Supreme Court New South Wales Medium Neutral Citation: Lister v Nationwide News Pty Ltd [2017] NSWSC 1655 Hearing dates: 3 November 2017 Decision date: 03 November 2017 Jurisdiction: Common Law Before: McCallum J Decision: Each of interrogatories 1 and 2 allowed; plaintiff to pay the defendant's costs of the second listing on 2 June 2017; defendant to pay half the plaintiff's costs of today's application Catchwords: DEFAMATION – interrogatories – plaintiff's entitlement to interrogate as to defendant's belief in truth of imputations Category: Procedural and other rulings Parties: Stephen Lister (plaintiff) Nationwide News Pty Ltd (defendant) Representation: Counsel: T Molomby (plaintiff) L Barnett (defendant) Solicitors: Nyman Gibson Miralis (plaintiff) MK Lawyers (defendant) File Number(s): 2017/54660 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation arising out of the publication of an article in The Australian headed "ICAC's Search Warrants Practice Revealed". 2. The subject of the article was alleged "Judge-shopping" by the Independent Commission Against Corruption. Specifically, the article alleged that ICAC approached the same Registrar at least ten times to authorise "raids on high profile politicians, a Crown Prosecutor, businessmen and public officials". The plaintiff is the Registrar referred to in the article. 3. The proceedings are before the Court today for second listing. As contemplated by the Defamation List Practice Note SC CL 4, cl 16, the parties have brought forward proposed interlocutory steps. There is a dispute as to a small number of the interrogatories proposed by the plaintiff for answer by the defendant. 4. The first interrogatory objected to is: 1 Did you at the time of publication of the matter complained of believe that it was true of the plaintiff that: a. As a Registrar of the court, he has been unduly favourable to requests for warrants from ICAC? b. As a Registrar of the court he has a relationship with ICAC that is unhealthy for the rule of law? c. As a Registrar of the court, authorising search warrants for ICAC, he has an unduly familiar relationship with an ICAC investigator? d. His conduct as a Registrar of the court issuing search warrants is such as to require investigation by the Chief Magistrate? 1. Ms Barnett, who appears for the defendant, submits that a question in that form should be prefaced by anterior questions in the form of proposed interrogatories 6 and 7, namely whether the defendant intended to convey each imputation or, alternatively, considered whether readers would understand the article to convey those imputations. 2. Ms Barnett submitted that a question in the form of Question 1 should only be required to be answered in respect of any imputation the publisher did actually intend to convey (or one as to which the publisher adverted prior to publication) and that otherwise to be required to answer an interrogatory in the form of Question 1 is oppressive. 3. Mr Molomby, who appears for the plaintiff, submitted that there is nothing oppressive in requiring the publisher to answer a question as to belief in the truth of an imputation and that that is a question which can appropriately and helpfully be answered as going to the state of mind of the journalist, regardless of whether or not he or she had a particular imputation in mind at the time of publication. 4. The defendant's submission tends to rest upon the use of the word "imputation" as a term of art used in reference to pleadings, the submission in substance being that the journalist could not anticipate the way in which the pleader might distil the alleged meaning of the matter complained of. 5. However, the subject of Question 1 is not so much the pleading in terms but the attribution denoted by the imputation in the pleading. In my view there is nothing oppressive or conceptually difficult for the defendant in considering, regardless of the way in which the cause of action was later pleaded, whether at the time of publication he or she held a belief in the truth of a particular attribution relating to the plaintiff. I propose to allow interrogatory 1. 6. The second objection is to interrogatory 2 which asks, if "yes" to 1, for all the information in the possession of the defendant on which the belief was based. Ms Barnett noted that the defendant has agreed to answer an information interrogatory in Question 10, which focuses on the information held by the defendant in relation to the information contained in the matter complained of. 7. Ms Barnett submitted that since the defendant has agreed to answer that question there would be overlap or duplication in requiring it to answer interrogatory 2. Mr Molomby submitted that interrogatory 2 is directed to a different field of enquiry, that is, the information held by the publisher not in respect of what was published but in respect of what was present to the publisher's mind which, of course, is relevant to the qualified privilege defence. 8. Mr Molomby's submissions have persuaded me that there is a distinction and that it is one which is important in the plaintiff's preparation for the proceedings. 9. For those reasons I propose to allow each of the interrogatories objected to, that is, interrogatories 1 and 2. The parties have otherwise reached agreement as to the form of interrogatories the Court should order. COSTS 1. The plaintiff has been successful in obtaining an order that the defendant answer the two interrogatories the subject of argument. The defendant, however, seeks its costs of today on the basis that those objections ought to have been brought forward for determination at an earlier date scheduled as the second listing. 2. Mr Molomby submits on that basis that the plaintiff should bear the costs of that earlier date but not the costs of today and that, having won, he should have his costs of today. 3. I am satisfied that it is appropriate for the plaintiff to pay the defendant's costs of the second listing in June. 4. As to today, it is difficult to judge the fair result, since the small number of matters brought forward for determination by the Court belied the amount of preparation on each side. To a degree, the defendant contributed to the need for the matter to be dealt with more or less at the last minute since its attitude to the interrogatories when first served was that the plaintiff had missed his opportunity. Just as the plaintiff ought to have brought his interlocutory steps forward at the second listing, the defendant ought to have complied with the spirit of the Practice Note in engaging more substantively with the matters brought forward. 5. Doing the best I can, I think the fair result for today's costs is that the defendant should pay half the plaintiff's costs. 6. The orders are that the plaintiff pay the costs of the second listing on 2 June 2017 and that the defendant pay half the plaintiff's costs of today. ********** 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: 07 December 2017