Supreme Court New South Wales Medium Neutral Citation: Bailey v WIN Television Pty Ltd (No 2) [2018] NSWSC 1648 Hearing dates: 7 September 2018 Decision date: 07 September 2018 Jurisdiction: Common Law Before: McCallum J Decision: Rulings given as to second listing issues; parties directed to bring in short minutes of order Catchwords: DEFAMATION – defences – contextual truth – whether contextual imputation capable of meeting statutory test – appropriateness of striking out contextual imputations at preliminary stage of proceedings DEFAMATION – interlocutory steps – rulings given as to interrogatories – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW), s 26 Cases Cited: Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329 Category: Procedural and other rulings Parties: Roger Bailey (plaintiff) WIN Television NSW Pty Ltd (first defendant) WIN Corporation Pty Ltd (second defendant) Maree Statham (third defendant) Representation: Counsel: L Barnett (plaintiff) S Chrysanthou (first and second defendants) M Richardson (third defendant) Solicitors: Mills Oakley (plaintiff) Banki Haddock Fiora Lawyers (first and second defendants) Colin Biggers & Paisley (third defendant) File Number(s): 2018/315166 Publication restriction: None Judgment ex tempore - revised 1. HER HONOUR: These are proceedings for defamation before the Court today for the second listing at which, in accordance with the Defamation List Practice Note, the Court determines any objections to the form of the defence and whether any further interlocutory steps should be allowed as sought by the parties. 2. The first issue brought forward by the parties today concerns a contextual imputation pleaded in essentially the same terms on the one hand by the first and second defendants and separately by the third defendant. 3. The imputation as framed by the first and second defendants is "the plaintiff was dismissed from his position as general manager of the council". The form pleaded by the third defendant is "the plaintiff was dismissed from his position as general manager by a 5/3 majority vote of council". 4. The plaintiff objects that the imputation is bad in form in that it does not distil any act or condition attributed to the plaintiff. I do not accept that submission. In my view, as submitted by the defendants, the condition of having been dismissed is adequately specific and capable of being defended. 5. Separately it was submitted that if the imputation were to distil a proper sting, it would be no different from the plaintiff's imputation in the following terms: "The plaintiff as general manager of Lithgow City Council performed so poorly in the role that his termination was inevitable." 1. In accordance with the understanding I had of the nature and scope of the defence under s 26 of the Defamation Act 2005 (NSW) prior to the decision of the Court of Appeal in Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329 (that is to say, uninstructed by the authority of that decision), I would have ruled that the contextual imputation was not capable of meeting the test stated in the statute in that it did not identify any different sting from the plaintiff's imputation set out above. In my assessment, the condition of having been dismissed from a position implicitly carries with it having conducted oneself in such a manner as to warrant the taking of that step. 2. However, the decision in Zeccola has corrected the approach I previously took to the defence of contextual truth and, in my assessment, poses a significantly less onerous test as to what will amount to or be capable of amounting to an "other imputation" within the meaning of s 26. In accordance with the principles stated in that decision, I think I am constrained to reject the application to strike the imputation out on that basis. 3. Separately, there might be a real question as to whether the contextual imputation is capable of further harming the plaintiff's reputation in accordance with the second element in s 26. However, again, I think the now accepted view is that a question of capacity on that issue ought ordinarily be left to the trial, in part because the exercise to be undertaken by the tribunal of fact on that issue requires that tribunal to balance the burden of the plaintiff's imputations with the whole of the circumstances established at trial in support of the truth of the contextual imputations (potentially including the truth any contextual imputation appropriated by the plaintiff). 4. For those reasons, while I confess (as I indicated during argument) I am to some extent mystified by the strategy sought to be employed in pursuing a contextual imputation in the terms pleaded, I think I am obliged to allow it to go to the jury. Further, as already indicated, I do not accept that it is bad in form and it follows that it is not liable to be struck out as embarrassing. 5. The remaining disputes brought forward today relate to discovery and interrogatories. During the course of argument the parties significantly narrowed the disputes on those issues leaving a small number on which the Court is required to give a ruling. The Court is of course required to state reasons for its rulings but, having regard to the nature of this argument and the time, which is now a quarter to four, and the undesirability of reserving a decision, these reasons will be stated in short form on the understanding that they are informed in some measure by the exchanges that occurred during argument, which will be recorded in the transcript. 6. The first dispute relates to interrogatory 66 to be administered to the plaintiff, which asks whether the plaintiff ever requested access to any surveillance camera, CCTV footage recorded on council premises or of council employees so that he could review such footage. The interrogatory is said to relate to an individual particular of truth which relates to a specific occasion on which the plaintiff is alleged to have requested CCTV footage for that purpose. A question directed to that specific occasion is not objected to but the plaintiff objects to the generality of interrogatory 66. He submits that it is not necessary and in effect amounts to fishing. I agree. That interrogatory will not be allowed. 7. The second objection relates to a category for discovery by the first and second defendants, category 30, which seeks documents evidencing or recording all communications between the first or the second defendants or their legal representatives and Ms Katie Turner in relation to the allegations in the particulars of truth. The issue to which that category is directed seeks to establish a negative. The plaintiff wishes to establish, based on information he has received, that contrary to an allegation sought to be proved by the defendants, Ms Katie Turner never in fact provided information to them of the kind particularised in the defence. 8. It is acknowledged in that context that the discovery may produce an answer that documents exist but cannot be inspected because they are the subject of client legal privilege. That would not defeat the purpose sought to be achieved by the plaintiff. 9. In my view this is the kind of issue where an otherwise difficult matter of proof may be significantly facilitated by the answer the plaintiff anticipates will be included within the list of documents, and I consider that should be allowed. 10. The next item in dispute is a category for discovery by the third defendant, number 25, which seeks documents evidencing, referring to or recording the plaintiff's reluctance or refusal to employ persons at the council at the third defendant's recommendation. 11. It was argued that that category is oppressive. I agree. However, the plaintiff agreed during argument to supply the names of any particular person the plaintiff is said to have been reluctant to employ and, if those particulars are provided, the documents will be discovered. 12. The next item in dispute is two interrogatories directed to the first and second defendants concerning publication of the third matter complained of. The Practice Note requires a defendant to state at the first listing whether publication is admitted and, if so, to identify the scope of publication admitted and, if not admitted, to explain the nature of the dispute as to publication that will arise. 13. The plaintiff asks whether the first and second defendants broadcast the third matter complained of or any material substantially the same as it in any other licence area than the southern New South Wales licence area and separately, in question 10, whether the first or second defendants authorised such broadcast. 14. The defendants complain that they should not be required to answer those interrogatories because they have, in accordance with the pleading, made an appropriate admission as to publication, having admitted publication within the only licence area identified in the pleading. 15. The way in which the argument unfolded leads one to apprehend that there may indeed be syndicated publication in other licence areas, the point taken being a pleading point. However, the pleading, while specifying a particular licence area, does not confine the allegation of publication to that area but alleges publication of the matter complained of by those defendants. In my view it is appropriate in accordance with the purpose of the Practice Note to require the defendants to answer those interrogatories. 16. The next dispute relates to interrogatory 24 directed to the first and second defendants which asks whether, prior to the publication of the third matter complained of, the first defendant had any previous dealings with any source and, if so, what were those dealings. The same question is posed as interrogatory 13 to the third defendant and it was Mr Richardson, who appears for that defendant, who argued this point. 17. Mr Richardson submitted, with some force, that this interrogatory is not part of what he termed "the canon". He submitted that, having regard to the object of the Practice Note of achieving the overriding purpose of the Civil Procedure Act 2005 (NSW), the Court should give careful consideration to any new kind of interrogatory directed to the question of reasonableness for the purpose of the defence of qualified privilege. 18. Shortly after the publication of the Practice Note, a series of decisions established the scope of the so called canon. As submitted by Mr Richardson, the present interrogatory seeks to delve further into the issue of the reliability of the sources and a publisher's belief as to that reliability. It is posed in circumstances where the defendants have already consented to the usual questions as to the information held by them prior to publication, the sources of that information, their view as to the reliability of those sources and so on. 19. I accept Mr Richardson's submission that the interrogatory now proposed goes beyond the scope of those matters in a way that is not necessary for the determination of the issues in the proceedings and should not be allowed. 20. I should indicate that, during argument, the plaintiff accepted that the interrogatory should not be pressed as against the third defendant but in respect of the first and second defendants, the same issues arise. Even though the number of sources those defendants have may be considerably smaller than those consulted by the third defendant, the arguments I have just outlined, as forcefully put by Mr Richardson, apply. 21. The next dispute is as to interrogatory 25 directed to the first and second defendants, which asks whether, prior to the publication of the third matter complained of, the first defendant had a view as to the relationship between the plaintiff and the third defendant and, if so, to identify the view held. That interrogatory is directed again to the issue of reasonableness for the purpose of the statutory defence of qualified privilege. For substantially the reasons given in respect of interrogatory 24, I would disallow that interrogatory. I do not think it is necessary, particularly having regard to the usual interrogatories posed in respect of that defence, which will provide an ample basis for the plaintiff to prove or disprove reasonableness, in my view. 22. The next dispute relates to interrogatory 4 directed to the third defendant, which asks: "In relation to each publication did you authorise, expressly or by implication, the re-publication of the substance of the publication by the first defendant or the second defendant and, if so, state the words or conduct by which you authorised the re-publication." 1. The objection to answering that interrogatory was that it is directed towards a question of law and, secondly, that it is not necessary within the meaning of the rules and the Practice Note. 2. As to whether it is a question of law, Ms Barnett submitted that the question of law is whether the defendant is liable for publication and that the interrogatory as framed is directed to an issue of fact. Mr Richardson submitted that the question is directed to a conclusion of law as to authority and should be disallowed on that basis. He further submitted that it is not necessary because in paragraph 8 of her defence the third defendant admits that she knew and intended that WIN Television would re-publish the words she spoke at line 13 of schedule A and admits that the natural and probable consequence of her speaking those words is that they would be re-published. Mr Richardson also relied on the fact that, in interrogatory 5, the third defendants is again asked whether she was aware that the words she published would be or were likely to be re-published by the first and/or second defendant. 3. In my view the interrogatory should be rejected on all three grounds. With great respect to Ms Barnett, I do think it is directed to a question of law. Further, it is not necessary, for the reasons identified by Mr Richardson. 4. The final three objections relate to interrogatories 39, 40 and 41 directed to the third defendant by the plaintiff. Interrogatory 39 asks whether in relation to each publication the third defendant made the publication for any of five purposes, which reflect the purposes specified to support an allegation of malice in the reply. 5. Interrogatory 40 asks whether before publishing each publication the third defendant considered that it could have any of those five effects. 6. Interrogatory 41 asks, if the answer to question 40 is in the affirmative for each such effect, that the third defendant identify what consideration she gave and with what result; whether she took any steps to prevent that effect and, if so, what steps. 7. The burden of the objection to those interrogatories was that they are oppressive, not so much because they do not relate to any issue in the proceedings, which they plainly do, but because it is unrealistic or, as Mr Richardson put it, "too much" to expect a defendant to delve into the kind of internal deliberations that she undertook when the context of the publication is that she, as it is put, effectively walked out of a meeting and two minutes later spoke to a journalist on camera. He submitted on that basis that those interrogatories are not necessary in the required sense. 8. In determining this objection, I have again had regard to the requirements of the Civil Procedure Act and the obligation of the Court to endeavour to apply procedural rules in a manner that will facilitate the just, quick and cheap resolution of the real issues in the proceedings. 9. Ms Barnett submitted that the third defendant could answer each question "yes" or "no". The question is whether she should be required to and whether it is a difficult kind of question for a person to answer to return to their internal deliberations within a short period of time. On balance I do not think those interrogatories are necessary. Mindful of my obligation under the Civil Procedure Act, I reject those interrogatories. ********** Amendments 05 November 2018 - Incorrect counsel's name on coversheet 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: 05 November 2018