New South Wales Supreme Court CITATION : Bryson v Casey & Anor [2000] NSWSC 1011 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20780 of 1995 HEARING DATE(S) : 27 October 2000 JUDGMENT DATE : 27 October 2000 JOHN HENRY BRYSON (Plaintiff) v PARTIES : RONALD CASEY (First Defendant) HARBOUR RADIO LIMITED (Second Defendant) JUDGMENT OF : Levine J M Evans (Plaintiff) COUNSEL : R G McHugh (Defendant) Uther Webster & Evans (Plainiff) SOLICITORS : Bush Burke & Company (Defendant) CATCHWORDS : Interrogatories - requests for particulars DECISION : See paragraphs 24 to 30 DLJ: 2 (Ex Tempore - Revised) [2000] NSWSC 1011 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20780 of 1995 JUSTICE DAVID LEVINE FRIDAY 27 OCTOBER 2000 JOHN HENRY BRYSON (Plaintiff) v RONALD CASEY (First Defendant) HABOUR RADIO LIMITED (Second Defendant) JUDGMENT (Interrogatories - requests for particulars) 1 HIS HONOUR: The issues between the parties can be identified to a very great extent in the usual way by reference to the pleadings in this action. The first is the Amended Statement of Claim filed pursuant to my own orders on 15 November 1996. The action arises from the publication by the defendants of certain material in a talk back radio programme on 28 June 1995. The causes of action, of which there are eight, are constituted by the imputations pleaded. 2 The Defence filed for the defendants of 13 May 1997 raises the substantive defences of truth under s 15, contextual truth under s 16, unlikelihood of harm s 13, qualified privilege under s 22 and at common law, comment pursuant to ss 32 and 33, comment of a stranger s 34, and in par 11 what is headed as "Fair Protected Report", the subject of which is said to be certain proceedings in public of a court. 3 The third pleading is the Reply filed on 1 May 1998 which joins issue and asserts express malice, but otherwise, on its face, does not appear to raise anything expressly in defeasance of the defences as provided by the Defamation Act itself. 4 Be that as it may, the issues are of a kind that would in the normal course - certainly prior to the promulgation of Practice Note 114 and amendments to the Rules in September of this year - would have generated an immense exchange of correspondence relating to particulars. It is not as if there has been no correspondence in respect of particulars in this litigation. My attention has been drawn to an exchange of correspondence commencing on 4 June 1997 proceeding to 27 October 1997, and I understand there has been later communication in this regard. 5 On, what appears to have been, 10 October a Notice of Motion was filed by the plaintiff consequent, as I understand it, on orders and directions made on 1 September seeking orders that the defendants provide answers to a set of interrogatories attached to the notice of motion. The point has been reached today where the number of interrogatories substantially has been reduced and a document entitled "Short of Minutes Orders" sets out a total of twelve questions which constitute one component of disputed interrogatories. The second component is a dispute in relation to approximately seven of the original set of interrogatories. 6 I turn first to the short minutes of order. The defendants are prepared to answer what is described as 1.1 provided that it is anchored in appropriate wording in the matter of complained of, and the plaintiff has no objection to taking that course. 7 As I understand it, with respect to 1.2, there is no objection to that interrogatory being answered as an interrogatory. 8 Questions 3 to 8 in the Short Minutes are framed as interrogatories, and, as I understand it from their terms, are founded in the defendant's list of documents. With respect to question 3 to 7, the plaintiff has stated through Mr Evans that on the plaintiff's side there is a suspicion, or an understanding, or an assertion of fact perhaps, that the various statutory declarations referred to in questions 3 to 7 could have been obtained by a person known as Kerry Smith, a Queensland solicitor, who has "notorious views" about the plaintiff, Mr Bryson. 9 That being so, it is submitted for the plaintiff that, at least, there would be some forensic benefit in the plaintiff having the information which he wishes to receive in sworn answers to these questions. As the litigation is presently structured, in terms of the pleadings, and such particulars as there are appended to them, and in terms of such particulars as have been exchanged, I am not persuaded that the matters of "what circumstances" and "by whom" relate to any exposed issues. I decline to order the defendants to answer those five questions as interrogatories. 10 As to question 8 in the short minutes, it is argued for the defendants that the circumstances of the documents referred to coming into the possession of the defendants might be of some relevance depending upon when, and by when I mean in relation to the date of publication of the matter complained of. Thus, it was intimated by Mr McHugh for the defendants that a restructured series of questions, the first of which would clarify the chronology, would be entertained by the defendant. 11 The plaintiff will have leave to administer such a restructured proposed interrogatory 8. Nonetheless, any restructured interrogatory 8, insofar as it would embrace matters raised in proposed interrogatories 3 to 7, would have to avoid provoking what might well be a legitimate objection as to the interrogatory seeking to go behind, in an inappropriate and improper way, the defendants' list of documents. 12 As to interrogatory 9 in the short minutes, even on the assumption that the word "implication" was corrected to read "imputation", I understand the proposed interrogatory to be no more than a request for particulars (which is not necessarily fatal to an interrogatory), but which in the practice of the defamation list, at least if allowed as an interrogatory, would not be required to be verified in the response. 13 As to sub-paragraph (d) of proposed interrogatory 9, if it relates to identifying some part of the matter complained of as giving rise to the contextual imputation, that should be asked by way of a request for particulars in the usual way. If it is seeking to go further than that - and I must say the language of sub-paragraph (d) is not quite clear - if it is seeking otherwise particulars of the facts, matters, and circumstances on which the defendants are relying in support of the truth of the contextual imputation, that question should be asked by way of request for particulars. I, therefore, disallow proposed interrogatory 9. 14 I note a further submission in relation to the interrogatory 9 question (c). It is contended that the issue of when a relationship ended is irrelevant; when it started is said to be the critical factor. The contextual imputation reads: "The plaintiff is a morally, worthless despicable lecher, who repeatedly had sexual relationships with vulnerable schoolgirls more than 20 years his junior." Life being what it is, the age gap would never narrow. I am to some extent in the dark as to the finer details of this litigation. If a request for particulars is made, as to when a relationship ceased, and the defendants' position is that it is irrelevant, then that would be the time to take it and we can deal with it. It might depend on the identity of the other party to the relationship. 15 I disallow proposed interrogatory 10 in the short minutes of orders as not being necessary, as being vexatious, and oppressively wide ranging. 16 I disallow interrogatories 11 and 12 in their present form. Redrafted as proper interrogatories they might seek admissions at least that relate to the defences of privilege or fair report. That observation is made in relation to 11 and 12 generally. 17 A further objection is taken to 12, and rightly so in my view, and it relates to the second component of the proposed interrogatory. That seems to call into question the defendants' discovery and otherwise might be viewed as intrusively fishing. 18 I turn to the original set of interrogatories as appended to the notice of motion. 19 In relation to 4, 9, 15, 18, 21 (a), 21 (c), these appear to be interrogatories relating to the matter complained of. There is no question the plaintiff would be entitled to proper particulars of the defendant's case of justification of the imputations carried by the matter complained of. If that is the information being sought, then it should be sought in my view in this litigation first by a proper request for particulars, not only to conform with the usual practice, but to avoid the otherwise paradoxical situation that, if allowed as interrogatories, they would not be required to be verified as answered in any event. 20 Interrogatory 22, as originally asked, requires a response to the inquiry as to which part or parts, if any, of the matter complained of constitute a report of the statement of Mr Whelan MLA in the Parliament of this State on 14 December 1993. The first observation to be made is that the action as presently structured does not defend the matter complained of or the imputations as a protected report of those proceedings in parliament. There is no substantive defence to that effect at all. The issue of what Mr Whelan said in parliament arises in the particulars of a case the defendants propose at this stage to make in mitigation of damages. One component of the case is said to be the circumstances surrounding the broadcast was the matters set out in par 4 (a), namely, a statement made by Mr Whelan in parliament. On its face, therefore, proposed interrogatory 22 cannot be said to relate to any matter in issue between the parties and the defendants are not required to answer that interrogatory. 21 These proceedings would otherwise be approaching the point where they could be set down for hearing. 22 The problems that have confronted the parties in Court today, and the Court itself, really boil down to having arisen from there not having been the traditional exchange of requests for particulars and replies. 23 What I am about to say I am not suggesting is the effect of my rulings on the individual matters dealt with: but it seems to me to be an appropriate course for the parties to consider their papers, as it were, to decide from the plaintiff's point of view, in the light of what I have said, "What particulars do I now ask for?" And for the defendants, "What particulars are we required to provide?" 24 I am prepared to make orders under Pt 31 r 2 for the separate determination of the issues joined between the parties by the Amended Statement of Claim filed 15 November 1996, and the Defence 13 May 1997, being issues joined in respect of which there is to be a determination by the jury under s 7A. 25 I place the matter in the holding list. 26 I grant liberty to apply on three days notice in relation to the resolving of any dispute with respect to the tape. 27 The second defendant is to provide a copy of the tape returned to its custody by myself today, to the plaintiff within seven days. 28 The plaintiff is to deliver an affidavit confirming the fact of the completeness of discovery sought by the defendants, as is referred to in correspondence between the parties within 21 days. 29 The plaintiff is to pay the defendants' costs of today. 30 I direct the parties to make any request for further and better particulars in relation to the issues between them by 10 November, the responses by 8 December. *********** Last Modified: 11/08/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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