Craigie v Nornews Pty Limited and Anor [1999] NSWSC 529 (27 May 1999)

Last Updated: 3 June 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Craigie v Nornews Pty Limited & Anor [1999] NSWSC 529

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 15208 of 1991

HEARING DATE{S): 27 May 1999

JUDGMENT DATE: 27/05/1999

PARTIES:

RAYMOND KEITH CRAIGIE

(Plaintiff)

v

NORNEWS PTY LIMITED

ACN 000 020 986

(First Defendant)

PETER OKWECHIME

(Second Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

T Hale

(Plaintiff)

B McClintock S.C.

(Defendants)

SOLICITORS:

Denis Solari, Son & Associates

(Plaintiff)

Gilbert & Tobin

(Defendants)

CATCHWORDS:

Interrogatory - circulation - readership

ACTS CITED:

DECISION:

See paragraphs 22 & 23

JUDGMENT:

DLJ: 1

(Ex Tempore - Revised)

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 15208 of 1991

JUSTICE DAVID LEVINE

THURSDAY 27 MAY 1999

RAYMOND KEITH CRAIGIE

(Plaintiff)

v

NORNEWS PTY LIMITED

ACN 000 020 986

(First Defendant)

PETER OKWECHIME

(Second Defendant)

JUDGMENT (Interrogatory - circulation - readership)

1 HIS HONOUR: This matter was commenced by the filing of a Statement of Claim on 23 September 1991 in respect of a publication in "The Armidale Express" of 25 March 1991.

2 The pleadings closed on 5 September 1996, according to the court file, on which date was filed the Reply by the plaintiff.

3 Interrogatories were filed and presumably delivered by the plaintiff on or about 6 January 1998 and, significantly, answered by the manager of the first defendant, on or about 27 March 1998.

4 On 8 April 1999, in excess of one year after the provision of the answers to the interrogatories, the List Judge fixed the matter for hearing on 7 June 1999 on which date I am presently informed the matter in fact will be listed for hearing.

5 Complaint is made by the plaintiff in relation to answers given by the first defendant to interrogatories 2 and 3, the former of which asks, "What was the circulation on or about 25 March 1991?"; the latter, "What was the readership on or about 25 March 1991?"

6 The answers delivered by the first defendant, which is a corporation, in relation to each interrogatory, was: "The first defendant does not possess the circulation figures for the Armidale Express on or about 25 March 1991", and a similar answer was given in relation to readership figures.

7 Strictly, of course, the answer in each case is not in proper form with respect to knowledge, information or belief on the part of the corporation, founded upon inquiries a corporations is expected to make of its servants and agents for the purposes of providing sworn answers to interrogatories.

8 The authorities as to the requirements of the corporation in answering interrogatories are referred to in the notes to SCR Pt 24, Rule 7 and include the statement of principle by Sir Robert McGarry V.C. in Stanfield Properties Ltd v National Westminster Bank Plc (1983) 1 WLR 568, particularly at 570 and 571. Thus, on a strict basis there is merit in the complaint made by the plaintiff.

9 I gather the position to be, not surprisingly, given the date of the publication, that the first defendant, if it provided an answer in proper form, as it should have done, would certainly provide no further information to the plaintiff in respect of the circulation of the relevant publication on or about 25 March 1991.

10 In proper form, as I understand it, it would be able to state that it has no knowledge, upon inquiry has obtained no information, and I must say, in the light of the information since given to me, probably would have no reasonable ground for stating any belief, either as to circulation or, indeed, readership as focused on 25 March 1991.

11 There has been an exchange of correspondence between the parties in relation to the matter and it has been stated in open court for the first defendant that in respect of the period 1 October 1991 to 31 March 1992 the net average sales figures for the "Armidale Express" was 3692 per issue, and the defendant admits that fact.

12 It is apparently the case that that figure is derived from sales figures for the period to which I refer which is, of course, far later than the date of publication sued upon.

13 The position now taken by the defendant and the information disclosed in its letter of 11 May 1999, does persuade me that had the proper form of an answer been adopted in the response to the interrogatory at the time, (in excess of one year before complaint was made about it, I hasten to note), the plaintiff would have been in no better position in terms of the information he now has.

14 This matter has been described as a waste of the court's time, a waste of counsel's time, sterile and futile, leading to a submission that the plaintiff should pay the defendant's costs of the application, (which will be dismissed), on an indemnity basis.

15 Whilst I find that the first defendant has failed properly to comply with the rules of court in relation to the provision of answers to interrogatories by a corporation, I do not propose, in the light of the information now before me, to make any further order requiring it to re-swear either the affidavit of Miss Coffey or to provide further answers.

16 The plaintiff should avail himself of that information which, on the material before me, clearly appears to be the best the defendant can give.

17 I am not persuaded that the defendant should be compelled to retrospectively assess readership, that is the matter the subject of the second interrogatory, based upon its sales figures so late in time.

18 This matter, as I have said, is fixed for hearing on 7 June.

19 The direction I give is for the defendant, in an open letter, to provide the material hitherto provided in the letter of 11 May 1999.

20 I do not propose to order any further discovery. The plaintiff is at liberty, of course, to issue any subpoenas he chooses to issue.

21 The point taken was of such extreme technicality and one that, in my view, could have been resolved otherwise than by moving the court for specific relief.

22 I dismiss the application. I do not propose to make an order for indemnity costs.

23 In the light of the information of 11 May 1999, I am presently disposed to order that the plaintiff to pay the defendant's costs, but by reason of the particular quality attending the letter of 11 May 1999 providing the information to which I have referred, and the matter there being left by the defendant, I think in the end the ultimate result should be that each party pay its own costs.

***********

LAST UPDATED: 02/06/1999