HER HONOUR: Before the Court are two proceedings for defamation arising out of the publication of common allegedly defamatory matter. In the Haddad proceedings, there are four plaintiffs. In the Cheikho proceedings, there is a single plaintiff. This judgment determines all five plaintiffs' applications for orders requiring the defendant to answer interrogatories.
In the Cheikho proceedings, interrogatories were administered by the plaintiff on 25 July 2014. On 5 September 2014, the Chief Justice published Practice Note SC CL 4. The plaintiffs in the Haddad proceedings had not yet administered interrogatories by that date. Their separate interrogatories were administered on 20 October 2014.
The defendant having objected to answering a number of interrogatories in each proceeding, the matter came before me for argument last week. In accordance with the terms of the Practice Note, notwithstanding that history, the issue of any further interlocutory steps in both matters falls to be determined in accordance with the Practice Note.
The first occasion on which I had to consider a contested application for an order requiring a party to answer interrogatories under the Practice Note arose in the matter of Mooney v Nationwide News Pty Limited (No 2) [2014] NSWSC 1933. In that judgment, I noted the submission of Mr Richardson of counsel that r 22(b)(i) of the Uniform Civil Procedure Rules 2005 (NSW) has always posed, for an order to answer specified interrogatories, the test of necessity. I accepted, as submitted by Mr Richardson, that that is the test adopted in the Practice Note. It is nonetheless plain that the Practice Note was intended to communicate to practitioners the Court's increased focus on that question in the context of a concern, in defamation matters in particular, as to a longstanding practice of administering standard interrogatories without practitioners turning their minds to the circumstances of individual cases and the respective necessity and proportionality of the task demanded by such interrogatories in any individual case.
In my judgment in Mooney, I cited with approval the remarks of Simpson J in Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 428 in which her Honour helpfully explained the way in which the administration of interrogatories can, in individual cases, serve the purpose of shortening the proceedings or focusing the mind of practitioners on the strength or weakness of a defence. That is particularly so in the case of the defence of qualified privilege which, as I observed in my judgment in Mooney, is frequently pleaded by media defendants and subsequently abandoned. It is difficult to discern why that is the case but it is a vice which may be addressed in an appropriate case by carefully focussed interrogatories. In those circumstances, in Mooney, under the regime of the new Practice Note, I ordered the defendant to answer interrogatories of the traditional kind which might conveniently be referred to as consideration interrogatories and information interrogatories, in each instance going to the defence of qualified privilege.
In the present case, as in Mooney, a defence of qualified privilege is pleaded. The defence is particularised as invoking both the common law and s 30 of the Defamation Act 2005 (NSW). A number of the disputed interrogatories in the present case go to that defence but are different from the form of interrogatories I ordered to be answered in the particular circumstances of Mooney. A number of the interrogatories reflect interrogatories approved by Nicholas J in the matter of Clout v Jones [2011] NSWSC 1430. That, of course, was a decision published before the publication of the Practice Note. I have determined the present application having regard to the renewed or increased focus on concerns about proportionality which, as I have endeavoured to explain, I considered to be the emphasis of the relevant part of the Practice Note.
The first interrogatory objected to by the defendant is one which appears to have been asked only in the Haddad proceedings, interrogatories 3 and 21 as follows:
"At the time of publication of the matter complained of did you have any information about the person shown in the photo included in the matter complained of? If so, state that information."
Objection was taken to this interrogatory in light of the fact that the defendants have answered interrogatories 8 and 26, which are in the form of the usual consideration and information interrogatories. In both circumstances, it was submitted that the additional kind of question contained in interrogatories 3 and 21 was not necessary for the resolution of the real issues in dispute in the proceedings. In my view, the defendant's position as to those interrogatories is correct. The real issue is what was brought to the mind of the defendant at the time of publication of the matter complained of with specific reference to the defamatory imputations. I do not think the additional information sought in interrogatories 3 and 21 is necessary for resolution of the real issues in the dispute.
For the balance of the objections, it is convenient to determine the application by reference to the interrogatories administered in the Cheikho proceedings. It was common ground at the hearing of the application that the determination of those objections would govern the cognate objection in the Haddad proceedings.
The next category of objection is to interrogatories 11, 25, 39 and 53 in the Cheikho proceedings as follows:
"Did the defendant by publishing the matter complained of intend to damage the reputation of the plaintiff?"
In the decision of Nicholas J in Clout, his Honour allowed an interrogatory in those terms, noting that they relate to the issue of honest belief and reasonableness: see Clout v Jones [2011] NSWSC 1430 at [19] to [21]. His Honour noted at [13] of judgment:
It is indisputable that a plaintiff is entitled to interrogate the defendant as to the state of knowledge and information which it had in its possession in relation to the matter complained of at the time of its publication. Under s 30(3) relevant issues on which the plaintiff may interrogate include whether the defendant believed in the truth of what was published, and whether the defendant acted reasonably in forming that belief or in publishing that material with less than a belief in its truth (Palmer at 729-30; Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 at 388).
Ms Barnett, who appears for the defendant, noted however that in these proceedings no reply has been filed and, specifically, there is no contention of improper purpose in publication of the matter complained of. She submitted that, notwithstanding the remarks of Nicholas J in Clout, the interrogatory could really be seen as going rather to the issue of impropriety of purpose. Mr Molomby, who argued this application for the plaintiff, responded that the answer could be useful depending on the content of the answer and, in particular, that it could possibly destroy the allegation of reasonableness made by the newspaper.
It seems to me that, applying the approach commended by the Practice Note, whilst the answer to the question might be relevant and admissible in the proceedings, it is not the kind of question that ought to be, as a matter of course, allowed as an interrogatory. In my view, the defendant should not be required to answer it.
The next category of interrogatories relate to a similar question. Interrogatories 12, 26, 40 and 54 in the Cheikho proceedings are as follows:
"Did the defendant before publishing the matter complained of consider that such publication could damage the reputation of the plaintiff. If so, what consideration did the defendant give to that question and with what result?"
That is also an interrogatory approved in the same passage in Clout at [19] to [21]. For the same reason, I would not order the defendant to answer that interrogatory.
The next category of interrogatories objected to are interrogatories 13, 27, 41 and 55 in the Cheikho proceedings. It is necessary here also to mention the Haddad proceedings where interrogatories 17 and 35 are in the same terms. A distinction arises in this instance because the interrogatory was said to relate to a particular of aggravation, namely, failure to apologise despite a letter sent by the plaintiff. However, that is a particular of aggravated damages only in the Haddad proceedings. There is no similar particular in the Cheikho proceedings.
Leaving aside that distinction, the interrogatory is in the following terms:
"Does the defendant now believe that any statement made in the matter complained of is false. If so, identify each such statement and state in relation to each when the defendant came to believe it is false and on what information the defendant based the belief that it is false?"
An interrogatory in those terms was approved by Nicholas J in Clout at [25] to [26]. His Honour said no more than to note that the interrogatory was relevant to the claim that the defendant's conduct, in failing to apologise, justified an award of aggravated damages. That the answer to the interrogatory would potentially be relevant to that issue may be accepted. Mr Molomby drew my attention to the decision of Nicholas J in Haertsch v Channel 9 Pty Limited [2010] NSWSC 182 in that respect. In that case his Honour rejected a claim of aggravated damages on the strength of failure to apologise on the ground that the plaintiff had not established that the failure to apologise was improper or unjustifiable in accordance with the principles stated in Triggell v Pheeney [1951] HCA 23; 82 CLR 497.
An issue was raised at the hearing of the application before me as to the appropriateness of interrogating in order to learn a matter subsequently to be relied upon in aggravation of damages. In that context, Ms Barnett relied upon the decision of Clark v Ainsworth [1996] NSWSC 610; 40 NSWLR 463. It is not necessary, in my view, for present purposes, to determine or state with any completeness the principles according to which the issue would be determined at trial. Even if it may be said that the answer to the interrogatory could be admissible at the trial, I do not regard this as an interrogatory which is necessary for the determination of the real issues in dispute, as it is one which would require extensive consideration, undoubtedly at considerable cost to a corporate defendant. I do not think I ought order it be answered.
The next category of interrogatories, interrogatories 4, 28, 42 and 56, is as follows:
"Did the defendant receive any comments from persons apparently readers of the matter complained of? If so, state how many such comments the defendant received, when the defendant received such comment, the name of the person who made each such comment, the substance of each such comment."
As noted by Mr Molomby, an interrogatory in these terms was evidently approved by Nicholas J in Clout, at [27], there referred to by his Honour as a reaction interrogatory. His Honour, in approving that interrogatory, cited my decision in Kermode v Fairfax Media Publications Pty Limited (No 2) [2011] NSWSC 646, where I ordered that those interrogatories be answered.
Once again, the burden of the submission relating to that interrogatory is that it relates to a matter in issue. As I hope will be clear from this judgment, that is not an adequate basis for ordering an interrogatory, the test being the test of necessity. That test carries with it the requirement that the Court consider the issue in the context of the principle of proportionality. Notwithstanding what I said in Kermode and its approval in Clout, I do not consider that question to be necessary for the resolution of the real issues in dispute. I do not propose to order the defendant to answer it.
The next category objected to, interrogatories 20 and 34 in the Cheikho proceedings as follows:
"Did the defendant at the time of publication of the matter complained of consider whether any of those who read it might understand it to mean of the plaintiff that [each imputation]?"
That is a consideration interrogatory of the kind I approved in Mooney. The principal objection to it, apart from a bland assertion that it was vexatious, offensive and not relevant to any matter in the proceedings, was a discrete complaint made in the Haddad proceedings that it was ambiguous. I do not accept that the interrogatory is ambiguous. It seems to me to pose a clear question as to whether the defendant considered a particular matter and it is susceptible of a yes/no answer. I would note, however, that the defendant offered to answer an interrogatory in different terms which would, in fact, provide the plaintiff with more information than seems to be sought in the present form of the interrogatory, and that the further information volunteered in the correspondence would equally fall within the usual ambit of a consideration interrogatory. For that reason, I consider that the defendant should answer the interrogatory in the form it indicated it was prepared to answer.
The final category of the objection interrogatories 21 and 35 in the Cheikho proceedings is as follows:
"Did the defendant at the time of publication of the matter complained of believe that any of those who read it might understand it to mean of the plaintiff that [each imputation]?"
Again, the objection was that the interrogatory is ambiguous. I do not agree. Further, it is within the ambit of the kind of imputation approved in Mooney, and accordingly, the defendant should answer those interrogatories.
In each proceeding, the defendant is directed to answer interrogatories in accordance with these reasons.
[2]
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.
Decision last updated: 10 March 2015