Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Collins v Jones [1955] QB 564

Cooper v Lawson [1838] EngR 888; (1838) 8 A & E 746

Dalecoast Pty Ltd v Monisse [1999] WASCA 103

Garnaut v Bennett (No 1) (1909 29 NZLR 378

Gumina v Williams (No 2) (1990) 3 WAR 351

Lewis v Clement (1820) 3 B & Ald 702

Mullery & Marney v Manifold [1959] HCA 23; [1959] 103 CLR 341

Phelps v Kemsley (1943) 168 LT 20

Polly Peck Holdings plc v Trelford [1986] 2 All ER 84

Russell v Stubbs [1913] 2 KB 200

Sutherland v Stopes [1925] AC 47

Toronto Star Ltd v Drew [1948] 4 DLR 465

Verdell Pty Ltd v F&G Nominees Pty Ltd [2000] WASC 143

West v West (1911) 27 TLR 476

1 MASTER NEWNES: This is an application by the defendant for leave to administer interrogatories to the plaintiff. The application was opposed by the defendant.

2 In the action, the plaintiff claims damages for defamation in relation to a work reference allegedly given by the defendant to a recruitment agency. The defendant is a ship builder which employed the plaintiff, initially as an apprentice fabricator/welder, and then, between 17 October 2000 and 8 May 2001, as a tradesman fabricator/welder. On about 9 May 2001, the plaintiff's employment was terminated on the ground of redundancy.

3 According to the plaintiff, approximately one month later he saw an advertisement in the newspaper for fabricator/welders for a competitor of the defendant, Wavemaster International. The defendant and a colleague applied to the recruitment agency concerned, Jervoise Bay Recruitment, and the plaintiff was interviewed by a Mr Lambrecht of that firm. At the completion of the interview, Mr Lambrecht told the defendant that all that was left to be done was for a reference check to be obtained. The plaintiff heard nothing more but subsequently learned that his colleague had been employed. The plaintiff made inquiries of Jervoise Bay Recruitment and eventually was told that his application was "not being put forward because of what Austal said about [him]".

4 The plaintiff then instructed solicitors who wrote to the defendant requesting a copy of any reference provided to Jervoise Bay Recruitment and, if an oral reference was provided, asking what was said. A similar request was made of Jervoise Bay Recruitment.

5 No reply was received from Jervoise Bay Recruitment but the defendant responded by letter from its solicitors who said, among other things, that no documents had been provided by the defendant to Jervoise Bay Recruitment in relation to the plaintiff. The solicitors did not specifically respond to the request regarding any oral reference, but went on to say that, in any event, the defendant was not required to provide the plaintiff with any information.

6 The plaintiff subsequently made an application for pre-action discovery under O 26A of the Supreme Court Rules against the defendant and Jervoise Bay Recruitment. In the course of argument on that application, counsel for the defendant told the Court that the defendant had given an oral reference to Jervoise Bay Recruitment.

7 Ultimately the plaintiff's application was successful and the defendant and Jervoise Bay Recruitment respectively were ordered to provide discovery of any documents given by the defendant to Jervoise Bay Recruitment 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.

8 Subsequently, Jervoise Bay Recruitment filed an affidavit to the effect that it did not have, and had never had, in its possession any documents of that description. The defendant, however, discovered what appears to be a standard, printed form that is completed by an employee of the defendant whenever a request for a reference is received from a third party. The document is headed:

"Austal Ships

Reference check on previous employees."

Immediately under that heading, the following words appear:

"This form is to be completed following an inquiry from an external organisation requesting a reference check on a previous Austal Ships' employee. This form is to be completed by the previous employee's immediate Supervisor/Coordinator and signed by the Department Manager." [Emphasis in original]

9 Immediately underneath that, a section has been completed identifying the name of the previous employee as the plaintiff, his position as "fabricator/welder" and the start of his employment as 17 October 2000 and the finishing date as 8 May 2001. There is then the following (the parts in italics being in handwriting):

"Reference check requested by: Jervoise Bay Recruitment (company name)

Contact name: John Lambrecht."

The phone number and fax number for Mr Lambrecht have then been inserted and the date of 6 June 2001 has been completed.

The form then lists a number of what are described as "performance standards" and against each one are three boxes headed respectively "standards exceeded", "standards met" and "improvement required". Relevantly for present purposes, in all but three cases, the boxes headed "standards met" have been ticked. The three exceptions are in respect of "safe work practices", "teamwork and communication" and "overall performance", where the boxes under the heading "improvement required" have been ticked. Below that, the following appears:

"Comments (if required): Brad is capable of doing good work how ever [sic] needs to work on his safe work practices, teamwork, and communication."

10 Against the notation "Reference provided by" a name and position has been inserted and a signature and a date appears. Beneath that a signature has been inserted on behalf of the "manager".

11 On the plaintiff's application under O 26A a different reference, on the same type of printed form, was produced in evidence by the plaintiff. In support of the application, the plaintiff swore an affidavit of 18 December 2003 in which he said that he had arranged for a friend to pose as a prospective employer and to ask the defendant to provide a reference in relation to him. The plaintiff said that a facsimile had been received by his friend from the defendant in response and the plaintiff annexed a copy of the facsimile. It consisted of the same form but on this occasion apparently completed by a different employee of the defendant. The part under the heading "Performance Standards" has been completed in an identical manner to the form produced by the defendant by way of discovery. The handwritten entry against the printed notation "Comments (if required)" on the form, however, is different. It is as follows:

"Lacks the mentality to be in this industry. A shame as he is capable of doing good work."

12 The plaintiff commenced these proceedings on 21 February 2003. A statement of claim was filed on 28 April 2003. It pleads claims for slander and libel, but on this application nothing arises in relation to the libel claim.

13 In the slander claim, the plaintiff pleads, at par 6 of the statement of claim, that on or about 6 June 2001 the defendant, through an employee in the course of his employment, spoke and published to a responsible officer of the firm of Jervoise Bay Recruitment the following words:

"Brad ...

requires improvement in his safe work practices;

requires improvement in his teamwork and communication;

requires improvement in his overall performance;

is capable of doing good work, however he needs to work on his safe work practices, teamwork and communication.

And further, in answer to a further question by the responsible employee of Jervoise Bay Recruitment of the said employee of the defendant; 'Would you rehire him' (referring to the plaintiff), the defendant, through its said employee speaking of and concerning the plaintiff said 'No'."

14 In par 7 it is pleaded that in their natural and ordinary meaning the said words were meant and were understood to mean of and concerning the plaintiff in the carrying out of his trade while employed by the defendant as a fabricator/welder that:

"(a) his safe work practices were not of a tradesman-like standard; and were unsafe;

(b) his teamwork and communication in the carrying out of his job was not of a tradesman's standard;

(c) his overall performance was not of a tradesman's standard;

(d) although the plaintiff was capable of doing good work, he did not always do good work or work that was of a tradesman's standard;

(e) he had not worked at a standard expected for a tradesman fabricator/welder employed in the shipbuilding industry in Western Australia and was not suitable for employment by a leading firm in that industry."

15 The plaintiff acknowledged that he does know the identity of the employee of the defendant who, it is alleged, spoke the words or the person at Jervoise Bay Recruitment to whom they were spoken. Nor is he sure of the precise words spoken. Neither of the entities concerned will tell him what was said. The plaintiff now seeks leave to interrogate the defendant by administering the following interrogatories:

"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 Jervois Bay Recruitment;

'Brad ...

'requires improvement in his safe work practices';

'requires improvement in his teamwork and communication';

'requires improvement in his overall performance';

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

or words to like effect.

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

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 Jervois Bay Recruitment on or about 6 June 2001.

4. On or about 6 June 2001, in answer to a question by an employee of Jervois Bay Recruitment of and concerning the Defendant 'Would you re-hire him?' (referring to the Plaintiff) did an employee of the Defendant reply to such question by the use of the word 'No' or a word or words to like effect.

5. If the answer to question 4 is Yes, was the employee of the Defendant who spoke the said word or words to the employee of Jervois Bay Recruitment, acting in the course of his or her employment with the Defendant when speaking the said word, or words."

16 The defendant opposes the application, essentially on the ground that the proposed interrogatories are improper because the plaintiff is fishing to ascertain whether defamatory words have been spoken of him, rather than simply seeking to ascertain precisely what defamatory words have been spoken of him.

17 A plaintiff may interrogate the defendant as to whether he spoke the words pleaded, or words to that effect: Dalgleish v Lowther [1899] 2 QB 590. The problem, however, faced by a potential plaintiff who does not know the precise words published of him has long been recognised. In "Gatley on Libel and Slander", 9th ed, at 26.16, the learned authors say:

"As with cases of libel, the best course is for the plaintiff to set out as best he can in the statement of claim the words which he believes to have been spoken by the defendant. He should then interrogate the defendant as to the actual words which he used on the occasion in question. Such an interrogatory is only likely to be allowed where the plaintiff can show by uncontradicted affidavit that the defendant has at a certain place and in the presence of certain persons made against him a slanderous imputation of a definite character. The court will only assist a plaintiff who can demonstrate that he has a good cause of action but is unable to find out the precise form in which to frame it [Atkinson v Fosbroke [1866] LR 1 QB 628. And see Russell v Stubbs [1913] 2 KB 200n ... ]"

18 A plaintiff cannot therefore interrogate to ascertain what words were spoken, unless he can clearly show that the defendant, at a certain place and in the presence of certain persons, has made a slanderous imputation of a definite character against him, but that he is unable to frame his statement of claim because the persons present have refused to inform him of the words spoken. In those circumstances, the Court will allow the plaintiff to interrogate the defendant as to the precise words used.

19 The defendant submitted that the proposed interrogatories were a "fishing exercise" in which the plaintiff sought to interrogate the defendant simply to find out whether there exists sufficient material upon which to base a cause of action, without being certain in the first place that any such material, and therefore such a cause of action, exists. The defendant argued that the plaintiff could only interrogate as to the words spoken where the plaintiff first established by uncontradicted affidavit evidence that slanderous statements of a definite character had been made about him. He had not done so and therefore leave to interrogate should be refused.

20 In my view, in relation to interrogatory 1 the plaintiff's submissions confuse two separate principles. A plaintiff is entitled to interrogate a defendant as to whether the defendant spoke the words pleaded in the statement of claim. In doing so it is permissible to ask the defendant whether he spoke the specific words alleged "or words to that effect": Saunderson v Von Radeck (1905) 119 LPJ 33, HL. An interrogatory in similar terms was allowed by the Court of Appeal in Barham v Huntingfield [1913] 2 KB 193. In Dalgleish v Lowther (supra) where an interrogatory in substantially the same terms was allowed, Lindley MR said he was at a loss to see what objection there could be to such an interrogatory. Sir F H Jeune agreed, noting that the object of the additional words was "merely to prevent the defendant from swearing by the card".

21 Where the plaintiff seeks to interrogate in that manner as to whether the defendant spoke the words pleaded in the statement of claim, he is not, in my view, obliged to put on affidavit evidence to justify the interrogatory.

22 As I understood the defendant's submissions, however, it was further contended that the interrogatories would be an abuse of process because it was clear from the affidavit evidence that the plaintiff did not know whether any defamatory words had been spoken of him. It was submitted that a plaintiff is not permitted simply to guess at words he suspects may have been said and put them in a pleading so as to be able to avail himself of the interlocutory processes of discovery and interrogatories. Where it is apparent on the affidavit evidence that the plaintiff has no evidence that any defamatory words have been published concerning him, then the interrogatories should not be allowed and, indeed, he should not be permitted to go on with the case.

23 Counsel for the defendant relied, in particular, on Collins v Jones [1955] 1 QB 564 per Denning LJ at 571 - 572. In that case, the plaintiff brought an action for a libel which she alleged was contained in two letters sent by the defendant to an officer of a local authority. The statement of claim purported to set out the actual words of the libel and the defendant applied for particulars of the time, date and place of publication of each letter and which of the words complained of were alleged to have been published or contained in which of the letters. Neither the plaintiff nor her legal advisers had seen the letters and they did not know what they contained. Whilst they had learnt that letters had been sent to the local authority, they had guessed as to the contents of them. Lord Denning, with whom Parker LJ agreed, said that a plaintiff was not entitled to bring a libel action on a letter which the plaintiff has not seen and of whose contents they are unaware. The plaintiff must have sufficient material from which to state the actual words in the letter and a suspicion that the letter is defamatory is not sufficient. This cannot be overcome by guessing at the words and putting them in the pleading. The Court will require the plaintiff to give particulars so as to ensure that he has a proper case and is not merely fishing for one. If he cannot give particulars, he will not be allowed to go on with it.

24 I accept that if, on the evidence, it was clear that the plaintiff did not know what had been said of him and had simply guessed at the words and put those in the statement of claim, then the interrogatories should not be allowed, and indeed the action would be likely to constitute an abuse of process. In my view, however, that is very far from the present case. Before turning to my reasons for reaching that conclusion it is convenient to turn to the second issue, namely whether the plaintiff is entitled to interrogate more generally as to what words were spoken, as proposed in interrogatory 3.

25 The approach to be taken on an application to interrogate as to what words were spoken is illustrated by the leading case of Atkinson v Fosbroke [1866] LR 1 QB 628. In that case, the plaintiff asserted in his declaration that the defendant had said of the plaintiff, "He was obliged to leave Oxford on account of a forgery" and that "he committed a forgery while he was at Oxford". The plaintiff sought to administer the following interrogatories:

"(1) Did you in the month of February last, or in the first nine days of last March, on the premises of Mr Herring, tobacconist, Milson Street, Bath, in the presence of Mr F A Pym, use any words imputing forgery to the plaintiff, to the effect that he had to leave Oxford on account of a forgery, or that the plaintiff had put another man's name on a bill of exchange, or had issued or used a bill of exchange with the name of a person written on it but not by that person, or had used a bill of exchange having the signature of a person on it who had repudiated it as his signature, or to any effect similar to any of the above, or that he had been obliged to leave Oxford about any such transaction as above? If yea, as near as you can remember what were the words which you so used?

(2) What words, as near as you can remember, affecting the character of the plaintiff, did you use in this sense before 10 March in the presence of the said Mr Pym, on the premises of the said Mr Herring?"

The interrogatories were allowed. At 621, Cockburn CJ said:

" ... in exercising the jurisdiction ... to administer interrogatories, we ought to take care that we exercise it only in favour of a party who really has a case, but is obliged to resort to the other side to make out that case. We ought not, therefore, to allow what have been called mere fishing interrogatories; but I think in the present case we may very safely exercise this jurisdiction, and for this reason: it is abundantly clear from these affidavits, uncontradicted as they are by the defendant, that the defendant has uttered some slanderous words imputing forgery to the plaintiff. The plaintiff was proposed as a member of a club and was rejected, and was informed that the cause of his rejection was a statement made publicly by the defendant affecting the plaintiff's character. Of course, the plaintiff was naturally most anxious to know the terms of the accusation, and the circumstances under which it was made; and, on inquiring at the club, he was informed that Pym had told the committee that the defendant had stated in a certain shop in Bath, in Pym's presence, that the plaintiff had committed forgery; but the plaintiff was unable to obtain any information beyond the general nature of the accusation, the only person besides the defendant himself able to give the information refusing to give it. The result is that a slanderous imputation against the plaintiff, of a definite character, is shown to have been made by the defendant in the presence of Pym and repeated by Pym to the committee, but the plaintiff has no means of ascertaining the exact terms of the slander, except by extracting it through means of interrogatories from the defendant himself. It is clear that the plaintiff has a good cause of action, but he is unable to find out the precise form in which to frame it. I think, therefore, the plaintiff is entitled to have the assistance of the court, and the proposed interrogatories ought to be allowed."

26 I am satisfied that for the purposes of the present application there is sufficient evidence that a slanderous imputation in relation to the plaintiff's suitability for employment as a fabricator/welder was made orally by an employee of the defendant to a representative of Jervoise Bay Recruitment in early June 2001.

27 On the uncontradicted affidavit evidence before me, the plaintiff applied to Jervoise Bay Recruitment for a job for which he was apparently qualified. He subsequently learned that Jervoise Bay Recruitment had not passed on his application to the prospective employer because of what had been said about him by his previous employer, the defendant.

28 The defendant, by its counsel, acknowledged on the O 26A application that the defendant had given an oral reference to Jervoise Bay Recruitment. It is reasonably to be inferred that that reference was adverse to the plaintiff.

29 The defendant produced on pre-action discovery the document to which I have referred. That document had apparently been completed by one of the defendant's employees as the result of a request for a job reference from Jervoise Bay Recruitment at about the time of the plaintiff's application to the latter for employment.

30 It was argued on behalf of the defendant that there was simply no basis to infer that any of the information contained in the form prepared in connection with the request by Jervoise Bay Recruitment for a reference had in fact been communicated to Jervoise Bay Recruitment. I do not accept that submission. If that were the case, it is not clear on the evidence before me what purpose was intended to be served by completing the form in the manner in which it was completed. It was suggested in argument on behalf of the defendant that it was likely the form was prepared just for the defendant's internal purposes, to record the basis for the answer to the question whether the defendant would re-hire the plaintiff, not to record what was said on behalf of the defendant in response to the request for a reference. There was, however, no evidence to that effect and the content of the form itself tends to indicate that that explanation is unlikely to be the case. It is also notable that the form does not refer to any such question or response. Moreover, the fact that there were different comments on the form provided in response to the bogus application and the form prepared in response to the request from Jervoise Bay Recruitment respectively, tends to suggest that they had been prepared to reflect what was communicated on each occasion.

31 The defendant put in evidence on this application a letter from the defendant's solicitors to the plaintiff's solicitors of 1 October 2002 in which the defendant's solicitors said that the defendant did not know what precise words were uttered to Jervoise Bay Recruitment. They go on:

"However, the standard arrangement between our client and JBR was for our client's representatives to provide a single word response - either 'Yes' or 'No' - to a question put to it and formulated by JBR, the question being 'whether our client would rehire [persons named]?"

32 There is, however, no evidence that that arrangement was, or would necessarily have been, followed on this occasion, nor is there anything to suggest that, where such a single word response is provided, in the normal course the employee of the plaintiff concerned would complete a form in the way the form produced on discovery was completed.

33 It was also argued by the defendant that the proposed interrogatory 3 represented an impermissible attempt to interrogate the defendant at large about anything and everything the defendant might have said in giving the alleged reference. I do not agree. The interrogatory is limited to words "in the same sense" in relation to a reference check as the words contained in interrogatory 1. The plaintiff's counsel pointed out that the form of the interrogatory had in fact been adopted from, and was essentially to the same effect as, one of the interrogatories allowed in Atkinson v Fosbroke (supra).

34 In the circumstances, I am satisfied that a sufficient basis has been made out to justify leave being granted to interrogate in terms of interrogatory 3 and that the defendant's contention that interrogatory 1 should be rejected as a "fishing exercise" must fail. I would allow interrogatory 2.

35 Interrogatory 4 is based upon the letter from the defendant's solicitors to the plaintiff's solicitors of 1 October 2002. As it is presently framed, I consider the interrogatory is objectionable in form because it assumes that the question "Would you rehire him" was asked. The interrogatory contains within it two distinct matters, the first, in essence, as to whether the question was asked and the second, if the question was asked, whether the answer "No" or words to that effect was given. As the proposed interrogatories are framed, interrogatory 5 falls with interrogatory 4.

36 I should add that the defendant also argued that interrogatory 4 was objectionable because there was no basis for it, the interrogatory being based simply upon speculation in the letter from the defendant's solicitors of 1 October 2002. I do not accept that submission. As is apparent from the evidence and was conceded by the defendant, it gave an oral reference to Jervoise Bay Recruitment. The letter refers to it being the "standard arrangement" between the defendant and Jervoise Bay Recruitment on such occasions for an exchange of the kind referred to in the interrogatory to take place. That puts the likelihood of such an exchange a lot higher than "speculation".

37 I will hear the parties on the appropriate form of orders and on costs.