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." ( Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, pars 29, 30, 31.) 9 I adopt, with respect, the approach taken by Simpson J in Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587: "16 That I perceive considerable value in the availability of the process of interrogation is not to say that carte blanche should be given to parties wishing to interrogate, particularly where the volume of interrogatories is oppressive or potentially so. Nor is it to say that every interrogatory administered by one party to another will be required to be answered. To be useful, interrogatories must be properly directed to the issues identified after a proper process of pleading, and after full and proper particulars have been supplied. When this occurs interrogatories can do much to narrow the issues actually to be fought, and the scope of the evidence required to be adduced. But it is to be emphasised that this involves a sensible approach to the drafting of interrogatories. The drafter must have both eyes firmly fixed on the issues thrown up by the pleadings. To be useful, interrogatories must be specific to those issues." 10 All in all, the Court is required to make a practical judgment, which involves an evaluation of the utility of an answer in narrowing the issues for trial. 11 The first category consists of interrogatories 2, 3, 5 and 8. It is accepted that interrogatories 3, 5 and 8 stand or fall with 2. Interrogatory 2 asks: "2. Did you or any associate (as that term is used in s 11 of the Corporations Act 2001 (Cth)) (the "associate") publish the matter (whether edited or rewritten in part or whole) in: (a) the Adelaide Advertiser Newspaper on 22 May 2008 or on any other day in the form reproduced in the second schedule of the statement of claim?" Sub-pars (b) – (f) are in similar terms in respect of each of the other newspapers and websites in which republication is alleged. (g) any newspaper published in Britain (and, if so, in which newspaper or newspapers or websites)? 12 "The matter" is defined in interrogatory 1 to mean the matter complained of in the first schedule to the statement of claim. 13 The relevant issue is the alleged liability of the defendant for the republication of the matter complained on the occasions referred to in the particulars of aggravated damages and malice. No particulars have been sought or given in respect of newspaper republication, and none have been given of publication to a third party of the matter on the websites. The defendant has advised that the publisher of the websites is News Digital Media Pty Ltd. 14 I decline to order answer to interrogatory 2. It is questionable whether an answer "Yes" or "No" would advance the case at all rather than generate confusion. The relevant issue is the alleged liability of the defendant for the republication of the matter complained of on the occasions referred to in the particulars of aggravated damages and malice. Facts to be established by the plaintiff are that the defendant made available, or provided to, the publishers of the specified newspapers and websites the matter complained of, and that the matters set out in the second to seventh schedules to the statement of claim conveyed some or all of the defamatory imputations conveyed by the matter complained of. 15 In my opinion, the role of an associate is irrelevant. In addition, the inclusion of the phrase "whether edited or rewritten in part or whole" renders the interrogatory impermissibly ambiguous and confusing. 16 Leave is given to the plaintiff to administer interrogatories as to whether the defendant made available the matter complained of to the publishers of the newspapers and websites referred to and, with respect to each website, whether any person (and if so, how many) downloaded the matter reproduced in the relevant schedule. 17 It follows that the defendant is not required to answer interrogatories 2, 3, 5 and 8. 18 The second category consists of interrogatories 6 and 7. 19 Interrogatory 6 asks in effect, during what dates was the material reproduced in each of the fourth, fifth and sixth schedules of the statement of claim available to be accessed via the world wide web. The objection was that the interrogatory assumed that the defendant made, or caused to be made, the material to be available on the web. 20 In my opinion, taking a common sense approach, the objection should not be upheld. If the defendant denies the assumption it may do so in its answer. Alternatively, I would give leave to the plaintiff to administer an additional prefatory interrogatory, which asks the defendant did it make the material available on the world wide web. 21 It was accepted that the fate of interrogatories 6 and 7 should be the same. It is preferable to order the defendant to answer them. 22 Interrogatory 10 was amended, in argument, to ask: "10 Identify any documents which contain the information set out in interrogatories 1 to 9 above and, where applicable, provide their paragraph numbers in the defendant's list of documents." The defendant is ordered to answer this interrogatory, as amended. 23 The next category consists of interrogatories 19(a)(i) and (e). The plaintiff complains that the defendant's answers are non-responsive or insufficient. 24 Interrogatory 19(a) asks for the identification by name of each source of information for the matter. In answer, 19A(a)(i) identified "The Department of Defence" as a source of information, and referred to it in that sense in its answer in sub-par (e). During argument the defendant indicated that the identity of the source or provider of the Hot Issues Brief was unknown to it. 25 I give leave to the defendant to withdraw the answer 19A(a)(i) by deleting "The Department of Defence" and to answer afresh: "A person whose identity is unknown to the defendant". The defendant is also given leave to amend its answer in 19A(e) consistently with 19A(a)(i). 26 Interrogatory 21(j) was answered as follows: "21A(j) See item 12 of the defendant's list of documents filed 1 December 2008 and annexure D1 (described below). Otherwise, the defendant declines to answer this interrogatory on the basis that it is vexatious and oppressive." 27 The plaintiff contended that the interrogatory was directed to establish that there were no other notes of conversations with sources other than item 12, but the answer was unclear. During argument, defendant's Senior Counsel stated that there were no other such documents, a response which was accepted by plaintiff's counsel. 28 In the circumstances, there is no need to require further answer. Interrogatory 21A(j) should stand. 29 Interrogatories 25 and 26 concerned any uncertainty the defendant may have had as to some specified matters. 30 During argument the role in the publication of each of Garry Linnell, Luke McIlveen and Lillian Saleh as described in answer 11A was explained. It was accepted that answers to interrogatories 25 and 26 should not be ordered, with leave to the plaintiff to administer further interrogatories with regard to the information provided. 31 The next category consists of interrogatories 28, 29 and 30. 32 Interrogatory 28 asks: "28 At the time of publication of the matter complained of, did the defendant have in operation any system whereby a check was made of material to be printed by it (whether generally or in respect of the author's or editor's material) in order to ascertain whether or not the material was defamatory?" Interrogatory 29 asks: "29 If the answer to interrogatory 28 above is in the affirmative, did the operation of that system bring to the attention of any officer, servant or agent of the defendant any, and if so, which part or parts of the matter?" Interrogatory 30 follows on. 33 The plaintiff submitted that these were based on the existence of a system to ascertain whether or not material was defamatory which, in turn, was relevant to the issue of the reasonableness of the defendant's conduct under statutory qualified privilege. 34 Accepting that the issue of the reasonableness of the defendant's conduct in publishing the imputations is wide indeed (Cotter par 10), having regard to other interrogatories relevant to this issue, and to the width of these particular interrogatories, in my opinion it is not necessary to order that they be answered. Furthermore, the overarching issue is confined to the conduct of the defendant in publishing the matter complained of. It is the conduct of the defendant in, for example, verifying the information in the matter published, and evaluating whether, and to what extent, it is defamatory, which raises the material question appropriate for interrogation. Although questions similar to these interrogatories may be permissible in cross-examination, because the issue does not directly involve the existence and operation of a general system I am unpersuaded that answers to interrogatories directed to such a system would serve any useful purpose at trial. Accordingly I decline to order the defendant to answer interrogatories 28, 29 and 30. 35 The next category consists of interrogatories 27, 31 and 32. 36 Interrogatory 27 is directed to the state of mind towards the plaintiff, in terms of amity or otherwise, of the author, editor, sub-editor, and any others involved in publishing the matter complained of. 37 Interrogatory 31 asks what was the motive, and interrogatory 32 asks what was the purpose, of the authors, editors, and the defendant in publishing the matter complained of. 38 These interrogatories are directed to the issues of express malice as pleaded in the reply. The particulars relied upon by the plaintiff, which delimit these issues, are in the following terms: "(a) the headlines, subheadings, words and photographs in the matter complained of; (b) the circumstances that the Defendant published the matter complained of after making enquiries of the Plaintiff and Mr Anderson who denied the truth of the pleaded imputations; (c) the making of the Republications; and (d) the Defendant's refusal or failure to publish an apology and withdrawal such as was requested by the plaintiff's solicitor by letter dated 26 May 2008." (Thereafter were set out particulars to be relied upon to establish the defendant's motive.) 39 In Gross v Weston & Anor [2007] NSWCA 1; (2007) 69 NSWLR 279, Hunt J said: "54 As already stated, it is unnecessary to identify the improper motive where the plaintiff relies on the defendant's knowledge of falsity, as there can be no proper motive where the defendant had no duty to publish the matter complained of. In my opinion, this is also the position with wilful blindness where the law equates that state of mind with knowledge. 55 In all other situations, however, the plaintiff is in my opinion obliged to identify, in the particulars of improper motive, the improper motive on which he or she relies. It is necessary for the motive to be specified because the defendant may have evidence to meet an allegation concerning the improper motive specified. Such evidence may be of statements made by, or actions of, the defendant on occasions other than that of the publication of the matter complained of. Without such an identification in the particulars of the specific improper motive in issue, the defendant will inevitably be left unready to meet that case at the trial. 56 Moreover, if the plaintiff asserts and fails to prove knowledge of falsity, but wishes to establish improper motive in an alternative way, that alternative improper motive must have been identified in the particulars together with the facts and matters on which the plaintiff relies to establish that alternative state of mind." 40 It is tolerably plain that the plaintiff relies upon the defendant's knowledge of falsity to establish that the publication was actuated by an improper motive. Further, or in the alternative, it is alleged (sub-par (d)) that the defendant's purpose was to attack and discredit the plaintiff, and that its motive is to be established by proof of the facts and matters in particulars (d)(i) and (ii). 41 It will be seen that the scope of the challenged interrogatories is directed to every conceivable aspect of the defendant's state of mind, motive, and/or purpose, and cannot reasonably be said to be directed to any of the issues relevant to express malice in this case. The particulars identify the case the plaintiff intends to make on express malice. Although it may be open to administer interrogatories to obtain admissions of these facts and matters, in my opinion it is not necessary for an answer to be given to these interrogatories. Accordingly, I decline to order the defendant to answer them. 42 The next category consists of interrogatories 34 and 35. 43 These interrogatories seek further and better particulars of the allegations pleaded in para 11(b)(ii) and 11(b)(iii) of the defence, respectively. The information sought may be obtained by way of answers to a request for particulars. This is the preferable and usual course which, when taken, will render the interrogatories unnecessary. In Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221, p 222 Hunt J said: "… except in special circumstances, it was unreasonable to oblige the party interrogated to verify particulars of his case when he did not have to verify his pleadings … I do not propose to encourage the practice of seeking particulars by way of interrogatories now that this process is available also at common law." 44 I respectfully agree. Answers to a request for particulars will not only inform the plaintiff of the case to be met on the allegations in pars 11(b)(ii) and (iii) of the defence, but will also define the scope of the issues under this aspect of the defendant's case. As no necessity for answers has been demonstrated, I decline to order the defendant to answer these interrogatories. 45 Interrogatory 36 requested identification of information obtained from specified persons including Max Markson, Greg McCauley and Mark Elliot. 46 During argument Senior Counsel for the defendant stated that no information was obtained from these particular persons. This fact is not apparent from the answer given. 47 To avoid doubt, further answer should be made by a statement that: "No information was obtained from Max Markson, Greg McCauley and Mark Elliot". 48 The next category consists of interrogatories 40(d)(iv) and (vi). 49 The plaintiff asks for information concerning conversations between Mr Garry Linnell and others as recorded on the document annexure C to the Notice to Answer Interrogatories. The plaintiff complains that the present answers are insufficient. 50 As I understand it, annexure C is a record of the telephone calls made by and to Garry Linnell which are relevant to his authorship of the matter complained of. During argument Senior Counsel for the defendant stated that Mr Linnell has no recollection of any telephone conversations recorded in annexure C other than those in respect of which information has been given in answers 21A(g) and 38A. 51 In my opinion, in the circumstances, it is necessary that the defendant be ordered to provide further answer to interrogatories 40(d)(iv), (vi) and (vii). This requirement may be achieved by, for example, an answer which identifies each of the entries in annexure C which records a conversation of which Garry Linnell has a recollection and stating the substance of the conversation or, if such is provided in another answer, which identifies that answer in each case. With respect to all other entries the defendant should state that Garry Linnell has no recollection of any conversation to which each refers. 52 Taking a broad view of the range of issues raised during this application and of the overall outcome, in my opinion the appropriate costs order is that each party pay her and its costs of this application. 53 Orders: (1) I order the defendant to answer interrogatories 6, 7 and 10. (2) I give leave to the defendant to withdraw its answer to interrogatory 19(a)(i) and to answer it: "A person whose identity is unknown to the defendant", and to amend its answer in 19A(e) accordingly. (3) I give leave to the plaintiff to administer further interrogatories in lieu of interrogatories 25 and 26 with regard to the information provided. (4) I order the defendant to further answer interrogatory 36 by including the statement: "No information was obtained from Max Markson, Greg McCauley and Mark Elliot." (5) I order the defendant to further answer interrogatories 40(d)(iv), (vi) and (vii) in accordance with par 51 of these reasons. (6) I decline to order the defendant to answer interrogatories 2, 3, 5, 8, 21(j), 25, 26, 27, 28, 29, 30, 31, 32, 34 and 35. (7) I order that each party pay her and its costs. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.