Adlock Pty Limited & 3 Ors v Amalgamated Television Services Pty Limited

[1999] NSWSC 635

CITATION:

Adlock Pty Limited & 3 Ors v Amalgamated Television Services Pty Limited [1999] NSWSC 635

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

21366 of 1996

HEARING DATE(S):

11 June 1999

JUDGMENT DATE:

11 June 1999

PARTIES :

ADLOCK PTY LIMITED t/as DINOSAUR CARPET CLEANING
(First Plaintiff)

KELLI BARHAM
(Second Plaintiff)

TONI ANNE BARHAM
(Third Plaintiff)

NORMAN BARHAM
(Fourth Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	J C Gibson (Plaintiffs) K Smark (Defendant)
SOLICITORS:	Denes Ebner (Plaintiffs) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Interrogatories
DECISION:	See paragraph 16

DLJ: 1
(Ex Tempore - Revised)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 21366 of 1996

JUSTICE DAVID LEVINE

FRIDAY 11 JUNE 1999

ADLOCK PTY LIMITED t/as DINOSAUR CARPET CLEANING

(Plaintiff)

KELLI BARHAM
(Second Plaintiff)

TONI ANNE BARHAM
(Third Plaintiff)

NORMAN BARHAM
(Fourth Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LTD
(Defendant)

JUDGMENT (Interrogatories)

1    HIS HONOUR: In my judgment of 16 December 1998 (unreported) in the matter of Carney v Mack, at the top of page 2 I indicated a view then held with respect, that there was a need to consider or reconsider a series of decisions by Justice Hunt in Howard & Anor v Nationwide News Pty Limited (unreported, 26 February 1987); Lewis & Anor v Page (unreported, 18 July 1989) and Palmer v John Fairfax & Sons Pty Limited (1986) 5 NSWLR 727. I am still of that view. 2 There are outstanding judgments to be delivered by me on interrogatory disputes that may or may not provide an occasion for that view. 3 At about the time of my judgment in Carney v Mack the Court of Appeal handed down its judgment in the New South Wales Aboriginal Land Council v Perkins now reported (1998) 45 NSWLR 340 which finally laid to rest the vexed question of what it was to which comment was a defence. The result in that appeal, simplistically stated, flowed from the following reasoning: Comment is a defence; it is a defence to what? the cause of action; what is the cause of action? the imputation. 4 What at present is apparently the subject of some concern is whether or not that defence provided by s 22 of the Defamation Act is a defence to a cause of action, namely the imputation, or a defence to the occasion of the publication of the matter that gives rise to it, conformably with the essence of the defence of qualified privilege at common law. 5    Certainly the wording of s 22 points to the defence focusing upon the matter published as distinct from the imputations conveyed by it. 6    The relationship between defences in New South Wales and the cause of action will again have to be the subject of consideration in the context of the defence of protected report in the light of the judgment of the High Court in Chakravati Advertisers Newspapers Limited (1998) 154 ALR 294. 7 Arguably as a result of what fell from Brennan CJ and McHugh J that the resolution of the question of whether the report was a protected one depended upon what was found to have been conveyed as a meaning might well have an impact upon the resolution of the issue as to that to which s 22 applies. 8 All this is said by way of introduction to a dispute in relation to a series of interrogatories delivered by the plaintiff to the defendant in this action which is listed for call up early in July, which is expedited, and which is likely to be given a hearing date before the end of this year. 9 This case might in other circumstances constitute a vehicle for resolving these outstanding issues after nearly a quarter of a century of the operation of the Defamation Act of 1974. However conformably with presently accepted doctrine my view is that the objections taken to interrogatories 4, 5, 7 and 9 are well founded, but otherwise those interrogatories should be answered as if they had been framed in the usual way without reference to “imputations” but with reference to the matter published. I direct the defendant to provide answers to those interrogatories as if so framed within 14 days of today. 10    In relation to disputed answers to interrogatories 12 and 17, it is submitted for the defendant that the real issue is not “who did it” but “what did the defendant do?” In this matter the defendant has expressly stated that it took care to report accurately the material and information it had in its possession as part of its defence under s 22. The subject interrogatories clearly relate thereto, legitimately can be asked in addition to Palmer interrogatories. 11    I direct that answers to 12 and 17 be provided within 14 days. 12    I decline to order the defendant to answer interrogatory 14. 13    (Compare the approach I adopted in Carney v Mack supra). 14    Interrogatory 13 is said to be anchored in a claim in relation to s 52 of the Trade Practices Act inter alia, to what is described as promotional material being appended to the Statement of Claim as Schedule B. The objection taken to interrogatory 13 I am of the view is well founded and the defendant is not be directed to answer it. 15    An argument almost of inconsequential dimensions developed in relation to the form of the answers provided by the defendant pursuant to Pt 34 r 6. The objections were of a class provided for by the rules, and the basis for making them enunciated in the form of answer provided. I do not consider the defendant to have been in default. 16    As to the application relating to the interrogatories it seems to have turned out a draw and each party will pay its own costs.

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