Constantine v Amalgamated Television Services Pty Limited [1999] NSWSC 1250

New South Wales Supreme Court CITATION : Constantine v Amalgamated Television Services Pty Limited [1999] NSWSC 1250 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20341 of 1995 HEARING DATE(S) : 5 February 1999 JUDGMENT DATE : 17 December 1999

JOHN CONSTANTINE (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J

N Abadee (Plaintiff) COUNSEL : T Blackburn (Defendant) Blake Dawson Waldron (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Interrogatories DECISION : See paragraph 22

DLJ: 1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20341 of 1995

JUSTICE DAVID LEVINE

FRIDAY 17 DECEMBER 1999

JOHN CONSTANTINE (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LTD ACN 000 145 246 (Defendant)

JUDGMENT (Interrogatories) 1 The plaintiff sues in respect to a telecast on "Today Tonight" on 14 February 1995. The only substantive defence is common law qualified privilege and privilege pursuant to s 22 of the Defamation Act 1974 with cognate defences pleaded in respect of publication interstate. 2 The Reply alleges that the defendant was actuated by express malice and provides detailed particulars pursuant to SCR Pt 67 r 19. These particulars indicate a case, which if proved, would put the plaintiff in a strong position. 3 A dispute has arisen in relation to interrogatories administered by the plaintiff. The defendant's position generally is that it must be borne in mind that an order will not be made pursuant to SCR Pt 24 r 5(2) unless it is necessary at the time the order is made that the relevant interrogatories be administered. I was referred by Mr Blackburn to the statements of approach in the light of modern litigation practice expressed in the Supreme Court of the Australian Capital Territory, in, for example, Ryan v Federal Capital Press of Australia Pty Limited (1990) 101 FLR 396 per Miles CJ at 397; Packer v The Australian Broadcasting Corporation & Ors (Master Hogan. unreported, 31 March 1993); and, Carnell v Spier (Miles CJ, unreported, 3 June 1997). I was also reminded of the statement of principle by Myers J in American Flange & Manufacturing Co Inc. v Rheem (Australia) Pty Limited (No. 2) (1965) NSWR 193. 4 Ms Abadee for the plaintiff relied upon the decisions of Hunt J in Palmer v John Fairfax & Sons Pty Limited (1986) 5 NSWLR 727 (at 731-2); Brown v Australian Broadcasting Corporation (Hunt J, unreported, 5 February 1987); Wran v Australian Broadcasting Commission (1984) 3 NSWLR 241 at 250-1. 5 An attempt by the parties was made to resolve the dispute. A schedule was prepared in accordance with desirable practice; but it was incomplete. The action is listed for hearing on 14 February 2000. I propose therefore, taking into account the submissions for each side, merely to express my view as to the requirement in relation to each disputed interrogatory, my finding being in accordance with my acceptance of the relevant party's submissions thereon. 6 Interrogatories 11 and 12: disallowed. 7 Interrogatory 14: disallowed. 8 Interrogatory 20: it is noted that this is to be re-administered and it will be allowed. 9 Interrogatory 21: allowed. 10 Interrogatory 24(a): allowed. 11 Interrogatory 24(b): disallowed. 12 Interrogatories 25 and 26: allowed. 13 Interrogatory 28(d): it is noted that this interrogatory is not pressed. 14 Interrogatories 33, 34 and 35: allowed. 15 Interrogatory 37: allowed. 16 Interrogatories 39, 40 and 41: allowed. 17 Interrogatories 43 and 44: allowed. 18 Interrogatory 45: disallowed. 19 Interrogatories 46 and 47: it is noted that these interrogatories are not pressed. 20 A factor that has persuaded me to find in favour of the plaintiff in relation to the bulk of the contested interrogatories is the particularised case of malice in the Reply and what relevantly, arguably and necessarily can follow from the documents appended to the interrogatories, particularly by way of seeking admissions. 21 I note the uncontested remarks of Mr Blackburn in the context of costs of this application heard before me so long ago (regrettably) as 5 February 1999. It appears that the plaintiff has accepted the defendant's position in relation to the interrogatories from number 48 onwards (to 53) and they were a substantial number of interrogatories. It seems appropriate, taking into account those that have been allowed, those that have been disallowed, those that have not been pressed and the one that is to be re-drafted, that the order for costs in relation to the application be that each party pay its own costs. 22 Accordingly the formal orders are: