Allen v Lloyd-Jones

CATCHWORDS: TORT - defamation - further and better answers to interrogatories

Civil Procedure Act 2005 (NSW), s 56 LEGISLATION CITED: Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 22.1(1)

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Aspar Autobahn v Dovala Pty Ltd & Ors (1987) 74 ALR 550 Bennette v Cohen [2009] NSWCA 60 Bryson v Casey [2002] NSWSC 636 CASES CITED: Cayron v Crevelli (1896) 18 ALT 83 Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 Mallick v McGeown [2008] NSWSC 129 Thiess v TCN Channel Nine Pty Ltd (No. 3) [1992] 1 Qd R 587 W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559 Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508

TEXTS CITED: The Honourable Justice Hayne, "The Vanishing Trial" (2008) The Judicial Review 33

PARTIES: Plaintiff: Anthony James Allen Defendant: Laurel Lloyd-Jones

COUNSEL: Plaintiff: Ms S Chrysanthou Defendant: Mr R Rasmussen

SOLICITORS: Plaintiff: Andrew Warren & Associates Defendant: Levitt Robinson Solicitors

[1] The plaintiff commenced proceedings by Statement of Claim filed on 14 April 2009 concerning a publication of a letter on 7 February 2009 by the defendant to the Premier. The letter was also sent to a number of media outlets. Defences of truth, contextual truth, fair comment, honest opinion, qualified privilege (including a defence of an implied right of freedom of speech) and unlikelihood of harm have been pleaded in a Defence filed on 7 August 2009. The matter has been set down for hearing as a two-week jury trial commencing Tuesday 27 April 2010.

[2] The matter complained of is asserted to convey the following imputations: (a) the plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he bullied a woman;

(b) the plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman's home against her express wishes;

(c) the plaintiff intimidated a woman by acting in a bullying and overpowering manner over the phone;

(d) the plaintiff was aggressive towards a woman in her home;

(e) the plaintiff intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him;

(f) the plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him;

(g) the plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he threatened legal action against a newspaper if it reported a complaint about him.

[3] The defendant has refused to answer a number of interrogatories. In view of the imminence of the hearing date, the parties have emailed written submissions to me with a request that I should email my judgment concerning these interrogatories as quickly as possible.

[4] The relevant principles in relation to the answering of interrogatories and the impact of the Civil Procedure Act 2005 (NSW) and r 22.1(1) Uniform Civil Procedure Rules 2005 (NSW) are acknowledged by the parties in their written submissions, and require no further elucidation. The issue in this application is for me to determine whether each of the interrogatories which the defendant has failed or refused to answer should be the subject of an order for verified answers (in the form of further and better answers) to interrogatories.

[5] These interrogatories are as follows: "13. Prior to publishing the matter complained of did you give any consideration to it conveying any of the following meanings or meanings not substantially different (please answer separately in relation to each meaning):

(a) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he bullied a woman.

(b) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman's home against her express wishes.

(c) Mr Allen intimidated a woman by acting in a bullying and overpowering manner over the phone.

(d) Mr Allen was aggressive towards a woman in her home.

(e) Mr Allen intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him.

(f) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him.

(g) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he threatened legal action against a newspaper if it reported a complaint about him?

14. If the answer to interrogatory 13 is in the affirmative in respect of any meaning, in respect of each such meaning:

(c) what action did you take, if any, in light of the consideration given?"

[6] The answers to interrogatories 13 and 14 are as follows: "13A. The defendant is not required to answer this interrogatory because it assumes the jury will find all of the imputations.

[7] The defendant's submissions of 19 March assert that, once the imputation is taken away as the cause of action by reason of the introduction of the Defamation Act 2005 (NSW), the imperative to focus upon the imputation as the determinant of whether the privilege arises or not will disappear. All that matters is the occasion upon which the defamatory matter was published: Bennette v Cohen [2009] NSWCA 60. Accordingly these imputations are vexatious and oppressive.

[8] These interrogatories are, as the plaintiff points out in paragraph 19 of the written submissions, the standard form interrogatories used in all jurisdictions of Australia, including those where the imputation is not the cause of action. Imputations still need to be pleaded, and remain of relevance to all the defences. Accordingly the defendant must answer these interrogatories.

[9] Interrogatory 15 is in the following terms: "15. At the time of publication of the matter complained of did you intend it to convey any of the following meanings, or meanings not substantially different (please answer separately in relation to each meaning):

(a) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he bullied a woman.

(b) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman's home against her express wishes.

(c) Mr Allen intimidated a woman by acting in a bullying and overpowering manner over the phone.

(d) Mr Allen was aggressive towards a woman in her home.

(e) Mr Allen intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him.

(f) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him.

(g) Mr Allen, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he threatened legal action against a newspaper if it reported a complaint about him?"

[10] The answer to interrogatory 15 is as follows: "15A. The defendant intended to convey such imputations as are found by the jury."

[11] The defendant has partially answered this interrogatory, and the plaintiff complains that this is insufficient.

[12] It is no answer to say that whatever the jury finds is what the defendant intended to convey. This interrogatory is relevant to both comment and qualified privilege and must be answered in relation to each of the imputations. Whether or not the jury finds that these imputations are conveyed to the ordinary reasonable reader is irrelevant to the question of what was in the defendant's mind at the time of publication, which is an issue relevant to these defences. The defendant must answer this interrogatory.

[13] These interrogatories are in the following terms: "18. In about February 2009, did you have any information with respect to any of the material in the matter complained of?

19. If the answer to interrogatory 18 is in the affirmative:

(b) who or what was the source of the information (identify specifically what information);

(c) identify all documents containing such information which you had in your possession at the time of the publication of the matter complained of;

(d) identify all documents containing such information as to which you had been informed of their contents or parts thereof but which you did not have in your possession at the time of publication of the matter complained of and provide a complete description as to the terms by which these documents were described to you;

(e) state the use made of each of the documents described or referred to in (c) and (d) above;

(f) identify any such information which consisted of an oral communication and state the substance of what was said by each such person;

(g) identify all matters of past experience and background or of contemporary history or notoriety and anything else relating to the matter complained of which occurred to your prior to its publication.

20. In respect of each source of information for the matter complained of (specifying each source) at the time of publication of the matter complained of, did you have a view as to:

(a) the nature and/or quality of the information furnished by the source;

(b) the accuracy of the information furnished by the source;

(c) whether the source was biased against Mr Allen;

(d) whether information furnished by the source required corroboration?

21. If the answer to interrogatory 20 is in the affirmative as to any part, in respect of each such part (specifying it):

(b) on what facts, matters and circumstances was the view based;

(c) when precisely was that view formed?" [14] The answers to interrogatories 18, 19, 20 and 21 are as follows: "18A. The defendant objects to answering this interrogatory on the grounds that it is vexatious and oppressive and it does not relate to any matter in issue between the parties.

19A. The defendant objects to answering this interrogatory on the grounds that it is vexatious and oppressive and it does not relate to any matter in issue between the parties.

20A. The defendant objects to answering this interrogatory on the grounds that it is vexatious and oppressive and it does not relate to any matter in issue between the parties.

21A. The defendant objects to answering this interrogatory on the grounds that it is vexatious and oppressive and it does not relate to any matter in issue between the parties."

[15] Again, these are interrogatories in standard form, as the plaintiff points out in paragraph 27 of the submissions. The plaintiff submits that they are relevant to issues of reasonableness (s 30), the motives alleged by the plaintiff in the Reply and the defeasance of honest opinion (s 31(4)(a)) and that they are limited to the information used to compile the matter complained of and the sources for that information.

[16] The defendant claims that as the plaintiff is only mentioned in certain paragraphs of the matter complained of, this interrogatory is too widely drawn, referring to Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508 at [7] and [9]. In Zaetta, Nicholas J stated at [7] that the interrogatory needed to be framed with precision because a principal purpose for interrogatories was to enable the answers to be tendered.

[17] However, that is precisely what these standard-form interrogatories are. As to precision, the form of this kind of interrogatory has survived many attacks over the years. As to the need for precision concerning the plaintiff, in Zaetta at [34] Nicholas J accepted that the issue of reasonableness of the defendant's conduct in publishing the imputations was "wide indeed", citing Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 at [10] per Simpson J. This includes the conduct of the defendant in verifying the information in the whole of the matter published, as well as evaluating whether, and to what extent, it is defamatory, as Nicholas J goes on to point out. This means that the defendant must answer these questions in relation to the material upon which the matter complained of was based.

[18] The defendant must answer these interrogatories.

[19] These interrogatories are as follows: "27. If the answer to interrogatory 26 is in the affirmative please state:

28. In about February 2009 and before the publication of the matter complained of what were your views of Mr Allen?"

[20] It should be noted that interrogatory 26, which ask if the defendant has ever met Mr Allen, was in fact answered in the affirmative.

[21] The answers to interrogatories 27 and 28 are as follows: "27A. The defendant objects to answering this interrogatory on the grounds that it is vexatious and oppressive and it does not relate to any matter in issue between the parties.

28A. The defendant objects to answering this interrogatory on the grounds that it does not relate to any matter in issue between the parties and it is oppressive."

[22] The phrase "vexatious and oppressive" should not be invoked lightly. The general rule is that the objection must go further and set out the grounds of oppression or unfairness: Thiess v TCN Channel Nine Pty Ltd (No. 3) [1992] 1 Qd R 587.

[23] In Aspar Autobahn v Dovala Pty Ltd & Ors (1987) 74 ALR 550, Woodward J noted that "vexatious" should be interpreted in accordance with the Shorter Oxford Dictionary when considering provisions in the Rules, in circumstances where the pleading or interrogatory was without sufficient grounds for the purpose of causing trouble or annoyance to the defendant. An interrogatory administered for a purpose foreign to the proceeding, or a "fishing" interrogatory, which seeks information on which to base claims not yet made, would be vexatious: see Cayron v Crevelli (1896) 18 ALT 83; W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 574.

[24] At 554 - 5 Woodward J went on to define what an "oppressive" interrogatory was: "The word "oppressive" in ground (b) of the rule means, I think, unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned. It may be that the details sought would take many hours to extract from records and would only be relevant to some side issue in the case. Or the question may be so ambiguous that it would be unfair to expect the party questioned to make assumptions about its meaning. Or the question may cover a wider geographic area or a longer period of time than is reasonably necessary in readying the case for trial. There are many questions which might be admissible in cross-examination, but are by their very nature inappropriate, and thus oppressive , in interrogatories. Questions going to credit or to motive are obvious examples.

Thus it can be seen that the types of question which may properly be objected to as "oppressive" are many and varied. Each contested instance will have to be resolved on the basis of the court's general impression as to what is reasonable. In reaching a conclusion, the court may find that the particular interrogatory or answer takes colour from those surrounding it. Thus an apparent attempt to pose clear and precise questions, related directly to the particular case, should be treated more sympathetically than one bearing the hallmark of mass production."

[25] In defamation proceedings, "oppressive" is a word used to describe interrogatories that are excessive and burdensome to answer, whether or not they go to issues in the trial: Bryson v Casey [2002] NSWSC 636 at [19]. There were 292 interrogatories in Bryson, as opposed to the modest number of interrogatories in these proceedings, and the basis for asserting oppression remains unexplained in the defendant's submissions.

[26] Given that the ambit of "vexatious and oppressive" can cover such a large number of bases for objection, a party who responds to an interrogatory by the bald statement that the interrogatory is vexatious and oppressive is not indicating either to the opponent or to the court what the basis for that assertion is. As the plaintiff does not have a chance to reply to the defendant's submissions, that puts the plaintiff at a real disadvantage.

[27] The objection that the defendant raises is that the plaintiff does not identify the time frame in interrogatory 27. Since the defendant agrees she met the plaintiff, it should not be difficult for her to say when.

[28] A similar objection to a similar interrogatory by a defendant in Mallick v McGeown [2008] NSWSC 129 was rejected (at [51]) by McCallum J.

[29] Similarly, the defendant should answer interrogatory 28, which relates to the same subject matter.

[30] These interrogatories are as follows: "29. On or about 26 October 2006 did you have a conversation with Muriel Campbell?

30. If the answer to interrogatory 29 is in the affirmative please state:

31. On or about 26 October 2006 did you attend the home of Muriel Campbell?

32. If the answer to interrogatory 31 is in the affirmative please state:

(c) the substance of any conversation that took place." [31] The answers to interrogatories 29, 30, 31 and 32 are as follows: "29A. The defendant objects to answering this interrogatory on the grounds that it does not relate to any matter in issue between the parties.

30A. The defendant objects to answering this interrogatory on the grounds that it does not relate to any matter in issue between the parties.

31A. The defendant objects to answering this interrogatory on the grounds that it does not relate to any matter in issue between the parties.

32A. The defendant objects to answering this interrogatory on the grounds that it does not relate to any matter in issue between the parties."

[32] The defendant in written submissions asserts that interrogatories 29 and 30 are vexatious and oppressive and interrogatories 31 and 32 are "even more vexatious and oppressive", due to an asserted lack of specificity. This is an entirely different basis to the objection taken in the answers to interrogatories. The plaintiff points out that the defendant relies on a conversation she had with Mrs Campbell, events that took place at the Campbell home (at which the defendant was present) and matters the defendant asserts she saw, heard or otherwise perceived in the course of that phone call and visit to the Campbell home. Clearly, these are matters in issue between the plaintiff and defendant, and the objection taken in the answers to interrogatories is without foundation.

[33] The further objection taken in the written submissions is also without foundation. The interrogatories are in simple and clear language and I do not accept the complaints of lack of the "necessary specificity" required for a "clear and unambiguous and not misleading answer" (defendant's submissions, paragraph 8).

[34] The defendant must answer these interrogatories.

[35] The plaintiff has been successful in relation to each of the requests for further and better answers to interrogatories. Before considering the issue of costs, I should first note the prior interlocutory history of these proceedings.

[36] I note the defendant has a history of failure to comply with orders to date: (a) On 8 May 2009 the defendant was ordered to file her Defence on or before 29 May 2009 but failed to do so. Instead, the defendant notified the plaintiff for the first time on 21 May 2009 of objections to imputations. This resulted in an imputations argument and a judgment by me on 3 July 2009, followed by an Amended Statement of Claim.

(b) The defendant again failed to comply with a consent order to file a Defence on or before 7 August 2009, although only by a few days, as it was served on 12 August 2009. However, more importantly, the defendant failed to comply with an order on 4 September 2009 to exchange Lists of Documents by 16 September 2009, resulting in a further directions hearing on 2 October 2009, granting an extension of time to 21 October 2009. The defendant did not serve its List of Documents until 3 November 2009.

(c) On 13 November 2009, the parties were granted leave to issue interrogatories on or before 11 December 2009. This was because of the delay caused by the defendant's failure to comply with discovery. The defendant again failed to comply with this order, although the plaintiff went ahead and administered interrogatories and served discovered documents.

(d) On 5 February 2010, there was a consent order that the defendant administer interrogatories on or before 10 February 2010, and the costs of that date, 2 October 2009 and 13 November 2009 were reserved. Interrogatories were eventually served on 11 February 2010.

[37] The plaintiff's legal advisers had been quick to restore the matter and to seek appropriate orders where necessary where there is non-compliance. As a result of their diligence that despite the defendant's repeated failures to comply, there has not been significant slippage in the timetable.

[38] However, slippage in timetables by defendants is a not uncommon feature of defamation proceedings. Whether or not this is a feature of defence strategy (see the article by The Honourable Justice Hayne, "The Vanishing Trial" (2008) The Judicial Review 33), it is nevertheless no longer the case that courts are prepared to go along with repeated failures to comply.

[39] In some jurisdictions of this court, notably in the Commercial List, an order for the "usual default order" is added to all timetables, and it places the onus upon the party who is the victim of the default to relist the matter to ensure that timetables do not fall behind. It may be that the addition of a "usual default order" in defamation proceedings would ensure that other matters could be dealt with as speedily as has occurred in the present circumstances. In light of the High Court's comments in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27, cases managed in specialist lists such as the Defamation List need to be conducted in accordance with the dictates of "just, cheap and quick" (s 56 Civil Procedure Act 2005 (NSW)).

[40] Having noted the prior history of these proceedings, I see nothing to warrant departure from the usual order that costs should follow the event. Accordingly I propose to order the defendant to pay the plaintiff's costs of this application.

[41] I have also added an order of a self-executing nature in relation to the answers, given the imminence of the trial date.

(1) The defendant is to provide further and better answers to interrogatories 13, 14, 15, 18, 19, 20, 21, 27, 28, 29, 30, 31 and 32, with verification, by Monday 29 March at 5:00 pm. (2) The defendant may serve the interrogatories by fax or email in order to comply with the time frame in order 1. (3) Order 1 is self-executing in nature. (4) The defendant is to pay the plaintiff's costs of this application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.