WOOKEY -v- QUIGLEY [No 5] [2011] WASC 275 (6 October 2011)

3 Both subpoenas have been answered by the delivery of documents to the Registrar of this Court in the period 48 hours prior to each subpoena being formally returnable in court. Neither subpoena was objected to by the answering party.

4 In the case of the Commissioner for Police, there is a covering letter of Michelle Read of the Legal and Legislative Services Department of the Western Australian Police. Ms Read's letter, dated 12 July 2011, helpfully sets out the response of the Commissioner in respect of each of the 11 categories of documents requested.

5 Save as I will mention, the plaintiff has objected to the defendant's inspection of all produced documents on the defendant's two document subpoenas which are now in the custody of the court.

6 Order 36B r 4(1) of the Rules of the Supreme Court 1971 (WA) (RSC) says:

The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

7 Obviously the plaintiff qualifies as a 'party' who may by O 36B r 4(1) object to inspection. Both parties have filed written submissions in respect of the plaintiff's objection to inspection of the documents produced on the two subpoenas. The plaintiff contends that the categories of documents pursued by the defendant's subpoenas (with the exception of one category that is accepted as relevant) are wholly extraneous to any potentially relevant issue. In effect, the plaintiff contends the subpoenas are an abuse of process and that consequently the court, in whose custody the produced documents now lie, should not countenance abuse by allowing the documents to be inspected.

8 I have approached the matter by reference to the state of the law as discussed in Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 373. There the Full Court approved what had earlier been stated by Moffitt P in the New South Wales Court of Appeal in National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385, in the context of that case as regards an early subpoena for documents:

The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in crossexamination.

(original emphasis)

9 The apparent relevance test that I apply begins by a consideration of issues potentially arising on the pleadings.

10 This is a defamation action in which 11 distinct publications by the defendant are relied upon by the plaintiff as having been defamatory of her. In my reasons for decision in Wookey v Quigley [No 3] [2011] WASC 227, I recently dealt with six of the 11 alleged defamatory publications in the context of the plaintiff's strikeout application brought in respect of many paragraphs of the defendant's recently amended defence pleading.

11 In relation to the inspection of subpoenaed documents and the potential relevance of issues, I am particularly focused here upon the anonymous sixth, seventh and eighth publications as identified in the most recent statement of claim.

12 These anonymous publications were sent to the plaintiff's workplace in Canberra in December 2008.

13 The imputations which the plaintiff contends for in respect of the sixth publication are identified in par 24 of her further further amended statement of claim. Seen there is the asserted imputation of the plaintiff conspiring with David Everett to commit criminal acts against the Australian Government. That is the one popular (false) innuendo contended for by the plaintiff as the natural and ordinary meaning of the sixth publication.

14 As regards the anonymous seventh publication, two natural and ordinary meanings are contended for under par 28. First, under par 28.1, is that, 'the plaintiff is a person of miserable, inadequate character'. Then under par 28.2, the imputation that she 'had carried out criminal acts of graffiti on the defendant's boat and home on 12 October 2008'.

15 The last of the three anonymous publications complained of by the plaintiff, styled the 'eighth publication', is said to carry one natural and ordinary imputation, defamatory of the plaintiff under par 32, namely:

[T]he plaintiff is a person of such miserable, inadequate character that she has to live in an emotionally parasitic relationship with a criminal person.

16 The three anonymous publications are all firmly denied in terms of their authorship or publication by the defendant. Therefore the plaintiff will have to prove at trial on the balance of probabilities that the defendant was responsible for these anonymous publications, which the defendant himself has described as 'hate mail' against the plaintiff. I think that is an apt description.

17 As of 5 September 2011 (following the determination of the plaintiff's strike out application largely in her favour), the pleaded defence to those anonymous publications (apart from denying they carry the meanings contended for and contending that they are not defamatory in the meanings complained of in any event) does not seek to justify the hate mail imputations. This is understandable, given that the defendant says he was not in any way responsible for them.

18 However, beyond the denials there is an affirmative defence raised by the defendant to these three anonymous publications actually pleaded in the defence. This is the statutory defence that, because they were anonymous letters, they were essentially to be assessed as trivial, as it is asserted by the defendant to be unlikely in the circumstances of their anonymous publication that anyone reading them would have afforded them any degree of credibility as against the plaintiff (see s 33 of the Defamation Act 2005).

19 The defendant raises the defence of triviality (to all three anonymous publications) by pars 13B, 13C and 13E of his further reamended substituted defence.

20 The remaining publications to be considered in evaluating the objections raised to inspection occurred on 13, 17 and 19 January 2009. They are styled by the plaintiff in her statement of claim as the Media Publication, which was followed by the Ninth and Tenth Publications respectively.

21 The Media Publication is a facsimile communication of 13 January 2009 sent by the defendant to a journalist at the West Australian newspaper, Mr Robert Taylor, as identified in par 35 of the further further amended statement of claim.

22 The plaintiff's imputations said to arise from the Media Publication, in the natural and ordinary meaning of the words of this publication, are twofold, as identified in pars 36.1 and 36.2, which provide:

In its natural and ordinary meaning, the Media Publication complained of meant, and was understood to mean, that the Plaintiff:

36.1 had made false allegations against the Defendant; and

36.2 was of a character that would deceptively make false allegations about the Defendant in his capacity as a Parliamentarian and personally.

23 The plaintiff then alleges that the defendant is responsible for the newspaper article (which is the Ninth Publication) as a republication which was the natural and probable consequence of the defendant sending the Media Publication to a journalist.

24 The Ninth Publication is a West Australian newspaper article of 17 January 2009, which bears the heading 'Wookey accuses Quigley over letters'. The imputations said by the plaintiff to arise from the newspaper article as against the plaintiff, are fourfold:

In their natural and ordinary meaning, the words complained of in the Ninth Publication meant, and were understood to mean, that the Plaintiff:

40.1 had made false allegations about the Defendant;

40.2 had conducted herself in such a way so as to falsely and maliciously destroy the Defendant;

40.3 is a person of such miserable, inadequate character that she has to live in an emotionally parasitic relationship with a criminal person; and

40.4 had carried out a criminal act of graffiti on the Defendant's fence.

25 The last publication complained of is the Tenth Publication of 19 January 2009. It arises out of a radio broadcast on the radio station 6PR in which the defendant participated. The terms of the broadcast are set out in par 43 of the further further amended statement of claim. Four defamatory imputations are contended for under par 44 by the plaintiff. Relevantly, the third of those four imputations is that the plaintiff was so lacking in moral rectitude as to deliberately corrupt the defendant's young children by exposing them to numerous criminals.

26 I next look at the pleaded responses in the defendant's defence to the Media and the Ninth and Tenth Publications. The defendant denies, as regards all imputations, that they are capable of being found in any of the publications or that even if they can be, that they are capable of being assessed as defamatory of the plaintiff.

27 However, the defendant also raises a defence of justification under par 16 of the further reamended substituted defence as regards the Media Publication, in responding to par 36.1 of the statement of claim which raises the imputation that the plaintiff had made false allegations against the defendant. The justification defence is that if that par 36.1 meaning arose, it was true.

28 As regards the Ninth Publication, the newspaper article of 17 January 2009, the defendant seeks to justify only one imputation (par 40.1) regarding the plaintiff making false allegations about the defendant. The defendant pleads that if that defamatory imputation arises, it is true in substance; see par 21 of the further reamended substituted defence.

29 Finally, as regards the 6PR radio interview of 19 January 2009, the defendant seeks to justify two alternate (Polly Peck) imputations.

30 Of particular relevance to this application is par 25(b) of the further reamended substituted defence which contends for an alternative imputation by way of defence that the plaintiff had, behind the defendant's back, exposed the defendant's daughter to David Everett, a notorious convicted criminal. This alternative defence meaning is pleaded to be true in substance and in fact and particulars are given under pars 25.2 through to 25.6.

31 That completes my summary of the pleadings concerning six publications (of 11) which present as potentially relevant to the inspection objection issues now arising.

32 The earlier five publications complained of by the statement of claim concern email publications of the defendant occurring in 2003 and 2005. They do not raise material considerations of relevance, assessed against the types of subpoenaed documents which are now sought to be inspected and to which the plaintiff objects.

33 Recognising fully that the applicable relevance threshold at this time is not a test of admissibility at the trial, I am looking to the documents delivered up under the two subpoenas as to whether they could contain information of some apparent relevance having regard to the pleaded issues which I have just summarised.

34 Apache was decided in 1998. Things have moved on somewhat since then as regards the prevailing regime of positive case flow management applicable in Supreme Court civil actions, which is designed to keep cases on track, within manageable bounds, and see actions move efficiently to trial.

35 The current case flow management regime now applicable to civil actions was explained by the Chief Justice in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67. In addressing redaction issues arising around certain documents produced on discovery, the Chief Justice noted the introduction of O 1 r 4A and r 4B and the significance of those rules towards the resolution of discovery issues. Although I am dealing with inspection objection issues over documents produced on subpoena, similar considerations guide the task of trying to keep the breadth of documents turned over in preparation for a trial within manageable bounds. It should be remembered that there has been a recent liberalisation of the procedures under which a party in civil litigation may have a subpoena returnable and answered before trial. A former requirement for leave to be obtained for an early return before trial of a document subpoena has been removed: see O 36B r 3(6) and Consolidated Practice Direction [4.3.7] pars 4, 5 and 14 and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276. So the principles applicable to case flow management have intensified since the Full Court decided Apache Northwest.

36 Nevertheless, what is now a relatively unconstrained right for a party to issue a document subpoena returnable before trial is potentially capable of producing forays into fields of documentary irrelevance. This carries with it considerations of expense for the litigation. There is in consequence now scope to compound an already existing problem with a seemingly uncontrollable cost and parameters of the pretrial discovery processes that threatens to render the cost of civil litigation prohibitive for all but the wealthiest of litigants.

37 Accordingly, a firm curial oversight must be kept upon these compulsive pretrial documentary processes, lest they become abused or unduly oppressive in their ramifications for parties to litigation.

38 That is the case management context in which I now come to evaluate the inspection objection issues of controversy as regards documents produced from the Commissioner of Police on the defendant's document subpoenas.

39 There is no controversy regarding item 6, which is the contents of the Police file regarding a complaint made by the plaintiff's then solicitors Lavan Legal in relation to the publication of the anonymous letters to employees of the Australian Government Solicitor in Canberra on or about 10 December 2008, of and concerning the plaintiff Darryl Anne Wookey and David Francis Everett. This request included matters as itemised under pars 6.1 through to 6.9 of the schedule to the subpoena.

40 The Legal and Legislative Services Division of the Western Australian Police has produced copies of the case files regarding those matters. Accordingly, they can now be the subject of inspection by the defendant and also by the plaintiff.

41 The remaining 10 categories of documents produced remain contentious. In the course of dialogue with counsel for the defendant on this application I have indicated my prima facie view in respect of the tenuous connection, as I see it, in terms of even potential relevance, for most of these categories of documents that have been produced. I am confirmed in those views as I explain.

42 Item 1 seeks documents from the Commissioner of Police relating to the criminal record of Mr David Everett. By reason of the strikeout application, the plaintiff is currently in the process of settling a fresh reply. I was told by counsel this morning that the criminal record of Mr Everett will not be put in issue at the trial. It is appropriate then to wait until the reply has been filed in order to see what it says by way of admission. If there is any difficulty in proving what I am led to believe will be the admission of the criminal record of Mr Everett, I will consider a further application by the plaintiff to have access to what has been produced under item 1 in order to prove at trial the criminal record of Mr Everett. If the position is uncontroversial, as is foreshadowed, then the documents will be irrelevant and so, unnecessary to inspect.

43 At this point I am not persuaded as a matter of case flow management that it is necessary to embark upon an excursion into that sort of material where it appears to be uncontentious. Nevertheless, those documents remain in the custody of the court. If something does emerge in future which requires access, both parties have the right to apply for inspection.

44 I now deal with the balance of what is sought to be inspected. First, I will consider items 2, 3 and 4, which were dealt with together in submissions.

45 The contents of the schedule to the subpoena to the Commissioner of Police for these items addressed:

1. All police records and reports that purport to make an assessment of David Francis Everett's danger to the community and his classification as 'Australia's most wanted criminal'. [including reports and assessments on the operational file 'Sinatra' and the TRG file in or about 1992]
2. The statements of material facts in respect of each of the offences referred to in the decision of the Western Australian Court of Criminal Appeal in R v David Francis Everett (1994) 73 A Crim R 550.
3. If in the custody of the police, a record of all persons [names] who visited David Francis Everett when he was serving his sentence of imprisonment imposed by the Court of Appeal in R v David Francis Everett (supra), including the dates of such visits.

46 As regards prison visit records (item 4) the Police response to the subpoena is that there are no such records held in any event (see response of 12 July 2011).

47 As regards items 2 and 3, even accepting a good degree of latitude in terms of potential relevance by way of investigation of the issues, it seems to me, by reference to the issues arising on the pleadings, that what is sought under items 2 and 3 must represent an excursion into gross irrelevance. This is a defamation action between the plaintiff and the defendant. Any suggestion that the partner or husband of the plaintiff, David Francis Everett, will be personally on trial or has a case to answer at this defamation trial, must be firmly rejected.

48 That is not going to be the way this trial is going to proceed. An excursion into some assessment by the Police about Mr Everett at a particular time going back to 1992 presents to me as going well beyond the pale, of even potential relevance. Furthermore, Mr Everett's convictions are matters of record and it does not seem to me to be at all relevant to seek to amplify that record by reference to pursuing gory details as to particulars of what his crimes were in the past. That is wholly unnecessary.

49 The fifth item sought under the schedule is the criminal record in respect of Raymond John Miller of all States and Territories of Australia. It is said that R J Miller is the son of J J Miller. By reference to the pleadings, there is no possible relevance in information regarding this person. In the course of argument I was taken by the defendant to what was said to appear in paragraphs of witness statements already filed for the purposes of this trial. Witness statements however do not set the parameters of relevance for a trial. It is yet to be seen how much of what is in a witness statement will survive to become admissible evidence at the trial. The touchstone for assessing potential relevance is the pleadings, not witness statements.

50 On the basis of orders I have already made, although witness statements have been exchanged, the evidence in this trial is going to be led in the traditional way viva voce. Objections will be taken on the basis of relevance by reference to the pleadings during trial. So the fact that something presently appears in a long witness statement exchanged before trial can say nothing as to how I am going to view an issue as a subject matter for the purposes of making rulings as to relevance at trial.

51 As I indicated to counsel in dialogue, this is a defamation case first and foremost, based around asserted natural and ordinary meanings said to arise from 11 publications and the pleaded defences. Three publications - the sixth, seven and eighth - are anonymous. There will be a significant issue at trial over whether the defendant was the author of those publications. He firmly denies he was the author and the plaintiff carries the onus at trial to prove he was on the balance of probabilities. The proof required for such serious allegations made in the anonymous publications will be a high Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 standard which the law imposes as applicable to the proof of those serious allegations even in a civil context. So I reject the application for access to item 5.

52 Items 8 and 9 seek to obtain the Police files of investigations relating to a vandalism incident by graffiti to a wall and a boat located at West Coast Drive, Trigg, Western Australia in October 2008, being the residence of the defendant.

53 It was contended that it was relevant in these proceedings for the Police investigation files to be produced. They are not being sought by the plaintiff who, as I have mentioned, carries the onus of proof in terms of showing the defendant's authorship of the anonymous publications sent in December 2008 to Canberra.

54 The defendant argues that the files about the Police investigations into these vandalism incidents may potentially be relevant to the disputed issue of the defendant's authorship of the publications which constitute the sixth, seventh and eighth publications of December 2008. However, I cannot see an arguable basis upon which these documents could possibly be relevant, based upon what is pleaded at present. This document enquiry also seems to me to embark upon an excursion into irrelevance. I will not allow inspection as regards categories 8 and 9.

55 Items 10 and 11 have some similarity to items 8 and 9 in terms of their structure. They relate to Police investigation records in respect of criminal damage to the defendant's residence at West Coast Drive, Trigg on 31 October 2004 (see item 10 of the subpoena schedule) and damage to his electoral office at 178 Scarborough Beach Road the same day (see item 11 of the subpoena schedule). Nothing on the pleadings can give one any inkling as to the possible relevance of how vandalism incidents in October 2004 could possibly be related to this defamation case.

56 These documents present to me to be even more extraneous than the attempt to obtain the October 2008 Police investigations of vandalism to the defendant's wall, residence and boat. On that basis, inspection cannot be allowed, even applying a very liberal approach to what could possibly become relevant by way of an investigation of issues arising in a defamation case of this kind. I repeat that what is found in witness statements in circumstances where they are exchanged before trial (but will not be read), does not provide an arguable basis towards relevance to justify inspection. Potential relevance, being a more liberal standard, is also not surmounted.

57 The last item that I return to is item 7, regarding a complaint made to the Police by a journalist at the West Australian newspaper, Mr Sean Cowan, for anonymous emails he received on 1, 2 and 3 October 2008 from an email address, 'curiosity1@live.com.au' and signed 'The Cat'. There is nothing in the pleadings about Mr Cowan or 3 October 2008 which makes the information in item 7 potentially relevant as regards the 11 publications that I am going to evaluate from a defamation perspective at the trial.

58 It is said that there is (somehow) relevance to Mr Everett in this incident with Mr Cowan. It is said that a live issue at trial will be whether Mr Everett truly has reformed or whether he is still continuing in his former criminal ways. The basis for argued relevance is tied back to Mr Everett. The defendant contends that it is a legitimate investigation in terms of what the Police thought about who sent Mr Cowan anonymous emails in October 2008, which coincidentally took place around the same time as the defendant's residence and boat were vandalised.

59 Notwithstanding all that, the focus of the defamation trial must be upon the 11 publications, the natural and ordinary meanings contended for, the defences raised and the 'Polly Peck' alternate imputations which are sought to be justified. Nothing in any of that bears upon Mr Cowan and whether his complaint and the Police investigation might somehow turn up an issue about Mr Everett.

60 Again it seems to me that this exercise in obtaining documents under the compulsive processes of the court before trial, is way beyond the pale in terms of potential relevance. Further inquiry into the identity of 'The Cat' would be an excursion toward further irrelevance. I will not permit such diversionary activity and I decline access to item 7 documents as produced.

61 The subpoena against the Commissioner of Corrective Services, as I indicated, sought the records of visitors to Mr David Francis Everett while he was a prisoner at Casuarina between 1992 and 2002 and the prison file of David Everett.

62 Again, however, it seems that this relates to foreshadowed arguments by the defendant at trial sought to be made over whether Mr Everett has truly changed his criminal ways, or not. But, even if relevant, Mr Everett's rehabilitation or even a lapse, cannot sensibly be assessed by reference to his prison file and who visited him while he was in prison between 1992 2002. That seems to me to be such a stretch that it is also beyond the pale.

63 With a view to trying to keep this looming trial on track and within some manageable bounds, it being already complex enough, the proper dictates of case flow management are strongly against allowing access to such grossly extraneous documents. Again, access to inspect those documents will be denied.

64 The position then is that I have allowed access to the uncontentious item 6 in the subpoena issued to the Commissioner of Police. I have reserved the position in regard to item 1, depending upon whether there is any real need shown for access to Mr Everett's criminal record held by the Police. All other requests for access by way of inspection of the remaining items are refused.