HER HONOUR: These proceedings are listed for trial with a jury on 27 July 2015. On 11 June 2015, the defendants served interrogatories on each of the plaintiffs, running in each case to some 20 pages. The defendants seek orders that each plaintiff answer those interrogatories.
The plaintiffs' first response is that interrogation should not be allowed at all at this stage of the proceedings. There is considerable force in the plaintiffs' complaints on that account. On 5 September 2014, the Chief Justice promulgated practice note SC CL 4. The terms of the practice note contemplate that proceedings for defamation will ordinarily come before the Court only twice for the determination of interlocutory disputes; at the first listing in accordance with cl 13 and at the second listing in accordance with cl 16. Although these proceedings were commenced well before the promulgation of the practice note, it was expressly specified late last year that the date of 6 February 2015 would be the second listing for these proceedings.
The plaintiffs served proposed interrogatories on the defendants before that date, on 30 January 2015. On 6 February 2015, the hearing of the proceedings was expedited on the application of the first plaintiff. I accept that is a complication which has placed the defendants under some pressure in the preparation of the proceedings. The second listing was stood over by consent on that occasion.
The hearing date of 27 July 2015 was allocated on 13 February 2015. The second listing then took place on 27 February 2015. At that time, the defendants neither made nor foreshadowed any application for discovery, despite the fact that a hearing date had been fixed. Further, according to correspondence between the parties, the defendants were not on that date ready to deal with the plaintiffs' application for interrogatories and that application was stood over to 27 March 2015. The evening before that date, the defendants served their application for discovery, seeking 24 categories of documents. No application for interrogatories was made at that point.
By letter dated 8 April 2015, the plaintiffs communicated to the defendants their contention that the defendants appeared to be ignoring the clear terms of the practice note "which requires all applications for interlocutory steps to occur at the second listing". It was stated in that letter that any application for interrogatories would be opposed. As already noted, the proposed interrogatories were ultimately not served until 11 June 2015.
The defendants' response to the plaintiffs' global objection and some of the submissions put in respect of individual proposed interrogatories reflect a number of misconceptions as to the application and intended operation of the practice note. The terms of the practice note are clear but, since those issues have been raised, they should be put to bed without equivocation.
First, Mr Blackburn SC began in the present application by observing that these proceedings were commenced before the promulgation of the practice note, suggesting the existence of a species of accrued right to adhere to the practices of the past. The practice note makes plain in cl 3 that it applies to all proceedings, whether or not commenced before its operation.
Secondly, the defendants indicated at some point (I think in Court on 27 March 2015) that they proposed to seek an order for interrogatories after considering the plaintiffs' discovered documents. The procedure specified in the practice note is that the second listing will be the single occasion on which all interlocutory steps are to be considered by the Court. As correctly pointed out by the plaintiffs in the correspondence, the defendants' approach ignores the clear terms of the practice note in that respect. Contrary to the submission put by Senior Counsel for the defendants in the argument before me yesterday, in my view the intention of the practice note in that respect is plain beyond dispute.
Thirdly, there was a suggestion during argument that the defendants were, in some respects, not ready to meet particular objections taken by the plaintiffs to individual proposed interrogatories. The tenor of the submission appeared to me to misconceive the task for the defendants at any point on a second listing and particularly at this late point. It is for a party seeking any further interlocutory step at the second listing to demonstrate the need for such a step.
I accept that, at the time the second listing was scheduled in these proceedings, the pleadings were not closed but those steps plainly had to be concertinaed and, in any event, the state of the pleadings at that point was in my view sufficiently clear for the second listing to proceed. That is why I specified an early date for that listing.
Clause 18 of the practice note specifies the particular steps that should be taken by a party seeking further interlocutory steps at the second listing. Those provisions are not aspirational. They articulate a practical way in which a party can give effect to the principle of proportionality. The purpose of requiring a party seeking interlocutory steps to support such an application with an affidavit addressing the matters set out in cl 18 - unless the defamation list judge directs otherwise - is to ensure that such steps are not sought by reference to an ideal of perfect preparation on every conceivable issue raised on the pleadings, but with a practical, common sense assessment of the real issues in dispute and the amount of lawyers' fees responsibly warranted in determining them.
By way of illustration of the application of the principle of proportionality in the present case, I would observe that the argument took some three hours, more than the time frequently allowed for the determination of important matters concerning the liberty of the subject in criminal proceedings.
I nonetheless concluded, having regard to my obligation to determine the defendants' application in accordance with the dictates of justice, that it would not be appropriate to dismiss the application peremptorily on the strength of the contentions put with considerable force on behalf of the plaintiffs without considering each proposed interrogatory separately. I have determined, having heard argument on the specific interrogatories, to direct the plaintiffs to answer some interrogatories. I think it will suffice to explain my reasons in a summary fashion rather than question by question.
The principles according to which I have determined the application are as follows.
There is a measure of duplication in the proposed interrogatories to the first plaintiff and the second plaintiff. Having regard to the circumstances of the first plaintiff (known to the parties), where a question can be answered by the second plaintiff I have, where I think it is fair, not required the first plaintiff to answer the equivalent question. Similarly, having regard to the closeness of the hearing date, in some instances I have formed the view that an answer by the first plaintiff is adequate and have not required an answer to the equivalent question by the second plaintiff.
Where a question is directed to matters exclusively within the knowledge of the first plaintiff, I have generally been satisfied that it is necessary for them to be answered; for example, where the question was directed to his personal knowledge, reliance or his state of mind, but not where the subject of the interrogatory went beyond the issues raised by the pleadings or where I formed the view that it was not warranted having regard to the principle of proportionality.
Where an interrogatory is duplicated by a category for discovery already ordered, I have generally not been satisfied that it is necessary for the interrogatory to be answered.
In the case of interrogatory 11 to the first plaintiff and an equivalent question to the second plaintiff, I acceded to Ms Chrysanthou's submission that the interrogatory is imprecise. It seeks a conclusion as to the effect of conduct which is neither specified in the interrogatory nor made clear in the pleadings.
As to proposed interrogatoires 28 to 30 to the first plaintiff, those questions do not appear to have any equivalent in the interrogatories to the second plaintiff but could, in my view, equally and more properly be answered by the second plaintiff and accordingly that is the course I propose.
In some instances, I have acceded to Ms Chrysanthou's submissions that to answer an interrogatory would entail a disproportionate amount of work for the utility of the information sought; for example questions 42, 49 and 50 to the first plaintiff. In the case of interrogatory 48 to the first plaintiff (and its equivalent interrogatory 44 to the second plaintiff), I accept, as submitted on behalf of the defendants, that some interrogation could properly be allowed as being necessary to address the issue of the proper material for comment. However, the parties I think agreed that the present form of the question would need to be revisited.
I do not propose to allow interrogatories 51 to 56 to the first plaintiff. Those interrogatories are in the form allowed by Hunt CJ at CL in Assaf v Skalkos (Supreme Court (NSW), Hunt CJ at CL, 9 August 1995, unrep). As submitted by Mr Blackburn SC, they have come to be regarded in this List as standard or approved interrogatories. Upon analysis, the ongoing utility of such interrogatories might, I think, be revisited. It should be noted that his Honour was concerned with a case in which identification of the plaintiff was in issue, and that is one of the three issues to which the interrogatories there allowed were considered relevant. Identification is not an issue in the present case. More pertinently, his Honour said, applying his earlier decision in the Robert Jones Investments case (Robert Jones Investments Ltd v Australian Stock Exchange (Supreme Court (NSW), Hunt J, 5 October 1990, unrep)), that interrogatories may be administered in a defamation action in relation to the issues of reaction of other persons to the matter complained of:
"...upon the ground that the defendant is entitled to know in advance the nature of the evidence which is to be given at the trial concerning those issues."
The extract from his Honour's decision in Robert Jones Investments is reproduced as a schedule to the judgment in Assaf v Skalkos. In that extract, his Honour referred to the availability of interrogatories directed by the defendant to statements of reaction made to a plaintiff as being permissible "in order to prevent surprise when the evidence is made known for the first time at the trial".
The proposition that a defendant's counsel might truly be surprised by the kind of evidence that ordinarily comes in response to such interrogatories itself caused surprise to me. In my experience and in my view, as submitted by Ms Chrysanthou, such interrogatories, apart from being rarely tendered (which is perhaps explained by the reason for which they are allowed) really are of doubtful utility.
The decision in Assaf v Skalkos was in 1995, some 10 years before the introduction of the Civil Procedure Act 2005 (NSW) and almost twenty years before the promulgation of the practice note. Rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) confines interrogation to the case in which the Court is satisfied that the order is necessary at the time it is made. The test of necessity is explained in the practice note as being a requirement that the order is necessary for the resolution of the real issues in dispute in the proceedings. I do not think Assaf v Skalkos interrogatories meet that test, in particular in the circumstances of this case. I say so without foreclosing the prospect that they may be appropriate in some circumstances, for example where identification is in issue. I certainly do not think that necessity to prevent surprise to counsel at trial is an adequate basis for meeting the test specified in the Rules and in the practice note. In my view, it is time for defence counsel in defamation proceedings to throw caution to the wind and embrace the exhilaration of turning up to the trial simply not knowing the answers to so-called "reaction" interrogatories.
Finally, in the case of interrogatories 45 to 70 addressed to the second plaintiff, those interrogatories were not opposed and I have allowed those as being necessary in respect of the determination of the issue of the damages claimed by the second plaintiff.
For those reasons, I propose the first plaintiff to answer the following interrogatories subject to the specified qualifications: 4; 5(a) and (b) only, 6(a) and (b) only, 18; 19; 20-24 (with the agreed qualification as to the date being prior to the commencement of the proceedings against Dr Cumpston); 26(d); and 46, unless, as foreshadowed, the plaintiff makes a formal admission that he is "extremely wealthy" (cf imputation (i)).
As to the second plaintiff, I propose to direct that it answer interrogatories 1; 2; 3; 4; 5; 6 (with the qualification that if that interrogatory is adequately answered by the affidavit in other proceedings referred to by Ms Chrysanthou (which is about to be provided by way of discovery) it will be an adequate answer to that interrogatory to point to the affidavit, otherwise any issue not addressed in that affidavit should be specifically answered), 7; 8; 9(a) and (b) only, 10(a) and (b) only, 11 and 13 (subject to the following qualification: In place of the last sentence beginning "if so", the interrogatory should read "if so please provide a copy of the originating process"), 16, 45-70 and interrogatories 28-30 that were directed to the first plaintiff.
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Decision last updated: 07 July 2015