Crespin v Channel Seven Sydney Pty Ltd

The relevant rules and legal principles

1. Rule 22.1 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides: "Interrogatories 22.1 (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. (3) In the case of proceedings on: (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. (5) An order to answer interrogatories: (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."
2. The use of interrogatories in defamation proceedings differs from the course taken in most other civil proceedings. Interrogatories have an important role to play in establishing (for a plaintiff) a wide range of issues including circulation and readership, inquiries prior to publication, and admissions relating to the defences. Imputations are similarly of assistance to defendants in seeking admissions, particularly where a defence of justification has been pleaded, which support the defendant's case. In Bryson v Casey [2002] NSWSC 636 at [19] Simpson J, commenting on this use of interrogatories by a defendant, stated: "[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."
3. By reason of the importance of interrogatories in defamation proceedings, the restriction of interrogatories to a number less than 30 has never applied: Lewis v Page (Supreme Court of New South Wales, Hunt J, 15 December 1989). However, the new test of necessity in r 22.1 and changing case management views resulted in the placing of restrictions on the use of interrogatories in Practice Note SCCL 4 in the Supreme Court. In Wood v Nationwide News Pty Ltd (No 2) [2014] NSWSC 1944 McCallum J explained the restrictions on interrogatories imposed by the Practice Note in the Supreme Court as follows: "[4] ... The test posed by the Practice Note is that the Court will not order any 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. That formulation in the Practice Note was not intended to supplant the test stated in r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW), which states that an order that a party answer specified interrogatories is not to be made unless the Court is satisfied that the order is necessary at the time it is made. Rather, the object of the Practice Note was to focus the attention of the parties, by the sanction of having their interrogatories first considered by the Defamation List Judge, on narrowing the scope of interlocutory processes in an appropriate way."
4. Civil Practice Note 6 of the District Court mirrors many of the provisions in the Supreme Court, but not this provision. However, that omission is not intended to supplant or derogate from the test stated in r 22.1 Uniform Civil Procedure Rules 2005 (NSW). This is intended to reflect the greater use of this court for non-media publications and by litigants in person, particularly where those litigants in person are defendants, forced to act for themselves due to the absence or unavailability of insurance. However, the same test applies, and there is simply more flexibility given to the parties in determination of the relevant issues.
5. In conclusion, the test of necessity in r 22.1 cannot be satisfied merely by the fact that the imputations are relevant (Wood v Nationwide News Pty Ltd (No 2) at [6]) or by a claim that a party will be deprived of the opportunity to prove a case if the interrogatories are refused (at [7]). Additionally, when considering issues relevant to interrogatories, there is some authority to the effect that the issue of proportionality should be taken into account: Daniels v State of New South Wales (No 5) [2015] NSWSC 1164 at [2]-[6] (see also Bateman v Fairfax Media Publications Pty Ltd (No 6) [2015] NSWSC 890 at [2] and [9]), although this concept is probably already contained in the concept of necessity.
6. Where objections are made to the answering of interrogatories which are of a similar nature in terms of the information sought, the general approach by courts is to deal with the imputations in groups (see for example, Wood v Nationwide News Pty Ltd (No 2) at [9]-[12]). That is the approach the parties have taken here and, while I have dealt with each interrogatory individually in the course of argument, I propose to summarise my findings in the same fashion as that adopted by McCallum J in Wood v Nationwide News Pty Ltd (No 2). In particular, since many of the interrogatories to the second plaintiff mirror those for which answers were sought from the first plaintiff, I have made rulings in relation to the interrogatories administered to the first plaintiff which will apply to the interrogatories sought to be administered to the second plaintiff.

The basis of the objections

1. The plaintiff's solicitors in their letter of 5 August 2015 objected to answering interrogatories on the basis that they were "not relevant to any issue" and "not necessary" without further explanation. Although Mr Rasmussen supplemented these terse answers with additional written submissions, it is not a helpful way for parties to deal with objections to interrogatories.
2. Many of the plaintiffs' objections to answer on the basis of necessity fell away when the particulars of justification and certain of the discovery documents (notably the contract for sale), the categories of documents for discovery and the documents produced as a result were examined. In particular, claims of legal professional privilege in relation to preparation of a contract fell away when it became clear that the contract for sale did not include any indication that this document had been prepared by a solicitor (nor did any name for a solicitor appear), and the whole of the relevant files in relation to the notice to complete and notice to quit had been provided, a procedure indicating there had been waiver of any such claim.
3. Additionally, many of the objections were inconsistent and confusing: 1. As the list above shows, the plaintiffs conceded that they would answer certain interrogatories (for example, interrogatory 15 to the first plaintiff about whether the first plaintiff made an instalment payment) but objections were then made to the subsequent interrogatory commencing "If the answer to interrogatory is yes". In the case of interrogatory 15, that inquires as to when the payment was made and asks for documents recording it. This robs the interrogatory of much of its ability to "facilitate proof of the interrogating party's case" (Bryson v Casey at [9]). 2. Similarly, the plaintiff is prepared to answer parts of the interrogatories (for example, interrogatory 17 to the first plaintiff about whether it was true that the first plaintiff had sufficient funds to complete the purchase) but not those parts requiring the information upon which that concession is made, or to attach or identify the documents containing that information. This similarly robs the interrogatory of its forensic value. Similarly, in relation to interrogatory 6, the plaintiffs were prepared to answer a question about what they said or wrote to Ms Zerkel but were not prepared to set out what she said or wrote in reply, which would have required the preparation of redacted emails and laborious reconstructions of parts of a series of conversations. 3. The decision whether to answer the interrogatory or not appears entirely arbitrary in some cases. For example, the first plaintiff is prepared to answer certain questions about the Notice to Complete but not the Notice to Quit. 4. The plaintiff's objections to the request, in certain interrogatories (for example, interrogatories 2(b)((iii), 2(c)(iii)(B), 6(e), 16(b), 17(c), 20(d) and 24(c) to the first plaintiff), for the documents recording or evidencing certain events or payments to be attached were well-founded. The defendant is entitled to ask the plaintiffs to identify the relevant documents produced on discovery by discovery number, and not to use interrogatories as a means of obtaining further discovery. Additionally, the production of so many documents as part of the interrogation process may be oppressive.

The interrogatories the plaintiff need not answer

1. Mr Rasmussen objected to answering interrogatories 2(b)(iii) and 2(c)(iii)(B) on three bases: 1. Necessity; 2. An attempt to obtain discovery in addition to the categories of discovered documents; and 3. Legal professional privilege.
2. Mr Jedrzejczyk tendered the contracts signed by the parties on 23 and 28 February 2011. No name or address is given for a solicitor and the requirement for all money under the contract to be paid to "a duly qualified legal practitioner or licensed real estate agent" in clause 4(b) has been crossed out. A reference to the "vendor's legal practitioner" should have been crossed out in clause 13.1, in accordance with the instructions set out underneath clause 13.2, but it is not in dispute that at all relevant times the vendor, Ms Zerkel, never had a legal practitioner acting on her behalf on the sale of the property. The signatures are not witnessed by a member of the legal profession. In the absence of there being some evidence of a legal practitioner having drafted this document, it is hard to see how a claim for legal professional privilege could be maintained. Any assistance that the plaintiff received in relation to the preparation of the contract would be a matter not covered by legal professional privilege.
3. While I am satisfied that the plaintiffs in those circumstances must answer questions about what part of the contract they prepared, or instructed some other person to prepare on their behalf, I am not satisfied that the plaintiffs should be obliged to provide copies of "any drafts of the contract". If the plaintiffs prepared a series of drafts, or obtained a pro forma contract for sale and copied extracts from it, the necessity for examining that process by reference to these earlier drafts (assuming they exist) would not be relevant to any question in issue, let alone necessary for the disposition of issues in the case.
4. However, I am satisfied that the plaintiffs should answer interrogatories as to whether they obtained legal advice in relation to the purchase of the property (interrogatory 3), when they obtained that advice (interrogatory 4(a)) and from whom (interrogatory 4(b)). Independent of any question of wavier, that information would not be covered by legal professional privilege.
5. Interrogatory 9 required the first plaintiff to state whether he believed, when he signed the contract, that its terms were legally binding upon him. Mr Rasmussen submitted that this was a cross-examining interrogatory. However, one of the acknowledged objects of interrogatories is to diminish the burden of proof and it is thus not an objection to assert that the same information may be given in cross-examination: Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 at [20]-[36], cited in Howes v ACP Magazines Ltd [2013] NSWSC 1836 at [5] by McCallum J. I note, however, that in Bendigo and Adelaide Bank Ltd v Crown Melbourne Ltd [2012] VSC 493 at [68] Mukhtar AsJ took a contrary view. Whether or not the interrogatory is cross-examining informal content, it fails the necessity test as an answer is not necessary to the deposal of the issues, as well as amounting to a fishing expedition.

Redrafted interrogatories

1. Interrogatories 23 and 24 provide: "23. Did you enter into any agreement or settlement with the National Australia Bank in respect of: (a) purchasing the Property; (b) discharging the mortgage over the Property; (c) assuming the mortgagor's obligation to make repayments under the mortgage; and/or (d) remaining in possession of the Property? 24. If the answer to interrogatory 23 is in the affirmative, then: (a) What were the terms of that agreement? (b) When did you make that agreement? (c) Attach to your answer to this interrogatory a copy of any document recording or evidencing the terms of that agreement."
2. In the course of argument it transpired that these questions were directed at the basis upon which the plaintiffs had continued to reside in the premises following service of the notice to complete and/or notice to quit. I have accordingly granted leave to the defendants to administer interrogatories identifying these issues with more precision than the currently drafted interrogatories.
3. Additionally, as is set out in my orders, I have indicated that answers to certain interrogatories (interrogatories 6(e), 16(b), 17(c) and 20(d)) may be answered by reference to the relevant discovered documents, rather than producing and attaching them.

The interrogatories the first plaintiff is directed to answer

1. These are as set out in order 1 of the orders set out below.
2. In considering each of these interrogatories, I have had the benefit of reading the defendants' particulars, which meticulously set out the basis upon which a defence of justification is pleaded to each of the imputations. I have read the categories of discovery, and understand the approach to proof that the defendants intend to take at the trial. In particular, I have had the advantage of reading the contract one or both of the plaintiffs appear to have prepared (either in part or in whole) as well as signed, the terms of which are the subject of many of these interrogatories.
3. For the reasons stated in the course of argument, I am satisfied that each of the interrogatories which I have directed the first plaintiff to answer is one which is "skilfully administered and likely to achieve proof of matters which may otherwise take a number of witnesses and a great deal of time for the defendants to prove in the present case" (Wood v Nationwide News Pty Ltd (No 2) at [9]).

The interrogatories administered to the second plaintiff

1. The interrogatories the defendants seek to administer to the second plaintiff are identical to those proposed for the first plaintiff in most respects. Orders have been made conformably with my rulings in relation to the interrogatories proposed to be administered to the first plaintiff.

Costs

1. These proceedings were listed for argument on 13 August 2015. The argument did not proceed on that day because the defendants' submissions were both late and unhelpful, in circumstances where, as a result, neither the court not counsel for the plaintiffs were in a position to deal with arguments of an unknown nature, in circumstances where the time to be spent on these issues was agreed to be several hours in any event.
2. Counsel for the defendants redrafted his submissions, and counsel for the plaintiffs provided submissions in reply which included a number of concessions. Nevertheless, the defendants were successful on nearly all issues in relation to both the application in relation to the plaintiffs' interrogatories to the defendants (heard on 10 September 2015) and in this application today.
3. Ordinarily, where a defendant has enjoyed success to the extent enjoyed by the defendants in these proceedings in two such applications, costs would follow the event. The question is what adjustment, if any, should be made for the loss of the 13 August hearing date.
4. Given the unsatisfactory nature of the defendants' submissions on 13 August 2015, the matter could not proceed and Mr Rasmussen submits that an order for indemnity costs should be made for that day in his client's favour. This would so outweigh any application for costs in relation to the argument on 10 September 2015 and today that the fair result would be that each party should pay their own costs. Mr Rasmussen also noted that after the defendants' submissions were totally redrafted, he had made a number of concessions, both before and during the argument today, as a result.
5. Mr Jedrzejczyk submitted that the overwhelming success he had enjoyed in both applications warranted costs orders in his clients' favour. That should not require adjustment other than in some very minor form in relation to the unreadiness to proceed on 13 August 2015.
6. Civil Practice Note 6 requires parties to provide the court with an outline of submissions and a list of authorities in sufficient time for the issues to be known to all parties. The Defamation List is a busy list and time is at a premium. Legal representatives cannot take for granted that their opponents, or the court, can deal with applications "on the run", particularly where applications can be time consuming (as is generally the case with arguments about interrogatories) and require careful analysis of the factual background as well as legal issues. Parties who do not comply with Civil Practice Note 6 should expect that a failure to do so will result in an adverse costs order being made.
7. However, the adverse costs order should not be out of proportion with the degree of success of the application, and for this reason, the order I propose to make is that the costs of these applications (13 August 2015 and 10 September 2015) be the defendants' costs in the cause.

Orders 1. The first plaintiff is directed to answer interrogatories 1, 2(b)(i), 2(b)(ii), 2(c)(i), 2(c)(ii), 2(c)(iii) (excluding 2(c)(iii)(B)), 3, 4, 6(d) to 6(e) (noting that reference to "documents" in 6(e) will be satisfied by reference to the relevant discovery number), 10, 11, 12, 13, 15, 16 (noting the answer to 16(b) is to be made by reference to the documents produced on discovery and that this will constitute a sufficient answer), 17(b) and 17(c) (provided that the answer to 17(c) will be satisfied by reference to the relevant discovered documents), 18(b), 18(d), 18(e), 19, 20(c), 20(d) (satisfied by reference to the relevant discovered documents), 21(c) and 21(d). 2. The first plaintiff is not required to answer interrogatories 23 and 24 in their current form, but that the defendants may interrogate as to any agreement or settlement that she is asserted to have entered into with the National Australia Bank in the course of continuing to occupy the property since 7 March 2014 (paragraph 39 of the particulars), such interrogatories to be administered in 14 days. 3. The first plaintiff is not required to answer interrogatories 2(b)(iii), 2(c)(iii)(B) and 9. 4. The second plaintiff is directed to answer interrogatories 1, 3(d), 3(e) (satisfied by reference to the relevant discovered document), 4 and 5, 8, 9, 10, 12, 13 (interrogatory 13(b) may be answered by reference to the relevant discovery documents), 14(b) and 14(c) (noting that 14(c) may be answered by reference to the relevant discovery documents), 16, 17(b), 17(c), 17(d) ( interrogatory 17(d) may be answered by reference to the relevant discovery documents), 18(c) and 18(d). 5. The second plaintiff is not required to answer interrogatories 20 and 21 in their current form, but that the defendants may interrogate as to any agreement or settlement that he is asserted to have entered into with the National Australia Bank in the course of continuing to occupy the property since 7 March 2014 (paragraph 39 of the particulars), such interrogatories to be administered in 14 days. 6. The costs of this application and of the previous two occasions (13 August 2015 and 10 September 2015) are to be the defendants' costs in the cause. 7. Parties are to administer interrogatories in accordance with these orders on or before 29 September 2015 (14 days from today). 8. Parties to answer interrogatories with verification on or before 30 October 2015. 9. Parties have liberty to restore the matter if there are any issues as to the redrafted interrogatories contemplated by the orders made. 10. Matter stood over to the Defamation List on Thursday 12 November 2015 for further directions.

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: 23 September 2015