Anne Katherine Carnell v Lucinda Spier [1997] ACTSC 40 (3 June 1997)

SUPREME COURT OF THE ACT

ANNE KATHERINE CARNELL v. LUCINDA SPIER
No. SC355 of
1995
Number of pages - 10
Practice and procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Practice and procedure - defamation - defendant's application to strike out parts of statement of claim - whether matter complained of capable of meaning that plaintiff misconducted herself as Chief Minister.

Practice and procedure - defamation - amendment of defence - defence of justification - Polly Peck defences and defence of "contextual imputation" - whether any difference in principles behind these defences - defendant's right to plead truth other than as a complete defence - whether defence of contextual imputation a complete or partial defence.

Practice and procedure - defamation - interrogatories - purpose and effect - must be necessary - not ordered.

Defamation Act 1901, of the State of New South Wales in its application in the Territory, s.6

Defamation Act 1974 (NSW), s.16

Theophanous v. The Herald & Weekly Times Limited and Another [1994] HCA 46; (1994) 182 CLR 104

Polly Peck (Holdings) Plc and Others v. Trelford and Others [1986] 1 QB 1000

Woodger v. Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1

Moore v. TWT Ltd [1991] ACTSC 96; (1991) 105 FLR 350

Australian Consolidated Press Limited v. Uren [1966] HCA 37; (1968) 117 CLR 185 at 204-5

Goldsbrough v. John Fairfax & Sons Ltd (1934) 34 SR 524

Hart v. Wrenn and Another (1995) 124 FLR 135

Conde v. 2 KY Broadcasters Pty Ltd and Another [1982] 2 NSWLR 221

Simpson Bailey and Evans, Discovery and Interrogatories, 2nd ed. 1990

Fischer and Another v. City Hotels Pty Ltd (1970) 92 WN 322

Marriott v. Chamberlain (1886) 17 QBD 154

Sharpe v. Smail and Another (1975) 49 ALJR 130

Kupresak v. Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32

Ryan v. Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; (1990) 101 FLR 396

Packer v. The Australian Broadcasting Corporation and Others (unreported, Supreme Court of the Australian Capital Territory, Master Hogan, 31 March 1993)

ASSAF and Another v. Skalkos and Another (unreported, Supreme Court of New South Wales, Hunt CJ, 9 August 1995)

Robert Jones Investments Ltd v. Australian Stock Exchange Ltd (unreported, Supreme Court of New South Wales, Hunt J, 5 October 1990)

HEARING

CANBERRA, 1 May 1997 (hearing), 3 June 1997 (decision)

3:6:1997

Counsel for the applicant/defendant: Mr. A. Leopold

Solicitors for the applicant/defendant: Allen Allen & Hemsley

Counsel for the respondent/plaintiff: Mr. B. Salmon, QC

Solicitors for the respondent/plaintiff: Deacons Graham & James

ORDER

1. The plaintiff within seven days amend the statement of claim in accordance with the orders made on 1 May 1997.

2. The defendant within 14 days file a further amended defence in the form contained in Schedule 2 (together with such amendments as may be rendered necessary by the plaintiff's amendment of the statement of claim in accordance with Order 1 above).

DECISION

MILES CJ

1. There are two motions before the Court, the plaintiff and defendant each seeking various types of interlocutory relief.

2. The plaintiff sues the defendant for libel arising out of the publication on or about 19 April 1995 of what has been described as a press release. A copy appears as Schedule 1.

3. The defendant filed a defence, already amended once. She admitted publication but denied identification and defamatory meaning and is asserting a defence of fair comment, a so-called Theophanous defence and, in respect of the allegation that the publication meant that the plaintiff is prepared to lie to gain office, a defence of justification by way of truth and public benefit.

4. The plaintiff filed a reply asserting malice in response to the defendant's pleas of fair comment, the Theophanous defence and truth and public benefit.

5. I refused an adjournment of the hearing of the motions which was sought by the plaintiff in order to await the expected High Court review of Theophanous v. The Herald & Weekly Times Limited and Another [1994] HCA 46; (1994) 182 CLR 104.

Defendant's application to strike out parts of statement of claim

6. The orders I made in respect of this aspect were made immediately at the end of argument and were as follows:

As to paragraph 4 of the statement of claim: (a) The words "is a dishonest person who" are struck out. (b) The words "is a dishonest person who" and the word "deliberately" are struck out. (c) The words "is an irresponsible person who" are struck out. (d) No order made. (e) The words "a wicked and" and the word "person" are struck out. (f) Struck out in toto. (g) The words "is a disloyal person who" are struck out. (i) By consent, struck out in toto.

7. The plaintiff is to make formal amendments to the statement of claim in accordance with the above within seven days.

8. The plaintiff was given leave to amend the statement of claim, if so advised, by adding further alleged meanings that the plaintiff is dishonest and that the plaintiff is irresponsible. Those amendments are also to be made within seven days from today.

9. I was asked to give reasons only in relation to the finding implicit in the orders made that the matter complained of was capable of giving rise to one of the meanings pleaded in sub-paragraphs 4(b) and 4(d), namely that the alleged conduct of the plaintiff was attributed to her performance as "Chief Minister".

10. The question is essentially one of individual judgment. The ordinary reader in the Australian Capital Territory could read the article in the knowledge that the plaintiff became Chief Minister following the election prior to publication. The ordinary reader could expect or believe that as Chief Minister the plaintiff was likely to exercise more influence over government policy and legislation than an ordinary minister, a government backbencher or a member of an opposition party, and that accordingly the plaintiff could be instrumental in diverting the policies of the party in government from what those policies had been before the election. The ordinary reader could infer that if, as alleged, the plaintiff has already broken election promises and if, as alleged, she has a present intention to continue breaking election promises and to soften up the community "for a huge betrayal", then the plaintiff tells lies in her capacity as Chief Minister and performs her duties as Chief Minister in a manner which can be described as dishonest and deceitful.

11. I ruled that, for the purposes of determining the application to strike out parts of the statement of claim, there was nothing to be gained by examining and comparing the words "dishonest" and "deceitful" in order to decide whether the meaning of each in context is so different as to require the plaintiff to elect between them, or whether such meanings are so alike as to require one or the other to be struck out as "mere surplusage".

12. I was not asked to give reasons in relation to the other orders to strike out parts of the statement of claim and I refrain from doing so. I will say, however, that although on balance I considered that the discretion should be exercised to make the rulings that were made, the offending words, if not struck out, would not have made a great deal of difference to the conduct of the trial. This may be relevant on the question of costs.

Amendment of defence

13. The next question is whether the defendant should be allowed to further amend her defence. The motion as originally brought sought to further amend the defence, but it is common ground that further amendment will be necessary in any event to reflect my decision to strike out parts of the statement of claim. Accordingly, Mr. Leopold handed up a draft incorporating all proposed further amendments to the defence. It appears as Schedule 2 to these reasons. I shall say more about it later.

14. Mr. Salmon QC opposed the addition of the defences set out in proposed paragraphs 9 and 10. Paragraph 9 purports to set up a so-called Polly Peck defence (Polly Peck (Holdings) Plc and Others v. Trelford and Others [1986] 1 QB 1000) and paragraph 10 to set up a so-called contextual imputation defence.

15. Mr. Salmon submitted at the hearing that in the exercise of discretion neither of those defences should be allowed. He drew attention to a previous decision of my own, Woodger v. Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1. In that decision I sought to describe the nature of the two defences. I came to the conclusion then that there was no real difference between the defence of contextual imputation and the principles that lie behind the Polly Peck decision.

16. Attention was drawn by Mr. Salmon to an article, the source of which he was unable to identify, written by Mr. Laurence W. Maher, a practitioner of this Court. Mr. Maher commences his article by describing the Polly Peck variant of the defence of justification as one of the most interesting recent developments in the law of defamation. Mr. Salmon properly commented that despite the generation of interest, the Polly Peck defence has not, according to his researches, ever succeeded. In the Woodger decision (at 23) I said that because a defendant under the law of the Australian Capital Territory is entitled, contrary to rules of practice followed in England, to rely upon the truth of the matter complained of in mitigation of damages, I could see no objection to a defendant raising by way of defence the same matters that are permitted to be raised in New South Wales by s.16 of the Defamation Act 1974 of that State which expressly provides for the defence of so-called contextual imputation. I added, or conceded, that I was unable to see where the difference lies ultimately between the defence of contextual imputation and the principles that lie behind the Polly Peck judgment. I noted then and note again that in Moore v. TWT Ltd [1991] ACTSC 96; (1991) 105 FLR 350, Higgins J, disallowing an amendment to include a defence of contextual imputation as well as a Polly Peck defence, appeared to be of the view that the two defences were virtually indistinguishable. I therefore held that the defence known as contextual imputation in New South Wales is available in the Australian Capital Territory. Mr. Maher states that I meant that it is part of the common law of the Territory. I do not think that Mr. Maher's contention is correct. It is because s.6 of the Defamation Act 1901, of the State of New South Wales in its application in the Territory provides that truth and public benefit, and not, as at common law, truth alone, constitutes the defence of justification in the Territory that a defendant is able to plead and to call evidence of the truth of the matter complained of insofar as truth is relevant to damages. There is a line of judicial pronouncement to this effect, the most authoritative of which is the judgment of Windeyer J in Australian Consolidated Press Limited v. Uren [1966] HCA 37; (1968) 117 CLR 185 at 204-5. However, there are differing views: see Goldsbrough v. John Fairfax & Sons Ltd (1934) 34 SR 524 and Hart v. Wrenn and Another (1995) 124 FLR 135. This is not the occasion to attempt a resolution.

17. Mr Maher further considers that I erroneously ran together two different albeit similar regimes of defence, although he was kind enough to acknowledge that, despite the oddness of the Woodger decision and the lack of illumination it provided, the differences may not fundamentally alter the course of a trial and, if I understand him correctly, would not have altered the outcome of Mr. Woodger's claim. I did not understand Mr. Salmon in his oral submissions to develop Mr. Maher's line of argument that what amounts to a plea of so-called contextual imputation is not available under the law of the Australian Capital Territory.

18. As to the proposed defences in paras. 9 and 10, Mr. Salmon did not argue at the hearing that the circumstances of the case could not give rise to defences of the nature pleaded in each paragraph. Somewhat against my better judgment, I acceded to a request from Mr. Salmon, who had come into the matter only on the night before the hearing, that the parties have leave to deliver further submissions in writing. I expected that the written submissions would be confined to any important aspects of the proposed defences under paras. 9 and 10. However, the parties took the opportunity to widen the ambit and lengthen the consideration of the dispute.

19. In his written submissions, Mr. Salmon submitted that proposed para.9 does not bring the defence pleaded within the Polly Peck principles because proposed para.9 is insufficiently distinguished from the general plea of justification in para.8.

20. Proposed para.9 is in the following terms:

"If the matters complained of were published in the Australian Capital Territory of and concerning the plaintiff and were defamatory of her (which is not admitted), then: (a) the matters complained of in their natural and ordinary meanings meant and were understood to mean that: (i) the plaintiff without any reasonable basis broke promises she had made to the people of the Australian Capital Territory; (ii) the plaintiff without any reasonable basis declined to reaffirm promises she had made to the people of the Australian Capital Territory ....."

21. Proposed paragraph 9 then proceeds to justify the meanings pleaded by the defendant by reason of truth and public benefit.

22. These meanings are similar to meanings (c), (f), (j) and (k) in para.4 of the statement of claim pleaded by the plaintiff. It is, however, arguable that in sub-paras. 9(a)(i) and (ii) the defendant has "extracted the sting" from the other imputations pleaded by the plaintiff and for that reason I am of the view that the defendant's meanings may be relied upon by the defendant for what I called in Woodger at p.24 "the first Polly Peck principle". It is also arguable in the alternative that they are meanings which are sufficiently different from those relied upon by the plaintiff that they may be relied upon by the defendant for the purpose of what I called "the second Polly Peck principle". I do not think that the defendant needs at this stage to refine the pleading further by distinguishing between the first and second Polly Peck principle. The plaintiff is sufficiently on notice and the point can be argued at trial.

23. Proposed para.9 is therefore allowed.

24. Similarly, with regard to proposed para.10, the defendant appears to wish to set up a defence in the nature of the contextual imputation defence available under s.16 of the Defamation Act 1974 of New South Wales. Paragraph 10 is similar to para.9, but it adds the important addition of an allegation in sub-para.10(d) that the imputations pleaded by the plaintiff did not further injure the plaintiff's reputation.

25. It may be that in Woodger I was not strictly correct in suggesting that in the Australian Capital Territory a defendant may rely by way of complete defence upon the same matters as may be relied upon in New South Wales under s.16 of the Defamation Act of that State. It may have been more accurate if I had said that a defendant who successfully raises those same matters, whilst not entitled to judgment, reduces the plaintiff's entitlement to an award of nominal damages only. Be that as it may, the defendant should be at liberty to plead those matters. Indeed the preferred practice is that the defendant should plead them in order that the plaintiff and the Court know what the issues are. That point seems to be made repeatedly in cases which deal with the Polly Peck principles.

26. Mr. Salmon's written submissions also drew my attention to the fact that a second draft of the proposed further amended defence which was handed up in court contained further proposed amendments not appearing in a previous draft served on the plaintiff. Except for the amendments to the particulars, the further proposed amendments to para.8 in the second draft appear to me to go no further than to reflect the effect of the orders I made striking out certain parts of the statement of claim. However, the second draft adds to the particulars under para.8, para.E of the particulars under para.6 and para.D of the particulars in proposed para.9.

27. Insofar as para.E of the particulars under para.6 supports the Theophanous defence, I think that it may be relied upon to support the defence of truth and public benefit. Paragraph D of the particulars in proposed para.9 has already been allowed.

28. The Woodger decision was not the subject of appeal and it stands as a judgment of the Court. I am not convinced that it is so obviously wrong that it should be re-considered at this stage on the hearing of a motion to amend a defence. If Woodger is to be over-ruled, that should await a full hearing in which the facts as determined will play an essential part in any decision. As I have already indicated, it may be that if contextual imputation or something like it is to be regarded as a complete defence, rather than a partial defence which reduces damages, then this needs to be pleaded by an allegation as is made in proposed para.10 that the contextual imputation did not further injure the plaintiff's reputation. Proposed para.10 ought be allowed.

29. I therefore rule that the defendant be at liberty to further amend the defence in order to add proposed paragraphs 9 and 10 and also to add the amendments consequent upon my ordering certain parts of the plaintiff's statement of claim to be struck out.

Plaintiff's answers to defendant's interrogatories

30. In correspondence between the solicitors, the defendant delivered informal interrogatories to the plaintiff. The plaintiff declined to answer them on the ground that they are oppressive or vexatious.

31. The interrogatories to which the defendant seeks answers under compulsion of court order are as follows:

"1. Were you contacted by anyone after the publication of the matter complained of who referred to the matter complained of?

2. If the answer to question 1 is yes, state in what circumstances, by how many persons and by whom you were contacted.

3. If the answer to question 1 is yes, state to the best of your recollection the substance and effect of what each of these people said to you regarding the matter complained of, and in so far as contact was made by any such person in writing, identify any document constituting the same and its present location.

4. After the publication of the matter complained of did you see any written material referring or relating to the matter complained of or its substance?

5. If the answer to 4 is yes, identify the written material and its present location, and the circumstances in which you saw the written material.

6. After the publication of the matter complained of, did you hear or see any radio or television broadcast referring to or relating to the matter complained of or its substance?

7. If the answer to 6 is yes, identify the broadcast and the circumstances in which you saw or heard the broadcast. ..... 14. At a meeting with the defendant on 13 April 1996 were you asked to confirm any of the three promises set out in particular (A) to paragraph 6 of the Defence?

15. If yes to the preceding interrogatory, set out the substance of your response at that meeting.

16. Look at the Statement of David William Ash of 2 April 1996 which is attached to these interrogatories. Did you say words to the effect of 'We're behind in the polls. I will do anything, even if it means lying, to make sure that we win'?"

32. The extent to which it is permissible to require answers to interrogatories is very much a matter of local legal culture and practice. An examination of the cases does not help much. Interrogatories were not permissible at common law. Practitioners trained and experienced in the common law tradition in New South Wales prior to 1970 are not enthusiastic about interrogatories: see Conde v. 2 KY Broadcasters Pty Ltd and Another [1982] 2 NSWLR 221. On the other hand, interrogatories appear to be popular in Victoria and practitioners there have written a book on the subject of discovery and interrogatories: see Simpson Bailey and Evans, Discovery and Interrogatories, 2nd ed. 1990. Equity lawyers and lawyers trained in the judicature system fusing law and equity believe that interrogatories shorten trials and improve the quality of justice: see Fischer and Another v. City Hotels Pty Ltd (1970) 92 WN 322. Probably this was so in the days when the length and prolixity of the questions asked was limited by the scrivener's capacity to wield a pen, but with modern word-processors, fax machines, photocopiers and more, there is no doubt that interrogatories, like discovery, can be used oppressively and to add to the cost of litigation. It appears to be recognized that in straightforward cases interrogatories only add to delay and expense and that it is simpler to put a witness in the witness box and ask questions than to draft interrogatories in writing which have to encompass a number of complex hypothetical situations depending on the answers to foregoing questions and then to have the answers completed in virtual affidavit form. Moreover, notices to admit and request for particulars can often be a cheaper alternative to interrogatories or may at least restrict the range of interrogatories that need to be administered. It is to be emphasised that the technique of administering unnecessary interrogatories in the hope of getting answers with which the witness may later be contradicted in cross-examination will be discouraged.

33. It is one of the disadvantages of interrogatories which frustrates attempts to contain delay and cost in litigation that, on some of the authorities, the questions do not have to be directly concerned with any issue in the case. In Marriott v. Chamberlain (1886) 17 QBD 154, which is said to be the foundation of the modern rule, Lord Esher MR said at 163:

"The right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue."

34. In Sharpe v. Smail and Another (1975) 49 ALJR 130, Gibbs J (as he then was) stated (at 133) that:

"..... interrogatories may be directed not only as to matters directly in issue but also to facts which are relevant to some question in issue."

35. The relevant rule of court in this jurisdiction is O.34 r.1 which provides as follows:

"Discovery by interrogatories

1. (1) A party to an action commenced by writ of summons, and, by leave of the Court, a party in any other cause or matter, may deliver interrogatories relating to any matter in question between that party and the other party or parties.

(2) Further interrogatories may be delivered by leave of the Judge.

(3) The Court may order that all or any of the interrogatories may be answered by some person on behalf of a party and, in such a case, the answers of that person shall be as effective and binding in all respects as if made by the party interrogated.

(4) Interrogatories which do not relate to any matters in question in the action, cause or matter shall be deemed to be irrelevant, notwithstanding that the answers to them would be admissible on the oral examination of a witness.

(5) Interrogatories may be delivered by letter setting out the precise terms of the interrogatories."

36. This rule has been the subject of decisions of the Court over the years. For instance, by Blackburn CJ in Kupresak v. Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32, by myself in Ryan v. Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; (1990) 101 FLR 396 and most recently by Master Hogan in Packer v. The Australian Broadcasting Corporation and Others (unreported, 31 March 1993). Master Hogan pointed out in the last mentioned case that the Rules of this Court do not contain express references to a policy that interrogatories should not be allowed unless they are necessary, such as are found in New South Wales, but nevertheless general principle requires that the procedure should not be ordered unless it is necessary. I think with respect that the Master was right, although Hunt CJ apparently thinks he was wrong: ASSAF and Another v. Skalkos and Another (unreported, Supreme Court of New South Wales, 9 August 1995). I note that in Robert Jones Investments Ltd v. Australian Stock Exchange Ltd (unreported, Supreme Court of New South Wales, 5 October 1990) Hunt J, as he then was, said that "interrogatories .... may be directed to any statements made by other persons to a plaintiff concerning the matter complained of after its publication". However, I think, with respect, that this statement is too wide.

37. In the present instance, interrogatories numbered 1 to 7 are concerned with what another person said to the plaintiff in reference to the matter complained of and with documents or radio or television broadcasts concerning "the matter complained of or its substance".

38. As far as the conversations with other persons are concerned (questions 1, 2 and 3), the interrogatories are not limited in subject matter except as to reference in the conversation by the other person to the matter complained of. In this respect they are even wider than the interrogatories disallowed by Master Hogan in Packer v. Australian Broadcasting Corporation. There is no requirement that the material sought be confined to any issue in the case, such as identification of the plaintiff, or damages, in relation to which evidence of such conversation might be admissible. Nor am I convinced that the material sought is confined to matters relevant to any question in issue or to the existence or non-existence of facts indirectly in issue. The answers required would cover such totally irrelevant matters as what the other person thought the words meant, or the other person's opinion as to the defendant's motive and so on, including all kinds of other material which are clearly irrelevant and likely to raise false issues. Despite the breadth of the test as expressed in Sharpe v. Smail, I do not think that, in the exercise of discretion and in the interests of justice, it is desirable that the plaintiff be required to answer such wide-ranging questions. To require the plaintiff to do so would, in my view, be oppressive.

39. Similarly, in relation to question 4, the fact that the defendant saw some other document which related to the matter complained of is not of itself relevant, unless the other document be in some way relevant. The interrogatories do not indicate any way in which the other document may be relevant. The same is true for questions 6 and 7, in relation to what the plaintiff saw or heard on television or radio.

40. As to questions 14 and 15, the questions assume that a meeting between the plaintiff and the defendant took place on 13 April 1996. If an interrogatory such as that delivered is to require an answer, the plaintiff should be asked first whether such a meeting took place. Even if she answers in the affirmative, she should not, however, be asked further "were you asked to confirm any of the three promises set out in particular (A) to paragraph 6 of the Defence?". That further question, in my view, unnecessarily involves the formation of an opinion or the reaching of a conclusion on the part of the plaintiff before the question can be answered. A similar objection applies to the request to "set out the substance of your response", which is not even in the form of a question.

41. Question 16 is open to another fundamental objection. It is intimidating and impermissible to put to a witness a document identified by the cross-examiner and then ask questions of the witness which arise out of that document, unless the document is shown to be a document of the witness or is in evidence or the cross-examiner undertakes to make the document relevant and to tender it. Interrogatories should not be used in order to allow such a course to be taken.

42. I therefore decline to make an order requiring the plaintiff to answer questions 1 to 7 inclusive and questions 14, 15 and 16.

43. The further order which I make on the defendant's amended notice of motion dated 3 March 1997 is as follows:

44. That the defendant within 14 days have leave to file a further amended defence in the form contained in Schedule 2.

45. As I understand it, the other matters raised by the two notices of motion have been dealt with by consent. I make no order on the plaintiff's notice of motion dated 18 March 1997.

46. Unless the parties wish to be heard, I propose to order that each party pay her own costs.

47. I propose also to give directions as to the further conduct of the case.