Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57

Supreme Court New South Wales

Medium Neutral Citation: Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57 Hearing dates: 5 February 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff's application for an order that the defendants answer interrogatories 8(ii) and (iv) refused; plaintiff to pay the defendants' costs of the application Catchwords: DEFAMATION – interlocutory steps – interrogatories Cases Cited: Kermode v Fairfax Media Publications Pty Ltd (No 2) [2011] NSWSC 646 Lewis v Page, Supreme Court of New South Wales, 14 July 1989 (unreported) Category: Procedural and other rulings Parties: Martin John Prowse (plaintiff) Harbour Radio Pty Ltd (first defendant) Ray Hadley (second defendant) Representation: Counsel: R Rasmussen (plaintiff) M Richardson (defendants)

Solicitors: Kalantzis Lawyers (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2014/321615 Publication restriction: None

Judgment 1. HER HONOUR: These proceedings are listed today for the second listing in accordance with practice note SC CL 4. There is between the parties a single dispute as to the interrogatories proposed by the plaintiff for answer by the defendants. The context in which the disputed interrogatories are proposed is that the defendants have pleaded a defence of honest opinion and a reply has been put on to that defence. In those circumstances the plaintiff wishes to interrogate the defendants in the following terms (interrogatory 8): (i) At the time of publication was the first defendant of the opinion that: (a) the plaintiff is a thief in that he charges $30 for painting some numbers on a driveway that wash off; (b) the plaintiff falsely claimed, whilst door-knocking in Emu Plains, that he is associated with emergency services; (c) the plaintiff had so conducted himself whilst door-knocking in Emu Plains as to warrant being reported to the ACCC by Andrew; (d) the plaintiff had so conducted himself whilst door-knocking in Emu Plains as to warrant being charged for theft by the police; (e) the plaintiff is despicable in that he takes advantage of elderly people by knocking on their doors and claiming to be associated with Rural Fire Services in order to have them pay $30 for paint on their driveway that will come off in a week or two. (ii) If the answer to any of interrogatory (i) above is "yes" identify which one or ones and state why the first defendant held such opinions. (iii) If the answer to any of interrogatory (i) above is "yes" state whether the first defendant made any enquiries in respect of the said opinions? (iv) If the first defendant so believed that the plaintiff was any of the matters set out in interrogatory (i) above state: (a) when the first defendant formed that opinion? (b) why the first defendant held that opinion? 1. The disputed interrogatories are (ii) and (iv). Specifically, Mr Ricardson, who appears for the defendants, submitted that a defendant cannot be compelled to say why he or she held any relevant opinion. 2. Mr Rasmussen, who appears for the plaintiff, sought to defend those interrogatories by reference to my decision in Kermode v Fairfax Media Publications Pty Ltd (No 2) [2011] NSWSC 646. That was a case in which, as here, there was a defence of honest opinion to which the matters of defeasance identified in the statute had been pleaded by way of reply. I noted at [9] of the judgment that, by his reply, the plaintiff had assumed the burden of proving, as to each defendant, that the matter complained of was an expression of his own opinion, that the opinion was not honestly held by that defendant at the time the matter complained of was published and, as to each of the corporate defendants, that the matter complained of was an expression of opinion of Mr Linton Besser and that the corporate defendant did not believe that the opinion was honestly held by Mr Besser at the time the matter complained of was published. 3. In that context, I acceded to the plaintiff's submission that the interrogatories there in dispute were necessary for the resolution of the real issues in the proceedings. The interrogatories considered by me in that case were what are sometimes described as information interrogatories. I accepted, as submitted by Mr Smark on behalf of the plaintiff, that the interrogatories were necessary to enable the plaintiff to test the question whether each defendant held the relevant belief as required under section 31(4) of the Act. 4. The interrogatories now proposed go somewhat further than the interrogatories I approved in Kermode, directing attention not to the information held by the relevant author of the opinion but requiring each defendant to go further and explain why that defendant held such opinions. 5. An interrogatory in the terms now pressed was considered in the judgment of Hunt J in Lewis v Page, Supreme Court of New South Wales, 14 July 1989 (unreported). His Honour addressed interrogatories similar to those posed here, as follows: The eighth numbered interrogatory is directed to the defence of comment. The first paragraph asks the defendant whether she was "of the opinion that ...", and there follows each of the imputations pleaded by the plaintiffs – for example, whether the defendant was "of the opinion that ... the first plaintiff is unclean and disgusting in her conduct". This interrogatory misconceives the issues raised by this defence. The defence of comment is not pleaded to the plaintiff's imputations: Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 512. It is sufficient if the comment of the defendant is congruent with (in the sense of being not different in substance from) the imputation pleaded by the plaintiff; that is, the defendant's comment must convey the imputation which the plaintiff has pleaded: Lloyd v David Syme and Co Ltd (1985) 3 NSWLR 728 at 735-736. But the imputation is not itself the comment. The interrogatory here assumes that the imputation is the comment, and it is irrelevant for that reason. The defendant cannot be required in the usual case to identify by way of particulars those statements in the matter complained of which he will contend at the trial to be expressions of opinion rather than statements of fact: Sims v Wran at 324. The reasoning for that proposition applies also to any interrogatory which seeks the same information. But I see nothing wrong with an interrogatory directed to whether the defendant believed at the time of publication that the substance of the plaintiff's imputation was true. A person can only honestly hold or have a particular opinion (and that is the issue which arises under the Reply afforded by s32(2) and s33(2)) if he believes that the substance of that opinion is true. As the defendant's comment must convey the imputation which the plaintiff has pleaded, a belief in the substance of his opinion should also be a belief in the substance of the plaintiff's imputations. An absence of a belief by the defendant in the truth of the substance of the plaintiff's imputation will therefore be some evidence that the defendant did not hold or have the opinion represented by the comment (the issue which the plaintiff must establish under the Reply), just as is the defendant's answer to an interrogatory that he did not intend to convey the plaintiff's imputation: Bickel v John Fairfax and Sons Ltd [1981] 2 NSWLR 474 at 485-486; Lloyd v David Syme and Co Ltd at 736. Such an interrogatory is often directed to the defence of qualified privilege, although there the relevant belief is in relation to the meaning which the defendant intended to convey rather than that which was in fact conveyed: Wran v ABC at 250; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362. The second paragraph of this interrogatory asks the defendant to state why he held such opinions. That falls with the first paragraph, for the same reason. Leave to ask it would be refused in any event because it could be relevant only to the reasonableness of the defendant's opinion and not to the honesty with which he held that opinion. It matters not whether the opinion be biased or prejudiced, as long as it is honestly held: Kemsley v Foot [1952] AC 345 at 357; Turner v MGM Pictures Ltd [1950] 1 All ER 449 at 461. 1. It may be noted that interrogatory 8(i) in the present case ignores his Honour's view set out in the first three paragraphs of that extract but the defendants did not object to that interrogatory. 2. Mr Rasmussen submitted that Hunt J was wrong, in the last paragraph of the extract, to draw a distinction between reasonableness and honesty. I do not agree. 3. In my view the remarks of Hunt J in Lewis v Page are of equal application to the present interrogatory. Further, his Honour was, of course, considering the question of interrogatories before the publication of the practice note SC CL 4. Mr Richardson has successfully and correctly submitted in other cases in this list that the practice note does not alter the test of necessity stated in the rules, but it does focus the attention of the Court on the need for particular interrogatories to investigate issues raised on the pleadings in the context of the important principle of proportionality. I am not persuaded that the interrogatories now proposed satisfy that test. Accordingly I decline to order the defendants to answer interrogatories 8 (ii) and (iv). 4. I order the plaintiff to pay the defendants' costs of the application.