Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508

New South Wales Supreme Court

CITATION : Zaetta v Nationwide News Pty Ltd [2009] NSWSC 508

HEARING DATE(S) : 14.04.09, 15.04.09

JUDGMENT DATE : 9 June 2009

JUDGMENT OF : Nicholas J

DECISION : Par 53

CATCHWORDS : DEFAMATION - interrogatories - defendant's objections to answer - whether interrogatories relevant to issues of statutory qualified privilege and malice - whether necessary that answers be ordered - general principles considered

Civil Procedure Act 2005 LEGISLATION CITED : Defamation Act 2005 Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

Boyle v Downs [1979] 1 NSWLR 192 Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 CASES CITED : Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Gross v Weston & Anor [2007] NSWCA 1; (2007) 69 NSWLR 279 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 Howard v Nationwide Publicity Services [Supreme Court of New South Wales, CLD14490/84, Hunt J, 26 February 1987, Unreported]

PARTIES : Tania Zaetta - plaintiff Nationwide News Pty Limited - defendant

FILE NUMBER(S) : SC 20262/08

COUNSEL : A Henskens - plaintiff T Blackburn SC/T Maltz - defendant

SOLICITORS : Kalantzis Lawyers - plaintiff Blake Dawson - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

Nicholas J

9 June 2009

20262/08 Zaetta v Nationwide News Pty Ltd JUDGMENT 1 His Honour: This is an application by the plaintiff in an action for defamation for an order that the defendant answer certain interrogatories, and gives better answer to other interrogatories. 2 The relevant background appears from the pleadings. 3 The statement of claim pleads that on about 22 May 2008 the defendant published in the newspaper "The Daily Telegraph" an article under the heading "Defence Sex Scandal" which conveyed imputations defamatory of the plaintiff. It included (Particulars par 5(b)(ii)) a claim for aggravated damages by reason of the alleged republication by the defendant of the matter complained of and the defamatory imputations in the newspapers "The Adelaide Advertiser", "The Hobart Mercury" and "The Northern Territory News", and on the "The Daily Telegraph" website, the "News.com.au" website, and the "Perth Now" website. 4 The defendant has pleaded only defences of statutory qualified privilege (Defamation Act 2005, s 30) and common law qualified privilege, and particulars of mitigation of damages. 5 In her reply, the plaintiff pleaded that the defendant was actuated by express malice in the publication of the matter complained of. The particulars include assertions that the defendant knew or ought to have known that the imputations were false; that the occasions of publication and republication were used for the purpose of attacking and discrediting the plaintiff; and that the defendant was motivated by ill will and spite towards the plaintiff. 6 The interrogatories challenged fall into a number of categories referable to different issues identifiable from the pleadings. In almost all cases the objection to answer was on grounds that the "… interrogatory is vexatious and oppressive and does not relate to a matter at issue in this proceeding". 7 Under Uniform Civil Procedure Rules 2005 Pt 22.1(1) the Court has discretion to order any party to answer specified interrogatories at any stage of the proceedings. Such an order is not to be made unless the Court is satisfied that the order is necessary at the time it is made (r 22.1(4)). To meet this test it must be shown that the order is reasonably necessary for disposing fairly of the case or matter, taking into account the interests of both parties (Boyle v Downs [1979] 1 NSWLR 192, pp 205-206). Necessity is not demonstrated simply because the interrogatory relates to an issue between the parties (Howard v Nationwide Publicity Services [Supreme Court of New South Wales, CLD14490/84, Hunt J, 26 February 1987, Unreported]) or because a similar question would be permissible in cross-examination. A principal purpose for which interrogatories may be administered is to obtain an admission, which is to be tendered in evidence against the party answering it. Thus it is imperative that it be expressed with such precision as to produce a clear admission or an answer which is not misleading or confusing (Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, p 707). Simplicity has virtue, especially in jury trials. 8 The exercise of discretion is subject to the statutory duty imposed by s 56(2) Civil Procedure Act 2005 which requires the Court to give effect to the overriding purpose to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". In defamation proceedings this requirement is reinforced by the Defamation Act 2005 which provides that one of its objects is: "3(d) To promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter."