Waterhouse v Perkins & 3 Ors:Waterhouse v Perkins & 4 Ors [2001] NSWSC 13 | Case summary

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:

(c) Was a report given by that psychiatrist to your solicitor? 68 The plaintiff will then no doubt give appropriate response. I will not permit interrogatories as to the content of any such report. 69 I uphold the plaintiff's objections to interrogatories 16 and 17. 70 In relation to interrogatories 24 and 25, in view of the fact that the plaintiff now proposes to answer interrogatories 2 and 3, the plaintiff should, having answered interrogatories 2 and 3, determine whether or not to take an objection to interrogatories 24 and 25 on any basis or to answer it. 71 The next matter is the plaintiff's answers to the second defendant's interrogatories in the first action. 72 Whilst it may be the case that orders and directions in due course will be given as to the exchange of witness statements, the objection taken to the failure to disclose the identity of the "bookmakers" referred to in answer 3B is well-founded. 73 The plaintiff will be required to file a supplementary answer limited to the identification of the "bookmakers" referred to in the interrogatory 3B. 74 I turn now to the particulars in aggravation of damages as set out in the letter dated 27 June 2000. As I have remarked, this letter was delivered pursuant to a direction given by Dunford J on 16 June 2000. The particulars provided are unsatisfactory. 75 The authorities in this regard are clear: see Waterhouse v Broadcasting Station 2GB [1985] 1 NSWLR 58 and my decision in Harrigan v Jones [2000] NSWSC 814. 76 I propose to direct the plaintiff to file and deliver to each defendant a notice specifying the facts, matter and circumstances relied upon in support of the assertion that an identified piece of conduct in fact took place and is available to be relied upon by the plaintiff in aggravation of damages. 77 The plaintiff is not required of course to particularise the evidence but is free to do so if he wishes. It is desirable for the proper management of the trial that a separate document be available in respect of the allegation made by the plaintiff vis-a-vis a particular defendant. 78 These actions are to be tried together, the evidence in one being the evidence in the other, this Dunford J so ordered in his judgment of 29 June 2000 ([2000] NSWSC 641 para 29). 79 I turn now to the application made under Pt 7B of the Supreme Court Act (Mediation and Neutral Evaluation). 80 By letter dated 21 August 2000 Messrs Bush Burke & Co. wrote on behalf of all defendants in both matters expressing strongly the view that the matter should be mediated so as to "see if they can be resolved without the expenditure of large sums of money on legal fees and the tying up of large amounts of valuable court time". An estimate of the length of the hearing in this Court (and it would be an all issues jury trial - save for public interest and privilege) is at least six weeks. 81 It was indicated by Messrs Bush Burke that the defendants had agreed to utilise the services of Sir Laurence Street and certain available dates were offered. It was the defendants' expectation that the mediation would last one day. 82 Significantly the defendants have agreed to pay for all the mediator's costs associated with the mediation: by that I understand from oral submissions that the mediator's fees and the costs of the venue would be paid by the defendants pursuant to an arrangement among the defendants and that all the plaintiff would incur by way of costs is his own legal costs in respect of the mediation. 83 Essentially it was argued in support of the application that by reason of the complexities of the issues between the parties (and there are cross-claims), the length of time taken since the initiation of proceedings (1991 - the first action), what would be the length of time to be taken and the inestimable amount of costs to be incurred in a fully litigated jury trial are factors which at least point to the desirability of the exploration of the resolution of the issues between the parties otherwise than by the trial itself. 84 Both these actions arise from the publication of the book "The Gambling Man". It is a matter of notoriety that there have been many actions in the Defamation List of this Court arising from that publication. I do not propose to go into detail because I do not consider that fact to be of particular relevance. In one action involving Mr Harris there was a trial with a result and appeals have been instituted. That is pointed to given that the parties (defendants) were virtually the same as presently here involved, as a litmus test as to the impact of the resources not only on the litigants but on the Court of a fully contested hearing. 85 At the outset I must say that I do not consider the application made in these actions to be the proper vehicle for pronouncing authoritatively on the circumstances in which compulsory mediation should be ordered in defamation actions. The present actions relate to publications before the coming into operation of the amendments to the Defamation Act in 1994. 86 A new regime is in place in terms of practice applicable above all else to post-1994 defamation actions and the amendments to SCR Pt 67 and Practice Note 114 are designed cheaply and expeditiously first to have the jury component of the action disposed of, and second, to have exposed the remaining issues between the parties for determination by the trial judge. The more useful authoritative statement can be made in relation to defamation actions, in my view, if an application is made under Pt 7B in respect of a post-1994 publication. 87 However, the Court does have the power imposed by s 110K to order mediation without the consent of the parties to the proceedings. 88 An important component of this new part of the Supreme Court Act is s 110L which provides that it is the duty of each party to the proceedings the subject of a referral under s 110K to participate, in good faith, in a mediation or neutral evaluation. 89 Taking into account the matters referred to by both Mr Connell and Mr Caspersonn which are recorded in the transcript, and the very nature of the applications and their multiplicity with which I have just dealt, one could be forgiven for an immediate reaction favourable to the defendants' application. 90 The plaintiff's response to the defendants' application has been entirely negative. The highest expression of this approach was in this statement made by Mr Campbell of counsel for the plaintiff: "There is also the question of a choice of mediator. The plaintiff, for reasons which may or may not be justified, would rather die than accept a mediator selected and forced on him by the defendants and it wouldn't matter if it was the Archangel Gabrielle. They are not offering his services" (T55.20) 91 More seriously, however, the plaintiff does point to a fundamental ingredient in a defamation action, that component of the ultimate remedy that constitutes vindication of the plaintiff in the eyes of the public. It is argued simply that mediation cannot achieve this. I do not know how that proposition seriously can be advanced. It is at least theoretically possible that the outcome of a mediation conducted in good faith by all parties could be a mechanism for the public vindication of the plaintiff. It might not necessarily be so, but to say that it is impossible is quite ingenuous. 92 Litigation of an action of this kind in this Court is one that leads to the determination of what might be described as "rights". Mediation is not conducted to the exclusion of "rights". The mediation might be directed to consideration of "interests and needs" independently of or against the backdrop of "rights' as exposed in the forensic environment. 93 Mediation might well have the advantage of taking the edge off the acrimony as evidenced, for example, by the statement made by Mr Campbell. 94 In any event, the plaintiff is an officer of this Court and if compulsorily ordered to participate he should do so as an officer of this Court fully conscious of the obligations of good faith. 95 Mr Campbell seemed to be preoccupied with what sanction would apply in the event of a party not acting in good faith under s 110L. That remains to be determined. Insofar as that obligation arises consequent upon the making of an order of the Court, it is feasible that one sanction might well be contempt. But I give that no further consideration, at present. 96 Thus it appears that the considerations relevant to the application in this litigation can be summarised as follows: a great deal of time has passed since the institution of each action (1991 and 1996). As at mid-2000 the parties were still engaged in the usual interlocutory squabbles there being little chance, upon the resolution of them, and assuming no further interlocutory disputes (an unsafe assumption in the general course of this litigation), of the matter being heard before the end of 2001. On present estimates that hearing will take at least six weeks and be constituted by the two actions being heard together by one jury. The defendants are clearly concerned about costs and thus it may fairly be said "their financial interests". The plaintiff is clearly concerned with vindication. As I have mentioned above I reject the statement, as too simplistic, that a mediator cannot give vindication. I note in this context that the defendant McPherson's have thrice published an apology in metropolitan newspapers. The fact of one defendant having so apologised, as Mr Caspersonn remarked, may lead to "something" in the mediation process. 97 Further, the only costs in financial terms to the plaintiff will be his own legal costs. That expenditure by him, together with that of the defendants, cannot reasonably be considered a disproportionate diversion of resources (even if the mediation fails) when viewed against the quantification of resources in all their aspects in the further prosecution of this litigation to trial and verdict. 98 It is the law constituted by the will of the Parliament reflected in Pt 7B of the Supreme Court Act and the orders made by this Court itself that the parties are obliged to act in good faith. If they do so, and it is to be presumed that they will, the potential outcomes must be viewed positively when weighed against the dimensions and cost of a trial. I am not persuaded that there is any rational reason for not ordering mediation in the peculiar circumstances of this litigation at this time. The issues are clear as between the parties, if not as refined as parties in defamation actions seem to insist upon, by reason of outstanding interlocutory disputes. 99 With respect to the various matters dealt with in the body of this judgment I will defer making formal orders so that the resources of the parties both in terms of time and costs can the more easily be allocated to the mediation process. 100 As I consider the circumstances appropriate I order that the whole of the proceedings in matter number 13146 of 1991 and 21381 of 1996 be referred for mediation. 101 I direct that in the event of the parties failing to agree upon the identity of the mediator from the list referred to in s 110O within 21 days, I shall appoint a mediator in accordance with s 110K(2). 102 The defendants are to pay the costs of the mediator and the venue for such mediator in such proportions as they may agree among themselves. 103 The plaintiff is to pay his own costs in respect of his attendance at the mediation session. 104 The costs of the various applications otherwise dealt with are reserved. 105 I list the matter for mention at 2 March 2001. ***********

Waterhouse v Perkins & 3 Ors:Waterhouse v Perkins & 4 Ors

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