Kelliher v Kambala [2018] NSWSC 101

Supreme Court New South Wales

Medium Neutral Citation: Kelliher v Kambala [2018] NSWSC 101 Hearing dates: 2 February 2018 Decision date: 02 February 2018 Jurisdiction: Common Law Before: McCallum J Decision: Parties directed to bring in short minutes of order reflecting categories for discovery and interrogatories as agreed or ordered in this judgment Catchwords: DEFAMATION – rulings as to procedural steps – no question of principle Cases Cited: Newhouse v News Ltd (No 2) [2015] NSWSC 567 Category: Procedural and other rulings Parties: Debra Anne Kelliher (plaintiff) Kambala ACN 000 016 811 (first defendant) Mark Grandison (second defendant) June Peake (third defendant) Representation: Counsel: M Richardson (plaintiff) C Amato (defendants)

Solicitors: Banki Haddock Fiora (plaintiff) Barry Nilsson Lawyers (defendants) File Number(s): 2017/209264 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation commenced by the former principal of a private girls' school in Sydney, Kambala, against the school and two of its teachers. The proceedings have reached the stage of the second listing, at which the Court determines any application for further interlocutory steps. A large number of categories for discovery and interrogatories have been nominated by each party for response by the other but, happily, most are agreed. The parties have today brought forward a small number of outstanding disputes in respect of those requests. This judgment determines those disputes, as to which the parties have addressed the Court at some length this morning. 2. The first dispute relates to categories 10 and 11 proposed by the plaintiff for discovery by the defendants. The categories as initially proposed have been amended in response to discussions between the parties. The final position before argument is that the plaintiff would agree to the defendants' formulation save for a dispute as to the period to be covered. The following is the formulation to which the plaintiff would agree: "Documents created or dated between 30 June 2015 to 11 April 2017 recording or evidencing views of parents of Kambala students of the plaintiff's performance as principal, whether favourable or unfavourable." 1. Category 11 seeks the same documents but recording or evidencing views of Kambala staff as opposed to parents of Kambala students. 2. The defendants accept that discovery of some such material is relevant to an issue in the proceedings, namely, the truth of the defendants' contextual imputation, which is: "that the plaintiff had so seriously lost the confidence of teachers, staff and parents that she was forced to resign." 1. Plainly, an issue in the proceedings raised by the contextual truth defence will be the extent to which and when the plaintiff enjoyed the confidence of teachers, staff and parents and the impact of those matters on her decision to resign. However, the defendants contend that to produce the documents sought for the period sought by the plaintiff would impose an oppressive burden on the school. The defendants' argument was supported by an affidavit sworn by Mr Shane Hogan, the acting principal of the school, who has explained the steps that would be required to be taken to comply with that category and provided an estimate as to additional staff (and additional hours by present staff) that would have to be spent in order to comply with the order proposed. 2. This is a difficult issue to determine. The interests of proportionality loom large. On the one hand, I accept that the school needs to be protected from an oppressive order but, on the other hand, the documents are fairly sought as being potentially relevant to the defence pleaded by the school. In all the circumstances and to some extent informed by my own familiarity with the academic year of school students I consider an appropriate period to be a year, so that the documents required to be produced would cover the period from 11 April 2016 to 11 April 2017. 3. The next two disputed categories for discovery sought by the plaintiff are 32 and 33 as follows: "32 Any documents comprising any investigation or report into the fraudulent misappropriation of funds by Kambala's former business manager, Ian McCulloch, and/or the criminal proceedings relating to Mr McCulloch and sentence imposed on him. 33 (a) Any document comprising any investigation or report into the charging of expenses to the school by the former principal, Margaret White and/or the recovery of those expenses (b) Any documents evidencing communications with Ms White referring or relating to the recovery of expenses she had charged to the school; (c) The minutes of the meeting of the Council held in or about 2015 at the home of the President attended by David Ford solicitor, at which the issue of Ms White's expenses was discussed." 1. Those documents are sought in support of a claim for aggravated damages which, in my experience, is somewhat novel but which Mr Richardson's submissions have persuaded me is properly pleaded. The plaintiff contends in substance that, throughout her period as principal, she had a number of achievements in reducing debt and uncovering fraud or excessive expenditure at the school. Her contention is that the hurt and harm she suffered was aggravated in those circumstances by the school's publication of the matters complained of notwithstanding its knowledge of those fine achievements. There will be an issue as to the extent to which she may properly take credit for the matters uncovered. In those circumstances, the plaintiff seeks copies of reports which I apprehend it is contended will reveal her involvement in the relevant inquiries, whereas the defendants say it would be oppressive to produce all the documents required and that in any event what is sought to be proved is better achieved through the administration of an interrogatory. 2. The defendant has consented to answer relevant interrogatories. I am satisfied that, upon the first defendant answering interrogatories 52 and 53, which it has consented to do, the plaintiff will have what is necessary for the purpose identified and on that basis would reject categories 32 and 33. 3. That determines the disputes as to discovery. The plaintiff wishes to interrogate the defendants in interrogatory 23 as to their present belief in any of the statements made in the matter complained of. Mr Richardson submitted that an interrogatory in those terms would be relevant to the question of injunctive relief sought in the further amended statement of claim. He relied in that context on my decision in Newhouse v News Ltd (No 2) [2015] NSWSC 567 at [34]-[37]. The circumstances of that case were, I think, relevantly different in that the injunctive relief was sought against a mass media publisher in circumstances where the matter complained of remained available for download after the commencement of proceedings. 4. The circumstances of the present case are a little different. The plaintiff's complaint is that the school has at no point distanced itself from the allegedly defamatory emails or published any apology. I do not think the defendants' present belief as to truth of the imputations or the truth of the matters complained of would be sufficiently helpful in determining the question whether injunctive relief should be granted to warrant putting the defendants to the burden of answering what is a relatively complex question, noting that any belief of the first defendant, the school, would require it to explore the views of a number of people who might have different answers to the question. The same question is posed to the individual defendants but I do not think it is sufficiently relevant to the question of any injunctive relief against them to warrant its being included in the interrogatories ordered by the court. 5. Finally, the defendants wish to ask the plaintiff the following question: "As at 10 April 2017 did you want to resign from your position as Principal of Kambala?" 1. The question is said to be relevant to the truth of the contextual imputation set out above. However, in my view, the question of a person "wanting" to resign in circumstances where the contention is one of constructive dismissal or a complex decision in circumstances of acrimony is likely to be so complex and the answer so equivocal as to be unhelpful in the resolution of the issues in the proceedings. For those reasons I reject that interrogatory. 2. I direct the parties to bring in short minutes to reflect the agreed categories for discovery and agreed interrogatories together with the rulings given in this judgment.