Goold & Anor v Newcastle Newspapers Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Thursday 9 March 2000 21311/96 DOUG GOOLD & ANOR v NEWCASTLE NEWSPAPERS PTY LTD

1 HIS HONOUR: The plaintiffs in these proceedings seek damages from the defendant, claiming to have been defamed in an article published in the Newcastle Herald on 22 August 1996. That articles forms annexure A to the statement of claim and it is unnecessary to set out its content in this judgment. 2 The defendant has filed a defence in which it denies that the article in question is capable of bearing, or is understood in the relevant sense to bear, the imputations pleaded in the statement of claim. Additionally, the defendant has pleaded qualified privilege, comment and the defence arising under s 13 of the Defamation Act. In their reply, the plaintiffs have, inter alia, pleaded malice. 3 Consent orders were made concerning interrogatories on 9 April 1999, and interrogatories have been administered and certain of these have been answered. However a dispute has arisen as to whether the defendant ought to be required to answer certain outstanding interrogatories and I entertained argument on those interrogatories on Friday last, 3 March 2000. The interrogatories in question are five in number and it will be necessary to consider each interrogatory in turn. 4 Firstly however, I set out the imputations pleaded by the plaintiffs:

By the first plaintiff: "(a) The First Plaintiff attempted to defraud the credit card provider 'Mastercard' by avoiding a debt which he knew to have been incurred by him at a brothel called the 'One One One Coffee'; (b) That the First Plaintiff frequented a brothel called the 'One One One Coffee' on a large scale; (c) That the First Plaintiff is a sexual deviant; (d) That the First Plaintiff has sexual relations with prostitutes at the brothel called 'One One One Coffee' contrary to the moral obligations of his marriage; (e) That the First Plaintiff is dishonest in that he concealed his adulterous behaviour with prostitutes at the brothel called the 'One One One Coffee' from his wife; (f) That the First Plaintiff is a hypocrite in that he denied to Mr Corbett (a journalist employed by the Defendant), to a representative of the brothel and to his bank that he did not engage prostitutes at the brothel called the 'One One One Coffee' when he knew that denial to be false."

By the second plaintiff: "(a) That the Second Plaintiff has so failed to satisfy her husband sexually that her husband has engaged prostitutes at the brothel called the 'One One One Coffee'. 5 The first of the interrogatories in dispute is interrogatory 9. It is to be considered in the context that in response to interrogatory 7 the defendant answered that it did not intend to convey in the publication complained of any of the imputations pleaded. 6 Interrogatory 9 is as follows: "9A If the answer to any part of 7A is negative: 9A.1 did the defendant intend to convey any imputations by the publication of the matter complained of, and, if so, 9A.2 state each imputation which the defendant intended to convey by the publication of the matter complained of; 9A.3 state each step which the defendant took in order to satisfy itself that the matter complained of conveyed the imputations set out in answer to 9A.2. 7 The defendant has objected to this interrogatory on the grounds that it is vexatious and oppressive and that it does not relate to any matter in question between the parties. 8 Mr Henskens for the plaintiff, has submitted that the interrogatory is a proper one and that it is relevant to the defence of qualified privilege. Further, he submitted, it is relevant as to malice. 9 The reasonableness or otherwise of the defendant's behaviour in making this publication is clearly a relevant issue. The resolution of this issue will depend, at least in large part, upon what information the defendant had in its possession at the relevant time. In Palmer v John Fairfax & Sons Ltd (1985) 5 NSWLR 727 Hunt J said as to this at 730: "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 a 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 (at 712). If they were based upon a flimsy (or upon no) foundation, then it will not be held that the defendant's conduct was reasonable in the circumstances (ibid at 701). Those statements in Wright's case clearly enough originated, at least in part, in the Law Reform Commission's Report on Defamation, where it was suggested that it would be relevant under this issue to consider the care taken by a defendant to convey accurately the truth as that truth existed within the defendant's knowledge (that is, the information which it had and which it believed to be true) and to inform the recipient of any uncertainty which the defendant had as to the truth of what it published: LRC 11, par 105 at 111-112. 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 and Co v Credit Reform Association and Credit Index Ltd (at 658, 660)." 10 Thus it is clearly relevant to consider what information was available to the defendant before the publication of the matter the subject of complaint. Interrogatory 12 was directed precisely to this and was answered in what seems to be a detailed and comprehensive response. Certainly the plaintiff does not complain that the answer to interrogatory 12 was inadequate. 11 However what is the relevance of interrogatory 9? Mr Henskens referred to dicta of Hunt J in Palmer (supra) at 730-731 as supporting the relevance of the interrogatory: "That belief must, of course, be looked at in the context of the sense which the defendant intended to convey, rather than the sense in which what was published was in fact understood by the ordinary reasonable reader. That is clear from the law relating to the tort of deceit, in which a very similar (but not wholly identical) issue arises: Akerhielm v De Mare [1959] AC 789 at 805; John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 at 659-660. This view, which has been expressed many times (for example, in Wran v Australian Broadcasting Commission (at 250); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 67) has now been confirmed in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362. However, when no evidence is called by the defendant as to the natural and ordinary meaning which was intended (and in the absence of any interrogatories directed to this issue), it is open to the jury to find that it was intended by the defendant in the same sense as that in which it was in fact understood by the ordinary reasonable reader: Evatt v John Fairfax and Sons Ltd (Hunt J, 20 June 1985, unreported at 14)." 12 Mr Henskens also referred to earlier reported decisions of Hunt J in Sims v Wran (1984) 1 NSWLR 317 and in Barbaro v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 30 as supporting the appropriateness of the interrogatory. 13 In Sims Hunt J said (at 327): "The obligation of the defendant to establish that his conduct was reasonable in the circumstances…has been interpreted by the Court of Appeal as requiring the defendant to establish his belief in the truth of what he published and to disclose both the nature and the source of the information which he possessed: Wright's case (at 705); Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 792-799. That belief must, of course, be looked at in the context of the sense which the defendant intended to convey, rather than the sense in which what was published was in fact understood by the ordinary reasonable reader: cf Akerhielm v De Mare [1959] AC 789 at 805; John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 at 659, 660; see Mayne v Coleman (Hunt J, 16 March 1984, unreported)." 14 Then in Barbaro his Honour said (at 50-51): "A defence of qualified privilege will be defeated where the plaintiff is able to establish that, at the time of the publication, the defendant's state of mind was not that which the law requires for a publication upon an occasion of qualified privilege. The law requires that the defendant use the occasion for the purpose for which the privilege is given and that (other than in the exceptional case where the defendant is under a duty to pass on, without endorsement, defamatory report made by some other person) he have an honest belief in the truth of what he published. Where the defendant has established that he published the matter complained of upon an occasion of qualified privilege, these two states of mind are presumed in his favour unless and until the contrary is proved by the plaintiff. It the plaintiff shows either that the defendant has used the occasion to publish the matter complained of for a purpose other than that for which the privilege is given (which is usually described as an indirect or an improper or a foreign motive) or that the defendant did not have an honest belief in the truth of what he published, the defence of qualified privilege is defeated." 15 Notwithstanding the dicta to which Mr Henskens has taken me from the above decisions, I am not persuaded that interrogatory 9 is an appropriate interrogatory in the circumstances of this case, where the defendant has sufficiently identified the information at its disposal at the time the publication was made, the sources of such information and how such sources were used. It seems to me that the reasonableness of the defendant's conduct for the purposes relevant to this cause can be determined against the background of the response to interrogatory 12. 16 My attention was drawn to the decision of Levine J in Carney & Ors v Mack (unreported, 16 December 1998). In that case his Honour ordered that the second defendant was not required to answer an interrogatory expressed as follows: "What imputations did the second defendant intend to convey?" 17 It is to be observed that this interrogatory is very similar to interrogatory 9. His Honour in Carney considered Palmer, and indeed the dicta from it to which I have adverted. Levine J having done so, said: "I expressly reserve stating complete concurrence with the propositions enunciated by Hunt J, (whose propositions must always be treated with the utmost respect) in both Howard and Palmer in relation to the entitlement to interrogate a defendant as to imputations intended to be conveyed." 18 I propose to adopt the same course on this present application as Levine J did in Carney for much the same reasons as influenced his Honour in Carney. I do not consider that it would be relevant having regard to the comprehensive response to interrogatory 12 to interrogate the defendant as to what meanings it intended to convey in the material published. 19 I turn to interrogatory 10. This asks: "Prior to the publication of the matter complained of, did the defendant consider the possibility that it could be understood to convey the imputations (or any of them, specify which):" (The interrogatory then referred to the text of the imputations pleaded which I have already set out.) 20 The defendant has objected to answering this interrogatory, again on the ground that it is vexatious and oppressive and that it does not relate to any matter in question between the parties. 21 This interrogatory addresses a topic discrete from interrogatory 9. 22 Notwithstanding Mr Caspersonn's contrary submissions, I consider that this is a proper interrogatory. It is relevant to the issue as to the reasonableness of the defendant's conduct in publishing the article and I reject the submission that it is vexatious and oppressive. I therefore propose to order that the interrogatory be answered. 23 Interrogatory 11 follows on: "If the answer to all or part of 10A is affirmative did the defendant take any steps to prevent the matter complained of being so understood and, if so, state precisely what steps were taken, including identifying any documents used, consulted or created in the course of taking those steps." 24 This is bound up with interrogatory 10 and, having concluded that interrogatory 10 calls for an answer, I reach the like conclusion about interrogatory 11. 25 Interrogatory 24 is expressed as follows: "At the time of publication did the defendant intend any of the words in the matter complained of to refer to the plaintiffs." 26 The defendant has objected to answering this interrogatory on the same grounds as it objected to answering the earlier interrogatories I have considered. 27 It is to be observed that in para 4 of the defence the defendant has stated that it does not admit that the material complained of concerns the plaintiffs. It seems to me that having regard to the state of the pleading, interrogatory 24 is a proper interrogatory and that the defendant should answer it. 28 Interrogatory 25 is linked to interrogatory 24: "If the answer to 24A is in the affirmative, specify the words which the defendant intended to refer to the plaintiffs." 29 For the same reasons as the defendant should answer interrogatory 24, an answer is required to interrogatory 25. 30 I turn to the question of costs. The plaintiff has succeeded on four of the five interrogatories but most of the hearing time was devoted to interrogatory 9 on which the plaintiff has not been successful. It seems to me in all the circumstances that the fair course is to make the costs of the application I have considered costs in the cause.

Formal orders 31 1. The defendant is not required to answer interrogatory 9A.

I order the defendant to answer interrogatory 10A.

I order the defendant to answer interrogatory 11A.

I order the defendant to answer interrogatory 24A.

I order the defendant to answer interrogatory 25A.

Costs of the application in relation to the above interrogatories are to be costs in the cause. **********

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