Bailey v the Australian Broadcasting Corporation

[1996] QSC 37

IN THE SUPREME COURT

OF QUEENSLAND

No. 1303 of 1993

Brisbane

Before the Hon. Justice GN Williams

[Bailey v. The Australian Broadcasting Corporation & Anor]

BETWEEN:

ANTHONY HAROLD HYDE BAILEY

Plaintiff

AND:

THE AUSTRALIAN BROADCASTING CORPORATION
  First Defendant

AND:

CHRISTOPHER MASTERS
  Second Defendant

JUDGMENT - GN WILLIAMS J

Judgment delivered 21/03/1996

CATCHWORDS      INTERROGATORIES - defamation action - no further answers ordered.

Counsel:Mulholland QC and Boddice for

defendants/applicants

Morris QC for plaintiff/respondent

Solicitors:Biggs & Biggs for applicants

Russell & Company for respondent

Hearing Date:   23 February 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 1303 of 1993

[Bailey v. The Australian Broadcasting Corporation & Anor]

BETWEEN:

ANTHONY HAROLD HYDE BAILEY

Plaintiff

AND:

THE AUSTRALIAN BROADCASTING CORPORATION
  First Defendant

AND:

CHRISTOPHER MASTERS
  Second Defendant

JUDGMENT - GN WILLIAMS J

Judgment delivered 21/03/1996

This is an application by the defendants in the action for orders that the plaintiff provide further and better answers to certain interrogatories.  The pleadings are complex, and the history of disputation relating to the proceedings is voluminous.  On the direction of the Senior Judge Administrator I have been case managing the proceeding for some time and this application was brought before me because I have been fulfilling that role.  In all the circumstances I do not propose in these reasons to say any more than is absolutely necessary in order to rule upon the questions raised by the application.
Interrogatories 1(c) and (d)
           In paragraph 5(a)(iii) of the amended defence of the first and second defendants delivered 23 November 1994 it is alleged that "on 22 September 1987 the plaintiff received instructions to act for Leeth, Donovan and three of their co-accused".  That allegation is admitted in paragraph 3(a) of the further amended reply delivered 9 December 1994.  The interrogatories in question ask whether the plaintiff received instructions to act on behalf of persons by the name of Bockoff, Powell, and Tucker, and if so on what date such instructions were received.
           At a directions hearing I ordered the parties to negotiate with a view to resolving outstanding issues relating to the sufficiency of answers to interrogatories so as to avoid the necessity of a formal application to the court for further answers.
           The plaintiff had initially objected to answering these interrogatories on the ground that they did not relate to any matter in question between the parties.  But in a letter of 19 September 1995, written consequent upon the directions I gave, the solicitors for the defendants indicated they wanted confirmation of the names of the three other persons whom the plaintiff admitted had given relevant instructions.  By letter dated 4 December 1995 the solicitor for the plaintiff confirmed that the three co-accused referred to in the admission in the reply were Bockoff, Powell and Tucker.  The letter made the comment that the writer did not think there had ever been a serious issue about that; that is correct because all five accused were named in the answer to interrogatory 1(g).
           If the names of the three co-accused be relevant, and I make no formal decision on that, clearly the correspondence resolved the question raised by the interrogatories.  That letter was written consequent upon my direction, and it amounted to a formal admission in the proceedings that the other three co-accused referred to in the admission in the reply and answer were Bockoff, Powell and Tucker.
           In the circumstances there was no need for the defendants to persist with an application for further and better answers to these particular interrogatories.  The application in regard to those interrogatories is refused.
Interrogatories 1(h)(i) to (iv)
           In the amended defence delivered 23 November 1994 the defendant pleads facts in paragraph 5 in support of a defence that any defamatory matter was published in good faith.  The two relevant allegations of fact for present purposes are:

"(xiii)On 29 December 1987 an amount of $1,095,411.36 was paid into the account of the Official Trustee in Bankruptcy;

...

(xviii)A total of approximately $1.3 million of the property was expended on legal costs."

In substance the allegation is that money was frozen pursuant to the provisions of s. 243E of the Customs Act 1901, and that from such property amounts were advanced in accordance with court directions for the costs of the named accused persons in relation to legal proceedings.
           In paragraph 1(r) further and better particulars furnished by the defendants on 16 September 1994 it was asserted that "a total of approximately $1.3 million of the property was expended on legal costs including numerous applications in the Federal Court in relation to question of legal expenses for the representation of Leeth, Donovan and their co-accused."
           Paragraph 5(b) of the further amended reply delivered 9 December 1994 denies the allegations made in paragraph 5(a)(xviii) of the defence, and paragraph 4(b) thereof denies the allegation contained in paragraph 1(r) of the particulars.
           Against that background interrogatory 1(g) asked whether the plaintiff received remuneration for the representation of Leeth, Donovan, Bockoff, Powell and Tucker.  That interrogatory was answered in the affirmative.  Then followed interrogatories 1(h)(i) to (iv) which were in the following terms:

"(h)If the answer to interrogatory 1(g) is an affirmative one, state in relation to each such person:

(i)the amount of remuneration received by the plaintiff (specifying the amount received on account of solicitor's professional costs and the amount received on account of disbursements);

(ii)from whom the plaintiff received such remuneration;

(iii)whether such remuneration was monetary or otherwise (specifying the form of such remuneration);

(iv)the date or dates upon which the plaintiff received such remuneration."

That interrogatory was answered as follows:

"A.I answer this interrogatory on the footing that it was intended to be directed at the remuneration derived by the firm Bailey and Bailey, of which I was a member, rather than by me personally.  I received no remuneration personally.

B.The identity of the persons who paid my firm remuneration out of the accounts and property referred to in sub-paragraphs 5(a)(xiii) and (xviii) respectively of the further amended defence delivered 23 November 1994 in relation to the proceedings referred to in sub-paragraph 10(a) of the statement of claim and the subsequent Supreme Court proceedings, the nature of the remuneration and the dates upon which I received such remuneration set out in Schedule 1 of these answers.

C.I otherwise object to answering these interrogatories on the grounds that, in so far as they are directed at the fees which I or my firm received from sources other than the said account and property, or the amount of such fees, they are fishing and do not relate to any matter in question in this action."

The essence of the defendant's case is that the plaintiff received monies knowing them to be the proceeds of crime and that the amount of fees was determined in the light of such consideration.  Given the answer of the plaintiff, including the Schedule to the answer, there has been in my view a sufficient response to the interrogatory in so far as it is relevant to the issues raised by the pleadings.  I am not satisfied that on the pleadings information as to the sources of remuneration other than The Official Trustee is material and relevant to the issues for determination in the trial.
           The application for an order for further and better answers to these interrogatories is refused.
Interrogatories 3(a)(b)(c)
           In the first of those interrogatories the defendants asked the plaintiff whether or not he received instructions to act on behalf of all or any of Leeth, Donovan, Bockoff, Powell and Tucker in Federal Court Proceedings No G175 of 1987.  If the answer to that was yes, the second interrogatory asked did the plaintiff receive remuneration for that representation, giving particulars with respect to each client.  And the third interrogatory asked for details of the source of the remuneration if the answer to the proceeding interrogatory  was yes.  It is not necessary to set out in detail the lengthy particulars sought as to the remuneration.
           The plaintiff objected to answering the first on the ground that it did not relate to any matter in question and the action, and in consequence it was not necessary to answer the others.
           In support of the application for further answers counsel for the defendants submitted that part of the property seized by Order of the Federal Court was expended in Federal Court Proceedings No G175 of 1987.  It was then submitted that whether the respondent received instructions from all or any of the named persons in relation to those proceedings, whether he received remuneration in relation thereto and details of such remuneration were relevant to the amount of money received by the solicitor's firm and the sources thereof.
           I have difficulty in seeing how, given the pleadings, these interrogatories are relevant.  The interrogatories are couched in extremely wide terms.  "Instructions to act" is a vague expression, and it is difficult to see how the precise instructions are relevant to the issues raised on the pleadings.  The subsequent interrogatories are couched in such wide terms that remuneration from any source is made the subject matter of the question.  For the reasons given with respect to the preceding group of interrogatories I cannot see how remuneration from other sources is relevant to issues raised by the pleadings.
           Again the application for further and better answers to this set of interrogatories should be refused.
Interrogatory 1(h)(v)(vi)
           In paragraph 12(a)(iii) of the statement of claim the plaintiff alleges an imputation arising from the words published by the defendants, namely that he "sacrificed or subjugated the interest of Leeth and Donovan as their solicitor to his own interest in obtaining money".  That imputation is denied by the defendants in paragraph 4(b) of the amended defence delivered 23 November 1994.  But further it is alleged by the defendants in paragraph 5 of that defence that if the matter published was found to be defamatory it was published in good faith, and numerous particulars thereof are then alleged.  Many of those particulars relate to the source of the funds used to meet the legal costs charged for providing the legal services in question.
           The interrogatories in question are in these terms:

"State in relation to each such person [the five defendants for whom the plaintiff was acting]:

(v)full details of the work performed in exchange for such remuneration, including:

A.the date or dates upon which such work was performed;

B.the hours billed in relation thereto;

C.the hourly rate at which such work was charged;

(vi)whether the plaintiff has performed work for which he has not been remunerated and, if so, give full details of the work performed including:

A.the date or dates upon which such work was performed;

B.the time spent in relation thereto;

C.whether the plaintiff rendered an account in relation thereto and, if so, on what date and in what amount."

Monies were apparently paid from the fund frozen in the hands of the Official Receiver for legal fees in accordance with orders of the Federal Court.  The submissions indicated that such disbursement may have been based on an hourly billing rate.  But apart from that it is clearly oppressive to require the plaintiff to provide the information requested in the interrogatory.  The interrogatory is tantamount to asking the solicitor's firm to now present a bill in taxable form.
           Interrogatory (vi) is badly drafted because it blurs the distinction between the plaintiff and the solicitor's firm.  But in any event it again is oppressive for the same reason as the previous one is.
           In so far as payments were made out of the fund in the hands of the Official Receiver all relevant details are available to the defendants.
           In my view this interrogatory is not material to the imputation pleaded by the plaintiff in paragraph 12(a)(iii) of the statement of claim, given the response of the defendants thereto.
           In all the circumstances the application for a further and better answer to these interrogatories should be refused.
Interrogatory 1(j)
           This interrogatory is so vague and badly drafted that, in my view, it is almost unintelligible.  In interrogatory 1(i) reference is made to "instructions ... in relation to their involvement in the matters the subject of the charges in such proceedings"; there is then reference to each of the five defendants.  The time specified was "any time prior to the conclusion of the committal proceedings".  An affirmative answer was provided to that interrogatory; that was hardly surprising.
           Then interrogatory (j) is in these terms:

"if the answer to interrogatory 1(i) is an affirmative one, state, in relation to each occasion on which instructions were obtained;

(i)the person who gave instructions;

(ii)the date thereof;

(iii)the substance or effect of the instructions received;

(iv)whether the plaintiff made a written note of such instructions or prepared a statement of such instructions and, if so, identify the writing."

The plaintiff objects to answering that interrogatory on the basis that it was vague, oppressive, and did not relate to any matter in question.  Further specific objections were raised in paragraph (v) of the answer, but it is not necessary for me to set out that in detail.
           In his submissions in support of the application for a further answer senior counsel for the defendants concentrated on the question whether Leeth and/or Donovan gave instructions to plead guilty during the course of the committal proceedings.  That particular matter is something which could be said to be relevant given allegations in the statement of claim and defence.  But the difficulty is that the interrogatory in question is not directed to such an issue.  What is meant by "instructions ... in relation to their involvement in the matters the subject of the charges"?  Clearly it seems to me that any instructions given during the course of the lengthy committal proceedings for example, as to whether or not a particular witness was giving accurate evidence on a particular matter, would constitute instructions for the purposes of the interrogatory.  Given the length and nature of the committal proceedings as revealed by a reading of the pleadings it is clear that there would have been many thousands of instructions in that sense given to the solicitors in the course of the committal proceedings.  The interrogatory is so vague, and also so oppressive, that it is clearly objectionable.  To answer it, in the first place, requires the plaintiff to come up with a proper definition of the term "instructions" in the interrogatory and that would undoubtedly then involve consideration of many thousands of conversations before the interrogatory could be answered.
           The interrogatory is clearly objectionable and no further answer should be ordered.
Interrogatories 2(a)(b)(c)(d)
           These interrogatories direct the plaintiff's attention to paragraphs 8(c) and 12(c) of the statement of claim and paragraph 4(a) of the further amended reply.  The substance of the paragraphs referred to in the statement of claim is that material published by the defendants carried the imputation that the plaintiff knew or ought to have known that money received by him was the proceeds of crime, deliberately refrained from making enquiry as to the source of that money, and thereby unlawfully and immorally participated in the laundering of money obtained from the sale of illicit drugs.  In paragraph 4(d) of the amended defence delivered 23 November 1994 the defendants denied that the published words were understood to bear or were capable of bearing the meanings alleged in paragraph 12(c) of the statement of claim.  But further and alternatively in paragraph 5 they alleged that if the material published was defamatory of the plaintiff it was published in good faith.  Then particulars are alleged of the facts on which the defendant relies in establishing that defence.  Incorporated into the pleading are further and better particulars delivered by the defendants on 16 September 1994.  In paragraph 4(a) of the amended reply the plaintiff admits all the allegations made in sub-paragraphs 1(a) to (q) of the particulars delivered 16 September 1994.  Those particulars detail the transaction in relation to the alleged tainted money.
           All the matters of fact alleged by the defendants to be relevant to their defence are admitted, and by the interrogatories in question the defendants seek to elicit additional material relating to enquiries made by the plaintiff with respect to such matters.  Principally the objection to answering the interrogatories was on the basis that they did not relate to any matter in question in the action.
           Having considered the state of the pleadings it appears to me that the objection is correct.  The defendants are going beyond the matters pleaded in requesting an answer to the interrogatories.  Of course it may well be that a trial questions along those lines will be admissible, but they are not, in my view, admissible as interrogatories at this stage.
           The application with respect to these interrogatories should be refused.
Interrogatories 4(b)(iii) and (iv)
           At the outset it again should be noted that the whole of interrogatory 4 is badly drafted because it does not recognise the distinction between the plaintiff and the firm of solicitors of which he was a partner.  Interrogatory 4(a) is answered by admitting that the firm received remuneration from the Official Trustee in bankruptcy in relation to the representation of each of the five accused persons.  Interrogatories 4(b)(i)(ii) are then answered;  they relate to the amount of remuneration so received and the date on which such remuneration was received.
           Interrogatory (iii) then requires "full details of the work performed in exchange for such remuneration including A. the date or dates upon which such work was performed; B. the hours billed in relation thereto; C. the hourly rate at which such work was charged.  There is an objection to answering that interrogatory on the ground that it is vague, fishing, and oppressive; a further point is taken that it does not relate to any matter in question in the action.  For the reasons given with respect to interrogatories 3(a),(b) and (c) I am of the view that the objections to answer are valid.  It would be oppressive at this stage for the plaintiff to have to provide such a detailed answer.  The defendants already have the total figures in answers to which I have referred, and it may well be that some further evidence would have to be forthcoming from the plaintiff at the trial to justify the payment of such an amount.  But that is not to say that this particular interrogatory is not objectionable at this stage.
           Interrogatory (iv) seeks further details in relation to the proceedings in which the accused persons were represented by the plaintiff and with respect to which the remuneration was claimed.  It seeks details of "each category of representation" - whatever that may mean - and a break-up of professional costs and disbursements.

           The objection to answer is on the basis that the interrogatory is vague, fishing, oppressive, and not related to any matter in question in the action.
           In my view the objections taken are valid and the plaintiff should not be required to provide any further answer to this interrogatory.
Interrogatory 5(d)
           Interrogatory 5 seeks information as to the gross income and gross expenditure of the plaintiff as a sole practitioner and of the partnership Bailey and Bailey.  The plaintiff has provided detailed answers to the various questions asked by interrogatory 5, but has limited his answer to (d) to income and expenditure after 1 July 1987.  That means that information has been provided for a period of five years prior to the publication of the alleged defamatory material.  It is contended by the plaintiff that it is oppressive and irrelevant to require details of income and expenditure more than five years prior to the relevant date.  I must say it is difficult to see how information as to income and expenditure more than five years prior to the relevant date could be of assistance to the court in determining the loss, if any, sustained in consequence of the publication of the alleged defamatory material.
           The further point is taken that it would be oppressive to answer with respect to the period between January 1986 when the partnership commenced practice and 1 July 1987 because broken accounting periods were involved in respect of which no discrete records were kept.  Again it seems to me there is substance in the plaintiff's contention.
           In my view the interrogatories have been answered in so far as they deal with facts relevant to matters in issue at the trial.  No further answer should be ordered.
Interrogatories 2(f)(iv)(v)
           The main point taken here on behalf of the defendants was that in the answers reference was made to a document described as Document 75 in Part 2 of Schedule Figure 1 of the plaintiff's affidavit of documents sworn 22 December 1993, but that such document had not been produced for inspection.  The contention was that as it had been referred to in the answers there was an admission made by the plaintiff that the document was relevant and discoverable.  It appears, from statements made during the course of argument, that that matter has now been resolved as the document has been made available for inspection.  In the circumstances there is no need to consider further the adequacy of the plaintiff's answer.
Interrogatory 6(b)
           The complaint here was that the answer was incomplete in that no information was provided for the year ended 30 June 1994.  That is technically correct, but the matter has subsequently been resolved by further discovery by the plaintiff, namely the Supplementary Affidavit of Documents filed 6 October 1995.  It does appear that the documents therein discovered mean that the defendants now have access to all relevant material for all of the periods with which they are concerned.  In the circumstances there is no point in requiring the plaintiff to make any further and better answer.
Interrogatory 7(d)(ii)
           An objection was taken to the answer provided to this interrogatory in the form of a schedule, being Schedule 4.  In the course of argument counsel for the plaintiff went in some detail through that Schedule explaining what it meant.  It seems to me that there has been a sufficient answer to the interrogatory, albeit that at first glance the Schedule may not be entirely meaningful; but once the Schedule is explained there is, in my view, a sufficient answer.  It was a result of lack of communication between the parties which, in my view, resulted in the application being made with respect to this particular answer.
           Again no order requiring a further answer is required.
Orders
           It follows that the defendants have not satisfied me that further and better answers to the interrogatories should be ordered.  The application will therefore be dismissed with costs.