The Hon Peter Howard Costello and Tanya Pamela Costello v Random House Australia Pty Ltd Anthony John Abbott and Margaret Veronica Abbott v Random House Australia Pty Ltd [1998] ACTSC 216 (22 May 1998)

  
  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   HIGGINS J

   PRACTICE AND PROCEDURE - Interrogatories
- Objections to - Whether
oppressive - Whether matters more suited to particulars - Where seeking third
party responses and feedback
- Where unlimited as to time - Whether necessary
to conduct of litigation - Need for restraint - Interrogatories disallowed.

  
Supreme Court Rules , O34 r9

   Assaf v Skalkos [1973-96] ADef.R 43, 751; distinguished

   American Flange & Manufacturing Co Inc v Rheem (Australia)
Pty Ltd
(No. 2) [1965] NSWR 193; referred to

   Herald and Weekly Times Ltd v Hawke [1984] VR 587; discussed

   Toomey v John
Fairfax Ltd [1985] 1 NSWLR 291; referred to

   Packer v ABC (Supreme Court of the Australian Capital Territory, Master
Hogan, 31
March 1993, unreported); followed

   Carnell v Spier (Supreme Court of the Australian Capital Territory,
Miles CJ, 3 June
1997, unreported); discussed

   White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB
653; cited

   Conde
v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221; referred to

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

  

  

   CANBERRA, 1 May 1998 (hearing), 22 May 1998 (decision)

   #DATE 22:05:1998

   Appearances

   Counsel for the Plaintiffs: Mr B Meagher

   Instructing Solicitors: Colquhoun Murphy

   Counsel for the Defendant: Mr R L Crowe

   Instructing Solicitors: Phillips Fox

  

  

   Order:

   1. The defendant's application for answers to interrogatories 5
and 6
is refused.

   2. The parties may make further submissions as to costs.

  

  

   HIGGINS J

  

  

   1. On 1 May
1998 I reserved my decision as to whether the plaintiffs
in these matters should be required to answer certain interrogatories
delivered
on behalf of the defendant.

  

   2. The interrogatories in question are as follows:

  

   5. Has any person spoken to you or
behaved towards you in such a way as
indicated to you:

   (a) that that person had read the matter complained of (or otherwise learnt
of its contents);

   (b) that, as a result of having done so, that person had either:

   (i) identified you as having been referred
to in the matter complained of;

   (ii) believed the matter complained of was true;

   (iii) thought the less of you.

   (c) whether
any such person, having so indicated to the plaintiff that that
person had read the matter complained of (or otherwise learnt of
its
contents), had said or done anything whereby your feelings were otherwise
injured.

   6. If the answer to any part of 5 is in
the affirmative, please state in
respect of each such person:

   (a) the identification of each such person;

   (b) the date or
dates upon which he or she spoke or behaved in the manner
indicated;

   (c) the substance of what each such person said or did;

   (d) your reaction on each such occasion.

  

  

   3. ground th""

  

   4. The defendant's solicitors, in a reply dated 3 April
1998, declined
to withdraw the interrogatories. They referred to the decision of Hunt CJ
at CL in Assaf v Skalkos [1973-96]
ADef.R 43, 751.

  

   5. A further ground of objection not advanced until the hearing of this
application was that the subject
of the interrogatories were, if allowable at
all, matters suitable for a request for particulars rather than
interrogatories.

 


   6. errogatories". That '

  

   7. R 193

  

   8. "Oppression" may, in some circumstances, overlap with an objection that
the interrogatory is "fishing" (i.e. seeking to make out a new case).

  

   9. Colling MR in White & Co v Credit Reform
Association and Credit
Index Ltd [1905] 1 KB 653 noted:

  

   "(at 659) Now there is one general principle underlying the whole
law as to
interrogatories, namely, that they must not be of such a nature as to be
oppressive, and to exceed the legitimate requirements
of the particular
occasion. To require of the publishers of a publication like the defendants'
that they should go through their
books, and by reference thereto, or
otherwise, specify all the companies, firms, and persons to whom the
publication has been supplied,
or shewn by or through the defendants or their
agents, on the chance that some person may be discovered in whose case the
publication
would not be privileged, would be, in my judgment, oppressive..."

  

  

   10. outwe

  

   11. It is also oppressive, as Hunt CJ
at CL noted in Assaf v Skalkos
at para 6, for a party to interrogate as to material which could not "be
led in evidence except
by way of an accidental side wind".

  

   12. Whether these interrogatories are oppressive in that latter sense
depends on the
validity of the second objection.

  

   13. Similar interrogatories were considered by the Full Court of the
Supreme Court of Victoria
in Herald and Weekly Times Ltd v Hawke [1984] VR
587. They were different in some material respects asking, in the equivalent
of
5:

  

   "(at 589)...have any persons informed you or behaved towards you in such a
manner as to indicate that..."

  

  

  
14. Crockett, Murphy and Marks JJ rejected the interrogatory and its
dependent equivalent of 6.

  

   15. One ground for doing
so was:

  

   "(at 590)...It [ie the interrogatory] spans a long period of time [ie since
the publication], and certainly, insofar
as it requires the plaintiff to make
a judgment as to the motivation of the behaviour of all persons or any person,
it is not a proper
interrogatory."

  

  

   16. Further it was "vague" in that it did not distinguish between
"informing" persons and "indicating
by their behaviour" persons.

  

   18. As a result this statement appears from which counsel for the
defendant, Mr Crowe,
derives solace:

  

   "(at 591) It may be that interrogatories proper in form could be directed
to a plaintiff on these subject
matters."

  

  

   19. He contends that these interrogatories are proper in form and directed
to relevant matters.

  

   20.
Their Honours continued:

  

   "(at 592)...the interrogatory must be directed to facts material to the
issue, and not simply to
the evidence whereby the interrogated party hopes to
make out his case, whether by direct contradictory evidence, by necessary
inference
or otherwise.

   However, when the issue of general damages in a libel action is considered,
the plaintiff may seek to lead evidence
and to establish facts which will, if
accepted, increase those damages. Although the existence of those facts is
supportive only
of the plaintiff's case, they may be facts as to the existence
of which the defendant is entitled to interrogate."

  

  

   21.
In Packer v ABC (Supreme Court of the Australian Capital Territory,
Master Hogan, 31 March 1993, unreported), the learned Master
considered
an interrogatory similar to 5 in effect but in the form:

  

   "(at 3) Since the publication....have any and how
many persons informed you
that they viewed the said matter..."

  

  

   22. It asked only after that category of persons referred
to in HWT v Hawke
as "informing persons". It was similarly unconfined in terms of time following
the publication in question.

 


   23. The Master did not consider the interrogatory to be allowable.

  

   "(at 5) 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."

  

  

   25. Even so, the Master declined to support
the interrogatories, even if
reformulated as a request for particulars, saying:

  

   "(at 7) 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."

  

  

   26. The Master also adverted to a further objection. This was that
the
interrogatory was directed not towards "informing persons" identifying the
matter as applying to the plaintiff but rather as
to whether the material was
published to those persons.

  

   27. There was a further interrogatory directed to identifying persons
informing the plaintiff that "they believed that your character, credit or
reputation had been affected in any way by the publication."

  

   28. That did not, the Master concluded, inquire as to the hurt to the
plaintiff's feelings which might come within the category
of interrogatories
regarded as potentially allowable in HWT v Hawke.

  

   29. The Master said:

  

   "(at 8-9)...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."

  

  

   30. That was an additional reason for regarding the interrogatories
in
question as oppressive.

  

   31. The Master's approach in that case was supported by Miles CJ in
the recent case of Carnell
v Spier (Supreme Court of the Australian Capital
Territory, 3 June 1997, unreported).

  

   32. The approach to interrogatories
has, over the years, varied between
disdain and enthusiasm. The current attitude is one of concern at the overuse
of this procedure
and of the procedure of discovery. It is apparent, as
Miles CJ observed,

  

   "(at para 32)...that interrogatories,
like discovery, can be used
oppressively and to add to the cost of litigation."

  

  

   33. There are often cheaper and equally
effective alternatives such as
particulars and notices to admit facts. Further, it should appear that the
procedure is necessary
in the context of the litigation in question.

  

   34. The interrogatories in Carnell v Spier were more wide ranging than in
Packer
v ABC. They were the more objectionable. They sought conversations with
others concerning the matter complained of.

  

   35. Those
interrogatories did not seek to confine enquiries to
conversations which might be admissible in evidence. As his Honour noted:


 

   "(at para 38) 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."

  

  

   36. The interrogatories in question were, therefore, oppressive.

  

   37.

  

   38. ties w

  

   39. I note that these interrogatories related to a publication allegedly
first occurring in March 1997.
They are not confined in time to any
period of time shortly following the publication.

  

   40. ly or impli

  

   41. itnes'

  

   42. ries

  

   43. Indeed, though the interrogatories in Assaf v Skalkos were purportedly
directed to the reaction perceived
by the plaintiff of those who had learnt of
the matter complained of, those interrogatories were disallowed.

  

   44. ""

  

   45. By way of obiter dictum his Honour then went on to suggest a form of
interrogatory, which, in his Honour's view, would be
allowable. That is the
form which those advising the defendant in these matters have utilised in
interrogatory 5.

  

   46.
His Honour did not draft the equivalent of interrogatory 6, but he
did offer advice that,

  

   "(at para 9)...in the event
of an affirmative answer, the plaintiff would
then be required to identify the nature of the evidence to be led by reference
to the
date, the person involved and the substance of what was said or done."

  

  

   47. . That was  

  

   48. ctionabl 

  

   49. It should also be recalled that, even if interrogatories administered
are not in form or substance objectionable, they
will not necessarily be
allowed. There is a discretion.

  

   50. That discretion will be exercised guided by the real need for
the
information sought in the circumstances of the particular litigation and the
availability of other less expensive means of meeting
that need.

  

   51. One such means is a request for particulars.

  

   52. Hunt J (as he then was) referred to that proposition
in Conde v
2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221. His Honour pointed out that an
appropriate request for particulars may render
interrogatories unnecessary.
His Honour continued at 222:

  

   "Moreover, it came to be recognised that, except in special circumstances,
it was unreasonable to oblige the party interrogated to verify particulars of
his case when he did not have to verify his pleadings."

  

  

   53. Miles CJ in Ryan v The Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; 
(1990) 101 FLR 396 made a similar point and a number of additional
observations with which I would respectfully concur.

  

 
 54. If restraint in the use of interrogatories and discovery is not
exercised by practitioners then the Court must exercise its
discretion so as
to impose that restraint.

  

   55. In my view, these interrogatories, even if not otherwise objectionable
and
even if limited to avoid oppression, ought not be allowed as a matter of
discretion.

  

   57. That is not this case.

  

   58.
The defendant's application for answers to interrogatories
5 and 6 is refused.

  

   59. I will hear the parties as to
costs.