Bryson v Casey & Anor

Supreme Court of NSW|2002-07-08|Before: Simpson J, Adams J

background 2 The plaintiff has sued the defendants in defamation as a consequence of a radio broadcast on 28 June 1995. At a hearing conducted pursuant to s7A of the Defamation Act 1974 before a Court constituted by Adams J and a jury, three imputations defamatory of the plaintiff were held to have been conveyed by the broadcast. The imputations are in the following terms: "(i) The plaintiff abused a position of trust within the community at large as a barrister and member of the legal profession by inviting a young girl to have work experience with him when his true motive was to seduce her. (ii) The plaintiff abused a position of trust as a barrister and member of the legal profession in relation to a young girl who came to him for the purpose of having work experience by seducing her while she was with him for the purpose of obtaining work experience. (iii) The plaintiff is a paedophile." 3 By an amended defence filed on 19 October 2001 the defendants have pleaded various defences. They plead that each imputation was substantially true, and published on an occasion of qualified privilege, and/or related to a matter of public interest (Defamation Act, s15); they plead the defence of qualified privilege both pursuant to s22 of the Defamation Act and at common law; that the imputations were published under circumstances such that the plaintiff was not likely to suffer harm (s13); that the publication of the imputations amounted to comment within ss 32, 33 and 34 of the Defamation Act; that the matter complained of was a fair protected report of proceedings in public of a court (s24). Importantly for present purposes, the defendants also plead the defence of contextual truth as provided by s16 of the Defamation Act. They have identified a further thirteen imputations, defamatory of the plaintiff, which, they argue, were conveyed by the matter complained of, and related to matters of public interest and/or were published on an occasion of qualified privilege. 4 Pursuit of these defences will involve the litigation of a multitude of issues. However, in respect of the present application, the issues that need to be considered are limited, principally to the substantial truth of the imputations pleaded by the plaintiff and found by the jury to have been conveyed; and of the contextual imputations pleaded by the defendants as having been conveyed (as to which, no determination has yet been made). 5 Although there is a considerable degree of overlap in respect of the imputations, so far as proving their substantial truth is concerned, the sheer number of imputations being considered, and their variety, mean that the exploration of the truth issues is likely to be a lengthy and complex process. 6 The imputations are largely concerned with the plaintiff's alleged sexual misconduct with teenaged girls over a period commencing in 1981 and continuing at least until 1993. The attempt to prove the truth of those imputations pleaded by the plaintiff will itself be complex because of the nature of the imputations - they involve ascertaining the motives of the plaintiff in his alleged sexual conduct with two young girls; his occupation of a position of trust as a barrister "and member of the legal profession"; and whether or not he should be categorised as "a paedophile". The factual issues raised by the contextual imputations pleaded by the defendants are even more far reaching. They include (but are not limited to) such matters as the "moral worth" of the plaintiff; his fitness to practise as a barrister; and whether he is "a person to be despised by the community at large". It will be open to the defendants in seeking to prove these matters, to open up virtually the whole of the plaintiff's character and conduct. 7 Indeed, some flavour of the breadth of the factual matters may be obtained from the document in which the defendants have particularised their case on substantial truth. They allege sexual misconduct (which is given in graphic detail) by the plaintiff against no less than twelve teenaged girls over the period I have mentioned. The particulars of truth provided by the defendants extend over 42 pages. Much of this consists of narratives of alleged facts concerning the plaintiff's sexual conduct with girls or young women. There are also assertions of criminal convictions, professional misconduct and bankruptcies. 8 Should the defendants persist in this defence (as they are fully entitled to do) it will be necessary that they establish sexual misconduct or other improprieties along the lines particularised. One way of doing this would be by adducing oral evidence from each of the named girls (who would, by now, be young women). 9 The defendants have sought to short-cut the procedures that would otherwise be necessary by the administration of a very lengthy and detailed set of interrogatories, many going directly to proof of the substantial truth of the facts particularised. The defendants point to significant potential advantages in proceeding in this way. If the plaintiff answers the interrogatories as they anticipate, there exists a real possibility, even probability, that the need to call some or all of the young women as witnesses will be obviated; that that, in turn, would avoid the need for them to relive, and give evidence in open court of, highly personal, no doubt embarrassing and distressing events from the past; and shave a great deal of time off what will otherwise inevitably be a lengthy trial. Proof of other factual matters such as the plaintiff's alleged criminal convictions and the circumstances that give rise to them, would equally be facilitated. 10 The plaintiff has, in fact, provided answers to a large number of the interrogatories. However, there are many which he has objected to answering. It is whether he should be required to answer any or all of those that is the subject of the present application. 11 Not all judicial officers are enamoured of the interrogation process. However, while appreciating and respecting the views of others, and recognising that the process may be misused, I have, on a previous occasion, expressed my contrary view: that is, if properly used, the process of interrogation has distinct advantages: Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587; unreported, 13 July 2001. I have not changed the opinion there expressed. Counsel for the defendants relied upon that judgment in support of his application for an order that the plaintiff provided further and better answers. It is, however, essential that an interrogating party retain a sense of proportion. It was, no doubt, because of perceived excessive interrogation that a limit was placed on the number of interrogatories that may (unless leave is given) be administered. Responding to interrogatories undoubtedly casts a burden upon the interrogated party. Interrogation can become oppressive. 12 Part 24 of the Supreme Court Rules deals with the administration of interrogatories. By rule 1, a party to proceedings may serve on any other party a notice to answer interrogatories, but limits to 30 the number of interrogatories which may be asked; the sub-rule provides that the court may, by order, specify that a larger number may be administered and required to be answered. For the purpose of ascertaining the number of interrogatories asked, by sub-rule (1A), where an interrogatory comprises more than one question, each such question is to be treated as a separate interrogatory. 13 Here, the interrogatories, on their face, number 292. However, many, if not all, comprise a series of questions, in one case (interrogatory 67) as many as 29, of which several have their own separately numbered component parts; another (interrogatory 107) consists of 23 parts, of which, again, some are divided into sub-parts; yet another (interrogatory 192) is made up of 18 parts, of which one has 19 sub-parts. Counsel for the plaintiff calculated the number of questions asked as 1,365, or forty-five times that prima facie allowed by the rule. (I have not checked either calculation and rely on counsel's mathematics.) He therefore argued that that circumstance alone, without descending to the detail of the disputed interrogatories, would entitle the plaintiff to refuse to answer on the ground that the interrogatories are oppressive. Persuasive as that submission may at first appear, it has a difficulty. On 29 June 2001 the parties consented to orders that each have leave to administer to the other interrogatories exceeding 30 in number. I would infer that mutual consents were given because the legal representatives of each party recognised that the circumstances of this case, and the issues raised, warranted that course being taken and that advantage would be taken of the consent order by both parties. Those consents were given at a time before the actual interrogatories had been administered, and in ignorance (on each side) of the extent to which the other party would take advantage of the unlimited consent. Counsel for the plaintiff, however, argued that consent on his behalf was given, in good faith, on the assumption that the legal representatives of the defendants would limit their interrogation to what is reasonable in the circumstances, and that the defendants' legal representatives had, in effect, abused that trust. 14 That argument does not stand up to examination. On 16 November 2001 the plaintiff consented to an order that he provide verified answers to the defendants' notice to answer interrogatories by 15 January 2002. It is plain that, when the solicitor for the plaintiff consented to that order, he was in possession of the interrogatories in fact administered. It is not to be overlooked, either, that the plaintiff is himself a barrister. While it might not be wise for a litigant who is also a legal practitioner to act as his/her own legal adviser, it might be expected that the plaintiff would be aware of what was potentially involved in giving his consent. 15 I therefore reject the proposition that the plaintiff or his legal representatives were in any way taken by surprise by the volume of the interrogation that eventuated. 16 The notice to answer interrogatories was served on the plaintiff's solicitor on 8 October 2001. On 9 October the plaintiff's solicitor requested a copy of the interrogatories in electronic form. No complaint was then made (nor could it be expected) about the volume of the interrogatories as a whole, nor about the content of any individual interrogatory. On 12 October 2001 the defendants' solicitor provided the electronic version as requested. 17 On 3 April 2002 the plaintiff's solicitor provided a verified statement in answer to the interrogatories. The plaintiff objected to answering a significant number of the interrogatories. An explanation for the objection was in all cases given. On 1 May 2002 the defendants' solicitor wrote to the plaintiff's solicitor, pressing for answers to some (but not all) of the disputed interrogatories, and giving reasons for persisting in the request. The plaintiff's solicitor has neither replied to the letter, nor provided the additional answers sought. In these circumstances, the defendants have sought an order requiring that the answers be provided. 18 The objections taken were of various kinds. This means that each disputed interrogatory must be considered individually. They may, however, be dealt with in groups, as they were in the defendants' solicitor's letter of 1 May. It is therefore now necessary to turn to the individual interrogatories in dispute. Before doing so, it is convenient to recall some general principles relating to the interrogation process. These are conveniently stated in the notes to SCR Part 24 in Ritchie: Supreme Court Procedure (NSW). 19 Perhaps the most important purpose of the interrogation process is to facilitate proof of the interrogating party's case. Skilfully administered interrogatories may achieve proof of matters which may otherwise take a number of witnesses and a great deal of time to prove. This is done simply by securing the admission by the interrogated party of the particular fact or facts. It is, of course, essential that the interrogatories relate to a matter in question, but this relationship may, on occasions, be indirect. 20 The obligation of the interrogated party is to answer to the best of his/her knowledge, information and belief, and after, where necessary, making reasonable inquiries. 21 While there are good reasons for the limitation in number of interrogatories, there are equally good reasons for the conferral of power to permit the administration of a greater number of interrogatories. The proper exercise of that power will be guided by the breadth of the issues defined in the pleadings, and the complexity of proving particular aspects of the case by means other than interrogation. 22 With those principles in mind I will consider the disputed interrogatories and the bases of objection to them.

interrogatory 14 23 In interrogatory 14 the plaintiff was asked: "Have you had sexual intercourse with any of the children or pupils whom you met or spent time with in the course of you undertaking such work or activity referred to in answers to interrogatories 7 and 8, and if so: (a) identify each such child or pupil (b) state the age of each such child or pupil at the time each act of sexual intercourse occurred (c) describe each act of sexual intercourse specifying when it took place."

(In interrogatories 7 and 8 the plaintiff had been asked, and had answered questions about engaging in work or activity with school children or pupils, including but not limited to being involved with mock-trial teams or moot court teams, and had been asked to identify the school or institution which any such children or pupils attended.) 24 The answers given by the plaintiff to interrogatories 14(a) and (b) were: "This interrogatory has already been answered in response to interrogatory 10." 25 The plaintiff answered interrogatory 14(c) in the following way: "Except to the extent that the plaintiff has already referred to these matters herein, this interrogatory is onerous, oppressive, unnecessary, vexatious and otherwise impossible for the Plaintiff to answer, having not kept records of such information and the Plaintiff objects to this interrogatory beyond the answers given." 26 However, when one returns to interrogatory 10 it can be seen that the answers given to interrogatories 14(a) and (b) are incorrect. Interrogatory 10, which was a follow-up to interrogatory 9, required the plaintiff to identify any child or pupil with whom he had had contact other than in the course of the work or activity referred to in interrogatory 8. The plaintiff gave a lengthy and detailed answer to interrogatory 10, naming eleven young women and describing the contact he had had with them. The focus of interrogatories 9 and 10 was on "contact" with the young women. The focus of interrogatory 14 was on whether the plaintiff had had sexual intercourse with any of those young women. The plaintiff was asked to identify each child or pupil with whom he had had sexual intercourse, to state the age of each at the time of each act of sexual intercourse and to describe each act of sexual intercourse specifying when it took place. 27 Plainly, the matters the subject of questioning in interrogatory 14(a) and (b) were not answered in the response to interrogatory 10. 28 Counsel for the plaintiff appeared to concede that this was so during the course of oral argument. He instead referred to interrogatories 174 to 230. These interrogatories all concerned a young woman to whom I will refer as EL. In particular, in answering interrogatory 207, the plaintiff acknowledged that he had had vaginal sexual intercourse with EL, that she was then 16 years of age and was attending high school. 29 Similar interrogatories were answered by the plaintiff in relation to other young women named by the defendants or by him. However, while it might be true that there is some repetition in the information sought by the interrogatories, for the plaintiff to refer to specific questions and answers about young women named in the interrogatories by the defendants, evades the substance of interrogatory 14. Interrogatory 14 required the plaintiff, inter alia, to disclose the names of any young women who were children or pupils engaged with him in the kind of work experience activities mentioned in the interrogatories with whom he had had sexual intercourse. It requires positive disclosure by him of matters (if there are any) not known to the defendants. 30 It may be that, if the plaintiff correctly and fully answered interrogatory 14(a), identifying each child or pupil with whom he had had sexual intercourse, the remaining parts of interrogatory 14 could be answered by reference to answers given to other interrogatories. Indeed, counsel for the defendants accepted that, provided the defendants were directed to those answers, that could well be adequate. This may be so, although it seems to me that no time or effort on the plaintiff's part would be saved by adopting such a course. Nevertheless, if he can give a complete answer to each part of the interrogatory, and if some part of the answer is given by reference to the same information contained in the answer to another interrogatory, that would, in my opinion, be sufficient. 31 How he answers the interrogatory is a matter for the plaintiff and his legal advisers. It seems from the letter of the plaintiff's solicitor of 1 May 2002, they press only for answer to interrogatory 14(b). I propose to direct that the plaintiff answer that interrogatory.

interrogatories 18-22, 67(a), 71(a), 107(a), 120(a) and 244 32 The next group of disputed interrogatories consists of those numbered 18 - 22 inclusive, 67(a), 71(a), 107(a), 120(a), and 244. 33 Interrogatories 18 - 22 are a series of questions about the plaintiff's allowing children or school pupils to undertake work experience with him in his barrister's practice or otherwise. The first in this series, interrogatory 18, is in the following terms: "18. Did you ever allow or permit any child or pupil to have or obtain work experience with you while you were practising as a barrister or otherwise?" 34 One would have thought that this interrogatory could have been answered with a simple negative or affirmative. However, the plaintiff answered it in this way: "The work experience program is generally coordinated through the Law Society, or already arranged, or an individual request by a school or student. The plaintiff has not kept records of students who had work experience with him during the period 1987 - 1992, and suggests the Law Society may well hold such records." 35 It can be seen that this answer is not responsive to the question asked. 36 Interrogatory 19 contained five sub-questions seeking details of the identity of each child or pupil who undertook work experience with the plaintiff; the identification of the school or institution attended; the nature of the work experience; the date or periods during which a child or pupil who undertook work experience with the plaintiff; and the gender of all such children or pupils. 37 This interrogatory the plaintiff answered in the following way: "The plaintiff refers to the answer to interrogatory 18 to answer this interrogatory, and otherwise objects to this interrogatory as being onerous, vexatious, and unreasonable. It is also not a proper interrogatory." 38 The assertion contained in the last sentence of this passage has never been spelled out. 39 In interrogatory 20 the plaintiff was asked if he had had contact with any of the work experience pupils other than in the course of the work experience, or after the work experience had concluded. In his answer he maintained that he had already answered this question in his answer to interrogatories 5(b) and (c), although he added a rider, which appears to be quite superfluous. However, again, when one goes to interrogatories 5(b) and (c), it emerges that the plaintiff was asked if he had at any time had sexual intercourse with a person aged sixteen years, and, if so, the identity of that person, and when sexual intercourse took place. In the answers to those interrogatories he gave three names and a range of dates. That answer clearly is not an answer to the question asked in interrogatory 20. 40 A similar point may be made in relation to interrogatory 21. 41 In my view, the answers given by the plaintiff are inadequate and do not represent a genuine attempt by him to discharge his responsibility to give proper answers. I propose to order that the plaintiff give further and better answers to interrogatories 18 - 21 inclusive. 42 Interrogatory 22, at first sight, appears to be slightly different. 43 It asks the plaintiff what his purpose was in allowing the work experience referred to in answer to interrogatories 18 and 19. He replied that the interrogatory had already been answered in response to interrogatory 11. 44 Interrogatory 11 asked the plaintiff about his purpose in undertaking "the work or activity" referred to in interrogatories 7 and 8. In interrogatory 7 the plaintiff was asked about any work or activity he had undertaken with school children or pupils, including but not limited to mock trial teams or moot court teams. 45 The two kinds of activity referred to are different. Interrogatory 7, and the interrogatories which flow from it, concern what might be called coaching by the plaintiff, or teaching, school children or pupils, including mock trials and moot courts. Interrogatory 8 asks about students undertaking work experience with the plaintiff whilst he was practising as a barrister or otherwise. 46 It is therefore incorrect to say that the question asked in interrogatory 22 had been answered in the response to interrogatory 11. I propose to direct the plaintiff to answer interrogatory 22. 47 Interrogatories 67(a), 71(a), 107(a), 120(a) and 244 are all in the same or similar terms, each relating to a different young woman. As a preliminary, the plaintiff was asked if that (named) young woman, at a specified date, had spent time with him having work experience. On the hypothesis that an affirmative answer was given to that question, the plaintiff was then asked if her purpose was to obtain work experience with him as a barrister. The plaintiff's answers to these interrogatories varied. The answer he gave to interrogatory 67(a), relating to a young woman to whom I will refer as IL, was: "No. As a student, she could only observe what a barrister did. She had stated that she had no intention of ever being a barrister." 48 Interrogatory 71(a) also related to IL, and drew the response from the plaintiff that the interrogatory had already been answered in response to interrogatory 67. This overlooks the preliminary questions; interrogatory 67 and the surrounding interrogatories, were directed to a period in or about mid August in 1988; interrogatory 71 and the surrounding interrogatories were directed to a period in or about late 1988 or early 1989. 49 Interrogatory 107(a) related to a young woman to whom I will refer as SP. In answer to the interrogatory about her purpose in spending time with the plaintiff, the plaintiff responded: "The purpose, as [S] was a student and not a barrister, was to observe only, or participate in a (sic) basic clerical matters." 50 Interrogatory 120 concerned a young woman to whom I shall refer as EB. In answer to this interrogatory, the plaintiff responded: "No, as a student, [E] could only observe my work as a barrister." 51 Interrogatory 244 concerned the work experience participation of a young woman to whom I shall refer as EO. In answer to this interrogatory concerning EO, the plaintiff replied: "No. As [E] was not a barrister but a high school student, she could only observe the plaintiff's activities as a barrister." 52 I agree with the defendants' submission that the plaintiff appears to have misunderstood the questions and that, properly interpreted, in each case the interrogatory concerns, not work by the young woman as a barrister, but the plaintiff's work as a barrister. However, in my opinion there is a more fundamental issue. These interrogatories are, as has been made apparent, very lengthy indeed. A party who wishes to interrogate another party by administering in excess of the permitted 30 interrogatories must exercise both selectivity and discipline. While I am of the view that, in all probability, the plaintiff could properly answer these interrogatories without undue difficulty, nevertheless, they add to the length of the exercise he must undertake, and extend his task. They do not appear to me to add significantly to the defendants' store of knowledge or information such as to warrant the plaintiff's being required to answer them. These interrogatories do not display the necessary restraint, selectivity, and discipline. Two other matters strengthen my view. Firstly, the plaintiff is asked to answer questions about the mental state (purpose) of another person; secondly, it seems obvious that a school student undertaking work experience with a barrister does so for the purpose of observing his work in that role. I do not propose to order the plaintiff further to answer these interrogatories.

interrogatory 26 53 In interrogatory 26 the plaintiff was asked to look at a document which, on its face, is a statement of his criminal record. He was then asked whether the document was a complete record of his criminal history as at about 20 July 2000, and if the answer was in the negative, to identify what was incorrect, and state what had been omitted. The plaintiff answered as follows: "The Plaintiff objects to answering this interrogatory, as certain matters relate to juvenile offences and are inadmissible. The Defendants could only have improperly obtained this document marked 'A'. The interrogatory is vexatious and malicious. Further, the document speaks for itself." 54 In response to this the defendants' solicitor advised the plaintiff's solicitor that the document had been produced by the Director of Public Prosecutions in answer to a subpoena served on him. They invited the plaintiff to withdraw the allegation of impropriety. Leaving aside the plaintiff's assertion of impropriety on the part of the defendants, the plaintiff's answer is unsatisfactory insofar as it raises questions of admissibility. Admissibility of the answer to any interrogatory will be a matter for the trial judge. It seems to me that the question whether information sought in an interrogatory is admissible or not is relevant to whether or not the interrogatory should be answered only where it is so plain that that information could not be adduced as evidence that to require an answer would be futile. The assertion that the document speaks for itself misses the point of the interrogatory. What is sought by the interrogatory is either confirmation that the document is a complete record of the plaintiff's criminal history, or, if it is not, correct information. 55 The plaintiff's criminal history is potentially a matter relevant to the issues that will arise on the hearing. One convenient, expeditious, and inexpensive means of establishing the plaintiff's criminal history is by obtaining his sworn confirmation (or otherwise) of that history as officially recorded. I propose to order that the plaintiff answer interrogatory 26.

interrogatories 28 - 34, 275, 277 and 278 56 The plaintiff affirmatively answered interrogatory 27, which asked whether, at any time on 2 or 3 November 1999 he had been at a place known as "the Bourbon and Beefsteak" in Kings Cross. The following six interrogatories sought information from the plaintiff about an alleged occurrence at that time and place. What the defendants seek to establish can best be discerned from their particulars of matters of substantial truth. The defendants, in that document, outlined the allegations, which have substantially been converted to questions asked of the plaintiff in these interrogatories. 57 Put shortly, the defendants allege that on 3 November 1999 the plaintiff was arrested on licensed premises whilst in possession of two firearms for which he held no licence, and was abusive and uncooperative with police. They allege that he was convicted of certain offences. 58 These matters are plainly relevant to the question of the plaintiff's character, conduct and fitness to practise as a barrister and therefore to issues that will be raised in the trial. It would, perhaps, be possible for the defendants to prove their allegation by means other than the administration of the interrogatories, but I am satisfied that the most convenient, expeditious and cost saving way of doing so is by means of interrogatories. All matters about which the defendants have asked the plaintiff in these interrogatories are matters which should be within his knowledge or to which he would have ready access. There is nothing oppressive about asking him to respond to these interrogatories. 59 I will direct the plaintiff to answer interrogatories 28 - 34 inclusive. 60 In interrogatory 275 the defendants questioned the plaintiff about an alleged apprehended personal violence order. What this is directed to can also be discerned from the particulars. There it is asserted that in 1994 and 1995 the plaintiff brought and continued an application for an apprehended personal violence order against the parents of EO, who was then a 17 year old girl and with whom he was living in a de facto relationship; and that he "connived with, encouraged and assisted" EO to bring an application for such an order; and that he had no proper basis for the application he made on his own behalf. 61 The interrogatory seeks confirmation that the plaintiff made the application and encouraged EO also to do so. 62 The plaintiff objects to answering this interrogatory on the grounds that: "it is irrelevant and … vexatious, embarrassing and no more than a fishing expedition." 63 In my opinion the circumstances asserted are potentially relevant to the issues that will arise at the trial. It will be open to the defendants to seek to prove that the plaintiff acted as alleged. They could do so, no doubt, by means other than the administration of this interrogatory, but that would be a costly and time consuming process. Efficiency justifies requiring the plaintiff to answer this interrogatory, and I propose so to order. 64 Interrogatories 277 and 278 are directed to alleged bankruptcies of the plaintiff, the first in 1986 and the second in 1993. These, too, were the subject of particulars. Each of these the plaintiff objected to answering on the ground that it is irrelevant and vexatious, embarrassing and no more than a fishing expedition. 65 I think the plaintiff is justified in claiming that the interrogatory is irrelevant, or, at least, that its relevance has not been established. Counsel for the defendants sought to establish its relevance by reference to recently enacted amendments to the rules governing the entitlement of barristers to practise. These arise in the context, generally, of income tax defaults by barristers, and the fitness of such individuals to practise as barristers: NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279; NSW Bar Association v Somosi [2001] NSWCA 285; unreported, 31 August 2001; NSW Bar Association v Murphy [2002] NSWCA 138, unreported 28 June 2002; NSW Bar Association v Cameron [2002] NSWSC 191, unreported, 20 March 2002. 66 I do not accept that bankruptcy of itself is necessarily relevant to the fitness of a person to practise as a barrister. There is nothing either in the particulars, nor that can be inferred from the content of the interrogatories, that suggests that the plaintiff's bankruptcies (assuming that they did in fact occur) reflected upon his character and conduct in such a way as to affect his fitness to practise. These are two interrogatories which, while possibly having some peripheral relevance, should give way in the light of the large number of interrogatories the plaintiff has answered or will be required to answer.

interrogatories 67(c), 79(c)(viii), 102(b), 107(d), 153(b), 207(b)(ii), 207(b)(iv), 214(d)(ii), 217(c), 234(b), 254(b), 247, 256(c), 269(c) and 272(a)(ii) 67 Each of these interrogatories concerned the plaintiff's alleged relationship with a named young woman. The theme common to all is that they ask the plaintiff to state when he became aware of the age of the young woman to whom the interrogatory relates; in some cases they also ask what was the age of that young woman at the time the plaintiff came into that knowledge. In each case, by reference to other interrogatories, the plaintiff asserts that the interrogatory has already been answered. However, the interrogatories to which the plaintiff directs attention in these answers are not interrogatories going to the time at which the plaintiff became aware of the age of the particular young woman, but what her age at a stated time, in fact, was. There is a significant difference between an answer to an interrogatory by which the plaintiff states that, at a particular time, the young woman concerned was of a particular age; and an answer in which the plaintiff states when he became aware of the age of that young woman. The objections are not well taken. The plaintiff should answer each of these interrogatories.

interrogatories 94 - 96 inclusive 68 In interrogatories 94 - 96 the plaintiff is asked whether, in March or April 1990, he had become aware that one of the young women (who is identified) had at or about that time undergone a particular medical procedure. The plaintiff objected to answering the interrogatory, claiming it had already been answered in response to interrogatory 87. Interrogatory 87 was a similar, if not identical, question, but concerning a similar treatment said to have been given to the same young woman in or about January 1990. To assert that the later interrogatories had been answered in the responses to the earlier is to misunderstand that two separate occasions are the subject of the interrogatories. I will direct the plaintiff to answer interrogatories 94, 95 and 96.

interrogatory 154 69 In interrogatory 154 the plaintiff was asked if he had had sexual intercourse with a named young woman, and if so, to describe each such act and state where and when it had taken place. The plaintiff declined to answer on the ground that an answer had already been given in response to interrogatory 10. I have already referred to interrogatory 10, which related back to interrogatory 9, and which asked about "contact" with children or pupils involved in activities such as mock trial teams and moot court teams. Certainly, the answer to interrogatory 10 does not provide an answer to interrogatory 154. I will direct the plaintiff answer interrogatory 154.

interrogatory 200 70 In interrogatory 200 the plaintiff was asked to look at a document annexed and say whether the document was a photocopy of a birthday card that he had sent to EL, and, if so, when he sent the card. The plaintiff responded to the first part of the question in the affirmative and said that it had been sent a day or so before her birthday. The defendants seek a more complete answer, specifying the date on which the card was sent or alternatively stating in respect of which birthday it was sent. I think this is a fair request and the plaintiff would not be unduly oppressed by being required to answer it. I will direct the plaintiff to answer interrogatory 200.

interrogatories 213 and 224 71 In interrogatory 213 the plaintiff was asked if he admitted that during a period from 12 August 1992 until late 1992 EL was enrolled as a student in a high school, and, if so, whether he admitted that he was aware of that fact during the stated period; in interrogatory 224 the plaintiff was asked an identical question, specifying the period January 1993 to August 1993 as the period the subject of the interrogatory. In each case the plaintiff answered: "No. Not as a fact." 72 The defendants contend that they are entitled to an answer based on the plaintiff's knowledge, information and belief. It is difficult to be sure what the plaintiff means in the second part of the answer. However, in my opinion, he can, without undue difficulty, answer each of those questions as required. I will direct the plaintiff to answer interrogatories 213 and 224.

interrogatories 258 and 259 73 In interrogatories 258 and 259 the plaintiff was again asked to look at documents annexed to the notice and to say whether the documents were a photocopy of a document he had sent to EO; and, if so, to describe the document and specify how, when and to what address he had sent it. He answered interrogatory 258: "No. It is a headline of an article sent to [E] in or about July/August 1993." 74 He answered interrogatory 259 as follows: "Yes. The document(s) speak for themselves." 75 The defendants press for further answers, in the case of interrogatory 258 specifying how and to what address the document was sent, and in the case of interrogatory 259, specifying how, when and to what address the document was sent. The purpose of these interrogatories can also be ascertained from the particulars provided by the defendants. The defendants assert, and will hope to establish, that between May and September 1993 the plaintiff and EO secretly maintained a relationship by correspondence and telephone and that, to achieve this purpose, the plaintiff opened a post office box to enable EO to receive letters without her parents' knowledge. 76 However, in a preceding interrogatory the plaintiff had explicitly stated that he had taken a post office box and provided EO with a key and said that this was because of the failure of some correspondence to be delivered. In those circumstances I am of the view that interrogatories 258 and 259 are in that category, which, although perhaps relevant, are superfluous and should yield because of the length of those the plaintiff has been or will be required to answer. I will not direct the plaintiff to answer these interrogatories.

interrogatory 260 77 In this interrogatory the plaintiff is again asked to look at a document annexed to the notice and state whether it was a photocopy of a document he had sent to EO, and if so, to describe the document and specify how, when and to what address he sent it. The plaintiff responded by saying he was unable to answer as one part of the photocopied document was the front of his 1993 business card and the second did not, to him, have any direct connection with the front of the business card. The defendants have requested a full answer to this interrogatory on the basis that one page was, they assert, a photocopy of the front of his business card and the second a photocopy of the back of his business card. 78 When regard is had to the photocopy, it is difficult to escape the conclusion that the plaintiff, in his answer, is disingenuous. One part of the document is plainly a photocopy of a business card bearing the plaintiff's name, address and profession. The second page, again clearly a photocopy, contains a message which, if it is in the plaintiff's handwriting, would readily identify itself for him. In my opinion the plaintiff can, without any difficulty, expense or time wasting, answer interrogatory 260. I will direct him to answer that interrogatory.

interrogatory 261 79 Interrogatory 261 is yet another interrogatory requesting the plaintiff to look at and identify a document, and to say whether it was a photocopy of a document he had sent to EO, and, if so, to describe the document and specify how, when and to what address he had sent it. The plaintiff merely answered "yes". The defendants seek answers to the remaining parts of the interrogatory. 80 The document appears to be a photocopy of an article from a newspaper. Authorship is attributed to Beatrice Faust and the article is headed: "Sex and the Age Gap - Why Oldies can be Goldies".

There are many handwritten notations on the article. I am of the view that the answer given is adequate. It does not seem to me necessary to ask the plaintiff to describe the document or to specify how, when and to what address he sent it. I am not pursuaded that these matters advance the case in any respect.

interrogatory 264 81 Again, interrogatory 264 required the plaintiff to identify a document a copy of which is annexed and asks the details which are now familiar. The plaintiff replied: "Yes. The document speaks for itself and is dated 25 July 1993. Accordingly, sent in or about late July 1993." 82 The defendants persist in requesting the plaintiff to specify how and to what address the document was sent. For reasons similar to those given in relation to earlier interrogatories, I decline to direct any further response to this interrogatory.

interrogatory 288 83 Interrogatory 288(a) and (b) are in the following terms: "(a) in about 1994 you were charged with a number of offence (sic); (b) some or all of the charges referred in interrogatory (a) involved allegations that you had sexual intercourse with [EL] (sic)." 84 The plaintiff objected to answering these two parts of the interrogatory on the ground that they were irrelevant, vexatious, embarrassing and no more than a fishing expedition. 85 These matters are plainly relevant to the issues. They cannot create any difficulties for the plaintiff to answer. He must be able to answer them from his own personal knowledge and without recourse to any documentation or records. I will direct the plaintiff to answer interrogatories 288(a) and (b). 86 Part (e) of interrogatory 288 asked the plaintiff if his defence to the charges referred to in interrogatory (a) was that his first sexual intercourse with EL had been a few days after she turned 16. The plaintiff answered this by saying that an answer had already been given in response to interrogatory 207. 87 Recourse to interrogatory 207 makes it quite plain that the plaintiff has given no answer concerning any defence he raised to any criminal charge against him. I will direct the plaintiff to answer interrogatory 288(e).

interrogatory 290(c) and (d) 88 Interrogatory 290 is directed to the plaintiff's claim for damages in that his reputation had been damaged as a result of the broadcast. In interrogatory 290(c) the plaintiff was asked if any person who claimed to have heard the broadcast had said or done anything which injured his feelings and in interrogatory 290(d) the plaintiff was asked to expand upon his answer in (c), if it were in the affirmative. 89 The plaintiff answered interrogatories 290(a) and (b) in the affirmative; interrogatories 290 (c) and (d) were asked contingently, against the event that the plaintiff had answered those interrogatories in the affirmative. In an extraordinary answer to interrogatory 290(c) the plaintiff said: "(a) and (b) not answered in the affirmative." 90 This is plainly wrong. If the plaintiff wishes to rely upon injury to feelings it will be necessary for him to answer this interrogatory. I will direct the plaintiff to answer interrogatories 290(c) and (d).

interrogatory 291(a) and (b) 91 In interrogatory 291(a) the plaintiff was asked if he or anyone acting on his instructions had requested a retraction, correction or apology. The plaintiff replied that he believed so. In interrogatory 291(b) the plaintiff was asked (in the event that he affirmatively answered 291(a)) to give further details of those requests. The plaintiff replied, in another puzzling response: "After instructions were issued by the Plaintiff, such knowledge is not a matter for the Plaintiff to possess and is obviously matters to which the Defendants, as the recipients of such requests, would or should be aware." 92 I do not think it is necessary for the defendants to ascertain this information from the plaintiff. If any request for correction or retraction had been made by or on behalf of the plaintiff, the defendants would be in a position to advise their legal representatives of that fact. I will not require the plaintiff to give any further answer to this interrogatory. 93 The orders I make are:

I direct the plaintiff to provide further and better answers to interrogatories 14(b); 18 - 21 inclusive; 22; 26; 28 - 34 inclusive; 67(c); 79(c)(viii); 94, 95, 96; 102(b); 107(d); 153(b); 154; 200; 207(b)(ii); 207(b)(iv); 213; 214(d)(ii); 217(c); 224; 234(b); 254(b); 247; 256(c); 260; 269(c); 272(a)(ii); 275; 288(a) and (b); 288(e); 290(c) and (d). **********

Last Modified: 07/23/2002 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.

CITATION : Bryson v Casey & Anor [2002] NSWSC 636 FILE NUMBER(S) : SC 20780/95 HEARING DATE(S) : 8 July 2002 JUDGMENT DATE : 19 July 2002

COUNSEL : CD Wood - Plaintiff RG McHugh - Defendants SOLICITORS : Uther Webster and Evans - Plaintiff Corrs Chambers Westgarth - Defendants CATCHWORDS : defamation - interrogatories exceeding 30 in number - proof of factual matters - selectivity and discipline in the process of interrogation LEGISLATION CITED : Defamation Act 1974 Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587; unreported, 13 July 2001 NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 CASES CITED : NSW Bar Association v Somosi [2001] NSWCA 285; unreported, 31 August 2001 NSW Bar Association v Murphy [2002] NSWCA 138, unreported 28 June 2002 NSW Bar Association v Cameron [2002] NSWSC 191, unreported, 20 March 2002 DECISION : Refer paragraph 93.

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