Glare v John Fairfax Publications Pty Ltd [1999] VSC 390

6. At the time the summons was filed the second plaintiff was still a party to the proceeding. However, on 29 June 1999 it discontinued its proceeding against the defendant. Hereafter I shall simply refer to the first plaintiff as the plaintiff.

9. The summons came before a Master of the Court on 16 August 1999. The Master dismissed the application made pursuant to paragraph 2 of the summons.

12. The defendant now appeals from the Master's order to a Judge of the Court.

15. The plaintiff's action is one in which he seeks to recover damages from the defendant for defamation.

18. The article which is alleged to be defamatory was published by the defendant in the Good Weekend on 18 July 1999.

21. The plaintiff is a former Chief Commissioner of the Victoria Police.

24. He contends that the article in question was meant and understood to mean that he had:

"(i) been party to a deliberate and gross deception of Victorian prison authorities in order to obtain Government-issue riot shields and batons to which he had no entitlement; (ii) conducted a security business in a dishonest and fraudulent manner by deceitfully obtaining Government property for private use; (iii) engaged in activities, namely obtaining riot equipment by deception, which had caused him to be shunned and disparaged by a well known and reputable security company, Chubb; (iv) meant and was understood to mean that the plaintiff had fallen from being Victoria's Chief Commissioner of Police to being a party to obtaining public property by deception for private gain."

28. The defendant contends that by virtue of the particulars provided under paragraph 7 of the plaintiff's amended statement of claim, in particular, sub-paragraphs (a) and (b), the plaintiff has put in issue the falsity of the article, and the discovery sort can properly be said, therefore, to relate to an issue in the proceeding.

"7. Further, the article was published in circumstances entitling the plaintiff to aggravated and/or exemplary damages:

Particulars

(a) The defendant published the article when it knew or ought to have known that the statements of alleged fact contained therein, and the imputations conveyed thereby concerning the plaintiff, were untrue and without foundation. (b) The defendant published the said alleged facts and imputations which it knew or ought to have known were substantially identical to false allegations which had previously been the subject of a public apology and retraction in the Geelong Advertiser newspaper of Thursday March 26, 1998, a copy of which is annexed as Schedule 2 hereto."

35. For the plaintiff it is contended that the truth of the imputations in the article is not an issue in the proceeding and that the plaintiff should not be required to provide the discovery sought.

38. The plaintiff relied upon a number of authorities for the proposition that where the objective truth of a statement is not in issue in a proceeding then any interrogatories directed towards establishing the objective truth of the statement are irrelevant and any discovery designed to achieve a similar objective is also irrelevant. It will suffice for present purposes to consider but one of those authorities namely, Redmond v. Uebergang (1984) 1 N.S.W.L.R. 311.

41. That was a defamation case in which a defence of qualified privilege had been pleaded pursuant to the provisions of s.22 of the Defamation Act 1974 (N.S.W.), no defence of truth had been pleaded, and truth had not been relied upon in mitigation of damages. At p.314 Hunt, J. said:

"A person's belief in the truth of a particular fact is not established by showing that objectively the fact is true. The issue in qualified privilege is the honest belief of the defendant in the truth of what was said. That belief in the truth may be honestly held even though there is in fact objectively no truth at all in what was said. The defendant's belief may be one engendered by carelessness, impulsiveness or irrationality. The defendant may hold that belief after being swayed by strong prejudice, or he may be obstinate and pigheaded, or stupid and obtuse in coming to the conclusion which he did. But if he nevertheless had an honest belief in the truth of what he said, the defendant will have established that particular ingredient of the defence of statutory qualified privilege, however objectively false that statement may be: Horrocks v. Lowe [1975] AC 135 at 150-153. What the defendant is entitled to do is to establish the matters upon which his belief was based. This is not done in order to show that his belief was a reasonable one, or that it was a belief that was based upon reasonable grounds, for that is never the test of the existence or non-existence of an honest belief: Clark v. Molyneux (1877) 3 QBD 237 at 249. It is done simply to support the existence of his honest belief, by demonstrating what was present to the defendant's mind at the time of the publication and what led to the existence of that belief on his part. What may be proved in order to establish the existence of a state of mind is discussed in Seidler v. John Fairfax & Sons Ltd. [1983] 2 NSWLR 390 at 393, 394. What the defendant may do is to establish the existence of those matters which led him to believe in the truth of what he said, but he may not establish the objective truth of those matters."

"A great many of the defendant's interrogatories to which the plaintiffs have objected seek material relevant to establishing the objective truth of the matter complained of, which material does not purport to have been known to the defendant at the time of the publication. The plaintiffs correctly object to these interrogatories upon the basis that they do not relate to the matters in issue between the parties, and that they thereby constitute a fishing expedition by the defendant - in the sense that, having no evidence that fish of a particular kind are in the pool, he wishes to drag the pool for the purpose of finding out whether there are any fish there or not."

47. But the facts in this case are quite different from the facts in Redmond.

50. What the plaintiff is pleading in paragraph 7(a) of his statement of claim is that the statements of alleged fact in the article and the imputation were false, and that the defendant knew or ought to have known that they were false.

53. If that is the correct view of the matter, then clearly the plaintiff has raised as an issue in the proceeding the objective truth of the statements of alleged fact.

56. So too with paragraph 7(b) of the statement of claim.

59. By that paragraph the plaintiff alleges that the defendant knew that the alleged facts and imputations were substantially identical to false allegations which had previously been the subject of a public apology in the Geelong Advertiser.

62. One asks the question - how could the defendant know that the alleged facts and imputations were substantially identical to false allegations which had been made previously if the allegations were in fact true?

65. For those reasons alone I consider that the discovery sought by the defendant is relevant to the proceeding.

68. But there is one other aspect of the case which, in my opinion, would entitle the defendant to the discovery it seeks.

71. In his prayer for relief the plaintiff seeks not only damages but aggravated and/or exemplary damages.

74. The effect of such a claim upon the issues in a defamation case was considered by Windeyer, J. in Australian Consolidated Press Ltd. v. Uren [1966] HCA 37; (1968) 117 C.L.R. 185. At p.205 his Honour said:

"But I am unable to accept the proposition that without a plea of justification (that is of truth and public benefit) the truth or falsity of a defamatory statement is an irrelevant consideration in a defamation case. The truth or falsity of the words is irrelevant to the question whether they are actionable but not, I think, to the amount of damages if they be defamatory. A jury is always likely to think that heavier damages should be given for the gratuitous publication of statements that are false than would be appropriate if the same statements were true. A plaintiff is always permitted to go into the witness box to say that what was said of him was a lie. If he does so, surely the defendant should be permitted to call evidence to answer him? If he does not, must the defendant remain silent on the matter unless he has pleaded truth and public benefit? An answer to this question was long ago given in New South Wales. It was held that a defendant could call evidence of the truth of his statements with a view to mitigating damages although he had not pleaded justification. If a plaintiff could prove the matter untrue in order to aggravate damage, the defendant could, it was assumed, prove it true in mitigation of damage."

78. I respectfully agree with his Honour's observations.

81. My conclusion therefore is that certain of the discovery sought by the defendant by paragraph 2 of its summons is relevant to issues in the case.

84. But it is argued on behalf of the plaintiff that before the defendant is entitled to an order for particular discovery it must show from evidence or from the nature or circumstances of the case, or from any document filed in the proceeding that there are grounds for belief that some document or class of documents relating to any question in the proceeding may be or may have been in the possession of the plaintiff, and has failed to do so.

87. There can be no doubt but that that is the requirement imposed upon the defendant by Rule 29.08 of the Supreme Court Rules.

90. But in my opinion it is clear in this case that the plaintiff, on advice from his legal advisers, has not turned his mind to the question of the discovery of the classes of documents identified by the defendant; further that from the circumstances of this case there is every reason to believe that documents falling into those classes may have been in the possession of the plaintiff. I make the latter observation based upon the issue raised by the parties in the proceeding.

93. In my opinion, it is appropriate therefore to require the plaintiff to give further discovery to the defendant.

1. The appeal from the orders of the Master made 16 August 1999 is allowed and paragraphs 1 and 2 of the order are set aside.

2. Within 30 days of the date of this order the plaintiff make file and serve an affidavit pursuant to Rule 29.08 stating whether he has or has had in his possession, custody or power any documents of the following classes or description and if he has had but no longer has any such documents, stating when they were last in his possession, custody or power and his belief as to what has become of them.

(a) Any documents relating to the leasing of shields and/or batons from the Office of Corrections, HM Prison Barwon or other parties at or about the time of the Patrick's Stevedoring dispute at Webb Dock in Melbourne in or about April 1998.

(b) Any documents which evidence a contract or relationship between the plaintiff and/or FBIS International Pty. Ltd. and other parties that may have been involved in the leasing of riot shields and/or batons at or about the time of the Patrick's Stevedoring dispute at Webb Dock in Melbourne in or about April 1998.

(c) Any minutes of meetings either internally or with other parties at which the use or obtaining of riot shields at or about the time of the Patrick's Stevedoring dispute at Webb Dock in Melbourne in or about April 1998 was raised.

(d) Any correspondence or documentation that relate to the plaintiff's knowledge or involvement in the lease, movement, use and return of riot shields in the security operation at Webb Dock during the Patrick's Stevedoring dispute in or about April 1998.

(e) Any documentation relating to contracts or correspondence entered into in relation to security provided by the plaintiff and/or FBIS International Pty. Ltd. at Webb Dock during the Patrick's Stevedoring dispute in or about April 1998.

4. The plaintiff pay the defendant's costs of and incidental to the application before the Master and the appeal.

5. I grant to the plaintiff the appropriate certificate pursuant to the provisions of the Appeal Costs Act in respect of his costs of the appeal and the costs of the appeal he is required to pay to the defendant.