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[2001] VSC 370
Supreme Court of Victoria
2001-10-03
Gillard J
Original judgment source is linked above.
[2001] VSC 370
DEFAMATION - interrogatories for examination of defendant corporation - principles - objection disallowed that corporation could not answer because has no mind - newspaper rule - further answers ordered.
"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 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).
"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).
(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.
A. Interrogatories 2, 3, 13 and 14 and Answers Thereto.
"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.
"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."
"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 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."
"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).
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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'."
"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).
"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."
"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."
"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."
"(a) The 'previous secret information' referred to therein; and
(b) The 'rupture of the trust and accountability' referred to therein."
"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."
"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."
"(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."
"and other unnamed sources whose identities the defendant objects to provide."
"(b) How the document came into the possession of the defendant."
(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.
Langley
Age Company Ltd [2001] VSC 370
(1975) 49 ALJR 130
(1969) 43 ALJR 308
(1997) 198 CLR 520
(1981) 2 NSWLR 474
(1981) 1 NSWLR 305
(1913) 17 CLR 348
(1976) 15 SASR 270
(1995) 183 CLR 563
(1994) 83 LGERA 46
(1981) 1 NSWLR 720
(1986) 5 NSWLR 727
(1940) 63 CLR 73
(1988) 165 CLR 346
(1999) 1 VR 313