Terry Clout v Alan Jones & Anor

Judgment 1The plaintiff seeks orders that the defendants' answers to interrogatories 2(j), 6(b), 9 - 14, and 16 - 21, to which objection was taken in their answers of 28 October 2011. For convenience, submissions were directed to the answers of the first defendant, it being accepted that the rulings in respect of these would apply to the answers of the second defendant. 2In the amended statement of claim (par 5) the plaintiff claims that he was defamed on 10 March 2009 by the broadcast over radio station 2GB of matter which conveyed the following imputations: "(a) he is a bureaucrat who thinks that he can do as he likes and who is completely unaccountable. (b) he was proposing to give away all the unique anatomy specimens in the Lucy Osburn Nightingale Foundation Museum which are essential for medical education. (c) in proposing to give away all the unique anatomy specimens in the Lucy Osburn Nightingale Foundation Museum, he had exceeded his mandate. (d) in proposing to move the Lucy Osburn Nightingale Foundation Museum, he had exceeded his mandate. (e) he was behaving oppressively and dictatorially in his dealings with Lucy Osburn Foundation Nightingale Museum. (f) he has connived in the Sydney Hospital Museum not having an anatomy licence, so that it will be forced to dispose of its unique anatomy specimens. (g) he intends to remove the other assets of the Lucy Osburn Nightingale Foundation Museum, so that they too will not be available for medical education. (h) he acted incompetently and contrary to the public interest by putting in jeopardy the $3.5 million bequest by Dr Patricia Hurst. (i) he has authorised rooms on the first floor of the Nightingale Wing of Sydney Hospital, vacated for the benefit of the Lucy Osburn Nightingale Foundation Museum, to be vandalised." 3A claim for aggravated damages is made based on the defendants' failure to apologise despite letters of 5 May 2009 from the plaintiff's solicitors. 4The defendants have pleaded a number of defences which, relevantly, include defences of honest opinion, common law qualified privilege and statutory qualified privilege under Defamation Act 2005 s 30. Particulars B and C pleaded in support of the qualified privilege defences include the statements: "C4 ... The first defendant had no reason to doubt the authenticity and accuracy of the sources of information interviewed. 5 The first defendant's conduct was reasonable in the circumstances." 5Objection was taken on the basis that each interrogatory was "... not a proper interrogatory, is vexatious, and oppressive and does not relate to any matter in issue between the parties". The plaintiff contended that each interrogatory was necessary within the meaning of Uniform Civil Procedure Rules 2005, r 22.1(4). 6In Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508 I referred to the relevant principles as follows: "7 Under Uniform Civil Procedure Rules 2005 Pt 22.1(1) the Court has discretion to order any party to answer specified interrogatories at any stage of the proceedings. Such an order is not to be made unless the Court is satisfied that the order is necessary at the time it is made (r 22.1(4)). To meet this test it must be shown that the order is reasonably necessary for disposing fairly of the case or matter, taking into account the interests of both parties ( Boyle v Downs [1979] 1 NSWLR 192, pp 205-206). Necessity is not demonstrated simply because the interrogatory relates to an issue between the parties ( Howard v Nationwide Publicity Services [Supreme Court of New South Wales, CLD14490/84, Hunt J, 26 February 1987, Unreported]) or because a similar question would be permissible in cross-examination. A principal purpose for which interrogatories may be administered is to obtain an admission, which is to be tendered in evidence against the party answering it. Thus it is imperative that it be expressed with such precision as to produce a clear admission or an answer which is not misleading or confusing ( Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, p 707). Simplicity has virtue, especially in jury trials. 8 The exercise of discretion is subject to the statutory duty imposed by s 56(2) Civil Procedure Act 2005 which requires the Court to give effect to the overriding purpose to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". In defamation proceedings this requirement is reinforced by the Defamation Act 2005 which provides that one of its objects is: '3(d) To promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.' ( Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, pars 29, 30, 31.) 9 I adopt, with respect, the approach taken by Simpson J in Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587: '16 That I perceive considerable value in the availability of the process of interrogation is not to say that carte blanche should be given to parties wishing to interrogate, particularly where the volume of interrogatories is oppressive or potentially so. Nor is it to say that every interrogatory administered by one party to another will be required to be answered. To be useful, interrogatories must be properly directed to the issues identified after a proper process of pleading, and after full and proper particulars have been supplied. When this occurs interrogatories can do much to narrow the issues actually to be fought, and the scope of the evidence required to be adduced. But it is to be emphasised that this involves a sensible approach to the drafting of interrogatories. The drafter must have both eyes firmly fixed on the issues thrown up by the pleadings. To be useful, interrogatories must be specific to those issues.' 10 All in all, the Court is required to make a practical judgment, which involves an evaluation of the utility of an answer in narrowing the issues for trial." 7Unsurprisingly, a plaintiff's entitlement to an order will depend upon the particular circumstances of the case. In Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 Simpson J said: "27 I do not accept the proposition that interrogatories are fossils, set in amber. Indeed, such a proposition runs counter to the view I have earlier expressed, that the value of interrogatories lies in their individuality, and their being directed to the issues in the individual case in which they are administered." 8The defence of qualified privilege under s 30 of the Act requires proof that the conduct of the defendant in publishing the defamatory matter was reasonable in the circumstances. Under s 30(3) factors which a court may take into account on the issue of reasonableness include: "(c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and ... (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published ..." 9Interrogatory 2 was directed to the first defendant's belief in the truth of each of the imputations (a) - (i) above. Concerning each it asked: "Did you at the time of publication of the first matter complained of believe that it was true of the plaintiff that ..." Interrogatory 2(a) - (i) was answered "Yes". 10Interrogatory 2(j) is: "If yes to any of (a) - (i), state (i) all information in your possession at that time on which you based that belief. (ii) all steps taken by you to check each such item of information. (iii) when you obtained each such item of information. (iv) the source or sources of each such item of information. (v) your reasons for regarding each such source as reliable. (vi) whether you had any previous dealings with each such source, and if so, what those dealings were. (vii) what information you had about each such source, and in particular, (aa) what information you had about any relationship between such source and the plaintiff. (ab) what information you had about the attitude of each such source to the plaintiff. (viii) what enquiries you had made about each such source, specifying when, by whom, of whom, and with what result each such enquiry was made." 11For the defendants it was submitted that it was impermissible to administer separate interrogatories as to specified imputations or statements from the matter complained of. It was put that there was an established practice that an interrogatory for information should be one which, in terms, asks if at the time of publication, the defendant had any information as to the content of the matter complained of which, if answered "Yes", would be followed by interrogatories in conventional form to identify the information, its sources, and so on. Support for the proposition was sought from the judgments of Hunt J in Spasojevic v Riznic (1982) 1 NSWLR 278; Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727; Brown v Australian Broadcasting Corporation (unreported 6 February 1987); Lewis v Page (unreported 19 July 1989); Collins v Ryan (unreported 4 April 1991)). 12Analysis of these decisions makes tolerably plain that each turned on the particular circumstances of the case. Their common thread is the indication that ordinarily interrogatories which are merely repetitive will be held to be unnecessary so that care should be taken to avoid repetition by asking questions which have been asked elsewhere. They give no support to the proposition that a plaintiff is bound to administer an interrogatory in a particular form. 13It is indisputable that a plaintiff is entitled to interrogate the defendant as to the state of knowledge and information which it had in its possession in relation to the matter complained of at the time of its publication. Under s 30(3) relevant issues on which the plaintiff may interrogate include whether the defendant believed in the truth of what was published, and whether the defendant acted reasonably in forming that belief or in publishing that material with less than a belief in its truth ( Palmer at 729-30; Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 at 388). 14In this case, the first defendant says that he intended to convey each of the imputations alleged. To succeed on the statutory defence he is required to establish that it was reasonable to publish the matter which conveyed these imputations. Accordingly, the plaintiff is entitled to interrogate as to matters relevant to the reasonableness of publication of each imputation. In my opinion the fact that the interrogatories are directed separately to each imputation and are not couched in more general terms is no basis for objection. I propose to order that interrogatory 2(j) be answered. 15The plaintiff agreed that if 2(j) was answered, answers to 6(b) would not be sought. 16Interrogatory 9 is: "Before publication of the first matter complained of, (a) what information did you have to support the statement that the plaintiff had decided to remove all anatomical specimens from the Lucy Osborn Nightingale Foundation at Sydney Hospital? (b) what were the sources of that information? (c) what steps did you take to check that information? (d) what were the results of any checks you made of that information?" 17Interrogatories 10, 11, 12, 13 and 14 ask the same questions in respect of other specified statements taken from the matter complained. 18In my opinion interrogatories 9 - 14 are not necessary, and the first defendant should not be ordered to answer them. As doubtless intended, the scope of 2(j) as to information and enquiries is comprehensive, and the plaintiff is entitled to a complete answer to it. The information so provided should include the information which is sought in interrogatories 9 - 14. In my opinion these interrogatories, in substance, are no more than interrogatories repetitive of 2(j), in that each seeks the same information albeit concerning selected statements from the publication. 19Interrogatory 16 is: "Did you publishing the first matter complained of intend to damage the reputation of the plaintiff?" 20Interrogatory 17 is: "Did you before publishing the first matter complained of consider that such publication could damage the reputation of the plaintiff? If so, what consideration did you give that question, and with what result." 21The first defendant has already answered interrogatory 3, saying that he intended to convey imputations (a) - (i). In my opinion these interrogatories are relevant to issues of honest belief and also of reasonableness in publishing the matter complained of. I propose to order they be answered. 22Interrogatory 18 is: "At the time of publication of the first matter complained of, (a) what did you believe was the attitude of Elinor Wrobel to the plaintiff? And (b) what did you believe were the reasons for which she had that attitude?" 23Interrogatory 19 is: "Did you, before talking live on the line to Elinor Wrobel during the first matter complained of, have a belief as to what answers she was going to give to your questions? If so, what was that belief, and what was its source?" 24In my opinion there is utility in having answers to these interrogatories. Elinor Wrobel was the interviewee and, apparently, the principal source of information. These interrogatories are relevant to the first defendant's assessment, if any, of the integrity of the source and the extent to which the information she provided could be relied upon. The matter complained of was a live-to-air radio programme. The issue of reasonableness in making the broadcast will involve consideration of whether caution prior to, or in the course of the broadcast was required and, if so, the extent to which it was exercised. I propose to order that these interrogatories be answered. 25Interrogatory 20 is: "Do you now believe that any statement made in the first matter complained of is false? If so, identify each such statement, and state in relation to each (a) when you came to believe it is false (b) on what information you base your belief that it is false." 26I accept the plaintiff's submission that this interrogatory is relevant to the claim that the first defendant's conduct in failing to apologise justifies an award of aggravated damages. It should be answered. 27Interrogatory 21 is directed to obtaining information about any reaction to the broadcast communicated to the first defendant. It is self-evidently relevant to the issue of reputational damage suffered by the plaintiff. It is in similar terms to the "reaction" interrogatories in Kermode v Fairfax Media Publications Pty Ltd (No.2) [2011] NSWSC 646 which McCallum J ordered to be answered (pars 27-29). The plaintiff is entitled to the answers sought.