Goding v Queensland Newspapers Pty Ltd

Upon a summons for directions, an order was made inter alia for the delivery of interrogatories and, pursuant thereto, the plaintiffs delivered a set of interrogatories for the examination of the defendant. By its answer the defendant, upon grounds stated, objected to answering most of these interrogatories. The plaintiffs sought an order for further answers and Lucas A.J. ordered further and better answers to some, but not all, of the interrogatories. This order was discharged upon appeal to the Full Court of the Supreme Court. There followed an application to this Court for special leave to appeal. The hearing of that application was adjourned to give the plaintiffs an opportunity to apply to the Supreme Court for leave to deliver further interrogatories. This course was followed in that the plaintiffs sought leave to make particular amendments to the interrogatories already delivered or, alternatively, a special order for leave to deliver a further set of interrogatories framed, as we were informed, so as to accord with what was said in the judgments of the members of the Full Court upon the appeal from Lucas A.J. Wanstall J. declined to entertain the application and from his Honour's order special leave to appeal to this Court was granted.

The reason why the plaintiffs sought "a special order" for liberty to interrogate further was because of the terms of the proviso to O. XXXV, r. 1, of The Rules of the Supreme Court of Queensland which relates inter alia to the delivery of interrogatories. The proviso is in these terms: "Provided that no party shall deliver more than one set of interrogatories to the same party without a special order for that purpose". This proviso had been considered by the Full Court in Kraft v. McAnulty [1] and it was there laid down that an application for leave to deliver a further set of interrogatories must "show cogent reasons which satisfy the mind of the Judge in chambers that he should authorize a deliberate departure from the recognized general rule of practice" that only one set of interrogatories may be delivered. It appears from the course the argument before us took that it is possible that this entirely sound statement of principle has been misunderstood. Counsel for the appellants assumed that the use of the expression "cogent reasons" indicated an opinion on the part of the Full Court that by requiring a special order the rule threw upon the interrogating party a burden of establishing the existence of circumstances so extremely unusual as to leave the judge no option but to give leave to deliver further interrogatories. The very imprecise notion thus attributed to the Full Court is not supported by the language of the judgment and does violence to the terms of the rule. The rule does, of course, mean that in general only one set of interrogatories may be delivered; but it commits to a judge a discretion to permit a departure from the general practice in a particular case by means of an order specially made for that case. It prescribes no principle or standard to govern the exercise of the discretion, save by the plain implication that the party desiring the special order must affirmatively satisfy the judge that because of the circumstances of the particular case the interests of justice require that leave be given to deliver further interrogatories notwithstanding the general rule. It appears to us that there could be no reason more cogent for allowing a departure from the general rule than that, without the opportunity to interrogate further, a case might not be heard upon its merits. As Hart J. said, in substance, the requirement of a special order should not be regarded as depriving the Court of power to remedy the failure of justice by reason of mistakes and objections of form.

The plaintiffs, it seems, desired to discover what information the defendant had at the time of the publication of the article about the matter published - material most relevant to the defences raised. It is now in effect conceded that the interrogatories first delivered were objectionable, particularly in enquiring from whom the defendant had obtained such information as it had. Leave has now been sought to deliver fresh interrogatories which it is hoped will be free from the objections which were found to the earlier interrogatories, and to elicit such information as the appellants need for the purposes of their case. Whether, if leave be granted, the new interrogatories will be unobjectionable is not a matter to be decided here and, as was indicated in the course of argument, we are not prepared to express any opinion about the effectiveness of either the amendments proposed to the former interrogatories or the further interrogatories which we were informed will be delivered if leave be granted. We confine ourselves strictly to the question whether, in the circumstances of this case, there should be a special order under O. XXXV, r. 1. In deciding that there should, we are satisfied we are not going beyond the principles already stated.

We have chosen to deal with the application for leave to interrogate further rather than with the application for leave to amend the earlier interrogatories because, even if rr. 1 and 2 of O. XXXII of The Rules of the Supreme Court do warrant the granting of leave to amend interrogatories which the party interrogated has already answered - a point which we do not decide - we are satisfied that leave in such a case should be granted only in circumstances which would warrant a special order under O. XXXV, r. 1. The application to amend would therefore raise substantially the same question as does that which we have already discussed. Furthermore, we prefer to deal with the application made directly under O. XXXV, r. 1, for the reason that it is not for the Court to re-draft a party's interrogatories in the manner that the actual application for leave to amend the earlier interrogatories would seem to necessitate.

Finally, we think that we should state explicitly that our acceptance of Kraft v. McAnulty [1] is not to be taken to support a proposition that a special order under O. XXXV, r. 1, is to be made in every case where the framer of interrogatories has overreached himself and asked questions to which objection is successfully taken. We have, for instance, looked at the papers in Cahill v. The Queensland Housing Commission [No. 2] [2] in which Gibbs J. refused to make an order under O. XXXV, r. 1. By reason of loose drafting, a particular interrogatory not going to a matter of importance had been too widely framed and the party interrogated had successfully objected to answering it. We think that Gibbs J. was right.

In the result, we consider this appeal should be allowed and an order made under O. XXXV, r. 1, giving liberty to the appellants to deliver a further set of interrogatories for the examination of the respondent. We think the appellants should have the costs of this appeal, but that the parties should pay their own costs of the proceedings before Wanstall J.