New South Wales Supreme Court CITATION : Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 921 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20086 of 1998 HEARING DATE(S) : 5 October 2001 JUDGMENT DATE : 19 October 2001 RENE RIVKIN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J M Richardson (Plaintiff) COUNSEL : M Lynch (Defendant) Gilbert & Tobin (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Interrogatories - defense under s 377(8) Criminal Code Act (Qld) 1899 - aggravated damages - conduct of counsel outside Court Criminal Code Act (Qld) 1899 LEGISLATION CITED : Defamation Act 1974 (NSW) Defamation Act 1889 (Qld) Erwin v South Down Press (1976) VR 335 CASES CITED : Pervan v North Queensland Newspaper Co. Limited & Anor (1993) 117 CLR 569 Trigell v Pheeney (1951) 82 CLR 497 DECISION : See paragraphs 23-25 DLJ: 2 [2001] NSWSC 921 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST 20086 of 1998 JUSTICE DAVID LEVINE FRIDAY 19 OCTOBER 2001 RENE RIVKIN (Plaintiff) v Amalgamated Television Services Pty limited (Defendant) Judgment (Interrogatories – defense under s 377(8) Criminal Code Act (Qld) 1899 – aggravated damages – conduct of counsel outside Court) 1 His Honour: At the trial of the issues raised for determination by the jury under s 7A of the Defamation Act 1974, the jury found that only one of several imputations left to it was carried by the relevant matter complained of and was defamatory. That imputation was: "that the plaintiff engaged in homosexual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon whom he lavished gifts and who was engaged to be married". 2 A dispute between the parties has arisen in relation to interrogatories the plaintiff seeks to administer to the defendant. 3 The first interrogatory (number 19) is in the following terms: "At the time of the publication of the matter complained of, did the following represent the opinion of the defendant by its servants or agents namely: a) that the plaintiff engaged in homosexual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon whom the lavished gifts and who was engaged to be married". 4 I understand that the defendant has objected to this interrogatory on the grounds that it is vexatious, oppressive and/or does not relate to any matter at issue in the proceedings. 5 The defendant has pleaded a defence pursuant to s 377(8) of the Criminal Code Act (Qld.) 1899 in relation to publication in that State. That section provides a defence to the effect that there is a lawful excuse for the publication of defamatory matter if a publication is made in good faith, in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair. 6 The relevant section under the Queensland legislation received attention in the High Court in Pervan v North Queensland Newspaper Co. Limited & Anor (1993) 117 ALR 569 where the majority held (McHugh J dissenting), that the defence did not import a requirement that the comment be based on facts which are true, the majority stating (at 580): "Accordingly, s 377(8) provides protection if the facts on which the comment is and can be seen to be based are not believed to be untrue and the statement or indication of the facts as such is protected by the section, subject to the requirements of 'good faith' and the other requirements of the section. Those requirements include the fairness of the comment and the relevance of the comment to the privileged occasion". 7 More pertinently in relation to the issue as to whether the section required that the publisher hold the opinion expressed in the defamatory publication, the Court held that the publisher was not required to hold the opinion expressed. It is sufficient if the publication is made in good faith and is objectively fair (581-2). 8 The plaintiff submits that even if the publisher holding an opinion in line with the imputation is not a "necessary" precondition for the defence, that issue is still relevant in the sense that it may bear on the issue of the publisher's good faith and the objective fairness of the publication. It is argued, for example, that if the defendant did not hold an opinion that accords with the imputation, it may in the circumstances be less likely that the comment is fair. 9 I reject this submission, as framed, by reason of the clear import of the decision in the High Court as to the objective nature of the Queensland defence. 10 In the course of submissions, however, it became clear that the consideration can be stated thus: if it is not a requirement in the defendant in the proof of its substantive case in a defence under s 377(8) that it prove that it held the opinion represented by the imputation, can the fact that the defendant did not hold that opinion still be relevant to the issue of the absence of good faith? The present legislation (Defamation Act 1889) in s 16(2) says: "(1) It is a lawful excuse for the publication of defamatory matter - (h) if the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair. (2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue". 11 Section 17 enacts: "When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence". 12 The onus is on the plaintiff alleging the absence of good faith to establish that absence. Thus, the question posed is whether any matter not necessary for the establishment of the substantive defence and which has been held expressly not to be necessary therefor, can still be available to a plaintiff on matters in defeasance of that defence? Whilst the defendant is not required to hold the opinion represented by the imputation, I am not persuaded, notwithstanding that the test for the defence is objective, that the defendant's not holding the opinion cannot relate to the matters in defeasance of that defence as provided by s 17. 13 I am presently concerned with whether or not the defendant is required to answer the interrogatory: I hold that it relates to a matter in issue and that it is not an "unnecessary" interrogatory. The evidentiary value of any answer the defendant provides of course will depend upon the whole scheme of things at trial. 14 The plaintiff proposes to ask (as interrogatory 21) the following: "Did Senior Counsel for the Defendant make a statement to the effect 'that the Plaintiff comprehensively and substantially' lost its defamation case to a member of the media after the 7A trial in these proceedings? If not did Senior Counsel for the Defendant make a statement to the media after the 7A trial and ff the answer is yes please state the substance of the statement". 15 As I understand the situation, this interrogatory arises from the publication in a newspaper (The Sydney Morning Herald) of the statement: "Counsel for Channel 7, Mr Bob Stitt, said outside the Court: 'he has substantially and comprehensively lost'". 16 I was provided with a copy of the transcript (p 162) of the proceedings before Bell J on 28 May 2001 in which, on the question of costs following the jury's answering of the questions, it is recorded that Mr Stitt said: "the next matter I ask for is the plaintiff pay the costs because the defendant has substantially won". There can be no question that Mr Stitt's question before her Honour could not be the subject of an interrogatory. 17 What the plaintiff here is seeking is an admission that Senior Counsel for the defendant made the statement attributed to him in the media. The making of that statement, according to correspondence that has passed between the parties, relates to the issue raised by the plaintiff on the question of aggravated damages – his feelings being the more hurt by the asserted conduct of Senior Counsel outside the Court in making the remark attributed to him. 18 Whether on the issue of aggravated damages any conduct was lacking in bona fides, was improper or unjustifiable (Trigell v Pheeney (1951) 82 CLR 497) is a matter for determination at trial, that which has to be determined being whether the conduct in effect took place and whether it can be appropriately characterised for the purposes of the claim for aggravated damages. There can be, in my view, no question that the plaintiff (assuming the issue properly to have been exposed and particularised) can interrogate the defendant as to the conduct itself and, if appropriate, as to any facts that relate to the issue of that conduct's characterisation (see Erwin v South Down Press (1976) VR 353). 19 For the defendant it is argued that it should not be required to answer this interrogatory as if on a "strike out" basis. 20 I interpolate that the interrogatory set out above is one in respect of which, in effect, the plaintiff seeks leave to administer. 21 On a "strike out" basis the defendant's position must fail. The interrogatory is directed to obtaining admissions in relation to conduct that occurred outside the courtroom. I am not in a position, and the judge hearing an application in relation to interrogatories could not be a position, finally to determine conclusively that an answer to the proposed interrogatory would not be admissible and is unarguably without foundation to prove anything on the issue of aggravated damages. I note that, in passing, counsel for the defendant (Mr Lynch) said that apart from anything else granting leave to administer this interrogatory and it being required to be answered may have the effect of disqualifying Senior Counsel from appearing in the proceedings though that is perhaps of minor significance. 22 Of the basis advanced for the defendant as to why leave should not be granted to administer this interrogatory, I am not persuaded. Mention was made as to the form of the proposed interrogatory, it certainly can be broken up, in my view, into more specific questions. 23 Accordingly, insofar as the plaintiff requires leave to administer the interrogatories identified as 19 and 21, I grant that leave and direct the plaintiff to deliver those interrogatories (as amended as required) within 14 days and that the defendant deliver verified answers thereto within 14 days. 24 The defendant is to pay the plaintiff's costs of the application heard by me on 5 October 2001. 25 The matter will listed for directions on 16 November 2001. ********** Last Modified: 10/22/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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