This is an application by each of the plaintiff and defendant in these proceedings for further and better discovery of documentation which each party asserts is relevant to the categories of discovery in these proceedings.
[2]
The matter complained of and the pleadings
The plaintiff by statement of claim as amended on 22 April 2020 brings proceedings for defamation for statements made by the defendant in the course of a television interview of the defendant by Graham Richardson on Sky News on 29 January 2019. In the course of that interview, he was asked about the circumstances in which he had unfairly dismissed staff and, specifically, whether he had sacked up to 11 people in the three years just past. The defendant replied:
"No, well - there's five perhaps that I dismissed for breach of trust; there were four that were on probation or casual and I let them go after I completed the project I had set for them; the others were - er - um resignations...so whoever said that, that's a fallacy and as you state, I certainly must have some enemies somewhere".
It can be seen from the above that the plaintiff was not named. This would require a careful particularisation of the persons who identified the plaintiff and the basis upon which he was identified, together with the relevant names and addresses.
KELLY v BURSTON [2021] NSWDC 793 | Case summary | Zoe
There are additional problems. The imputations in the statement of claim are not well drafted. In addition, the alternate true innuendo basis for imputations has not been properly pleaded. What the plaintiff has here is a group libel, where the plaintiff is one of a class of persons who could be one of the five who were dismissed for breach of trust. There is the question of whether that meaning would arise, or is capable of arising, by reason of some knowledge of the extrinsic facts known to a class of persons that he was one of the five. This has not been pleaded.
The requirement where a plaintiff is not named to identify names and addresses is set out in Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 at 192. In the present case, it is more than usually apposite. There are references in the pleading to "co-workers" being able to identify the plaintiff in relation to both sets of imputations, but that is insufficient for the purpose of identification.
There are also problems with the defence. For example, the defence of justification pleaded at paragraph 46 sets out general facts in relation to the imputations as a rolled-up whole (given the problems with the imputations as pleaded, that is not a difficulty in terms of this application). It is then stated that the plaintiff's employment was terminated for breach of trust in the circumstances set out in the defendant's letter of 7 March 2018, the contents of which are then recited. The particulars of breach of trust for the plaintiff and the other four persons whose services were terminated for breach of trust are then set out. In terms of discovery, this is the case that Mr Kelly has to meet.
A defence of qualified privilege has also been pleaded pursuant to s 30 of the uniform legislation (paragraph 47), as has the extended common law qualified privilege available under Lange v ABC (1997) 189 CLR 520. A defence of honest opinion is also set out. This is relevant from a discovery point of view, because these defences must be answered by a Reply particularising malice, which has not occurred. The factual matters set out in the Reply (which appear to be attacks on the defendant) do not warrant further and better discovery.
Unfortunately, the parties have not raised any of these matters with each other and, instead, have proceeded to seek further and better discovery, which is why they are before the Court today. The same disorganisation of thought and presentation which can be seen from their correspondence and pleadings is evident in the discovery process as well. These are hard words but this has been an enormously difficult case for me to determine just what the parties were complaining about and why. Most of the categories of documents that were proposed are not merely unrelated to the proceedings but also so broad as to be oppressive.
In addition, the parties provided their discovery documents to the Court, which they should not have done, as these include a series of Calderbank offers and submissions on collusion, the relevance of which is uncertain to the application before me. The parties took it upon themselves to send copies of all of the discovery documents and correspondence to the Court without leave. The plaintiff sent a spreadsheet which was so large it could not be opened or printed.
[3]
The documents the parties seek
Contrary to District Court Defamation List Practice Note 6, neither party provided an outline of submissions, or even a simple list of what they wanted. It took me many hours to make the list that I did make, and I can only hope that it is correct.
The documents the plaintiff seeks are as follows:
1. Correspondence for which the claims of legal professional privilege have been made. The defendant provided a schedule from which it is self-evident that legal professional privilege was conflated with qualifying privilege. I have directed in my orders that the defendant provide copies of documents which are not letters to and from solicitors for which legal professional privilege can be claimed.
2. Correspondence between the defendant and Comcare "where the plaintiff's name is mentioned" between 1 November 2016 and 1 February 2021. The relevance of the documentation is unspecified but even if there was an explanation, such an enormously broad category is clearly a fishing exercise.
3. Correspondence between the defendant and the Federal Department of Finance for the same five year period. I note the defendant says he has no documents or any records from the Department of Finance.
4. "Any documents (including hard copy, electronic, file notes, et cetera) relating to the plaintiff regardless of addressee held by the defendant for the same period". It would be hard to imagine a more oppressive request.
5. Documents the plaintiff has seen used in other proceedings which were published by Mr Burston and contained defamatory statements about him. It is not necessary to dwell upon the difficulties caused by such a request but its lack of relevance to the issue before the Court in the pleadings is clear.
6. Correspondence between the defendant and the Newcastle Herald. The defendant says he has no documents and that the information was provided orally to a journalist from the newspaper. Mr Kelly says that there is a reference to documents being shown to the journalist in the newspaper article. Mr Kelly has not discovered the newspaper article, a surprising omission, and he does not have a copy to provide me in Court. What will have to happen is at some later stage this will have to be attended to, but I do not proposed to make any further orders in relation to that for the time being.
This brings me to the defendant's request for further and better discovery, where the defendant seeks the following documents:
1. Fair Work Commission documents arising from the claim submitted on 17 January 2018 by the plaintiff to the Fair Work Commission including the deed of settlement. The plaintiff has agreed to provide these documents.
2. "All documents relating to the alleged defamation". Again, it would be hard to imagine a more oppressive request for documentation.
3. "Uninterrupted text and email stream between the plaintiff and former staffers [a list of six names then appear]".
4. "Uninterrupted text and email stream between the plaintiff and Senator Pauline Hanson, James Ashby and personal and electoral staff of Senator Hanson". Again, this is a grossly oppressive request and its relevance to the issues in this case is unexplained.
5. Copies of the plaintiff's PhD qualifications, undergraduate degree, and thesis for his PhD. The plaintiff has agreed to provide these.
[4]
THE RELEVANT PRINCIPLES OF LAW
UCPR r 21.2 provides:
"21.2 Order for discovery
(1) The court may order that party B must give discovery to party A of
(a) documents within a class or classes specified in the order, or
(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.
(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.
(3) Subject to subrule (2), a class of documents may be specified
(a) by relevance to one or more facts in issue, or
(b) by description of the nature of the documents and the period within which they were brought into existence, or
(c) in such other manner as the court considers appropriate in the circumstances.
(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue."
Where a party has provided discovery in the form of a list of documents, even where that list is informally prepared and not verified, as is the case here, the Court generally regards such a list as conclusive and an order for further and better discovery will not be made unless the applicant not merely specifies the document or class of documents but can establish reasonable grounds for believing that the documents were or had been in the opponent's possession and were relevant.
Reasonable grounds may be demonstrated where there is an admission that the document is in the possession of the party, or where the existence of a document is indicated by an additional document, but there must still be a relevant connection with the case as pleaded and particularised.
It is important to draw to the attention of the parties that orders for discovery are made in accordance with categories and that an order for general discovery is not available. The definition of a relevant document is set out in UCPR r 21.1(2) and it is regrettable that this definition was not consulted by either party. The purpose of these rules is not to expand but to limit the extent of discovery. Generally speaking, the provision of further documents will be circumstances which have been described as "exceptional": Fruehauf Finance Corporation Pty Ltd v Zurich Australia Insurance Ltd (1990) 20 NSWLR 359 at 360; Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200. There is a helpful explanation of the requisite connection between the documents sought and the facts in issue in the judgment of Ward CJ in Equity in Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840 at 39:
"As to the principles applicable in relation to an application for discovery, r 21.2(4) of the UCPR requires that the documents sought must be relevant to a fact in issue (see also r 21.1(2) of the UCPR). In Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326, Brereton J, as his Honour then was, said (at [21]-[22]):
21. Aside from necessity, the touchstone for discovery is relevance to a fact in issue in the proceedings. UCPR r 21.2(2) provides that a class of documents must not be specified in more general terms than the Court considers to be justified in the circumstances, and UCPR r 21.2(4) provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.
…
22. Thus, while r 21.2(1) permits classes of documents to be specified, not only by relevance to one or more facts in issue, but alternatively by description of the nature of the documents and the period within which they were brought into existence or in such other manner as the Court considers appropriate in the circumstances, nonetheless discovery cannot be ordered except in respect of documents that are relevant to a fact in issue. This means that it must always be possible to show a connection between the class and a fact in issue, and where a class is specified in some other manner than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are relevant to a fact in issue. For this reason, it is highly preferable that classes be specified by relevance to a fact in issue - unless it is self-evident that the class is a sub-class of documents that relate to a fact in issue."
[5]
APPLICATION OF THESE PRINCIPLES TO THESE PROCEEDINGS
In factual terms, this is a very simple case. The defendant said that he sacked five of his employees for breach of trust. He did not name the plaintiff and the plaintiff needs to establish that he was identifiable in the matter complained of. The defendant has set out in his particulars of justification the letter of dismissal was sent as well as providing other particulars in relation to the remaining four persons who were discharged for breach of trust. These are issues to which the Fair Work Commission documents arguably go, and that was one of the reasons why I made the order that I did in that regard, although I note Mr Kelly effectively conceded the relevance of this material.
However, apart from provision of those documents and the very few documents that I have listed in the orders, the vast array of material sought by the plaintiff and the defendant in the course of their 20 or 30 emails with a total of annexures in excess of 500 pages relates to irrelevant and unrelated issues, as correspondence with Senator Pauline Hanson and government departments over a lengthy period. This vast array of documents has nothing to do with the issues that will come before the Court in relation to the plaintiff's claim for defamation in relation to the statement made (assuming identification is proved) by the defendant that he sacked the plaintiff for breach of trust. Neither party is entitled to use these proceedings as a fishing expedition to obtain material on discovery. The limited use to which discovery documents can be put is the establishment of the disputed issues of fact in this litigation.
I will add a final matter, and that is that I have drawn the attention of the parties to the statement made by Bell P in Duraisamy v Sydney Trains [2019] NSWCA 269 which was read out by me in open Court as it was, unfortunately, relevant to more than one of the applications before me this morning:
"25 I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):
"the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.""
It is not the obligation of this Court to settle pleadings, give legal advice or otherwise assist one, the other, or both of litigants who come before this Court for the purpose of bringing or defending complex actions such as defamation. These are obligations which the parties must discharge for themselves. There is no mystery to the discovery procedure; there is a section in the Civil Trials Bench Book, which is available to members of the public, describing discovery generally, and there is plenty of material online to explain what the obligations of the parties are.
The orders that I have made today may hopefully resolve the discovery issue, but I imagine that there will be many other problems in this litigation. It is for this reason that I drew the parties' attention to the issue of pleading problems in the pleadings to date. This matter is certainly not ready to take a hearing date until some of these issues have been resolved, but the matter cannot continue to progress in this way. The parties cannot continue to expect the Court to read their correspondence and endeavour to search through that correspondence for what the issues are, as opposed to complying with Practice Note 6, which requires an outline of submissions to be provided and a list of relevant material or authorities. It is to be hoped that this judgment, which I have handed down for the purpose of assisting the parties, will encourage them to take a more proactive view of their litigation obligations.
I have not made any orders for the parties to stop writing to me, but I should indicate that if there are further letters that are sent to the Court in this fashion, I will have to give consideration as to whether appropriate orders may need to be made, conformably with the difficulties outlined by the Court of Appeal in Gerard Michael McGuirk v The University of New South Wales [2010] NSWCA 104.
[6]
Orders:
1. The defendant is to provide the following in answer to the plaintiff's request for further and better discovery:
1. Correspondence for which claimed of privilege have been made where the correspondence is not from a solicitor is to be provided in 7 days.
1. The plaintiff is to provide the following in answer to the defendant's request for further and better discovery:
1. The Fair Work Commission documents arising from the claim plaintiff submitted on 17 January 2018, including the deed of settlement.
2. Copy of the plaintiff's PhD qualification, undergraduate degree and PhD thesis.
1. The parties are to provide copies to each other (but not to the Court) of these documents 14 days from today.
2. Matter stood over to the Defamation List for further directions Thursday 13 May 2021 at 9am.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 June 2022