Supreme Court New South Wales Medium Neutral Citation: McKay v Fairfax Media Publications Pty Ltd; McKay v The Australian Broadcasting Corporation [2017] NSWSC 361 Hearing dates: 17 March 2017 Decision date: 17 March 2017 Jurisdiction: Common Law Before: McCallum J Decision: Application for leave to administer interrogatories refused. Catchwords: DEFAMATION – interrogatories – Assaf v Skalkos or "reaction" interrogatories – whether necessary – unlikelihood that answers would usefully inform the assessment of damages Legislation Cited: Civil Procedure Act 2005 (NSW), pt 6 Cases Cited: Assaf v Skalkos (Supreme Court (NSW), Hunt CJ at CL, 9 August 1995, unrep) Bateman v Fairfax Media Publications Pty Ltd (No 6) [2015] NSWSC 890 Herald and Weekly Times Ltd v Hawke; Herald and Weekly Times Ltd v Kornhauser [1984] VR 587 Category: Procedural and other rulings Parties: 2016/00304799: Sun McKay (plaintiff) Fairfax Media Publications Pty Ltd (1st defendant) The Age Company Ltd (2nd defendant) 2016/00304800: Sun McKay (plaintiff) Australian Broadcasting Corporation (defendant) Representation: Counsel: M Richardson (plaintiff in both proceedings) L Barnett (defendants in both proceedings) Solicitors: Mark O'Brien Legal (plaintiff in both proceedings) Banki Hadock Fiora (1st and 2nd defendants in Fairfax proceedings) ABC Legal (defendant in ABC proceedings) File Number(s): 2016/003047992016/00304800 Judgment 1. HER HONOUR: These are proceedings for defamation which are before the Court today for the second listing (as contemplated by the Defamation List Practice Note SC CL 4, cl 16). The parties are in agreement as to the appropriate further interlocutory steps in the proceedings, save for a dispute as to "Assaf v Skalkos" interrogatories. 2. In Assaf v Skalkos (Supreme Court (NSW), Hunt CJ at CL, 9 August 1995, unrep), Hunt CJ at CL rejected interrogatories in the form proposed by the defendant in that case. In giving that ruling, however, his Honour provided what would be permissible, saying: In the Robert Jones Investments Case, the specific interrogatories allowed were directed to ascertaining whether anyone had asked the plaintiff whether what had been published by the defendant was true and, if so, the details of such conversations. A more general type of interrogatory which I would envisage being allowed, so far as a personal plaintiff is concerned, would be: (1) whether any person has spoken to the plaintiff, or behaved towards the plaintiff, in a way which indicated to the plaintiff: (a) that that person had read the matter complained of (or otherwise learnt of its contents), and (b) that, as a result of having done so, that person had either (i) identified the plaintiff as having been referred to in the matter complained of, or (ii) thought the less of the plaintiff; and (2) whether any such person, having so indicated to the plaintiff that that person had read the matter complained of (or otherwise learnt of its contents), had said or done anything whereby the plaintiff's feelings were otherwise injured. Such interrogatories do require the plaintiff to interpret the behaviour of those persons, but it is the consequence of his interpretation which makes his evidence of these matters relevant in the case. The interrogatories are not, therefore, impermissible because they require him to make such an interpretation: cf Herald and Weekly Times Ltd v Hawke (at 590). 1. The interrogatories sought by the defendants in the present case arguably venture beyond the terms of those approved by his Honour. The interrogatories sought in the Fairfax proceedings are in the following terms: (1) As to the publication referred to as the first matter complained of in paragraph 3 of your Amended Statement of Claim filed 2 December 2016 (the first matter complained of): (a) when; (b) how and in what circumstances; and (c) from whom, did you become aware of its existence? (2) As to the first matter complained of: (a) when; (b) how and in what circumstances; and (c) from whom, did you first become aware of its contents? (3) Upon first learning of the contents of the first matter complained of: (a) what was your reaction? (b) what action or actions, if any, did you take as a consequence? (c) did you speak to anyone about it? (d) If the answer to interrogatory (c) is in the affirmative in relation to each person to whom you spoke about it: (i) to whom did you speak about it? (ii) when did you speak about it? (iii) what in substance did you say to that person? (4) Upon first learning of the contents of the first matter complained of, was there any part of the first matter complained of that you believed to be false and if so, which precise part or parts? (5) Since the publication of the first matter complained of has any person communicated to you, or behaved towards you, in a way which indicated to you any of the following (and if so, which): (a) that such person had read the first matter complained of or had otherwise learnt of its contents? (b) that such person believed any part of the first matter complained of to refer to you? (c) that such person believed in the truth of any such part of the first matter complained of? (d) that such person believed in the truth of the imputations pleaded by you in paragraph 4 of the Amended Statement of Claim? (e) that such person thought less of you as a result of the publication of the first matter complained of? (6) If the answer to any part of interrogatory 5 is in the affirmative, as to each part: (a) state the name of each such person; (b) state the date or dates on which each such person so communicated with you or so behaved towards you; (c) state what each such person communicated or did in substance in that regard? If in writing, attach a copy of the writing to your answers or, if you cannot do so, identify and describe the contents of the writing. If you made a written record of anything said or done, attach a copy of the written record to your answers; and (d) for each such occasion, state the effect on you of what was communicated or done. (7) Since publication of the first matter complained of, has any person or has any persons (first person) communicated to you words or behaviour of any other person (other person) which indicated to you any of the following (and, if so, which): (a) that such other person had read the first matter complained of or had otherwise learnt of its contents? (b) that such other person believed any part of the first matter complained of to refer to you? (c) that such other person believed in the truth of any such part of the first matter complained of? (d) that such other person believed in the truth of the imputations pleaded by you in paragraph 4 of the Amended Statement of Claim? (e) that such other person thought less of you as a result of the publication of the first matter complained of? (8) If the answer to interrogatory 7 is in the affirmative, as to each part: (a) state the name of each first person and other person; (b) state the date or dates on which each first person so communicated with you; (c) state what each such first person communicated to you in that regard? If in writing, attach a copy of the writing to your answers or, if you cannot do so, identify and describe the contents of the writing. If you made a written record of anything said or done, attach a copy of the written record to your answers; and (d) for each such occasion, state the effect on you of what was communicated." 1. Ms Barnett, who appears for the defendants in both proceedings, submitted that interrogatories of that kind should be allowed in the present case, for a number of reasons. First, it was noted that the plaintiff has brought proceedings against several different media entities in respect of broadly the same imputations. On that basis, Ms Barnett submitted that the interrogatories will assist the parties to understand the respective different damage to reputation occasioned by each different publication and that that information, in turn, will assist the parties in advance of the hearing in allocating responsibility for any damage to the plaintiff's reputation and so advance settlement discussions. 2. Secondly, Ms Barnett noted that the defendants have consented to give discovery about reader reaction and have also undertaken to answer interrogatories about the scope of publication. She submitted that the interrogatories sought to be administered to the plaintiff now will "complete the picture" in that respect. 3. A separate point made by Ms Barnett in reply was that the plaintiff will have to give evidence about the matters addressed in the interrogatories in any event and so should not suffer any disadvantage from having to prepare such evidence in advance in writing for the purpose of answering the interrogatories, but will rather benefit from undertaking that preparation sooner rather than later. 4. Mr Richardson, who appears for the plaintiff, opposed the plaintiff's being required to answer the interrogatories on a number of grounds. First, he reminded me of my judgment in Bateman v Fairfax Media Publications Pty Ltd (No 6) [2015] NSWSC 890 at [21] to [24]. Since the issue of the form of interrogatories likely to be allowed in this practice list is likely to be of guidance to other parties, it is convenient to repeat the relevant passage in full: 21 I do not propose to allow interrogatories 51 to 56 to the first plaintiff. Those interrogatories are in the form allowed by Hunt CJ at CL in Assaf v Skalkos (Supreme Court (NSW), Hunt CJ at CL, 9 August 1995, unrep). As submitted by Mr Blackburn SC, they have come to be regarded in this List as standard or approved interrogatories. Upon analysis, the ongoing utility of such interrogatories might, I think, be revisited. It should be noted that his Honour was concerned with a case in which identification of the plaintiff was in issue, and that is one of the three issues to which the interrogatories there allowed were considered relevant. Identification is not an issue in the present case. More pertinently, his Honour said, applying his earlier decision in the Robert Jones Investments case (Robert Jones Investments Ltd v Australian Stock Exchange (Supreme Court (NSW), Hunt J, 5 October 1990, unrep)), that interrogatories may be administered in a defamation action in relation to the issues of reaction of other persons to the matter complained of: "...upon the ground that the defendant is entitled to know in advance the nature of the evidence which is to be given at the trial concerning those issues." 22 The extract from his Honour's decision in Robert Jones Investments is reproduced as a schedule to the judgment in Assaf v Skalkos. In that extract, his Honour referred to the availability of interrogatories directed by the defendant to statements of reaction made to a plaintiff as being permissible "in order to prevent surprise when the evidence is made known for the first time at the trial". 23 The proposition that a defendant's counsel might truly be surprised by the kind of evidence that ordinarily comes in response to such interrogatories itself caused surprise to me. In my experience and in my view, as submitted by Ms Chrysanthou, such interrogatories, apart from being rarely tendered (which is perhaps explained by the reason for which they are allowed) really are of doubtful utility. 24 The decision in Assaf v Skalkos was in 1995, some 10 years before the introduction of the Civil Procedure Act 2005 (NSW) and almost twenty years before the promulgation of the practice note. Rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) confines interrogation to the case in which the Court is satisfied that the order is necessary at the time it is made. The test of necessity is explained in the practice note as being a requirement that the order is necessary for the resolution of the real issues in dispute in the proceedings. I do not think Assaf v Skalkos interrogatories meet that test, in particular in the circumstances of this case. I say so without foreclosing the prospect that they may be appropriate in some circumstances, for example where identification is in issue. I certainly do not think that necessity to prevent surprise to counsel at trial is an adequate basis for meeting the test specified in the Rules and in the practice note. In my view, it is time for defence counsel in defamation proceedings to throw caution to the wind and embrace the exhilaration of turning up to the trial simply not knowing the answers to so-called "reaction" interrogatories. 1. Secondly, Mr Richardson drew my attention to the decision of the Victorian Court of Appeal in Herald and Weekly Times Ltd v Hawke; Herald and Weekly Times Ltd v Kornhauser [1984] VR 587. In that case, the Court comprised of Crockett, Murphy and Marks JJ was considering interrogatories in the following form: 2. After the publication of the words complained of in this action had any persons to your knowledge or belief— (a) shunned or avoided you? (b) behaved towards you in such a way as to indicate that your reputation had suffered injury as a result of the said publication? 1. Their Honours said: The second interrogatory is framed in such a manner that interrogatory 2(a) is not linked in any way to the publication of which complaint is made. We agree with the learned Judge below that the interrogatory enquires into matters "not only too wide and vague but entirely irrelevant". Even if this latter defect was cured, the interrogatory would remain vague and not proper matter for interrogation. Interrogatory 2(b) requires the plaintiff to search his memory, and express his knowledge or belief whether after the publication of the words complained of any persons had behaved towards him in such a way as to lead him to conclude that they were indicating that his reputation had suffered injury as a consequence of the publication. It is a most oppressive and improper subject for interrogation. This is clearly objectionable on several grounds. It requires the plaintiff to speculate and express opinions as to the motivation of the behaviour of other persons. This is not permissible. The other "persons" are no doubt legion, for the interrogatories are dated 12 April 1983 and the alleged date of publication was 25 June 1982. It is sufficient to say that it is clearly oppressive. 1. Interestingly, Hunt CJ at CL referred to that judgment in Assaf v Skalkos in terms from which it is not entirely clear to me whether his Honour agreed or disagreed with those remarks. The relevant passage is set out above. It may be that his Honour intended to express his respectful disagreement with the conclusion of the decision in Hawke. Alternatively, it may be that his Honour saw some distinction between the interrogatories his Honour was allowing and those disapproved in Hawke. I must say the distinction, with respect, eludes me. 2. In any event, both decisions were made some considerable time ago. I must determine the present question in the context of the requirements of pt 6 of the Civil Procedure Act 2005 (NSW) and the Defamation List Practice Note, which evinces a clear intention to remind parties, particularly in defamation proceedings, of their obligation to assist the court to seek to further the overriding purpose of the Act of resolving the issues in the proceedings in a manner that is just, quick and cheap. 3. Defamation proceedings notoriously are at risk of disproportion between legal costs and the interest at stake. Mr Richardson submitted in that context that the notion that interrogatories of the kind presently propounded would in fact provide any practical assistance to the court to differentiate between the respective liability of the various different publishers of the same imputations may be dismissed as fanciful. Those were not Mr Richardson's precise words but that is what I understood to be the effect of the submission. 4. In my view, there is force in that submission. Having presided over a number of trials and had the task of assessing damages, I consider it unlikely that answers to the interrogatories propounded in the present case will usefully inform the assessment of damages or even the differentiation between responsibility of different defendants in any real or practical way. I am not persuaded that the interrogatories are "necessary" within the meaning of the rules or the practice note. The defendant's application for leave to administer those interrogatories is refused. ********** 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. Decision last updated: 18 April 2017