Creak v Channel Seven Sydney Pty Ltd

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Mr Ian Creak and a company against the proprietor of Channel Seven arising out of a segment broadcast on the now-defunct current affairs television programme, Today Tonight.
2. The proceedings are before the Court today for determination of the question whether any further interlocutory step should be allowed, as contemplated by clause 16 of the Defamation List Practice Note SC CL 4. The proceedings were commenced before the promulgation of that Practice Note but, by its terms, it applies to all existing proceedings for defamation.
3. The parties have engaged in discussions with a view to narrowing the issues to be determined today, for which the Court is grateful. A small number of issues remain to be determined following argument this morning.
4. Broadly, the subject matter of the broadcast was an allegation that the first plaintiff, a car-dealer, had been involved in tampering with the odometers of cars sold by his dealership so as to display a falsely reduced mileage.
5. The first objection relates to categories proposed by the defendant for discovery by the plaintiffs. Category 5 is: Documents evidencing the claim in the Consumer Claims and Tenancies Tribunal which is the subject of paragraph 17.9(c) of the Third Further Amended Statement of Claim including the pleadings, inter party correspondence, any evidence, any judgments and/or deeds and/or documents evidencing a settlement of those proceedings.
6. The paragraph of the statement of claim referred to pleads, as a particular of malice, the fact that the defendant failed to publish a fact known to it, namely, that the vendor of a Porsche (dealt with in the matter complained of) had brought a claim against the plaintiffs. The proposition appears to be that the publisher ought to have known that the person in question had an axe to grind against the plaintiffs (and so should not have relied on the information he provided to the reporter).
7. Upon a fair reading of the pleadings, in my view the only issue raised by the relevant particular of malice is the existence of that fact, namely, whether the person had brought a claim against the plaintiffs and whether the defendant knew that fact. The further issue whether, upon analysis, the circumstances of that litigation reveal that the person in question in fact had an axe to grind against the plaintiffs is, in my view, a false issue. Accordingly, I would confine the category of discovery to that consented to by the plaintiffs, namely, the pleadings but no other documents in the proceedings.
8. The second dispute also relates to the categories for discovery proposed by the defendant for discovery by the plaintiffs. Category 16 seeks the following: Any documents evidencing complaints by customers of the first and/or second plaintiffs (including complaints directly to the first and/or second plaintiffs and/or to Fair Trading or any other regulatory body) relating to: 1. The mileage of vehicles held or owned at any time by the second plaintiff; 2. The quality of vehicles held or owned at any time by the second plaintiff; 3. The cost of vehicles held or owned at any time by the second plaintiff.
9. The defendant did not press a fourth category as part of that paragraph.
10. The documents are said to be relevant to the defences of justification and contextual truth.
11. The imputations relied upon by the plaintiff focus on particular instances of alleged dishonesty relating to particular vehicles but also include two imputations in general terms, one relating to misrepresentation as to the true odometer readings of cars sold by the first plaintiff and one in the following terms: The first plaintiff has conducted himself so dishonestly as a car dealer that it warrants the NSW Minister for Fair Trading to take immediate action to revoke his car licence so that he should never be able to sell another car in NSW.
12. There is also a contextual imputation specified by the defendant which is relevant to the present category, namely, The plaintiff falsely represents the mileage and quality of cars which he sells knowing that this will have a devastating financial effect on his customers.
13. Mr Dawson, who appears for the defendants, submitted that the category is necessary "to ensure that the plaintiff is not putting an artificial picture" in coming to Court with a claim for damages to vindicate his reputation against the general imputation set out above. The plaintiff has expressly pleaded that the imputation is false.
14. The proposed category raises a difficult question as to the appropriate balance to be struck between on the one hand the Court's duty to contain the scope of the proceedings in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and on the other hand the importance of the consideration contended for by Mr Dawson.
15. I have concluded that the plaintiffs should give discovery of documents evidencing complaints that fall within the first two categories, that is, relating to the mileage or quality of vehicles held or owned by the second plaintiff.
16. The more substantive dispute argued this morning relates to the proposed interrogatories. The plaintiff has in the third further amended statement of claim added to his causes of action for defamation a cause of action for misleading and deceptive conduct.
17. The allegation, broadly, is that the defendant engaged in misleading or deceptive conduct contrary to the Competition and Consumer Act 2010 (Cth) in that one of its journalists, Mr James Thomas, contacted the first plaintiff posing as a person interested in test-driving a particular Porsche Boxster.
18. It is contended that Mr Thomas attended the premises of the plaintiffs; that he represented that he had an interest in test-driving the Porsche on that date but could not drive because he had left his driver's license at a friend's house and that he required the first plaintiff to drive the Porsche to the friend's house to collect his licence.
19. As I apprehend the position, the matter complained of will reveal that what in fact occurred was that the first plaintiff was directed to a cul-de-sac where cameramen obtained footage of him driving the Porsche which footage was in due course used in the production of the matter complained of.
20. Interrogatories have been directed to the defendants relating to those issues (numbered 20 to 25 in the proposed interrogatories). The defendants object to answering those interrogatories.
21. The circumstances in which the Court should grant leave to a party to administer interrogatories are addressed in pt 22 of the Uniform Civil Procedure Rules 2005 (NSW). The particular circumstances of the Defamation List are also addressed in the Practice Note. The Practice Note expressly provides, consistently with r 22.1, that the Court will not order a party to answer interrogatories except where, after considering the draft proposed interrogatories, the Defamation List Judge forms the view that they are necessary for the resolution of the real issues in dispute in the proceedings.
22. The first occasion on which I considered the application of the Practice Note in the context of the rule was in Mooney v Nationwide News Pty Limited (No 2) [2014] NSWSC 1933. As noted in submissions in that case, the Practice Note does not pose a different or higher test than that posed by the rule. I was persuaded in that case to grant leave to a plaintiff to interrogate a defendant in terms of interrogatories that had long been approved in respect of particular defences in proceedings for defamation. In the judgment I referred to the careful analysis of the necessity of interrogatories by Simpson J, as her Honour then was, in Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587. It is helpful to repeat the relevant passages from her Honour's judgment at [14] to [16]: 1. "14 It may [be] 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. 2. 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 [armoury] of litigators. 3. 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."
23. Mr Smark SC, who appears with Mr Lewis for the plaintiffs, also drew my attention to the decision of Ward J, as her Honour then was, in Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 where her Honour provided a helpful summary of the relevant principles and considerations. Of particular relevance to the present application is the reference in that decision to authority for the proposition that the object of interrogatories is: "to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been."
24. One proposition that may clearly be drawn from those authorities is that where a fact in issue is the state of mind of an opponent, the utility and indeed necessity of interrogatories may more readily be inferred.
25. An issue raised by the plaintiffs' claim in misleading or deceptive conduct is Mr Thomas' state of mind at the time he attended the plaintiff's premises. The contention made by the pleading is that, whereas Mr Thomas represented that he was interested in test-driving a Porsche Boxster, and that he could not in fact drive the vehicle because he had left his licence at a friend's house, the true position was that he had no intention of test-driving the Porsche; had no intention of purchasing the Porsche; had not left his driver's licence at a friend's house and intended, rather, to conduct an involuntary interview with the first plaintiff whereupon questions would be put to him regarding allegations concerning meddling with odometers in cars for sale and that any response would be captured on camera for inclusion in the matter complained of.
26. I am persuaded that those interrogatories directed to Mr Thomas' state of mind are necessary in the sense in which that term is understood in the authorities summarised by Ward J in Cassegrain at [21] to [23].
27. Some of the interrogatories, however, are directed to matters which are admitted on the pleadings. Where a matter is admitted, there can be no necessity for an interrogatory relating to it.
28. My conclusions in respect of the interrogatories proposed in the present case are as follows. 1. Interrogatory 20 relates to a matter which is admitted in substance, since the defendants accept in respect of paragraph 21 that the admitted contact by Mr Thomas was made by him in the capacity of a servant or agent of the defendant. 2. Interrogatory 21 is unnecessary since communication between Mr Thomas and the plaintiff between the dates identified is admitted. 3. Interrogatory 22 is unnecessary because all of the matters expressly pleaded in the statement of claim are either admitted or denied. 4. Interrogatory 23 would be disallowed as a question in the proceedings and should not be allowed as an interrogatory, since it calls for a legal conclusion as to the capacity in which communications were made. 5. Interrogatory 24 is unnecessary because it is admitted on the pleadings.
29. The remaining interrogatory is interrogatory 25, as to which part (f) is admitted on the pleadings.
30. The remaining paragraphs are denied and relate either to the location of Mr Thomas's licence or to his state of mind. Those interrogatories in my view are necessary in the relevant sense and leave will be granted to administer them. My ruling is that the plaintiffs have leave to administrator interrogatory 5 without subparagraph (f).
31. I make orders 1 to 7 in the short minutes of order which I will place with the papers.