Hall v Hannaford

DLJ: 4 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20590 of 1995

Judgment (Justification & comment - qualified privilege - at common law only - sufficiency of particulars - ambit of interrogatories) 1 This matter is listed for trial on 31 January 2000. 2 The first application by the plaintiff is pursuant to a Notice of Motion filed on 14 October 1999 in which he seeks to have struck out the particulars of the defence of truth. 3 I delivered a judgment on the same subject matter on 20 August 1999 ([1999] NSWSC 838). 4 Consequent to that judgment (which also struck out a s 16 defence), the defendant, on 22 October 1999, by consent, filed in Court an Amended Defence to a Further Amended Statement of Claim. There had been filed in Court on 24 September 1999 a "Consolidated Statement of Particulars". 5 With respect to the Consolidated Statement of Particulars of the defence of justification, I am easily persuaded by the contents of the document that the defence adequately has been particularised. Much of the argument with which I was concerned on 19 November was really focused upon suggestions as to the inadequacy of particulars by reason of information in the hands of the plaintiff. Those submissions pointed to issues to be litigated at the trial on the question of whether or not the defendant has made out a case of substantial truth. When one reads the document and asks the question "has the defendant made known its case to the plaintiff?" the answer must be in the affirmative. Standing alone the defendant's particulars are, in my view, now adequate. The plaintiff has the further advantage of having heard argument in support of the particulars by reference to matters of evidence and I do not consider that he can legitimately contend that the defendant has failed to make his case known. No basis for striking out the particulars has been established. 6 The defendant has pleaded qualified privilege. It is important to note that the defendant in this regard does not rely upon s 22 of the Defamation Act, 1974. He pleads qualified privilege on two bases at common law: first, founded in the traditional sense of reciprocity of duty and interest; secondly, founded further in the traditional available basis, namely, in response to an attack. This is made clear from the Consolidated Statement of Particulars referrable to that defence. 7 The plaintiff complains that the defendant has improperly failed to answer, interrogatories directed essentially to the defendant's state of mind. The defendant has taken an objection that such interrogatories are vexatious and oppressive and do not relate to any matter in issue between the parties, stating expressly that the defendant has not pleaded any defence under s 22 of the Defamation Act 1974. 8 The interrogatories are in standard form. It is said that it is legitimate for the plaintiff to interrogate the defendant as to information in his possession and on which he acted at the time of publication and the inquiries (if any), made by him in order to ascertain the truth of that material. In support of this submission reliance is placed upon what the learned editors of Tobin & Sexton state in paragraph 25.260 of their text of "Australian Defamation Law & Practice". The authors state that the obvious basis of relevance of the question is the issue of malice on the part of the defendant, on the ground that the answer may tend to establish malice on the part of the defendant. The plaintiff is entitled to ask whether the defendant intended to convey the meanings pleaded by the plaintiff. The last part of this statement is not material because the defendant has answered those interrogatories because it is relevant to the defence of comment. 9 In support of the first part of the proposition the learned authors rely upon two decisions of the Court of Appeal in England. The first is White & Co v Credit Reform Association & Credit Index Limited [1905] 1 KB 653. The defendants in that case were interrogated as to what inquiries they made as to the truth of statements complained of before publishing them and from whom they obtained the information on which they relied in publishing the relevant material. Such an interrogatory was held to be admissible. It is to be noted however that upon reading the report it is exposed that the defendants by their statement of defence (inter alia), pleaded that they published the matter complained of in good faith without malice. Further, the defendants had administered to the plaintiff an interrogatory asking whether it alleged that the defendants, in publishing the statements complained of, were actuated by malice towards it, and, if so, upon what facts and circumstances they relied as showing actual malice. The plaintiff had in fact answered that interrogatory to the effect that it did allege that the defendants made no proper inquiries and were possessed of no information or particulars and so on. The structure of the defendant's plea was referred to expressly by Collins MR at 657. With respect to the learned authors I do not see that case as providing authority for the very broad statement in the first sentence of the paragraph under consideration. 10 The authors also refer to the Court of Appeal's decision in Edmondson v Birch & Co Limited [1905] 2 KB 523. In that instance I gather that the Court of Appeal, being of the opinion from correspondence which had passed between the parties that the interrogatory as framed was not put bona fide but for an ulterior motive, disallowed the interrogatory as to the information the defendants received "which induced them to make the statement complained of". The submissions advanced by so eminent a counsel as Marshall Hall KC that there was an entitlement in the plaintiff to administer such an interrogatory even if there be an incidental result of the disclosure of the defendant's informant, was unsuccessful. The interrogatory I gather would otherwise have been allowed to "permit evidence of malice" per Mathew L J at 527 provided it was not otherwise an "engine of great oppression", per Romer L J at 526. There decisions (and the general statement in the text) can here have no application. (Compare Makim v Nationwide News Pty Limited Hunt J, unreported, 2 March 1990). 11 The pleading of the common law defence of privilege is in very brief form in the Amended Defence to the Further Amended Statement of Claim but is well amplified in the Consolidated Statement of Particulars. Nothing there is exposed that would warrant the answering the interrogatories. The interrogatories do go to subjective matters, the defences as pleaded and particularised, as I read them, are founded on objective matters. 12 The plaintiff's Reply was filed on 21 May 1997. It is alleged that the defendant was "actuated by express malice": that is the material allegation made in this pleading (see SCR Pt 67 r 19). The first particular is that the defendant "bore ill will and hostility toward the plaintiff". Thereafter there are set out 10 sub-particulars the first of which is fundamentally objective material or material reflective of the plaintiff's state of mind. There are some allegations, for example, sub-particular (viii) that the defendant "knew" certain things and (ix) the plaintiff "warned" the defendant. None of the interrogatories administered is sufficiently focused on these matters purporting to go to the question of malice in defeasance of the plea of qualified privilege to warrant an order that they be answered. Particular (b) merely asserts "improper motive being an intent to injure the plaintiff", that, it is said, is clarified by reference to the "manner of presentation which was excessive and unfair". No interrogatory has been delivered in relation to that matter. 13 Sub-paragraph (d) asserts "reckless indifference of the defendant to the truth or falsity" of the imputations. That is a sweeping statement in a Reply that is quite often seen but it is not particularised. I am not of the opinion that such a generalised allegation in a particular in a Reply warrants an order that the defendant answer generalised interrogatories. 14 Accordingly, the defendant will not be required further to answer interrogatories. 15 Pursuant to my judgment of 20 August 1999 particulars of the defence of comment have been provided and I am satisfied that they are proper in form and state the defendant's case on that issue. 16 As far as I presently understand the situation there are still outstanding matters: a question of whether the defendant's discovery is sufficient (apparently based on the absence of some documents referred to as annexures to discovered documents); questions of a subpoena addressed to the Victims Compensation Tribunal which can be independently dealt with; the capacity of the matter complained of to bear the contextual imputations in the Amended Defence to the Further Amended Statement of Claim; the question of the reconsideration of my judgment on ss 15 and 16 of the Defamation Act 1974 handed down on 20 August 1999. These will be dealt with at an appropriate time. 17 I refuse orders 1, 2, 3 and 4 (taking into account the notional later dates that would have to be referred to therein) in the Notice of Motion. The balance of the Motion is stood over to a date to be fixed and costs are reserved. ***********

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