Langley v Age Company Ltd [2001] VSC 370

Supreme Court of Victoria|2001-10-03|Before: Gillard J

DEFAMATION - interrogatories for examination of defendant corporation - principles - objection disallowed that corporation could not answer because has no mind - newspaper rule - further answers ordered.

The return of a summons filed by the plaintiff in a defamation proceeding, seeking further and better answers to interrogatories delivered by him for the examination of the defendant.

The plaintiff, Timothy Langley ("Reverend Langley"), was, at all relevant times, an ordained Minister of the Uniting Church and occupied senior positions in the Wesley Central Parish Mission.

The defendant, The Age Company Limited ("The Age"), is and was, at all material times, the publisher of "The Age" newspaper, which is circulated throughout this State and the other States and Territories of Australia.

In addition to the parties, there are two persons who played a significant role in the circumstances of the alleged defamatory publications. The first, Reverend Leonie Purcival ("Reverend Purcival"), was, at all material times, a Uniting Church Minister. At all relevant times, she was not an employee or agent of The Age. The other person is Mr Peter Ellingsen ("Mr Ellingsen"), who is and was, at all relevant times, a journalist employed by The Age.

On 12 July 2000, The Age published an article on p.8 of its Education pages headed - "Working for God, Not Mammon". The article was written by the Reverend Purcival. The article covered some five columns of the paper, and was critical of Reverend Langley.

On 27 July 2000, The Age published another article concerning the Reverend Langley, written by Mr Ellingsen and headed "Wesley broke rules on pay: Church official".

On 14 July 2000, the Reverend Langley issued a proceeding in the Major Torts List against The Age, claiming damages for defamation in respect of the article published on 12 July 2000. Subsequently, the plaintiff successfully applied to amend his statement of claim and pleaded a further cause of action, namely, defamation arising out of the publication of the article on 27 July 2000.

The plaintiff was granted leave to further amend his statement of claim, which was done on 30 March 2001.

The Age delivered its defence to the further amended statement of claim on 19 April 2001.

It is necessary to identify the issues raised by the pleadings.

In respect of the first article written by the Reverend Purcival, the Reverend Langley has pleaded that the article was defamatory of him in its ordinary and natural meaning and pleaded a number of false innuendos. He alleged that he has suffered loss and damage by reason of the publication and has sought aggravated and/or exemplary damages, and given particulars of same.

The Age, in addition to putting Reverend Langley to his proof in respect of formal matters, admitted the publication, denied that the article in its ordinary meaning was defamatory of the plaintiff, and denied that he suffered damage or that he is entitled to an award of aggravated or exemplary damages. The Age pleaded a common law fair comment defence, a common law qualified privilege defence and the extended common law qualified privilege defence based upon the assertion that the article constituted a discussion on matters of government, political matters and of public affairs.

The Age alleged a Polly Peck defence and asserted two innuendos, which it pleaded were true in substance and in fact.

As the plaintiff, Reverend Langley, pleaded publication in the other States and Territories of Australia, The Age has pleaded the statutory defences in respect of publications in New South Wales, Queensland, Tasmania and Western Australia.

With respect to the second publication written by Mr Ellingsen, the same defences are pleaded, excluding the Polly Peck defence. In his reply, the Reverend Langley has pleaded, inter alia, actual malice in answer to the fair comment and qualified privilege defences. In respect of the extended qualified privilege defence, the Reverend Langley pleads in his reply, inter alia, that the defendant "published the first and second articles without an honest belief in the truth of the imputations conveyed thereby, alternatively, did not care whether the imputations conveyed thereby were true or false", and that in publishing the articles, The Age was actuated by express malice.

It is clear from the pleadings, that express malice is in issue in respect of the defences of fair comment, the two qualified privilege defences and some of the statutory defences applicable in the other States. In addition, it is asserted by the Reverend Langley, in respect of his claim for aggravated and/or exemplary damages, that "The defendant published the first article with reckless indifference to the truth or otherwise of the imputations conveyed thereby". He also pleads the same assertion in respect of the second article.

The plaintiff's solicitors delivered interrogatories for the examination of The Age.

The Age, the defendant, is a corporation. On 21 June 2001, Bruce McBain, the company secretary of The Age, swore answers, on behalf of the defendant, to the plaintiff's interrogatories. He swore -

"I am authorised by the defendant to make this affidavit on its behalf. I do so having made all due and proper enquiries of the servants and agents of the defendant."

The plaintiff's advisers were dissatisfied with some of the answers, and a protracted correspondence took place between the legal representatives, culminating in the plaintiff's solicitors filing a summons for further and better answers to a number of interrogatories.

In the meantime, as a result of the protracted debate in the correspondence passing between the legal representatives, The Age, through Mr McBain, swore further answers to some of the interrogatories on 22 August 2001. The further answers make the point that The Age is a corporation, a fictitious legal person, and accordingly, has no state of mind. Some of the interrogatories did seek to ascertain the state of mind of The Age at the time of publication, and these further answers object to answering interrogatories because the defendant is a corporation without a mind.

The Judicature Act Rules empowered a court to grant leave to a party to apply for an order permitting him to deliver interrogatories to a corporation, where the corporation was a party to the proceeding. The old Rules provided that the order would be directed to any member or officer of the corporation and for the purposes of answering the interrogatories, that officer or member became the representative or alter ego of the corporation.

The Rules of Court, over the years, have been amended from time to time, and the stage was reached when an opposing party to a corporation litigant was entitled to deliver interrogatories as a right, and the Rules provided that the answers to interrogatories were to be made "by the secretary or other proper officer of such corporation, company or body." See Order 36 Rule 5 of the Rules of 1985. Prior to answering interrogatories, the proper officer was obliged to enquire of all employees and agents of the corporation who had knowledge of the matters enquired after by the interrogatory. The officer was bound to answer in respect of his own knowledge, acquired in the course of his employment, and as a result of enquiries made by him of other employees and agents of the corporation in respect of their knowledge, acquired during the course of their employment or engagement. The officer was not bound to answer in respect of his own knowledge or to make enquiries of other employees or agents with respect to their knowledge, which was acquired accidentally or not in the course of their employment or engagement. See Welsbach Incandescent Gas Lighting Co v New Sunlight Incandescent Co (1900) 2 Ch 1.

The proper officer gathered the information from the employees and agents and was bound to carefully weigh all the information available to him, with respect to the matters enquired after, and to form a belief, if possible, to enable him to answer the interrogatory. See Commercial Bank of Australia Ltd v Whinfield [1920] VicLawRp 51; (1920) VLR 225.

The answer of the officer becomes the answer of the corporation, and can be used as an admission which binds the corporation litigant. See Chaddock v British South Africa Co (1896) 2 QB 153.

However, the officer was not obliged to swear as to the truth of information supplied to him by employees or agents of the corporation, which he did not believe. In other words, it was open to him to state in answer to the interrogatory, that after making all due and proper enquiries of the employees and agents of the corporation, and having carefully weighed the information obtained, he was not in a position to provide an answer to the interrogatory because he did not accept the truth of the information given. See Gilchrist v R. Wallace Mitchell Pty Ltd [1972] VicRp 52; (1972) VR 481 at 483.

The principles were summarised by Lush J in the Gilchrist case, supra, at p.483, where His Honour stated -

"The first is that a party or the deponent answering in the case of a corporation for the party must answer to the best of his knowledge, information and belief after making of enquiries of his or its servants. I am not concerned here with questions of the time and scope of the employment. The second is that a party cannot be compelled to admit a fact which he does not believe to be true or a fact in the truth of which he has no belief. I have no authority for this, but the law cannot be otherwise. The third principle, closely related in this context to the second, is that a deponent cannot be required to swear that he has a belief in the truth of information when he has not. ... The deponent must answer after considering the information supplied by the plaintiff and the second defendant. If he has a belief based on this information there is no reason why he should not state it and he must state it. But if he has none, then he is not obliged to say that he has. I do not think that he is obliged to act on the basis that, the information which he has from these two parties being the only information he has, he must find the truth within it. I think he is entitled to answer on the basis that he believes none of it. Whatever his answers, they are given on oath. It is to be remembered that it is the deponent's statement of belief in fact which constitutes the admission of the fact and that in modern practice a statement of the information available to the deponent need not and should not be stated in the answer. That it is the statement of belief which constitutes the admission appears from Shannon v Whiting (1900) 26 VLR 392." (Emphases added).

What His Honour said was quoted with approval by Gibbs J in Sharpe v Smail (1975) 49 ALJR 130 at 132. His Honour then went on to say -

"In my judgment this reasoning of Lush J is logically compelling and I regard it as correct. But the limits of the principles which he stated should be understood. Belief is not the same as knowledge and a party cannot truthfully swear that he has no belief based on information in his possession simply because he does not know that the information is true. Although he is not bound to say that he believes what he does not, he is not entitled to treat any information that he may receive with baseless suspicion, refusing to entertain belief unless it has ripened into certain knowledge. . He cannot by refusing to believe information when there is no reason to doubt its truth escape from his obligation to answer to the best of his knowledge, information and belief. Moreover, the fact that information comes from a suspect source will not always be enough to render it worthy of disbelief; for example, it may be supported by other credible material." (Emphasis added).

When the Rules of Court were revised and made in 1986, the Rules identified the sources from which a party should acquire knowledge and information in order to answer the interrogatories. Rule 30.05 identified the sources. The sub-rule codified, to some extent, the principles which had been applied in the past, although to some extent, it did change the previous position. The sub-rule is now Rule 30.05 of the 1996 Rules of Court, and it is to those Rules that one must first go, in order to determine the obligations which rest upon a corporation in answering interrogatories.

The Rules of Court now provide the following regime that must be followed when a corporation party is interrogated -

(i) The interrogatories must be answered by an officer of the corporation or by any other person duly authorised by it to answer - see Rule 30.01(1)(a)(iii).

The Court has power to direct any other person to answer the interrogatories.

(ii) The person who answers the interrogatories on behalf of the corporation is deemed, for the purposes of answering the interrogatories, to be the party to the litigation.

(iii) The person must answer from his own knowledge, and if he does not have any knowledge, from any belief that he has as to the particular fact or matter.

(iv) If the deponent does not have any knowledge himself, he is obliged to make all reasonable enquiries of the corporation's employees or agents, to obtain relevant knowledge acquired by the person in the course of his employment or agency. This obligation to make enquiries continues even though the person having the relevant knowledge has ceased to be the employee or agent of the corporation.

(v) The deponent may not have any belief because he has no information on which to form a belief or because he has no belief, even though he has relevant information but does not accept that the information is true; but he must have reasonable cause for having no belief that the information is true.

(vi) The deponent must answer from belief, irrespective of the source of the information on which the belief is formed, subject to the exception where the information was obtained in a privileged communication. This obligation changes the law. Formerly, the information had to come from an employee or agent of the corporation who obtained the information in the course of the employment or engagement - see Hawkes v Schubach [1953] VicLawRp 64; (1953) VLR 468, Adams v Dickeson [1974] VicRp 10; (1974) VR 77 at 81, and Smith Kline and French Laboratories Ltd v Intercontinental Pharmaceuticals [1969] HCA 34; (1969) 43 ALJR 308 at 310.

Hence, the deponent may have information which has been obtained from an employee or agent of the corporation or indeed, information that he has got from another source outside his employment but, nevertheless, is obliged to consider that information and form a belief, subject of course to not accepting the information as true.

(vii) The deponent is obliged to answer each interrogatory specifically, by answering the substance of it without evasion, and if he objects to answering an interrogatory, shall briefly state the ground of objection and the facts, if any, upon which it is based.

See Rules 30.05 and 30.06.

Rule 30.07 obliges the party to answer each interrogatory, but the deponent may object on grounds specified in the sub-rule. It is noted that an interrogatory may be objected to on the ground that it does not relate to any question in the proceeding, where the sole purpose of the interrogatory is to impeach the credit of the other party, or which enables the interrogating party to ascertain whether he has some claim or defence other than that which is raised in the proceeding, or to enable the interrogating party to ascertain the evidence by which the other party intends to prove the case, including the identity of witnesses.

Finally, it is important to emphasise that if an answer to an interrogatory is given on the basis of belief, the weight that should be attached to that answer, if admitted into evidence, is a matter for the tribunal of fact. See Rule 30.11(3). It follows that although there is an obligation on the deponent to answer on the basis of his belief formed after gathering all information, it would be open, at trial, to the party to adduce evidence relevant to the weight that should be attached to the admission.

With those principles in mind, I now turn to the interrogatories and the answers given and objections made.

A. Interrogatories 2, 3, 13 and 14 and Answers Thereto.

These four interrogatories and the answers thereto raise the same issues for consideration.

"2. State whether at the time of publication of the first article you intended that the first article should mean or be understood to mean by persons to whom the same was published:"

and immediately following the introductory words, the plaintiff set out the false innuendos pleaded in his statement of claim.

"3. At the time of publication of the first article, state whether you:

and the plaintiff then set out the false innuendos in his amended statement of claim.

Interrogatories 13 and 14 asked the same questions in respect of the innuendos pleaded in relation to the second article.

Each interrogatory seeks to determine the state of mind, knowledge or belief of the defendant at the time of each publication.

The first question for consideration is whether the state of mind, knowledge and belief of the defendant publisher, at the relevant time, is relevant to any issue in the proceeding?

It is put on behalf of the Reverend Langley that the state of mind, knowledge and belief of the publisher is relevant to the government and political matters qualified privilege defence, the defence of fair comment and express malice in answer to the qualified privilege and fair comment defences. Arguably, the matters are also relevant to the question of aggravated and/or exemplary damages, as Reverend Langley has pleaded, inter alia, that The Age published both articles "with reckless indifference to the truth or otherwise of the imputations conveyed thereby."

The case establishing the government and political matters qualified privilege defence, Lange v Australian Broadcasting Corporation (1997) 198 CLR 520, was a ground breaking judgment, in that it did extend the reach of the common law defence of qualified privilege. The Court held that the defendant had the onus of proving the elements of the new qualified privilege defence, and one of the requirements that had to be proven was that the defendant was acting reasonably in publishing the material. The requirement of reasonableness was to be satisfied "as a general rule" when the defendant publisher "had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the material to be untrue" - supra at p.835. In addition, the Court also required the publisher to prove that response was sought from the person defamed, unless, in the circumstances, it was not practicable or unnecessary. It is clear that The Age, in raising this defence, puts very much in issue, its conduct, and, in particular, its state of mind, knowledge and belief with respect to the truthfulness of the imputations.

Further, the defence of fair comment, at common law, is defeated if it is established that the publisher did not honestly hold the opinion expressed. There is no doubt that whether or not the publisher intended to convey an imputation, is a matter relevant to the question of whether the publisher honestly believed what was published and whether it acted reasonably. I did not understand Mr Wheelahan of Counsel, who appeared for The Age, to disagree with any of the observations I have made.

In its answers sworn by Mr McBain on 21 June 2001, the same objection was taken to answering the said interrogatories. The objection was expressed in the following terms -

"The defendant objects to answering this interrogatory on the grounds that it is irrelevant and oppressive and is prefaced on the assumption that the first (second) article gives rise to the imputations pleaded by the plaintiff, which is denied by the defendant."

As a result of the correspondence between the legal representatives, The Age, through Mr McBain, swore further answers to these interrogatories and raised a different objection.

The new objection is expressed in the following terms -

"The defendant objects to answering this interrogatory on the grounds that it does not relate to a question between the plaintiff and the defendant and is oppressive in that -

(a) the defendant is a corporation and therefore is a fictitious legal person. As such the defendant has no state of mind which can be the subject of enquiry by interrogatory."

The same objection taken in the first set of answers is repeated, namely, that the defendant does not accept the imputations which have been pleaded.

Mr Wheelahan submitted that the interrogatories enquire of the state of mind of a corporation and because it is an inanimate body, it could have no mind and hence, a question could not be directed to its mind. The state of mind of a corporation is a fiction and hence, is not ascertainable except by considering the thoughts and mind of a number of individuals. Mr Wheelahan submitted that it would have been proper to interrogate particular identified persons within the corporation, and that their answers could have been placed before the tribunal of fact as the primary facts upon which to conclude what the state of mind of the corporation was, at the relevant time. He referred to a number of authorities in support of his submission.

He did accept that the state of mind of a corporation was a question of fact, and that a corporation could have a state of mind in respect of certain matters. He also accepted that the state of mind of those responsible for the publication was relevant to the issues in the case.

During my time at the Bar, the interrogatories enquiring as to the state of mind of the publisher, the knowledge and belief of the publisher, including corporate publishers, were common place and invariably answered, where the issue of malice was raised or where the reasonableness of the conduct of the publisher was raised pursuant to some statutory defence. The interrogatories were invariably in the form employed in the present case.

Further, in the case of Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474, an issue arose in the trial as to the tendering of an interrogatory and the answer which related to the state of mind of the corporation.

Hunt J, a judge very experienced in the law of defamation and the foremost authority in the field of defamation in this country, was concerned with the admission of the answer into evidence and what use could be made of it. The Court was not concerned with whether the interrogatory was a proper one. His Honour said at p.488 -

"The question which now arises whether an interrogatory directed to the company as to its state of mind produces evidence of the state of mind of the servant or agent in fact responsible for the relevant act. The officer of a corporation who answers interrogatories on behalf of that corporation has a duty to make proper enquiries of that corporation's servants and agents who have personal knowledge of the facts in issue: (Authorities referred to). The answer then constitutes an admission against the corporation. (Authorities referred to.) The plaintiff says that the statement by the company in answer to the interrogatories that it had no belief as to the truth of the statements in the matter complained of is thus probative of the fact that the relevant servant or agent of the defendant responsible for the heading and the cartoon did not honestly hold whatever opinion they conveyed."

His Honour admitted the interrogatory and answer into evidence.

Although what His Honour was concerned with was not the issue whether the interrogatories should have been answered, the fact that it was, and that no observation was made that it was an improper interrogatory, tends to the conclusion that it is a proper interrogatory which should be answered by a corporation. I take notice of the fact that His Honour presided over a very active defamation list and encouraged interlocutory applications in respect of a myriad of matters. If the interrogatory was objectionable, one would expect His Honour to have said so.

What His Honour said was expressly approved by the Privy Council in Lloyd v David Syme & Co (1986) AC 350 at 365. In that case, the only defendant was the proprietor of The Age, a corporation. The defendant corporation did answer an interrogatory which asked the question whether it intended to convey any of the four imputations pleaded by the plaintiff when it published the matter complained of. The corporation denied that it did intend to convey the imputations. The question for consideration in the case was whether that answer amounted to an admission that the author of the article did not have the opinion represented by the comment.

"It is clear enough that a person who states that he did not intend to convey a particular defamatory imputation cannot reasonably be taken to have held the opinion represented by that imputation. That was the view rightly taken by Hunt J in Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474, 486. But the defendant argues that the answer to interrogatory 5A is indicative only of its own state of mind, not that of Mr Thorpe. In Bickel v John Fairfax & Sons Ltd Hunt J dealt with a similar argument concerned with admissibility in evidence of an answer by the defendant corporation, where the state of mind of its servant or agent was in issue, to an interrogatory which disclosed that it had no belief as to the truth of the statements in the matter complained of. He held the answer to be admissible on the ground, at p.488, that the officer of a corporation who answers interrogatories on its behalf has the duty to make proper enquiries of the corporation's servants and agents who have personal knowledge of the facts in issue, and that the answer then constitutes an admission against the corporation. He accepted the plaintiff's argument that the statement by the company in answer to the interrogatory that it had no belief as to the truth of the statements in the matter complained of was thus probative of the fact that the relevant servant or agent of the defendant responsible for the matter did not honestly hold whatever opinion they conveyed. Their Lordships agreed with this reasoning. The corporation as such can have no opinions, because it has no mind. But there can be attributed to it the opinion of its servant or agent. Here the relevant servant or agent of the defendant was Mr Thorpe, and the opinion of the defendant in the circumstances can only be that of Mr Thorpe. By stating that it did not intend to convey the imputations alleged the defendant must necessarily be taken to be saying that Mr Thorpe did not intend to do so. The position might be different if the defendant was the natural person having a mind of his own. Their Lordships therefore rejected the defendant's argument." (Emphases added).

Again, the issue before the Privy Council is different to the present issue, but again, the fact that the Privy Council did not query the interrogatory or the answer and further, held that the mind of the employee or agent can be attributed to the corporation, supports the conclusion that the interrogatories in the present matter are proper and should be answered.

Further, it is observed that the interrogatory was answered by an authorised person of the corporation defendant, who made all enquiries before answering it. The interrogatory was not directed to ascertaining the state of mind of an identified employee or agent. Indeed, that was also the position in the Bickel case, and this supports the view that the interrogatory can be directed to a corporation without referring to a particular individual, who may have been involved in the publication.

Further, there is another authority of Hunt J which is contrary to Mr Wheelahan's submissions. In Casey v The ABC (1981) 1 NSWLR 305, Hunt J, at p.308, said -

"Although a defendant may (on the issue of malice) be interrogated as to whether he intended to refer to the plaintiff and whether he intended to convey particular imputations concerning the plaintiff (Norton v Hoare (No. 2)) [1913] HCA 58; (1913) 17 CLR 348 at p.352; Hewitt v West Australian Newspapers Ltd (Blackburn J), 15 April 1976); Erwin v Southdown Press [1976] VicRp 31; (1976) VR 353 at p.355; Hewitt v Mirror Newspapers Ltd (Blackburn CJ), 12 June 1980), he cannot be asked to admit that the matter complained of was in fact understood as referring to the plaintiff or, by parity of reasoning, that the matter complained of was in fact understood as conveying those imputations."

Whilst His Honour was not referring to a corporation, nevertheless, his observations make it clear that the interrogatories in the present proceeding are relevant to issues in the case.

In Erwin v Southdown Press [1976] VicRp 31; (1976) VR 353, Menhennitt J held that interrogatories which asked whether the words in the article complained of were intended by the defendants to refer to the plaintiff, were proper interrogatories. His Honour exhaustively considered all the relevant cases. In particular, he refused to follow Heaton v Goldney (1910) 1 KB 754, a case which was relied upon by Mr Wheelahan. Whilst it is not possible to say whether both defendants in that proceeding were corporations, it would appear that the first defendant was a corporation, and no point was taken on its behalf that it was unable to answer the interrogatory on the ground that it did not have a mind of its own.

Mr Wheelahan submitted that a corporation could not have a mind of its own and therefore, could not be asked the question as to its state of mind, knowledge or belief at the time of publication.

He referred to a number of authorities which he submitted supported his submission.

I have difficulty with his submission. There is no doubt that a corporation does not have a mind, but a corporation, being a legal entity, acts through its employees and agents. The state of mind, knowledge and belief of certain employees and agents, responsible for the acts and omissions of a corporation in respect of a certain matter, constitute the mind of the corporation with respect to its conduct. When an interrogatory is directed to a corporation, its authorised officer is bound to make enquiries and is bound to answer the interrogatory based upon his own knowledge and his belief, based upon information that he has obtained. He must make an assessment of the information obtained, and if he is the person who does not have the necessary knowledge, he must form a belief as to whether or not the fact exists or does not exist. He must, when answering the interrogatory, state his own knowledge and his own belief based on the information he has gathered. It is his knowledge and his belief which becomes that of the corporation, and he must answer the interrogatory accordingly.

The state of mind of a corporation is a question of fact. Mr Wheelahan submitted that the proper officer would have to make his assessment of the information obtained and his own knowledge before he can answer, and this puts the officer in a difficult position. In certain circumstances, it may put the officer in a difficult position, but that is no answer to his obligation to answer the interrogatory on behalf of the corporation. He must make an assessment, before he answers, as to his state of belief, but he must state his belief.

Based upon the principles governing the answering of interrogatories by a corporation and the authorities I have referred to above, it appears to me that it is no answer, for a corporation, to its obligation to answer an interrogatory concerning its mind or conduct, that it does not have a mind which can be the subject of an answer. Further, in addition to the basic principles which have been established by the authorities, there is also the specific sub-rule in the present Rules which deems the person who answers the interrogatories, on behalf of the corporation, as a party to the proceeding. See Rule 30.05(1)(g). This means that it is the state of mind of that person which becomes the state of mind of the corporation. The state of mind of the deponent is that based upon his own knowledge and his belief, formed from information gathered after making all due and proper enquiries of the employees and agents of the corporation.

Mr Wheelahan referred to a number of authorities which, he submitted, supported his propositions.

Mr Wheelahan relied upon the decision of Street J in the case of Tooth & Co Ltd v Lane Cove Municipal Council (No. 4) (1968) 2 NSWR 17. In that case, the plaintiff sought to interrogate the defendant in respect of the issue concerning the decision of a body corporate, namely, a local council. His Honour held that where a decision of a corporate body is challenged, interrogatories will not be allowed directed to the state of its mind at the time of the decision, for the reason that it did not have a mind. His Honour dealt with an interrogatory in these terms -

"What factors did the defendant take into account in defining the local area in respect to which the said local rate was paid and levied?"

"I am of the view that the interrogatory should not be allowed. It is directed in its terms to ascertaining what may have been a particular mental process on the part of the defendant. The defendant, being a municipal corporation, has itself no mind. ... Where, however, the suit concerns the act of a municipal corporation it appears to me to be unreal to direct to that corporation an interrogatory upon what matters were present in its mind in relation to a particular event. The inference is drawn and conclusions reached by courts upon purpose, intention or opinion on the part of municipal corporations are drawn and reached as a result of evidence of objective facts. But the fact that in those cases decisions are made that a municipal corporation had a particular mental state does not travel to the extent of raising the fiction that the corporation has in truth and mind, the processes of which can be examined through medium of interrogatories, as is the case with a personal party."

His Honour went on to note that the interrogatory was directed to the company and was not directed to determining the mind of an officer of the corporation, acting in the course of his duties, who formed a certain intention, which became the intention of the corporation. He distinguished the case of Duke of Sutherland v British Dominions Land Settlement Corporation (1926) 1 Ch 746, which held that an interrogatory, directed to a company and aimed at ascertaining the purposes of directors, was permissible. In my respectful opinion, His Honour's reasoning overlooks the obligation of the authorised officer to make proper and due enquiries of the employees and agents of the corporation, in order to form a belief which must be given in answer to the interrogatory. The state of belief of the authorised officer is that of the corporation and by reason of the Rules of this Court, that officer is deemed to be a party to the proceeding for the purpose of answering the interrogatory. The distinction drawn by Street J, in my respectful opinion, is artificial and overlooks the obligation of the proper officer to make all enquiries. In Flegeltaub v Telstra Super Pty Ltd, an unreported decision of Beach J delivered 20 November 1998 ([1998] VSC 144), Beach J followed what Street J said in the Tooth & Co case, as being a basis for refusing an interrogatory which sought to interrogate the mind of a corporation. His Honour did not consider whether the statement of principle of Street J was correct or that it applied to the interrogatory in question in that case.

Mr Wheelahan referred to the South Australian decision of Brambles Holdings Limited v Carey (1976) 15 SASR 270, and what Bright J said at p.280. His Honour said -

"There are more problems besetting the path of those who seek to impute a belief to accompany. An individual may believe something however improbable it may be. Credo qui impossibile est. But it seems to me that the belief of a company is not an individual fact but an inference to be drawn from what it knew, that is to say, what was known by those whose knowledge is imputable to the company."

"Of course, if mental states like knowledge or belief are to be attributed to a notional and metaphysical entity like a corporation, this can only be done by attributing to it the knowledge or belief actually possessed by some one or more of its officers: Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd; Tesco Supermarkets Ltd v Nattrass. Very difficult questions can arise in this connection. I do not think, however, that it is necessary to enter into them now. It is enough to say that, in my view, it is a fallacy to state that any state of mind to be attributed to a corporation must always be the state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes. This cannot be so when it is a case of successive holders of the office in question or the holder of the office and his deputy or substitute during his absence."

Mr Wheelahan also referred to the High Court decision of Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563, where the Court, at p.582, discussed what constituted the mind of a corporation. Their Honours referred to the evidence of an agent and also an employee and went on to say, at p.582, the following -

"Their knowledge was the knowledge of Eurolynx for they were the persons who were responsible for the initial negotiations and who had set the scene in which the representation had been made by the s.32 statement and the proffered contract of sale."

Their Honours then went on to quote what Bright J said in the Brambles case, supra, and then went on to say -

"A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them."

What was said in the Brambles case and Krakowski, in my opinion, demonstrates that although the corporation cannot have a mind of its own, nevertheless, the knowledge of various relevant employees and agents is attributed to the corporation and the proper officer is bound to make enquiries and form a belief, and it is that belief which constitutes his answer to the interrogatory. That belief constitutes the mind of the corporation, at the relevant time.

In so far as Street J held that it was not permissible to direct an interrogatory to ascertain the state of mind of a corporation, I respectfully disagree.

In Sumitomo Life Realty v Grace Brothers and Ors (1994) 83 LGERA 46, Bignold J, sitting in the Land and Environment Court of New South Wales, also raised some doubts about the reasoning of Street J. After quoting the reasons of Street J for disallowing the interrogatory, His Honour said at p.48 -

"However the generality and the force of this statement is, in my respectful opinion, considerably tempered by the fact (as recorded at 21 of the report) that his Honour allowed the following interrogatories to be served on the council:

7. Did the defendant form the opinion referred to in paragraph 5 of the statement of claim?

8. If the answer to 7 is yes, when and where was the said opinion formed?

It should be noted that the formulation of the relevant opinion by the council in Tooth & Co was an essential element in the validity of a local rate fixed under s.121.

With the greatest respect to the reasoning of Street J, I should have thought that the allowed interrogatories (concerning formation of the relevant opinion by the council) were just as much enquiries into the 'state of mind' or 'mental process' of the council in fixing the local rate as was the disallowed interrogatory."

His Honour went on to hold, at p.49, that it would have been open to call all the members of the committee, to ascertain their thought processes leading to a decision, as witnesses at the trial, and he then went on to say -

"To acknowledge this possibility at the trial is to recognise the legitimacy of the interrogatories which are objected to by the council: Duke of Sutherland v British Dominions Land Settlement Corporation Ltd (1926) Ch 746."

I respectfully agree with Bignold J's approach and in my opinion, Street J's ruling should not be followed as a general principle of law.

Mr Wheelahan also referred to the New Zealand case of Potts v Invercargill City Council (1985) 1 NZLR 609, where the question was what was meant by a special order passed by a council, and in the course of answering the question as to what it meant, the majority of the judges held, at p.617, that the direct evidence of the town clerk, as to what the council intended to do, was not admissible. Somers and Greig JJ went on to say -

"As the council has no mind of its own it would be evidence of a fiction. Only the objective facts can point to the council's purpose and achievement."

Their Honours referred to the Tooth & Co case.

In my opinion, that case does not support the proposition that it is not appropriate to direct an interrogatory to a corporation, seeking to ascertain the state of its mind, which is relevant to an issue in the case.

Mr Wheelahan also referred to the case of Kelly v Raymor (Illawarra) Pty Ltd (1981) 1 NSWLR 720 at 722, where McLelland J referred to what Street J said in the Tooth & Co case, and then said -

"So much may be accepted, but it does not follow that an interrogatory may not be directed to a corporation in terms enquiring as to the actual state of mind of individuals, such as directors when they participated in a corporate act such as the adoption of a resolution, where the state of mind of those individuals is relevant to the validity of the corporate act, in proceedings where the validity of the corporate act is in issue and the state of mind of the individuals concerned is relevant to that issue."

In my opinion, that supports the view that it is open to direct a question to the corporation, seeking to ascertain the mind of the relevant employee and/or agents. What the general proposition of Street J overlooks is the obligation upon the deponent to answer the interrogatory based on belief, after making all due and proper enquiries.

Finally, Mr Wheelahan submitted that the Bickel case did not address the issue, and that is correct, but the fact that the interrogatory was asked and answered, in my view, provides some support for the conclusion that it was a proper interrogatory.

Mr Wheelahan sought to distinguish Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727, on the basis that the interrogatories sought information from a corporate body and was different to seeking to ascertain its state of mind. But Hunt J's observations at p.733, in my opinion, support the conclusion that the interrogatories in the present case are proper and should be answered. At p.733, His Honour was dealing with the complaint made by the corporate defendant that the interrogatory required it to interview many hundreds of persons before it could be answered. He said such complaint was quite misconceived. His Honour said -

"As the corporation, the defendant has no mind of its own, and its state of mind must be found in the mind of those persons who did the act for which it is sought to be made responsible. The only persons whose state of mind could be relevant are those responsible for the act which gave rise to the defendant's liability, whether those persons directed the act or, having a discretion in the matter, performed it. It would not be relevant to show what the state of mind was in any other person who had no concern in doing that act, who was merely a ministerial agent who, although he took part in the performance of that act, had no discretion but to obey orders to carry out the particular task which he performed." (Emphasis added).

"Where a defendant which is sought to be made vicariously responsible for the act of its agents is obliged to answer interrogatories, it has a duty to enquire of the persons who were its agents at the material time before it answers those interrogatories. ... That is because their state of mind is taken to be its state of mind, and the interrogatory can only properly be answered upon the basis that the answer reveals the state of mind of those persons who did the act in question. But the corporate defendant's obligation goes no further."

The issue of the state of mind, knowledge and belief of The Age, at the date of publication of both articles, is relevant to the issues raised in the case. The Age, as publisher, is a corporation and has no mind of its own. On the other hand, as the authorities well establish, the knowledge, information and belief of certain relevant employees and agents can be attributed to the corporation. The Age has raised the plea of qualified privilege concerning political and government matters, and the question of the reasonableness of its conduct and, in particular, its state of belief are raised by it. It has put those matters in issue. The Age published the alleged defamatory articles, some employee or agent, or employees or agents, were responsible for that publication, and, in my opinion, the persons so responsible constitute, at the relevant time, the corporation. In my opinion, the authorised officer, who is obliged to make all due and proper enquiries of the employees and agents, is required to form some belief, with respect to the information obtained, and to answer in accordance with his knowledge and belief. His knowledge and belief is the knowledge and belief of the corporation.

In my opinion, the interrogatories were proper interrogatories, and it is no basis for objecting to answer on the ground that the corporation, at the relevant time, did not have a mind of its own. Of course it does not, but an employee or agent does, on its behalf.

The corporation is the defendant. It has the burden of establishing its defences. The state of mind, knowledge and information of the corporation, at the relevant time, is relevant to some of the defences. Somebody must constitute the corporation, at the relevant time, and it is the state of mind of that person, or persons, whose state of mind, knowledge and belief is that of the corporation.

The second objection to answering the said four interrogatories is that they assume that the Reverend Langley's imputations are conveyed by the articles. It is said that by answering the interrogatories, the deponent is admitting that the plaintiff's imputations, as pleaded, are conveyed by the articles. In my opinion, that is fallacious. Either each imputation is conveyed by the articles, or it is not. No doubt, at trial, The Age can contend that the pleaded imputations are not conveyed by the article. But The Age may be wrong. In my opinion, the plaintiff, Reverend Langley, is entitled to have the benefit, for what it is worth, of an answer to the interrogatory, based upon his pleaded imputations. If the pleaded imputations are not made out, then the answer will be of no effect. But whether or not the imputations will be made out, is a question of fact for the tribunal of fact to decide. Whether the matters are admissible, is a matter for the trial judge.

In my view, the objection is without foundation.

In any event, there is New South Wales authority which is against Mr Wheelahan's submission.

In Collins v Ryan (1991) 6 BR 229, Hunt J held that it was no answer to such an interrogatory that there may be some dispute as to whether the imputations are made out. His Honour, at p.232, said -

"Interrogatories directed to the author's intention to convey the imputations pleaded by the plaintiff are nevertheless permitted where either of such defences of comment is pleaded, in that an answer by the author that he did not intend to convey the plaintiff's imputations (with which his comment must be congruent) is probative of the fact that he did not have the opinion represented by the comment."

Mr Wheelahan submitted that since the Reverend Langley has relied upon publication in New South Wales, for that reason alone, the interrogatories should be answered, and submitted that I should not decide whether the same principle should apply in this State.

In my view, the same reasoning applies in this State. The mere fact that an imputation in New South Wales represents the cause of action, whereas imputations in this State are particulars of the defamatory imputations conveyed by the defamatory material and which are nothing more than particulars of the cause of action, in my view, does not make inapplicable His Honour's reasoning. In addition, Balmford J in the case of The Hon. Smith v Harris, an unreported decision delivered 28 June 1996, applied the principles stated by Hunt J in respect of an interrogatory in a Victorian proceeding, which did ask the defendants whether they believed that the pleaded imputations were capable of bearing any of the specified meanings.

As against this, there is a decision of Judge Stott in Kroger v David Syme & Co, unreported judgment delivered 16 August 1993. His Honour was concerned with whether an interrogatory which asked, in substance, whether the defendant intended the words to bear the meaning attributed to them by an innuendo, would be permitted. His Honour was also concerned with imputations which did not appear as statements in the article, and had some difficulty arriving at a conclusion. In my view, His Honour was saying no more than that, in the circumstances of that case, he would not permit the interrogatory to be asked because of the problems associated with the imputations.

In my view, the objection to answering these interrogatories, on the ground that it requires the defendant to admit the pleaded imputations, is wrong and should not be allowed. Answering the interrogatory does not admit the meaning.

It follows that, in my opinion, the defendant, through its proper officer, is required to answer interrogatories 2, 3, 13 and 14.

Interrogatories 5(a) and 16(a) asked the question, in respect of each article, what information The Age had in its possession with respect to the plaintiff's salary package. The answer to each part of the interrogatory was "yes". Interrogatories 5(b) and 16(b) sought to ascertain whether The Age had information in its possession with respect to the circumstances in which the salary package had been arranged. The Age objected to answering that part of each interrogatory on the ground that it was irrelevant and did not relate to a question in the proceeding, was vague, unclear and oppressive. In my opinion, the interrogatories were relevant to an issue and Mr Wheelahan did not seek to support the objections taken. Accordingly, The Age is required to provide further and better answers to interrogatories 5(b) and 16(b).

This interrogatory followed on from interrogatory 5, and sought the nature of the information which The Age had in its possession concerning the plaintiff's salary package. The Age answered the interrogatory, but did so in an impermissible form. The interrogatory was divided into four parts, namely, (a) - (d) (inclusive), and in my opinion, each part should have been separately answered. The answer given was a composite answer in respect of each part. However, no complaint was made by the plaintiff's legal representatives and accordingly, I put that matter to one side.

"The information was obtained orally from sources whom the defendant is not prepared to identify as to do so would require the defendant to disclose the witnesses in this action which it submits it is not bound to do."

Interrogatory 6(c) required The Age to "give the usual particulars of such information". The phrase "usual particulars" was defined and means, inter alia, if the information was given orally, then The Age was required to say between whom each conversation constituting it took place and give the substance of the same.

The issue on the present summons was the right of The Age to refuse to disclose the names of the persons who orally provided the information.

The objection that has been taken is that to provide a proper answer would require The Age to disclose witnesses in the action. But Mr Wheelahan submitted that the real objection, to answering that part of the interrogatory, was the right of a newspaper not to have to disclose the sources of its information during discovery.

Miss Schoff of Counsel, for the Reverend Langley, submitted that the newspaper rule did not apply because the writer of the article, Reverend Purcival, was not a journalist.

In determining this issue, it is important to keep in mind that the interrogatory is directed to the defendant corporation. It is asked the question whether it had any and what information at the time of publication. The Reverend Purcival was not employed by The Age and was not its agent, and, accordingly, Mr McBain, as the authorised officer, was not required to make enquiries of her. But nevertheless, he is bound to make enquiries of the employees and agents of The Age in order to answer this interrogatory. In my view, the interrogatory seeks information which relates to a question in the proceeding.

In my opinion, the newspaper rule could apply to these circumstances.

The right to object to answering an interrogatory, on the ground that the interrogatory seeks to ascertain the identity of possible witnesses in the proceeding, is limited by Rule 30.07(2)(c). The objection could only be taken if it was established that the sole purpose of the interrogatory was to seek the evidence by which the party interrogated intended to prove his case, including the identity of witnesses.

I am quite satisfied that that was not the sole purpose of the interrogatory. The interrogatory sought information which, in my opinion, was clearly relevant to the issues of express malice and the extended qualified privilege defence. Accordingly, the objection taken is not a proper one.

But this does not answer the real issue. Mr Wheelahan submitted that the newspaper rule protected the newspaper, at this stage, from disclosure of the identity of the sources of information.

In McGuinnes v Attorney-General [1940] HCA 6; (1940) 63 CLR 73, Dixon J considered the cases concerning the rule and, at p.104, said -

"By a long line of cases a practice is recognised of refusing to compel such a defendant to disclose the name of a writer of an article complained of as a libel or of the sources of information he has relied upon. The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns and the consequences of unnecessary disclosure of their identity."

"The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, and et cetera, of a newspaper to compel discovery of the name of his informants. It 'rests not on a principle of privilege but on the limitations of discovery'."

In John Fairfax & Sons Limited v Cojuangco [1988] HCA 54; (1988) 165 CLR 346, the High Court considered the nature of the rule.

The Court, after referring to what Dixon J said, stated at p.355 -

"Two factors of importance emerge from Dixon J's comments. First, the rule is one of practice, not of evidence. Secondly, although the rule rests on a recognition of the public interest in the free flow of information, the law gives effect to that recognition of the public interest by exercising a discretion to refuse to order disclosure of sources of information in interrogatory proceedings in defamation and, perhaps, other analogous actions, even though disclosure would be relevant to the issues for trial in the action. The law does not protect the public interest to the extent of conferring an immunity on the media from disclosure of its sources."

"That is why the courts have refused to accord absolute protection on the confidentiality of the journalist's source of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So, generally speaking, disclosure will not be compelled at an interrogatory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between the parties." (Emphasis added).

In my view, the High Court has made it clear that the mere fact that disclosure of the source would be relevant to an issue in the case is not sufficient on its own and secondly, that the prima facie rule, at the interlocutory stage, is that disclosure will not be compelled unless it is necessary to do justice between the parties.

In that case, very serious allegations were made against the plaintiff, and the article contained the following sentence -

"One of the leading local US banks maintains that of the Philippines' Dollar US$26 billion foreign debt, the President and close 'cronies' like coconut king Eduardo Cojuangco ..., have totally squandered US$9 billion of it."

It is fairly clear that the reference to the "US banks" was to give some authenticity to the article. The High Court upheld the decisions below, which required disclosure of the sources.

"For our part we much doubt whether the newspaper rule would be applied to a case such as the present if the question were to arise in the context of an interlocutory application in a defamation action against the appellants in which malice was in issue. It may be that the rule has no application when the newspaper identifies its source in a general way and relies on that source to point up to the authenticity of the imputations. But this is by the way. In the context which we have supposed, the circumstances would be special so as to justify a departure from the rule. Apart from the striking feature already mentioned, the defamation is of a very serious kind."

It is clear that the seriousness of the allegation, and the fact that the newspaper had referred, in a general way, to a source to give authenticity to the article, were important factors leading to disclosure.

The article in the present matter makes serious allegations against a minister of religion. The allegations concern his salary package and other benefits that he obtained from his employer as a minister of religion. The Age has raised the extended qualified privilege defence, and the reasonableness of its conduct is put in issue. In addition, the plaintiff has pleaded express malice in answer to the common law defences of fair comment and qualified privilege. In addition, some of the statutory defences raise the issues of the reasonableness of the conduct of the defendant.

Although the Reverend Purcival was not an employee or agent of The Age and, accordingly, there is no obligation upon The Age to make enquiries of her, the fact is that under the Rules, Mr McBain must answer the interrogatory from his own knowledge, information and belief, and the answer that has been given shows that The Age, as defendant, does have some information concerning the sources.

It seems to me in the interests of justice that those sources be revealed, because of the defences taken by The Age and the fact that the allegations are serious and express malice is in issue.

In Lew v The Herald and Weekly Times Ltd [1998] VSC 2; (1999) 1 VR 313, discovery was sought by the plaintiff against the defendant newspaper, with particular reference to the sources of information given. At the time the application was made, the defendant had raised certain defences, but the defences of qualified privilege and fair comment were withdrawn prior to the application being heard. Chernov J held that, in the circumstances, it was necessary, in order to defeat the newspaper rule, to show circumstances other than mere relevance. It was put, on behalf of the plaintiff, that the information would arguably be relevant to his claim for aggravated and exemplary damages.

The rule is one of practice, and although the cases illustrate its application, each case must be considered in relation to its own particular circumstances. In the Lew case, Chernov J held that the interests of justice did not require the waiver of the newspaper rule.

In Hodder v Queensland Newspapers (1994) 1 Qd R, the Court of Appeal refused to make an order that the newspaper disclose its sources.

In the joint judgment of Davies JA and Byrne J, at p.57, their Honours said -

"With necessity in the interests of justice as the guiding criterion, mere relevance is not a sufficient justification for compelling disclosure. Some tenuous relationship between the issues and the source's identify cannot suffice to overreach the public interest advanced by preserving the anonymity of the sources. Otherwise there will often be no protection of confidential sources from 'unnecessary disclosure of the identity' or absence of good faith is raised."

Their Honours, in refusing to require the disclosure of the sources, noted that there was a tenuous relationship between the issues raised and the identity of the source, and further, that there was no evidence indicating that the source could not be identified by some other, not too troublesome, pre-trial investigation.

In John MacNamara v the ABC, unreported decision of Levine J delivered in the Supreme Court of New South Wales on 20 August 1993, His Honour refused to order the answering of interrogatories which would have disclosed the sources, even though the defendant had raised interstate defences, particularly qualified privilege, and also the statutory defences in New South Wales. Further, the plaintiff had asserted, in his reply, malice. His Honour considered the newspaper rule and the facts of the case, and after noting that the application of the rule or its non-application was borderline, declined to make an order requiring disclosure.

As I have already stated, each case must depend upon its own particular circumstances. In the present case, The Age, in its wisdom, has pleaded the extended qualified privilege defence and has put in issue its conduct, which includes the issue whether it had reasonable grounds for believing the imputations were true, and whether it took proper steps, so far as they were reasonably open, to verify the accuracy of the material. The nature of the source and its reliability are, no doubt, important issues in the defence raised by The Age.

In my opinion, the interests of justice are in favour of the Reverend Langley, and the so-called newspaper rule does not apply to preclude the Reverend Langley from having proper information, in order to prepare and present his case.

I propose to order that The Age provide a further and better answer to interrogatory 6.

Interrogatory 7 requests The Age to consider the first article and identify -

"(a) The 'previous secret information' referred to therein; and

(b) The 'rupture of the trust and accountability' referred to therein."

It is observed that the interrogatory seeks the identity of the matters referred to in each phrase.

"Out here in Roxburgh Park, we clearly live in a different world to that of the Reverend Tim Langley, superintendent of Wesley Central Mission, who has caused us shame in recent weeks, as previously secret information about $160,000 salary packages and $500,000 apartments became known. The reason we in the Uniting Church are ashamed is that Tim is one of our own, and there has been a rupture of the trust and accountability that we rely upon. We assume that those who hold positions of trust and authority in the Church will be accountable - to the rest of the Church, to the community we serve and in which we live, and to God. When this assumption is ripped apart, it casts a shadow over us all."

It was submitted on behalf of the Reverend Langley, by Ms Schoff of Counsel, that the two parts to the interrogatory relate to the defence of fair comment. She makes the point that if there is a comment in the article which is based upon facts which The Age has to prove at trial, it is relevant for the Reverend Langley to know what those phrases in the first article refer to. In addition, it is submitted that in order to determine whether The Age's conduct was reasonable, it is necessary to know what the defendant intended by the words used.

The Age objects to answering these parts on the grounds that they do not relate to any question in the proceeding, are too wide, vague, unclear and oppressive. In my opinion, the question comes down to the relevance of the questions asked.

What the words mean is a matter for the tribunal of fact, unaided by any evidence. The phrase "previously secret information" is an assertion of fact as well as a comment, but, in my view, it is clear from the context that the previously secret information concerned the salary packages and the apartment. Nevertheless, it may be argued that there is more previously secret information embraced by that phrase, and, in my opinion, the Reverend Langley is entitled to be informed, one way or the other, whether there is anything more involved than the context suggests. It is relevant to the question of fair comment and accordingly, I will require interrogatory 7(a) to be answered.

Interrogatory 7(b) seeks to know the identity of "a rupture" and, in my opinion, the phrase and context makes it quite clear that the author is merely making a comment, based upon the facts which have been stated above. In my opinion, interrogatory 7(b) does not relate to any issue in the proceeding and accordingly, the objection taken is a proper one.

This interrogatory, like the previous one, requires the deponent to look at the first article and identify the "secret deals" referred to in the second-last paragraph.

The sentence in question states, after referring to the works of Jesus, the following -

"He spoke out against corruption and injustice and did not compromise or make secret deals with any government. This sets the framework for how ministry is best understood."

Like interrogatory 7, The Age is asked to identify "the secret deals". What is being asked is what secret deals Jesus did not make with any government. In my opinion, the interrogatory is irrelevant and does not relate to any question between the parties.

Attached to the interrogatories are many pages of handwriting, purporting to be notes made by a journalist. The notes were made by the journalist Peter Ellingsen. Interrogatory 25 requests the deponent to look at the notes and then answer certain questions, including the date of the notes, the matters recorded in the notes, and whether the notes were made during or after an interview with sources.

In answer to the interrogatory, Mr McBain, first of all, on behalf of The Age, objected to answering the interrogatory on the basis that it is vague, unclear and oppressive. He then goes on to answer the interrogatory under the cover of the objection.

In Mitchell v Tsiros (No. 1) (1982) VR 191, Brooking J held that an answer given, which is given after an objection is taken, is admissible in evidence and that the introductory words are devoid of consequences.

I proceed to consider the answer given. On any view, the answer given to 25(b) is incomplete. The answer is in these terms -

"(b) The notes relate to telephone and other conversations the journalist, Peter Ellingsen, had with numerous named and unnamed sources. The notes relate to the operation of the Wesley Central Parish Mission."

It has been agreed between the parties that if The Age provides a typewritten version of the notes, which are difficult to read, then no complaint will be made on behalf of the plaintiff with respect to the inadequacy of the answer given. However, a complaint is made that there is a reference to unnamed sources, and this brings back into focus the right of the defendant, The Age, to refuse to name sources, and reliance is placed on the newspaper rule.

This interrogatory is directed to the defendant, The Age, and Mr McBain, as the authorised officer, is required to make all due and proper enquiries of its employees, which would include Mr Ellingsen. The question is whether, in the interests of justice, the newspaper rule should preclude disclosure at this stage. For the reasons which I have already given in respect of interrogatory 6, in my opinion, the interests of justice demand that The Age reveals those sources. The Age has raised the defences which make the information relevant, it is central to the extended qualified privilege defence and, in my opinion, in this case, the interests of justice demand that the sources be disclosed at this stage. Accordingly, a further answer to interrogatory 25(b) is required.

Interrogatory 26 follows on from interrogatory 25 and seeks the information and the identity of the persons who provided the information, which is set out in the notes of Mr Ellingsen. Again, the interrogatory has not been properly answered, in that the substance of the interviews is not stated. However, under the cover of an objection that the interrogatory is vague, unclear and oppressive, The Age has revealed a list of names of persons with whom interviews were held, and ends the list by stating the following -

"and other unnamed sources whose identities the defendant objects to provide."

No reason is given for objecting to reveal the identities, but in submissions, Mr Wheelahan relied upon the newspaper rule. For the same reasons that I required a further answer to interrogatory 25(b), the Court requires a further answer to interrogatory 26.

The interrogatory makes reference to the affidavit of documents sworn by Mr McBain, on behalf of The Age, and refers to certain discovered documents, and then asks the question, in part (a), as to the date on which each document came into the possession of the defendant.

"(b) How the document came into the possession of the defendant."

Mr Wheelahan conceded that the date on which the document came into the possession of the defendant could be relevant, and stated that the interrogatory could be answered, by not considering each specific document, but, by stating what documents were in its possession at date of publication.

The Age did object to answering this interrogatory on the grounds that it is irrelevant, does not relate to a question in the proceeding, and is vague, unclear and oppressive.

In my opinion, part (a) of the interrogatory is clearly relevant and, in my opinion, it would not be oppressive for Mr McBain to state the date when each document came into the possession of The Age.

With respect to part (b), in my view, the question is irrelevant to any issue and accordingly, there is no requirement to answer that part.

In my opinion, the plaintiff is entitled to further and better answers to the interrogatories, and I propose to make an order accordingly. Subject to any submissions from Counsel, I propose to make the following orders on the plaintiff's summons filed 7 September 2001 -

(i) That the defendant, on or before 4.30 p.m. on 10 October 2001, make, swear and file, further and better answers to interrogatories numbered 2, 3, 5(b), 6, 7(a), 13, 14, 16(b), 25(b), 26 and 28(a) of the plaintiff's interrogatories delivered for the examination of the defendant, dated 11 May 2001.

(ii) That the defendant pay the plaintiff's costs of his summons filed 7 September 2001.

At a glance

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Judgment (194 paragraphs)

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Cases Cited (14)