Howes v ACP Magazines Limited [2013] NSWSC 1836

Supreme Court New South Wales

Medium Neutral Citation: Howes v ACP Magazines Limited [2013] NSWSC 1836 Hearing dates: 11 October 2013 Decision date: 11 October 2013 Before: McCallum J Decision: Plaintiff ordered to provide further answers to interrogatories 13(a), (d)-(g), (k) and (l); 20(b)(i) to (iii); 46(a) and (b) and 49(a) and (b) within 14 days; plaintiff to pay the defendants' costs of the application heard and determined today. Catchwords: DEFAMATION - interrogatories - certain interrogatories unanswered as unnecessary, wasteful of resources and causing undue delay given proximity to trial - plaintiff ordered to answer balance of interrogatories Cases Cited: Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 Hayes v John Fairfax (2007) NSWCA 376 Younan v Nationwide Newspaper Pty Ltd [2013] NSWCA 335 Category: Interlocutory applications Parties: Gary Howes (plaintiff) ACP Magazines Limited (first defendant) Helen McCabe (second defendant) Paul Howes (third defendant) Representation: Counsel: S Chrysanthou (plaintiff) J Hmelnitsky SC (defendant) Solicitors: Kalantzis Lawyers (plaintiff) Johnson Winter & Slattery (defendants) File Number(s): 2012/213065 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation which are listed for hearing on 11 November 2013. The proceedings have come before me in the Defamation List this week for determination of an application by the defendant for answers to certain interrogatories which the plaintiff has refused to answer. 2The plaintiff's action arises out of the publication of an article in the Australian Women's Weekly Magazine headed "The Most Gut Wrenching Day of My Life". The article featured the well-known union boss, Mr Paul Howes. It included remarks made by Mr Howes as to his childhood and, specifically, the treatment he alleges he received at the hands of his stepfather, Mr Gary Howes. Mr Gary Howes is the plaintiff in the proceedings. 3The imputations relied upon the plaintiff as allegedly conveyed by the article are as follows: The plaintiff had humiliated his stepson since his step son was a small child (conveyed by the matter in its entirety, and particularly paragraphs [20] an [21] of schedule "A". The plaintiff had mentally tortured his step son from about 1986 until about 2010 (conveyed by the matter in its entirety, and particularly paragraphs [18], [19], [20], [21] and [22] of schedule "A" hereto). The plaintiff treated his wife terribly for a long period of time (conveyed by the matter in its entirety, and particularly line 98 paragraphs [21] and [22] of schedule "A" hereto). The plaintiff was so indifferent to the welfare of his stepson that he didn't care if his stepson lived on the streets (conveyed by the matter in its entirety, but particularly paragraphs [22], [23], [25] and [29]). The plaintiff is an awful human being because of the way he mistreated his family (conveyed by the matter in its entirety, but particularly paragraphs [20], [21] and [22]. 4The defendants have pleaded the defence of truth. Noting the age of the allegations and the generality of the imputations, the particulars in support of that defence are, in some respects, relatively general. 5The principles relating to whether or not a party should be required to answer interrogatories were not in dispute. They are conveniently summarised in the plaintiff's submissions from the judgment of Ward J in Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 at [20]-[36], as follows: (a) The court must be satisfied that the interrogatories are necessary for the disposing fairly of the cause or matter, in that they are reasonably required or legally ancillary to the achievement of a fair trial (they need not be essential but are to be subject to the touchstone of reasonableness); (b) Interrogatories can be sought by an interrogating party to prove its case in the sense that they enable a party to maintain its case or destroy the case put before it; (c) An interrogatory that is sought for the purpose of advancing the plaintiff's case is not rendered unnecessary merely because it may also disclose the defendant's case; (d) One of the acknowledged objects of interrogatories is to diminish the burden of proof otherwise on the plaintiff - thus it is not an objection to assert that the same information may be given in cross-examination; (e) Where the interrogatories seek information within the knowledge of the defendants and not within the knowledge of the plaintiffs it might be expected that the test of necessity will be readily satisfied; (f) Interrogatories directed to matters admitted in the pleadings are not necessary; (g) It is not an objection to an otherwise relevant interrogatory to assert that the answer is already within the plaintiff's knowledge or that the plaintiff could prove the case some other way; and (h) The court should consider what justice to all parties might reasonably be thought to require. 6The plaintiff objected to answering the disputed interrogatories in the present application on three broad grounds. First, it was submitted that the interrogatories pressed by the defendant were not necessary (in the sense in which that term is to be understood in accordance with the principles set out above) and that they amounted, on the most part, to a "fishing expedition" to bolster what was characterised as a poorly particularised justification defence. 7Secondly, it was complained that, since the parties have in these proceedings been ordered to exchange witness statements, they will be on notice of the plaintiff's evidence (including the fact that he will be giving evidence). It was submitted that to require the plaintiff, in addition, to provide further answers to interrogatories at this stage of the proceedings would create a waste of costs. 8Thirdly, it was alleged that the defendants had delayed in requiring the answers or in other respects and that, since the trial is just weeks away, it would be unfair to require the plaintiff to divert his resources from the finalisation of witness statements to answer the interrogatories in question. 9The first interrogatories to which the defendants seek further answers are 13(a), (d)-(g) and (k) and (l), as follows: 13 When the third defendant was about 8 or 9 years of age, did you (please answer separately in relation to each): (a) point a gun at the third defendant; (d) if yes to the preceding interrogatory: (i) state your police rank and duties at the time of the conduct; (ii) state whether you were required to wear your uniform whilst carrying out your duties; (e) whether you on duty (sic) as a police officer at the time of the conduct; (f) whether you wearing (sic) a police uniform at the time of the conduct; (g) if your answer to (e) above is in the negative and to (f) above is in the affirmative, why you were wearing a police uniform at the time of the conduct; (k) describe how the third defendant was handcuffed, and if he was hand cuffed to a fixed object, what that object was; (l) describe the reaction of the third defendant to your conduct. 10Ms Chrysanthou, who appears for the plaintiff, noted that he has answered such of those interrogatories as were directed with specificity to the particulars provided at paragraph 13 of the defence. She submitted that to require the plaintiff to answer the remaining interrogatories would take matters outside the scope of those particulars. Ms Chrysanthou went so far as to submit that, if the defendants wished to contend that there was any particular conversation at the time the plaintiff, on his own admission, did in fact handcuff the third defendant, the particulars to paragraph 13 of the defence would have to be amended. 11In support of that submission, Ms Chrysanthou relied on a decision of the Court of Appeal published this morning in Younan v Nationwide Newspaper Pty Ltd [2013] NSWCA 335 particularly at [22]. Having gone off the bench for the purpose of reading that decision, I do not think it is relevant to the present argument. That was a case in which Nicholas J determined a separate question as to whether the matter complained of in a defamation action was reasonably capable of identifying the plaintiff. The plaintiff was the registered proprietor of a boarding house depicted in a photograph illustrating an article which allegedly conveyed imputations to the effect that the boarding house had been run with reckless disregard for the health of residents; that the failure to ensure that residents were provided with proper health care had resulted in the death of some residents and that the boarding house was so filthy that it contributed to the deaths of previous residents over the previous 14 months. 12A difficulty was identified with the particulars of identification, namely, that they related to what people who read the matter complained of knew at the time of its publication. The particulars not claw back to the knowledge of any such person as at the time of the relevant deaths. So far as I can glean from the judgment in the Court of Appeal the plaintiffs had, during the course of the hearing of the appeal, submitted that even if those particulars were not capable of identifying the plaintiffs, the plaintiffs would not have been confined by the particulars in the evidence they could have led at trial. Macfarlan JA did not accept that submission. 13The position to which his Honour's remarks in that case relate is a far cry from the circumstances of the present case. The defendants have, in this case, particularised the events of the alleged pointing of a gun and the handcuffing of the third defendant (paragraph 13 of the defence). As stated by the Court of Appeal in Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20] per Hodgson JA (Tobias JA and Santow J agreeing), those particulars will not circumscribe the evidence which can be given as to that incident. His Honour said: However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate. 14The role of particulars of a justification defence is to identify the facts, matters and circumstances that will be relied upon, but a sensible approach is always taken to the evidence which can be given, based on such particulars. In my view, it would be absurd to suggest in the present case that the defendants were confined to leading evidence in the terms of the specific facts identified in paragraph 13. That paragraph identifies an incident and, in my view, the defendants will be entitled to lead, in the normal way, evidence of the whole of the relevant circumstances making up that incident, including matters such as dates, conversations, what different people were wearing and so on, whether or not such matters are specified in paragraph 13 of the defence. 15The question of the reasonable necessity of the interrogatories must also be judged, in my view, having regard to the selectivity which the plaintiff has answered the particulars. Specifically, I note that the plaintiff answered 13(b) and 13(c), whilst objecting to the balance. That was explained by Miss Chrysanthou on the basis outlined above but I reject her submissions on that issue. In my view, the plaintiff should be required to answer the balance of the questions in interrogatory 13. 16The next objection is to interrogatory 20(b), as follows: (b) If the answer to the preceding interrogatory is in the affirmative please state: (i) the date of the incident; (ii) what the incident was; (iii) what punishment you gave to the third defendant. 17I can state my reasons for ordering the plaintiff to answer those interrogatories briefly since they are, in substance, the same as in respect of interrogatory 13. Specifically, in my view, the relevant incident particularised is an occasion on which, on his own admission, the plaintiff punished the third defendant. I see no reason why he should not be required, having been properly interrogated as to that issue, to answer interrogatory 20(b) giving details of the date and other details of the incident. 18The next objection is to interrogatory 29(b), as follows ((20(a) is included for context): (a) From 2000 to 2010 did the third defendant visit your and Anne Howes' premises whilst you were present? (b) If the answer to the preceding interrogatory is in the affirmative please state: (i) the date or approximate date of each visits, if you do not know, then the frequency of the visits; (ii) who was present when you visited. 19The question posed, in my view, is extremely general. Mr Hmelnitsky, who appears for the defendants, submits that they quite fairly have asked not for specific dates and times but an answer only of the generality which the plaintiff would be able to answer. This, in my view, is a peripheral issue and I do not think it is reasonably necessary to require the plaintiff to answer that interrogatory. 20The fourth group of questions as to which the defendant seeks an answer is set out in interrogatory 46 as follows: (a) During your relationship with Anne Howes, in or about the period 1985 to 2010, did you put Mrs Howes down about her work in community services? (b) If yes to (a) above: (i) describe the nature of your conduct and its frequency; (ii) would you say to others in Mrs Howes' presence words to the following effect: (A) "Unlike Anne, I work hard for a living"; (B) "Anne just has cuppas in her job"; (C) "Anne's a registered charity"; (D) "Anne's job is ridiculous"? 21Miss Chrysanthou submitted that the vice of the interrogatory is that it requires the plaintiff to make a judgment call as to what amounts to "putting someone down" about their work. Mr Hmelnitsky submitted by way of response that, in the context of the specific allegations that have been identified in the pleading by way of instances of such conduct, the plaintiff could not be said to have any real difficulties in responding to such a question. The specific examples set out in question 46(b)(ii) do, in my view, lend context and specificity to what would otherwise appear as a very general question in 46(a). The question whether the plaintiff "put his wife down" in respect of her work in community services is plainly raised on the particulars of the defence of justification. For substantially the reasons given in respect of interrogatory 13, I consider it appropriate to require the plaintiff to answer those questions. 22The final interrogatory to which answers are sought is 49(a) and (b) as follows: (a) During your relationship with Anne Howes, in or about the period 1985 to 2010, did you ever prevent and/or discourage the children from having friends round to visit? (b) If yes to (a) above, describe the nature of your conduct and its frequency. 23As with interrogatory 46, Miss Chrysanthou submitted that the interrogatory is in very general terms. On balance, however, I am persuaded by Mr Hmelnitsky's submissions that the plaintiff could properly be required to give an answer to that question, it being an issue which is squarely raised on the particulars of the defence. 24I should say something about the separate basis for the objection to which I have referred, namely the fact that the defendants will have a witness statement from the plaintiff and, on that account, do not require answers to interrogatories. The rules make provision for parties to be ordered to serve witness statements in advance of a hearing. Rule 31.4 provides that, if a party serving a witness statement calls the relevant witness at a hearing, that person's witness statement is to stand as the whole of his or her evidence-in-chief, so long as the person testifies to the truth of the statement. 25In my view, in a common law trial with a jury, the use of that rule is of doubtful utility. It is plainly preferable, in my view, for evidence of witnesses in such a trial to be given orally. In that event, the provision of statements does not serve to shorten the hearing time. Such statements do, of course, serve the function of putting each party on notice as to the evidence to be led by the other. The appropriateness of such a requirement would undoubtedly be the subject of different views among different judges. Some take the view that, in a common law trial, a party should be able to take the evidence as it comes on the day of the trial. There may be cases in which various interests of justice are better served by the party being on notice in advance of the evidence to be given. A difficulty with the practice of ordering witness statements in defamation cases is that, in such cases, there are often also interrogatories, unlike other common law cases. Defamation is also a cause of action perhaps unusually prone to disparity between resources on the part of a plaintiff and defendant, and there is a risk that such orders will increase the costs of such claims. 26In making these remarks I do not intend to make any criticism of the judge who made the order in the present case but only to indicate that I would not expect such an order to be made as of right in defamation cases to be tried with a jury. In any event, for present purposes, it is enough to note that the order for interrogatories was made on the same date as the order for witness statements. It must therefore have been contemplated that both interlocutory procedures would be available for the benefit of the parties. Further, the witness statements are not verified which, of course, is a requirement of interrogatories. 27As to the question of delay, as submitted by Mr Hmelnitsky, there would be no question about the closeness to the hearing and distraction from other tasks had the plaintiff taken what I consider would have been the appropriate course in the first instance, of answering all questions in each series rather than selectively answering those directed to in terms of the wording of the defence. 28I order that the plaintiff provide further answers to questions 13(a), (d)-(g), (k) and (l); 20(b)(i) to (iii); 46(a) and (b); and 49(a) and (b) within 14 days. 29I order the plaintiff to pay the defendants' costs of the application heard and determined today.