Oueik v Seven West Media Limited

Impugned Interrogatories of Plaintiff

1. The plaintiff seeks answers to the following Interrogatories: "[13] At the time of the publication of the matter complained of did the first defendant believe imputation 7(a) to be true? [14] At the time of the publication of the matter complained of did the first defendant believe imputation 7(b) to be true? [15] At the time of the publication of the matter complained of did the first defendant believe imputation 7(c) to be true?"
2. The defendant objects to Interrogatories [13] and [15], above, on the basis that only imputation (7)(b) is justified on the basis of substantial truth. The plaintiff submits that the questions are legitimate and ought to be allowed because the plaintiff pleads malice as a cause for the Court awarding aggravated damages for imputations (7)(a) and (7)(c) respectively.
3. Moreover, the plaintiff submits, by analogy with malicious prosecution, that malice can be demonstrated by showing that there was insufficient material to form an honest belief of the imputation published: A v State of NSW (2007) 230 CLR 500; [2007] HCA 10. There are difficulties with the analogy, but it is a matter on which the plaintiff is entitled to rely for present purposes.
4. In defamation damages, knowledge of the falsity of the imputation by the plaintiff is a factor in the hurt suffered by the plaintiff: Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414. However, whether aggravated damages arise is a different issue and one which ultimately is a matter for the final tribunal of fact.
5. If the defendant conveyed an imputation in a published statement, knowing it to be untrue, in circumstances where the plaintiff was aware that the defendant knew it to be untrue, aggravated damages may arise: Williams v Radio 2UE (NSWSC, Levine J, 17 May 1995, unreported). In Williams, supra, Levine J, while dealing with a claim for malice aggravating the damage, said: "Shortly stated, if a plaintiff does not know about any malice of state of mind he cannot be heard to claim for any increase in the hurt to his feelings" (at p 4.5 of the unreported judgment)
6. Otherwise, the state of mind of the defendant is to be disregarded in the assessment of damages: s 36 of the Defamation Act 2005. Thus, whether the defendant knew that an allegedly conveyed imputation was untrue, is, itself, irrelevant. It is relevant where the plaintiff knew of the defendant's state of mind and that knowledge added to the plaintiff's hurt feelings and damages.
7. How then does an admission by the defendants assist? The defendants do not suggest that an imputation substantially to the effect of either (7)(a) or (7)(c) arises or, if it does arise, would be true.
8. On the other hand, the plaintiff submits, assuming for this purpose that each denied imputation arises, that malice is disclosed, because there was no information that could have reasonably justified a belief in the truth of the imputation. It is unnecessary, for the purpose of these interlocutory proceedings, to determine the correctness of such a submission. It is sufficient to note that it seems to elide elements (3) and (4) necessary for malicious prosecution, as expressed in A v State of NSW above at [1].
9. Nevertheless, the defendants do not allege the truth of the imputation. If the lack of information available were insufficient to form a reasonable belief as to their truth and if that was the basis for the plaintiff's knowledge of the defendant's state of mind, then the answer to the Interrogatory makes no difference.
10. If, on the other hand, the plaintiff's knowledge of the defendant's state of mind were knowledge of the state of mind of a relevant officer or employee or an admission of the corporation itself, then again, the answers to the two questions posed would make no difference. That subjective state of mind of the defendant was either known to the plaintiff, or it was not. The truth of these two imputations is not an issue between the parties. They became an issue only when it was asserted that the plaintiff was subjectively aware of the subjective state of mind of the defendant. That is not pleaded.
11. Shortly stated, the fact of the defendants' subjective state of mind is therefore irrelevant. That which is relevant is the plaintiff's knowledge of the subjective state of mind or the plaintiff's knowledge inferred from the known information (assuming, without deciding, that malice and knowledge of falsity are capable of being proved in that manner).
12. It would be different if an issue were justification of these and malice was raised to rebut it. It would also be different if the plaintiff alleged he was aware of the defendant's state of mind. Thus, Interrogatory [14] is not the subject of objection.
13. Interrogatories [13] and [15], administered by the plaintiff, are disallowed.

Plaintiff's Objections to the Defence

1. The plaintiff objects to the particulars of justification in [9]-[12]. The objections based on the legality of the disclosures by the plaintiff under s 449 of the Local Government Act 1993.
2. The plaintiff's pleaded imputation at (7)(b) of the Amended Statement of Claim alleges that the defendants conveyed that the "plaintiff conducted himself unethically …". It does not, in that imputation, allege that the defendant conveyed that the plaintiff acted "illegally".
3. Accepting, as I must, that the plaintiff's declarations complied with s 449 of the Local Government Act, the question arises as to whether the defendants are capable of arguing the truth that the plaintiff acted "unethically", even though he complied with the legal requirements of disclosure.
4. A person is capable of acting unethically even though the conduct is legal. The Court discussed possible examples during the proceedings. Before the promulgation of the then Trade Practices Act 1974, misleading or deceptive conduct in business may be one example. A jury may take the view that a different form of disclosure, which arguably makes it more difficult to recognise a connection between the plaintiff and development properties, was intended to obfuscate and was unethical.
5. On the other hand, as the plaintiff submits, a development site may have a number of addresses, which, if used, may make any disclosure misleading. These are questions properly for the final tribunal of fact, involving community standards.
6. The plaintiff has a high bar to hurdle to strike out this kind of pleading. The rules on pleadings in this area are the same as in all civil proceedings. Pleadings require facts, as do particulars. The rules do not require the evidence by which such fact will be proved.
7. In order to strike out the pleading, the ultimate tribunal of fact would be required to be incapable of so finding. In that aspect the principles in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 apply. See also Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376, per Hodgson JA at [8]-[20]; Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 at [19]-[20], per McCallum J.
8. As a consequence, the Court rejects the objection to the defence.

Objections to the Defendants' Interrogatories and Discovery

1. The plaintiff objects to a number of Interrogatories and discovery served by the defendant. In particular, the plaintiff objects to five (5) categories: [19] and [20]; [14]; [15] and [16]; [27] to [30]; and [48] to [53].
2. The Court will deal first with the category in Interrogatories [19] and [20] in the document served introduced with a heading "Auburn Public Inquiry". The defendants seek written submissions and documents made available by certain identified persons, entities or bodies politic or concerning particular subjects.
3. Ordinarily, submissions and evidence or material become public when filed or read; see Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited [2017] NSWSC 657. However this material is the subject of a non-disclosure order, which the Commissioner has indicated will be lifted when all submissions or material have been filed.
4. My preliminary view is that such an order would not constrain the Court from ordering production of the document, but the Court would be reluctant to compel production in the face of such an order. This is particularly so when the obligation to produce on discovery is a continuing one and the substantive hearing will not occur until at least 2018.
5. The Court, on the submission of the parties, accepts that the material sought will be available well before the substantive hearing of this matter. One option is simply to do nothing and allow time to pass. The difficulty with such a course is that the plaintiff who is in the possession of the documents, may be in breach of the obligation for discovery.
6. In all the circumstances, it is better to relieve the plaintiff of any such possibility. The Court makes an order suspending the obligation for discovery of Categories [19] and [20], until such time as the non-disclosure orders are lifted by the Inquiry. The Court grants leave to re-agitate the issue if, a reasonable time before the final hearing of these proceedings, the non-disclosure orders have not been lifted.
7. It is not clear in what way it is suggested Interrogatory [14] is problematic. I understand this may be resolved by the production of material from another source. It is not absolutely clear why it was necessary for the Court to be involved in such circumstances. Nevertheless, no order will be made and either party may reagitate the issue if an adjudication were to become necessary.
8. The plaintiff also objects to Interrogatory [15] and [16] as "fishing". The questions asked are clear and do not require any conjecture as to what is required nor the precise subject matter of the enquiry. The subject of the enquiry concerns communication with Auburn Council, or a Councillor or employee thereof, as to a particular development, by the plaintiff or on his behalf. The particular development to which these questions refer is particularised in the table at [3] of the particulars of justification and is also the subject of pleading as to contextual Imputation (ii), which concerns the alleged misuse by the plaintiff of his position as a Councillor of Auburn City Council.
9. The Interrogatories [15] and [16] are not "fishing" and are allowed.
10. There is some confusion about the status of the next category of Interrogatories, being questions [27]-[30]. The plaintiff submits that question [30] has been answered and questions [27]-[29] had been withdrawn. The correspondence (Ex 4) notes the plaintiff's objection to questions [28] and [29], but not [27] or [30]. Otherwise, the defendant has not confirmed the withdrawal.
11. Questions [28] and [29] are in a different category or to a different effect to Question [27]. Question [27] is to a similar effect to Questions [15] and [16] but concern a different alleged development. The relevant development is the subject of pleadings as part of the contextual imputations at [42] of the Particulars of the Defence and is one of the properties identified in the schedule at [3] of those Particulars.
12. The Court can only deal with the correspondence. Questions [28] and [29] are disallowed as "fishing" and not relevant to a line of enquiry as to matters in issue in the pleadings. It is also not necessary: UCPR 22.1(3) and Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [51], namely, "reasonably required or legally ancillary" to the achievement of a fair trial in a manner that is just, quick and cheap and as judged "by the touchstone of reasonableness". (See also Chong v Nguyen [2005] NSWSC 588 at [11]-[16])
13. The last aspect of the proceedings with which the Court is required to deal is the plaintiff's objection to Interrogatories [48]-[53] on the basis that these interrogatories are vexatious.
14. These questions seek to identify persons who have communicated (expressly or implicitly) a "lesser" view of the plaintiff and the terms of the communication. Interrogatories cannot be used for the purpose of identifying potential or actual witnesses. Nor can interrogatories be used to discover the evidence by which the plaintiff intends to prove his case.
15. These interrogatories, namely Defence Interrogatories [48]-[53] are vexatious in that they do not serve a legitimate purpose and are not necessary: see above reference to Chong v Nguyen.
16. Interrogatories [48]-[53] are disallowed.
17. Lastly, given the nature of the issues and the fact that each party has had a victory and losses, it is appropriate that the costs be costs in the cause. If essential I will deal with any application for a different or special costs order in writing. Such application may be lodged with my Associate by filing a written submission of no more than two (2) pages, together with any document not otherwise in evidence within seven (7) days of the date of these reasons.
18. Any party adversely affected by any application made pursuant to the leave in [43] above may respond in like manner within a further seven (7) days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2017