in the corruption referred to.

27. (e) Similar further particulars should be given with respect to the answers in paragraphs 12 and 13 of that letter, which dealt with other defences of qualified privilege under the Queensland and Tasmanian statutes.

28. (f) Paragraphs 9(e) and 10(e) of the defences relied on another defence under the Queensland and Tasmanian statutes, namely that the matter complained of "was published in good faith and for the public good".

29. The response to the request for particulars of these defences simply referred back to paragraph 13, dealing with public benefit. The ambit of this statutory defence is uncertain in any event. It does not help to elucidate what is meant to be raised by reference to a different concept. "Public good" is certainly different from "Public Interest". How different it is from "Public Benefit" I do not know. But the plaintiff is entitled to know what precisely the defendants will rely upon. I think that particulars should therefore be supplied, setting out expressly (i) what is the nature and extent of the public good for which the material was published, and (ii) what are the facts and circumstances, if any, relied upon to establish the existence of such an aspect of the public good.

Order 2: First defendant's answers to interrogatories.
30. The first of the answers of the first defendant to the plaintiff's interrogatories that is in issue was that to question 12, which read:

"Q12. Before publishing the matter complained of, did the First
Defendant make any enquiries of any person or persons with a view to
ascertaining whether the material contained therein was true or not?
A12. No as I was certain that the material contained therein was
true."

31. Answers to questions 14 and 19 were supplementary to that answer, and referred back to it.

32. The argumentative matter in that answer is clearly not responsive to the question. I order the first defendant to answer questions 12, 14 and 19 directly.

33. The next is the answer to question 16(b), which was as follows:

"Q16. At the time of publishing the matter complained of, did the
First Defendant have any belief as to the accuracy of any of the
statements contained in lines 97-119 therein, and if so specify by
reference to the numbered paragraphs of the annexure to the Statement
of Claim and separate sentences therein as necessary:
(a) that which the First Defendant believed was accurate;
(b) the grounds upon which the First Defendant believed it to be
accurate.
A16. (a) Yes, I believed the statements in lines 97-119 were accurate.
(b) I object to answering this interrogatory in that it is vexatious,
oppressive and does not relate to the matters in issue."

34. The belief of the defendant in the truth of what he published is obviously material to the defences of qualified privilege. The grounds for that belief are just as obviously material. An answer to the question does not require the defendant to disclose his evidence, but the factual grounds about which evidence will be given.

35. I order the first defendant to answer interrogatory 16(b).

36. Question and answer 18 were as follows:

"Q18. Since publication of the matter complained of, has the First
Defendant offered any apology the Plaintiff in respect of the
publication of the matter complained of? If so, what has been offered
(specifying the substance of what was said) and the time and
circumstances thereof or, if in writing, furnish a copy of the
document or refer to it by number in the First Defendant's List of
Documents.
A18. An apology was published in "Australian Doctor" on 19 February
1993."

37. The question is quite explicit. It is an apology by the first defendant, not one that may have been by someone else, that is material. The answer is evasive.

38. I order the first defendant to answer directly interrogatory 18.

39. Question and answer 31 are as follows:

"Q31. State what knowledge the First Defendant had of the Plaintiff as
at the date of publication of the matter complained of.
A31. I object to answering this interrogatory on the basis that it is
oppressive, vexatious and not relevant. The interrogatory as drafted
is also far too broad in that it does not specify what type of
information I may or may not have known about the plaintiff."

40. I think that the question is too wide and is oppressive. I make no order in respect of it.

41. I grant leave to the plaintiff, at the plaintiff's expense, to administer such further interrogatory or interrogatories as he may be advised relating to the subject matter intended to be covered by interrogatory 31.

Order 4: Second defendant's answers to Interrogatories
42. The second defendant is the incorporated association on whose behalf the first defendant purported to be writing, as its President.

43. Among the interrogatories administered to it were the following, with its answers:

"Q36. At the date of publication of the matter complained of did the
Second Defendant have in operation any system whereby a check was made
of matters to be published on its behalf (whether generally or in
respect to the First Defendant's material, specifying which) in order
to ascertain whether or not the material was suitable for publication
by reason of the nature of its content?
A36. I object to answering this interrogatory as it is oppressive and
vague as I do not know what is meant by "suitable for publication."
Q37. If the answer to interrogatory 36 is in the affirmative, did the
operation of that system bring to the attention of any officer,
servant or agent of the Second Defendant any of the matters complained
of and if so,
(a) to whose attention were they brought?
(b) when was it brought to his or her attention?
(c) what action was taken by that person in relation to the matter
complained of or any part of it?
A37. Not applicable."

44. In the context of this litigation I do not see how anyone could be in any doubt about what "suitable for publication" meant. However, during argument, in order to make assurance doubly sure, counsel for the plaintiff agreed to amend the question by substituting "non-defamatory" for "suitable for publication".

45. As so amended it is obvious that the plaintiff is entitled to answers to questions 36 and 37, and I so order.

Orders 6 and 7: Third defendant's answers to Interrogatories
46. The third defendant is the proprietor of the newspaper in which the matter complained of was published.

47. In its defence it put in issue the identification of the plaintiff and the defamatory nature of the publication, and the plaintiff's entitlement to aggravated or exemplary damages. It also pleaded, in mitigation of damages, an apology published by it on 19 February 1993 and a reply to the matter complained of, written by the plaintiff, which it also published on the same date. It did not raise any defence of qualified privilege.

48. The interrogatories that are in issue are in a form commonly used when qualified privilege has been raised, relating to information in the defendant's possession, enquiries or searches that it made, its view about the accuracy of such information as it had, or about the matter published, and so on.

49. Objection is taken, not so much as to their form, as to their relevance in the light of the issues raised by the third defendant's defence.

50. The plaintiff's case is that the interrogatories are directed at the issues of aggravated damages and exemplary damages.

51. The particulars of aggravation pleaded in the Amended Statement of Claim are as follows:

"Particulars of Aggravation
The hurt and harm to the Plaintiff was increased by his knowledge of
the following matters:
(a) The Plaintiff's knowledge of the falsity of the imputations.
(b) The First, Second and Third Defendants' knowledge of the falsity
of the imputations or reckless indifference as to their truth or
falsity having failed to make any enquiry of the Plaintiff or any
other reasonable enquiry prior to publication."

52. In my opinion the interrogatories administered seek to elicit admissions relevant to the matters raised by paragraph (b) of those particulars.

53. It is apparent from the discussion during argument that there may well be an issue of law in this case whether, even if those particulars are made out, aggravated or exemplary damages could or would be awarded against the third defendant. I do not think that I should determine such a point as a preliminary point which arises incidentally in an argument about interrogatories. In the state of the pleadings and the particulars as they stand, the interrogatories administered should be answered.

54. I make an order to the effect of orders 6 and 7 as sought in the Notice of Motion as amended.

55. During the argument it became clear that there were some matters in contention on which I had a relatively concluded view, but that there were others on which I needed to reserve time for consideration.

56. On some of those concluded matters, the parties may already have complied with the substance of the views that I then expressed.

57. On other matters, it is not convenient for orders to be made simply in terms of the relief sought in the amended Notice of Motion, as some questions and requests were further amended during the discussion.

58. I therefore direct the parties within 21 days to bring in minutes of the orders outstanding, in accordance with my reasons.

59. The plaintiff was not successful on every point that was raised, but did succeed on most of the substantial matters in contention.

60. I order the defendants to pay the plaintiff's costs of the amended Notice of Motion of 4 May 1995, other than those of and occasioned by the amendment of the Notice of Motion.