City Newspapers Co Ltd v Evening Standard Newspaper Co [1891] VicLawRp 82; (1891) 17 VLR 368

Commonwealth Bank of Australia Ltd v Whinfield [1920] VicLawRp 51; (1920) VLR 225

Hazeldean v Austal Ships Pty Ltd [2004] WASC 44

Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 27 NSWLR 73

Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249

The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd (Receivers & Managers Appointed) [1995] 2 Qd R 121

Trades Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647

Casey v Australian Broadcasting Coroporation [1981] 1 NSWLR 305

Goodson v Grierson [1908] 1 KB 761

H Clark (Doncaster) Limited v Wilkinson [1965] 1 All ER 934

McKechnie v Campbell (1996) 17 War 62

1 MASTER NEWNES: This is an application by the plaintiff for an order that the defence be struck out and that judgment be entered for the plaintiff for damages to be assessed. The ground of the application, in essence, is that the defendant has failed properly to answer interrogatories dated 4 May 2004 administered by the plaintiff and/or the answers are an abuse of process.

2 On 24 August, after hearing argument on the application, I ordered that it be dismissed for reasons which I briefly stated then, on the basis that I would provide more detailed reasons if requested to do so by either party. I have now been so requested by the plaintiff.

3 The issues in this action are outlined in an earlier decision, reported as Hazeldean v Austal Ships Pty Ltd [2004] WASC 44. Put shortly, the plaintiff sues, among other things, for damages for slander in respect of an alleged publication by the defendant of defamatory statements concerning him in the course of providing an oral reference to an employment agency, Jervoise Bay Recruitment, acting on behalf of a prospective employer.

4 Before commencing this action, the plaintiff instituted proceedings for pre-action discovery under O 26A of the Rules of the Supreme Court 1971 (WA) and obtained an order that the defendant provide discovery of all documents in its possession custody or power in connection with the plaintiff's employment by the first defendant and any documents relating to any oral reference given by the defendant to Jervoise Bay Recruitment.

5 In the course of argument on the O 26A application, counsel for the defendant said:

" ... we did give a reference. We don't resolve [sic] from that. It wasn't a written reference, it was an oral reference."

6 The defendant subsequently produced on discovery a typed pro forma document which had been completed in hand by employees of the defendant apparently in relation to a reference provided, or to be provided, by the defendant to Jervoise Bay Recruitment concerning the plaintiff. It appears from the terms of the pro forma document that it was intended to be completed by the relevant employees of the defendant whenever the defendant received a request from a third party to provide a reference for a former employee of the defendant. The relevant terms of the document in question are set out in my earlier decision and it is unnecessary to repeat them.

7 In the statement of claim in the action, the plaintiff has alleged, in effect, that the defendant orally published to Jervoise Bay Recruitment words in the same terms as those written by an employee of the defendant on the relevant part of the form produced on discovery. Subsequently the plaintiff sought and obtained leave to administer certain interrogatories to the defendant directed to obtaining admissions that the defendant, by its employees, spoke those words or words to a like effect to Jervoise Bay Recruitment: Hazeldean v Austal Ships Pty Ltd (supra).

8 On 4 May 2004, the plaintiff administered interrogatories to the defendant and on 19 May 2004 received answers by way of an affidavit sworn by the company secretary and a director of the defendant, Michael Atkinson. The terms of the interrogatories and answers are material to this application and are as follows:

"Interrogatory 1

Did the Defendant on or about 6 June 2001, through an employee say of and concerning the Plaintiff the following words to an employee of the firm Jervoise Bay Recruitment:

'Brad...

'requires improvement in his safe work practices';

'requires improvement in his team work and communication';

'requires improvement in his overall performance';

'is capable of doing good work, however he needs to work on his safe work practices, team work and communication';

or words to like effect?

Answer l

I have no personal and direct knowledge of the matters the subject of Interrogatory 1. I have made enquiries of Defendant's employees who reasonably might be expected to have any knowledge of matters that would be relevant to, or that might assist in providing an answer to, this Interrogatory. Based upon those enquiries, to the best of my knowledge, information and belief, I believe the answer to this Interrogatory is 'No'.

Interrogatory 2

If the answer to question 1 is Yes, was the employee of the Defendant who used the said words to the employee of Jervoise Bay Recruitment acting in the course of his or her employment with the Defendant, when speaking the said words?

Answer 2

Not applicable.

Interrogatory 3

If the answer to question 1 is No, give the substance of words spoken in the same sense and in relation to a reference check by the Defendant's employee to an employee of the said firm Jervoise Bay Recruitment on or about 6 June 2001.

Answer 3

I have no personal and direct knowledge of the matters the subject of Interrogatory 3. I have made enquiries of the Defendant's employees who reasonably might be expected to have knowledge of matters relevant to, or that might assist in providing an answer to, this Interrogatory. Based upon those enquiries, to the best of my knowledge, information and belief, there were no words spoken by an employee of the Defendant, in the same sense as those words described in Interrogatory 1 herein, upon any occasion as described in this Interrogatory.

Interrogatory 4

On or about 6 June 2001 was an employee of the defendant asked a question by an employee of Jervoise Bay Recruitment, when referring to the Plaintiff.

'Would you re-hire him?' or words to like effect?

Answer 4

I have no personal and direct knowledge of the matters the subject of Interrogatory 4. I have made enquiries of the Defendant's employees who reasonably might be expected to have knowledge of matters that are relevant to, or that might assist in providing an answer to, this Interrogatory. Based upon those inquiries, to the best of my knowledge, information and belief, I do not have, and have been unable to form, a positive belief as to whether the words described in this Interrogatory were spoken upon any occasion as described in this Interrogatory. My enquiries have led me to believe that, at the relevant time, it was standard and commonplace for Jervoise Bay Recruitment ('JBR') to make reference checks with the Defendant, in relation to the Defendant's former employees, and that such checks were generally made by telephone and involved an employee of JBR posing a question to an employee of the Defendant in the basic form described in this Interrogatory, and for the Defendant to respond with a 'Yes' or a 'No'. While there might have been such a request made by JBR in respect to the Plaintiff in or about 6 June 2001, my enquiries have failed to identify any person with an independent recollection of such contact having been made (and my enquiries have extended to all persons who might reasonably have been expected to have been involved in such contact on the Defendant's part). Accordingly I have been unable to reach a positive belief as to the question posed in this Interrogatory and, therefore, 1 am unable to further answer this Interrogatory.

Interrogatory 5

If the answer to question 4 is Yes, did an employee of the Defendant reply to such question by using the word 'No', or a word or words to like effect?

Answer 5

Not applicable.

Interrogatory 6

If the answer to question 5 is Yes, was the employee of the Defendant who spoke the said word or words to the employee of Jervoise Bay Recruitment acting in the course of his or her employment with the Defendant when speaking the said word or words?

Answer 6

Not applicable"

9 The plaintiff's solicitors were dissatisfied with the answers and on 20 August 2004 Mr Atkinson swore a supplementary affidavit in further answer. In that affidavit, Mr Atkinson deposed to the fact that he made inquiries as to whether any directors, former employees or books of the defendant were likely to be able to assist in answering the interrogatories. He said he made inquiries of all directors and employees of the defendant who might reasonably be expected to have any knowledge of an oral employment reference given by an employee of the defendant in respect of the plaintiff and that he considered whether any records might contain relevant information. Mr Atkinson said he formed the view that none of the defendant's directors, former employees or the defendant's record were likely to possess any information relevant to the answers. Mr Atkinson said he ascertained that the only persons likely to have any relevant information were current employees of the defendant and he made inquiries of them. Having done so, Mr Atkinson affirmed the accuracy of his earlier answers.

10 The plaintiff's solicitors considered that the answers were still inadequate and, when discussions between the solicitors failed to resolve the matter, this application was instituted.

11 The plaintiff relied in this application on two grounds. The first was that the form of answers was insufficient because it was not clear whether or not inquiries had been made of past employees and, in addition, the answers referred only to inquiries of employees, but not of officers or agents. The second ground was that the answers to interrogatories are inconsistent with the statement made by counsel for the defendant on the O 26A application.

12 In my view, the first objection is answered by the supplementary affidavit of Mr Atkinson.

13 The principles relevant to answers to interrogatories by a corporation are well established. A person who answers interrogatories on behalf of a corporation must make all reasonable inquiries: Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 27 NSWLR 73, at 74 - 75. The deponent must make inquiries as to whether any past employees or agents of the company have knowledge of the matter and make inquiries of any past employees or agents who do have such knowledge: Spedley Securities (supra); Stanfield Properties (supra); The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd (Receivers & Managers Appointed) [1995] 2 Qd R 121.

14 The deponent should state in the answers that he has made all proper inquiries and that the answers are given as a result of those inquiries: City Newspapers Co Ltd v Evening Standard Newspaper Co [1891] VicLawRp 82; (1891) 17 VLR 368; Commonwealth Bank of Australia Ltd v Whinfield [1920] VicLawRp 51; (1920) VLR 225; Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249. The deponent is not, however, required to set out in detail the inquiries they made before answering the interrogatories. In Stanfield Properties (supra), Megarry VC said, at 251 - 253:

"The person answering the interrogatories is accordingly bound to make all reasonable inquiries which are likely to reveal, or may reveal, what is known to the company. In order to show that this has been done, it is obviously desirable that the answers should include some statement which shows that the person swearing the answers has applied his mind to this duty and has attempted to discharge it. This, however, is all that I think is required. I do not think that there is any duty to set out the details of the inquiries made, giving the names and addresses of all persons questioned, and specifying what questions are asked, and so on. If the answers do not at least state in general terms that the person swearing to them has made diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the questions, the party administering the interrogatories may justifiably wonder whether the company has discharged its obligations in answering the questions.

...

I would add this. I am not laying down that answers to interrogatories by a company must include information and explanations as to the inquiries made, although in many cases it will be convenient to include them, at least in outline. What I am saying is that a company which is interrogated and gives answers which give no indication that there has been any attempt to tap obvious sources of information must be prepared, on inquiry made, to give explanations of reasonable amplitude and, if required, verify them by affidavit."

15 In my view, the defendant has discharged its obligations by the two affidavits of Mr Atkinson. It is not clear what more the defendant could reasonably have done. There is nothing to suggest that the inquiries Mr Atkinson made were inadequate. In my view, the first ground of the application must fail.

16 The second ground was that the answers were inconsistent with what counsel for the plaintiff described as an admission made by the defendant on the O 26A application that the defendant had given an oral reference. Counsel for the plaintiff referred to Trades Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647, at 663, for the proposition that statements by counsel in interlocutory matters may be regarded as prima facie evidence on behalf of their client. Counsel argued that the defendant could not now resile from what was said on the O 26A application and that, in light of the inconsistency between what had been said then and the answers now given by Mr Atkinson, the answers to interrogatories were insufficient and an abuse of process, and the defence should be struck out and judgment entered for the plaintiff.

17 It was submitted on behalf of the defendant that, first, there was no admission on behalf of the defendant in this action and that what had been said by the defendant's counsel had been said in separate, earlier proceedings; secondly, at most what was said by counsel was only prima facie evidence and could be rebutted; and thirdly, that, in any event, there was no material inconsistency between what was said by counsel on the O 26A application and the defendant's answers to interrogatories.

18 It seems to me that this ground of the application is misconceived. Although in the course of argument on the application there was some debate about the circumstances in which a party can depart from an admission made by its counsel, I do not think it is necessary to consider that question.

19 It seems to me that a fundamental flaw in this ground is the assertion that there is a material inconsistency between what was said by counsel on the O 26A application and the defendant's answers to interrogatories. In my view, having regard to the issues in the action, any inconsistency between what was said on the O 26A application and what is said in the answers to interrogatories is not material.

20 Mr Atkinson, in relation to the first interrogatory, says he believes the words quoted were not spoken by any person on behalf of the defendant. In relation to the question whether words in the same sense were spoken, he says he believes that no such words in the same sense were spoken. That is not inconsistent with what was said on the O 26A application. Interrogatory 4 asks whether the defendant was asked by an employee of Jervoise Bay Recruitment "Would you re-hire him" or words to like effect, and Mr Atkinson's answer is to the effect that, having made all due inquiries, he is unable to say whether such words were addressed to the defendant. Mr Atkinson goes on in his answers to say that the words quoted in the interrogatory were the usual form in which Jervoise Bay Recruitment made reference checks with the defendant at the relevant time and that, while there may have been such a request in respect of the plaintiff, Mr Atkinson has been unable to find anyone with an independent recollection of it.

21 To the extent it may be said that that is inconsistent with the statement by counsel that an oral reference was given, it is not, in my view, an inconsistency that is material for the purposes of this action. The question in issue is not whether an oral reference was given by the defendant, but whether certain defamatory words, or words to like effect, were spoken on behalf of the defendant. That is, the plaintiff must prove, not that an oral reference was given, but that the content of it was defamatory of him. What was said by counsel on the O 26A application made no reference, express or implied, to the contents of the reference.

22 Moreover, I do not understand on what basis it is said that the answers to interrogatories, which were given on oath after the enquiries referred to by the deponent had been made, are inadequate because they are (so it is said) inconsistent with something said by counsel for the defendant in the course of submissions on an earlier interlocutory application. Counsel then said that an oral reference had been given. Mr Atkinson now says, in effect, that he can find no-one who has any recollection of a reference having been given. The plaintiff is entitled at trial to make what use he can of counsel's statement, but no grounds have been established to show that the answers to interrogatories are inadequate or an abuse of process.

23 In my view, no basis has been shown for striking out the defence and the application should be dismissed.