Wayne v The Owners Corporation SP64622

Judgment 1The plaintiff by notice of motion filed on 20 November 2014 seeks the following orders: (1)The defendants serve on the plaintiff within 21 days a statement verified by affidavit in accordance with UCPR 22.3 in answer to the interrogatories, a draft of which is annexure 'A' to the affidavit of David Wayne sworn on 20 November 2014 in these proceedings. (2)Such further or other order as the court thinks fit. (3)Costs of this motion to be costs in the cause. 2The affidavit in support asserts that the questions to which the plaintiff seeks answers are necessary "as they directly relate to the matters complained of and the real issues in dispute" on the basis that "I believe the defendants have communicated a slander". The plaintiff seeks to interrogate the defendants "to enable the plaintiff to properly plead my [sic] case against the defendants" (paragraph 8). 3I will not set out the text of the 94 proposed interrogatories. There are 16 questions administered to the third defendant, 29 to the fourth defendant, 29 to the fifth defendant and 20 to the sixth defendant. The matters the subject of enquiry range from whether the sixth defendant is a Justice of the Peace, the "evidence" provided to substantiate the matter complained of, whether complaints were made to the police (and if so, what was said), and "in what respects do you allege that the words constituted an unfair or inaccurate report" in relation to a document the plaintiff asserts was tendered at the meeting. 4The basis upon which the plaintiff seeks the interrogatories is that they are "necessary" (r 22.1(4) Uniform Civil Procedure Rules 2005 (NSW)) in that they "directly relate to the matters complained of" and "the real issues in dispute". Counsel for the defendants have pointed out, in their respective helpful submissions, that there is no evidence: (a)As to the information presently in the plaintiff's possession; (b)As to the efforts (including conversations, correspondence, subpoenas or other materials) the plaintiff has made to obtain information; (c)The extent to which those efforts have borne fruit; (d)As to why he has repeatedly changed the content, timing and circumstances of the slanders pleaded in the four statements of claim filed during the course of 2014; (e)As to where he obtained the very specific and lengthy terms of the slander he has pleaded at Paragraph 9 of the Amended Statement of Claim filed 13 November 2014, and as to why he considers this source so unreliable that he requires interrogatories. 5The text of the publication in the currently pleaded statement of claim could not be clearer. What is asserted is that the fourth and fifth defendants uttered separate slanders at the meeting on 30 April 2013 in front of the persons present, who are listed. The third defendant is their employer. The basis upon which the sixth defendant remains in the litigation is unclear, but that is principally because no words are attributed to him. 6This application is misconceived. The plaintiff has conflated the entitlement of a party to ask interrogatories at the close of interlocutory steps with the very limited entitlement of a plaintiff to seek interrogatories in order to establish that a defendant has published allegedly defamatory matters to a person or persons whom the plaintiff has so far been unable to identify, and/or on occasions he has so far been unable to specify. 7The nature of this special exception is explained by Hunt J in Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294. The evidence before the court on that occasion is described by Hunt J at 295-296 as follows: "Evidence has been led by the plaintiff (including a memorandum produced on subpoena by GMAC recording the relevant telephone communication from the defendant) which establishes at least one of the publications of which complaint is made in the statement of claim. It is conceded by the defendant that its business is that of a credit agency. It is, in my view, a matter of general knowledge or notoriety that the nature of such a business is to collect information relating to the credit-worthiness of traders and consumers and to supply that information to members or subscribers who may make credit checks concerning traders or consumers. Such information is generally supplied pursuant to a contractual duty to do so. If in the case of GMAC the defendant published the statement that the plaintiff had been made bankrupt, the inference is in my view clearly open from the very nature of the defendant's business that the same or similar information has been published to any other inquirer concerning the plaintiff's credit. This is a sufficient indication of the nature or the purport of the publication to those other subscribers concerning which discovery is sought: Macintosh v Dun (1904) 21 WN (NSW) 200, at p 201. ... Thus, without reliance upon this additional material in the memorandum, I infer that the defendant would have published statements that the plaintiff had been made bankrupt to persons other than GMAC. In these circumstances, the application cannot, in my view, be characterized and dismissed as a fishing expedition." 8Similarly, an order was made in Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11. The issue there was publication outside Australia. Nicholas J said at [8]-[9]: "[8] Neither party has adduced any evidence of actual international publication of the matters complained of. The plaintiff submitted that it is a matter of notoriety or general knowledge that "The Sydney Morning Herald" is a, if not the, principal newspaper in Australia with nationwide circulation from which it may be inferred that it is likely that the edition sued upon were published in places beyond Australia. For the defendant it was acknowledged that it could be reasonably inferred that it is the usual practice of the defendant to make the newspaper available in places overseas (T p 30). Nevertheless, it did not accept that the matters complained of had been published in any form outside Australia (T pp 9, 10). It was put that, absent evidence from the plaintiff, the question of the likelihood of such publication was speculative only, and the basis for the inference had not been established. [9] In this case, the inference in my view is clearly open. Although the defendant's concession is not, in terms, an admission that the matters complained of were in fact published to any person in a place or places beyond Australia, it is consistent with, at least, the likelihood that they were. This conclusion is reinforced by the absence of evidence from the defendant of any departure from its usual practice, or otherwise to the contrary. If the matters complained of were not published beyond Australia it was open to the defendant to say so and, to adopt the words of Reynolds, J in Oswin v Radio 2UE Sydney Pty Ltd (1968) 1 NSWR 461 at 463, I am unimpressed by the argument that the plaintiff must fail because he did not show affirmatively that such publication did take place. In any event, and regardless of the defendant's acknowledgement, I accept the plaintiff's submission that it may be inferred from the very nature of the defendant's newspaper and its business that it is likely that editions containing the matters complained were published beyond Australia, for example, in embassies and in aeroplanes." 9Finally, in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 the plaintiff brought proceedings for defamation against the persons who spoke to a broadcaster (as opposed to the broadcaster) relying upon the transcript of the interview and working backwards. McCallum J noted (at [25]) that the pleading of the oral publication in relation to certain of those defendants was embarrassing, because it did not provide the whole of any single publication sought to be sued on, or the context, in circumstances where it was clear from the transcript that words had been spoken, but the nature of what those words were was not the subject of precise identification. Her Honour accordingly made an order as follows (at [29]): "[29] Dealing with the last point first, in my view no order should be made for the sixth defendant to answer interrogatories in the terms served. As submitted on his behalf, the form of the interrogatories is dense and confusing and is complicated by the inclusion of the phrases "relating to" and the phrase I have elsewhere described as "the rogue conjunction", namely "and/or". The plaintiff in my view is entitled to no more than leave to administer an interrogatory (if at all) in the terms proposed by Ms Wass, as follows: Did you say [X] or words to that effect? and If so, what were the exact words spoken?" 10Her Honour explained the reason for this order (at [36]) as follows: "[36] The appropriate course in my view is to afford the plaintiff an opportunity to draft a further form of interrogatory which he would seek to have answered. I would indicate that, if the sixth defendant objects to the further interrogatories proposed, I would not grant leave to administer any interrogatory that went further than to pose a question in the terms suggested as being appropriate by Ms Wass in her written submissions at para 6. Whether that question should be posed by reference to the transcript of the interview from The Sunday Telegraph or some other material is perhaps a matter upon which the parties could agree. But absent agreement, the transcript of the interview in The Sunday Telegraph appears to me to be the appropriate point of reference for the plaintiff's proposed claim against Mr Irvine." 11None of these exceptions apply in this case. First, I am satisfied that the plaintiff has failed to establish that he is unable to frame his cause of action precisely, or that he requires interrogatories in order to do so (Dank v Cronulla-Sutherland District Rugby League Football Club at [31] and [35]; Atkinson v Fosbroke (1866) LR 1 QB 628; Russell v Stubbs Ltd [1913] 2 KB 200). Mr Richardson submits, and I accept, that the plaintiff is attempting to "see if he can find a case... of which at present he knows nothing" (Russell v Stubbs Ltd at [204]). 12Secondly, there is no evidence of uncertainty as to what was said. In Dank v Cronulla-Sutherland District Rugby League Football Club McCallum J had a transcript before her in circumstance where a question arose as to the accuracy of material in that transcript. No comparable evidence exists here and the plaintiff cannot establish that his interrogatories are unnecessary. 13Thirdly, the nature of the questions asked indicate that the plaintiff is not only on a fishing expedition, but, by reason of the sheer number of questions irrelevant to the issue of publication, making a request which is both oppressive and futile: Kaiser v George Laurens (NSW) Pty Ltd at 297C and 297E. 14The plaintiff referred in his submissions, on a number of occasions, to having sought these interrogatories because he is a litigant in person. As I indicated in my previous judgment (Wayne v The Owners Corporation SP64622 [2014] NSWDC 217), the fact that a party to litigation is self-represented is not a licence to bring hopeless applications before the court (see Mbuzi v Hall [2010] QSC 359; Mbuzi v Griffith University [2014] FCA 1323). 15Accordingly the plaintiff's notice of motion will be dismissed with costs.