Bechara v Bonacorso

Civil Procedure Act 2005 (NSW), s 56 LEGISLATION CITED: Defamation Act 2005 (NSW), ss 3 and 40 Uniform Civil Procedure Rules 2005 (NSW), rr 22.1 and 22.2

Adams v Dickeson [1974] VR 77 Atkinson v Fosbroke (1866) LR1QB 628 Bateman v Nationwide News Pty Ltd [2002] ACTSC 73 Bechara v Bonacorso [2009] NSWDC 131 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Cush v Dillon and Boland v Dillon [2009] NSWDC 21 CASES CITED: Mallick v McGeown [2009] NSWSC 129 McConville v Credit Union Services Corporation (Australia) Ltd (Supreme Court of NSW, Levine J, 29 August 1997, unreported) Photi v Target Australia Pty Ltd (No 1) [2007] NSWDC 265 Ryan v Federal Capital Press (1990) 101 FLR 396 Sanders v Anderson [1968] NZLR 172 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4 Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508

Gatley on Libel and Slander, 5th ed. TEXTS CITED: Odgers on Libel and Slander 6th ed. Brown, The Law of Defamation in Canada (2nd ed., 2003)

PARTIES: Plaintiff: Antoine Bechara Defendant: Paul Bonacorso

COUNSEL: Plaintiff: Ms S Chrysanthou Defendant: Mr M Lynch

SOLICITORS: Plaintiff: Kalantzis Lawyers Defendant: Puleo Lawyers

[1] These are proceedings for defamation commenced by way of Statement of Claim filed on 27 October 2008 concerning three publications of words spoken by the defendant to police officers between May and June 2007. The imputations conveyed are set out in Bechara v Bonacorso [2009] NSWDC 131. The Defence filed on 14 July 2009 denies publication of each of the matters complained of and relies on defences of common law and statutory qualified privilege, as well as the defence of unlikelihood of harm. A Reply filed on 16 July 2009 pleads malice in defeasance of the qualified privilege defences.

[2] The matter was given a hearing date on Monday 17 May 2010 as a five day non-jury trial. When that order was made on 4 September 2009, an order was made for the parties to exchange verified answers to interrogatories on or before 18 September 2009. Those answers were served five months late, on 19 February 2010. Some interrogatories were not answered on the basis of an obvious typographical error in the question. The defendant has now agreed to answer these, and when the matter came before me on 12 March 2010, I directed the defendant to answer interrogatories 3 to 12 by Monday 15 March 2010 with verification.

[3] This judgment deals with the remaining two interrogatories, namely interrogatories 2(c) and 14(c). I have received written submissions from the parties, including additional submissions from the plaintiff dated 15 March 2010. The parties have agreed that as the hearing date is imminent, and additional oral argument is unnecessary, I should provide my judgment on the written submissions by email as soon as possible.

The Uniform Civil Procedure Rules for administering interrogatories

[4] The relevant rules dealing with the administering of interrogatories are contained in rr 22.1 and 22.2 Uniform Civil Procedure Rules 2005 (NSW), which provide: " 22.1 Interrogatories

(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.

(a) a claim for damages arising out of the death of, or bodily injury to, any person, or

(b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

(a) may require the answers to be given within a specified time, and

(b) may require the answers, or any of them, to be verified by affidavit, and

(c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.

A party may not object to being ordered to answer an interrogatory except on the following grounds:

(a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order,

(c) the answer to the interrogatory could disclose privileged information."

[5] The ambit of r 22.1 was recently considered by Nicholas J in Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508 at [7]-[10]. As Nicholas J has pointed out, the exercise of this discretion is subject to facilitating the "just, quick and cheap resolution of the real issues in the proceedings" (s 56 Civil Procedure Act 2005 (NSW)), and one of those is promoting "speedy and non-litigious methods of resolving disputes about the publication of defamatory matter" (s 3 Defamation Act 2005 (NSW)). This is reinforced by s 40 Defamation Act 2005, which entitles the court to impose indemnity costs on the parties who have, in the course of the conduct of the matter, failed to comply with the spirit of this section.

[6] As Gray J notes in Bateman v Nationwide News Pty Ltd [2002] ACTSC 73 at [3], the object of interrogatories "is to enable a party to obtain discovery of material facts in order to support or establish proof of that party's case, or to find out the case to be met, or to destroy or damage the opposing case (Adams v Dickeson [1974] VR 77 at 79)", and the general intention is that "interrogatories be administered if necessary and if they serve a useful purpose (Ryan v Federal Capital Press (1990) 101 FLR 396)". This applies not only to interrogatories which are the product of precedent or standard form word processing of the kind referred to by the plaintiff (and by Gray J in Bateman), but also to interrogatories of the kind administered by the plaintiff which arise in unusual circumstances such as the present.

[7] Interrogatories 2(c) and 14(c), and the answers given by the defendant, are as follows: "2. If the answer to interrogatory 1 is in the affirmative please state:

2B (c) The defendant objects to answering this interrogatory on the ground that it is vexatious and oppressive or does not relate to any matter in issue in the proceedings.

14. If the answer to interrogatory 13 is in the affirmative please state:

14B (c): The defendant objects to answering this interrogatory on the ground that it is vexatious and oppressive or does not relate to any matter in issue in the proceedings. " (Italics added to the answers.)

The defendant's objections to answering these interrogatories

[8] The objection taken by the defendant is that these interrogatories do not seek an admission as to whether the defendant published the matters complained of (which I note has been denied on the pleadings in any event), but ask instead what in fact the defendant did say. It is submitted that this is merely a fishing expedition: Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 392-393.

[9] In Seidler, the plaintiffs sought an admission by the defendant that a particular part of a document was relevant to the matters in question between the parties (as opposed to asking the use to which the defendant's servant or agent put those documents before the matter complained of was published). The defendant submits that these questions are similarly both irrelevant and unnecessary, and do not seek any relevant admissions to matters in issue.

[10] When the matter was before me on 12 March, Mr Lynch explained the basis for this. The defendant, while denying publishing the matters complained of, proposes to assert that he made a statement of a different nature to the police and to assert that the defences of qualified privilege which are pleaded are attracted to that publication. This was the explanation given to me by Mr Lynch for a defence that denies publication, answers to interrogatories which deny intention to convey or belief in the truth of the imputations, and persistence in pleads of defences of qualified privilege. Mr Lynch asserted his entitlement to do so was endorsed in this court in Cush v Dillon and Boland v Dillon [2009] NSWDC 21.

[11] The law has always been to the contrary. In Sanders v Anderson [1968] NZLR 172 a defendant in a slander action denied publication and denied that the words complained of were capable of conveying the imputations pleaded. At the commencement of the trial, the defendant sought to amend to plead a defence of qualified privilege, and it was made clear to the court that there would be no admission of publication, and the defence was pleaded in the alternative (at 173). Hardie-Boys J rejected that application and, in his judgment on an application to set aside the jury verdict, noted that while there were classes of litigation where a plaintiff could "throw the book" at his adversary without suffering any consequences, defamation was not one of them, citing Odgers on Libel and Slander 6th ed., at 509, and Gatley on Libel and Slander, 5th ed., at [840].

[12] However, there have been two previous actions for defamation in combination with a claim for wrongful imprisonment in this court where a denial of publication and a claim of qualified privilege were both relied upon by the defendant. In the first of these, Photi v Target Australia Pty Ltd (No 1) [2007] NSWDC 265, the claim of a defence of qualified privilege was, like the claim in Sanders v Anderson, only made at the trial. The defendant denied publication of the matter complained of up until the hearing but during the trial one of the store employees admitted hearing the words complained of being spoken. In submissions following the close of evidence, the defendant sought to amend to plead a defence of qualified privilege. The plaintiff only consented to this amendment in order to avoid the expense of appellate review. The plaintiff was successful in these proceedings.

[13] In Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299, the defendant at all times up to the trial denied publication while maintaining a defence of qualified privilege. An application by the plaintiff to administer the usual interrogatories for such a defence was opposed by the defendant, and there were considerable problems during the trial by reason of the defendant's change of position concerning whether there was intention to convey or belief in the truth: [2009] NSWDC 4 at [1], [71], [86], [175] in circumstances where the person who spoke the words denied saying them, said she could not remember, and did not advance any evidence of belief in the truth of the imputations. One of the grounds of appeal ([2009] NSWCA 299 at [38] was that the trial judge erred in holding that the statements had not been made on an occasion protected by the privilege. In his careful analysis of the facts, Ipp JA noted the unchallenged evidence of the plaintiffs concerning what was said, and upheld the findings of the trial judge on the issues of occasion of qualified privilege and malice. The point that the defence of qualified privilege was inconsistent with a denial of publication was not taken either at first instance or on appeal.

[14] In Cush v Dillon and Boland v Dillon, the case relied upon by Mr Lynch, a s 7A jury found that the defendant, contrary to her denials, had published the matter complained of. A defence of qualified privilege was run at the trial, apparently without objection from the plaintiff, perhaps for the same reason as the plaintiff in Photi v Target Australia Pty Ltd (No 1). There was no consideration by the trial judge of this issue in any event.

[15] In The Law of Defamation in Canada (2nd ed., 2003), Professor Brown notes at [33.21] that in a slander action "the plaintiff has long been permitted to interrogate the defendant as to whether he spoke the words pleaded or words to that effect, but the plaintiff could only interrogate as to the words pleaded in circumstances where he could clearly show that a defendant had made a slanderous imputation of a definite character against him but he was unable to frame his statement of claim for some reason. In those circumstances, the court would permit a plaintiff to interrogate the defendant as to the precise words used: Atkinson v Fosbroke (1866) LR1QB 628". However, this is a procedure for obtaining the text of the matter complained of where the plaintiff would otherwise be unable to frame the cause of action. It is not a bar to a plaintiff seeking an admission from the defendant in the very unusual factual circumstances of plaintiff who faces both a denial of publication and a plea of qualified privilege. Where there is an issue about words spoken which goes to one of the issues in the trial, interrogatories are generally permitted; a recent example is Mallick v McGeown [2009] NSWSC 129 at [44].

[16] Where the reason for answering the interrogatory is that what was said is asserted not to be the matter complained of and/or not to give rise to the imputations conveyed (these being matters for findings for the tribunal of fact), a plaintiff should be entitled to interrogate in order to determine whether or not to accept the defendant's version of what was said (i.e. to establish his own case), and/or for the purpose of proving that this was not said (i.e. to destroy the defendant's case), both of which are proper matters for interrogatories for the reasons explained by Gray J in Bateman, supra. The defendant is not entitled to refuse to answer these interrogatories on such a basis.

[17] However, even if that were not the case, the defendant would not be entitled to refuse to answer these interrogatories in any event, for the reasons explained by Levine J in McConville v Credit Union Services Corporation (Australia) Ltd (Supreme Court of NSW, Levine J, 29 August 1997, unreported) where a similar attempt to deny a slander while maintaining a defence of qualified privilege was made: "The position of the defendant further is compromised, in my view, by its pleading the series of particular facts, matters and circumstances on which its relies in support of the defences it would seek to prove in the event of the plaintiff proving publication. No authority was cited to me in the course of the written submissions lodged in connection with this argument to support the proposition that would apply in this case that where the defendant pleads in the alternative defences that would arise on the plaintiff proving a principal issue in support of its case, by reason of that principal issue being placed in dispute by the pleadings, the process of discovery and interrogatories is circumscribed to the point that the plaintiff is entitled to embark upon neither in relation to the latter and the defendant is entitled to embark on nothing in relation to both.

In media defamation cases more often than not publication is admitted. It would be an extraordinary state of affairs if a media defendant could simply deny publication of an indisputably published program or article then plead in the alternative substantive defences in respect of which the plaintiff would not be entitled to deliver any interrogatories.

The current dispute thus in the end involves the objections taken to interrogatories 6 to 29. I hold that objection to be unavailable to the defendant and order the defendant to provide proper answers or proper objections thereto."

[18] Levine J's judgment concluded with the warning: "Whether or not the defendant should amend its Defence is a matter for it in consultation with its legal advisers."

[19] In my view, Levine J's belief that a defendant should elect between these inconsistent defences is the correct one, but that is not an issue which I need to determine for this application.

[20] The defendant must answer these interrogatories, with verification, in seven days by 26 March 2010. Given the history of delay, and the imminence of the trial date, this order will be of a self-executing nature.

[21] The plaintiff has been successful in this application and it is appropriate that costs should follow the event.

(1) The defendant is to answer the plaintiff's interrogatories 2(c) and 14(c) in seven days, with verification, by 26 March 2010. (2) Order 1 is self-executing in nature. (3) Defendant pay 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.