(See also Kaiser , p 295).
7 A ground of opposition to the plaintiff's application is that it is no more than a fishing expedition in the sense referred to by Hunt, J. It is convenient to determine this question now.
8 Neither party has adduced any evidence of actual international publication of the matters complained of. The plaintiff submitted that it is a matter of notoriety or general knowledge that "The Sydney Morning Herald" is a, if not the, principal newspaper in Australia with nationwide circulation from which it may be inferred that it is likely that the edition sued upon were published in places beyond Australia. For the defendant it was acknowledged that it could be reasonably inferred that it is the usual practice of the defendant to make the newspaper available in places overseas (T p 30). Nevertheless, it did not accept that the matters complained of had been published in any form outside Australia (T pp 9, 10). It was put that, absent evidence from the plaintiff, the question of the likelihood of such publication was speculative only, and the basis for the inference had not been established.
9 In this case, the inference in my view is clearly open. Although the defendant's concession is not, in terms, an admission that the matters complained of were in fact published to any person in a place or places beyond Australia, it is consistent with, at least, the likelihood that they were. This conclusion is reinforced by the absence of evidence from the defendant of any departure from its usual practice, or otherwise to the contrary. If the matters complained of were not published beyond Australia it was open to the defendant to say so and, to adopt the words of Reynolds, J in Oswin v Radio 2UE Sydney Pty Ltd (1968) 1 NSWR 461, p 463, I am unimpressed by the argument that the plaintiff must fail because he did not show affirmatively that such publication did take place. In any event, and regardless of the defendant's acknowledgement, I accept the plaintiff's submission that it may be inferred from the very nature of the defendant's newspaper and its business that it is likely that editions containing the matters complained were published beyond Australia, for example, in embassies and in aeroplanes.
10 In the circumstances I am satisfied that the plaintiff's application is not a fishing expedition. The defendant's challenge on this basis is rejected.
11 The principal ground of opposition to the application is based upon the plaintiff's claims as pleaded in the amended statement of claim from which paras 7(a), (e) and 8(a), (e) were struck out. The defendant points out that the plaintiff's claims are now for damages for the publication of the matters complained of only in New South Wales and each of the other States and Territories of Australia.
12 It was put that it was important for the court to take into account the history of the plaintiff's unsuccessful attempts to plead causes of action on publication outside Australia and, in effect, that this application should be determined on the basis that he is henceforth confined to his current pleading. The defendant submitted that as the plaintiff's case is now for publication within Australia evidence of publication in places outside Australia is irrelevant to the issue of damages, and hence the order for discovery would be futile and should be refused.
13 The defendant's argument depends upon acceptance of the proposition that discovery as to publications beyond Australia is unavailable to the plaintiff where the pleading includes no claim based upon them.
14 In my opinion the dictates of justice in these proceedings lead to the rejection of the defendant's submissions, and to the making of the order sought by the plaintiff. The order should be made at this stage as its effect will facilitate the ascertainment by the court of the true facts and thereby the just resolution of the real issues in the proceedings.
15 Although it may be accepted that the plaintiff's present case is limited to publication within Australia, it must be recognised that the pleading was framed without the information of which discovery is now sought. The plaintiff unsuccessfully risked pleading claims based on publication outside Australia without the information sufficient to enable provision of particulars of facts and matters in support. As is plain from Oswin and Kaiser it was open to him to have sought discovery before pleading these claims. Had he obtained discovery earlier he may have been able to plead these claims with the necessary particulars and thereby avoided the present situation. It would be unjust to deny him the opportunity to so plead, even at this stage, by refusing this application. In my opinion it would be contrary to the interests of justice to perpetuate the plaintiff's predicament particularly in circumstances where the truth lies with the defendant, and there is the likelihood that the matters complained of were published outside Australia, and there is no evidence of prejudice to the defendant from discovery at this stage of the proceedings.
16 As is usual it will be open to the plaintiff to seek leave to further amend the statement of claim having regard to the information obtained, and the defendant will have the opportunity to oppose the application. If the pleading is properly amended by the inclusion of claims in respect of publication in places outside Australia it will be open to the defendant to raise, and rely on, any benefit it may seek to say flows from applicable foreign law. (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, para 36; Lazarus v Deutche Lufthansa AG (1985) 1 NSWLR 188, p 190). If it chooses not to do so the ordinary rule would apply, namely, that the law elsewhere would be presumed to be the same as the lex fori (Meckiff v Simpson (1968) VR 62, p 64).
17 In the circumstances and for the purpose of deciding this application it is unnecessary to determine the questions raised in the defendant's submissions as to the relevance of the circulation and distribution of the matters complained of in places outside Australia to the assessment of damages for their publication in New South Wales, and as to the scope of the application of the principle stated in Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 by Hunt, J p 184F that "… the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere".