Behan v Stonehouse
[2017] WASC 275
•27 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BEHAN -v- STONEHOUSE [2017] WASC 275
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 27 SEPTEMBER 2017
FILE NO/S: CIV 2549 of 2015
BETWEEN: MITCHELL BEHAN
Plaintiff
AND
SYLVIA LOUISE STONEHOUSE
Defendant
Catchwords:
Practice and procedure - Interrogatories - Further answers provided - Failure to raise dissatisfaction with further answers - Application to strike out or for springing order
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr S Gibson
Defendant: Mr J Prus
Solicitors:
Plaintiff: Mills Oakley Lawyers
Defendant: Noble Law
Case(s) referred to in judgment(s):
Nil
KENNETH MARTIN J: I am dealing on the papers with an interlocutory aspect of a defamation action brought by the plaintiff against the defendant that was originally commenced in the Supreme Court of Victoria. The litigation was subsequently remitted under the national cross vesting legislation regime applicable between States. So, what began in Victoria in 2014 as No SCI 2014 06717 has now become action CIV 2549 of 2015 in the commercial and managed cases (CMC) list of this court.
The pleadings as between the parties have altered over time. The most contemporary iterations are the plaintiff's amended statement of claim filed 29 April 2016, and the defendant's amended defence filed 12 August 2016.
Because this matter is a defamation action, it is automatically case managed within this court's CMC list. To that end various directions hearings have been held from time to time from 2016.
The essential defamation grievances of the plaintiff, as articulated by his pleading and in schedules thereto, would appear to be a series of Facebook posts allegedly made by the defendant over a period between 11 June 2010 to 29 November 2011 (the fifth publication complained of) and 19 November 2011 (the fourth publication complained of).
The parties obtained leave to administer interrogatories against one another. The utility of that course has proven less than satisfactory as matters have transpired. In this State under O 27 of the Rules of the Supreme Court 1971 (WA) (RSC) leave to administer interrogatories is required. Generally if leave is to be obtained, drafts of the proposed interrogatories are normally exchanged, conferred about, and approved by the court before the administration happens. That did not happen here.
At a special appointment convened on 19 December 2016 I was dealing with the plaintiff's then application of 9 November 2016 to press for better answers in respect of interrogatories it had administered to the defendant under the plaintiff's interrogatories filed at this court on 13 October 2015. At that time, the plaintiff had administered 45 interrogatories to the defendant.
By its November 2016 application the plaintiff was seeking to compel better answers to 14 of its interrogatories - which it was contending had been either inadequately or not properly answered by the defendant.
The interrogatories as administered by the plaintiff then at issue in November 2016 were its interrogatories numbered 2, 8, 11, 13, 25, 35, 37, 38, 39, 40, 41, 43, 44 and 45.
History
There had been a long preceding history to the plaintiff's November 2016 application seeking to compel better answers from the defendant. After the plaintiff had administered interrogatories in October 2015, the defendant filed an initial set of answers under a document filed on 22 December 2015. The plaintiff was dissatisfied with some of those answers. Not the least of his concerns was that there were answers not given in the first person by the defendant.
There followed the further answers as provided by the defendant under an affidavit sworn by her on 12 August 2016. The defendant now provided better answers to the interrogatories 2, 8, 11, 35, 37, 38, 39, 40, 41, 43, 44 and 45.
Even so, the plaintiff still remained dissatisfied, culminating in the special appointment before me of 19 December 2016.
19 December 2016 special appointment
Towards the application for further and better answers listed to be heard on 19 December 2016, the plaintiff's evidence was provided in an affidavit of Stuart Gibson sworn 9 November 2016, to which I have referred. The applicant plaintiff's supporting written submissions dated 22 November 2016 were filed on 7 December 2016.
From the defendant, I had received for the purposes of that appointment her further affidavit, sworn 16 December 2016. This was of some 14 paragraphs. But materially it indicated new solicitors had been acting on her behalf from 15 July 2016 (namely, MGB Legal - see par 8 of the defendant's affidavit).
The defendant, through those new solicitors, now filed two different tranches of written submissions signed by counsel (Mr Soactar) both generically dated December 2016.
When the matter came on for argument at the appointment on 19 December 2016, Mr Gibson for the plaintiff (appearing by telephone link from Melbourne) requested an adjournment. This was sought on the basis he had only received the undated defendant's written submissions just an hour earlier along with an undated and unfiled affidavit of the defendant at the same time.
Counsel had privately canvassed between themselves an adjournment -on the basis that Mr Gibson was not in a position to properly argue that application (see ts 2).
But a deferral position in terms of the overall slow progress of the action to a trial was unsatisfactory. I had, of course, necessarily assimilated and considered the parties' respective written submissions concerning problematic answers to the interrogatories at issue - a somewhat tortuous process in itself. Hence, I then proposed to the parties that I could at that point, without hearing verbal arguments by counsel, render my prima facie assessments as to the adequacy or otherwise of the answers which had been provided to the plaintiff's interrogatories - which were being pressed at that time - for the parties' counsel to then reflect upon. That course was agreed.
I then proceeded to provide my ex tempore assessments, indicating at the end that I had rendered only prima facie observations and that counsel were now in a position to confer about what answers ought be pressed, or otherwise.
Aside from the defendant's late materials as complained about by the plaintiff, there were further problems of a logistical nature. There was, as I have already indicated, an unsatisfactory feature of answers and further answers being provided by the defendant's former solicitors expressed in the third person - rather than the responses being the sworn answers or objections of the defendant personally. That needed to be corrected.
It also appeared that toward some latter pressed answers for interrogatories at issue the answers given had been afflicted by an erroneous, out of sequence numbering, which was causing confusion on all sides - including to the court. That needed to be corrected.
In overall consequence, therefore, I indicated to the parties that with the benefit of my prima facie assessments via the ex tempore observations they then had an opportunity to study the transcript and to consider their positions.
At that time I set down a further directions hearing for the new year, on 2 March 2017, essentially to review the outcomes.
That directions hearing, in the end, did not proceed.
The parties, by consent, sought further time. The 2 March 2017 programmed directions hearing was consensually adjourned, to 27 April 2017.
In the meantime, on 27 February 2017, the defendant appointed fresh lawyers (Noble Law of Brisbane).
On 27 March 2017 (no doubt with an eye to the prima facie assessments I had offered in December 2016) the defendant filed some further amended answers and objections. This was in respect of the answers to interrogatories 2, 8, 11, 13, 25, 35, 37, 38, 39, 40, 41, 43, 44 and 45.
Then, on 20 April 2017, the defendant filed even further sworn answers and objections to all 45 of the original interrogatories as administered by the plaintiff. Obviously, there had been some discussion between the parties' legal representatives concerning the 27 March 2017 further answers, leading to that subsequent consolidated answers document of 20 April 2017.
At all events, consent orders were submitted the day prior to the next scheduled directions hearing, on 27 April 2017. Nothing was then indicated from the plaintiff at that point as to it, at that time, still not being satisfied with the consolidated answers or objections as finally provided by the defendant under her sworn response filed on 20 April 2017.
By the consent of the parties on 26 April 2017, I then vacated the next day's programmed directions hearing. That all unfolded on a consensual basis that orders were also made by me then giving the defendant leave to file and serve her proposed interrogatories upon the plaintiff. That was to happen by 31 May 2017. I further ordered by consent at that time that the plaintiff would file and serve his answers to the defendant's administered interrogatories, by 15 June 2017.
I also set down a further directions hearing then, for 20 July 2017.
20 July 2017 directions hearing
At the directions hearing on 20 July 2017, Mr Gibson appeared for the plaintiff with leave over the telephone, speaking from Melbourne. Counsel, Mr Prus, instructed by Noble Law for the defendant, appeared over the telephone, speaking from Brisbane.
For that hearing the defendant had earlier provided a circulated minute of proposed orders. She foreshadowed seeking to compel the plaintiff to answer 74 interrogatories which her legal representatives had administered to the plaintiff under a document filed at this court on 2 June 2017.
Those interrogatories as filed upon the plaintiff had then been filed two days late. I had, of course, allowed the plaintiff until 31 May 2017 to administer her interrogatories to the plaintiff.
Consequently, the defendant was seeking a two day extension of time in order to regularise the position as regards the defendant's now filed and served 74 interrogatories. Given the history of the action, I viewed it appropriate, at that time, for time to be extended to that minor extent.
As seen, my envisaged timetable, under the consent orders made 26 April 2017, had initially afforded the plaintiff until 15 June 2017 to answer the defendant's interrogatories. But as at 20 July 2017 there had been no attempt to provide answers by the plaintiff.
Perhaps the plaintiff was impliedly taking an objection of a petty nature, that until there was an extension of two days' magnitude there was no obligation to provide answers.
The 20 July 2017 directions hearing proved to be something of an audio shambles. Mr Gibson and Mr Prus effectively engaged in an extended shouting match by repeated shouting, interrupting and speaking over each other across the telephone link to Perth - something I found most unhelpful.
At all events, it then emerged that contrary to my understanding to that point, the plaintiff, so it was said by Mr Gibson, was still then dissatisfied over the further and better answers of the defendant to the plaintiff's interrogatories, as provided under the 20 April 2017 updated sworn answers finally received from the defendant.
So it was that Mr Gibson now foreshadowed requested orders pursuant to RSC O 27 r 8 striking out the defendant's defence and seeking judgment. Alternatively a self‑executing order to that effect was foreshadowed. No minute in such terms had been received by the court from the plaintiff to that end prior to that hearing.
Prior to that dissatisfaction being articulated by Mr Gibson for the plaintiff verbally on 20 July 2017, there looked to me to have been very little engagement as between the parties concerning a seeking of punitive orders to that effect. Rather, by my assessment of the overall position, Mr Gibson at the hearing was seeking to fight 'fire with fire' as he now faced the defendant's application to compel answers from the plaintiff as to the defendant's interrogatories as filed. Mr Gibson was, in effect, 'upping the ante'.
In those circumstances, I did, in the end, extend time for the defendant to regularise her interrogatories to the plaintiff, until 2 June 2017, thereby remedying that two day default. But I then extended time for the plaintiff to answer the defendant's administered interrogatories to 21 August 2017, and by a statement verified on affidavit.
Subsequent to the 20 July directions hearing, the plaintiff filed his sworn answers and objections to the 74 interrogatories administered by the defendant. That was effected by the plaintiff under a document dated 7 August 2017 - and filed in the Central Office of the Supreme Court of Western Australia on 23 August 2017.
There is nothing presently put to me to say whether or not the defendant is satisfied with those sworn answers by the plaintiff, or if she seeks to press for further or better answers.
Returning to the unsatisfactory directions hearing of 20 July 2017, I also needed then to address the position of the plaintiff's, only then verbally, expressed grievances concerning the state of the defendant's answers to the plaintiff's interrogatories. By paragraph 3 of my orders made at that time, I ordered that 'the plaintiff is to file and serve any application to compel further and better answers by the defendant in respect to any given answers within 7 days, that is by 4.00 pm Thursday, 27 July 2017'. I further ordered that the defendant was to file and serve her response to that application within 7 days of its receipt, by 4.00 pm on Thursday, 3 August 2017. I ordered that the cost of that directions hearing be costs in the cause.
Subsequently, the plaintiff filed a rather ambitiously titled minute of orders of 24 July 2017. It was headed 'Consent Orders', albeit seeking judgment or springing order relief against the defendant.
I omitted to say that on 20 July 2017, Mr Gibson had sworn a further affidavit of some ten paragraphs - the very day of the listed directions hearing at 9.30 am WST that day. In all the circumstances, his affidavit was not available to be considered by me given that late arrival.
Communications between the parties
Relevantly, in the period immediately after I had provided my prima facie reasons to the parties on 19 December 2016, Mr Gibson's affidavit of 20 July 2017 now attached his communication of 15 March 2017 (SJG4).
By that communication he informed a Ms Bourne of Noble Law concerning the repercussions of the hearing on 19 December 2016. He then said:
In that hearing, his Honour gave his preliminary thoughts on our client's interrogatories that suggested some of your client's answers were insufficient or inadequate.
For your convenience we enclose a copy of the transcript. In the transcript, you will see what answers given by your client are likely to require further information.
In the circumstances, we request that your client provide answers by 5.00 pm Friday, 24 March 2107, failing which, our client will press on with its application to strike out.
We look forward to receiving your client's response.
Mr Gibson's 15 March 2017 communication thus preceded what was the first tranche of further answers received from the defendant - filed on 27 March 2017.
Next, on 30 March 2017, after receipt of those first tranche answers (and which Mr Gibson exhibits as his SJG5 to that affidavit) he wrote a further letter to Ms Bourne, which is SJG6 to his affidavit.
Significantly, Mr Gibson only wrote:
We refer to the further amended answers to interrogatories filed by the defendants on 27 March 2017 and recent correspondence between the parties.
In relation to interrogatories 43 and 44, we request that the defendant provide further answers.
(a) Interrogatory 43
Specifically, in relation to interrogatory 43, his Honour indicated on 19 December 2016 that the answer was unresponsive, and that a sequencing error needed be [sic] clarified, as the answer provided appeared to respond to interrogatory 44. The further amended answer is still unresponsive and we request a further answer.
(b) Interrogatory 44
In relation to interrogatory 44, his Honour again indicated that the answer was unresponsive and that there appeared to be a sequencing error. The further amended answer is still unresponsive and we request a further answer.
Mr Gibson concluded his 30 March 2017 communication:
In the circumstances, we request that your client provide proper answers by 5.00 pm Thursday, 6 April 2017, failing which, our client will press on with its application to strike out.
We look forward to receiving your client's response.
Two things may be observed about that communication. First, it obviously preceded and no doubt stimulated the defendant's second tranche of amended answers, as filed on 20 April 2017. Those answers as regards the plaintiff's interrogatories 43 and 44, did then correct sequencing errors still evident under the defendant's preceding further answers of 27 March 2017. The answers corrected sequencing errors for 43 and 44, also supplementing the responses. In particular, there was a further objection taken as regards interrogatory 43 and a further degree of clarification provided in the response to the answer to interrogatory 44.
At 30 March 2017 then, it was clear now that it was only the defendant's answers to interrogatories 43 and 44 which were addressed as residually problematic - under the position communicated to the defendant's solicitors by Mr Gibson at that time. Nothing more.
Mr Gibson's affidavit at exhibit SJG7 displays the next communication to Ms Bourne, of 10 April 2017. That was his email sent in response to her communication to him by email of 6 April 2017 at 2.52 pm. Ms Bourne had said at that time:
We are currently amending the numbering and will be in a position to have a copy to you before 5.00 pm tomorrow, 7 April 2017.
If your client instructs you to file the application to strike out of 2 interrogatories that are misnumbered, that is a matter for him.
On 10 April 2017, Mr Gibson emailed Ms Bourne at 9.22 am indicating:
[Y]ou have not provided the copy as promised by your own deadline.
There subsequently arrived on 20 April 2017 the amended sworn answers from the defendant to all 45 interrogatories - including the adjustments to the answers to interrogatories 43 and 44 sworn by the defendant and filed.
Mr Gibson notes his receipt of those 20 April answers under paragraph 10 of his 20 July 2017 affidavit. But he says no more than that.
Consequently, there would appear, across the period between 20 April 2017 and at least until 19 July 2017, to be no further commented indication emanating from Mr Gibson for the plaintiff that any of the answers as provided by the defendant's 20 April 2017 further responses, still remained unsatisfactory. Even as regards the further answers to interrogatories 43 and 44 as provided by the defendant on 20 April 2017, the position then appeared to have finally been addressed satisfactorily, at long last.
Nothing by way of a communication challenging the defendant's 20 April 2017 responses looks to have emanated from the plaintiff's solicitors, after those responses were received.
Subsequent to the 20 July 2017 directions hearing there was nothing more on the evidence before me, emanating from the plaintiff, to support a basis to compel further answers from the defendant beyond the ambitiously titled consent orders of 24 July 2017, seeking that the defendant's defence be struck out or, alternatively, the self‑executing order that the defendant generically provide answers to all interrogatories. That was not satisfactory.
If this plaintiff was acting under the misapprehension that it might on 20 July 2017 re‑ventilate de novo some fresh grievancse in respect of all the answers to interrogatories challenged as at 19 December 2016, then that position was clearly misconceived.
As the transcript for that December 2016 hearing indicates, there were then various identified difficulties with a number of the plaintiff's interrogatories which the plaintiff had then been pressing for better answers to from the defendant, particularly his interrogatories 11, 13, 25, 35, 37, 38, 39e, 40f, 42 (which the plaintiff did not press) and 43. Interrogatory 45 also appeared to display an exercise in impermissible cross‑examination. I would reconfirm all of those December 2016 observations on the transcript as residually appropriate. Sequencing errors blighting the location of the answers to the last few questions had needed to be clarified, particularly as regards the responses provided by the defendant to answers 43 and 44.
I repeat that the plaintiff since 20 July 2016 has not supplemented its materials by any articulated written submission directed at the contended present inadequacy in any of the defendant's current answers and responses under her sworn answers filed 20 April 2017.
The defendant, however, has filed further submissions to accord with direction 4 of my directions on 20 July 2017 - see defendant's written submissions of 3 August 2017. Those written submissions essentially trace an unsatisfactory tortuous history of this application concerning the answers sought to interrogatories administered to the defendant and which I have now been required to relate above.
As indicated, the materials before me, even on their most generous interpretation, might indicate only that there had once been some residual sequencing dissatisfaction expressed on the plaintiff's part over the responses to interrogatories 43 and 44 - as at 30 March 2017. For convenience only, I shortly set them out below, together with the most current responses of the defendant, provided after Mr Gibson's complaints under his 30 March 2017 communication.
The affidavit material before me, as I mentioned, displays no subsequent communicated complaint after the consolidated further answers as provided by the defendant on 20 April 2017.
Interrogatories 43 and 44
Interrogatory 43 as administered on 12 October 2015 read in these terms:
Have you received any correspondence, letters, emails, text messages, telephone calls or communications of any kind relating to the Publications or to the matters complained of in the statement of claim dated 2 April 2015 since publishing the Publications from any persons or third parties other than the plaintiff or his solicitors ('the correspondences')? If Yes, give full details of:
(a)each of those communications;
(b)to which of the Publication(s) did the communication relate;
(c)the date or dates of each of those communications;
(d)the author or authors of each of those communications; and
(e)the substance of each of those communications.
The defendant's answer to that interrogatory, after the residual sequencing errors, were finally corrected under her 20 April 2017 sworn responses in these terms:
43.In answer to interrogatory 43:
(a), (b), (c), (d), and (e) - in answer to each of these questions the defendant does not recall any other correspondence being received other than the plaintiff's claim.
Further, I object to answering this interrogatory on the grounds [sic] that it is irrelevant, unreasonable, prolix oppressive or unnecessary. Further the interrogatory is not sufficiently material.
I had earlier observed prima facie as to the plaintiff's interrogatory 43 (see page 21 of the transcript on 19 December 2016):
[B]ut the question is what is the relevance of whether or not the defendant, after making the publications if the plaintiff can prove that, got correspondence from persons or third parties? The relevance of that is not on the face of it clear to me. It might be that the plaintiff is trying to obtain some evidence in relation to the scale of publication from a damages perspective in terms of whether a lot of people saw it or not so that the response back to the defendant might bear upon that, but apart from that I can't really see any particular relevance ... either these matters were defamatory or they weren't.
My assessment of the present answer to interrogatory 43 given with the cover of the objection raised to this interrogatory, is that it is now an appropriate response. The question was always too widely framed. Effectively, the interrogatory sought to fish as regards documents and communications which, if relevant, ought to have been the subject of the defendant's discovery. To that extent interrogatory 43 collaterally impugned the defendant's discovery. That is impermissible for an interrogatory.
In any event, the essential sworn response as given by the defendant as to her not recalling any other correspondence is sufficient.
The plaintiff's interrogatory 44 administered on 12 October 2015 was in terms:
44.At the time of publishing the Publications, did you have any belief as to the truth of the statements contained in the Publications? If so, state in relation to each such statement what your belief was and the grounds for it.
The further answer and sworn response as finally provided on 20 April 2017 by the defendant reads:
44.[I]n answer to interrogatory 44:
I say that of the posts that I can recall I was convinced of the truth of those statements. This is set out in my amended defence filed in the Supreme Court of Western Australia. After experience over many years working with and supporting people affected by trauma in the mental health area, including information that emerged out of LGATS and medical professionals in this field, I also accessed and read posts and articles by [sic] plaintiff and watched YouTube videos posted by MJB all of which provided me with information that lead me to believe the truth of the postings that I can recall.
An omnibus character within interrogatory 44 in regard to asking about multiple publications is apparent, once the various publications complained of are identified within the plaintiff's current statement of claim.
Asking then generically about unidentified 'statements' contained in all publications was too imprecise and was always problematic. The publications are lengthy. Specific statements contended for as arising therein then ought to have been isolated out and properly identified - before an interrogatory of this character might properly be administered.
In other words, the omnibus character of interrogatory 44 was impermissible. The defendant's limited response in those circumstances, generic as it was and in the affirmative, was not capable of being further impugned by the plaintiff.
Save for those observations as regards interrogatories 43 and 44, I would explicitly decline to deal with any further contended adequacy challenges from the plaintiff, seeking to compel further answers to his interrogatories and axiomatically seeking strike out relief or judgment sanctions against the defendant to that end. Such orders would be completely inappropriate in the most unsatisfactory and wasteful circumstances I have now related.
Conclusions
The manner by which the plaintiff's persisting interlocutory challenges as against the defendant's answers to interrogatories has proceeded is most unsatisfactory. It is clear enough that Mr Gibson, when confronted with the defendant's application to compel answers from the plaintiff to her administered interrogatories as at 20 July 2017, then attempted to manufacture some flimsy basis of resistance. This was the expressed and late revival of the prior answers application which then was fully spent of any content - after the plaintiff had done absolutely nothing after receiving the defendant's responses by her further answers of 20 April 2017, sworn as regards all interrogatories and particularly the corrected answers then to interrogatories 43 and 44.
Given those circumstances, I would dismiss the plaintiff's further application under the so-called consent orders of 24 July 2017. I have in all the circumstances dismissed that application on the papers.
Moreover, an appropriate sanction in a most wasteful and unsatisfactory situation, I will order that the plaintiff not receive any costs in respect of its pursuit of the further answers to interrogatories to its interrogatories of 12 October 2015. I had reserved the costs of the hearing conducted on 19 December 2016. But in the unsatisfactory circumstances now related above, there should be no order as to those costs of the plaintiff.
There is, as I have noted, no presently advanced application by the defendant seeking further answers from the plaintiff in regard to the answers and objections which the plaintiff gave on 23 August 2017. Consequently, there is no call for orders in that respect.
After the publication of these reasons the matter will be listed for a further directions hearing in October 2017 - with a view to assessing the overall readiness of this defamation action for a trial and an allocation of trial dates in 2018. Further residual interlocutory orders if required prior to a trial including as to exchanges of witness statements or the like, must be the subject of conferral beforehand to be dealt with at the pre‑trial directions hearing, the date of which will be fixed administratively. That hearing will be conducted with my leave over a telephone link to Perth. But I indicate, that if another unsavoury shouting match erupts, then there will be no further indulges of that nature offered.
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