Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 | Case summary

"(f) that as Mayor of Marrickville he had deliberately so conducted himself in relation to the Council Civic Centre development as to give a financial benefit to an architect with whom he had a private business relationship." 6 The defendant has pleaded the defences of qualified privilege, both pursuant to s 22 of the Defamation Act 1974 and at common law, and contextual truth pursuant to s 16 of the Act. It is the s 22 defence that is of present relevance. Success in such a defence necessitates proof, inter alia, that the conduct of the publisher in publishing the matter complained of was reasonable in the circumstances. 7 The interrogatories administered number 55 of which almost all contain several parts. Notwithstanding the limitation imposed by SCR Part 24 rule 1 on the number of interrogatories that may be administered, no objection has been taken on that basis. This was a considered and proper decision on the part of the defendant. The ground of objection initially taken was, in each case, stated as: "[the interrogatory] is vexatious and oppressive and does not relate to any matter in issue between the parties." 8 During and after the hearing counsel for the defendant added, in relation to some interrogatories or parts of interrogatories, an objection based on the "newspaper rule". Specifically, it objects to answering any interrogatory where the answer would disclose its sources of information. 9 It was common ground that the challenged interrogatories were all intended to be directed to that aspect of the defence of statutory qualified privilege that requires the defendant to prove that its conduct in publishing the imputations was reasonable in the circumstances. The defendant's argument, in part, is that the interrogatories to which it objects, while perhaps intended to be directed to that issue, do not and cannot in fact be relevant thereto. 10 Before moving to the specific authorities on which the defendant relies, I would make the observation that the issue of the reasonableness of the conduct of the defendant in publishing the imputations is as wide an issue as can be imagined. Every aspect of the defendant's conduct, every aspect of the defendant's belief and knowledge, and every aspect of the surrounding circumstances is potentially relevant to that issue. Where the defendant is a company the knowledge and belief question is limited to the knowledge and belief of those employees who were involved in the decision to publish: Palmer v John Fairfax and Sons Ltd (1986) 5 NSWLR 727. A defendant who sets out to prove that his/her/its conduct in publishing is reasonable in the circumstances must expect to disclose all the information in his/her/its possession, and must expect scrutiny of his or her state of mind; where a company, it must expect scrutiny of the state of mind of its relevant employees. One means by which a plaintiff may force exposure of relevant factual matters is by the administration of interrogatories. Particularly where the issue involves the state of mind of the defendant or of individuals in the defendant's employ, interrogatories may well be the only avenue, prior to cross-examination (if a plaintiff is ever afforded the opportunity of cross-examining) of obtaining relevant information. 11 A good deal of controversy exists concerning the merits of interrogatories as a tool in the preparatory stages of litigation. Counsel for the defendant referred me, for example, to decisions of Miles CJ of the ACT in Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396 and Carnell v Spier, unreported, 3 June 1997; and one of Master Hogan, also of the ACT Supreme Court, in Packer v Australian Broadcasting Corporation, unreported, 31 March 1993. In each of these cases some general observations were made about the extent to which the use of interrogatories should, or should not, be encouraged or sanctioned by the court. 12 The administration of interrogatories in this court is governed by the provisions of SCR Part 24. By rule 1 (1), (subject to the succeeding rules and any direction of the court in a particular case) parties are entitled to interrogate one another. Although sub rule (1) prima facie limits to thirty the number of interrogatories that may be administered, no reliance was, as I have said, placed on that restriction. The administration of the interrogatories is not, therefore, dependent upon the leave of the court. However, where objection is taken to answering any particular interrogatory, the court may decline to direct that it be answered. By rule 3(1) the court is empowered to order that answers shall not be required or shall be limited to such interrogatories or classes of interrogatories or such of the matters in question in the proceedings as the court may specify. By sub rule (3) the court is required to make such orders: "as are necessary to prevent unnecessary interrogatories or unnecessary answers to interrogatories." 13 Useful guidance as to the manner in which the discretion will be exercised is to be found in the notes to the Rules in Ritchie's Supreme Court Procedure NSW. 14 It may of use if I state the approach to the administration of interrogatories which I consider to be appropriate. In my opinion interrogatories can serve a very useful purpose, sometimes a purpose which is not, at the hearing, visible. The questions asked or the answers given may alert the interrogated party to an issue, or may deter persistence of either party in a course that party might otherwise have taken. In these cases, the benefits of the process of interrogation might not be immediately apparent to anybody other than the parties or their legal representatives. It may not be apparent to the judge hearing the case. 15 Further, in some cases a single interrogatory might obviate the need to call one witness, or a number of witnesses, or to produce documentary or other material, in order to establish a particular relevant fact. In this way, considerable costs and inconvenience might be saved. For these reasons, and despite the contrary views expressed by some others, I am of the view that the odium in which the interrogative process is held in some quarters is not justified by the process itself. It may be that it is justified by the misuse or abuse of a valuable piece of equipment in the armory of litigators. 16 That I perceive considerable value in the availability of the process of interrogation is not to say that carte blanche should be given to parties wishing to interrogate, particularly where the volume of interrogatories is oppressive or potentially so. Nor is it to say that every interrogatory administered by one party to another will be required to be answered. To be useful, interrogatories must be properly directed to the issues identified after a proper process of pleading, and after full and proper particulars have been supplied. When this occurs interrogatories can do much to narrow the issues actually to be fought, and the scope of the evidence required to be adduced. But it is to be emphasised that this involves a sensible approach to the drafting of interrogatories. The drafter must have both eyes firmly fixed on the issues thrown up by the pleadings. To be useful, interrogatories must be specific to those issues. 17 It follows that interrogatories churned out of a word processor will not fall within that category: see the opening remarks of Miles CJ in Ryan. Nor will interrogatories drafted for the apparent purpose of putting the interrogated party to as much trouble as possible, nor interrogatories drafted as a substitute for a proper request for particulars: see Master Hogan in Packer. 18 With those basic principles in mind I turn to the argument more specifically directed to the current interrogatories. Counsel for the defendant invoked passages from two decisions of Hunt J (as he then was) directly relevant to the administration of interrogatories in defamation cases where a section 22 defence has been raised. I propose to quote from each judgment at some length. 19 In the first matter (Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727) Hunt J said: "The issue being the condition of the defendant's mind at the time of publication, the reasonableness of its conduct will depend to a large part upon whether that information in its possession provided a firm or logical basis for the imputations which were conveyed and upon whether the inferences which have been drawn from that information and published by the defendant were reasonably open from that information: Wright v Australian Broadcasting Commission [[1977] 1 NSWLR 697] (at 712). … At common law, both the amount of information obtained by the defendant at the time of publication and whether that information was of a kind upon which a person could reasonably be supposed to have acted bona fide to publish what was published are relevant to the honesty of the defendant's belief in the truth of that material: White & Co. v Credit Reform Association and Credit Index Limited [[1905] 1KB 653] (at 658, 660). … Obviously, therefore, the evidence which is admissible relating to the defendant's information is that which enables a proper comparison to be made between the information in the defendant's possession and the material which the defendant published in order to judge: (a) whether the defendant believed in the truth of what was published; and (b) whether the defendant acted reasonably either in forming that belief or in publishing that material with less than a belief in its truth." 20 In Howard v Nationwide Publishing Services Pty Ltd (unreported, 26 February 1987) his Honour was considering interrogatories that asked whether, at the time of publishing the matter complained of, the defendant believed or had the opinion (specifying which) that the plaintiff was the kind of person or had the condition specified in each of the imputations pleaded. Of these imputations Hunt J said: "But, before an answer to an interrogatory along the lines here administered would be ordered, a defendant would have to be asked whether any consideration had been given to the possibility that the matter complained of could be understood as conveying the particular imputations. Then, in the event of an affirmative answer or in a case where it was reasonably foreseeable that that imputation could be conveyed (and notwithstanding the denial that the defendant intended to convey the imputation upon which the plaintiff relies), a further question could be asked as to whether the defendant had any belief in its truth." 21 The reliance placed upon these decisions on behalf of the defendant was, it seems to me, based on a misconception of what Hunt J held. Firstly, I am satisfied that, particularly in the latter case (Howard, which appears to have been delivered ex tempore, probably in the course of conducting a busy defamation list), Hunt J was not purporting to pronounce statements of general principle. His Honour was focusing upon the case with which he was then dealing. 22 Contrary to the defendant's argument, Hunt J was not stating that the only issue to which interrogatories in a section 22 case may be directed is the state of the defendant's mind. That may have been the issue to which the interrogatories in those cases were directed, but it is far from the only issue relevant in a case in which s 22 is the focus. Nor is the scope of enquiry limited to the information that was in the possession of the defendant. For example, it is quite obvious that a failure to make proper enquiry, of the plaintiff or of others, is relevant or potentially relevant to the question of reasonableness. This is an objective matter not to be determined solely by "the condition of the defendant's mind at the time of publication". 23 Nor is a plaintiff bound by a defendant's answer as to what he/she/it intended to convey, and I do not believe that Hunt J intended to state such a proposition. Properly directed interrogatories are capable of eliciting information useful to the consideration of the intentions of the defendant. 24 In my opinion too much weight has been placed upon these decisions which were essentially concerned with the circumstances of the particular cases, and too much has been read into the observations made. Neither case is authority for the proposition attributed to it, and neither is of real assistance in determining the issues in the present case. 25 A further submission made on behalf of the defendant, again on the authority of Palmer and Howard, is that an appropriate (and the only appropriate) interrogatory to ask in relation to a s 22 defence is an interrogatory which requires disclosure of all of the information in the possession of the defendant at the time of publication. Counsel referred to this as being the interrogatory approved in Palmer. He acknowledged that such an interrogatory would be unobjectionable, and further, would require, effectively, discovery of all such information. 26 Lying behind this argument is an assumption that a tried and tested interrogatory becomes, not only the norm, but the prescription. It may be that this assumption is based upon the following passage from Howard: "When a party strays from the normal, well accepted form of interrogatory he usually has to justify the departure, insofar as by that departure the interrogatory seeks information beyond that sought by an interrogatory in the normal form." 27 I do not accept the proposition that interrogatories are fossils, set in amber. Indeed, such a proposition runs counter to the view I have earlier expressed, that the value of interrogatories lies in their individuality, and their being directed to the issues in the individual case in which they are administered. 28 I am prepared to accept that an interrogatory in the form proposed on behalf of the defendant would be an acceptable interrogatory, but I am not prepared to accept the second step proposed, that the plaintiff is bound to administer an interrogatory in that form. 29 In the present case the interrogatories administered by the plaintiff will, if answered, in large part elicit that same information; but, if the plaintiff wishes to interrogate by discrete, specific questions, there is no reason in principle why he should not do so. Further, in the light of the defendant's concession about the breadth of the information it would be obliged to produce in response to its preferred interrogatory, I am unable to see how the present interrogatories impose any additional burden upon it. The burden which the defendant bears is a result of its election to defend its publication by asserting reasonableness. The plaintiff is entitled to interrogate fully on that issue. 30 The prima facie limitation on the number of interrogatories that may be administered represents an appropriate balance between the benefits potentially to be derived from the administration of interrogatories, and oppression of the party administered. It may be arbitrary, although it is subject to variation in the discretion of the court; more importantly, it is designed to impose a discipline upon the interrogating party which should focus the attention of that party's legal representatives upon those matters which really do need to be elucidated by the administration of interrogatories. 31 No separate argument concerning oppression having been directed to any individual interrogatory, I reject the defendant's objection on the ground that the interrogatories are vexatious or oppressive. 32 The defendant took objection to certain parts of certain interrogatories based upon the "newspaper rule": see John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346. 33 In written submissions provided after the oral argument in this matter counsel for the defendant outlined the basis of the objection and made the observation: "In any event, it is not understood that the plaintiff (in principle) objects to the defendant's reliance on the rule in this application." 34 These submissions were received on 19 June. As at the date this judgment is dictated (22 June) and finalised (12 July), no issue with this statement has been taken on behalf of the plaintiff. (I make the assumption that a copy of the submissions was served on the plaintiff.) 35 It may be that the defendant's reliance on the newspaper rule will have some implications for its future reliance upon the defence, but that is not presently material. I propose to order the defendant to answer all interrogatories, with the rider that it be excused (at least at this stage) from giving any answer to the extent that the answer might identify the source of its information. 36 In the circumstances it seems to me appropriate that the defendant pay the whole of the plaintiff's costs of this application. In this respect I observe that the only aspect of the matter in which the defendant was successful (the newspaper rule argument) was raised only at the hearing and not previously, and has resulted in an apparent concession by the plaintiff. **********

Cotter v John Fairfax Publications Pty Ltd

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