Worth v John Fairfax Publications Pty Limited & Anor [2006] ACTSC 79 (1 August 2006)

Last Updated: 13 February 2007

PATRICIA MARY WORTH v JOHN FAIRFAX PUBLICATIONS PTY LIMITED & ANOR [2006] ACTSC 79 (1 August 2006)

DEFAMATION - Practice and procedure - Discovery - Interrogatories - Objection on basis unnecessary, oppressive, irrelevant or inquiring as to evidence - Interrogatories not required when request for particulars will suffice.

Defamation Act 1974 (NSW), Pt 2A

Court Procedures Rules 2006, r 630 - 636

Supreme Court Rules 1937, O 34

Packer v Australian Broadcasting Corporation (unreported, 31 March 1993)

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

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

McCarey v Associated Newspapers Ltd [1965] 2 QB 86

The Daily Telegraph Newspaper Company (Limited) v Berry (1879) 5 VLR (L) 343

Lyell v Kennedy (1883) 8 AC 217

Bidder v Bridges (1885) 29 Ch D 29

Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703

Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44

Assaf and Anor v Skalkos and Anor (unreported, Hunt CJ at CL, 9 August 1995)

Robert Jones Investments Ltd v Australian Stock Exchange (unreported, Hunt J, 5 October 1990)

Sir James Wigram, Points in the Law of Discovery (2nd ed., 1840)

No. SC 463 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 1 August 2006

IN THE SUPREME COURT OF THE )

) No. SC 463 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PATRICIA MARY WORTH

Plaintiff

AND: JOHN FAIRFAX PUBLICATIONS PTY LIMITED

First Defendant

AND: PHILIP McLEAN

Second Defendant

ORDER

Judge: Higgins CJ

Date: 1 August 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The interrogatories sought be answered as if a request for particulars.

1. The defendants seek substantive answers to interrogatories 1, 2, 8, 9(b)(2) and 9(b)(3) by Notice of Motion dated 20 June 2006 and amended on 17 July 2006. On 29 May 2006 the plaintiff objected to providing such answers.

2. The matter complained of is, it is not disputed, defamatory. Nor is there any substantive defence claimed. The defendants published a comment on 10 October 2004 intended to criticise a member of the Federal Parliament. Unfortunately, they confused the plaintiff's name with that of the intended target. Hence, the only matter of defence arising is whether the defendants have sufficiently grovelled and apologised so as to attract the defence addressed by the Defamation Act 1974 (NSW), Pt 2A, repealed as from 1 January 2006.

3. The relevant provision as at the date of publication, was:

9D Offers to make amends

(1) The publisher may make an offer to make amends to the aggrieved person.

(2) The offer may be in relation to:

(a) the matter in question generally, or

(b) (not relevant)

(3) An offer to make amends:

(a) must be in writing, and

(b) must be readily identifiable as an offer to make amends under this section, and

(c) must include an offer to publish, or join in publishing, a reasonable correction (if appropriate in the circumstances) of the matter in question, and

(d) must include an offer to publish, or join in publishing, a reasonable apology (if appropriate in the circumstances) in relation to the matter in question, and

...

(g) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer,

...

(i) may include an offer to pay compensation for any economic or non-economic loss of the aggrieved person.

4. The relevant effect, if a reasonable offer of amends is accepted and performed by the publisher, is that the "aggrieved person (per s 9F(5)) ... cannot begin or continue an action for defamation against the publisher in relation to the matter in question".

5. Section 9G provides that failure to accept a "reasonable" offer of amends is a defence. The alleged offer of amends and its acceptance is also pleaded as an accord and satisfaction.

6. The remaining issue, in any event, is the quantum of compensation or damages payable to the aggrieved person.

7. It is in that context that the defendants have administered interrogatories. The issue is as to whether the plaintiff can be required to answer certain of those interrogatories. The interrogatories in question and the objections stated are as follows:

(1A) Since the publication of the matter complained of:

(a) Has any person spoken to your [sic] or behaved towards you in any way which indicated to you:

(1) That the person had read the matter complained of (or otherwise learned of its contents); and

(2) That, as a result of having done so, that person had thought the less of you;

(b) Having so indicated to you that the person had read the matter complained of (or otherwise learned of its content), did that person say or do anything whereby your feelings were otherwise injured?

(1B) (a) (1) I object to interrogatory (1)(a)(1) on the grounds that the interrogatory is irrelevant and unnecessary.

(2) I object to interrogatory (1)(a)(2) on the grounds that the interrogatory is irrelevant and unnecessary.

(b) I object to interrogatory (1)(b) on the grounds that the interrogatory is irrelevant and unnecessary.

(2A) If the answer to interrogatory 1 or any part of it is "yes", identify each person who so spoke to you or behaved towards you and answer the following interrogatories in respect of each such person:

(a) When, where and in what circumstances did the person speak to you or behave to you in a way which indicated to you the matters is 1(a)(i) and (ii) above?

(b) What was the substance of any conversation which you had and which indicated to you the matters in 1(a)(i) and (ii) above?

(c) Describe, if applicable, the behaviour of the person towards you which indicated to you the matters in 1(a)(i) and (ii) above.

(d) When, where and in what circumstances did the person say or do anything whereby your feelings were otherwise injured?

(e) What was the substance of any conversation which you and that person had whereby your feelings were otherwise injured?

(f) Describe, if applicable, what was done by that person whereby your feelings were otherwise injured.

(2B) Not applicable.

...

(8A) Did your solicitor, Mr Phelps, acting on your behalf, have a conversation or conversations with Mr Mark Polden on 15 October 2004 with respect to your complaint and in relation to the matter complained of?

(8B) I object to interrogatory 8 on the basis that this matter has been fully particularised, is unnecessary and is not an appropriate matter for interrogation.

(9A) If the answer to interrogatory 8 is "yes":

(a) How many such conversations were there?

(b) In respect of each such conversation:

(1) At what time did the conversation occur?

(2) Who initiated the conversation?

(3) What was the substance of the conversation? (Please include in your answer specific reference in any such conversation to the reservation of your rights/and or the letter which is your discovered document No. 9)

(4) Was any note or other written note of the conversation made? If so, please identify it by reference to its discovery number?

(9B) Not applicable.

Interrogatories 1 and 2

8. The plaintiff's solicitors adhered to their objection to answer by letter dated 29 June 2006. The defendant's solicitors responded by letter dated 7 July 2006, stating:

These interrogatories go the issue of damages, in particular the plaintiff's hurt to feelings: see Assaf v Skalkos (Aust Def. Reports [52,050] at p 43,751).

9. The written and oral submissions of Mr Tom Blackburn SC for the defendants did not substantively add to that contention, though Mr Blackburn conceded that Hunt CJ's decision was apparently contrary to that of Master Hogan in this Court in Packer v Australian Broadcasting Corporation (unreported, 31 March 1993).

10. The Court Procedures Rules 2006, applicable from 1 July 2006, Division 2.8.4, r 630 - r 636, refers in r 631 to objections to answer interrogatories served in accordance with r 630. The previous rules, dealing with the same matter, were O 34.4 rr 13 - 19 of the Supreme Court Rules 1937.

11. The objection to answer seeks to engage r 631(1)(d) (see previous o 34 r 14(1)(d)), that is that:

The interrogatory is irrelevant, is of a `fishing' nature or inquires into a matter of evidence.

12. It is a general objection to an interrogatory that it is simply seeking particulars of an allegation made in a pleading or seeking to have particulars verified on oath.

13. The general rule permitting interrogatories remains that adopted by Miles CJ in Ryan v Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; (1990) 101 FLR 396, 397:

In principle ... a party may interrogate the other on any relevant matter to the same extent as questions may be asked in oral examination [but not as to credit - Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44, 57 per Hunt J].

14. However, there are constraints:

... 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.

15. In general, interrogatories should not be permitted if an alternative by way of request for particulars or notice to admit facts is available. Nor, as Miles CJ points out, should answers be compelled unless they would serve "some necessary and useful purpose" (p 398).

16. Reference may also be made to Conde v 2KY Broadcasters Pty Ltd and Another (1982) 2 NSWLR 221, per Hunt J for the proposition that interrogatories will not be permitted "except in special circumstances" (p 222) to, in effect, verify particulars of a pleading.

17. In the present case, the plaintiff has sought aggravated and exemplary damages.

18. The plaintiff may seek to prove aggravation of damages in a variety of ways. One such way would be evidence that persons had, in consequence of reading or viewing the matter complained of, behaved towards the plaintiff in a manner that caused hurt to the plaintiff (see, for example, McCarey v Associated Newspapers Ltd [1965] 2 QB 86, 108).

19. In The Daily Telegraph Newspaper Company (Limited) v Berry (1879) 5 VLR (L) 343 Stawell CJ, at 352, referred to an interrogatory not dissimilar to the present in the following terms:

That question is, whether he has been told by some person what he afterwards repeated, and if so, who was that person. That question could only be put in aggravation of damages. It was urged with a great deal of force, that the question is not in issue between the parties; but damages form a matter in issue, just as much as the pleadings; it cannot be said that a question is not pertinent to the issue, which might increase or diminish the damages.

20. However, his Honour considered that the enquiry as to the identity of the informant should be excised. Barry J did not agree. The objection taken to the identification of the informant was that that person, being the person who stated the slander to the defendant, would be exposed to action if their identity was to be revealed.

21. The interrogatories 1 and 2 in this case attract no such consideration.

22. The objection is squarely put on rules 631(1)(a), (b) and (d), r 631(2) and r 632(3). Relevantly, those objections encompass contentions that the interrogatories in question were:

* Unnecessary or unreasonable

* Oppressive

* Irrelevant or inquiring as to evidence

23. Similar interrogatories were considered by Master Hogan in Packer v ABC (supra).

24. The form of inquiry in that case was:

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.

25. The Master accepted that interrogatories going only to damages may be administered but considered that Daily Telegraph Newspaper Co Ltd v Berry (supra) was distinguishable. The relevant facts inquired after were "peculiarly within the knowledge of the defendant" [9] and so allowable.

26. I confess the distinction escapes me. The fact enquired about is relevant to hurt to feelings. It is peculiarly within the knowledge of the plaintiff. The defendant should, prima facie, be entitled to enquire as to its existence.

27. However, the Master held that the enquiries related solely to the plaintiff's own case. Lyell v Kennedy (1883) 8 AC 217 and Bidder v Bridges (1885) 29 Ch D 29 were relied on. In Bidder v Bridges (supra) per Kay J that rule applied to a plaintiff as defendant to a cross-claim as well as to a defendant.

28. Lyell v Kennedy (supra) referred to a bill of discovery in equity (that is, interrogatories). It had been stated by Sir James Wigram (Points in the Law of Discovery, 2nd ed., 1840, p 14) that the plaintiff had the right to facts proving his case but the defendant had a privilege "to withhold a discovery of the evidence which exclusively relate to his own". Nevertheless, the plaintiff was held entitled to interrogate the defendant as to matters relevant to the pedigree and heirship of his assignors and as to alleged admissions by the defendant that his possession of the land in question was as trustee for the deceased from whom the plaintiff claimed title.

29. The supposed reservation that a party may not interrogate a party concerning that party's own case is not one that, in my opinion, can survive the widening of the entitlement to discovery under the current Rules. Indeed, that position is consistent with Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703, 709 - 710 per Clarke J (see also Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44, 57 - 58 per Hunt J). The true limitation is whether the question, even if in leading form, is only relevant to cross-examine the other party or relevant merely to test the truth of his or her claims.

30. Accordingly, in my respectful opinion Master Hogan's ruling in Packer v ABC (supra), so far as it relies on such a rule is wrong and should not be followed.

31. In Assaf and Anor v Skalkos and Anor (unreported, Hunt CJ at CL, 9 August 1995), his Honour ruled certain interrogatories not allowable. That was on the ground that they sought to elicit statements by witnesses indicating their interpretation of the matter complained of. However, his Honour, albeit obiter, did opine that, following Robert Jones Investments Ltd v Australian Stock Exchange (unreported, Hunt J, 5 October 1990), an interrogatory was permissible in a form such as:

(1) Whether any person has spoken to the plaintiff, or behaved towards the plaintiff, in a way which indicated to the plaintiff:

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

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

(i) identified the plaintiff as having been referred to in the matter complained of, or

(ii) thought the less of the plaintiff; and

(2) 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 the plaintiff's feelings were otherwise injured.

32. That, of course, is not a final form for an interrogatory. It must be drafted so as to be apt for the case in question. Further, his Honour noted that, if the answer was affirmative, "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" (Assaf at p 5). That would justify, in an appropriate case, the form of the interrogatories 1 and 2 in the present case.

33. However, there remains a more general objection to interrogatories. That is, that interrogatories ought not to be administered if a request for particulars will more cheaply and efficiently elicit the same information. That was an alternative ground upon which Master Hogan in Packer v ABC (supra) declined to order interrogatories, though he did decline to sanction the questions in issue even as a request for particulars. The issue is, to an extent, discretionary. It goes to the issue as to whether the interrogation is "unnecessary" (see r 631(1)(a)).

34. Should any further authority or explanation of that proposition be required then it suffices to refer to Ryan v Federal Capital Press of Australia Pty Ltd (supra).

35. It is also objected that the interrogatories in the present case seek the names of witnesses. That is not the thrust of the inquiry. Nor was the fact that names were sought apt to Hunt J as a valid objection. The difference is that the enquiry seeks to identify persons whose response to the matter complained of caused hurt to the plaintiff. The identity of such persons is not, as the plaintiff submits, irrelevant. It is, or may be, a material circumstance. They may or may not be witnesses to express fear that the information obtained might be used to contradict the plaintiff's case as to damages, however that is not to the point. The interrogatory merely asks about the plaintiff's case as to damages relating to hurt to feelings. Nor is it an objection that the enquiry would elicit evidence which the plaintiff might otherwise give or, perhaps, call.

36. However, that being said, it seems to me that these interrogatories really do request particulars of the plaintiff's case as to damages for hurt to feelings by reason of the perceived reaction of others to the matter complained of as communicated to her. A proper response treating the questions as such should suffice.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 1 August 2006

Counsel for the plaintiff: Mr K Andronas

Solicitor for the plaintiff: Donohue & Co Solicitors

Counsel for the defendants: Mr T Blackburn SC

Solicitor for the defendants: Phillips Fox as agent for Freehills

Date of hearing: 17 July 2006

Date of judgment: 1 August 2006