Charles v 6PR Southern Cross Radio Pty Ltd
[1999] WASC 275
CHARLES -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ANOR [1999] WASC 275
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 275 | |
| Case No: | CIV:2352/1998 | 5 NOVEMBER 1999 | |
| Coram: | STEYTLER J | 5/11/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application acceded to in part | ||
| PDF Version |
| Parties: | JUSTIN ROBERT CHARLES 6PR SOUTHERN CROSS RADIO PTY LTD (ACN 008 829 927) BRADLEY JOHN HARDIE |
Catchwords: | Defamation Application for leave to issue interrogatories Turns on own facts |
Legislation: | Nil |
Case References: | Nil Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Arnold v Bottomly [1908] 2 KB 151 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Heaton v Goldney [1910] 1 KB 754 Hennessy v Wright [No 2] [1889] 24 QBD 445 Munro v Coyne [1990] WAR 333 Ratcliffe v Evans [1892] 2 QB 524 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
6PR SOUTHERN CROSS RADIO PTY LTD (ACN 008 829 927)
First Defendant
BRADLEY JOHN HARDIE
Second Defendant
Catchwords:
Defamation - Application for leave to issue interrogatories - Turns on own facts
Legislation:
Nil
Result:
Application acceded to in part
(Page 2)
Representation:
Counsel:
Plaintiff : Mr R W Richardson
First Defendant : Mr N D C Dillon
Second Defendant : Mr N D C Dillon
Solicitors:
Plaintiff : Slater & Gordon
First Defendant : Corrs Chambers Westgarth
Second Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Arnold v Bottomly [1908] 2 KB 151
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Heaton v Goldney [1910] 1 KB 754
Hennessy v Wright [No 2] [1889] 24 QBD 445
Munro v Coyne [1990] WAR 333
Ratcliffe v Evans [1892] 2 QB 524
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148
(Page 3)
1 STEYTLER J: The first interrogatory which is in dispute is interrogatory 2(c) which asks for the usual particulars of advice to the plaintiff that they had heard the broadcast and those usual particulars are expressed to include particulars of between what actual persons each conversation constituting each part of the advice took place.
2 It seems to me that that information is unnecessary as regards the pleaded issues. The submission made in support of it is that it will assist in identifying the type or types of persons who claim to have heard the broadcast but I am not persuaded that the mere giving of names would assist in that respect and I am not persuaded that anything of that nature is sufficiently relevant at this stage to warrant the answering of interrogatories in that respect. I would consequently disallow interrogatory 2(c) to that extent.
3 As to interrogatory 3, that asks whether anyone advised the plaintiff that as a result of hearing the broadcast he or she identified the plaintiff as having been referred to in the broadcast. It seems to me that this interrogatory also is unnecessary as the plaintiff is expressly named in the broadcast and it is made plain who he is and there is no issue as to identification in the pleadings. I consequently propose to disallow that interrogatory.
4 Interrogatory 4 falls with interrogatory 3. As to interrogatory 5, this asks whether anyone has advised the plaintiff that as a result of hearing the broadcast he or she thought less of the plaintiff. The plaintiff objects to that interrogatory upon the basis that it does not advance the case in respect of general damages in circumstances in which there was a mass media publication by way of a radio broadcast; however it does seem to me that it is sufficiently relevant to the issue of general damages in the sense that it is open to the plaintiff to lead some evidence of this kind if it thinks fit by way of amplification of the general damages claimed by it and in the hope that this would increase the amount of those general damages. On that basis it seems to me that this kind of interrogatory is permissible and I would be prepared to allow it. It seems to me also to follow that if interrogatory 5 is allowed, interrogatory 6 should be allowed and I would allow that also, subject to the same disallowance in respect of the interrogatory seeking the usual particulars as I have made in interrogatory 2(c).
5 Interrogatory 7 likewise seems to me to be sufficiently relevant at this stage, even though no special damages have been claimed, as being a
(Page 4)
- matter which could go to general damages and I would be prepared to allow it.
6 It follows that interrogatory 8 would also be allowed subject to the disallowance of the reference to "The usual particulars of all such advice in 8(c)" insofar as those particulars encompass the furnishing of actual names of the persons concerned.
7 Interrogatory 9 asks the question whether or not the plaintiff has suffered any financial loss or any loss of income or prospective income or incurred any expenses as a result of the broadcast. Those matters all seem to me to be matters which fall squarely within special damages. None have been claimed and in those circumstances, I am not persuaded that I should allow the interrogatory. I consequently disallow interrogatory 9, and interrogatory 10 will fall with it.
8 The minute of proposed interrogatories for answer by the second defendant is objected to primarily upon the ground that the matters there sought to be interrogated on are matters which are not sufficiently relevant on the pleading of either the statement of claim or the reply as each of those pleadings is particularised.
9 The alleged defamation essentially relates to a radio broadcast which is said to have carried imputations to the effect that the plaintiff was a user of heroin or cocaine or that he was a dealer in heroin or cocaine, and in par 7 of the statement of claim the plaintiff pleads that by reason of the matters there set out he is entitled to exemplary damages against the second defendant.
10 The matters relied upon are that the second defendant published the words complained of knowing in effect that they were defamatory of the plaintiff, knowing and intending that they bore or were likely to bear or that there was a foreseeable risk that they would bear the imputations pleaded and knowing that the meanings conveyed by those imputations was false or being in reckless disregard as to whether or not they were true or false.
11 The reply in answer to a plea of qualified privilege alleges express malice on the part of the second defendant and essentially the same pleas are made in support of that allegation of express malice as are made in support of the claim for exemplary damages save that there is also a plea that the second defendant published the words complained of with the improper motive of improving his personal reputation as an investigative journalist.
(Page 5)
12 Interrogatory 1 asks whether at the time of publication of the words complained of the second defendant intended them to mean that the plaintiff was a user of heroin or cocaine or was a dealer in either of those substances. It seems to me that that interrogatory is permissible in respect of the plea in support of exemplary damages or in respect of express malice in that the intention of the publisher of the words is relevant to the matters raised in par 7.2 and par 7.3 of the statement of claim and their equivalent paragraphs in the reply.
13 I do not accept the contention advanced on behalf of the second defendant that the particulars to those paragraphs are so limiting as to not render these interrogatories permissible. It seems to me that the allegations of knowledge of falsity and of knowledge and intention in par 7.2 are sufficient to render the interrogatories permissible.
14 For similar reasons it seems to me that interrogatory 2 is permissible.
15 So far as interrogatory 3 is concerned, that asks to what substance the second defendant was intending to refer in saying the words "because he tested positive to a substance which was totally banned". It seems to me again that that is a permissible interrogatory and that it is relevant to the matters pleaded in par 7 of the statement of claim and par 4 of the reply.
16 For similar reasons it seems to me that interrogatory 4 is permissible. The same is true of interrogatory 5 and of interrogatory 6. Interrogatory 7 is not objected to but so far as interrogatory 8 is concerned, it seems to me again for similar reasons that that interrogatory is permissible. Interrogatories 9 and 10 are not objected to.
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