Murphy v Nationwide News Pty Limited [2000] NSWSC 813 | Case summary

(b) The plaintiff was a shyster". 3 By its Defence filed on 27 August 1999 the defendant pleads qualified privilege pursuant to s 22 of the Defamation Act 1974 and at common law. 4 In respect of the first imputation the defendant relies upon the defence of comment provided by s 33 being the comment of a servant or agent. 5 Pursuant to SCR Pt 67 r 17(3) (material for comment) the defendant asserts that the identified material for comment relates to matters of public interest and is substantially true, setting out in paragraph 1 the following: "(1). (a) The facts stated in the matter complained of, including the facts that: (i) the plaintiff has acted for persons charged with offences involving drug dealing and has successfully defended those charges; (ii) the plaintiff was successful in having charges against advertising personality, John Singleton dismissed. (b) The facts that the plaintiff has been the subject of extensive publicity in relation to matters in which he has appeared for celebrities and in relation to high profile drug-related criminal and disciplinary proceedings, which facts: (i) are matters of public notoriety; and/or (ii) are indicated in the matter complained of". 6 Further, a particular of public interest pursuant to SCR Pt 67 r 18(1)(a) is identified as (c) "The plaintiff, who is a very well-known legal practitioner". 7 By his Reply filed on 7 January 2000 the plaintiff includes as a particular of express malice the allegation that the defendant was actuated by improper purposes including "retribution". The relevant particulars are set out in the Reply in paragraphs 2(e)(ii)B to (e)(iii)E. For present purposes it suffices to note that the "retribution" relates to other proceedings between the parties which were resolved. 8 By Notice of Motion filed 19 May 2000 the defendant seeks first, to have struck out from the plaintiff's Reply the sub-paragraphs referred to above. 9 In support of the Notice of Motion was read an affidavit of Sophia Dawson sworn 19 May 2000 to which is annexed relevant correspondence. Exhibit A on the Motion is a bundle of correspondence passing between Messrs Gilbert & Tobin solicitors for Mr Murphy and Messrs Blake Dawson Waldron solicitors for Nationwide News Pty Limited relating to the resolution of certain proceedings between the parties in action number 15773 of 1992. That material includes documentation relating to the resolution of that action. That material is asserted by the plaintiff to be relevant to the head of express malice to which I have referred. 10 Exhibit B on the Motion is the plaintiff's Verified List of Documents in these proceedings which makes reference to documents from the earlier action leading its resolution. 11 Exhibit 1 on the defendant's Notice of Motion is the defendant's Verified List of Documents. 12 For the defendant in support of the strike out application the following submissions are made. It is to be understood that pursuant to SCR Pt 22 r 6 an Offer of Compromise made in accordance with Division 1 of that part of the Rules is to be taken to have been made without prejudice unless the Notice of Offer otherwise provides. It is said that in the relevant litigation there was no such provision and accordingly that Notice of Offer is privileged. Reliance is also placed upon s 131(1) of the Evidence Act 1995 (NSW). It is argued that none of the exception in s 131(2) is relevant. 13 The basis for the rule of privilege attaching to settlement negotiations is founded upon matters of public policy in the encouragement of litigants to settle their differences; see Field v Commissioner for Railways for NSW (1957) 99 CLR 285 at 291; Rush & Tomkins Limited v Greater London Council (1989) AC 1280 at 1299 and the earlier statement of the effect of the rule in Kurtz & Co v Spence & Sons (1887) 58 LT 438 at 441. 14 The submissions continued that the privileged nature of an Offer of Compromise is reinforced by Pt 22 r 7. Rule 6 and 7 together provide that not only is an offer privileged it is not to be contained in any pleading or affidavit. The plaintiff's response to this particular component of the defendant's submissions is that such a consideration is effectively restricted to the litigation in which the offer is made and the reference here in the affidavit of discovery, for example, does not contravene that prohibition. I am inclined to the view that the plaintiff's position in this regard is correct though for reasons I state below, do not have to resolve it. 15 It is nonetheless argued that privileged communications made in relation to a particular action do not cease to be privileged at the conclusion of that action. The offer therefore retains its privilege and evidence of it is not to be adduced in the (settled) proceedings or, it is said, in any other proceedings. It is in this regard that the defendant places particular reliance on r 7 and it is asserted that the plaintiff's Reply breaches rr 6 and 7. 16 It is further asserted that any attempt to adduce evidence of the allegations made in the Reply is proscribed by s 131 of the Evidence Act 1995 (NSW). 17 It is argued that an attempt to adduce evidence of the acceptance of an offer is to adduce evidence of the terms of the offer itself. Such evidence must be, it is said, inadmissible. Further ss 131(1)(a) and (b) proscribe the admission into evidence of a communication made between persons in dispute "in connection with" an attempt to negotiate the settlement of the dispute and of a document that has been prepared "in connection with" an attempt to negotiate a settlement of the dispute. Notice of acceptance of the offer is clearly both a communication and a document "in connection with" an attempt to negotiate and is privileged under s 131. The wide ambit of the phrase "in connection with" is advanced. If the acceptance of an offer were unprivileged it would clearly, it is said, cut across the privilege attaching to the offer. 18 It is not argued that these restrictions apply to the publication which might legitimately be given to a judgment that is entered consequent upon agreement having been reached. It is said that this is not the case here. Apparently a draft judgment with the usual non-disclosure term was forwarded by the solicitors for the defendant to the solicitors for the plaintiff in the 1992 action and an agreement was reached that, conditional upon prompt payment of the agreed sum (which occurred), no judgment would be entered in order to avoid the possibility of public disclosure of the amount. Judgment was not entered and a Notice of Discontinuance was filed. 19 The plaintiff refers to the relevant particulars properly as a particular of the plaintiff's allegation of malice subscribed to the Reply pursuant to SCR Pt 67 r 19. It is apparently to be the plaintiff's case that the defendant in publishing the matter complained of was actuated by improper purposes including retribution against the plaintiff somehow said to arise from the earlier 1992 defamation action. 20 It is submitted for the plaintiff that while r 6 of Pt 22 does provide that in the absence of a disclaimer Offers of Compromise are to taken to be without prejudice, the privilege does not expressly extend to the acceptance of the offer. Rule 7 states "where an offer has not been accepted then, subject to sub-rule (3) no communication with respect to the offer shall be made to the Court at the trial". 21 Sub-rule (3) sets out exceptions as to when an un-accepted offer can be disclosed (including for the purpose of a determination on costs). It is argued therefore that r 7 which governs when an offer may be disclosed to the Court expressly does not prohibit disclosure when an offer has been accepted. Reliance is placed also by the plaintiff on Pt 22 r 3(9) the effect of which is that when an Offer of Compromise is accepted any party to the compromise may enter judgment. This rule, it is said, implicitly waives any privilege over an accepted Offer of Compromise at least in relation to the terms of settlement. 22 The plaintiff seeks to distinguish Rush & Tomkins and further advances a construction of s 131(1) of the Evidence Act 1995 (NSW) which would have the effect that any letter from the defendant enclosing payment of settlement monies and any Notice of Discontinuance are not caught by the section because they are documents which came into existence after the settlement had already been negotiated. Reliance is placed upon the unreported decision of Branson J in Abrook & Ors v Patterson & Ors (18 September 1995) and the decision of Burchett J in Austotel Management Pty Limited & Anor v Jamieson & Ors (1995) 57 FCR 411. 23 The plaintiff's submission ultimately resolves into the proposition that the Offer of Compromise and Notice of Acceptance simply form part of a concluded settlement and fall outside of the provisions of s 131(1) of the Evidence Act 1995 (NSW) that being consistent with the language and intent of SCR Pt 22 and the common law. If the position is otherwise it is arguable that the relevant material would be admissible under the exceptions to s 131(2) of the Evidence Act 1995 (NSW). 24 I have but summarised the submissions for and against the defendant's strike out application. What is abundantly clear is that this is not a case where, in accordance with the usual strike out principles, the situation is so unarguable that the defendant/applicant should succeed. 25 It seems to me to be clear that the matters in dispute are essentially concerned with questions of admissibility: that is a trial issue. In a trial of an action under the post-1995 amendments it is pre-eminently desirable to leave to the trial judge matters of admissibility. It is equally desirable that pre-trial matters that can be dealt with in a substantive way even on an interlocutory basis should be dealt with on that basis. This is not the latter situation. 26 The plaintiff has articulated a head of express malice in the defendant. The onus is on the plaintiff to prove that allegation. This the plaintiff does by the tendering of admissible evidence. The trial is the point of time at which the tender will be dealt with. 27 I am not persuaded that it is un-arguably the case that all the evidence upon which the plaintiff proposes to rely in support of the particular head of express malice is inadmissible to the point where it can conclusively be ruled that that head of malice simply cannot be, as a matter of law and fact, determined at the trial. 28 I decline therefore to make Order 1 in the Notice of Motion. 29 Order 2 is an application for an order for specific discovery. It is sought that the plaintiff be ordered to file an Amended List of Documents relevant to the falsity of the imputations and to 1(a) and 1(b) of the Particulars of the Defence those particulars being the material for comment appended to SCR Pt 69 r 17(3). Particular discovery is sought with respect to the following: "2… (a) Newspaper, magazine and television items relating to the plaintiff; (b) documents relating to any matters in which the plaintiff has acted for persons charged with offences involving drugs dealing; (c) documents relating to matters in which the plaintiff has acted for persons having prior convictions for drug dealing; (d) documents containing or relating to any complaints and/or allegations against the plaintiff which relate to his conduct as a legal practitioner, including any complaint to the Law Society or the Legal Services Commissioner". 30 The matters to which it is said that the documents sought to be discovered "relate" are in effect set out in the Notice of Motion by reference to the particulars subscribed to the defence and the plaintiff's allegation of the falsity of the imputations. 31 It is submitted for the defendant that the only possible relevance of the material in category (a) could be to the falsity of imputation (a) namely, "the plaintiff was a solicitor notorious for obtaining acquittals of guilty drug dealers". It can have no relevance to the falsity of imputation (b). 32 The defendant asserts to the contrary and it was in this context that there was produced a decision of Wilcox J in the Federal Court in Commissioner of the Australian Federal Police v Curran (1984) 3 FCR 240. This, as I understand the defendant's position, in some way is to be relied upon in an evidentiary sense. That will be a matter for the defendant, of course, but the apparent irrelevance of his Honour's decision is to some extent removed by reason of reference being made to the plaintiff by his Honour acting on behalf of the respondent in the proceedings in the Federal Court. 33 In any event it is the plaintiff's position, as I understand it, that he has been the subject of considerable publicity for close to three decades. An order for discovery of this category of material as framed by the defendant is to catch every single media record ever retained by the plaintiff whether it relates to his personal affairs and relationships, his attendance at sporting events, social events, his opinions or views on any matter, his business activity, his legal practice or, as Mr McClintock S.C. observed, to the report in the newspaper of the plaintiff's birth. The proposed category is quite inconsistent, it is said, with any bona fide attempt on the part of the part of the defendant to have the plaintiff discover documents relating to the falsity of imputation (a) which on its face relates only to a single limited area of the plaintiff's legal practice. No time limit is imposed and it is submitted that only relevantly recent media records could relate to the question of whether the plaintiff was "notorious" in the language of the imputation. The application for specific discovery or particular discovery in the first category is therefore oppressive and fishing. 34 As to the second category (h) - this cannot relate to the falsity of either imputation. Especially with respect to imputation (a), it is submitted that the truth or falsity of that imputation turns on whether the plaintiff is "notorious" for obtaining acquittals of "guilty" drug dealers. As such the plaintiff's conduct as a solicitor acting for clients charged with drug dealing can only be relevant if the particular case received publicity such as to make the plaintiff notorious. Further and additionally, instances of the plaintiff simply acting for persons charged with drug dealing cannot bear on the second part of imputation (a) which focuses on whether the plaintiff obtained acquittals for "guilty" drug dealers. It is the plaintiff's submission that the defendant's own adoption of the more limited category (c) seeking documents relating to matters where the plaintiff has acted for clients with prior drug convictions only highlights the fact that category (b) is fishing for wholly irrelevant documents or documents unrelated to any matter in issue. 35 The fact that a solicitor acts for clients charged with offences, including for clients who might happen to have a prior conviction, cannot relate to whether or not a solicitor is a "shyster" and as such the documents are not discoverable by reason of their lack of relationship to the asserted falsity of imputation (b). 36 This category seeks all documents relating to all clients charged with drug offences for whom the plaintiff has acted in his 28 year career as a criminal lawyer. As such the order for discovery of this category sought by the defendant is oppressive and would require an immense amount of labour on the part of the plaintiff to locate and sift through archived records of his practice. Further and this is quite clear, the bulk of the documents caught by category (b) would be legal files in respect of which a claim could be made on behalf of the relevant clients as to privilege or the more burdensome task be undertaken, prior to any question of inspection, to obtain the consent of clients for the waiver of privilege. This is a factor which highlights the oppressive nature of this category. 37 Category (c) points to a flaw in the defendant's approach, it is said. The defendant's application is flawed because the falsity of imputation (a) turns on whether the plaintiff is "notorious" for obtaining acquittals of guilty drug dealers. Documents sought in this category do not relate to this issue. Further, matters in which the plaintiff acted for persons having prior convictions for drug dealing are still not relevant to the question of whether the plaintiff "obtained acquittals of guilty drug dealers". This is because the conduct alleged in the imputation is that of the plaintiff getting acquittals for the drug dealers on offences of which they were "guilty". Any prior convictions the "guilty" (got off by the plaintiff) may have had are irrelevant. The issue is whether the persons were acquitted on charges of which they were guilty. It is submitted that an order for particular discovery of category (c) documents would be oppressive and would permit the defendant to fish for documents in circumstances where the task of providing the "pool" would in itself be oppressive. Again, the plaintiff would be required to check each and every file he retains relating to every criminal and civil matter in which he has been the solicitor on the record in order to ascertain whether any client he has acted for had "prior" drug convictions. 38 As to category (d): whilst it is conceded that some of the documents made relate to imputation (b) (which is not defended as comment) but the falsity of which is asserted by the plaintiff, the category as framed does not specify any time limit and may relate to the plaintiff's entire legal career which commenced in 1972. It is does not identify exhaustively to whom the complaints or allegations sought to be discovered were made and is not even limited to those complaints upheld or proven. Any complaints or allegations made that are unsubstantiated and unproven cannot relate to the falsity of imputation (b). It is therefore an oppressive application for particular discovery, the more so as it is constructed so broadly again as to permit the defendant to fish for information not related to any issues on the current pleadings. 39 More generally, when the basis for discovery is sought on the issue of falsity of the imputations, the only documents that could possibility relate to that issue are documents relating to instances where the plaintiff has achieved notoriety for obtaining acquittals of persons charged with a drug related offence of which they in fact were guilty. Documents relevant to the second imputation, if they relate to any matter in connection with the issue, are being fished for without limitation as to any matters of substance by way of complaint or allegation upheld by whatever body to which the complaint or allegation was made. It is to be noted that category (d) is very broad in this sense merely "including" the Law Society or the Legal Services Commissioner. 40 Insofar as the defendant asserts an entitlement to particular discovery by reference to paragraphs 1(a) and (b) of the particulars appended to the Defence, this was amplified by an exchange of correspondence and a letter dated 25 May 2000 (which does not appear to be in evidence) but which, I gather, purports to amplify the defendant's position by asserting that the material for comment is founded upon the plaintiff having acted for persons charged with offences involving drug dealing and as having successfully defending those persons. This is not a fact, it is submitted, stated in the matter complained of and thus there is no basis for an order of particular discovery. 41 Further, the defendant has amplified its position by asserting that the fact that the plaintiff has been the subject of extensive publicity in relation to matters in which he has appeared for "celebrities" and in relation to high profile criminal and disciplinary matters which facts are matters of public notoriety or are indicated in the matter complained of, is subject to criticism by the plaintiff on the basis that any matter of public notoriety must be connected with the matter complained of and the imputations pleaded. The way the defendant has cast its case, matters of public notoriety not indicated in the matter complained of, are apparently relied upon. Thus any document sought particularly to be discovered in relation to such matters does not relate to a matter in issue and the claim would be oppressive in any event. 42 Further, by letter dated 30 March 2000, being Exhibit C to Ms Dawson's affidavit (paragraph 5), the plaintiff indicates that he is willing to make any relevant admissions that he acted for Mr John Singleton, Scott Wilson and Mark Geyer in respect of the charges brought against them respectively, in order to obviate the need for discovery. 43 A further matter is, of course, that in Exhibit 1 (the defendant's Verified List of Documents) approximately 387 separate media items are discovered dating from 13 September 1984 to 24 October 1999. 44 In this context both the approach and accommodation adopted by the plaintiff and the volume of material in fact discovered by the defendant in relation to category (a) the question legitimately is posed on behalf of the plaintiff as to whether any such discovery in that category or indeed in any other is "necessary". 45 I am persuaded by the submissions for the plaintiff not to make Order 2 in the Notice of Motion. I am not persuaded that the application for particular discovery is sufficiently refined in terms of the relationship of the category to matters in issue. I am certainly not persuaded that the discovery is necessary. I am persuaded that the discovery is oppressive. 46 Whilst in Tabe v Amalgamated Television Services Pty Limited [1987] A Def R. 50,025 McLelland AJA was the only judge of the Court of Appeal to make specific reference to the discretion of the judge in ordering discovery where a matter has been in fact put in issue (namely, the falsity of the imputations), this is clearly a case where for the reasons I have outlined as to oppression, the lack of relationship with issues in any real defined sense, and the apparent intention to embark by the defendant on what can only be described as a "fishing" and in the process, "water muddying" exercise, to exercise my discretion to refuse the order. 47 I decline to make Order 2 in the Notice of Motion. 48 Order 3 in the Notice of Motion is not opposed by the plaintiff. This is an Order seeking that the defendant have leave to administer more than 30 interrogatories. That Order shall be made. The plaintiff has taken the sensible approach of realising that in a case where defences of privilege and comment, such as this, have been raised more than 30 (though the plaintiff queries the necessity for say, 300) interrogatories may be required. In accordance with the Rules, as I understand it, it is the plaintiff's intention to provide sworn answers to any interrogatories and where appropriate to take proper objection. 49 I make Order 3 in the Notice of Motion. Otherwise, the Notice of Motion is dismissed. 50 Other formal orders are:

Murphy v Nationwide News Pty Limited

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (1)

Cases Cited (3)

Cited By (1)