JUDGMENT (Interrogatories - discovery - Supreme Court Act, 1970 Pt 7B - compulsory mediation)
1 In this first action (1991) the relevant pleadings appear to be as follows (and I leave to one side cross-claims): an Amended Statement of Claim filed 23 August 1996. This alleges that the defendants published the book "in or about 1990 or 1991" (paragraph 5). The particulars purportedly given under SCR Pt 67 r 12(a) state that the book was "first published in November/December 1990 and continuously up to and including the date of the commencement of these proceedings;" proceedings were in fact commenced on 11 June 1991.
2 The defences appear to be made up of the following. An Amended Defence of the first defendant (Perkins) filed on 7 July 2000. This is filed to the Amended Statement of Claim. Defences under ss 15 and 16 (justification/contextual justification) are pleaded as are defences under s 13 (qualified privilege and comment) as well as protected report under s 24.
3 Gordon & Gotch, the second defendant, filed an Amended Defence to the Amended Statement of Claim on 26 June 2000. That defence appears to plead innocent dissemination and justification under s 15 of the Act and contextual justification under s 16.
4 The third defendant (Capricorn Link) appears to have filed only a defence to the Amended Statement of Claim and did so on 11 April 1997 pleading innocent dissemination.
5 The fourth defendant (McPherson's) filed an Amended Defence to the Amended Statement of Claim on 5 July 2000 pleading, so it would appear, lawful excuse or innocent dissemination.
6 The only Reply to any of the defences raised by any of the defendants is the Reply to the first Defence of the first defendant and this Reply was filed on 4 September 1997. This pleading sets out a case to be made in express malice in defeasance of the defence of qualified privilege.
7 The only other relevant document appears to me to be a letter dated 27 June 2000 from Messrs Waterhouse solicitors sent pursuant to a direction given by Dunford J on 16 June 2000. It purports to particularise a case against all defendants on aggravated damages. On its face this letter does not discriminate between the first and indeed, the second action to which I now turn.
8 The second action was commenced on 9 December 1996. The relevant pleadings appear to be the Statement of Claim against Perkins as first defendant, what I will describe as Globe Press as the second defendant, Capricorn Link as the third defendant and Mr and Mrs Inwood, fourth defendants.
9 In paragraph 5 it is alleged that in 1991 the defendants published the first "re-print" of the book.
10 In paragraph 6 it is alleged that in 1992 and thereafter the defendants published the second re-print of the book.
11 To that Statement of Claim I am unable to find any Defence filed by the first defendant (Perkins). There is however, on the file a Defence of the second defendant (Globe) filed on 16 March 1998 raising essentially a defence of innocent dissemination. It is interesting to note that on the back sheet of that pleading there is no reference to Mr Perkins as the first defendant.
12 A similar observation as to the back sheet can be made as to the Amended Defence of that second defendant Globe filed on 26 June 2000 which pleads innocent dissemination, justification and contextual justification. The Defence of the fourth and fifth defendants, Mr and Mrs Inwood, filed on 11 April 1997, points to Mr Perkins being the first defendant (see the back sheet); there follows some purported cross-claims. In connection with this action, as I understand it, the letter referred to above dated 27 June purporting to provide particulars of aggravated damages is equally applicable.
13 Various matters were argued before me on 23 August 2000.
14 Mr R A Campbell appeared for the plaintiff, Mr Beazley for the first defendant, Mr Connell for the second defendant in both matters, Mr Stienissen for Capricorn Link, the third defendant and the fourth defendant, was represented by Mr Caspersonn.
15 It must be remarked that neither action can be fairly described as "in order". To some extent this may be explained by the resolution of certain aspects of the cross-claim litigation that has been instituted.
16 The various matters involved in submissions before me on 23 August related to the sufficiency of answers to interrogatories and questions of discovery. The more substantive application in relation to compulsory mediation is something to which I will return in due course.
17 In the first action, as between the plaintiff and the first defendant, MFI 1 is the answers to interrogatories delivered by the first defendant in respect of which complaint is made as to some of them. I make the following orders.
18 In relation to interrogatories 7, 17(b) and 17(c), the answer should be re-sworn to contain the information referred to in other persons answers to interrogatories on which the first defendant purports to rely.
19 As to interrogatory 28 I will direct that the same approach be taken as is applicable to so much of the purported answer to interrogatory 17 in respect of which I have ruled above.
20 As to interrogatories 12, 17(f), 18(f), 19(f), 29, 30 and 33(c) I decline to order any further answers; this is an improper attempt by the plaintiff to seek further and better discovery or to go behind sworn Verified List of Documents.
21 As to interrogatory 13; the first defendant having elected to answer it, he will be required to re-answer it by identifying the "publisher".
22 As to interrogatories 17A(a) to 17A(e), the first defendant insofar as the answers have not otherwise been dealt with, will be required to provide answers. This not does, of course, go to interrogatory 17A(f).
23 Interrogatory 18 is not to be answered. The reason for this is that it refers to the "first re-print" of the book. That does not appear to be the subject of the first action. It has not been properly particularised in the letter dated 27 June 2000 as a matter going to aggravation of damages.
24 Interrogatory 19(a) need not be answered on the same basis.
25 Interrogatory 20 need not be answered because it refers to "each additional print". The answer provided by the first defendant in interrogatory 20B is sufficient.
26 Interrogatory 21: the first defendant has chosen to take objection on the one hand and then purport to answer it on the other. The purported answer is, in any event, non-responsive. If an answer is delivered taking the objection in the first part of the present answer, that objection will be upheld. If an answer is delivered referring to "profit" but without taking any objection, that answer will not be upheld. It is non-responsive to the question. Within that context how the first defendant re-answers interrogatory 21 will be a matter for him.
27 As to interrogatory 22: the first defendant has elected to provide an answer; he will have to re-answer that interrogatory by identifying the "publisher".
28 Interrogatory 23: I uphold the objection contained in the second part of the answer.
29 Interrogatory 24: I uphold the objection taken in the second part of the answer.
30 Interrogatory 27: I uphold the objection.
31 Interrogatory 28: I uphold the objection contained in the second part of the answer.
32 Interrogatory 31: this is an irrelevant interrogatory.
33 As to interrogatory 33(a): I hold it to be relevant in relation to the publication of the matter complained of the subject of the first action, namely the first printing of the book, as I understand it: and will direct answers to be provided to interrogatories 33(a) - (g).
34 As to interrogatories 34, 35 and 36 I will direct the first defendant to provide proper answers to these relevant interrogatories.
35 As to interrogatory 41: this has been answered.
36 Interrogatory 42 is in dispute. I uphold however the objection taken by the first defendant to answering this interrogatory. The interrogatory is, in my view, wide-ranging, vexatious and oppressive and is not sufficiently focused.
37 The next matter is the second defendant's (Gordon & Gotch) answers to the plaintiff's interrogatories in the first action.
38 Prior to dealing with this matter it is interesting to note the expression used by counsel for the plaintiff in support of some of the interrogatories sought to be pressed. It was an expression in terms that the plaintiff is entitled to "probe". The plaintiff is entitled to seek admissions on facts relevant to matters in issue between the parties. The plaintiff is not entitled to "probe". The plaintiff is not entitled to "fish".
39 Given the issues as they are capable of being ascertained from the material in this first action to which I have referred above, in the first action I uphold the objections to the answers to interrogatories as argued by Mr Connell of counsel. The second defendant is not required to answer interrogatories 8, 10, 11, 13, 15, 20, 21, 26 and 27.
40 The third matter in connection with the first action is the dispute between the plaintiff and the fourth defendant with respect to the fourth defendants answers to interrogatories.
41 The interrogatories in issue are 8, 9, 13 to 17, 19, 20, 22 and 23.
42 As a general proposition these interrogatories are wide-ranging and are non-specific as between the plaintiff and the relevant defendant and that for which it is alleged the relevant defendant is responsible as a publisher. This basis which founded the submissions by Mr Caspersonn for this defendant has, in my view, been made out generally in relation to the interrogatories in dispute. However interrogatories 19 and 20 cannot pass without further remark because of the use of the expression "doubtful or defamatory matter" What does that mean in the context of an interrogatory on the issues strictly between the plaintiff and this defendant? It is oppressively unclear.
43 I decline to order the fourth defendant (McPherson's) to provide any further answers to interrogatories.
44 In the second action (1996) the plaintiff complains about the second defendant's (Globe) answers to interrogatories 4, 5, 7, 8, 9, 14, 15, 17 (there are 2 interrogatories numbered 17 which is a problem in itself), 22, 23 and 24. The state of the clarification of the issues in the second action is somewhat more opaque than the issues in the first action.
45 A particular defect in pleading and particulars is the failure of the plaintiff to raise any matter in defeasance of the defences of innocent dissemination. That failure precludes the exposure of issues in respect of which it can be said that interrogatories relate to matters in issue.
46 I decline to order the second defendant further to answer interrogatories in the second action.
47 In the course of the convoluted hearing that took on 23 August, a dispute arose in relation to what is described as a "tit-for-tat" complaints made to the relevant disciplinary body by two firms of solicitors.
48 At page 22 of the transcript I made an order and gave a direction that with respect to the particulars of aggravated damages set out in the letter of 27 June 2000 from Waterhouse Solicitors to Phillip J Beazley, paragraph 5 on page 4, the plaintiff and the parties referred to in that paragraph 5 were within 14 days to deliver to each other lists of documents on that issue.
49 Insofar as there is any outstanding issue as to discovery, claims for privilege and the like, I am in no position to judge as a I have no idea as to whether or not the direction I gave on 23 August 2000 has been complied with. If it has not that will no doubt give rise to yet again another listing of this matter in the Defamation List. If it has, more likely than not, that as well will give rise to another listing of the matter in the Defamation List to deal with any dispute on that discrete issue.
50 The next matter, as I understand it, is some dispute in relation to discovery as between the plaintiff and first defendant. The relevant bundle of correspondence is MFI 5 kept with the Court file. I decline to order at this stage any further list of documents to be filed by the first defendant vis-a-vis the plaintiff in the light of the contents of the letter of 14 July 2000 from Messrs Waterhouse Solicitors to Bush Bourke & Co.
51 The next matter is an application by the second defendant Gordon & Gotch for further and better discovery.
52 The plaintiff has delivered two Verified List of Documents, the first sworn on 20 November 1991 and the second on 11 December 1998.
53 Exhibit A is a bundle of correspondence passing between Messrs Bush Burke & Co and Messrs Waterhouse solicitors. By letter dated 15 August 2000 Messrs Bush Burke & Co. wished to be provided "as a matter of urgency" - rather odd since the list was delivered 11 December 1998 - the documents referred to therein. Mr Campbell made it perfectly clear in the course of submissions that either in the usual way an appointment could be made to inspect them or upon the usual undertaking to pay the photocopying costs, copies will be provided.
54 That is a matter I will leave entirely in the hands of the parties.
55 An application is made for further and particular discovery founded, to some extent, in what in fact is contained in the plaintiff's list of documents sworn on 11 December 1998 (annexure B to the affidavit of Joseph Kouper sworn 28 June 2000), and to some extent as to material in respect of which no discovery has been given. The categories of documents as I understand it, are: (a) all documents relating to the incidents in relation to explosives, subsequent charges and the manner in which they were dealt with (as described in the matter complained of); the basis is that the truth or falsity of these matters is now directly in issue by virtue of the plea of truth to the plaintiff's imputation (a) and the contextual imputation set out in 10(a)(i) - (xiii).
56 In relation to this the plaintiff has discovered "depositions from the Children's Court in respect of which a suppression order was made". I understand from discussions at the bar table that the plaintiff was 15 years of age when these alleged events occurred. I further understand that in relation to the depositions as they are described, some claim for privilege has been made. I do not understand that claim to have been tested hitherto. I certainly did not understand it to have been tested on 23 August 2000.
57 It seems to me that in the peculiar circumstances attending the plaintiff and given his age, to require further discovery of such broad based material is oppressive and I decline to do so. If this case ever goes to trial no doubt the defendants will issue the usual subpoenas to the usual authorities on the return of which the usual applications are available to be made under relevant legislation. I happen to note that Dunford J to some extent dealt with matters that could affect this kind of material in his judgment of 15 June 2000.
58 The next category of material in respect of which further and particular discovery is sought is "all fee books, cashbooks, financial records and tax returns relating to the plaintiff's practice as a solicitor for the period 1991 to date".
59 The next category is "all fee books, cashbooks, financial records and tax returns relating to the plaintiff's practice as a barrister and solicitor up until 31 December 1982".
60 It is a matter of record that the plaintiff was admitted to practice as a barrister on 6 February 1976 and admitted to practice as a solicitor on 14 September 1979. It is said that these documents should be discovered because they relate to the notion of the plaintiff being a failed barrister and a failed solicitor as referred to in the matter complained of.
61 Mr Campbell of counsel for the plaintiff (T37.55) made the point that any professional person if he was to try to think of all the documents which related to his practice over a period of 10 years would need a "dump truck" to deliver them for inspection; that is, having considered what the documents were, found them and listed them.
62 I am not presently persuaded that it is appropriate to order the plaintiff to file a list of documents covering either of these categories; it is disproportionately oppressive. It smacks of deliberate oppressive, intrusive, fishing conduct on the part of the applicant. Even if as is suggested the truth or falsity of the imputations relating to failure as a barrister or solicitor gives rise to matters in issue that might in the ordinary course lead to the requirement of discovery, in the exercise of my discretion, the circumstances are such, I find, to be oppressive and I decline to make the order (cf. Tabe v Amalgamated Television Services Pty Limited (1987) A Def R 50,025 per McLelland AJA).
63 The next category of documents is "fishing". The short point is this. If the plaintiff at the age of 15 suffered some sanction by way of the operation of the criminal law, did he disclose it in his application for admission to practice either as a solicitor or as a barrister? If the defendant wishes to agitate that matter the records of the Supreme Court of NSW may be available. I accept that the plaintiff has kept no records in relation to his application for admission, and the plaintiff is not required to give further discovery.
64 The final category of document is really a request for amplification, I suppose. The plaintiff has discovered as document 18 in Schedule 1 Part 1 of the list of documents sworn 11 December 1998 something described as "documents of W. S. Waterhouse used by the plaintiff in acting on his behalf". I have great difficulty in understanding what that phrase means. It is contended that the documents should be itemised and discovery in a complete form given. The plaintiff having chosen to "discover" this category of document should give further and better discovery by reference to categories of documents only and an order to that effect will be made.
65 The next matter in the first action is the plaintiff's answers to interrogatories of the first defendant. To some extent as between the plaintiff and Mr Beazley, an accommodation was reached. Answers are to be provided to interrogatory 2, 3, 4, 5, 6, 12 and 13.
66 Unhelpfully, it was submitted for the first defendant, that the answers to interrogatories 8 to 13, 16 and 17 are "nonsense". It is said that the answers are "specious". I disagree and I uphold the objection to interrogatory 8, 9, 10 and 11.
67 The first defendant has offered to re-draft the interrogatory 14. I uphold the plaintiff's objections to answering interrogatory 14 in its present form. I will allow the first defendant to administer interrogatories to the following effect: