Plaintiff v Defendant

3 The plaintiff seeks further and better answers to interrogatories dated 14 November 2006.

Interrogatories 10, 81 and 83. - The 'newspaper rule' objection

4 These interrogatories sought the identity of the sources of information upon which the authors of the first and fourth articles respectively based the comments made in the articles. In response to this the authors of the articles objected to revealing the source. The sources are identified in the answers as RMA, JMA, JMB and JMC. The defendant now invokes the so called 'newspaper rule' in support of the objections.

5 It is to the effect that 'generally speaking, disclosure (of such sources) will not be compelled at the interlocutory stage of a defamation or related action ..... unless it is necessary to do justice between the parties'.[1] While it is always desirable and convenient that a litigant be informed of relevant facts through the processes of discovery and interrogation, mere considerations of the convenience of such disclosure will not displace the operation of the rule at the interlocutory stage.[2]

6 The plaintiff placed considerable reliance on the relevance of the identity of the sources to the fair comment and similar statutory defences and the reply that the comments were made with malice. A party may only interrogate as to relevant matters. Accordingly mere relevance is not in my view a proper consideration in determining whether or not it is necessary in the interests of justice for the defendant to reveal the sources now.[3]

7 Reliance was also placed on the forensic disadvantage suffered by the plaintiff arising from the destruction of notes of conversations with the confidential sources.

8 I have no doubt that to the extent that those notes would have revealed the identity of the sources the newspaper rule would have been invoked if they had not been destroyed. The notes may have assisted the plaintiff in showing the absence of facts upon which any comments could be based or the presence of facts which would have made them unfair. It would be mere speculation to attempt to evaluate the forensic disadvantage to the plaintiff flowing from the destruction of the notes. On the other hand the likelihood of disadvantage to the defendant is easier to accept.

9 I accept that an individual who commences a proceeding for defamation against a large well resourced media organisation is at a disadvantage. It is a complex area of law. The defendant will be able to retain the best legal advice available. This was ever so.

10 The newspaper rule evolved in this context and the greater public interest in ensuring the free flow of information to the public on matters of public interest has prevailed. Accordingly forensic difficulties at the interlocutory stage ought not weigh heavily in the balance unless they are insuperable and threaten to deprive the plaintiff of his remedy (cf Cojuangco, supra). None of the submissions for the plaintiff satisfied me that this was so even accepting the dubious assumption that the confidential sources would wish to assist the plaintiff which underpinned those submissions.

11 Each case must be decided on its own facts. Accordingly the cases cited by counsel for the plaintiff in which the court has ordered pretrial disclosure of a source are of limited value. (These were Theiss v TCN Channel Nine Pty Ltd,[4] Kerrisk v The North Queensland Newspaper Co Pty Ltd,[5] Langley v The Age Company Limited.[6] The court however, must be careful not to erode the operation of the rule by elevating the inevitable inconvenience both to the court and the plaintiff occasioned by the operation of the rule to the level of permanent, irremediable injustice.

12 At trial the court will be astute to remedy any forensic inconvenience occasioned by the plaintiff by the refusal to identify the source prior to trial. If necessary the trial can be adjourned or aborted at the defendant's expense. Any party which invokes the public interest in order to defend its private interests should bear the costs occasioned to the other party thereby, and on a solicitor client basis.

Interrogatory 10 - the first article

13 In this interrogatory the plaintiff sought the identity of the source of information set out and commented on in the first article. The information was a paraphrased account of some of the evidence given by the plaintiff to a closed hearing of charges against him before the Court of Arbitration for Sport ('CAS') upon which evidence the journalist poured scorn.

14 The journalist Roy Masters was not present at the hearing. In the answer to this interrogatory, it is revealed that the information was obtained from a confidential source. It is not revealed whether the source ('RMA') was present at the hearing.

15 The plaintiff must know who was at the hearing when he gave evidence. Counsel for the plaintiff indicates in his submissions there were but a few persons present. Each of those persons can be approached by the plaintiffs' lawyers now, be subpoenaed to attend the trial and give evidence as to whether or not he or she provided the information and as to whether or not the information conveyed was accurately reflected in the first article.

16 If the source was not present at the hearing the reliability of the information is immediately in question as it must be second hand information. The defendant will not be able to establish the reliability of the source without revealing directly or indirectly the identity of the source.

17 If as the plaintiff contends, the information upon which the comments were based was a factually inaccurate account of his evidence and the journalist has relied on a second hand account the plaintiff's case that the defendant failed to make adequate enquiries as to the factual accuracy of the underlying allegations is strengthened.

18 In these circumstances it is difficult to see why it is necessary in the interests of justice that the source be disclosed now even if one accepts that the identity is relevant and that the plaintiff is at a forensic disadvantage in not knowing now whether or not the inaccurate account of his evidence came from a reliable source who was present at the hearing when the plaintiff gave his evidence.

19 In Cojuangco the court observed, obiter, at 358, that in such a case as that before it (one in which malice was alleged), 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 the authenticity of the imputations. This is not such a case. The article does not in any way identify the source so as to enhance or rely on the authenticity of the account of the evidence. It does not logically follow that because the account was of what happened at a closed hearing that the source was someone present at the hearing, let alone someone whose account was likely to be accurate.

Interrogatories 81 and 83

20 These interrogatories related to the fourth article. Interrogatory 81 was in part predicated upon the giving of an affirmative answer to, Interrogatory 80. Interrogatory 80 inquired whether the author of the article made any enquiries with any persons other than the plaintiff to ascertain whether the plaintiff

(a) had so conducted himself as to be found guilty for using a banned steroid; and

(b) is a drug cheat'.

21 The defendant's response was to object to answer the interrogatory on the grounds that it was too wide and oppressive but under cover of that objection to say that the enquiries referred to in answer to Interrogatory 81 were made.

22 Interrogatory 80 is plainly too wide. It should have been confined to the period prior to the publication of the fourth article. The answer to it does not state that the enquiries to which it referred were for the purpose of ascertaining the matters referred to in Interrogatory 80. The answer is not clearly an affirmative answer. Notwithstanding the ambiguity of the answer I will assume for the purpose of further considering the application that it was intended to be as it would otherwise have not been necessary to make the answer to Interrogatory 81 the defendant has made.

23 In that answer (Answer 81 (c) )the deponent recounts the substance of a conversation the author of the fourth article had with a confidential source identified as JMA on the morning of the day on which and before that article was published. In substance JMA conveyed three facts to the author none of which are in issue in this proceeding. In those circumstances it cannot be said that it is necessary in the interests of justice that the defendant be compelled to provide a further answer to interrogatory 81 for the purpose of revealing JMA's name.

24 In any event for the reasons I have set out the interrogatory does not provide a sound foundation for ordering a further answer.

25 Interrogatory 82 enquires, among other things, whether or not the author of the fourth article, relied upon or referred to any information or facts in the compilation and writing of the article. Under cover of an objection that the interrogatory was too wide and oppressive the deponent answered in the affirmative.

26 Interrogatory 83 is predicated on the making of an affirmative answer to Interrogatory 81. It seeks among other things the usual particulars of all such information relied upon or referred to by the author of the fourth article in the compilation and writing of that article.

27 In a lengthy answer to it is said that the author 'relied upon a body of accumulated knowledge which she had accumulated over a period of approximately 12 months prior to the publication of the article' and identifies the sources of this knowledge.

28 One of the sources was JMA (Answer 83 (1) (x) ). The author spoke with JMA on a number of occasions during 2004 and 2005 but can only recall one of those conversations, that being the one to which I have already referred (Answer 83.58). The inability to recall the other conversations places the defendant at a forensic disadvantage as it cannot attribute any facts allegedly the subject of comment in the fourth article to that source other than those to which I have already referred.

29 There is in these circumstances no compelling reason in the interests of justice for ordering a further answer to Interrogatory 83 revealing the identity of JMA now.

30 Another source of the author's knowledge was identified as JMC (Answer 83 (1) (y)). The author spoke with JMC on a number of occasions during 2004 and 2005 but objects to revealing the substance of those conversations as it would reveal the identity of the source.

31 JMC also provided to the author copies of various apparently relevant documents. If they have been destroyed then it is open to the plaintiff to seek to obtain them by way of non party discovery applications. There is nothing on file to indicate that the plaintiff has pursued that option. In any event the documents could be subpoenaed pursuant to R42.10 once a trial date is fixed.

32 The Plaintiff wishes to know the identity of JMC because it is relevant to his reply alleging malice raised in answer to the defendant's fair comment and comment defences. This is not the only reply to those defences. He also alleges that the words in the article giving rise to the imputations complained of were not comment, but expressions of fact. The only statements in the article which could possibly be characterised as comments about the plaintiff are that he was

(i) a 'controversial' cyclist

(ii) at the centre 'of a doping row'.

33 In the context of the article, it will be very difficult to argue that these expressions give rise to the imputations even if they can be regarded as comment.

34 For this reason alone I cannot be satisfied that it is necessary in the interests of justice that the identity of the source JMC be revealed now. There are of course other reasons advanced on behalf of the plaintiff for revealing the source now which I reject for the reasons relied on in relation to Interrogatory 10 without repeating them. I note for the sake of completeness that none of the confidential sources JMA, JMB and JMC were identified at all in the article let alone generally so that there was no attempt to rely on their identity so as to lend authenticity to any statement of fact or comment contained in the article.

35 The plaintiff also seeks a further answer to this interrogatory to obtain the name of another confidential source of the accumulated knowledge identified as JMB (Answer 83 (1) (pp). The substance of the conversations with JMB in or about July 2004 is promised (in that answer) but not revealed. JMB showed the author the entire report (without appendices) of Hon Robert Anderson QC dated 2 July 2004. This report had been commissioned by the Australian Sports Commission and Cycling Australia after CAS had found the plaintiff guilty of certain offences relating to prohibited substances. He was asked to report on allegations made by the plaintiff to the CAS.

36 It is not clear from the answer to the interrogatory whether or not the only information provided by JMB was the report. It seems that the plaintiff has the report but not the appendices to it. The Plaintiff can obtain them without any significant forensic disadvantage by non party discovery or by subpoena pursuant to R42.10 when the proceeding is fixed for trial. Whether or not it was the only information then conveyed I am firmly of the opinion that there are no reasons which make it is necessary in the interests of justice for the defendant to reveal the identity of JMC to the plaintiff now. In reaching this conclusion I also repeat and rely on the reasons expressed in relation to the other confidential sources insofar as they are of general application.

Interrogatories 10,14, 21, 81(c), 83 (Answers 83. 1 (pp), 83.59, 83.1(y), 83. 60-63) - compliance with R 30.06 (2) (b)

37 In all of the answers to these interrogatories objection was taken by the defendant that the interrogatory was oppressive. The plaintiff's attack on this aspect of each of the answers was that it failed to state the facts on which the objection was based as required by Rule 30.06 (2) (b). That rule requires the facts 'if any' to be stated. The defendant does not base the objection on any facts. The attack was misconceived. Counsel for the plaintiff did not go further in his criticism of the ground of objection except in respect of Interrogatories 14 and 21 and as a result I do not propose to do so.

Interrogatory 14 - relevance

38 The defendant objected to answering the entirety of interrogatory 14 on the ground it was too wide, oppressive and irrelevant.

(i) Interrogatory 14 (a)

39 The plaintiff submitted that this interrogatory was designed to elicit what information the author of the first article obtained as a board member of the Australian Sports Commission in relation to the CAS hearing subsequent to the finding of various articles in the rubbish bin in the plaintiff's room at the Australian Institute for Sport training facility and prior to the publication of that article on 26 June 2004. The defendant perceived it to be relevant only to the allegation contained in the particulars of aggravated and/or exemplary damages in paragraph 26 of the plaintiff's statement of claim that the author was at the relevant time a director of ASC, a fact not in issue. This was a misconception. The interrogatory was plainly relevant to the reply of malice to the defendant's fair comment, and similar defences raising as it does the knowledge of the author at the time the article was written.

40 The Defendant also submitted that the interrogatory did not confine itself to information so obtained which was relevant to the truth or otherwise of the plaintiff's imputations. In my view the focus of the interrogatory on the facts giving rise to and comprising the CAS proceedings adequately confines the inquiry to contextual facts which bear upon the conduct of the plaintiff commented on in the article.

41 Perhaps on the ground of oppression it was submitted that the matters inquired of in the interrogatory were in a general way the subject matter of interrogatories 6, 7, 8, 9, 10, 11, 12 and 15. Given the limited responses and objections taken to answering those interrogatories I do not regard it as oppressive to insist on an answer to this interrogatory.

42 There should be a further answer made to this part of the interrogatory and those parts which depend on it but confined to the period to 26 June 2004 prior to the publication of the article.

(ii) Interrogatory 14 (b)

43 This was, it was submitted, designed to elicit information so obtained during the period from the time of the publication of the CAS award to the publication of the decision on appeal from it. It is accepted that Masters remained an employee of the defendant throughout this period. This information is also relevant to the malice defence in relation to articles published during and after that period. This part of the interrogatory and those which depend on it should be answered. Answers should be confined to the period ending on 23 July 2005, and prior to the publication of the last article. I have dealt with the other objections to answering the interrogatory generally above.

Interrogatory 83 (Answers 83.18, 83.19, 83.30 (b) (i) (C) and 83.58) - Statements of belief

44 In all but one of these answers to interrogatory 83 the deponent deposes to a belief held by an informant ((Answers 83.18, 83.19, 83.30 (b) (i) (C)). The deponent is obliged to answer the interrogatories from her own knowledge of facts and matters and if she has no knowledge from any belief she has as to any fact or matter of which she is informed R 30.05 (i) (a), (g) (i). She was not obliged to depose as to belief in another's belief. Nor was she obliged to set out the facts upon which another's belief was founded. No further answer is required to supplement these answers.

45 In answer 83.58 the deponent states that it is likely that Mark French was discussed with source JMA during certain conversations. It is not clear whether the deponent was expressing her own belief or that of Ms Magnay in this answer. If the former she was required to state the information upon which the belief is founded (Lyell v Kennedy (No 2) (1883) 9 App Cas 81, at 92). If the latter, she wasn't required to do so. The defendant must further answer this interrogatory.

Interrogatory 21

46 This interrogatory inquires whether the author of the first article or any other employee of the defendant made notes or created any other documentary or other record of facts considered, referred to, or relied on in the compilation, writing submissions for publication and publication of the first article. The subject matter of the inquiry is irrelevant to matters in issue. It is the information which the Defendant had and not how it was recorded which is relevant.

47 It amounts to no more than an attempt to go behind the conclusiveness of the defendant's affidavit of documents.

Interrogatory 83 (Answers 83.60 - 83.63) - Substance of conversations with confidential source

48 In the plaintiff's summons application is made for further answer to these parts of the interrogatory providing the substance of the conversations referred to in them, in fact, it is only in Answer 83.60 that there is a reference to Ms Magnay's conversation with confidential source JMC during 2004 and 2005. Objection is taken to revealing the substance of those conversations on the basis that to do so would reveal the identity of the source. This is a credible objection and for the reasons given above there will be no order now which would result in the identification of the source.

Interrogatory 106 - Information relied on in writing article

49 This interrogatory sought the usual particulars of all information relied on and referred to by Ms Magnay (inter alia) in the compilation writing and submission for publication of the fifth article. The answer incorporates by reference to previous answers the information relied upon (etc) in the compilation (etc) of the fourth article and adds some further sources of information. I see no vice in the answer save that in incorporating answer 83.59 which failed to reveal the substance of a conversation it is itself insufficient. The defendant has agreed to provide a further answer to Interrogatory 83 in order to rectify the deficiency.

50 I ask counsel to prepare minutes of orders reflecting these reasons and attempt to resolve the question of the costs of the application. If necessary, I will hear argument as to those costs later this day.

I certify that the 11 preceding pages are a true copy of the reasons for Judgment of Master Evans of the Supreme Court of Victoria delivered on 4 May 2007.

DATED this fourth day of May 2007.

[1] John Fairfax & Sons Pty Limited v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 at 354.

[2] Hodder v Queensland Newspapers Pty Ltd (1944) 1 Qd R 49 at 57 - 58.

[3] cf Lew v The Herald & Weekly Times Ltd [1998] VSC 2; (1999) 1 VR 313 at 322.

[4] [1991] 2 Qd R 715 at 718, 719.

[6] [2001] VSC 370 at [119] - [130].